Volume 24 — Louisiana Annual Reports

Collens, J. made the following argument in this case before the Supreme Court: ORIffIN OR THE SUIT. In October, 1805, certain parties purchased the steamer Creole, with five other vessels. They gave $16,000 for the Creole. This vessel was immediately put in the trade between New Orleans and Mobile, touching at the watering places on the lake. She continued in that trade three months and twelve days. The earnings of the vessel during that time were $50,821 54.

<p>Appeal from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>Appeals from the Fifth District Court, parish of Orleans. Leavmont, J.</p>

<p>A plaintiff who brings suit in bis own name as agent is bound to disclose the name and residence of liis principal. The fact that a defendant has signed a release bond as security in an attachment suit wherein the plaintiff appeared as agent without disclosing the name of his principal, does not estop him from excepting to the action, on the ground that the plaintiff, as agent, failed to disclose the name of his principal.</p>

<p>A commission issued by tlio Governor appointing a person to an office not vacant, is ait absolute nullity and confers no title whatever in the appointee to the office.</p> <p>'Xhe Governor has no power under the Constitution to destitute a constitutional officer of his office. Such offices can only bo vacatod in tlio manner pointed out by tlio Constitution and tlio laws.</p>

<p>Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.</p>

<p>Contracts legally entered into have tlie effect of laws on ilie parties wlio liave formed tkem.</p> <p>An agreement made botwoon tbo city of New Orleans on the one sido and a contractor on tlio other, whereby tho city reserves tho right to discontinue and annul the contract, whenever it shall appear that tho contractor has failed to comply with the terms and conditions of the contract, may be annulled and set aside by the city without putting the contracting party in dofault, if it be shown that ho has failed to comply with tho terms and conditions imposed upon him by tho contract.</p>

<p>Appeal from the Seventh District Court, parish of Orleans. Collens, J.</p>

<p>Legal or tacit mortgages allowed by law are inoperative against third persons nnloss they have been recorded in the manner provided by law. Constitution, article 123, act No. 95 of 1869; 32 An. 278.</p> <p>Article 123 of the Constitution, and the act No. 95 of 1869 to enforce it, do not impair the obligations of contracts. These provisions of the Constitution and the laws of the St&te on the subject are not therefore in conflict with section ten of article one of the Constitution of the United States.</p>

<p>Appeal from the Parish Court of the parish of Tangipahoa. Bradley, Parish Judge.</p>

<p>Appeal from the Sixth District Court, parish of Orleans. Cooley, J.</p>

<p>Evidence offered and received without objection, showing that an account against the city of Eew Orleans has been approved by one of the finance committees in accordance with the requirements of the ordinances of the city, must, in the absence of countervailing proof, be taken as establishing the demand.</p>

<p>In a criminal trial on the charge of shooting at another, who was in pursuit of the accused, evidence showing that the person shot at was the sheriff of the parish at the time, is admissible to show that such person was in the peace of the State at the time of the shooting.</p>

<p>Appeal from the Fifth District Court, parish of Orleans. Leaumont, J.</p>

<p>Appeal from the Third District Court, parish of Orleans. Emerson,, J.</p>

<p>A rule taken against a garnishee to show cause why an interrogatory shall not be taken for confessed, will be dismissed if the answer of the garnishee to the interrogatory shows that be has answered the questions asked categorically.</p>

<p>Isolated expressions uaocl by a court in giving reasons for its judgment can not control tbo force and eilbcfc of a formal decree. A deoreo which pronounces a document claimed to be a codicil to a last will and testament a forgery, can not therefore be controlled, limited or qualified by expressions used by the court in giving its reasons for the judgment.</p> <p>Tho plea of res judicata will be maintained where tlie suit is between tho same parties and is founded on the same cause of action.</p>

<p>Appeal from the Seventh District Court, parish of Orleans. Collens, J.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>Appeal from the First District Court, parish of Orleans. Abell, J.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>Appeal from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>The municipal government set up hy the military authority of tho United States for the city of Row Orleans, which continued from 1862 to 1866, and administered the affairs of the city hy officers appointed hy the military authority, was not the government of a conqueror. The doctrine in relation to contracts made hy an occupying conqueror in reference to property of the conquered, from which he is afterward expelled, or which he ‘is required hy treaty to give up, has no application to contracts made hy such municipal officers.</p> <p>A contract made hy tho city, under the authority of an ordinance of tho Common. Council, whereby tho steam ferry privileges were sold to a third person for a given period of time, was therefore binding and obligatory upon tho city, even though tho officers in possession of the city government at tho time the contract was made, wore superseded by officers appointed or elected hy the city herself before tho term of the contract had oxpired.</p> <p>In tills case it was held, that inasmuch as the city government that succeeded the one hy which the steam ferry privileges had been given, had repealed tho ordinances of the former Council which authorized the contract, and had taken the contracts for the steam ferry privileges away from the contractor and given them to another person, tho first contractor was entitled to recover from the city tho damages which tho violation of his contract had caused him.</p>

<p>Appeal from the Third District Court, parish of Orleans. JSmerson, J.</p>

<p>Appeal from the First District Court, parish of Orleans. Abell, J.</p>

<p>Appeal from the Second District Court, parish of Orleans. Diwigneaud, J.</p>

<p>APPEAL from tho Sixth District Court, parish of Orleans. Gooley, J.</p>

<p>‘To enable a judgment creditor to maintain a seizure of property held by tho wife as her separate estate, under a judgment of separation, on the allegation that the judgment of separation was collusive, and rondered in fraud of the rights of the seizing creditor, the seizing creditor must show affirmatively that ho was a creditor at the time the judgment of separation was rondered. C. C. 3434; 6 An. 391; 4 B. 336.</p>

<p>Appeal from the Seventh District Court, parish of Orleans. Oollens, J.</p>

<p>Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.</p>

<p>fa PPEAL from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>The act of Congress, approved March 2, 1867, which authorizes the transfer of causes, under certain circumstances, from the State courts to the focloral courts, can only ho invoiced hy the plaintiff or defendant in the cause. It can not he invoiced hy an. intervenor who voluntarily makes himself a party to the suit. $for will the transfer he allowed if it he made for the first time hy the plaintiff or defondant in the appellato court of the State. Such applications to transfer causes from one jurisdiction to another, should he made before the cause was tried in the court of the first instance.</p>

<p>Appeal from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>Tlio plea of prescription of one, two and three years is untenable against an action for rent. An action for the recovery of rent is only prescribed by three years. C. C. 3538.</p>

<p>Appeal from the Sixth. District Court, parish of Orleans. Oooley, J.</p>

<p>Appeal from the Fifteenth Judicial District, parish of Assumption. Beatie J.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.</p>

<p>Appeal from the Fifth District Court, parish of Orleans. Leaumont, J.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. TMard> J.</p>

<p>Appeal from the Fifteenth Judicial District Court, parish of Terrebonne. . Gates, J.</p>

<p>Appeal from the Fourth Judicial District Court, parish of St. James. Beauvais, J.</p>

<p>A judgment creditor can not maintain a garnishment process, or seize by attachment, tlio rights and credits oí' tlio debtor, until he has obtained judgment on his demand, unless he shows that a “fraudulent or simulated transfer has been made by tlio debtor of his property before tlio attachment was levied. C. P. 240.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Rapides. Osborn, J.</p>

<p>Plaintiff sued defendants as partners in tlio building business for damages resulting ironi the failure on tlioir part to comply with, their contract in erecting a building. The evidence showed that the defendants were not partners at the time the contract was made, and the contract was made with only one of the defendants. Held — That the defendants not being partners at the time the contract was made, the plaintiff could not recover from the partnership the damages resulting from its violation.</p>

<p>After a, succession bas been partitioned, among the heirs, and the portions allotted to eacli one-of the heirs has been set apart to them, the share of one of the heirs can not be pledged,, because it can not be delivered.</p> <p>A written instrument in favor of a creditor signed by one of the heirs, acknowledging her indebtedness and transferring her interest to the creditor, has no legal effect, because there was no fixed price, nor an extinguishment of the debt, it being neither a sale nor a payment of the dobt.</p>

<p>Appeal from the Eigbtb District Court, parish of Orleans. Dibble, J.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. TMard, J„</p>

<p>In an attachment suit, additional interrogatories may bo propounded to tlie garnishee, after tlie first interrogatories have been answered, without going through the formalities of traversing the answers to the first interrogatories.</p> <p>The burden falls upon the intervenor in an attachment suit, who asserts ownership of the chattel attached, of showing a complete title in himself before the attachment.</p> <p>-An order given on the holder of a hill of exchange by the owner or agent to deliver it to a third person, -will not enable such third person to defeat the rights of an attaching creditor, who has levied an attachment on the bill as the property of his debtor.</p> <p>-A bill of exchange or promissory note found in the State of Louisiana, may ho attached by the creditor of its owner, although tlie contract out of which it originated was made in the State of Missouri between parties residing there at the time.</p>

<p>A board of scliool directors of a parish can not be compelled by judicial proceedings to make a different disposition of the funds entrusted to their care than that provided by law. Where, therefore, the law has made provision for the settlement of outstanding claims against the school fund, which bear dato prior to the appointment of the school board, a suit can not bo entertained against tlio president or board of directors to compel its payment out of the school funds in their hands, the disposition of which has been regulated by law.</p>

<p>Tlio appeal will be dismissed if tlie amount claimed, in tlie court below does not exceed five hundred dollars.</p> <p>■Where a discrepancy occurs between the amount demanded in the petition, and the amount as shown to be claimed by documents filed with and made a part of the petition, the latter will govern as to the sum demanded. If, therefore, the amount claimed by the documents filed be less than five hundred dollars, the appeal will be dismissed, although the amount claimed in the polifcion be above that sum.</p>

<p>In a suit against a married ■woman, the plaintiff must show affirmatively, before be can recover, that the debt inured to the separate advantage of the wife. This must be shown whether the wife bo separate in property from hor husband or not.</p> <p>If it bo shown that a running account exists between the drawer of a draft and hor commission merchant, then and in such case the drawer is entitled to notice of the dishonor and non-payment by the drawee, and if such notice bo not given, then the drawer is not bound to the payee or holder of the bill, although it should bo shown that the drawer had no funds in the hands of the drawee at the time it was drawn.</p>

<p>Appeal from the Second District Court, parish of Orleans. JDavigneaud, J.</p>

<p>Tlie loading principle of tlie law of trade marks is, that tlie manufacturer or merchant wlio has produced or brought into market an article of use or consumption that has found. favor with the public, and who, by affixing to it some name, device or symbol which serves to distinguish it as his, and to distinguish it from all others has furnished his individual guaranty of its value, shall receive tlie reward of his skill, and shall not be deprived thereof by infringement or imitation.</p> <p>The words which compose a trade mark neod not each be now. If the combination thereof bo new and be descriptive of the origin of the goods and their ownership by the manufacturer who devises the mark, it will be unlawful for any other person to filch the combination or any important part thereof.</p> <p>It is unlawful to put up imitation goods under the name of the real manufacturer, and the excuse that such an act was authorized by a person of the same name as that manufacturer, is absurd.</p> <p>’The fact that a trade mark labol is copy-righted, but the date of entry is not given as required by the act of Congress, is of no importance in a suit in a State court for damages for imitation of a trade mark.</p>

<p>In tills case the vessel cleared at the port of Roston for the port of New Orleans, with a cargo for the latter place. While on her voyage she encountered a storm at sea, by which a portion of hor cargo was damagod. Tho consignee at New Orleans brought suit against tho vessel for the damage dono to a lot of furniture on hoard. Hold — That it being shown by the bill of lading that any damage dono to tho cargo, or any portion thereof, from accident of machinery, boilers, or dangers of the seas of airy kind, wero excepted, and tho damage in this case was caused by a storm at sea, that it was therefore incumbent on tho plaintiffs to show affirmatively, to enable them to recover, that tho damage was caused by the fault or negligence of tho carriers.</p>

<p>In 1868 the city of New Orleans leased Hie Dryades Market to defendant for one year. In 1809, before the year liad expired, the city annulled tlie contract and took possession of tk o market. Afterward tlio city brought suit on the notes given by the lessee for the market for one year. Held — That the city having annulled the contract before the expiration of the term of the lease, and having again taken possession of the. market, slie could not recover on the notes given by ilie lesseo.</p>

<p>Appeal from the Fourth. District Court, parish of Orleans. TMard, J.</p>

<p>Plaintiff, a forced heir, brought suit to reduce a donation to her stepmother, made in the last will of her deceased father, which gave to her stepmother the personal property of his estate in fee simple, and the usufruct of his real estate during her widowhood. The stepmother obtained a final judgment dismissing the opposition to her account as executrix, and approving the donation. Held — That the stepmother might plead this judgment as res judicata against the claim of the heirs, although it had been rendered on opposition to her account as executrix.</p>

<p>If an auctioneer lias made a sale of property at the request of a curator of a vacant estate,, and it turns out that the estate was not vacant, and the sale is afterward declared to he void for want of legal authority to sell, then and in such case the auctioneer has no claim against the estate for the payment'of liis foes as auctioneer in making the sale, hut lie must look to the curator or person who employed him for the payment of his fees.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. TMard, J.</p>

<p>Appeal from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.</p>

<p>A judgment declaring a sale of property under execution a nullity, is not res judicata as to the purchaser who was not a party to the suit. The purchaser is therefore legally entitled to the rents of such property until his title is declared, null and void by judicial proceedings to which he is a party.</p>

<p>Ad insurance company can not be compelled to pay more than on© license for permission to carry on their business, although they may have established more than one office or place of business. The license imposed on insurance companies is a tax on tho occupation, and not on the business establishment, and must, therefore, bo uniform on all such companies.</p>

<p>Appeal from the Fifth District Court, parish of Orleans. Beaumont, J.</p>

<p>Appeal from the Parish and Probate Court, parish of Plaquemines. William M. Prescott, Parish Judge.</p>

<p>Appeal from the Eighth District Court, parish of Orleans. Dibble; J.</p>

<p>A claim for damages winch is made in a suit to enjoin tlio salo of property on tlio ground that tlio seizure was illegal, unsupported "by evidence on tlio trial, will not he considered in estimating tlio amount necessary to give tlio appellate court jurisdiction of the appeal.</p>

<p>.'A. third lioltlor of a promissory note, indorsed in blank, is not entitled to recover thereon without proving tho signature of tho indorsor. In such a caso if tho records show that tho indorsement on tho noto was not proved m tho court below tbo causo wTill bo remanded.</p>

<p>IMie Supreme Court is vested with power to issue the writ oí habeas corpus in a case where a party to a suit before a district court has boon imprisoned by the judge for a contempt oí court, if the amount in dispute in tlio main action is sufficient to give it jurisdiction of the appeal, provided the contempt is connected with or grows out of the main action.</p> <p>A contempt of court is au offense against the State, and not an offense against the judge personally, and therefore the order of the judge inflicting punishment for sucli contempt comes within the range of the pardoning prerogatives vested by the constitution in the Executive.</p>

<p>A .judicial sale of tho property of tlie widow to pay her indebtedness to her minor children as their tutrix, is not a simulation merely, and can not therefore be disregarded by the creditors of tho widow. If the creditors wish to attack such a salo on the ground of fraud they must bring their action within one year, otherwise it is prescribed.</p>

<p>A particular legatee, as a general rule, can only claim interest on the legacy from the day tho demand of delivery was made. R. O. C. 1626. But if, as in this case, the testatrix has fixed a day at which it "becomes exigible, and the executrix charged with the execution of tho will, which confers the legacy, has ordered its execution and has classed tho legacy as a debt against tho succession, then and in such case interest is duo on tho particular legacy from tho date at which the testatrix has classed it as a debt.</p>

<p>from the Sixth Judicial District Court, parish of St. Tammany. Ellis, J.</p>

<p>Appeal from the Sixth Judicial District Court, parish of St. Helena. Filis, J.</p>

<p>Appeal from the Parish Court, parish of Rapides. II. L. Baigre, Parish Judge.</p>

<p>APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.</p>

<p>from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.</p>

<p>Appeal from the Thirteenth Judicial District, parish of Carroll.. Sough, J.</p>

<p>In a sequestration suit tlio surety on the bond must resido in tho parish whore tho process is taken out. Tho samo rule applies in caso of appeal. The surety on the appeal bond must, therefore, reside in the parish from which the appeal is taken.</p>

<p>A sheriff who has boon ordered to sell property and retain tlie proceeds subject to the further order of the court, must account for the proceeds whenever called upon. And the sureties on his official bond, who have subscribed as such before he is called upon to pay, are liable in case of failure of the sheriff to pay over tho funds when demanded, although their liabilities as sureties was contracted since the sheriff came in possession of the funds which ho was ordered to hold subjoct to the further ordor of the court.</p>

<p>A judgment of a court making a writ of mandamus peremptory is a final judgment wiiicli can not "be vacated or sot aside by the judge a quo on a rule taken by the defondant in mandamus. Suck judgment can only be annulled on appeal or by direct action of nullity.</p>

<p>from the Seventh Judicial District Court, parish of WestPeliciana, Miller, J.</p>

<p>Jn this case tlio wife became tho executrix oí her deceased husband’s estate, and placed herself on the tableaux, filed by her, as a creditor for the amount of her judgment against her husband. This item on the tableaux was opposed by the creditors on the ground that the judgment was void because it had not been executed.</p> <p>Held — That it being shown by the record that tho judgment of the wife against her husband liad never been executed, and that no proper effort to execute it had ever been made; that therefore it was absolutely void, and not properly placed upon the tableaux as a debt against the succession.</p> <p>In the same tableaux the executrix refused to place a judgment against her husband upon the tableaux as a creditor, on tho ground that it involved a slave consideration. Tlie record of the caso in which the judgment was rendorod being introduced showed that the plea of a slave consideration had been made, hut the proof offered failed to establish it. Held — That the judgment was 2n'02)erly ordered by tho judge a quo to ho jilaced upon the tableaux as a debt against the succession.</p>

<p>from the Fifth Judicial District Court, parish of Iberville. Posey, J.</p>

<p>Tho testimony of one witness to the correctness of an account, above five hundred dollars, is sufficient to confirm, a judgment by default. 4 Rob. 258; 10 An. 270.</p>

<p>from the Seventh Judicial District Court, parish of Pointe Coupee. Miller, J.</p>

<p>Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.</p>

<p>A garnishment process is a suit, anil tlie garnishee must ho brought before the court by citation. A judgment against the wife as garnishee can not, therefore, be rendered unless sho has been first authorized by her husband or the judge to appear and defend the suit.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.</p>

<p>The lessor has a right of pledge on the movables on the plantation leased to secure the payment of the rent, ’which it is not necessary to havo recorded in order to give it a preference over the privilege allowed by law to tho purchaser of supplies.</p>

<p>from the Ninth Judicial District Court, parish of Rapides.</p>

<p>from the Parish Court, parish of Avoyelles. S. JR. Thorpe, (attorney-at-law), judge ad hoc.</p>

<p>from the Fifth Judicial District Court, parish of Iberville. Fosey, J.</p>

<p>rjbe fact that a person is a notary public does not of itself entitle him to the custody or control of the records of a deceased notary. Such person is not, therefore, entitled to an appeal from, an order of tlio judge a quo, directing him to deliver the records of the deceased notary to the proper officer designated by law to receive them. An oath of such notary that he has an interest in retaining possession of the records of the deceased notary above five hundred dollars is not sufficient of itself to vest the appellate court with jurisdiction of the appeal.</p>

<p>from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.</p>

<p>If a suspensivo appeal lias been dismissed because tlie appellant lias failed to file tlie record in tlie appellate court within three judicial days after tho return day, ho can not afterward bo allowed to talco a devolutive appeal from tho same judgment. 4 An. 30 j 9 An. 39.</p>

<p>A sale of a certain number of bales of cotton to be delivered thirty days after demand, is at the risk of the seller until delivery. The defense that the cotton of the defendant was destroyed during the war will not avail, if by the terms of the contract no x>articnlar lot of cotton was indicated as being sold; but the seller in such case is roquired to fulfill his contract of sale by delivering the number of bales sold or by paying the price in money.</p>

<p>In a suit for the value of attorney’s fees for professional services rendered, if tho amount allowed by the judge a quo seems reasonable and fair, the judgment will not be dis- • turbed on appeal.</p>

<p>In a suit by tlio -wife against Jior husband for a separation of property, tho allegation that “ owing to tlie insolvency of her husband ib becomes necessary for the preservation of' lior acquisitions, the maintenance of herself and family, that a dissolution of the community be decreed,” is deemed sufficient to admit proof that she has tlio ability to make acquisitions.</p> <p>In a suit by the wife for a separation of property from her husband, she is a competent wit* ness in her own behalf.</p>

<p>A bond given in a soquestration suit for tho amount fixed by tho judge, signed by the plaintiff in tho sequestration suit and two ether persons, and filed by tho cleric with the number of tho suit in tho district oourt, is a sufficient compliance with tho law to render-it incumbont on tho defendant in sequestration to urge any objections lie may have to its informalities in limine litis.</p>

<p>An injunction will not be dissolved on bond if tlie injury caused thereby would be irreparable. The injury would be irreparable if tho damages resulting from its dissolution conld not bo passed upon in tho final decree in tho case, or if its dissolution would work a chango in tho possession of real estate.</p>

<p>from the Second District Court, parish of Orleans. Duvigneaud, J.</p>

<p>from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.</p>

<p>In considering tlio rulings of tlie judge a quo on tbe objections made to tlie admissibility of testimony, tbe appellate court -will bo guided by tbe bills of exceptions taken to bis rulings on tbe admissibility of a certified copy of tbe recorder of an abstract, showing tbe wife’s claim against bor husband, on the ground, that the oatb attached to the instrument was made before a notary public who was incompetent to administer an oath in such a ease; and if tbe certificate shows also that tho notary was a justice of the peace, .then the presumption is that the officer administered the oath in his proper capacity and tho document is not inadmissible on that account.</p>

<p>from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.</p>

<p>from the Seventh Judicial District Court, parish of West Feliciana. Miller, J.</p>

<p>A judgment wbicli is not signed by tho judge a quo can not bo made the basis of a plea of presoription. Tho rendering of judgment for tho amount due and on terms to meet the other installments not yet duo, does not merge the unmatured installments in the judgment, and, therefore, such a •judgment can not bo made tho basis of prescription, to commence from its date.</p>

<p>A witness in a criminal trial, wlio lias first been examined in chief, consigned and cross-examined, may be again recalled and re-examined, by the party who first introduced him, upon points touching which, he had not before testified.</p>

<p>An executor or administrator is bound by bis oath of oflico, to defend the rights of tlio succession bo administers, and when suits are brought in the courts where the succession is administered, ho may omi>loy counsel to aid liim, who must be paid by the succession.</p> <p>An attorney’s fees for services rendered the succession is a debt against the estate, whioh must be paid by preference over tlio creditors of the deceased.</p> <p>In estimating the value of services rendered by attorneys to an estate while under administration, tlio court will not be governed entirely by tlio evidence given on tlio trial of the oppositions thereto, but it will fix such an amount as ajipears from the nature of the services rendered reasonable and just.</p>

<p>Appeal from the Fourth Judicial District Court, parish of Ascension. Beauvais, J.</p>

<p>from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>The fact that a party cast in a suit has brought an action of nullity of judgment will not interfere with his right of appeal from the same judgment. The appeal will not therefore be dismissed on that ground.</p> <p>A garnishee who is required to answer interrogatories in, open court on a day fixed, is entitled to personal notice, which must bo given him a reasonable time before the day for answering. A judgment rendered against a garnishee on interrogatories taken pro confesso without notice having been given for a reasonable time to the garnishee, will be set aside on appeal, and the cause will be remanded.</p>

<p>The act of Congress of March 2,1867, -which authorizes the removal of a cause from a State court to tho Circuit Court of the United States under certain circumstances does not chango the law regulating the jurisdiction of tho Federal Court, as to persons. A removal of a cause to the Circuit Court of tho United States cannot therefore be allowed if tho record fails to show that as to persons, the Federal Court can exercise no jurisdiction.</p> <p>Aii application for a removal based on the allegations of an intorvenor alono, that ho is not a resident of the State, is not sufficient to authorize the chango, if the record showrs that tho plaintiffs in the action aro residents of the State. Moreover the application will not be granted, if tho intervenor merely avers that he is, at tho timo of the filing of his intervention, a resident of another State. It results then that in such a case tlio intorvenor must allego and show affirmatively that ho and the plaintiffs were both residents of another State than that of tho defendant at tho timo suit was brought. *</p>

<p>"Whore a married woman appears in court as plaintiff without the authorization of her husband, the presumption is that the husband has refused, and the judge may authorize her without it being shown that the husband was absent or refused.</p> <p>A third person who discloses no interest in a suit to annul a sale, on the ground that the vendor has not complied with its terms and conditions, can not be permitted to intervene in the suit.</p>

<p>In tlio trial of an injunction suit to avoid the payment of the price of a tract ot land, on tho ground of a stipulation in tho contract that tho vendor was to perfect the title before he could enforce payment of tho price, parol evidence is inadmissible to show the true intent of tho parties in tlie clause authorizing tho purchaser to withhold payment of the price until tho title is perfected. %</p>

<p>An action to annul a judgment for want of citation can not 1)0 maintained, if it be shown that the person cited and the person who demands the nullity of the judgment are one and the same person.</p> <p>The fact that the defendant has boon cited by a different surname than his own will not avail, if it be shown that some called him by the name under which he was cited.</p>

<p>A decree of tlie probate court ordering the sale of succession property, can not bo attacked' collaterally by the licirs, in a proceeding to bo recognized as the owner of the property which has been sold under it, on the ground that the order of sale was irregular and null. In a succession sale of proporty for the purpose of effecting a partition among the heirs, the-appointment of a special tutor to each is unnecessary.</p> <p>The appointment of another person than the one first designated to make the sale of succession property for tlm purposes of partition does not render the order of sale or the sale a nullity.</p> <p>The purchaser of property at probate sale has nothing to do with the character of the judgment directing the sale of the property, whether such a decree be a judgment of partition is immaterial to the purchaser.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.</p>

<p>Appeal from the Sixth Judicial District Court, parish of Tangipahoa. Ellis, J.</p>

<p>from the Seventh Judicial District Court, parish of Avoyelles. Miller, J.</p>

<p>from the Fifth Judicial District Court, parish of Iberville. Posey, J.</p>

<p>The act of tlio General Assembly authorizing tho parish judges to grant orders of seizure and' salo, in the absence of the district judge, is constitutional.</p> <p>An order of seizure and sale granted by a parish judge, in tho absence from the parish of tho district judge, on sufficient and authentic evidence is therefore obligatory and binding upon tho parties in interest.</p>

<p>Xf an injunction bas been obtained against tlio enforcement of a judgment and tlie evidence given on tlie trial of a rule to dissolve it shows clearly that the plaintiff bad no grounds for injunction, then damages will be given against tbo plaintiff in injunction, regulated by tlie amount of tlie judgment injoined.</p>

<p>The act of Congress of Juno, 1864, which suspended tho proscription of actions in cases where the creditor resided within tho limits of the adhering States and tho debtor resided within the limits of tho insurrectionary States, during the late war, does not apply to cases where the creditor and debtor both resided within tho limits of the insurrectionary States.</p> <p>Prescription once acquired in favor of an estate can not bo waived by an acknowledgment of tho claim by the administrator.</p>

<p>If tlio amount involved docs not exceed five hundred dollars, exclusive of interest, the district courts for tho State are without jurisdiction. Constitution, art. 85. A suit for an amount less than fivo hundred dollars was therefore properly dismissed for want of jurisdiction, although the accrued interest when added to the principal exceeded that sum.</p>

<p>If two appeals liave been taken from different judgments, rendered at different times between the same parties, and founded upon the samo cause of action, the one devolutive and the other suspensive, and both appeals are presented in one record, tho appeals will not be dismissed on that account, if both appeals are susceptible of being passed upon at the same time.</p> <p>A mortgage given by an heir on liis interest in his mother’s estate to secure a debt of his father’s to a third person (unless it is so expressed), is not a relinquishment of his legal mortgage on tho property of his father, for debts duo him by his father as tutor. And in case the father’s property is sold by his creditor, the heir’s preference to tho pro* ceeds of the sale, as a prior and preferred mortgage creditor can not be defeated on the ground of relinquishment of his mortgage rights by going security for Iris father.</p>

<p>A dative testamentary exoeutor will bo removed from office, if it be shown that he lias disobeyed tho orders of the court directing him to lile an account within a given time, or that ho has otherwise neglected or refused to discharge the duties imposed upon him as testamentary executor.</p>

<p>' The recording of an. abstract of an inventory of a deceased wife of a man named, fixes tlie presumption of the existence of minors whose rights are preserved by the recording of the abstract, and tlie recording of such an abstract is sufficient notice to third persons, of the existence of a tacit mortgage, resting upon the property of survivor in favor of the minors.</p>

<p>Tlie pbraso “with malic© aforethought” is not sacramental in an indictment for a statutory oifonso, where tho accused is charged with feloniously and maliciously, while lying in wait, with, shooting his victim, with tho intent to commit murder.</p> <p>In such a case, Held — That the accused not being charged with having committed at on© time, two offenses, whoso combination creates a capital offense, it is not necessary to define the offense of murder, but that tho idea of malice aforethought is necessarily implied in the use of tho word “ murder.”</p> <p>Tho fact that one of the jurors is allowed to leave the court room for a necessary purpose, who returns before tho panel is complete, or any evidence has been given, is not such a separation of tho jury as will vitiate tho verdict.</p>

<p>.A noto given in renewal of one which is secured by a vendor’s privilege on real estate is not a novation of the debt, nor is tho privilege lost. But if tho mortgage has not been rein-scribed within ton years, then the vendor’s privilege would bo postponed to other mortgages of prior date to tho reinseription. 2 An. 100.</p>

<p>This suit is brought by the plaintiff to recover from the city of New Orleans certain parcels of ground which it is alleged the city has taken possession of for the use of public street s and highways. The evidence offered on the trial shows that for more than thirty-two years prior to the institution of this suit the plaintiff has enjoyed the lands owned by-him by a regular chain of title, and that during that long period of time he has never set up any claim or ownership to the parcels taken and occupied by the city for the public use, but on the contrary has been content with the limits to which the occupancy of the city had restricted him. That he has sold many of the lots and portions of groun owned with reference to the boundaries and measurement of the streets taken by the city.</p> <p>Held — That the plaintiff having adopted the plan of the city for the boundaries and measurement of the lots, and having acquiesced therein for a period of thirty-two years, with a full knowledge of all the facts, he is hound thereby, and from his selling lots with reference to the plan of the city his purpose to dedicate is fairly inferred.</p> <p>Held further — That plaintiff can not now recover on the ground that a formal dedication i g not shown.</p>

<p>from the Fifth Judicial District Court, parish of Iberville. Posey, J.</p>

<p>A PFEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.</p>

<p>Article 1X8 of tlio Constitution which makes it obligatory on tho general assembly to levy a poll tax for school purposes, does not prohibit tho assessment of a tax on property ior the .same purpose. An additional tax on property for tho support of public education is not therefore unconstitutional.</p> <p>Tho llevenue Act which authorises tho Auditor to communicate to the tax collectors tho amount necessary to bo collected for interest purposes, does not impose upon tho Auditor tho duty, or confer upon him the power of levying a tax. It merely designates him as tho officer to ascertain tho amount of interest tax to bo collected, and is hot therefore in violation of tho Constitution whiclilodges tho taxing power exclusively in tho legislature* A taxpayer has no right to complain if tho amount of taxes demanded of him is shown to bo less than tho amount ho owes.</p>

<p>from the Parish Court, parish of West Feliciana. FI. S. Welton, Parish Judge.</p>

<p>A reconventional demand for damages for tho wrongful suing out of a sequestration, can not Ro sot up l)y the defendant where the parties reside in the same parish. Nor does ihe law authorise the imposition of such damages in any caso on the setting aside of a sequestration.</p>

<p>A claim for damages fliat is unliquidated, can not ho pleaded against a liquidated and established debt.</p>

<p>In a suit to annul and cancel a retransfer of roal estate, on tlie ground tliat a retransfer was procured through, tbe fraudulent representations of tlie vendor, parol evidence is admissible to prove the fraud.</p> <p>CCho testimony of a defendant who lias given evidence at the request of the plaintiff, may be contradicted or overcome by other testimony, the same as that of any other witness.</p>

<p>from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.</p>

<p>On rule for contempt.</p>

<p>Article 132 of the constitution, which provides that “ all lands sold in pursuance of decrees of courts shall bo divided into tracts of from ten to fifty acres,” is not self-acting, and can only have effect in the manner and to the extent provided for by statnto.</p>

<p>The admission by t-lie defendant in the answer, that the plaintiff acquired the notes sued' upon, by the indorsement in blank of the payee, is sufficient proof of the signature of the indorser.</p>

<p>from the Seventh District Court, parish of Orleans.Oollens, J.</p>

<p>-A.commission merchant, who has received a lot of cotton on consignment from the tutor as the property of the minor, can not appropriate the proceeds thereof to the payment of a debt or obligation due him by the tutor. In such a case the proceeds of the sale of the cotton or its value, as shown at the time it was received, belonging to a minor may be recovered from the merchant, less the expenses incurred in shipping and selling it, even though the merchant show that the cotton was shipped in tlie individual name of the tutor, and that the tutor was indebted to him, on his own account, in an amount above the proceeds of tlie sale of the cotton.</p>

<p>A bank is not required to know any of the persons who indorse a cheek drawn upon it, except the one who prosonts it for payment, nor is it authorized to withhold payment until it is furnished with direct proof that the signatures of the indorsers preceding the one presenting it are genuine. In cases of this kind the rule is that the hank must know that the signatures of the drawer .and the person who presents it for payment are genuine, under penalty of liability to pay it again in case either of the signatures are shown to be a forgery. But if it be shown that the signatures of the indorsers which precede that of the one receiving payment is a forgery, the bank can not on that account be hold to a second payment.</p>

<p>The defense to an action brought in the courts of this State, to enforce a judgment rendered in the State of Uow York, that the hfow York judgment was absolutely void for want of citation, must be pleaded specially so as to put the plaintiff upon his guard. If in such.a suit a form of citation is shown in the record of the judgment in Kew York, then the presumption will be, under the provisions of section 1 of article 4 of the Constitution of the United States, “ giving full faith and credit in each State, to the judicial proceedings of every other State,” that such citation was made in conformity with the laws of New York, and is not therefore void for want of citation.</p>

<p>A citation issued by tlie Provisional Court of tlio United States, for tlio Stato of Louisiana, if served on tlio defendant boforo tlie war between tlio United States and tbe so called Confederate States liad been declared at an end by tlio political department of the gov ■ eminent, operated an interrui>tion of prescription in favor of tlie plaintiff.</p>

<p>from the Seventh Judicial District Court, parish of West Feliciana. Bailiff, J.</p>

<p>A PPEAL from tlie Eighth. District Court, parish of Orleans. Dibble, JA. J.</p>

<p>from the Seventh District Court, parish of Orleans (Jollens, J</p>

<p>Ordinary partners aro not “bound in solido for attorney’s fees for services rendered fclio firm under the employment by one of its members. In such a case each, one of the partners is bound for his virile share, if no agreement has been made between the attorney and Hie partner who employed him. R>. C. C. 3872, 3873.</p>

<p>XUo affidavit} of a defendant that ho is sick and unable-to attend court as a witness on tho day of trial, is not good cause for a continuance of the case, if it be admitted by tho opposite party that he would, as a witness, if present, swear to what ho had set forth in the affidavit. C. I\ 4GG.</p>

<p>Appeal from the Sixth District Court, parish of Orleans. Oooley, J.</p>

<p>Appeal from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>An exception to tlio authority of an attorney to bring a suit should not be sustained, if the evidence offered on the trial leaves it in doubt as to whether the attorney was prosecuting the suit without the sanction of his client, because in all cases of doubt the authority of the attorney is presumed. In this case the authority of the attorney to bring the suit was shown. But exception being taken to his authority to prosecute the suit, application was made to the court for a continuance to enable the attorney to procure the testimony of the client, a non-resident, on the point. The court refused the continuance on the ground that a telegram had been shown, purporting to be from the client, showing a change of mind.</p> <p>Held — That the continuance should have been granted, because the telegram, if true, did not make it certain that the client had changed her mind about the suit.</p>

<p>Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.</p>

<p>A title to real estate is acquired by thirty years’ peaceable and uninterrupted possession as owner.</p> <p>In a suit for the recovery of real estate on the ground that the title of the possessor is simulated, the plaintiff can not be permitted to treat the title of defendant as a pure simulation, and at the same time urge the sale as real, for the purpose of defeating the plea of prescription.</p>

<p>The gratuitous investiture by the State, in a municipality, oí the administration of a public ferry, with the right to collect and enjoy the revenues arising therefrom, is not a contract between the State and such municipality, and the State may, therefore, through her legislature, at any time, resume the control of such ferry herself or vest it elsewhere.</p> <p>The doctrine in the case of police jury of Bossier -y. Shreveport, 5 An. C61 is reaffirmed by this decision.</p>

<p>Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.</p>

<p>Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.</p>

<p>A motion to set delimit, aside on the ground that the wifo was not legally authorized to sue will not he maintained, if it appears from tho record that tho hushand joined his wifo as co-plaintiff; nor is a peremptory exception that the notes sued upon belonged to the community, a good defense to the action brought by the wife to recover thoreon, if in this action the hushand has joined the wife in tho suit as co-plaintiff.</p>

<p>from tho Seventh Judicial District Court, parish of Points Coupóo. Posey, J.</p>

<p>A judgment that has heen rendered without legal citation is absolutely void, and any person having tho least interest therein, may show such nullity wherever and whenever it is sought to be enforced.</p> <p>In attachment proceeding^ the forms of citation prescribed by the law maker must be strictly observed under penalty of nullity.</p> <p>A purchaser undor a judicial sale is in bad faith, and is liable for rents and damages, if tho judgment under which ho purchases is absolutely void for want of citation.</p>

<p>Appeal fromthe Thirteenth Judicial District Court, parish of Tensas. Sough J.</p>

<p>Appeal from the Seventh Judicial District Court, parish of Pointo Coupée. Miller, J.</p>

<p>A,judicial mortgage creditor of inferior rank to that of a conventional mortgage creditor may proceed by rule against the latter to show cause why his conventional mortgago should not he erased, without proceeding by direct action to sot aside the conventional mortgago, and the conventional mortgage creditor must plead to the rule, and not except to the judicial mortgage creditor proceeding in that form to got rid of the mortgage.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Natchitoches. Lewis, J.</p>

<p>from the Thirteenth. Judicial District Court, parish of Tensas. Hough, J.</p>

<p>In a civil case in which the partios are entitled to a jury, if the jury has not been drawn in accordance with law, the verdict will be set aside on appeal, and the cause will be remanded to be tried dc novo.</p>

<p>from the Second District Court, parish of Orleans. Duvigneaud, J.</p>

<p>A commercial firm that lias been clisaolved and its dissolution lias "been duly published, can not afterward bo legally assessed to pay licenses or taxes. Not can tlie city or Stato who has made such assessment recover tho taxes assessed on tho ground that it was made ihe duty of such firm to examino and causo to be corrected tho assessment roll within given time. In such a ease the doctrine of acquiescence does not apply. If judgment has been rendered against a firm for taxes assessed after the firm has been dissolved, then aud in sucli case, the firm has tho right to sue for the nullity of such judgment.</p>

<p>In seizing real estate under execution, tlie sheriff must take actual corporeal possession of the property seized, otherwise a petitory action to recover the same, can not he maintained by the purchaser at sheriff’s sale. 22 An. 207; 23 An. 512.</p>

<p>from the Ninth Judicial District Court, parish, of Rapides. Orsborn, J.</p>

<p>In this caso tbe evidence shows that tho plaintiff had moneys deposited in tho Louisiana State Bank to his credit in 1863; that the plaintiff left New Orleans and wont into tho rebellion soon thereafter. That by a military order issued by General Banks, tbon in command of tho military forces of the United States at Now Orleans, plaintiff’s moneys were soiaed in the hands of tho bank and paid over into the hands of tho quartermaster of tho army. Held — That the bank having yielded to a power that it could not resist, in paying over tho money of plaintiff to the military authorities, the plaintiff could not require it to make good tho loss ho had sustained thereby.</p>

<p>In matters of appeal ilie law does not authorize, the appointment of a curator ad hoc upon whom citation of appeal may be served. In. such a case, if the appellee is not present service of appeal may bo made upon the advocate or attorney of record, but it cannot be made legally upon a curator ad hoc appointed for that purpose.</p>

<p>'The State courts can not enforoe an admiralty lieu given by law for tho recovery of damages for a marítimo tort; and on attachment will not lie where the claim is for damages ecc delicto. 22 An. 388.</p> <p>A master in command of a vessel is not liable for the damages which his vessel has done to another by a collision if he was not on hoard of his vessel at the time of tho collision.</p>

<p>from the Eighth District Court, parish of Orleans. Pardea, J.</p>

<p>To maintain an attachment under the allegation “that the defendant is about to aasign and dispose of his property with intent to defraud his creditors,” the evidence must show affirmatively, that tho defendant is about inoumbering or disposing of his property with tho intention of defrauding his creditors.</p>

<p>Appeal from tho Thirteenth Judicial District Court, parish of Tensas. Hough, J.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Rapides.. Orsborn, J.</p>

<p>Appeal from the Fifth Judicial District Court, paiish of Iberville. Posey, J.</p>

<p>Appeal from the Second Judicial District Court, parish of Jefferson. Pardee, J.</p>

<p>Appeal from the Ninth Judicial District Court, parish of Grant. Orsborn, J.</p>

<p>Appeal from the Parish Court, parish of Iberville. Aclowis Pitot, Parish Judge.</p>

<p>In tliis case an order of appeal was granted from one branch of the judgment, but no bond was given. In the other a bond was given, but no order of appeal was granted.</p> <p>Hold — That the appeal must bo dismissed for want of jurisdiction.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. Ihéard, J.</p>

<p>from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>Where an appeal in a suit by a creditor of the husband attaching tlio judgment of bis wife against him, parol evidence is held admissible to prove that tho husband received funds belonging to the wife, and tho case is remanded for tho purpose of admitting the same, it can not be excluded on the second trial, on the ground that there is written ovidenco of the fact.</p>

<p>Appeal from the Fifteenth Judicial District Court, parish of Terrebonne. Seattle, J.</p>

<p>'fXbo parish court is without jurisdiction ratione materia to entertain an injunction suit to annul a judgment of another court. It is also without jurisdiction to entertain such injunction suit where the amount involved is above five hundrod dollars.</p>

<p>In a suit "by the holder of a promissory note against the executor o£ the maker, the latter has the right to shew in defense that the note was given without any consideration, and that the contract for which it was given 'was a simulation. In this case the evideneo shows that the note was given for the sale of two-thirds of the steamer Eanny Eisk, and that there was in reality no sal© of the Eanny Eisk, "but that it was a mére simulation.</p> <p>Held — That the plaintiff the holder of the note, could not recover from the estate of the maker of the note, because there was no valid consideration given for the note.</p>

<p>1 The under tutor can not maintain an injunction to stay the foreclosure of a mortgage granted by the surviving widow (the mother of the minors) on her half of the community property, because ho is not the representative of tho creditors, nor is he the representative of the residuary interest of the widow in community.</p>

<p>Appeal from the Fourth District Court, parish of Orleans. Theard, J.</p>

<p>Execution may issue against one of several debtors condemned in solido to pay the same debt, without issuing it against the others, at the option oí the judgment creditor.</p>

<p>from the Sbctli District Court, parish of Orleans. Cooley, J.</p>

<p>The terms of the district courts of the parish of Orleans are fixed by law to commence on the first Monday of .November and continue until the fourth day of July. Citation of appeal if made in open court during the term as fixed by law, is not necessary.</p> <p>A plaintiff can not stand before a court demanding the nullity of a judgment, and at the same time claim the proceeds of the sale of property made under it. This is the rule whether the property sold be movable or immovable.</p>

<p>from the Sixth District Court, parish of Orleans. Cooley, J.</p>

<p>Iii 1862, while tho city of How Orleans was under tho control of tho military authorities of tho United States, tho quartermaster of tho army collected from the Merchants’ Mutual Insurance Company fifteen thousand dollars, under a throat of punishment under general orders t-lion in force, in case of refusal, this amount "being due by tho company on a policy oí insurance taken for risk on four buildings in the city of New Orleans, belonging to Miss Ida A. Slocomb, which had been detroyed by fire. Miss Ida A. Slocomb brings this suit against tho company for the amount of the policy. ' Tho company sot up as a defense, its payment under tho military order to the quartermaster.</p> <p>Held — That payment having been made by tho company under a military order, at a time when that authority was suprome and could not be resisted, it operated a full protection to tho company, and discharged thorn from further liability.</p>

<p>from, the Seventh Judicial District Court, parish of Pointe Coupee. Miller, J.</p>

<p>A PPEAL from the Second District Court, parish of Orleans. Duvig-JJl neemd, J.</p>

<p>from the Fifth District Court, parish of Orleans. Lcaumont, J.</p>

<p>A. commercial partnership, although, dissolved, still*exists for tho.purposes of liquidation, and the partitioning of the gains, and tho partners may be sued before the court of its domicile for such purposes, and they may be brought before tho court by attachment if they bo non residents.</p>

<p>Real property in tlio name of a married woman belongs to the community, and stie can not ■maintain a petitory action to recover it without alleging and showing that she has acquired the community interest in the property since its dissolution.</p>

<p>PPEAL from the Sixth District Court, parish of Orleans. Cooley, J.</p>

<p>A marriage which, has been. declared to be mill on account of an impediment in tho way of one of tho spouses, lias nevertheless its civil fruits as to the other party who was in good faith and contracted the marriage in ignorance of tho disabilities which affected tho •other, and also in favor of the issue of such marriage. C. 0.118.</p> <p>Good faith in contracts being always presumed, the burden of‘proof falls upon the party who alleges fraud or bad faith. A wife who contracted a marriage with her husband in Louisiana in good faith, can not, therefore, be deprived of her interest in the succession of her husband, because it is afterward established that her husband at the time was tho husband of a woman in tho kingdom of Italy, by a marriage which took place prior to her marriage in Louisiana, nor can her children, tho issue of such marriage, be deprived of tbeir inheritance from their father’s estate on that account.</p>

<p>The principal object of tbis action being to annul the plaintiffs’ own title to a plantation, the value of which exceeded the stun of five hundred dollars: Held — That the parish court was without jurisdiction ratione materia, to entertain the suit.</p>

<p>Tlie purchase of cotton during the late war by parties residing within the Federal lines of military occupation from persons residing within the rebel lines was prohibited by act of Congress. An agent who left the Fodoral lines of military occupation and wont into the rebel lines and there made purchases of cotton which he shipped to the other side, is not therefore entitled to claim or rocovor from the persons who received the cotton any compensation for his services or to recover any part of the cotton or the proceeds thereof on account of a contract in relation to the purchase of the cotton, because such contract was illegal.</p>

<p>In case of tlio insurance of a cargo of cotton to bo shipped from the port of New Orleans to Havre, France, and the vessel arrives at the port of destination with a loss of only a part of the cargo, less than one-half, the rule is that the insured can not claim an abandonment, nor can a loss of a part of the cargo at the port of destination after a portion of it has been delivered at its destined port, be made a constructive total loss by abandonment, however large that part may be.</p> <p>A reassurer who has taken a part of the risk from the insurer, may urge all the defenses which the original insurer could urge, when sought to be made liable to the original insurer for losses sustained by the assured; and any of these defenses may he urged by the reassurer, although the assured may have consented to the constructive total loss by abandonment.</p>

<p>from the Fifth District Court, parish of Orleans. Beaumont, J.</p>

<p>Tlie continuance of a criminal trial can not be claimed by the accused a second time od the ground of tlie absence of counsel.</p> <p>In a criminal case, tlie punishment of which is not capital, the jury may bo allowed to separate after they are empannolcd.</p>

<p>A PPEAL from the Seventh District Court, parish of Orleans. OolI\. lens, J.</p>

<p>An attachment ic void if it is issued by a judge who has no jurisdiction over tlic case in which it is issued.</p>

<p>Tlie act of 1870, which. makes tlie respective parishes defray tlie expenses of recording the' abstracts of minors5 mortgages, does not impair the obligations of a contract, and is not therefore void on that account. (</p> <p>The expenses of making and registering these abstracts are not debts of individuals, but they are charges imposed by law without the consent of the parties, and the General Assembly is competent to declare that such expenses shall be defrayed by the parishes.</p> <p>The city of New Orleans being the parish of Orleans, comes technically under the act of 1870, which imposes these burdens on the respective parishes. The recorder is only entitled to charge for ono registry of each abstract, although it may contain several mortgages, and not being required by Jaw to give a certificate, he cannot charge for it.</p>

<p>Th© written authorization of the husband to his wife to prosecute the suit is in time, if it is filed before the trial of the exception, that she is nob authorized.</p> <p>The settlement of a tutor’s account is purely a probate matter, and the parish court has jurisdiction of all such cases without reference to the amount involved.</p>

<p>for a writ of Mandamus.</p>

<p>from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.</p>

<p>from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>A PPEAL from tho Second District Court, parish oí Orleans. Duvigneaud, J.</p>

<p>from the Sixth District Court, parish of Orleans. Oooley, J.</p>

<p>A promise to pay tlie debt of another must be in writing. Two partners engaged in the planting business, are both bound to the merchant who furnishes them with supplies to mate the crop for one-half their cost.</p>

<p>from the Second District Court, parish of Orleans. Duvigneaud, J.</p>

<p>A married woman is not bound either jointly or in 3olido with her husband for medical services rendered her during her illness.</p>

<p>for a writ of prohibition.</p>

<p>from the Sixth District Court, parish of Orleans. Gooley, J.</p>

<p>from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.</p>

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

<p>A judgment botwoon the same parties on tbe same cause of action is only res judicata as to tlie questions actually passed upon in tbe first judgment. So that questions urged in tbe firs t judgment and not passed upon by tbe court, may become tbe basis of another suit without being defeated by tbe plea of res judicata.</p> <p>A continuous resistance to tbe enforcement of a judgment*interrupts prescription from running against tbe action of nullity. C. P. 612.</p>

<p>from the Fifth District Court, parish of Orleans. Beaumont, J.</p>

<p>"Where the return clay for an appeal has been inadvertently fixed on a non-judicial day (Sunday) the appellant is entitled to the whole of the next day to file his appeal.</p> <p>A transcript of appeal is considered as 'filed in the appellate court from the moment that it has been deposited with the clerk, although the formal indorsement thereon was not written until the following day.</p>

<p>The holder of a promissory note who wishes to hold an indorser thereon, must give him notice of the failure of the drawer to pay at maturity.</p> <p>A person who is hound unconditionally on a promissory note, is not entitled to notice of nonpayment by the drawer.</p>

<p>from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.</p>

<p>from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.</p>

<p>from the Ninth District Court, parish of Grant. Orsborn, J.</p>

<p>from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>A party, or parties, who have' contracted to sell and have sold any public security, such as a bond, may bo compelled by suit to deliver the bond sold, or to pay the value thereof at the time of the sale, the vendor being first put in. default.</p>

<p>PPEAL from the Fifth District Court of. New Orleans. Leaumonl, J.</p>

<p>¿rom Seventh District Court, parish of Orleans. Gollens, J.</p>

<p>APPEAL from the Seventh District Court of New Orleans. Oollens, J.</p>

<p>APPEAL from the Eighth District Court, parish 'of Orleans. J)ibblet J.</p>

<p>APPEAL from tbe Parish Court, parish of Avoyelles. JSdwards, Parish Judge.</p>

<p>APPEAL from the Fifth Judicial District Court, parish of Iberville. Posey, J.</p>

<p>APPEAL from the Third District Court of New Orleans. Emerson, J.</p>

<p>.A judgment creditor who acquires a preference on tho property of his debtor by Seizure is not entitled to proceed to tho sale after the debtor has obtained a respite by the consent of a majority of his creditors.</p> <p>«f?my creditors who have a privilege on the property of the debtor before, and at the time the respite is granted, can proceed to sell under article 3095 of the Revised Civil Code alter the respite is granted. A creditor, therefore, who has a privilege or preference on the property of his debtor, resulting from a soizure alone, is not permitted to proceed to the sale in violation of the respite.</p>

<p>APPEAL from Sixth District Court, parish of Orleans. Ooolexj, J.</p>

<p>APPEAL from the Fourth District Court, parish of Orleans.. Théard, J.</p>

<p>APPEAL from the Eighth District Court, parish of Orleans. Dibble,, J.</p>

<p>A purchaser of real estate at judicial sale must comply ■with the terms of his bid by paying the price before he can demand a title from the sheriff translative of the* property. If he fails to pay the price the property does not pass to him, and he can not maintain ail injunction to stay its sale, when made by a creditor, on the ground that he is the owner.</p>

<p>The omission of a notary public in-writing a nuncupative will by public act, to use the expressions “as dictated,” is not good ground ior annulling the will. These expressions are not sacramental, and if the nofary uses other language which conveys the same idea, . the will is not void because these expressions are not used.</p> <p>-An illegal disposition in a will to a legatee by parti .ular title does not destroy or impair the Tights ot the legatee by universal title.</p> <p>A. particular legacy that has lapsed, because of the incapaci.y of the legatee to take, enures to the a 1 vantage of the universal legatee.</p>

<p>from the Fourth District Court, pariah of Orleans. Théard, J.</p>

<p>from the District Court of Iberville. Posey, J.</p>

<p>from the Seventh District Court, pariah of Orleans. Gollens, J.</p>

<p>APPEAL from the Parish Court of Iberville. Adonis Petit, Parish. Judge.</p>

<p>APPEAL from the Sixth District Court, parish of Orleans. Cooley,. J.</p>

<p>One partner of a commercial firm can not maintain an action against another partner for a specific sum of money alleged * to be due on account of partnership transactions. The remedy in such a case is to suo for a liquidation of the partnership. 13 An. 576.; 21 An. 582; 22 An. 429.</p>

<p>from the Seventh Judicial'District Court, parish of Avoyelles. Miller, J.</p>

<p>from the Sixth District Court, parish of Orleans. Oooley, J.</p>

<p>Parol evidence that has hoen offered by the creditor and received by the judge a quo without objection, to prove that a third person has promised to pay his debt, will be disregarded by the Supreme Court in examining the case on appeal.</p>

<p>PPEAL from the Parish Court of Lafourche. Josh Nicolas, Parish Judge.</p>

<p>The general denial admits the capacity of the plaintiff. A stockholder in an insurance company can not bo heard to urge as a defense to a suit brought against him on his stock note, by the creditors through their representative that the charter has been illegally changed, because no act on the part of the stockholders can defeat the rights of the creditors of the corporation.</p>

<p>from the Fifth District Court, parish of Orleans. Leaumont, J.</p>

<p>from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>from thé Sixth District Court, parish of Orleans. Oooley,. J.</p>

<p>If two witnesses testify to a verbal contract of loase, one being a party to tfte lease and tlxe other not being a party, and has no interest in the lease, and their testimony is conflicting, in such case the weight of the evidence will be given in favor of the witness who lxas no interest in the result of the suit.</p>

<p>A third party, whose property has been taken out of his possession by a proceeding under a judgment for a less amount than five hundred dollars, has the right to appeal, if the amount of property taken is above five hundred dollars; and in case the judge a quo refuses the appeal, a mandamus will issue from the Supreme Court, on the application of such third party, directing the judge a quo to grant the appeal.</p>

<p>APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee,</p>

<p>from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>Liquor or spirits that has been conditionally sold and its quality or character has been obanged by the vendee from rum to that oi neutral spirits, is liable in its changed condition to be seized by the creditors of the vendee, although it liai not been paid, ior or actually delivered — the changing the liquor from one thing to aiiotliei by the vendee being considered such a delivery as would protect the creditors who were without notice of the claim of the vendor.</p>

<p>from the Eighth District Court, parish of Orleans. Dibble, J.</p>

<p>Ia this caso the community property of the succession was sold on the motion of tbe creditors to pay the debts. The purchasers failed to comply with their bids, and the creditors moved to have it again sold at their risk. In answer to the rule against the purchasers, they alleged that the deceased left three daughters by a former marriage, who claim to-be the owners of one-half of said property as the heirs of their mother, who is dead. It not appearing that the mother of these parties was dead, and the property being community, the rule was made absolute, and the purchasers appealed.</p> <p>Held — Tlia it was incumbent on the defendants in the rule to show that the mother died since the acquisition of the property, and that the debts for which it was sold were contracted' since her death.</p>

<p>The suspension by the Governor of the Secretary of State from office did not create a vacancy in the office of Secretary of State, and the Governor is without the power to appoint a Secretary of State unless a vacancy has occurred in the office, and then only ad interim, as provided by the constitution. In case the Governor has appointed a person to taire charge of the office during the suspension of the Secretary of State, such person so appointed is only clothed with ministerial duties, and the appointment of an Assistant Secretary of State by such person is absolutely void, because the power of appointing an Assistant Secretary of State is conferred upon the Secretary of State alone, and is not a ministerial act.</p>

<p>K PPEAL from the Sixth District Court, parish of Orleans. Oooley, J.</p>

<p>An executor is accountable to the heirs for the rents which he is able to collect from the estate which he is administering, and he is entitled to charge the estate for necessary improvements which he places upon the property, which property must be compensated with rents that lie has collected.</p>

<p>An iron safe which has been incased in a brick wall, with its foundation laid in bricks and mortar or plaster, is an immovable by destination, and can not be recovered by a person claiming it, separate and apart from the buildings and premises in which it is so located.</p>

<p>-¿¿.■written agreement "between the husband and the wife, who have been divorced at a suit of tbe wife on the ground of the adultery of the husband, which makes provision for the settlement and partition of the community property, is a law between the parties, and a judgment of the District Court which carries into effect and renders executory the provisions of the written contract will not be disturbed on appeal.</p>

<p>from the Seventh District Court, parish of Orleans. Col-lens, J.</p>

<p>from the Sixth District Court, parish of Orleans. Oooley, J.</p>

<p>la conducting a case before the district court tbe judge is necessarily invested with a large discretion in the matter of granting a continuance, and if the appellant fails to advise the appellate court by bills of exceptions of the errors of the judge in refusing a continuance, then and in such case the Supreme Court will maintain the ruling'of the judge a, quo refusing it.</p>

<p>from the Sixth District Court, parish of Orleans. Oooley, J.</p>

<p>The courts of Louisiana will not entertain a suit founded upon a claim alleged to have been acquired in consideration of army stores furnished to the enemies of the United States-during the late civil war.</p>

<p>A lessor who has consented to a sub-lease by the lessee can not afterward hold the subtenant liable as a third person, and olaim a lien and privilege on his property found on the premises to secure the rent due or to become iLuC'by the lessee.</p>

<p>Tlie fact that words appear in an olographic will which arc not in the handwriting .oí the testator is not good cause for annulling the will, if the words themselves do not change the meaning nor alter the dispositions made hy the testator in his own handwriting.</p>

<p>from the Fifth District Court, parish of Orleans. Lemmbont, J.</p>

<p>from Parish Court, parish of Assumption. JD. LeBlanc, Parish Judge.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Devisee, J.</p>

<p>from the Eighteenth Judicial District Court, parish of Bossier. Watkins, J.</p>

<p>Where a devolutive appeal lias “been taken from a judgment which, directs a certain number of pounds of cotton to be delivered to the plaintiff, or in dofault thereof to pay a certain amount in money, and execution has issued thereon, the delivery into the hands of the •sheriff of the cotton is not a voluntary execution of the judgment, and the devolutive •appeal may be prosecuted thereafter.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Devisee, J.</p>

<p>from the Fourteenth Judicial District Court, parish of Richland. Bay, J.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Levisee, J.</p>

<p>In this case plaintiff took defendants’ note in settlement of a debt, and with the knowledge of defendants placed it in the hands of a third party, to whom payment was afterward made. Plaintiff now seeks to enforce payment against the maker on the ground that the third holder was not authorized to receive payment.</p> <p>Held — That the loss must fall upon the plaintiff, because it was through his fault that the defendants were enabled to make the payment to the third party.</p>

<p>An lioir ivlio lias provoked tlie appointment of liimself as provisional administrator of the estate of his mother, on the allegation that the succession required immediate admin istration, can not he held and treated as an intemneddler in the estate.</p>

<p>APPEAL from the Eleventh Judicial District of Claiborne. J. F. Pierson, Judge ad hoe, in place of Fgan, Judge, recused.</p>

<p>from the District Court, parish of Red River. Levisee, J.</p>

<p>from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.</p>

<p>An exception to the capacity of the plaintiff to stand in judgment should not be permitted to be filed alter the general issue has been pleaded, because the general issue admits the capacity of the plaintiff. 21 An. 188.</p> <p>Property of a succession under administration can not be seized and sold under a judgment against the deceased owner. A sale of property or lands thus situated under a writ of fieri facias issued from the district court is an absolute nullity, and the purchaser is responsible to the succession for rents from the date of the notice oí seizure, but the claim for rent is prescribed by three years.</p>

<p>from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.</p>

<p>An appeal will not be dismissed because a copy of the petition of appeal lias been sent up with the record in place of the original. ,</p> <p>A third holder of a mortgage note under indorsement must show an authentic transfer before he can legally obtain an order of seizure and sale of the property mortgaged.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Levisee, J.</p>

<p>from the Fourteenth Judicial District Court, parish of Ouachita. Hay, J.</p>

<p>A cleric or boolceeper employed in. a store "by the year who has been discharged before the term of his employment has expired, for good and sufficient cause, can only recover wages up to the time of his discharge.</p>

<p>from the Tenth Judicial District Court, parish of BossierWatláns, J..</p>

<p>XJie remedy by attachment is stricti juris, and when invoiced to restrain the debtor from selling liis property to the detriment of the creditor, proof of a specific act of immorality Will not bo received to impeach the credibility of the defendant as a witness on the motion to dissolve.</p>

<p>from the Parish Court, parish of Franklin. Van Thomas, Parish Judge.</p>

<p>Questions of faot not passed upon in the lower court cannot be reviewedou appeal, but if suoh questions appear to be material to a correct decision, then the case will be remanded.</p> <p>A married woman who resides in Texas may prosecute an appeal from a judgment rendered against her in tlie courts of Louisiana, and the prosecution of the appealineludes the right on her part to give an appeal bond.</p>

<p>from the Tenth Judicial District Court, parish of De Soto. Levisee, J.</p>

<p>A person holding or claiming apiece of real property nnder a simulated title can not maintain an injunction against the sale thereof by judgment creditors of his vendors.</p>

<p>‘If the evidence shows that loss has occurred to the succession by the gross carelessness of the executor, and that hia administration, instead of being beneficial, has been injurious to the succession, the executor will not be allowed commissions. 4 An. 578.</p> <p>To entitle the surviving widow to the one thousand dollars under the homestead act, it must be shown affirmatively that she is in necessitous circumstances.</p> <p>Suits brought by attorneys before the death of the client may be prosecuted by the same attorneys after his death, notwithstanding one of the attorneys may become his executor, and all the privileges accorded by law on judgment obtained or property seized as security for the attorneys’ fees will attach in favor of such attorneys.</p> <p>.An executor who is a professional man is not permitted tó charge for legal services which he has rendered the estate while under administration.</p>

<p>Au indictment for the crime of murder is sufficiently explicit to aitvise the accused of the charge against him if it charges “ then and there did feloniously kill, slay and murder,” without containing the words “withmalice aforethought.”</p>

<p>The act of the General Assembly creating the new parish of Red River and attaching it to ' another judicial district repealed the former act which rendered its territory subject to< #tke jurisdiction of the Eighteenth Judicial District, and judgments rendered by the judge of this judicial district, after the passage of this act, are void for want of jurisdiction over the parish.</p>

<p>A judgment debtor who seeks to annul a judgment homologating a final account of the administratrix on the ground of fraud must, in order to maintain his action, show the* fraud.</p>

<p>Any acknowledgmoafc or agreement equivalent to an acknowledgment of a dokfc by a.person wlio is dead at the time it is sought to be established, must be proved by written evidence.</p>

<p>The right given by law to the vendor to have the sale dissolved on the failure of the purchaser to comply with the terms thereof, by paying the price stipulated, is not transferable, and does not pass with the transfer of the notes or obligation of the purchaser held by the vendor. In such a case only the right of the vendor to enforce the payment of the notes with the securities, passes to the indorsee, hut not the right to rescind or disturb the sale itself.</p>

<p>from the Fourteenth Judicial District Court, parish of Ouachita. Hay, J.</p>

<p>A patent that has been issued by the Governor of Louisiana through error, for public lands within the State, can not be made the basis of an action of slander of title against the * - owner, who holds the same land under an entry previously made at the land office of the United States.</p>

<p>In attachment proceedings against a non-resident the sheriff must iollow strictly the requirements of tbe Code of Practice in serving tbe attachment and citation by affixing copies of the same on tbe door of tbe building in which the court that issued the process is held, and the return of the sheriff must show that these formalities have been complied with, under penalty of nullity. C. P. 251.</p>

<p>from the Eighteenth Judicial District Court, parish of Bossier. Watlcins,, J.</p>

<p>from the Eighteenth Judicial District Court, parish of Bossier. Tj. W. Balcer, Paiish Judge.</p>

<p>from tbe Fourteenth Judicial District Court, parish of Ouachita. Bay, J.</p>

<p>from the Tenth Judicial District Court, parish of De Soto. Levisee, J.</p>

<p>Tlio action by a creditor to annul a judgment of tlie wifo against her husband, on the ground that it was obtained through fraud and collusion, is prescribed by one year. C. C. 1994.</p> <p>The same prescription applies to the attack in the sale to the wile made under the judgment for fraud or collusion.</p>

<p>from the Eighteenth Judicial District Court, parish of Bossier. T. M. Fort, Judge ad hoc, vice Watkins, J.,.recused.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. O. M. Pegues, attorney at law, Judge ad hoe, vice Levisee, Judge,, recused.</p>

<p>from the Fourteenth Judicial District Court, parish of More-house. Bay, J.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Levisee, J.</p>

<p>from the Eighteenth Judicial District Court, parish of Bossier. Watlcins, J.</p>

<p>from the Tenth. Judicial District Court, parish of Caddo. Levisee, J.</p>

<p>A person who alleges that ho has an interest in a judgment that has been enjoined, who was not a party, either directly or indirectly, to the suit in which the injunction was granted, and shows no transfer or subrogation, can not control the execution of such judgment. ,</p>

<p>A PPEAL from the Parish Court of the parish of Ouachita. Robert ±S. J. Caldwell, parish judge.</p>

<p>-A third person who has,purchased property which is incumbered by a mortgage which does not contain the paot tie non alienando while proceedings are pending by the mortgagee to enforce it, and is in possession under a titlo translative of property, can only be evicted by the mortgage creditor by an hypothecary action. C. P., art. 69.</p> <p>¿Property thus situated can not be seized undor proceedings to enforce the mortgage until it ■has been declared subjoot to the mortgage b v an hypothecary action; and if it has been seized an injunction will legally issue to protect tlio third possessor in the enjoyment of his property.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Henry Q. Hall, attorney at law, Judge ad hoe, vice Levisee, J., recused.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Levisee,■ J.</p>

<p>from the Judicial District of Bossier. Wafldns, J.</p>

<p>Iu an hypothecary action to enforce a minor’s mortgage against a third possessor, the exception that the tutor abandoned his trust and left the country, thereby rendering it impossible to makei demand upon him or settlement with him, is not a good defense in bar to its prosecution.</p>

<p>An attachment will lie against a debtor who is about to sell or dispose oí his property to defraud his creditor.</p>

<p>from the Tenth Judicial District Court, parish of Caddo. Levisee, J.</p>

<p>Personal property that has been seized under a sequestration and released from seizure on a bond given by the defendant reverts back to his possession, and he may dispose of it at his pleasure without consulting the seizing creditor.</p> <p>In such acase the securities on the bond can not escape Jiability on the ground that the defendant has been required to remove the property sequestered from the premises leased.</p>

<p>An attorney at law who has instituted a suit which is afterward compromised before judgment, can not be permitted to prosecute the suit to judgment for the purpose ot enforcing a privilege upon it for Ms professional services in the case.</p>

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

<p>from the Fourth District Court, parish of Orleans. Théard, J.</p>

<p>from the Fifth District Court, parish of Orleans. Gooley, J.</p>

<p>To maintain the plea of res judicata-the cause of action must he the same. In this case the-relator brought suit for the office of Secretary of State, on the alleged ground that the act of suspension by the Governor was unconstitutional and void. Judgment was* rendered in favor of the defendant on that plea.</p> <p>Relator afterward brought this suit for the same office, on the allegation that the non action of the Legislature on the suspension restored him to the office. To this suit defendant urged that the first judgment was res judicata.</p> <p>Hold — That the cause of action not being the same in the two suits the plea of res judicata could not be sustained.</p> <p>A public officer, such as the Secretary of State, who has been suspended from his functions by the Governor is entitled to resume his office immediately after the adjournment of the next General Assembly, provided no action has been taken on the suspension during the session, and his exclusion thereafter is an active, arbitrary violation of his legal and constitutional rights as such.</p>

<p>A mandamus will bo granted from the Supreme Court directing the judge of the district court to grant an appeal from a judgment on a rule authorizing an execution to issue against executors for a certain amount, if it bo shown that the rule was made absolute, and an execution issuod thereon for a larger amount than the judgment creditor was Authorized to demand of them.</p>

<p>from the Fourth District Court of the parish of Orleans.</p>

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

<p>for a Writ of Mandamus.</p>

<p>After*an appeallias been granted, the court a qua is without jurisdiction to pass upon the-question whether the appeal is a nullity or not, and any order made by the lower court in the case until the Supreme Court ha3 passed upon the appeal is -void, and a writ of prohibition will issue in such a case from the Supreme Court restraining the judge a quo from proceeding in the case until the appeal is passed upon.</p>

<p>A judgment' for alimony for two hundred and fifty dollars per month, pending the suit for divorce, is appealable and can not bo defeated by a remittitur on tho part of the judgment creditor so that it shall not exceed five hundred dollars, and on application to the Supreme Court the judge a quo -will bo compelled by mandamus to grant an appeal from such a judgment, notwithstanding the remitUtm\</p>

<p>from the Fifth District Court, parish of Orleans. Beaumont, J.</p>

<p>A tutor has the right to purchase at the sale of the minors’ prpperíy which he is administering, if he be the surviving partner in community, or an heir or a legatee of the deceased. .</p> <p>In a suit by the heirs to recover the property of their ancestor, which has been sold by the tutor, on the allegation that the sale made by the tutor through the agency of a third person ia a nullity, parol evidence is admissible to show that the estate was in debt, and that the purchase money went to discharge the debts of the estate, and that the balance was divided among the heirs of age.</p> <p>Where property of an estate which is largely in debt, represented by a tutor, has been, under the advice of a family meeting, sold at judicial sale, and the proceeds of the sale have been applied to the payment of the debts, and the balance has been divided among the heirs in pursuance to the advice and directions of a family meeting, the sale is valid and binding upon the heirs. In such a case the heirs oí age having taken the residue of the price of the sale and divided it among themselves, before they can institute and prosecute a suitfor the recovery of the property on the ground that the sale was a nullity, must return or offer to return the price they have taken or which inured to their benefit — they not being permitted to hold on to the price and at the same time prosecute a suit for the recovery of the property itself.</p>

<p>The clerk of the district court who has been suspended, irom exorcising the functions of hie* office by the judge of the court has the right to have the legality of such order reviewed on appeal, and a mandamus will issue on application of the clerk, commanding the judge to grant an «appeal.</p>

<p>from the Fourth District Court, parish of Orleaus. Théwrd, J.</p>

<p>from the Seventh Judicial District Court, parish of Pointe Coupée. Miller, J.</p>

<p>lrom the Second Judicial District Court, parish of Jefferson. Pardee, J.</p>

<p>A citation sorved upon a person other than the defendant, who is only transiently at the donrcile of the defendant and does not reside there, ia fatal, and a judgment rendered thereon is absolutely void.</p>

<p>from the Second Judicial District Court, parish of Jefferson. Pardee, J.</p>

<p>Notes which have heen stamped with the required internal revenue stamps, are admissible in evidence without the stamps being canceled as required by law.</p>

<p>Article 620 of the Code of Practice makes it obligatory upon the clerks of the district courts in cases where mandates and decrees front the Supremo Court have been presented for execution to at once, and without any order or decree from the judge a quo, issue the necessary process to execute the judgment of the Supreme Court. A refusal or failure on the part of the clerk to comply with this article of the Code of Practice in any case where ho has been required to do so, will subject him to punishment for contempt by the Supreme Court, lor disobedience to the mandates of the law.</p> <p>Under this article of the Code of Practice the judge of the district court has nothing to do with the execution of the orders and decrees of the Supreme Court. Phe’ efore, if a Judge of a district court interferes with or obstructs, or hinders in any way, as judge, the execution of a judgment of the Supreme Court, he will be held guilty of a contempt of the authority of that court, and the plea of ignorance of the provisions of this article will not shield him from the penalties denounced against those who obstruct the execution of the mandatos of this tribunal.</p>

<p>In this case the Southern Bank had Judge Eustis employed by the year at a fixed salary to attend to its legal business. During the absence of Judge Eustis the bank employed the firm of Waples & Eustis to attend to its business in litigations to which the bank was a party, lor which they bring this suit for their fees. The bank oifered as a defense conversations between the officers of the bank and Judge Eustis, before his departure, showing that during his absence the firm of .Waples & Eustis would attend to the legal business of the bank free of charge.</p> <p>Held — That such conversation was in no manner binding on the firm of Waples & Eustis, and that they were entitled to recover their fees from the bank.</p>

<p>A person owning a house in the city of 2Sew Orleans situated within the limits of the district where the keeping of houses of prostitution are allowed by the city, may lease his feouae for that purpose and recover the rent from the lessee. In such a case the lessee can not be permitted to plead the immorality of her own calling as a shield against the payment ot the rent of the property which she has used.</p> <p>The decision, in the case of Kathman •». Walters, 22 An., page 54, is overruled by this decision.</p>

<p>In the last will and testament of Mrs A. M. Schneider, the following clause appears: “ Thus done and passed in the house and room above described, on the above day and date, and signed by the said testatrix, the witnesses and the undersigned notary, the said testatrix having declare^ she could not write, made her usual mark.”</p> <p>Held — That the doclartion that she could not write, followed by making her usual mark, was equivalent to the declaration that she knows not how to sign as required by article 1572 of the Civil Code.</p>

<p>In a damage suit, if tlie verdict of the jury is not supported by tlio evidence it will he set aside on appeal, and judgment will he given for such amount as the evidence sustains.</p>