Volume 25 — Louisiana Annual Reports

<p>The provisions of the Code of Practice relating to oyer do not apply to a document filed in a cause in court.</p> <p>The loss of an appeal bond being established, .secondary evidence, either written or oral, • may be introduced to prove the alleged signature of the defendant to the bond as surety.</p>

<p>"Where on the third of December, 1872, judgment was rendered by the Eighth District Court, parish of Orleans, dissolving the injunction granted by that court,, and dismissing the suit, and said judgment was not signed until the second of January, 1873, after the case was transferred to the Sui erior District Court recently created, and whore on appeal a motion was made to dismiss tho same on the ground that the judgment rendered did not require signature, and no appeal could therefore be taken after the lapso oí ten days from its rendition;</p> <p>Held — That the judgment dissolving the injunction and dismissing the suit was a final one, and no appeal could be taken from it until it was signed, which was on the second of' January, 1873, and that the appeal was properly made returnable within ten days from that date.</p> <p>The law creating the Superior District Court authorized the judge thereof to do, in the cases transferred to it from the Eighth District Court which was abolished, what the judge of the latter could have done.</p> <p>"Whether tho appointment of either of said judges by the Governor was unconstitutional and. void can not be determined in such a collateral manner as on a motion to dismiss.</p> <p>Where the appointment of the judge was expressly authorized hy the statute creating the court, as in the case’ of an original vacancy, whether this might or might not he sustained as constitutional, in a proper proceeding, is a question not to be settled in this case in which the judge is manifestly an officer de facto at least; and his acts must he recognized just as those of an officer de jure, until, upon a regular trial, he is disclosed not to he an officer.</p> <p>Where the affidavit of the appellant declares that, as a member of the State Election Returning Board, his pecuniary interest in the ¡?uit exceeds one thousand dollars, and where a reference to act No. 72 of 1871, p. 152, shows that an appropriation was made for the compensation of the same returning officers;</p> <p>Held — That this mode of establishing an appealable interest under such circumstances is fully sanctioned hy our jurisprudence.</p> <p>The object of the limitation in the constitution to the jurisdict on of the Supreme Court is simply to exclude from it such controversies as are of minor importance.</p> <p>Where the interest of the State and of the people of the State in the correctness of the ruling of the judge a quo is of such magnitude as in this case, the court will not, on abald technicality, refuse to entertain jurisdiction of the cause, oven if there were no pecuniary ’ interest .shown, which, however, is not the case in this suit.</p> <p>Where the matter in dispute involved in the suit is such as to demand or authorize the action of this court, the light to appeal is granted hy article 571 C. P. to third persons who allege that they are aggrieved hy the judgment rendered in a suit between other parties. The law does not say that such judgment shall be res judicata against the third persons to entitle them to appeal.</p> <p>The appeal must he sustained where, as in this case, the appellant has made the requisite allegations supported by his affidavit and has made it apparent that he is aggrieved hy the judgment appealed from, which annuls the authority by which he was declared to he elected Attorney General of the State, whoso salary is five thousand dollars per annum, and sets aside the return of the election hoard which is the foundation of his title to office.</p> <p>Where it was alleged that appellant had no interest to appeal on the ground that the Returning Board had exercised its authority on his behalf and was functus oficio;</p> <p>Held — That appellant had an interest to have it decreed that the Board of Returning Officers was legal at the time it declared his election.</p> <p>The objection that full ten days was not allowed in this case to bring up this appeal is without force. The law directs that in such cases the appeal shall he returnable within ten days after the judgment of the lower court. The return day may he less, hut not more than ten days.</p> <p>It was immaterial at whose instance the judgment was signed. The law requires the judge to sign all definitive judgments.</p> <p>Where it was contended that a membership of the Board of Returning Officers was not an office within the contemplation of the law, and therefore that the suit should not he brought under the intrusion act;</p> <p>Held — That the members of the hoard are designated as officers in the act itself creating it, and that they come within the legal definition of the word.</p> <p>Where the claims of individuals come in conflict, it is the true province of the judiciary to decide what they rightfully a>e under the constitution and the laws, rather than to decide whether the constitution and laws have been rightlully r wisely made.</p> <p>Where two sets of officers claim to he the legal Board of Returning Officers, i is difficult to conceive why this is not a judicial question.</p> <p>The Governor is not vested with the extraordinary discretion to determine who are the returning officers under the law.</p> <p>The law of the twentieth November, 1872, relative to elections, did not repeal the election law oi 1870, which created the Board of Returning Officers, and did not destroy their office. It was merely a revision and re-enactment of the former with emendat ons.</p> <p>The provisions of the act of 1872 were intended to apply only to elections held under it after its passage, and hy no correct or admissible rule of construction can its repealing clause he held to defeat an election had under the previous law, when the results thereof were not yet ascertained.</p> <p>The Governor is not vested hy the act of 1872 with authority to appoint the officers of the Returning Board of Election.</p> <p>The Governor was wholly without legal right to suspend or remove the Secretary of State de facto, recognized as such hy a court of competent jurisdiction and hy himself.</p> <p>The extrusion and exclusion of Bovee, the Secretary of State de jure from the office by the Governor did not and could not vest in said Governor the control of the office with the right to put in and put out the occupants thereof at his pleasu e. Th ere was no vacancy in the office of Secretary of State, Bovee, the incumbent de jure, who was only excluded or suspended, and whose office was in the meanwhile filled by Herron, the Secretary of State de facto ¡ and yet Wharton was appointed Secretary of State without reference to any removal or vacancy. The commission is without effect.</p> <p>Wharton, not being legally commissioned Secretary of State, could not as such be ex oficio a member of the Re turning Board. There is no evidence that he was elected member of the board, and it is not satisfactorily shown that he did take the required oath as a member.</p> <p>Hatch and Ha Bonte were not legally elected members of the Returning Board. The law provides that “ in case of any vacancy by death, resignation or otherwise by either of the board, then the vacancy shall be filled by the residue of the Board of Returning Officers.” Warmoth, Lynch and Herron were the residue, of whom two, Lynch and Herron, voted for Longstreet and Hawkins, and Warmoth voted for Hatch and Ha Ponte.</p> <p>Bovee, the Secretary of State de jure acted as assistant secretary of the said board until he was restored to his office under the decree of this court, after which he voted as a member of the Board.</p>

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

<p>APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.</p> <p>On Motion to Dismiss tiie Appeal.</p>

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

<p>"The facts and law in tliis case are identical with those in the case of State of Louisiana ex rel. <3-. W. Saddler v. J. O. Landry and al., city of New Orleans, except that in this case the plaintiff is a constable instead of a justice of the peace.</p>

<p>Where a power of attorney is given to an agent “ to make checks and draw money out of any bank or banks wherein the same may have been deposited in the name or for account of the principal,” the fact that a sufficient amount to meet the cheek was not deposited when the check was drawn is not a valid defense, and does not authorize the principal to refuse paying it in the hands of a party who had no notice of the prohibition put upon the agent.</p> <p>Where A gives an accommodation check to IB in exchange for B’s check, the fact that B’s • check is not paid, does not release A from the liabilities attaching to his own check as soon as it is received by an innocent third party as cash.</p> <p>The rights which become vested when a check is deposited can not be prejudiced by what happens after that time between the original parties.</p> <p>There is no reason why a deposit to the credit of an overdrawn account should not be fully as legal and unsuspicious as one on an account already credited with a balance. The disoovery of an overdraft is the strongest possible incentive to an early deposit to make the account good.</p> <p>Tt is better that the immediate employer and principal of an agent should suffer by the imprudence of his employe than that third parties should suffer from those acts of agents which are recognized by the public as valid, because of the confidence reposed in the principal.</p> <p>Where an agent issues a commercial obligation authorized by the terms of his mandate, the legal presumption is that it was for a valuable consideration which has actually accrued to the benefit of his principal, and that, therefore, the principal is bound by it $ and third parties who, acting on the presumption, receive such negotiable'obligations, are protected against the equities of which they have no notice.</p>

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

<p>Wliere a certificate of indebtedness wifcb tbe date and number wanting, was stolen, while being prepared for issuance, before it was issued and put in tbe market by tbe city of New Orleans, and alter tbe date and number bad been subsequently forged, was sold to tbe defendant, who called bis vendor in warranty;</p> <p>Held — That this instrument can not be classed as negotiable paper upon which tbe maker is bound to innocent holders. It is transferable, it is true, but tbe transferree obtains only tbe rights of tbe transferrer.</p> <p>In this case tbe transferrers and warrantors bad no legal possession of tbe certificate of indebtedness of which the city of New Orleans never ceased to bo tbe owner.</p>

<p>"Where citation is served personally on a married woman authorized to defend the suit, she is regularly in court, and on its being shown that she has a domicile in the parish, a notice to which she is entitled can be served on her personally, or at her said domicile, unless there is some special provision of law requiring another mode of giving the notice.</p> <p>It can not be contended on her behalf that, inasmuch as, when the judgment was rendered and notice thereof served at her domicile, she was absent, or had gone out of the parish, it was necessary to appoint an attorney upon whom service of the notice of judgment should have been made.</p> <p>Article 141 K. C. C. is to be construed as applying to the defendant who is absent, or incapable of acting, at the institution of the suit, and can not be cited in the usual way, but not to one who is legally and regularly a party to a suit and who voluntarily declines making a defense or temporarily leavos the place of the jurisdiction after being cited. The jurisdiction of the court can not thus be defeated.</p> <p>The appointment of persons to represent parties to a suit should be made with caution and in cases clearly designated.</p>

<p>The judgments in this ease appointing a testamentary tutor and the mother oí minors their natural tutrix were not absolute nullities, and can not be attacked collaterally. Where a divorced wife marries again, and after the death of her first husband, claims to exercise her rights of tutorship by nature over the issue of her first marriage;</p> <p>Held — That the forfeiture announced in article 254 of the Revised Code has no application to her case.</p> <p>There is no law prohibiting a divorced wife from becoming natural tutrix of her children after the death of their father.</p> <p>The fact that there are no special tutors ad hoc appointed for minors at the time of the sale of their property does not concern the purchaser.</p> <p>The services of special tutors ad hoc are not necessary to effect a sale of minors' property. Tlieir duty begins at the partition before the notary, if not appointed at the time of the sale, they may be appointed afterwards and before the notary begins the partition.</p> <p>The purchaser at a judicial sale is protected by the decree ordering the sale, and is not bound to look beyond it.</p>

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

<p>APPEAL from the Parish and Probate Court, parish of Plaquemines. Prescott, J.</p>

<p>The sheriff, when effecting a sale, has the right to exercise his judgment as to the solvency and sufficiency of the security offered, and to require bidders to he prepared at once to-comply with the conditions of the sale. Art. 689, Code of Practice.</p>

<p>The prescription of tlrree years set up against a suit for settlement of the affairs of a partnership is not applicable when no settlement of its business and no adjustment of the liabilities of the copartners among themselves have taken place.</p>

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

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

<p>Where the claim by plaintiffs was to bo reimbursed their own money, that was appropriated to the payment of a judgment for which the owners of a certain piece of property were liable, and which was rendered contradictorily with them;</p> <p>Held — That the payment of that judgment carried with it a legal subrogation of the plaintiffs-to that judgment.</p>

<p>Where it is clearly the purpose of tlio Legislature to give a company time within which they would have an opportunity to accept certain conditions imposed by that body, it can not be contended that official negligence in promulgating the law, should make it impossible for such túne to transpire, and thus deprive the company of the right and opportunity to accept; it would enable such official negligence to defeat the legislator’s will.</p> <p>Where the liability for interest coupons results solely from, and is embraced in, the liability for the bonds of which they were a part when issued, a release for the bonds includes the liability ior the coupons.</p> <p>On the question in this ease whether the act No. 97 of 1872, relied on by the; defendants, is null and void on the ground of its being in conflict with the prohibit! m in article 111 of the constitution, because it has repealed, without containing any adequate • rovision for the same purpose, that provision of actNo. 108 of 1868, obligating the defendants to deposit in the State Treasury, at prescribed dates, the money to pay certain bonds and interest coupons issued — which obligation was secured by a second mortgage on the railroad, its fixtures, and appurtenances—</p> <p>Held, First — That the State by making the act No. 108 of 1868, the basis of its suit, recognized and affirmed its constitutionality in regard to the adequate ways and means provided for the payment of the current interest and the principal of the bonds.</p> <p>Second — That there is nothing in the record to enable the court to determine whether or not the provision made in the law of 1872 is an adequate provision for the payment of the principal and interest of the debt created by the law of 1868, and that there may be a reasonable doubt as to whether the act of the later date actually repeals that of the earlier, in the contemplation of article 111 of the constitution.</p> <p>Third — That the law creating the debt is certainly not repealed, and that the debt of the State so created being still in existence, the State is precluded, in this proceeding at least, from contesting its validity, or that of the means first provided for its payment; and that it is only tlio form and nature of the security required of the railroad company that has been changed.</p> <p>Fourth — That it was proper to conclude that there is such reasonable doubt with regard to the unconstitutionalifcy relied on, as, under the well settled jurisprudence of this State</p> <p>* and country, to justify the court in not annulling the legislative enactments referred to in this case. When there is a douht, a law will not he held unconstitutional.</p> <p>Fifth — That this is a controversy between the State, which issued the bonds, and the railroad company for whose benefit they were issued; that the holders of the bonds and their rights are not before the court, nor any claim to enforce the payment of said bonds; that the State having paid some of the interest on them which it alleges the company were obliged to pay, and now seeking to collect back the same, the plea that the company settled with the State in accordance with act No. 97 of 1872, is a valid defense. There is nothing in the constitution inhibiting the State from accepting from its debtors such settlements as the Legislature may think judicious.</p> <p>Where the demand was for the return and annulment of three hundred bonds alleged to have been issued after default, on its being proved that no such bonds were issued, a final judgment will be given, as insisted on by defendants, instead of one of nonsuit.</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>Where the court is without jurisdiction ratione materia* to try a case, it must notice this fact of its own accord, and the appeal will "bo dismissed. Cons. art. 71.</p>

<p>"Where tlio plaintiff claims property by inheritance as sole lieir of his father and appends to his petition an order of the proper court recognizing him as such, and decreeing that he be put in possession of his father’s estate, and where he alleges that his father had a just and legal title to the property at the time of his decease and was in possession at that time: Held — That the allegations are sufficiently clear to enable him to maintain his action, and that an exception to plaintiff’s petition on the ground of its vagueness and failure to set out the title under which he claims can not be maintained.</p> <p>It is for him to make out his case by sufficient evidence which the defendant is free to resist when presented.</p>

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

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

<p>Where a notary stated in his certificate that the notice of protest was served at the residence' of the indorser in the hands of his wife, and it appears by the indorser’s testimony that-he received the notice, a mistake as to the name of a street in designating the locality for the residence, will not be held fatal.</p>

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

<p>The sixth section of the act of 1868, p. 194, concerning the transfer of hills of lading and the effects of that transfer, is only a legislative sanction given to the commercial law of universal application, hy which it is held that a hill of lading, legally transferred, gives title to the property it represents. It does not clash with the statute of 1855 incorporated in the 3237th article of the Civil Code.</p> <p>The article 3237 does not give any privilege upon produce sold for cash. A sale for cash moans that, when the property is delivered, the money is to be paid, and where not paid after delivery, so long as the property remains in the possession and undor the control of the vendee, the vondor’s lien remains as between the parties, but the lien does not follow it when it passes into the hands of innocent third parties. Vendors can not complain if they sell for cash and still allow purchases to taire away the goods without paying for the' same. The fault being with them, the loss, if any, must be theirs also.</p>

<p>APPEAL APPEAL from the Second District Court, parish of Orleans. Oollens, judge of the Seventh District Court, presiding in place of Dmigneaud, J., who recused himself.</p>

<p>The title to property can not be attacked collaterally, and where a judgment creditor seizes-* property as belonging to liis judgment debtor, but the title to which stands in the name of another, ho assumes the burden of showing simulation.</p> <p>The object of registry both of sales and mortgages is notice, and when the recorder registers a private sale, whether ho has done so on sufficient proof is immaterial as regards notice to tlio public; the object of the law is fulfilled, and subsequent purchasers are affected. The failure of the recorder to inscribe with the instrument the proof upon which he admits . it to registry does not render the registry null.</p>

<p>Where one of tlie joint owners oí property claims from tlie other parties commissi ns for collecting rents and keeping the premises in repair, he must show an agreement on which to base his charge.</p>

<p>APPEAL from the Fifteenth District Court, parish of Lafourche. Beattie; J. Trial by jury.</p>

<p>APPEAL from the Fourteenth District Court, parish of Ouachita. Ray, J. Criminal case.</p>

<p>Where it was alleged, ill opposition to the claim of a necessitous widow, tliattlio adjudication of a debtor’s property to himself, created the vendor’s privilege to secure the twelve mouths bond, which ho gave j</p> <p>Hold —That an adjudication of this character does not; create the vendor’s privilege, because it does not transfer the ownership of the property, nor change the nature of the title and X>ossession $ that it neither satisfies the judgment, nor novates the debt; that it is not strictly a sale, but only a means by which a creditor acquires additional security for liis dehfc.</p>

<p>■Where A. as assignee of B sued C on an open account, and C alleged in answer that lie had deposited with B a large sura of money before the transfer to A., which had not been accounted for, and pleaded compensation;</p> <p>Held — That C, under the pleadings, did not owe B the amount set out in the account sued on; that he could transfer to A only such rights as he poss°ssod; that compensation took place, and that 0 should have the opportunity to show it.</p>

<p>A judgment of nonsuit based upon tbe mere failure of a plaintiff to appear, can not be regarded as a voluntary abandonment of the claim. The suit was sufficient to interrupt prescription.</p> <p>"Where it might be true that, technically, a widow had never qualified as administratrix of her husband’s succession, yet where she qualified as tutrix to her minor children, she fiecessarily became administratrix of his succession, and payment to her as such of a debt due to the succession would be valid.</p>

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

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

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

<p>APPEAL from the Parish Court, of the parish of Rapides. Daigre, J.</p>

<p>Tbe fifty-fourth section of the act of 1870, No. 100, relating to elections, repeals section 143 0' of the Revised Statutes, being section No. 53 of the act of March 15,1855, prescribing tli mode of contesting elections, and the party commissioned under the provisions of said act of 1870 is prima facie entitled to the office he claims.</p>

<p>APPEAL from tlie Fourth District Court, parish of Orleans. IMard,J.</p> <p>On Motion to Dismiss the Appeal.</p>

<p>Where a judgment by default was entered before the delay required by law had expired, it will not be maintained as valid on the ground that it was not made final until after the-usual delays and that the defendant, having thereby suffered no injury, can not complain.</p> <p>The words ordinary course of practice” mean that the course which is positively commanded by the law shall be pursued!</p> <p>There is no difference between entering a default a day too soon and confirming a default a day too soon. One delay is as imperative as the other.</p> <p>There is no issue joined when the judgment by default has been improperly entered, and the judgment in confirmation has nothing to rest upon.</p>

<p>Police juries are not prohibited from appointing a district attorney pro tempore after tlie lapse of the thirty days mentioned in the statute creating that office. But in that event, the statute confers the same power on the parish judges, and the party that first exercises the power exhausts it. The purpose of the law is to guard against the yrobability of a vacancy.</p> <p>A police jury is not a legislative body, and its members are not legislators who become fwncti officio with the expiration of the terms for which they were elected or appointed, but can lawfully administer the powers confided to them till their successors are elected and qualified. Revised Statutes of 1870, sec 2608.</p> <p>'The term of office of the District Attorney is four years, and the District Attorney pro tem. holds office for the same period. Revised Statutes of 1870, sec. 3178.</p> <p>A police juryman is not an officer in the intendment of that clause of the constitution prohibiting a person from holding more than one office, except that of justice of the peace.</p> <p>'That clause of the constitution applies only to constitutional offices, and does not prevent a constitutional officer from holding a municipal office.</p>

<p>here it was contended that two judgments were not properly revived, only one petition for revival thereof being filed, and in one judgment the-revival of said judgments being decreed;</p> <p>Held — That the prescription of the judgments was properly interrupted, because citation was served personally within ten years. "Whether the application was made in one petition or in two is immaterial. The decree of revival for both judgments was rendered contradictorily with the defendant, who was personally cited within ton years. There is no law requiring this decree arresting prescription to be registered.</p> <p>A judicial mortgage, like any other, must be reinscribed within ten years from the first inscription in order to preserve the rank acquired by said inscription.</p>

<p>Whoro it was contended that a mortgage was not recorded until after the passage of tireliomestoad law, and tliat it was therefore governed by it 5</p> <p>Held — That this is an error. The right was created before the passage of the Law,, and existed when itwas enacted. Subsequent legislation could not destroy it. The mortgage existed independent of its registry. Registry is intended to protect third parties, not. parties to the contract.</p>

<p>APPEAL from the Parish Court, parish of Rapides. JDaigre, J.</p>

<p>'There is no statutory provision of law requiring direct action against the sheriff to compel him to comply with what the plaintiff considers his adjudication, and to fix the respective rights of persons holding mortgages on the property sold under execution. The practice has always been to proceed by rule, and this practice has been expressly recognized by the decisions of this court.</p> <p>' The mere recital of an act of mortgage in a subsequent act acknowledging the obligations contained in the first act, does not, as to third parties at least, operate the roinscription of the first act. The subsequent acknowledgment may be sufficient to interrupt pre. scription as to the debt, but does not reinscribe the mortgage which secured it.</p> <p>"Where the plaintiff’s mortgage was in existence at the time of the sheriff’s sale, and the mortgaged property was adjudicated to him, he had the right to retain the purchase money up to the amount of his debt, and the title to the property should have been made to him.</p>

<p>for a Mandamus against the Judge of the Fifteenth Judicial District, parish of Assumption.</p>

<p>Where a judgment creditor with special mortgage and vendor’s privilege caused a ji. fa. to bo issued by the district court against the property of a succession, which fi. fa. was injoined by the executor of said succession, and where, whilst the injunction was pending said executor applied to the parish court for the sale oí all the property of the succession, including the property involved in the injunction for the purpose of paying the debts of the succession, and the court refused to order the sale of the property on the ground that it was in the jurisdiction of the district court for the time being, by virtue of the seizure and custody of the sheriff, pursuant to its writ;</p> <p>Held — That the court erred in not granting the order prayed for by the executor. Succession property can not be sold under a jñ. fa. The executor was in possession of the property when seized, and the probate court had jurisdiction to order the sale.</p> <p>The creditor had a mortgage on the property, but he saw fit to pursue the via ordinaria, and having elected that mode of procedure, he could not have been allowed to change it after he had obtained judgment, even if he had attempted to do so, which he has not</p> <p>Ho injury can result to the judgment creditor by authorizing the sale prayed for by the executor if he has a mortgage superior to other creditors.</p>

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

<p>'This court, where there is a doubt as to its jurisdiction, would maintain it in a case in which the whole people of the State are interested, and if this were necessary in order to protect them from what may be, and as in this case appears to be, a fictitious claim upon the common treasury.</p> <p>It does not follow that, because the State has appealed through the Attorney General, she can not appeal through the Governor as well. He clearly has the right to appeal on behalf of the State, and this right can not betaken away from him, simply because another officer of the government has been before him, when he takes the appeaL within the delays required by law. In this case the appeal was taken in ample time.</p> <p>It is not legally Gorrect to say that no person is authorized to appeal on behalf of the State, except in cases where the attorney general is unable or unwilling to act. The prohi. Mtion is limited to the employment of counsel other than the Attorney General by the Treasurer and Auditor, and does not exclude the Governor from doing so.</p> <p>Judgment in this case being rendered on the thirteenth of May, signed the same day, and the appeal taken on the seventeenth of May, being made returnable on the third Monday of said month, there was a good reason for extending the return day from the third Monday of May, only a lew days after the judgment was rendered, until the first Monday in • Hovember; that being the first return day after the first Monday in May, on which this court would sit.</p> <p>Where the Auditor had no authority to draw the warrants he issued, the fact of his drawing them would create no debt against the State, and if issued with the intention of defrauding the State, the Treasurer is not bound to pay them, simply because they may happen to be in the hands of an innocent holder.</p> <p>.Something more than the genuineness of the Auditor’s signature and the lawfulness of the issue is required to protect the holder of State warrants, innocent though he may be. Hot being commercial paper, they can be transferred only by the indorsement of the parties in whose favor they were issued. The genuineness of that indorsement must be proved.</p>

<p>Article 55 Code of Practice, forbids the cumulation of petitory and possessory actions, except by consent of .parties.</p> <p>In a possessory action title is not at issue, and judgment should not be given on the titles of the parties.</p> <p>The prayer of a petition characterizes it, and when the action it institutes is possessory, the defendant can not change it into a petitory one, and reconvene by setting up title.</p> <p>Where there is no answer to an amended petition, nor default taken, especially if the amendment be one of substance and not one of iorm, all subsequent proceedings are irregular and will be set aside. The contestatio litiv, which is the very foundation of a suit, did not exist.</p>

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

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

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

<p>APPEAL APPEAL from the Third (now the Fifteenth) Judicial District Court, parish of Lafourehe. Thamas B. Sherburne, acting Judge in the place of the District Judge, recused.</p>

<p>"Where a note for a certain sum of money was found in the success on o: the father of the maker’s wife, and was alleged to have been given in acknowledgment of an avancement dhoirie to said wife, who subsequently died, leaving minors for her heirs;</p> <p>Held — That said note being given in the individual name of the maker must be considered as his individual deb*-, and -s not subject to eolation on the part of the minors in the sue* cession of their grandfather, and that, even admitting said note to have been an acknowledgment of indebtedness by the drawer in. the name of his children, a tutor has no right to make such an acknowledgment.</p>

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

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

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

<p>"Where parties claim title to lauds acquired from the United States, after the General Government has parted with its title, the courts will decide tlieir rights under the law, without reference to the action of the officers of the land office.</p> <p>A citizen, in its largest sense, is any native born or naturalized person, who is entitled to full protection in the exorcise and enjoyment of the so called private rights.</p> <p>By the laws of Louisiana native born free persons of color were in the lull enjoyment of those rights in 1844.</p> <p>By the treaty whereby Louisiana was acquired, the free colored inhabitants of Louisiana were admitted to a citizenship of the United States;</p> <p>Therefore, a free colored person who was born in Louisiana, who had always lived there,, and whose ancestors for two generations before him had been free and had lived in Louisiana, was a citizen of that State in 1860, at the epoch when the commissioner of the general land office, in an ex parte proceeding, canceled an entry made by said person under the pre-emption laws of 1841, on the thirty-first day of December, 1844, on the ground that said person, being a free negro, was not a citizen of the United States, although he had remained in possession of the land since the entry and had complied with all the requirements of the laws of the United States to entitle him to enter the land by preemption.</p>

<p>APPEAL from the First District Court, parish of Orleans. Abell, J. Criminal case. Trial by jury.</p>

<p>*Wliere tlie husband, has not appeared with his wife, in the suit instituted by her, the latter must show his authorization. Her own averments, or those of her counsel as to that fact are not sufficient.</p>

<p>A mortgage creditor lias no right lo injoin the sale of his debtor’s proporfcy for want of notice of the application for the order, when the sale was ordered to pay creditors having a higher rank, or a preference over him.</p> <p>Where creditors, who were by judgment en ifcled to be paid by preference, intervened, and joining in the defense made by the executor of an estate against the injunction issued at the prayer of a creditor of an inferior rank, asked that the judgment be so amended as to allow them twenty per cent, damages on their claims ;</p> <p>Held — That they were not entitled to any increase of the amounts allowed them respectively on the executor’s tableau. No act of one creditor, however illegal, can be the basis ior enlarging the claims of other creditors against the common debtor, the succession. But the plaintiff who, by injoining, has illegally obstructed the sale provoked by the executor, • is liable to the succession for damages, and the prayer of the executor for an amendment of the judgment should be granted.</p>

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

<p>Where the resistance to the payment of State taxes was founded on the ground that the clerk, sheriff and recorder, before proceeding to make the assessment on which the tax is levied, gave no notice in the official journal of the parish, as required by section forty of the Revenue law, acts of 1871,116;</p> <p>Hold — That the plaintiff’s objection rested merely on technical grounds, inasmuch as he had paid voluntarily his parish taxes, which were levied under the same law, by the same parties, upon the same assessment, at the same time and in the same manner in every respect as the State taxes, and had several times promised to pay said taxes; and inasmuch also as he had made in this proceeding no complaint of any error, injury, or injustice in the assessment and levying of the taxes.</p> <p>The object of section forty of the Revenue law of 1871 is to give the taxpayer notice, that he may have an opportunity to have errors corrected and a just assessment made. Where it is proved that ho had such notice, he has no cause to complain.</p> <p>There is no prohibition in the constitution against the sale of property for taxes in lots of from ten to fifty acres, or any other quantity. Tbe fact that the constitution directs that all lands sold in pursuance of decrees of courts shall he divided into tracts of from ten to fifty acres, does not inhibit the legislature from directing lands sold under other process to he similarly divided.</p> <p>The impracticability of the proceeding prescribed bylaw and the imposing of the cost thereof upon the purchaser . f lands sold for taxes, are not good grounds for an injimetion on the part of tbe taxpayer. The consequences referred to will rest with the State and the purchaser.</p>

<p>"This court can go behind the judgment of the court a qua to see when the obligations sued on arose between the parties.</p> <p>'The homestead law, exempting certain property from seizure on a judgment enforcing a mere ordinary debt is not unconstitutional. The rights of the creditor, and not Ms security, unless the security forms part of Ms contract, must be invaded before he can invoice the constitutional privilege on which he relies. The law, in this case, does not affect Ms vested rights, but only impairs his security for the payment of Ms claim.</p>

<p>‘Where the plaintiff excepted to the evidence of the defendant, who testified that be never-received the money declared in the marriage contract to be the property of the mother of the plaintiff, nor did ever receive any property from her, or for her account, nor ever-made the donation propter nuptias mentioned in the marriage contract;</p> <p>Held — That the objection should have been sustained, because the notarial act could not be contradicted by parol testimony.</p>

<p>Where the husband joins tli© wife in her petition, this is sufficient authorization to her to sue.</p> <p>Where the motion was for a suspensive appeal, and the one granted was merely devolutive, if the appellant submits to this modification of his demand, the appellee, not being injured by it, can not complain.</p> <p>Where the motion to appeal was made in the name of the husband and the wife, the authorization to appeal is sufficiently established, and the appeal bond can not be objected to, when made out in the name of the husband and the wife and is signed by both.</p> <p>Where plaintiff was not an heir; Held — That she had no right to attack a will in so far as it related to the disposal made by the testator of his property, but that she might sue to annul it in so far as it interfered with her rights to have the tutorship of her grand children.</p> <p>It is unnecessary to decide the question raised whether a testament is valid as a will by nuncupative public act, when it is good as a nuncupative will under private signature.</p> <p>Where the objection to the validity of such a will was, that the person who wrote and read, it was not designated the: ein as a witness, but as a notary;</p> <p>Held — That there is no law which declares that a man, because he is a notary public, is not a good witness to a will; and there can be seen no reason why he should not be.</p> <p>A will can be set aside only when the law itself pronounces it to be null on accouut of the want of compliance with those formalities which are declared to be sacramental.</p> <p>Where A was appointed by will tutor to minors, and at the same timo the testator declared that the care, management and raising of his children should be left in the hands of Miss B:</p> <p>Held — That this was not appointing her tutrix; that this was merely giving her the personal care of the children, whilst the legal control of the persons and property of the minors was vested in A, who could as tutor, when he chose, remove them from her care.</p>

<p>"WTiere it was contended that a donation inter vivos, made in 1858, by a white father to his two * daughters who were born of a black woman, then a slave, but who, with their mother,, were entitled to claim their liberty at a future time (statu, liber ce) was in violation of law and therefore null and void;</p> <p>Held — That the rights of the parties must be decided undei? the provisions of article 193 of the Code of 1825, and that under the circumstances of the case, the donation must be sustained, whatever may be the moral view of the question.</p>

<p>"Where the defendant objected to the refusal of tbe judge a quo to charge the jury that actions for divorce are governed exclusively by section 1192, Revis ed Statutes 5 Held — That the judge committed no error, and the action is instituted under article 138 O. C., amended by act Ho. 76, Statutes of 1870.</p> <p>Where plaintiff was authorized to institute the suit, it followed that she was empowered to take a writ of sequestration or such other conservatory steps as were necessary to secure her rights.</p>

<p>APPEAL from the Parish Court, parish of Washington. Slocum, J.</p>

<p>A judgment by default, to become executory, must be notified to the defendant, and the delays from which the right to appeal begin to run must date irom the day on which the defendant was notified of the judgment.</p> <p>■Where the plea of prescription is filed in this court, justice requires that the ease shall be remanded, at the prayer of the plaintiff, in order that he may have an. opportunity of introducing evidenoe to interrupt the prescription.</p>

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

<p>An intervention can not be sustained where the demand is not incidental to the main action and where the intervenor neither joins the plaintiff in claiming the same thing, or anything connected with it, nor unites with the defendant in resisting the claim of the plaintiff, nor claims a privilege on the proceeds of any thing which has been sold, or pretends to he the owner of the thing which has been seized.</p> <p>The creditors of a succession have no right to intervene in proceedings by the heirs to compel an administrator to render his accounts.</p> <p>Whore the demand of an intervenor does not grow out of the principal action and is not specially permitted by law, it must be dismissed.</p> <p>Where the rights of the plaintiff had neither been ascertained, nor could be ascertained until a settlement of his mother’s succession had been had, he must prove this settlement, and then sue for a partition.</p>

<p>Construing the statute of twenty-eighth February, 1870, in connection with section 3990 of' the Revised Statutes, the sense resulting from both is, that section 3990 of the Revised Statutes does not include within its general sweep the acts of the General Assembly during the session of 1870. On the contrary, the acts and joint resolutions of the General Assembly passed during the session of 1870 should take precedence of the act adopting the Revised Statutes, and bo held as repealing in whole or in part any of those revised statutes that might be found to be in opposition or in conflict with the enactments or joint resolutions of the session of 1870.</p>

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

<p>' A release in a case of provisional seizure can not be considered as an ordinary conventional obligation to which may be applied the principle that: As one binds himself, so shall be be bound. It is no valid commutative contract between the plaintiff and the surety, defendant on the bond. As a public officer,' the sheriff has not the authority, nor is it bis duty, to mate a contract of this character in which there can exist no reciprocal obligation.</p>

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

<p>APPEAL from the Parish Court, parish of Teusas. Oordill, J.</p>

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

<p>Tlie law reprobates a multiplicity of actions and aims at protecting parties against the-annoyance of repeated lawsuits in regard to the same subject matter.</p> <p>“If one demand less than is due him, and do not amend his petition in order to augment his-demand, he shall lose the overplus.” C. P. art. 156.</p>

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

<p>Where an exception to tlie suit was filed on the ground that the heir had been put in possession of the property and the administratrix could not bo sued, and where,.on said plea, the exception as to tho administratrix was sustained, and the case was tried as to the heir •> Hold — That the suit should have boon dismissed.</p> <p>The Second District Court of tho parish of Orleans has only probate jurisdiction, and had not jurisdiction to try tho suit against tho heir who had been put in possession of the property of the succession.</p> <p>Where, on plaintiff’s appeal, tho judgment of the courts qua was reversed and plaintiffs suit dismissed;</p> <p>Held — On rehearing: That plaintiff is to pay costs in the court a qua, and appellee the costs of apjieal.</p>

<p>Whore a rulo was taken on tlio holder of a judicial mortgage and on the recorder of mortgages to show cause why said judicial mortgage should not be¿cancelod and erased, on the ground that the notes on which the judgment was founded were given in part payment of the price of a slave;</p> <p>Held_That the judgment was db initio void. The court was withoutjpower to render it, the notes were illegal and invalid, and the judgment in which they merged necessarily so* likewise.</p>

<p>APPLICATION for a Mandamus on Saucier, Judge of the Sixth District Court, parish of Orleans.</p>

<p>A party should not "be listened to, when urging technical irregularities in the proceedings to which he was himseli a party, in order that he should enrich himself at the expense of others.</p>

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

<p>Damages for a suit, unless malice is shown, can not be recovered.</p> <p>There is no ground for a call in warranty in a case of trespass, and lienee there is no right of action against warrantors.</p>

<p>. A rule against an executor or a succession can no* bo taken after tlie succession has been closed and the executor has been discharged, nor can an order to sell succession property be granted after the heirs have been in possession subsequently to a partition among themselves.</p>

<p>Where the vendee was putin possession in Germany of a certain quantity of wine which he had bought in that country and that possession continued across the Atlantic;</p> <p>Held — That the vendor’s privilege could not be stretched so far as to extend from the banks-of the Rhine to the banks of the Mississippi, and be made to last during a voyage from one continent to the other.</p> <p>A consignee’s privilege can not prevail against the seizure made by judgment creditors, if not recorded prior to the seizure.</p>

<p>Whore the defendant was sued for two mortgage notes left with him on deposit, and required' to restore them or pay the fall amount thereof;</p> <p>Held — That defendant disclaiming any ownership of said notes and having no personal interest in them, has no defense to set up for himself, and has no right to plead one for a third party and ash the court to pass upon a question that would not he binding if decided for or against that person.</p>

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

<p>A record is not defective because certain documents were omitted wbicb had been offered to prove a fact admited in said record. There was therefore no necessity to copy them in the transcript.</p> <p>Where the motion to dismiss the appeal is on the grounds that the sheriff who is party to the-suit is not a party to the appeal, and that the sureties to the injunction bond are notparties to the appeal as they did not sign the appeal bond;</p> <p>Hold — That these grounds are not valid, because the ap; eal having been taken by motion in open court at the time when the judgment was rendered, all who are not appellants are appellees in the case.</p> <p>Where a piece of property was bought at a tax sale, the deed for it made out by the sheriff and duly recorded in the office of the recorder of the parish, and said property was-seized by a creditor of its former owners, who treated tlie tax sale as an absolute nullity, and who, being injoined by said purchaser, proposed in the injunction suit to attack the title by showing irregularities and defects in the proceedings preceding the tax sale;-</p> <p>.Held — That on its face the title of the purchaser is regular, that he is in possession under a recorded title, that by a special provision of the constitution, article 118, the deed of sale is prvma facie evidence as to the title, that it is declared valid by section 59 of the-act of 1872, Ho. 42, and that for these reasons the injunction must be maintained.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. Mawlcins, J.</p>

<p>Under tlie intrusion into office act, it does not appear that authority was conferred upon the courts to go beyond an investigation of the titles set up by the contestants for the office in controversy.</p> <p>A review of all the cases adjudicated by this court under the intrusion act will show, that, in every instance, not one will be found which depended for its solution upon the inquiry as to which of the contestants obtained the larger number of votes.</p> <p>Tho adjustment and compilation of election returns, determining tho number of legal and illegal votes cast for each candidate, declaring the result of an election and iurnishing the successful candidate with the proper certificate, in short superintending and controlling all the details of an election belong properly to the political department of the Government.</p> <p>It is only under tho statutory provision of 1835, that courts can proceed, in relation to parish offices, and through tho agency of juries, to supervise the counting of votes, correct calculations, purge the polls of illegal votes, ascertain and establish majorities. It is confined to cases where no commissions have issued.</p> <p>‘The subject matter of proceedings under the intrusion act is widely different from that or the statute of 183 >. In cases under the intrusion law, courts can not go beyond commissions legally issued.</p> <p>Ko authority is delegated to the judiciary under the intrusion act, to discuss, modify or abolish tho official returns of tho regular State returning officers. Such a right can not be assumed as an implied power.</p> <p>"With the character of laws as being odious, or entitled to favor, courts have not to deal.</p> <p>This court will take judicial cognizanco of the fact that on the fourth day of December, 1872, tho date of the "Warmoth commission to Knoblock, the official returns of the election had not been promulgated, and therefore that the issuing of the commission was a nullity.</p>

<p>'The defendant having been returned hy the legal returning hoard of the State as elected judge of the Fourth District Court of hfew Orleans, and upon that return the Acting Governor having issued a commission to him according to law, it can not he said that one holding an office under such a commission has intruded into, or unlawfully holds the office.</p> <p>hfo statute conferring upon the courts the power to try cases of contested elections or title to office, authorizes them to revise the action of the returning hoard.</p> <p>'The only power the courts have undor the intrusion into office law is to decide if one or neither of the contestants has a legal title to the office, and the commission of each is tho evidence of that fact.</p>

<p>Whore an ex parte statement of account, annexed to the petition, was allowed to be received in evidence, and the books of the partnership, which had been kept by tlie plaintiff himself and offered by the defendant, were excluded: Held — That the court a qua erred.</p> <p>'The court below also erred in compelling the defendant, who had pleaded the general issue, to plead payment before permitting him to introduce proof that he had settled in full with the plaintiff. Said plaintiff having alleged a final settlement, it was competent lor the defendant to prove what that settlement was.</p> <p>The plaintiff having alleged a final settlement, can not go behind it and demand the investigation and adjustment of the affairs of the partnership. Besides, it could not be done in this suit, which is for a specific sum.</p>

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

<p>Where the allegations and the prayer of the petition and the evidence adduced make it clear that the action is predicated upon a contract, the plaintiff can not recover on a quantum meruit.</p> <p>Hi this case the contract relied on is in flagrant violation of the law, Statute of 1808, thirty-first of March.</p> <p>If, in a suit upon a contract, the party fail to prove the contract, but prove without objection the value of services rendered, a judgment might be rendered upon a quantum meruit.</p> <p>But when the contract is proved, it is the law between the parties, and the parties must succeed or fail according to the terms of that contract. The court is not at liberty to substitute a/nother, based upon the presumed assont of the parties.</p> <p>The plaintiff’s claim is inseparably connected with an unlawful contract, and must fall with it.</p>

<p>"Whore the defendant contended that tlie object of the original incorporators was to unite with the African Methodist Episcopal Cnurch of the United States and be guided in the administration of its affairs by the doctrines and discipline of the general organization; and that, in accordance with said discipline, he was appointed by the Bishop of Louisiana pastor of St. James Chapel, and that he could not be discharged or dismissed from said position by the trustees or incorporators ,*</p> <p>Held — That under the charter of the corporation this right is expressly conferred upon the incorporators, and that, in the absence of any provision on the subject, they would have possessod the power, because it is one of the incidents of their owners!lip of the St. James Chapel.</p> <p>■Courts of justice in this State sit to enforce civil obligations only, and never attempt to exercise jurisdiction over those of a spiritual character.</p>

<p>The penalty for not producing books and papers in obedience to a subpenct chuces tecum% is not imprisonment for contempt. The consequence of the disobedience is, that the party who has obtained the subpena has the right to ask that the facts which he states in his affidavit for the subpena be taken as proved.</p> <p>"Whore the books called for were produced on the day of the trial, and the defondant did not then move for a continuance in order to allow him time to examine them, but simply objected to going to trial;</p> <p>.Held — That this was not sufficient. He should at least have suggested to the court that he was deprived of some right, or that an examination of the books was necessary to enable him to make out his case.</p> <p>Tho facts of this case must be taken as established by the accounts rendered by the defendant Purcell, which clearly show his indebtedness m solido with his security.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.</p>

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

<p>The benefit of the homestead act can be pleaded in bar of the foreclosure of a conventional mortgage given on the homestead subsequent to the enactment of the law.</p> <p>It can not be rightfully contended that, in con enting to the mortgage, the plaintiff in injunction waived the benefit of this exemption, and thatjjit amounted to a renunciation of the right. Ko one is presumed to waive a legal right, and every contract is supposed to be made in reference to the law that governs it. In this case there was no express renunciation or waiver.</p>

<p>Where a wife had obtained a judgment against her husband, under which his property had been sold and purchased by h 9c;</p> <p>Hold — That after her purchase the judgment creditors of her husband could seize the same property as his, and that the wife had not the right to injoin the sale thereof, inasmuch. . as the sale to her was not recorded in the recorder’s office.</p>

<p>APPEAL from the Fourth District Court, parish of Orleans. Théard, J.</p> <p>On Motion to Dismiss the Appeal.</p>

<p>APPEAL from tbe Seventh District Court, parish of Orleans. Oollens, J.</p> <p>On Motion to Dismiss the Appeal.</p>

<p>Rule for a mandamus on Paul Theard, Judge of the Fourth District Court, parish of Orleans, in the case of E. J. Gay & Co. v. Eaton & Barstow — B. Bihen and als. intervening.</p>

<p>Where defendant was sued for half the value of a wall, which said defendant made a wall in-common by using it to support his buildings;</p> <p>Held — That he had no interest to question plaintiff’s title further than to ascertain whether the claim demanded could safely be paid to the claimant.</p> <p>Where evidence was admitted because it was confirmatory and explanatory of the title filed in answer to the prayer for oyer, and did not constitute a new and independent title ^</p> <p>Held — That the bill of exceptions thereto was not well taken.</p>

<p>Where the plaintiff sued for the value of Ms services in transferring from the other district conrts-and docketing in the Superior District Court some fifteen hundred tax suits, and obtained judgment in his favor for the sum of fifty cents per suit on all of said suits;</p> <p>Held — That the extra compensation allowed the clerk in this instance was not authorized hy law.</p>

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

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

<p>Where in the motion to appoint a curator ad hoc to the defendant, who is a non-resident, it is simply stated that he is absent and not represented, and where said defendant has not been proceeded against by attachmen-, and it has not been alleged or proved that he has or had, when the suit was instituted, any property within the jurisdiction of the court before whom the suit was brought;</p> <p>Held — That this is not sufficient, and that the suit can not be maintained.</p> <p>A surety on an arrest bond can not escape his responsibility, because his principal has put himself beyond the jurisdiction of the court.</p> <p>Whore a final judgment was ren ered, on the twelfth of April, 1869, against Juilliard, in the case of Juilliard v. Rogay, in which Juilliard had caused Rogay to be arrested on the ground of his departing permanently from the State without leaving therein sufficient property to satisfy the demand of his creditor ;</p> <p>Held — That the prescription of one year can not be opposed by the surety on Juilliard’s arrest bond against a suit instituted by Rogay on the fourth of December, 1869, to recover damages for his unlawful arrest in November, 1865, because his right of action did not accrue until the final judgment in his favor was rendered. Besides, it is not an action arising ex delietu. It is a suit upon a bond. It is an obligation entered into by the signers thereof, and can, therefore, be considered only as an obligation to be prescribed by the laws regulating the prescription of obligations, and not by the laws regulating the prescription of actions for damages arising from the commission of offenses or quasi offenses.</p> <p>Where it was objected to the claim for damages that the arrest of plaintiff on the ground that he was departing permanently from the State without leaving therein sufficient property to satisfy the demand against him, was not done with malice, but was the exercise of a mere legal right prosecuted in the form authorized by law, and, therefore, that the defendant could not be responsible on damages,*</p> <p>Held — That this objection is not valid.</p>

<p>Where the occasion of the discharge of the plaintiff was a quarrel between said plaintiff and defendant commenced by defendant, during which insulting expressions were used by both;</p> <p>Held — That, as the employer was in fault, he should not be permitted to discharge his employe without paying him for the whole term for which he was employed.</p>

<p>■Where the State Assessors have delivered to the Auditor the assessment roll and received in full their compensation for their services, the contract between them and the State for making the assessment is completely executed. The obligation of the State to pay them is discharged, and it can not afterwards be revived by any use the Auditor might make of said roll.</p>

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

<p>"Where, on execution being issued in this case, Battle, Thorn & Co. were made garnishees by addressing the citation to said firm and serving the same on BC. A. Battle, a member thereof, who answered the interrogatories under oath, but signed the name of the firm to* the answers, instead of signing his own;</p> <p>Held — That the answers were sufficient and that the interrogatories could not be taken for confessed. He answered in the precise name in which ho was cited. If the plaintiff wished him to sign his individual name to the sworn papers, the citation should have been addressed in that name.</p> <p>The answers were under oath, and could, if untrue, subject the garnishee, H. A. Battle, to a prosecution for perjury. This is the test.</p>

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

<p>Where there is community between husband and wife, the husband is the head of it, and is responsible for the debts of the community. The death of his wife docs not deprive him of the right to make bona fide settlements for the payments of the debts of the community, nor do such settlements novate the debts as to the community. The community-property is liable for the community debts.</p>

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

<p>APPEAL from the Seventh District Court, parish of Orleans. Collens, J.</p> <p>On Motion to Dismiss.</p>

<p>A suit by tbe executor of a succession to compel the heirs of said succession who have been put in possession thereof, to pay the commission claimed by said executor, is properly brought before another court than the Second District Court, which has only probate jurisdiction.</p> <p>Where the exception was, that plaintiff, having claimed in her first petition only one-half of the commission allowed by law to executors, could not, in a supplemental one, claim the whole commission;</p> <p>Hold — That she had the right to amend her pleadings, and that the exception could not be maintained.</p> <p>The law gives to the executor a compensation for his services, and the heirs can not deprive him of it by causing themselves to be put in possession after tlie executor has accepted the trust and qualified.</p> <p>Whore it was contended by the heirs that the executor’s claim for his commission had lapsed, because it was not demanded when the succession was turned over to them;</p> <p>Held- -That if he did renounce his claim, liis renunciation should have been express. It can not be inferred.</p> <p>Whore the heirs contended that they could not be called upon to pay plaintiff’s claim, because the law provides that the commissions of executors are based on an inventory, and no inventory was taken in this case, wherefore there are no means by which the amount due to the plaintiff can be ascertained;</p> <p>Hold — That the heirs can not by their own act prevent the executors from taking an inventory, and then refuse to pay them their commission. The executors should be allowed to show the value of the succession aliimde.</p> <p>Where letters testamentary have been issued by a court of competent jurisdiction to two executors, on their complying with the requisites of the law, and one of them takes the oath well and faithfully to perform his duties, as executor, and the other does not, the one who has not taken the oath is presumed to have renounced the trust, and the one who has qualified is entitled to the entire commission.</p>

<p>APPEAL from the Fourth District Court, parish of Orleans. Theard, J.</p> <p>On Motion to Dismiss the Appeal.</p>

<p>APPLICATION for a rule nisi against Judge Presc.ott, parish, court of Plaquemines.</p>

<p>Where a note was protested through error on ono day, and was paid early on the next day, and, although there was carelessness on the part of the bank, no actual injury or damage was proved to have been caused thereby to the plaintiff who was the drawer of the note;</p> <p>Hold — -That the verdict and judgment ior ñve hundred dollars in the court a qua iu favor of plaintiff was clearly erroneous.</p>

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

<p>Where, instead of procuring and recording according to law, certified copies of judgments as directed by city ordinance Ho. 1630, administration series, the plaintiff followed the provisions in section 12 of act Ho. 73 of 1872, by which a special mode was provided for recording the taxes due to the city without any cost to the city;</p> <p>Held — That if the provisions of this act are resorted to in preparing and inscribing the tax judgments to preserve the lien and mortgage in favor of the city, its provisions in regard to compensation must be enforced. It is only 'by the terms of this law that the lists or registers prepared by the plaintiff can have effect as a legal inscription. But this inscription was to be made without cost to the city. Outside of this law the saddregisters or inscriptions of judgments, as made by plaintiff,’ aré without effect. The inscriptions are not made in the boohs of privileges and mortgages required by the general law on the subject.</p>

<p>Whoro tlie heirs of tlie deceased liad accepted the succession unconditionally and the evidence showed that they wore in possession of tlie property of die succession;</p> <p>Held — That the suit was improperly brought against them in tlie probate court; it should have been instituted in the district court, the exception to the jurisdiction is well founded.</p>

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

<p>APPEAL from the Fifth^District Court, parish of Orleans. Oullomt J.</p>

<p>Where, on tlie fourth of April, 1870, Campbell was elected by the Council of the city of New Orleans, reoorder of the Sixth District, the term of his appointment being for two years, and expiring, therefore, on the fourth of April, 1872, and whore Michel was appointed in his place, by the Governor, on the twentieth of September, 1872, and on the twenty-fourth of September, 1872, the Council again elected Campbell;</p> <p>Held — That, in a legal sense, the office was vacant on the fourth oí April, 1872, and Campbell was only a tenant thereof at the will of the appointing power, and that, under the circumstances of the case, the appointing power was vested in the Governor, by the 1577th section of the R. S., and not in the Council of the city, of Now Orleans. The appointment being made by the Governor, there was no vacancy, and tlio subsequent election by the Council of another person, was the filling of a place which was not empty.</p>

<p>The clerks of courts in the city of New Orleans do not come within the provisions of section 52 of act No. 42 of the General Assembly of 1871 in relation to the assessment and collection of taxes.</p>

<p>A contract made prior to the adoption of the constitution of Louisiana, 1868, can not bo affected. by the provision contained in section 127 of that constitution. If the contract was valid then, it is clear that this provision not only impairs but absolutely destroys its obligation within the meaning of the tenth section of the first article of the constitution of the United States.</p> <p>Any judgment of a State court resting on such enactment of a State constitution, after the date of the contract, must bo reversed in tbe Supreme Court of the United States.</p> <p>The reinscription of a mortgage on the granting of an extension of time for the payment of a note, without any consideration for such extension, or change in any other term or condition of the contract, can not be beld to be an agreement requiring a stamp.</p>

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

<p>from the Fifth District Court, Parish of Orleans. Iiecmmont, J.</p>

<p>Tlie civil government of tlie city of New Orleans can not be permitted to deny the rights derived by the relators in this case from their contract with said city on the ground that it was under military authority at the time, when, after the cessation of that military authority, those rights have been, in part, frequently recognized and ratified by its ordinances. That contract was an entirety. The city had no right to sever its obligations, so as to ratify one part of the contract and reject another.</p> <p>The city, having for a number of years received without objection the consideration of the contract, should not be heard when disputing the contract itself.</p> <p>The plea that the parties had forfeited the right of way by voluntarily abandoning the construction of railroads in certain streets, and by failing to construct said roads within the time limited by the contract, is not made out, when proved that they were prohibited to do the work by an injunction from a third party; and because the injunction taken in September, 1866, was not dissolved before June, 1872, it is not to be inferred that it was kept so long in force by the wish and connivance of the relators, when the city was a party to the injunction suit, and having the same right to push the case that the relators had, did not do so.</p> <p>The city surveyor was bound, when called upon, to furnish the requisite lines and levels for the building of the road — a ministerial duty which was imposed upon him by the sixth section of the original ordinance authorizing the construction of the road.</p>

<p>Tlie action against the sureties of a sheriff for money collected by him and not accounted for to the party entitled to it, is barred by the prescription of two years. Revised Statutes of 1870, section 2816.</p> <p>The law has nob given the summary remedy by rule against sureties on a sheriff’s bond, and where the rule was made absolute, and in a subsequent action of nullity, said judgment, was set aside on the ground that no citation had been served on the parties, the prescription of two years was not interrupted by the instituting of such a proceeding against the parties</p>

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

<p>This is a controversy for the office of sheriff of the parish of Pointe Coupee. The suit is-brought in plaintiff’s own name. He mistook his remedy. The proceeding should have beenunderthe “Intrusion Act.” It was not authorized by act Ho. 41, of the acts of 1873.</p>

<p>Tlie garnishee is a stakeholder, and on his answers the judgment should be for or against him. He has no interest in the contest between tlie creditor and debtor. But where the object'of a motion to strike out part of the answers of the garnishee and of the traverse of the answers, is to attack the settlement made between the garnishee and the judgment debtor, the garnishee must be permitted to explain that he holds the thing attempted to be seized, by virtue of a title acquired by a settlement between himself and his debtor.</p> <p>The plaintiff can not be allowed to change his garnishment process into a revocatory action. His remedy is by a direct action.</p> <p>'The garnishee can not be divested of his possession and alleged ownership through any process which would deprive him of explanations and defenses allowable in a direct action by the judgment debtor to recover liis property.</p>

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

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

<p>APPEAL from the Eleventh Judicial District Court, parish of Red River. Trimble, J. Criminal case.</p>

<p>APPEAL from the Sixth District Court, parish of Orleans. Oooleyr J. Trial by jury.</p>

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

<p>APPEAL from the Seventh District Court, parish of Orleans. Gollens, J. Trial by jury.</p>

<p>APPEAL from the Eirst District Court, parish of Orleans. Abell, J. Criminal case.</p>

<p>A writ of prohibition will only be issued in aid of the appellate jurisdiction of this court. It is not necessary, where, on the judgment being rendered in the court below, the case can be brought before this court for review, and the question of jurisdiction he decided.</p>

<p>Where the action is to make a telegraph company responsible for loss on goods, resulting-from error in a telegraphic message, the prescription of one year does not apply. Thi^ action arises ex contractu, and not ex delicto.</p> <p>Where it is contended that the defendants are not the first carrier or contractor, and that it is not proved that the error in the transmission occurred on defendants’ line, on whose printed blanks there is express provision for non-liability for the default of other companies;</p> <p>Held — That, whether first carrier, or not, it was peculiarly within their power, and was their duty, to make tho proof here suggested, if necessary.</p> <p>Defendants were engaged in the business of transmitting messages to and from various-points in the country, and found it to their interest, if not a necessity, to effect such mutual arrangements with other companies, without any consultation with the parties who might use tho telegraph. It was in their power to show that the message delivered by them to plaintiff was precisely the same one received by them from another line, and thus throw the responsibility upon the other company, in case it should be held tobe a correct legal principle, that one of two or more connecting companies may thus be relieved from liability.</p> <p>The proposition that tho defendants are liable, if at all, only in case the message is repeated as contained in the printed conditions, can be invoked only against tho sender of the-message, if against any. The receiver can be guided or informed solely by what is-delivered to him, and has no opportunity to agree upon any such condition before delivery.</p>

<p>Where the claim of plaintiff was fbr about §478, principal and interest, at the institution of the suit, and was alleged to be the hire paid in advance, under a charter party, for a steamboat, which was lost; and where the defendant reconvened, claiming §10,200; the value of the boat;</p> <p>Held — That the motion to dismiss the appeal for want of jurisdiction, must prevail. The real matter in dispute is less than §500. The char er party is nob the matter in dispute. The demand, it is true, grows out of the charter party, but it is simply to recover back a certain sum paid under the provisions of the charter party; and the right to recover hack, as alleged, springs from a canse outside of the charter party, and the existence, or validity, or the enforcement, of the charter party, is not involved in plaintiff’s demand.</p> <p>Besides, no appeal has been taken in relation to the reeonventional demand.</p>

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

<p>All the questions in this suit were passed upon and settled in the case of the heirs of Escott a. Municipality No. 3.</p>

<p>As a sovereign, tbe United States is bound by the limitations of the federal constitution, and, of course, it can not appoint a judge to a State court, much less create a State court and appoint the judge to administer it.</p> <p>Tbe President, representing the United States in the exercise of its sovereign powers, could not create a court to decide any civil controversy.</p> <p>This could only be done by Congress under the limitations of the constitution.</p> <p>But, in the exercise of war powers, the United States is not restrained by the limitations which tbe constitution imposes on it as sovereign.</p> <p>Its business as a warrior is to conquer, to restore peace and to maintain the government, and. it can use any means necessary to the end, regardless of all restraints, except the law of nations.</p> <p>"When the United States captured the city of BTew Orleans in 1862, the civil government, existing under the Confederacy, ceased to have authority. As an incident of war powers, tho President liad the right to establish civil government, to create courts to protect the lives and tbe property of the people.</p> <p>The General commanding the military forces of the United States which captured the city, had the right to establish the provisional court called tbe Provost Court, which rendered the judgment against the plaintiff in this case. That court had authority, temporarily, to decide all civil causes.</p> <p>The plaintiff, who paid under protest a judgment rendered by a competent court, established by t^e United States in the exercise of its war powers after the capture of Úew Orleans, has no cause of action against its judgment creditor for the money paid in pursuance of the decree of that court, and that judgment is validated by article 149 of the constitution of this State.</p>

<p>The syllabus in the following case, the city of New Orleans v. Crescent Mutual Insurance Company, No. 4485, is applicable to the present one; the two cases being identical.</p>

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

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

<p>Por certain reasons expressed in tlie statute of 1871, p. 126 of acts of 1871, prescribing the-duties of tax collectors, tbe Governor is authorized to remove a tax collector from office. The relator in this case having a commission bearing date a month later than the commission of Yoist, the presumption is that the Governor had cause for removal of the-latter, which was effected by the appointment of Dayries.</p>

<p>Where Effingham Lawrence mortgaged half of a plantation to secure some promissory notes, said mortgage being in favor of Casanave, or any other future holder of said notes, and the mortgaged property was subsequently transferred to Packard et als., who assumed to pay the said notes as part of the price, and the notes fell into the hands of Lee, who sued out an order of seizure and sale against the property, which order was injoined by Packard et als.;</p> <p>Held — That on the trial of the injunction, the court a qua did not err, in permitting Lee to introduce the authentic evidence upon which the order of seizure and sale was granted; and also, that the court did not err, in refusing to allow Packard et als. to introduce in evidence a letter of Effingham Lawrence, the mortgageor, on the ground of irrelevancy.</p> <p>'The purchaser of mortgaged property with the pact de non aliénemelo, occupies no bettor position than the mortgageor, and can not injoin the executory proceedings, or sot up any defense which the latter could not.</p> <p>Ho sale or partition of mortgaged premises can defeat the mortgage previously existing thereon.</p> <p>'The purchase of the property by Packard et als., the stipulations and arguments between them and the mortgageor, and the partition of the property among themselves, could not affect the rights of Lee, the holder of the mortgage notes.</p> <p>The defendants, Packard ot als., in partitioning the property among themselves and making partial jjaymoiits, could not limit the operation of the mortgage upon the whole, because the mortgage was an indivisible obligation.</p>

<p>‘Where the exception was that the suit is premature, because it is an effort to make the courts declare, in advance, that the defendant, after the year 1875, shall not be permitted to exercise the privileges of a corporation under an act extending its existence until 1895, and alleged to be unconstitutional; that its present exercise of privileges is not-alleged to be illegal; and that the suit, therefore, can not be maintained, if at all, until, the alleged date of the expiration of its present privileges in 1875;</p> <p>Held — That said exception is well taken.</p> <p>This court is not authorized to declare theoretically’ an act of a co-ordinate branch of the' government unconstitutional, when the act complained of is not only not alleged to be interfering with the exercise of any person’s rights, but not even in operation.</p>

<p>Tlie amendment of tlie constitution of the State, ratified on the seventh of November, 1870, which limits the State debt to $25,000,000, is not violated by the law creating the Levee Company. The bonds of the State are not out, nor is any one its creditor, nor can any one become its creditor, for any sum contracted for by the Levee Company.</p> <p>Itis not for the court, in this case, to determine that the payments demanded are, or are not, without a valid consideration. It has only to decide whether the acts relating to the Levee Board are constitutional or not.</p> <p>The act No. 27,1871, which ratifies and confirms the contract between the Levee Company and the Governor, is, after all, an act of the Legislature, and is valid unless conflicting with the constitution of the State, and this has not been shown.</p> <p>The constructing of levees for the protection of lands subject to overflows is not made at the expense of the State treasury. That expense is met by a general tax on all the taxable property of the people of the State. The Legislature had the power to impose that tax and to appropriate it as they saw fit.^ They create no debt which goes beyoiid the constitutional limitation, and in the acts imerring to the general levee tax have violated no provision of the constitution.</p>

<p>Where the defendant bought certain slaves, wlio, by the will of ono of their former owners, were to be emancipated at a future time, but were not so emancipated by the defendant, who made no efforts to surmount the obstacles that were in the way of their emancipation, but who was content to retain them in the condition of slavery, and to avail themselves of their labor until they were sot free by tlie Government of tlie United States;</p> <p>Held — That said defendant has no legal ground to refuse to pay the promissory note which he gave for the purchase of said slaves.</p>

<p>"When tlie judge a quo liad already charged the jury that “ they must be satisfied that the prisoner knew the certificates he published as true were fal^e at the time of passing them, and that, if they had any reasonable doubt of his guilt, they must acquit him;”</p> <p>Held — That this was substantially the charge asked for by defendant’s counsel, though not identical in language, and that it met all the requirements of the law.</p> <p>Where the judge a quo refused to charge the jury, as requested, that “the fact that defendant had offered no evidence is in no way to be taken as an admission of guilt,”'instead ol which tho judge charged “that all circumstances against tho prisoner within his power to explain, which he refused to do, were to be taken and weighed by the jury as circumstances against the prisoner;”</p> <p>Held — That this was an error. The accused is justified in relying, if he chooses, upon the insufficiency of the evidence adduced by the prosecution, and his so doing should not be taken as an acknowledgment by him of his guilt.</p> <p>Section 10 of act 73 oí 1872 does not so far abrogate section 833, Revised Statutes of 1870, that a person may not be indicted under tho iormer, as was done in this case, tor “publishing as true, false, forged and counterfeited certificates of a public officer,” etc. Both laws are easily construed so as to give effect to each, and will support an indictment, if properly drawn up under each respectively.</p> <p>'The indictment properly sets forth the offense of which the prisoner is accused, as described in section 833, Revised Statutes of 1870, under which said indictment is 'drawn, and is not defective in substance. It follows substantially, if not literally, tho language of said section.</p>

<p>This action, as its character appears from the petition, is a suit for a tort or trespass ; and’ the defendant is sought to be made liable in solido as a co-trespasser with another person, with whose trespass, if committed, he is in no manner connected.</p> <p>If such an action would lie against the defendant, it is certainly barred by the prescription-of one year, which is pleaded.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. Hcm-Icins, J.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. Ham-Terns, J.</p>

<p>The seizure of A’s property under a suit against B, is a quasi offense, and the action based upon an obligation springing from a quasi offense, is prescribed by one year.</p> <p>Whore it was contended that even if the source of the obligation incurred by the defendant be conceded to have been a quasi offense, such as the wrongful attachment of the plaintiff ’s property, still the prescription should not begin to run until the end of the wrongful act, for until then the amount of the damages done by the continuous attachment could not have been ascertained ¡</p> <p>Held — That if there is good reason why the law regulating prescriptions in such cases ought to be as is contended, yet that this court has no right to alter the positive provisions of the code which declares that prescription runs from the date on which the injury or damage was sustained.</p> <p>But it is incumbent upon the party pleading prescription to show what portion of the dam-ages proved occurred anterior to the year preceding the institution of the suit, or in other words, to establish what part of the plaintiff’s demand is prescribed.</p> <p>In fixing the rents due for the plantation seized, the highest estimate which the evidence will-permit must be adopted, as the property was tortiously taken from the possession of the plaintiff.</p>

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

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

<p>If it be conceded that a contract was violated willfully, or through carelessness, still the measure of damages would be the injury inflicted upon the plaintiff, where there is no penal clause in the contract.</p> <p>Damages arising from the presumable profits of a speculation that was never made, are too uncertain for a court of justice to award.</p>

<p>The motion to dismiss the appeal must prevail, where the appellant has lost his right to thesuspensive appeal by failing to furnish the required bond within the time prescribed by law, and where the amount of bond not having been fixed by the judge, he cannot avail1 himself of a devolutive appeal.</p>

<p>Parties to a marriage contract in Louisiana can agree therein, that the property they may acquire by succession or donation during marriage, shall fall into the community of acquets and gains, and the father and mother of the parties to the marriage can give, for the benefit of said parties, the whole or a part of the property they may have on the day of their decease.</p> <p>Parties may stipulate as they like, provided the thing stipulated is not in contravention of a prohibitory law. Any stipulation, therefore, in a marriage contract, which is not¿n violation of a prohibitory law, is binding upon the contracting parties, as long as' the contract lasts.</p> <p>All stipulations which the law permits to be made in marriage contracts may be altered by the husband and wife jointly before the celebration of the marriage, but not afterwards. As they bind themselves at the time of the marriage, so they remain bound so long as the marriage lasts.</p> <p>■Whether the stipulations of a marriage contract can be subsequently changed or not, it is clear that the changing of said contract would be, in reality, a new one, and that, as such, it would have to be entered into by all those who were parties to the first contract, and that the stipulations to that effect should be positively stated.</p> <p>The fruits of community property belong to the community and are liable to seizure in payment of a community debt.</p> <p>Plaintiffs having pleaded the prescription of one year against the defendants’ answer and pretensions;</p> <p>Held — That it does not appear that this case is governed by any of the provisions of the article of the code regulating said prescription.</p>

<p>Nothing is to be found in the statutes of this State relative to adoption, which, being construed! with the various articles of the Civil Code on the subject of tutorship, inclines this court to believe that the Legislature, in permitting the adoption of children, had any intention to abridge tho right of a natural tutor to the personal care and control of his minor child! or to the administration of the child’s property.</p>

<p>The vendor’s privilege attaches to the improvements put upon lots by the vendor, where the ’ vendor is not opposed by any one entitled to or claiming a special privilege upon the buildings.</p> <p>The objection that a widow claiming the benefit of the one thousand dollar reservation has lost her right to it by failing to register her claim as a privilege is without force. This provision for destitute widows and orphans is not to be regarded strictly as a privilege, and the recording of it is not necessary for its preservation.</p> <p>This claim must be paid in preference to all other debts, except for the vendor’s privilege and expenses incurred in selling the property, and where it conflicts with the lessor’s privilege the latter must yield.</p>

<p>APPEAL from the Eighth District Court, parish of Orleans. Oooley, J., acting in the absence of 3. O. Dibble, judge of said court.</p>

<p>Where the question was as to the validity of the transfer of stock, on the ground that it was not made in accordance with the formalities required by the charter of the company;</p> <p>Held — That if the consent of the directors to the transfer was not obtained in a formal convocation of the board, yet the assent of a majority of the directors appeared to have been given and in the manner that transfers of stock were frequently made. This is sufficient.</p>

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

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

<p>Tlio Straight University is not a; public institution of learning in contemplation of article 140 of the Stato constitution.</p> <p>A public institution of learning would, be one which is controlled by the Stato through its agents, and in which the Stato would have a paramount interest and right of property, and which would depend upon the State for its existence.</p> <p>The Straight University was incorporated under the general statutes of the State as a private corporation. It is controlled by a board of trustees, who are only responsible for their management to certain private individuals. The State, through its officers or otherwise, exercises no control or direction over the university, nor has it any voice as to the manner in which it shall be conducted. It is not therefore a public institution of learning, and the constitutional objection to the appropriation made by the Legislature in its favor-must prevail.</p>

<p>As the forfeiture of legal rights is not favored by the courts, the terms or conditions upon which a forfeiture shall happen must be strictly complied with.</p> <p>Where an insurance company notified the insured that a forfeiture would not be claimed for non-payment of assessments, till thirty days after the publication of a notice of the call, for eight consecutive days, the said company should have made the publication and • given the delay, because the insured had the right to expect it, and is presumed to have acted upon it.</p>

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

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

<p>APPEAL from the Second District Court, parish of Orleans. Fuvig-neaud, J.</p>

<p>The circumstance that a woman is tlie concubine of her male partner, does not deprive lier of an action for the settlement of affairs and a participation in profits derived from capital and labor which she contributed, though much of the property claimed is real estate standing in the copartner’s name alone, and had never stood in her’s.</p> <p>'If this is good law in favor of the concubine, it is certainly good law against her, particularly when it is invoked to undo a fraud, vindicate the rights of a lawful wife, and enforce laws made to protect the marriage tie and public morals.</p> <p>’ The fact of the social relations which Mary B. Caldwell, one of the defendants in this case, has chosen to assume, cannot deprive her oí what justly belongs to her. She should be allowed to place her capital and industry against the capital and industry of William Malady, her paramour and copartner, and the property purchased during the time they have been living and working together, should be declared property in which they have a joint interest; one half of it should be decreed to be the property of William Malady, and said half to belong to the community which existed between himself and his lawful wife, Mary Malady.</p>

<p>The attempt to make the seller and skipper responsible for tke loss of (be goods skipped must fail, wkere ke kad no instructions or authority to insure said goods, and tke evidence does not show that this was incumbent upon him by tke custom at tke place of shipment*</p>

<p>This case is hold by the court to be governed by the one of Campbell v. the City of New Orleans, 12 An. 34. There is but one difference in point of fact. Campbell paid his taxes without objection or protest, and sought only to recover the amount back afterithadbeen decided in a controversy between another party and the city, that the ordinance under which the assessment was made was unconstitulional. In the present case, the plaintiffs, before making their last payment for taxes, expressly stipulated with the City Treasurer, to whom their money was paid, that it should be returned in case there should be ren•dered a decision in a certain sense, by the court, in another pending controversy, But they paid, not because they wore compelled to pay, but because they chose to pay, and, on the contrary, did not resist payment, as was done in the case upon the decision of which they -were content to rest their case.</p> <p>’The sti illation by plaintiffs with the City Treasurer amounted to nothing, for it was not shown that he had authority to make the contract.</p> <p>'There was an unquestionable, natural obligation on the part of plaintiffs to bear their quota of the expenses of carrying on the municipal government of the city of New Orleans. The plaintiffs have enjoyed all the advantages and protection of that municipal government. To return to them the money which they have paid in consideration of these advantages, would be to give them the protection which they required ±br their personsand property, and make their fellow citizens pay for it.</p> <p>The law under which plaintiffs paid their taxes, was in full force and vigor at the time. It is a fallacy to contend that it never had any life because it was unconstitutional.</p> <p>Rights may be acquired under a law, notwithstanding that law may have been subsequently declared to have been unconstitutional.</p> <p>To escape the penalties inil cted by a law, or avoid responsibilities imposed by it, upon the ground that it is unconstitutional, its unconstitutionality must be distinctly declared before the penalty or responsibility has accrued.</p>

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

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

<p>Wlicro a suit was instituted on promissory notes, whioli were tlie obligations of an ordinary partnership, whose members were only bound jointly and had to be sued as joint obligors;</p> <p>'Held — That a citation addressed to the firm, and served at the elected domicile of the ordinary partners, did not have the effect of bringing them into court. The judgment against them is, therefore, a nullity. The citations should have been addressed to each of the defendants.</p>

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

<p>APPEAL from the Parish Court of Jefferson. Keon, J.</p> <p>On Motion to Dismiss the Appeal.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry. Thomas 3. Lewis, Acting J.</p>

<p>Where in defense against plaintiffs’ claim, an agreement -with said plaintiffs in full satisfaotion of the amount clue them, was relied on l>y defendants on account of tbeir tutorship, and a bill of exception was taken to its introduction in evidence, on the ground that an agreement of this nature could not be established by parol evidence;</p> <p>Held — That when all the parties are able to contract, if they did make a contract, there is no reason why it may not be proved by competent proof,</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry, King, J. Criminal case</p>

<p>APPEAL from tlie Parish Court, parish of Lafayette. Moss, J.</p>

<p>A simple acknowledgment of a debt, when prescription is acquired, is not a renunciation of. the prescription. In this case the evidence does not establish a positive promise to pay.. At most, it was an offer to compromise by the payment of half, which was not accepted-</p>

<p>APPEAL from the Eighth Judicial District Court, parish of Vermilion. Bailey, J.</p>

<p>APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.</p>

<p>The only privilege granted by law to the depositor is on the price of the sale of the thing deposited by him.</p> <p>The law does not give a general privilege to the depositor, but simply on a particular movable.</p> <p>Where the funds deposited have been appropriated by the depositary, and of course can not be identified, and the amount thereof or therefor is not duo to the depositary by another, there is nothing subjected to the privilege.</p> <p>There is no law known to the court that allows the general privilege claimed by the plaintiff,' as depositor, on the property of the depositary’s succession. Said succession, being insolvent, other creditors would be affected, and it seems that, to avail, plaintiff’s claim, if it exist, registry is necessary, but has not been made.</p>

<p>Where the character of the suit, as ascertained from the prayer of the petition, is not an* action of revindication, but is simply a suit to annul a will, because the formalities prescribed by law were not observed in making it, the parish court, which admitted the will to probate, has jurisdiction of the case.</p> <p>Where the formalities required by Art. 1578, Revised Code, were not complied with, a will is not good as a nuncupative testament by public act, nor can it be held good as a nuncupative will by private act, when the proof adduced fails to show that the formalities-required for it have been observed.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry. King, 3.</p>

<p>'Whore the defense to a promissory note was the prescription of five years, and several credits being indorsed on the note, oral evidence was offered to prove that payments were made by the deceased at the dates indicated by the indorsements, the exception to the evidence was well taken.</p> <p>‘The plea should have been maintained.</p>

<p>Abbreviated Statement op Facts. ^</p> <p>On the eighth of April, 1854, Henry Penn, Sr., in a public act, acknowledged his indebted.^ ness to Philibert Hebert, natural tutor of his children, in a certain sum payable ill three installments, one-third thereof at the majority of each of the children, and the interest payable annually. In order to secure the said debt, in the same act, he mortgaged the property described in plaintiffs petition.</p> <p>On the fourteenth of February, 1859, the said Penn, Sr., died, and after a short administration the property was distributed among the surviving widow, Eugenie Deyris, and the heirs; the part encumbered with the said mortgage, being community property, was adjudicated to said widow, natural tutrix of the minors, Henry Penn, Jr., and Clara Penn.</p> <p>The plaintiff in this case, on the fourteenth of January, 1867, became the holder and owner of the mortgage obligation of Henry Penn, Sr., in favor of Philibert Hebert, tutor, by a private act of the latter to him, and also of a note subscribed by Widow Eugenie Deyris, dated the seventh of April, 1862, which note states as its consideration the interest accrued during the years 1860,1861 and 1862, on the mortgage obligation transferred to plaintiff; and subsequently, on the twenty-eighth of February, 1868, Eugenie Deyris waived prescription on this note.</p> <p>Previously, on the first of January, 1868, Widow Eugenie Deyris and one of the heirs, Clara Penn, had executed together another interest note for another year on the mortgage claim held by plaintiff.</p> <p>Plaintiff now sues Widow Eugenie Deyris, and the heirs. Henry Penn, Jr., and Clara Penn, for the amount of the mortgage claim and notes given for the interest as aforesaid, and also to enforce the mortgage.</p> <p>Points.</p> <p>Where a debt was acknowledged in an act of mortgage and not represented by notes, tbe prescription of ten years is applicable.</p> <p>The prescription of ten years was interrupted as to Widow Eugenie Deyris, by tbe note which she gave on tho seventh of April, 1862, for the interest accrued during the years 1860, 1861 and 1862, and inasmuch as subsequently, on the twenty-eighth of Eebruary 1868, she waived prescription on this note.</p> <p>The note signed on the first of January, 1868, by Eugenio Deyris, widow of Henry Penn, Sr., and by one of the heirs, Olara Penn, representing the interest for another year on the mortgage claim, did not amount to a renunciation of prescription by Clara Penn, as to her share of the past installment of the mortgage debt. That note contains no renunciation by her of tho prescription already accrued.</p> <p>There is no force in the objection that the mortgage perompted for want of reinscrijytion within ten years. Heithor inscription, nor reinscriplion, is necessary, so far as tho parties to the mortgage or their hoirs are concerned.</p> <p>The property mortgaged was community, and no distribution thereof among the heirs and surviving widow (whose rights are only residuary) can defeat the mortgage given by the deceased to secure a community debt.</p> <p>There is no difficulty in the objection that the plaintiff can iiot enforce this claim, because of the informalities of the transfer thereof by the natural tutor. This is a question that concerns the minors. The formalities for the alienation of their property being alone tor their benefit, they alone can urge the omission thereof.</p> <p>But, at the time of the transfer in this case, the heirs were of age, and they received tho money paid by tho transferree.</p> <p>It is no ground to reverse a judgment, if correct, because the Judge a quo gave wrong reasons, or because the decree does not conform to tho reasons given by him.</p> <p>Ah to the question whether interest should be allowed on tho notes given for the interest on the mortgage claim, it is determined in the affirmative.</p> <p>By these notes the interest forming the consideration was capitalized. It was a valid consideration for the debt, evidenced by these notes, and there can be no reason why they should not bear interest.</p> <p>It is unnecessary to inquire whether the riofce subscribed in January, 1868, by Eugenie Deyris and her daughter, Olara Penn, was a joint or solidary obligation, because the court gave judgment on it against them jointly, and this judgment can not be increased by holding it to bo a solidary obligation, for tbe reason that the plaintiff and appellee has tiot x>rayed for the amendment of tho judgment.</p>

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

<p>Where the plaintiff, alleging that the succession represented by him was the joint owner with the defendant of a steamboat, sued to have the right‘of the succession recognized and ior its share in the net earnings of the boat while in the possession of the defendant, and said defendant excepting that, if the plaintiff had any rights, which is denied, the present suit was not the form in which they can be assorted, contended that said plaintiff must sue for a general settlement, the exception must be overruled.</p> <p>The mere fact of being joint owners of a steamboat did not constitute plaintiff and defendant partners, when-there is in the record no evidence of partnership.</p> <p>Plaintiff is entitled to claim his right to the boat, if he be a joint owner, and if he has ashed for a share of the earnings of the boat, instead of the price of tho use of his property, it does not follow that he will get it, or that he is therefore a partner.</p>

<p>The act oí' 1853 fixing the prescription ol' judgments at ten years from their rendition, also provides the only means by which it can be averted, and said prescription, therefore, can only be averted by complying with these requirements.</p> <p>An acknowledgment and promise to pay by an administrator, is not an acknowledgment and promise by the debtor himself or by his specially authorized agent, even if the draft given by the administrator for the payment of the judgment, with the right of subrogation to the drawee, can be regarded as an acknowledgment and promise to pay the judgment. It is not considered that the draft amounts to such a promise.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry. T. H. Lewis, acting judge. Jury trial.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St.'</p> <p>Landry. T. U. Lewis, Acting J.</p>

<p>Where the suit is brought on a mortgage note against t.he drawers thereoi and the indorser who transferred it to plaintiff, and to enforce the plaintiff’s hypothecary action against the property mortgaged, which is in the hands of third persons, the defendants in this case, and it appears that, before the act of mortgage was recorded in the mortgage records of the parish, the purchaser against whom the mortgage existed, exchanged the property for another with D, who was a witness to the original act of sale, and whom defendants have called in warranty; ''</p> <p>Held — that, 1) being a witness to the act of mortgage was not a third person in the sense in which tlie terms are used in articles 3342, 3343, C. C.</p> <p>Besides, it appears that the mortgage was recorded long before th© property was acquired by defendants.</p>

<p>Wliere promissory notos wcro offered in evidence, properly stamped, with the approval of the United States officer whose duty it was to stamp such notes, they were admissible, and it formed no parr of the duties of the State court to inquire whether or not the United States officer had done his duty. It was sufficient to show that the notes were stamped with the approval of. the said officer.</p>

<p>Where, on the verdict of the jury being rendered, the defendant moved for a new trial, which was refused, and an appeal was then asked for and • granted, and the appeal bond filed, áll prior to the date of the judgment as entered on the minutes of the court, in consequenoe of -whieh amotion was made to dismiss the appeal on the ground that it was premature, having been applied for and granted before the judgment was rendered, and that the bond is defective and without force, because it was given before the judgment was rendered;</p> <p>Held — That the judge a quo having entertained the motion for a new trial and refused to grant it, the defendant may well have considered that the verdict of the jury was adopted as the judgment of the court as of that date. A new trial having been refused, •there remained nothing further for the court to do but render a judgment pursuant thereto, and under the mode of procedure in the country, the appeal may be considered as taken nunc pro tunc.</p> <p>The granting of the appeal at the time was an irregularity that does not authorize the dismissal of it.</p> <p>Where the plaintiff had been allowed to explain by parol the circumstances attending the seizure of which he complains, it was competent for the defendant to produce rebutting evidence in relation to the facts -connected with the seizure, which did not tend to contradict, vary, or alter his written return on the order.</p>

<p>Where the amount of the attachment bond is less than one-half over and above the amount of the debt alleged to be owing, by less 'ban one dollar, such a deficiency will not be noticed by this court. De minimis non curat lex.</p>

<p>Where defendant contended that the terms “will convert" instead of “ is about to convert" her property into money, is too vague and indefinite to authorize the attachment against her;</p> <p>Held — That the allegations and aflidavit in this case substantially comply with the law and justified the attachment.</p> <p>The essential part of the law is not that, the debtor is about to convert her property into money, for there is no wrong in that, but that she will do so, “ with the intent to place it boyond the reach other creditors."</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. J.</p>

<p>A prayer in this Court by a defendant, in answer to an appeal taken by his codefendant, that the judgment of the district court be reversed, and the case be remanded for a new trial, is not an appeal, which must be applied for and granted in the court a qua. Here is, in fact, a co-appellee, not a codefendant, and between appellees a judgment is not to be disturbed.</p> <p>The jurisdiction of the court of the parish where property is sought to be made liable in an hypothecary action, can not be questioned.</p> <p>Where a judgment was rendered for more than the petition claimed, the remittitur should have been entered before the judgment .was signed, and should have appeared in the transcript.</p> <p>There is no reason why the purchasers of property should not legally bind themselves m solido for the payment of the price; if the act of sale does not stipulate solidarity, and the notes do, this is sufficient. Parties may bind themselves as they see fit, and, as they bind themselves, so must they be held.</p> <p>The plea that an agent had no right to stipulate the solidarity of the obligation sued on, is a matter of special defense, which should have been set up in defendant’s answer. It can not be urged in error to a judgment rendered and confirmed by default.</p> <p>Where the act of sale, which was offered in evidence, contained the recital of a power of attorney, and the power was not denied, the act was sufficient to prove what it related.</p>

<p>APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry Thomas E. Lewis, acting judge.</p>

<p>APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.</p>

<p>Where plaintiff excepted to the ruling of the court a qua which permitted the defendant to establish by witnesses the value of certain items of the work sued on by plaintiff, on the ground that plaintiff having sued for the value of the work as a whole, without setting any specific value on its separate items, and the defendant having substantially accepted in his answer the issue presented, the testimony offered was not confined to said issue;</p> <p>Held — That the exception was not well founded. The sura total of the bill sued on being composed of various items, it was competent for the defendant to show by witnesses the separate value of each of the items which made up the aggregate work in order that the correctness of the general charge might be properly arrived at.</p> <p>A. party for whom work has been done on a certain building is not barred from offering any proof of damage on account of the unskillfulness of the work because of his having taken possession of the building.</p> <p>The testimony of a witness to establish that plaintiff had, before the instituting of his suit, presented to the defendant a bill in which he charged less for his work than the amount for which he has sued, was properly received.</p>

<p>Where ia an action to annul a judgment obtained by defendant against tile plaintiff on a' promissory note, which judgment was affirmed on appeal to this court in 1869, it appears that the consideration of the note was the price of a slave purchased on the tenth of October, 1861, this is sufficient ground for setting aside the judgment which is sought to be annulled.</p>

<p>Judgment was rendered in this case on the fifteenth of January, 1861, decreeing that the defendant deliver up a slave to oe sold in satisfaction of tlie plaintiffs claim, $821, with interest, or in default thereof to pay the said sum and interest.</p> <p>It is clear that there can be no recovery in this case, the plaintiff having set out by endeavoring to enforce a mortgage against a slave who has since become free. The parties called in warranty to make good the title to the slave are no longer bound.</p>

<p>*JCt makes no difference whether an accomplice, wlio becomes a witness, has been convicted or not, or whether he be joined or not, in the same indictment with the prisoner to be tried* provided he be not put upon his trial at the same time.</p> <p>’The circumstance of the witness being an accomplice of the party on trial, affects his credibility only, of which the jury are to judge.</p> <p>Under the laws of this State, all parties present, aiding and abetting in the commission of a felony, are principals therein. If the principle which prevents an accomplice to testify, be so restricted as to exclude all principals, it would have little practical importance.</p> <p>A jury may convict on the uncorroborated testimony of an accomplice; they are the judges of his credibility. The rule requiring the judge to charge the jury that the testimony of an accomplice needs confirmation is rather a rule of practice than a rule of law.</p> <p>A judgment decreeing imprisonment for life is not unauthorized by law, because the words “hard labor ” are omitted in it. The words are not sacramental. They would add but little to the efficacy of the judgment.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry. Morgan, J. Criminal case.</p>

<p>A joint obligor can be cited at the domicile of liis co-obligor.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Laudry. Adolphe Bailey, acting judge.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry King, J.</p>

<p>from the Third Judicial District Court, parish of Iberia. Train, J. Jury trial.</p>

<p>APPEAL from the Parish Court, parish of St. Martin. Fournei J.</p>

<p>ON the trial of this rule for contempt of court,</p>

<p>APPEAL from the Parish Court of the parish of St. Martin. Handy,</p> <p>J.</p>

<p>"Where a widow, in necessitous circumstances, opposes the administrator’s account of a deceased husband’s estate, claiming that she is entitled to one thousand dollars under the homestead act, and it appears that the children own more than one thousand dollars in their own right, the widow does not come within the provisions of the statute.</p>

<p>Where a motion for a new trial and one in arrest of judgment were predicated upon the hypothesis that only forty-six jurors were drawn on the panel:</p> <p>Held — That inasmuch as no objection was made to the jury until after conviction, the refusal of the judge a quo to grant a new trial or to arrest the judgment was correct, even if the facts were as supposed. One can not take the chances of a verdict in his favor, and alter conviction object to the jury.</p>

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

<p>APPEAL from th© Fourteenth Judicial District Court, parish of Ouachita. Ray, J.</p>

<p>Where certain persons, to wit: Morrison and Pickens, pretended, the one as clerk and the other as sheriff of the parish of Caddo, to hold tbeir offices and to exercise the functions thereof under what they called the “McEnery government,” in opposition to the authority of the United States and the laws and decisions of the courts of this State;</p> <p>Held — That it would seem to he absurd to require an argument to show that parties occupying such positions can not be regarded as de facto officers of the government whose authority they contemn.</p> <p>There can not be, at the same time and in the same State, two valid State governments, with two sets of officers.</p> <p>No. 41 of the acts of the Legislature, session of 1873, forbids persons occupying the position therein described from performing any official act, and also prohibits all officers of the State from recognizing them or giving effect to their acts.</p> <p>u Whatever is done in contravention of a prohibitory law is void, although the nullity he hot formally directed.” C. C. art. 12.</p> <p>Every official act of Morrison and Pickens is, therefore, null and void, if they he in the category of persons declared to he usurpers in the first section of act No. 41 of 1873, and there is no doubt that they are in said category. • .</p> <p>They do not hold office by virtue of any title. They never were declared elected by the Board of Returning Officers at the general election of November, 1872, neither have they been legally commissioned.</p> <p>The documents called commissions, which they hold, purporting to have been issued on tlie fourth of December, 1872, are absolute nullities, having been issued in violation of law.</p> <p>No one claiming an office by election in November, 1872, could have been commissioned except by acting Governor Pinchback or by Governor Kellogg, inasmuch as Governor Warmofch was suspended by being impeached by the House of Representatives before the promulgation of the returns of the election by the Returning Board, and his trial was discontinued in consequence only of the expiration of his term of office.</p> <p>No one shall exercise the functions of an elective office by virtue of an election unless he has been declared elected according to existing laws; and in oases where the law requires the officers to be commissioned, until such commission shall have been issued. Neither of ‘ these prerequisites was observed in this- case.</p> <p>• The acts of Morrison and Pickens in assuming to act as the sheriff and clerk of Caddo after the promulgation of the law aforesaid, ware in flagrant violation and contravention of its statutory provisions. Such acts are crimes, and consequently can have no legal effect. • Those who themselves have violated the law by recognizing such protended officers, must suffer the consequences of their disobedience.</p> <p>The act Fo. 41 of 1873 does not divost vested rights. The pretended commissions of Morrison and Pickens were mere nullities..</p> <p>jt is not retroactive; it is not ex post facto in its operations; because it professedly provides only for the future. It can not, therefore, he ex post facto.</p> <p>It does not encroach upon the powers and duties of the judiciary. It declares certain acts, which were in themselves WTong and in violation of law and civil order before the passage of the statute, to he crimes if done after the passage of tlie law. There is no question ' that the subject is one over which the Legislature has jurisdiction.</p> <p>It is not material to decide whether or not the act Fo. 41 of 1873 conflicted with the intrusion office act, and took from the courts cases that were pending under it, for the General Assembly has complete power over the subject of contests for office. It determines the mode by which these questions may be decided, and the courts have no jurisdiction over fcheic discretion.</p> <p>To maintain, as was strenuously urged in the case, that because Morrison and Pickens have ¿aot been prosecuted and convicted of their crimes, this court can not decide on the</p> <p>s validity ol‘ their acts, is an absurdity.</p> <p>It is not necessary to convict a thief of larceny in order to enable the court to decide that the title given by him of the stolen property was an absolute nullity, oven in a suit to which the thief is not a party.</p> <p>The pretended official acts of Morrison and Pickens are nullities, and therefore the bond which is the basis of this suit, as well as the proceedings had in the case while Morrison and Pickens were pretending to act as clerk and sheriff, are null and void.</p>

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

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

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

<p>'The omission'in the transcript of the testimony, not reduced to writing, of one of the plaintiffs counsel, in reference to an incident of the trial, is not sufficient ground to dismiss the appeal, when the substance of the testimony is brought up in the bill of exceptions taken to the ruling of the Judge on the subject.</p> <p>''Where a oommorcial firm, the payees of two promissory notes, due respectively in 1862 and la63, instituted, in April, 1870, suit against the indorser thereof, and where, on the payment thereof being established by notarial act, plaintiffs attempted to prove that it was made in Confederate notes, and contended that said payment was in violation of the non-intercourse laws, having been made at Shreveport, within the Confederate military lines, to one of the plaintiffs, who was a resident of !New Orleans, then within the Federal lines, and whose authority, therefore, to represent the firm as its agent ceased to exist;</p> <p>¿Held — That whatever might be said of the acts of the said party in going through the prohibited lines, and its legal effects upon any contracts of his own or Ms firm, said firm, or any one of its members, can not now invoke the illegality of the said payment, or enforce a second payment. They can not be heard to urge their own unlawful conduct to their own benefit. The payment under such circumstances must be held binding upon both plaintiffs.</p>

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

<p>The fact whether or not a law has been duly promulgated may be within the province of the judiciary, but whether or not it went regularly through all the stages necessary for its passage as a law up to the promulgation, is a subject confined to other departments of the constitution.</p> <p>‘Che eleventh section of act 81 of the regular session of 1872, promulgated on the thirteenth Ai>ril, 1873, amending the charter of the town of Monroe, was not passed in violation of tho formalities required by the constitution. The objects embraced in said section of said act are embraced in the title.</p> <p>in 6 An., 605, it is said: “When portions of a law come within the reasonable intendment of its title, and others do not, the latter alone are unconstitutional, provided they can stand alone.” This properly applies to the aforesaid section.</p> <p>The right of a party to raise the question of the constitutionality of a law is limited to the provisions thereof which affect bis interest in the litigation.</p> <p>Section 11 does not violate, as alleged, the uniformity and equality of taxation, because it exempts some property and persons in the town of Monroe, within the limits of the parish of Ouachita, from taxation to which other inhabitants of the parish are subject, and because the Legislature can only exempt “property actually used for church, school and charitable purposes.”</p> <p>The power to tax inoperty within the parish of Ouachita and require licenses from the inhabitants thereof, was conferred by the Legislature on the police jury, and the exercise of that power is only curtailed by the section of the law which exempts the town of Monroe.</p> <p>The Legislature conferred the powor-of taxation on each subdivision of the local government —the police jury of‘the parish and the municipal authorities of the town of Monroe — and had tho right to withdraw or modify that delegation as to each or both.</p> <p>The act was not retroactive. It merely withdrew a delegated power which had not yet been exhausted, and destroyed no vested right in tho police jury.</p> <p>■ Where it was contended that section 3493, R. S., did not authorize the Secretary of State to promulgate an act of the Legislature that had not received the Executive sanction, as was tlio case in this suit;</p> <p>Held — That this is too restricted an interpretation of the functions of the Secretary of State when connected with article 66 of tho constitution.</p> <p>‘"lie act in question was necessarily presented to the Governor, but was published without his signature. Although not drawn up with such precision and fullness as might be done, a fair construction of section 3493, R. S., in the light of tho various articles of the constitution having any reference to the subject, will afford authority in the Secretary of State to deliver to the State Printer for publication all bills in the category of this one, with the statement that they became laws without the signature of the Governor.</p> <p>A bill becoming a law without the Governor’s signature must be promulgated as well as one with his signature, and all bills must be promulgated through the oll'.ce of the Secretary of State.</p> <p>ft may not be sacramental, under existing legislation, that he shall state, or add in a note, that it became a law without the signature of the Governor, and how it so happened; but the court can not say that, under all the provisions of the constitution and tho laws on the subject, his doing so will destroy tho law, or prevent a bill in such a contingency from becoming a law.</p>

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

<p>The tenth clause of section 1 of act 2To. 14 oí the acts of 1872 is not unconstitutional, because it levies a tax of eighty-five dollars on persons dealing in.dis'illed liquor, or retailing spirituous liquors on land, while a tax of only fifty dollars is levied on persons* following a like occupation on steamboats, although they may only ply within the limits-of a single parish of the State.</p>

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

<p>Nothing oan be assigned as an error of law which could have been cured by evidence legally given at the trial.</p> <p>A n assignment of errors in this Court can not cure the omission of the appellants to make opposition and present regularly the issues of fact which they desire adjudicated.</p>

<p>' The grounds for opposing the judgment plaoed on the tableau, are such as should have been presonfced before its rendition, and cannot be urged in this proceeding. If the heirs are injured by the failure of the administrators to set up those grounds, there is a remedy at the proper time and before the proper tribunal. Their prayer to amend the judgment can not be heard, because they are appellees.</p> <p>The order to the administrators to pay the said judgment out of the first funds, may not be strictly regular, but it is of little importance in this instance, as the question of privilege can not arise, and no other creditor seems to be contesting.</p>

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

<p>When the ordinance of the police jury which is complained, of in this case was passed, the revenue law of 1871 was in force, even if such authorization was necessary. The tax imposed by the ordinance was authorized by that law, and having been levied under it, it can not be held that the action of the police jury was illegal.</p> <p>Police juries are not restricted in their action in regard to licenses exacted by 'them for the right of selling liquor and retailing spirituous liquors to the amount exacted by the State for the same.</p> <p>• Section 2778 Revised Statutes, moans that whenever the police jury deems it necessary that the sense of the people should be taken as to the propriety of permitting grog shops to be licensed, a vote may be ordered. But when this shall be deemed necessary, is a matter entirely within the discretion of the police jury.</p>

<p>A party has no right to demand the nullity of a judgment rendered against him, because the' attorney who acted on his behalf was without authority, after permitting that attorney to-continue tlio litigation, and after taking the chances of a favorable judgment in this court.</p>

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

<p>from the Parish Court, parish of Ouachita. Oalckuell, J.</p>

<p>APPEAL from the Eleventh Judicial District Court, parish of Claiborne. Trwible, J.</p>

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

<p>It was clearly the purpose of the Legislature, by the act of 1840, enlarging the powers of commissioners for the State residing in other States, to confer upon them the usual powers and functions belonging to notaries by the laws of this State.</p> <p>Written acts which, by intendment of law, are clothed with solemnities in their execution, in order that they may become enduring records of past events, more surely to be relied upon than the frail memory of men, should not hastily be disregarded even upon the positive evidence of a single witness of their falsity, when such evidence is isolated, unsupported by facts aliunde, and given by the witness in his own behalf under strong influences of self-interest.</p>

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

<p>The assignment of error, upon which a reversal of the judgment is asked, that parol evidence was introduced to prove a promise to pay eight per cent, interest, is a ground to amend the judgment.</p>

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

<p>APPEAL from the Parish Court, parish of Ouachita. Balcer, J.</p>

<p>APPEAL APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. J. T. Strother, presiding in the place of Judge Bevy, recused.</p>

<p>from the Eighteenth Judicial District Court, parish of Bossier. Fort, special judge.</p>

<p>Act 3$To. 95, approved March 8, 1869, was passed, as its title announces, to carry into effect article 123 of the State constitution of 1868. The judgment which, in this instance, is the act of adjudication, stipulating the amount of the property held in common with a minor and adjudicated to her mother, was duly recorded in the book of mortgages, and was a compliance with the said law.</p> <p>The prescription of ten years set up by defendants does not apply to said judgment of adjudication. The judgment is not and was never intended by the law to be a judgment for money against the natural tutrix, upon which execution could issue in favor of the minor,</p> <p>The amount, however, of plaintiff’s claim, so far as secured by mortgage, must be reduced, as it is shown that a portion of it was for the price of slaves adjudicated with lands. It was a sale, the price of which is still nnpaid. The question has already been settled by this court, and is now jurisprudence.</p>

<p>If fclio appellant, when called on, does not adduce proof affirmatively to show that his surety is good, and no evidence to impeach him is offered, it is now the jurisprudence of this court that the judge a quo can not pronounce him to be insufficient and order execution to issue.</p> <p>Some proof is necessary to destroy the presumption of sufficiency arising from the acceptance of the bond, with the surety signing it.</p>

<p>Emancipation gave to the slave his civil rights, and a contract of marriage, legal and valid/ by the consent of the master and moral assent of the slave, although dormant during tha slavery of the parties, produced, from tho moment of their freedom, all the effects which result from suoh contract among free persons.</p> <p>But the marriage which was to produce these civil results must have existed at the time the emancipation took place. If the marriage was dissolved before emancipation, the parties’ rights were no longer dormant; they were dead; and the subsequent emancipation, as it could not resuscitate the marriage, could produce none of the civil fruits which are the' results of a civil marriage.</p>

<p>'Tlie question whether the relator in this case had, as owner of an urban lot of ground, the right to build a wall or fence on her own property for her own profit and convenience, involves a larger interest than the five hundred dollars damages claimed by her next neighbor as resulting from the erection of said wall or fence, and therefore a suspensive appeal lies to this court from a judgment rendered against relator. It is a question concerning the ownership of property and its enjoyment, and may involve the entire value of the property on which the wall or fence is built.</p>

<p>"Where all objections to tbe solvency of tbe surety or sureties on the suspensive appeal bond were waived, and no controversy waged as to tbe sufficiency of tbe bond wbicb was received as executed in tbe manner required by tbe order of tbe court, said court was divested of jurisdiction over tbe case, and tbe subsequent proceedings under tbe rule to show cause wby tbe suspensive appeal should not be set aside, consequently without • effect.</p>

<p>To authorize a writ of mandamus, there must appear a specific ministerial duty which the applicant has a direct right or interest in having enforced.</p> <p>Where the pleadings indicate that the application is simply to obtain a judicial order in favor generally of holders of a certain class of warrants, and not to secure a specific right to a particular party, it is not «a serious contest, and not a case for a mandamus.</p>

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

<p>APPEAL from the Superior District Court, parish of Orleans. Ilaw-Mns, J.</p>

<p>APPEAL from the Seventh District Court, parish of Orleans. Oollens, J. (Special jury trial.)</p>

<p>"Where certain funds belonging to A were sequestered in tlie bands of B, bis agent, at the suit of C, and said funds were paid to 0, by virtue of a judgment wbicb was not appealed from;</p> <p>Held — That tbe payment was good against A, wlio could not recover tlie amount from B, on tbe plea tliat be was not cited, and therefore was not bound by tbe judgment, because it was proved that be bad ample notice and knowledge of tbe proceedings. He needed not tbe permission of B, bis agent, and tbe garnishee in tbe suit, to appear in said suit, and could have appealed from tbe judgment, bad be seen fit to do so. Under tbe circumstances of tbe case, as they appear in tbe record, B can not be forced to pay to A what be was compelled to pay to A’s creditors by a court of competent jurisdiction.</p>

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

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

<p>The account rendered to tlie lieir being a copy of the one previously homologated, contradictorily with the creditors, is prima facie correct.</p> <p>If the items thereof wore exorbitant and undue, the opponents should have administered proof to overcome the presumption of correctness existing in favor of the accountant by reason of the judgment of homologation. This has not been done. Illegal charges, however apparent on the face of the record, can be corrected.</p> <p>An executor can not keep in his hands the funds which, according to law, he was bound to deposit in bank, on the plea of retaining only the amount of a legacy duo to him, when the testamentary diposition in his favor, by the express terms of the will, was to be discharged out of a particular fund in Havana, Island of Cuba, of which he had not the seizin. The funds in controversy in this case wore not derived from that source, and ought not to have been retained and used by the executor.</p> <p>The sureties of the executor not having been cited and not appearing in this suit, the judgment rendered against them was annulled on rehearing.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. HawIcims, J.</p>

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

<p>When an injunction issues against am order of seizure and sale, and a suspensivo appeal is taken from tlie judgment dissolving tlie injunction, tlie amount of the Rond must Re measured, not Ry the amount involved in tlie injunction suit, Rut by tbe amount of tie judgment ordering tbe seizure and sale staid Ry tbe injunction.</p> <p>A judgment dissolving an injunction against an order of seizure and sale without damages is simply a judgment of nonsuit, and seems naturally to blend itself with that ordering tbe sale; or, in other terms, it is in substance a repetition of the order first granted.</p> <p>It is not considered that the import of a suspensive appeal in such a case has any other effect than that of suspending the original order of sale. Tlie judgment dissolving the injunction does not constitute a separate, independent judgment, that could be appealed from for any other purpose than that of affecting the original order of seizure and sale.</p>

<p>The exceptions to the proceedings in this case are substantially similar to those set up in the case of Morgan v. Kennard. 25 An. p. 238, and which this court held to be untenable-See also Bonner v. Lynch, 25 An. p.</p>

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

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

<p>WRIT OF PROHIBITION to the Judge of the Fifth District Court, parish of Orleans.</p>

<p>APPLICATION for a writ of prohibition directed to the Judge of the Fifth District Court, parish of Orleans. the Judge of</p>

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

<p>Where tlie irregularities in the proceedings in the court a qua, which are complained of, are* more technical than real, and where, on the whole, substantial justice has been done, the-judgment will not be disturbed.</p> <p>While it' is a general rule that petitions in injunction suits are not allowed to be amended,, still when events have occurred since the institution of the suit, which would warrant a new injunction, there can be no good reason to refuse them to be stated in a supplemental petition.</p> <p>Courts abhor a multiplicity of suits, and they will not dissolve an injunction when it is apparent from the record that the party would be entitled to another.</p>