Volume 26 — Louisiana Annual Reports

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

<p>Hhe officer of a company must be presumed to know its by-laws adopted before bis appointment, and is bound by them as to bis tenure of office. Tbey have become tbe law between himself and his employers. By one of their by-laws tbe defendants bad reserved tbe right to remove their officers at pleasure. Plaintiff is an officer in tbe sense of the said by-law, and therefore can not complain.</p>

<p>Appeal from the Superior District Court, parish of Orleans. Hawhins, J.</p>

<p>This case is not one in which tlie district attorney, acting as parish attorney, can claim under section 2761 R. S., “ a fee of five per ceDt. on the amount, for defending ” the said suit, as no amount was claimed or actually involved therein.</p> <p>It is manifest that the above mentioned section contemplates some servioes to be rendered for which the salary — -the minimum of which is fixed — should be a compensation, and it provides only for commissions when there is a suit by or against the parish for an amount on which the commissions can be assessed.</p>

<p>Appeal from the Superior District Court, parish of Orleans. Hcmláns, J.</p>

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

<p>Appeal from the Superior District Court, parish of Orleans. HawMns, J.</p>

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

<p>Appeal from tlie'Superior District Court, parish of Orleans. Hatoláns, J.</p>

<p>A. contract or promise to transfer or deliver, a collateral to secure a debt resulting from, the payment by the indorsers of notes indorsed for accommodation, gives no privilege or pledge upon the collateral not transferred or delivered in pursuance of said contract or promise.</p>

<p>APPEAL from the Fifth District Court, parish of Orleans. Léaumont,-3\</p>

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

<p>APPEAL from the Second Judicial District Court, parish of JeffersonPardee, J.</p>

<p>Tli© plaintiff in injunction not having set up, in defense to the suit against him, as he might have done, that he was discharged in bankruptcy from all his debts, can not make it a cause for an injunction.</p>

<p>APPEAL from the Second Judicial District Court, par.sh of St. Bernard. Pardee, J.</p>

<p>After the regular panel of jurors was exhausted, and. only four jurors therefrom had been sworn, the district judge ordered the sheriff to summon and select one hundred talesmen* to appear on the following day to complete the jury, and continued the case. The challenge to the whole array of the talesmen when produced, was properly overruled.</p> <p>If the jury can not be completed by summoning bystanders, recourse may be had to other persons not within the presence of the court or its vicinity.</p> <p>It is not said in the challenge that there were any bystanders present when the panel was exhausted, and this court is bound to presume, in the absence of proper evidenc.e to the' contrary, that the district judge and the officers of the court a qua did their duty.</p>

<p>"Where the object of the suit is to cause defendant to vacate premises, the occupancy of ■which he claims under a lease, and neither party claims a money judgment, it is the amount of the lease -which gives jurisdiction to this court. That amount not being sufficient, the motion to dismiss the appeal must prevail.</p>

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

<p>Where a contract has for its consideration an illegal currency reprobated by law, the plaintiff suing on that contract can not recover.</p>

<p>Application for a Writ of Mandamus against the Judge of the Superior District Court, parish of Orleans.</p>

<p>Where the grounds to dismiss the appeal are, that the right to office is involved, and in such cases, when an appeal is taken, it should be made returnable in ten days after the rendition of the judgment appealed from in conformity with law; that the judgment of the lower court in this case was signed September 20, 1873; that on the twenty-second of the same month the appellants by motion in open court applied for and obtained an appeal returnable on the first Monday of November, 1873;</p> <p>Held -That the motion to dismiss the appeal must prevail.</p> <p>The policy of the law in requiring appeals in cases involving the right to office to be made returnable in ten days after rendition of judgment, is obviously to have such cases determined speedily and with the least possible delay. This requirement of the law must therefore be construed strictly.</p> <p>.The illegality of the return is not obviated from the fact that the appellate court was not in session when the judgment was rendered and not to convene again until the first Monday of November.</p> <p>Had the appeal been made returnable within ten days as the law requires, the appellant would not have lost Ms right of being heard on appeal as soon thereafter as the court should be in session.</p>

<p>It lias been frequently determined that police jurors are political corporations whose powers-are specially defined by the Legislature, and that they can legally exercise no other powers than those delegated to them.</p> <p>For all purposes for which they are by law authorized to create debts, they are authorized to levy and collect a tax for paying the same. But, without a special 5.rant of power by the Legislature for that purpose, they clearly have no authority to issue and put in circulation instruments of any hind.</p> <p>FJo special statute is shown in this case conferring upon the parish of "West Feliciana the authority to issue the negotiable notes or warrants upon which the plaintiff sues.</p> <p>The position that the warrants or negotiable instruments of indebtedness which are the objects of this suit, were issued to defray the necessary expenses of the parisli is not tenable. The police jury was not authorized to do it in any other way than by levying •and collecting a tax for that purpose. Said negotiable instruments are null and void.</p>

<p>Where an application is made for tlie revision of a judgment for five hundred dollars and costs of suit, this court, of its own motion, must dismiss the appeal on account of a want of jurisdiction mtione mateHce.</p> <p>In order to detormine the jurisdiction of the court, the amountin dispute at the time the suit was filed alone, must be considered. Costs, subsequently accruing, can not be estimated so as to give this court jurisdiction.</p> <p>An action not revisablo by an appeal is not revisable in this court by an action of nullity, or by an appeal f. om the judgment in the action of nullity.</p> <p>This court not having jurisdiction of a judgment because the matter in dispute did not exceed * five hundred dollars, has no jurisdiction to revise it in either of the modes prescribed by . the Code of Practice.</p>

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

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

<p>Application for a mandamus against the judge of the Superior District Court, parish of Orleans.</p>

<p>Application for a mandamus directed to the judge of the Fourth-District Court, parish of Orleans.</p>

<p>jCIio Attorney General lias tlie right to designate an attorney at law to assist the attorney for the State, or to prosecute alone in certain cases.</p>

<p>"Wliere the contract of insurance contained the following clause: “ This policy is not assignable unless by consent of this corporation manifested in writing, and in case of any transfer by sale or otherwise without such consent, this policy shall from thenceforth be void and of no effect;*’</p> <p>Held — That this prohibition does not apply to the assignment of the interests of one partner to the other, and that it can not be inferred to have been the intention of the contracting parties that the plaintiff could not buy out his partner and continue the business without-the consent of the defendants, on pain of forfeiting the policy.</p> <p>The prohibitory clause must be construed strictly, and if its application to the case before this court be doubtful, the doubt must be construed against the defendants, the obligors in the contract of insurance. s</p> <p>It is true the clause expressly prohibits the transfer by sale or otherwise of the policy; but" it does not expressly prohibit a change of interests among the partners, nor does it expressly prohibit the assignment of the interests of one partner to the other.</p> <p>If the defendants had intended to place such a limitation upon the rights of the assured, the intention should have been expressed in the instrument and not lelt to inference, because a prohibitory clause can not be extended by implication.</p> <p>In a contract of insurance, as in every other, it is the intention of the parties that must be-considered. In the instrument before the court there is nothing to be found to warrant the conclusion that the plaintiff forfeited the policy by accepting the assignment of his-partner’s interest in the business, without the written consent of the defendants.</p> <p>In the course of business partners often become dissatisfied, and change the firm by one* party transferring his interest to the other, as was done in this case. This occurrence is so common, that these parties must be presumed to have contracted, knowing it might-arise during the period of the insurance, and if it was desirable to put a limitation upon the right of the assured in this respect, a stipulation to that effect should have been inserted in the instrument.</p> <p>By the assignment in question no new party was introduced into the contract whom the defendants might not be willing to trust. In issuing the policy to Joseph H. Taboury & Co., they virtually declared the trustworthiness of each of the partners, so that it can not be objected that, by virtue of the assignment to plaintiff, the deiendants were forced to insure a person they had not consented to trust.</p>

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

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

<p>-A rule was taken by plaintiff on the garnishee in this case to show cause why he should not pay a certain judgment against defendant, because he had in his possession, npthwitkstanding his negative answer which was alleged to bo false, property, rights and money of defendant to pay said judgment, and the garnishee on the day named for the trial of the rule, excepted to it on the ground that, being a new suit against him, it could not be tried in vacation. The exception was overruled, and the garnishee filed an answer in which he prayed for a jury. The exception should have been maintained; the issues presented were such as should have been submitted, if desired, to a jury.</p>

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

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

<p>Potlioff & Knight instituted a suit against Hill, the drawer of a note, obtained judgment,, issued execution, and on the judgment not being satisfied, sued O’Hara the indorser, who, after judgment against him, paid the amount thereof. The present suit is brought by O’Hara against the sheriff and his sureties to make him and them responsible for not having collected the amount of Potthoff & Knight’s judgment against Hall, alleging various acts of omission and commission amounting to malfeasance and nonfeasance in office.</p> <p>The error in this case lies in the assumption that there was any subrogation in the judgment of Potthoff & Knight against O’Hara, to any right which Potthoff & Knight had against Schwab and his sureties by reason of any neglect, if neglect there was, in executing'the fien facias which had been placed in his hands. The sheriff may have been responsible to them, but he was not responsible to O’Hara, who was no party to the suit from which execution issued.</p> <p>Therefore the conduct of the sheriff in the case of Potthoff & Knight v. Hill can not give rise to any action against him and his sureties in the case of Potthoff & Knight against O’Hara.</p>

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

<p>TClie Citizens’ Bank obtained, by mandamus proceeding against tbe State Treasurer, a judgment in tlie Superior District Court ordering him to pay the bank $200,000, and the plaintiff now prays that an injunction issue to restrain the Treasurer from paying any warrant or warrants out of the general fund, until he shall have paid the petitioner the said sum of $200,000.</p> <p>TThe position taken as to the right to question in this suit the validity of plaintiff's claim, which is based on a final judgment, is correct; but the remedy sought by injunction can not be accorded. This is not the mode of enforcing or executing a judgment in a man' dainus suit.</p>

<p>The plaintiff, a judgment creditor of defendant, Mrs. Gaines, issued execution and instituted garnishment process against the city of New Orleans, the latter being a judgment debtor of Mrs. Gaines by virtu© of a judgment and decree of the United States Circuit , Court.</p> <p>The plaintiff moved that the city of New Orleans and other garnishees show cause why the said city of New Orleans should not be condemned and ordered to pay to the sheriff the amount oí plaintiff’s judgment and fieri facias, on the ground that by their answers it was shown that the city had sufficient funds to pay.</p> <p>On the trial, a bill oí exceptions was taken by the plaintiff to the ruling of the court sustaining objections to the introduction in evidence by plaintiff o1 a certified copy oí the fieri facias issued in the case of Mrs. Gaines v. The City of New Orleans in the United States Circuit Court, together with the returns on the fieri facias and to all evidence whatever in support of the averments made in the rule.</p> <p>The objections were, that plaintiff could not proceed summarily by rule against said garnishees ; that they were entitled to trial by jury; that the granting of the order asked for would interfere with the exclusive jurisdiction of the United States Circuit Court and bring the State court in conflict with it.</p> <p>The court a qua erred. If entitled to a jury, the garnishee, city of New Orleans, went into the trial without praying for one. She was a mere stakeholder in this case without interest on her part as to whom payment should bo made.</p> <p>The evidence erroneously rejected was intended to show that the fieri facias held by the United States Marshal was returned into court unsatisfied in whole; that no property Twas found to seize, and that nothing was made on the writ. The Circuit Court of the .United States had exercised its authority in the rendition of the judgment. That judgment was the property of Mrs. Gaines, and like any other property she owned, was lia- ' ble to seizure by her judgment creditors. It is impossible therefore to perceive how a . 'Conflict of jurisdiction could arise from the proceedings on garnishment.</p>

<p>Appeal rom-.the Seventh District Court, parish of Orleans. Gollens, J.</p>

<p>The language of the notary in the graces verbal of a will, “that the said testator, being-illiterate, signs his mark,” does not meet the requirements of article 1579 O. C., which prescribes that this declaration must be made by the testator himself.</p> <p>In this instance, the testator has not declared that he knows not how to sign, nor has express-mention of that declaration been made in the will. His testament is therefore null and. void.</p>

<p>Appeal from the Parish Court of the parish of Caddo. Smith, J.</p>

<p>Appeal from the Superior District Court, parish of Orleans. Haw-1tins, J.</p>

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

<p>In this instance the defendant offered in evidence the petition in the case entitled “Succession of Jose Maria Caballero,” and the judgment of the Second District Court and of the Supreme Court, decreeing her to be the legitimate child of the deceased. The plaintiffs objected on the ground that they were not bound by the judgment, not being parties to the suit.</p> <p>The objection was correctly overruled. It was not a judgment inter partes, but a judgment in rem, and is evidence of the facts adjudicated against the world.</p> <p>The judge a quo properly rejected the testimony taken by commission of witnesses not named in t]ie interrogatories or commission. The party called on to cross question witnesses when testimony is taken by commission, is entitled to be informed of the names of the witnesses in order to know how to shape his questions.</p> <p>The court below was right in not granting a continuance on the ground of the rejection of the above mentioned testimony, the party offering it not having made due diligence to get the evidence.</p> <p>The plea of res judicata must stand. It is well settled that a final judgment of a court of competent jurisdiction as to the status of a person, is res judicata as to all the world, and the force and effect of res judicata is to make black white, and the crooked straight.”</p>

<p>The subrogation relied on in this case l>y Goulard, the third opponent, was not effected in conformity with article 2160, R. C. C. This article is very explicit. The act of borrowing and the receipt must be executed in the presence of a notary and two witnesses. In this instance the receipt was given by the sheriff, and should have been rejected on the objection made by the plaintiff. It is not an authentic act by law, and is not in the form of receipt required by the above mentioned article of the Civil Code. The subrogation therefore attempted in favor of Goulard, the third opponent, is without legal effect against any one having adverse claims such as the plaintiff or his transferee has shown himself to possess.</p>

<p>Application for a writ of mandamus against the judge of the Superior District Court, parish of Orleans.</p>

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

<p>A judgment signed in vacation is no judgment. Being no judgment, no appeal could be taken from it. Delator lias the right to see that the judgment of which he complains he regularly signed.</p>

<p>APPEAL from the Fifteenth Judicial District Court, parish of TerÍX rebonne. Guidry, Parish Judge of the parish of Terrebonne and acting judge of the Fifteenth Judicial District Court.</p>

<p>Application for a mandamus against the Judge of the Superior District Court, parish of Orleans.</p>

<p>Application for a mandamus against the Parish Judge of the parish of Claiborne.</p>

<p>Appeal from the Fifth District Court, parish of Orleans. Lea,ti-mo nt, J.</p>

<p>APPEAL from the Fourth Judicial District Court, parish of St. XA Charles. Flagg, 3.</p>

<p>Appeal from the Parish Court, parish of St. Charles. Durapau, J.</p>

<p>Appeal from the Superior District Court, parish of Orleans. Ramldns, J.</p>

<p>The judge a quo was right when he refused a continuance in order that the prisoners might obtain testimony from Europe to establish the fact that the man alleged to have been murdered was the nephew of one of the accused. The relationship of the parties has nothing to do with the guilt or innocence of the accused..</p> <p>The judge did not err when he ordered that the witnesses for the State and the prisoners be separated, except the physicians. Dr. Jackson, being the coroner, was called to testify as such; Dr. Bernias and Dr. Board, being required as medical experts as to the cause of death were permitted to remain to hear the evidence in order that they might form an opinion as to the cause of death.</p> <p>The court a qua did not err in permitting "Ward to testify as a witness. The objection was that he had been found guilty of two crimes, and had been sentenced to the penitentiary and to the parish prison; that he had been pardoned after his sentence had been completed; and that his pardon was not sufficiently proved.</p> <p>It matters not whether the pardon came before or after the term of confinement had expired. There are disabilities which are the consequences of-conviction, and which remain after incarceration has ceased. The doctrine well recognized on this subject is, that a pardon gives to the person to whom it is granted a new character, and makes of him a new man. "When extended to him in prison, it releases him and removes his disabilities; when given to him after his time of imprisonment has expired, it removes all that is left of the consequences of conviction — his disabilities.</p> <p>A communication from the Secretary of the Senate to the Acting Governor, informing him that his recommendation for pardon had been received, and that it had been acted upon favorably, is sufficient evidence of the completeness of the pardon.</p> <p>The judge a quo did not err in permitting the physicians, as professional experts, to recapitulate to the jury the evidence they had heard, and which constituted the reason and foundation for their opinions in relation to the mode of death of the deceased.</p> <p>The objection that they were physicians in the employ of two insurance offices which had each a policy in the life of the deceased, may go to their credibility, but does not make improper their answers to the questions propounded.</p> <p>The jury, after being two days and two nights deliberating on their verdict, came into court, and through their foreman asked the court for further instructions as to the weight to be given to oircumstantial evidence; and the court having briefly charged the jury that they were bound to act on circumstantial evidence as much as on any other evidenoe, and being about to send back the jury to their room for further deliberations, the counsel for defendants asked the court to give the jury a more explicit charge as to the character of the circumstantial evidence which was entitled to consideration by them. The court interrupted the counsel, and absolutely refused to hear what he had to say, or even to permit him to address the court upon the right of asking for additional charges on the particular information wanted by the jury.</p> <p>On this point, it is obvious that the judge a quo erred, and that he refused to the prisoners a most importánt, and, in this instance, vital right.</p>

<p>Appeal from the Parish Court, Parish of East Feliciana, Hughes, J.</p>

<p>The plaintiff being ostensibly the owner, under Ms purchase at sheriff’s sale, of the property rented to defendants, is entitled to its revenues. If the intervenor is the real owner and as suoh entitled to both the property and its revenues, he must seek his remedy in a different direction.</p>

<p>Seotion 8 of act No. 47, of 1873, -which disqualifies as a -witness a delinquent taxpayer, published as such for thirty days, is unconstitutional.</p> <p>This provision of the act under consideration is a regulation or rule of evidence enacted by the Legislature. The title of the act should then give some indication of it, which it does not. No one upon reading that title would imagine that the act contained any provision upon the rules of evidence or the right to be a witness in a oourt of justice.</p>

<p>Tbe special mortgage given by tbe natural tutrix of tbe plaintiffs in 1858 was strictly in conformity to law, and tbe tacit mortgage sought to be enforced against her or those who bold under her was legally extinguished.</p> <p>It is well settled that tbe bolder of property under recorded titles, can give a valid mortgage thereon where tbe mortgagee has acted in good faith, and tbe transaction is a real one, regardless of tbe simulation of tbe morbgageor’s title.</p>

<p>Application for a writ: of prohibition against the Judge of the Superior District Court, parish of Orleans.</p>

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

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

<p>It is well settled that want of citation of appeal will he cured where the appellee appears and contests the case on any other ground.</p> <p>"Where there is no note of evidence on the subject in the record, the rule is that the judge who condemned the defendants as commercial partners solidarity on their note, did se on proper evidence.</p>

<p>Appeal from tile parish. Court, parish of Iberville; Orowell, J.</p>

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

<p>The power delegated to police juries hy the Legislature to levy taxes for parochial usest and the special power to levy a uniform per centum on every species of property,, trade or profession on which the State assesses a tax, is not unconstitutional.</p>

<p>The plea of res judicata is not tenable, when the decree referred to in support of the plea declares that a judgment of nonsuit is rendered.</p> <p>Prima fade, every acceptance affords a presumption of funds of the drawer in the hands of the acceptor, and the evidence in this case supporting the legal presumption resulting from the acceptance of the draft, that the drawers, either had funds in the hands of the acceptors, or, at any rate, had reasonable grounds to expect that their draft would be honored, said drawers were entitled to notice of dishonor, and on failure thereof were discharged from liability.</p>

<p>The ordinance of the police jury of the parish of Concordia, which provides for the levying of a special tax to be known as a contingent tax, to be appropriated to the payment of all warrants drawn on the same for the payment of attorney’s fees — any surplus to be held,by the treasurer as a fund for the payment of miscellaneous warrants drawn on said fund, as might be thereafter provided by ordinances of the police jury relative to the same, is violative of the 2745th section of the Revised Statutes.</p> <p>In so much as concerns the payment of attorney’s contingent fees, it will be time to levy and collect a tax to pay the same when the contingency which may make them due, shall have arrived. The contingency may never happen, and there would then have been no necessity for collecting the tax.</p>

<p>A judgment can not be annulled unless all the parties to it are cited.</p>

<p>If the description of property to be sold is insufficient, the owner thereof can not be injured, because there will be no sale. Therefore this is no ground for an injunction by the defendant in execution.</p> <p>The plaintiff is not entitled to claim the homestead he pretends to be entitled to, out of the property seized, which is his undivided sixth interest in a tract of land containing some five hundred acres, which he held in common with other heirs. What is seized is not susoeptible of being a homestead; it is only plaintiff’s share in the land; it is an incorporeal thing j and what is incorporeal can not be the object of the operation of the1 homestead law.</p>

<p>Appeal from the Parish Court, parish of East Baton Rouge. Davis, J.</p>

<p>Appeal from the Ninth Judicial District' Court, parish of Kapides. Orsborne, J.</p>

<p>Appeal from the Parish Court, parish of Iberville. Orowell, J.</p>

<p>Appeal for a mandamus to the judge of the Fourth District Court, parish of Orleans.</p>

<p>The interference of the public administrator in this instance, on whose application defendant was removed from her trust as executrix, and himself appointed dative testamentary* executor, was officious, and the judgment is erroneous. This is not a vacant succession ? neither had the person appointed executrix failed to qualify, nor had she been removed,, nor had any of the creditors asked for her removal. .</p>

<p>Margaret Morgan, the surviving wife and natural tutrix of the child of the deceased, opposes a creditor’s application for the administration, and claims it in her own right and as tutrix of her child.</p> <p>In the absence of proof to the contrary, it will be presumed that the laws of Mississippi were the same as those of Louisiana on the status of slavery, and that the laws of both States did not authorize slaves to enter into contracts of marriage, so as to create any civil effects.</p> <p>Therefore, the fact of deceased having married while a slave in Mississippi, did not prevent,, notwithstanding the former Wife still continued to exist, his lawfully marrying Margaret Morgan in Louisiana, where he resided after his ©mancipation. Besides, it is not in. evidence that Margaret Morgdfc. knew of his having another wife when he married her.</p>

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

<p>A contest, to be paid by preference, out of the proceeds of this succession, arose in. the court below, under the homestead law, between the vendor of a lot of farniture, the lessor of a house and lot furnished with said farniture, and the tutor of a minor child left in necessitous circumstances. In this court the contest is limited to the homestead claim, and the party asserting the vendor’s privilege.</p> <p>The claim of the minor must prevail. The homestead privilege was given the highest rank with one exception, that of the vendor, and for expenses in selling the property. As there are two privileges of the vendor, that on immovables, which enjoys the highest rank, and that on movables, which holds an inferior rank, the exception can not apply to both, butonly to the one holding the first rank — that on immovables. Hence the homestead privilege must prevail over that of the vendor of movables, which itself is inferior to that of the lessor. This construction obviates all difficulty in construing the several articles of the Code bearing on the subject.</p>

<p>W&ere the objection -was that the plaintiff alleged that the indebtedness of the defendant arose from family and plantation supplies furnished in 1870 and 1871, that the first item appearing on the-plaintifi's account charged: “1870, April, account rendered $3970,“ air may hare accrued from and after first January 1870, was not, and did not purport to be for such supplies, and was too general and indefinite to admit of proof;</p> <p>Meld — That the objection was well taken and that the testimony offered should have been rejected.</p> <p>‘The husband of defendant was the manager of the Verona plantation belonging to her, pricy' to her being separated from him by judicial decree in October 1869. During that year ■ .he reoeived supplies from the plaintiff and the sum of $3970 oharged, as before stated, as the first item on the account sued upon, is inforrod to be, for the most part, for the sup-lies of 1869. It is in proof that for the period of 1870 and 1871, for which the supplies are charged, she had always refused to supply the laborers on her plaee, which was leased out to them, and had neither authorized her husband nor any other person to contract for supplies. The plaintiff can only have judgment for $303 18, as the amount of artioles established as furnished to defendant and which went to her individual use.</p>

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

<p>The riglit of a garnishee to appeal for his own protection, has often been recognized by this court.</p> <p>In this case of Halpin v. Barringer, judgment was rendered for plaintiff, and a fi. fa. having issued, Woelper was made garnishee. He answered that he had certain funds deposited in his hands, in a certain suit. Upon this answer, judgment was rendered against him. This judgment is wrong.</p> <p>The judgment in the case in which Woelper was made garnishee, was against Barringer individually, in so far as the record discloses. The money in the hands of the garnishee belonged to a succession, of which Barringer was administrator. It was not liable to seizure in satisfaction of a judgment against him, and the payment of such a judgment would not release the garnishee.</p>

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

<p>The Intervenors have not in this case, as consignees, aoquired a superior right to the cotton shipped to them, beoause it was attached by plaintiffe before the bill of lading was-delivered to said consignees.</p> <p>The intervenors had no lien on the cotton in Mississippi by reason of having furnished supplies to raise it-, because it is shown that such a right can only exist in Mississippi by virtue of a contract lien, duly recorded in the “contract lien book,” in the circuit clerk’s office, and no such contract has been produced by them. Having no lien for supplies on the ootton in Mississippi, the interveiiors did not certainly acquire one after it came into this State.</p> <p>A ohattel mortgage is unknown to our law. It can not be enforced in this State, where movables are not susceptible of being mortgaged. This court is not bound by the comity of nations to enforce a contract, which, if mado here, could not defeat the rights acquired by attachment under our own laws.</p> <p>The position taken by the intervenors that they are the owners of the cotton and therefore entitled to its proceeds, contradicts their judicial admissions in their petition of intervention, and therefore can not be permitted.</p>

<p>It is not necessary that tlie appellant should sign the appeal bond} but an appeal granted to Elizabeth McQueen and others can not be perfected by an appeal bond signed by M. McQueen, as principal, and C. B. Austin, as security. The surety of M. McQueen can not be regarded as the surety of Elizabeth McQueen.</p>

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

<p>The creditor of a succession can call upon the courts of competent jurisdiction to see that the administration thereof be properly conducted.</p> <p>This court sees no warrant in the law of Louisiana for answering in the affirmative thfr following questions: If' a wife sue her husband for a separation from bed and board and a dissolution of the community which existed between them, and judgment is pronounced in her favor, dissolving the community j and if, after living apart for several years, and no judgment of divorce has been pronounced between them, they become reconciled, does reconciliation wipe out the judgment of separation and replace the parties in the same position they were in before it was rendered ? Does property acquired by either of the spouses between the time the judgment was rendered and the reconciliation fall into the community ?</p> <p>There is no article in the Louisiana Code which corresponds with the article 1451 of the Codo Hapoleon. It was the law of France, even before the adoption of that code, that a community which had been dissolved might be re-established. Here there is no such law.</p> <p>The administratrix, in this case, has not filed an account of her administration within a twelvemonth. The law mates this her duty, for the non-performance of which, the-penalty is dismissal from office.</p>

<p>It is sufficiently clear from the tenor of the will on record, that the testator had the desire to give the seizin to the executrix. Any disposition or recommendation from the testator to his executor in regard to the mode in which Ms property is to be administered is a sufficient indication of his desire to grant the seizin. It is not necessary that the word seizin be inserted in the will to confer’tbe power.</p> <p>The executrix is entitled to credit for interest paid to procure extensions of mortgage notes, it not being shown that she had moneys in hand sufficient for the purpose of taking up the notes of the deceased when the renewals were made. It was important to the inter-'eat of the estate that they should be taken' up.</p> <p>The sum of §21,500 reported by the auditor in this instance, as amount of sales of property of the separate estate of the deceased during his last marriage and charged against his widow, was properly rejected by the court below, as there is no evidence to show that the proceeds of that property inured to the benefit of the community.</p> <p>It is expressly announced by article 1749 of the Civil Code that “all donations made between married persons, during marriage, though termed inter vivos> shall always be revocable,?’ The restoration by the wife to the husband of the various articles donated to her and the subsequent conversion of them by him for the uses and benefit of the community may be regarded as a revocation or an annulment of the donation.</p> <p>Apart from the disability of the husband and wife to enter into a contract with each other, except when the law expressly permits it, the promise or engagement of the husband to return to his wife the value of the articles donated back to him, by replacing them with others of the same kind and of the like value, could only be regarded as an imperfect obligation at best, and one that can not be enforoed by law. It did not have the binding force of a legal obligation against the husband and neither can it have against his heirs.</p> <p>A donation made in money, in the form of the manual gift, is valid without the formality of a notarial act of transfer.</p> <p>There is no foundation for the assertion that the provisions of artiole 3749 apply to donations by public act and not to manual gifts-which require no formalities after delivery. This; court is unable to discover in our code any exception to the rule laid down in artiole 1749.</p> <p>It is contended that, if by the act of donation from the husband, the money became hers absolutely, then by operation of law, article 1753 of the Civil Code, the ownership of said money changed, and was vested in the heirs in consequence of the wife’s second marriage. The court thinks that articles 1746, 1750 and 1752 must be construed together with article 1753, to which latter article the three former ones are subordinated, and that their operation is contingent upon the conditions expressed in the article Í753, which- i» not found in the Napoleon Code, but which was incorporated into our system of laws from the Homan law and Spanish Codes.</p> <p>The attitude of the parties to this litigation would seem to present a case provided for by the article 1753 of our code. During the marriage large and valuable donations were made by the husband to the wife in the form of the manual gift. The husband died, leaving children by Ms marriage with the donee, who has contracted a second marriage, the children of the donor still living. But in this case the conclusion of the court is that the provisions of artiole 1753 can not be enforced, for the reason that the substance of the donation is no longer tangible nor susceptible of identification. The property, of wMch the ownersMp, under such circumstances, becomes vested in the children, must-be the same property that was donated to the wife by the husband during the marriage.</p> <p>In this case, the money constituting the particular donation under consideration, has long since been used by the executrix, the donee, for the benefit of herself and family. It is no longer in esse as to the rights of the opponents. The ownership of it can not be enjoyed by the children nor the usufruct of it by the mother, Hence the executrix can not be held liable for it.</p>

<p>Appeal from, the Parish Court, parish of Iberville. Orowell, J.</p>

<p>The proceeding to remove an administrator and force him to account is probate in its character, and the parish court had jurisdiction of the suit. The penalty inflicted under section 9 of the Revised Statutes of 1870 is only an incident to the suit.</p>

<p>When the judge fixed no amount for the appeal bond and a suspensive appeal was granted on giving bond conditioned according to law, the appeal will bo dismissed. The amount of the appeal bond is not sufficient for a suspensive appeal, and it will not do for a devolutive one, because it was not for an amount fixed by the judge.</p>

<p>The evidence shows that the defendant never objected to the incorrectness of the account rendered to him until after the institution of this suit on said account. It is an account stated: oompte arrete. The prescription of three years does not apply to such an account.</p>

<p>Appeal from the Fifth Judicial District Court, parish of East Feliciana. Cole, J. Jury trial.</p>

<p>*Where the plaintiff, individually and as administrator of a succession, sues to annul the sale of the succession property and other proceedings held in connection with the settlement of that succession, on the grounds that his attorney exceeded his authority therein; that the sale was null, no price heing paid; and that all said mortuary proceedings were had without his knowledge or authorization, and were in fraud of his rights; and where said plaintiff instituted this suit more than six years after the sale which he seeks to annul;</p> <p>Held — That under the circumstances presented in the record, this court can not think there should be much hesitancy on rejecting plaintiff’s demand.</p> <p>Whatever may be the ordinary relations between the administrator of a succession and his attorney conducting the neccessary judicial proceedings in the settlement of a succession according to the laws of this State, an administrator, residing in a parish distant from that where the succession is opened, who showed so little interest in, and attention to, his fiduciary trust, who allowed such a length of time to elapse before taking a single ••step of a personal nature, and who committed the whole succession to the sole management of his attorney, should not be heard with much favor when he asks a court of justice to undo what it has done at the request of his attorney.</p> <p>It was the duty of the administrator, as an officer of the court, to know what proceedings were being had in the succession administered by him and to present himself, or have another attorney to represent him, in the place o4f the one who had died. To grant his demand would be a premium upon negligence in fiduciary agents and officers of courts.</p> <p>The prescription of one year to this action of nullity is properly invoked. The argument of the administrator that prescription only began to run when he discovered the alleged fraud practiced upon him, can not be of any avail, as he was bound in law to know his duty as administrator, and what proceedings were had in the settlement of the succession under his care.</p>

<p>The plaintiff has instituted this suit to recover the amount of certain notes which he gave for having purchased at the succession sale, of one Sompeyrac the undivided half of a tract of land. He alleges 'that these notes were paid in error, having recently discovered, that the said succession had no title to the undivided half of the tract of land so sold and adjudicated to him, and hence that he paid what he did not owe and for something which he did not acquire.</p> <p>The plaintiff’s action is premature, as no eviction or disturbance has occurred; and if it be considered an action of rescission, which it is in effect, it is defective, because plaintiff has been in possession several years, has made no tender of the property, or offer to return the same to the defendant, nor made an allegation that he has been disquieted, or has a just reason to fear disturbance or eviction. The demand, as made, puts the plaintiff in the position of keeping the property and demanding the return of the price.</p>

<p>Assuming that "a husband acted as tho agent of Ms wife in matters connected with the . general administration of lier affairs or business, it must be shown that he had authority, express and special, sufficient to bind her by his promise to pay the debt of a tMrd person.</p> <p>Under the act of 1858 the promise to pay the debt of a third person can not be proved by parol. It must be in writing, the law is proMbitory, and this court can not recognize any other proof to establish the fact.</p> <p>It is well settled that men who furnish materials have no privilege, if the contractor with whom they dealt had none.</p> <p>The acknowledged account oí plaintiffs against Allison, the contractor, did not give them a privilege on the property of defendant, for whose buildings Allison bad bought materials from them. At most it only entitled them to such privilege as Allison might have.</p> <p>Having tailed to record his contract, Allison had no privilege j consequently the plaintiffs are in the same category.</p> <p>Whatever sum the defendant may have in her hands, due on her contract with Allison, after deducting the amount expended to complete the buildings subsequently to Allison's abandonment of his contract, belongs to Allison, and it certainly can not be distributed among his creditors in this proceeding, because he is not a party.</p> <p>The plaintiffs, who are creditors of Allison, have shown no authority from him to collect from defendant whatever sum she may owe on a final settlement.</p>

<p>By the judgment homologating the final account and tableau of her administration, the administratrix, plaintiff in this case, was discharged from her trust. Therefore, if that judgment be not utterly null, she, as administratrix, has no standing in court.</p> <p>The evidence in the record shows that the attorneys who filed the account [were employed by her and that they were authorized to act in the premises.</p> <p>Besides, more than twelve months had elapsed from the rendition of the judgment homologating the account, when this suit in nullity was instituted.</p> <p>The administratrix can not bo listened to, when urging her own laches in having the accounthomologated before the account and tableau had been advertised ten days, in order to gain an advantage individually.</p>

<p>The main question in this case is, whether a plantation having been sold at the suit of a first mortgagee, the rights of subsequent mortgagees are transferred by the sale to the proceeds — said mortgages no longer subsisting. The decision of the controversy depends on the interpretation to be given to a clause m the concordat between certain debtors and their mortgage creditors of superior and inferior rank.</p> <p>This court thinks that said clause, which is recited at full length in the judgment, did not bind Mrs. Crozat, one of tbe first class creditors, in case of her foreclosing her mortgage to cause the property to be sold at one, two and three years, for the reason that her mortgage was not novated, that her note was not identified with the concordat, and that she could not proceed under it to enforce her mortgage rights. Her purpose, in becoming a party to the concordat, was simply to give certain debtors an opportunity to pay their debts to their creditors by suspending the enforcement of her mortgage to a given time, provided the interest on her claim was punctually paid. The failure to pay this interest, which was made the express condition of her agreement to the delay, released her from the obligation of said contract, and restored her to her full rights under her own act of mortgage.</p> <p>Mrs. Crozat did not expressly consent in the concordat, to enforce her first mortgage under the stipulations of that second act, and it is not to be presumed that sbe gave up more of her rights than were clearly and distinctively waived or relinquished. This act is to he construed liberally in her favor, as no one is presumed to give. She had therefore the right to seize and sell as she did. The sale and adjudication to the plaintiff having been legally made, and the price absorbed by the first and second mortgages, those created in favor of the third mortgagees are properly canceled, and the plaintiff can not be disturbed in the rights he has acquired.</p>

<p>The defendants in injunction took a bill of exceptions to the permission granted by the court a qua, for an amended petition to be filed by the plaintiff on tbe ground that the suit being an injunction one, all the matters of law or fact that can justify tbe issuing of such process could and should only he alleged and pleaded in the original petition.</p> <p>The ruling of the court was correct. The amended petition contained only the plea of prescription which may he pleaded at any stage of the proceedings.</p> <p>The debts of the community during its existence are the debts of the husband. The property of the community is liable for the payment of them. Even more, the community property may be taken to pay debts of the husband contracted before the marriage. On the dissolution of the community by the death of the wife, the responsibility of the husband in regard to tbe community debts, is not changed. He is absolutely and personally bound for their payment; and his separate property may he seized and sold for their acquittal. ’</p> <p>Hence the community property justly oomes under bis control until tbe debts are paid. Before their final settlement and discharge, the heirs have no absolute rights to the property of the community that can be legally recognized. Their interest in it continues contingent and uncertain until, by the result of the final discharge of all the obligations of the community, it is known whether or not there are assets remaining for partition between the survivor aud the heirs of the deceased spouse.</p> <p>If the surviving husband has the right to control the community assets, and to administer them after his wife’s death, so as to make bona fide settlements of its debts, he has equally the right to waive or omit specific defenses to suits and indisputable claims.</p> <p>If, through fraud used hy a surviving husband in community to injure the heirs of the wife, he should sell or otherwise dispose of the community property, it would seem that they would have a remedy hy the provisions of art. 2404 of the Civil Code.</p> <p>In this case the husband had hy law the usufruct of the wife’s half of the community property, consisting of the undivided half of the lands seized by the judgment creditors, no partition of the community property having been made. Nevertheless, without opposition on the part of the surviving husband, the public administrator came forth and administered on what he styled the estate of the deceased wife, and injoined the sale of the community property seized by judgment creditors of the community, and which is subjected to the payment of their judgment. This proceeding is irregular and illegal, and the injunction must he dissolved with damages.</p>

<p>Appeal from the Fifth Judicial District Court, parish of West Baton Eouge. Posey, J.</p>

<p>"Whether Hatch, the United States collector of customs at the port of Hew Orleans, continued after secession to act in the same capacity as "before, or whether he became collector of customs for the Confederate States, it is not important to decide in this case, as in either event the payment of duties to him should protect from seizure the property on which the duties were paid.</p> <p>If Hatch had ceased to represent the Government of the United States and represented the Confederate States, the payment should protect the property, as it was made to the representative of a power which had the ability to enforce its demands, and which the United States, for the time being, were unable to resist.</p>

<p>The plaintiff sues to have defendant declared the father of her illegitimate child and to have him condemned to pay a oertain sum for alimony to said child. One of the pleas of the defense is res judicata. There was a previous suit between the same parties for the same cause of action in the Fourth District Court, parish of Orleans, with the exception that, in said suit, the plaintiff had also claimed damages on the ground of injury done to her character and reputation by seduction. There was judgment, on the twenty-eighth of February, 1872, dismissing the claim of the minor child for alimony; and, on the next day, twenty-ninth of February, the claim of the mother for damages having come to trial before a jury, was dismissed on motion of her own counsel. The order of the twenty-eighth of February, dismissing the minor’s claim for alimony, was not entered on the minutes through clerical error, and in May following, on motion of defendant contradictorily with plaintiff, said judgment against the minor was entered nunc pro tunc.</p> <p>The court a qua had the power to make this correction of the minutes, and to cause the judgment to be properly entered, as was done. It follows that the plea of res judicata must be sustained.</p>

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

<p>■Where the life policy of insurance contained the following clause: “ This policy shall not he* be binding on the company, until countersigned by J. R. Purvis, agent, of Hew Orleans, Louisiana, and the advance premium paid,” and where before the policy was received by the agent at Hew Orleans, John W. Hardie, the person intended to be insured, died j-Held — That the premium never having been paid, and the policy never countersigned by Jr R. Purvis, the agent, or delivered to the assured or his representative, the plaintiff can not recover.</p> <p>The obligation contracted by the company was a suspensive conditional obligation, depending upon future and uncertain events which have not happened.</p>

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

<p>The written acknowledgment of a debt need not be stamped before it can be received in , evidence.</p> <p>In this instance, the note described in the act acknowledging the indebtedness, and interrupting prescription as alleged, is not sufficiently identified as the one sued upon— which it was incumbent on the plaintiff to show. It was his duty to make out his case positively and he has not done so.</p>

<p>The plaintiff, a mere mortgagee, had no right to injoin the sale oí' the plantation of Bovard under executions in favor of a number of creditors of said Bovard, on the grounds substantially that the sheriff was proceeding irregularly and illegally in making said • sale. If the sale be null for illegality, it can not affect his rights; and if the sale be valid, his remedy would be by third oppositon to claim the proceeds of the sale.</p>

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

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

<p>One of the defendants, A. L. Gusman, moved in tlie court below to transfer tliis case to fcheCircuit Court of tli*-* United States, on tlio ground that he is a citizen of the State of New York, and has that right under the act of Congress approved July 27,1866, entitled “An Act for the removal of causes m certain cases from the State courts/’ It appears that there are two defendants besides the ono making the application for the removal and that they are citizens of this State.</p> <p>This being the case, it results from the decision of the Supreme Court of the United States, in the case of Coal Company v. Blatchford, 11 Wallace p. 172, that the case is not transferable under the said act of Congress.</p> <p>The copy of an act of sale of a lot and house under private signature, attested by two witnesses, one of whom made oath before the recorder of the parish of the execution thereof and of the signature of the parties to the act, is insufficient to prove title to real estate, but the original must bo produced and tbo signature proved, giving the privilege to the defendants of admitting or denying the genuineness of the signature. The evidence should have been rejected.</p>

<p>After sequestration, a certain quantity of sugar and molasses was, by agreement of the parties, shipped by the sheriff to the firm of Da Silva & Weysham, the proceeds to be held by the sheriff subject to the decision of the court.</p> <p>By tins agreement the parties made the sheriff their agent, and as he was not therein acting in his official capacity, his sureties are not liable for his failure to pay over the money. But he is personally liable, as it is shown that he has several times promised to pay the plaintiff the sum claimed, and there being an obligation on which the promise is based, and the evidence being received without objection.</p>

<p>The partition of succession property, real and personal, can be considered a no more solemn act than the transfer of real property, which may be proved by propounding interrogatories, as was done in this case. Therefore the exception to the interrogatories was not well taken, on the ground, that no act of partition can be proven under the law, except by a written act of partition signed and executed by the parties thereto.</p> <p>The motion to strike out certain specified portions of defendant’s answers, as being irrelevant or contradictory, can not be maintained. The object of the interrogatories was to prove a partition by the mutual consent of all the heirs and to establish the consent of the respondent thereto. She certainly had the right to state all the conditions and stipulations of the alleged agreement and the facts upon which her refusal to complete it was based. Such matters are-closely linked to the facts on which she was interrogated, and they related to the very gist of the controversy. They are not irrelevant, nor are they con tradictory, when taken all together.</p> <p>The defendant objected to the introduction of her answers, until the plaintiffs had first shown that actual delivery of the property was made under the alleged partition. The answers were properly received. It is a rule of practice under our jurisprudence not to control a party in the order of introducing his proofs.</p> <p>The defendant's objection to any parol evidence to contradict her answers to interrogatories on facts and articles is well taken. The plaintiffs’ action is based on the theory that the partition is a transfer or exchange of real estate, and it is well settled that the answers of a party to interrogatories propounded to prove such transfer or exchange, can not be disproved or contradicted by parol.</p> <p>The same objection was properly taken to the parol evidence to prove a partition “ of the movable property mentioned in each lot/’ The partition of a succession is the division of the effects of which the succession is composed, among all the co-heirs, according to their respective rights. In this case the succession was oomposed of real and personal property and rights, and the partition was intended to be of such property and rights as a whole or mass, and the evidence should be that which is necessary in relation to real property.</p> <p>The proof of the delivery of real property is not confined to written or documentary evidence.</p>

<p>The question in this case is whether the sale, in consequence of which the note sued upon was given, is one per aversionem, or per acre.</p> <p>On the trial, the court below did not err in receiving in evidence, offered by plaintiff, the deeds of sale from the Citizens’ 'Bank and from the sheriff to him, in which the boundaries of the land sold were described.</p> <p>It follows from said evidence that it was the sale of a plantation described in certain deeds wherein the boundaries were specifically set forth, with all that was upon it, for a certain price for the whole. It was a sale per aversionem, and not per acre. The plaintiff purchased by boundaries and sold by boundaries within which the number of acres is described “as more or less.”</p>

<p>It is well settled that a coproprietor can not erect improvements on the common property and compel the other joint owner to contribute to pay for the same without the consent of the latter.</p> <p>The defendant in this case contends that as Bayley, the plaintiff, sold him the undivided half of a plantation which he held in common with Pugh, “together with the undivided half of the buildings and improvements thereon,” he sold him half of all the improvements,, including those erected by Pugh, without plaintiffs consent; that this sale was virtually an election to take half of said improvements made by Pugh; that it was an implied promise to pay for half the value thereof; and that from this instrument an obligation arose binding Bayley to pay for half the value of said improvements, which are proved tobe worth $4000, wherefore defendant refuses to pay for the last two installments due on his purchase.</p> <p>Pugh was not a party to the instrument, which is alleged to contain said implied election on his behalf. This court is of opinion that there was no such eleotion, implied or express, in that instrument, and as the plaintiff, Bayley, was not bound to pay Pugh for the improvements, he incurred no obligation in favor of Benny, the defendant, on the payment by the latter of $4000 to Pugh for half ot the improvements.</p> <p>Assuming that Bayley sold to the defendant the improvements erected by Pugh, which is denied, there is no eviction shown; consequently no obligation arising from warranty can be set up in defense of this action. Besides when, as in this case, the purchaser i» aware of the outstanding title of a third party, or the circumstances out of which the subsequent disturbance arose, he can not suspend payment of the price, nor require security against eviction.</p> <p>On the trial the court a qua, did not err in receiving the evidence offered to explain what improvements were intended by the parties to be sold — whether the improvement» belonging to the joint ownership only, or whether also the improvements belonging to one of the coproprietors. The object of this proof was to ascertain the value of the subject to which the instrument refers.</p>

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

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

<p>ÍA. third opposition is allowed, first, when tlie third, person making the opposition pretends to be the owner of the thing seized; second, when he contends that he has a privilege on the proceeds.</p> <p>In this instance it is not contended that the minors on whose behalf an intervention is made, •own the property seized; and if' they had a privilege on its proceeds, about which this court says nothing, it could only be enforced when the sale had been effected. It has not been shown that there is any law authorizing a judge to order, as he did, the sheriff to make no title to property to be sold under execution unless it bring the price fixed upon by him.</p>

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

<p>Plaintiff borrowed money to pay two notes wbicli were secured by mortgage upon tbe property she claims as lier own, and to prevent tbe sale of which sbe injoins tbe sheriff, and tbe two notes were paid with tbe proceeds of tbis loan. It is not, therefore, trae, as sbe alleges, that tbe money was borrowed and used for tbe benefit of her husband. This is established by the testimony of tbe notary who drew tbe act of mortgage and of tbe broker through whom the money was borrowed. It was a fact necessary to be established. Tbe objection to tbis evidence was properly overruled.</p> <p>The acts of mortgage under which plaintiff borrowed the money upon the note, tbe collection of which sbe has injoined, and which show her antecedent indebtedness, relate that sbe bad been specially authorized to borrow the money by tbe judge of the Third District Court of tbe parish of Orleans. Her objection to tbe introduction of these acts was not well founded. They were signed by her and were, therefore, her own acts and declarations. Admitting that they could be disproved by parol, tbe burden of doing so rested upon her.</p> <p>Tbe objection that tbe judge of the Third District Court of tbe parish of Orleans, where sbe resides, had no power to authorize her to make tbe loan, is without solid foundation.</p> <p>The judge of tbe Third District Court is as much a'district judge as any other district judge in tbe parish. The law says that a married woman who desires to borrow money and to mortgage her own property to secure tbe same, must be authorized so to do by the judge of the district or parish in which sbe resides. As tbe judge of tbe Third District Court, although having a limited jurisdiction for the convenience of business, is a district judge for the parish of Orleans, it follows that plaintiff was authorized by tbe judge of her district in the sense of tbe law.</p>

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

<p>In tliis suit against the succession of a defaulting tax collector and his sureties, a bill of exceptions is taken by defendants to the admission of a certified extract from the books oí the State Auditor, showing the indebtedness of the deceased tax collector to the State, on the ground that it was not the best evidence, but a copy and the absence of the original was not accounted for, and such original could not furnish proof of the statements contained in the copy.</p> <p>The instrument objected to is a certified transcript of the tax collector’s account in the Auditor’s books and not a certificate merely of facts.</p> <p>It was the duty of the Auditor, a sworn officer of the State, to keep an account with the said tax collector and charge the latter with items of defalcation, and he is authorized by law to give certificates of the contents of such books and of the records of his office under his official seal.</p>

<p>In 1861, by an act of the Legislature, a part of the territory of the parish of Madison, embracing the plantation claimed in this suit, was transferred to the parish of Tensas after the decease of the owner, who died m 1855.</p> <p>In 1867 an attempt was made to open the succession of the deceased in the parish of Tensas, by appointing a curator of absent heirs, who caused the property to be sold to pay debts, as it is alleged. It is through this sale that the defendant claims to hold.</p> <p>The probate court of Madison parish, where the deceased had his domicile at the time of his death, had exclusive jurisdiction of his succession. Everything done in that succession in the parish of Tensas-was therefore null and void.</p>

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

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

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

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

<p>This is made up of separate suits; the judgments were separate; and in none of tlie oases were $500 demanded. They were consolidated and taken as it was merely for convenience. It follows that this court has no jurisdiction.</p>

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

<p>The plaintiff sues defendant for the balance of an account for supplies furnished to make a crop, which he alleges inured to her benefit. It was incumbent on plaintiff to prove that the articles thus furnished had inured to the benefit of defendant, as alleged, but he has failed to do so. Besides, this court is satisfied as to the correctness of the defense— which is — that the debt is a community debt for which the defendant, who was a maraed woman, can not be held responsible.</p>

<p>An incoming sheriff has not the right to require his predecessor to deliver to him the moneys realized by the latter on executed writs and for which the outgoing sheriff and sureties-are liable on his official bond.</p> <p>It will hardly be held that when a sheriff becomes functus officio he can execute writs and process of courts in his possession remaining unexecuted. His mission is completed and his authority to actively enforce the laws is at an end. But there is no impropriety or unfitness in his paying over moneys which he has in hand to the party legally entitled to receive it. Hois responsible'for it and not tho incoming sheriff, and the right of the-latter is unwarranted by law.</p>

<p>The police jury of the parish of Rapides is a political corporation of limited powers. Under-authority to clear the banks of navigable rivers “for the purpose of securing a free passage for boats and other small river craft,” R. S. sec. 2743, the police jury can not- • remove nor break up the woodyard of the plaintiffs, established years ago, and which in no manner interferes with the free navigation of Red river.</p> <p>The police jury has authority to control the roads of the parish, Revised Statutes, sec. 3364, but the ordinance complained of does not profess to have been passed, and obviously was-not passed, in the exercise of this power. Besides, a sufficient ground to defeat the pretensions of the police jury is that they have no authority to deprive plaintiffs of the right to pursue their occupation as keepers of a woodyar^, which is not alleged to-encroach on any public road.</p>

<p>In Ootober, 1867, David Grant injoined tbe execution of a judgment which his partner, George MeGibbon, had confessed against the commercial firm of Grant & MeGibbon in favor of R. 0. Hyatt, and the defendant, W. R. Bell, signed as security the injunction bond. Before the trial of the injunction suit, Hyatt transferred to the plaintiff, H. Pottier, all his right* title and interest in and to the judgment. The injunction was subsequently dissolved by a judgment in the court below which, on appeal, was affirmed in this court.</p> <p>This suit is brought by Pottier, the transferree, to recover damages on the injunction bond. It is contended by defendants that there is no privity between them and the plaintiff, because the bond is not in his favor, and the right to claim damages for the illegal in* junction was not transferred to plaintiff together with the transfer of the judgment injoined.</p> <p>This defense is not well founded. The injunction suit passed as an accessary to the plaintiff with the judgment he bought from Hyatt. After said purchase the plaintiff alone had an interest in resisting the injunction which had but a short time before been taken out, and became the real defendant in said suit, because he was the owner of the judgment injoined, and the injunction bond, although in favor of Hyatt, must he held to he in favor of the owner of said judgment, who acquired the essential right to execute it and also to claim damages for the illegal restraint of the exercise of that right.</p>

<p>At a succession sale of the property of the estate of Horace Groves, deceased, made in the parish of Tensas on the eighteenth of April, 1868, a certain tract of land was adjudicated to E. Slicer. He afterwards sold the land to Mrs. Julia Scott, who obtained a monition in the parish of Tensas to secure her title, and said monition was homologated by judgment of the district court on the twentieth of October, 1873, from which judgment an ,yj appeal has been taken by certain heirs of the deceased, on the ground that said succession had been fraudulently opened in the parish of Tensas, when it was well known that it had been opened and was being administered in the parish of Madison, where the land in question was situated, before its being subsequently located in the parish of Tensas, in consequence of a change of boundaries by virtue of an act of the Legislature.</p> <p>In this case, Mrs. Julia Scott seeks by a monition taken out in the parish of Tensas to defeat a claim set up against her in the district court of the parish of Madison for the very tract of land sought to be disencumbered of all adverse claims by the monition. To this petitory action of the appellants in the district court of the parish of Madison, Mrs. Scott had answered, and when this suit was in progress in the proper court, she applied for a monition in another parish. It would be subversive of all propriety of legal proceeding if Mrs. Scott could by a flank movement of this sort conclude the rights of the appellants and confirm irrevocably her title to the land.</p> <p>The appellants are not therefore affected by the judgment homologating the monition. Their judicial demand, claiming to be the owner of the land, was to all intents and purposes as effectual notice to Mrs. Scott, as if they had presented themselves in the parish of Tensas and made a formal opposition to the monition.</p>

<p>The important question in this case is: Has act Ho. 77, of the legislative session of 1870, entitled “ An Act to authorize the stockholders of the Loan and Pledge Association ” to change the name of the incorporation, and to grant certain privileges to said association, been properly accepted ¶</p> <p>The answer must be in the negative. .The acceptance of an act which fundamentally changed the character of the institution, should have Deen by the unanimous consent of the stockholders. The assent which was given by a majority is not sufficient.</p> <p>Legislative alterations of the charter of a private corporation, when merely auxiliary and not fundamental, may be adopted by a majority of the corporators, and such acceptance will bind the whole; but if such alterations be fundamental, the acceptance must be unanimous.</p>

<p>It can not be contested that a married woman bas a right to compromise a law suit pending against berself; and transactions have, between the interested parties, aiorce equal to the authority of the things adjudged.</p> <p>It is difficult to imagine, in this instance, how it can be pretended that the money loaned by Sollibellos, the defendant in injunction, for enabling Mrs. Barron to effect a compromise about a suit brought against her, did not inure to her benefit, nor can she be listened to when saying that the debt on which she has been sued, was the debt of her husband, when the contrary is proved by the compromise thus agreed to with a view of putting an end to that law suit.</p> <p>The interventions were improperly allowed in an injunction suit which was to prevent a sale. If the intervenors have privileges, they can only enforce them upon the proceeds of the sale of the property in the hands of the sheriff; and if any part of the property seized is claimed to belong to some one else than the debtor who injoined, that claimant’s remedy is by injunction obtained according to law.</p>

<p>Where the defendant in substanoe confessed judgment for the greater part of the debt, leaving in contestation only the sum of two hundred and seventy-five dollars, an amount not within the jurisdiction of the appellate court, the motion to dismiss the appeal must prevail.</p>

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

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

<p>Appeal from the Thirteenth Judicial District Court, parish of Car-’ roll. Hough J.</p>

<p>The evidence in this case shows that the transfer, tbe legality of which is questioned, was not a sale, but a giving m payment; that, at the time," the transferrors were in insolvent circumstances, and that the traDsferrees knew that fact. The transfer was evidently designed to give an unjust preference to the transferees.</p> <p>The pretext that the plaintiffs were not injured by the transfer, because Homer, Hex &• Tracey, the transferees, had a privilege on the property transferred, is untenable. There is no evidence in the record to establish a privilege in their favor, and there is testimony to show that they could not have had a privilege on a large portion of the property embraced in the act of transfer.</p>

<p>Appeal from tlie Seventh District Court, parish of Orleans. Gallons, J.</p>

<p>■plaintiffs agreed to famish defendants with the means and supplies required to make a crop. Defendants agreed to ship their crop to the plaintiffs. Defendants made their crop and sent a portion of it to 25Tew Orleans, within the jurisdiction of the court a qua, to another person than the plaintiff. Said portion of the crop, on which plaintiffs claimed the furnishers’ privilege for supplies, was sequestered by them.</p> <p>The Seventh District Court erred in entertaining jurisdiction, because the domicile of the defendants was in the parish of St. Bernard. The conservatory order of sequestration was improperly granted, and, at the trial, should have been set aside and the suit dismissed.</p> <p>The court, having no jurisdiction of the persons of the defendants, had no authority to determine either the amount or character of the demand set up against them by the plaintiffs; it could not decide that defendants were indebted to plaintiffs in any specific sum, and that there was the furnisher of supplies privilege on the cotton sequestered.</p>

<p>Xu September, 1872, Potter, subrogee of the judgment styled Josephine Lacoste v. Mary Ann Nugent, who is represented as being no other person than Mary Ann Dockham, issued execution and seized under garnishment process the judgment of the plaintiff, Mary Ann Dockham v. The City of New Orleans. Before the garnishment proceeding was tried, to wit, in November, 1873, Mrs. Jane O’Rourke, subrogated to the judgment of the plaintiff" against the city, filed, a rule for the parties in interest to show cause why the amount of said judgment should not be paid to her.</p> <p>It is evident that Potter has a right to the judgment in controversy, which is superior to that of the plaintiff in rule, because the seizure under garnishment proceeding was made before the city was notified of the transfer of the judgment to Mrs. O’Rourke, plaintiff in rule. Until this notice was given to the judgment debtor, the transferree was not possessed of the judgment, so far as Potter, a third person, was concerned.</p> <p>To the objection that the judgment in the case of Josephine Lacoste v. Mary Ann Nugentwas a nullity, because the agent who confessed judgment was unauthorized to do so, the-answer is, that the judgment was consented to by an attorney at law in behalf of Mary Ann Nugent, and his authority was not denied under oath.</p> <p>It is further objected that the seizure lapsed because the sheriff detained in his hands beyond the seventy days the fieri facias upon which tho garnishment process issued. This court, finds that the writ was returned and a copy issued by the clerk upon which the seizure continued, in strict compliance with the law. Besides, an irregularity of this kind on the part of the sheriff would not release the seizure nor destroy the lien acquired thereby.</p>

<p>Appeal from the Superior District Court, parish of Orleans, llawMns, J.</p>

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

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

<p>The defendants invoke their title as purchasers "by mesne conveyance from the succession of Elizabeth Clew through John E. Clew, who acquired the property from that succession under the last will and testament of Elizabeth Clew, duly approved, registered and executed by judgment of the Second District Court, and put into possession as universal legatee under that will, this action of the Second District Court of New Orleans being, as it seems, predicated upon the proof that the will of the decedont had been duly admitted to probate by a decree of the surrogate of the county of New York.</p> <p>Bights acquired by third parties by virtue of a judgment which is rendered by a court of competent jurisdiction after fulfillment of all the legal forms and requisites, and which is final and executory, become, as a general rule, fixed and absolute, and can not be divested by a subsequent reversal of the judgment upon a devolutive appeal.</p> <p>An exception to the above mentioned rule would be where fraud had been practiced in obtaining the final judgment and the party in interest was party to the fraud, or where the fraud is apparent upon the record and could have been detected by an inspection of it. No exception of this sort is pretended to exist against the rights claimed by the defendants.</p>

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

<p>All the objections urged in this case as grounds for dismissing tbe appeal, except tbe last, were waived by failing to filo tbe motion within three days after the return day.</p> <p>As to tbe last objection referred to — wbicb is tbat all tbe parties interested in tbe judgment have not been made parties to tbe appeal, it is untenable. There is in tbe record an order for an appeal granted on motion in open court, and tbe bond is executed in favor of tbe clerk. All tbe parties who have not appealed are appellees.</p> <p>Tbe defendants, except one, who has not appealed with tbe rest, pleaded certain exceptions and answered to tbe merits. Tbe case was submitted to tbe judge on the merits, without bis being previously required to dispose of tbe exceptions. Tbe rule is that tbe exceptions are considered as abandoned in such a contingency.</p> <p>This rule is not inapplicable because tbe defendants were not present at tbe trial. If they desired their exceptions passed upon by tbe court it was their duty to be present, to urge it, before tbe case was taken up on its merits.</p> <p>Tbe defendants object tbat a dispute among tbe owners relative to tbe employment aud sale of a vessel belongs exclusively to tbe admiralty jurisdiction, and tbat tbe State courts are without jurisdiction. Tbat is not tbe question involved in bbis case. It is whether tbe defendants shall pay damages for breach of the contract of partnership, and also whether there shall be a settlement of partnership.</p>

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

<p>The motion to dismiss the appeal on the ground that the bond is not made payable “to the clerk of the court,” can not prevail.</p> <p>The bond is given in favor of HE. EL. Burns, his executors and administrators and assigns. The certificate to the transcript shows that HE. EL. Burns is the clerk of the court, besides other evidence thereof in. the record.</p> <p>■Without any evidence this court will take notice of the official capacity of HE. EL. Burns as a public officer of this State, and will presume that a judicial bond given in his favor was given in reference to that capacity and in reference to the statute requiring the bond to be given in favor of tbe clerk of the court.</p> <p>There is no doubt that the bond could be enforced against its makers, having been given in reference to the law, and this is the proper test of its sufficiency.</p>

<p>Seven suits were filed in the Sixth District Court, parish of Orleans, against TV. C. Harrison. Judgment being given against him in every case, he took a suspensive appeal in all of them, furnishing his bond with J. S. Simonds as security. Subsequently, to save costs,, it was agreed between the parties to the suits, that only one record should be made u}> and filed in the Supreme Court, and that its decision in that case should be the judgment in all the other cases.</p> <p>It is impossible to see how or why the surety was, as contended, released by that agreement. The case which was decided was a test one; it was identical with the other cases not filed in the Supreme Court in virtue of the agreement aforesaid, which did not affect the suspensive appeal taken. It only dispensed with making more than one transcript, to avoid unnecessary costs.</p>

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

<p>The writ oí mandamus, it has been settled, may issue to compel a publib officer to perform a. mere ministerial duty; but it must clearly appear that the duty is one which from its-character leaves no discretion in the officer to do or not to do.</p> <p>Here it does not clearly appear from the record thatit is absolutely the duty oí the respondent to do the things required of him. He avers that the contract asserted by tbe relator is-null and void, and he annexes his affidavit of the truth of his averments. It is not his-duty to execute an illegal and void contract, knowing it to be such.</p>

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

<p>Tbo ■wife can, with the consent of hor husband, soil her separate property and give the pro ceods to her husband, who then becomes her debtor. Having the authority to sell and having made a sale in due form, the object for which it was made by the wife, to raise money for her husband, does not make it any the less a sale as to third persons without knowledge. The public knows that a wife has the right to selL her property if duly authorized, and that her husband may receive and use the proceeds, and if there is nothing to create suspicion, or put the capitalist on his guard, he may safely discount a mortgage note given by a purchaser to a married woman as a part of the price of her property regularly sold by her.</p>

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

<p>As tlie law has prescribed no specific form in ■which the appointments of administrators are-to be made, if the certificate of appointment is signed by the judge, although it may not be in the usual form and manner in ■which such appointments are made, and letters-issued, yet it must be considered as the act of the judge and effect must be given to it.</p> <p>In this case the instrument declares that the application was made, that the party applying was duly appointed administrator and has fulfilled all the requirements of the law. This is to all intents and purposes the evidence of an appointment by the judge who signed the document.</p>

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

<p>A commission was iss”ectto take tlie testimony of plaintiff, Mrs. E. LeBlanc, (Ernestine L. Chauveau), audher mother, then in France. This commission having been returned unexecuted, the defendant moved, expcvt'te, to take the answers for confessed, and the order was accordingly made.</p> <p>This was clearly wrong. There is no law to authorize the testimony of a witness to be taken for confessed. These interrogatories on facts and articles were propounded to the plaintiff, who was then in France, but they were returned unanswered, as Mrs. LeBlanc had come back to Louisiana.</p> <p>Thereupon the defendant filed a supplemental answer with interrogatories on facts and articles and asked that they bo answered in open court. Objections were made to the interrogatories by the plaintiff’s attorney — among others — that they were vague, impertinent and had nothing to do with the real issue in the cause.</p> <p>The Judge a quo sustained the objections, except as to the first question which was ordered to be answered. The ruling was correct. H she had failed to answer at all, she would have been protected, as the order did not fix a day on which she was to answer. But the plaintiff appeared in court and answered it.</p> <p>The plaintiff having offered herself as a witness, the defendant objected to this, on the-ground that her answers to interrogatories as a witness having been taken for confessed, she could not be permitted to testify. The Judge properly overruled the objection. If the defendants really wanted her te-timony, when she was upon tlie stand as a witness they might have obtained it, if responsive to the matters at issue.</p>

<p>Robertson, tbe defendant, had drawn two drafts on T. H. & J. M. Allen & Co., made garnishees in this suit, who had verbally accepted the same, to be paid, as far as possible, out of tbe proceeds of the sale of Robertson’s cotton, then in their hands. This was a good acceptance, and the interveners in this caso, who are the holders of the accepted drafts, are entitled to have them paid out of the proceeds of said cotton.</p>

<p>The purport of all the regulations made in relation to tlxe matter of drainage into the Carondelet Canal and the Bayou St. John, from the act of the Legislature of March 10,1858, appears to be, that the city was prohibited from such drainage; or, if persisted in, that it should indemnify parties injured thereby — such indemnity to be ascertained by experts as damages. A report of such experts fixed the sum of $500 per month in favor of the relator after the first of July, 1869, so long as such drainage should contmue.</p> <p>The decision of this Court rendered in March, 1871, while the city was still draining into the Bayou St. John, limited the liability of the city to pay $500 per month to the relator, for this draining privilege, to the end of his lease, which expires in April, 1878.</p> <p>But that decree certainly did not bind the city to continue to drain into the Bayou St. J"ohn until the expiration of the relator’s lease, whether it thought proper to doso or not. Itwas not bound to pay for a privilege after ceasing to use it aud after having abandoned it in March or April, 1873, paying the relator up to that time.</p> <p>The swamp back of the city is a natural reservoir which, in its turn, sends all its waters into the lake beyond, and if from natural causes any of those waters on their way to the lake are thrown back, so that through certain outlets connected with the Bayou, which the plaintiff himself can readily close, a portion of the swamp water, freed from smell and noxious matters, for a limited period of time finds its way into the Bayou, that state of things can not be called drainage by the city into the bayou.</p>

<p>"Where it was urged, in contesting the validity of a will, that there is a distinction between* domicile and residence, and the statement that the witnesses are domiciliated in this-city, is not a compliance with the law which says, “ witnesses residing in the place</p> <p>Held — That this court is satisfied, that the notary used the word domiciliated as synonimouswith residing, as it is, and without any conciousness of the legal distinction invoked by counsel.</p> <p>In this instance an examination of the extracts of the will recited in the judgment, makes it manifest that, although said will is not artistically drawn, yet that the formalities mentioned in articles 1578, 1579 and 1580, R. C. C., are observed. There are no sacramental, words prescribed by law.</p> <p>If words are used which, taken all together, show that the notary did all that the law makes-essential, the will is good as to form, although the notary may be confused in his manner-of expressing himself. The object of the law is to have it appear from tho will itself,, that the proscribed formalities have been observed.</p> <p>The statement that the witnesses were present and within hearing of the testator, all the-time in which the will was written, taken in connection with the other statements, that it was written according to his diotation, (the testator’s) and that all was done without-interruption, at one time, must mean that the dictation, as well as the writing, was done-in the presence of the witnesses.</p> <p>It would have been more clear and accurate if the notary had used the words i “ as dictated,r instead of “ according to his dictationbut the latter expression, as used in this instance,, means what the other does.</p> <p>To adopt tho construction contended for by counsel, would be refining a little mote than tho law does, and prescribing a fixed formula to be used by notaries, who all have their-peculiar mode of expression.</p>

<p>Appeal from tbe Superior District Court, parish of Orleans. Haw-hims, J.</p>

<p>"Under section third oí act 3sTo. 2 of the acts of 1870, creating the Eighth District Court, the injunction granted in this case by t-ho Fourth District Court was very properly dissolved with damages. Besides, that court had no authority to restrain the trial of defendant's suits before a justice of the peace.</p>

<p>The plaintiff, being ejected from his office of mayor of the city of Jefferson from the first of June, 1869, to the first of April, 1870, when the office ceased to exist by annexation of said city to the city of Hew Orleans, obtained by compromise, in a suit resulting from the unlawful interference with his rights, the sum of §1500 from the party thus interfering under an appointment made by the Governor. This sum was paid out of the funds of the city of Jefferson, and the plaintiff now claims from the city of Hew Orleans, as successor of the city of Jefferson, the same amount for salary;</p> <p>Held — That the compromising by plaintiff of the said suit, in which his right to the office was involved, concludes him from urging any demand against the city of Hew Orleans for his salary, admitting the liability of the city to pay a salary twice for the same . services.</p>

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

<p>The plea of novation is established in ¿his case. The plaintiff had an account against the” Mew Orleans Manufacturing and Building Company. For this account the note sued, upon was given. The account was receipted in full, and tko debtors, Fulkerson, MoIiaurin & Co. were substituted for the old debtor.</p>

<p>The State, on the petition of the Attorney General, having injoined. the Auditor and the Treasurer from issuing warrants for the payment of and from paying certain obligations of the State, and having prayed to have the appropriations therefor and the said liabilities declared null, the Uew Orleans, Mobile and Texas Railroad Company intervened and moved to dissolve the injunction so faras it applied to the bonds of the State issued to said company.</p> <p>The grounds of the injunction were that the appropriation for the payment of the coupons of said bonds is a disguised donation of the funds of the State to a private corporation; that the Governor had no authority to subscribe for the stock of said company, and that the act 95 of 1871, by virtue of which the said bonds were issued, attempted to create a debt exceeding $100,000, without providing adequate means for its payment as required by-article 111 of the State constitution, and also in excess of the constitutional limitation to the State indebtedness.</p> <p>-Zt is contended, on the other side, that the State can. not sue to annul the bonds in question, without first tendering back the stock which it is admitted has been received by the State in exchange for the bonds.</p> <p>The doctrine of tender could not be properly applied to this case. The State does not seek to annul the contract and recover back the bonds given as the price. The law officer of the State simply asks that her’fiscal agents be prohibited from paying certain bonds and coupons, on the ground that the law which authorized their issuance is unconstitutional.</p> <p>The suit was not against the holders of the bonds, or the parties to the contract, and there was no ono to whom the tender of the certificate of stock could be made. The injunction or prohibition issued on the petition of the Attorney General, made it legally impossible, while it existed, for the fiscal agents to pay, and in this way only were the rights of the intervening company affected, and the necessity imposed upon the company to take ¡some legal proceedings to obtain payment. , They chose to intervene in these proceedings in order to assert their rights and remove the obstructions to their access to the State treasury. They are therefore not in a position to plead that a tender of the stock should have been made to them before the issuance of the injunction herein, although it practically closed the treasury to them. But any judgment in the suit to which they were not made parties, would not have been res judicata, as to them.</p> <p>This case must be remanded for further evidence and such proceedings as may be appropriate.</p>

<p>The proceedings in this case appear to have been irregular. The plaintiff founds his right upon the provisions of article 3268 of the Civil Code, and yet he has failed to comply with its provisions. Uo separate appraisement was made of the lot of ground and the "building he claims a privilege upon. The building was sold separately and without any reference to the ground it stood upon; in other terms, as if there were no connection whatever between them and no rights against both existing in other persona. Under this state of facts the sale of the house was a nullity.</p>

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

<p>The plaintiff in this case was not a party to the suit in the fifth District Court, the exeeu- • tion of whose judgment she has injoined. Under the Act of 1870, which organized the-Eighth District Court, that court has the power to issue the injunction plaintiff has-, prayed for. Perhaps, under that statute, she might have applied to the fifth Distriot'. Court, hut it is thought that she could also seek relief from the Eighth District Court.</p>

<p>Plaintiff was discharged because lie closed the store in which he was employed at an unreasonable hour. This court is not satisfied that he was employed by the year. Besides, on his being paid for the time he worked at the rate of $1500 per annum, he took the money without objection.</p>

<p>The plaintiff having obtained judgment against the Bank of Louisiana, took garnishment process against Generes and sought to make him liable. Generes excepts on several grounds, and among others — that the plaintiff made proof before a register of the United States District Court of the judgment obtained by him against the said bank which had been declared bankrupt, and filed his proof with the assignees on July 3,1871, thereby making himself a party to the bankrupt proceedings and abandoning all other rights, liens and privileges against the bankrupt, except those reserved by said proof; that by the order of the United States District Court, rendered July 1, 1869, all persons were injoined and restrained from interfering with the assets or property of the bank. The-exceptions were correctly sustained by the court a qua.</p>

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

<p>Appeal from tlie Superior District Court, parish of Orleans. HawIcins, J.</p>

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

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

<p>only question presented in this suit was decided in the case of Marquez v. the city of New Orleans, 13 An. 320. The court held that the middle ground of Claiborne street belonged to the city as a locus publicus, and that the city was bound to bear one-half of the expense of constructing a road on the north side of Claiborne street, the entire expense of which it was sought to impose upon the proprietors on the north side. That case and the one at bar seem to be identical.</p>

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

<p>The widow and heirs of Jean Pardo claim a house and lot, formerly belonging to A. A. Pardor on which the deceased had a mortgage, and which, in 1858, he bought at an auction sale ordered by the Second District Court under insolvent proceedings in consequence of the bankruptcy of A. A. Pardo, the defendant in this case, who was, however, permitted by the purchaser to retain possession of the property.</p> <p>The defense set up that the price paid for the property was money which the deceased was-owing to defendant, is utterly without foundation.</p> <p>The defendant, in the face of the schedule which he filed in bankruptcy as syndic of his creditors, and which is verified by his own oath, can not be heard setting up an account against his brother extending back to 1840, eighteen years previous to his insolvency and which is not mentioned in the schedule. He is estopped from denying the truth of his-oaths and judicial admissions in the insolvent proceedings.</p> <p>If the account aforesaid was a valid claim, it should have been put on the schedule as an asset of the insolvent. If he colludod with his brother in suppressing this claim and allowing him to carry off the property as first mortgage creditor, this court will not aid him in seeking to derive a benefit from the fraud.</p>

<p>Where, in a oontest for the ownership of laafls, proof was admitted as secondary evidence, tlie destruction of tlio primary evidence being shown, and the court a qua held that the* objections went rather to the effect than to the admissibility, the ruling was correct.</p> <p>The evidence, however, fails to identify sufficiently the land in dispute as the land embraced in the destroyed deed, but in the capacity of one of the heirs of John Butli, who, it is. admitted, entered the land at the Land Office at Monroe, Jonn K. Buth, or his succession, represented by the plaintiff, can maintain this petitory action against the defendants-who are possessors without title.</p> <p>The constructions made by Penn, one of the defendants, being partly on plaintiffs land and partly on defendant’s, plaintiff can not keep them by paying defendant the costs of construction, pursuant to article 508 of the Bevised Code, because the building is not entirely on plaintiff’s soil. The defendant is not entitled to a judgment in reconvention for the* value of his constructions, but must be allowed to remove that part of them erected by him and resting on the soil of the plaintiff.</p>

<p>The plaintiff moved, for a new trial in the court below on the ground that, during the recosa of the court, the jury was illegally and improperly influenced by the defendant and his accomplices to render a verdict in favor of said defendant, notwithstanding the judge had warned the jury that they were to hold no conversation with any person upon the merits of the case before them. On the trial of this motion, plaintiff attempted to prove his allegations by witnesses, which he was not permitted to do. The judge a quo erred in refusing to hear the testimony offered.</p>

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

<p>The proceeding sought to be injoined in this case was predicated on the mortgage note of-Joseph O’Hara, deceased, and in order to make a valid sale of the mortgaged property, the legal representative of his succession should have been made a party to said proceeding.</p> <p>Hotices served upon the plaintiff before she was confirmed as natural tutrix, and as such administering said succession, were not sufficient. The proceeding taken against her before her appointment, was in no sense a proceeding had contradictorily with the succession of O’Hara, the mortgage debtor.</p> <p>This court can not assent to the proposition set up in defense, that the notices were sufficient, because subsequently to the mortgage, O’Hara donated the mortgaged property to the-plaintiff, his wife, and that the succession of O’Hara, having no interest in the mortgaged property, was not a necessary party.</p> <p>The proceeding was on the mortgage note of O’Hara, and therefore the legal representative-of his succession was a necessary party to any suit or other proceeding on that note.</p> <p>Besides, if it were true that the property passed into third hands subsequently to the mortgage, no proceeding by executory process could be had, because in the act of mortgage-there was not the non alienando clause.</p> <p>The plaintiff, however, can not disavow her judicial averment that the mortgaged property belongs to the succession of her deceased husband.</p>

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

<p>Til© peremptory exception to tlie right of the relator to maintain this action on the ground that the intrusion act under which this suit is brought is repealed by the special act of 1873, entitled “An Act to regulate proceedings in contestations between persons claiming a judicial office,” approved March 5, 1873, is not well taken.</p> <p>There is no conflict between the essential provisions of the two acts; the only points of difference are that the later act is of a less general' application and the proceedings under it of a more summary character. According to the return of both Returning Boards for the election held in November, 1872, the defendant was defeated. It is clear that the defense is without merit.</p>

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

<p>The objection that the proceeding by information against the defendant was illegal on the ground that it was'violativ© of the fifth article of the Constitution of the United States • which declares — “ That no person shall be held to answer for a eapital or otherwise infamous crime unless on a presentment or indictment of a grand jury,” is not well taken. The provisions of the Constitution of the United States in relation to trials by jury apply only to the Federal courts.</p> <p>The charge in the indictment that the defendant did feloniously and violently seize, take and carry away, etc., “the sum of one hundred dollars in paper currency of the United States of America, of the goods, property and chattels of,” etc., is sufficient. It is a substantial compliance with the provisions of the statute. Revised Statutes, section 1061.</p> <p>The objection that the name of one C. R. Schaffer is indorsed on the verdict as foreman of the jury, when it does not appear elsewhere that a man of that name served upon the ■ jury, is without weight. The name of C. A. Schaffer appears on the list of jurors who sat on the trial. The discrepancy in the letter of the middle name is clearly a clerical error.</p>

<p>Tlie capital of the plaintiffs is invested in a sugar shed constructed in a locus publicus, pursuant to a contract with the city of New Orleans. They have two hundred and forty thousand dollars of capital invested in the enterprise j they employ this sum in administering the business of keeping a sugar shed on this locus publicus. Such an investment can not fairly be considered as an investment in real estate within the meaning of act No. 42 of the acts of 1871.</p> <p>If the plaintiffs had invested their capital in and become owners of real estate to the amount thereof, it would be manifestly unjust to assess that property and at the same time to tax the sum so invested as capital stock.</p> <p>Under the provisions of the act in question intended to exempt property from double taxation, no warrant whatever can be found in support of the pretensions of the plaintiffs in regard to an entire exemption of their property from taxation.</p>

<p>Appeal from the Pifth' District Court, parish of Orleans. Oullom,. ■ J.</p>

<p>Appeal from tile Seventh District Court, parish of Orleans. Gollens-, J.</p>

<p>It is well settled that an administrator or executor is without tho power to renounce or waive prescription after it has been acquired in favor of the estate he represents.</p>

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

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

<p>The point in this case is, that the judge erred in refusing a new trial on the showing made that one of the jurors was a British subject, and therefore incompetent to sit at the trial. •</p> <p>The xeoord contains no mention of the reason of the judge for refusing the application for a new trial — whether because he found the fact not satisfactorily established, or whether,, as a question of law, the defendant was not entitled to it — conceding the fact to be satisfactorily proved.</p> <p>If the finding of the judge a quo was based on a question of fact, it can not be revised by this court, because, in criminal cases, only questions of law are cognizable by this tribunal. But assuming that the finding of the judge in refusing a new trial was upon a question of law, the conclusion of this court is that he was correct.</p> <p>The defendant, duly served with a list of the jurors by whom it was proposed that he should be tried, had ample opportunity to consider any objection he might have to their capacity or competency, and he should have made whatever objections he had at the time each juror was offered.</p> <p>In his affidavit for a new trial, the defendant states that he did not know the fact of which he complains till after the trial. If he neglected to ask the juror at the time he was offered whether he was a citizen or not, it was a neglect of which he can not now complain.</p>

<p>The defendant was not justified in refusing to pay rent to plaintiff, on the ground that the house he leased from her was not put in repair, according to contract. His remedy was to put his lessor in default and make the repairs, deducting the amount thereof.</p> <p>Under this view of the case, the ruling of the judge a quo, refusing to hear testimony as to the repairs that were necessary, was correct.</p>

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

<p>Application for a mandamus, directed to the parish judge of the parish of Bossier.</p>

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

<p>Appeal from tbe Fourth District Court-, parish oí Orleans. Thécvrd, J.</p>

<p>The exception tb the action must be sustained, where that action is a revocatory one and the petition itself discloses that there are, besides the defendants, other parties in interest who have not been made parties to the proceeding.</p>

<p>A claim for money expended and time employed for the organization and benefit of the Loan and Pledge Association, before its incorporation, can not be regarded and enforced as a debt of that institution.</p> <p>It is impossible to imagine how the defendant, a juridical person, incurred a debt before its existence.</p> <p>Besides, it is shown that $1000 of plaintiff’s claim was for cash advanced for the purpose of influencing legislation; that is, bribing the Legislature to pass the act incorporating the Loan and Pledge Association.</p> <p>Bor the recovery of money thus expended, this court can give no relief. The guilty suitor must be left where his immorality has placed him.</p>

<p>On the day of trial the sheriff had not made his return as to a subpena issued for a witness on behalf of the defendant. A motion ior a continuance on this ground was overruled. The case, however, was continued until the following day, when the sheriff made his return that the witness was not to be found. The application for a continuance should have been renewed after the return of the sheriff. This not having been done, the court a qua did not err in proceeding to trial.</p>

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

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

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

<p>The mortgage note, -which is the object of this suit, was granted by plaintiff in injunction ■under the authorization of the judge, pursuant to the act of 1855. She therefore occupies no better position than a femme sole. If there was a want of consideration, it devolved on hor to prove it.</p> <p>The plaintiff excepted to the ruling of the court refusing to allow her to prove that her plantation was cultivated by her husband and his brothers during the years 1868 and 1869, and therefore the supplies furnished by the defendants did not inure to her benefit.</p> <p>The court a qua did not err in refusing the evidence, because it would have contradicted her judicial admissions in the petition for injunction.</p>

<p>Tko defendant clearly had no right to make material alterations in the leased premises without express permission. The injunction he appeals from did not restrain him from the exercise of any of the privileges and facilities he was entitled to by the terms of the-lease.</p>

<p>Tlie insurance company, defendant in this case, refuses to pay, on the ground that the policy excepted liability, “if the insured should die by his own hands/’ and it alleges that he committed suicide.</p> <p>It is evident that these words can not be interpreted m their literal sense, for they would exempt the company from liability if the insured came to his death by the accidental discharge of a gun or pistol in the hands of the insured, or if he took poison through a mistake, while they would not exempt the company from liability if the insured were to commit suicide by jumping into a precipice or a river. Therefore the intention of the parties must be sought in order to exi>lain the latent ambiguity of the words, and the court thinks that the common intent was to exempt the company from liability from the vol/wnta/)'y destruction of the insured by whatever moans accomplished.</p> <p>It is not believed that, by the expression above mentioned, tlie parties intended to exempt the risk that the insured might become insane, and might, when in that state, commit suicide.</p> <p>The test of responsibility in civil, as well as in criminal cases, is the state of the actor’s reason or mental faculties. Therefore, if the deceased were insane when he committed the act of self-destruction, no responsibility attached to his act.</p> <p>The onus of proof is on the party who affirms the fact that the insured died by his own hand, and this has not been legally proved in this case.</p> <p>It is true that the witnesses who testify as to his death express it as their opinion that he killed himself or committed suicide, but their opinions can not be regarded as evidence of the fact; nor do the facts and circumstances proved point to the voluntary self-destruction of the insured, to the exclusion of all other reasonable hypothesis. But if that fact were established, the plaintiff lias proved that tlie deceased was insane at the time of and belore his death.</p>

<p>Appeal from, the Superior District Court, parish of Orleans. HawMns, J.</p>

<p>The acceptance of a succession is express, when in an authentic dr private instrument, or in some judicial proceeding, the purpose of the heir is declared in terms so clear and distinct that no doubt can exist of his intention to accept under the responsibilities that result from an acceptance pure and simple. To incur the liability arising from an acceptance pure and simple, something more than styling himself heir in some written act, authentic or judicial, must appear in the instrument, in order to bind the party absolutely to pay all the debts of the succession out of his own means.</p> <p>Both in the express and tacit acceptance it must be made clear, that it was the intention of the party assuming the quality of heir to abide the disadvanta’ges, if any should arise, of accepting simply and purely, as well as to enjoy the benefits that might accrue from it. In the one case, the intention is to be found in a fair interpretation of the terms and expressions of written instruments; in the other, it is to be inferr d from acts, the motives of which can not be ascribed to any other purpose.</p> <p>The subject matter of the written acts in which, by styling herself heir, it is contended in this case that the defendant became bound for the debts of the succession, presents collateral issues not involving the question of heirship, and in no manner relating to the acceptance of the succession.</p> <p>The term heir has several significations. Sometimes it refers to one who has formally accepted a succession, and taken possession thereof; sometimes to one who is called to succeed, but still retains the faculty of accepting or renouncing, and it is frequently used as applied to one who has formally renounced. Hence, the use of the word heir in itself is of but little moment. It is the object and mtent manifested by its use that is the material thing.</p>

<p>Plaintiff applied for authority to borrow money to a judge of competent jurisdiction, and was by him authorized to borrow it. The act of mortgage was not consummated until her authority to borrow had been obtained. If any force, threats, or improper influences were brought to bear upon her by her husband, it does not appear that the defendant, who loaned the money upon the faith of the authorization of the judge and the security of the mortgage was, in any manner, a party to it. The plaintiffs injunction to prevent the sale of her property must be dissolved.</p>

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

<p>The defendant alleges that the words “ paper currency of the United States,” do not describe the statutory offense of robbery.</p> <p>The charge in the indictment is the felonious and violent taking of “ the sum of seventeen hundred and forty-five dollars in paper currency of the United States of America.” This comes vithin the law. R. S. sec. 810.</p> <p>The objection that the words “promissory note of the value of three hundred dollars,” do not conform to the statute, because not showing that it was for the payment of any specific property, is not well founded.</p> <p>Section 1051 makes it sufficient to describe “the instrument, matter or thing by any name or designation by which the same may be usually known without setting out any copy or fac svtnile of the whole or any part of such instrument, matter or thing.”</p> <p>This law, as stated in 10 An. 230, cited by defendant, is an exception to the general rule of the common law as to description, and is complied with in the indictment here.</p> <p>The defendant’s bill of exceptions to the refusal of the judge to grant a continuance to enable the counsel appointed to represent hfin to prepare the defense, can not be maintained. It seems there wore throe days between the appointment and the trial This is sufficient time when no special cause is shown for longer delay, nor is such a delay essential in itself.</p> <p>Ro law authorizes to move for attachments against absent jurors on the list, in order to bring a greater number, when there are enough present to complete the panel. It is a matter in the judge’s discretion; and the non-attendance of some of the jurors summoned and not excused, is not good cause tor a refusal to go to trial.</p> <p>The judge a quo did not err when refusing to admit an affidavit against the wifo of the defendant, charging her with receiving stolen property, being a part of the property described in the indictment. It was introducing a new issue from the one at the bar.</p> <p>There was no error in refusing to allow the defendant to propound to his own witness certain questions which are specified in his bill of exceptions. If intended to impeach the witness, they were not allowable to the party introducing him. Otherwise, they were irrelevant to the issue.</p> <p>The court instructed the jury in the general charge that: “To constitute robbery there should be actual or constructive force.” This was correct, and substantially what the counsel asked.</p> <p>The court was also asked to charge that, “in the proof of taking, it is necessary to show that the goods were actually in the possession of the accused.” The court, in giving the charge, added the words, “or constructively” after the word “actually” and before the word “ in.” There was no error in this.</p> <p>The bill of exceptions to permitting a witness to refer to his books, out of the presence of the court, in order to refresh bis memory, was not well taken.</p> <p>The jury found the accused guilty of robbery and larceny on the indictment containing the two counts, and hereupon, on motion of the Attorney General, a nolle prosequi was entered on the second count as to larceny, and the accused was discharged there.rom. There is no error in this proceeding.</p>

<p>Compromises have no immunity from decrees of nullity, -where errors of fact hearing upon the principal cause of the compromise and coupled with fraud, are shown to exist, and in such cases, said compromises must be declared null and void. ,</p>

<p>The following note was given to defendants for a part of the premium due on renewal for a policy of insurance : “ New York, May 7,1870. Three months after date, without grace, I promise to pay to the order of the Knickerbocker Life Insurance Company one hundred and twenty-nine dollars and interest, value received in premium on policy No. 2051 (37,593), which policy is to be void in case this note is not paid at maturity according to contract m said policy”</p> <p>The question is whether this note was payable at noon, on the eighth of August, 1870, (the seventh being Sunday), or during business hours.</p> <p>The portions of the policy relied on by the defendants as fixing the maturity of said note are the following: “ And the omission to pay the said annual premium on or before twelve o’clock noon, on the day or days above mentioned for the payment thereof, or failure to pay at maturity any note (other than the annual premium note) given for premium interest or other obligation on this policy, shall then and thereafter cause said policy to he void, without notice to any party or parties interested herein.”</p> <p>The insured paid a portion of the premiums in cash and for the balance gave three notes, one of which is above transcribed. The receipt of the company runs thus: ‘‘ Renewal No. 69,003. New York, May 7, 1870, received of Azema Leigh seven hundred and ninety-eight dollars and eighty cents in cash, and notes (exclusive of interest as stated in the margin hereof), which amount, if said notes cure duly paid on .or before the maturity thereof will complete the payment of the premium necessary to continue policy No. 2051 in force until the seventh of May, 1871, at noon, and'in case said notes, or either of them, shall not he paid on or before the maturity thereof, said policy shall at once become void without notice,” etc.</p> <p>In the opinion of the court the notes referred to in the policy as being payable at noon, are the annual premium notes, which are due on the seventh of May of each year, and not the notes given for a part of the premium and falling due at such dates as may he agreed upon at the time. Whenever the words “ at noon ” are used in the policy, it is in immediate connection with the words “seventh of May.” The note itself and the receipt contain the stipulation in general terms, that, “if not paid at maturity,” the policy will be void. The expression or words at the end of the note, “ according to contract in said policy,” must be construed as referring to the effect of non-payment at maturity— the contract in that respect — rather than the hour at which the note must be paid.</p> <p>The words “ at maturity ” refer to and include the whole day unless specially and distinctly limited to a certain hour of the day. The expression, “ three months after date without grace,” means that the note is to be paid on the last day of the three months, without the usual three days of grace. No reference is made to hours. The annual payments were to he made by noon oi the day, because probably the policy was fixed to expire at noon; hut the notes for the stipulated instalments of the extended premium were taken as an accommodation to the party, and were to he paid at maturity in the ordinary signification of the term.</p>

<p>The judge a quo erred in making absolute the rule for the appointment of a receiver in this case. The petition onrule does notaver a necessity for it, nor any loss, injury or damage likely to arise to plaintiff, if it should not be done. There is no reason why the entire revenues of all the property belonging to the litigants should be taken possession of by a receiver, on the ground that the plaintiff owns one-fourth of it, when said plaintiff fails to allege even a cause for such appointment.</p>

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

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

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

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

<p>Plaintiff, revoking tlie donation wliicli [he made to his wife of a certain pieoe of property, seeks to recover possession of said property from defendant, wliose title is derived from plaintiff’s wife under tlie donation aforesaid.</p> <p>It appears that Mrs. Wade desired to donate the property in question, thus donated to her, to her daughter, Mrs. Eames, “as an extra portion over and above her legitimate share in the succession of said donor,” estimating it at $7000, and to secure the title, it was specially stipulated in the act, “that the said donor hinds herself and her heirs to war* ant and forever defend the said property against all legal claims and demands whatsoever.” To tMs act the plaintiff was a party, approving of it and authorizing Ms wife. He is therefore, estopped from disputing the title of defendant.</p> <p>[Besides, the prescription of ten years invoked by defendant, is a complete bar to the action.</p>

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

<p>The cession to the United States of a certain lot of ground in the city of New Orleans, for the express and only purpose of erecting thereon a branch of tho Mint of the United States, together with the necessary appendages, is not a vente a remera. It laclrs one of the essentials of a sale — a price. Neither is the government of the United States, technically spealdng at least, the usufructuary of the property. It has only the use of it— the tonure thereto being preoarious, and the right to occupy the same restricted to suoh time as the government may see fit to occupy it for the purposes of a mint — the Government having the right to remove the same, whenever it may see fit, upon the happening of either of which events, the use of the property would immediately revert to the city.</p>

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

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

<p>This suit is instituted by the under tutor of the minors Kohn, to recover from S. Herman, and L. Levy, the amount coming to them as heirs of their father in the property belonging to the partnership which had existed between their father and said Herman and Levy.</p> <p>It is apparent from the record that the minors* interest in the succession of their father had not been handed over to their tutrix at the time she entered into another partnership with the surviving partners of her deceased husband. It was this interest, added to her rights as widow in community, which formed her share of the partnership stock. The contract was, in fact, a contract of partnership between herself, her minor children and the surviving partners of her husband. The law does not authorize such a partnership. It was an investment of her minor children’s funds in an enterprise for which she had no warrant. Up to this point, therefore, the minors’ property must be considered to have remained in the hands of the surviving partners.</p> <p>But this court does not see where the under tutor finds any authority for attacking the defendants. If any cause of action exists against the defendants, the tutrix of the minors is the proper person to assert it.</p> <p>The under tutor acts for the minor whenever the interest of the minor is in opposition to the interest of the tutor. Perhaps, in case of coEusion between the debtor of a minor and his tutor, the under tutor might be authorized to interfere. But in this case no collusion is asserted. The rights of the minors have not been invaded by the defendants. 'Whatever transactions they may have had in which the minors* interests were involved, they had them with their tutrix, who was the only person having authority with whom they could contract. If they acted fraudulently toward the tutrix, fraud vitiates any contract, and the tutrix has her action to set it aside. If the tutrix has acted in bad faith towards her wards, the under tutor has his action against her.</p>

<p>The offense for which the accused was tried is not prescribed, because the indictment was not filed within a year after the crime had been committed. The statute merely says that the indictment must be found within a year after the offense was made known to the public officer having power to direct investigation and prosecution.</p> <p>The law does not say that, because the foreman of a grand jury can not write his name, the indictment found by the grand jury of which he is foreman shall not be good.</p> <p>After a motion for a new trial which has been refused, it is too late to urge in arrest of judgment that the jury were guilty of misconduct, partiality and prejudice against the accused.</p> <p>The judge a quo did not err in refusing to permit the introduction in evidence of the certificate of the post mortem examination given by the physician who made it. There is nothing to show that the physician himself could not have been procured. His testimony, if it could be obtained, was the evidence required, and not Ms certificate.</p>

<p>The mere fact that for thirty or forty years the public was permitted to pass over a oertainpiece of land, would not of itself constitute the place a locus publicws» The property which is the object of this litigation has never been dedicated to the public, nor has any expropriation taken place. Therefore it remains private property.</p>

<p>It is evident that judgment in damages against the civil sheriff for effecting the sale oom. plained of, is erroneous, as he was aoting only under the direction of a court of competent jurisdiction and carrying out its orders.</p> <p>The sheriff seems to have been informed that a suit in interdiction had been instituted against the owner of the property seized, but that was no warrant forlhim to stop the Bale, It did not follow that interdiction would result from the suit. If the parties in interest had desired to stop the sale, they should have injoined it.</p>

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

<p>There is no law which prohibits a member of the bar from becoming a surety on a seques* tration bond. If there be any rule of court to the contrary, it is not known on what au* thority it rests.</p>

<p>In this suit for the taxes of 1873, the defendant insists that the default, the introduction of proof and the judgment are irregular and void, because not taken in this particular suit, but in a general entry of, “City of New Orleans v, Samuel Boyd & Co., and sundry and other taxpayers, from No. 50,000 to 59,864 inclusive ;” and that the judgment signed is not the judgment entered on the minutes.</p> <p>The judgment appealed from, which has the signature of the judge, is the one which the defendant has an interest in complaining of. The next question is as to his having been legally cited.</p> <p>By the act, No. 48 of 1871, § 9, a publication of the names of the delinquent taxpayers, with the amounts due by them respectively, in the official journal, is a legal citation to each. After a certain delay, 5‘upon the production and filing of said claims or bills in the appropriate and competent court, and the production of proof of publication, judgment shall be immediately rendered in favor of said city and against the delinquent taxpayer or debtor.” According to this provision of the law the taking of a default was unnecessary, and, if taken, the defendant has no right to complain of a formality which is in his</p> <p>There is no sacramental form for entering judgments on the minutes of .the court. The records of the court must show, however, the proceedings; and, in these tax suits, an entry showing that judgment was rendered in suits from one number to another inclusive, is a record of the fact that a judgment was allowed in each for the amount of the claim.</p> <p>The record here shows that a judgment was entered and signed in the case of the city oí New Orleans v. Eawlins, No. 57,679, which is a number included in those in which a judgment was entered on the minutes of the court. The law assimilates the proceedings in this class of cases to those in executory proceedings, except that the proof must be presented in court.</p>

<p>2Prom all the evidence on record in this case it results that the defendants, when they drew the draft sued upon, had a just right to believe that it would be duly honored. Therefore, they were entitled to due protest and notice of the dishonor of the bill. "With regard to the promise of payment alleged to have been made by the defendants, it wae coupled with conditions which were not accepted, and for that reason it can not entitle the plaintiffs to recover.</p>

<p>It is idle for tli© defendant to set up that the title of the property claimed of him is in Jacob ■Whetstone individually, who brought this suit as administrator, and not in the successions whoso representatives are before the court, and therefore that, if he pays over the money under the judgment appealed from, he may be held liable to Whetstone hereafter. Jocob Whetstone and the other parties acting jointly with him when they consigned to defendant the cotton whose proceeds are now claimed, are bound by their judicial admissions that the money belongs to said successions. The defendant, therefore, runs no such risk as he anticipates.</p> <p>The plea of prescription of three and five years is not well founded. The action does not arise ex delicto, but from a quasi contract.</p> <p>Under the settled jurisprudence of this court, no damages can be allowed where the appellee joins in the appeal, however frivolous it may be.</p>

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

<p>A municipal corporation possesses two classes of powers and two classes of rights — public and private. In all that relates to one class, it is merely the agent of the State and subject to its control. In the other, it is the agent of the inhabitants of the place — the corporators — maintains the character and relations of individuals, and is not subject to the absolute control of the Legislature — its creator. Among this latter class is the right to acquire, hold ahd dispose of property — to sue and be sued, etc. — just as certain rights are conferred on private corporations and persons, not sui juris, such as minors and married women, but are not afterwards, as long as they exist, under the control of the Legislature.</p> <p>A municipal corporation may own property, to and over which the Legislature has, while said corporation exists, no right or control in opposition to or independently of the will or consent of the corporation.</p> <p>It is a manifest fact to all that the incorporation of such a city as Hew Orleans is a necessity. The multiplying and complicated interests of the compact and increasing community are such that the Legislature can not administer them; and some of them are of such a. nature as not to be within mere legislative action, but are to be conducted under general rales, thus necessitating the creation of an intellectual body, with something more than, governmental functions, but which do not constitute an wvperivm m imperio.</p> <p>If then a municipal corporation can acquire the fee simple of property, the squares intended for the depots of the plaintiffs were so acquired, and they can not be taken by the-Legislature, while the city corporation exists.</p> <p>The Legislature expressly recognized and ratified the compromise of September, 1820, between the city and certain riparian proprietors in relation to the property in question, imposing conditions which were complied with. The theory that the city acquired the property simply as the agent of the State can not be accepted, because the city can own private property, and because the former owners intended to, and did, by the act of twentieth June, 1851, transfer the title thereof to the city, subject only to the uses of commerce and of the public, while so needed.</p> <p>The injunction in this instance was improperly issued against the defendant — the city of Hew Orleans — hut as the city has made no claim against the plaintiffs, a demand in re-convention can not be admitted, and a decree inhibiting the plaintiffs from occupying the property id controversy could not be granted.</p> <p>Under the pleadings, all that can be done is to render judgment in favor of the city dissolving the injunction and dismissing plaintiffs’ suit, leaving the parties to their rights, under the laws relative to the expropriation of property.</p>

<p>Appeal from the Superior District Court, parish of Orleans. ’ Hcno-Icins, J.</p>

<p>motion to dissolvethe sequestration should Rave been made absolute. The requisito oath. was not made. The affiant did not state that be feared or believed that tbe property on which the privilege exists would be removed out of the jurisdiction of the court, or concealed, parted with or disposed of ponding this suit.</p>

<p>Appeal from the Superior District Court, parish of Orleans. EarnMns, J.</p>

<p>TIi© plaintiffs sue on an open account to recover salaries as Commissioners of Waterworks, and commissions on two millions of dollars for adjusting and settling tlie accounts between tlie Commercial Bank and the City of New Orleans.</p> <p>On the thirty-first of July, 1868, the resolution which authorized the appointment of the plaintiffs was adopted. Neither that resolution nor any other resolution, law, ordinance or contract fixed any salary or compensation for the services of said commissioners. None, therefore, can be claimed. There is no implied obligation on the part of the municipal corporations, and no such relation between them and the officers whom they are required by law to select, as will oblige them to make compensation to such officers, unless the right to it is expressly given by law, ordinance or contract.</p>

<p>The plea of prescription is set up against the suit of plaintiffs based upon the following instrument: “hTew Orleans, June 3, 1862. Due Messrs. Spearing & Co. six thousand dollars in current funds, subject to their draft or drafts, at not less than sixty days after sight.”</p> <p>This instrument is virtually an unconditional promise to pay a specific sum in current funds sixty days after demand. It contains substantially the elements of a promissory note. Therefore the action is barred by the prescription of five years,</p>

<p>The defendant is sued on a tax bill on real estate, which tax bill was originally two and five-eighths per cent, but subsequently reduced to two per cent. The defense is, that the ordinance under which this suit is instituted, is in violation of two prohibitory laws, to wit: Act. No. 7, 1870, limiting plaintiffs right tq tax to one and three-quarters per cent., and act 68 of same year fixing the limit at two per cent., wherefore, said ordinance is null and void; the two acts were approved on the same day.</p> <p>It is clear that the demand being only for two per cent, is not in violation .ofiact 68.</p> <p>But it is contended by defendantthat the tax of two per cent, claimed, beingin excess of the authority conferred by act. No 7, limiting the taxing authority to one and three-quarters, can not be collected in whole or in part, while the plaintiff contends that the act No. 68, conferred the authority to collect the two per cent, claimed.</p> <p>There is no absolute conflict between the two enactments. The first in order of the two acts is the City Charter, and confers on the City Council authority to levy an annual tax for the purposes of saidactwhichshould not exceed three-quarters of one per cent, “provided, it be sufficient to pay the interest on the consolidated debt and rail road bonds issued by the city of New Orleans.” At the same time, there are other special statutes making it the duty of the city to levy and collect taxes known as the metropolitan tax and park tax, which are not mentioned in the designation of the taxes which, in the aggregate» should not exceed one and three-quarters per cent.</p> <p>The act No. 68, need not be considered as a repealing or amending statute, but as fixing a limit in general terms to powers already conferred. If the city charter (act No. 7) were the only statute conferring authority to levy taxes, the defense set up might be good, but the “ proviso” in said act implies thata higher rate might be necessary.</p> <p>There are many other statutes conferring the authority and making it the duty of the city to levy certain special taxes, which, all taken together, exceed two per cent, as made oqt in the original bill against the defendant; but the city has remitted that excess and is now only seeking to collect the two per cent. The city can well remit the excess and demand what it has authority to impose.</p>

<p>Appeal from the Superior District Court, parish of Orleans. HawMns, J.</p>

<p>In tlie order of seizure and sale appealed from, tlie court a qua, erred in granting five per cent, for attorney’s fees, as the amount of attorney’s fees was not fixed in the act of mortgage. Tlie right of plaintiff to sue for attorney’s fees hereafter is reserved to him.</p>

<p>A party can not be injoined from prosecuting suits for claims, whether well founded or not. On the defense the parties can be heard and tlieir rights adjusted. The intimation that a party fears he may not obtain justice before a particular judicial officer, or that he should be sued in a court of higher jurisdiction, is no ground for an injunction.</p> <p>The judge a quo dismissed the rule, and on the trial of the merits dissolved the injunction, with $100 tor counsel fees. As no evidence was admitted on the trial of the motion, in reference to any damages, and the motion should have been sustained, no damages can be allowed. This is not the class of cases in which damages may be given without special proof. The plaintiffs and their securities are liable on their injunction bond.</p>

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

<p>This is a suit in damages on the allegation of having been maliciously ejected from leased premises. "When a tenant denies the title of his landlord, the relation between them is severed, and the right of entry by the landlord is complete, but the entry must be effected under the law.</p> <p>In this case it is not necessary to decide whether the manner of getting possession was proper or not, as the facts show that plaintiff was not damaged thereby. ' He failed to pay his rent, and under our law and jurisprudence the defendant was justified in seizing for the rent and attaching the property subject to the lease. In doing this in a legal manner, the defendant did hot render himself liable in damages.</p>

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

<p>On the twenty-first of April, 1868, tlie plaintiff wrote to Pemberton, president of the Merchants’ Mutual Insurance Company, a letter to effect a policy on the steamer Texas. In that letter he said: “ By agreement with Darden, he (Darden) was to insure the steamer and to transfer policy to me to the extent of $5000. Darden effected insurance, failed to pay for the policy, say, $957 75, which I paid myself. Darden has since fraudulently sold his interest in the steamer as acquired from me, and she is nowin the hands of the United States Marshal for debts contracted since sale and will be sold to morrow. AsX have paid ior the policy and have now identically the same interest in the steamer that X had when the policy was taken, I desire to have the policy continued to the time of its expiration for the interest transferred to me, say, $5000.” The policy referred to was to run to the twenty-fifth of November, 1868. On the twenty-tbird of September of the 6ame year the vessel was totally lost by a peril insured against.</p> <p>It appears that on the twenty-third of April, Pemberton had acknowledged receipt of plaintiff’s letter of the twenty-first of the same month and said in a postcript: u The risk on steamer Texas, to continue in force under the clauses and conditions of policy Ho. 2500. But in the meantime, on the twenty-second of April, during the interval elapsing between the date of plaintiff’s letter and that of Pemberton’s answer, the vessel, in accordance with admiralty proceedings, had been sold, and the proceeds were distributed in a concurso of claimants. Under such circumstances, the answer of Pemberton had not the effect of continuing the insurable interest of the plaintiff, whose privilege and interest had been divested by the marshal’s sale.</p> <p>Such a defense is not precluded by the doctrine of estoppel. The letter of Pemberton did not change plaintiff’s rights, or cause him to act so as to alter his previous position. It did not create a right or confer one which did not previously exist. It simply proposed to continue such rights as the plaintiff had under the policy. But. after the marshal’s sale, the plaintiff could have no right under that policy. His interest was transferred from the vessel to the proceeds. Ho new contract of insurance was made; no new or additional premium paid. The parties were simply mistaken as to the continued existence of plaintiff’s insurable interest.</p>

<p>This suit is for the payment of a wall designated as A, for the value of a wall designated as B, and damages for closing windows or apertures in wall A. 'When wall A was built with windows by Blasco, the owner of the contiguous lot refused to pay for the wall. The owner of that lot, however, oould always have made the wall a wall in common by paying for the half of its costs.</p> <p>lot, tlie windows continuing open in tlie wall and the deed remaining silent concerning them. This sale did not relieve the owner of the Burgundy lot from paying for the wall in common, whenever he might desire to use it. Subsequently Blasco sold the lot to the plaintiff, with the windows still in existence, and plaintiff purchased from Burgunder said adjoining lot upon which the wall rested for half of its thickness. Some years after, the plaintiff sold to defendant the Burgunder</p> <p>The right which the original owner had to make the wall a wall in common by paying for it, passed with the lot to the vendee, but nothing more. The vendor of the defendant did not sell this wall, but only the lot which he had bought from Burgunder.</p> <p>There can be no question of servitude in this case. The wall belonged to plaintiff in full ownership, until the owner of the contiguous lot should pay for the half of it, and this right would exist so long as that wall stood. "When paid for, the owner of the contiguous lot became the joint owner of the common wall and could use it as owner. He could therefore close the windows in order to use the wall as a wall in common.</p> <p>It is evidently in derogation of common right to permit a man to appropriate the land of another without paying for it. But the law provides a quid pro quo to the proprietor whose rights of property are thus invaded, by giving him the right always to make it a common wall by refunding one-half of the cost thereof.</p>

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

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

<p>The ruling of the judge admitting the voluntary confessions of Fontaine made to the witnesses, who -happened to be a constable and a justice of the peace, as against himself, was correct. But the declarations of FoDtaine were inadmissible against Monie, and the judge should have instructed the jury to limit the application of said admissions to Fontaine alone.</p>

<p>In this suit on an open account, the plea of prescription is set up by the defense. On its face the account is prescribed, but it is alleged that before prescription accrued it was acknowledged. The evidence of this interruption is the testimony of the plaintiff, in which he refers to a letter of the agent of one of the defendants, J. M. Peterson, now deceased. This evidence was inadmissible to prove an interruption of prescription against the succession of J. M. Peterson. Resides, as to the letter above referred to, it is rather a negation than an acknowledgment of indebtedness.</p>

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

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

<p>It appears that Duggan & Guyol, against whom a personal judgment is sought, and whose cotton was sequestered, reside in tlie parish of East Baton Rouge. The Fourth District Court, parish of Orleans, whose proceedings are now under revision, was without jurisdiction to try this case.</p> <p>This court, of its own motion, will notice the want of jurisdiction of the court a qua.</p>

<p>The motion to dismiss must be overruled. The bond being for the amount fixed by the judge a quo is therefore sufficient to maintain the appeal.</p> <p>The lessor can not seize movables, belonging to a third person, which have been removed from the leased premises within fifteen days before the seizure. It is the property of the lessee alone which can be seized under such circumstances.</p>

<p>That the Crescent City Live Stock Landing and Slaughterhouse Company, garnishee, being an incorporated company, is subject only to the jurisdiction of the Superior District Court, and can not be brought into the Fifth District Court, may be true as regards original process, but it does not hold when the company is made garnishee. The court which rendered the judgment out of which the garnishment process springs, necessarily has jurisdiction over the party made garnishee.</p> <p>The objection that Durbridge, the defendant, having sued the garnishee for the same subject matter in the Sixth District Court, no other court could obtain jurisdiction by service of citation or garnishment process, can not be maintained. The plaintiff is not hound by any proceedings to which he was not a party, and as he was not a party to the suit referred to. the decision in that case, whatever it may be, can not affect his rights.</p>

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

<p>Appeal from (lie Fourth District Court, parish of Orleans. Lynch, J.</p>

<p>In 1835, the marriage contract between Mrs. Elizabeth Martin and John Dawson, which, it is claimed, contains a “ constitution of dowry” was recorded in the book of donations in the office of the recorder of mortgages in Eew Orleans, and it is contended that this preserved the registry of the wife’s mortgage on the property of her husband, and gives her the preference to the proceeds of his property over the other plaintiffs and contestants before this court.</p> <p>Article 1541, Codb of 1825, is invoked. It provides that: “ "When the donation comprehends property that may be legally mortgaged, the act of donation, as well as the act of acceptance, whether the acceptance be made by the same or a separate aot, must be registered within the time prescribed for the registry of mortgages, on a separate book for that purpose, by the register of mortgages, which book shall be open to the inspection of all parties requiring it.”</p> <p>The object of this article is not to give notice of the wife’s mortgage upon her husband’s property for the protection of her dotal or other rights, but to operate as notice of the property donated, its status, and the inability of the donor, probably, or his creditors, to in any manner affect said property. It relates only to the property embraced in the act of donation, its title and character.</p> <p>The wife’s mortgage, as to her husband’s property, existed without the registry, but when the system of this class of mortgages was changed, registry became necessary, and some of the modes prescribed for the registry of the various kinds of mortgages was essential. The registry of the marriage contract, in this instance, not being one of the modes prescribed, is not a compliance with the law on the subject. It did not operate or preserve a mortgage before the first of January, 1870, and there is no law giving it such effect since that date.</p> <p>Because the function of the mortgage office and its records is to preserve mortgages, it does not follow that the direction to record an act of donation in a book of donations (conceding the marriage contract in this instance to be a donation), created and preserved a mortgage in favor of the donee — the wife. Mortgages, to be preserved and effective, as to third parties, must be registered in the book and in the manner prescribed by the law for that purpose. This was not done in this case.</p>

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

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

<p>Tbe defendant removed to the city of jSTew Orleans a certain sawmill, engine and other fixtures, from mortgaged premises on which they stood. DTor which removal lie is sued in damages by the plaintiff, who claims that he holds on the tract of land to which they were attached a vendor’s privilege and special mortgage. The removal was effected under the written authority of one of the owners of the property. Some time afterwards, said sawmill, engine and fixtures were purchased by the defendant, who had removed them in the manner above stated.</p> <p>At the time of the sale to defendant, said objects were movable property and in no way affected by the mortgage.</p> <p>The fact that defendant was employed by the owner to remove the property, created no legal obligation against him in favor of the mortgage creditor, nor did his purchase of it subsequently have that effect.</p>

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

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

<p>"Wlien a reconventional demand has "been filed, tlie plaintiff is "bound to take notice of its trial and of all adverse defenses set up in tlie cause wkicli he himself has commenced against his adversary.</p> <p>In this case a jury was prayed for hy defendant. The case was tried without a jury. $To hill of exceptions was taken hy plaintiff to the trial, and no opposition to the trial withouta jury was made hy either party. Under such circumstances, this court will presume that a trial hy jury was waived.</p>

<p>Judgment having been rendered against both defendants in this suit by an heir against her tutor, who was also administrator, and his surety on the two bonds, the surety alone appealed. The tutor and administrator being an appellee, the prayer of the plaintiff, the other appellee, to amend the judgment against him, can not be entertained.</p> <p>The question, raised onthemerits, that the plaintiff, being a married woman, was not authorized by her husband to bring this suit, must be considered as settled between the parties by the decision on the motion to dismiss the appeal, which was made on the ground of want of proper parties — the husband not having been joined in the petition of appeal. The suit having been commenced by the wife, assisted by her husband, citation of appeal to her was sufficient.</p> <p>The judgment referred to as an estoppel against plaintiff’s action, did not impose upon her the condition to claim certain pieces of property in kind, to which she might be entitled, but reserved her right to the proceeds in case she failed to recover said property. She has alleged and shown that the title of the purchasers was maintained in several suits she instituted. She therefore can exercise her second right.</p> <p>The objection that the security can not be sued for the proceeds, no step having been previously taken to fix the liability of the principal, is not well founded.</p> <p>This objection was not made in the lower court, but the surety adopted and joined in the defense made by the principal, and, on trial, the plaintiff showed by the returns of nulla \bona on one or two fieri facias for small sums, that further process against the principal would be unavailing.</p> <p>The tutor states that he obtained the individual consent of persons who had composed a family meeting on a previous occasion, to make use of the capital of the minor’s estate as he did. This is not justifiable, and, according to our law and jurisprudence, can not be allowed in favor of a tutor and surety.</p>

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

<p>The thing leased being destroyed in part by fire, the defendant had the right, under article 2697 of the Revised Code, either to demand a diminution of the price, or a revocation of the lease. He preferred the latter. Xn according to the defendant the exercise of a plain legal right, the court below committed no error.</p>

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

<p>The relator, in tliis case, was duly elected or appointed to tlie office lie claims on tlie second ol’ December, 1872, in the only manner then known to the law. The act of the Legislature of March 9,1874, changing the mode of appointment can not be construed so as to make it retroactive. It must be understood to apply to parishes where appointments to that office had not been made by the police juries, or where vacancies existed.</p> <p>Tn this instance the office of district attorney pro tempore had been filled and the incumbent's term of office had not expired. The act of March 9,1874, does not abolish the office of district attorney pro tempore, but only alters the mode of appointing to that office.</p>

<p>APPLICATIOÑ for a writ ‘of mandamus directed to J. Bawhins, 1JL Judge of the Superior District Court, parish of Orleans.</p>

<p>Appeal from tlie Sixth District Court, parish of Orleans. Saucier, J.</p>

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

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

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

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

<p>Appeal from the Superior District Court, parisli of Orleans. HawJdns, J.</p>

<p>Appeal from the Superior.IMstrict Court, parish of Orleans. Hawkins, J.</p>

<p>This suit is brought on a judgment in which the original obligation was merged. In the authentic act by which the defendant acquired from Byrne, Vance & Co., his title to the real estate subject to the plaintiff’s judicial mortgage, the defendant bound himself expressly to pay whatever amount Mithoff, the plaintiff, might recover against Byrne, Vance & Co., in a suit then pending and not finally determined. Thus, it was a condition of the sale to Bohn, that he should pay whatever judgment, if any, Mithoff should obtain in the court of last resort. The amount of such judgment, if finally obtained against Byrne, Vance & Co., was to constitute part of the consideration to be given for the property by Bohn.</p> <p>This court is not able to see what interest or right the defendant can have in protracting this litigation on the pretense that confederate money was the basis of the contract originally entered into between Mithoff and Byrne, Vance & Co., and which culminated in a judgment.</p>

<p>'The delinquent executor, who abandoned his trust and appropriated the funds confided to him, stands without equity before the court. He is in no position to complain of the penalties prescribed by law for not depositing the funds in bank.</p>

<p>APPEAL from the Eighth District Court, parish of Orleans. Ohas. M. Emerson, Judge of the Third District Court, acting in the absence of Judge Dibble.</p>

<p>In tliis case, it is shown that the heirs of Georg© *W. Johnson ratified, and. confirmed his wifi; that they were recognized and put in possession of their respective shares; that his succession has been fully administered; that the dispositions of the will were carried* into execution as fully as it was possible, and that his executors have been discharged. After all these proceedings, and in the face of these solemn acts, none of the heirs can now be heard, when they seek to annul the will in any of its parts.</p>

<p>The defendant’s petition of appeal prays that E. Newman & Co. he cited through Raoul Jumonvillo, liquidator, to answer the appeal, and accordingly citation was only served on Jumonville. E. Newman was not cited, although he had an interest in sustaining the judgment. The fault is imputable to the appellant. Of the court’s own motion the appeal is dismissed.</p>

<p>A certain sum. was deposited in the hands of Rogers by Mrs. Williams to induce him to sign a bond for the release of her husband, who was prosecuted for the embezzlement of funds belonging to Ponder — which money thus 'deposited Rogers was to return to her or to her order as soon as he became released from his bond. The prosecution was discontinued, the release from the bond was thereby effected, and an assignment of the funds deposited was made by Mrs. Williams to the plaintiff's, who sued Rogers on his refusal to pay the same.</p> <p>Such an agreement on the part of the prosecuting witness, one of the plaintiffs, is one which a court of justice should not recognize and enforce. The agreement was that, if the money embezzled should be returned, he would not prosecute the offender. This can not be the basis of an action in a court of justice to compel one of the contracting-parties to comply with the contract; and, as set out in the petition, the demand of the counsel of the accused is so connected with this illegal contract, that it can not be granted.</p> <p>The plaintiffs had a legal remedy by which their civil demand against the defendants could have been enforced. The action here is not against the depositary on the simple assignment of the depositor; for both the depositor and the depositary are sued vn solido, and the effect of the suit is to enforce the consideration for the discontinuance of the prosecution.</p>

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

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

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

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

<p>The court below did not err in refusing the intervenor the preference which she asserts, because her legal mortgage was not duly recorded in the mortgage office prior to the first of January, 1870. It was recorded in December, 1869, in the book of donations only.</p> <p>The fact that in the month of March, 1871, the book of donations was closed, and the same book was used thereafter as a mortgage book, can not benefit the intervenor, whose mortgage had already perished for want of registry in the mortgage book.</p> <p>That the plaintiffs had knowledge of the intervenor'‘s tacit mortgage is of no consequence. Under numerous decisions of this court knowledge is not equivalent to registry.</p> <p>Article 123 of the State constitution does not impair the obligations of contract, and is not violative of the constitution of the United States.</p>

<p>Where the settlement alleged by the plaintiff to have taken place in relation to partnership business, was shown by an instrument signed by the plaintiff and defendant and attested by one witness, and when, on the trial of the cause, the defendant offered to prove by the witness that this instrument was only a statement of the account of the partnership; and that, at the time of signing the same, the plaintiff was, otherwise and besides, largely indebted to him — which indebtedness was acknowledged by the plaintiff;</p> <p>Held — That the objection to the introduction of such evidence was properly sustained. The written act bound the parties and must speak for itself. The purpose for which the testimony was sought to be introduced seems to be vague. If the object of the defendant was to show that the succession of which plaintiff is the administratrix, owed him more on account of the partnership than the stated account shows, it was clearly inadmissible; if to show that the administratrix individually owed him, it was irrelevant.</p>

<p>The exception to the jurisdiction of the court of Concordia came too late after issue joined. It should have been made in lisnime litis.</p> <p>At a public sale made for the purpose of partition, the plaintiff, a possessor in bad faith, became the adjudicates of two tracts, including the very land which he had possessed during twenty years, and which he had highly improved by clearing and otherwise.</p> <p>Although the plaintiff has not been actually dispossessed, yet, as a question of law, such has been the effect of the sale and adjudication. In matter of eviction it is a well settled doctrine that actual dispossession is not always required. A purchaser may be evicted, although he continues in possession of the property, if that possession be under a different title, as for instance, if the vendee should subsequently hold under the true owner.</p> <p>The same principle may be laid down with regard to the possessor in good or bad faith, whose works and constructions have been kept by the owner of the soil. Whether the latter appropriates them to his own individual use,»or alienates them to the person to whom he owes the reimbursement, or to any one else, the case is the same. In the first and third hypothesis he retains or transfers that which is but conditionally his property ; and, in the second, he transfers to the owner his own property; in the latter, the obligation to reimburse or refund can not be doubted.</p> <p>The obligation of the defendants in this case is to pay the value of the materials and the price of the workmanship, without regard to the increase or decrease in the value of the soil. As the buildings were the plaintiff’s property, the defendants’ claim for their rent is unfounded.</p> <p>The defendants’ other claim for the rent of the land is also unfounded. The case is not one of letting and hiring. The claim is one in the nature of damages for the wrongful detention of property; and, although the trespasser is not allowed to prefer a claim for the enhanced value of the soil, attributable to his improvements, yet in the admeasurement of damages, to which he is subject, the benefit derived from such improvements becomes an important element.</p> <p>The defendants, Wright, Williams & Co., contend that, previously to the partition sale, they had parted with their interest in these lands. The answer to this is, that the partition suit was carried in their own name and for their individual benefit.</p>

<p>Appeal from the Parish Court, parish of Vermilion. Guegnon, J.</p>

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

<p>"While the property seized for taxes, and the sale of which is injoined, belonged to the former proprietor, "W". J". Barden, no registry was necessary to preserve the privilege of the State for taxes due by him. But when the plaintiffs bought the property in 1872, it passed to them free of the privilege for taxes for the preceding years, because there was no registry of those tax claims. The subsequent registry could not fix on the purchasers an incumbrance which did not exist as to third persons, when the plaintiffs acquired the property.</p>

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

<p>from the Eighth Judicial District Court, parish of Calcasieu. Morgan, J.</p>

<p>Among the several grounds of opposition to a public administrator’s account it was urged,, that said public administrator bad not been legally appointed. To this tbe Administrator excepted on tbe ground that it was an attempt to remove bim from office, wbicb be maintained, could only be done by direct action. Tbe judge a quo erred in dismissing tbe opposition. Admitting that in sucb a proceeding as was before tbe court, tbe administrator’s capacity could not be questioned, still bis exception should only bave been maintained in so far as it related to tbe denial of bis capacity: Tbe merits of tbe opposition on other points remained intact, and tbe opponent bad a right to bave them passed upon.</p>

<p>The defendant, dative tutrix, alleging that the condition of the estate of her deceased husband required a sale of the property belonging to it, bad it sold after the usual judicial proceedings, and purchased it all. She subsequently filed a tableau placing herself thereon as a creditor for a sum larger than the property was appraised at. This tableau was homologated. After the adjudication she mortgaged the property to certain individuals. One of the defendant’s children prays that said sale be declared null and void. Payne, claiming to control said mortgage, intervenes to have said mortgage recognized and enforced.</p> <p>The exception to the intervention on the ground that the demands made by the intervenor were not incidental to, or necessarily connected with, the actions between the parties, is not well founded. The foundation upon which the intervenor’s mortgage rested, was the sale made under order of court to the defendant. If the sale was null, his mortgage was null also, because the defendant would not have had any title to the property mortgaged. Although the judgment in this case, between the plaintiff and defendant, would not probably have been conclusive of his rights, he not having been a party to the suit, still he had such an interest in the result in the controversy as to entitle him to intervene.</p> <p>The title to the property purchased by the defendant as stated, is, as to third parties, good and valid. Those who dealt with her did so under the faith of judicial proceedings. To set aside the sale made under the authority of justice and thus destroy the mortgage which was taken as the result thereof, and which was accepted in good faith, would be to make like proceedings snares instead of shields.</p> <p>If plaintiff’s tutrix has assumed responsibilities towards her, and has been derelict in the performance of any duty, the judgment of the district court in this case reserves her rights against said tutrix, and this is her only recourse.</p>

<p>Where the execution under which the sale was to be made issued from the parish oourt, it is in that court; tliat tlie disposal of the proceeds must be determined. The exception to the jurisdiction was properly taken.</p>

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

<p>The absence of part of the jurors at the time and when the case was called for trial, in no manner deprived the defendants of the opportunity ot inquiring into the character and qualifications of the jurors. A sufficient number of jurors being present to form the panel, the court did not err in ruling the defendants to trial.</p> <p>Saving had all the notice the law requires in order to prepare their challenges, the defendants were not entitled to a postponement of the trial, because all the jurors summoned for the term were not present.</p>

<p>Appeal from tbe Eighth Judicial District Court, parish of St. Landry. Morgan, J.</p>

<p>Appeal from the Eighth Judicial District Court parish of St. Landry. Laurent Dupre, acting Judge.</p>

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

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

<p>Appeal from the Parish Court, parish oí Lafayette. Moss, J.</p>

<p>Appeal from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J. Criminal case.</p>

<p>The objection to the jurisdiction of the district court over the demand of the plaintiff can not be maintained, but, as the administrator of the estate of the deceased represents only the creditors of the succession, and has power only to pay the debts and turn the residuum over to the heirs, he can not represent the latter in a controversy to settle the rights of the respective partners in community, nor in a partition of the community property. A judgment against the administrator in this case would not bind the heirs of the deceased. The judge a quo did not err in dismissing the suit against the administrator.</p>

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

<p>Appeal from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J.</p>

<p>Where the dative testamentary executor contended that none of the issues raised in a supplemental petition of opposition of the ninth August, 1873, to his tableau and final settlement, could be entertained by the court, because before that, to wit: on the fourth of August there was judgment homologating all the items not opposed:</p> <p>Held — That as the original petition opposed in general terms the homologation of all the items of the account, except the law charges and costs, it follow’s that only these items were homologated hy the judgment of the fourth of August, 1873. The supplemental petition of the ninth of August supplies, so far as the items therein specified, the deficiency complained of in the original petition of opposition. It cures to that extent the objection of vagueness. The court a quct erred therefore in dismissing the opposition.</p>

<p>In tb© name of Joseph Mallon and his wife an injunction was taken to stop the sale of a plantation belonging to Joseph Mallon, on the grounds that they were entitled to a homestead. The wife made the affidavit and executed the bond, having been authorized to do-so by the judge, on proof that the husband was absent.</p> <p>The right to the benefit of the homestead act is not established by the facts of this case. But the husband, who alone could have asserted the right, if it existed, is not before the court, and nothing therefore can be decided to affect his rights. The wife has asserted no right personal to herself in this suit, and she has no right to represent her husband in the matter, nor can she bind him by her acts.</p>

<p>If the plaintiffs havq any rights in the land, a portion of which they claim by suit in the parish, court, feliese rights descend to them from one.succession which was opened in 1816, and another which was opened in 1859. Neither of these successions now exist. They have been closed. The property sought to he divided is alleged to he worth $50,000. Under this state of facts the parish court was without jurisdiction.</p>

<p>Where the appearance bond by the defendant in a criminal prosecution was taken and approved by the parish judge before whom the preliminary examination was had, the fact that there is no order committing the defendant for trial before the district court, nor any order admitting him to bail, nor fixing the amount of the bail, can not avail in assignment of error.</p> <p>Where it is manifest in the record that the word August is written by mistake for July, it is a mere clerical error which is controlled by the context and accompanying documents. While the court was in session, the fact that the petit jury and witnesses in criminal matters were discharged for two or three days at á time, on different occasions during the said term, did not release the defendant from the obligation of his appearance bond.</p>

<p>Plaintiff claims a privilege on the “buildings which he and his partner, now deceased, erected on a certain piece of ground to which neither of them claimed title, and for the erection of which he paid bills to a certain amount. But this the law does not allow. He stands in the position of a partner who has advanced his partner’s proportion towards the construction of certain buildings. It is not to parties occupying such relations that privileges are given. •</p> <p>There was in this case no dispute about title to real estate. The only question was whether plaintiff could establish by witnesses that a house built on a certain piece of ground had been paid for by him. This court thinks he could.</p> <p>The prescription of three years does not apply to a particular indebtedness in gold which is evidenced by a receipt and which is promised tobe paid on demand; and if it came in the category of money loaned, prescription would only commence to run from demand. In the absence of proof to tbe contrary, the demand must be assumed to have been made only when his petition was served.</p>

<p>Appeal from the Parish Court, parish of Lafayette. Moss, J.</p>

<p>The form of certificate to the return of a commission to take testimony is not sacramental,, and it is sufficient if it appear in the return, when and where and by what authority the deposition of the particular witness was taken.</p> <p>An affidavit that the district judge was absent from the parishis sufficient under the law to authorize the parish judge to grant the order of the district judge for taking testimony.</p>

<p>When the act of sale contains the pact de non alienando, no matte r through how many hands the property sold has passed, so long as the price agreed to be paid remains due, the vendor has the right to proceed directly against the vendee, regardless as to who is in possession of the mortgaged premises.</p> <p>The fact that the property was not divided into lots of fifty acres or less according to article 132 of the constitution, is not sufficient cause) for annulling the sale on the relation of the plaintiff, who complains of the illegality of the executory proceeding under which it took place.</p>

<p>The parish court having made the appointment of tutor, and having jurisdiction of the tutor’s administration, is the proper tribunal in which the tutor should he called on to account for and deliver the property of the minor to a legal representative of said minor.</p> <p>The plaintiff, having satisfactorily exhibited evidence of his appointment as guardian of a minor in the State of Georgia, is entitled to sue for aud recover the property in this State belonging to his ward.</p> <p>The appointment of the defendant as tutor, contradictorily with and on the opposition of plaintiff’s predecessor, did not conclude such predecessor, or the plaintiff, his successor, from asserting the right set up in this action, which is different from that involved in the former contest; nor was it necessary for the plaintiff to show before instituting this suit that no debts existed against the minor. Protection is provided in this respect hy the Code.</p>

<p>The attachment in this case was improperly dissolved. The defendant having been sued on an undisputed'debt, transferred his plantation upon which he was living, in the fall, before gathering a growing crop, and just as a judgment by default was about to be made final. He transferred it in part payment of a debt due another creditor, and though he received cash enough to discharge the debt sued upon, he failed and refused to apply any part of the money to the payment of the debt; and shortly after this transfer he removed to Texas. These acts authorize Nthe belief that he transferred his property with a fraudulent intent, and justified the attachment.</p>

<p>The verbal admissions of the accused ought always to be received with great caution. Besides, it is a rule of evidence that the whole admission is to be taken together. In this-case the witness only heard part of it. The evidence should have been rejected.</p>

<p>The plaintiffs, as heirs of the deceased wife of the defendant, alleging that he failed to open her succession, or cause an inventory thereof, consisting of half of the community property, to he made, hut has administered the same as negotiorum gestor and permitted it to be wasted and dilapidated, obtained an exporte order directing him to file an account of his administration and a notary public to make an inventory of said succession.</p> <p>- There is no authority for calling on a negotiorum gestor, in this manner, to render an account to the court in a fiduciary capacity, as an administrator of a succession; nor is the surviving husband, holding under the law as usufructuary, to be caUed on thus for an account of an administration.</p>

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

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

<p>The sheriff of a different parish from the one in which the suit is instituted is not required by law to serve civil process in his own parish, which has emanated from the parish where the suit was instituted, without being paid in advance the fees established by law for such service.</p> <p>Section 7 of the act of 1870, p. 165 (Bay’s Bevised Statutes, p. 369, section 17,) applies only to the sheriff and clerks of the parishes in which the suits are instituted.</p> <p>In this case it is not found in the record that the defendant, sheriff of the parish of Ouachita, was informed of the near approach of the period which was to extinguish plaintiff’s claim by prescription, nor that the plaintiff used that degree of diligence which would naturally be expected from men of prudence and caution to avoid a heavy loss.</p> <p>"Without leaving out of view the important fact that public officers should be held strictly responsible for injuries or loss that may arise from a refusal or culpable neglect to perform their duties, this court must advert to the want of right in litigants to require their-services without reasonable assurance of the payment of the fees allowed them by law, and without subjecting them to delay or inconvenience in receiving the same.</p>

<p>The defendant, ex-aheriff, having turned over all the papers, writs, etc., of his office, including the receipts of the keepers of the property attached, to his successor, without objection, while the attachment' writs were pending and long before this and the other plaintiffs had obtained judgment, and the incoming sheriff having accepted the keepers of said property and made them his own, the defendant (out-going sheriff) is, under such circumstances, released from responsibility for its safe keeping.</p>

<p>The defendant is bound by the pleadings he filed through his counsel. Without disavowing the authority of the pleadings, he can not come into court, two years atter he has raised the issue of payment, which admits the debt, and shift his defense by setting up an inconsistent plea — a denial of the indebtedness.</p> <p>A litigant will not be permitted to shift his position in order to escape the consequences of his solemn judicial admissions standing on the record for nearly two years.</p>

<p>APPEAL from the Eleventh Judicial District Court, parish of Clai-J_1 borne. Trimble J.</p>

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

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

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

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

<p>Appeal from the Twelfth Judicial District Court, parish of Franklin. Guny, J.</p>

<p>The defendants who are sued hy certain heirs, as third possessors of an undivided half of the land described in fclie petition and sold by their father after the death of their mother, excepted to the right of the .plaintiff's to recover until a settlement was made of the community that existed between the parents of the plaintiffs, showing a residuary interest in the succession of the deceased spouse. The exception is fatal, and the suit must be dismissed.</p>

<p>There is no validity in the defense that, as the plaintiff who sues for the settlement of a commercial partnership, was not separated in property from her husband, the funds which she put in belonged to the community and she has no right of action.</p> <p>Plaintiff has the right to sue for a settlement, if she was a partner, because this essential right exists in every partnership. Whether the capital which she put in belonged to her or not is a question that does not concern the defendant. Plaintiff’s husband, having signed the contract of partnership, authorizing her to make it and having also authorized her to bring this suit, can never demand of the defendant the funds put in by his wife, whether they belonged to the community or not.</p>

<p>The law expressly allowed defendent, J. A. Chalaron, to make a giving in payment to his wife, and it was his duty to cause the registry of her mortgage to be made. This settlement with his wife can be corrected by his creditors, if found to be erroneous and to their prejudice. If the defendant believed the suits in which he confessed judgment were just demands against him, it was not only his privilege, but his duty to admit their correctness or confess judgment. This is no ground for attachment.</p>

<p>Appeal from the Parish Court, parish of Richland. McIntosh, J.</p>

<p>The plaintiff in injunction, Mrs. Murphy, sets up, among other grounds, that she has an interest and ownership in the lots ordered to be seized and sold, superior to the mortgage of Hoss, the plaintiff in execution — which mortgage was granted to Hoss by her husband, now deceased, to guarantee the payment of two promissory notes, and which she alleges to be a fraud upon her rights and void.* She further alleges that she has a claim against the succession of her husband for rents and revenues which were under his control and administration, and which were received and converted by him to his own use; that being a party in interest, she was entitled to notice in the executory proceeding, which was not given to her, but only to McWilliams, the executor of her husband. She further avers nullity of the proceeding on the ground of want of jurisdiction in the district court that rendered the order of seizure — the succession being now under administration in the parish court, and was so at the time the order of seizure was granted 5</p> <p>Held — That the grounds urged by the plaintiff in injunction do not authorize the injunction. The district court had jurisdiction to issue the executory process, and the rights asserted by the wife are not such as to justify the injoining of the sale of the husband’s property, or property of the community. If she has real rights upon such property, they can be enforced upon the proceeds. If her rights are merely usufructuary, they will not be affected by the sale injoined, as it is only the naked ownership of the property that is sought to be sold.</p>

<p>Where, in defense to the action, it was alleged by the advocate appointed to represent the debtor who absconded, that the property attached, although in the name of the defendant, was in reality the property of a commercial firm of which defendant was a member, and that partnership property could not bo attached;</p> <p>Hold — That it would be time enough to pass upon this defense, when made by some one having an interest to make it, to wit: one of the partners, or a creditor of the firm, if there be a partnership.</p>

<p>The exemption of one hundred and sixty acres of land with the improvements, together with the work stock, supplies, etc., mentioned in the homestead act of 1852, shows that the intention of the law was to preserve a homestead for a farmer, in order that his family might be supported and his occupation might not be broken up. It has no application to a case like this, where there is merely a house and lot oocupied as a residence by an attorney at law.</p>

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

<p>The judge a quo did not err in refusing to allow the plaintiff to take a judgment by default •on the supplemental petition which had been filed by her, in which she set forth additional reasons why an injunction should issue. The allegations were not sworn to. Admitting that a supplemental petition to an application for an injunction is permissible, which it is not necessary to determine in this instance, still the truth of the allegations in the supplemental petition should, be sworn to.</p> <p>Before proceeding to trial, plaintiff moved that the rule taken upon her by Pargoud, to prove the truth -of her allegations in a summary manner, should be considered as an answer. The judge did not err in refusing the motion. Defendant had the right to call upon the plaintiff to verify the truth of her allegations without an answer.</p> <p>Defendant having testified that he had received account sales for all the cotton which had been sent to him by plaintiff, and that he had delivered the same to his attorneys who were then in court, was asked to produce them. This was objected to by defendant. The objection was correctly sustained under article 140 of the Code of Practice. Besides, there are account sales in the record regarding five hundred and twenty-nine bales of cotton, which is all the cotton received by the defendant from the plaintiff.</p> <p>The plaintiff’s allegations charge the defendant with bad faith and fraud. Under the pleadings these were allegations which it devolved upon her to establish, and if she had not done so, perhaps the defendant might have contented himself with leaving the case where she did, but there is no reason why, it he chose, he should not be allowed to show by positive testimony that such grave charges against his honesty and honor were without foundation. The judge a quo did not err in permitting him to do so, and overruling plaintiffs objection to the introduction of such testimony.</p> <p>On the trial, plaintiff’s counsel moved the court to continue the case to enable her to procure her testimony, or that they might be permitted to send for her, she being only a short distance from the courthouse. The judge properlyrefused and ordered them to proceed. Plaintiff had not been subpenaed as a witness, and there was no process by which her attendance could have been compelled. If she had intended to be heard in her own behalf, she should have been present to testify when the time came.</p> <p>The testimony offered by plaintiff to show that other persons than Pargoud had furnished her with supplies and made improvements on her plantation, was properly rejected as irrelevant. It did not follow that the defendant had not done the same for her.</p> <p>The judge a quo did not err in not allowing the defendant to open and close the argument. This right belongs to the plaintiff in injunction. Ueither did he err in permitting the plaintiff to call for papers necessary to make out her case, after the entry had been made on the minutes that the testimony was closed. This was a matter entirely within his discretion.</p> <p>It is false doctrine to say that, where a factor who has made advances to a planter, and who has a mortgage upon his plantation to secure an antecedent debt, receives the crop of the planter, the proceeds 'of the crop must be imputed first to the payment of the mortgage debt, the residue going to discharge the debt incurred for supplies. The privilege rests upon the crop, and this privilege the crop must first discharge before any part of it may be applied to any other obligation.</p>

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

<p>‘ As the administrator of an estate can not bind the estate he represents ex contractu, without the authority of the judge, the estate can not be bound by a breach thereof.</p> <p>The plea of payment and that of novation aré inconsistent. A debt paid can not be novateA* There is nothing to novate. ,</p> <p>An administrator has no power to novate a debt due to the succession under his charge, without at least having been authorized to do so.</p> <p>Under no circumstances can the administrator of an estate take in payment of the rent oi property a draft payable at the end of the lease, and thus give up the privilege which the estate he represents has on the growing crop.</p>

<p>Appeal from the Parish Court, parish of Caddo. Oresswell, J.</p>

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

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

<p>Appeal from the Parish Court, parish of Claiborne. Scott, J.</p>

<p>Appeal from the Eighteen Judicial District Court, parish of Webster. Turner, J.</p>

<p>The judge a quo erred in not permitting it to bo proved that an account which had been settled by a note was incorrect. Notwithstanding the note, the party interested had the right to show that the account upon which it rested was not right.</p>

<p>The plaintiff sold her interest in her father’s succession to her co-legatee and consequently co-owner, who is the defendant in this oase, and in the enjoyment of that interest it is not pretended that said defendant has been disturbed. It matters not whether that interest was a third or a half. The purchaser has received all that she purchased, to wit: the interest, whatever it is, and she must pay the price she has agreed to. It can not be seen under what error of law, as alleged, the defendant could have been, when making the purchase.</p> <p>The plea of want of consideration is not well founded. The plaintiff did not sell any slave, but only whatever interest she might have in her father’s estate. Besides, in 1867, the date of the defendant’s purchase, there were no slaves to buy or to sell.</p> <p>After the plaintiff sold all her interest in the succesion of her father to the defendant, she had nothing to do with whatever debts of the succession the defendant chose, or was compelled to pay. There was no error in the judgment which passed over in silence the defendant’s reconventional demand. To give judgment in favor of the plaintiff for the amount claimed, was practically to dismiss the reconventional demand — which dismissal the evidence justifies.</p> <p>The judge a quo did not err in refusing to allow the defendant to submit her pretensions on her reconventional demand to a jury. The suit being on a promissory note and no fraud being set up as a defense, no jury was allowed by law to try the issue. Beconvontion is an incidental demand. If the principal action could not be submitted to a jury, neither could that which was an incident thereto.</p> <p>It is too late to enter a remittitur after an appeal has been granted. After the judgment was signed, it could only be corrected on appeal.</p>

<p>Appeal from the Recorder’s Court, city of Shreveport, parish of Caddo. Wheaton, recorder.</p>

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

<p>APPEAL from the Fourth Judicial District Court, parish of St. Charles. Durrapau, parish judge, acting in the place of Flagg, district judge, who recused himself.</p>

<p>Section 25 of the charter of the city of Monroe, confers full authority on the city to assess and collect taxes and to impose penalties for non-payment of taxes. The grant of full power to tax carries with it authority to use all means necessary to accomplish the object; and the imposition of penalties after due notice for non-payment of taxes, is a legitimate means of collecting revenue. The State can confer this power because there is no limitation in the constitution inhibiting it.</p> <p>There is no force in the objection that section 25 of the charter of the city of Monroe is not covered by the title, and therefore repugnant to article 114 of the constitution and void. The title of the charter is “an act to incorporate the city of Monroe, to fix its boundaries, to provide for the government,” etc. The statute would fail to provide for the government of the city of Monroe, if it failed to authorize the levy and collection of taxes for the support thereof.</p>

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

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. J. O. Moncure, judge ad hoc in the place of Looney, district judge, recused.</p>

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

<p>Appeal from the Eighteenth Judicial District Court, parish of Webster. Turner, J. Jury trial.</p>

<p>Appeal from the Eighteenth Judicial District Court, parish of Webster. Turner, J.</p>

<p>Appeal from the Eleventh Judicial District Court, parish of Bienville. Trimble, J.</p>

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

<p>Appeal from tlie Tenth Judicial District Court, parish of Caddo. Looney, J.</p>

<p>A certain quantity of cotton sequestered at the suit of plaintiff, who claimed $772 55 from Grant, his employer, was released upon a bond on which defendant went surety, and a judgment was rendered against Grant in favor of plaintiff, by consent, ior $532, with privilege. Atter the issuing of a fieri facias and the return of nidia bona, the defendant being sued to make him responsible as surety on the bond;</p> <p>Held — That the admission of Grant that he owed a certain sum — less than the sum claimed_ for which amount judgment was rendered, did not release the surety on the bond from paying the judgment which he had agreed to pay, should judgment be rendered against the principal on the bond. The defendant was not surety for any debt due by Grant to plaintiff, but had merely bound himself to satisfy any judgment which might be given.</p> <p>The objection that a privilege can not be given by consent is not to be taken into consideration, because the plaintiff’s right to recover does not rest upon the privilege which was granted to him by the judgment, but on the judgment itself.</p> <p>The defense that defendant is not responsible on the bond, which, it is alleged, has none of the features of a legal bond for the delivery of property sequestered, is not valid. The bond must be considered with reference to the law under which it was given. Ho matter what the parties choose to call it, the law designates it as a forthcoming bond, and as such it must be regarded.</p>

<p>Appeal from the Fourteenth Judicial District Court, parish of Rich-land. .Bay, J.</p>

<p>Appeal from the Eighteenth Judicial District Court, parish of Webster. Turner, J.</p>

<p>The plaintiff has injoined defendant, tax collector, from selling certain lands seized for non payment of taxes. He contends that the collector’s authority does not extend to the sale of lands forfeited to the State as his were, under sections 66, 67 and 68 of article No. 42 of the acts of 1871. The plaintiff can not assume this position without putting himself out of court, because, if his lands were forfeited to the State in pursuance of said act, the only right remaining to him is the right of redemption, under section 69 of said act, and until he chooses to exercise this right, he has no more interest in said lands than any other individual.</p> <p>Besides, if the defendant has no authority to sell the lands forfeited to the State, no title will pass to the purchaser; there will be no change of ownership and the plaintiff can not be injured. But. on examination of the statutes, it is found that the tax collectors have authority to collect taxes on the delinquent lists, and for this purpose can sell the land forfeited to the State.</p> <p>The implied contract of every citizen with the State, is to bear his share of the common burden of taxtion for the support of government. If Ke should fail to meet this obligation,-there is no reason why he should not pay damages for breach thereof.</p> <p>The law authorizing the forfeiture of the lands to the State after due notice has been given to the owner, and reserving to him the right of redemption on paying certain damages and costs, is regarded as a legitimate means employed by the State to collect her resources.</p> <p>Hothing is found in the law authorizing the forfeiture of the lands to the State for non-pay. mentof taxes after due notice, repugnant to the articles of the State constitution relied on by plaintiff, nor is it in contravention of article one of the fourteenth amendment of the Constitution of the United States.</p> <p>It is true that the special grant of authority in article 118 of the constitution, to the general assembly, “ to exempt from taxation property actually used for churches, school or charitable purposes,” carries with it implied inhibition against the exemption of property not actually used for church, school or charitable purposes. But, while those sections of the law and the special acts exempting property from taxation in contravention of the constitution, may be void, the other provisions of the law authorizing the levying and collecting of the taxes are valid and may be enforced.</p> <p>If the exemptions complained of contravene the constitution, they are void, and such property under section 55 of act 42 of the acts of 1871, is liable to be assessed and taxed like all other property. There is then no inequality of which the plaintiff can complain.</p> <p>Section 8 of act 47 of the acts of 1873, prohibiting a delinquent tax payer from bringing a suit or being a witness, is violative of article 114 of the constitution and void, the object of said section not being expressed in the letter of the law.</p> <p>In regard to the one hundred per cent, damages for suing (section 3 of article 47 of acts of 1873), that provision does not apply to a case like this, when lands have been forfeited to the State.</p> <p>Carried by "writ of error to the Supreme Court of tbe United States. — Reporter.</p>

<p>Appeal from the Parish Court,'parish of Morehouse. Wheeler, J.</p>

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

<p>Where the wife alleged that she was separated in property from her husband, that the property seized and of which she was in possession at the time belonged to her, and prayed for an injunction to prevent the sale of said property to pay her husband’s debts, the exception that plaintiff had failed to set forth the nature of her title can not be sustained. This is not a petitory action, although the title to property be incidentally involved.</p> <p>The affidavit of the plaintiff in injunction, that the facts and allegations set forth are true, is sufficient. It was not necessary to state that they were all true. The importance of the omission of the word all in the affidavit can not be seen.</p> <p>The objection that the husband has not authorized his wife to bring this suit was properly overruled. It is alleged in the petition that she is authorized by her husband, and this is not specially denied. But the injunction bond is signed by the husband. That is sufficient proof that he has authorized the institution of this suit.</p>

<p>The judgment appealed from in this case was not rendered without due process of law, as alleged. Publication of notice to the taxpayer, as provided by law, is the mode of citing delinquent taxpayers in the city of Shreveport, and that is due process. The Legislature has the power and discretion to regulate the manner of citing parties to appear before the courts of the State.</p> <p>The title of the act incorporating the city of Shreveport is, '‘An Act to incorporate the city of Shreveport, define its limits and provide for its better police and municipal government.” Taxes are necessary to “ provide for the better police and municipal government” thereof, and germane to the objects indicated in the title of the law; and this satisfies the requirements of the constitution.</p>

<p>The objection that there was not sufficient evidence to authorize the order of executory process can not be examined on an injunction. The remedy was by appeal.</p> <p>Under its charter the city ot Shreveport has express authority to buy property. Authority to buy carries with it by implication authority to give notes forth© price.</p> <p>The objection that the defendant had no title to the lots purchased by the city is of no force.,, IsTo eviction has been complained of, and no tender or offer has been made to return the property to defendant. The city of Shreveport can not keep the property and refuse to pay the price.</p>

<p>The right of the Legislature to delegate the power of taxation for municipal purposes to a municipal corporation, and the right to allow the corporation to adopt rules for the collection of the same has already been decided affirmatively.</p> <p>Prior to the day on which the sale of the property seized for tax was to take place, the delinquent taxpayer paid the tax, and injoined the sale with regard to the penalty. The injunction improperly issued. After default the penalty was due as well as the amount of the tax and was equally exigible.</p>

<p>•One who has availed himself of a judgment and made it his own by issuing & fieri facias and collecting money thereon is estopped from denying its validity.</p>

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

<p>Where a promissory note was signed in the name of a partnership after the dissolution thereof by the death of one of the partners and the party who signed it was not authorized to do so for the firm, but where it was also fully proved that the only member of the firm before the court, in his individual and fiduciary character, acknowledged hie liability on the note and promised specially to pay it, and that it was given íor a debt of the firm, which he assumed to pay as the transferree of the interest of the other surviving partner ;</p> <p>Held — That he was, under these circumstances, bound to pay the claim sued on.</p>

<p>The failure of the principal to repudiate immediately, or within a reasonable time, the acts of his agent when informed of them, must be construed into an acquiescence.</p>

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

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

<p>The plea of Us pendens is not well founded. The plaintiff is nob shown to have acquired the note from the payee after maturity, and therefore the equities pleaded are not available. The account or indebtedness pf the payee to the maker of the note in a suit pending on appeal, cannot compensate the note held by the. plaintiff, even though she acquired it after due.</p>

<p>Appeal from the Superior District Court, parish of Orleans. Hcmlíins, J.</p>

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

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

<p>This suit having been brought in October, 1873, and the judgment rendered on the second October following, it was an error to allow a penalty, because until the fifteenth of December, 1873, the defendant was not a delinquent taxpayer for the year 1872.</p> <p>That the defendant’s property was not accurately described on the tax roll, is no reason why he should except to the suit, or escape the payment of his taxes to i he State. The court a qua. did not err in treating his exception as an answer and proceeding with the trial.</p> <p>The judge a. quo erred when he permitted a witness at the trial to prove the contents oí the tax roll in regard to the assessment of defendant’s property, because the roll itself* was the best evidence o: the tax due by defendant.</p>

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

<p>J. M. Alva, as administrator of tiie estate of widow iForneret, opened an account in the Louisiana State Bank, which being balanced, July 31, 1862, showed to his credit the sum of $6038 60 ior deposits alleged to revert back to 1858.^ On the twenty-seventh October 1865, said administrator gave a check for said amount in favor of the State Treasurer, which was accepted by the Bank. On the twenty-fifih March 1873, suit was brought by the heirs of Widow Porneret to recover the said balance of deposits in gold, without, making any reference to the check for said amount. On the ninth April 1873, they filed a supplemental petition making the accepted check the basis of the action;</p> <p>Held — That the judgment of the court a qua, ordering the check to be paid in United States currency^ and not in gold, was correct. But the defendant is only liable for interest from the ninth of April 1873, the day of judicial demand on the check.</p>

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

<p>APPEAL from the Superior District Court, parish of Orleans. Huw1ji Icins J.</p>

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

<p>The ruling in this case of the court a qua, permitting the introduction of parol proof that one McMichael never owned the property in dispute, and that Spiller did, was clearly wrong.</p> <p>McMichael having sold the property in dispute to French, and received one thousand dollars cash in consideration for it, executed his bond fi.r title, and French, taking possession of it, expended eight hundred dollars in repairs. There was no obligation resting upon McMichael iurtber than to execute a deed when called upon. The property belonged to French to all intents and purposes, and whether McMichael objected or not to the subsequent probate sale of the property, as part of the estate of one Fancy Spiller, did not in any manner afiect the rights ot French. Forris bought the property as belonging to said estate, and Bach bought it from Forris. After these transactions, French sued McMichael on his title bond, and cited both Bach and Forris as parties;</p> <p>Held — That Bach had made hiraseli liable, under the circumstances of the case, for the value of the rent of the property from the date of the service oi the citation upon him in the suit of French against McMichael. \</p>

<p>Appeal from the Superior District Court, parish of Orleans. Eaw-Jcins, J.</p>

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

<p>The challen go of a juror by the plaintiff because lie could not read or write the English language, was not a good ground of challenge, but as it is not contended that defendant has suffered by the ruling of the judge a quo, it caunot be declared a sufficient reason for reversing the judgment and verdict, and ordering a new trial.</p> <p>While a party is before the court in ttía attitude of the bona fide holder of a note, he can legally object to any inquiry into the consideration of the note.</p>

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

<p>Tlie objection to tbe testimony of a witness on tbe ground that it could not be introduced to establish a fact wliicli could only be shown by the minutes themselves of a corporation, was not well taken. It has been determined that tlie neglect, incompetence, not to say-dishonesty of a corporatian in making up its minutes, can not exclude an interested third party from proving the truth by parol.</p> <p>In this instance it is clear that the aot of executing the note sued upon was ratified by the vestry, and it is unimportant whether, at the time of executing it, the persons who did so had a special authorization or not.</p>

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

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

<p>Michel, one of tbe defendants, in paying to Marchand, the holder of his negotiable note acquired before maturity, did, voluntarily, only what Marchand could have compelled him to do; and the plaintiff, who was defrauded of said note by his brokers, has no right to demand from him payment a second time. His recourse is against his unfaithful agents.</p> <p>When one of two innocent persons must suffer, he whose act contributed to the loss must suffer rather than the other, who only discharged a legal obligation.</p>

<p>The surety on a release bond is responsible only for tlie value of movables, when not delivered according to tlie stipulations of tlie bond after judgment in favor of tlie plaintiff. It is only wlien tlie property is land tliat tlie law fixes responsibility for revenues.</p>

<p>This is a suit against the defendants, Mayor and Aldermen of the city of Jefferson, for damages resulting from the infliction of a wound on plaintiff by a mob of rioters composed, in part at least, of thepolice of the city of Jefferson officially appointed by defendants;</p> <p>Held — That as it is not alleged that defendants were present, aiding, abetting the so called rioters, or that they, or either of them, inflicted the wound, which is the basis of plaintiff’s claim, there is no cause of action.</p>

<p>Where it is proved that the indorser of a check indorsed it for no other purpose than to identify the person who presented it to the bank, and who was in the habit of collecting • for the parties to whose order the check was drawn:</p> <p>Held — That the responsibility of the indorser was as to the identity of the collector, but not as to his authority to sign the check for the parties to whose order it was given. The question is to be decided by taking into consideration in what manner and for what purpose he bound himself. Por as he bound himself, so will he be bound.</p>

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

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

<p>Brady, a resident of Arkansas, proposed to Phelps & Co., residing in Hew Orleans, to ship them thirty bales of cotton, if they would furnish him fifteen hundred dollars in money and send him certain merchandise. The proposition was accepted and the contract was then formed. It was a sale of personal property perfected in Louisiana only by delivery. Before the delivery, either actually or constructively, the cotton was attached. Heither the cotton nor the'bill of lading was delivered prior to the service under the attachment. Therefore the attachment must be maintained as good and valid.</p>

<p>It lias been invariably held by this court that its jurisdiction can only attach by appeal properly taken, and that it bas not a supervisory control over the inferior tribunals.</p>

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

<p>Authority to correct the errors of assessment complained of in this case is solely confided to the State Board of Assessors in the city of IsTew Orleans and to the Auditor. It was theréíore useless for the court a qua to hear testimony upon a point on which it was without authority to decide, to wit: the errors of the assessment, and the testimony offered was properly rejected. Besides, it was not alleged in the answer that the defend: ant sought to correct the errors complained of by making application to the State Board of Assessors according to law.</p> <p>The constitutionality of that provision, making the decision of said board of assessors final as to “the valuations in the assessment rolls,” was not raised in this case. The constitutionality of a law will not be considered where an issue to that effect has not been raised.</p>

<p>Where plaintiffs alleged that the first adjudication of a certain market vested in them the title to collect the revenues of said market, and that when, in defiance of this adjudication, the controller of the city of Hew Orleans sold it anew, and received §2500 more than their bid, this sum of §2500 belonged to them:</p> <p>Held — That by the terms of the sale, the city authorities had reserved the right to reject any or all bids. The second adjudication was a rejection of the first bid, and as this second adjudication was ratified by the council, it follows that the plaintiffs’ claim for the difference between the first and second adjudications can not be maintained.</p>