Volume 27 — Louisiana Reports

<p>Tho act of the Legislature of Louisiana, Uo. 38 of the session of 1§69, is not in conflict with article 1, section 8, of the constitution of the United States, nor is it in conflict with article 14, section 1, of said constitution. Act bfo. 38 docs not undertake to regulate commerce. The first section of act 38 forbids tliose engaged in the business of common carriers of passengors irom discriminating against the passengers on account of race and color. That is the substance of the section so far as applicable to this ease. It was enacted solely to protect the newly enfranchised citizens of the United States within the limits of Louisiana, from the effects of prejudice against thorn. It was not in any man-, ner to affect the commercial interests of any State or foreign nation, or of the citizens thereof. .</p> <p>The above mentioned act, bTo. 38 of the session of 1809, does not violate section 1 of article 14 of the constitution of tho United. States. No one is deprived of life, liberty, or property, without duo process of law by said statute. Tho position that, because one’s property can not be taken without due process of law, therefore a common carrier can conduct his business as lie pleases, without reference to the rights of tho public, is so illogical that it is only necessary to state it to expose its fallacy.</p> <p>In truth the right of the plaintiff to sue tho defendant for damages would bo the same, whether act !Uo. 38 existed or not. But the act is in perfect accordance with tho constitution of the United States.</p> <p>That.tho common carrier may make reasonable rules and regulations for the government of the passengers on board bis boat or vessel is admitted, but it can not be pretended that a regulation, which is founded on prejudice and which is in violation of law is reasonable.</p>

<p>This court is not aware of the existence of any constitutional provision making it imperative upon the Legislature to accord a trial by jury in all civil cases. It was competent for the law making power to provide that cases like the present one should he tried without the intervention of a jury. Therefore it had the right to prescribe, as it did in this class of cases, that issues of the sort here presented should be tried by a jury, if any party to the suit pray for it; and to provide, in the event the jury do not agree, or fail to render a verdict either for the plaintiff or defendant, that the case bo determined by the judge.</p>

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

<p>Although “due process of law” generally implies and includes regular allegations, oppor. tunity to answer and a trial according to some settled course of judicial proceeding, yet this is not universally true It does not apply to proceedings to collect the public revenue.</p> <p>The revenue bill fixes the amounts of the license taxes due by retail merchants and retailers of spirituous liquors, and the act Ko. 47, of 1873 provides the manner in which taxes and licenses shall be collected from delinquent parties. This is sufficient. It is the mode provided by the legislator for enforcing a right of the sovereign and is cktc process of law.</p> <p>The judge a quo did not err in refusing to receive testimony in regard to the election of Governor Kellogg and the validity of his official acts, on the ground that the right ot an officer to a position which he holds can not be inquired into, or his action be declared null in a suit between third jmrties.</p>

<p>Tli© opponents to the homologation of tlie assessment roll presented by the commissioners of the Pirst Draining District err in basing their opposition on the ground that some of the lands upon which the assessment in controversy is established, were drained at their cost under the provisions of act 2To. 49 of 1839, and are by the thirteenth section thereof specially and forever exempted from any further assessment for draining. This section created no contract between the State and the opponents, by which their lands were exempted from the assessment under consideration.</p> <p>This assessment is not an extra tax within the contemplation of said thirteenth section, which made it the duty of the municipality of New Orleans to maintain the works erected by the draining company on the particular section drained, without over levying an extra tax on the lands so drained, but only out of the funds arising from the general tax imposed throughout the municipality.</p> <p>The act of 1861, 33b. 57, provided, as its title indicates, for the collection of the assessment for draining under the act of 1858 and the supplementary act of 1859, and it seems that the present proceedings wore instituted in accordance with the provisions of the act of 1861.</p> <p>The Legislature of 1871, in act 30, has legalized the assessments made by the three boards of commissioners under the said acts of 1858 and 1859, and other supplementary and amendatory acts, and authorized and directed the board of administrators of hTow Orleans to collect the balance due on said assessments, which the said administrators are now seeking to do.</p> <p>The State, in ordering the draining, is exercising sovereign power, and can of course direct or authorize the work to be done in such way, and compensation made in such terms, as its discretion may deem best, restrained only by the fundamental principles upon which the government is to be conducted; and nothing is found in those principles inhibiting the State from having the means provided for such a work in the way it is done in the present system of drainage in !Nbw Orleans. The existing laws clearly authorize the collection sought to be enforced, and no reason can be seen for judioial interference with the discretion of the State.</p>

<p>This is a personal action against the owners of a steamboat, the vessel being seized to enforce a lion accorded by a State law, tinder the conservatory remedy of provisional seizure. It is not a proceeding in ran to enforce a maritime lion. Therefore there is no force in the objection that the State court was without jurisdiction.</p> <p>The State court, having once obtained lawful jurisdiction over the parties and subject matter, could not be subsequently divested thereof by the bankrupt court.</p> <p>Congress has not only not deprived other courts of jurisdiction over such casos, hut it has provided for their prosecution and defense in those courts by tbe assignee in bankruptcy* This principle applies not only to all ordinary actions to collect debt, but also to all proceedings to enforce a lien, so long as the amount due is in dispute or remains unascertained.</p>

<p>The rules and regulations of the United States Board of Supervisors do not specify and particularize tlie short bends and points at which certain precautionary signals are to ho made hy steamers. In the absence of such specification by the hoard, it would seem then to become a matter within the judgment and discrimination of the navigators of the rivers, to determine the places where, hy the rules and regulations governing pilots, signals are to be given.</p> <p>A transcript of the proceedings before tbe United States inspectors, in relation to the sinking of the steamboat Texarkana, which gave rise to this suit, embracing the evidence taken on that occasion, was offered on the part of deiendants to prove rein ipsam. This was objected to by the plaintiff as res inter alios and irrelevant. The court a qua sustained the objection to that extent, but admitted it for the purpose only of contradicting the statements of witnesses. The court did not err. The action taken by the board of inspectors could not bind the plaintiff who was not a party to it.</p>

<p>APPEAL from tlie Superior District Court, parish of Orleans.</p>

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

<p>Parol evidence was clearly inadmissible to prove that the wife of the defendant was the debtor in a oontraot executed by him, and that he signed it as her agent, and not in his individual capacity as it appears in the contract itself, no error or mistake in executing the instrument being alleged in the answer.</p> <p>This testimony being excluded, there is no reason why the defendant, who was not one of the heirs of his wife’s father, should not pay the debt he contracted with the administrator of the succession, whether there are, or not, sufficient funds in his hands to pay the debts of the deceased.</p> <p>If the plaintiff had consented, when the instrument was given, in consideration of the purchase by the defendant of succession property, that said defendant should not be required to pay the debt until there was a partition of the estate among the heirs, it would not have been obligatory, because .an administrator oan make no oontract in a matter of that kind binding on the succession, he having no right to fix the terms of selling succession property.</p>

<p>'Hie plaintiffs having judgment against tlie defendants m solido, issued execution thereon and made Terry, one of the defendants, a party garnishee, propounding to him certain interrogatories. This proceeding was excepted to; the judge a quo erred in overruling the exception. Terry, "being one of the deiendants in execution liable vn solido with the others, was not a third person, and could not he proceeded against by garnishment process. . ’</p>

<p>under a title to make appropriations for the general and current expenses for the year • ending thirty-first of December, 1874, an appropriation for an expense or debt incurred prior to that time can not he made, because the object is not expressed in the title, as required by article 114 of the constitution.</p> <p>Besides, the claim of plaintiff can not be enforced, because at the time it was incurred, the total debt of the State exceeded the limit fixed in the amendment of the constitution.</p>

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

<p>"Where one of two innocent persons must suffer a loss through the misconduct of another, the loss ought rather to fall upon him who put it in the power of the third party to inflict the injury.</p>

<p>Judgment having been rendered in favor of John Coleman & Co., -with privilege on a certain piece of property on Hampart street, New Orleans, which privilege was for having paved the street in front thereof, said property was sold by the sheriff and bought by John Coleman. It had been previously mortgaged to the plaintiff for a sum in excess of the amount realized at the sale. Mrs Dunning, the plaintiff, issued executory process, and the sheriff decliued to sell the property under her mortgage, as he had already sold it under Coleman’s privilege. Mrs. Dunning now sues John Coleman & Co., to have the sale rescinded and her mortgage declared to have priority over Coleman’s privilege.</p> <p>Article G84 of the Code of Practice and article 3274 of the Civil Code of 1825, which has not been repealed or changed by any special legislation, govern this case. The act of 1840, on which the defendants rely, even if that act were admitted to be in force now — a point on which no opinion is expressed — gives them the privilege claimed, but on certain conditions.’ When they were complied with, it was too late to have any effect on the plaintiff’s mortgage.</p> <p>The Statute of 1840 does not, in any manner, repeal or change the article of the Code above quoted,‘in regard to the time when the privilege shall be recorded. It simply fixes the length of time which the privilege is to endure. As the privilege under which the sale took place was not superior to the plaintiffs mortgage, and as the price bid was not sufficient to pay her mortgage, it follows under the article of the Code oí Practice above cited, that there was no legal adjudication, and therefore that there was no sale.</p> <p>The court a qua did not err in nonsuiting plaintiff as to the claim she made against Coleman, to cause him to make restitution of the rents received by him since the sale, to he placed to the credit of her debtor. The plaintiff would have had no authority for making these rents responsible for her debt, if the property had remained in the hands of her debtor.</p> <p>Her rights rested on the realty and not on its revenues.</p>

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

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

<p>It is true that the allegata and the probata must agree, hut it is sufficient if the substance of the issue be proved. The real substance in this case is not where the plaintiff was, to a mathematical precision, when he was injured; but first, whether he did suffer, and secondly, whether, if he suffered, it was from the fault of the defendant.</p> <p>But where the conduct of the plaintiff has been negligent and has contributed to the injury received, he can not recover, even though the defendant be in fault, and such is the fact in this instance. The damage done to plaintiff was in part the result of his own carelessness. He can not therefore, make the railroad company responsible for a disaster which he brought to some extent upon himself.</p>

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

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

<p>Nathaniel Montross, of New York, took out an order of seizure and sale against certain property mortgaged to Mm by Samuel Jamison to secure the payment of promissory notes on which this suit was brought. The mortgaged property was sold apd adjudicated to plaintiffs. The amount due on the debt for wMch the property was seized, was paid, and the remainder of the proceeds of the sale was retained to pay prior incumbrances. The city of New Orleans claimed as due for unpaid taxes against the property a certain sum. of money with interest and costs and attorney’s fees, and alleged the city’s right to be paid in preference to any other creditors. The State tax collector for th e First Distrist of New Orleans excepted to the jurisdiction of the court, showed that the State has a first privilege upon the property for all taxes and can not be called in as an ordinary creditor as aimed at by plaintiffs.</p> <p>But Smith & Co., who held certain mortgage notes, drawn by Jamison and secured also by first mortgage, took executory proceedings against the said property which plaintiffs have injoined. They have made parties to this suit as in a kind of conmrsus, the city of New Orleans, claiming a sum due for taxes, itlso the State tax collector of the First District of New Orleans and Nathaniel Montross, holder of the notes and mortgage under which the property was sold, and they have prayed that the proceeds of the sale of the property in their hands be distributed among the creditors of Jamison, according to their respective rights of mortgage and privilege.</p> <p>The court a qua maintained the exception of the State tax collector, gave judgment in favor of the city for a certain amount of taxes with lien and privilege on the property, and dissolved plaintiffs’ injunction.</p> <p>The judge below erred only so far as he gave judgment in favor of the city for taxes. It would be in time after the execution of the order of seizure and sale now pending, to present the claim for taxes, reserving to the city her right to be paid the taxes due, out of the proceeds of the sale when made.</p>

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

<p>Judgment having been rendered against the defendants, as a firm, and the individual members thereof in solido for the amount of a note of the firm, there ■was another judgment in the same instance against Terry, one of the firm, for the same deht, on a rule against him as garnishee ; this was an error; and an order making a rule upon him absolute to forthwith deposit in court sufficient cash or assets to satisfy the judgment against him as garnishee, was another error. Terry was not a third person in contemplation of the law applicable to garnishees; he was one of the defendants; judgment had been rendered against him individually and as a member of the firm. The second judgment, under a fieri facias against the “ defendants, ” added nothing to his liability.</p>

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

<p>The State ox rel. Elias George instituted suit against Tucker, under the intrusion act, to recover the office of recorder of the parish of Tangipahoa. Whilst that suit was pending, George sued Tucker and injoined him from recovering the fees oí the office. The injunction was set aside on Tucker giving a release bond with sureties. There was ' ~ judgment against Tucker for the fees, George having hoen declared entitled to the office in the suit of the State u. Tucker. The plea set up by Taylor, surety on the release bond, that George could not sue for his fees of office without the interposition of the Attorney General or district attorney in his behalf, can not be maintained.</p> <p>The State having instituted proceedings to oust the intruder from the office and to install George therein, there is no good roason why George should not have taken all necessary steps to preserve his rights to the fees of the office to which he had the legal title. The Stato was interested in seeing that no one should ‘intrude into a public office, but it had no interest in the fees of the office.</p>

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

<p>APPEAL from the Forth District Court, parishof Orleans.</p>

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

<p>Courts have no power to promulgate laws and none of course to render orders to others to promulgate them. If violation or remissness of official duty has occurred among those who are by the constitution authorized to enact and promulgate laws, the correction is to be sought within the powers of the legislative and executive departments, and none within those of the judicial.</p>

<p>This is a suit by plaintiff to annul a judgment, set aside the sale thereunder, and recover the property sold.</p> <p>The marriage of the plaintiff vacated the authority conferred in the deed of mandate executed before marriage to her father, P. S. Nugent, empowering him to represent her in all suits in this State. P. S. Nugent had, therefore, no authority to confess judgement as attorney in fact for the plaintiff, at the time he did so.</p> <p>But the judgment complained of was rendered also on the written consent of Prank Haynes her attorney. His authority to consent to the judgment with a stay of execution until a certain specified time has not been denied under oath by the plaintiff, and until thus denied the defendant was not required to prove it.</p> <p>The attorney was a sworn officer bound by his oath to act correctly in the pursuits of his profession. Thus situated, it is not to be presumed that he acted without proper-authority. On the contrary, overy presumption is in favor of his having pursued the proper course of conduct, unless the contrary should be suggested on affidavit.</p> <p>.in regard to the error in the advertisement about the exact number of feet the property possessed fronting on the street, it is an irregularity which ought not to vitiate the sale, the proceedings appearing to be regular.</p>

<p>The answer to an appeal which asks to have the judgment amended, filed after the motion to dismiss, without reservation of the same, waives the application to dismiss.</p>

<p>This suit is brought against th© sureties of a late sheriff to recover the amount of a judgment rendered against him. The main defense is the prescription of two years, pleaded under section 3546, of the He vised Statutes.</p> <p>It is true that the defendants were not sued within two years from the day of the commission of the act complained of, but their principal,, the sheriff, was, and this interrupted prescription as to them.</p> <p>Judicial pursuit as to the principal interrupts prescription as to the surety, and suit against the surety interrupts it as to the principal.</p>

<p>Cire, the subrogee of Powhatan 'Wooldridge to a judgment obtained by the same v. E. Monteuse — which judgment was transferred from P. Wooldridge to E. Wooldridge, and by E. Wooldridge to Cire, caused a fi. fa. to issue in said judgment. Hedrick, the intervenor, took a rule against him to quash the writ, on the ground that he, the intervenor, was the real owner of the judgment, seized in the suit of Hedrick v. E. Wooldridge, and purchased by him at sheriff’s sale. Hedrick had proceeded by attachment against E. Wooldridge, absontee. In this attachment case several citations were made, but it seems that in every instance the returns of the sheriff were simply that service of petition and citation was made on the curator ad hoe in person, mentioning the name of the curator. It appears from the returns of the sheriff, that in neither of the instances werecopies of the attachment and citation ctifixod to the door of the room whore the court in which the suit was pending is held.</p> <p>Proof of service of citation is not a matter in pais, but must appear by the sheriff’s return. A court can presume nothing with regard to a party being cited.</p> <p>The failure to serve the proper citation is iatal to the intervenor’s claim to be the owner of the judgment forming the object of this litigation. Therefore the rule was properly discharged.</p> <p>Subsequently to a decision of the lower court, that the order granted for a suspensive appeal on the part of tho intervenor, plaintiff in the rule, did not suspend execution on the fi. fa., said intervenor filed a petition of third opposition and prayed for an injunction which was issued. To this proceeding an exception was filed, on the allegation that the grounds of action of the rule and of the petition for injunction were the same, and that the pendency of appeal on the rule supported the plea of Us pendens which was presented. This exception was properly maintained by the judge a quo.</p>

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

<p>Tlie plaintiff sues defendant for a certain sum. of money on a contract of affreightment concerning the transportation of staves, for which he signed a hill of lading. After signing, he protested against it. This was too late. If his allegations are true, he should not have signed the hill of lading, or if he did, ho should have protested at the time.</p>

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

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

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

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

<p>The plaintiffs contend that the garnishees having admitted that they owed Norris, the defendant,- the sum of $2933, it is incumbent upon them to prove the correctness of every item of the sum they claim the right to retain, which plaintiffs aver the garnishees have failed to do. There is no evidence introduced by the plaintiffs to disprove the truth of the answers of the garnishees. The extent of the liability of garnishees is to be tested by their answers to interrogatories, when the truth of those interrogatories has not been disproved.</p>

<p>The judgment in this case having been rendered at a different time from that at which the appeal was applied for, the appeal could be taken only by petition and citation. Therefore the motion to dismiss must prevail.</p>

<p>The rule is that want or failure of consideration will be no defense or bar to the title of a bona fide holder of a not© for a valuable consideration, at or before it becomes due, without notice of any infirmity therein.</p> <p>A valuable consideration is one having value or worth, and it is not measured by any particular degree or amount. There must be value, but not necessarily fall value, which is not always easily determined. The agreement of the parties must fix the value. A small price is value, and where it is not clearly a sham, mast be accepted as valid. In this instance, this court can not say that the willingness of the holder of the notes before maturity to take one hundred dollars for said notes, which were each for §2500, was, of itself alone, notice to the purchaser of a want of consideration.</p>

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

<p>'Where the minutes of the court below do not show that the order was allowed on the motion for an appeal, but where it is stated elsewhere in the record by the judge that he did grant tho order, this court will not bo disposed to make an appellant suifer for such neglect of duty by the clerk of the court a qua.</p> <p>"Where a suspensive appeal was allowed, hut the bond was not filed until more than ten judicial days after the judgment was signed;</p> <p>Held — That the "bond being for the amount fixed by the judge, tho only penalty incurred by the appellant was the right of the appellee to issue execution, the appeal operating simply as a devolutive one. The ex parte order setting aside the appeal, under the circumstances, did not divest this court of jurisdiction.</p>

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

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

<p>Where final judgment was rendered in favor oi the two members of the defendant firm, who were before the court, and the appeal was taken as to one only:</p> <p>Held — That both defendants having an interest in maintaining the judgment, should both have been made parties. The motion to dismiss the appeal must prevail.</p>

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

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

<p>It is the duty of the appellant to bring up a complete transcript, or in proper time suggost-a diminution of the record, in order that it should be corrected, if possible, and the trial be proceeded -with. The fault being imputable to the appellant, the appeal must be dismissed.</p>

<p>APPEAL from the Fourth District Court, parisli of Orleans. Lynch, J.</p>

<p>Where the objection to the introduction of an original act of sale as evidence was: 2Tirst— Because it was not an authentic act, having but one witness; second — because there was no proof of signatures; and. third — because the plaintiff, having declared on an authentic act, a private writing is inadmissible;</p> <p>Held — That the judge a quo did not err in admitting the evidence; because it is sufficiently proved that tbe instrument was signed by the parties, and is not so inconsistent with the one declared on as to make it inadmissible. It was signed by a notary public, and failed in being authentic only for want of the signature of one of the two witnesses named in the act which was and has'since been in the records of said notary. Besidos it is proved that the price of the sale was received and that the mortgage retained by the vendor was duly canceled. This shows that the title passed from the vendor to the vendee.</p>

<p>Tbe Teutonia National Bank was clearly without right to hold Loeb & Oo.’s note, pledged to secure a particular debt of Gretzner, 'Winehill, & Co., on account of any other indebtedness of that firm to the bank. When Loeb & Co., and also Gretzner, Winehill & Co. with them, offered to pay and take up the note of the last named parties, the bank upon receiving payment in full for that note should have surrendered the collateral.</p>

<p>A motion to dismiss an appeal oh the ground, that it is frivolous can not prevail, although it may ho a good one for giving damages when tho case shall he tried on its merits.</p> <p>A party may obtain judgment on motion after ton days notice.</p>

<p>’Wiiero tlie defendants answered tliat they liacl issued tlie policy of insurance sued upon at tlie instance of Bader, agent of tlie plaintiff; that, when called upon to pay the premium, he referred them to plaintiff who declined paying on the ground that her agent must have paid it; that, afterwards calling on Bader and informing him of the failure of plaintiff to make payment, he advised them to cancel the policy, which they accordingly did, wherefore they were no longer hound:</p> <p>Held — -That whero a policy of insurance is issued -without prepayment of the premium, the . inference is that the insurers intended to extend a credit for its payment,* that it was not at the option of the company to cancel the policy; that they only had the right to claim a dissolution of the contract for nonpayment of the premium upon putting the other party in mom; that Bader was only empowered to apply for the renewal of the policy, and was without instructions or authority to consent to its annulment.</p>

<p>Tlie right of the administratrix to revoke her power of attorney to administer the affairs of the estate which she had in charge, can not be doubted. All acts done by her agents under said special power, subsequently to the revocation and notice to them of the revocation, can not be considered as binding upon her. The account filed by them was without effect and the court a qua erred in acting upon it.</p>

<p>‘Where tbe terms of the contract for building were, that “no extra was to be admitted or allowed for, unless executed under written authority, and all omissions, additions or alterations should bo estimated for, and the value thereof agreed upon by the superintendent, and added to or deducted from the contract sum, as the case may be, by an endorsement, or no allowance for the same shall he made by the other party; ”</p> <p>Held — That certain items of extra work claimed by plaintiff, could not be proved by parol evidence under the contract, and second, because they were outside of the contract, in no manner connected with the specifications in the contract, and contrary to the allegations in the petition.</p>

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

<p>Where a patent, transferred for full paid in stock to a company, was subsequently seized and sold by the creditors of said company, and bought by the original proprietor of said patent, who paid the amount of tbe sale into the sheriff’s bands, and claimed tbe same by virtue of his vendor’s alleged privilege, as third opponent;</p> <p>3j0],¿_Xhat the clause in the charter that tbe full paid stock should not be issued until the ordinctA'y stock should bo taken, and its non issuance in consequence thereof, did not make the third opponent any the less the owner of his shares. Considering his transaction with the company as a sale, he received the price, and hence has no vendor’s privilege, nor would he have any if considered as an exchange.</p>

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

<p>APPEAL form the Seveuth District Court, parish of Orleans. Galiens, J,</p>

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

<p>In tliis suit, instituted by plaintiff to recover bis share in the succession of bis grandfather and grandmother, the only question being whether the Second District Court, parish of Orleans, had jurisdiction to issue the order of sale to operate said partition 5</p> <p>Held — That the court a qua did not err, under the state of facts existing in the case, and by virtue of art. 924 of tlio Code of Practice, in maintaining its jurisdiction. Having jurisdiction, it could order the sale of the property to be partitioned, and it follows that the liens and mortgages on the property sold were shifted to the proceeds. The opponent, Sickerman, retains his right to participate in said proceeds to the extent of his mortgage. The purchasers of said property could not be compelled to pay the price before they were tendered an unencumbered title, and all that they required was the erasure of the mortgages on the property sold.</p>

<p>A "bill of exceptions being taken to the admission in evidence of a notarial act, on the ground that tbe plaintiff bad not alleged in Ms pleadings the assumpsit of the debts of an old ffnn by a new one, which it was the object of the evidence to establish;</p> <p>Held — That the evidence was properly admitted. The defendants, by pleading a general denial, put at issue the Question of their liability to pay the note sued upon, and the plaintiff had the right, by proper evidence, to show that they were liable.</p> <p>By the commercial law every member of a commercial firm can bind the others by drawing or indorsing commercial paper, if by an agreement inter se, a different rule wore established by commercial partners, it would be without effect against third parties, unless it were shown that such third party had knowledge of that agreement.</p>

<p>Article 313 of tho Revised Code and Article 964 of the Code of Practice do not authorize the appointment of a curator ad hoc for the purpose of receiving notice of protest, nor was the plaintiff required to serve notice on the curator who was not appointed as such until fifty-one days after the protest.</p> <p>Neither the plaintiff nor the notary seem to have had any knowledge that, ten days before service of notice of protest, the heirs of the indorser of the note sued upon, had filed a petition for his interdiction, and no information in regard to it was communicated to the notary when he handed the notice of protest addressed to the indorser to his son-in-law at the residence of said indorser.</p> <p>At the time of the protest, no legal representative having been appointed for the indorser, the notice addressed to him and left at his domicile on the day of protest was sufficient to fix his liability. The plaintiff, through the notary, had exercised reasonable diligence and given such notice of protest as under the existing state of facts the law required to be given.</p>

<p>An inspection of the record in this caso shows that there is no note of the evidence, and it appears that there was in fact no evidence introduced to sustain the various items in the executor’s account, amounting to 8678 50, grouped in said account, as “amount of privileged claims paid.” Under article 1042 of the Code of Practice, the evidonce in support of the claims should have been taken in writing and annexed to the record. The ends of justiee require that this case should be remanded.</p>

<p>When a firm is cited as garnishees, the answer to the interrogatories made in behalf of the firm needs not be sworn to and signed by each membor thereof. If the firm only is cited, the firm only is bound to answer, and any member thereof may make oath and sign the firm name. If the separate answer of each member be desired, citation must be addressed to and served on each member.</p>

<p>Appeal from the Secoud District Court, parish of Orleans. Duvignaud, J.</p>

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

<p>■Where parol evidence does not establish a debt against a dead person, but simply shows under what circumstances and for what purposes payments were made, it is admissible.</p>

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

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

<p>This is a suit to force compliance with the terms of adjudication of property. The defense is want of title in the seller, the administrator of the Trainor estate. Trainor "bought the lot about which the dispute is as to title, at a tax sale made in August, 1860, at the suit of the city of New Orleans, for city taxes. The sale was made under the provisions of the act No. 85 of the session of 1858, and act No. 175 of 1859, additional thereto. The provisions of these acts not having been complied with in the tax sale, it follows that the evidence does not establish a valid title in the succession of Trainor.</p>

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

<p>The title to tlie act No. 7 of the extra session of 1870, is sufficiently expressive of its objects and purposes to indicate the intention of establishing a new city charter, and, as a consequence, the prescribing of the city limits or boundaries.</p> <p>Cities may properly be extended in their boundaries as need or convenience may require. The extension of their boundaries may, as in the present case, include rural districts, the condition of which is very materially different from the character of city property.</p> <p>Taxation must be equal and uniform, but the ascertainment of the proper standard of valuation to form the basis of taxation is well nigh insurmountable. It is at least a difficulty that is never clearly and satisfactorily removed.</p> <p>The principle is well settled and the doctrine established, that a Legislature may, without the infringement of constitutional rights, extend the boundaries of a city and embrace new territory, but that it is without power to authorize the city to levy any other than a uniform and equal tax on all property alike.</p> <p>The tax in dispute in this case has been imposed since the city charter of 1870, which makes it the duty of the City Council to lay an equal and uniform tax upon all real and personal property in said city.</p> <p>From these well settled principles and the law applicable to this case, it must be concluded that the objections urged against the constitutionality and legality of the tax in question are untenable.</p>

<p>In tilia instance a writ of injunction was issued by the Superior District Court, at the suit of plaintiffs, restraining the city of New Orleans from enforcing any claim against them for pretended levee dues, wharfage or port charges, and prohibiting W. L. Evans, a justice of the peace, from futther proceeding in certain specified cases pending before his court.</p> <p>Art exception was correctly taken to the jurisdiction of the Superior District Court. The constitutionality of the tax imposed by the city being in question, an appeal lay directly from the justice’s court to this coart. The city had the right to bring those suits before the tribunal having the proper jurisdiction of them.</p>

<p>The city is not responsible for the damages which may result to one of its officers when in the discharge of his duty. It is a risk which he'runs when he accepts the position.</p>

<p>The third opponents in this ease attempt to regulate the effect of a seizure by a creditor with special mortgage and vendor’s privilege, in what relates to them or their junior mortgage, eighteen months after the seizure had been released, the sale consummated, and the funds distributed. This is an extraordinary proceeding. There is no longer any ground for a third opposition to stand upon. The exception that there is no cause of action is well taken.</p>

<p>APPEAL from the Seventh District Court, parish of Orleans. 061-lens, J.</p>

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

<p>The plaintiff has failed to prove his allegations that there was, at the time of mating his demand, money in the city treasury specially designated and set apart for the payment of judgments. Failing in this, he was clearly without right to the proceeding hy mandamus, even if he could otherwise have resorted to it.</p>

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

<p>That the matter in dispute in this case against each of the plaintiffs is less than $500, is no-ground to dismiss the appeal. The matter in dispute is the sum claimed hy defendants under a contract with the city, and the amount in the contract far exceeds $500. The controversy as to them involves the validity of the contract. As they could appeal from the judgment, had it been against them, the plaintiffs also can appeal.</p> <p>It is sufficient that the surety has signed the appeal bond — the appellants, parties to the suit, being bound without signing the bond, to abide the result of the litigation.</p> <p>The appeal bond was filed in time. The delay occasioned by the mandamus proceedings to-compel the judge to grant the appeal, can not prejudice the appellants.</p> <p>It is not necessary for one-fourth of the front proprietors on the whole length of a street in which improvements are to be made to petition the council for that purpose. It is sufficient if it be done by those on the portion sought to be improved.</p>

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

<p>■Where the transcript of the appeal was filed on the seventh of November, 1874, and on the eleventh the defendants, appellees herein, filed an answer praying for an amendment of the judgment, and where on the fourteenth they moved, to dismiss the appeal, because the appeal bond was not for a sufficient amount, because the transcript was not filed in time; and because the clerk certifying the record omitted to append his signature;</p> <p>Held--That the motion came too late.</p> <p>Besides, having joined in the appeal, the appellants ought not to be heard asking for its dismissal.</p> <p>The certificate appended to the record should be signed by the clerk. This court, of its own motion, orders it to bo done, and denies the motion to dismiss.</p> <p>In this instance, where the plaintiff injoined an order of seizure and sale issued on behalf of defendants, the judge a quo did not err in dissolving the injunction for the sum really due by plaintiff, and perpetuating it as to the small sum received by defendant and to be credited to plaintiff, but he should have allowed damages on the amount that was due. The remittitur by defendants is an admission that the writ issued for more than was due. The making of a remittitur does not remove the existence of the cause for the injunction, to that extent, at the date of its issuance.</p>

<p>Tlie privy, in this instance, being built npon the yard or space of ground belonging in common between the parties, the defendant had no right to place or keep said privy on it without the consent of his co-owner.</p>

<p>This is a suit to recover the penalties stipulated in two charter parties, for the violation thereof, in relation to voyages to bo made by two different vessels.</p> <p>The putting in default was sufficient as to one of the vessels, but there is no proof that either of the modes for putting in default pointed out in article 1911, E. O. C. Eb. 2, was observed in relation to the other vessel, until the day the contract expired, when it was impossible for the vessel to executo her voyage on, or previous to, that day. The defendants are therefore liable jointly and vn solido, as they bound themselves, only for the infraction of the contract as to one of the vessels.</p>

<p>This is a suit “brought against defendant on a not© drawn by him, and pledged as security to plaintiff by Carlos, Marks & Co. for the payment of three of their notes. The defense is that the defendant has paid two of the notes, and has tendered the plaintiff the amount of the last one, for which the instrument sued on was given in pledge, it being a note signed for accommodation and without consideration, for the benefit of the pledgors.</p> <p>The plaintiff knew that the pledge was an accommodation note. In law and equity, therefore, the defendant ought not to be required to pay more than the amount for which the pledge was given, to wit: the three notes discounted by Carlos, Marks & Co., and ought not to be extended to cover money overdrawn by said Carlos, Marks & Co. But a formal real tender of the money having not been made as required by law, defendant can not be exonerated from interest and costs.</p>

<p>It can not be doubted that tbe intention of tbe law is, that tbe city attorney must be elected biennially by tbe council. It is also clearly stated in the city charter that bis term of office is two years.</p> <p>Under the law tbe council can only elect a city attorney on the third Monday of November, or as soon thereafter as practicable, and unless tbe term expires biennially at that time, this duty could not be performed by said council.</p> <p>Tbe term of office of tbe mayor and administrators began on tbe first Monday of November, 1870, and continued for two years. That of tbe city attorney, tbe surveyor and tbe recorders began on tbe third Monday of November, at which time tbe law required these offices to be filled by an election for two years.</p> <p>With a view to give effect, if possible, to every part of tbe law, it must be concluded that tbe government established when tbe city charter went into operation in April, 1870, was a temporary organization, and that tbe permanent government began after tbe election of tbe mayor and administrators on tbe first Monday of November, 1870.</p> <p>Under this construction full effect can be given to that provision of tbe charter mailing it tbe duty of tbe council to elect a city attorney at tbe first regular meeting after its induction into office. Tbis could not be done if tbe term of tbe city attorney began with tbe temporary organization in April, 1870, and continued for two years. Tbe law clearly contemplated a vacancy and tbe beginning of a new term at tbe time required for tbe election. Otherwise, that election which was imposed as a duty on tbe city council could not have been performed — which would have been an absurdity. Hence it follows that tbe election of defendant by tbe council, as city attorney, on tbe fifth of December, 1874, was valid.</p>

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

<p>The respondent refuses to grant to relators a suspensive appeal on the ground that their-intervention not having been ñled by leave of the court, or served or put at issue, did not authorize a judgment in their favor or against them from .-which they could appeal. In this there was error on the part of the judge a quo. If the relators were not parties to-the suit, it was because the judge erroneously refused to allow them to intervene. But third parties may intervene when they allege, as they do in this case, that they have been aggrieved by the judgment.</p>

<p>The difficulty in this case arises from the loss of a counter letter or private agreement existing between the plaintiffs and defendant, or rather from their disagreement in regard to the contents thereof. 0?he bills of exceptions as to the parol proof of the contents of the counter letter or written agreement between the litigants herein were not well taken, a sufficient foundation having bden laid to authorize the admission of secondary evidence.</p> <p>An unreasonable contract is not to be supposed probable. It is not to be presumed that plaintiffs, who were merchants and business men, would have consented to advance large sums of money to cultivate' a plantation for defendant’s benefit-,, and themselves incur all the risks and losses attending the enterprise if not successful.</p>

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

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

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

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

<p>The judgment of separation "between plaintiff and her husband was a nullity because it was not executed by a giving in payment or by a bona fide non-interrupted suit to obtain payment as required by article 2428 of the Revised Code, nor was it promptly published as required by article 2429.</p> <p>The conveyance under which plaintiff claims the property seized is covered by neither of the three cases mentioned in article 2446; and in the language of article 1790, such contract between husband and wife is forbidden.</p>

<p>The land in controversy having been sold as the property of B. "W. G-raves, and his legal representative — tho curator or administrator of his succession — having heen cited to answer both the original and amended petitions claiming said land, and issue joined thereon as to him, the judgment for the land according to the corrected description was proper, but the judgment for the rent was erroneous. The curator was not the trespasser or actual possessor, and the minors could not he held liable for the act of trespass of their mother, now deceased, as well as their father. They could only accept with benefit of inventory, and take the succession of their mother after its debts were paid. But her succession was not before the court, nor was any one who could stand in judgment for such a claim against her.</p>

<p>Under the act of 1868, Revised Statutes 2127, .the jury must he drawn by the parish judge, clerk and sheriff. The drawing for the term was made by the parish judge, clerk, recorder and the sheriff. Therefore, all the officers required by law to draw the panel were present and officiated in the act. The placing in the order of the judge for the drawing at that term, the additional officer — the recorder — was, doubtless, an oversight, and may be regarded as surplusage. The objection to the drawing has no weight.</p>

<p>The testimony of <T. H. Halsey, a brother of the plaintiff, was offered in evidence to show that a certain piece of land belonged to her at the time of her marriage to her present husband, one of the defendants in this case, and that she acquired it at a sheriff’s sale. The testimony was objected to on the part of the defense on the ground that it was an attempt to establish, by parol, title to real estate, which requires written evidence. The bill of exception to the admission of such proof was well taken.</p>

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

<p>The certificate of the clerk of the court a qua as to all the matters in regard to plaintiff, defendant, and the intervenors who have appealed, is sufficiently full. The proceedings as-to the intervenor Bender, who did not appeal, are not material in the controversy between the parties before this court, and their omission from the record can not prejudice or affect the parties.</p> <p>The record shows that the citations on the intervenors were served, but before the specified delay expired, and before issue was formed thereon either by default or otherwise, the plaintiff caused the default taken by her. against the defendant to be confirmed and the intervention dismissed. This was irregular and premature. Issue should have been joined.</p>

<p>The defense that the indorser of a promissory note was released "by the fact that the hank, without his knowledge or consent, gave up a warrant which had been pledged as collateral security, must be sustained. The indorser contends very properly that he could have made the warrant available, had it been retained and he required to pay the debt.</p>

<p>from the Sixth Judicial District Court, parish of St. Helena. F. F. Mussel, acting judge.</p>

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

<p>Before the jury was impanneled, defendant objected through his counsel to the impanneling of the jury because ho had not been served with a copy of the indictment and a list of jurors who were to pass upon his case, two entire days before his trial. The court a qua erred in overruling the objection and proceeding to trial.</p>

<p>It is a rule of general jurisprudence, as well as a principle of public policy, to construe tbe redemption laws liberally. Tbe object of tbe State is to collect tbe revenues, and not to deprive its citizens of any rights.</p> <p>It is not to be deduced ironi tbe act No. 47 of tbe acts of 1873 that it takes away from creditors and all other parties interested, except tbe owner, tbe light of redemption which they bad formerly enjoyed. If a mortgagee is a species of owner or quasi owner, as tbe doctrine is, be is embraced in tbe exception made by tbe express words of tbe statute.</p> <p>To adopt a different conclusion it should clearly appear that tbe State, which has declared that tbe property of tbe debtor is tbe common pledge of all bis creditors, intends by the process of collecting tbe contributions of its citizens and inhabitants to defeat absolutely alL tbe rights of creditors upon property subject to those contributions. Tbe right of tbe State to its necessary revenue is paramount, but it is to be exercised with a strict regard • to those other rights which tbe State itself has granted or guaranteed, especially of parties not delinquent, except it expressly declares otherwise for exigencies which make tbe declaration necessary. Therefore tbe right of redemption still exists in tbe owner or quasi owner under the prescribed conditions.</p> <p>It being shown that tbe defendant has a residence both in New Orleans and West Virginia, spending a large portion of tbe year in that city, and attending to mercantile and other business, tbe tender to effect redemption by plaintiff was properly made at tbe residence of tbe defendant in New Orleans, as it does not appear that be bad an agent to represent Mm in such matters.</p> <p>Tbe object of consignment is to exonerate tbe debtor from further liability and risk, and tbe failure to make it does not defeat tbe legality of a tender. Tbe law says a consignment may be made, but does not make it essential in case tbe creditor refuses.</p> <p>Tbe plaintiff should not, under tbe circumstances of tbe case, be concluded by her refusal to pay when tbe purchaser offered to accept. Tbe latter bad sold to a tMrd party, who did not join in tbe proposal, and who might have refused to concur.</p>

<p>The relator having applied for a rule on the sheriff to show cause why said sheriff should not retain in his hands a certain piece of property whioh he was going to release, and having, prayed for an injunction in the meantime, the judge a quo refused the rule and injunction; the relator has appealed and applied for a mandamus to compel the judge to grant the appeal. The remedy is not by appeal from such a refusal. There was nothing .done in the lower oourt for this court to revise.</p>

P. Durand, sheriff of the parish of Iberville, and a rule to show cause why he should not he punished for contempt of court.

<p>The defendants in this case, by publishing the contents of an affidavit which was false and malicious, in the manner and with the comments they did, in a widely circulating newspaper, gave tbe false charges against the plaintiff an extensive circulation, and imparted to them an air of authenticity which they would not otherwise have had, and which this court may well suppose to have had a strong tendency to injure the character of the plaintiff. It is no justification to the defendants that they believed the affidavit to be true. Their belief in the truth of the charges tended rather to increase the bad effect of them against the plaintiff.</p> <p>That defendants have condoned for the publication of the offensive article in which this suit originated, by publishing an exculpatory letter of tbe plaintiff’s attorney, affords no escape from tbe responsibility in damages to the injured party. The reparation of the injury, to the extent that the publication of exculpating and explanatory matter may be supposed to have made reparation, may he considered, and goes only in mitigation of damages. Thousands may have read the libelous matter that never saw its refutation.</p> <p>It does not avail to say that the defendants had no malice or ill feeling against the plaintiff. In all oases of this sort, where the charge is false, the law implies malice in the publisher, not malice in the sense of hatred, spite or revengeful feeling toward the party assailed, but as showing an evil disposition, the malus a/nvmus which induced him wantonly, recklessly or negligently, in disregard of the rights of others, to aid the slanderer in his work of defamation by giving to him the powerful influence of the public press — written or printed slander being justly considered more pernicious than that uttered by words only.</p> <p>In an action of libel proof of damages from the publication is not necessary to recover. The actual pecuniary damages in such actions can rarely he proved, and is never the sole rule of assessment.</p>

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

<p>Section 1067 of tlie Revised Statutes does not repeal acticle 338 of the Code of Practice in regard to the recusation of judges.</p>

<p>The property for which exemption from seizure is claimed by plaintiff, under the homestead law, seems under the circumstances of the case to partake more of the character of rural than urban property. The humane provisions of the homestead law reserving to the unfortunate debtor a home, and soil to cultivate, must be interpreted in the same spirit in which they were framed.</p>

<p>There can. no judgment be passed, -when there was no arraignment. The arraignment is the issue made, and when there is no issue, there oau be no trial. This absolute requirement of the law is not cured by the fact that the accused was brought into court and tried without objeotion.</p>

<p>The only objection urged by plaintiff to the sale in this case is that the price was paid in Confederate money.</p> <p>There are three grounds fatal to the objection:</p> <p>■.First — The contract by which the defendant acquired the property in 1864 was an executed judicial sale, which is protected by article 149 of the constitution of 1868.</p> <p>Second — The plaintiff, by receiving $350 of the proceeds in national currency, being the estimated value of the Confederate notes received as the price, ratified the sale.</p> <p>Third — The plaintiff can not keep the price or any part thereof, and claim the thing sold.</p>

<p>The defendant objected, to the jurisdiction of the court below on the ground that he was, as alleged in the petition, a citizen of the State of New York. A citizen of that State can ■ he sued in the courts of this State. He may cause the case to he removed to the United States courts by following the statutes upon this subject. But if sued, cited and served with copy of the petition, he can not plead his domicile, for the reason that, iu 30 far as this State is concerned, he has no domicile.</p>

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

<p>Application for a writ of mandamus against E. B. Mentz, parish judge of the parish of St. Mary.</p>

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

<p>Application for a writ of mandamus and prohibition against Saucier, Judge of the Sixth District Court, parish of Orleans.</p>

<p>APPEAL from the Ninth Judicial District Court, parish of Grant. Osborn, J. Jury trial.</p>

<p>In this case no sentence having been pronounced, and no fine imposed in the court a qua, the plea to the jurisdiction of this court, founded on article 74 of the constitution, must prevail.</p>

<p>Where the court, opening at ten o’clock, the defendant’s counsel came into court at twenty minutes past ten and found his case had been submitted, the judge a quo did not err in refusing to reinstate it. The testimony shows that the case was not taken up out of its regular order, and defendant’s counsel gave'no good reason why he was not present. If he chose to take the risk of his case not being reached during his absence, he must take the result of his risk.</p> <p>During the existence of a commercial partnership, service on one of the members is good against all, but, after ii$ dissolution, any member intended to be sued, must be served with a separate citation.</p> <p>The supplemental answer of Wheless, in which he claims, in reconvention, judgment against Anderson for an amount alleged by him to be due to the firm of Wheless & Pratt, of which firm he asserts himself to be the liquidating partner, does not authorize a judgment on Anderson’s original demand against Pratt, who was not cited.</p>

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

<p>"Where the property of the succession was offered for sale -for cash, and, no one bidding, it was immediately offered on the terms of credit designated in the order, and was adjudicated to the administrator thereof, who directed the sheriff to adjudicate it to one Mrs. ■ Simmons, a person having no real intention of purchasing, but receivingthe adjudication only as an act of iriendship to the administrator; Held — That the succession never was divested of the property.</p>

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

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

<p>Defamation by libel is the offense charged. Sections 804 and 1051B. S., take this case out of the strict rules of the common law, and the purport only of the libelous letter as given in the information is sufficient. It was not essential that the information should have alleged that the letter was written in the German language in order to permit the State to introduce the letter and an authorized translation. The law of evidence upon this subject is complied with, if the matter or purport of the instrument offered conform to the purport and description thereof in the information. The law did not require the libelous letter to be set out in full, or a copy of it to be contained in the information.</p>

<p>Here two married women, sisters, are sued jointly as heirs of their mother. Judgment i& rendered against them jointly, each for her half of the debt against their ancestor. Heither is bound to pay the other’s share of the debt. When, therefore, they sign reciprocally each other’s appeal bond, each becomes bound as surety for the other’s debt. The authorities cited in support of the motion to dismiss the appeal refer to cases where the surety on the appeal bond is bound by the judgment to pay the debt for which he stands surety. The motion can not prevail.</p> <p>There is no force in the objection that the answers filed by the defendants, married women, without the authorization of their husbands, are without effect, and that the judgment against them is null, inasmuch as they were not in legal contemplation in court, and could not stand in judgment. The petition prays that the husbands be cited to appear and assist their wives in their defense. The answers are that defendants appear and for-answer, etc. This is sufficient, and fulfills the requirements of the law.</p>

<p>This is a suit on two promissory notes with mortgage, drawn by defendant, and given as collateral security for advances made in plantation supplies There is no evidence of fraud or bad faith on the part of the plaintiffs in regard to the possession of said notes, which were negotiable and were transferred by delivery. Gay & Co., it is true, had limited the amount of these advances to $10,000. But the defendant exceeded this limit, and pretends not to be responsible for said excess. She can not be permitted to tahe advantage of this act of her own, and Gay & Co. have the right to cause the property mortgaged to be sold so as to satisfy the amount due them for advances made to the defendants.</p>

<p>Proceedings were taken in the Sixth District Court of New Orleans to revive the judgment obtained by the plaintiff against one Bichard Nugent, and on which he rests his claim in this suit. Citation was made on Nugent, then an adjudged bankrupt, discharged from all liability on the judgment, and having no interest whatever in the matter. The citation was, therefore, null and void, and the judgment which followed void also. The plea of prescription against plaintiff must prevail.</p>

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

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

<p>It matters not what informalities affect the sal© from Mrs. Pope, one of the defendants, to the intervenor. As the plaintiff is not a creditor of the seller, he can not complain. If he has abused the harsh remedy of attachment, he can not escape liability “by questioning the title given to the intervenor.</p>

<p>Defendants, who were members ol the laie commercial firm of Cornwell & Hays, refuse pay- • ment of a note of said firm, which was executed to plaintiff, separate in property from her husband, before said separation had taken place. Previous to the existence of the firm of Cornwell & Hays, there existed the firm of L. S. Cornwell & Co., which owed plaintiff borrowed money to the amount of the note in suit. In liquidation of this debt of L. S. Cornwell & Co., the liquidating partner of that firm gave plaintiff the note sued on, having previously consigned to the factors of said Cornwell & Hays forty-four halos of cotton belonging to said firm of L. S. Cornwell & Co. in liquidation. The proceeds of this cotton, exceeding the amount of the note, passed to the credit of Cornwell & Hays on the hooks of their factors. Thus, the liquidating partner of D. S. Cornwell & Co., instead of paying over to plaintiff the sum which was duo to her, passed that sum, the proceeds of the cotton, to the credit of Cornwell & Hays, and executed to plaintiff the note of llio last named firm, of which he was a partner. Therefore the firm of Cornwell & Hays received a valuable consideration for tbe note and plaintiffs’ claim is established.</p> <p>It is shown that the money loaned by plaintiff was her paraphernal property. Whether or not the husband was a member of either firm, or both the aforementioned firms, is immaterial.</p> <p>The plaintiff is not bound by statements made out of her presence by the partners at the partition of the partnership of Cornwell & Hays.</p>

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

<p>An actual corporeal possession of property seized must take place in order to make a sheriffs seizure valid, and to render a compliance with the law complete. The sheriff must have the property in his own possession and under his own control, or in the possession and under the control of some person duly appointed and authorized hy him.</p>

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

<p>■While there are facts in the evidence calculated to raise some doubt in regard to the perfect good faith of the transactions between the father and the son as to the creditors of the former, yet the sale of the property in question from the former to the latter can not be treated as a pure simulation. The sale may have been resorted to for the purpose alleged by the plaintiff, but, whether for fraudulent purposes or otherwise, could only have been successfully assailed by a regular revocatory action, which the plaintiffs have debarred themselves from bringing by permitting the time to elapse within which that action might have been instituted.</p>

<p>Tlie assets shown as composing the separate succession of Mrs. Clark being her separate property, distinct from the assets of the succession of her husband, the opponent can not claim payment out of these assets for his debt, which is a community debt due by the community estate.</p>

<p>The motion to dismiss this appeal on the ground that the appeal bond was not executed in favor of the clerk can not prevail. The bond was executed in favor of John S. Lanier, whom the record shows to be clerk.</p> <p>The peremptory exception to the jurisdiction of a special judge to issue an order granting letters of executorship mtione materice was properly overruled. Under the facts of this case the parish judge proceeded lawfully in selecting a lawyer having the proper qualifications to preside over the trial iu his place.</p> <p>The instrument admitted to probate must be received as a will. It is in the olographic form, entirely written, dated, and signed by the testatrix. It is not essential that the date to an olographic will should precede the signature; it may be placed below.</p> <p>There is no fidei cowmissum in the will. The testatrix does not attempt to put any property in the name of any person except her children. All she does is to direct how that property shall be administered until her children shall marry.</p> <p>The intention of the testatrix expressed in her will is that her husband should have the entire control of her children,* that they should make their homes with him, and that he should control their property until they married. Her wishes could not be carried out unless he was their tutor; hence it was, in intendment of law, his appointment as tutor. That she had the right to appoint him can not be doubted..</p> <p>Because a cotutor is liable to account for property belonging to minors which may have come into his hands, it does not follow that he can not be appointed their tutor by testament.</p> <p>The declaration of three of the'five members of a family meeting called in the interest of the minors, that the appointed tutor is not a fit person to have charge of the minors, can not be taken into consideration. In the first place, there was nothing to authorize the family meeting, there being no vacancy in the office of tutor to be filled. In the second place, the reasons they give for their opposition are entirely outside of the law. This court can not say. in advance that the mother’s choice of the person who, in her opinion, was "best fitted to have charge, of the minors was ill-advised.</p>

<p>Beals & Laine are sued as makers and Edward Beals as indorser of a promissory note. E. Beals’ son, a member of the firm of Beals & Laine, wrote the name of liis father, who can not write, as indorser of said note. Tlie evidence showing that Edward Beals subsequently ratified the act or adopted the indorsement, this is sufficient to bind him as indorser.</p>

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

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

<p>It appears from the mortgage certificate that the judgment of Dudossat, defendant in injunction, creates a judicial mortgage prior in rank to the judicial mortgage of plaintiff in injunction. TJ10 preference that Soulie acquired from a prior seizure of Hanson’s property can not defeat the existing prior mortgage on the property in question, which seems to he all that remains belonging to the seized debtor. "When sold, the property was adjudicated to Soulie, who refused to pay over the money to the sheriff, whereupon the sheriff was proceeding to resell the property when enjoined by Soulie on the ground that he had the right to retain the money in satisfaction of his judgment. This was wrong; Soulie should have complied with his bid; a concursus was his remedy. The sheriff was right when proceeding to resell, and the injunction was wrongfully taken.</p>

<p>There is no law which requires the sheriff of a country parish to announce at a sale under a writ of fieri facias the amount of taxes due on the property offered. The doing was mere surplusage on his part, and as it invaded no one's rights, it couíd cause no injury.</p> <p>The fact that the bond of the adjudicated was not given within three days after the adjudication is no ground to annul the sale in a suit instituted by the codebtors of the defendant.</p> <p>That the judgment debtors, plaintiffs in this suit, have never had an offer of delivery of the surplus money or twelve months bond for over $530, coming to them under the adjudication made to them, is no ground to set aside the sale. It might be a ground for them to pursue the sheriff to a fulfillment of his duty.</p> <p>That the act of sale allowed to a judgment creditor more than was coming to him, at the expense of the judgment debtors, is no reason for annulling the sale. The excess is something over ten dollars. This trifling error could have been corrected in the court below.</p> <p>That the act of sale and return of the sheriff say nothing about interest is no reason why the sale should be annulled.</p> <p>That the sheriff did not, within ten days at furthest from the- adjudication, deliver or direct to the clerk of the court the original of the act of sale, the delivery having been made fourteen days after the adjudication, is no grouud to annul the sale.</p>

<p>Where there is a total want of description of the situation of the thing mortgaged, the act of mortgage is invalid.</p>

<p>APPEAL from the Fourth Judicial District Court, parish of St. John the Baptist. Flagg, J.</p>

<p>'What was novel*, of record can not be supplied by parole. The ruling of a court upon the exclusion of evidence must be of record.</p> <p>The plea of res judicata does not rest on the regularity of the proceedings which can be removed on appeal, but upon the force of the judgment pronounced on the demand and cause of action between the parties.</p>

<p>■When the city oí RTew Orleans purchases a piece of property and gives its bonds therefor, the bonds must be considered as a payment of the price, and the property thus acquired, unless the contrary be expressly stipulated, is free of all incumbrance, such as vendor’s lien and privilege.</p> <p>As the vender’s privilege need not be stipulated in the act of sale, but results from the nature of the debt, so it need not be expressly renounced, but may be implied from the terms of the instrument. This implication must, however, be clear.</p> <p>There is a wide difference between the bonds issued in the name of and-payable by an important political corporation and an individual promissory note. Bonds are commercial securities, and have characteristics of currency. They do not depend for their value upon the thing for which they were given.</p> <p>Where, as in the contract of sale relied on in this instance, payment was made in bonds, it was as if the price had been paid in current money. The language of the contract and of the act itself, on which it is based, implies such an intention, and indicates that it was meant to give a full discharge of the debt, without the reservation of any lien or privilege to secure the bonds at maturity.</p>

<p>Xt is contended in. this case that the law only authorizes a homestead against the estate of the deceased husband or father, and not against the succession of the deceased mother. This construction of the homestead law is untenable. Such a construction would be at war with the plain meaning of the law, as well as with the obvious purposes for which it was enacted,</p>

<p>Privileges liave effect from the date on ■which the act or other evidence of the debt is recorded in the parish where the property affected is situated. But to have effect against those who have acquired, not who may acquire a mortgage, it must he recorded on the day it was entered into. The limitation relates only to the effect as to mortgages existing at the date of the privilege contract, and requires that such contract shall he recorded on the day of its execution in order to have a preference over mortgages then duly inscribed.</p>

<p>As 'this suit could not have been brought in the United States Circuit Court for want of jurisdiction over one of the defendants, it can not for the same reason be transferred to that tribunal.</p> <p>Besides, Be Boigne, one of the defendants, although a citizen and resident of France, was not competent to sue in the United States Circuit Court on the note and mortgage set up hy him, because his transferer, the payee thereof, was a citizen of this State and had no such right.</p> <p>Where the property oí one against whom judgment had been rendered appears to be subject to privileges or mortgages entitled to preference over the judgment creditor, the latter may, hy a rule to show cause, as incidental to the proceedings had for the purpose of selling the property, call upon those claiming such privileges or mortgages to show cause why they should not ho erased; and the seizing creditor can not he required to resort to a direct action against persons holding such mortgages and privileges.</p> <p>When the prescription that had already acquired on the mortgage note held by Be Boigne was renounced, the plaintiffs wore judicial mortgage creditors. That waiver renewed the debt f&r the person mailing said waiver, but it did not revive the mortgage as to plaintiffs or to their prejudice.</p>

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

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

<p>An attorney at law can not allow claims which the legal representative of the succession, as in this case, never saw or heard of, much less allowed.</p>

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

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

<p>APPEAL from the Parish Court, parish of Iberville. Orowéll, J.</p>

<p>This is a suit personally against a tutrix, one of the defendants, on six mortgage promissory notes given by her, and also as representing those of her children who were minors when the suit was brought, and the majors who joined in the act of mortgage, for the amount of the notes sued on, and for a decree of lien and privilege on the property mortgaged. The defendant, one of the heirs, a minor when judgment was rendered but now of ago, appeals from said judgment.</p> <p>The motion to dismiss defendant’s appeal on the ground that all his joint obligors have not been cited and made parties to the appeal, can not prevail. He is not a joint obligor; his liability is as heir of his father, and his liability is fixed by his interest in his father’s succession.</p> <p>When the lather of the appellant died, he was largely in debt. The representative of his succession, in order to pay off his indebtedness, was authorized by the judge, oh the recommendation of a family meeting, to borrow a sufficient sum to discharge this indebtedness. Hence the notes now sued on. This was not the creation of a debt; it was the acknowledgment of one and providing means to pay it — all of which was done in the interest of the heirs. The appellant’s liability, therefore, is fixed by his interest in his father’s succession. To the extent of that interest the judgment binds him, but to nothing more.</p>

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

<p>"Where a statute authorizes an action and prescribes the delay ■within which it must “be . instituted, suit must be filed within that delay, or the action, if excepted to, will be dismissed. In this instance the suit should have been brought witlvm ten days after the election. The court below erred in not maintaining the exception of the defendant on that ground. The law is not ambiguous, and no room is left to the discretion or equity powers of this court; it must, therefore, be, administered as.it is, however unwise some of its provisions must appear.</p>

<p>Xa this controversy for the office of coroner, under section 1419 of the Revised Statutes, the exception that the suit was not brought within ten days after the election must prevail.</p>

<p>"When the suspensive appeal t)oncl was signed by Cox as agent for Palmer, if he had no authority to bind. Palmer, he certainly bound himself, and it is not shown that he is not solvent and good as a surety for the amount of the bond. Palmer has subsequently ratified his action in express terras. Therefore appellee has not been without a surety personally good and sufficient to protect his interest pending the appeal. He has no cause to complain, and the judge co quo erred in setting aside the appeal.</p>

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

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

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

<p>The motion to dismiss the appeal on the ground that there was no order of appeal came too late, said motion having been filed more than three days after the transcript was filed.</p> <p>The plea that the plaintiff is estopped from contesting the validity of the sale because he appointed an appraiser of the property sold is valid. He can not he permitted to avoid the responsibility of that act by stating that he did it under protest.</p>

<p>There is certainly nothing immoral in renting property to he nsed. as a club room, and if it was converted into a gambling house', this is no reason why the lessee should not be bound by his contract, when there is no evidence that the lessor hnew that the object for which the rooms were to be employed was different from the one mentioned in the written lease.</p>

<p>APPEAL APPEAL from the Fifth Judicial District Court, parish of Iberville. James L. Oole, parish judge, acting for the district judge, recused.</p>

<p>This court can not sustain the bill of exceptions taken to the ruling oí the judge a quo, permitting the plaintiff to amend his petition by correcting the allegation in regard to the dates of the notes sued on, on the ground that it came too late, as the trial had commenced. Amendments should always be allowed when justice would be subserved thereby. If the defendant was taken by surprise, he might have obtained a continuance on that ground.</p>

<p>Parol and written evidence in this caso shows that defendant’s obligation was that of surety, for when one !i accedes to the existing obligation of another, and engages to see it performed, he becomes essentially a surety.”</p> <p>It is the essence rather than the form of a contract which must determine its character.</p> <p>“ Suretyship is an accessory promise by which' a person hinds himself for another already hound, and agrees with tho creditor to satisfy the obligation if the debtor does not.” Such seems to have been the obligation assumed by defendant. The renewal of the note witliont the consent of tho surety, discharges Mm.</p>

<p>The amount duo for unpaid stock must he paid. It is no defense to allege that the penalty for not paying said amount is the forfeiture of the stock.</p>

APPEAL APPEAL from the Fourth Judicial District Court, parish of St. Charles. Burapau, parish judge, acting in the place of the district judge, interested and recused.

<p>It is not to to discovered in tlie record nor is it possible to imagine what office O. J. Flagg held that constituted him “ex officio committing magistrate,” and that entitled him to draw a salary from the parish of St. Charles. If as district judge he discharged the duty of a committing magistrate, he was clearly entitled to no compensation from the parish, beoause the salary paid by the State is all that he can rightfully receive.</p>

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

<p>Tlie objection that plaintiff can not proceed by rule to compel the surety on the appeal bond to pay the judgment in her favor, but must resort to a regular action, is answered adversely by the textual provision of section 37 of the Revised Statutes and the settled jurisprudence of the State.</p> <p>The second objection that the court was without jurisdiction in this case, is also answered adversely to respondent, in precise terms, in section 3679 of the Revised Statutes. the</p> <p>It has been frequently held that where the creditor can not taire out execution against the principal on the appeal bond, as in this case, he may proceed directly against the surety. in</p> <p>The only really important question in this suit is, does the surety on a suspensive bond in an appeal taken by an administrator or an executor from a judgment for a specific sum of money, become liable for the debt in case the judgment is affirmed? The answer is affirmative. The case at bar falls within the express provision of article 575 of tlie Code of Practice. The succession of Massieu was sued on a promissory note, and it was condemned to pay plaintiff ten thousand dollars, a specific sum. not</p> <p>Where a bond is given in reference to the law, stipulations unauthorized thereby will not invalidate it.</p> <p>The assumption that the legal obligation of the succession on the note and judgment hold by plaintiff is only commensurate with the ability of the succession to pay it, is a fallacy. The obligation uf the surety’s principal — the succession of Massieu, a judicial person— is to pay the whole debt, regardless of its ability to do so. Therefore the respondent on the rule is liable on the'appeal bond for the amount of plaintiff’s judgment.</p>

<p>APPEAL from the Parish Court, parish of Iberville. Crowell, J.</p>

<p>Act Ho. 92 of tlie acts of 1869, under which Dr. Cooper claims title as police surgeon of the Metropolitan force, fixes the term of the office, in the ninth section thereof, as being during good behavior. Act Ho. 60 of the acts of 1874 in no manner proposes to amend act Ho. 92, so as to change the term of office. The act of 1869 remains in force, with this limitation, however, resulting from act Ho. 60, that the police commissioners, in reducing the police force, may “honorably discharge such members as in their judgment may seem needful.” Thus, under this amendment they could have discharged Dr. Cooper, but they had no warrant to remove him as they did, merely to appoint Dr. Schumaker. Power granted for one purpose can not be employed for another.</p>

<p>In the injunction case of Coons v. Cannon et als., on exception of no cause of action being disclosed by the petition, the injunction was dismissed as in case of nonsuit. Plaintiff, alleging that defendants were largely indebted to him, and in possession of the steamer Katie, of which he claimed to be part owner, and that they were about to sell her, had applied for an injunction restraining the sale, which was granted upon his furnishing bond in the sum of $1000. Prom the order dissolving said injunction as aforesaid, plaintiff prayed for a suspensive appeal on his furnishing his bond in tho sum of $250. The district judge refused a suspensive appeal except on a bond of $25,000, and appellant now applies for a mandamus to compel the judge a quo to allow the suspensive appeal on a bond of $250.</p> <p>It is true that no moneyed judgment is rendered against the relator, nor is he ordered to deliver any property, but he sought to restrain the defendants from selling a valuable piece of property worth $60,000. The court below dismissed his pretensions. If he obtains a suspensive appeal on a mere nominal bond, he perpetuates the injunction, at all ovonts, until his appeal is disposed of. His injunction bond boiug only lor $1000, it is easily seen that in case of failure, tho defendants are without that security for damages which tho law provides for them.</p> <p>Under those circumstances, tho bond which relator should be required to give on his suspensive appeal is not the value of the property in dispute, but tho amount of damages which may result from the improper issuing of the injunction, and which this court thinks would bo covered by the sum of five thousand dollars.</p>

<p>APPEAL from the Fourth Judicial District Court, parisli of St. James. Flagg, J.</p>

<p>The'position taken by the plaintiff that the tax collector has no right to sell forfeited lands is not correct. It has already been decided that when the plaintiff repudiates his own title and sets up that of the State he shows no cause to complain, and if the tax collector has no authority, as he alleges, to sell forfeited lands, there will be no divestiture of title, and no injury can result, at least to the plaintiff.</p> <p>The tax collector charged with the duty of collecting all the taxes, the delinquent list included, has authority to sell forfeited lands, reserving to the former owner the right of redemption according to the statutory provisions on the subject. The decision given in the case of Hall v. Hall, 23 An. 135, has no bearing on the statutes under consideration, because they were enacted subsequent to the controversy in that case.</p>

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

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

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

<p>APPEAL from the Parish Court, parish of Jefferson. Hyman, J.</p>

<p>In this instance there are two acts introduced which roust be c'onsiderod as parts ot a whole and which were intended to be a full and final settlement of all the business relations of the parties. Plaintiff can not separate the different portions of this transaction, adhering to those parts which are favorable to her and repudiate those which she considers ■ unfavorable. She must, unless she had shown better reasons than she lias, take all or leave all.</p>

<p>The evidence showing that Linton resided in ¡France, when and where he died, and that the only real estate he owned in Louisiana was situated in Bapides, his succession was properly opened in that parish.</p> <p>Heirs who accept with the benefit of inventory, have no right to be put in possession of the property, until after the administration thereof is closed.</p>

<p>If a debt be contracted by one of tbe partners of an ordinary partnership, who is not authorized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the transaction, which is proved in this case.</p>

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

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

<p>Act 124 of the acts of 1874, organizing the Superior Criminal Court gave that court exclusive jurisdiction of this case, and no order of transfer or other decree was necessary to give it jurisdiction.</p> <p>If & nolle prosequi was entered on the first count for “forgery,” the forged order was copied in the second count “for publishing as true a forged order for the delivery of goods,” and no explanatory averment of the meaning of the words and figures thereof was necessary — the meaning being obvious. The signature of the forged order “Randal & Co., 43 Carondelot street,” was sufficient to suggest the name of a firm upon whom the forgery was committed.</p> <p>' It was not necessary to allege that Randal & Co. had goods at the place designated in the forged order.</p> <p>The averments of the second count were ample to apprise the defendant of the charge against him, and to put him in possession of all information necessary to prepare his defense.</p> <p>That a new trial and nolle prosequi were entered on the first count charging forgery, is no reason why the defendant should escape the verdict and sentence on the second count for a distinct and separate offense.</p> <p>The new trial and nolle prosequi, as to the first count, were entered on the twenty-third of May, 1874; the motion in arrest of judgment, however, was not presented until the twenty-seventh, four days afterward. This court is not prepared to say that the judge a quo erred in holding that the motion came too late.</p> <p>The expression in the decree of the court that “ the prisoner having been brought into court, and having nothing to say in arrest of judgment, was sentenced,” etc., of course, implies-that he was ashed if he had anything to say why sentence should not be pronounced against him.</p>

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

<p>Tli© plea of res judicata can not prevail, as there was a judgment of nonsuit as to the portion of the claim embraced in this action.</p> <p>The evidence establishes the lease for the time claimed, but the court erred in granting a privilege, as it is shown that the furniture was moved from the premises two or three months before this suit was brought.</p>

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

<p>APPEAL from the Parish Court, parish of Lafourche. Oollm, J.</p>

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

<p>This was merely a case of ordinary reinsurance, no policy being issued, no -written agreement being entered into, but the application for reinsurance by the Fireman’s Insurance Company being entered in the books of the Pelican Insurance Company, as it is inferred to be the custom among insurance companies in cases of this kind.</p> <p>If there was a stipulation pour autmi, or a contract whereby the Pelican Insurance Company assumed the obligation of the Fireman’s Insurance Company, the plaintiff can not enforce it, because said agreement was nob in writing, and the law is that the promise to pay the debt of another can not be proved by parol evidence.</p>

<p>APPEAL from tbe Fourth District Court; parish of Orleans. Them'd, J.</p>

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

<p>APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.</p>

<p>The bank of Lafayette was organized since the adoption of the constitution of 1868. Article 118 of that instrument declares what property may be exempted from taxation. Any law which is in conflict with that article, whether passed before or after the adoption of the constitution is stricken with nullity thereby, unless the law created a contract with the other party, whose property is exempted before the adoption of the constitution.</p>

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

<p>The charterer when he has complete control of the vessel, as in this case, is pro hac vice owner, as to parties dealing with him in such capacity, "but he is not such in a contest with the actual owners for the value of the vessel and on the terms of the charter party In such contest the burden is on the owners to prove the negligence of the charterer.</p> <p>The authorities relied on in this instance by plaintiffs refer to the responsibility of owners as common carriers, and most of them are based on the act of Congress declaring the fact of explosión to be full prima facie evidence of negligence on the part of the defendant; while this is an action by the owners against their lessee for the value of the property hired by them to the latter. The evidence on this occasion does not show .that the defendant as lessee violated the obligations imposed upon him by article 2710 !R. C. O.</p>

<p>On tlie day fixed for bearing on the rule taken by plaintiffs on the garnishees in this suit to show cause why their answers should not be taken for confessed, an exception to the motion made by the garnishees for leave to amend and explain said answers, was objected to by plaintiffs on the ground that it was too late, and overruled by the judge a quo. There was no error in this ruling.</p> <p>The garnishees evinced no disposition to refuse or negleot to answer, or prevaricate. Their original answers were not drawn as definitely as they might have been, but when read in reference to the manifest intent of the interrogatories which were addressed to them as banker.s, gave a negative response to all the questions.</p> <p>"When a depositor’s account with Ms banker is closed, the inference is clear and manifest that he has no funds in the hands of said hanker.</p>

<p>A suit against an administrator of an estate for alimony by natural children can not be maintained.</p>

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

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

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

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

<p>Compensation allowed to experts, auditors and judicial arbitrators is, by article 552 Code of Pratice, to be paid, as well as the taxed costs, by the party cast; and this implies a delay of payment until the termination of the suit.</p>

<p>It sometimes happens that the prosecution, in order to exclude the evidence of a material witness for the defendant, prefers his indictment against both jointly. In such case, according to legal authority, if no evidence whatever he given to affect a person thus unjustly made a defendant, the judge in his discretion may direct the jury to acquit him in the first instance, so as to give an opportunity to the other defendant to avail himself of his testimony.</p> <p>!From this authority, as laid down, the inference would seem to he that, when the judge considers the evidence of sufficient weight to question the innocence of the parties sought to he made witnesses for the principal defendant, he should not order their acquittal. The ruling of the judge a quo in this case is in conformity with this doctrine, and must therefore he maintained.</p>

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

<p>The defendant being a possessor in good faith owes rent only irom the institution of this suit, and is entitled to his claim for the value of the improvements against the owner of the property from the time he made them, with legal interest.</p>

<p>The judge a quo was asked to charge the jury that “if the jury believed that the defendant Hamilton was handcuffed at the time he was presented to the deceased for recognition, then such recognition was not made in conformity to law and must be rejected.” The judge did not err in refusing the charge. The fact that the defendant may have been handcuffed, could have no effect upon the ability of the party wounded to recognize Mm.</p>

<p>The plaintiff’s claim is the result of a judgment which she obtained againt her father, which judgment gives to her a legal mortgage over all his immovable property, dating from the third of May, 1852. This judgment was inscribed on the sixteenth of April, 1868.</p> <p>A judgment which recognizes a minor’s claim and mortgage, and which is duly recorded prior to the year 1870, does not come under the 123d article of the constitution which declares “that tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the first day of January, 1870, unless duly recorded,” and the act No. 95 of the Legislature of 1869, which provides for carrying out the provisions of the aforesaid article of the constitution.</p> <p>"When the article 123 of the constitution was adopted, the plaintiff’s rights were perfect. She had a tacit mortgage upon her father’s property, and the evidence was a duly recorded judgment of a competent court. There was no necessity for her to record it again. The article did not refer to her; she had complied with its requisites.</p> <p>The rendering and signing of the plaintiff’s judgment against her tutor, out of term time, did not, under the circumstances of the case, make it a nullity. It was agreed between the parties that the judge who tried the case should take it under advisement, render judgment, and sign it after the court should have adjourned. The parties were competent to make the agreement, and the judgment having been rendered in conformity to it, is good.</p> <p>The judgment of separation of property and dissolution of the community in a suit instituted by plaintiff’s mother against her father, having never been executed or sought to be executed, was nothing, and did not affect the community.</p> <p>The proceedings in which the plaintiff’s father obtained leave of the court to give a special mortgage in lieu of the tacit one existing in favor of the minor, did not become final, because the mortgage after it was executed was not approved by the judge, and because it was not recorded in the parish where the property mortgaged was situated until after this suit was instituted, some ten years after the moregage was given.</p> <p>The vendor’s privilege has no priority in this case over the plaintiff’s tacit mortgage. The mere filing of the act of sale, which was passed in New Orleans, and the recording of it among the notarial acts of his office hy the recorder of the parish of Pointe Coupee, was not the recording required by law in order to give it effect as a mortgage, or to preserve the privilege which it carried with it. Although subsequently recorded in the proper books of the recorder of mortgages, it was not done within the time required to keep in existence the vendor’s privilege, but operated only as a mortgage from the time it was recorded.</p> <p>Plaintiff's tacit mortgage attached to the property purchased by her father from the day he purchased. The vendor’s privilege was superior to the tacit mortgage so long as the privilege .existed; but when the privilege ceased to exist, then the tacit mortgage was in force against it, and it had its effect without being recorded. "When therefore the act of sale was recorded, it operated as a mortgage from that date, hut at that time the property was burdened with the plaintiff’s tacit mortgage, and the conventional mortgage was second to it in rank.</p>

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

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

<p>The joint resolution of tlie Legislature upon wliicli defendant relies in this case and the title of which is: “A joint resolution m relation to the New Orleans, Mobile and Chattanooga [Railroad Company, a corporation of the State of Alabama,” sufficiently discloses the object of the resolution. It is not therefore unconstitutional.</p> <p>The public servitude along the banks of rivers in Louisiana is under the control of the (General Assembly. The right of that body to grant the privilege to corporations or individuals to make and maintain wharves has long been settled. In this instance the State . granted the right to the riparian owner. This is permissible. The grant was not a donation of public revenues to a private purpose. It was the control by the Legislature of a public servitude.</p>

<p>It does not follow ‘because the city has leased the markets for the year 1874 that it loses all interest in the management of them and in seeing that the laws and regulations .concerning them are carried into effect. The act of 1874 makes it the duty of the city through its administrators to take measures for carrying out the provisions of the act regulating private markets, and in any issue that may arise in acting under this authority the city would “be competent to stand in judgment.</p> <p>The Legislature had the power to make the regulation, which it has made by the act of the twenty-sixth February, 1874, declaring that private markets shall not be established, continued, or kept open within twelve squares of a public market. This power arises from the nature of things, and is what is termed a police power. It springs from the great principle 11 salus populi suprema est lex” There is in the defendant's case no room for any well grounded complaint of the violation of a vested right, for if he really possessed the privilege of keeping a private market, that privilege was acquired subordinately to the right existing in the sovereign to exercise the police power in regulating the peace and good order of the city,- and in providing for and maintaining its cleanliness and salubrity. The act of 1874 is not unconstitutional.</p> <p>•The act of the twenty-sixth February, 1874, is not in violation of article 114 of the State constitution. The act has but one objoot; that one object is expressed in the title. The words “and for other purposes,” are in the title to this act meaningless, for there is nothing else treated of in it besides the regulation of private markets.</p> <p>The act of 1874 abolishes all private markets located within less than twelve squares of a public market. To that extent it repeals the act of 1866, under which the defendant sets up its title.</p>

<p>The State when selling a certain piece of property for taxes of 1871, due thereon, did not sell it freed from the taxes of 1872. The State had a concurrent mortgage and privilege to secure the taxes due for both years, and the sale did not purport to release the taxes of 1872. The former owner might have redeemed his land by complying with the requirements of the law after the sale, hut he could not have taken the property hack freed from the taxes of 1872. The purchaser bought the property subject to the taxes of that year,</p>

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

<p>The relator had the right to take a suspensive appeal within ten days from certain orders of the judge a quo in relation to the sequestration of his property, and the release thereof on bond, and any attempt to execute the order "before that time expired was unauthorized, and when the appeal was taken, the parties were left in statu quo before the order, and the effect of the prohibition issued by this court is to maintain the parties in the position they were in before the rendition of the order appealed from.</p>

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

<p>The act by which the plaintiff suffered was not done by any one for whom the defendant is responsible, under his direction, or in the usual course of his employment. He can not therefore recover.</p>

<p>This is a suit against the succession of John Armstrong, •who is alleged to have been security on a bond given by one J. G-. Campbell, as secretary and treasurer of the Canal and Claiborne Streets Railroad Company. As there is no sum fixed in the penal clause of the bond, the instrument contains no written promise on the part of Armstrong to pay any particular amount. Therefore his succession is not liable on the bond. As no amount is fixed in said bond, there is no evidence that the parties ever came to an agreement as to the extent of the obligation of Armstrong. The contract was incomplete. Assuming that the</p> <p>was Assuming that the signing and delivery of the instrument authorized or implied authority granted to the holder to fill in the amount — which this court does not admit — the death of Armstrong revoked the mandate and no sum has been filled in. It has</p> <p>It has frequently been held that omissions in filling judicial bonds are supplied by the law. But in the case at bar the bond is in no sense judicial. It is an ordinary conventional bond given by an officer of a corporation for the faithful performance of his ditties, and as the surety promised to pay no specific sum, there is no obligation for this court to enforce.</p>

<p>The property of the defendants is not exempted from taxation hy their charter. There are no terms or expressions used in their aots of incorporation, declaring a contract "between the State and the corporators, aDd the existence of such a contract can not he inferred, nor has the property been used for the specific purposes expressed in the. acts of incorporation, and which was the condition of an exemption from taxation.</p>

<p>There was a total failure on the part of defendant to deliver at Havana, island, of Cuba, certain. articles contracted for. The interference of the military power of the government at the time has relieved him from the stipulated penalty in case of failure, but he must return the portion of the price received by him for the articles not delivered.</p>

<p>The judgment of the court in this case is based entirely on the one already rendered in the case of Claiborne v. Parlange, the facts being substantially the same. 26 An. 548. *</p>

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

<p>It was improper for a tutor to use a mortgage note issued for a specific purpose on the minor’s behalf, as collateral security of an individual debt of his own, unconnected with said minor’s interest. The plaintiff was aware of these circumstances and therefore can not recover.</p>

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

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

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

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

<p>Admitting that the New Orleans Mutual Insurance Association had no right to purchase the property in controversy from Fairbanks & Gilman, it does not make said property liable to Fairbanks & Gilman’s creditors in payment of their debts. If the company did any thing contrary to law, the result might be the failure of its charter, but this court does not understand the law to be that if a corporation acquires property in a manner even prohibited by law, the property thus acquired still belongs to the vendor who has received his price, and that it can be seized by his creditors to pay his debts.</p> <p>The sale of the machinery (the property in question) was a valid sale. Fairbanks & Gilman remained in possession it is true, but they held by a precarious title, to wit, a lease from the purchasers, and could have been divested of possession at any time, if the conditions of the lease had not been complied with.</p> <p>The machinery thus sold to the New Orleans Mutual Insurance Company was paid for by Fairbanks & Gilman either at the time the sale was made or before this suit was instituted. This would, of course, destroy whatever privilege the Edwards, plaintiffs, had as vendors. But all the machinery and materials which were not mentioned in the act of sale to the said insurance company and all the machinery and materials put into the building by D. & J\ D. Edwards since that sale are liable to tbeir execution. Whether or not the company have the landlord’s lien on these effects can not now be settled. If they have, when the property is sold, they can exercise it.</p> <p>The intervention of Cavaroc & Son must he maintained as to the sugar and molasses seized. These articles had been furnished to he refined for a compensation to Fairbanks & Gil-man of two-thirds of the profits Cavaroc & Son might make. These relations between Cavaroo & Son and Fairbanks & Gilman were not those of partners, each liable for the acts of the other. No part of the property seized ever belonged to Fairbanks & Gilman. What they were to receive from Cavaroo & Son was, in reality, only a stipulated price for work which they agreed to perform. Whether Cavaroc & Son owed any thing to Fairbanks & Gilman or not on-account of tbeir transactions, is another matter. But this question can not be decided in the present controversy.</p>

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

<p>3?be garnishment process was not intended and can not be used to litigate and settle side issues. In this case were the attachment sustained, it would be the engrafting of the suit oí 3. 3. McDaniel v. L. H. Gardner & Co. and A. Baldwin for damages, upon the suit of Peet, Yale & Bowling v. 3. 3. McDaniel & Co., and making Beet, Yale & Bowling the plaintiffs in the said suit for damages.</p>

<p>The defendant, a married woman to the knowledge of the broker who negotiated the lease on which she is sued, being without authority to make the contract or to stand in judgment, and not being shown to be pursuing a separate business for herself, the plaintiff can not recover.</p>

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

<p>APPEAL from the Fifth Judicial District Court, parish of East Bacon Rouge. Dewing, J. Jury trial.</p>

<p>In this instance the contract for repairs and improvements was entered into on the seventeenth of June and was not recorded until the nineteenth of said month. By the law, the privilege of the contractor in such a case does not have a preference over creditors whose mortgages then had three.</p>

<p>The delay to record an act of salo can not defeat the vendor’s privilege and mortgage in favor of a creditor of the vendee wlio held a legal or judicial mortgage against him, if the mortgage and privilege were recorded at the same time with the act of sale.</p>

<p>"Where a judgment of partition and sale was rendered without all the parties in interest being parties to the suit of partition, said judgment is an absolute nullity, and the sale made under it is also null and void.</p>

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

<p>The defense of the surety on an appeal bond furnished by the plaintiffs, on tho ground that the necessary proceedings were not had against tho principals, can not be sustained, two executions having been issued without effect, and the United States Circuit Court having specially enjoined the execution of any writ against the plaintiffs.</p>

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

<p>It is a rule long settled by tliis court that it will not be implicitly governed in regard to questions relating to the value of professional services rendered by attorneys at law to their clients, by the opinions of legal men taken in evidence, but will be guided by a conscientious estimate of the value of the services performed, and will, of itself, fix the amount, without reference to the opinions of witnesses.</p>

<p>The defendants in this instance are the legal representatives of one Zeller, who went security on a release bond given in the suit of Switzer v. Steamboat !Frolic. The defense is that the assignee in bankruptcy for the owners of steamboat 3Trolic had no right to stand in judgment for said owners, and that the State court had no jurisdiction to render a judgment against the assignee. This defense is not well founded. The bankrupts having been discharged, no judgment against them could be obtained, and there is nothing in the bankrupt law which required the discontinuance of suits already commenced.</p>

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

<p>The tax "bill on which this suit is brought is made oat against the City Hotel, B. S. Morse and James E. Zunts. The judgment was that the City Hotel, etc., is hereby condemnedto pay, etc. This proceeding was had in the case entitled the city of New Orleans v. City Hotel, B. S. Morse and James 3G. Zunts, who have appealed on the ground that they know of no law which justifies a judgment against property, the owners of which are not unknown. who</p> <p>unknown. There can bo no doubt, under the circumstances, that the appellants were the parties who were condemned in the judgment, which must be construed with reference to the pleadings in the case and the obligation sought to be enforced. This is necessarily implied in their application for an appeal. the clerk of the</p> <p>their an It is just as much the duty of the plaintiff as of the defendants to see that the clerk of the court, or the judge, makes no error in entering the judgment.</p>

<p>APPEAL from tlie Superior District Court, parish of Orleans. HemTcins, J.</p>

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

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

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

<p>Under the circumstances of the case, a mere clerical error, such as Joseph K. Robert for IT. J. Robert, in the decree of the court from -which an appeal is taken, can be corrected, by this court in revising the judgment. The defendant, who raises the objection, is estopped by his judicial admissions from denying that he is the party condemned at the trial below.</p> <p>The false statement by defendant in the act of sale to the plaintiff of a certain piece of property, that said defendant, as universal legatee, had the capacity to purchase the property adjudicated to him at the succession sale of Polly Vassant, led the plaintiff into error in regard to the material jiart of the contract to his prejudice, and this assertion was au artifice whereby the defendant succeeded in effecting the sale, which thoreiore is void, because the pretended adjudication to defendant was an absolute nullity, and his sale of the property to plaintiff was the sale of a thing belonging to another.</p> <p>The doctrine that the purchaser v ho has paid the price, and who has not been disturbed in his possession, can not demand the restitution of the price, is applicable only to a valid contract of sale. It has no application to a contract void for want of consent, and entered into in error produced by the fraud of the opposite party.</p> <p>The parol evidence adduced by plaintiff to prove that the price paid by him was thirty-three hundred dollars instead of twenty-three hundred, as stated íd the authentic act of sale, was properly excepted to by defendant.</p>

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

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

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

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

<p>The motion to dismiss the appeal made by each, of the two plaintiffs, on the ground that all the plaintiffs wore not made parties to the appeal, can not provail. There is but one judgment in the case, for which an appeal was granted in open court within ten days-after the rendition of the judgment and at the same term of court. Ko citation was necessary and both plaintiffs were made parlies to said appeal, taken by motion. The fact that afterward a petition for an appeal was tiled did not affect what was previously done.</p> <p>Act Ko. 30 of the acts of 1871, entitled “An Act for the drainage of 2Tew Orleans” does not repeal the act of 1858, which provides for leveeing, draining and reclaiming swamps in certain portions of the parishes of Orleans and Jefferson. It only changes, in some-degree, the mode by which the drainage is to be accomplished and the means to be applied, but the act itself still stands.</p> <p>The main reliance of the plaintiffs is, that the lands belonging to them have not been and will not be benefited by the drainage works which are now in progress. But this allegation is not supported by the testimony of the witnesses.</p>

<p>A motion to dismiss an appeal, to be entertained, must be filed within tliree judicial days after tbe return day.</p> <p>A defect in a certificate would be no cause to dismiss an appeal, tbe fault being attributable to tbe officer whose duty it is to make tbe certificate.</p> <p>A deputy clerk is an officer known to tbe law and is authorized to sign certificates.</p> <p>On tbe trial in tbe court# qua tbe defendants severally claimed in vain tbe right to challenge ten jurors under tbe act of 1855. If it was ever contemplated that several plaintiffs claiming different offices, could unite to bring one suit against several defendants, it is manifest from tbe unambiguous language of tbe law in regard to contested elections, that each defendant would have tbe right which was claimed and which was refused.</p> <p>Taking as true what tbe defendants admitted, to avoid a continuance: “That tbe election returns of tbe parish were not made out and sworn to as tbe law requires, and that tbe ballots for ward one will not show tbe same result as to tbe returns, this would not be sufficient to defeat tbe parish election. It has been often decided that tbe failure to comply with tbe directory clauses of an election law will not annul an election. Courts can not affix to tbe omission a consequence which tbe Legislature has not affixed.</p> <p>There is an essential difference between tbe act of voting and tbe police provisions to secure tbe evidence of tbe act. If tbe votes be deposited, tbe object of the election is attained, and its validity can not be affected by tbe non-observance oí tbe directory provisions.</p> <p>If tbe sworn statements be true, that tbe ballots and returns, in tbe ballot boxes which were called for and could not be procured, have been tampered with so as to render them unreliable as evidence, tbe result of tbe election as ascertained and announced by tbe commissioners of election at each precinct, might have been proved by tbe next best evidence in existence.</p> <p>Tbe irregularities shown by tbe evidence to have existed, resulted from a want of 'information on tbe part of tbe officers of tbe election, and said irregularities do not in any manner affect tbe result of tbe election in tbe parish.</p> <p>Tbe facttbat tbe ballot box, at one precinct, could not be seen by those voters who stood near tbe window, can not be a oause to annul tbe election.</p> <p>Tbe law does not authorize an election to be set aside, except for fraud, intimidation, violence or corruption, at or before,,tbe election, and then only when such fraud, violence, intimidation, etc., bad tbe effect to change tbe result of tbe election.</p> <p>It is not shown that tbe defendants bad any connection with tbe irregularities committed, or with any acts of fraud, or violence, if any were perpetrated.</p>

<p>Because the defendant is required to pay a license, it is no reason "why property owned by it should not be taxed like other property of the city of New Orleans.</p>

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

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

<p>This suit commenced by attachment. The proof is, that Jesse K. Bell leased his dwelling house and furniture; and that, declaring that it was his intention to be absent from the State for two years or longer, traveling for pleasure and health, he left the State without leaving any agent upon whom citation could be served. Shortly after he left, this suit was brought. At that time it would have been impossible to bring him into court except through his property. Under these circumstances the attachment was properly issued. The fact that he did not absent himself as long as he had expected did not affect tlie attachment previously issued.</p>

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

<p>APPEAL from the Superior District Court, parish of Orleans. Hcm1tins, J.</p>

<p>This case does not differ from the one of the City of New Orleans v. The Salamander Instr ranee Company, reported in the 25th An. This court gave to that case the most attentive and careful consideration, and does not see any reason for changing, in this instance, the conclusions arrived at in said Salamander controversy.</p>

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

<p>The peculiar principles upon, which’ the Consolidated Association of the Planters of Louisiana was organized, the important purposes it was intended to subserve, and the enduring character which was required to be given to it, rendered essentially necessary that the enforcement of its obligations should not be defeated or delayed by pleas and de-, fenses admissible in regard to ordinary hypothecations. The important interests of the State were also to be protected.</p> <p>It is a pre-eminent feature in the charter of the Consolidated Association of the Planters of Louisiana that no future change of ownership or possession of the property mortgaged to secure the stock subscribed or the loan made, should ever prevent or delay the enforcement of the mortgage against the property, to collect whatever sum might be due by the original mortgager. It was on these conditions that the State became the indorser on the bonds issued by this association in 1828. There is no place for delays or calls in warranty, nor operation of prescription of its debts, or peremption of its mortgages.</p> <p>Reference must be made in this instance to Civil Code, article 3333, amended by act of 1842, which declares “ that the rule requiring the reinscription of mortgages at the expiration of ten years kora date of their registry shall not apply to the mortgages which have been or may be given by the stockholers of the various property banks of this State.”</p>

<p>■When defendant admitted the validity of the note sued upon and pleaded against it the extinguishment, novation and settlement stated in the answer, no proof was required of plaintiff' to establish an indebtedness on the note, the law requiring no one to prove what is admitted in the answer.</p> <p>The objection that the answer was not offered in evidence is frivolous. Pleadings make up the case, and are never offered in evidence on the trial thereof.</p> <p>The judge a quo did not err in refusing to permit defendant to set up and prove an individual account against plaintiff in compensation or discharge of a debt due to him as tutor. The rights of the minors whom plaintiff represents in this action are in no manner affected by his individual indebtedness to defendant.</p> <p>The entries made in plaintiff’s books in the handwriting of J. P. Spears, the bookkeeper, against himself, or debiting himself, were admissible against the succession of the latter.</p> <p>The declarations or statements of the witness Post to plaintiff, previous to the trial, were not admissible against plaintiff, because they were the declarations or statements of a • third person, not a party in interest.</p> <p>The claim of reversal of judgment because, as written, it is absolute, and not a judgment to be paid in due course of administration, is not well founded. This was evidently a clerical error in drawing the judgment, and is of no consequence, because the judgment must be construed in reference to the petition, wherein it is prayed that plaintiff’s demand be paid in due course of administration.</p>

<p>The extension of the time of payment of a certain mortgage note was really the consideration of the note in suit, and this was a lawful consideration.</p>

<p>This is a petitory action, based on untenable grounds. The sheriff, under whose sale the tract of land is claimed, never had possession of the property which he pretended to sell. He never seized it, except by giving notice oí seizure. To constitute a valid seizure of a plantation, cultivated as such, the sheriff must take the property into his possession and custody.</p>

<p>This appeal was made returnable to this court on the first Monday of Hovember, 1875, by the Superior District Court, parish of Orleans, and is made by law returnable at New Orleans. This court declines to try the case before the day it is made returnable, and at Monroe, a different place from that fixed by law, for the hearing of this appeal, even though the parties have consented to it.</p>

<p>M. A. Sweet was returned as elected recorder by the board created by law to ascertain that fact, and the commission issued by the Acting Governor is conclusive of that fact in all cases except where the election has been contested within the time fixed by law. Therefore the subsequent appointment of Jackson by the Governor was made in error, and is null and void.</p> <p>Whether the oath of office of Sweet was taken and recorded in the office of the Secretary of State or not, did not authorize the Governor to treat the office as vacant.</p>

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

<p>Appeals from the Superior District Court of New Orleans are returnable at New Orleans. That court, therefore, was without authority to make this appeal returnable at Moñroe. Consent can not give jurisdiction, neither can consent change the law which designates the place where appeals shall be returnable.</p>

<p>The mayor and selectmen of the town of Homer could not do any thing which they were not authorized to do by the statute from which they derived their powers, and this statute expressly prohibited them from imprisoning any person for any period beyond the time necessary for the offender to become sober, or until he should desist from violence. Therefore the ordinance which extends the imprisonment to ten days is illegal, and when the mayor sentenced the defendant to an indefinite imprisonment, that is, until he paid a certain fine, his judgment was doubly wrong, for it condemned under an illegal ordinance, and went much farther than the ordinance itself permits.</p> <p>As the act of the Legislature under which the ordinance under consideration was enacted, was passed in 1874, its constitutionality must be tested by the constitution of 1868. Constructing together articles 73, 89, 94 of that constitution, it follows that the ordinance under which this action is brought, is illegal and unconstitutional, so far as it permits the mayor of Homer to imprison the defendant as he did, but not so far as it allows him to impose the fine which he fixed.</p>

<p>APPEAL (rom the Parish Court, parish of Ouachita. Balter, J.</p>

<p>Against a succession a writ oí fieri facias can not issue, nor can a seizure thereunder be made by garnishment process.</p> <p>The specific credits of a partnership, as in this case, can not be seized under execution against one of the partners, or the surviving partner. The entire interest of a partner may be seized and sold, but no specific asset, credit or property of the partnership is liable to seizure under execution against one of the partners.</p> <p>The appellant who shows title to the property in dispute can make any objection necessary to protect his interest.</p>

<p>It seems settled by our jurisprudence that where no law authorizes the execution of a judicial bond, no torce can be given to it. The order of the judge authorizing the intervenors in this case to release property tinder sequestration by executing a bond, gives no validity to tlie bond, because there is no law authorizing intervenors to release property under sequestration by furnishing bond.</p>

<p>The plaintiff's sue to annul a probate sale on the ground of fraud and collusion between tlie administrator and the purchasers to sacrifice tlie property and evade the pursuit of tlie creditors of the succession.</p> <p>The exception that a ratification of the sale by plaintiffs resulted from the filing by them of a third opposition, and claiming the proceeds, is well taken. The purchasers bought no doubt under what probably appeared to them regular proceedings and apparently in good faith. They should be protected.</p> <p>The objection that the land was not divided into lots and sold in lots, as prescribed by law, is without much torce. Ho survey was made, but the lots were sufficiently designated by means of the map of the official United States survey and sold in portions easily ascertainable. Ho such illegality thereby arose as to work nullity of the sale</p>

<p>* APPEAL from the Parish Court, parish of Webster. Franks, J. J.</p>

<p>APPEAL from tlie Fourteenth Judicial District Court, parish of Morehouse. Bay, 3. Jury trial.</p>

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

<p>This is an action of boundary. The judge a quo erred in receiving the report of the surveyors, which was not made in conformity to haw Revised Code, 834.</p>

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

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

<p>This is a contest for the office of recorder of the parish, of West Feliciana. The vacancy having occurred when the Senate was not in. session, the nomination to fill the same was properly made at the called session which was the “next session'* after the vacancy occurred. To fill this vacancy the Governor had the power to nominate whom he pleased, and this without regard to any appointment he nad made during the recess.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney,-3.</p>

<p>Alcee Harris and Toney Helium were indicted for murder. Ho severance was asked by either of the defendants. On the trial evidence of confession by Helium was offered against him, not objected to and received. The position taken by Alcee Harris that it involves her in the crime, that it was hearsay, and therefore not admissible, can not be maintained. The evidence was only offered against Helium and admitted as to him. It was not, under the instructions of the judge, used against Alcee Harris. Hence she can not complain. It must be presumed that the jury followed the instructions of the judge.</p> <p>Both defendants moved for a new trial, which was refused. As no question of law is presented in either of these motions, this court can not consider the legality of the judge’s rulings upon them.</p> <p>The word willful is not sacramental, and its omission in the indictment does not vitiate that instrument. Defendants are charged with having feloniously murdered the deceased. The felonious murdering was necessarily a willful act. Whether it was willful and felonious were questions of fact which it was the province of the jury to decide.</p>

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

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

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

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

<p>APPEAL from the Parish Court, parish of Bossier. Fort, J. J. J). Watkins and T. M. for and</p>

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

<p>APPEAL from tbe Tentli Judicial District Court, parish of Caddo. ad in lieu of Looney, district judge, recused.</p>

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

<p>The plea, in this instance, tliat the lands were not surveyed and sold in lots as required by tbe constitution, can not be maintained. It is true that a survey of the lands was not made, but they were divided up into lots as required by law, and the lots were appraised separately; the lots were described according to the survey made by the government, and the sale was made in lots. This was sufficient.</p> <p>The fact that the lands were sold under the last inventory ordered by the court instead ol the first, is no ground for annulling the sale.</p> <p>The order of the court having jurisdiction of the succession, which ordered the sale during the provisional administration of the public administrator, has not been appealed from, and is not an absolute nullity. Purchasers in good faith need not look beyond the order of sale made by a court having jurisdiction of the succession. They are not affected by antecedent irregularities. The jurisprudence on this point is settled.</p> <p>The note sued upon 'is not prescribed. The name of the former administrator indorsed on it on the twenty-eighth oí December, 1868, and the placing of this claim on the tableau, arrested the current of prescription, and it has not since acquired.</p>

<p>This is a petitory action for a tract of land. The plaintiff bases her title on a patent in her favor, issued by the United States, for the lands in controversy. The defendant claims by location of an internal improvement warrant-; the plaintiff by virtue of the act of 1851, giving bona fide purchasers from Maison Rouge a preference in purchasing from the United States. Each party displays a chain of title from Cox, holding under Maison Rouge, down to Copley. The tract of land was acquired by Brigham from Cox. He improved and cultivated it as a whole for several years before he sold it. It was then divided and owned by two different persons, and lastly Copley became owner of the whole tract as an entirety, in the same manner that Brigham owned it after the purchase from Cox. It' Brigham had remained owner, there is no doubt he could have entered the entire tract at the minimum government price. If so, when the two divided halves of said tract were reunited in Copley as one owner, and the same status existed as when Brigham owned the entire tract, there can be no forcible reason why cultivation and improvement upon any portion of the entire tract, whether upon the upper or the lower half, at the time when division existed, did not carry with it the right to purchase the whole of it at government price.</p> <p>Copley was owner of the entire tract in 1844, and cultivated upon it several years before 1849. This entitled him to the benefit'of the provisions of the act of Congress, enacted in the interest of persons who purchased lands in the Maison Rouge grant under the title of Cox.</p> <p>If frauds were perpetrated and malpractices resorted to by Copley in procuring transfers to himself, they were acts that took place seven years at least before the defendant’s alleged purchase and settlement. These frauds, if they were frauds, did no injury to the defendant. If injury resulted to anybody, it was to the parties with whom he dealt; but thirty years have intervened, and it does not appear that either they or any of their heirs have ever complained.</p> <p>Under the act of Congress of twenty-seventh January, 1851, all the lands within the limits of the Maison Rouge grant were reserved from sale, entry or location, from the date of the act until three months after the public notice required to be given by the second section of the act. That notice was not given until the twenty-fifth of October, 1853. Hence, on the fifth of September, 1853, the defendant was debarred from making a location of her internal improvement warrant upon any land within the limits of the Maison Rouge grant; and subsequently, in December, 1854, and on the twenty-first of January* 1855, when she again applied to locate it, it was out of her power to locate it upon the lands in controversy, because before her last applications were made, those lands had been secured to plaintiff under pre-emption right in pursuance of the provisions made by law in favor of purchasers in good faith under the title of Cox, and who had improved and cultivated those lands. Thereioro, defendant never acquired any title and plaintiff did.</p>

<p>The exception to the jurisdiction of the district court was properly maintained. The execution having issued from the parish court, the parish court was the proper court to apply to for an injunction to restrain property seized under the judgment from being sold. The value of the property to be sold is not to be considered. If the parish court had the jurisdiction necessary to authorize it to render a judgment, it had jurisdiction to prevent that judgment from being satisfied by the sale of the property not subject to seizure.</p>

<p>This court is satisfied that the document sued on is the property of plaintiffs and not of the intervenors, by whom it was transferred, and not merely pledged to plaintiffs, as he alleges, to guarantee the payment of the indebtedness of a third party.</p> <p>The position taken by the intervenor that the obligation sued on was not stamped when it was delivered to plaintiffs, and that it is therefore a nudum pactum, is entirely untenable. If he gave them the obligation without being stamped when stamps should by law have been placed upon it, it was a wrong doing of his own from which he can draw no protection. Besides, the plaintiffs had the right to cause the required stamps to be put upon it. The requirements of the law are complied with, if the stamps are on the obligation, when sought to be enforced.</p> <p>Allegations that intervenor, when he parted with the obligation, which was negotiable, and of which he claims the ownership, did so despite the agreement he was under with his associates to keep it out of commerce, can do him no good, and he can not be listened to on this point.</p> <p>It is conceded that the defendants, with others, at sheriff’s sale, purchased all the rights, privileges, franchises and other property belonging to the Yicksburg, Shreveport and Texas Eailroad Company. This company was a corporation established by law. As a corporation thus established, its members were not personally responsible for the debts of the company beyond the amount of stock which they individually held.</p> <p>As to the defendants, they did not acquire by their purchase the immunity of the stockholders of that company from liability beyond the amount of their stock. This purchase conveyed to them all the rights, privileges, franchises and other property of said company ; but it did not and could not make them a corporation, for corporations are created only by special act of the Legislature, or in the manner provided for by law. As regards the rights, privileges, franchises and other property of the company aforesaid, the purchase made defendants joint owners thereof and nothing else. It did not make them that company.</p> <p>If, as alleged, the ratification of the sale by the State constituted them a corporation, their corporate rights would take effect only from the passage of the act. But the act was passed subsequently to the publishing of the instrument sued upon. The rights of the holders of the obligation lmd vested, and the Legislature could not shake them.</p> <p>Defendants’ plea that the obligation sued on purports tp have been issued by the Yicksburg, Shreveport and Texas Eailroad Company, and therefore that they, the defendants, can not be liable individually, does not protect them. Obligors are hound not by the style which they give to themselves, but by the consequences which they incur by reason of their acts.</p> <p>It was sufficient that the instrument sued upon was stamped when offered in evidence.</p> <p>This court can neither add to the law nor take from it, and as the law limits the solidarity of obligors ongaged iu carrying personal property for hire to that property which is earned on ships, or other vessels, it can not be extended to those who carry it on a railroad. Hence the defendants are liable jointly, and not in solido.</p> <p>It appears that others besides the present defendants are the owners of this road. Their names were given to the plaintiffs by the defendants. Tbey should have been made parties to the suit. The owners are nine in number. Judgment is therefore rendered in favor of the plaintiffs and againat the defendants for the proportion due by each.</p>

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

<p>3?or carrying on a private market in contravention of the ordinances of the city of Shreveport, the defendants may be responsible to said city on account thereof. But plaintiffs, who are lessees of the public markets, have no right to sue to enforce the ordinances of that political corporation, nor can the validity of said ordinances be tested in this controversy to which the city of Shreveport is not a party.</p>

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

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Galliham, judge ad hoe, in lieu of district judge, recused.</p>

<p>from the Twelfth Judicial District Court, parish of Catahoula. Taliaferro, J.</p>

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

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

<p>The motion to dismiss the appeal taken by plaintiffs can not prevail. To have filed in the parish court a petition similar to the one now under consideration after an appeal was granted from a judgment of the district court declaring that it had no jurisdiction, is not such an acquiescence in the judgment as will prevent an appeal.</p> <p>The acquiescence which prohibits an appeal or destroys it when taken, is the acquiescence in a decree commanding something to be done or given. If the thing commanded to be done or given, is done or given, the j udgment is acquiesced in. Here nothing was ordered to be done. The judgment of the district court was simply that it had no jurisdiction. It did not order plaintiffs to institute proceedings in the parish court.</p>

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

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

<p>After a mortgage lias once perempted, it can not Tie reversed against a succession by tlie registry thereof after the lapse of ten years. Ko preference over ordinary creditors of a succession can be gained in that way.</p>

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

<p>APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. 1lay, J.</p>

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

<p>APPEAL from the Teuth Judicial District Court, parish of Caddo. Duncan, Special Judge.</p>

<p>Tlie contract for macadamizing Commerce street in tlie city of Shreveport was awarded, to tlie undertaker on the third oí May, 1871, and the assessment to pay for tlie work was ordered on the eighth of that month. These acts were done under the authority conferred by the act of the Legislature of March 9, 1869.</p> <p>But the law establishing the new charter of the city of Shreveport was approved by the Governor on the twenty-seventh of April, 1871, and went into effect from and after its passage. The council deriving its powers from the act of 1869, in virtue of the constitutional provision on that subject recognized by the 21st section of the new charter, held over and remained in office until the organization of the new council to be appointed under the new charter; but it. was from and after tbe passage of tbo act of twenty-seventh April, shorn of the powers it previously possessed under the law of 1869. Brom and after the passage of the act of twenty-seventh April, 1871, it could only exercise the powers granted under that act, and these did not authorize the contract and assessment made in May, 1871.</p>

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

<p>A bill was drawn by A. Flournoy to bis own order upon. Thurmond and Hicks and Martin Tally, and by them accepted for $1125, which bill was indorsed by Duncan. Thurmond and Hides, joint acceptors with Tally, paid on the second February, 1871, one-half of the amount of the bill, principal and interest then due, and were released from further liability by the plaintiff, holder of the bill. He now claims from defendants, in solido, Martin Tally, as accepter, and Duncan as indorser, the remainder due.</p> <p>The defense, on the part of Tally, that plaintiff should have exhausted his legal remedies against the drawer and the accepters Thurmond and Hicks, is not tenable under the rules of the law merchant. Tally and Thurmond are jointly bound as between themselves, but each is bound to the holder for the full amount. As to the indorser, Duncan, he is released by failure to serve legal notice upon him of the protest of the bill.</p>

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

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

<p>The plaintiffs, as heirs of Isaac Lay, sue the succession of O’Neal for a large sum to be paid in the course of administration and allege in substance that O’Neal was their tutor for many years. The defendants have excepted to the mode of action and to the jurisdiction of the court. The judge a quo erred in overruling the exception.</p> <p>The plaintiffs should have called upon the executrix of the deceased, O’Neal, to file an account of his tutorship, and by opposition to the account, should have raised the issues involving its correctness, and then have the various matters in contestation duly proceeded with and determined, in their regular order, and the tutor’s liability, if any, definitely fixed by final judgment of tbe parish conrt.</p> <p>Instead of this proceeding, the plaintiffs bring suit in that court against the succession oí O’Neal for an arbitrary amount, which they fix themselves as the indebtedness of the tutor, and pray judgment against the succession for that sum, an amount far above the jurisdiction of that court in a direct action for a specific sum of money. This is illegal, and can not be maintained.</p>

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

<p>The only question in this case is, whether ‘municipal taxes for 1873 on the capital stock of the People’s Bank can he imposed. It must be answered in the affirmative. In 1869, when the defendant, tlio People’s Bank, was incorporated under the act of the fifteenth of March, 1855, entitled an act to establish a general system of free banking in this State, the statute of 1857 exempting free banks from municipal taxation bad been, stricken with nullity by article 118 of the constitution of 1868. Such exemption formed, therefore, no part of the contract arising from the act of incorporation.</p> <p>Defendant contends erroneously that there is no statute authorizing the municipal taxation of a banking institution, and that the ordinance passed by the city without the sanction of such law is absoluteely void.</p> <p>The capital of a bank is its property and is liable to taxation unless specially exempt.</p> <p>By section 12 of the charter of 1870, the city of New Orleans is authorized and required to lt levy cm equal cmd uniform tax, tor the purposes of this act, on all property, real and personal, in said city.” A‘ * *</p>

<p>Powell effected a four months’ loan with the New Orleans Banking Association, and gave as collateral security iour notes, with mortgage on his property. On the maturity of the four months’ loan, Powell, not having money to pay said loan, applied to Low & Ludwigson for a loan to pay the hank, which was furnished on condition that the twelve months’ notes pledged to the .New Orleans Banking Association should he delivered to them as collaterals Powell’s debt to the hank was paid with the money thus borrowed and the collaterals were delivered by tbe hank to Ludwigson, who pledged them to the Mechanics’ and Traders’ Bank, plaintiff in this suit, for a debt of Low & Ludwigson.</p> <p>After the transao ion aforesaid the mortgage rights of the third opponents arose. This court thinks that the third opponents erroneously contend that the payment by Powell of the four months’ loan extinguished the mortgage given to secure the twelve months’ notes, now in suit. Practically, the original debt to one creditor was extinguished by the substitution of another creditor, upon the express condition that the security should be continued as it then existed. It was clearly not the purpose or intention of Powell to extinguish the mortgage, and the manner in which the evidence thereoi was delivered to the new creditor did not have that effect.</p>

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

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

<p>The duties of tlie defendant, while acting in his official capacity of wharfinger was fixed by law. Compensation is an equitable remedy, and never takes place when it would be against good conscience. This case is similar to the case of city of New Orleans a. Pinnerty et al., previously decided, and must be controlled by the principles therein announced.</p>

<p>The plaintiff sues to recover from defendants, testamentary executors of Wilhelmus Bogart, a certain sum of money, which, whilst plaintiff was a minor, said Bogart, acting in the capacity of under tutor, had under his control and management. After becoming of age, plaintiff received, in settlement with Bogart, certain promissory notes and commercial papers in which Bogart had invested plaintiff’s funds in 1860, and of which a considerable portion subsequently turned out to be worthless. After having kept the aforesaid obligations until 1871, a period of seven years, and after prescription has accrued, he now tenders them back on the ground of his having been induced to receive them in settlement by fraudulent misrepresentations.</p> <p>If said obligations and commercial papers were worthless at the time he received them, plaintiff must have become acquainted with that fact not long after, and might have used more diligence in seeking redress, when it was in his power to put the other party in the same situation he was in when delivering the assets to plaintiff. Therefore by his own laches the plaintiff has foregone the right he originally had to exact from the manager oí his affairs a rigid accountability.</p>

<p>On tlie faith of a letter of credit given to them by defendants for $5000, Irish & Butler procured the discount of a draft of $3500, and sometime afterward one of $1500, from plaintiff, a banker in New York. On defendants being sued for payment oí the latter draft, they rely on a defense which is merely technical. A letter of credit must be interpreted and effect given to it according to the real intention of the parties. In accomplishing that object, it was immaterial whether the drafts were drawn by Fish & Butler in favor of their respective creditors as required in the letter of credit, or in íavor oí the drawers themselves, to settle with said creditors, as intended, and as they did.</p> <p>Both drafts were drawn alike, and when John "Williams & Sons accepted and paid the first one for $3500, they thereby conoeded there was no objection to the form or wording of the instrument, and they interpreted the letter of credit as the drawers did, and as this court does.</p>

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

<p>'The question in this instance is whether certain articles found on a mortgaged tract of land, seized and sold "by plaintiff and adjudicated to him as part of the mortgaged property, were covered by said mortgage, and in that case whether they could be afterwards seized, advertised and sold by defendant individually and as testamentary executor of the late William Bobb. The decision of this court is in favor of the plaintiff, on the grounds that the objects now in litigation were found on the premises seized; that they were used in carrying out the industry to which the real estate was subjected, and therefore that said property in dispute was properly seized, advertised, appraised aud sold as subject to the mortgage of the plaintiff, to whom it was adjudicated on the sale thereof.</p>

<p>This suit is brought under the intrusion act. [From all this court is able to gather from this record, the relator has no cause of action. This court does not understand that defendant has usurped or intruded into the office of recorder, or placed it out of the power of relator by any unlawful force or any illegal means to perform the duties of recorder, if legally Tested with that power. He claims, as’mayor, the right to exercise certain functions which the relator claims as belonging to the office of recorder. It is not seen how the relator can maintain his action as one coming under the provisions of the law for preventing the usurpation of or intrusion into an office.</p>

<p>This is a proceeding by mandamus to compel the Board of Liquidators to fund a certain promissory note for two hundred thousand dollars with eight per cent interest made by the Governor of the State on the twenty-seventh of February, 1872, and secured by a pledge of forty warrants of five thousand dollars each, subject to a credit of $120,000, amount of bonds received in exchange for said warrants under act 23b. 3 of 1874, known as the “ Funding act.”</p> <p>The law does not make it the duty of the liquidators to exchange the bonds authorized by act Ko. 3 of 1874 for anything hut the bonds of the State and certain warrants specified in section 3.</p> <p>Section 3 of said act is the only part thereof that confers authority to make such exchange, and it designates only “all valid outstanding bonds of the State and valid warrants drawn previous to the passage of this act by the respective Auditors, except warrants issued in payment of the constitutional officers of the State, at the rate of sixty cents in consolidated bonds for one dollar in outstanding bonds and all valid warrants.”</p> <p>The words “bonds and warrants” are here repeated to leave no doubt as to the object of the law, and the proviso which immediately follows declares: “ That the holder of any 'bond or warrant* rejected by a majority of said board may apply by petition to the proper court for relief, and if final judgment shall he rendered in his favor against said hoard, it shall be the duty of said board to fund Ms said claim in bonds at the rate provided for by this act.” Therefore only the holders of outstanding bonds and valid warrants can appeal to the courts for relief.</p> <p>Lest there should be any doubt, section five declares “that the consolidated bonds herein authorized shall be held and used by said Board of Liquidators only for the purpose of " exchange as aforesaid” — that is,'for the outstanding bonds and valid warrants.</p> <p>The relator having voluntarily accepted the terms of the law and taken sixty per cent, of its whole claim against the State by funding the warrants held by it, the purpose of the act . as to said debt has been attained, and the whole and only debt of the State due to the relator in this transaction has been funded, and the indebtedness of the State, pro tanto, has been reduced and restricted according to the intent and object of the act.</p>

<p>■Where the evidence showed that the existing liabilities of the surety on the appeal bond exceed his assets in this State, but where he testifies that he has in another State of the Union property worth a sum much larger than all his liabilities:</p> <p>Held: That he is a good surety in this State. The law does not require the property of the surety, but only the person or residence of the surety to be within the State.</p>

<p>The statute No. 124 of the G-eneral Assembly of 1874, conferring on the judge of the Superior Criminal Court the power to appoint an attorney to act in his place, is unconstitutional, because it provides a mode for choosing judges different from that prescribed in the constitution.</p> <p>It would be obnoxious to an additional objection, if the assumption of the State is correct, that Braughn, the attorney appointed by the judge of the Superior Criminal Court to act' in his place, was a de facto officer. In that case, the statute would provide for having two. judges for the Superior Criminal Court, whereas article 83 declares “that lor each court, one judge learned in the law, shall be elected.”</p> <p>Instead of authorizing the enactment of section 10 of act No. 124, article 90 of the constitution forbids it in terms of command. It directs the judge when and how he shall select another to preside in his place. Obviously this article did not confer any power upon the General Assembly; but, by indicating precisely how and when the judge shall select another to preside in his stead to try certain causes, it excludes other modes of selection and other causes; and as the manner of choosing a judge, provided -for in section 10 of ' act No. 124 differs from that prescribed in article 90, the said section is null and void.</p>

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

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

<p>Where a final judgment has never been revised in the manner provided, by the Code of Practice, it can not be practically reopened and reviewed, on a proceeding by rule, by the same court which rendered it, four months after it became final and while the fieri facias was in the hands of the sheriff.</p>

<p>It -was never contemplated that one sued before a justice of the peace could bring his case to be revised before the district or parish court, and before this court also. The right of double appeals is not conferred by the constitution.</p>

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

<p>Ho answer having been filed by the defendants, no judgment by default having been entered against them, it follows that there was no issue joined when final judgment was rendered. Without issue joined the court was incompetent to pronounce judgment. The fact that one of the defendants did not answer interrogatories within the legal delays, does not join issue with plaintiffs’ demand.</p>

<p>The judge a quo refused to grant an appeal from his refusal to grant an injunction in chambers. This court can issue no mandamus in the matter. The judge a quo has, in this case, simply refused to act and grant an expw'te order upon an expanse showing. This refusal can not be considered as a final judgment or an interlocutory order within the purview of the Code of Practice or any law from which an appeal lies, because it may work an irreparable injury. There is nothing for this court to revise, and hence there is no ground tor an appeal. It would be virtually assuming original jurisdiction were an order granted for an injunction, when none had been issued by the lower court. The non-action of the district judge in the premises can not be revised, amended or modified by this court.</p>

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

<p>This court will have nothing to do with a suit springing from a fund created for the purpose of corrupting and improperly influencing members of the Legislature in their action on matters of legislation then before them.</p>

<p>Tkis is a suit to annul a tax sale ky a justice of tke peace and recover tke property tkus disposed of. All property seized under writs of justices of tke peace, wketker tke same be movable or immovable, must be appraised and sold in tke same manner as property seized and sold by sheriffs. None of the formalities required and made necessary by law to constitute a seizure by tke skeriff or otker officer of the parishes of Orleans and Jefferson having been complied with in tkis case, it follows that nullity of tke sale is tke consequence.</p> <p>As defendants in their answer set up no reconvontional demand for taxes paid by them since their pretended purchase of tke land herein decreed to belong to plaintiff, no relief can be given in that regard.</p>

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

<p>2To complaint being made as to the sufficiency of tlie surety, the district judge dismissed tlie appeal mainly upon tbe ground that the matter in controversy does not exceed five hundred dollars. After granting the appeal, his jurisdiction over the case, except as regards the sufficiency and legality of the bond, was gone.</p>

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

<p>APPLICATION for writs of mandamus and prohibition against the judge of the Fourth District Court, parish of Orleans.</p>

<p>Where the heirs of a succession, have been recognized by a judgment of the Second District Court, parish of Orleans, and put in possession of the property, an action for debt due from said succession must be brought before the ordinary tribunals against the heirs themselves, if they be of age, or against their tutor.</p>

<p>APPEAL from the parish court, parish of Rapides. Sullivan, J.</p>

<p>APPEAL from tbe Superior Criminal Court, parish of Orleans.</p>

<p>Where a witness declared that he had formed an impression based on newspaper statements and that said impression would give way to evidence, that is no cause for challenge.</p> <p>The judge a quo properly rejected the following question to a witness: “You have stated that the accused received in his youth several injuries upon the head; you have stated also that his language and conduct were at times strange and extraordinary. Was that conduct and language that of a rational man 9” The facts in regard to the language and conduct should have heen detailed.</p> <p>The following charge to the jury, which was objected to, is undoubtedly correct:</p> <p>“ The killing once proved, the burden of extenuation and of showing all circumstances of accident, misfortune or justification, are thrown upon the defendant, When insanity is pleaded in defense of a criminal act, it must be clearly shown that it existed at the time of the commission of the act. Every person is presumed to he sane until the contrary is proved, and it is for him who sets up this defense to prove it by evidence whioh will satisfy the minds of the jurors that tho party was insane at the time of the commission of the offense. Drunkenness is no excuse for crime, and any state of mind resulting from drunkenness, unless it be a permanent and continuous result, still leaves the person responsible for his acts.”</p> <p>The judge a quo did not err when refusing to charge the jury as follows:</p> <p>“If the defense to an indiotment is insanity, the burden of proof is on the government to satisfy the jury beyond a reasonable doubt that the prisoner was sane when he committed the act, and if the jury entertain any doubts of ,his sanity, they must acquit hi™ ol guilt.” The burden of proof is upon the party setting up the defense.</p> <p>The judge a quo did not err when refusing to charge: “ That, where a person is insane at the time he commits a murder, he is not punishable as a murderer, although such insanity be remotely occasioned by undue indulgence in spirituous liquors.”</p> <p>The court below did not erroneously refuse, as alleged, to instruct the jury: “That, if some controlling disease was in truth the acting power within the prisoner, which he could not Tesist, or if he had not a sufficient use of his reason to control the passions whioh prompted the act complained of, he is not responsible ” The instruction was calculated to mislead the jury.</p> <p>There is no error, as assigned, because the record fails to disclose “the names of the grand jurors by whom the indictment was found, the time and place at whioh the jury was formed, and whether the indictment was formed by twelve or more.” In the record is found the following copy of the minutes of the court:</p> <p>“The grand jurors duly empanneled and sworn in and for the body of the parish of Orleans appeared this day into court, and being called, retired to consider upon the business laid before them; they afterward returned into court and presented the following bill of indictment.” This is sufficient.</p> <p>There is no error, as assigned, because “the record fails to show that the defendant was asked if he had any thing to say why sentence of the law should not be pronounced on him.” The remark in the decree, ‘ ‘ and having nothing to offer in arrest of judgment,” of course implies that the defendant was asked if he had anything to say why sentence of the law should not be pronounced on him.</p> <p>It is unimportant and no error that the record fails to show “that the prisoner was present in court when the motion for a new trial was made and refused.”</p> <p>The objection that the court allowed the Attorney General, after announcing that the evidence in behalf of the State was closed, to offer another witness, is without weight. It was within the discretion of the judge.</p>

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

<p>According to law a suspensive appeal is to be taken within ten days from the notification to the party oast of the judgment complained of. But the requirements of the law are not prohibitory, and it is understood by this court that any engagement not prohibited by law and not repugnant to good morals may be enforced between the parties thereto. The law does not say that the parties may not agree that the time for making an application for a suspensive appeal may not be extended, nor does it forbid the parties from fixing the amount of the appeal bond among themselves. The provisions of the law on the subject are for the protection of the parties in litigation. Either party may waive his rights to this protection, and if he chooses to do so and contracts to do so, his contract can be enforced.</p> <p>The district judge has the power of pronouncing on the question whether an appeal is or shall be suspensive or devolutive, and of saying whether the appellee shall be entitled to take out execution, notwithstanding the appeal. But when it is a judgment which this court may reform, when the. case is within its jurisdiction, it may determine that an appeal is suspensive, which the district judge may have decided was devolutive. In the like manner this court can decide whether the surety is good and solvent, and revise the judgment of the lower court on this point.</p> <p>Therefore, in this case, the application for a suspensive appeal, being made within the time agreed upon by the parties in interest and authorized to make the agreement, is valid.</p>

<p>Plaintiff can not now be heard to contradict the allegations of his petition in regard to the ownership of the property in litigation, which he made in another controversy, nor can a witness be heard now to contradict the testimony which he then gave.</p>

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

<p>A party obtaining an injunction prohibiting a sheriff from executing a certain judgment, can not, after the injunction is dissolved and no appeal taken therefrom, appeal from a decree of the court making absolute a rule taken upon the sheriff to show cause why he should not put the purchaser in possession of the property sold in execution of the judgment, after the dissolving of the injunction. The plaintiff should have appealed from the judgment dissolving the injunction, if injured thereby. He can not appeal from an order which merely carries out a decree.</p>

<p>There is nothing in the act creating the Superior District Court, which confines to that court the proceeding of relator, asking for kn order to the sheriff to put relator in possession of certain real estate which he alleges to have purchased at a tax sale of the same by the tax collector under the provisions of act Ho. 47 of 1873, entitled an act to enforce the payment of taxes due the State, etc.</p> <p>The Fourth District Court for the parish of Orleans is a district court in contemplation of the act Ho. 47, invoked by relator, being a district court of general civil jurisdiction.</p> <p>The act does not declare in express terms that the order of the sheriff to put a purchaser in possession shall issue without notice, and this court may well construe it as adopted with reference to the general laws relating to summary proceedings in the courts of this State. Hence no constitutional question arises.</p> <p>The judge a quo, in this instance, did not err in refusing to issue the order as prayed for, because no party was made to tbe proceeding upon whom notice could be served. Consequently there is no proper showing for the writ of mandamus to issue from this court.</p>

<p>A suit for taxes is summary and is not to be tried by a jury.</p>

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

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

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

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