Volume 28 — Louisiana Annual Reports

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

<p>ARPEAL from the Fourth District Court, parish of Orleans. Lynch, I.</p>

<p>'This ease must bo decided under the provisions of the Code of 1870, the alleged legitimation having occurred since that year. Plaintiff, who claims the legitimation of her children, Has failed to show a compliance with article 198 or article 200 of said Code.</p> <p>Ttelianeo is placed on a notarial act of acknowledgment executed by the deceased on the twenty-fifth of May, 1869, five years before tlio marriage, to establish the legal acknowledgments. That act acknowledges them as the natural children of the father, but had no reference to legitimation, and the mother did. not join in it. It is not such acknowledgment as is required by article 198, Revised Civil Code, which was in force at the date of the marriage in 1871, and cannot bo taken as a compliance with article 200, as it was not intended by the father to legitimate them.</p> <p>.Article 198, which is materially changed in this respect from the corresponding article in the Code of 1825, requires that both parents must make an acknowledgment, before a notary and two witnesses, of their children, in order that their marriage shall have the effect of legitimating such children born prior to the marriage, when they are not acknowledged in their contract of marriage, and .this cannot say that the acknowledgment in this instance, made by only one of the parents, before the change in the law and with no reference to legitimation, is sufficient under the law in force at the date of the marriage, and which must control in this case.</p>

<p>'It is clear that the plea of autrefois acgwit cannot avail the defendant in this case. The offense for which he was tried at the June term of 187á is entirely different from the one of which he was convicted at the ensuing October term. The judgment in the former ease was arrested because the offense of which the accused was found guilty was not properly set forth in the instrument, and in other respects the indictment was defective. This does not bar a prosecution f or the same or a second offense. A new indictment in such a case may be preferred, and the former conviction and discharge cannot be pleaded in bar.</p>

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

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

<p>The defendants, being only trustees or agents for the persons owning the steamer Katie, are not in a position to stand in judgment for the owners of the boat. If there has been a dereliction of duty on the part of the trustees, the plaintiff, it would seem, occupies the rather anomalous attitude of suing others for a neglect of duty for which he is ectually culpable himself as co-agent or trustee.</p>

<p>The limitation lor taking an appeal fixed in article 593 of the Code oí Practice is in the nature oí a prescription.</p> <p>IÍ plaintiff and appellee, who is neither a minor nor an absentee, is permitted to file in this court, as he wishes to do, the transcript of this ease and tho prayer lor an amendment of the judgment of the court below, one year and eight months after the appellant has abandoned her appeal, it would in effect bo an appeal brought to this court to obtain a revision of the judgment, notwithstanding the positive language of article 593 of tho Code of Practice. . ■</p> <p>Article 592, allowing an appellee to join in the appeal and virtually to become an appellant, must be construed with reference to article 593, which succeeds it, and which declares that except in regard to minors and absentees no appeal will lie after one year from tho time a judgment is rendered. This view of the law is confirmed by article 591.</p> <p>The appellee therefore cannot obtain from this court the desired relief. No revision of the judgment can now be had in his behalf, because the transcript was filed too late.</p>

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

<p>The motion to dismiss the appeal must prevail, because the matter in controversy is ■the ownership of the groceries seized, and the value thereof is far below the jurisdiction of this court. The demand for flve hundred dollars damages was evidently made to give this court a jurisdiction it did not otherwise have.</p>

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

<p>One Perault, claimin'? to be a creditor ol the deceased, took a rule in the Second District Court of New Orleans upon the executrix to show cause why the mortuary-proceedings, and all subsequent proceedings in the succession, should not be transferred to the Second Judicial District Court for the parish of Plaquemines, upon various grounds.</p> <p>The executrix, in limine, excepted to this mode of proceeding, upon the ground that the object thereof is to annul judgments already rendered. The exception was well taken; this can only be done by a direct action.</p>

<p>APPEAL from the Seventeenth Judicial District Court, parish of Red River. Chaplin, J.</p>

<p>This is a suit by the Attorney General in the name of the State, and in which joined one John B. Henry, to suspend defendant from the office of notary public. If Henry was improperly made a party to tho proceeding, the State, by merely permitting an improper or unnecessary party to join in the action, would not be dismiss id for it. This case is appealed from on exceptions.</p> <p>Section 2520, Revised Statutes, says that recorders, notaries public, or other persons; violating the provisions of tho preceding section (2510) shall, upon conviction thereof, be liable to fines therein mentioned.</p> <p>The section (2520) provides one penalty, but does not do away with section 2505,. which declares that a notary may be suspended for any just cause. He may be fined under one section and suspended under tho other. The question therefore is, whether in this case there is any just cause.</p> <p>Defendant bases an exception upon the allegation that the penalties sought to be inflicted upon him relate to notaries exorcising their functions and regard the transfer of property in the parish of Orleans, defendant averring that the property transferred is in the parish of Jefferson. The petition, however, recites; that the property was in the parish of Orleans and Jefferson; if it be, in whole or in part, in tho parish of Orleans the exception would not be well taken,</p> <p>But section 2505, Revised Statutes, applies to all notaries throughout the State, and notaries in New Orleans are not exempt from its provisions. Therefore defendant’s exception, based on the ground that notaries in New Orleans are not liable-to suspension, is not founded in law.</p> <p>On the whole, it seems that tho exceptions are in reality answers to the suit, and they should be regularly tried upon evidence to be adduced. If tho evidence should establish the allegations, this court is not prepared to say the action is not well founded, wherefore tho case must be remanded for further proceedings.</p>

<p>It has often been decided by this court that a ju figment creditor is not allowed by law to disregard an actual, although a fraudulent sale, and seize property hold under-sueli a title, but must resort to the revocatory action to have the sale set aside by-judicial decree,</p> <p>It is only in purely simulated acts, where, through deeds of transfer p urely fictitious, having only the semblance of title, parties seek to screen property from seizure,, under the pretense of sales, that creditors may seize directly, disregarding mere paper titles utterly void.</p>

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

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

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

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

<p>¡Section O81S of the Revised Statutes does not protect the defendant in his plea of prescription of one year in harto the prosecution instituted against him for a criminal offense alleged to have been committed on the thirty-first of July, 1874. upon the indictment, which had been found within the limited time, a nolle prosequi was entered, and on the eighth of November, 1875, defendant was proceeded against by information. Thus the information which followed the indictment cannot be considered as the first charge made against him. The law was complied with when the indictment was found.</p> <p>If the prosecuting offi so.* finis that the indictment is defective, he can enter a nolle prosequi and proceed regularly, although more than a year has elapsed from the finding of the indictment to the filing of the information.</p> <p>The judge a quo erred in not permitting the counsel for the accused, on the trial of the case, to make, an argument to the jury on the subject of tho proscription of the crime, on the ground that it was not their province to decide whether the ease was prescribed or not.</p> <p>whether or not the crime charged was prescribed, was a matter of fact as well as law, and upon both the fact and the law the jury had the power to pass, and upon both the fact and the law the prisoner had a right, through his counsel, to bo heard.</p> <p>If, as the judge a, quo alleges, the hill of exceptions, as presented, does not present the Question fairly, he should not have signed it, and should have seen that the bill stated the facts as they occurrod.</p>

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

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

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

<p>whore an appeal was made returnable on the first Monday of May, 1875, and on motion of the appellant in this court the return day was extended to the first Monday of June, it was too late to filo the transcript on the first of November-following.</p>

<p>APPEAL from the Sup erior OriminalCourt, parish of Orleans. Brauglm, J. Criminal case.</p>

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

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

<p>APPEAL from the District parish of Orleans. Haw-khte,J.</p>

<p>APPEAL from the Twelfth Judicial District Court, parish of Winn. Taliaferro, J. Criminal case.</p>

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

<p>APPEAL from tho Superior District Court, parish of Orleans, llaio-Mm, J.</p>

<p>Tho error in this caso is in supposing't-liat an omission or dofoot exists in the will in uolitrevorsy. Of course nothing can he added to that instrument to cure any want of legal requisites. But neither the laws of Illinois, where tho testatrix died, nor of Louisiana, whore she resided and left property, require that a will shall stale where it was made. The place where it was made is a fact dehors the will, which may be proved like any other fact. There is nothing in the objection that it would be establishing title to immovable property by parol evidence. The testament is in writing, and is the title to the property bequeathed.</p> <p>To prove where the aforesaid will was made, so as to ascertain what laws control its form, would no more conflict with the prohibition against proving title to real property by parol than would bo tho proving of the handwriting to an olo-graphic testament by parol, or the genuineness of a vendor’s signature to an act sons scing prive.</p> <p>The will, which is tho basis of this controversy, was made according to tho formalities' proscribed by tho laws of Illinois. Articles 1653 and 1654 of our Code contain similar provisions.</p> <p>The. objection to the testimony of Charles Robb on the ground that he is the legatee under the will was. properly overruled. He is not an attesting witness to the will. Bor that purpose he would have been incompetent. But, in a Louisiana court, he was a competent witness to prove any- fact in regard to tho matter in controversy which he might know.</p> <p>The article 1689 of the Civil Code clearly authorizes the probate of a foreign will in Louisiana. It declares: "This order of execution shall be granted without any other form than that of registering tho testament, if it be established that the testament has been duly proved before a competent judge of the place whence it was received. In the contrary case the testament cannot be carried into effect, without its being first prorerlhetovothe judge of whom the execution is demanded.</p>

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

<p>In a previous ease it was decided by this court that the plaintiff was entitled to recover of defendants, as her community share, one-fourth of the entire property belonging to the partnership which existed between william Malady, her husband, and Mary B. Caldwell, and which was conducted in the name of Mary B. Caldwell. To effect a partition pursuant to decrees of this court, a sale was made of a certain piece of property cn which John Mooney hold a conventional mortgage, when the partition sale vas made this creditor Mod a third opposition claiming of the proceeds a sum sufficient to pay the amount of his mortgage on the property sold. This mortgage existed on the property prior to the suit of plaintiff against defendants and before the existence of such a person as plaintiff was known to the mortgage creditor.</p> <p>The plaintiff, Mary Malady, cannot ho allowed to take one-fourtli of the proceeds of ' the property in question and throw on defendants the payment of the entire mortgage debt bearing on said property, or on the three-fourths of the proceeds thereof.</p> <p>Tf plaintiff claims for the community between herself and William Malady one-half of the property of Mary B. Caldwell, on the ground that there was a partnership between her husband and Mary B. Caldwell, conducted in the name of the latter, she must allow the debts of that partnership to be settled out of the assets thereof before the partition is made.</p> <p>Therefore the court a aua erred in requiring defendants to pay the entire amount of the mortgage debt held by the intervenor out of the share coming to them from the sale. Plaintiff must discharge a proportional part of the debt.</p>

<p>It was within the discretion of Uio judge a ano to extend the return day to the first Monday of February, the next return day fixed by law, if he deemed the time too short for completing the transcript of appeal, or that it was impracticable from other causes to get the appeal up by the next return day after the rendition of the order of appeal.</p>

<p>Act 94 of tho acts of tho Legislature of 187ÍS exempts, among others, from serving as jurors, “the judges and officers of tho several courts of this State.” Tlio juror exempted in this ease, being an assistant clerk of the Second Municipal Police Court in the city of New Orleans, was an officer of court within the intendment of the act, and was correctly discharged on his claiming the exemption.</p> <p>It appears that the clerk furnished the sheriff with blanks, to be filled with the names of talesmen as he summoned them. This form of summons was signed by the clerk, with the seal of the court affixed. No such summons was necessary; the sheriff could legally summon talesmen without serving a written notice upon them. In this case it appears that tho sheriff did summon tales-men, and his serving the blank forms given to him for inserting the names of such as he summoned gave no additional validity to his act, nor did it detract from if. Tho order of the court a qua overruling defendant’s exception on this ground was correct. *</p> <p>The judge a quo did not err in refusing to charge the jury as follows: “Malice excludes passion; passion presumios <s the absence of malice. In law they cannot co-oxisf.”</p> <p>The charge, of the judge, as it stands in tii' r '■* i -1, was sufficient, and ronderod it unnecessary for him to present to the jury the propositions offered by defendant, which are somewhat obscure, and the soundness of which does not readily appear.</p> <p>The gist of one of defendant’s exceptions is, that “ evidence, of the condition of the accused at tho time of the killing, whether drunk or sober, should be permitted to go to the jury in connection with other facts in determining tho question of malice,” and that tho court refused so to charge as requested by defendant. Tho refusal of the court below so to charge was correct, inasmuch as the question raised had already been discussed in the general charge, and evidence of the . condition of tho accused as to intoxication had boon given on the trial without objection.</p>

<p>This is a suit for clamases against dsfendant for having carried a trunk to Philadelphia, instead of Jaelcson, Mississippi. The trunk was not lost; there was only great delay in its delivery. The passenger seems not to have examined the cheek given to him, or to have made any inquiry about the trunk until he reached his place of destination, what happened may be attributed as much to his own laches as to the negligence of defendant’s employees. The plaintiff has sh own no right of action against defendant for any failure of duty.</p>

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

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

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

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

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

<p>Thu accused parties, on a second information, were tried and convicted of the crime of breaking- into the shop of Antonio Muealouso, in the night time, with intent to steal, and at a time different from that charged in the first information. By the trial under said first information they were not put in jeopardy, because they were tried on a different charge. The plea of autrefois acquit cannot therefore avail the defendants, and was properly overruled.</p>

<p>APPLICATION of David Eonderson for a writ of habeas corpus.</p>

<p>The law docs not cleelai-e ignorance a disqualification in a juror which will authorize a party to challóngs him for cause.</p>

<p>However improperly the offices of Treasurer and Auditor may be administered, this court fails to perceive any right in relator, a mere creditor of the State, to obtain a mandamus, and by the process of the court assume to exercise a supervisory control over officers engaged in the revenue department of the State.</p> <p>'The Treasurer and Auditor are agents of the State, charged with the performance of the duties pertaining to their respective offices. If thev fail to discharge faithfully the trusts committed to them, they are answerable to their principal. A mere creditor of that principal has no right to supervise the settlement of accounts by these officers with the respective tax collectors.</p> <p>With regard to the Audi tor, the only duty he owes to the relator or any creditor of the State is to draw a warrant if he or they are entitled to it. But relator has already the Auditor’s warrants, and he sets up no breach of duty in regard to drawing him a warrant.</p> <p>Relator does not complain that the Treasurer has funds applicable to file payment of his warrants, and refuses to pay them out of the treasury as reguired by law. Indeed, there is no ministerial duty that respondents have failed to perform in behalf of relator and that he has the right to require.them to perform.</p>

<p>The court a ana had power to order the sale of succession property, and, incidentally, to enforce a compliance with bids made by purchasers, or to order a resale of the property at the risk and expense of the purchasers. The defendant had refused to pay the price of the adjudication after a title was tendered him in open court on the return day of the rule.</p> <p>The object of the plaintiff in proceeding against the defendant was to render final and complete a matter pending and in abeyance in the court which had ordered the sale of the property. It was pro por for him to proceed by rule. By the silence of the defendant, after due notice, the plaintiff was entitled to the decree he prayed for.</p>

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

<p>APPEAL from the Superior Criminal Court, pariah of Orleans. Bratujhn, J.</p>

<p>The sale of the property in question in this suit divested all of plaintiff’s rights, including that under the homestead law. If he had any right to a homestead, lie should have assorted it prior to the sale. His personal notice to the sheriff and the plaintiff in the seizure and salo did not amount to a legal assertion of his right so as to secure or preserve the right of a homestead on the property under-seizure.</p>

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

<p>'Defendant, moves to dismiss tliis appeal because this court is without jurisdiction ratioup maierUe.</p> <p>.The Supremo Court has jurisdiction in questions of Taw only in criminal cases “ whenever the punishment of death, or imprisonment at hard labor, or a fine exceeding throe hundred dollars is actually imposed.” This ease is a criminal one, where no punishment has actually been imposed. The motion must prevail.</p>

<p>The property seized in this caséis shown to belong to the intervenors, Cavaroc &■ Son, ¡indis exempt from the lessor’s privilege under article 2708, Revised Civil Code.</p> <p>The contract between the intervenors and defendants and the evidence in the record show this property to be of the kind designated in said article 2708 — merchandise sent to the establishment of defendants to be “ made up ” or manufactured for intervenors, and which was actually manufactured and to be sold for their account either by themselves or defendants. By a special stipulation in the contract it was to be exempt from storage; while it is shown that intervenors are not, in any contingency, indebted to defendants under their contract.</p> <p>Under such circumstances, the property of the intervenors, which has been sold by-consent, cannot be held liable to the privilege existing against defendants in favor of their lessor, the plaintiff.</p>

<p>When tlie testimony is conflicting this court will not disturb tlio judgment of the judge a quo, who had the witnesses before him, and was doubtless controlled in adopting his conclusion by the weight of the presumption in favor of a holder of a promissory note as to ownership and consideration.</p>

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

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

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

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

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

<p>Section sixty-nine oí an ordinance oí tho city of New Orloans entitled “ An ordinance to establish the rate of licenses for professions, callings, and othor business, and for carriages, hacks, drays, and othor vehicles, for the year 1875,” is tho authority relied on by defendant to levy a license tax on tho vehicles owned by plaintiffs severally, and for seizing the same for non-payment — which seizure is enjoined by said plaintiffs.</p> <p>That portion of section sixty-nine which relates to the subject of this controversy is in conflict with article 118 of the constitution, as the tax for the license is in proportion to tho number of vehicles and the number of horses used to draw them, and not upon the business or vocation, nor is it upon the value of the proporty, if it bo intondod as a property tax.</p> <p>As for the other sums claimed by the city in reeonvention, as being taxes levied under said ordinance upon tho vocation or business of tho plaintiffs, they amount to only one hundred dollars against each plaintiff. This claim, therefore, is not within tho jurisdiction of this court, the legality of the tax as to that matter not being called in Question.</p>

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

<p>In this suit on a mortgage promissory not; the defendants allege in answer that they'are not a corporation, and the faculty is not liable individually.</p> <p>On the second of April, 1835, an act of the Legislature was passed, incorporating the Faculty of the Medical College of Louisiana and tne Medical College of Orleans with the usual powors and rights. By repeated legislativo enactments since that epoch, under our successive constitutions, that same corporate existence, now known as the "Faculty of the Medical Department of the university of Louisiana,” has been continued, so far, at least, as to preserve the rights of their creditors, with whom the faculty have dealt as shown in this act.</p>

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

<p>APPEAL irom tho Eifteenth Judicial District Court, parish of Terre-bonne. Beattie, J.</p>

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

<p>This is a cpies.tion of jurisdiction turning on the amount in dispute. This depends, of course, upon the sum which Redwitz, the appellant, is called upon to pay, to wit: $491, amount of the claim against him, eight, dollars interest duo, and tho costs of tho suit, sovonty dollars, in Gottsehalk vs. Meyer, a foreign non-rosi-dont, for whom Redwitz wont security. Therefore the sum demanded of Rod-witz was $569. This was tho dispute between thorn. This brings the 'ease within tho jurisdiction of tho court.</p>

<p>Attar a ease has boon submitted by a party on the merits, he will not bo permitted to flic a motion or to raise new issues, unless such authority be granted or reserved to him at the time he submits the ease.</p> <p>Tho attempt to invalidate tho title of plaintiffs to the property described in their petition is a failure. Bourgeois, from whom they derive their title, acquired in May, 1858, a good ono from Ifees, which was duly recorded, and tho protended salo from Kees to Meeg-el by private act in 1883 was a nullity, because it was tho sale of the property of another.</p>

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

<p>Till) defendant pleads that plaintiff’s claim has not been recognized by any court, and that individual creditors can not suo a discharged administrator to ronder him. liablo on his bond, at least not until ho has rendered an account. This court «an not indorse these views of the law. No one can take advantage of his own laches or tort; it is this nogleet or dereliction of duty which gives tho right of a personal action against the administrator.</p>

<p>It is roauirod by tho law that ths affidavit to the absonoo of tho district judgo bo mado by plaintiff, his agent, or attorney. Horo it was made by the plaintiffs’ attorney. This fulfills tho roguiroment of tho law. After having signod tho po-tition as attornoy, it was not necessary that ho should reiterate his capacity in tho affidavit.</p> <p>It has repeatedly been held that, as regards the executory process, this court will not look beyond the authority of tho act upon which the flat issued.</p>

<p>Tlie ease of tho State of Louisiana vs. the North Louisiana and Texas Railroad ¡Company, 25 An. p. 85, disposes of tho presont one, and in that easo this court held that tlie State has, by making the net No. 108 of 1808 tho basis of its suit, recognized and affirmed its constitutionality in regard to the adoQUato ways and means provided for tho payment of the eurront interest and the principal of tho bonds, and it also held that the act No. 97 of 1872 was not unconstitutional.</p>

<p>The defendants received the draft sent to thorn for collection, aecopted the agency, bnt failed to have protest made and notice given as it was their duty to do. It is shown that, at the time the draft was-presented, the drawees had funds of the drawer in their hands, and that the next day theyVeceived from him a shipment of cotton.</p> <p>It was the duty of defendants, as the agents of plaintiffs, to have promptly acted in causing protests to he made and notices given, especially to the drawer of the draft, in order to hold him, hut by their laches the plaintiffs have lost their recourse against him upon the draft.</p>

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

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

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

<p>Tho plea o£ autrefois aegwit or convict must ho made heEore verdict, and is not allowable as aground for a new trial, or arrest of judgment. In amotion in arrest of judgment, the party is confined to matters patent on tho record, and can not ' seek matters aliunde to support it.</p> <p>If the plea could bo a ground for now trial, as it must rest on facts to be established this court would be without jurisdiction to pass on it.</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. Jury trial.</p>

<p>There is no law in Louisiana which requires that foreign insuranco companies talcing policies in this State shall keep an agency within its borders.</p> <p>In this instance, within a year after the first premium was paid by plaintiff on the insurance of her husband’s life, the defendants withdrow their agency from Now Orleans. Notice of this withdrawal was published in one of the city papers; the plaintiff was informed thereof by letter. The fact was known to her; for the second year’s premium was forwarded to New York.</p> <p>As to the third year’s premium, no effort seems to have been made to forward the sum duo to Now York, and, the promiunj not haying been paid on the twentieth of August, 1868, according to the stipulation between tho parties, the contract was at an end on that day, and the plaintiff could not recover on hor policy, tho ' death of her husband occurring on the twenty-sixth of said month.</p>

<p>This is an appeal from tho refusal to grant an injunction. Defendant has also joined in tho appoal, praying for damages. As there has been no injunction granted, the defendant has no right to the twenty per cent damage? which ho claims in his answer to tho appoal.</p> <p>As tho appeal is moroly from an interlocutory order refusing to grant an injunction after hearing tho rule nisi, the appelleo has no right to ten per cent damages for a frivolous appoal. .</p>

<p>APPEAL from the Parish Court, parish of Ascension. Maher, J.</p>

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

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

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

<p>The Superior District Court, in granting the injunction complained of, having invaded the appellate jurisdiction of this court, the writ of prohibition herein granted was properly issued.</p>

<p>This is a suit oil an opon account and a promissory noto. Tho account is composod of many items, not one of which amounts to five hundred dollars. It is sufficient that ono witness swears that each of tho items is correctly slated in the account. As to tho promissory note, it is hold by plaintiff, who is, in law, tho owner thereof. Payment to him discharges the debt. There is no plea of want of consideration.</p>

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

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

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

<p>By section thirty-one oí the act No. 7 oí the extra session oí 1870, which constituted tne new charter of the city of Now Orleans, it is declared tnat the salary of the City Attorney shall be fixed by the Common Council at a sum not to exceed six thousand dollars per annum, and that he shall receive no extra compensation, nor shall any other attorney be appointed to assist him, unless by a vote of a majority of the Council.</p> <p>The proceeding to homologate the third drainage assessment, if instituted and eon- ■ ducted by plaintiff, was but the discharge of a duty devolving on him as Citv Attorney, because the law creating the office required him to represent the corporation “ in all proceedings and actions to which it was party.” There is noth- ■ 'ing in the record to show that " an extra fee was allowed by a vote of a majority ■ of the members of the Council,” or indeed that any vote was ever taken in regard to it.</p> <p>Plaintiff takes a fallacious position when contending that the act of 1861 in regard to the drainage districts, requiring, when the tabloau of assessment is homolo-gated, that the delinquent taxpayers shall be condemned in the additional sum of ten per cent for counsel fees and costs, entitles him to the remuneration claimed, notwithstanding the prohibitive feature of the city charter, because, as he alleges, the former is a special law, and is not repealed by the latter, which is ■ -agen rral law. The error lies in assuming that the charter of the city is a general law. Both acts are special statutes, and ,the latter is the law applicable to ’ the claim for extra compensation sot up by the plaintiff.</p> <p>Plftintiff’is estopped from denying that the ownership of the judgment in ques- ■ tion is in the city of New Orleans by the judicial admissioris, in the petition for the homologation of the tableau of assessment — which petition he filed, ■as he says, through his subordinate, Rufus waples, the Assistant City Attorney. In that petition on behalf of the city of New Orleans to homologate, the drainage assessment, it is alleged that the city was subrogated by law to the ' rights, powers, and facilities possessed by the commissioners of the several drainage districts, and judgment is prayed in favor of the petitioner in the ..capacity aforesaid.</p> <p>An attorney-at-law, in the face of his own judicial admissions in a suit which he brought for his client, can not bo permitted, when he comes to sue to be decreed a part owner of the judgment thus obtained, to allege that his former client had . no interest in the suit, and therefore has no interest in contesting with him in •regard to the title or ownership of said judgment.</p> <p>The exigencies of plaintiffs ease have forced him to the position of maintaining that New Orleans is really not the owner of the judgment in controversy, and therefore has no right to set up legal defenses against him; but, should this be true, he has no cause of action against New Orleans, and had no right to bring her into court.</p> <p>New Orleans is the real beneficiary in the drainage laws. She is the owner of the judgment against the delinquent taxpayers, and is the person entitled to enforce its collection. A party who has the exclusive right to merge a claim into a judgment, and after judgment to make the money on execution, must be regarded in law as the owner of said judgment.</p> <p>The Mississippi and Mexican Gulf Ship Canal Company have no direct interest in the judgment the title to which is the subject of this controversy. If every cent due in consequence of said judgmont should at once be collected, or at once be lost, the Mississippi and Mexican Gulf Ship Canal Company would neither be enriched nor impoverished.</p> <p>The Mississippi and Mexican Gulf Ship Canal Company have, however, an indirect interest in the judgment. They arc the contractors to do the work of draining, the city under the supervision of the city surveyors. They have an interest in the solvency of the party for whom they are employed to work, and as the work progresses from month to month they may require payment out of the funds set apart for the purpose.</p> <p>The fact that the State mado the contract in behalf of the city affects the interest of New Orleans in the beneficial results contemplated by said act no more than if the contract had been made by the city herself, and the fact that, under this contract, New Orleans is required to apply the procoeds of the judgment, when collected, to the discharge of the debt for keoping-up the drainage of the city, does not impair kor ownership of the judgment against the delinquents any more than the obligation incurred by the city to apply any and evory other resource to the purpose for which it was appropriated.</p> <p>The above-mentioned prohibitive clause of the charter of the city of New Orleans defeats also the pretensions of Waples, the intervenor. He was not employed by a vote of a majority of the City Council, and therefore can not compel the city to allow him a fee in the case.</p>

<p>Tilt! court, a tj.ua in this case pcrpctuntoiL the injunction so far as to suspend tlio. execution of a judgment to the amount of four hundred dollars, credited on the judgment, and in other respects dissolved it without damages and at the costs of the plaintiff in injunction.</p> <p>.The defendant, having obtained a, new trial, moved to dissolve the injunction on matters apparent on the face of the papers, stating:</p> <p>First — That the plea is one of compensation.</p> <p>Second — That the lawpj'ohibils tlie injunotion of an entire judgmont, under a ple.a of partial set-off.</p> <p>Third — Insufficiency of the bond.</p> <p>The court below decided correctly that, in relation to the' first ground, the plea that the judgment, was credited with four hundred dollars must bo taken as true for the purpose of the rule; and in relation to the second and third grounds, that they were good; that a bond for double the amount of the sum claimed to have been paid should have been given.</p> <p>Jlut, in conformity with the jurisprudence of this Slate, the judge, a tjiw properly ruled that, although an injunction may have been imprudently granted, it will not be dissolved when it is plain from the record that the party would bo entitled to the writ immediately.</p>

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

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

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

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

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

<p>Here til» given name of the deceased, in (lie suit of the city of New Orleans vs. (lie estate of Samuel Stewart, is mentioned, and the constitution itself, as wall as the statutory law, contení plates that a “ succession ’’ may he. a plaintiff or defendant. This word “estate.” is.,synonymous witti “succession.” This disposes of the objection that there was no defendant before the court, the notice having been published according to law.</p> <p>This suit not being probale is not embraced in the provisions of section seven of act No. 78 of 1872, nor in the clause in act No. 2 of 1872. on this subject, in relation to section live of act, No. 2 of the special session of 1870.</p> <p>But, if it lie conceded that section seven of act No. 78 of 1872 is still in force, the jurisdiction of tax suits against successions given by it to ilio Second District Court is merely concurrent, and not exclusive,. This disposes of the objection that the judgment appealed from did not order the taxes to lie paid in due course of administration. This requirement of the law applies to probate matters.</p>

<p>The pltsu of proscription oí ono, two, and three years is not applicable to the account sued upon, which is for the reimbursement oí outlay, moneys advanced, provls--ions furnished, etc., for the use and benefit of the defendant by the plaintiff as neguliorum i/mior, and which can be prescribed only by the term of ton years.</p> <p>The written acts themselves declared upon in defendant’s peremptory exception to. plaintiff’s claim, must interpret themselves, and parol evidence can not be introduced by said defendant to establish a general settlement of affairs between himself and plaintiff different from that alleged in said defendant’s peremptory exception.</p>

<p>The court a gjia, decided properly in requiring tho balance duo oil tho note of Elliot, after exhausting tho mortgage given to secure it, to be deducted from the mass of tho ostato before tho partition. It was a debt of tho deceased. Tho consideration thereof is immaterial. Mrs. Elliot must contribute to pay it, because the slatuto of Mississippi “gives hor one-half of the personal estate after paying the debts of the deceased.”</p> <p>The assets having boon placed in bank by order of tho court pending litigation, the loss thereof occurring by tho failure of the bank must fall equally upon both the owners of said assets, Mrs. Burke, the universal legatee and testamentary execu-Irix of the deceased, and Mrs. Elliot, his wife. Mrs. Burke was under no obligation to protect Mrs. Elliot fi'om loss occurring to funds not under her control. Being a half-owner, Mrs. Elliot had as good an opportunity to pursue the delinquent bank, or clerk, if they were in fault, as Mrs. Burke.</p> <p>The item of live hundred dollars charged by Elliot’s attorney for having, among other services rendei-od. “ entei'ed upon the business of securing evidence” for a contemplated suit for separation between Elliot and his wife, which was never brought, can not be regarded as legitimate. An attorney ought not to recover on such a demand. Tho court below' erred in not rejecting this item so far as Mrs. Elliot is eoneornod.</p> <p>Mrs. Elliott does not occupy the, position of lieir. The moment the doath of hor husband occurred, she was by tho laws of the placo oí thoir domicile (Mississippi) vested with tho. ownership of ono-half of the personal estate alter paying the debts of the deceased. Therefore the judge a ano did not err in deciding that she was not liable, to contribute, to tho payment of tho attorneys omployod by tho universal legatee and testamentary executrix. There is no, more reason why Mrs. Elliot should contribute to pay Mrs. Burke’s attorneys than tho latter should contribute, to pay the foes of tho attorneys of tho former.</p>

<p>The only question in this caso is, whether or not, the nica oí list pendens should be maintained in an executory proceeding.</p> <p>Here the writ in the first suit having issued for too much, was returned into court, tho costs were all paid, and, instead of ordering an alias writ on a prayer for moro than tlio amount really duo, the plaintiff filed another petition and prayer for the correct sum and obtained a now order. Tho second petition was, under tho oireumstaneos, a virtual abandonment of the first, or merely supplemental' thereto, changing tho amount claimed on tho same note. It is certain that, the plaintiff could not have proceeded oil both orders at tlio samo time to sell the same property under the one single mortgage, and tlio defendant has no ground of complaint as to tho second order.</p> <p>The executory proceeding is not a suit in the ordinary signification of the term, but is merely tlio aid of tho judicial power to give force and effect to what is equivalent to a judgment confessed; and when there are actually no proceedings pending oil tho petition filed there can be soon no reason why another demand for a writ may not be filed, provided the defendant is not injured thereby, and in this ease no injury or any annoyance could result to the defendant by the filing oí the second petition for the executory process.</p>

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

<p>HPEAL from the Superior District Court, parish of Orleans. Jhm-kiiix, J.</p>

<p>APPEAL from tlie Fourth Judicial District Court, parish of Bt. Charles. Flatjij, J..</p>

<p>1’REAL from the Fifth District Court, parish of Orleans. (Jullom, J.</p>

<p>Where Hiere luis born no testamentary disposition of this disposable shave ol the predeceased husband or wife in the community, the survivor shall he entitled to a usufruct, during his or tier natural life, of so much of Hu- shareoflhe deceased in such community properly as maybe inherited by his or her Ihmic -proceeding from said marriage.</p> <p>The condition upon which Hie survivor shall haven usufruct is,-that the preducea-ed husband or wife shall nol have disjiose.il of his or her shun — Unit is the share that lie or she was permitted by law to dispose of.</p> <p>In the case at liar the disposable (tuanlmu was one-third of the property of the deceased; and the surviving widow has aeuuired this third in hill ownership by testamentary disposition.</p> <p>If the usufruct of the share of the deceased was more desirable than the full owner- ■ ship of ime-third thereof, the sm-yiving widow could have renounced the legacy. As she prefers the rights aeuuired by the will to those accorded to her by law, . she lias no canse io eomplaiu. She can nol hold both.</p>

<p>PPEAIj from the Second Judicial District Court, pariah of Plaque-mines: Pardee, J.</p>

<p>.4 PFEAL from the Superior District Court, parish of Orleans. Hawkins, J.</p>

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

<p>Considering sections one,three, four, five, of act 118 of tlio acts of 1869, which statute creates the defendant company, and confers all the rights and franchises it enjoys, and considering that part of the title of tho act which declares one of its offeets to be, " to locate tho stock-landing and slaughter-houses,” the conclusion is, that tho location of stock-landings and slauglitor-houscs contemplated .by this statute was a permanent and not a temporary location; that the corporation had no authority to move the grand slaughter-houio which it erected, pursuant to tho third section of this act, from tho right bank to the left bank of the river; that while it lias the right to establish as many slaughter-houses as may bo necessary, the corporation, having located and established the grand slaughterhouse required, as a condition precedent to tho enjoyment of the franchises conferred by said act No. 118, had no right to close it or remove it to another locality, because it was a lawful place for plaintiff to pursue his occupation, and defendant has no right to close it and compel him to go to another place.</p> <p>After selecting this locality, and compelling the butchers to repair to it, tho defendant, in tho absence of an express power in the statute, will not be permitted to compel them to discontinúo their business at this place, and follow the corporation to such other locality as its judgment ór caprice may dictate. The intention of tho statute was not to confer this arbitrary power upon the corporation. Its main object was to-protect tho health of the city of New Orleans by requiring the slaughtering of animals to be dono within the designated limits and at one or more slaughter-houses for convenience of inspection by tho proper officer; and tho corporation was invested with certain franchises, provided it located, erected, and oponed to public use by the ilrst day of June, 1809, a grand slaughter-house of sufficient capacity to' accommodate all butchers, and in which to slaughter five hundred animals per day. This slaughter-house the statute clearly requires to be kept open; and the plaintiff was entitled to the injunction which he sued out in the court below.</p>

ON plaintiffs motion that defendant show cause at the time fixed why the agreement to submit the above entitled caso should not be submitted on the briefs now on file and to be filed within ten days.

<p>Prom tlie pleadings in this ease, and from the evidence in the record, it is unquestionable:</p> <p>Hirst — That the bonds, which are the subject of this controversy, wore issued under and by virtue bf legislative authority.</p> <p>Second — That the proceeds thereof went into the State Treasury, and were appropriated for a purpose vital to the interests of the public.</p> <p>Third — That the bonds in suit are in the hands of a bona fide holder, who purchased them in open market, and for a valuable consideration; and that the acts under which they were issued are not unconstitutional.</p> <p>Therefore, the intervenor, Prank Morey, is entitled to have the bonds in question ■ funded by the Funding Board according to law.</p>

<p>E. J. Gay & Co. have enjoined the sale of ten hogsheads of sugar seized in December, 1K71, by abridgment creditor of william P. Burton, the lessee of the Areola plantation. The injunction is on tho ground that they are tho owners of tho sugar; that, by a verbal agreement in tho early part of that year, made by them with Burton, with tho knowledge and concurrence of Burton’s lessor, they, at their own cost, cultivated tho plantation that year as owners of the crops produced. Tlieleaso between Burton and his lessor was a notarial one, and recorded. E. J. Gay, under the verbal agreement with Burton, wont on the plantation, took possession, and controlled its administration. Subsequently he constituted Burton his agent, representative, and manager, furnished all the supplies, and the whole crop was shipped to sajd Gay & Co.</p> <p>It is nocossary to allego fraud and simulation in order to introduce evidence to that effect.</p> <p>The objection of the defendants, based on tho ground that the verbal agreement between plaintiffs and Burton should, to affect third persons, have been reduced to writing and recorded, is of no weight in the present case. An incorporeal right only was transferred. Tho transfer was a lease — the right to E. J. Gay & Co. to cultivate the plantation that year for their own benefit. There was no debtor to give notice to as required by the Civil Code, article 2G93, but the notice of the transfer was given to the lessor, and approved by him.</p>

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

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

<p>Plaintiff had j udgmont for fifty-four dollars, tlie amount claimed, but the parish judge refused to order an assessment to be made on the tax-roll because he said that the police jury of the parish had already levied the maximum tax allowed by the eighth section of the act of 1870, No. 08, and under act No. 17 of 1872.</p> <p>The legality of a tax, toll, or impost, fine, forfeiture, or penalty imposed by a municipal corporation, not being at issue here, this court is without jurisdiction.</p>

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

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

<p>In this suit against the treasurer of the parish of Rapides and his sureties said sureties wore not entitled to plead discussion before the judgment. Under the statute they can reauiro the principal’s property to be sold before theirs can be seized.</p> <p>No mortgage is created by the registry of the official bond against the security; the mortgage exists only upon the real estate of the principal obligor therein. Hence the judgment of the court below recognizing a mortgage against the property of the sureties is wrong.</p>

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

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

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

<p>By acts oí 187», section two, page thirty-eight, exclusive, jurisdiction is given to the Superior District Court of tax suits.</p> <p>There is no force in the plea that the assessment or publication was improperly made in the name of Mrs. J. A. Ferguson simply, and that the words “óslate of ” wore not added as they should have been, considering that the assessment was made after her decease. The sole purpose ingiving the name at all being to describe or identify the properly taxed and the tax assessed, it is evident that the addition of the word “ estate ” would no moro clearly indi"ate that the pro port y taxed is that known as Mrs. Ferguson's.</p>

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

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

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

<p>This suit was improperly brought in. the parish of Orleans. The Superior District Court had no jurisdiction rations inaierhe, defendant-being a resident of the parish of Plaquemines.</p>

<p>APPEAL from the Fifth Judicial District Court, parish of East Felici-ana. Dewing, J.</p>

<p>upon its face, the obligation which is the foundation of the note on which tho estato Of Jabez Tanner is sued was prescribed when tho note was executed. It purports to have been done for work done and money advanced. That portion of tho alleged debt which was for work done, if plaintiff was a laborer, was prescribed by one year. If an overseer, his claim was barred by three years. That portion of it which was for money advanced was also barred by three years. If the note was given, as alleged, in renewal of another note, which could not be paid, and , which represented a large sum of money due to plaintiff, this second note which is the note sued on, is dated February 11,1807, and this suit was instituted on tho twelfth of November, 1874. Again, prescription has run, and is not interrupted • by payments said to have been made at different times down to the first of January, 1872; these alleged payments appear by indorsements on the back of the note. But they are not signed by any one. The judge a quo erred in permitting parol evidence to prove their verity.</p> <p>It is contended that a clause in a lease offered in evidence is a written acknowledgment of the debt sued upon, which takes it out of prescription. But the lease having been entered into on the thirty-first of December, 1868, more than five years had elapsed before the institution of this suit. Prescription, therefore, had again been acuuired.</p>

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

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

<p>It appears that the note sued upon was paid through Mouton, who was dolendant’s commission merchant in New Orleans, from the pi'oceeds of defendant’s cotton in his merchant’s hands. Mouton, after he paid the note, pledged it to Cavaroe, who transferred it to plaintiffs. Mouton’s account with defendant shows that he paid the note, as stated, and charged the amount to said defendant. Therefore the note was part due when it went into Cavaroc’s hands. Plaintiffs can not recover upon it.</p>

<p>Act No. 2(1, approved February 17,1889, created a conditional obligation of tlio State to' guarantee the second-mortgage bonds of the Now Orleans, Mobile, and Chattanooga Railroad Company.</p> <p>Before, however, the condition happened, there was a constitutional amendment adopted in November, 1S70, prohibiting an increase of the State indebtedness beyond twenty-five millions of dollars, and this limitation had clearly been reaelied.</p> <p>IC the conditions stipulated in tho act had been complied with when tho Governor indorsed the guarantee ol' the State on the second-mortgage bonds of said company, no debt would be'created’thereby in violation of tlio constitutional amendment then in force, boeauso said indorsement would only evidence a valid obligation of the State incurred prior to the adoption.of tlio constitutional limitation. It would evidence, an unconditional obligation resulting from tho performance by said company of the stipulations contained in said act of i860.</p> <p>But if, as the evidence shows, tlio conditional obligation had lapsed when the Governor indorsed tho guarantee on said bonds, that indorsement of guarantee would be tho creation of a now debt, which was prohibited.</p> <p>The Governor, in indorsing- tlio bonds, was a fiduciary, discharging tho powers conferred on him by act No. 28 of 1889, but these powers woro modified by tho constitutional amendment supervening between this grant of authority and the oxcr-eiso thereof; and all parties acquiring said bonds wore charged with notice of the authority of tlio fiduciary who indorsed thereon tho guarantee of the State.</p> <p>But for the constitutional amendment, the indorsement of guarantee would, under section ten of the said act of 1889, bind the State, as to relator, or any Tjonn, fide third holder of said bonds, whother tho stipulations of said act had been complied with or not by said com puny.</p> <p>It tlio General Assembly could not create a debt when the'bonds in question were guaranteed, and that was the, creation of a debt, they could not by enactment provide that tho Governor’s certification of guarantee shall bo the conclusive proof of an indebtedness by tlio State, and thereby out off the j udiciary from inquiry into the validity of tho obligation arising from such guarantee.</p> <p>The State could not revive by ratification or otherwise the obligation that had lapsed by the failure of tlio Now Orleans, Mobile, and Chattanooga Railroad Ctomp any to' comply with the stipulations o£ the act ot 1869, because at the date ol the alleged acquiescence tho constitutional amendment was in force. Hence said bonds arc not valid obligations of the State, and can not be funded.</p> <p>This court is also of opinion that the funding of those bonds is not provided for by the funding act No. 3 of the acts of 1874.</p> <p>If the funding of those bonds had been contemplated, tho Board of Liquidation would not have been required to cancel and destroy thorn, and thereby defeat the possibility of recovering against tho makers of said bonds personally, as well as the right resulting from tho mortgage.</p>

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

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

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

<p>where the defendant, through his agent, agreed to purchase the plaintiff’s plantation for a fixed price, .subject, to an examination of the title, and’ defendant's counsel, after examination, advised him that the title was not good, whereupon he refused to buy, this is not a non-compliance of contract on account of which plaintiff is entitled to recover damages from defendant.</p>

<p>The law requiring an estimate of the necessary expenditures of the parish to be made and published is mandatory.</p> <p>The law which imposes one hundred per cent as damages for wrongfully enjoining the collection of taxes does not apply to assessments 'made under an order of court to pay a judgment against the parish.</p>

<p>'.The motion oí defendants to dismiss this appeal on the ground that the order appealed from is an interlocutory one that can not work an irreparable inj ury must prevail.</p>

<p>’ This is a suit on two promissory notes. Several grounds ol defense are stated in the answer, but it is sufficient to notice only one ol them; which is, that the police jury oí the parish of Concordia had not the power to create a debt by borrowing money, or to bind the parish by issuing negotiable instruments by whielx to raise money.</p>

<p>Plaintiffs sue to recover seven thousand dollars under a certain contract with defendants. The only contract which defendants authorized to be made was to build a house not to exceed one thousand dollars in value. Certainly, under this authority the parish can not be made responsible for a building which cost seven thousand dollars.</p> <p>Put the ends of justice will be subserved by rendering a judgment of non-suit, instead of an absolute judgment against plaintiffs.</p>

<p>To tho rule taken by plaintiffs on tlio sheriff to show cause why ho should not bo hold in contempt, and why he should not obey the order roauiring him to sell tho personal property oí defendant attached by them, the answer of tile sheriff that the property was already under seizure and advertised to be sold at the next regular sale-day in obedience to a writ of fieri facias in his hands, was sufficient. Tho first Saturday of each month is tho day fixed by law for all sheriff’s sale s, and this applies also to sales of personal property ordered pending an attachment.</p>

<p>On the twenty-ninth o£ December, 18B9, Mrs. Hickman appeared before a notary public for the parish of Rapides, and, under oath, declared that she was indebted to her children in a certain sum of money, on account of the succession of their father, she being their tutrix, and that they have a general and tacit mortgage on all her property, dating from tho death of their father, in December, 1883, to secure said sum of money..</p> <p>■The question is, whether plaintiffs have any tacit mortgage upon the land in controversy, whose ownership is claimed by defendant, and which formerly belonged to their mother and tutrix, and, if they ever had a tacit mortgage, whether it perished for want of proper inscription prior to tho first of January, 1870.</p> <p>Tho declaration of tho mother and tutrix is the only evidence of the existence of the mortgage. In a suit, against their mother, judgment was rendered in accord- . anee with their petition, with mortgage upon all tho lands of their mother and tutrix in the parish of Rapides, to date from tho thirty-first of December, 1875. The question is not whether plaintiffs’ rights are to be governed by tho judgment which they obtained against their tutrix, for tho defendant was no party to that suit, but whether tho-ovidence of the minors’ mortgage was recorded in the manner and in the time and form required by law. Textually, it was not.</p> <p>Tho requirements of the law have not been complied with, and the declaration of tho tutrix of her indebtedness to her children, and the recording of the same, is not the evidence the law required in order to secure the mortgage which the minors had upon her property, and which tho constitution declared should cease to exist at a certain date, unless made to appear in a manner which tho legislature was authorized to designate.</p> <p>The fact that the evidence which alone prescribed the mortgage was destroyed does not better the plaintiffs’ ease. At most it is a casus omissus which the court can not supply, and if tho missing evidence could be supplied, this should have boon done by the officer whose duty it was to cause the evidence to be recorded.</p>

<p>'Tlie court below corre,etly hold that this suit was virtually a petitory action brought against Mrs. Martha A. Davidson, tho lessee oí Joseph Car-roll, and that the executrix of said Joseph Carroll, the lessor, had the right to come in and defend the suit.</p> <p>It was tho duty oí plaintiffs to have made the lessor and owner of tho property in dispute a party to the suit. Nothing could be accomplished without it, as the title of Mrs. Martha A. Davidson was divested by the sale on the execution of Carroll, Hoy & Co., and passed to Joseph Carroll. It was the duty of Mrs. Carroll, the executrix of the estate of her husband, to defend the suit and protect her lessee Mrs. Martha A. Davidson, from execution.</p> <p>The property was sold by order of court to pay debts after the homologation of the tableau. It was not necessary to provoke tho appointment of a family meeting and obtain their action to make a valid sale of the succession property.</p> <p>It has frequently boon hold that a sale to pay debts may be made for less than tho appraised value.</p> <p>The administratrix and widow in community was a competent purchaser.</p> <p>Furthermore, tho salo could not be disturbed, unless the plaintiifs had previously returned or offered to return the price of adjudication, which has not been done.</p>

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

<p>A motion is made, io dismiss tlio appeal oil the ground that tlio police jury, who arc tlio only appellants, have voluntarily executed the judgment o£ the lower court. The counsel for the appellants answer that this court can not take cognizance of the documents annexed to the motion mid which appear here for the first time and as originals. This eourt, in tlio absence of consent, express or implied, to consider new evidence before it, must adhere to what it believes to be the settled jurisprudence of tlio State.</p> <p>This court has jurisdiction of a cause ns tried, but not of facts not passed on in the lower court, and can receive no new evidence. Consent can not give jurisdiction, but, having jurisdiction of a cause, this court may, it seems, consider facts pr '- sented by consent. This has not been done in this instance. The case must b ■ remanded.</p>

<p>It is true the amount o£ a bond is not fixed in the charter oí the city of Natchitoches. Considering, however, sections five and ten oí the charter of 1872 (being act ninety-thfoo oí that year), there etui he no doubt the Council had tho right to pass tho ordinance! roouiring a bond and fixing the amount thereof for the tax collector.</p> <p>Assuming, as defendants contend, that plaintiffs wore guilty of laches in not requiring the collector to make monthly reports as ho ivas in duty bound by an ordinance of the Council, it would not discharge tho sureties.</p> <p>Parol evidence was properly excluded to show the Council had granted an extension of time to thcollector to make his settlement. Had they granted a few months <1 'lay to make his settlement, it would not have released tho sureties.</p> <p>Th • c mrt a win.properly excluded tho testimony of a witness as to whether tlio collection of the quarantine tax was covered by the bond of the collector. Tho r.spousibility of the sureties must be determined by the law, and not by the opinion, of witnesses. '</p> <p>The objection that the plaintiffs are not rightfully Mayor and Couneilmon of Natchi-toches can not bo considered in this proceeding. They are in office, and their rights thereto are not to be determined here.</p> <p>Interest on the judgment against tlio sureties should be allowed from judicial demand.</p>

<p>APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Thomas Butler, special judge.</p>

<p>A PPEAL from the Fourteenth Judicial District Court, parish of Morc-_ol house. Bay, J. Criminal case.</p>

<p>This is an action íor tho balance of two notos, which it is alleged tho dofend,ant as- • sumod to pay as apart of the price of the “Live Oak” plantation, in the parish of Concordia, purchased by him from James B. Packard.</p> <p>Defendant can not be permitted to contradict by parol testimony the contents of a notarial act.</p> <p>Defendant can not be permitted to prove that tho motive of the contract was to secure a debt when the contract itself proves it to be a sale.</p> <p>Defendant's authority to his agent to accept tho act of sale ratifies it as such, and has the same effect as if defendant himself had accepted it unconditionally, and he can not be permitted to go behind it and contradict it.</p> <p>Plaintiff was not present at the conversations between the defendant and Packard. They are not admissible as evidence against her.</p> <p>But tho evidence as admitted in reference to the sale only shows tho original intention of the parties, which was afterward changed, tho defendant subsequently concluding to accept the act of transfer containing tlio assumption of these notes as a part of the price, leaving tho matter between him and the vendors to some future arrangement, which is not shown, and does not affect tho validity of the assumption to pay these notes as a part of the price of tho property purchased by the defendant. His subsequent effort to change this notarial act was purely ex parte, and was never acceded to by tho vendors.</p> <p>Tho denial of the right of the plaintiff to those notes because one only is indorsed, and it was indorsed by tho payee, a married woman, without special authority by her husband, was not made in tho answer, and as the defendant is not the maker, but is bound only by his notarial agreement, and the identity of the notes is not denied, the question in which defendant is concerned is, whether he can safely pay to the present holder. Of this there can bo no doubt, if this notarial obligation is binding, and this court thinks it is binding.</p>

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

<p>The advertisement under which the adjudication of the ferry was made to defendant states that the adj udicatee may satisfy his bid either with currency, certificates of indebtedness of the parish, or parish, warrants. Had the defendant tendered, as he alleges, certificates of indebtedness in satisfaction of his debt, the judgment of the court a qua authorizing defendant to pay the price bid with said certificates of indebtedness would have been correct. But there is no evidence of any tender of such certificates in the record before this court.</p>

<p>Plaintiff sues defendant for an alleged balance due on the purchase by the latter of the interest of the former in their commercial partnership and certain items which plaintiff avers the said partnership owed him prior to the said sale of his interest, and which he says wore included in the debts assumed by the defendant. "Without clear proof that such a claim by the soiling partner was expressly assumed by the purchasing partner, it will be considered included in fixing the purchase price of the interest sold.</p>

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

<p>It is shown that Bowles; who is holder of the note of plaintiff that fell due on the first of January, 1873, became the owner of it in the spring of the year 1872. No successful effort has been made to overcome the presumption that he is a bona fide holder before maturity, and without knowledge of equities that may exist between the prior parties. This, then, disposes of the case adversely to the plaintiff in injunction.</p>

<p>This court does not see how the discharge in bankruptcy of Joseph B. woolfolk, who before going into bankruptcy had sold to Austin Woolfolk a certain piece of property mortgaged to Labauve, can free said property from the incumbrance in favor of Labauve, whose mortgage was not interfered with by the sale. The mortgage was on the property when Austin Woolfolk bought it, and it is there now.</p>

<p>The defendant in rulo is not entitled to call in warranty Julius Aroni, who, in a separate act, had agroed to warrant his eo-obligor, Thomas It. Sutton, from liability on the appeal bond which they both signod. The liability of Sutton on the appeal bond had been fixed by tho return of nulla bona on the fieri facias issued by plaintiffs against the defendants in execution; and the legal representative of Sutton, the surety, had no right to dolay the summary proceeding of plaintiffs in order to enforce tho obligation of Aroni in favor of Sutton to which plaintiffs were not parties.</p> <p>As the ruling of tho court in refusing to strike out tho call in warranty subjected plaintiffs to unnecessary delay in the enforcement of their claim, they had a right to appeal.</p>

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

<p>Tlie record shows tliat the heirs of Mrs. Desire Tanner, including the minors Holm through their deceased mother, owned a plantation in common, and that, for the purpose of cultivating it, they determined to execute a mortgage thereon to raise the necessary funds. A family meeting was duly convoked, who decided that it was to the advantage of the said minors that a mortgage should be executed on their ono-flftli of said property for said purpose. Their deliberations wore homologated, the execution of the mortgage ordered and duly effected to socuro the note sued on and identified with the act of mortgage. This is in conformity to the law and jurisprudence of this State.</p>

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

<p>In this suit against the indorsor on a promissory note, no demand, having boon made o£ the maker, the indorser is discharged..</p>

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

<p>The law declares that the act or other evidence of debt must bo recorded on the day that the contract was entered into in order to give such privilege a preference over creditors who have acquired a mortgage. The impossibility, as alleged, of registering the particular contract in this ease can not vary the law or its interpretation as fixed by the established jurisprudence of the State.</p>

<p>In making out the descriptive list ior the hoard ol assessors, plaintiff, tax collector, was merely performing a duty pertaining to his office, for which the State had provided suitable compensation. Indeed, it prohibited him from receiving more than two thousand dollars, and reauired him to be paid by tho State Treasurer on the warrant of the Auditor of Public Accounts.</p> <p>That part of the ordinance of the police jury allowing remuneration for a service which was a duty imposed by law on the tax collector must he regarded as a mere gratuity, and it can not he the basis of a valid demand against the parish. A police jury has no authority to bestow a liberality on any one.</p> <p>Plaintiff, however, is entitled to reasonable compensation for making out tho parish tax-rolls, but he has failed to prove the value of this service.</p>

<p>I£ intervenor’s suit be considered as founded on a sale, there was not á delivery so as to preclude the creditors of the vendor from seizing- the property for their debts; and if it be viewed as a giving in payment, it was ineffectual for want of delivery.</p>

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

<p>i -PPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Ilougk, J.</p>

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

<p>Tliis is a suit in injunction restraining- tho defendants from interfering with the plaintiffs in the possession and enjoyment of a certain piece of property alleged to ho inherited from their father and for judgment annulling a certain act of mortgage illegally granted thereon by tlioir mother, and also annulling the sale of said property by the sheriff to tho defendants, perpetuating the injunction, decreeing the said property to belong to plaintiffs and to be exempt from execution for debt as their homestead, and for one thousand dollars damages.</p> <p>The defendants rely on a clause in the original act of purchase of said property by Mrs. Honora Kerwin, authorized and assisted therein by her husband, the father of the plaintiff heirs, in tho following words: “ The said Mrs. Kerwin declared that she makes the present purchase with her own funds, which she acquired from her late father and mother, and with a portion of which she has paid the hereinbefore mentioned purchase-price, and is to pay at their respective maturities the notes heroin granted and described, wherefore, the property herein sold is to be and remain her paraphernal property.”</p> <p>Articles 2230 and 2238 of the Code do not apply here. In this ease tho claim invoked is not an agreement between the vendor and vendee, but simply an acknowledgment by the husband and wife as between themselves. Agreements or acknowledgments between husband and wife are restricted in their effect and operation to specific subjects, and the one in this case can at most be only a commonee- ]>■ "lit of proof, and the heirs of tho husband are not estopped from questioning it as they might be if the acknowledgment was in favor of any one other than his "wito.</p> <p>The authorities cited by the defendants do not apply to this particular acknowledgment of tho father in regard to the paraphernal rights of his wife, which are fixed and regulated by special laws. Could such declarations bo conclusive against.the heirs of either spouse, it would be an easy, matter to change tho rights of succession and tho character of separate and community property.</p> <p>As to inconsistent and contradictory allegations in the petition, if there bo such, the right of tho defendants is to require plaintiffs to elect or to object to evidence at tho right time, but not to dismiss tho suit. If the allegations of the petition be true, there is a sufficient cause of action, and the heirs of tho father should havo an opportunity to try tho issues presented. Wherefore, the ease is remanded.</p>

<p>APPEAL from the Twelfth Judicial District Court, parish of Franklin. Taliaferro, J. Criminal case.</p>

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

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

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

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

<p>Tho administrator excepted, to tho rulo on him to show cause why ho should not bo dismissed for not filing a full account as ordered by the court, and averred that the action for removal must be instituted by petition and citation as required by law. The court below overruled the exception and dismissed tho administrator on tho second day after the rule was taken.</p> <p>This was irregular, and in violation of articles 1017 and 1018 of tho Code of Practice. The account of the administrator, if not full and accurate, should have been opposed and overruled in the usual manner. If there was a cause for the removal of the administrator, it should have been effected in the form proscribed by law.</p>

<p>This suit is against the parish, a juridical person, and the appellants are third persons who claim that they are taxpayer’s, and therefore have an interest. But they have failed to allege or to show that they have a pecuniary interest in the suit exceeding five hundred dollars, and there is no affidavit showing that they are taxpayers. The appeal must be dismissed.</p>

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

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

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

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

<p>APPEAL from the Fifth Judicial District Court, parish of East Feliei-. ana. Fosey, J.</p>

<p>Tlio testimony shows satisfactorily that the plaintiff has hold continuously the note upon which tlio mortgage was predicated, and the same on which she proceeded i'ia exeeutiva; it is also clear that she was not a party to the proceeding by which it is pretended that said mortgage was erased,-and that she know nothing of it.</p> <p>The mortgage contains the pact de non alienando, which enables the holder of the mortgage to proceed against the property into whose hands soever it may have passed, unless by some act or admission she has lost her right to this remedy.</p> <p>There is no force in the intervonor’s plea that such an admission or-estoppel results from a certain suit instituted in the Second District Court by the plaintiff in the matter of the succession of Scott. The case, it seems, was tried and decided against the plaintiff, a new trial was granted, the suit was discontinued, and the present one brought. There was then nothing like an admission of any sort made, or act dene, which barred the right of the plaintiff to proceed now in the manner in which she has proceeded.</p> <p>As to the judgment decreeing the erasure of plaintiff’s mortgage, it was obtained through fraudulent moans, and is therefore without effect. The plaintiff’s rights wore not compromised by these proceedings, which were, as to her, res inter alios acta.</p> <p>That the intorvenor should be protected as an innocent third purchaser who was shielded by the mortgage certificate at the time he purchased can scarcely be conceded, whore, as in this ease, the effect of the protection would be to destroy the rights of the holder of the mortgage, who was entirely innocent of all participation in the acts which exposed the intorvenor to loss and injury.</p> <p>ft lias been frequently held that a mortgage certificate is only prim,a facie evidence of the facts staled in it. The mortgagee may show that the mortgage certificate is untrue; that the recorder acted on insufficient evidence; or, in case of erasure by judgment, that ho was not a party to the action brought or proceedings instituted to cancel his mortgage. In such cases the mortgage exists unimpaired, even against tlio innocent vendee who has bought on the faith of a certificate that there was no mortgage on the property.</p> <p>Not only were tlio proceedings in the Second District Court to erase the plaintiff's mortgage not binding on her, becauso she was not a party thereto, but, furthermore, that court was without jurisdiction to adjudicate upon her rights, it being a court of merely probate j urisdietion.</p>

<p>Tho succession. o£ Benton obtained judgment against tho succession of Anderson, and two days thereafter, without authority of court and on his own responsibility, the administrator of the succession of Benton transferred or rather signed a private a-t transferring said judgment to Montgomery & Delony, attorneys-at-law, who were creditors of tho succession of Benton for professional services rendered. ■ Subsoiiuently, Montgomery & Delony toolc a rule on tho administrator of the succession of Anderson to compel him to sell property and pay this d-bt.</p> <p>The administrator of the succession of Benton intervened, alleging the invalidity of the transfer he had made, praying to bo recognized tho owner of the transferred judgment, and praying that the administrator of the Anderson succession be compelled to sell property and pay it.</p> <p>The administrator of the Anderson succession in his reply denied that tho plaintiffs in rule were the legal owners of tho judgment, and alleged that it still belonged to the succession of Benton.</p> <p>The court a qua correctly decided that tho transfer to plaintiffs In rule was not valid, and that the judgment against the Anderson succession, alleged to be transferred, still remained the property of tlio Benton- succession.</p> <p>Wlint object tlio administrator of the Anderson succession can have in appealing,. other than to obtain a delay in settling the succession, can not be perceived; for he docs not deny tho indebtedness, and tlio court below agreed with his allegation that the judgment against the succession ho represents still belongs to the Benton succession.</p> <p>It is cuually incoa prehensiblo why Levi Prewett, an allcgod creditor of tho Benton succession and an intervenor in this suit, seeks relief by appeal from the judgment in favor of that succession, which is looking to tho recovery of funds to be distributed aiming the creditors thereof, of which he is one. Tho administrator of the Benton succession is tlio common agent of all tho creditors, Levi Prewett included, who is therefore without interest in this litigation.</p> <p>As to Montgomery * Delony, tlio pretended transferees of the judgment, from their admission in the record and from tho privato act of transfer made by tlio administrator without authority of court, it clearly follows that tlioy have no semblance of title to said judgment. Upon tlioir own showing they are not entitled to relief.</p>

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

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

<p>APPEAL from the Twelfth Judicial District Court, parish of Winn. Taliaferro, J. Jury trial.</p>

<p>Because the certificate of the clerk does not state that the transcript contains all the proceedings had in said suit in tho court below, it is no eaus 5 for dismissing the appeal. It is not imputable to tho appellant, and, there being no suggestion of any specific proceedings that are omittod, there is no ground for a continuance to supply any defect.</p> <p>That this appeal was taken and is prosecuted against the wishes of the alleged appellant, as shown by tho affidavit of plaintiff’s counsel, can not be taken into consideration; said affidavit, for the purpose for which it is offered, being original evidence.</p> <p>If tho police jury wore without authority to issue the warrants sued on, they were without authority to bind the parish by confessing judgment for thoir amount.</p> <p>In this ease the evidence does not show that tho debts for which the warrants are alleged to have issued wore regularly created, and that means were provided for their payment as required by law.</p>

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

<p>Two quostions are to be examined in this instance: . First — Is the decree of tlio parish court rendered on the twenty-eighth of November, 1808, ordering the sale of the plantation called Quantico, to be regarded as an order of seizure and sale, and, if so, was it legally issued? Second — If not a decree via ejecutiva, is it valid as an order of sale rendered upon the application of creditors for the sale of propc-ty of the estate of Linton, who was the owner of the aforesaid plantation, to pay tlioreby debts in pursuance of articles 990 and 991 of the Code of Practice V</p> <p>The prayer of tho petition for the sale of tho property is, “that tho lands and improvements described in the act of mortgage be sold at public auction for cash, and the proceeds thereof be ratably divided among your petitioners.” Then immediately follows tlio declaration “that tho petitioners show the court that tho deceased, Linton, never resided in your parish, that he died during tho present year, and that his succession is vacant, wherefore they pray tho order of sale, as allowed by law, for all other orders, and for general relief.” Tho order rendered by tho parish judge was responsive to the prayer of the petition.</p> <p>It is impossible to regard tliese proceedings otherwise than as utterly null. The succession was wholly unrepresented; there was no curator or administrator appointed to administer it; no one contradictorily with whom the. creditors could contest and enforce their claims. The petitioners, at the same time they prayed for a sale of property of the succession to pay their debts, ignored in substance and effect the jurisdiction of the tribunal whose authority they invoked to obtain the payment of their claims. No legal effect can result from proceedings so illegally conducted.</p>

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

<p>B. Weiss mortgaged to plaintiff a lot of ground described in the petition. It was forfeited to the State, for non-payment of taxes due by Weiss. Subsequently it was sold for taxes to defendant. Plaintiff, the mortgage creditor of weiss, now sues to subject this property in the hands of said purchaser to tho payment of the mortgage debt, the proceeding being by an hypothecary action.</p> <p>A stock of goods belonging to Weiss was attached by his creditors. The tax collector intervened, claiming a privilege for the amount of taxes due by Weiss, and obtained judgment for some seven hundred dollars, with recognition of privilege superior to that of tho seizing creditors. Tho goods were sold on twelve months credit, and the bonds or obligations of the purchasers have not been collected. This sale was made ponding the litigation by order of court on account of the perishable nature of the goods attached.</p> <p>Although the State had judgment for taxes due by Weiss and was decreed to have a privilege on tho goods attached superior to that of tho seizing creditors, this imposed- no obligation on the tax collector to sue on the bonds given for the goods sold as aforesaid, nor did it impair the right of tho State to cause other property of Weiss, the delinquent taxpayer, to be seized and sold for taxes due the State.</p> <p>The lot in question had been forfeited to the State, and the sale thereof to pay the amount duo by the delinquent owner was valid, if the forms of law for a forced sale wore observed, about which there is no controversy. While that sale stands tho mortgage of Weiss in favor of plaintiff can not be exrforeod on the property.</p>

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

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

<p>Alter joining in tho appeal tho defendants could not ask a dismissal thereof for tho informality stated.</p> <p>Carpenter, to secure the payment of two promissory notes drawn by himself to his own order, mortgaged his plantation known as the willow Glen. The mortgage was in favor of B. B. Thomas or any future holder or holders of said notes or either of them. The mortgage has been foreclosed by the present holders thereof, and an order of seizure and sale has issued. Tho plaintiff, the transferee of Carpenter, subseauently to the service of the notice of seizure, sued out this injunction to restrain the sale.</p> <p>It is not pretended that the notes do not evidence a valid debt duo by Carpenter, the maker thereof; whether he owed the nominal mortgagee or not is immaterial. A mortgage may be given to secure a future debt. The moment tlio notes passed to Farrar & Dennis, who are the real owners, and became evidence of a real debt due by Carpenter, tlio mortgage to secure the payment attached.</p> <p>The court is satisfied that the title set up by plaintiff is a mere simulated one. Carpenter remained on the premises; no proof was adduced to establish the verity of the sale; the pretended transfer ivas made after notice of seizure had been served on Carpenter; and Richardson never went into possession after the pretended sale, under such circumstances the law presumes simulation.</p>

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

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

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

<p>Mary A. Hickman, widow oí W. P. Hickman, executed three notes and a mortgage in favor of John L. Lee & Co., eommission'merehants. Subseuuontly, Samuel Mitchell and A. B. Hensliaw sued out executory process on the notes aforesaid, which had been transferred to them, and the mortgaged property was advertised for sale.</p> <p>The plaintiffs, who allego themselves to be the heirs of said william P. Hiekman, deceased, enjoined the sale on the allegations that the said property was purchased for them by the executor of their father out of and with his funds, and the title thereto was taken in the name of their mother, Mary A. Hickman, as their tutrix, and that the plaintiffs in the executory proceedings are not the legal owners of the said notes, because the firm of Lee & Co. were declared bankrupts within three months of the transfer of said notes.</p> <p>'The assignees of Lee A Co. intervened, claiming the notes and resisting the sale.</p> <p>The defendants in injunction answered by general denial and the averment that the said property belonged to Mrs. Hickman by inheritance from her father; and to the intervention they interposed a plea to the jurisdiction of the court.</p> <p>’¡The evidence is not sufficient to support the claim of the plaintiffs in injunction. In regard to the intervention, it was properly dismissed .by the court below, as it presented an issue belonging to another tribunal.</p>

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

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

<p>Tho arrióle thirteen o£ the constitution of this State does not enunciate a moro abstraction, but it guarantees substantial rights. To facilitate tho enforcement of thoso rights the General Assembly has enacted laws, and it is tho duty of courts, when called upon, to enforce them. An examination of the evidence in tho record satisfies this court that the plaintiff was rudely denied admittance to the theatre solely on account of his being a colored man. Ho is therefore entitled to damages.</p>

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

<p>About nuncupative testaments made by public act article 1572 oí the Civil Code says: “ This testament must be signed by the testator. I£ ho declares that he knows not how or is not able to sign, express mention of his declaration as also oí the cause that hinders him from signing must be made in the act.” 1,1</p> <p>The only mention made in this case is, “ that the testatrix, being illiterate, has made her mark.” This is not sufficient: tho will is null and void.</p>

<p>All orders and rulings of court rendered in all contestations pending the operation of tho partition before the notary- are interlocutory, and any party fooling aggrieved has his remedy, and may bo relieved when the partition is presented for final homologation; and it is from tho judgment thus rendered that an appeal would lie, subjecting the whole proceedings and all interlocutory orders to revision by this court. , ' ‘</p>

<p>The State has enjoined the Auditor and Treasurer from paying tho coupons attached to the bonds issued under act No. 95 of 1871, on the grounds that tho issue of said bonds, amounting to two million five hundred thousand dollars, was in contravention of the constitutional amendment, and said bonds are not valid obligations of the State. To decide this question it is necessary to examine the acts of 1869,1870, and 1871 which were passed on the subject.</p> <p>Tho obligation of tho State under the acts of 1809 and 1870 adverted to was to guarantee tho second-mortgage bonds of tho New Orleans, Mobile, and Chattanooga Railroad Company on each section of forty miles “ ichicli said company shall construct” within the time mentioned in said acts, after the act of mortgage on said section so constructed shall have been delivered to the Governor, approved by him, and recorded in the office of tho Secretary of State.</p> <p>This was the subsisting obligation of the State when the constitutional amendment limiting the State debt to twenty-five million dollars went into operation in November, 1870. As tho amount of that limitation liad already boon reached, the General Assembly could not create a debt thereafter.</p> <p>Notwithstanding tho existence of this constitutional limitation, tho Goneral Assembly passed act No. 05, approved the twentieth of April, 1871, which provides, among other tilings, that tho Governor is authorized to subscribe for twenty-five thousand shares of one thousand dollars each oE the capital stock of said corporation on behalf of tho State, and to receive the certificate of stock thorofor as payment shall bo made for the same, etc., and further declares that the subscription for stock and the issue of the bonds aforesaid are intended to extinguish the obligation of the State to indorse or guarantee the second-mortgage bonds of said corporation under the act of the General Assembly relative to said corporation, approved February 21,1870, and as a discharge of either party from all-obligations for tho issue, indorsement, guarantee, and security of said mortgage notes, as provided for in the fourth section of said act; it is provided that tho said corporation shall comply with certain conditions, formalities, and stipulations;- and shall obligate itself to commence that part of Its railroad from Yermilion-ville to Shreveport within six months, and to complete the same within the time limited therefor in tho said act.</p> <p>On the twenty-fourth of April, 1871, four days after the passage of this act. the Governor issued to said company bonds of tho State amounting to two million five hundred thousand dollars, notwithstanding the fact that the railroad from Yer-milionville to Shreveport had not been located, and not a particle of work had been done by the said company.</p> <p>Didoed, the record shows that there never has been even a survey and location of that branch of tho railroad as contemplated by the act, and all tho work that has over been done by said company thereon consists of a ditch 291 feet long, six feet wide, and one and a half deep, proved to bo worth twelve dollars. That is the extent of tho labor of said company on tho road from Yermilionville to-Shreveport after tho expiration of five years, the period within which they were required to finish the whole line.</p> <p>The obligation of tho State to guarantee the second-mortgage bonds of tho New Orleans. Mobile, and Chattanooga Railroad Company had lapsed, because the said company failed to complete the first section of forty miles of tho main line by the eighteenth of January, 1871, and failed to achieve other works and fulfill other obligations according to specifications in said act of 1870.</p> <p>Under these .circumstances the act of the twentieth of April, 1871, and the issue thereunder by tho Governor of bonds to the amount of two million five hundred' thousand dollars was the creation of a debt in contravention of the constitutional limitation which went into force in November, 1870.</p> <p>The conditions precedent having not happened, the conditional obligation of the State resulting from the legislation of I860 and 1870 has not ripened into an unconditional obligation; it can never ripen into one, because the period within which it might become so by the performance of the conditions imposed on said company have all passed, and the conditional obligation of the State to sajd company has lapsed.</p> <p>As these bonds bear date subsoijuent to the adoption of the constitutional amendment, all persons ace wiring them were charged with notice of the existence and effect of that amendment; they were charged with notice that in 1871 it was not in the power of the General Assembly and the. Governor to bind the State by the issue of those bonds as a substitute for the obligation to indorse the second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, because said obligation was conditional, and it could only become binding on the State upon the happening of the conditions precedent, and they might never happen.</p> <p>The issue of these bonds as a substitute for a debt that did not exist, and that might never exist, was to all intents and purposes the creation of a debt in 1871, in contravention of the constitutional amendment.</p>

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

<p>The judgment appealed from Is one rendered upon confirmation of a default. The judgment was rendered on the twentieth of November, 1871, and was signed tho same day, that being tho last day of court. Notice of judgment was issued on the first of December following, and was served on the seventh. Application for an appeal was mado on the tenth of December, three days after the notice of judgment was served. This was within tho delay granted by the law.</p> <p>It is contended in support of the motion to dism iss, that it must be governed by the proviso appended to article 575, Code of Practice. But the whole of tho article relied on must be taken together, and from the whole of the article it is apparent that the ten days commence to run from the day the judgment has been notified to the party east.</p> <p>It is urged that tho article in Question should read, “ whenever no answer has been filed,” instead of “whenever an answer has been filed;” but no reason can bo seen for changing tho whole force of the article.</p> <p>Tho decision in the ease oí Lazarre vs. Snow, 1 R., p. 60, is authority, it is true, for supporting the position that “ the period after the lapse of which no appeal will lie is to be computed from tho day when the judgment was signed, not from that on which it was notified to the party against whom it was given.” It would control tho court were tho law now what it was when that case was doeidod. But tho law has been changed. This decision was rendered in 1841. The statute changing tho 1 aw was passed in 1843.</p> <p>A married woman is sued on an obligation due by her alone; judgment is asked against her alone, and her husband is cited to authorize her to appear and defend the suit,and no appearance is made either by the wife or the husband, and, after proper sorvieo of the petition on each, no judgment by default has been taken against the husband, and no authorization from tho judge was given or asked for to enable her to defend the suit. To complete the statement, it must be addod that the wife in this ease was sued as the wife of Ragas, that she was cited . as his wife, that judgment by default was entered up against her as his wife, and that the default was made flnal against her as his wife. The Question whether said judgment is flnal must be answered affirmatively.</p> <p>Legal notice of a suit against the wifo (said wife being cited) having boon served upon tho husband is sufficient to bring her properly into court. Tho notice of the suit to the husband is sufficient, if he makes no objection, to allow her to stand in judgment. If ho has not come into court and has not authorized.his wife to make defense, it must be considered that he thought there was none to make, and, under these circumstances, to obtain an order from the judge authorizing her to stand in judgment would be a useless formality. She is in court from tho fact that the suit is brought against her. her husband being cited to authorize her. Being in court, proceedings may then be carried on against her in tho same manner as they are against other defendants. If she does not answer, default may bo taken against her. If the default, when taken, is not regularly set aside, it may be confirmed.</p> <p>The error assigned, that the judgment was rendered against the defendant without a judgment having been rendered at the same time against the widow in community of the surety, is not established. All tho parties to the suit are sought to be made liable in solido. It is as though separate suits had been instituted against them all, and judgment could have been rendered against each of them, or all of them, or one of them alone. With the effect of the judgment against the co-defendants, the plaintiff had nothing to do. If he sues-a number of persons and seeks judgment against each of them in solido, and judgment is rendered only against one and he is satisfied, the defendant who is alone condemned can not complain of the judgment in so far as he is concerned. The defendant’s rights as against his co-obligors are separate and distinct from the plaintiff’s rights against him.</p> <p>'The third error assigned, that the bond sued on is not conditioned according to law, can not be maintained for the reasons given in the judgment.</p> <p>The security on the bond was Robert Johnson. He died leaving a widow in community and several children (defendants herein), who were put in possession of his estate. The widow and children wore sued. Pending the suit, tho widow died, and the proceedings were carried on and completed against tho eliildron, the succession of the mother apparently not having been opened.</p> <p>If the Question was between the original parties to the bond — principal and surety— the conclusion would be that thoy were both bound in solido. But the parties before the court are the heirs of tho surety. .As to them the obligation is joint; they inherit the rights, credits, and obligations of their ancestor, but as the rights and credits of their ancestor are distributed among them, each according to his share, so are the obligations, each being bound for his proportion. The position which they assume, that they were bound for one-half of the obligation, because their mother was put in possession of one-half of the estate of their father, is untenable. The obligation was an obligation of the community. It was duo by the father. There was no succession to divide until the community debt was paid. As heirs of their father, they are responsible for his obligations, they having been put in possession of their share of his estate.</p>

<p>Plaintiff refuses to pay lior State tax on a house which she owns in the city of New Orleans, on tho ground that she rents it for the use of a public school.</p> <p>Plaintiff relies on Mrs. Lefrane’s ease. In that case it was shown, not only that her house was used for the purposes of education, but that she kept the school. Here the plaintiff does not keep the school. She owns tho property, and derives revenue from tho rent thereof. There is no reason why she should not pay taxes on such property, just as those who rent houses to dry-goods merchants are held to pay theirs.</p>

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

<p>Nothing in tlie record shows that G-uilfont was authorized to institute this action. The warrants sued upon wore transferable by delivery. They are in the nature of a promissory note or bill of exchange, and it has been held that the payee of a note who has indorsed it can not maintain any action on it, even for the use of his indorsee.</p>

<p>Defendant fails to show that ho resorted to tho mode provided by law and within the time prescribed to have the error of assessment of which he complains corrected. The letter he addressed to the Administrator of Assessments was not. supported by affidavit or other evidence showing specifically tho amount and valuation of his personal property.</p> <p>If the Question of the correctness of the assessment were now before this court there is nothing in the record to justify a reduction in the assessment. The testimony of tho defendant is indefinito, evasive, and unsatisfactory, and can not overcome the weight that should bo given to an assessment made by officers acting under oath.</p>

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

<p>APPEAL from the Fifth Judicial District Court, parish of Iberville. James L. Cole, Parish Judge, acting for District Judge Dewing, re-cused.</p>

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

<p>Tlio plaintiff can not succeed in her attempt to annul a judgment which emancipated her from the ■liabilities oí a minor. The proceedings which she attacks are regular in form, there is no evidence or allegation of fraud in the record, and the parties whom she wishes to affect by obtaining a judgment of nullity were not parties to the judgment which she seeks to annul.</p>

<p>Thu plaintiff purchased by notarial act from one Petitjean a noto for six hundred dollars, secured by mortgages and mado by the defendants, due in two years from its date. In the samo act another note of tho same parties for the same amount and secured by the same mortgage, due at three years, was transferred as collateral security for the payment of tho former. Some timo after this transfer and after tho maturity of the first note and pledge, the defendants, makers of the said two notes, made a notarial pledge or transfer to plaintiff of a judgment in their favor as further collateral security for tho payment of tho said flrst-montionod note. Neither of tho notes is indorsed by the payeo and transferrer. This suit is instituted on the two notes and the notarial act of transfer and pledge.</p> <p>There can bo no doubt that tho plaintiff was entitled to judgment on the first note, and tho only Question is as to the correctness of the nonsuit in the court a qua on the second note, held merely as collateral security.</p> <p>As to the objection that tho notes were not indorsed, the notarial act had as much effect as the indorsement of tho payoo could have.</p> <p>In this instance,.the second note being intended to secure the principal debt evidenced by the first note, the sale to pay the principal debt, or tho first of the two notos, must necessarily be mado to pay the pledged note also, and if there be any surplus the pledger is entitled thereto. If the defendants have any rights as between them and the plodger, they can be settled hereafter in a proper proceeding between tho proper parties, and their rights in this respect will bo reserved.</p> <p>The plaintiff is entitled only to tho principal debt — tho first note at two years for six hundred dollars, interest, and costs — but to get that it is necessary to sell the mortgaged property, and it must bo sold to meet the notes unpaid.</p>

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

<p>By aot No. 41 of 1870 it was provided “ that all warrants, elioelcs, or orders issued, or that may hereafter be issued, signed, and approved as aforosaid, for the supplies and expenses of said Board of Police, shall 'be and are. hereby made receivable for all parish and municipal licenses and taxes and debts due or to become due to the parishes of Orleans, Jefferson, and St. Bernard; provided the aggregate of said warrants, checks, or orders so received in each current year shall not exceed the amount of the apportionment made by the Board of Metropolitan Police Commissioners upon said parishes or cities for that year.”</p> <p>This clause of the law was indorsed on the back of each of the warrants issued by the Board of Metropolitan Police Commissioners. It doubtless enhanced their value, and induced defendants to purchase the ones they tendered in payment of their city taxes.</p> <p>Act No. 83 of 1874, passed subseauent to the issue of the warrants in question, limiting their reeeivability for taxes to years anterior to the first of January, 1874, and prohibiting said'warrants from being received for taxes due thereafter, is unconstitutional and void, because impairing the obligations of a contract.</p> <p>There is nothing in the record showing that the aggregate of the warrants receivable for taxes for the current year exceeded or did not exceed the amount of the apportionment made by the Board of Police Commissioners for that year. If it was in excess of that apportionment it was in the power of the plaintiff to show it, because no one can know so well as the city of New Orleans how many warrants it has received during the current year and whether it exceeds the amount of apportionment aforesaid.</p> <p>As to the power of the General Assembly to make warrants issued in evidence of oxponses for policing the city receivable for taxes duo the city, there can be no doubt.</p>

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

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

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

<p>The plaintiff is liable for the proportion of taxes on the improvements made by him on the ground ho has leased.</p>

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

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

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

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

<p>Tlio inquiry in tliis ease is confined to the controversy between the intervonor and plaintiff. As the intervenor was in no sense a sub-tenant, the articles of furniture which she claimed in the leased promises were liable to seizure by the lessor.</p> <p>As to the furniture in the room No. 90 Baronno street, which was removed four days before the seizure from the leased premises, it belonged to the intervenor, and, being the property of a third person and not contained in the leased premises at the time of the seizure, it was not subject to the lessor’s privilege.</p> <p>As all the property provisionally seized had been released on bond for $439, the court a qua erred'in permitting evidence to go to the jury as to the value of the furniture, and the jury manifestly erred in rendering a verdict against plaintiff fo r this furniture or the value thereof, which is fixed at $1551 40.</p> <p>As the intervenor insists in her brief that the sheriff did not take possession of the furniture in room No. 90 Baronno street or the value thereof; “that he went through all the forms except the most essential form of talcing possessionthat she held possession of “ the room and of hor own property in it, no one entering the room while it was there except by her consent,” it is to bo concluded that there was no seizure of this property, and, conseauonlly, there is no foundation for the claim for damages.</p>

<p>Tlio accused was charged with assaulting and stabbing with a dangerous weapon, to commit murder. The jurisdiction of the Superior Criminal Court, in which the proceedings wore had. is limited to offenses for which tho punishment may bo death or imprisonment at hard labor in tho Penitentiary. It is manifest that the court had jurisdiction to try the prisoner under the chargo preferred in tho indictment, and this jurisdiction could not bo ousted by the verdict of the jury, which was, “ guilty of assault with a dangerous weapon, and inflicting wounds ■ loss than mayhem.” Having had jurisdiction of the ease, the court had necessarily tho power to render tho judgment on the verdict found.</p> <p>The verdict is responsivo to tho indictment. In the greater offense the intent is to kill; in the smaller offense the intent to kill is wanting. The offense for which the accused is convicted is included in tho one charged in said indictment, when an accusation includes an offense of an inferior degree, tho jury may discharge the defendant of the higher crime and convict him of tho less atrocious, if they And a verdict of guilty of tho inferior offense and tako no notice of tho higher.</p>

<p>Tlio court a qua erred in dismissing; tlio suit on tho exception that the petition contains no cause of action..</p> <p>If defendant, without probable cause, maliciously made tho affidavit containing the libelous matter and filed it in a suit to which he was not a party, and plaintiff has been damaged thereby in his business and in his reputation as a good citizen and an honorable man, the defendant, by whoso fault it happened, should repair the damage; and for the purposes of this trial tho allegations of plaintiff are taken to be true. '</p> <p>If the principle contended for by defendant, that no responsibility can result for libelous matter contained-in a paper filed in court, be roeognized.as correct, one desiring to blacken the character and destroy the business of another can do so with impunity by availing himself of tho right to file an affidavit in support of a motion for a new trial. Consequently the reputation of no man in this community would be safe.</p>

<p>Alphonse Miltenberger, one of the intervenors in this ease, sots forth that ho is bona fide owner and possessor of the property against which the plaintiff, in her name and on behalf of her minor chi] dren, is seeking to enforce her claims; he sets forth that he acquired it free from the pretended mortgage of the plaintiff ■ by purchase at a public sale of the said property made by the united States Marshal on the third of June, 1865, by virtue of an order of the united States Provisional Court, rendered at the suit of the intervenor to pay and satisfy a debt due to him and secured by mortgage on said property, executed on the twentieth of April, 1858, and he pleads in bar of the plaintiff’s action the prescription of one, three, and five years. The other intervenor, Mrs. Halsey, in whose favor the property was mortgaged by Miltenberger for the security of certain promissory notes of which she is the holder, avers that Miltenberger is the owner of the property, and joins him in resisting the claims of the plaintiff.</p> <p>The objection to secondary evidence to prove the proceedings in the Provisional Court of the united States is not well founded. The court a qua did not err in permitting it. The record contains abundant evidence of the loose and irregular manner in which the original papers of the said suit were kept in said court, nor are facts wanting to show the strong probability that in 1871, when the present suit was instituted, it would have been extremely difficult, if not impracticable, for the intervenors to obtain either the originals or an official copy thereof, the officers of the Provisional Court being functi officiis, and most, if not all of them, absent from the State. The effort to obtain the necessary documents would have been fruitless. ></p> <p>The sale to Miltenberger in 1865 ivas made by virtue of an order from a competent court to enforce a mortgage granted and recorded in 1858. Ten years had not elapsed; the mortgage was in full force and second in rank. Out of the proceeds the first mortgage, hold by the Bank of Louisiana, was paid, and Miltenberger was subrogated to the rights of the hoi dor thereof. The balance was applied to Miltenberger’s own mortgage — the mortgage of the plaintiff, of inferior rank, being therefore cut off.</p> <p>Besides, the plaintiffs action was brought on the nineteenth of March, 1871, to enforce her mortgage against the proporty which was sold under an order of the Provisional Court and adjudicated to Miltenberger on the thirteenth of June, 1865. The plaintiff’s demand in reeonvention to have the mortgage of Milten-berger annulled and to have her own doelared first in rank is prescribed by five years.</p>

<p>'This suit was instituted by a married woman authorized and assisted by her lius- ' band. CiUtion of appeal was served on her. This was sufficient.</p> <p>•Joseph Thezan. one o£ tho defendants, was cited individually and as testamentary executor and as tutor. This was sufficient. There is no ground for a dismissal of the appeal.</p> <p>'The plaintiff has instituted this suit against her brother individually, and also as . testamentary executor of their father, as administrator of the succession of their mother, and as tutor of a minor heir.</p> <p>Third persons, creditors of tho succession of Sidney Thezan, deceased, have appealed from a judgment declaring certain property to belong to the community which existed between said Thezan and his predeceased wife, recognizing tho parties to this suit (two of full age and one a minor) to be the sole legitimate heirs of their mother, maintaining her in the possession and ownership of lior share of said community, ordering the defendant, as testamentary executor of his father, to account to them'for the revenues of said share, and condemning him in said capacity to pay to them (said heirs) a certain sum of money, with interest and mortgage and privilege for the restitution of the paraphernal funds of the said mother.</p> <p>Tho appellants, having become creditors of the husband after the dissolution of the community by the death of the wife, have no claim upon the share of the wife, but have an interest in seeing that tho property of tho husband, their debtor, is made available for their debts against- it. Any proceedings between the parties to this suit, touching the property of the wife only, can have no effect upon tho rights of said creditors upon tlio property of tho husband. As to them these parties have the right to demand and obtain possession of their mother’s property, but they, tho creditors, can properly contest any claim that the heirs of the mother may urge upon tho property of their father, and, although the judgment in this case may not be conclusivo against thorn, they have a right to have it revised so far as it may, in tlioir opinion, prejudice them'.</p> <p>It tlio property described in tho petition of plaintiff belonged to tlio community, tho husband as usufructuary was entitled to the revenues, and conseaucntly there is error in making the testamentary executor account to tlio heirs for tho same. As to what property constituted the community, this court has before it the inventory, which must be taken as sufficient for tho purposos of this suit between the heirs. The appellants have tho right to show in tho succession of tlioir debtor what property belongs to it; and, as to tho paraphernal rights allowed in the judgment appoaled from, this court does not think tho evidence sufficient, it not appearing in the record that the wife's claim, if proved, was properly recorded.</p>

<p>Justices of tho peace are constitutional officers composing a part of the judiciary. Article ninety-six of the constitution of 1808 provides for the removal of various State officers, the judges of tho Supremo Court, and the judges of inferior courts, justices of the peace excepted, by impeachment.'</p> <p>The removal from office of justices of the peace is provided for by address of two-thirds of tho members of both branches of tho General Assembly, according to article 108 of said constitution, as they are not removable by impeachment as provided for tho removal of other constitutional officers in accordance with article ninety-six of the constitution.</p> <p>As the manner of removal from office of justices of the peace is established by tlio constitution, no other method of removal can be resorted to, and therefore tho provisions of thb aot No. 26 of the acts of 1873, so far as they declare that a conviction of extortion in office by a public officer shall ipso facto operate a vacation of the office, are at variance with article 106 of the State constitution, and do not apply to the defendant. It follows that no vacancy in the office of fifth justice of the peace of the parish of Orleans has arisen, as alleged by relator, from tho protended conviction of defendant of the offense of extortion in office. There being no vacancy, there was no room for an appointment by tho Governor.</p>

<p>from tho Second District Court, parish of Orleans. Tíssot, J..</p>

<p>APPEAL from the Seventeenth Judicial District Court, parish of Sabino. J. B. Elam, judge ad hoe.</p>

<p>The judge a quo did not'orr in admitting parol evidence to prove that prescription had been interrupted as to a mortgage note drawn by plaintiff in injunction, and the bill ot exception was not well taken.</p> <p>After prescription has acquired, that is, after a note has become barred by prescription of five years, parol evidence of a promise to pay it will not be admitted, because of tin reiuiroments of the article 1858. The promise to pay before the bar of prescription liad obtained, interrupted the current of proscription, and this promise can be proved by parol evidence.</p>

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

<p>Tho relator prays for a mandamus to compel the, defendant to sign a judgment on rule rendered by him. Tho judgment, being the final act of the judge a ano in the said proceeding, is the end of the suit in his court, and is therefore not interlocutory, but a final one, which is required to be signed.</p>

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

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

<p>The employment of plaintiffs to defend a suit against the parish of St. Bernard was the creation of a debt, and no provision was made for the payment thereof. The contract was therefore invalid, under section 278G, Revised Statutes. But as the defendant, against whom judgment was given, neither appealed nor answered the appeal praying an amendment of the judgment, the judgment must be affirmed.</p> <p>The request in the brief for an amendment of the judgment so as to reject the demand of .plaintiffs will not be noticed. Pleadings can not be made in a brief or argument of counsel.</p>

Lmu-mont, judge of the Fifth District Court, where tho case was tried and judgment rendered before being transferred to the Superior District Court, which granted the appeal.

<p>It lias been often doeiilod by this eourt that the only'question which can be raisedm an appeal from an order oí seizure and sale is whether the evidence authorized theJfoi of the judge.</p> <p>It appears in this instance that the authentic proof which authorizes thojtat ol the judge a nim is an act importing a confession of judgment; and when llio application is made to foreclose in the name of the creditor, or of his heirs or succession, only tliis proof is required to authorize the order. • As the law does not require it, tliis eourt can not perceive any good reason why any other proof should be demanded.</p> <p>Tlie defendant will bo protected should lie pay the debt; but should thorn lie any possible objection to permitting the plaintiff to collect the debt, tlio objection ought to have been urged in an injunction suit, and not in an appeal from the order of seizure and sale.</p>

<p>Under the settled jurisprudence of the State the motion to dismiss the appeal can not prevail. • There was, in this instance, no abandonment of the appeal, as that granted under the first order was never perfected:</p> <p>The statements of an agent, whose agency is shown, are not hearsay; and the proof of the agency to employ counsel ivas admissible, although the agency ivas not alleged. The employment was alleged, and the mode of itwas not essential. The answer, it may be remarked, disclosed, while it denied, the agency.</p>

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

<p>The plaintiff in execution, which is onjoine'l by Mrs. Bom-Ion, attacks on several grounds tho validity of the judgment of separation between her and her husband. Tho record shows that more than one year elapsed between the dates of either flic judgments of thelseizing creditor, or of tho wife for separation, and the date of this proceeding or the date of tho seizure enjoined. Tho plea of prescription of one year filed in this court must prevail.</p>

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

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

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

<p>The sole question in this case is whether, under an ordinance adopted November 15, 1805, “ for the sale ot the right of way on Ht. Charles street and other streets in the city of New Orleans,” and under a contract passed in accordance with said ordinance, the city is bound to exempt the property owned by defendant from taxation. The answer must be in the negative. The city had no authority to exempt property from taxation. It had no power to defeat the command of its creator, the General Assembly, requiring it to levy annually " an equal and uniform tax upon all real and personal property in said city.”</p>

<p>The opponent contends that the general expenses o£ administration should be borne ratably by all the property, whereas they were all place,d upon the proceeds o£ sale of one piece of property mortgaged to opponent. But it is shown by the record that said piece o£ property was the only real estate o£ the succession that was sold. The other real estate was not sold for the reason that there was no bid for it. The succession is insolvent.</p>

<p>Tho appeal referred to in article 3130 oí tho Revised Code is an appeal from the judgment or decision oí arbitrators to the court of original jurisdiction. It lias no application to the appellate jurisdiction of this court. The article cited in no manner modifies tho jurisdiction oí this court as fixed in article seventy-íbur oí the constitution and also-in the Code of Practice.</p> <p>Tho case at bar is a suit brought by plaintiff on a contract and the award of arbitrators thereon. Tho court below has decided that the decision was properly made, and that tho deiendant should pay tho amount awarded and also tho further sum of ten thousand dollars, liquidated damages, for failing to comply with the arbitration within tho timo stipulated. "Whether an amount has boon properly awarded, and whether defendant is guilty of non-compliance with thoaward, and incurred tho penalty stipulated, aro questions passed on in the court a qua, and there is no law forbidding tho review by this court of tho judgment of said court. Defendant, who complains that he is aggrieved, has tho constitutional right of appeal, however indifferent his defense may be on the merits. Tho motion to dismiss can not prevail.</p> <p>There is nothing in tho constitution or laws which prohibits parties from submitting their differences to arbitration; nor is thoro any authority for saying that parties can not bind themselves in any penalty to abide by tho dooision of arbitrators selected by themselves,</p> <p>The objection that the defendant was not given a proper opportunity to be heard before tho umpire is n ot well founded. On tho contrary, it is shown that he was notified when and whero the umpire was to commence his investigations, and that he did not appear before him at tho timo and place designated, either in person or by counsel.</p> <p>The article 3108 of tho Codo recognizes the rights of parties to contract that thoy will bo held in a penalty in case thoy do not abide by the award of parties of their own selection, or selected under their authority, to whom they have agreed to submit their differences.</p> <p>If they could not affix a penalty as tho result of thoir non-compliance, the article of the Code just -quoted would be meaningless. If, having affixed a penalty, it; should he hold that the award and penalty can not both bo exacted, tho rosult might lead to an absurdity.</p> <p>Article 2123 of the Code, relied on hy defendant, is rather conclusive against him than otherwise. He is bound for the amount of the penalty claimed of Mm by reason of the decision of the umpire, to which ho promised to submit, and be-. cause he agreed to pay said penalty unless ho complied with his covenant.</p>

<p>Obviously the third amendment of the constitution did not intend to repudiate sub.-, sisting obligations of the State, if the General Assembly failed to provide an annual revenue sufficient to pay them. The effect of such neglect would be that a' subsequent Legislature would, by taxation and appropriations, provide for-their-payment. Thus in the present case, while this court is of opinion that the reía-, tor's pension for the year 1875 alone can be paid out of the appropriation made for that year, still his claim or right to the pensions of former years is not extinguished by the fact that there exists no appropriation out of which they, can now be paid. His relief must be by the Legislature. Had the act of 1875 indicated that pensions for years anterior to 1875 were to be paid out of the appl-o-priatio'ns of that year for that purpose, it would not have been obnoxious to the. third amendment.</p>

<p>The evidence shows that the property taxed is not used for church, school, or charitable purposes; therefore the Legislature could not, under the constitution, exempt it from taxation.</p> <p>The defendants urge that the rents or revenues-of the property'are appropriated to , charitable uses by the association, which is a charitable association. But those facts do not bring the property within the classes of property which the constitution authorizes the General Assembly to exempt from taxation.</p> <p>The property which is occupied for the execution of the charitable purposes of the institution may bo exempted, but other property belonging to the association, which is rented as stores, ball-rooms, or theatres, can not be exempted.</p>

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

<p>Tliore being judgment against the plaintiff in injunction alone, and'tliere being a failure to collect the judgment from the plaintiff, execution was issued against liis surety, who now enjoins on the ground that he was not condemned by that judgment. The judgment ordered, adjudged, and decreed that the injunction be dissolved with ten per cent damages, fivo hundred dollars attorney’s foes, and costs of suit.</p> <p>From the fact that the judgment creditor in that suit had insisted on having a sum-marytrial of thecase,on the ground thatitwas such an injunction as shouldhave been granted without bond, and the judge a, quo sustained his views, it is fair to suppose that neither the judgment creditor nor the judge intended to condemn a surety on a bond which they said ought not to have been givon. At any rate, the judgment does not condemn the surety, and the injunction was proporly issued.</p>

<p>It was not necessary that the plaintiff, Mrs. Delacroix, should, have shown how she was separated in property from her husband. It suffices that she was separate in estate.</p> <p>The petition is in the name of the husband and wife. This is an authorization from the husband to the wife to bring the suit.'</p> <p>Plaintiff may be.temporarily in Prance and still have her legal domicile in the parish of Orleans.</p> <p>Defendant prayed for a jury, but she has not made the necessary affidavit to bring herself within the rule required by the law. ■ ■</p>

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

<p>APPLICATION foi’ writs of mandamus and prohibition against the Judge of the- Superior District Court, parish of Orleans.</p>

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

<p>APPEAL front the Fourth District Court, parish of Orleans. Lynch, L.</p>

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

<p>The plaintiff, authorized by an act of the Legislature to bring this action, sues the State of Louisiana ior services alleged to have been rendered by him to the State as an auctioneer. But the sixth section of act No. 81 of tho acts of 1872, referred to in tho plaintiff’s petition as conferring authority upon tho Auditor and Treasurer to employ an auctioneer at tho expenso of tho State to make salo of the bonds in question, does not confer such power; but, on tho contrary, specially directs that the Auditor and Treasurer themselves shall offer such bonds at public auction, from day to day, to the highest bidder- Tho plaintiff is not an auctioneer, nor is it alleged. He has shown no causo of action.</p>

<p>APPEAL from the Second District Court, parish of Orleans. T’mot, J.</p>

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

<p>The whole Question respecting the rights o£ judgment creditors to proceed against sureties on appeal bonds has been lately examined by this court in t-lie case of whann vs. Irwin, precedontly reported, This case is decided according to the doctrine therein laid down,</p>

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

<p>Aot No. 102 oí the session oi 1810, commanding the Board o£ Health to perform certain work under the second section oí said act, is repealed by tho act No. 46 of the session oí 1S74.</p>

<p>It is not in the power of an assessor to vest title in any one by simply entering land in the assessment roll in the name of such person. A tax-eolleetor’s deed of sale is prima facie evidence of title, hut the property must have belonged to the person to whom it was assessed. Plaintiff has failed to make out his claim; it does not concern him to have the validity of defendant’s title tested.</p> <p>APPEAL from the Fifth Judicial District 'Court, parish of East Baton Bouge. Dewing, J.</p>

<p>Plaintiff recovered judgment for the amount of his salary as parish treasurer during 1873 and 1874, together with an order rociuiring the board of assessors to proceed forthwith to assess a special tax to pay the amount of said judgment. The objection is not to the amount of the judgmont, but to the order directing a special- tax to be collected for the payment of the same, because said debt is embraced in tho estimate of tho taxes levied for the years 1873 and 1874, and a sufficient amount is due and uncollected on said assessments to pay the debt owing to plaintiff.</p> <p>Plaintiff, however, relies upon section 2028 of tho Revised Htatutos; but this section must bo construed with other provisions of the law, and effect must be given, if possible, to each. Another provision of tho law on the same subject is found in section 2450 of the Revised Statutes.</p> <p>This last section, 2450, is the one applicable to the case at bar. Therein is to bo found tho remedy if the tax-collector fails to collect tho assessments providing for this debt and others.</p> <p>where a debt has not been provided for, or where the tax intended for the payment of a debt can not be collected from any cause, or whore the money has been diverted, the creditor will find relief in the above-mentioned section, 2828, of tho Revised Statutes.</p> <p>under, this interpretation effect may be given to both sections of tho Revised Statutes, and tho absurd eonsetiuonee of double taxation may bo avoided.</p>

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

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

<p>It is well settled that a creditor of the husband can require his wife, separate in property, to establish the verity of the judgment she recovered against her husband if the same be prejudicial to him, and he is not concluded by the proof adduced when said judgment was rendered; nor is the wife precluded from introducing other proof in support of her judgment, whenever its verity is questioned by a judgment creditor of 'her husband. ■</p> <p>It is true, in the ease at bar the husband consented that the case might be flxed and tried, but that did not make it a consent judgment.</p> <p>The court a erred in not permitting Mrs. Goldstein, the intervonor, to introduce proof in support of her judgment at the trial of this injunction suit.</p> <p>APPEAL from the Sixth District Court, parish of ^Orleans. Saucier, J.</p>

<p>The right to an appeal is protested by the constitution, and the judge has no right to refuse it, however indifferent or baseless the demand on the merits may be.</p> <p>The whole cuestión is whether relators are entitled to a suspensive.appoal, and to this question there is but one answer. It is a final judgment, and the matter in dispute exceeds Uve hundred dollars. Therefore an appeal suspensive or devol-utive will lie at the option of appellants on complying with the requirements of the law.</p>

<p>The controversy is about the right to a lot of ground in Girod-Street Cemetery, and a tomb therein known as the “ Young Rising Son Society Tomb.”</p> <p>Defendant’s suit for this property and for recognition of this right was dismissed as of nonsuit by the Superior District Court, and the injunction accompanying the same was dissolved. Defendant subsequently brought suit respecting the same right, without seeking an inj unction, in the Sixth District Court.</p> <p>Thereupon plaintiff brought this suit in the Superior District Court, and enjoined the defendant from proceeding further in the prosecution of said suit in the Sixth District Court.</p> <p>The judgment perpetuating this injunction was manifestly erroneous. The Superior District Court was utterly without jurisdiction to restrain by injunction the trial of the suit pending in the Sixth District Court. If the defendant in said suit was of opinion that the Sixth District Court was without jurisdiction, his remedy was an exception to the jurisdiction, and on this plea being overruled, the action of the court thereon could be revised by this court on appeal.</p> <p>The Superior District Court has no appellate or supervisory power over the Sixth District Court.</p>

<p>In this instance the judgment on tho merits was premature. There had been no answer or trial on the merits when the Anal judgment perpetuating the injunction was rendered, alter overruling an exception to the jurisdiction of the court.</p>

<p>8. H. Young & Co. wore the real consignor- to whom plaintiff, on the guarantee of the cashier of the Mississippi Valley Bank, had agreed to advance fifty dollars per bale, all drafts coming through the Mississippi Valley Bank. Young & Co. having failed, plaintiff seeks to hold defendant, responsible for a balance due him. But this he can not do, beeauso the guarantee of defendant was not in writing. The promise to pay the debt of another can not bo shown by parol evidence.</p>

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

<p>Ronds with coupons payable to hearer are negotiable securities' and pass by delivery, and, in tact, have all the qualities and incidents of commercial paper. The bonds in controversy were payable to bearer; they wore not due when bought by the defendant, who gave value for them. The purchaser was therefore unaffected by want of title in the vendor.</p>

<p>APPEAL from the Sixth Judicial District Court, parish of St. Helena. Kami), J.</p>

<p>To succeed in such a suit the plaintiffs should adduce the strongest proof, which they failed to do. They make grave charges of fraud, involving the crime of perjury, against their deceased father, while they have furnished evidence only of his admissions and declarations made to singlo individuals, which are justly deemed the weakest kind of evidence. The will which he is alleged to have made for the purpose of compensating tho plaintiffs contains no intrinsic evidence of such purpose other than the quantum given to them, which is not inconsistent with some other hypothesis, while the record presents solemn judicial proceedings and admissions, including a sworn statement of the mother’s estate, on the part of the father, which are irreconcilable with, the theory of the plaintiffs, and which can not bo overcome by the isolated declarations and tho presumptions relied on by them.</p> <p>Fraud must be proved; it can not be presumed. The delicate, sacred relation of parent and children should impose upon the latter tho greatest caution in assailing the honor of the former, and deter them from the attempt, unless they have the positive proof at hand to sustain them and are impelled thereto by the stern hohests of justice.</p>

<p>In 1861 the General Assembly passed aet No. 69, authorizing the mayor and Selectmen of the town of Donaldsonville, parish of Ascension, to issue bonds for such sums, not exceeding twenty-five thousand dollars, as in their judgment might be required for the interest of said town.</p> <p>under this authority, in 1866, the town of Donaldsonville undertook to settle with all its creditors by issuing to them consolidated bonds amounting in the aggregate to less than twenty-five thousand dollars, payable ten years after date, bearing’ eight per cent interest, payable annually.</p> <p>The interest on these bonds was paid punctually till April, 1871. Subsequently, the. corporation refused to pay the interest as it accrued, and it passed an ordinance repudiating the bonded debt. Thereupon the plaintiff, holder of some of these-bonds, sues the defendant for the payment of the interest and capital represented by those bonds.</p> <p>The corporation had undoubtedly authority to issue the bonds in question, and it fails to show any want or failure of consideration or any other valid defense. If was anxious to settle with its creditors and procure a long term of years for paying the debts it considered it then owed.</p> <p>Corporations, like natural persons, should be honest. In the case at bar the town of Donaldsonville had authority in 1866 to settle with plaintiff or the party to whom these bonds were issued, whatever defense there was to the claim, it was presumably known at the time of the settlement.</p> <p>If there was not then a valid legal obligation, there was at least a moral obligation,, which was a good consideration for the bonds. If there was no other consideration, the delay of ten years was a legal consideration for the compromise in 1866 under which the bonds in question were issued.</p> <p>The refusal to pay the interest which was due in April, 1872, and April, 1873, and the ordinance of repudiation, did not cause the whole debt to become due, and, therefore, in May, 1878, whemthis suit was instituted, plaintiff had not the -right to demand payment of the bonds which were issued on the third of April, 3.866, and payable ton years after date.</p> <p>The holder of a debt against a corporation has no greater right than if the makcA, wore a natural person. The declaration of a natural person to the effect that he repudiates his obligation will not cause that obligation to mature before the time specified in the contract. Plaintiff is therefore only entitled to the interest accrued.</p>

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

<p>APPEAL from tho Parish Court, parish of Pointe Coupee. Bonachaud> J.</p>

<p>When posterior testaments do not expressly revoke prior ones, they must all he executed, unless the last tacitly revoke the first; but in tho latter case the last prevail, since tho testament is essentially tho expression ot the last will o£ the testator.</p> <p>Tho doctrine that because the first will of the testator is not expressly and unconditionally revoked by the testator in the second will therefore the first will in its entirety remains in full force is not tenable, for by the provisions of article 1691 of the Civil Code wills are revokod.taeitly as well as expressly.</p> <p>Tacit revocation results from some other disposition of the testator or from some , act which supposes a change of will, when, therefore, by the first will in the ease before this court the testator constituted Celestino Bastís legatee for one thousand pounds and by the second a legatee for five hundred pounds, there was a tacit revocation. There was a eonfliction between the provisions of the two wills in regard to the amount of tho legacy, the provision of the last will showing tho intention to bestow upon tho legatee live hundred pounds and not one thousand pounds.</p> <p>In tho eases of Mrs. Ximino and the minor. Anna Ximino, and tho two asylums, no change was made in tho legacies by the last will. This shows only the intention of tho testator repeated in the second will that these legatees should receive the legacies granted by tho first will.</p> <p>Upon no sound principle of reasoning can it be maintained that when anterior or preceding testaments are not expressly and entirely revoked by subsequent ones all the provisions of all the testaments have effect, and that in such eases there is a cumulation of the legacies contended for by tho opponents in this case.</p>

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

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

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

<p>In this caso tlio ploa in compensation and roconvention, being based upon a claim ior damages arising from a seizure in a matter altogether disconnected from the plaintiff’s demand and an open account against the plaintiff, can not bo maintained.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry. John 3ST. Ogden, Acting Judge.</p>

<p>Plaintiff, a printer by occupation, and the keeper of a ferry, has no right to claim the benefit of the homestead act of 1852. and to enjoin on that ground the execution sale of certain lots occupied by him in the unincorporated town of Berwick and embracing about three acres and a half.</p>

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

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

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

<p>APPLICATION for a mandamus to be directed to the clerk of the district court in and for the parish of St. Landry.</p>

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

<p>Tho judge a quo erred in nonsuiting the plaintiff on tho ground that the defendants liad not been put in default.</p> <p>This is not an action for damages arising from the violation of a contract. It is simply an action to rescind a sale for non-payment of the stipulated price and for the use of the property while in the hands of tho vendees.</p>

<p>In support o£ liis ploa o£ proscription defendant alleges that the payments shown to have been made wore in Confederate money, and therefore no payments. But any payment, no matter in what currency, is an acknowledgment o£ tho debt, and therefore interrupts prescription.</p>

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

<p>APPEAL from the Third Justice Court, parish of Lafayette. Bayley, Justice.</p>

<p>Tliore is no want of proper parties in this ease. It is not shown that there are other parties in interest than those plaintiffs pray to he cited.</p> <p>If the order for a curator ad hoc is invalid because tho party signing as judge is not judge, that is no cause to dismiss the suit. A new order may be granted by tho proper j udge.</p> <p>‘One judgment creditor of a succession has an interest to attack the validity of the judgment of another creditor, whore tho funds of the succession ai-e not sufficient to pay both. The court below has jurisdiction to revise the judgment complained of, and plaintiffs have an interest to demand the nullity thereof.</p>

<p>This suit must be regarded as one on warrants issued by a police jury, and is similar to that of Sterling vs. West Feliciana, 26 An. p, 59. The decision must be the-same, for the reasons set forth in that ease.</p>

<p>■The relator took a bill of exceptions to the ruling of tho judge a quo admitting parol proof that the release bond accepted by the sheriff was taken to the clerk’s office and delivered to him to be filed, on the ground that the said clerk had issued a certificate to relator to the effect that no such bond had been so filed within the ten days prescribed, and such certificate could not be disproved by parol evidence.</p> <p>'The court below did not err. This is not such an official act as comes within tho rule invoked by relator. This court is not referred to any law which makes it the duty of the clerk to issue such a certificate as an authentic instrument. It is nothing more than a written statement by any other individual.</p>

<p>The prescription ol threo years is pleaded by defendant against the claims on which this suit is based. The plaintiff contends that the instruments on which she sues are either promissory notes and prescribed in flvo years or acknowledgments of debt and barred only by the prescription of ten years. This is correct, and the evidence is that both were signed on the same day, November 17, 1808. This suit was instituted in April, 1871, which takes both out of the prescription sustained by the judge a quo, who decided that said instruments wore receipts for money loaned.</p>

<p>The court a quo, erroneously maintained defendant’s exception and dismissed this suit. There is no dispute about the capacity of the plaintiff, and an administrator has the right to sue for debts due to the estate so long as he continues to be administrator. No answer was filed and no default was taken. There was therefore no issue joined on the merits. The ease is remanded.</p>

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

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

<p>One of the questions to bo decided in this case is, whether the homestead act of the twenty-second of December. 1865, confers upon married women the right to a homestead. The letter of the law is unambiguous, and this court is not permitted to disregard it under the pretext of divining the intention of the Legi s-lature. Besides, it is a law in derogation of common rights and must be interpreted strictly.</p> <p>The law does not confer this privilege of a homestead upon a married woman. During the marriage the husband is the head of the family, upon whom devolves the support of the family, and whether in exceptional cases the. wife may have to contribute to the support of the family or not, can not affect the interpretation of this statute.</p>

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

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

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

<p>Tho right to dissolve a sale for the non-payment ol tho price is independent of tho mortgage or vendor’s privilege. It is conferred by the textual provisions of the Code, and this right may bo exercised against the assigns of the vendee, for they could acquire only such rights as he had, talcing the property cum onere.</p> <p>But the record shows that more than ten years had elapsed between tho date of the maturity of tho ilrst installment of the credit portion of the price and the institution of this suit. Obviously, when the buyer failed to pay the ilrst installment of the price, the seller might have exercised his right to dissolve the sale for the non-payment of the price, and prescription against that right began to run from tho moment when it might have been enforced. Therefore tho plea of prescription is fatal.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of St. Landry. Joseph M. Moore, Acting Judge.</p>

<p>APPBAL from the Parish Court, parish of Vermilion. Kibbe, J.</p>

<p>Tlic question whether a legacy of money under a particular title bears interest from the date ofthe probate of the will, or from the demand of the legatee, or filing of a tableau admitting the legacy, is answered by article 1626 of the Revised Code, which means what it says. The court a qua erred in allowing interest on the legacy from the probate of the will in 1867. It should run only from the filing of the tableau on the sixth of September, 1872.</p>

<p>Defendant’s wife having been heard as witness for her husband in this ease, bofore the district attorney could object to her answering the questions propounded, the evidence was on motion of said district attorney ruled out on the ground that the wife could not testify for or against her husband.</p> <p>There was error in this ruling. The wife was not a competent witness for or against her husband, She could have been excluded from testifying. But the objection should have been made to her testifying at all. After testifying it was too late to have her testimony stricken out. If the fact be that the district attorney did not discover that the witness was the defendant’s wife until after she had testified, the fact should have been stated in the bill.</p>

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

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

<p>It appears from the record that the opponent to tho tableau is an heir of the deceased whose estate is being administered, and therefore interested in defeating any debts placed on-the tableau not due, or prescribed. In his opposition he pleaded prescription against certain claims placed on tho tableau, which on their face appear to be proscribed. Tho administrator and the court seem to have regarded the opposition as a separate suit, in which the opponent was a plaintiff, and dismissed his opposition for not prosecuting it. This was an error. The opposition was on flic in tho nature of an answer, and if the record showed that any of the objections were valid, the court should have considered them. ’ '</p>

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

<p>The mortgage debt, the payment of which was extended from 1861 to the first of March, 1862, became exigible at that epoch. The conditions of that extension were the payment of certain interest and of all lawyer’s fees and other necessary expenses that might accrue in the event of the plaintiff’s having to resort to compulsory means to enforce payment of his mortgago debt. Payment not being made in March. 1862, the plaintiff could have proceeded on his mortgago note and also upon his claim of six hundred dollars paid by him for attorney’s fqes and costs. Prescription therefore began’ to run upon the six-hundred-dollar claim from the first of March, 1862. The plaintiff instituted this suit on this claim in May, 1872 — more than ten years having intervened between the time when ho might have brought this action and the date at which ho did bring it. The demand is barred.</p>

<p>Tho question at issue is. which oí the parlies contending, the executor named in the will of Mrs. Bowman, or the public administrator of the parish, has the right to administer the estate of the deceased. The court below ordered that Fisher should account for the funds he has received to date and satisfy tho court that tho same had not been illegally used; that he be given thirty days from date to comply with this order; and that in the mean time the application of the public administrator remain in abeyance. This judgment is erroneous.</p> <p>The confirmation of Fisher as executor by the parish court of St. Martin, being null and void; does not preclude him from applying for confirmation and for probate of the will before the court having jurisdiction. Hois entitled to the office of executor, in preference to the public administrator. It will be in time to inquire into his liabilities to the estate as executor after he assumes the duties and responsibilities of tho office.</p>

<p>The plaintiff sues the parish of Iberia to recover twenty-four hundred dollars for the lease, at the rate of six hundred dollars per annum, of a building to be used as a court-house and offices, and occupied for said use during four years. The defense is that the agreement was to pay in warrants, and not in currency; that parish warrants are worth fifty cents on the dollar; and that a tax to pay the judgment rendered in this case can not be lawfully levied, as it would be 'in excess of fourteen and a half mills, which is the limit of taxation fixed by law.</p> <p>If the parish had had the right to issue warrants (but it had not) then these warrants would have to be paid with currency. .The parish could not discharge its obligation on the warrants by paying fifty per cent of their face.</p> <p>There is no force in the objection that a tax to pay the judgment rendered against the parish can not be levied. The law (act of 1869) makes it the imperative duty of courts to order the levy and collection of a tax whenever it is necessary to pay a judgment.</p>

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

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

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

<p>'This ease seems identical with the one oí Sterling vs. Parish oí west ITcliciana, 20 An. p. 59, and should be controlled by it.</p>

<p>'This is a rule taken by Buckner on the sheriff of St. Mary to show cause why he should not pay to the plaintiff in the rule a certain sum which is the proceeds of the sale of one undivided half of certain mortgaged property, after paying its proportion of the costs and taxes and the whole debt duo the first-mortgage creditor.</p> <p>'The sheriff had no right to make this disposition of, the surplus in his hands. The debtor, at least, should have been made a party to the rule, if a rule were authorized in this case. This is made more manifest by the motion of the plaintiff to dismiss the appeal on the ground that the sheriff, being a mere stakeholder, had no right to appeal, and yet he alone is a party defendant in these: proceedings. The case is remanded.</p>

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

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

<p>A creditor holding a claim securod by special mortgage on property belonging to a vacant and apparently insolvent estate, can proceed via ex.ec.uUva, against said property in satislaction of bis debt. This Question has long been settled by numerous decisions. It is no longer an open Question.</p>

<p>The defenses to this suit, brought on certain promissory notes secured by mortgage, are not -well founded.</p> <p>There is nothing to indicate that the debt sued on originated in the loan of Confederate money, or of Confederate money received by the defendant from the plaintiff. The notes were given, not for a loan, but in payment of á debt acknowledged 'to be due.</p> <p>As to prescription, it has been interrupted by the acknowledgment of the debt.</p> <p>The debt was a community debt, and the property mortgaged was community property. As such the defendant, being the head of the community, could be sued without regard to his wife, and whether the wife was dead or not.</p> <p>It is no concernment of the defendant’s that the mortgaged property has been sold. This is a matter between the plaintiff and the purchasers, should the plaintiff endeavor to exercise his rights. The only question jSi whether, as between the plaintiff and defendant, the debt sued on is due, and whether the property mortgaged is, as between them, subject to the payment of the debt. This court thinks it is.</p> <p>The district judge rendered judgment in favor of the plaintiff for the amount claimed, but denied her the right of mortgage. In this he erred. The plaintiff is entitled to both debt and mortgage.</p>

<p>One of the main questions in this ease is about the validity of a citation. It is direeted to Jules G. Olivier, of the parish of St. Mary, attorney in fact of Gabriel L. Euselior: “ Ton are hereby summoned to appear before the district court in and for the parish of St. Mary on the first Monday of October next, and comply with the demand contained in the petition of william Jacobs against you (a copy of which is hereunto annexed), or file your answer thereto in the office of the clerk of said court,” etc. No answer was filed to this suit. Judgment by default was rendered against Euselier and confirmed.</p> <p>This judgment is null and void for want of citation. The Code expressly provides that citation must be directed to the defendant. Here it was Olivier who was cited, and it was Olivier who was ordered to file his answer to the demand which was made upon him. Admit that Olivier was Euselier’s attorney iq fact, still when Euselier is sued the citation must be directed to him, and not to his agent.</p>

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

<p>New parties may be made at any time pending the trial of a ease, provided the trial is not delayed or the issue changed. As to the right of the administrator of the deceased partner of plaintiffs to join in this suit, it is undeniable. The matter which is before this court is not of a commercial character. It involves the title to real estate. Commercial partners may own real estate, but the real estate owned by them does not enter into their commercial assets. As regards that species of property, they are joint owners. In such a suit it was not only the right, but it was the duty, of the administrator of the partner who had died to make himself a party to that suit in order that the interest of the partner in the property should come under his administration.</p> <p>That Guilbeau Brothers are the owners of the draft sued upon is evident from the fact that they hold it and that no one else claims it.</p> <p>It was optional with plaintiffs to sue on the draft given for the object purchased, or-to ask for a rescission of the sale. Compensation can not be pleaded in a case like this. The sale was made for cash; the price should have been paid in cash. The accepting of the draft in the place of cash was merely an accommodation to defendant. It never could have been contemplated by the plaintiffs that it was a mere trap by which tho defendant was to secure the payment of a debt.</p>

<p>Defendant was entitled to have a copy of the venire served upon him, and this was done. All of the persons named thereon did not answer to the summons, but that was because they were either excused or could not be found. The law was complied with when the venire was served upon him.</p> <p>The judge a quo was right when excusing several jurors who could not understand the English langua '0. This discretionary power he had under the first section of act'No. 04 of the acts of 1873.</p> <p>On the trial of the exceptions filed by defendant, he offered to prove that, in drawing the venire, ballots were placed in the box containing the names of all persons who were on the registration list, including those who had sorwed at previous terms of the court within the last three years next'preceding the present term. Admitting the fact to bo as stated, tho defendant suffered no wrong thereby, for he does not complain that they are incompetent jurors, what he urges is no cbjection to them as jurors. They might have caused themselves to be discharged. but the cause of discharge was personal to themselves.</p> <p>Tho court did not err in allowing Burleson to be sworn as a juror. He swore, it is true, on his voir dire that he had “ conversed about the matter with some of the. eye-witnesses to the killing charged against the accused in this case, and that ho had formed an opinion as to the guilt or innoconce of the accused;” but ho also said that “ his opinion was merely imaginary and was not a fixed opinion, but would yield to the evidence, and that he felt satisfied he could try the ease fairly and impartially according to tho evidence.” He was a good juror.</p> <p>The same may be said with regard to the juror Collins. He had expressed an opinion, but he said that opinion was founded upon hearsay, and that his opinion would yield to the evidence.</p> <p>There is nothing iii the exception that the talesmen had not been summoned and called to be sworn until after tho regular jury had been finally discharged. Tho talesmen could only have been summoned after the panel was exhausted, and there is no good reason why the judge, after the panel had been exhausted, should not discharge tho jury if he had no other cases for them to try without waiting until the talesmen had been summoned and sworn.</p>

<p>The motion to dismiss on the ground that the amount in controversy does not exceed five hundred dollars can not prevail. It is tho value oí tho property to bo sold which is the test of the amount in dispute.</p> <p>The plea that the order of sale obtained by the administrator is mill, beeauso, if the estate is solvent, notice of an application to sell must be given to the heirs, and reasonable notice must be given to the interested parties; and, if insolvent, tho administrator, being the trustee of tho creditors, his first duty is to them, and all proceedings for the sale of the property must be carried on contradictorily with them, is not well founded.</p> <p>It was tho duty of tho administrator to have the property sold if the estate was in debt, and that fact is shown by plaintiff, who claims to be a creditor thereof for a large sum. Tho orders of sale wore necessarily ex parte, and no injury can befall the plaintiff in consequence of ii. This court does not see in what other way ho could be paid.</p>

<p>On a settlement between Duperier and bis ward, Ratier, Duperier, being indebted to Ratier, assumed, in part payment ol this indebtedness, to pay a note drawn by his ward and on which ho had gone security.</p> <p>Duperier and Ratier were sued on this pote. Pending this suit, Ratier sold whatever claim he might have a ;ainst Duperier to plaintiff. Judgment was rendered iá'favor of Duperier and Ratier on the note sued on. Plaintiff, as the transferee of Ratier, sues Duperier for the amount of this note.</p> <p>The settlement between Ratier and Duperier being final in their relations of tutor and ward, Ratier, when he sold his rights against Duperier to plaintiff, sold nothing.</p> <p>Because Duperier was not condemned to pay the note which he agreed to pay is no reason why Ratier, or his alleged transferee, should claim payment of the sum which it represented, any more than if the holder of the note had given it to him, or if the payment thereof had been barred by prescription.</p>

<p>APPEAL from the Parish Court, parish of Iberia. Fontelieu, J.</p>

<p>APPEAL from tho Parish Court, parish of Yermilion. Kibbe, J.</p>

<p>It is unimportant to tho opponents whether certain privileged debts be paid or not; if they exist they are properly on tho tableau.</p> <p>Tho administrator is only entitled to his commissions on the amount collected and to be distributed.</p> <p>A judicial sale can not bo annulled in a collateral proceeding in which the vendee is not a party.</p> <p>The vendee in this instance is protected by the order of the court under which the sale was mado, even if the exparte order rescinding tho first order could be construed to forbid the sale absolutely, because the vendee had no knowledge of the-fact. But the second order was conditional, and the administrator complied, with the condition, so that, even if it had boon rendered contradictorily with the administrator and valid, it would not have had the effect of annulling the first order.</p> <p>It is now well settled that a sale of succession property to pay debts may be validly made for less than two thirds of the appraisement.</p> <p>The claim of the widow and children of the deceased, who were- and are in necessitous circumstances, is correctly placed on the tableau as a privileged one. They are entitled to the one thousand dollars allowed, with a privilege according to law, less tho value of tho furniture received by her and such sums as have been collected by her'while acting as administratrix.</p>

<p>APPEAL from the Parish Court, parish of Vermilion. Kibbe, I.</p>

<p>Plaintiff has enjoined the sale of certain property, which he alleges is exempt from seizure and sale by law. The defendant joined issue without exception to the jurisdiction of the court, and said court dissolved the injunction. The motion to dismiss the appeal for want of jurisdiction in this court ratione material can not prevail.</p> <p>If the district court had jurisdiction, this court has also, for the jurisdiction of district courts is in matters wher° the value in dispute exceeds five hundred dollars; and if this court is without jurisdiction, so was the lower court, and its judgment would be an absolute nullity.</p> <p>But there is no evidence that the property is not worth over five hundred dollars. On the contrary, it would seem that the property seized is worth more than five hundred dollars.</p> <p>The plaintiff was a farmer, having a wife and children, and the corn and fodder seized were necessary for the current year. Because he could not go on farming on his own r-esponsibility during the year following the seizure, in consequence of said seizure, is not a reason why he should be regarded as not a farmer. He was a farmer in 1874, and made the corn and fodder seized in the fall of that year, and his occupation at the time of the seizure is the test to determine if he be entitled to the exemption.</p>

<p>Where, between certain laborers and their employer, it is agreed to give them in lieu ol wages one half of the proceeds of the cotton crop and other produce, there was plainly no partnership in this.</p> <p>The property sequestered and attached was released upon bond. Proceedings were taken against the surety. The district judge was of opinion that the surety was bound to the amount of the property released. In this there was error. The surety was bound for the amount of the judgment to the extent of his bond. Now, the judgment was for $687 30. Therefore the surety should have been condemned to pay, not the value of the property released, but the amount of tho judgment. Plaintiffs entered a remittitur for the difference between the judgment and the amount really due. But this was done after the appeal was applied for and the bond given; it came too late. The result is that the judgment must be amended.</p> <p>On the trial below certain exceptions were taken to the ruling of tho judge, who allowed the plaintiffs to introduce in evidence the bond sued upon. The judge a quo correctly overruled these exceptions on the grounds that the bond being taken in a judicial proceeding, referred to in the body of the bond, is binding on the parties as they intended it; that, as the bond had been in the possession of the officers of the law since its execution, tho presumption is, that it was signed by tho parties with the erasures and interlineations previously made, and that a bond taken in a judicial proceeding is not required to be stamped.</p>

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

<p>Mayor Gallon was appointed to tho office of tax-collector, parish of Assumption, his commission being dated tho fifth of March, 1875. Drury was appointed by tho samo authority to the samo office in tho place of Mayer Cahen, and his eommis • sion bears dato March 23. 1870. The Governor having the power to remove for cause, the exorcise of the power rests within his sound discretion, over which tho courts have no control. This is not now an open Question.</p> <p>The objection of Cahen to the reception in evidence of the bond of Drury on tho ground that there is no evidence that the sureties had, at tho time of signing, sworn that they were worth enough to respond for the amount for which, they obligated themselves, was not well founded. The presumption omnia rite acta would apply if it were a matter in which ho had an interest.</p> <p>As to the objection that the sureties did not reside in the parish, it was properly overruled. A statute of the State expressly permits a person residing in a different parish from that in which the officer is to exercise his functions, to bo surety on his official bond. There is no conflict between this law and article 3012 of the Revised Civil Code.</p>

<p>Plaintiff can assert no greater rights than Alexander Stelly, under whom she claims, and who sold a small tract of land to Stanville Projean for one thousand and fifty dollars, which amount said Prejean hound himself to pay to Bienvenu Stelly in discharge of a certain mortgage hearing on said land for $906 20. Bion-venu Stolly foreclosed, via execu&iua.tho mortgage to secure this debt of one thousand and fifty dollars. Plaintiff, as transferee of Alexander Stolly, brought this suit by third opposition, claiming the proceeds of the sale of the mortgaged property, on the ground that the mortgage debt of $906 20, in settlement of which Bienvenu Stelly acquired the claim in question was for Confederate treasury-notes ; wherefore plaintiff alleges that the claim of one thousand and fifty dol- - lars sought to be enforced by Bienvenu Stelly belongs to her as transferee of , Alexander Stolly, who sold the land to Prejean.</p> <p>The oourt a qua erred in maintaining this opposition. Bionvonu Stelly is the owner ot the claim oí one thousand and flity dollars sought to be enforced. Land was the consideration thereof, not Confederate notes. Alexander Stelly, under whom plaintiff claims, could notreeovor from Bienvenu Stelly the claim against Prejean for one thousand and fifty dollars, which he gave in settlement of his own debt of $906 20, secured by mortgage, admitting this to have been for Confederate notes. It was an executed contract, and it can not bo annulled on account of Confederate money consideration. The policy of the law is to allow neither party to recover on an immoral contract.</p>

<p>Carlin & Leslie, being planting partners, borrowed of plaintiffs a certain sum of money to carry on their plantation and executed a written obligation which was duly recorded in 1872. In January, 1878, other parties claiming privileges upon the crop of said Carlin & Leslie sequestered a certain quantity of sugar, which sugar was released on bonds by the seizing creditors. Whereupon Carlin & Leslie compromised with said creditors who had caused the sale of the sugar. Subsequently, the plaintiffs in this present instance intervened in the suits aforesaid, claiming a privilege upon the property sequestered. The suits were dismissed in consequence, of the compromise, and tlie.intorvention followed the fate of the principal suits. Long afterward, Bee & Go. instituted the present suit against Carlin & Leslie, who were then absentees, and sequestered the delivery bonds executed by the plaintiffs in the former suits as the property of the absent defendants, claiming a privilege on said bonds.</p> <p>The more statement of the ease shows that the plaintiffs’ pretensions are untenable, whon they intervened in the original suits, those suits, in fact, did not exist, having been previously settled by the debtors. Consequently, the bonds were virtually canceled by the settlement, and the defendants, Carlin & Leslie, have no right or title to them.</p>

<p>Plaintiffs instituted proceedings to compel defendant to give additional security as administrator of the estate of the deceased, whose heirs they allege to be, because the sureties on his bond had become insolvent and had enjoined him from acting further in that capacity until his furnishing the rectuired security. The injunction was released on a bond of three thousand dollars by the judge who issued it. Prom this interlocutory order plaintiff has appealed.</p> <p>The motion to dismiss the appeal because the value of the succession is not stated in tho petition, and, because there is nothing to show that the matter in dispute exceeds five hundred dollars, can nbt prevail. The judge fixed the injunction bond at three thousand dollars. This is satisfactory proof that the matter in dispute must exceed five hundred dollars. Besides, appellants have filed in this court an affidavit showing that the value of the succession is largely in excess of that sum.</p> <p>The motion, however, to dismiss the appeal because the order appealed from can not work an irreparable injury to appellants is well taken. There is nothing to show that the value of the succession exceeds the amount of the release-bond. It will amply protect appellants from loss resulting from tho release of the injunction.</p> <p>It is the evident interest of the succession that the administrator should be in a. position to discharge his duties pending the litigation, and the judge a quo exercised a wise discretion in releasing on bond the injunction restraining the performance of such duties.</p>

<p>Defendant excepts to plaintiff’s suit to annul a sale, on the ground that plaintiff has not tendered or offered to pay to defendant the whole of the taxes for which the property was sold, but only her pro rata thereof. Plaintiff was not required to tender the whole amount of the taxes paid by defendant. Her pro rata share thereof was quite sufficient.</p> <p>It is not necessary that plaintiff should show title to all the property in a suit to recover her share thereof; besides, this is no cause to dismiss the suit. The. question as to tho validity or the extent of plaintiff’s title will arise on the merits.</p> <p>The fact that defendant held a tax-title did not preclude tho succession sale of the share of the succession of Moss in the land in question.</p> <p>A party in possession can not prevent a party holding an adverse title from selling it if he desires. Possession is not essential in the contract of sale.</p> <p>Tho objection that defendant holds a deed from tho Auditor, which is alleged to be a bar to this petitory action, is manifestly unfounded.</p> <p>Tho evidence of a title, whatever it may be, can not be a cause to dismiss a petitory action.. A trial of the rights of property can not be avoided by such a pretext.</p> <p>A tax-title, if regular, is prima facie valid, under thd present constitution : but this • will not prevent the owner from showing the invalidity thereof. If the sale by the tax-collector was radically defective, as alleged by plaintiff, tho deed of tho Auditor did not give validity to it. The case is remanded to bo tried on its merits.</p>

<p>Tile prescription oí one year is pleaded against the plaintiffs’ action to set aside a daMori enpaiement and to annul a judgment in favor of the wife against the husband. This suit having been instituted on the seventh of March, 1871, the plea is good as to the dation enpaiement, which was executed on the fifteenth of February, 1872, but was untenable as to the judgment which was obtained on the twenty-nintli of' November, 1873.</p> <p>Article 1987 of the .Civil Code applies exclusively when the alleged nullity is an. undue preference given to one creditor over another, and the action must then be brought within a year from the contract or judgment, while article 1991 applies to all contracts or judgments by which creditors are injured, and then is prescribed in one year, to date, if brought by a creditor individually, from his judgment against the debtor; and if by the syndic or representative of creditors, from his appointment. In this case article 1991 governs.</p> <p>The position assumed by the plaintiffs that certain deductions from the amounts received by the husband on account of his wife should be made, because they were for the price of slaves, is erroneous.</p>

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

<p>The defendant was condemned by a judgment of á justice of the peace to pay a fine of twenty dollars and costs for refusing to work on the public roads. Execution issued thereon, and, being returned nulla bona, he was indicted by the g’f ^nd jury, tried before'a petty jury, found guilty, and sentenced in the district court to imprisonment in the parish jaii under a provision of llie Revised Statutes and an ordinance of the police jury for thirty days. Erom this judgment he ..appealed. . . . . :</p> <p>The motion to dismiss this appeal must prevail on the plea of want of jurisdiction 'as it is a criminal ease where' the 'punishment is n« t death, imprisonment at hard labor, or a.fine, exceeding three hundred dollars.</p> <p>That this is a criminal case can not be doubted. There was an indictment by a grand jury'and a verdict by a petty jury. By the constitution this court has jurisdiction in criminal cases “on'questions of law,only, whenever the punishment of death or imprisonment at hard labor or a fine exceeding threehundred dollars is actually imposed.” There is no such punishment here.</p> <p>There is no'forbó in theUIlégation that; becáú'só the ordinance of the police jury under which the defendant was condemned by the justice of the peace to. pay a fine or penalty, for the non-payment of which ho was indicted and sentenced in the district court, is attacked as unconstitutional, therefore the' case, being dual--' ' ■ both civil and criminal — is appealabje, . , ,</p> <p>The fallacy of-.this position is that, if the ease he dual, the only branch of it before-this court is the criminal part — the indictment and the conviction thereunder,. which began where the civil part ended — the penalty or line in money imposed by the justice. This latter part of the proceedings against the defendant is not in this case, except as the cause for or basis of the prosecution, and as evidence ■ 'upon which conviction is founded. This court can not'revise that proceeding, it not being before it; nor can this court consider it in determining the question of jurisdiction, of the branch of the proceeding brought up op appeal.</p> <p>If it be ednCeded that the clause of the ordinance of the police jury which author- - ized the defendant to be fined by the'justice of the peace is unconstitutional, it will not give this court jurisdiction in the criminal proceeding in which he was indicted, convicted, and sentenced to imprisonment, because the issues in this last proceeding alone control the jurisdiction thereof. The issues or questions in one ease do not affect jurisdiction of another. The clause of the constitution invoked as giving jurisdiction in this instance refers to civil eases only.. . .</p>

<p>The accused, in support o£ a motion for a new trial, offered one of the jurors who sat on the trial of his case as a witness to prove that, after the jury had received the charge of the judge and had retired for consultation, they were divided in their opinion as to-the verdict to .be rendered, and that it was then and there urged upon the jurymen unwilling to convict by those who were in favor of conviction that the accused had no defense because his counsel had submitted his caseto the jury without argument, and that this testimony was offered to show that the jury did not eome.to their verdict by considering the law and evidence. The introduetion of this evidence was properly rejected by the court.</p> <p>Toa bill of exception founded on the allegation of misconduct on the part of one of the jurors and separation of the jury before rendition of their verdict, the judge a quo appended the following: “ The j uror, without permission of the court or consent of the accused, left his seat in the jury-box and advanced to where the district attorney was sitting and whispered something in his ear. The district attorney made no reply, but merely shook his head; whereupon the juryman immediately returned to his seat. All this occurred in open court, in presence of the accused, the officers of the court, counsel of the accused, and the other j urymen.” The court a Qua was of the opinion; “There was neither a separation of the jury nor misconduct on their part, and that the verdict of the jury was strictly in accordance with the law and the evidence.” This ruling is correct.</p>

<p>APPEAL from the Third Judicial District .Court, parish of ; St.- Mary; Tj-cáji, .1’.</p>

<p>A PPEAL from the Eighth Judicial District Court, parish of St. Landry, Laurent Dupré, Acting Judge.</p>

<p>This is a suit to recover judgment for the amount of two drafts against the executors of Mary 0. Moore and John Moore, who, in their life-time, were, the one the tutrix and the other the co-tutor of the minor, David Magill. The drafts were accepted, and plaintiff acquired them before due. The plea that defendants were bound as indorsers or sureties can not be sustained.</p> <p>The defendants can not be regarded as indorsers of the drafts. In indorsing the drafts they omitted adding their capacity of tutrix and co-tutor, which was set forth as drawers. . In this fiduciary capacity the drafts were not indorsed and completed by the drawers, unless this court should regard their signatures as given in that capacity.</p> <p>Bills drawn by a fiduciary to his own order are not completed unless indorsed in the samo capacity as drawn. This court regards the drafts as completed, and must therefore consider that defendants indorsed them in the same capacity in which they drew them.</p> <p>The tutrix and co-tutor, administering the plantation of the minor, Magill, had the right to draw those drafts on the factors of the plantation of said minor. The drafts were predicated on the crops, which were not shipped to New Orleans, where the factors resided, on account of the war. The tutrix had authority of the court to borrow money on mortgage to carry on the plantation. If she could accomplish this object without the mortgage, she not only had the right, but it was her duty, to execute for the minor the less onerous obligation. There is nothing in the record to fix the liability of the drawers individually,</p>

<p>The homestead law, being in derogation of the common right given to creditors on the property of their debtors, must be strictly construed.</p> <p>This law says that one hundred and sixty acres of ground and the buildings and improvements thereon, occupied as a residence and bona, fide owned by the debtor, shall be exempt from seizure under execution. This evidently refers to the actual residence of the debtor, occupied by him as proprietor, and not that he may select any' one hundred and sixty acres of ground included within the whole property.</p> <p>This case illustrates the intent oí tho law to preserve to the debtor his homo, provided it does not exceed two thousand dollars. Here the residence or dwelling of the debtor is worth over ten thousand dollars, and, of course, he could not retain it under tho law. But the law does not say that he may take any other portion of the land on which the dwelling occupied by him is not situated, and ■establish a residence for the purpose of securing a homestead. It is only the ■ground on which is the building occupied as a residence that may constitute a homestead for the unfortunate debtor — his constant, usual residence.</p> <p>Therefore the plaintiff is not entitled to homestead on any part of his plantation other than the ground, to the extent of one hundred and sixty acres, on which stand the buildings and improvements occupied by him as a residence. Tho ■ law does not give him tho right to change his residence after seizure, for the purposed establishing a homestead on another and less valuable part of the land, and thus evade the restriction in the law as to the value of the property to be claimed as a homestead. His creditors contract with him in this respect with reference to the character, value, and condition of his residence.</p> <p>The motion to set asido the writ of fieri facias on the ground that tho seizure of the part of the property was not affected by the injunction against the sale of the whole plantation could not be granted. The validity of the seizure of tho part claimed as a homestead was dependent on the injunction, and the release of the •other property from the seizure did not embrace that embraced in the injunction. Tho action-of the court on the rule was nothing more than tho action of tho court on the injunction.</p>

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

<p>Several grounds are set up for the injunction in this case, the most important being that there was no legal notice or citation, wherefore the payments for taxes relied on by the defendants were null and void, inasmuch as the publication directed to Richard Murphy, who had been dead for years, was no notice to the minor, Richard James Downey, who aeauired the property in Question from Richard Murphy as testamentary heir in 1867. The court decided in accordance with these views, but on rehearing reversed its former decision by reason of the law and evidence being in favor of defendants.</p>

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

<p>The court below erred in refusing to order a special jury of merchants for tho trial of this ease, as reauired by one of the parties and assented to by the other. It is one peculiarly demanding a jury of men skilled in accounts and having a practical knowledge of book-keeping,.competent from their skill and experience to adjust books of accounts, to correct erroneous entries, to establish proper balances, and to fix the exact state of numerous and complicated business transactions. The ease is remanded.</p>

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

<p>APPEAL from the Superior District Court, parish of Orleans. Haw-Id ns, J.</p>

<p>On the trial of this suit, which is a petitory one, the plaintiff offered witnesses to prove a private agreement between himself and the defendant, by wliieh the ' latter agreed to take the property in question in his name for the benefit of the plaintiff, or, in other words, to contradict the notarial act of sale and prove title to real estate by parol. This was objected to, and the objection should have been maintained.</p>

<p>'This casa turns on a ciuestion o£ novation. The original notes of Levasseur & Co. to plaintiffs were given up to the former with the exception, perhaps, of one of them not in the possession of the plaintiffs at the time. An exchange of notes took place. Plaintiffs received the new notes executed in their favor hy defendants in pursuance of an agreement entered into between the parties. The intention to extinguish the old n.otes and substitute the new ones to represent the reduced'amount of the indebtedness as fixed by the compromise and adjustment of their affairs by the parties, is sufficiently apparent. The plaintiffs therefore had no right to enforce payment of the original notes, which were no longer obligations against the defendants.</p>

<p>This is an injunction suit to restrain an execution obtained on a tax-judgment in favor of tho city against the defendant. The grounds are that.the property was not legally or properly assessed; that the defendant was not cited; and that the evidence did not authorize tho judgment. Except as to the alleged want of citation, the objections are not grounds for an injunction. Tho errors should have boon corrected before tho judgment became res judicata.</p> <p>But on the trial of tho injunction no evidence was adduced to prove a want of citation.</p>

<p>These cases turn on the validity oí a policy of insurance on a sea vessel.</p> <p>The fact that there are circumstances and actions which are suspicious or which are not satisfactorily explained to all who may be interested, can not be held by courts of justice as contradicting and overcoming the direct, positive testimony of an unusually largo number of witnesses whose veracity is not impeached, and most of whom are not shown to have any interest in committing perjury.</p>

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

<p>Under the circumstances oí the ease the city is responsible for the injury which was done to the property which it had leased from plaintiff during 'the continuance of the lease. The fact that the plaintiff received rents to the first of September, 1873, when the premises were vacated by defendant, without demanding payment for the balance of the rents or for damages, does not estop him from now demanding them.</p>

<p>The difference between the amount sworn to by the assured and the value proved on the trial is not necessarily evidence of fraud and false swearing on his part.</p>

<p>the answer to the first interrogatory, taken alone, may not he so explicit as required. But it is settled that where, by answers to other interrogatories in the same connection, a given interrogatory, not fully answered, is in previous or subsequent answers explicitly answered, this is sufficient.</p> <p>The judge a quo did not err in permitting the defendants to answer certain inter- . rogatories, to which at first they had excepted. They had the right to-except, and, the exception being overruled, they had the right to answer.</p>

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

<p>The record shows that the rule taken hy defendants on plaintiffs to release certain articles seized and appealed from by said plaintiffs was served on the counsel of record, they being residents of Boston. This service is sufficient.</p> <p>After a careful examination of article 644, C. P., and article 1992, B. C. C„ it is impossible to conclude that exemption from seizure of certain objects or tools for the exercise of a trade or.profession can be made to apply to the multifarious machinery and implements constituting an extensive factory and requiring the attendance and skill of a large number of operatives, such as the establishment of the defendants seems to be from the number and character of the articles in the list on record. To apply this provision of the law to this ease would neutralize or paralyze article 3183, R. C. G., which declares that “ the property of the debtor is the common pledge of his creditors,” and would make his property subject to the payment of his debts exceptional. Exemption laws should not be extended beyond their dear intendment; such laws, being exceptional, should be strictly construed.</p>

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

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

<p>The present suits are to recover the damages which plaintiffs failed to recover in a former suit, and the demands are renewed on the ground that defendant swore falsoly when interrogated on facts and articles in the former suits. There would be no end to litigation if such suits were countenanced. The petitions show no cause of action.</p>

<p>APPEAL from the Sixth Judicial District Court, parish of St. Helena, on change of venue from the parish of Tangipahoa. Kemp, J. Jury trial.</p>

<p>These eases present a contestation in a concurso of creditors over the proceeds of sale of a stock of goods sold under legal process by the sheriff as the property of Edward Leon Levasseur. They are all privileged claims against Edward Leon Levasseur, L. H. Gardner & Co. excepted to the sale of the stock of goods being made under process of a different court than that having jurisdiction of their attachment suit, and objections were interposed to the legality of the sale of personal property under orders of seizures and sale. But these 'parties, L. H. Gardner & Go., claimed the proceeds of the property in the hands of the sheriff; and-thoreby admitted the legality of the sale. There is no error as to the distribution as made by the judge a quo.</p>

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

<p>The court a qua had no jurisdiction ratione materia!. The matter in dispute,is a demand in the parish court of over seven thousand dollars by the succession of Brown against the succession of Yentress. The heirs of Brown in that succession are suing the administrator of the succession of Yentress for an amount far exceeding five hundred dollars, based on an indebtedness which they allege was incurred by Yentress while administering upon the succession of Brown.</p> <p>The succession of Yentress can not be sued by the heirs or creditors of Brown in the parish court on a demand exceeding five hundred dollars, it matters not from what cause the debt originated. The jurisdiction of the courts is fixed by the constitution, and its mandates must be obeyed.</p>

<p>APPEAL from the Superior District Court, parish of Orleans. Lynch, Judge of the Fourth District Court, acting in the stead of Judge Hawkins.</p>

<p>Plaintiff took a rule upon the security on the appeal bond, to show cause why ho should not respond to the judgment. The objection is that the writ oifierifacias was returned before the delays therefor given by law had expired.</p> <p>The return shows that the defendant was absent from the city, and that demand had been made on every one, within the reach of the sheriff, interested in the judgment, for the satisfaction thereof.</p> <p>This rule was regularly taken by the plaintiffs, and notice thereof given to the defendant. He appeared by counsel when it was on trial and made none of the defenses set up hero. He does not show in what he was injured. Thero is no error in the judgmont against him.</p>

<p>The united States parted with their title to the land in controversy when the selection thereof was made by the State of Louisiana in 1856, under the act of Congress of the twentieth of May, 1826, and the title remained in the State until it was vested in the plaintiff. Consequently, no title ever vested in Chaney, the defendant, who was erroneously patented by the united States: but, while he could not prescribe against the State or the United States, he was such a possessor as to be entitled to require the plaintiff either to reimburse the value of the materials and the price of workmanship in making the improvements, or to reimburse a sum equal to the enhanced value of the soil.</p>

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

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

<p>The grounds of rofusal shown by the judge a quo apply to the merits on the appeal, except as to the amount involved and the right to app ;al from a judgmont carrying into effect a tax-collector’s sale, as the revenues of the government must be collected.</p> <p>The record shows that the amount involved exceeds live hundred dollars, and. the judgment being a final one as to the issues raised, the relators have a right to appeal from it.</p> <p>The court is not aware of any law or principle of law which takes cases in regard to State taxes out of the rule applicable to appeals as established by the constitution.</p>

<p>In this petitory action to recover a lot of ground in the city of New Orleans plaintiff relies on a record in the conveyance office of an agreement to sell, by Fletcher Coyle, to one Mrs. Mowbray, under whom he claims as purchaser, and who acquired the lot under private signature from Coyle, who had not alienated the same prior to the sale to plaintiff.</p> <p>This instrument is not proven to have been executed by Coyle, as required by article 2253, Revised Civil Code. The registry therefore of the agreement in this ease does not make proof of its execution by the parties, and has no effect against the defendant, against whose good faith nothing appears.</p>

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

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

<p>PPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.</p>

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

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

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

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

<p>The plaintiffs have authority to prosecute this suit. They sue in behalf of the schools, and the inhabitants of the parish, and derive their authority from act No. 121 of 1861.</p> <p>This is an ordinary action to dissolve a sale and recover rents, and defendants are duly cited. The portion of the petition in the nature of a rule to show cause was not acted on.</p> <p>There is a cause of action fully set out. The demand to dissolve is one well known to our bar.</p> <p>This is not an action of rescission, and is not in the eases provided for as contemplated by the article 1912, R. C. C.</p> <p>The action for a dissolution, when a suit is noeessary to enforce the resolutory condition, is a putting in mora, as it may be met by paying the price, and the judge may even grant a delay for such a purpose.</p> <p>when the purchaser fails to comply with his engagements, the resolutory condition implied in all commutation contracts takes effect, and the seller has the right to sue for a dissolution of the sale.</p> <p>The defense that, because the notes given as evidence of the price are prescribed, the action to dissolve is also prescribed, can not be considered as well founded.</p> <p>The resolutory action is prescribed only by ten years, and the prescription of notes given as evidence of the price-does not affect that right of action, the right to dissolve not being an-accessory to but different from the right to enforce the payment of the price, having its origin in the failure to pay the price; and resting on the principle of justice that the vendee should not retain both the thing and the price.</p> <p>A restitution in integrum must be made. The vendor returns the portion of the price paid, with interest from the date of payment, and the vendee returns the 'thing with its revenues.</p> <p>The judge a quo properly allowed compensation for improvements to offset rents pro tanto, but erred in allowing interest on the rents, as it was not asked for. As considerable time has elapsed since the delay up to which the judge a quo allowed rent, this court will give the rent up to the date of delivery of the property.</p>

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

<p>Notice oí judgment must be given to the defendant in execution three days provious to the advertisement. This notice has not been given to Lapene, one of the plaintiffs in injunction. It has been held that the non-observance of this requisite of the law vitiates the sale of property under execution. If the sale for the want of this formality is to be declared void, it follows that tho sale can bo -prevented for the same reason.</p> <p>It is contended for defendants that judicial process can not be enjoined on a mere irregularity in the mode of its execution. It is not a mere irregularity which is complained of here. Plaintiff sets up what has been decided to bo an absolute nullity.</p> <p>Proper notice of seizure was given to Jacks, but notice to Jacks did not fulfill tho requirements of the law, as to notice to Lapene. Service of notice of seizure on Lapene’s partner is no notice to Lapene. The partnership existing between them was an ordinary partnership. Jacks was not Lapene’s agent.</p> <p>That the defendants in this ease considered Lapone entitled to notice is shown by the fact that they caused him to be notified. The only difficulty is, that the notice was not given as required by law.</p> <p>Because the judgment against Lapene & Jacks was in solido, it does not follow that notice to Jacks was notice to Lapene. He might have owned other property besides the property seized. If so, he had the unquestionable 7-ight to point out such property, to satisfy the judgment which was about to be executed against him, or he might have been willing to pay it.</p> <p>It does not matter that the property soized was partnership property. Lapene’s interest in it was to be sold. His property was to be taken from him, and notice to him of that fact was prerequisite.</p> <p>Animals and utensils attached to a plantation and manufactories, and such articles as can not be easily removed, must be sold on the spot where they were taken, on the day and hour appointed by the sheriff.</p> <p>Mares used exclusively under the saddle and in harness, and not in the cultivation of the plantation, can not be considered as part of the realty.</p> <p>The evidence is satisfactory that the boilers could be removed without damage to the sugar-house, and therefore it was not necessary that the whole property should be sold under tho separate appraisement of the boilers.</p> <p>As to the question of the vendor’s privilege on the boilers, it is res judicata, it being settled by tho judgment which is now stayod by this injunction and which decreed the privilege. The question can not be re-opened.</p>

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

<p>from tlie Second District Court, parish of Orleans. Pissot, J.</p>

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

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

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

<p>Defendant claimed the right to sell certain medicines under his license as a retail merchant without getting another license as a druggist. It is true that merchant means a dealer in merchandise, which general term has a very extended meaning, covering all articles of commerce, including medicines, yet it will not be denied that, although the Legislature requires a license as retail merchant, which probably means a retail dealer in any and all kinds of merchandise, it can still, from motives of public policy, require a special license of certain kinds of dealers, such as peddlers and hawkers, under the thirteenth division of the first section of act Ño. lá of 1872, as well as of those who deal in certain kinds of merchandise, such as those who retail distilled liquors, sell medicines, keep a coffee, soda, or fruit stand, and many others.</p> <p>The twenty-seventh division of the same section provides that every person having more than one shop, store, or other establishment, or who shall exercise or follow more than one trade, calling, and business, shall pay the tax on each separately.</p> <p>Under the section aforesaid, if a retail merchant were to retail whisky, he would be liable to a bar-room-license; if he were to put up á soda fountain, or fruit-stand, or open a private market in his store, he would be liable for the extra license accordingly ; if he were to send out goods for sale as a peddler, or if, in connection with the sale of clothing, he were to employ a tailor or tailors, and, furnishing the cloth, have clothes cut and made to order for sale, in the one case he would have to pay an extra license as a peddler or hawker, and in the other as a merchant tailor. The same rule will apply to the sale of drugs and medicines by a retail merchant, a special license being required therefor under the head of druggist.</p>

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

<p>The defendant has caused certain mortgaged property to be seized by virtue of a judgment and advertised to be sold by the sheriff. The Citizens’ Bank, holding a prior mortgage on said property, enjoined the sale.</p> <p>It is not seen how the interests of the bank could be affected by these proceedings. It is clear that the mortgage creditor has the right to have the mortgaged property sold. It is also clear that no sale thereof, no matter how made, could affect the bank’s mortgage, unless the bank consented thereto.</p> <p>The bank has the right to cause the property upon which its mortgage rests to be sold, in whose hands soever it may be found, and nothing which the seizing creditor could do. unless with the bank’s consent, could affect its rights.</p> <p>As to the objection that the property is to be sold in lots of from ten to fifty acres, the reply is that under the present constitution it could be sold in no other way. It may be that the constitution does not affect the rights of the bank, as the bank’s mortgage was upon it before the constitution was adopted, but the result of this is simply that the bank’s mortgage, or its rights thereunder, remain un-divested and undisturbed by the sale which the plaintiff, through the sheriff, seeks to mako. upon this point, however, this court expresses no opinion.</p>

<p>In a suit by Diboll against the Etna Lite Insurance Company judgment was rendered in his favor for the amount of the insurance policy, and the demand of Nancy Lottspeieh, who had intervened and claimed the amount of the policy, was rejected. The company appealed, but the surety on the appeal bond having failed to justify, or not being good, execution issued, and the company paid to the sheriff the amount of the judgment. The intervenor had also taken a de-volutive appeal. To prevent the sheriff from paying over to Diboll the money collected, the intervenor Lottspeich sued out this injunction. The court perpetuated the injunction, and Diboll appealed.</p> <p>The court beloiv erred. The controversy in regard to the rights of the contestants on the life insurance company was pending before this court on appeal, and the court a gúa had no jurisdiction, further than to test the solvency of the sureties on the appeal bond.</p> <p>The time for granting conservatory orders at the reauest of the litigants had passed. ' until the appeal was disposed of by this court, the court below could grant no orders or assume no jurisdiction in the premises.</p>

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

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

<p>Tliis is a suit for damages in consequence of an alleged violation of contract.</p> <p>It is impossible to say what will be the result of an enterprise which depends upon the employment of labor and the wants of a community, and so the future profits which the plaintiff expected to make can not be considered. The question is. what damages had the plaintiff sustained up to the time this suit was instituted, and how these damages are to be ascertained.</p> <p>The plaintiff is not entitled to any interest on the amount of money expended by him in the erection of his buildings, etc.; neither can the defendant be held responsible for the difference between the cost of the brick-yard with its buildings and its present value. It may have been extravagantly built; it may not have been worth the price paid for it; it may increase in value after the rendition of this judgment. In other words, it is subject to the same fluctuation in value that every other species of property is subject to, and does not form an element in the consideration of damages.</p>

<p>The Second District Court had jurisdiction to determine whether or not property was properly seized under a writ issued by its authority. The levying of the fieri facias brought the property within its jurisdiction, and it was the only tribunal to pass upon the correctness of the seizure.</p> <p>Act No. 2 of 1873, in its first section, provides that said act shall not be construed to prevent the Second District Court for the parish of Orleans from exercising all the powers granted by section five of act No. 2 of the special session of 1870, approved March 16, 1870.</p> <p>The reservations contained in said act of 1873 concerning the Second and Third District Courts were made in view of the exclusive jurisdiction of injunctions, in all other respects conferred on the Superior District Court created by said act; the jurisdiction of the other courts in other matters not mentioned in said act remaining undisturbed. The power of the respective courts to pass on and determine all matters connected with the jurisdiction of each, and the execution of writs issued by each, as it before existed, was not infringed.</p> <p>The Second District Court had jurisdiction of Johnson’s claim against the succession of Heavia and of the execution or enforcement of the judgment rendered thereon, and necessarily of all auestions arising in the execution or enforcement thereof, there being no limit as to value to its jurisdiction, as in the case of parish courts.</p> <p>If Stanton, the third opponent in this instance, were to institute a petitory or pos-sessory action to recover real property, he would of course have to go into a court of ordinary jurisdiction: but when his property is seized under an execution against another person, he can go into the court issuing the writ to have it released because it did not belong to the-debtor.</p> <p>Stanton having established the reality of his purchase, the property purchased by him could not therefore be seized under an execution against his vendor until the sale was duly set aside.</p>

<p>The homestead law can not be in-Ned to defeat the vendor’s privilege, nor ean it be exercised upon property held in indivisión.</p>

<p>A ease is here presented which makes it the duty of this court to enforce the law in relation to the obligations and liabilities of administrators. It is essential to-the rights of all persons interested in successions, whether heirs or creditors, that the weighty and responsible duties of administrators should be, as the law emphatically demands, well and faithfully performed. They are expected and intended to be faithful agents, regarding strictly what the law reauires of them and conforming in all their proceedings to its provisions, not speculators and spoliators looking to their own aggrandizement, reckless of the injury and ruin of those whose interests they have under their control. A sufficient showing has been made in behalf of the plaintiff in this case to grant the prayer of her petition for the removal of the administrator.</p>

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

<p>An extension oí the return-day does not carry with it the “ days of grace ” added to the original return-day, and a second or subsequent application for an extension must be made on or before the day to which the extension is made. This has been repeatedly held.</p>

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

<p>The plea of res judicata can not be based on the judgment of a justice of the peace in bar of a suit in -which the title to real estate is in question. Such a judgment would be void ratione materice.</p>

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

<p>is manifest that the defeiutant^caiW^ot avail himself of the pretended illegality of a proceeding in another and different case. He should himself have made the objection (if it existed) at the propertinie, and not acquiesced in the drawing of the jury, and after judgment urged the'febjection, as he did. He dan not take the chances of a trial and then object. \</p>

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

<p>The will in controversy was in the possession of the testatrix. She rectuested one of the witnesses to read it, which he did in her presence and in the presence of the subscribing witnesses. She declared after the reading that it was her will, and she signed it. The will is valid.</p> <p>It can not be seen how the testatrix could better have "presented” the will to the witnesses. Indeed^ she could only have done it in one other way. to wit: by taking it up in her hand, giving it to one of the witnesses, declaring at the time in terms: “ This is my last will.”</p>

<p>APPEAL from the Parish Court, parish of Bienville. T. J. Butler, Judge ad hoc.</p>

<p>APPEAL from the Parish Court, parish of Franklin. Brice, J.</p>

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

<p>It is not shown that the custom is universal among dealers in goods to insure the articles they are ordered to ship. Plaintiffs prove that- they never insure goods sold by them, unless specially ordered to do so, and this court thinks that their dealings with defendant indicates this fact. Moreover, defendant was clearly informed that plaintiff had not insured the goods sent, and did not remonstrate. Hence, defendant is liable to plaintiffs for the claims sued upon.</p>

<p>APPEAL from the Parish Court, parish of Union. Lewis, J.</p>

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

<p>APPEAL from tlie Fourteenth Judicial District Court, parish of More-house. Say, J. Jury trial.</p>

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

<p>The main defense is that the plaintiff was at the time the contract sued upon was entered into, and is now, a member of the Minden Board of Trustees, and that he could not make a contract with said trustees or with their agents, and that the contract was null and void. This defense is without any force. There is nothing in law or in morals that could prevent the plaintiff from entering into a contract with the defendant represented by a committee duly authorized thereto. No fraud is alleged.</p> <p>If there is any bad faith exhibited in this case, it seems to be on the part of the defendants, who, having entered into a contract with plaintiff, have received the fruit of his labor and materials, and refuse to pay for the same under the pi-e-text that a person, whose property and labor they are enjoying, had not the capacity to contract with themselves — a fact known to them when the contract was made, if it be a fact.</p>

<p>The appellee lias moved to dismiss this appeal because the appellant has not filed an assignment ol errors. This is no cause for dismissing an appeal, except-•when the record brought up has not been duly certified by the clerk of the lower court as containing all the testimony adduced; or, to be more accurate, the failure to file an assignment of errors is not a cause to dismiss an appeal; but, on the contrary, the assignment of errors is a means to prevent the dismissal of a defective record.</p> <p>The only judgment which could have been rendered, based on the failure of the-plaintiff to appear and prosecute the suit, was one of nonsuit, under the recon-ventional demand for damages, the defendants might have insisted upon a trial of the cause, notwithstanding the absence of the plaintiff, but they could not dismiss the main suit and try the reconventional demand afterward. Besides, a. jury had been allowed in the ease, and no trial could legally have been had without a jury, except by consent of parties.</p>

<p>This suit was instituted by the defendant in injunction, against'the securities on the injunction bond, to recover damages arising out of the alleged improper issuance of the injunction. To this demand the plea of res judicata, is opposed. The judge a quo erred in sustaining it. The present defendants were not before the court, when final judgment was pronounced in the case wherein the injunction issued, and nothing was decided as to them.</p> <p>Article 304 of the Code of Practice relative to injunctions applies only to injunctions which arrest a j udgment.</p> <p>Actions upon bonds are not prescribed in three years.</p>

<p>The claim o£ plaintiffs is for a sum exceeding five hundred dollars, and the fact that in the answer and as a witness defendant admitted being indebted for a less sum did not change the demand of plaintiffs. Had the amount admitted been certain and plaintiffs taken a judgment therefor, and thus left a small amount only in contest, the jurisdiction would have been affected. It is the demand of plaintiffs', that gives jurisdiction.</p> <p>The simple act of giving a mortgage to a creditor to secure his claim does not of itself constitute a ground for the writ of attachment.</p>

<p>The motion filed on the trial of this suit to dismiss the opposition on the ground that the account of the public administrator had been homologated, and the opposition had been dismissed, can not be maintained. It is sufficient to say that the judgment dismissing the opposition and homologating the account was appealed from, and reversed by this court.</p> <p>As to the other point, that the term of the office of the public administrator had expired, it is ectually untenable. It is repugnant to reason and to justice to suppose, that one who administers a succession by virtue of his office of public administrator, can escape responsibility for his maladministration, because he no longer holds the office of public administrator; and whether or not his successor in the office of public administrator should have been a party to this suit, as prayed for by opponent, it is clear that Vaughn, the former administrator, was before the court for all the purposes of this suit.</p> <p>The judge a quo erred in permitting the filing of an answer to the opposition by another creditor, and after the case had been fixed for trial. Replications are not allowed in pleading in this State. The opposition is in the nature of an answer, and no answer to that should have been allowed, much less by another creditor, and after the case had been fixed for trial.</p>

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

<p>The accounts of tho curator of the interdicted, which were filed and homologated previous to the filing of the last tableau, are, according to the provisions of the Civil Code, prima facie correct, but they do not form res judicata.</p> <p>The accounts are presumed to be correct, unless the contrary be shown, but this , may be shown on opposition to the final account by the accounts themselves or by other testimony, and if these accounts disclose charges which are evidently illegal or exaggerated, this court can notice the fact and correct them.</p>

<p>The jurisdiction oí the appellate court does not attach until the appeal bond is Hied. But it necessarily follows that, when the appeal bond is filed, the appellate jurisdiction does attach. When the appellate jurisdiction attaches that of the district court ceases.</p> <p>Now, plaintiffs applied for an appeal and perfected their appeal. Between the time of their motion for an appeal and the perfection thereof, they proceeded as - though they proposed to acquiesce in the judgment. But wlien they filed their bond, they perfected their appeal, and that appeal must date from the day on which it was granted. Therefore plaintiffs must be considered as having taken their proceedings after their appeal was granted. But at that, time the district. eourt'had ceased to have jurisdiction. It follows that all of their subsequent proceedings are nullities.</p>

<p>'The judge a quo did not ei-r-when admitting the evidence objected to. It was necessary to establish that the property stolen belonged to some one, other than the defendant; and what the defendant had sworn to in a j udicial proceeding against the ownership thereof was good evidence.</p> <p>'The judge a quo erred in permitting a witness to prove certain confessions made by the defendant to one Davis, which confessions were not made in the presence of witness, and which he only knew through Davis. It was the weakest of hearsay evidence. The facts, if they existed, should have been established by Davis, who was in court.</p> <p>The court below did not err when refusing to charge the jury that the value of the horse alleged to have been stolen should have been established. The statute declares horse-stealing to be a crime, and this without regard to the value of the animal stolen.</p> <p>'The judge a quo properly overruled the objection to the testimony of Davis as to confessions made by the defendant to him, which objection was based on the ground that the witness could not state that he remembered all the confessions which the accused had made, but only some of the particular points thereof. The objection went to the effect of the testimony, and not to its admissibility.</p> <p>'The State should not have been permitted to impeach its own witness. This was of some eonseauence, as the testimony was introduced for the pur-pose of identifying the stolen horse. ' ■</p> <p>The defendant having offered to establish and having established by two witnesses that the reputation of Davis, a State witness, was bad as to veracity, the judge a quo erred in instructing the jury to disregard the testimony, on the ground that the witnesses had not heard a majority of the people in the neighborhood of the impeached witness express their opinion of his character. The testimony was admissible, and it was for the jury to determine whether it was sufficient or not to do away with his credibility.</p>

<p>'Tlie defendant, whose seizure of plaintiff’s property is enjoined by plaintiff, who claims the benefit of the homestead law, contends that the property thus seized is not exempt under the law, on account of the nature of her judgment. This is an error.</p> <p>The debt in favor of defendant was not contracted for the purchase price of the. property in Question, but for a loan or loans made by her to the purchaser. The fact that he used the money loaned to him in paying the installments of the price did not make the loans the price, The lender was not the vendor, nor did she acauire her rights from the vendor. Defendant’s construction of the law would make a debt, not secured by any privilege from its nature, superior to all privileges and mortgages. This is not admissible.</p>

<p>It is satisfactorily shown that the father of plaintiff received of his wife, plaintiffs mother, now dead, paraphernal property amounting to seventeen hundred dollars, to secure the restitution of which she had a mortgage, which right of mortgage is inherited hy her eliild.</p> <p>Defendant can not compensate the debt due by plaintiff’s father to her mother by charging plaintiff with the expenses incident to her board, education, etc. If compensation could be pleaded in such a case, still the law prohibits the tutor from expending more than the revenues arising from the minor’s estate, except with the authority of a family meeting, sanctioned by the judge, of which there is nothing in this record.</p>

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

<p>when an appellee asks loi' an amendment oí the judgment he recognizes the propriety of the appeal, and damages are not allowed.</p> <p>It was the intention o£ plaintiffs when depositing a certain amount of money in the hands of defendant, to protect him against paying a bond on which ho had become an obligor. Defendant having the money of plaintiffs in hand and having purchased the bond on which he was an obligor, his purchase inured to the benefit of his co-obligor-s, who had protected him, and is bound to return the surplus over the amount of his purchase. He can not speculate thus on his co-sureties with their funds.</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. Looney, J.</p>

<p>The petition alleges that the plaintiffs resided in the city of New Orleans, without saying in the State of Louisiana. If the judge a quo erred, it was in sustaining the exception on this point. The amendment was properly allowed instante)' and without service. Courts will not exact the performance of vain things. The service of the amended petition would have been a useless formality.</p> <p>The judgment condemning tho defendants in solido is correct. The note sued upon declares that “ we, or either of us, promise to pay,” etc.</p>

<p>A few days after the bond, of which the ownership is in controversy, and which was executed in favor of Cox for property purchased at sheriff’s sale, Cox sold and transferred said bond to plaintiff by a written act, to the knowledge of the sheriff, who was a witness to it. The sheriff was the depositary of Cox, and when Cox transferred the bond and notified the sheriff thereof, said sheriff held the bond for plaintiff, the transferee, from whom he received instructions in regard to said bond. There was constructivo delivery, if not actual delivery, of the bond.</p>

<p>APPEAL from the Fourteenth Judicial District Court, parish of Oua-chita. Bay, J. Jury trial.</p>

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

<p>The burden of proof is on the party who alleges a breach of duty, even though it < involves a negative.</p> <p>Plaintiff pleads that there was error in the subject-matter of the eontz'aet upon which the writ of seizure and sale issued against him, because the vendor sold the whole of the growing crops of the purchased plantation, when, in fact, the laborers on tho place were entitled to the half thereof, and because the plaintiff has actually been evicted of the half of said crops. The plea is untenable.</p> <p>The sale of the plantation was made in July; the growing crop formed part of tho realty and was transferred with the land; tho laborers, who were cultivating the land for a part of the crops, did not own the crops, but for their services they had a privileged lien on the crops, provided they had taken the precaution to have their claim recorded.</p> <p>These laborers continued to work on the place without any new contract with the vendee, and after tho crops were gathered the vendee settled with them according to their contract with the vendor. The pretext that he has been evicted of a part of the property purchased is absurd.</p>

<p>APPEAL from the Parish Court, parish of Catahoula. Marshall, J.</p>

<p>Defendants have objected to the filing: of plaintiffs’ amended petition on the ground that it oame too late and it altered the substance of the demand. The objection is not well founded. The amendment was made before the trial, and it does not appear to be such a change in the character of the demand as is contemplated by the Code.</p> <p>unless the plaintiffs were notified of the proceedings in bankruptcy, they were not parties to them and were not bound thereby. The only thing which has the appearance of notice is the schedule and publication which are filed by the bankrupt. But this is not sufficient. The parties in interest must be notified, and of this fact there is no evidence in the record.</p> <p>The plea of prescription of five years is not tenable. The notes were all dated Jan-nary 14,1867, and payable in one, two, and three years from date. Judgment was obtained on the first note on the twenty-seventh of March, 1868, and this suit was instituted and service was made on the ninth of January, 1874. The two other notes were due on the fourteenth of January, i860, and fourteenth of January 1870. As service of this petition was made on the ninth of January, 1874, it follows that the suit was instituted and the defendants cited before the expiration of five years after they fell due.</p> <p>The prescription of two years, relied upon by defendants, refers to actions in bankruptcy as to matters between those who were parties to those proceedings. Plaintiffs not having been made parties to the bankrupt proceedings referred to in this case, it follows that they are not governed by the law which defendants invoke. and, as said plaintiffs were not before the bankrupt court, they are not bound by its decree.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Oaddo. Callihan, Judge ad hoc.</p>

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

<p>APPEAL from the Parish Court, parish of Caddo. Oressvoell, J.</p>

<p>The property In controversy belonged to the community existing between the plaintiff and husband, H. Murphy, now deceased. The plaintiff having sued her husband for separation from bed and board, and for paraphernal property, and for her interests in the community property, the suit was dismissed by con7 sent; and by an act in the form of a donation the usufruct or the rents of one half of the property, separate and community, owned by him, was given to her during her life, and ho agreed not to sell or incumber the property. This is claimed to be a compromise of the suit.</p> <p>Shortly after this, the property in dispute was mortgaged by Murphy to Hoss, the defendant in this suit, for money loaned. Murphy having died, and Hoss having obtained an order of seizure and sale of said property, the sale was enjoined by plaintiif, and on appeal to this court said injunction was dissolved.</p> <p>On the aforesaid property being finally sold on a writ of seizure and sale obtained by Hoss, it was adjudicated to him, and the sheriff ejected the plaintiff from the premises in order to give the said Hoss complete possession, and'this was done some time after the sale, and after the sheriff had returned the writ. It is of this act of the sheriff that the plaintiff chiefly complains. She maintains that the property did not belong to the succession of her husband, but had become hers by virtue of a partition resulting from a judgment obtained by her contradictorily with her co-heirs pending the injunction suit aforesaid, and recognizing her rights as asserted in said injunction suit.</p> <p>The judge a guo erred in overruling the plea of res judicata set up by defendant. The alleged grounds in plaintiff’s petition are the same in substance as those set up in the injunction suit.</p> <p>The partition judgment obtained by plaintiff could not affect the rights of the mortgage creditor, who then had the property under seizure, or of any other creditor.</p> <p>If in the suit of the plaintiff against her husband the act of donation which took place be regaided as a compromise, and if it be conceded that the law authorizes compromises between husband and wife (which, however, this court does not believe), still it could have no greater effect than a regular judgment, and it is well settled that, when a wife asserts any rights against a creditor of the hus- ‘ band, by virtue of a judgment in her favor against him, she must prove that the judgment was well founded in law and in fact.</p> <p>The debt of Hoss was created during the community, which was dissolved by the death of plaintiff’s husband. She had not renounced the community, but on the contrary, had taken possession of one half of the community property in a partition with the heirs; she was therefore responsible for her share of the community property in her possession; and the price of the sale went to extinguish taxes and other community debts, which should be refunded to the purchaser, or, at least, tendered to him before an action to revoke the sale can be instituted.</p> <p>The sheriff’s seizure was sufficiently accomplished. He went upon the property and gave notice to all the occupants thereof of his seizure, and notified the tenants to pay rents to him, and he appointed one of the tenants keeper for him. The fact that he permitted the plaintiff to remain on the premises did not vitiate the seizure.</p> <p>The possession of the'judgment debtor is dissolved by the legal seizure under the writ. It is vested in the sheriff until the property is disposed of; that officer is considered the rightful possessor, and can maintain an action of trespass against any person disturbing him in such possession.</p> <p>If the privileged claims which are asserted did exist, they were general privileges, and should have been asserted against the property and money in the hands of the executor.</p>

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

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

<p>APPEAL from the Parish Court, parish of Franklin. Brice, J.</p>

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

<p>The question is, whether a draft given in payment of rent and subsequently lost and not paid was in any sense a novation of the debt due for rent. It must be answered in the negative. The receipt states in express terms that the draft would discharge the debt only when paid. It was not paid. This was not the substitution of a new debt for an old; it was nothing more than an order on a third party to pay the debt of the debtor. The order, having not been satisfied, left the debt as it was before the order was given.</p> <p>The plaintiff was therefore entitled to his writ and to the privilege upon the property which he caused to be seized. As to the intervenor claiming to be paid for supplies furnished for raising the cotton seized, he only appeared to assert his. rights after the property had been bonded. It was too late.</p>

<p>A eheok is always supposed to be drawn against funds, and any one rectuested to indorse it as surety must show that it is to be used differently from its usual purpose, and also show clearly that some specified limit was fixed to his liability. No other object could be imagined for requiring a surety on a cheek than that it should be held for a time, or until funds should be provided.</p> <p>In this ease plaintiffs loaned Kaufman & Co. a sum of money on the check of the latter, with- weil as surety, for a time not fixed, and there was “ no prolongation of the terms granted to the principal debtor without the assent of the surety,” as urged in the defense. Hence the surety has not been released or discharged from the liability assumed by him.</p>

<p>Factors and commission merchants, when exercising their functions of receiving selling, talcing their commissions, and accounting to then-principals, are acting in a fiduciary capacity within the meaning and intendment of the thirty-third section of the bankrupt law of 1867, and not relieved from obligations contracted in that capacity by a discharge in bankruptcy.</p>

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

<p>The law allowing the necessitous widow to claim one thousand dollars out of the succession of her husband has no application to a case like this, where the widow accepted the succession purely and simply and was regularly put in possession thereof.</p> <p>By thus accepting the succession it ceased to exist. She became the owner of the property and also liable to plaintiff for the amount of his claim.</p>

<p>The clofendant-admits that the extended boundary oi New Orleans, under the act of 1R74, No. 71, embraces his property, but insists that that portion of the law is unconstitutional, because it is not covered by or embraced in the title of the act. The court can not concur in this view.</p> <p>The title of the act enumerates other objects besides the annexation of the city of Carrollton to the city of Now Orleans, and among them is the creation of the " Seventh District of the city of New Orleans and a municipal court and a sanitary district,” etc. The boundary of this Seventh District includes the defendant’s property.</p>

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

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

<p>'The relator complains that the amount oí three thousand dollars fixed by the judge a auo for a suspensive appeal, in obedience to a mandamus from this court, is excessive, and that a bond of five hundred dollars, sufficient for costs, is all that is required in a ease like this, where an injunction to prevent the disturbance of the possession of immovable property has been set aside and the suit dismissed on an exception to the jurisdiction.</p> <p>'It seems to this court that a b.ond of five hundred dollars, which respondent concedes to be sufficient to pay costs, will be sufficient for a suspensive appeal, the bond given to obtain the injunction being adequate to cover damages resulting from the injunction.</p>

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

<p>"The effect of the judgment complained of in this instance was to release a seizure which relators had mado in executing their judgment against the New Orleans, at. Louis, and Chicago Railroad Company, involving a sum exceeding five hundred dollars. That this court had appellate jurisdiction,'there can he no doubt. "Whether relators had the right to make the seizure, is a Question that will arise when the ease is heard on appeal. The court a aita erred in denying to relators their constitutional right of appeal.</p>

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

<p>under the circumstances of the case relator is not entitled to the relief she asks. The order which she obtained contradictorily with the parties in interest, requiring the sheriff to put her- in possession of the property which she alleges was adjudicated to her by the auctioneer at the partition sale, was suspended by a suspensive appeal.</p> <p>The answer to the assertion of relator that no appeal lies from an order of this kind requiring the sheriff to put a purchaser in possession of property adjudicated to him is, that said question can only arise in this court, which has jurisdiction of the order appealed from, until this appeal is disposed of by this court, the judge a quo has no jurisdiction to enforce the order or judgment in question.</p>

<p>The appeal bond in this instance is for fifteen hundred dollars, and the surety swears that he holds and owns two promissory notes amounting to fifty-six hundred dollars, given for money loaned by him, on which the interest is regularly paid by the makers, and that he does not owe anything. The auestion is, whether he is a good and solvent surety aoeording to the law and jurisprudence of this State. It must be answered in the affirmative.</p> <p>The act No. 24 of 1876 amending article 676, C. P., has not made the surety insufficient. The change from the previous article is the insertion of the sentence: “And having property liable to seizure to the amount of the obligation within the State.”</p> <p>This court knows of no law and has been referred to none which exempts promissory notes from seizure. Hence the surety in this case is sufficient.</p>

<p>The object of the law in giving the creditor a right to prevent the departure of the debtor for the period of three months, is not that the latter may be finally imprisoned upon a writ of capias ad satisfaciendum, but to compel him to pay the debtor or to make an involuntary surrender of his property,</p> <p>whether the creditor’s remedy to compel a surrender be under the State or national law of bankruptcy, he has the same interest in enforcing the presence of his creditor, in order that this surrender may be effected, and although the State may be precluded, for the time being, from enforcing her own bankrupt law, she is not on that account prevented from affording her citizens the means of invoking the bankrupt law of the united States.</p> <p>Therefore it is not true that, inasmuch as the general bankrupt law of the united States has' superseded, for the time being, the insolvent law of this State, it follows that the purpose of the statute authorizing an arrest in civil eases can no longer be fulfilled, -and consequently that the bond sued upon is void.</p>

<p>In matters oí habeas corpus the jurisdiction of the Supreme Court is original ancl not appellate. The present ease is one in which this court may have appellate jurisdiction. Hence this writ of habeas corpus must be discharged.</p> <p>whether the injunction in the present instance, for the disobeying of which relator has been imprisoned, is well founded or not, is a matter to be determined on the trial thereof in the lower court and afterward on appeal.</p> <p>This court does not wish to bo understood as saying that relator has no remedy, if' he lias suffered a wrong at the hands of the lower court, but it is manifest that he can not be relieved in the present proceeding.</p>

<p>It is not necessary that the parish judge, acting in the absence of the district judge, should have caused to be taken a.rule to show cause before issuing tho injunction prayed for. There is nothing in the law upon this subject which roquires the judge to do this. The amount of the bond to be given is such as tho court may determino. This is a matter of discretion with the judge, which this court is not to interfere with.</p> <p>As to whether the parly enjoined is permitted to set aside the injunction upon giving bond, when the act complained of will not work irreparable injury to tho plaintiff who enjoins — which irreparable injury is not alleged — the question of irreparable injury is the only one which this court can examine on tho appeal applied for, and is therefore subject to its revision. The judge a quo erred in refusing said appeal.</p>

<p>The intention of the testator is the law of this ease. That intention was: First — To give to each of the parties, three in number, named in a certain clause of the will, five thoxtsand dollars. Second — In case of the death of either or all of them, he willed that the shares bequeathed to them should go to the universal legatee. Third — Ho ordered that none of the legatees should be paid until the happening ■of a certain contingency. Neither of the contingencies has happened, and there is no possibility of its happening.</p> <p>It is also clear that the testator intended that his universal legatee should receive the legacies mentioned in ease the three legatees did not marry before they reached the age of twenty-one or did not reach that age. Two of them died before these contingencies happened. The amounts loft to them are therefore, under the terms of the will, to be gathered by the universal legatee, and not by the surviving sister and legatee, the plaintiff in this case.</p>

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

<p>'The main Question in this instance is the one of res judicata.</p> <p>Xu the ease of Keitel vs. Verneuil it was decided, not only that the judgment should bo revived, but that 0. Verneuil, upon whom citation was served in the revival proceedings and who is the plaintiff in the present ease, was the identical person against whom judgment was rendered. This Question was litigated at the instance of Verneuil himself. It was solemnly decided against his pretensions, and he took no appeal, with what color of reason then can he present himself to the same court a few weeks later and ask that precisely the same Question should be again litigated between the same parties through an application for an injunction against a writ of seizure issued against him ? This court is bound to assume that the first decision was right. Bes judicata pro -veritate ac-cipitur.</p>

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

<p>Beyond her revenues, plaintiff had no right to make advances in order to educate the minor, his niece, and the tutorship is not liable on account thereof. Plaintiff, in a former suit, had judgmont for $363 30, the amount of revenues during the period he had the care and education of the child. He is not now entitled to judgment for the balance of his claim, although the court reserved his right to judicially claim it .in subseauent proceedings. The reserving of the right to claim the balance at a future time does not establish the correctness of the demand when the claim is made, nor does it authorize judgment on a claim for which the tutorship js not bound.</p>

<p>This court can not undertake to say in this proceeding whether or not the relator has any interest in the succession-of Bougere. If she has not, on the trial of this ease her appeal will he set aside. She alleges an interest, which she supports by an affidavit. If she has an interest, she is entitled to an appeal from the judgment which decides against her pretensions.</p> <p>The court can not examine in this proceeding whether the relator’s transferrer has, after the transfer or before, appealed from the judgment complained of. The transferee can not be controlled nor can her rights be influenced by any thing which her transferrer has done or may do subsequent to the transfer. The judge a quo erred in denying the appeal.</p>

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

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

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

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

<p>The judgment appealed from Seems to be a final one on the Issues presented. The judge a quo had issued a temporary or preliminary injunction, or, as it is designated, a restraining order, which suspended the execution of a fieri facias. He heard evidence at the trial of the rule, and rendered judgment dismissing the . same and discharging the restraining order. This, therefore, disposes finally of the contest, and accordingly must be signed. By the jurisprudence of this court an appeal does not lie from a definitive judgment until it is signed.</p>

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

<p>All matters which show the transaction to be void or voidable in point of law, on the ground of fraud or otherwise, should be pleaded specially.</p> <p>No appellate court should be called to decide upon auestions that were not raised in the court below. In the present case it is manifest that there was no effort to make good, while the evidence was being adduced, the charges of fraud and concealment, which are now urged so strenuously in the argument.</p> <p>The failure on the part of the association to object to the itemized statement of loss that was presented to them, or to answer the letters of plaintiffs attorney, had an appearance of indifference,' the tendency of which would be to put them in the light of acquiescing in a claim, which, if they had thought it fraudulent or unfounded, they would naturally be supposed to have repudiated.</p>

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

<p>' It is an elementary principle of law that the accused is entitled to the benefit of all reasonable doubts, and before any confession can be received in evidence in a criminal ease it must be shown that it is voluntary. This was not proved in thccase at bar. Therefore the fudge a quo erred in overruling the objection to the admission of the confession.</p> <p>It is competent to inauire whether the prisoner stated that certain things would be found by searching a particular place, and to prove that they were accordingly so found; but it would not be competent to inauire whether he confessed that he had concealed them there.</p> <p>In the present case it was the confession itself which was objected to, and it should have been rejected, whether th.e objects found and other facts corroborated the alleged confession or not, is immaterial in considering the admissibility of the confession. These facts might have been proved, and even that they were discovered in conseauence of the information received from the accused, without making a confession unduly obtained admissible.</p>

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

<p>A mandamus will not issue to compel an officer of the State to perform a duty,, unless that duty is shown to be a purely ministerial one,</p>

<p>The iact that a check on a bank has been certified by the bank, at the reauest of the indorsers, before its delivery to the holder, will not discharge the indorsers. Such a certification arouses no implication that the holder intended to release the indorsers and look only to the bank.</p> <p>Protest is not essential in order to hold the indorsers. It is sufficient if the holder of the paper inform one of the indorsers, on the day the paper matures, that the drawee has failed to pay it, and said indorser in turn informs the preceding indorser the day after.</p>

<p>where a creditor of a succession opposes items of the executor’s account, which aggregate more than five hundred dollars, he may appeal from the decision of the court dismissing his opposition, even though his individual claim against the succession is less than five hundred dollars.</p> <p>Had the decision been against the executor, he could have appealed, and the rule is1 that where one of the parties may appeal, the adverse party may also.</p>

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

<p>The Superior District Court has no authority to enjoin a party from bringing a suit' before any tribunal which has jurisdiction of the suit.</p>

<p>If a policy of life insurance contain a stipulation that the assured shall pay a certain assessment within thirty days from the time that notice is given to him that said assessment is due, and that on his failure to pay said assessment, as stipulated, the policy shall be void, the stipulation will be upheld and enforced.</p> <p>If the assured reside out of the city of New Orleans and the notice of the accrued assessment in writing is directed to him by the secretary of assurers to such address as the assured has left at the office of the secretary and mailed in the city of New Orleans, such notice will be held sufficient, and no evidence will be admitted to show that the assured did not receive the notice.</p>

<p>APPEAL from the District of Orleans. Hcno-ilcins, J.</p>

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

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

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

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

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

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

<p>where a party is prosecuted for a crime against nature, the declaration made by the prosecuting witness about the time he was injured and out of the presence of the accused, are hearsay and will not be admitted except mei’ely.to corroborate the testimony of the witness given on the trial, when that evidence has been impeached.</p> <p>The fact that the witness made complaints about said time may be proved, but the complaints themselves can only be shown in the way of corroboration.</p>

<p>The cashier of a bank draws a note to the order of A, who discounts the note at the bank and deposits the proceeds of it there. A is a regular customer of the bank, and the cashier is his attorney in fact, authorized to transact all his bank business. The note falls due and is not paid. No protest of the note is made. The cashier instructs that the amount of the note be charged to A’s account, which is done. A protests against it, but only to the cashier, to no other officer of the bank. A’s account after that is balanced several times with the amount of the note always standing against him, and he makes no objection to it. After considerable delay he sues the bank for the amount of the note.</p> <p>JTeld — That he can not recover; that the am ount of the note was charged to him by order of his authorized agent, and by failing to object to it when his account was so often balanced he acquiesced in the instructions given by his agent, the-cashier.</p>