Volume 3 — Teissier's Louisiana Reports

<p>On the averment that he had been employed hy the defendant corporation for a term of twelve months at a stipulated salary, and that he had been discharged before the expiration of the term of employment without serious complaint, the plaintiff sued for the whole of the salary which he would have been entitled to receive had the full term of his services arrived. Held: That the evidence conclusively establishes that the employment was by the month, and that plaintiff cannot recover. •</p>

<p>1. Where the facts in the record show that the property in. controversy is worth less, than $2,000, this Court will take jurisdiction of the cause, notwithstanding that, on a previous occasion, a cause affecting the same property was taken cognizance of hy the Supreme Court.</p> <p>2. The remedy for inconsistent or contradictory defences is not a plea of estoppel, but a motion to compel the pleader to elect.</p> <p>3. To permit plaintiff to successfully object by estoppel to either of two alleged inconsistent defences, according to his convenience or interest would practically give him the power to elect for defendants and would deprive defendants of their legal right to elect for themselves.</p> <p>4. Where property is sold for different taxes, one of which was paid previous to the sale, such sale is an absolute nullity, which Art. 233, Const, of 1898, does not cure.</p>

<p>Appeal from Civil District Court, Division “D,”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. Where the defendant, who is sued on three rent notes, in his answer, admits liability for the amount of one of the notes, and makes a tender of same, which the plaintiff accepts,' but makes no averment that the tender is in full settlement of the entire claim against him, he cannot urge that plaintiff’s acceptance of the tender operates as an acquiescence, and therefore a bar to an appeal from a judgment in which the plaintiff is cast as to two of the notes, and has judgment for the note for which defendant has admitted his liability.</p> <p>2. Where the lessor obligates himself to make certain specified repairs to the premises leased, the repairs to be completed by the time the lease is to begin to run, but fails to do so, the contract .containing no liability clause for non-performance, and the lessee failing to put the lessor in default, the former cannot be heard for a remission nor a diminution.</p> <p>3. Where the lessee, by his own act, causes a change in the original specifications and jointly contracts with plaintiff for the new work, which unavoidably causes delay in the completion of the repairs, and carries ,it beyond the time at. which the lease was to begin, he will be held to have had possession of the premises and as liable for.the rent, as though the building had been completely repaired by the time fixed for the lease to run.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>1. “Plaintiff must make her claim certain; to make it prohable will not be sufficient.”</p> <p>2. Plaintiff having alleges ownership of a shed standing on her property, seeking to "recover its value from the defendant, who had removed it,.and was the real owner, cannot now shift her position and claim rental for the ground covered by the building.</p>

Where a motion to dismiss involves an examination of the whole record, the Court may properly refer the same to the merits. Appeal from Civil District Court, Division “C.”

<p>Appeal from Civil District Court, Division “B.”</p>

Where a motion to dismiss involves an examination of the whole record, the Court may properly refer the.-same to the merits. Motion denied' in limine without prejudice. Appeal from Civil District Court, Division, “B.”

<p>1. As a general rule the agent of a carrier who is authorized to issue bills of lading, has no authority to issue a bill of lading for goods which have not been delivered to the carrier; and, as a consequence, if the party to whom the bill of lading was given had no goods, or the goods described in the hill of lading are never delivered to the carrier, the bill of lading so issued in his hands, is, of course, void and cannot bind the principal..</p> <p>2. But, if, in the usual course of business, the agent authorized to issue bills of lading, fraudulently or through mistake or negligence, and where no goods have been received for shipment, does issue a hill of lading and it comes into the hands of an innocent third person, a bona fide consignee or assignee for value, the carrier is estopped from explaining or contradicting the bill of lading and is, consequently, liable to the innocent third person thereon..</p> <p>3. Where one or two innocent persons must suffer by the act of a third person the loss must fall. upon the one of them who, by reposing confidence in, and granting to, the latter, has furnished him the means of doing the injury.</p> <p>4. Where a principal has clothed his agent with power to do an act in case of the existence of some extrinsic fact, necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the powbr is itself a representation, the principal is estopped from denying the existence of the fact, to the prejudice of a third person, who has dealt with the agent or acted on his representation in good faith in the ordinary course of business.</p> <p>5. As between the principal and the agent the true limit of the agents authority to bind the former is the express authority or instructions given to the agent; but as between the principal and third persons the true limit is the apparent authority with which the agent is invested.</p> <p>6. The principal is bound by all the acts of his agent within the scope of the authority which he held him out to the world to possess, notwithstanding the agent acted contrary to instructions; and this is especially the case with officers and agents of corporations as the latter can act only by officers and agents.</p> <p>7. Bills of lading are made by the statute of 1868 (Act No. 150), negotiable “to the same extent as bills of exchange and promissory notes now are;” but even in the absence of statute so declaring them, they are viewed and dealt with by the commercial world as quasi negotiable, and consequently it Is desirable that they should be viewed with confidence and not with distrust.</p> <p>8. The animus of the Statute of 1868 is unmistakable. It was intended to protect both the carriers and the public; the former by punishing any person in their employ for issuing false bills of lading or receipts, and the latter by putting such bills or receipts upon the same footing as commercial paper, and protecting the holder in good faith with all the privileges and immunities g:ven to bills of exchange and promissory notes. Its enactment was in the interest of commerce; it created one of the most important branches of our credit; it secures the most legitimate transactions; it sanctioned, legalized and perfected a fair, but more imperfect custom, Which prevailed before its adoption; it guards against carelessness and error, against surprise and fraud. If, as to innocent third persons for a valuable consideration, the bill of lading could be ex- ' plained or contradicted, the very purpose of tht> Statute would be defeated, for though declared by the act to be negotiable it would be seldom, if ever, negotiable, for its verity could then not be relied on.</p> <p>?. This law in the interest of commerce, and in order to give security to business transactions, has thrown peculiar guards around the rights of persons advancing money on such bills. To allow the carrier to dispute the truth of his bills in the hands of innocent parties, who, in good faith, had advanced upon them, would be to destroy all confidence, upon which commerce so much depends.</p> <p>10. Notwithstanding the rule announced in the leading English case of Grant against Norwood, and which is followed by the Federal Courts, to the effect that whether the bill of lading be in the hands of the original party or in those of an innocent third person, the carrier is not bound thereon, when no goods had been delivered ■for shipment,- we think the better opinion is that which obtains in a number of the sister states to the effect that as between the carrier and a third person, holding it for a valuable consideration, the bill of lading is not open to explanation or correction.</p> <p>11. Hunt & Macaulay vs. Mississippi,-etc., Railroad Co., 29 A., 446, apparently contrary to the views herein announced, shown to be merely elicited and the views of only, a minority of the Court.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>1. The lien and privilege granted under the City Charter, Act. 145 of 1896, to secure the payment of the cost of repaving streets, hears against the lot or property, the front of which has been repaved, not from the date of the letting of the contract for such paving, but only upon completion of said paving evidenced by a certificate issued by the City Engineer accepting the work and fixing the price thereof.</p> <p>2. Where the improvement has been completed and where the engineer’s certificate of that completion has been registered, necessarily after completion, all after a change' of ownership in the property, it would be against equity to allow the purchaser to enrich himself by enjoying the improvement made to his property, and to pass back to his former vendor the burden on the property arising from that benefit. __</p> <p>3. When property is sold pending the completion of the work of paving, in the absence of a convention to the contrary, the purchaser will be deemed to have assumed the anticipated burden which the property sold is to bear.</p>

<p>Appeal from 29th Judicial District Court, Parish of Plaque-mine.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. Where a plaintiff acquires before maturity and for value a note given for a subscription to stock in a corporation, evidence is not admissible to show that the company was never legally organized and that its agent represented to the maker of the note that the company would do a profiable business because the license tax imposed by law was void.</p> <p>2. Even if plaintiff had knowledge of such facts, his right to recover would not thereby be effected.</p> <p>3. The illegality of the organization either was or should have been known to the defendant and did not concern the plaintiff, and the representation that the license tax was void was a layman's opinion on a question of law, which defendant was at liberty to accept or reject at his pleasure.</p>

<p>T. Under the evidence in the record the drayman is not a common carrier in the sense that he is an insurer for damage or injury to goods hauled hy him, and will not he held to an absolute liability for such damage or injury.</p> <p>2. As a bailee for hire the burden is upon him to show that he has exercised care" and diligence in hauling and handling the goods entrusted to him, and when he has successfully met that burden he will not be held liable for damage or injury to same.</p> <p>3. Where, in the case of a shipment of glass, it is clearly shown that the glass was delivered by the railroad company in apparent good order to the drayman, who, exercising reasonable care and prudence, delivered the goods in like apparent good order at a desig-natéd place, where, upon being opened, the glass was found damaged or destroyed:</p> <p>Held: — That the drayman will not be held liable for hidden defects or injuries not attributable to his negligence.</p>

<p>1. When a building contract bond is given for the faithful performance of the contract and as security under the provisions of Act 180 of 1894 and the obligation is in favor of material men and subcontractors and owners, in a sum equal to the contract price, it is void as a statutory bond.</p> <p>¾. The elimination from the bond of the obligation not in accordance with law cannot affect or impair the other which is the law the parties have made for themselves, and the bond remains good as a conventional one between the principal and surety on the one hand and the owner on the other.</p> <p>3. A surety is discharged when, by the act of the creditor, the subro-gation of his rights, mortgages and privileges can no longer be operated in favor of the surety, and when part only of such rights, mortgages and privileges can no longer be so operated, the discharge is pro tanto only.</p> <p>4. It is not firmly settled tliat tlie owner’s claim for demurrage primes: all others.</p> <p>5. There is a passive violation of a contract when the party does not do what was covenanted to he done or does do it at the time or in the manner stipulated, or implied from, the nature of the contract. In such case, it is necessary to put the debtor in default before damages can become due, unless the thing to be done was of such a nature that it could only be done within a certain timé which has elapsed.</p> <p>6. This rule obtains whether the damages be liquidated or not the * liquidation in advance merely obviates necessity of proof as to the extent of the damage.</p> <p>7. The prescription of Act 180 of 1894 is solely, as it states, “in favor of the bond and surety,” and in no manner affects or refers to the liability of an owner who has failed to take the bond required of him by the statute.</p> <p>The limitation is based on the presence and not the absence of a bond.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Issues of fact only are involved herein.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. Art. 2700 C. C. deals exclusively with repairs, necessitated by unforeseen events or by decay, which the lessor is bound to make; whereas Art 2695 C. C. concerns reconstructions rendered imperative by reason of inherent defects, of the thing leased, to such an extent as may prevent its being used.</p> <p>2. In the former case the lessee, if deprived of the use, either of the whole, or of a part, of the leased premises whilst the repairs are in progress, must submit thereto and. is entitled only to a diminution of the rent in proportion to the time during which the repairs have continued, if it exceeds one month, and to the parts of the tenements to the use of which the lessee has thereby been deprived.</p> <p>3. In the latter case, Art. 2695 C. C., the lessee is not obliged to submit to the reconstruction, but may have his action ex conducto; in which event he may also be indemnified for all loss which results as a consequence of the vices and defects of the thing leased.</p>

<p>1. The validity of the registry of a “certificate of assessment or performance “issues under the provisions of Act 73, of 1876, the registry being made in order to preserve the lien and privilege accorded by that act, on abutting real properties, for the cost of works of public improvement, is not impaired or affected by the mere fact that an erroneous rule of calculation was adopted by the public officials charged with the duty of apportioning the cost of the. work of public improvement against the respective abutting real properties, and the insertion of that erroneous amount in the certificate.</p> <p>■ 3. If evidence, dehors the recorded certificate, has established the correct amount which the abutting real property owes, the .under-1 taker who has performed the work under his contract with the municipal authorities, is entitled to recover that amount with recognition of his lien and privilege on the property owning same, and this is the rule even as to third parties who may have acquired the property subsequent to the recordation of the “certificate of assessment or performance; “provided, however, that as to such third persons, no recovery can be had in any amount in excess of that stated in the recorded certificate, although the corrected calculation may show a greater amount to be owing.</p> <p>S. Under the textual provisions of Sec. 63 of Act 86 of 1888, the registry of a tax deed to ¡property sold for taxes under that act, operates the cancellation of only conventional and judicial mortgages. The lien and privilege accorded under Act 73 of 1876, to secure the cost of work of public improvement under a Local Assessment, is not cancelled by operation of a tax sale made under the act of 1888. Inclusio unius est exclusio alterius.</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>Plaintiff having obtained a judgment, from which judgment defendant appealed to this Court, and such defendant having later made application to his creditors for a respite, defendant now urges that plaintiff is without right to prosecute his claim in this Court pending the final determination of the respite proceedings in the Court below.</p> <p>Held: The judgment appealed from will be affirmed, the execution thereof, however, to be dependent upon the final decision of defendant’s application for a respite.</p>

<p>Appeal from Civil District Court, Division “C,”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. All deeds of sale made by collectors of taxes shall be received by Courts in evidence as prima facie valid sales, and there is nothing in the record to impeach the recitals of the deed as to advertisement and notice.</p> <p>2. Wfaere such deeds recite that all the proceedings have been according to law and the tax payer’s denial that he received notice is not obtainable, and the revenue act under which the sales were made did not require the tax collector to keep any record of the pro-eeedings leading to the sale, no presumption can arise adverse to the title from a failure or inability to produce records to that effect, and the burden of proof is not thereby shifted to the tax purchaser.</p> <p>8. The failure of the purchaser to pay City taxes due on the property at the time of his purchase does not impair his title; the State authorities were not charged with the duty of collecting the same, it was no concern of the divested owner or his assigns, and was merely a matter between the City and the adjudicatee.</p> <p>4. A possessor in bad faith is one who knows that he has no title to the thing or that his title is vicious or defective or who, though originally in good faith, becomes informed of the defects of his title by a suit brought against him..</p> <p>5. The judgment under which the sale to defendant was made was an absolute nullity on its face; a servitude does not give a privilege or a right to an action in rem, and it has become settled law that a non-resident cannot be brought into Court without attachment of his property.</p> <p>6. The judgment being absolutely void for defects patent on the face of the proceedings, the party opposing its defects as to him is not driven to a direct action in the Court which rendered it to secure the declaration of its nullity, but may attack it at any time and anywhere.</p> <p>7. The owner of the soil, as a general rule, is liable to a possessor in bad faith only for those improvements of which he may order the removal, and in the case of improvements inseparable from the soil, the principle, by which one man is not permitted to enrich himself at the expense of another, has no application.</p> <p>8. But this rule cannot be strictly enforced in a City, where such matters are in part governed by police regulations in the iiiterest of the public health, and we may not ignore the binding force of a City ordinance compelling the filling of lots which are below grade and covered with stagnant water.</p>

<p>Plaintiff sued defendant for a ballance due on accounting for a consignment of rice made to him by defendant. The latter contended that the shipment was made on the basis of a fixed price guaranteed to him by plaintiff and that a reformation of the account on the basis: of this alleged guarantee shows a balance in his favor which he claimed in reconvention.</p> <p>Held: That it is conclusively established that no such guarantee formed the subject of contract between the parties; that the rice sold by plaintiff, on a sample furnished by defendant, and at a figure equaling the alleged guaranteed price; that the rice when received sampled below the grade of the original sample; that it was rejected by the purchaser and was finally sold by plaintiff to the possible advantage for defendant’s account.</p>

<p>In an action for the recission of a sale for the non-payment ,of the purchase price where plaintiff is non-suited for making the broad averment that the purchase price was not paid, when in fact a portion of the price had been paid;</p> <p>Held: That plaintiff is not estopped from again proceeding on the same cause of action, and supplying in-his second petition, the averment of partial payment and tender of same to defendant, for the reason that both petitions are substantially the same, the gist of both, being that the purchase price had not been paid, a partial payment made, not being the purchase price stipulated in the act.</p>

<p>The issues of fact involved herein depend for a solution not on the credibility of witnesses hut on the appreciation of their testimony.</p>

<p>This cause involves the interpretation of a written contract in the light of verbal testimony received without objection, showing the intention of the parties thereto and the construction which their conduct has placed upon them; held, that such interpretation must be. judicially enforced.</p>

<p>1. In a third opposition to a seizure of property based upon the alleged ownership of said property, the issue to be tried between the third opponent and the party provoking the seizure is the fact of ownership. The third opponent stands in the attitude of a plaintiff, and is bound to administer proof of his opposition. But he cannot enquire into the validity of the proceedings between the plaintiff and defendants in original suit, or question the regularity of the seizure. His position is that of a plaintiff in a petitory action and he can recover only in the strength of his own title and not on the weakness of his adversaries. 12 A. 341; 8 N. S. 661; 15 A. 136; 1 R. 41.</p> <p>2. Where a forfeiture of specific articles is imposed by\a criminal statute as one of the punishments to be inflicted upon conviction of a person for a crime or offense, and the Court before which the’ personal offender is tried, convicted and sentenced, fails, omits or refuses to include in the sentence the forfeiture, no divestiture of title of the specific things results.</p> <p>3. Where forfeiture is imposed by a statute as a punishment for crimes or offenses it can only be adjudged and enforced by a criminal proceeding, unless a different mode of procedure be expressly provided for.</p> <p>4. Where a thing whereof there is an owner passes into a situation antagonistic to the law he may lose his ownership in it, whether personally guilty of crime or not, because the thing has offended. The punishment, if such it be called, falls on the thing and does not visit the owner’s person. Though he lose it, and it lapses to another, or the State, the loss is not in the nature of a penalty for personal crime, hence the proceedings to obtain judicial condemnation is necessarily civil.</p> <p>5. But where the' forfeiture of specific articles is embraced in a criminal statute as a punishment for a crime committed by a person and depending upon conviction in personam, the forfeiture is then of a specie of fine and rests upon the same principle, as a sentence to pay a sum of money. The proceedings then is necessarily criminal and the forfeiture can, therefore, be declared only by a Court of competent criminal jurisdiction and as part of _ the sentence after conviction. Bishop New Criminal Law, Sections 816 and 944; Markham vs. Cole, 2 L. 585; State vs. Williams, 7 R. 252; State vs. Manestero, 4 A. 380; State vs. White, 13 A. 513; State vs. Robbins, 24 N. E. Rep’s 978; Green vs. Briggs, 1 Curtis 311; TT. S. vs. Three Tons of Coal, 6 Biss 379; Boyd vs. U. S., 116 TJ. S. §16; State vs. Smith, 2 Terg. 272; Vowells vs. Commohwealth, 8 Ky. Law Rep. 74; Williamson vs. Cooke, 44 Miss. 367; Fisher vs. McGerr, 1 Gray (Mass.) 616; Boyles vs. Lynae, 1 Root, (con.) 195.</p> <p>6. The meaning of the word forfeit has to he determined by the connection in which it is used. When used in Civil proceedings and in connection with the enforcement of Civil rights it contemplates an ordinary Civil judgment which need not even be penal in its character; but when used in a criminal law it denotes a punishment for a statutory crime-and contemplates a criminal judgment or sentence.</p> <p>7. When forfeiture is imposed-by a statute as a punishment for a statutory offense there is no substantial difference between it and a fine. A fine is a pecuniary punishment for an offense and a pecuniary punishment called a forfeit is equivalent to the same pecuniary punishment called a fine.</p> <p>8. There can be no such thing as a statutory forfeiture without judicial sentence. This is an elementary principle and a constitutional gaurantee. Cooley on Com. Lim. 362; TJ. S. vs. Fifty-six Barrels of Whiskey; 1 Abbot (TJ. S.) 92; TJ. S.'vs. Stowell, 133 TJ. S. 1; TJ. S. vs. One Copper Still, 8 Bliss 270; TJ. S. vs. Brig Neuro, 19 How. 92; The Calidonia, 4 Wheat 100; The Thomas Gibbons, 8 Cranch 121; Gibson vs. Hoyt, 3 Wheat 354; TJ. S. vs. Brig Mars, 8 Cranch 41; TJ. S. vs. Nineteen Hundred and Sixty Bags of Coffee, 8 Cranch 398; Caldwell vs. TJ. S., 8 How. 381; Thalcher vs. TJ. S., 103 TJ. S. 685; Henderson’s Distilled Spirits, 14 Wall 56; Gear vs. Bullock, 34 Ill. 94; Fire Department of New York vs. Kip, 10 Wend. (N. Y.) 266; Williamson vs. Cook, 44 Miss. 367.</p> <p>9. No person by his misconduct can so forfeit a right that it may be taken from him without judicial proceeding in which the forfeiture shall be declared in due form.</p> <p>10. Judgment is the consummation of the proceedings that the law requires to be instituted to ascertain the fact of forfeiture.</p> <p>11. Where a forfeiture of property for the violation of law is made absolute by statute, the decree of condemnation, when entered, relates back to the time of the commission of the wrongful act. The title to the beneficiary is not consummated, however, until after judicial pronouncement, but the right to them relates backwards to the time the offense was committed so as to avoid all intermediate sales and incumbrances between the commission of the offense and the condemnation.</p> <p>12. Act No. 12 of 1870, entitled “an act to repeal the thirteenth paragraph of Section 3 or an act entitled, ‘an act to provide a revenue for the support of the State Government of Louisiana, and the manner of collecting same,’ approved March 1869,” to define and prohibit gaming and provide penalties therefor, and which provides as the several punishments to be inflicted, on conviction, of any person violating same, a fine and a term of imprisonment and a forfeiture of specific articles used and employed in the game, is a criminal statute.</p> <p>13. Forfeiture under this act no more follows, proprio vigore, the mere conviction, then do the other punishments imposed by the satute.</p> <p>14. The forfeiture, like the fine and the imprisonment, to be effective and to operate against the convicted person, must he pronounced in the sentence, upon conviction of the accused person.</p> <p>15. If the forfeiture, no less than the fine imposed by the statute, is omitted from the sentence, it cannot be imposed by a Court of exclusive civil jurisdiction.</p> <p>16. Omitted from the sentence by the 'Criminal Court, no forfeiture ensues and, as a consequence, no title to the things which the Criminal Court could have decreed to be forfeited, but did not, is diverted from the convicted person.</p> <p>17. Statutes imposing forfeitures must be strictly construed and construed most favorable to those against whom the forfeiture is directed.</p> <p>18. All proceedings directed by the Statute for enforcing a forfeiture must be strictly followed.</p> <p>To the extent that the Judgment appealed from rejects the demand of Isidore Busha it is affirmed; but so far as it maintains the opposition .of the City of New Orleans, it is reversed.</p>

<p>Appeal front Civil District Court, Division “A.”</p>

<p>Appeal from 28th Judicial District Court, Parish of St. Charles.</p>

<p>1. Where it appears that proof exists material to the issue but not furnished from misapprehension or other cause, not implying a desire to withhold the proof or gross neglect on the part of the litigant, in such cases, in furtherance of justice, the Court will remand the cause.</p> <p>2. It is clear that, in this case, certain proof is available which, through inadvertance, was not produced and, while the district Judge properly non-suited the plaintiff, we think that sound discretion and the interest of justice require a remanding of the cause.</p>

<p>Appeal from- the Civil District Court, Division “D.”</p>

1. Where by order of Court a suspensive appeal has been allowed on appellant’s furnishing bond in an amount fixed by the Judge, and bond has been furnished accordingly, the appeal will not be dismissed because it cannot be sustained as a suspensive appeal. 2. Though not good as a suspensive appeal, it will still stand as a devolutive appeal. Appeal from Civil District Court, Division “E.”

<p>1. Plaintiff, in a former suit, having set out in unequivocal terms his contract of 'employment "with defendant, cannot now, without making an averment that the difference is due to an error of fact, set up another and different contract.</p> <p>2. “It is a well settled rule in the administration of justice that a party will not he permitted to deny what he has solemnly acknowledged in a judicial proceeding. The only means of Courts to protect the integrity of judicial proceedings are the sanctity which, the-law throws around them.”. 23 A. 765; 32 A. 962; 979; 33 A. 1370; 41 An. 533.</p>

<p>The decree of the Appellate Court cannot be executed or in any way acted upon by the District Court until the same has been made part of the records of the latter Court by filing of a certified copy, recordation or inscription in the minutes.</p>

<p>1. In cas'es sounding in damages for mental pain and,anguish though the extent of the distress and sorrow may not be susceptible of direct or exact measurement, enough certainty and knowledge of the situation can be 'established through the introduction of testi- • mony to furnish the basis for a judgment.</p> <p>2. The fact itself of a violation of a legal right can in many in stances support an action for damages without the necessity of proof of the latter.</p> <p>3. The verdict of a jury or judgment of Court fixing the quantium of damages will not be disturbed unless manifestly erroneous.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

Where in matters affecting appellate jurisdiction, the record is not silent as to value, no affidavits .as to value will be received by this Court, they are admissible to fill a biatus but not to contradict the record. Appeal from Civil District Court, Division “D.”

<p>Appeal from Civil District Court, Division “A.”</p>

<p>1. A judgment sought to be annulled can not be pleaded as res-adjudicata to the action of nullity.</p> <p>■ 2. In actions for the nullity of judgments for causes other than those specially enumerated in the Code of Practice, the party applying for relief must allege and show that he will sustain real injury; that this relief cannot be had on appeal; that he has not been guilty of laches or negligence; and in cases where false swearing on the part of witnesses is alleged as the ground of nullity, that the matters testified to and alleged to be false, were material and such as would, if truthfully testified to, have produced an opposite result on the merits.</p> <p>3. As the Court, and not the party, is to judge of the absence of negligence the exercise of diligence, the materiality of the evidence and the injury sustained, the facts must be stated. It will not suffice to state them in general terms.</p> <p>4. Exceptions of no cause of action admit only facts positively stated and not conclusions of law.</p>

<p>According to our appreciation of tire record the plaintiff has not made out his case with legal certainty.</p>

<p>1. A prima facie title suffered to remain unquestioned on the official records, taken in good faith as a basis for the assessment is a compliance with the requisition • of the statute regarding assessments, and a sale made under such an assessment is valid.</p> <p>2. In proceedings which lead to the sale of property for taxes, the tax collector is not hound to go beyond the recorded title in search of the owner.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Issues of fact only are involved herein;</p>

<p>■Where the issue in a case is one of fact and the testimony is conflicting the judgment of the lower Court will not be disturbed, unless it is manifestly erroneous.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Plaintiff having entered into a contract of employment with de-féndants for the period of one year as general cotton clerk, and the record showing that his duties under the contract, well-known to plaintiff, would entail both day and night work, his refusal to perform night Work is a material violation of the contract, and whether be he discharged or quit voluntarily, he cannot recover the salary for the entire year.</p>

<p>1. A broker is not entitled to commission when he has not brought the vendor and the purchaser together, or his -efforts have not been the procuring cause of the sale.</p> <p>2. In the absence of an agreement to the contrary, the principal is at liberty to sell the property by his own efforts, notwithstanding the employment of the broker.</p> <p>3. The issues of fact herein are resolved against the planitiff.</p>

<p>Appeal from Civil District Court, Div. ■ — ■—■</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “K.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “C,”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>• 1. The testimony given by a witness, who has siüeé died, in a prosecution for violation of a City Ordinance, cannot, in a subsequent suit for damages be offered over the objection of a plaintiff, who had not had the power to cross-examine the witnesses.</p> <p>3. The judgment of a Criminal Court has no effect on a Civil Court which is charged with the duty and power to determine for itself all the issues arising in a Civil Court,</p> <p>3. The other issues are of fact only.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from 29th Judicial District Court, Parish of St. Bernard .</p>

<p>Appeal from Civil District Court, Division ■ “D,”</p>

<p>1. Section 119 of Act No. 45 of 1896 (the charter of the City of New Orleans), to the effect, that:</p> <p>“No person or corporation engaged in doing any street or banquette paving, or other public work, under any contract, agreement or stipulation with the City of New Orleans, or any department thereof, the cost, price or consideration of which is to he wholly or partially paid by local assessment on any property holder, or front proprietor, shall make, allow or give, or promise, or agree to make, allow or give any rebate, deduction, gift or present, or any other valuable consideration, whereby the actual sum due by said property holder, as his proportion, shall he in any way reduced or diminished, unless the same deduction or allowance shall be made to all persons liable to the assessment, shall be a complete and valid defense as against • such persons or corporations, heirs, or assigns, doing such work, or in any suit or action brought to enforce the same, or in any suit or action to recover the value of such work, either against the city or any property holder thus discriminated against” makes no distinction between the reduction allowance or rebate which may have been influenced by improper consideration and such as may have been influenced by proper motives.</p> <p>2. As no such distinction is made by the Statute, Judges may not do so without becoming legislators.</p> <p>8. The title of an act need not do more than express the ‘general subject of its‘legislation and is not required to index its contents. From this follows the rule, settled beyond controversy, that a title which reasonably expresses the general subject and is not calculated to mislead either the legislature or the public, is sufficient to cover all incidental and subsidiary provisions legitimately connected with such general subject and germane and cognate thereto, in short, all matters which may naturally and reasonably be expected to he found under a title.</p> <p>4. Sec. 119 of Act No. 45 of 1896 is not obnoxious to Articles 6 and 29 of the Constitution of this State of 1879; nor to Section 10 of Article 1 of the Constitution of the United States; nor to the 1st Section of the fourteenth amendment to the latter Constitution.</p>

<p>Appeal from 28th Judicial District Court, Parish of Jefferson.</p>

<p>1. An amendatory act operates to repeal all the sections amended not embraced in the amended form.</p> <p>2. Act 167 of 1904, amending and re-enacting Sec 73 of Act No. 214 of 1902, removes all restrictions on the Board of School Directors of the City of New Orleans in the matter of adjusting and fixing the salaries of its officers, teachers and employees.</p>

<p>1. The burden c£ proof is upon one who avers that the property claimed by the plaintiff was formerly given by that plaintiff to his deceased wife.</p> <p>2. The evidence in this case convinces us that the plaintiff, to whom the property belongs did not make the donation as claimed by the defendant.</p>

<p>1. Where a contract consists of several parts, so that there are several promises based on several considerations, the fact that one or more of these considerations is illegal will not void all the promises of those which were made upon legal obligation are severable from the others.</p> <p>2. The burden of proving that the consideration of a contract was illegal, or that the contract was illegal -for any other reason, is upon the party asserting such illegality, and to sustain such defense the illegality must be clearly shown.</p>

<p>1. The allowance of amendments in tire interest of justice is favored by jurisprudence and lies in tlie sound discretion of the trial judge and an appellate court will sanction his exercise of such discretion when the act is not unjust or arbitrary.</p> <p>2. An amendment is properly allowed when it merely seeks the correction of a clerical error and does not deprive the other party of a substantial right or change the substance of the issue.</p> <p>3. Where a note was erroneously dated 1892 instead of 1902, a bona fide holder for value has the right to show what is the true maturity of the same, and, if he acquired the note before maturity, the defense of want of consideration between the original parties cannot he urged to his detriment.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

Where a judgment is rendered against a firm, and, as an incident to and by reason of tbeir membership in the firm, also against the individual members of the firm, an appeal taken and perfected by the firm brings up the judgment for review as against the individual members. Appeal from the Civil District Court, Division “B.”

<p>Appeal from Civil District Court, Division “E.”</p>

<p>1. The possession on which, the prescription, acquirendi causa, of thirty years is founded must he continuous and uninterrupted during all the time; it must he public and unrequivical, and under the title of owner.</p> <p>2. The running of prescription in favor of one holding hy adverse possession is interrupted hy a sale for taxes.</p> <p>3. Argument to show that the statute of limitations ceases to run when the forfeiture attached and the title became vested in the State can hardly be necessary, as the rule that time does not run against the State has been settled for centuries, and is supported by the Courts in all civilized countries.</p> <p>4. As against a trespasser, the plaintiff in a petitory action is not bound to show a perfect title against the world. He cannot take advantage of any defects in the muniments of title exhibited by plaintiff. An apparently good title is sufficient against him.</p>

<p>“No disputed questions of law arises in this case, the only issue being one of fact in which the plaintiff carries the burden of proof; the evidence is contradictory; the Judge a qua determined the issue of fact in favor of the defendant.”</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>1. The deposit of goods to be sold on commission is a mandate which establishes the relation of principal and agent between the parties, and the action of such principal against such agent for the proceeds of such sale is prescribed by ten years.</p> <p>2. A procuration which does not specify the time at which the agency is to terminate leaves it discretionary with the principal to discharge the agent at pleasure.</p> <p>3. The other issues in the case are of fact only.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. The effect of an affirmative warranty is to make void the policy iJ the statements made are not literally true.</p> <p>S. In propounding questions to the applicant the insurer is understood to be actuated by an earnest desire to acquire such information as will enable him intelligently to decide as to the desirability of the risk and the assured is bound, morally and legally, to answer them truthfully.</p> <p>S. The rule of forfeiture resulting from the falsity of a statement constituting an affirmative warranty, is not based on the theory of injury to the insurer as the result of the false statement, but is predicated of the principle that as the utmost good faith is required in insurance contracts, the assured has but fraudulently obtained the policy when he has misrepresented the facts in his answers to questions propounded to him in his application and which answers he has submitted to the assurer as the basis for desired issuance. As a penalty for his fraud the forfeiture ensures.</p> <p>⅜. The rule of the criminal law that in a criminal charge of arson the guilt of the accused must be established beyond a reasonable doubt is relaxed in a civil action in which this defense is set up. A preponderance of evidence, as in all civil cases, is all that is necessary to establish this defense.</p>

<p>1. Unless otherwise stipulated all debts bear interest at the rate of five per centum per annum from the time they become due.</p> <p>2. Money deposited becomes due when a demand is made for it and, consequently, legal interest is due thereon from that time.</p>

<p>1. By Section 2897 of the Revised Statutes a special privilege is granted in favor of attorney’s at law for the amount of their professional fees on all judgments obtained by them, to take rank as a first privilege thereon.</p> <p>2. The rule of law that an attorney cannot receive in settlement of his client’s claim anything but cash does hot effect the right of the attorney to dispose of his fee as he deems proper and to use it to take up a note due personally by him to the judgment debtor.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>The responsibilities of the carrier and of the warehouseman are very different and therefore, a person may, in the character of carrier, bé liable for a loss from which in the character of warehouseman he would be exempted; hut whether as a carrier charged with extraordinary care of the commodity intrusted to his charge, or whether as a warehouseman on whom is imposed the obligation only of common or reasonable care, he is, is either character, responsible for the loss if it be occasioned by his fault.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from Civil District Court, Division “B,”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. Where there has been a dispute between parties as to the exact amount due by one to the other, and an amount first tendered is returned and a second amount is sent “in settlement” of the controversey the offer of such second amount is to be received in the nature of a compromise.</p> <p>2. Where a claim is in dispute and the debtor sends a check to the creditor for a less sum which he declares to be in settlement of such claim and such creditor retains the check and has it certified, such action on his part releases the debtor from further liability.</p>

<p>Appeal from Civil District Court, Division “A."</p>

<p>Appeal from Civil District Court, Division “E.”</p>