Volume 30 — Louisiana Reports

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

<p>j^PPEAL from the Second District Court, parish of Orleans. Tissot,</p>

<p>A parish judge has no power to authorize a married woman to contract a debt for more than $500.</p> <p>Where the wife has not been judicially authorized to give a mortgage on her separate property, a note and mortgage executed by her are not legal proof of her obligation, and evidence aliunde showing that it was her separate debt, must be produced, in order to bind her. ,</p> <p>Unless the wife accepts the community expressly, or tacitly, she stands in relation to its debts as she does toward the debts of third persons.</p>

<p>When the motion for a wnv trial, on the «round of newly discovered evidence, does not disclose the evidence, or the source from which it is derived, the motion is defective, and should be overruled.</p> <p>An information charging defendant with breaking and entering a store at night, with intent to steal, which fails to charge that defendiint/nloreious??/ entered, and failáto charge that he did break, and enter with burglarious, or felonious intent to steal, etc., is fatally defective.</p>

<p>The Board, of Liquidators appointed to 'carry into effect the provisions of the Bunding Act of 1874, can not refuse to fund any legal warrants, or bonds of the State, when required to do so by the owners, or tho legal custodians of such bonds.</p>

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

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

<p>A resident of the Sixth Municipal District of the city of New Orleans sued in one of the district courts for the parish of Orleans, and served with citation prior to the seventh of November, 1876. remains, as to that suit, subject to the jurisdiction of said court.</p> <p>After a case has been fixed for trial the court is without authority to order it to be tried by jury.</p> <p>Under our practice nothing prevents the cumulation of demands for the double purpose of proving the existence of a partnership, when the defendant has denied it, and for its liquidation, when proved.</p> <p>To entitle a party to the continuance of a ease, on the ground of absent witnesses, it is necessary not merely to allege but to prove, that he had been diligent, that he was surprised, that he could not prove the facts by other available witnesses, and that they were not absent by his consent or procurement.</p> <p>When the court'orders the defendant to produce in court certain books, which plaintiff swears will prove certain facts, and defendant files, in response to the order, an evasive answer, and fails to produce the books, on the day fixed in the order [no matter whether the case came up for trial that day or not] the court will be authorized to order that the specific facts (but only the specific facts) sworn to by the plaintiff, be taken as confessed by the defendant.</p> <p>When one partner sues the other for a liquidation and balance due on partnership account, the defendant can not set up in reconvention, damages to the business of the partnership caused by the bad habits of the plaintiff.</p> <p>In the absence of express agreement a charge by one member of an ordinary partnership against the other, for keeping the hooks of the firm is inadmissible.</p>

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

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

<p>PPEAL from the Ninth J udieial District Court, parish of Rapides_ . Blackman, J.</p>

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

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

<p>The citation of appeal, in a ease where the State is a party, must be served on the attorney fbr the Slate who has obtained the judgment appealed from. It absent,, the service must be made at his domicil as in ordinary cases.</p> <p>The obligation ot sureties on a bail bond is not affected by the fact that the indictment was found tor an offense of a higher grade than that expressed in the bond, and which higher crime includes the lower.</p> <p>It is sufficient, it by the terms ot tho bail bond, the offense is substantially although not technically described.</p>

<p>The acknowledgment of a succession debt by the administrator of the succession suspends the prescription of the debt as' long as the property of the succession remains in the hands of the administrator, under administration.</p> <p>The owner and mortgagor of property sold for taxes, can not buy it in, and thus acauire a title to the prejudice of the mortgagee.</p> <p>The mortgagee’s rights on the property will remain in full force.</p>

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

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

<p>The individual members of a commercial firm may execute a valid note, and a valid mortgage securing said note on their individual property, in favor of the firm, and any third person aeauiring the note from the firm, in good iaith, for value, and boloro maturity, may enforce its payment.</p>

<p>j^PPEAL from the Fifth District Court, parish of Orleans. Rogers,</p>

<p>Tlio notes, bills, etc., representing the money loaned al Interest by a corporation, constitutes a part oí its property, and are liable to taxation.</p>

<p>■One of the defendants in a suit in which a formal judgment has beon rendered can not disturb that judgment either by an action of nullity, or by appeal, without' making all parties to the proeeodipg who were parties to the original suit.</p> <p>An action of nullity can not be maintained pending a suspensive appeal involving the same issues.</p> <p>One who is a citizen of another State, although he have a dwelling here, and reside in it, for some months during each year, is nevertheless an “ absentee” and hence, if ho have no known representative here, may be legally represented in a suit brought against him by a curator ad hoc.</p> <p>When an absentee is brought into court not by attachment, but by service of citation on a curator ad hoc,'it is not necessary to post the citation on the door of the court-room.</p> <p>'It is only where a judgment for money has been enjoined that damages can be awarded on the dissolution of the injunction.</p>

<p>^PPEAL from the Superior Criminal Court, parish of Orleans. Shaw,</p>

<p>Under the present charter of the city of New Orleans the Common Council may lawfully assign to the Administrator of Commerce the superintendence, and management of the bridges across the navigable canals of said city.</p>

<p>When the record in a criminal case shows that the grand jury came into court and presented an indictment in due form, it will bo presumed, in the absence of specific objection and affirmative proof to the contrary, that the grand jury was properly organized.</p> <p>The question whether a person tendered as a member of a petit jury sufficiently understands the English language to try the issues of a criminal case, is a question of fact confided exclusively to the decision of the lower court.</p> <p>Being under the charge of larceny disqualifies a person from serving as a petit juror.</p> <p>Because a confession of the accused to a prosecuting witness was made in response to a question put by the witness, the confession is not thereby rendered involuntary.</p> <p>Where the indictment charges that an offense was committed at a certain hour of a certain night, it is sufficient to prove that it was committed at any hour during .the alleged night.</p> <p>It is not necessary, in order to convict ono as accessory before the fact to the crime of burglary, to prove that the instrument ho furnished his confederate to commit the offense with was actually used by the latter.</p>

<p>Testaments made in other States can not be carried into effect on property in this State, until registered in the court within whose jurisdiction the property is situated, and their execution ordered by the judge.</p> <p>A foreign will, when duly authenticated, and admitted to probate at the testator’s domicil, is entitled to be admitted to registry and execution in this State.</p> <p>The executor of a foreign will is not permitted to exercise his office in Louisiana by virtue of his foreign appointment, but must first obtain the authority of the ■ court here.</p>

<p>APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Kemp, J. Trial by jury.</p>

<p>Except in a ease when there is an express agreement in derogation of the general rule, the safe of goods, produce, or merchandise by weight, tale, or measure, is not perfect, and the goods at the risk of the buyer; until they have been weighed, counted, or measured.</p> <p>The purchaser of goods who has paid their price knowing them to be damaged when he paid for them, is not thereby estopped from suing for a diminution of price, and damages, when it appears that there was an understanding between him and the seller, at the moment of payment, that his rights of reclamation were reserved.</p> <p>A vondor who is ignorant of the vices of the things sold, is liable only for the difference, at the time and place of sale, between the actual value of the thing sold, and what it would have been worth if sound; and the expenses connected with the sale.</p>

<p>A contract ol mandate for tho purchase of real estate can not be proved by parol evidence, even when fraud in the alleged agent is set up.</p> <p>Extra judicial admissions and confessions of a party can not be proved by parol, in a case where testimonial proof is inadmissible.</p>

<p>The word " pants,” in an indictment for -larceny, sufficiently describes a thing which may be the subject of larceny.</p> <p>It is not a just ground of complaint that the court below, in charging the jury that they were judges of the law and the evidence, added the words that, “if they thought they knew more of the law than the judge, it was their privilege to so believe.”</p>

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

<p>One who claims exemption from an income tax on the ground that his income consists of property not liable to taxation, must affirmatively show that his income does so consist.</p> <p>The exemptions from taxation of $500 worth of household furniture, and $1000 of income, do not violate article No. 118 of the constitution of this State reouiring taxation to be ecjual, and uniform. It does not appear that unlawful exemptions of property, Or omissions to tax certain property, will affect the validity of an. entire assessment.</p> <p>Oral evidence is not admissible to prove the written demand made by a property owner in Now Orleans on the Administrator of Assessments, asking for a reduction of the assessment on his property. The written demand itsolf is the best evidenco.</p>

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

<p>Where the legality of a lax is in dispute this court has jurisdiction irrespective of the amount involved.</p> <p>Retail grocers who have paid their licenses are not entitled, as such, to sell liquor by the glass, but are entitled to sell it in quantities less than a gallon, to be consumed out of their stores,</p>

<p>The confession made by one of two persons jointly indicted for the same offense, and tried together by the same jury, is not admissible in evidence against any one but himself, no matter whether that confession be made in the course of his address to the judge, or in the form of a plea of guilty.</p>

<p>The verdict of a jury in a criminal case will not be set aside on the ground that while the jury were deliberating on the case, two of the jurors separated from the others, on a call of nature, when it appears that they were attended by a deputy sheriff and spoke to no one while they were out.</p> <p>It is not within the province of the judge presiding at a criminal trial to give such instructions to the jury, after they have returned a valid verdict in the ease, as shall lead to a change, or modification of the verdict.</p> <p>When in a prosecution for murder based entirely on circumstantial evidence, the State finds it necessary, as a link in the chain of that evidence, to trace to the accused a motive for the homicide in his previous Quarrel with the deceased, it is competent for the defense to prove facts showing similar, or stronger motives in others to do the same act.</p>

<p>APPEAL from the Second District Court, parish of Orleans. Tally, Judge acl hoc.</p>

<p>PPEAL from the Sixth Juclioial District Court, parish of Tangipahoa. Trial by jury. Kemp, J.</p>

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

<p>One who holds as owner peaceable, public, and uninterrupted possession for ten years of an immovable which he has acquired from one whom ho honestly believed to be the real owner, under a title translative of the property, acquires by prescription the legal ownership of the immovable.</p> <p>Whoever alleges bad faith in the possessor of property who claims a title to it by prescription, must prove the bad faith.</p> <p>The universal legatee of a succession-who has accepted the same, and who has also qualified as exocutrix, may, in her capacity as owner, make a valid sale of the property of the succession without any order of court authorizing her to act.</p>

<p>j^PPEAL from the Sixth. District Court, parish of Orleans. Bightor,</p>

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

<p>A consignee wlio has made advances on cotton shipped to him has a right of pledge on it, and its proceeds, for the re-imbursement of those advances; and until the debt due for those advances is paid, he is not bound to accept, or pay any drafts drawn on him by the consignor against said cotton, at, or about the time it was shipped, in favor of a third person who had discounted the drafts for the consignor, and thus enabled the latter to buy the cotton shipped to the consignee.</p> <p>In the absence of any express or implied agreement, a party is not compelled to pay a draft drawn on him merely because he has been in the habit of paying similar drafts.</p> <p>It is not necessary to record a pledge to make it effective as to third persons, where the object of pledge comes into the actual possession of the pledgee before any conflicting lien has attached to it.</p>

<p>A judgment rendered by a court of competent jurisdiction, and where the proper parties have been duly cited, can not be attacked in any collateral way, even by third persons not parties to it.</p> <p>A parish court is not competent to review, or reverse a judgment of the district court.</p> <p>The proceeds arising from the sale of property belonging to the wife, collected by the administrator of the deceased husband, belong exclusively to her, and do not enter into the husband’s succession.</p>

<p>A suit against a party for an amount dueT^y a vacant succession, on the ground that the defendant had made himself liable by taking unauthorized possession of the effects of the succession with intent to convert them, to his own use, is not a suit against the succession, and hence, none but a court of ordinary jurisdiction can take cognizance of it.</p> <p>When there is any conflict between the provisions of the Revised Statutes of 1870, and those of the Civil Code, as revised that year, the latter shall prevail.</p> <p>.'It is not necessary that the person who has taken unauthorized possession of the effects of a vacant succession, or a part thereof, with intent to convert the same to his own use, should be criminally prosecuted, and convicted of the offense, before a creditor of the succession can institute suit to hold the offender liable for the debt due him by the succession.</p>

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

<p>'Section 2593 et sea. ol the Revised Statutes of 1870 does not provide for the forfeiture-of the charters of corporations at the instance of private persons, even when they are parties interested.</p> <p>It is discretionary with the Attorney General of the State to proceed, on his own motion, to bring suit for the forfeiture of the charter of a corporation, and-hence he can not be compelled by mandamus to institute such a suit.</p>

<p>The deed from a tax collector, of property sold at a tax sale, is roeeived prima facie, as a valid title. Until the tax sale is set aside by a revocatory, or other proper action, contradictorily with the parties in interest, the title from the tax collector is presumed to be valid.</p>

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

<p>Where a loan is made by two members of a commercial firm, in a matter foreign to the business of the firm, and in disregard of the express opposition of the third member, the two members making the loan are justly chargeable with its amount.</p>

<p>The allegations in a petition that a certain transfer oí property is a simulation, and that it is a donation in disguise, are inconsistent.</p> <p>When an actual consideration, no matter how inadequate, has been paidbythe purchaser in an alleged sale, the transaction is not a simulated one.</p> <p>The delivery oí immovables, where they are disposed of by public act, is always considered as accompanying the act, whether that act be a sale, or a dation era paiement.</p> <p>Even when it is shown that the expressed consideration of a transfer does not exist, the contract can not on that account be invalidated, if the transferee proves that there was another legal, and sufficient consideration.</p>

<p>^PPEAL from the Sixth District Court, parish of Orleans. Rightor,</p>

<p>A planter or mannfactn,ror who keeps such articles of merchandise only as are • needed bv laborers on his plantation, and spIIs them only to those laborers, and not to the general public, is not a retail dealer within the meaning of the revenue act, and hence is not subject to the license, or tax imposed on retail dealers.</p>

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

<p>j^PPEAL from the Fifth District Court, parish of Orleans. Bogers,</p>

<p>The law imposing a smaller license tax on proprietors of bars, or drinking saloons, kept on steamboats owned and registered in this State, than on the owners of bars kept on land, does not violate the clause of the constitution prescribing oauality, and uniformity of taxation.</p>

<p>A contractor who furnishes materials for a building and fails to record his contract, acquires no lion on the building, and the lot on which it is erected, and hence, no creditor of his can acquire such a lien from him, either by subrogation, or in any other way.</p> <p>No amendment of the judgment below will be made in favor of the appellee which he has not specially asked for.</p> <p>One who sells to a contractor the raw materials which are actually used by the contractor, in a manufactured form, in constructing certain portions of a building, and who has served on the ownor of the building an attested account of the amount due him by the contractor, is only entitled to recover from the owner such an amount of the sum due by tho owner to the contractor, as has been adjusted, ascertained, and fixed, in some one of the modes pointed out by sections two and three of article 2772 of the Civil Code. Such a furnisher of raw materials can acquire no lien, or privilege, except as subrogee to such privilege as tho contractor may have acquired and preserved.</p>

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

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

<p>^PPEAL from the Parish Court of Iberville. Croivell, J.</p>

<p>In the rule nisi granted by this court on an application for a writ of prohibition, the answer of the defendant should be sworn to.</p> <p>After the bond required by the lower court has been given, and filed, that court has no farther jurisdiction of the ease, except to pass upon the solvency and sufficiency of the sureties on the appeal bond. The lower court can not set aside a suspensive appeal, or make it a devolutive one, on the ground that the amount of the bond (fixed by itself in a case where the court is required to fix it) is not the correct amount. _</p>

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

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

<p>Except in eases of attachment, where the law fixes the fee of a curator ad hoc, the court can not, ex-parts, assess and order to be paid the fees of such an officer.</p> <p>A suspensive appeal in a ease prevents, pending the appeal, any proceeding, contradictorily taken, for fixing the fees due to a curator ad hoc.</p>

<p>When no bill of exceptions is taken to any of the rulings of the lower judge during the trial of an application for a change of venue, his decision on the application, can not be reviewed by this court.</p> <p>The clerk of the Criminal Court is not aualified to act as a jury commissioner, under the Act No. 14, approved March 8,1877, until he has taken the special oath ’ prescribed by that act. His failure to take that oath before participating in tlio drawing of a jury, vitiates the drawing.</p>

<p>The suit brought by an oxeoutor against a third person who is the undivided half-owner oí certain property, o£ which the succession owns the other half, for the-purpose of effecting a partition of the property, and also for a settlement of accounts with the defendant, does not involve probate matters, and therefore the probate court in which the succession was oponed has no jurisdiction of" the suit.</p>

<p>A PPEAL from the Sixth Judicial District Court, parish of Tangipahoa. j\. Muse, Judge ad hoc.</p>

<p>Where a mortgage debtor who has taken a suspensive appeal from an order of seizure and sale is east on appeal, the mortgage creditor, who has subsequently obtained a judgment against the debtor for the balance due after deducting the proceeds of the mortgaged property, has a right of action, for the amount of the judgment, against the surety on the appeal bond of the mortgage debtor, from tbe moment the return of nulla bona has been made on the execution issued under the judgment.</p>

<p>Where the pledgeo of a mortgage note, in whoso hands it has been placed to secure-a debt duo him by the pledgor, sells the property mortgaged to secure the note for a sum less thau the amount of the note, and immediately resells it for a larger sum than that of the note, he becomes liable to the pledgor, not for the price at which the property was resold, but merely for the amount of the note.</p>

<p>In order to make a valid appraisement of the undivided interest of an heir in a succession -which has been seized under a fi. fa., it is proper to appraise, not each separate effect of tho succession, and then estimate the value of his share-of such effect, but to appraise his interest as a single, undivided thing, and estimate its value, after deducting the debts and charges of the succession.</p>

<p>'Tho law oí this State authorizing the revival of judgments was not intended to provide any different mode of interrupting prescription of judgments from those applicable to other forms of debt, but was only intended to prevent the prescripts x of judgment debts, and continue them in force for ten years from the dato of the judgment of revival. The prescription of a debt evidenced by a judgment, can be interrupted in the same modes as the prescription of debts evidenced in any other way, except, that the acknowledgment of the judgment debt by the debtor must be in writing.</p> <p>The written acknowledgment, or judicial admission of a judgment debt of a succession, made by the executor before tho debt is prescribed, will interrupt prescription.</p> <p>Tho special mortgage creditor of a succession is entitled to be paid out of the proceeds of the property on which his mortgage rests by preference over the expenses and charges of the administration, only when there are other funds of the succession out of which such expenses may be paid.</p>

<p>^PPEAL from the Parish Court of St. Landry. Fontenot, J.</p>

<p>APPEAL from the Justice’s Court, Third Ward, parish of Cameron. Gee, J.</p>

<p>"When parties silently acquiesce in and enjoy the benefits of a confession of judgment made in their names by an attorney at law, who has acted in the matter to their knowledge as their representative, they will be estopped from afterward denying the authority of the attorney to represent them.</p> <p>The makers of a promissory note can not annul a judgment obtained against them on-said note by the administrator of a succession, on the ground that the note did not belong to the succession, or on the ground that the administrator was not qualified to act as such.</p>

<p>j^PPEAL from the Parish Court of St. Martin. Bassett, J.</p>

<p>APPEAL from the Justice’s Court, First Ward, parish of St. Martin. Easten, J.</p>

<p>A PPEAL from the Parish Court of St. Landry. Fontenot, J.</p>

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

<p>Up to the year 1877 the State tax collector was prohibited from paying over any school taxes collected by him, to any one but the treasurer of the School Board, and his payment of any portion of those taxes to the parish treasurer, prior to the year 1877, did not discharge him from liability for them. But when it appears that such payment of school taxes to the parish treasurer was mado by a collector in good faith, and was approved by the police jury, and inured to the benefit of the parish, the parish should re-imburse to him the amount thus unduly received.</p>

<p>An action to set aside a sale of real estate made by its deceased owner, on the ground of simulation, may be brought by the executor and forced heirs collectively, or by the heirs separately.</p> <p>The forced heirs of a deceased person, whose legitime is impaired by an alleged simulated sale made by the deceased, are not estopped from attacking the sale on the ground of simulation, but they can only annul the simulated sale to the extent that they are/orced heirs.</p> <p>The action against the vendee to annul a simulated sale is not prescriptible.</p> <p>The amendment to an answer which substantially changes the defense will not be permitted.</p>

<p>^PPLICATION for a mandamus.</p>

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

<p>A PPEAL from the Parish Court of St. Martin. Bassett, J.</p>

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

<p>^PPEAL from the Parish Court of St. Martin. Bassett, J.</p>

<p>^PPEAL from the Parish Court of Yermilion. Kibbe, J.</p>

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

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

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

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

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

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

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

<p>Minors under the tutorship oí their father do not come within the terms o£ the homestead act.</p> <p>Property held in indivisión can not be the object oí a homestead right.</p> <p>Minors will be held in damages only ior the actual expenses of a defendant in injunction, caused by a wrongful injunction sued out by their tutor.</p>

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

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

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

<p>While administrators and executors must sustain the charges set forth in tlioir accounts, the kind and degree of proof vary according to other facts which may be proved, or which appear on the face of the papers. There is a presumption in favor of the correctness of an executor’s account whose general management evinces fidelity and integrity.</p> <p>Heirs who occupy a portion of the succession property are liable to the'succession for the rents of such property, during their occupancy.</p>

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

<p>Property situated within an incorporated town, and the inhabitants of the town, are subt'cfc to the imposition of property and license taxes by the police jury of the parish, unless specially exempted by some act of the Legislature.</p>

<p>j^PPEAL from the Parish Court of St. Landry. Fontenot, J.</p>

<p>On the trial ol the exception o£ no cause oi action, the Court can consider only the allegations of the petition, and the exhibits referred to, and made part thereof.</p> <p>No recovery can be had against the surety on a release bond, given for the release of seauestered property, on which the plaintiff claims a lien, where the judgment is a merely personal one against the principal on the bond, containing no recognition of the plaintiff’s lien or privilege on the property'released, nor decreeing a restoration of the property to the plaintiff.</p>

<p>J^PPEAL from the Third District Court, parish of Orleans. Monroe,</p>

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

<p>It is not necessary that the accused, who is being tried for a felony, should be present in court, whenever any step, no matter how insignificant, is taken in the ease.</p> <p>'Oral observations addressed by the judge to the jury after the reading of his written charge to them, and which are not alleged to contain any error, will not furnish ground for a bill of exception when not objected to at the time they were delivered.</p> <p>Tn a prosecution for forging a certain instrument evidence is admissible to show that the accused was in possession of the instrument on the day of its date, and that she presented it in payment of goods purchased by her.</p> <p>Jforging an order for merchandise is a crime under the law of this State, and punishable as such. Revised Statutes, see. 833.</p>

<p>A married woman duly authorized but not coerced by her husband, who executes a mortgage on her property to secure the payment of her own debt, is bound by the mortgage.</p> <p>'Parol evidence is admissible to prove that a written contract was signed under the influence of force or violence.</p> <p>A married woman is not estopped from disproving the averments of an authentic act executed by her, and which she alleges she was forced to sign.</p>

<p>Where in a criminal case, in which the defendant has waived a jury, the sentence-pronounced on the defendantis not responsive to the decree signed bythe judge,, the j udgment will be set aside and the case rem anded.</p> <p>The parish judge has authority to sentence the accused to imprisonment in the Penitentiary in criminal eases wherein the defendant has waived trial by jury.</p>

<p>The defendant in injunction is authorized to compel the plaintiff to prove the truth-of the facts alleged by him, in a summary manner. It is not needful for the suit to be at issue, or fixed for trial, or called, before the rule on the plaintiff to-prove his alleged facts can be tried.</p> <p>When a debtor enjoins the execution of a judgment for any of the causes mentioned-in article 739 of the Code of Practice, he is not permitted, on the summary trial of the rule on him, to prove the facts alleged by him, to introduce evidence of' any thing but the particular cause in article 739 on which he has based hia injunction.</p> <p>No copy of the petition for the order of seizure and sale need be served on the debtor,, but only the notice of the order.</p> <p>The judge may grant an order of seizure and sale on a note which is prescribed on its face.</p> <p>Damages will not be granted on the dissolution of an injunction when it is not certain that the plaintiff wilfully used the writ for delay, or merely to harass the-creditor.</p>

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

<p>j^PPEAL from the Parish Court of Morehouse. Norwood, J.</p>

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

<p>The jurisdiction of this court does not extend to cases of conviction under act No. 9 of the Legislature passed in 1874.</p> <p>An appeal will not lie to this court from the decree of an inferior court in a matter of habeas corpus.</p> <p>The interest which entitles a party to appeal must be a real, existing interest in. the particular cause, and not a conjectural one, contingent on the happening of' an uncertain future event.</p>

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

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

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

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

<p>A foreign corporation, represented by a general agent, and local Board of Directors residing in the city of New Orleans, can not be brought into court by a citation served on a local agent domiciled in one of the country towns of Louisiana, who is only authorized to receive applications for insurance, and give binding receipts for the same, and who has not exercised, or represented that he possessed, any other authority.</p>

<p>Tlicbypotheeatory action can not be maintained unless the evidence shows that amicable demand on the debtor for the payment of the hypothecary debt was made in a formal manner, thirty days previous to bringing the suit.</p> <p>The creditor who brings the hypothecary action must declare on oath that the debt is really due him, and that he has demanded payment of his debtor thirty days previous to bringing the suit.</p> <p>Where a settlement is made after the termination of a tutorship, by which the former ward accepts the former tutor’s individual obligation, payable at a distant day, in lieu of the security of his bond, and the legal mortgage resulting from its record, the former ward loses all recourse on the property of the tutor which has passed into the bona fide ownership of a third person.</p>

<p>A PPEAL from the Tenth Judicial District Court, parish of Caddo. a. Boarman, J.</p>

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

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

<p>A case will be remanded on the ground of newly discovered evidence filed in this court, whenever it shall appear that the ends of justice demand it.</p>

<p>APPEAL from the Twelfth Judicial District Court, parish of Catahoula. Ellis, Judge ad hoc.</p>

<p>It is not an inconsistency in pleading, in a direct action to annul, to allege that a sale is simulated, and ii not simulated that it is fraudulent.</p> <p>A pretended sale by an insolvent debtor to one of his creditors, will be set aside on the petition of any other creditor.</p>

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

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

<p>One who claims a privilege on certain property has no right, merely on the ground of his having a privilege, to enjoin the foreclosure of a mortgage on the property.</p> <p>A building contractor who fails to record his contract, acauires no privilege on the-building, so far as third persons are concerned.</p> <p>Those are third persons to a contract who are not parties to it.</p>

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

<p>j^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.</p>

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

<p>A valid and legal decree of a parish court can not be arrested at the instance of the judgment dobtor, by an injunction issuing from any other court.</p> <p>The clork of the parish court in which a succession is being administered has authority to issue a ft. fa. for the soizure and sale of any property of the succession, previously sold on a twelve-months bond, and not paid for, without regard to its value.</p> <p>■On the dissolution of an injunction issued at the instance of a curator ad hoc, damages will not bo allowed against the absent plaintiff; nor against the curator representing him, when it appears that the curator acted conscientiously.</p>

<p>The alleged owner of property which has been sold at a tax-sale ean not maintain an action for its recovery, until he has tendered to the purchaser at the tax-sale the price paid by the latter, and which was applied to the payment of the taxes and costs due by the owner.</p>

<p>^PPEAL from the Twelfth Judicial District Court. Smith, J.</p>

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

<p>A judgment debtor against whom a final judgment has been rendered, can not enjoin the execution of the judgment on the ground that the mortgage on which the judgment was based had perempted before the judgment was rendered. As-to him, the question of peremption is res adjudicata,.</p>

<p>^PPEAL from the Parish Court of Madison. Dennis, J.</p>

<p>This court has jurisdiction of all suits which involve the legality of a tax, without regard to the amount in dispute.</p> <p>Before a parish can recover the amount of a tax imposed by its police jury, it must show that an estimate of the parish expenses for the current year was made, and published at least thirty days before the assessment of the tax.</p>

<p>•One who urges an exception of misnomer must allege, and prove the real Christian name, and that done, the party against whom the exception is filed should be permitted to amend at once.</p> <p>A vendor of a movable who sues the executrix of the vendee, for the dissolution of the sale, and the recovery of the movable, andswears that he fears the defendant will part with, or dispose of the movable, during the pendency of the suit, is entitled to have the property seauestered. In such case he need not allege that he has a privilege on the property.</p>

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

<p>TV.hen the owner of an immovable is present at a public sale of the same, and tacitly assents to its being sold as the property of another, he is thereby estopped from. subsequently disputing the title and possession of the bona fide purchaser.</p>

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

<p>i PPEAL from the Eighteenth Judicial District Court, parish of NL Bossier, Turner, J.</p>

<p>Evidonce in proof of a claim is admissible, although it may appear, prima facie, that the claim is prescribed.</p> <p>The fact that tax-bills have been, filed in court is not proof that suit has been brought on them.</p> <p>Debts due the city of New Orleans on account of unpaid taxes are prescribed in ten years from the time the taxes are exigible.</p>

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

<p>The fact that the accused attempted to escape from prison a Eew days before his trial, on a charge of murder is admissible in evidence. The time of the attempt is not material, as bearing on the question of its admissibility.</p> <p>The State may introduce evidence to prove contradictory statements made by the defendant’s witness at another time.</p> <p>Unsworn statements made after the trial of a criminal case by one of the jurors in the caso, going to impeach his own verdict, or to show misconduct in the jury, are not admissible in evidence on the application for a new trial.</p> <p>This court is without jurisdiction to consider the testimony of witnesses, and disputed questions of fact, on which applications for new trials in criminal cases are made.</p>

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

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

<p>The debt due for services as an agent or mandatary is only prescribed in ten years. “When one obligates liimselt in writing to pay a certain sum on the happening of a certain event, the obligation is only prescribed in ten years.</p>

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

<p>A partnership is not within the language or intendment of the exemption law. and hence none of the property of a partnership is exempt from seizure.</p>

<p>^PPEAL from the Parish Court of Franklin. Zim, J.</p>

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

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

<p>■Where a third person in whose possession property has been attached, intervenes, and elaims<the ownership ol the property, his intervention need be served only on the plaintiff in attachment. It is not necessary for him to cite the defendant in attachment who does not dispute his title.</p> <p>Except in a ease of trespass on real estate, a claim for damages can not be made in an intervention against one who does not reside in the parish where the principal action is pending.</p> <p>A claim for damagfes against the sheriff can not be coupled with an interventional demand setting up the intervenor’s title to personal property attached in his hands.</p>

<p>APPEAL from the Fourteenth Judicial District Court, parish of Rich-laud. Parsons, J.</p>

<p>Any suit between a citizen of this and another State, whether in rem, or inpersonam,, is under the act of Congress of 1875 removable from the State to the Federal court, when the matter in dispute exceeds S500, and when the application to-remove is made at, or before the term of the State court at which the suit could be first tried, and before the trial thereof.</p> <p>An hypothecary action against a third possessor of mortgaged property who was-not a party to the previous suit and judgment of the plaintiff against the former-owner of the property is a new suit, and not the mere continuation of the previous suit.</p> <p>Appearing and filing a plea of .prescription in the State court, does not, under the aet of Congrerjc of 1875 prevent the defendant from demanding a removal of the-suit to the Federal court.</p> <p>When a defendant has filed the proper application and bond for the removal of the suit to the Federal court, in a case where he had the legal right to the removal, the jurisdiction of the Federal court will not be affected by the subsequent death of' the defendant, and the execution of the appeal bond by his executor.</p>

<p>A party who ia one suit set up aktitle ©f ownership to certain property, is not estopped from afterward claiming mortgage rights on the property, as against one who in the former suit denied, and contested his title as owner, and who was in no way injured, or induced to change his position by the claim of ownership set up in the former suit.</p> <p>The setting aside, for any cause, of the sale of an immovable made by a debtor to his creditor who had a mortgage on the immovable, will not impair any legal rights on the property which the creditor had in virtue of his mortgage.</p> <p>The reasons given by the court for its judgment in a particular ease form no part of the judgment, and hence can not be invoked as res adjudicata in a subsequent suit between the same parties.</p> <p>Inscriptions of mortgage can only be erased by the consent of the parties to the mortgage, or by the effect of a decree to which the mortgagee is a party.</p>

<p>Although it is proper that proceedings for a mandamus should be taken in the name of the State, yet the absence of that form, will not be fatal, when the facts set forth in the petition disclose a right to the writ, and there was a proper prayer for it.</p> <p>Where a debtor has specially mortgaged his whole plantation, as a unit, he can not demand that it shall be sold in parts. The creditor may compel the sheriff to sell it as a whole, and in block.</p>

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

<p>APPEAL from the Twelfth Judioial District Court, parish of Catahoula. Smith, J.</p>

<p>In order to convict a person, indicted under section 795'of the Revised Statutes oí 1870, for biting off an ear. it must be shown that a sufficient portion of the ear was maliciously severed from the body of the injured person by the accused, to attract observation, and impair comeliness.</p>

<p>In a suit to revive a judgment the sole issues to bo tried are whether it had ever been rendered, and whether it had become extinct.</p> <p>Neither a suspensive nor devolutive appeal will prevent prescription from running against the judgment appealed from.</p> <p>A suit to revive a judgment is properly brought in the name of the original plaintiffs, even though the judgment may have become the property of third persons.</p>

<p>Where two creditors holding the promissory notes of their debtor secured by one mortgago on the latter’s plantation, sue on their notes and obtain personal judgments, and each seizes under &fi. fa. the crop grown on the plantation, and the proceeds of the crop are held (under an agreement between the seizing creditors which makes no mention of any privilege or pledge on the crop claimed by either creditor) to await the adjudication of their claims under their seizures, the creditor making the first seizure will acquire a preference.</p> <p>Contracts made with factors to give them a privilege or pledge on crops, must stipulate the sum to be secured by such privilege or pledge, and no further sum than that thus stipulated and fixed can be covered by such contracts to the prejudice of other creditors.</p>

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

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

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

<p>APPEAL from the Sixth District Court, parish of Orleans. Tissot, J., presiding in place of Iiightor, J., recused.</p>

<p>j^PPEAL from the Fifth District Court, parish of Orleans. Sogers, J.</p>

<p>^PPLICATION for writs of mandamus and prohibition.</p>

<p>'The act No. 37 of the extra session of the Legislature of 1877, regulating the sale of coal oil, petroleum, etc., prescribing penalties for the infraction of the act, and delegating to the Board of Health the authority to enforce the law, does not violate article 114 or article 118 of the constitution of the State; or that provision of the constitution of the United States giving to Congress the power to regulate commerco between the States; or that provision forbidding any State to lay any impost or export duty except what may be necessary to the execution of its inspection laws. Act No. 37 is an inspection law.</p>

<p>^PPEAL from the Third District Court, parish of Orleans. Monroe,</p>

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

<p>The owner of a plantation is not liable for damages to an adjoining plantation caused by works oreetod on his own plantation, in order to prevent its inundation by a destructive overflow of tlie Mississippi river; more .especially when the owner of the adjoining place refused to co-operate in a common work for the protection of both places.</p> <p>One can not claim indemnity for damages which he has contributed to bring about by his own negligence, or culpable indolence.</p>

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

<p>A stipulation made by the vendee of a newspaper to pay “ all of the outstanding liabilities” of the paper, will not make the vendee liable for the damages for libel subseauently recovered against the vendor, in a suit pending when the sale of the paper was made.</p>

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

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

<p>A promissory note which, has for its consideration the discontinuance, by the holder of the note, of certain criminal proceedings instituted by him against a party for obtaining money under false pretenses, is void.</p>

<p>Where in a contract of insurance which covers a storehouse, and thegoods therein, it is stipulated that should the assured subsequently take out a policy in any other company, the assurers should receive notice of It on pain of forfeiting thoir policy, a subsequent assurance of the house, or the goods, in another company, without notice to the assurers, will work tho forfeiture of the contract with them, whether the subsequent contract was legally enforceable or not.</p>

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

<p>j^PPEAL from the Fifth District Court, parish of Orleans. JRogers, J.</p>

<p>Money and goods advanced by a factor to a planter and used in paying the laborers^ who make the crop constitute privileged debts on the crop.</p> <p>Disbursements made through the sheriffs by order of court, to gather, manufacture- and ship the crops on a plantation in the keeping of the sheriff, are debts incurred for the preservation of the crops, and therefore privileged.</p>

<p>A PPEAL from the Parish Court of Plaquemines. O’Donnell, J.</p>

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