Volume 30 — Louisiana Annual Reports

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

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

<p>Whore a parly, acting through an agent, loans money on iho security oí the borrower’s mortgage, and the agent, who keeps the note in his possession, pays over from time to time to his principal the accruing interest and parts of the principal of the note received from the maker, finally pays over to the principal the balance due on the note, without stating that he is paying his own money, and without obtaining the consent oí his principal to buy, or even intimating that he desired to buy the note, he will not acquire any title to the note; and the note itself, and the accompanying mortgage, will be deemed extinguished.</p> <p>Subrogation to a creditor’s rights and liens only takes place in favor of a third person who pays the debt, (when such third person has no interest in paying it,) by an express agreement to that effect, entered into at the time of payment.</p>

<p>The death of a defendant to a suit pending in a court of ordinary jurisdiction, does not divest that court of jurisdiction, and work the transfer of the case to the probate court. The suit remains where it was instituted, but only to be proceeded with when the legal representative of the deceased defendant is made a party.</p> <p>The probate court of a parish has no authority to appoint a curator ad hoc to represent the heirs of a deceased defendant to a suit pending in a court of ordinary jurisdiction, when the succession of the deceased has not been opened; only the court before which the suit is pending has the legal right to appoint such a curator.</p>

<p>Where by a judgment of a circuit court of the United States the assets of a corporation have been taken possession of, and placed in the hands o£ a receiver, no writ of attachment, or any other process can legally issue from any other court to distux-b the receiver’s possession of such assets, or take effect oix any right, ox-debt, that may have accrued in favor of the corporation after the receiver had Qualified, and taken ehax-ge.</p> <p>Under the law of Louisiana mortgaged property may bo seauestered.</p> <p>Extx-acts from the judgment of another court are not admissible in evidence, in order to show tlxe force and effect of the judgment. A certified copy of the entire judgment, together with all the pleadings that led up to it, xxxust be put in evidence.</p>

<p>Where the owner of a vacant lot in the city of New Orleans, who desires to erect a building of certain dimensions on the lot, finds that the wall of his neighbor’s house, which is built up to the boundary line of the lot, is so thin that the weight of his prospective building, although erected within the bounds of his own lot, would destroy liis neighbor’s house, he has the legal right to take down the neighboring wall, and replace it by one strong enough to support tlic building he shall erect. Such reasonable care must be observed by him however, as will render the inconvenience and loss to his neighbor as small as practicable; and his care must be proportioned to the risk of loss and inconvenience to his neighbor that his undertaking may occasion; and he is liable for whatever actual damage his neglect to take such care may entail.</p> <p>A party can not be held liable for the value of property, stolon on account of its being exposed to theft by an act of his which he had the legal right to do.</p>

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

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

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

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

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

<p>A judgment of the lower court which dissolves an injunction, and which passes definitively on all the essential points at issue between the parties, i» a final judgment from which an appeal will lie to this court.</p> <p>But a judgment is incomplete until signed by the judge who rendered it, and hence, until thus signed, this court can not take cognizance of an appeal from it.</p>

<p>The right to an office will not be considered on any rule taken in this court.</p> <p>If it appears from a scrutiny of all the provisions of an act of donation inter vivos that it was the real intention of the donor, and of the donees, that the land conveyed by the act should be dedicated' to public use, such land will be held as thus dedicated.</p> <p>Property dedicated to public use is not liable to seizure and sale.</p> <p>Property held by a municipal corporation in trust for public uses can not be alienated by the corporation, nor subjected to seizure and sale by any of its creditors.</p> <p>Where a certain tract of land has been dedicated to public use — the whole of it remains thus dedicated, although only a part has been actually put to public use. Nor is this dedication at all impaired because a part of the land has been temporarily leased to private individuals.</p>

<p>In determining wind effect tlie discharge in bankruptcy of a principal debtor will have on the obligation of his surety, this court will be guided by the law of Louisiana and not by the bankrupt law.</p> <p>Under the law of this State the discharge in bankruptcy of the principal on an appeal bond, will not release the surety on that bond from any obligation he incurred by signing the bond.</p> <p>The surety who pays the debt of his principal is subrogated, by more operation of law, to all the rights of the creditor. No act of subrogation by the creditor, in his favor, is required.</p>

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

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

<p>Tlie State courts have jurisdiction to determine whether a debtor is released Irom certain debts, by his discharge in bankruptcy.</p> <p>The executor of a succession is liable in a fiduciary capacity for ail succession funds received by him, or which come under his control; and he can not change the nature, or relax the stringency of his obligation for such funds, by wrongfully allowing them to be received by, or pass into the possession of a commercial firm, of which he is a member.</p> <p>The amendment of the Bankrupt Act authorizing compositions to be made, was merely designed to provide another mode by which discharges in bankruptcy could be effected; but it was not intended to enlarge the scope of discharges, and thus enable the debtor to liberate himself from any class of obligations, which a discharge under the original bankrupt act would not freo him from. Hence a composition, under the bankrupt act, will not release the debtor from any fiduciary debt.</p>

<p>In virtue of an act of the Legislature passed March 17, 1870, no creditor of the city of New Orleans, whether he bo the holder of a liquidated, or an unliquidated claim, can compel by mandamus, any auditing officer of the city to issue, or deliver to him, a warrant for any amount due him; or compel any disbursing officer of the city to pay him any sum which he may claim that the city owes him.</p> <p>A mere change in the title of an officer who performs certain, described functions in the government of a city, will not make him amenable to the operation of a summary writ, from which, under his former title, he was exempted by special statute.</p> <p>An act of the Legislature which leaves to creditors the ordinary legal remedies for the enforcement of their rights, and merely restrains them in certain cases from employing the summary process of mandamus, does not violate the constitutional provision that every injured person shall have adequate remedy by due process of law, and without unreasonable delay.</p>

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

<p>A writ of seizure and sale can not legally issuo, until three days after notice of the-decree of court, granting tho writ, has been served on the debtor.</p> <p>The notice of judgment in executory proceedings, which must bo served on tho debtor three days previous to the actual seizure of the mortgaged property by the sheriff, must be signed, and issued by the cleric oí the court, and not by the sheriff.</p> <p>If such notice has been issued by the sheriff, and objection to it is formally mado before any sale of the seized property has taken place, tho objection will bo sustained, and no rights or liens will accrue to the seizing creditor, in virtue of tho-seizure.</p> <p>An adjudication of properly under a judgment subsequently annulled by a regular decree of court, conveys no tille.</p> <p>Whero property, within the parish of Orleans, has been seized by the sheriff undora writ of fi. fa., and remains in his hands unsold until the return day of tho writ,, he must, in order thereafter to legally hold the property, and thus maintain on it the lien acquirod to the circditor by his seizure, make due return of tho writ on its return-day, and cause tho clerk of tho court to make and give to him a duly certified copy of the writ, within twontv-four hours after tho return of the-original. Otherwise, the sheriff will bo without authority thencoforth to maintain the seizure.</p> <p>An act of sale which contains the stipulation of a real price, no matter how fraudulent the sale may be, can not- bo disregarded, and assailed collaterally, like a simulated sale.</p> <p>Counter letters can liavo no effect against creditors, or bona fide purchasers.</p> <p>A mortgage primarily without any consideration given to secure certain negotiable notes in the hands of any future holder, becomes a valid mortgage in favor of. any innocent third person who may acquire one of the notes before its maturity, and for value.</p>

<p>On the trial o£ a motion in arrest ol judgment in a criminal ease, evidence will not bo admitted to prove any error complained of, unless tho error appears on the face of the indictment, or tho proceedings.</p> <p>Alter a verdict has beon returned in a criminal case, it is too late to object to the composition oí the jury that rendered the verdict, on the ground that some of the jury were too ignorant, or too illiterate to understand tho evidence. Such objection should have been made a ground of challenge to the disqualified jurors.</p> <p>The objection that tho jury in a criminal ease wore not summoned under an ordor of tho court before whicli tho accused was tried, will not be sustained, on a motion in arrest of Judgment, when it appears that tho jury was summoned by a competent officer, before a competent court.</p> <p>In criminal eases this court have no jurisdiction of questions of fact.</p>

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

<p>A party Is not eligible as District Judge who lias not practiced law in this State for two years, next preceding his election.</p> <p>In legal contemplation, a party can not be said to have practiced law, even though, as a matter of fact, ho may have dono so, if he has not previously qualified to practice, by complying with the requirements prescribed by tho constitution.</p> <p>Because one has acted as District Attorney, he can not be said, in a constitutional sense, to have “ practiced law.”</p> <p>A mere resolution, passed by the Board of Administrators of the University of Louisiana, that the degree of bachelor of law shall be granted to a certain person, and directing the President of the University to confer said degree, and the usual diploma, followed by a refusal of the President to obey the direction, has not the character and authority of a diploma.</p> <p>Tho degree of bachelor of law, conferred on a party by tho Board of Administrators of the University of Louisiana, will not authorize him to demand of this court a. license to practico law in this .State, unless the diploma is signed by the President of the University, and the Professors of tho Department in which the student has graduated.</p>

<p>An accused person, who with lull knowledge of tho fact that the jury by whom he is to be tried was drawn from a list of persons, composed partly of those who had been excused from serving, goes to trial without making any objection to the composition of the jury, thereby waives his right of objection, and can not thereafter, on that ground, ask that tho verdict of the jury shall be disturbed.</p> <p>The auestion whether one-of the jurors in a criminal ease was, or was not disaualiiied to act ns a juror, on the score of being too prejudiced to render an impartial verdict, is a auestion of fact for the lower court to determine, and of which this Court has no jurisdiction.</p> <p>The place whore an alleged murder was committed is set forth with sufficient certainty, when the indictment gives tho name of jiarish in which tho killing is charged to have been done, and states that it took place within the jurisdiction of the Court before whom the accused is tried.</p> <p>In an indictment for murder it is not necessary to set forth the specific manner, and means of tho killing. It is only necessary to charge that the accused did willfully, feloniously, and with malice aforethought kill, and murder the deceased.</p> <p>It is too late to urge any objection to an indictment on account of any defect of form apparent on its face, after the jury has been sworn.</p>

<p>When it clearly appears from the evidence that the intent of parties was to form a written contract, neither party will be bound until the contract has been reduced to writing, and signed by both, No alleged verbal agreement, in such case, can be invoked by either party against the other.</p>

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

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

<p>It is tlie duty of the Mayor and Administrators of the city of New Orleans to set apart, and provide specifically, in the forthcoming yearly budget, out of tho funds to arise from the general tax therein levied,, means for paying all judgments against the city then registered in the office of the Administrator of Public Accounts, and unsatisfied, in the order of their registry. And this duty, the Mayor and Administrators may be compelled, by mandamus, to perform.</p> <p>It is not their duty to levy a separate tax to pay such judgments; nor is it made obligatory on them to pay such judgments out of the fund in their hands set apart for contingent expenses; although they may, in their discretion, discharge the judgments out of that fund.</p> <p>If the means arising from the general tax levied in one annual budget are not sufficient to pay all of the registered judgments, provision must be made in each subsequent budget, until all of such judgments are successively extinguished.</p> <p>'The fact that the term of office of the existing Mayor and Administrators of a city is nearly expired, is no ground for defeating, or delaying the legal proceedings of a eroditor of tho city who has a good cause of action.</p>

<p>Tlie executor of a succession -which embraces a plantation among its assets is authorized to employ a competent person to take charge of the plantation, and keep its improvements in proper repair, when it appears from the evidence that it was impracticable to lease the place, and that the services of the keeper enured to the benefit of the property in his charge. A reasonable compensation to the keeper, in such a case, will be allowed as a privilege debt of the succession.</p>

<p>Lands situated in another State can not be seized in a garnishment proceeding, instituted here.</p> <p>The assignment of its assets for the benefit of its creditors, made by a defunct partnership to an individual member of a new partnership succeeding to the former business of the old concern, will not make the new partnership liable to the defunct partnership for the value of any of its assets, and therefore not amenable to a garnishment at the suit of any creditor of the defunct concern.</p>

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

<p>The parish court is without jurisdiction oí a suit for partition between the surviving widow and the heirs of the decedent, when it appears that the widow had accepted and disposed of her interest in the community, and that the heirs, who are of age, had unconditionally accepted the succession and been put in possession of its property. In such a ease the succession no longer exists.</p> <p>No intervention can be filed in a suit for a partition, after judgment decreeing the partition has been rendered. That judgment is definitive, and hence the suit can not be considered as pending until the final decree homologating the partition.</p> <p>Parties wlio intervene in a partition suit can not be considered as third opponents to the execution of the judgment in the suit, unless they either claim to be owners of the property on which the judgment is sought to be executed, or claim a preference on the proceeds of its sale.</p> <p>A suit for the nullity of a judgment can not be brought by way of intervention, or third opposition. It must be brought in the ordinary form, by petition and citation.</p> <p>No valid judgment can be given in a proceeding wherein no citation issued to, and no answer, or appearance was made by the defendant.</p>

<p>Where cotton is nominally sold for cash, but tho pi'ice is not paid on delivery of tho cotton, and tho vendor receives on tho following day a part of the price, and accepts security for tho balance, ho thereby waives any privilege he may have as vendor, and is estopped from soauestoring the cotton in the hands of a subsequent bona /¡de vendeo, or pledgee of the cotton.</p>

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

<p>When the plea oí prescription is filed in a suit, not as an answer, hut as a peremptory exception, it will not have the effect of setting aside a judgment oí default previously rendered in the suit; and on the overruling of the exception, thus filed, the plaintiff is entitled to introduce his proof to confirm his default, and to compel the judge a quo to hear his proof and pass on his application to confirm.</p>

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

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

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

<p>Au agent, or depositary, in whose hands certain property attached in asuit has been placed for keeping and sale, by the parties claiming adverse rights in the same, can not be compelled by the attaching creditor, on a mere rule, to deliver said property, or proceeds of the same, to the sheriff. No action can be had against the depositary in such a case by the attaching creditor until his rights have been fixed by a decree rendered contradictorily with all other parties assorting an interest in the property.</p>

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

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

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

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

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

<p>"Whore an executor’s account, which he prays to bo homologated, is opposed in several particulars, and the oppositions aiter adjudication below, are appealed to, and finally passed on by this court, and all the issues involved in the account definitively settled, the executor can not appeal from, a subsequent decree of tho lower court, homologating the account as settled by the judgment of this court</p>

<p>Redundancies in pleading will, on motion to that effect, be stricken out.</p> <p>Before a judgment creditor, having a privilege on certain immovablo property which has been really sold by his debtor to a third person, can seize and subject that property to his judgment, he must first bring a revocatory action and have tho sale of the property annulled.</p> <p>A valid sale of property may be made with a right of redemption reserved by the vendor.</p> <p>Tho owner of property which has been illegally seized under aft. fa. and offered for sale, will forfeit his claim for damages on account of the illegal seizure, if he himself h..s so acted, as to countenance the sale of the property under such seizure.</p>

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

<p>APPEAL from the Third Justice’s Court, parish of Orleans. Laresche, J.</p>

<p>The community formed by a man’s second marriago can not bo held liable for the value oí property belonging to a former community, sold by him during his second marriage, unless it be proved that the proceeds of such property were expended for the benefit of the second community.</p> <p>The debt due by a father to his children by a former marriage, for their half of the proceeds of the community property sold by him, is exigible against his succession, and its payment can not be defeated or delayed by any claim of usufruct made by the surviving widow of his second marriage.</p> <p>Where a legacy in full property left by a husband to his widow is reduced, under article 1752 of the Civil Code to one of usufruct merely, the usufruct shall embrace ono fifth of the husband’s whole estate.</p>

<p>Whore a draft Is drawn in favor of the payee on a certain fund to arise from the sale of property then in the drawee’s hands, and the payment of the draft, by its own terms, is postponed to the payment, (out of the same fund), of a debt due the drawee, the drawee, who has not accepted the draft, is only liable for whatever balance of the fund may remain, after the payment of his own debt.</p> <p>(The drawee is not estopped from disproving erroneous statements made by him to the holder of a draft as to the amount of the drawer’s funds in his hands, or as to the extent of his claim on those funds, when his statements have not induced the holder to alter his position to his prejudice.</p>

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

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

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

<p>The clause of a husband’s will, by which his wife is constituted his universal legatee, on condition that if his sister survived his wife she should be entitled to have a certain sum from the wife’s succession, does not involve a fidei commissum, or prohibited substitution. And hence on the death of the wife, who had accepted the husband’s bequest, with the charge on it, the surviving sister of the husband has a right to claim the sum from the wife’s succession.</p>

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

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

<p>An appeal will not lio from an order of court made in oxocution of a. previous judgment of that court.</p> <p>One who has tacitly allowed a judgment to be rendored against him, can not assail it collaterally, on a rule taken by a third porson to carry the judgment into effect. He must p roceed by a direct action to annul.</p> <p>The execution of a judgment can be arrested in but two ways, by a suspensivo appeal, and by injunction.</p> <p>A party condemned for a loss sum than live hundred dollars can not appoal to this court, although it may appear that tho property of defendant, seized in execution of the judgment against him, is worth more than #600.</p>

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

<p>APPLICATION for a mandamus.</p>

<p>Whero an act of the Legislature makes a new law for tho assessment of proporty, and a now Board of Assessors are appointed under that law, whose pay is conditioned on their doing the work of assessment, and they actually do tho work they will be entitled to tho appropriation made for the compensation of such assessors, and not any previous Board of Assessors who were fundi officio when tho work of assessment was done,</p>

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

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

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

<p>The validity of a garnishee’s title to property in his possession, of which he claims the ownership, can not be passed on in a rule, taken to traverse the answers of ' the garnishee. Such an issue can only be passed on in a direct suit brought to test the sufficiency of the title.</p>

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

<p>When one party submits a proposal for a contract to another, and the latter’s acceptance of the proposal includes a material modification of the proposal, no contract will result until the modification has been acquiesced in by the party making the proposal.</p> <p>When a party who is sued in virtue of a contract made by a municipal corporation, denies, in general terms, that the corporation has complied with the law authorizing it to make such a contract, the burden of proof is on him to show that the law has not been complied with. The presumption is that the corporation has acted legally.</p> <p>When the work of constructing sidewalks on one of the streets in the city of New Orleans has been done under a contract made at the discretion of the Common Council, each owner of property fronting on such street can only be held for two thirds of the cost of the sidewalk in front of his property. .</p>

<p>Any doubt as to the intentions of the parties to a contract of lease, arising out of uncertain terms of the contract, will be construed in favor of the lessee. It is the business of the lessor to have the agreement expressed in clear and certain, terms.</p> <p>Where the contract of lease leaves it doubtful whether the lease is to terminate on the first or the thirty-first of a certain month, the lessee may elect which of the two dates it shall end on.</p> <p>Where the condition of a contract of leasels that if either party desires to terminate the lease he must give notice of his intent one monffibefore the first of the succeeding October, and it happens that the first of the succeeding September falls on Sunday, notice served tne second of September will satisfy the condition.</p> <p>Where a lessee continues in possession aRer the expiration of the lease, without a renewal of the contract, there is a tacit reconduction of the lease by the month, terminable on fifteen days notice.</p>

<p>Until a definitive j udgmeut, rendered by a court of competent jurisdiction, has been set aside, either on appeal or by an action of nullity, money paid under it can notbe recovered back.</p> <p>Property used for school purposes, and the lots appurtenant to and used therewith, are exempt from taxation.</p> <p>Property belonging to a church, and used as a parsonage, or rectory, is not exempt from taxation.</p>

<p>The power of the arbitrators, to whom the law refers the complaints of taxpayers touching the over assessment of property made by the tax assessors, is limited to ascertaining the value of the property listed on the assessment rolls. They have no power to determine what is, and what is not exempt from taxation, but any award they may make reducing the valuation of property listed, is binding. “ Over assessment” means over valuation.</p> <p>A mandamus will issue to compel the Board of Assessors to enter on their assessment rolls, the value put by the arbitrators on any property listed on those rolls.</p>

<p>Where in a contract to deliver a certain thing, no time for the delivery is fixed, the legal implication is that -it shall be delivered within a reasonable time from the date of the contract.</p> <p>If the party who has contracted to deliver a certain thing at a fixed price makes a tender of it at the proper time, and the party who has contracted to receive the thing refuses to receive it, the former may recover from the latter whatever damages are proved to have directly flowod from the latter’s breach of contract.</p> <p>Whoever claims damages, based on a deprivation of prospective profits, must establish such facts in evidence as will enable the court to fix with certainty, the amount of the deprived profits.</p> <p>If the vendee in a contract of sale refuses to receive the article sold, the vendor may sell it at private sale; and on proving thathe thus sold it at its full market price, he may recover from the vendee the difference between that price, and the price stipulated in the contract of sale.</p>

<p>The Question whether an executrix has been legally appointed can not be raised collaterally, on an opposition to her account. It can only be considered in a direct action to revoke.</p> <p>A general denial, in an opposition to the account of an executrix, puts at issue each and every item in the account, and puts on her the onus ol proving each item.</p> <p>Tho lapse of alegacy, caused by the legatee’s death before that of the testator, will not give to the universal usufructuary created by the will, the usufruct of the property embraced in the lapsed legacy. Such property will fall to the legal heirs of the testator, if not otherwise specially disposed of in the will.</p> <p>Accretion only lakes place in favor of legatees, in cases where a legacy has been left to “several conjointly;” as specially provided for in articles 1707, and 1708 of the Civil Code.</p> <p>A mere right of usufruct, no matter how general the usufruct, will not constitute the usufructuary a universal legatee, or evon a legatee under a universal title; but only ,a legatee by a particular title.</p> <p>It is only when a legatee by a particular title is charged with the payment of a special legacy, that he can profit by the lapse of the legacy.</p> <p>When the property of a legacy left by a deceased husband devolves on his legal heirs, on account of a lapse of tho legacy, his widow will be entitled to the usufruct of the property, and hence not liable for its revenues.</p> <p>The usufructuary may at any moment renounce his usufruct.</p> <p>Prescription does not begin to run against the claims of the usufructuary, on account of debts paid by him for which the property subject to the usufruct was liable, until the expiration of the usufruct.</p>

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

<p>.1 PPEAL from the Seventeenth Judicial District Court, parish of Red £1. River. Pierson, J. Jury trial.</p>

<p>REPLICATION fox a mandamus.</p>

<p>A PPEAL from the Thirteenth Judicial District Court, parish of Terrebonne. Beattie, J.</p>

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

<p>^PPEAL from the Superior District Court, parish of Orleans. Lynch,</p>

<p>The facts set forth in the affidavit of a party accused of a crime, in support of his motion for a continuance, are, for the purposes of the motion, to be taken as true. They can not be traversed, or contradicted by counter affidavits, or other evidence.</p> <p>When the confessions of a prisoner to the committing magistrate have been reduced to writing, but on being offered in evidence on the trial of the accused, are, on his motion, rejected on account of defects of form in the writing, his voluntary declarations to the magistrate may be proved by parol.</p> <p>To warrant a conviction on circumstantial evidence, it is necessary that the circumstances should be of such a nature, and so related, as to leave no reasonable doubt that the accused is guilty of the offense with which he is charged. It is not necessary that the circumstances should produce that positive conviction which would flow from the testimony of a reliable witness,</p>

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

<p>The general mortgage on the property of a tutrix, in favor of her minor child, may, on the advice of a legally constituted family meeting duly homologated, be legally postponed in favor of a special mortgage on the property, executed by the tutrix in order to obtain means to make repairs, and pay taxes on the property, and provide for the proper maintenance, and education of the minor. And where the minor has enjoyed the benefit of the money borrowed by the tutrix on such special mortgage, the minor will be thereafter estopped from interfering with any rights of property aeauired under said special mortgage, or derived from its foreclosure.</p>

<p>A verdict of conviction in a criminal case will not be set aside, and a .new trial granted, on the ground that one of the witnesses for the State has made unsworn statements since the trial, which contradict his testimony on the trial; especially when it appears that in the opinion of the judge below the testimony given by other witnesses on the trial fully warranted the conviction.</p> <p>When an indictment for the larceny of an animal charges the crime of larceny with all the fullness, and precision required by law, the addition of the words “ and kill,” will be treated as mere surplusage. - They will not change the character, or lower the grade of the crime charged.</p>

<p>A mandamus will issue to compel the judge of a lower court to grant an appeal from any interlocutory decreo of the.bourt which works an irreparable injury to the party praying for the appeal. ■</p>

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

<p>A defendant who pleads certain exceptions to the suit against hini, is, so far as the exceptions are concerned, a plaintiff, and hence must prove the exceptions.</p> <p>Thus, when the purchaser of property at a tax-sale, who is sued by the former owner for the recovery of the property, excepts, that the plaintiff must re-imburse him what he has paid for the property, and which inured to the benefit of the plaintiff, before the latter can demand the recovery of the property, such a purchaser must in order to maintain his exception show the precise amount that he is entitled to be re-imbursed.</p>

<p>It is so absolutely necessary to the validity of criminal proceedings and the verdict found thereon that a plea on his behalf should be filed to the indictment found against the accused, that the failure to file such a plea will vitiate the proceedings, and justify the setting aside of the verdict.</p> <p>The presence of the accused, at the time the verdict against him for a felonious offense is received, is essential to the validity of the verdict.</p> <p>Under an indictment for one offense a legal conviction can only be had for another offense of less magnitude, when the latter offense is of the same nature, or kind, as the one charged. Thus, under an indictment for burglary, a verdict convicting the accused of petit larceny is invalid.</p>

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

<p>Where the evidence shows that the parties intended, originally, that the contract of lease should be reduced to writing, neither will be bound until it is signed by both.</p>

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

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

<p>One who sues lor the nullity of a judicial sale, can not ask lor the proceeds o£ the sale. The two demands are inconsistent, and mutually exclusive. In such a case the suit to annul will he dismissed.</p> <p>The purchaser ol property at a judicial sale, is a necessary party to a suit brought to annul the sale.</p> <p>The only legal methods ol arresting a sale under executory process, or the pro-coeds of such a sale, are by appeal, by injunction and bond, and, (in certain eases enumerated in articles 733-73!) Code ol Practice) by opposition and injunction without bond.</p>

<p>A power o£ attorney authorizing fin agent to soli real estate need not bo by authentic aet. It is only noaessary that it be in writing, and properly attested.</p> <p>If the purchaser oí property at a succession sale wrongfully refuses to comply with the terms of the sale, the administrator of the succession may, after putting the purchaser' in default by the tender of an act of sale, causo a second sale at the expense of tho purchaser; and the purchaser will bo liable for tho costs of this second sale, and any loss to the. succession caused by the property’s selling for a smaller price at the second sale.</p>

<p>One who lias not resided, within the parish in which a certain case is tried, ior one year next preceding the trial, is not aualiilod to serve as a juror in that case. 1</p> <p>Whore two persons arc jointly charged with the commission oí a crime, the State is entitled, on a proper showing, to a continuance as to both, even though one of the accused is ready lor, and demands a trial.</p>

<p>In fixing the compensation lor the professional services of a lawyer in any particular case, there are two considerations which will determine the judgment- of this court. One is the amount and character of the work done, and the other is the ability of the debtor to pay.</p> <p>The foes due the lawyer for successfully defending a wife in a suit of her interdiction brought by her husband, are a debt for the community.</p>

<p>Tlio claims o£ sheriffs, and clerks gf courts, for the annual sums of money .due them £or their services in the criminal matters arising in their courts, are not prescribed in two years from their maturity unless proved up, and audited within that time. This prescription only applies to claims which roauire evidence to establish, not to those whose amounts are fixed by law.</p> <p>The holder of a claim against the State, the amount of which is fixed by law, may compel the Auditor by mandamus to warrant for the amount, unless the latter shows that no appropriation was made for its payment, or that the appropriation was exhausted, or that the claim exceeded the revenue of the year in which it was exigible.</p>

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

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

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

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

<p>A PPEAL from the Fifth Judicial District Court, parish of East Feli¿X ciana. McVea, J.</p>

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

<p>APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, special judge.</p>

<p>Land which has been donated to 'a parish and dedicated to public use, can not be seized for any debt due by the parish.</p> <p>The contractor who furnishes the material and builds a jail for a parish, under a contract with the police jury of the parish, has the mechanics’ lien and privilege on the jail, to secure the payment of what is due him under the contract.</p>

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

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

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

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

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

<p>Where an injunction is asked lor in a case that comes within the jurisdiction of the District Court, and the District Judge is absent, and the parish judge is legally recused, the parish judge ol an adjoining parish may grant the injunction.</p>

<p>APPEAL-from the Seventh Judicial District Court, parish of Avoyelles. Ydist, J.</p>

<p>^PPEAL from the Fourth District Court, parish of Orleans. Houston,</p>

<p>An advertisement that “ all the judgments” belonging to the succession of a certain decedent will be sold, is sufficiently specific to authorize the sale of óvory sueh j udgment.</p> <p>Neither the judgment debtor of a succession, nor the surety on the appeal bond of such debtor, is entitled to notice of the public sale of the judgment against sueh debtor, made-in the course of administration.</p> <p>The surety on an appeal bond, when his principal has been cast on appeal, may be proceeded against by rule for the amount of the judgment when the uneontradieted return of the sheriff on the fl. fa. against the principal, shows that after diligent search the principal could not be found; that the surety failed to point out property of the principal after being called on by the sheriff to do so; and that the sheriff could find no property of the principal to levy on.</p> <p>Until traversed, and' disproved, the declarations of the sheriff in his return on a writ of fl. fa. are taken to be true.</p> <p>The surety on an appeal bond can not escape his liability on the ground that the sheriff’s return on the fl. fa. against the principal on the bond was prematurely made, unless ho proves that in some form or other that premature return has inurod to his injury. To the extent of such injury, and only to that extent ho would bo discharged.</p> <p>■Where the attorney of the plaintiff in execution instructs the sheriff to maleo a return of nulla bona, it relievos the sheriff, from the necessity of calling on the plaintiff to point out property of the defendant.</p>

<p>PPEAL from the Parish Court of Iberville. Crowell, 7.</p>

<p>The tutor who received the proceeds of the sale of slaves, the property of the minors under his tutorship, some time before the late civil war, is liable to the minors for the amount of those proceeds.</p>

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

<p>On the rule to dissolve an attachment the defendant In the suit may put at issue, and require to be passed on. all of the allegations of the plaintiffs affidavit, on which the writ of attachment itself legally rests. And when such allegations are thus put at issue, the plaintiff must prove them to be true. On such a rale however', no allegation, or fact, involving the merits of the ease, will be considered.</p>

<p>APPEAL from the Pifth Judicial District Court, parish of East Feliciana. Me Vea, J.</p>

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

<p>A PPEAL from the Fourteenth Judicial District Court, parish of Ouaix chita. Parsons, J.</p>

<p>Where a surviving' husband, who under a judgment in a partition suit, afterwards annulled, has bought certain- community property in which he had a fourth, and his children also a fourth undivided interest, subsequently by notarial act pledges to a creditor his and their share of the notes executed by him as vendee in the partition sale, secured by mortgage and vendor’s privilege on said property — tho more fact that his children of age join in the notarial act to give their consent to tho pledge of tho Jiotes, in which they claimed an interest, will not bind them for the debt thus secured, nor will it amount to their renunciation of the previous mortgage they have on their father’s interest in said property, on account of paraphernal claims of their mother.</p> <p>Where a question of estoppel, as between certain parties to a suit, lias been expressly, or by necessary implication raised, and definitively passed on, it can not again bo put at issuo.in any subsequent suit between them.</p> <p>The nullity of the principal debt annuls tho mortgage securing it.</p>

<p>The parish courts have exclusive jurisdiction in ordinary suits in all eases where the amount in dispute exceeds one hundred dollars, exclusive oí interest, and does not exceed five hundred dollars, exclusive of interest.</p> <p>Thus, where the principal oi the amount in dispute is exactly $.300, the parish courts have jurisdiction, even though there be enough accrued interest demanded to make the whole amount in dispute much more than $500.</p> <p>The constitution, like legislative acts, must, if possible, be construed in such a way as to render all of its provisions operative, rather than in a way that will make some of them nug,.tory.</p>

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

<p>The signature oí the judge to any final decree rendered by him, is absolutely necessary to constitute it a judgment. Mere entries of judgment on the minutes of a court, unsigned by the judge of the court, are not judgments.</p> <p>In order to recover judgment the plaintiff must prove his ease.</p>

<p>An administrator oí a succession who receives from his predecessor in office a certain sum oí succession money, which the former administrator had collected,, and taken his full commission from, is not entitled to commission on said sum, merely because he divides the money among those to whom it belongs. Such a. division does not amount to a new administration of tho money.</p> <p>A second administrator, whether he be a public administrator or not. is not entitled’ to a commission on any asset of tho succession, evon though he may have collected it, if the asset appeared in the inventory of, and paid a commission to-the former administrator.</p> <p>Parol ovidenee is admissible to prove tho transfer to a third pers'on of a legatee’s-, interest in a succession.</p> <p>Runds of the deceased deposited in a bank of a foreign State are a part of his succession, and should be taken into account by tho executor in distributing the-assets of the succession.</p> <p>A public administrator, as such, is not entitled to administer as dative testamentary-executor a succession of which the testamentary executor has died, and one or-more of the heirs are present in the State.</p> <p>Where a public administrator, who is one of the heirs of a succession, is appointed dative testamentary executor of tho same, it will be assumed, if the contrary is-not shown, that he was appointed, not as public administrator, but as heir, under the general law, and his commission will be fixed at two and a half percent.</p>

<p>A PFEAL from the Fifth District Court, parish of Orleans. Bogers, J.</p>

<p>The purchase by the State of property sold on account of unpaid taxes, extinguishes the debt and all liens arising from those taxes.</p> <p>Jiands belonging to the State are exempt from taxation, and hence one who purchases lands from the State takes .them free from all liens and -obligations springing from taxation.</p>

<p>The mere fact that the prosecuting attorney in a trial for murder, read to tho jury a definition of malice, from a manuscript ho refused to allow the attorney for tho accused to see, will not authorize a verdict to be set aside, when the accused does not allege that the said definition of malice was incorrect, and when it appears that the judge instructed tho jury not to regard what was thus read from the manuscript.-</p> <p>When it is shown that a wound which might bo fatal has been inflicted by the accused with a murderous intent, then the burden of proof is on him to show that the death of- the deceased resulted from malpractice, or culpable neglect of tho attending surgeon, or from some other cause other than that of tho wound.</p>

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

<p>Matters that eoulcl have been urged by way of defense, on the original trial of a ease, and on appeal from the judgment in the ease, afford no grounds for enjoining the execution of that judgment.</p>

<p>In the absence oí proof to the contrary, it must be assumed that in the issue, and negotiation of certain State bonds nearly twenty-five years ago, the Governor and Treasurer, who were charged with their issue and negotiation, fulfilled the trust confided to them in accordance with the terms of the law which authorized the issue of the bonds.</p> <p>Where bonds of the State, payable to the order of a certain payee, and indorsed in blank by the payee, are offered and received in evidence without objection, the indorsements will be doemed sufficiently proved to establish in the holder, a legal title to the bonds.</p> <p>Under the plea of general denial, in a suit brought to enforce the funding of certain State bonds, evidence is not admissible to prove an adverse title to the one declared on by the holder of the bonds.</p> <p>In suits between holders of bonds and the Board of Liquidation, (under the funding acts of 187-i and 1875) the only question that can bo put at issue is the validity of the bonds, as obligations of the State. The issue of the ownership of the bonds can not be raised, save by a rival claimant, intervening and setting up an adverse title.</p> <p>The mere fact that a certain bond of the State belongs to one of'the issues declared by the act of 1675 to be questioned and doubtful, will not authorize the holder of that bond to intervene in a suit brought against the Board of Liquidators by the holder of bonds belonging to another of the questioned and doubtful issues. Bonds of the State that appear to have been issued according to law, and to have had a lawful consideration, are valid obligations of the State entitled to be funded.</p> <p>The costs of a suit brought by the holder of bonds to compel the Board of Liquidators to.fund his bonds, must be paid out of the treasury of the State, if the Board is east in the sub.</p>

<p>REPLICATION for a writ of certiorari.</p>

<p>In putting questions to witnesses in a criminal trial it is not permitted to assume as true, facts which, have not been proved, and which the jury alone are charged with finding.</p> <p>One witness can not testify in a criminal trial as to what another witness said on the examination before the committing magistrate, when that other witness is present in court, and not disqualified, and when it is not sought to contradict him.</p> <p>The mere fact that an accused when under examination before a magistrate does not rise up and contradict the witnesses who testify against him, does not warrant the implication that he thereby confesses the truth of their statements.</p> <p>To make the declarations of others evidence against an accused, when made out of his presence, it must be first shown that there was a conspiracy between him and them.</p>

<p>When a parish judge is recused in any ease on the ground of personal interest, he can not appoint a lawyor to try the ease in his stead.</p> <p>The fact that the wile ol the judge is one ol the parties to the suit is sufficient to recuse him on the ground ol personal interest, whether she be separate in property Irom him or not.</p>

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

<p>^PPEAL from the Parish Court of Tensas. Cordell, J.</p>

<p>The question of the widow’s right to the marital fourth may be raised and passed on in her opposition to the executor's account, when there are no heirs here, or claiming an interest, and when the universal legatee is present, and the account of the executor exhibits the proposed settlement oí the succession.</p> <p>Before a widow can rightfully claim the marital fourth from the succession of her husband she must show that her husband was rich, and loft her in necessitous . circumstances. If she fails to prove either of those essential facts her claim to the marital fourth will be rejected.</p>

<p>An order of a district court of the State granting the removal of a ease to the Circuit Court of the United States may be appealed from.</p> <p>When an application for the removal of a suit from a State to a Bederal court is made, the State court has jurisdiction to determine the auestion whether the applicant has brought himself within the provisions of any act of Congress authorizing tho removal. But in considering this auestion, the court should only allow such allegations of fact to be put at issue, as are material to its determination. ' -</p> <p>In an application for the removal of a suit from a State to a Bederal court under the act of Congress of 1867, known as the “ Local Prejudice Act,” the applicant need not swear to his citizenship. The necessary allegation as to his citizenship, need only be set forth in his pleadings.</p> <p>The affidavit reauired by the “ Local Prejudice -Act,” should be made by the applicant himself. The affidavit of his attorney, that he (the attorney) has reason to believe and does believe, etc., is not sufficient.</p> <p>.Bor the purposes of Bederal jurisdiction a corporation, whether political, municipal, or commercial, is regarded as a citizen of the State in which it was created, without regard to the citizenship of its members. Thus, a parish of this State is a citizen of Louisiana.</p> <p>The “ good and sufficient surety ” required o£ the party who applies for the removal o£ a ease to the Federal court need only be offered in the State court by the applicant at the time of filing his petition for removal. The written obligation of such surety need only be filed, after the surety has been accepted by the court.</p> <p>The affidavit required of an applicant for the removal of a case under the “ Local Prejudice Act,” maybe taken before any commissioner for this State residing in another State. Such a commissioner has authority to administer the oath.</p> <p>This court will presume that the seal used by one, who styles himself, without contradiction. a commissioner of Louisiana in authenticating an affidavit made before him, as commissioner, was the seal of a commissioner of Louisiana, until the contrary is clearly, and specifically shown to this court.</p>

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

<p>I PPEAL from the Fifth Judicial District Court, parish of East FeliA ciana. Wedge, special judge.</p>

<p>”Wliere the former lessee of property is sued by his former lessor, for damages to the property alleged to have been caused by the fault of the defendant during the term of the lease, the defendant may contest the former lessor’s title to the property; and to recover in such a suit, the plaintiff must prove that he was the owner of the property.</p> <p>'Where in an action for damages on account of injury done to certain proporty, the decree of this court merely declares that tho defendant is responsible for certain damages, it does not amount to a judgment for the amount of those damages in favor of the plaintiff, who has neither alleged, nor proved that he was the owner of the injured property. In such case the defendant is entitled to allege, and to introduce any portinent evidence to prove the nature, and limitations of the plaintiff’s rights in the injured property; and in no event can he be held for a greater proportion of the damages than the nature and extent of the plaintiff’s rights in the property would eauitably entitle him to claim.</p>

<p>Before a mortgage created by an alleged agent can bo enforced,, it must be proved' that the alleged agent was specially authorized to make the mortgage.</p> <p>A wile, although separate in property, can not be held on her mortgage note, when the holder oí the note fails to show that she was authorized by the judge to make the mortgage, and fails to show that her pretended agent, who made the mortgage was empowered by her to do it, and also fails to show that the consideration oí the note inured to her separate benefit.</p>

<p>APPEAL from Seventeenth Judicial District Court, parish of Natchitoches. Pierson, J.</p>

<p>Thi Legislature may constitutionally confer on tiro officers of a municipal corporation the right to take judicial cognizance of cases arising under the police regulations and laws of the corporation.</p> <p>An act of the Legislature authorizing a municipal corporation to sue for and recover, before its mayor, a fine for the breach of one of its police regulations, does not authorize the arrest and criminal prosecution of one who commits such a breach.</p>

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

<p>A planter who lias agreed to consign, and pay commissions on his entire crop to his factors, in consideration of certain promises and stipulations in his favor made by .the factors, is released from his obligation to consign and pay such commission on whatever balance of his crop he may have on hand, when the factors shall fail and refuse to comply with their stipulations; more particularly when the failure of the factors to perform their part of the contract, disables the planter from performing his part of it.</p> <p>Before the maker of a lost, or mislaid negotiable note, which was transferred before its maturity, can be made to pay it, he is entitled to be indemnified against its subsequent appearance.</p>

<p>The parish court in which a succession has been opened, and which has thus ' aeauired control of the property of the succession, has jurisdiction of a suit brought by the heirs of the succession to enjoin and prohibit the nominal administrator of the succession from acting as such, and from executing a certain judgment obtained by him, as administrator, in the district court.</p> <p>The object of such a suit is not to enjoin the judgment of the district court, but merely to prevent an alleged unauthorized person from executing it. In a suit like this the dissolution of the injunction might work irreparable injury to the plaintiffs, and other heirs and creditors of the succession, and hence, if properly issued, should not be dissolved on the bond of the defendant; more especially, when the amount of that bond is too small to protect the property of the succession from spoliation and waste.</p> <p>Where it appears that the petition for an appeal from a decree of court rendered in chambers ivas filed in open court, on the same day, and immediately after the decree yras rendered, and in the presence of the counsel of plaintiff and defendant, it will be held that the appellee was sufficiently cited.</p>

<p>When a certain fact put at issue by the pleadings is peculiarly within the knowledge of the defendant, such for instance as the consideration of a transfer made by him, the burden of proof is on him to show that fact.</p> <p>A fixed price is as essential to the validity of a giving in payment, as it is to a sale.</p> <p>A (lotion enpaiement made by an insolvent debtor to one ol Ms creditors is fraudulent, and may be set aside.</p> <p>The return of a writ of fieri facias against a party, unsatisfied, is evidence of his insolvency.</p> <p>Every fraudulent act of a debtor, no matter what its form, may be attacked by any creditor who has been prejudiced by it.</p>

<p>Wliera the police jury of a parish join in an appeal from a judgment making peremptory a mandamus against the treasurer of the parish on account of alleged services rendered, and expenses incurred in behalf of the parish, no affidavit of interest is required of the police jury. The interest is patent on the face of the record.</p> <p>It is the duty of the treasurer of the parish to register and he may be mandamused to register the claims of the sheriff for all expenses incurred by him on account of the ai'rest, confinement, and maintenance of persons accused of crime, and for all expenses whatever attending criminal proceedings, when the amount of such claims shall have been certified to as correct by the clerk of the court and the presiding judge thereof, and presented to the treasurer for registry within sixty days thereafter. But the treasurer is not bound to register claims for services, or expenses not rendered, or incurred in criminal proceedings, not even if certified to as correct by the clerk and presiding j udge.</p> <p>The sheriff of a parish can not be compelled to accept a certain sum, or sums of money in lieu of his fees of office, unless ho has voluntarily contracted with the police jury to do so.</p> <p>Neither the registry by the treasurer of an account against the parish, nor its indorsement by him under the statute, amounts to the issuance of scrip, or negotiable obligations of the parish.</p> <p>The fact that no money is in the parish treasury when a proper claim for registry is presented to the treasurer is no reason why the claim should not be registered.</p>

<p>A iinal judgment against an intervenor in a sequestration suit, who claims the ownership of the property sequestered, has the force of res adjudícala as to those questions only that were passed on by the j udgment; and hence those questions can not be subsequently raised by the intervenor when pursued as a surety on the bond given to release the property from the sequestration. A judgment has-not the force of res adjudicata as to those who were not parties to it.</p> <p>The refusal of the lower court to continue a ease, on the ground that a material witness was absent, who had been properly summoned, and for whom an attachment was then out, will not lead this court to set aside the judgment, when it appears that the attachment for the absent witness issued six months before the trial of the case.</p> <p>The sureties on a bond given to release property sequestered, have a right, when sued on i be bond, to prove that the sequestration was invalid, and illegal; and a refusal u> allow them to introduce proof of this illegality, will be such an errólas to justify the setting aside of the judgment below.</p> <p>Sureties on the release bond have the right to prove that the property sequestered does not belong to the defendant in the sequestration suit.</p> <p>Sureties on the release bond have the right to show that the plaintiff in the sequestration suit had no lien on the property sequestered, in a ease where they have-alleged fraud and collusion to their prejudice between the plaintiff and defendant in the sequestration suit.</p> <p>Consent judgments are not binding on third persons, and therefore any third person sought to be affected by such a judgment, has a right to show its character.</p> <p>A surety on a release bond who alleges a privilege on the property sequestered superior to the lien of the plaintiff in the sequestration, has a right to prove the alleged privilege.</p> <p>The sureties on a release bond can not be held for more than the value of the property released from sequestration.</p> <p>Where a part of the sequestered property has been released by a decree of court, the value of the balance of the property must be proved' by i he plaintiff in sequestration, before the liability of the sureties.on the release bend can be Used.</p>

<p>One who purchases a claim which he knows to be in suit, and legally contested, is entitled to recover on it only what he paid tor it, with legal interest from the date of its transfer to him.</p>

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

<p>The emancipation of a minor qualifies him to become a surety on an appeal bond. The parish court has jurisdiction to emancipate a minor, even when the minor is the owner of property worth more than $500.</p> <p>It is not necessary that the sheriff should call on the principal on an appeal bond to point out property, in order to hold the surety on the bond, when it appears from the sheriffs return that the principal, after diligent search and inquiry, could not be found.</p> <p>When it appears that the principals on an appeal bond own no property, and that the creditor has taken every reasonable step to exact payment from them, the liability of the surety on the bond will become fixed.</p> <p>The surety on an appeal bond is liable for the full amount of whatever judgment the Supreme Court may render, without regard to the amount of the judgment appealed from.</p>

<p>When a bill oí exception to a ruling of the judge in a criminal trial contains a statement oí facts in opposition to his own recollection, and his notes of evidence, he is justified in refusing to sign the bill, and to hear any evidence to contradict his own recollection and notos.</p> <p>Whether the judge below has, or has not improperly refused to sign a bill of exception, is a question which can only bo inquired into, when brought before this court in a mandamus proceeding.</p> <p>A prisoner has no right, under the law, to a service on him of a list of the talesmen summoned.</p> <p>The confession of a prisoner, if received in evidence, must be received as a whole; but it is for the jury to determine whether the whole of it, or any part of it is entitled to credit; and if so, how much credit.</p> <p>To offset his declarations to one person, offered in evidence by the State, the accused has no right to introduce in evidence other declarations of his, made to other persons, unless they were made at the same time, as those offered by tho State.</p> <p>While this court will review, and consider the evidence taken on a motion for a new trial in a criminal ease if brought hero by bills of exception, or by affidavits appended to the motion, yet it ean.not be said that the lower court erred, when such evidence was orally produced, in refusing to have it reduced to writing.</p> <p>The charge of the lower court and the facts urged as grounds for a now trial can be brought before this court in no other way than by bills of exception.</p> <p>In tho interest of justice, this court will sometimes .grant a new trial in a criminal case, when no precedent for it exists.</p>

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

<p>The declaration made by a wife and her husband in a written contract that a certain plantation was her property, is not invalidated by the fact that she was a married woman.</p> <p>Contracts made by a married woman personally, or by her authorized agent, ior supplies and overseer’s wages for the benefit of her separate plantation are, if recorded, binding on the crops grown on the plantation that year.</p> <p>One who has formed a valid contract can not claim a release from its obligations, on account of an error of judgment, or ignorance of the law regulating the rights and obligations of married women, in this State, when it appears that he had another motive for making the contract, besides the error of law, and no fraud, or bad faith is shown on either side.</p>

<p>In a contest between a j udgment creditor and a garnishee, the fact that there is no-note of evidence, assignment of error, or agreed statement of facts, will not justify a dismissal of the appeal, when the record contains the answers of the garnishee to the intex-x-ogatories served on him, the allegation of the creditor himself of the existence of the writ of fieri facias, and other matters of proof, which though not specifically noted as evidence, yet taken together afford sufficient basis for an intelligent judgment.</p> <p>Docxxments annexed to, and incorporated with the answers filed by a'garnishee are thereby properly in evidence, as part of his answers.</p> <p>Answers of a garnishee are a part of the pleadings, and are before the court withoxxt the necessity of being formally offered in evidence.</p> <p>Where a garnishee sets up in his answers, that the judgment debtor’s one third interest in the property seized in the garnishee’s hands was sold and transfex-x-ed to a third person before interrogatories were served on him, a subsequent judgment annulling the sale of the seized property as simulated, and fraudulent, will not render the garnishee liable for the whole amount of the judgment creditor’s debt, but only for the value of the debtor’s interest in the seized property.</p>

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

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

<p>It is not necessary that an examination of the accused before a committing magistrate should be had, preliminary to the finding of an indictment, or the filing of an information against him.</p> <p>Under the constitution of Louisiana the prosecution of all offenses, except capital offenses, may be initiated on information filed by the public prosecutor, with leave of the court. This information need not be supported by affidavits.</p> <p>The amendment of the constitution of the United States requiring the intervention of a grand jury, relates only to crimes cognizable by the United States courts, and to criminal proceedings in those courts.</p> <p>The law authorizing the judges of certain district courts in the parish of Orleans to appoint commissioners to select competent men to serve as jurors, does not violate any clause of .the constitution limiting the courts to the exercise of purely j udieial functions.</p> <p>Where it is charged in an information that a certain instrument, created by special statute with specific and distinctive features, has been uttered, and falsely published as true, it must be shown, in order to maintain the charge, that the identical instrument thus created, has been thus uttered and published. It does not maintain the charge to prove that another instrument has been uttered and falsely published, no matter how close its resemblance to the instrument created by tho statute and described in the information.</p> <p>Before the utterance or publication as true of a certain false and altered instrument can constitute a crime, it must be made to appear that if genuine, it would be evidence of the fact it recites; and that it does, or may tend to prejudice the rights of another.</p> <p>Under the act regulating elections in this State, enacted in November, 1872, the “ consolidated statement of votes made by a supervisor of registration,” is not evidence of the result of any election.</p> <p>Quaire. — Whether the consolidated statement, or returns of a supervisor of registration might not be receivable in evidence in an election contest as secondary, or even as the best evidence, in the absence or loss of the returns of the commissioners of election ?</p> <p>Where it appears that the utterance and publication as true of a false and altered instrument, can only tend to anybody’s prejudice if so uttered and published by the accused in a certain official capacity, the failure to charge in the information that the offense was committed by the accused in that official capacity, will render the information fatally defective.</p> <p>Whether a certain instrument is, or is not a public record, is a question of law for the court to determine.</p> <p>The criminal statutes of this State make it a crime to alter a record; they also make it a crime to falsely publish as true, an altered record, but there is no such crime known to the law of Louisiana as “ uttering and publishing” as true, an altered, false and counterfeited instrument.</p>

<p>APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Semple, judge ad hoc.</p>

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

<p>REPLICATION for writs of mandamus and prohibition.</p>

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

<p>Inhere an agent, clothed with power to accept bills, has accepted a bill in the name o£ his principal, the latter can not escape liability as acceptor, on the ground that he had no interest in the transaction in which the bill was given, and that he had received no consideration, unless he proves that his agent, to the knowledge of the holder of the bill, has abused his power.</p>

<p>The allegation of a plaintiff in a suit to recover property, (alleged to be unlawfully in the defendant’s possession) that he had bought the property, but had never paid for it, and hence that it still belonged to the vendor, is not a disclaimer of title, which can be pleaded by defendant in estoppel, in a subsequent suit to recover the property, brought by the legal representative of the plaintiffs.</p> <p>A defendhnt can not dispute the title of the person under whom he holds.</p> <p>Not only good faith, and possession of real estate for ten years is required, but also a legal and transferable title of ownership is required in order to acquire said property by prescription.</p> <p>The ownership acquired in virtue of a confiscation sale, under the net oí Congress of 1862 amounted to a mere usufruct. It was and could bo only imperfect, and was to terminate with the life of him against whose interests and property the confiscation proceedings were directed. There is wanting therefore in the title of one who purchased the property at a confiscation sale the quality of ownership necessary to enable him to prescribe.</p> <p>The fact that the price paid by a purchaser of property at a confiscation sale was used to pay off a pre-existing mortgage on the property, does not entitle such purchaser to demand that he shall be refunded the price, when, atthe expiration of his usufruct, the owners of the property call on him to restore it to them. Nor can he demand that he shall be re-imbursed what he has expended for repairs, and taxes on the property.</p>

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

<p>^PPLICATION for a writ of prohibition.</p>

<p>The objection of an accused that the property he was ■convicted of stealing was imperfectly, and incompletely described in the indictment, should be taken on a-motion to auash the indictment, before the jury is sworn. It is too late to urge-such an objection, being one apparent on the faeoof tho indictment, on a motion in arrest of judgment. /</p> <p>Evidence of an offense different and distinct from that charged in the indictment is only admissible in evidence, where it tends to show the intent with which tho act charged was done. Thus where the charge is stealing a certain hog, evidence-that the accused altered the mark of the hog is admissible.</p> <p>One who takes property, or, after having had it in possession for a time releases it. and subsequently retakes it, under a mistaken but honest belief that it was his property, is not guilty of larceny.</p> <p>When abill of exceptions is so expressed as to leavo in doubt what the lower.judge actually charged the jury on some important point, the accused will have tho benefit of the doubt, and the ease will be remanded.</p> <p>Declarations of an accused in his own behalf are only admissible when they are a part of the res gestee.</p> <p>To constitute a part of the res gestee it is not necessary that declarations should be precisely concurrent with the act charged to have been committed; it is only necessary that they spring from it, and are made under circumstances that preclude the idea of design. Thus where one is charged with stealing a certain thing, his declarations that it was his property, made before the alleged stealing, are admissible in evidence.</p>

<p>No legal grand jury for the parish of Orleans nor petit jury for the Superior Criminal Court of said parish could be drawn after April 2, 1878, except from a panel of jurors drawn in accordance with the act of the Legislature passed the said second of April, providing for the drawing of grand and petit jurors.</p>

<p>The transcript of an appeal from an order of seizure and sale need not contain any of the proceedings on the injunction taken out to arrest the seizure and sale, since such proceedings could not be considered by this court on such an appeal.</p> <p>The hold'er of a duly paraphed mortgage note, on which certain credits are indorsed, is entitled to proceed by executory process for the balance of the note, against the mortgaged property, and the purchaser of the property, whose assumption of the payment of the note appears by a notarial act of mortgage containing the pact de non alienando. If such purchaser has gone into bankruptcy, and is represented by an assignee, the certificate of a register in bankruptcy is sufficient evidence of the assignee’s appointment and acceptance.</p>

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

<p>Corporations can not be sued in any other but the courts oí their domicile lor damages arising out of their passive breaches oí contract, It is only ior damages caused by an.active breach of contract that they can be sued away from their domicile, and in the parish where the damage has been done.</p>

<p>Wliou throo individuals, not partners, or otherwise associated in business, whose rights are several, and distinct, unite in one petition and claim that by some alleged wrong oí the defendant, they will be jointly damaged to the extent of only one thousand dollars, this court will not have jurisdiction, since the interest of each plaintiff is less than five hundred dollars.</p>

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

<p>A judgment can have no effect on the rights oí those not parties to it, and who had no notice oí the legal proceedings which led up to tlio judgment. Thus a mortgage creditor may proceed in a district court against the mortgaged'property, without regard to tlio fact that the property had been sold under a judgment, to which ho was not a party,. rondorod by a parish court, in a suit brought after the institution oí the proceedings in the district court.</p> <p>A mortgagee who transfers part of the mortgage debt to another, can not compete with his transferee ior the proceeds oí the mortgaged property, where the amount is not sufficient to satisfy both',</p> <p>Where a suit involving conflicting lions and mortgages on certain property is instituted in one court, and all persons in interest are made parties to the suit, the subsequent institution oí another1 suit, in a different court, by two of the parties is a fraud on justice, and will not divest the formor court of jurisdietion to determine all the issues between the partios, in respect of the mortgaged property, without regard to any changes in the title or possession oí the property.</p>

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

<p>APPEAL from the Eifth Judicial District Court, parish of East Feliciana. Iiilbourne, J., in place of McVea, J., recused.</p>

<p>When no statement of facts, showing what evidence was introduced on the trial of the case below, is submitted to this court, it will be presumed that the judge a quo proceeded on proper evidence.</p> <p>The fact that in the bond given for the release of one charged with crime there is no mention of the offense with which he is accused, nor of any affidavit, information or indictment pending against him, will not release the surety on the bond.</p> <p>The sureties on a bond which was given for, and procured the release of a prisoner charged with a criminal offense can not gainsay its regularity, or the regularity of the proceeding inwhiehitwas allowed.</p>

<p>Where a non-resident commereial firm make an agreement with two resident Arms, in virtue of which agreement one of the resident firms is to purchase certain merchandise, and ship it in the name of the other, and the other residont firm, with the money of the non-resident firm, is to pay for the merchandise, and each of the resident firms agree to receive, instead of fixed sums in payment of their services, certain proportions of the profits to arise from the suhseciuent sales of the merchandise, and also agree to share in any losses resulting from said sales,</p> <p>Ifeld: That such an agreement will not make the said firms commercial partners, even as to third persons, when it appears that they did not intend to form a partnership, and that they have not held themselves out to the world as partners.</p>

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

<p>In tlio absence o£ evidence as to the amount in dispute in a suit on appeal before this court, it will not be inferred that a sufficient sum is involved to give this court jurisdiction merely from the fact that there were two judgments of the district court enjoined. This court will not assume jurisdiction on an infe'rence.</p> <p>The dissolution of an injunction issued to restrain an order of seizure and sale, (in a case whore no allegation is made of defect or nullity in the judgment ordering the seizure and sale) loaves nothing more to be decided in the injunction suit, and hence, the court may properly order it to be stricken from the docket.</p>

<p>The Legislature is empowered to form a contract, to pay an 'annual rent for buildings necessary for the use of the State; and its power to buy a State-House is equally unquestionable, if the debt thereby created does not exceed the constitutional limitation.</p> <p>A Legislative act, which, after appropriating a certain sum for a certain legal purpose, payable in annual installments, provides that " out of all State taxes collected, one half of one mill on every dollar shall be set apart of the general funds as afund to meet" said sum, does not violate the third amendment of the State constitution, devoting the revenues of each year, (exeeptsurplus revenues) to tho expenses of that year. The off >ct of such an act is merely to diminish the general-fund tax by the amount it levies for the purpose contemplated in the statute.</p>

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

<p>The power of this court to issue writs of habeas corpus being confined to eases when we may have appellate jurisdiction, although no appeal be actually pending, it follows that we can not issue such a writ in a case where no fine has been imposed, and the solo proceeding in which the writ is asked, is a sentence of the lower court condemning the petitioner to imprisonment for contempt.</p> <p>A sentence of the lower court sending a party to prison for some act of contempt committed during the trial of a case, is no part of the case, and hence the amount in dispute in the case has no bearing oil the question of the jurisdiction of this court as to the sentence of the lower court in the matter of the contempt. Nor can an allegation that the imprisonment of the petitioner will damage him to an amount abovo the appealable sum, give this court jurisdiction.</p>

<p>A PBEAL from the Fifth J udiciai District Court, parish of East Ee-ix liciana. Brame, special judge.</p>

<p>If the last of the ten days allowed a defendant for answering falls upon a dies non, the whole of the next day is given to him to file his answer; and any judgment of default taken against him before the expiration of that day, is premature.</p>

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

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

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

<p>The plaintiff is entitled to a suspensive appeal from a judgment dissolving an injunction with damages, on giving a bond for a sum exceeding by one half the amount of the judgment for damages.</p> <p>The surety on an injunction bond who has, in the decree dissolving the injunction, been condemned in damages in solido with his principal, can not be surety on the bond of the appeal from the decree.</p>

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

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

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

<p>When it appears that neithei’ creditors, nor other parties in interest have been cited to oppose a tablean of debts filed by an executor, and that there are no funds to distribute, and no funds had been collected or disbursed, the homologation of such a tableau is not binding on the creditors, or heirs, and they can not be called in by more publication to establish or oppose it.</p> <p>A succession can not be bound by a tableau filed by the attorney at law of the executrix, who is absent from the State, and when it appears that the attorney was not specially authorized to file the tableau, and that the executrix was ignorant of whai was put down on it.</p> <p>It is only a creditor who has obtained a legal acknowledgment of, or a judgment recognizing his debt, that is entitled to provoke a sale of succession property to pay his debt.</p>

<p>The act ot tlie Legislature, passed at the extra session of 1877, abolishing the office of Park Commissioners of the New Orleans Park, and transferring' all of their powers and duties to the Common Council of New Orleans, did not have the oil’oetoi extinguishing by confusion any judgment which said commissioners had obtained against the said eitv, or of relieving the Common Council from providing for its payment, in the manner pointed out by law.</p> <p>A judgment creditor of tho city of New Orleans who has registered his judgment in accordance with law. is entitled to a mandamus to compel the auditing and disbursing officers of the city respectively to warrant for and pay the same, or so much thoroof as there may be a special fund in tho city treasury to pay such judgment; and no misapplication of such fund by any, or all of tho officers of the corporation, can hinder or defeat the rights of tho creditors entitled to be paid out of such fund.</p>

<p>Defendants, (having- been sued in a corporate capacity), after appearing in their corporate name, and filing an exception, and an answer, and plea in reeonvention, are estopped from disputing their corporate capacity.</p> <p>Ministers of the Methodist Church are entitled to recover for their services, as ministers, whatever salary their congregations may have contracted to pay them.</p> <p>The mechanic who builds a church for a certain congregation, is entitled to the mechanic’s lien on the church, and the ground, belonging to the congregation, on which the church is situatod, to secure the payment of what is due him for his work.</p>

<p>APPEAL from tbe Fifth Judicial District Court, pai'ish of East Baton Rouge. MaFea, J.</p>

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

<p>A PPEAL from the Fifth Judicial District Court, parish of East Felifi. eiana. Wedge, judge act hoc. Trial by jury.</p>

<p>"Whore an hoir who opposes the account filed by his' former tutor, admits that he had received a certain sum of money from his tutor, but alleges that it was derived from a source different from the one set forth by the tutor, he must prove his allegation, or otherwise his admission will dispense the tutor from any other proof.</p> <p>A judgment can not allow interest that the plaintiff has not claimed.</p> <p>The legal mortgage of minors on the property of their tutors, is good, as against the tutors, their heirs, or partners in community, without being registered.</p> <p>A tutor can not bo held for more than he collected of a certain debt due the minor, • when it is not shown that the debt was worth more than he collected.</p>

<p>Where the language of a guaranty addressed to a factor is, “ I am willing to go his security for the amount of twenty-five hundred dollars,” it is not what is termed a continuing guaranty. It only embraces the first S2500 of money advanced, or goods furnished to the person in whose favor the guaranty is given. The factor thus guaranteed is legally bound to apply to the guaranteed debt, and for the discharge of the guarantor, the first payments received by him from the person in whose favor the guaranty was given.</p>

<p>On the trial of motions to dissolve injunctions not issued against money judgments, damages are not to be allowed. The defendants in such injunctions are left to their recourse on the bonds.</p> <p>A reeonventional demand for damages can not bo separately tried, and the judgment rendered on such a demand can not be separately appealed from. It must be tried and appealed with the main suit.</p>

<p>Whore there is an administration of a succession, the estate does not legally pass-to a tutor, until the administrator renders his final account.</p> <p>When the same person is at the same time administrator, and also tutor of a part pf the heirs, his possession of the estate must bo held to be as administrator. The bond of an administrator inures to the benefit of the heirs, as well as of the-creditors o£ the deceased.</p>

<p>APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, special judge.</p>

<p>Tbe parish court hás exclusive jurisdiction oi suits to annul wills and sot aside the probates of the, same.</p> <p>The nullity of proceedings for the probate of a will, and of the orders in execution of it must bo sued for in the court which decreed the probate, and made the orders.</p> <p>If different causes of action bo alleged in a suit brought in a probate court, of some of which causes the court has jurisdiction, and of some, not, it should take cognizance of the former causes and reject the latter.</p> <p>Where a court has once acquired jurisdiction of a suit, that jurisdiction will be maintained. It can not bo impaired by a claim in reeonvontion, or intervention, of which the court has not original jurisdiction.</p> <p>A demand In intervention must be before the court, in which the main action lies, and must follow that jurisdiction when it is really incidental and collateral .to the main suit.</p> <p>'One whose title to lands (worth over 8500) depends on the validity of a certain will, may intervene in a suit brought in the parish court to annul the will, in order to set up, and vindicate his title, and the intervenor’s title being thus put at issue, the plaintiff may contest it to show that the former had no right to interyene. But no inquiry into the validity or enforcement of mortgage claims on such lands, set up by the plaintiffs, will bo allowed.</p> <p>A parish court which is without jurisdiction of a suit brought before it, has no authority to issue an order to transfer the suit to the district court. It has only power to dismiss the suit.</p>

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

<p>IVIiero a defendant who is enjoined from collecting the fees of an office, bonds out of tho injunction, the surety on the release bond will be bound for the whole amount of tho judgment rendered in favor of the plaintiff on account of said foes, unless there be an agreement between tho plaintiff and tho suroty lessening tho surety’s liability.</p>

<p>A married woman will not bo bound by her mortgage note executed by her authorized agent, when it appears that sho was not authorized by the judge o£ her domicile to empowor the agent to execute such a note, unless the holder of the note shows affirmatively that the consideration of the note inured to her separate benefit.</p> <p>The agent of a widow, acting sololy in virtue of a mandate executed by her while she was a marriod woman, can not bind her to any greater extent, as a widow, than he could havo bound her as a marriod woman.</p> <p>To maintain a proceeding via executiva against tho property of a marriod woman, in virtue of a mortgage executed by her agent, either the act of the judge authorizing her to so empower the agent, or her ratification of tho agent’s act after she became a widow, or the fact that the debt inured to her separate benefit, must appear in evidence in tho form of an authentic act, or of a judgment of some competent court.</p> <p>The court can not, of its own motion, change the form of a proceeding from an executory, to an ordinary one. Such a change can not be made without the assont of the seizing creditor.</p> <p>The executory proceeding may be arrested by injunction, and if, on being required, the defendant prove any of tho facts set forth in article 742 of the Codo of Practice, the order of seizure and sale will be revoked, and the plaintiff condemned, to pay costs.</p>

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