Volume 31 — Louisiana Reports

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

<p>If it appears that the speeial mortgage given by the tutor in favor of the minor in order to release the general legal mortgage on the tutor’s property was based on an homologated account of the tutor that was false and fraudulent on its face, the giving of the special mortgage, and the release of the general mortgage in the minor’s favor, although sanctioned by advice of a family meeting and a decree of court, will be held null and void, not only as against the tutor’s succession, but also as against any creditor of his cognizant of the fraudulent character of the homologated account.</p> <p>The legislation of 1869 requiring all mortgages to be recorded in the same book did not require mortgages already legally registered to be re-recorded.</p> <p>The vendor of land may acquire a legal mortgage on the land by virtue of recorded judgments against his vendee.</p> <p>If the widow, or any one of the minors, possess in his or her own right $1000, nothing can be allowed under the homestead law.</p> <p>The failure of the Recorder of Mortgages to register with the private contract formed by a furnisher of supplies with the planter, the proof of its execution, will not impair the privilege acquired by the record of the contract.</p> <p>Pees due physicians for professional services during the last illness can not be. ranked as privilege claims unless duly recorded.</p>

<p>A recorder of mortgages can not deprive a mortgagee of his rights under a recorded mortgage by omitting it from the index, or by indexing it improperly, 1 or by omitting it from his certificate.</p> <p>Where a widow makes two mortgages in favor of different parties, and is described in each as the widow of a person with the same given name, and whose family name is only spelled differently in the two mortgages by the transposition of two letters, the identity of the mortgagor is sufficiently indicated in each.</p>

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

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

<p>A suspensive appeal will not lie from an order of the District Court of the State transferring a suit from another District Court of the State.</p>

<p>The final decree of this court recognizing a mortgage which had been fraudulently canceled will not prevent the mortgage from perempting as to third persons, if it has not been re-inscribed within ten years after its record.</p>

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

<p>A widow, wlio by aseries of acts extending through years has tacitly accepted the community, can not afterward renounce it.</p> <p>The probate court before which a succession has been opened, and is being administered, has jurisdiction, at the instance of a mortgage creditor of the succession, . to order the sale of the mortgaged property, and the sale of such property, under an order of seizure and sale issued by the probate court, is not a nullity. The order must stand as a binding decree of court until reversed by an action of nullity, or on appeal.</p> <p>Innocent third persons who purchase property at a public sale held under the decree of a court of competent jurisdiction, can not be affected by any irregularities in the decree subsequently ascertained.</p> <p>A suit for the enforcement of a mortgage debt is not a real action.</p>

<p>Where a bank certifies as good a cheek on it to the order of a certain payee, and the check is subsequently altered by the drawer so as to make it payable to ■ bearer, and thus altered is paid by the bank to some unknown party before the original payee is advised of the certification, and before any third person has acquired an interest in the check, the bank can not be held for any loss to others caused by paying the cheek, because of an agreement between those others and the drawer, to which the bank was not privy.</p>

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

<p>The. city oí New Orleans has no authority to impose wharfage and levee dues on vessels moored at a point within her corporate limits, at which she has constructed no work and expended no money for the use or convenience of vessels.</p>

<p>A lessor may consistently demand in one action the dissolution of the lease, and rent up to the moment the defendant surrenders possession of the leased property.</p> <p>Where a lessee contracts to pay five per cent attorney’s fee on the amount of the rent for the whole term of the lease, in ease it becomes necessary for the lessor to sue, and the lessor subsequently sues for and obtains a decree dissolving the lease, the lessee can be held for only five per cent attorney’s fee on the rent which had accrued at the time the dissolution of the lease took effect.</p> <p>A lessor may in one action sue his lessee on two separate leases of two pieces of property, and may provisionally seize any effects on the two premises subject to his privilege.</p> <p>The failure of a lessee to pay the rent agreed on at the time stipulated in the lease, authorizes the lessor to demand a dissolution of the lease.</p> <p>.Before a lessee can recover damages for any disturbance of his possession or enjoyment of the leased property by a third person, he must give personal, formal notice to the lessor of the disturbance, and call the latter in warranty. ■</p> <p>Mere failure to pay an installment of rent the day it is exigible will not warrant a provisional seizure when it appears that the accrued rent was tendered a day or two after it was due, and before the writ of provisional seizure-issued.</p> <p>Nor a wrongful provisional seizure of his effects, a lessee may recover only such damages as he shall prove he has suffered in consequence of the seizure.</p>

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

<p>The revocatory action can not be maintained by a creditor who not only fails to allege fraud, but who avers that his debtor parted from his property in error.</p> <p>A party can not divest the averments of his petition of their force as judicial admissions by discontinuing the suit in which the petition was filed.</p> <p>A creditor who has obtained possession of property of an insolvent debtor held in pledge by another creditor, by paying the debt due the latter, can not afterward sue to recover the money paid by him without offering to restore the pledged property.</p> <p>The matters of defense that must be specially pleaded are those set up in avoidance, or extinguishment of an obligation admitted, or proved to have once existed.</p> <p>Under the plea of the general issue, the defendant may prove any fact or circumstance which tends to show the non-existence, or falsity of the facts alleged by the plaintiff.</p> <p>A voluntary party to an executed contract who has reaped and retains the profits of it, is estopped from assailing it as fraudulent.</p>

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

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

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

<p>"Where the parties to a suit in order to avoid further litigation agree to submit the adjustment of their differences to arbitrators, and the agreement to submit is couched in such terms as makes the extent of the arbitrators’ jurisdiction a matter of doubt, the agreement will be construed by the light of the pleadings in the suit which was discontinued by the agreement, and all questions put at issue by those pleadings will fall within the powers of the arbitrators to decide.</p> <p>”JThe party in whose favor arbitrators have rendered their award may sue the debtor for the recovery of the award, or may exact from him the penalty stipulated for the non-performance of the award, but he can not demand both the award and the penalty, unless the penalty has been stipulated for mere delay.</p>

<p>A judgment rendered by a court o£ competent jurisdiction against a defendant who was legally cited, and the sheriff’s sale duly made in execution of that judgment, can only be attacked in a direct action to annul, brought in the court that rendered the judgment. Neither the judgment nor the sale can be assailed collaterally.</p> <p>The adjustment of conflicting mortgage claims falls within the jurisdiction of the court from which the process issued under which the sale of the mortgage property was made.</p> <p>One who claims the proceeds of a judicial sale, thereby makes a judicial admission that the sale was valid. He is therefore estopped from attacking the sale as a nullity, unless he proves that his admission was made through error of fact.</p> <p>One who judicially asserts a fact as the basis of a right touching the matter in controversy, can not afterward change his position, and assert the contrary.</p> <p>The rights and claims of concurrent mortgagees, where a valid sale of the mortgage property has been made, is restricted to the pro rata distribution of the proceeds.</p>

<p>An injunction will not issue to restrain the doing of a thing which has already been done, which is an accomplished fact.</p> <p>On the application for an injunction no mandate can issue to enforce rightselaimed by the plaintiff which he does not ask shall be enforced.</p>

<p>A maa and a woman, in contemplation of marriage, may enter into a valid marriage contract by which it is stipulated that certain separate property of the man and of the woman shall enter into, and form a part of the community to arise between them as husband and wife. And the property embraced in the contract shall constitute a portion of said community.</p> <p>A written marriage contract, expressed in unambiguous terms, can not be varied by what was said before, at the time of, or after its completion.</p>

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

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

<p>Whore an injunction, restraining the execution of an order of seizure and sale on the ground that the debt was not exigible, is dissolved, and the plaintiff in injunction takes a suspensive appeal from the judgment of dissolution, the lower court will be prohibited from 'ordering the execution of the seizure and sale (because of the subsequent maturing of the debt) until this court has passed on the question of the prematurity of the suit involved in the appeal.</p>

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

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

<p>^PPEAL from the Parish Court of Jefferson. Hyman, J.</p>

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

<p>REPEAL from the Parish Court of Rapides. Clements, J.</p>

<p>APPEAL from the Fifth Judicial District Court, parish of Iberville.. McVea, J.</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>In order to make the pledge of a certificate of the stock of a corporation valid as to third persons it is not necessary to give notice of the pledge to the company.</p> <p>Where knowledge of a fact by a corporation is necessary, the corporation is held'to know concerning that fact whatever its president and other chief officers know.</p> <p>A corporation is liable for the damages caused by the wrongful canceling of a certificate of its stock by its president and secretary.</p>

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

<p>A duly certified copy of an original record, made hy the legal custodian of the original, is admissible in evidence.</p> <p>Under the authority of the Board of School Directors of a parish, the treasurer of the board may make a valid sale of the warrants of the State which represent that portion of the interest on the free school fund due to said parish.</p> <p>Where the plaintiff in a suit formally avers that the defendant had collected certain warrants, the property of plaintiff, and prays the defendant’s condemnation for the amount of the warrants, he thereby estops himself from subsequently suing another person as the collector of the warrants.</p>

<p>Judgments rendered by this court while holding one of its country terms only become final on the expiration of three judicial days from their rendition.</p> <p>The last judicial day on which an application for a rehearing may be made does not expire at'GK o’clock, a. m. merely because this eojirt adjourned sine die at that hour on that day. The application is in time if filed at any time during that day.</p>

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

<p>When it appears that an executrix who had exercised the functions of her office under the exceptional circumstances, and at the actual theatre of a civil war, performed her duties with discretion and honesty, she can not be held responsible in law for losses that were inevitable as a result of war.</p>

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

<p>It is the duty of an administrator to set forth in his final account and tableau of distribution a detailed bill of the clerk’s costs.</p> <p>The costs of holding a family meeting to appoint a tutor are not chargeable to the succession, if the minors have means of their own, but to the minors.</p> <p>The administrator is not entitled to his commissions on the proceeds of property-sold under executory process of an ordinary court, and which did not come into his hands for administration.</p> <p>An objection that the claims of the physician and nurse in the last illness were not recorded, and therefore can not be ranked as privileged debts, can not be raised for the first time in this court. It must have been pleaded in the lower court.</p> <p>The administrator is not liable for any losses to the succession caused by any illegal acts of the sheriff in the sale of succession property under the executory process of an ordinary court.</p>

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

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

<p>An information which charges that the accused stole " one mule valued at seventy dollars, the property of John M. DeKee,” sufficiently describes the stolen property.</p> <p>The granting of a continuance in a criminal case is within the sound discretion of the court.</p>

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

<p>The parish court is without jurisdiction of an action of revondication brought to recover property worth over $500, and which was sold by the administrator of a succession no longer in existence.</p> <p>A parish court has no jurisdiction of a suit brought to annul a judgment of a district court.</p>

<p>A lessor may obtain the writ of provisional seizure, on making the proper affidavit for rents not yet due and exigible.</p> <p>On trial of the motion to set aside a writ of provisional seizure, evidence is admissible to showthat the affidavit on which the writ issued is false. And when such evidence is introduced the plaintiff must support his affidavit by proof.</p> <p>The facts giving rise to that “ reasonable apprehension ” in a lessor that justifies him in issuing a writ of provisional seizure, need not be convincing enough to support a conviction on a criminal charge. It is sufficient that they are of such a character as to rebut the presumption of malice, or wantonness in suing out the writ.</p> <p>Seizing the movables of a lessee of a plantation under a provisional seizure before the end of the year for which the place was leased, will not prevent the lessor from recovering rent for the whole year, when it appears that the possession of the land by the lessee was not divested by the seizure.</p>

<p>A sheriff can not legally authorize a constable elected in and for another parish to . execute, within the parish of which he is sheriff, an attachment issued for an absent witness in a criminal case, and a return made by such a constable that the witness " could not be found,” is not sufficient. A return in such a case must be specific, and describe what inquiry and search for the witness had been made.</p> <p>When a prisoner has, in proper time, ordered subpajnas to issue, he can not be compelled to apply for attachments, swear to the facts he intends to prove by his witnesses, or go to trial without them, until an earnest and vain effort has been made to bring them into court.</p> <p>Where a reasonable doubt exists as to whether an accused, charged with a capital offense, has had sufficient assistance given to him to enable him to produce his witnesáes, he must be given the benefit of the doubt.</p>

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

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

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

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

<p>The creditor o£ a vendor can not maintain a revocatory action to rescind the sale on the ground that the sale was in fraud of the vendor’s creditors, unless he shows that the vendee was a party to the fraud. The fact that the price of the sale was below the actual value of the property does not authorize a conclusive presumption that either the vendor or vendee was actuated by a fraudulent intent.</p>

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

<p>' Where the lower judge rejects the evidence of a witness on the ground that she was, on her own uncontradicted testimony, the wife of the accused, he decides a question of fact, and h'is decision can not be reviewed by this court. If the woman were not really the wife of the accused, that fact should have been set forth in affidavits on an application for a new trial.</p>

<p>Where a party indicted ior murder is convicted, of manslaughter, and the conviction is set aside as an absolute nullity by this court, he can not be subsequently indicted and tried for the same offense, unless the indictment is found within a year from the time the crime is charged to have been committed. A criminal prosecution which has been declared a nullity does not interrupt prescription.</p>

<p>j^PPEAL from the Parish Court of East Baton Rouge. Sherburne, J.</p>

<p>An insolvent debtor who has under the bankrupt law made a composition with his creditors, may. in the absence of contrary stipulations, authorize an agent to sue for and collect his assets.</p> <p>The purchaser oí a dishonored bill, who buys it from one who is not the owner, and who is not authorized to sell, acquires no title as against thfe real owner.</p>

<p>The special mortgage executed by a tutor in favor of minors, in order to relieve his property from the general legal mortgage in their favor, does not import a confession of judgment for any specific amount, and hence does not authorize executory proceedings.</p> <p>A third possessor evicted by a mortgage creditor can claim for his expenses and improvements only to the extent of the increased value of the property resulting from the improvements. If his expenses, incurred in making the improvements, are less in amount than the increased value arising from the improvements, he can recover only the sum of those expenses, and is liable for the fruits and revenues of the property from the moment he is notified of the order of seizure.</p>

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

<p>In the absence of the Judge of one of the District Courts of the parish of Orleans, another district judge of that parish may grant an appeal from a judgment rendered by the absent judge.</p> <p>A motion to dismiss an appeal taken after the lapse of three days from the filing of the record in this court is too late.</p> <p>This court will, notwithstanding the acquiescence of the appellant in the judgment he has appealed from, proceed with the case, on the demand of the appellee, and change, or confirm the judgment for the latter’s benefit.</p> <p>The possession of shares in the stock of a corporation for three years, in good faith, and under a title translative of property; or their possession for ten years without good faith, or title, acquires the ownership of the shares by prescription.</p>

<p>An appellant who is unable to furnish an appeal bond will be allowed, in place of the bond, to deposit with the clerk of court granting the appeal the amount of the bond fixed by the court.</p> <p>One who buys a negotiable note after its maturity takes it subject to all of the defenses that could be pleadod against his assignor.</p> <p>Where a factor takes the promissory note of his debtor for money due, and for advances to be made, and thereafter indorses and discounts the note and credits its maker with the proceeds, he does not, by subsequently taking up the note and debiting its maker with the price of taking it up, thereby extinguish the note, either by payment or by novation. He remains the owner of the note, capable of transferring a valid title to it.</p> <p>Where a debtor executes his promissory notes to his factor in order to cover advances due and to become due, the fact that the aggregate sum of the notes is something larger than the sum then exigible, will not impair the valid consideration of the notes, or convert them from principal into merely accessory debts.</p>

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

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

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

<p>"Where an accused under one verdict of condemnation, is twice sentenced by the court to two punishments, to be inflicted at different places, and of different duration, the last sentence is null and void.</p>

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

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

<p>The lettex- of one was has signed a receipt, written on the same paper with the receipt, and with special reference to it, is admissible in evidence to explain the receipt.</p> <p>Parol evidence offered by a defendant in explanation of an alteration in a receipt signed by him, which is responsive to the averments of his answer, and relevant to the explanation, is admissible.</p>

<p>ÁEPEAL from the Ninth Judicial District Oourt, parish of Grant. Kelly, judge ad hoc.</p>

<p>Where the accused is charged with feloniously breaking into a store “with intent to steal” evidence is admissible to show that certain articles were actually stolen from the store at the time it was broken into and entered.</p> <p>Whether a witness for the defence in a criminal trial who has already testified of the matter may be re-introduced in order to contradict evidence in rebuttal introduced by the State, is a matter left to the discretion of the court.</p> <p>The allegation that “ the information is defective as not being in conformity to the common-law principles established by section 976 of our Revised Statutes,” is too vague to support a motion in arrest of judgment.</p> <p>A motion in arrest of judgment in a conviction for burglary, on the ground that certain language was not used in the charging part of the information, will not be sustained, when it appears that the charge in the information would not have been increased in perspicuity by the employment of the language.</p> <p>In an information which charges burglary committed during a certain night, it is not necessary to specify the hour of the night.</p> <p>The prosecution of all except capital offences may be made on information.</p>

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

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

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

<p>The failure to appoint an attorney of absent heirs with whom to conduct contradictorily an application for the administratorship of the succession, will not affect the validity of the appointment of administrator.</p> <p>The failure of an administrator to obtain an order of court for the sale of succession property contradictorily with an attorney of absent heirs, will not render the sale null and void. The purchaser at such a sale is not affected by such irregularities.</p> <p>In the absence of a newspaper published at the. place where the probate court is sitting, posting an application for letters of administration is sufficient.</p> <p>The acceptance of an insolvent surety on the bond of an administrator will not affect the validity of his appointment, or of his acts as administrator.</p> <p>The mere omission of the name of the succession in the body of the oath taken by one qualifying as the administrator of the succession, in the course of the mortuary proceedings, will not affect his qualification as administrator.</p> <p>Where an order of sale of succession property is applied for it is sufficient to cite tho administrator. It is not necessary to obtain the order contradictorily with an attorney of absent heirs.</p> <p>The clerk of the probate court has power to render an order of sale of succession property.</p> <p>Where the sale of succession property is attacked on the ground of a fraudulent collusion between the administrator and the creditor who provoked the sale, parol evidence is admissible ro show that the property sold for what it was worth.</p> <p>The question as to what was sold at a public sale by the sheriff is determined by the adjudication, not by the sheriff’s deed.</p>

<p>A married woman who has no family dependent on her individually for support,, and whose husband is ingood health, attends to his ordinary avocation, and' owns more land than the law exempts from seizure, can not claim the benefit of' the homestead act of 1805.</p>

<p>The district court is without jurisdiction of a suit by an administratrix to compel a creditor of the succession, who has had certain succession property sold under executory process, to pay over the proceeds of the property for distribution between herself and her minor children. The object of such a suit is to settle a succession, which the parish court alone has authority to do.</p> <p>Partial payments inscribed on a promissory note, and signed by the deceased maker (whose signature is provable by parol testimony) are admissible in evidence to prove interruption of prescription.</p> <p>As to the vendee, the vendor’s lien is not lost for failure to record it within six days of the sale.</p> <p>If more than ten years have elapsed from the record of a mortgage it may yet be re-inseribod, and from the date of such re-inscription it will have effect as a mortgage.</p>

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

<p>APPEAL from the Ninth Judicial District Court, parish of Grant. Blackman, J. Trial by jury.</p>

<p>Where the sureties on a five-thousand-dollar bond are jointly sued for an amount aggregating two thousand dollars, this court will have jurisdiction, although the demand against each surety is less than S500.</p> <p>Where the plaintiff who sues the sureties on an official bond alleges the hopeless insolvency of the principal, the sureties will not deprive themselves of the right of discussion, to which they are ontitled under the law, by pleading an exception that admits the truth of the averment of insolvency.</p>

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

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

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

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

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

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

<p>j^PPEAL from the Parish Court of East Feliciana. Brame, J.</p>

<p>In a suit to revive a j udgment the defendant can not set up any grounds of defense which would not, if true, have rendered the j udgment absolutely null and void.</p> <p>Where an exception filed by the defendant was treated by the court, the plaintiff and himself as an answer, and on that assumption the ease was tried, and judgment rendered, he can not afterward, in a suit to revive the judgment, complain that no default against him was onter-ed.</p> <p>Where a suit instituted in the court of one parish and there prosecuted to a judgment, is removed by an act of the Legislature to the court of another parish, which is invested by the act with full jurisdiction of the case, the latter court has jurisdiction of the suit to revive the judgment in said suit.</p> <p>One who has a judgment against several persons jointly, or in solido, has a right to sue for the revival of the judgment against one only of his judgment debtors.</p> <p>In a suit to revive a judgment in solido against several persons, service of citation on one of the debtors will interrupt prescription of the judgment as to all.</p>

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

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

<p>If the petition of appeal contains no prayer for a citation, and the record fails to show that a citation was ordered, issued, or served, the appeal must be dismissed.</p>

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

<p>APPEAL from the Fifth District Court, parish of Orleans. Bogers, J. Sambola & Bucros and Chas. E. SchmicU for Mrs. Lesseps, defendant and appellant.</p>

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

<p>The owner of a restaurant and liquor saloon on board of a vessel plying on navigable waters between this and an adjoining State, and touching at intermediate places in the course of her voyage, can not be compelled by the local authorities of any of those places to pay a license tax for selling spirits, when it appears that he sold liquors only on board the vessel.</p>

<p>In a suit to revive a judgment there are but two necessary and proper parties, viz., the judgment creditor or his legal representative and the judgment debtor or his legal representative. Third persons who hold property affected by the legal mortgage resulting from the inscription of the judgment sought to be revived, are not necessary or proper parties to the suit to revive.</p> <p>In a suit to revive a judgment against a debtor who has made a surrender in bankruptcy, under the bankrupt law of the United States, the assignee of the bankrupt is not a necessary party, and can not therefore be compelled to appear as a defendant in the suit.</p> <p>A suit to revive a final judgment which was rendered by the Third District Court for the parish of Orleans in March, 1867, can not be brought in the Fourth District Court of that parish. The transfer of the suit in which the original judgment was rendered, first to the Seventh, and afterward to the Fourth District Court of said parish, under the acts of the Legislature in 1868 and 1872, did not give to either of those courts jurisdiction of the suit to revive.</p>

<p>A debtor may validly convey his immovable property to his creditor, in the form of a sale, in order to secure the creditor, when the value of the property is not in excess of the debt due, reserving to himself the right to redeem within a certain period. The continued possession of the property by the debtor in such a case, does not make the transaction a fraudulent simulation, or necessarily void. In such a transaction the conveyance, although in the form of a sale, does not vest the ownership of the property in the creditor, but may give him a right to be paid by priority out of its proceeds.</p>

<p>On the trial of a rule to dissolve a sequestration the allegation of the sequestrator, in his affidavit, that the goods sequestered belonged to the succession of which he was curator, will be assumed as true, although it may be without foundation in fact.</p> <p>Property purchased with the identical money stolen by the purchaser from a succession belongs to the succession, and may be sequestered in the hands and recovered from the possession of the purchaser by the curator of the succession.</p>

<p>APPEAL from the Fifth Judicial District Court, parish of West Baton Rouge. Mb Vea, J.</p>

<p>Where the plaintiff in a sequestration suit has been nonsuited, the surety on the sequestration bond, when sued by the defendant for damages, has a right to introduce evidence to show that the property sequestered did not belong to the defendant.</p>

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

<p>The sale of a deceased husband’s property under executory process will be held invalid when it appears that the appraiser, by whose appraisement the property was sold, was appointed by the widow, and that she was not the agent of her deceased husband, or the legal representative of his succession.</p> <p>A purchaser in bad faith is not entitled to have the purchase price tendered to him before the institution of a suit for the recovery of the purchased property.</p> <p>The recital of an order of court in a sheriff’s return is not a sufficient proof of the order.</p> <p>The employment of an attorney to defend a suit does not authorize him to receive from the sheriff the proceeds of the defendant’s property sold under judgment in that suit.</p> <p>A purchaser in bad faith is liable for the fruits and revenues of the property while in his possession.</p> <p>The mere fact that a widow appoints an appraiser, in the sale of community property sold under executory process, will not make the sale a valid one as to her half of the property, when it appears that she acted for her husband, of whose death she was ignorant.</p>

<p>The house and grounds situated in the outskirts of an unincorporated town, which belong to a debtor who resides on the premises, and who has a wife and children dependent on him for support, andwhose wife has less than S500 worth of property, are exempt from seizure under the provisions of the homestead law.</p>

<p>The insertion of a clause in a bond for the release of sequestered property to tho effect “ that the sureties shall satisfy such judgment as may be rendered in the pending ease,” is not authorized by law, and therefore is not binding on the sureties.</p> <p>Where the sequestered property of a defendant has been released on bond, and it appears that whatever part of such property afterwards sold, or destroyed by use was replaced by the defendant by other property of greater value which was subsequently subjected by the sequestering creditor to the satisfaction of his judgment, tho sureties on the defendant’s release bond can not be held liable for any balance of the plaintiff’s judgment that may remain unsatisfied.</p>

<p>A continuance can not be demanded in a criminal ease on the ground that the court was not properly organized because the acting sheriff had been elected to and was serving in another office, when it appears that the successor oí the acting sheriff qualified the day the motion ior the continuance was made, and acted as sheriff on the trial of the case.</p> <p>Where one of two men indicted for murder is acquitted, and the other convicted, the one convicted can not obtain a new trial on the allegation that he could prove by his co-defendant that the deceased threatened to kill him, and actually attempted to carry the threat into execution, when it iippears by the terms of his own allegations that the attempts of the deceased to carry the threats into execution were not made until after the accused had inflicted the mortal wound.</p>

<p>It need not appear in the record of a criminal ease that the grand jury who found the indictment were sworn. Until the contrary be affirmatively shown, it will be presumed that the grand jury were properly organized.</p> <p>Objections to the manner of organizing a grand jury can not be made after a plea, and trial. They should be made before pleading.</p> <p>The verdict in a murder case will not be disturbed on the ground that the judge refused to charge that if the jury believed that when the accused did the killing he was insane from the use of intoxicating liauors or other poisons sold and administered to him by the deceased. Drunkenness does not excuse crime.</p>

<p>The duty imposed by section 146 of the Revised Statutes of 1870 oil goods sold at public outcry by licensed auctioneers, and which duty is to be paidbythe vendors of the goods, is not a tax on property, and hence does not fall within the prohibition of the constitutional amendment of 1874 limiting taxation to 11% mills. Nor is such a duty in violation of article 118 of the constitution requiring taxation to be equal and uniform, etc.</p> <p>Section 146 of the Revised Statutes of 1870 has not been repealed by any subsequent general laws on the subject of taxation.</p>

<p>"Where the record in a murder case fails to show that the prisoner was present at anytime during the trial, or fails to show that any plea was filed by, or in behalf of the defendant, the verdict in the ease will be set aside and the judgment annulled.</p> <p>An amendment of the minutes of the criminal court in any particular case, in order to show that the defendant was actually in court during the trial, may be made even after the record of appeal has been lodged in this court, provided the amendment is made contradictorily with the defendant. It can not be made ex parte, with no notice to the defendant.</p> <p>'The clerk of the court need only take the oath of jury commissioner once during his term of office. He need not take it at every drawing of a jury.</p> <p>The testimony of tho cl«rk of the court is not admissible to show that he was absent from the drawing of a venire, when theproees verdal of the drawing, signed by himself, recites his presence.</p> <p>.After the judge has annulled and set-aside, in one ease, a whole venire drawn for that term, he oan not aftorward during that term, in another ease, hold such a venire to be good.</p>

<p>A confession of judgment made by a mother, in her capacity as tutrix of her minor child, is not binding on the minor or his property.</p> <p>A written agreement between the undivided owners of certain real estate to make 'a partition of the same by dividing it in certain described lots does not become an actual partition and vest any separate part of the property in any one of them until the formation of the lots in accordanoo with the agreement.</p> <p>A partition of property being an alienation by each of the co-proprietors, it follows that one agent or legal representative can not represent five or six co-proprietors in the agreement fixing the terms of the partition.</p>

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

<p>A PPEAL from the Seventh Judicial District Court, parish of Pointe L.L Coupée. Toist, J.</p>

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

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

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

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

<p>„ , One who opposes every item of an administrator’s account can not be said to ratify a certain adjudication of property the proceeds of which are sought to be distributed by the account.</p> <p>Property of a succession sold for cash in order to pay the debts of the succession must, at its first offering, bring its full appraised value. If thus sold for less than its appraised value, the sale will be invalid.</p> <p>Where property subject to a certain mortgage is .passed by a simulated transfer to a nominal buyer, who formally recognizes the mortgage in the transfer, the widow and administratrix of the owner, who joined her husband in the simulated transfer, can not afterward have the property sold as a part of her husband’s succession to the prejudice of the mortgage creditor. Such an adjudication is absolutely null and may be attacked collaterally.</p> <p>Private counter-letters have no effect as against creditors.</p>

<p>The correction of the minutes of court, so as to shew the prisoner’s presence at a trial, which had been declared null at his instance, and on his assignment as error the failure to mention his presence in the minutes, can have no effect upon the second trial. The final decree of this court, setting aside the verdict, and annulling the judgment thereon on the ground of his presence not appearing on the minutes, is conclusive as to the irregularity of that trial.</p> <p>When a judgment, l'endered upon a conviction, has been vacated because the minutes did not shew the defendant’s presence when the verdict was rendered, such verdict and judgment can not bo pleaded in defence on a subsequent trial, and do not sustain the plea of autrefois convict.</p> <p>A nolle prosequi, and the eonsequentdischarge of the prisoner, is not a bar to a subsequent indictment for the same offence; and where there are two counts, a nol. pros, of the first does not bar a prosecution on the second. So where, on an indictment for murder, the prisoner is convicted of manslaughter and a new trial is obtained, a nol. pros, maybe entered as to the charge of murder, and a new indictment be preferred for manslaughter.</p> <p>When, upon an indictment for murder, there is a conviction of manslaughter only, the verdict is in legal intendment an acquittal of murder, and is a bar to the further prosecution of the greater offence.</p> <p>When, upon an indictment for murder containing a single count, there has been a conviction of manslaughter, and the judgment thereon has been annulled on appeal for irregularities in the trial, the prisoner maybe subjected to another trial on the same indictment for manslaughter only, and the announcement of the prosecuting attorney, that a nol. pros, is entered as to the charge of murder with reservation of the right to proceed for manslaughter, means only that the jury cannot consider again the charge of murder, of which the prisoner has been by legal.inferenee acquitted, but only that for manslaughter as included in the charge of the major crime.</p>

<p>Tho Auditor o£ tho State has no power to extend the time fixed by law tor the settlement of State tax collectors, who are defaulters from the mi ment they fail to make their settlements at the time fixed by law.</p> <p>No legal action taken by the Attorney General against a State tax collector, a month after the latter had become a defaulter for not paying funds of the State into the treasury, can make the collector a forced custodian of the funds.</p> <p>A tax collector in default.for not paying over State funds collected by him, and the sureties on his bond, are liable for the full amount of those funds subsequently lost through a robbery of the collector, when the evidence shows that the robbery could have been avoided by the exercise of ordinary care and diligence on his part.</p>

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

<p>A PPEAL from the Pifth Judicial District Court, parish of Iberville. MoVea, J. Trial by jury.</p>

<p>A waiver of protest by the indorsers of a promissory note includes a waiver of demand.</p>

<p>This court can not .entertain a demand for relief made by intervenors who have not appealed from the judgment rendered against them by the lower court.</p> <p>Where a factor claiming a right of pledge on certain property sues out an injunction to prevent a j udgment creditor, who has seized tho property, from selling it, and tho two creditors enter into an agreement that the factor shall take and sell the property, and after paying out of its proceeds certain expenses hold the balance subject to the decision of the court on tho claims of the parties, tho judgment creditor can not complain because the lower court did not in its decision pass on the right of tho factor to issue tho injunction, and the claim for damages for the illegal issuance thereof.</p> <p>Where the planter or farmer pledges his growing crop to his factor under the act of 1874, and the contract of pledge is duly recorded the factor will have a right of pledge and privilege on tho crop superior to tho lion acauired by seizure under ajft. fa. of an ordinary judgment creditor. The factor’s pledge covers not only the money and goods advanced by him, and proved to have been actually used in making the crop, but also all advances of money and necessary supplies that may be required by the planter, unless it bo shown that the factor knowingly advanced money or supplies for othor purposes than making the crop.</p> <p>Payment by the factor of the wages due the laborers on the plantation, and obtaining a subrogation to their rights, docs not exclude the factor from claiming the sum thus paid as an advance embraced by tho recorded contract of pledge between him and the planter.</p> <p>Money advanced by a factor to pay for the necessary mechanical labor to put the sugar-house and machinery in the condition to produce sugar is covered by the factor’s lien under the statute of 1874.</p>

<p>The constitutional provision granting to ths Legislature the power to exempt from taxation property actually used for church, school, or charitable purposes is an enumeration, and excludes from exemption all property not enumerated.</p> <p>A law which commutes the taxes on property not actually used for church, school, or charitable purposes, by authorizing the payment of a small stated sum in place of taxes is as much a violation of the constitution as if it wholly exempted the property from taxation.</p>

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

<p>An appeal will lie from a judgment on an intervention on. third opposition claiming less'than the appealable amount, when the demand of the plaintiff is for an appealable amount.</p> <p>The funeral expenses of a debtor, or of his wife and children, operate as a privilege on the real estate of the community, when thero is no other source from which those expenses can be paid, and this privilege ranks any mortgage on such real estate.</p> <p>When a mortgage creditor proceeds in a court of ordinary jurisdiction to enforce his mortgage on property owned by the community which had existed between the debtor and his deceased wife, a creditor with a privilege on the mortgaged property on account of the funeral expenses of the deceased wife is entitled to come in and claim his lien on the proceeds of the property, and a representative of the succession of the wife is not a necessary party to the proceeding.</p>

<p>Where a testator bequeaths all his property to his legatee, but qualifies the disposition by adding that the property is “ to be used, enjoyed, and occupied,” during the natural life of the legatee, nothing is devised but the usufruct of the property.</p> <p>.estamentary disposition which gives the usufruct of certain movables and immovables to one person who is charged with their preservation and the full property of the same, after the usufruct’s death, to another person, and in case of the latter’s death gives the property to still another person, is a valid disposition. It does not involve a prohibited substitution.</p>

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

<p>A flnal judgment rendered by this court is not amenable to an action of nullity, instituted more than one year after the date of the jndgment, on the ground of error of fact and of law. Such a judgment has the force of res adjudicata as to the parties to it.</p>

<p>It is not necessary to record a judgment-of separation of property obtained by a wife against her husband. If otherwise in accordance with law it is valid without being recorded.</p> <p>Where no decree for money is involved in the judgment of separation of property obtained by a wifo, the issuance of afi. fa. under such a judgment is not practicable, and therefore not necessary to perfect the judgment. And when there is no property of the husband transferred to her for the payment of her judgment, no notarial act is necessary or proper, in order to complete the judgment.</p> <p>Where a party in one suit avers the validity of a judgment of separation of property procured by a wife, in order to obtain a judgment against her, he. is thereby estopped from afterward contesting the validity of the separation in order to execute the judgment thus obtained.</p> <p>Creditors of a wife have no right to attack, on the ground of simulation, a conveyance made by the husband to a third person.</p>

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

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

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

<p>Thera is no law requiring that three days should intervene between, a verdict in a criminal ease and the judgmeiit pronounced thereon.</p>

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

<p>A party may be charged iii separate counts, in one information, of larceny and burglary. Such an information is not vicious on the score of duplicity.</p> <p>Neither the fact that two offens -s are not embraoid or denounced in the same statute, nor that they have no necessary connection or similarity, will prevent them from being charged, on separate counts, in a single information.</p> <p>The pleadings and modo of procedure of criminal prosecutions in England obtain in Louisiana, in virtue of a special statute to that effect.</p>

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

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

<p>Tho writ oí injunction will issue on the ex parte application of the complainant, only in its prohibitory or remedial form; as in cases where the only purpose to be accomplished is to restrain, or prohibit something from being done. But in i s mandatory form, when it commands the doing of something, it can not be issued until a hearing on the merits; or when, a prohibitory writ having issued, restraining a party from obstructing the exercise of a right, the obstruction may b ■, commanded to be removed because its continuance effects the very injury ho was prohibited from effecting.</p>

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

<p>^PPEAL from the Second District court of Orleans, Tissoi, J.</p>

<p>Where an appeal is takon by motion neither petition nor citation is necessary.</p> <p>The district courts ol the parish of Orleans have but one term, -which extends from the first Monday in November to the fourth day of July; and an appeal maybe taken by motion in open court, at any time during that term, on a judgment signed during the term.</p> <p>The judgment making absolute a rule taken by a purchaser of- property at sheriff sale, to have certain mortgages and privileges on the property erased, is a definitive judgment, and must be signed by the judge.</p> <p>Where one of the parties to the suit takes a rule ou the other, raising certain issues, and the other party takes a counter rule, involving the same issues, and the rules are tried and decided together on the same day, and treatedby parties, attorneys, and the court as if consolidated, and an appeal is taken from the judgment of the court making the counter rule absolute, the appeal will not be dismissed on the ground that the judgment on the original rule not having been appealed from within a year, had aeauired the force of res adjudicatei.</p> <p>Tax liens, or privileges on certain property, which were not recorded at the time a third person aeauired rights to, or upon the prop )rty, can not be enforced to his prejudice, when it appears that such liens arose from a tax imposed before such third person aeauired his interest.</p>

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

<p>REPEAL from the Eifth District Court, parish of Orleans. Rogers,</p>

<p>A corporation can not be held to knowledge of the ownership of eighty shares of its stock by any transferee of a certificate of that stock merely because he, through an agent, voted at an election, at which 12,475 shares voted in the affirmative, and 68 only in the negative.</p> <p>Where certain stock of a corporation, standing on its hooks in the name of a judgment debtor, is seized and sold by the sheriff as the debtor’s property, and a judicial tribunal, of competent jurisdiction, of last resort, after a fair contest, in good faith, by the corporation, orders the stock to be transferred to the purchaser under such seizure and sale, the corporation can not be liable to the holder of the certificated the stock, who took no steps to protect himself.</p>

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

<p>A cigar manufacturer in the city of New Orleans, although engaged in selling articles of his own manufacture, is liable for the license tax imposed by the city.</p>

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

<p>’Where the evidence appearing in a transcript is so confused and contradictory that the labor of an expert is necessary to educe the facts requisite to the administration of justice, the case will bo remanded, in order that the parties be ' referred to an expert before the case is taken under advisement by the court.</p>

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

<p>Where the legality and constitutionality of a tax is in contestation, this court has jurisdiction, no matter how small the amount in dispute may be.</p> <p>All transient persons selling goods in this State whether by wholesale or retail, on land or water, are liable to a license tax of $100 per annum.</p> <p>The law imposing a license tax on transient persons doing business within the State, does not violate that provision of the constitution of the United States vesting in Congress the exclusive power to regulate commerce among the several States, etc.</p>

<p>Whero the ownership of property is claimed on the ground of continuous, peaceable possession as owner for thirty years, on the part of the claimant and his authors, the claimant is entitled to introduce in proof of his title, a declaration made by his vendor in an act of sale to him of contiguous property, to tho effect that he (the vendor) had been in peaceable possession of the property presently in question, and that he transferred to the claimant the rights which he, or his preceding vendors had in the property in question.</p> <p>■Such claimant is also entitled to introduce parol proof to show that both he and his vendors and authors had possessed during the time, and under the conditions required for tho prescription of thirty years.</p>

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

<p>The title of the law enacted, by the Legislature of 1878 (Sess. Acts, p. 152), authorizing the city of New Orleans to regulate private markets, etc., sufficiently expresses the object of the law.</p> <p>A municipal corporation, under legislative permission, can forbid the opening of markets, except at designated places, and such forbidding is an exercise of its power to regulate markets.</p> <p>'There is no unconstitutional discrimination in forbidding markets within certain prescribed limits, and imposing a license on all who keep markets outside of those limits.</p> <p>Where the legality and constitutionality of a fine and penalty, imposed by a city ordinance, is in contestation, this court has jurisdiction irrespective of the amount in dispute.</p>

<p>All rules or proceedings to traverse, or disprove the answers of a garnishee, either under a writ of attachment, or fieri facias, are prescribed after twenty judicial days from the filing of the garnishee’s answers.</p>

<p>The grant of a right of way to a railway company, made by an owner of land by public act, in which act he sets forth the probable increased value of his land, on account of the building of the railroad, as one of the causes of the grant, is not a gratuitous donation. It is a transfer based on a valid consideration, and can not be revoked by any ex parte act on the part of the grantor for any of the causes which warrant the revocation of a gratuitous donation.</p> <p>The grant of a right of way for as many tracks as the business of the grantee, a railroad company, may require is not necessarily exhausted by the laying of one track. Such á grant includes the right to lay as many tracks as the evidence shall show that the business of the company require.</p> <p>The acceptance of a grant of the right of way by the grantee need not be evidenced by an authentic act. Actually using the right in part, for a number of years is admissible in proof, and is conclusive evidence, of its acceptance, as to the entire extent of the grant.</p> <p>Prescription must be specially pleaded, or it will not be considered.</p>

<p>Where a surviving father joins in the petition of the universal legatee of his deeeased daughter, praying that the universal legatee be recognized as the owner of all her estate, and be put into possession of the same, he thereby effectively renounces his right of action to have his daughter’s legacy reduced to the disposable portion of her estate. Such action on the father’s part amounts to a ratification of the donation made by his daughter to his prejudice, and he is thereafter estopped from contesting the validity of the donation.</p>

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

<p>Even after an appeal in a criminal case has been taken, the State may by a manclamus compel the lower judge to so amend and correct omissions in the minutes of the court, as to make them evidence facts admitted, or proven to have transpired during the course of the trial; as for example, to show that the defendant was present at his trial, and conviction.</p>

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

<p>Where the intention of the testator, as to the auantity of interest devised to different legatees, can be ascertained with reasonable certainty by the terms made use of by the testator in his will, those terms will be relied on for determining what the intention was. But if those terms leave the testator’s intention doubtful, extrinsic evidence may be admitted to explain and interpret the intention. And in case of any remaining doubt as to the Quantum of interest disposed of, that interpretation -will be adopted which approximates closest to the order of distribution fixed by law.</p>

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

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

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

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

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

<p>An order of appeal on motion in open court which Axes the return day on a day this court is not in session is not ground for dismissing the appeal. Such an order, although made in compliance with the motion of appellant’s attorney, is the act of the court, and lienee the error of it is not imputable to the appellant.</p> <p>A charge by a factor “ for advancing” money, over and above oight per cent per annum interest, can not, under the general issue, bo recovered.</p> <p>Where cotton, which had been transferred by a planter in a neighboring State, under the form of conveyance of the common law chattel-mortgage, to secure a certain creditor, is afterwards shipped by a common carrier for the account of the creditor, the delivery of the cotton to the carrier, is a transfer of the legal title to the creditor, who thereby becomes in effect the consignor, and whose rights of ownership of the cotton can not be affected by an attachment levied by any other creditor of the shipper.</p> <p>The action of a consignee in accepting or refusing a consignment can not affect the consignor’s title to the goods consigned.</p> <p>Where two lots of goods are consigned by one single bill of lading, for account of two different persons, the consignee can not accept the consignment as to one lot, and refuse it as to the other. If he accepts as to one, he thereby accepts as to both.</p>

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

<p>A verdict ot conviction for larceny will be set aside when it appears that the information on which the defendant was tried, and convicted, only chai’god that he “attempted” to commit a larceny. Such a sentence is not responsivo to, or justified by the charge, and the defendant’s objections to it maybe made after the trial and conviction.</p>

<p>Act No. 70 of the extra session of the Legislature of 1870, which incorporates the Louisiana Savings Bank and Safe Deposit Company, and which exempts the company from taxation except on real estate, does not exempt it from the payment of the license tax imposed by the city of New Orleans on all persons engaged in a similar business.</p> <p>Where the Legislature has imposed a license tax upon those who pursue a certain calling, or business, it cannot in the absence of any valuable consideration, exempt any particular person, or persons pursuing that calling, or business, from the payment of the license. Such an exemption is unconstitutional.</p>

<p>ÍPPEAL fromthe Thirteenth Judicial District Court, parish of Tensas. Hough, J.</p>

<p>A resident of the city of New Orleans engaged in an occupation which subjects him to a license tax imposed by the city, has no right to an injunction to restrain the city from collecting the license, and enforcing the penalties prescribed for its non-payment. On the other hand the city may enjoin him from carrying on his business until his license is paid, and such an injunction, sued out by the city, cannot be dissolved on bond.</p>

<p>There is no law governing the amount of license tax the city of New Orleans may impose on persons pursuing any particular business. It is a question of expediency, of which the city authorities are the sole judges.</p> <p>The license of $2500 a year imposed by the city of New Ox-leans on persons who carry on the business of a coffee-house, or drinking saloon, with theatrical performances attached, is not unconstitutional, and the city cannot be enjoined from enforcing its payment.</p>

<p>.An agent employed by the tutor of a minor to manage a plantation of the minor, and employ laborers for its cultivation, is not authorized to form a planting partnership with one of such laborers.</p> <p>Where no valid contract has been made by the tutor for supplies furnished for the cultivation of the minor’s plantation, the' minor is liable for only so much of the supplies as are proved to have inured to his benefit.</p>

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

<p>APPEAL from th e Eleventh Judicial District Court, parish of Lincoln. Graham, J.</p>

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

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

<p>^PPEAL from the Parish Court of East Baton Bouge. Newton, J.</p>

<p>^PPEAL from the Parish Court of Catahoula.</p>

<p>A valid judgment of separation of property in favor of a wife is retroactive, and takes effect from the day the wife filed her demand for a separation,</p> <p>A judgment of separation of property, which has been duly advertised, may be partly valid, and partly invalid; valid as to that part which decrees a dissolution of the community, and authorizes tho wife to resume the administration of her paraphernal effects, and invalid as to that part which decrees an indebtedness of the husband to her.</p> <p>In order to maintain a suit for separation of property, it is not essential that the husband should be indebted to the wife, or that she should own any property ' in her own right. A judgment of separation noed only decree a dissolution of the community, and tho wife’s resumption of the administration of her own effects, and the issuance of an execution is not necessary to the perfection of such a judgment.</p> <p>The title to real estate, (which stands recorded as tho property of the husband and a former partnor of his) acauirod by tho wife (who is separated in property.) at a sheriff’s sale, is null and void as to creditors of the husband and partner, who seized it before the sheriff’s deed to tho wife was recorded.</p> <p>A sale of property by one who is not the owner, conveys no title whatever to the purchaser.</p> <p>A simulated sale of property is absolutely null and void, and any judgment creditor of the owner may seize and sell the property in the hands of the pretended purchaser.</p>

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

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

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

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

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

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

<p>^PPEAL from the Tenth Judicial District Court. Boarmav, J.</p>

<p>Where an account, acknowledged by the administrator in a writing without date, is declared on in an opposition as an acknowledged account, and annexed as part oí the opposition, and offered in evidence without objection on the part oí the administrator, he cannot, after having illed an answer to the opposition without denying his signature to the acknowledgment of the account, set up that his signature was not proved by the opposer.</p> <p>Where the acknowledgment- of a succession debt by the administrator has no date, but it appears from the face of the record that it urns made subsequent to an affidavit to the debt, which has a date, and that the debt would not be barred by prescription even if the acknowledgment had boon made at the date of the affidavit, tho plea of prescription will not prevail against it.</p> <p>Where a debt against a succession, duly sworn to, is offered in evidence without objection by the administrator, it will be held to be prima facie proven.</p> <p>'Th e prima facie proof of an account, carries with it that of an item of credit on the account, without which the aecount would be prescribed.</p> <p>A payment on an account is imputable to the oldest items on the account.</p> <p>Where a payment on an account is made at a certain date, and judicial demnnd follows nearly two yoars thereafter, all the items on tho account prescriptible in one year, will be barred.</p> <p>Where the debt of tho deceased as a surety has boon placed by his administrator on the latter’s tableau, the succession will be liable for the debt, unless some fact is affirmatively shown that would discharge or release it.</p> <p>Where a surety who is called on to pay the debt of the principal compromises and settles the debt for asum much less than the amount of tho debt, (as for example -where ho pays tho debt in depreciated warrants) he is entitled to claim from the principal only the actual amount paid by him. And it will be assumed that he paid only what was shown to be the market value of the warrants used in settling the debt, unless he proves the contrary^</p>

<p>Where the police jury of a parish, in obedience to a judgment of court in favor of a certain party, levy a tax to satisfy the judgment, the party will not be entitled to a mandamus to compel tbe jury to levy another tax to satisfy the judgment, because the partial collections from the first tax were insufficient, until he shall have proceeded against the tax collector to compel him to collect the whole of the assessment and levy of the first tax.</p> <p>The execution of a judgment of this court directing the police jury of a parish to levy a certain tax, cannot be affected by a subsequent act of the legislature, limiting the power of police juries to impose taxes.</p>

<p>The President of the Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College can not be compelled to warrant on any fund to pay a debt of either of the two former corporations, known respectively as “the Louisiana State University” and “the Agricultural and Mechanical College.”</p> <p>A mere stated account between the Superintendent of the Louisiana State University and Agricultural and Mechanical College, and one of the Professors employed in that institution, signed by the Superintendent, is not such conclusive proof of the amount due the Professor as would enable the latter to mandamus the President of the Board of Supervisors of the institution to warrant for the amount, even if the President was authorized to draw such a warrant.</p>

<p>The homologation of an account of an administrator by the clerk of the court is not a judgment in the sense of article 1053 of the Code of Practice, and hence is not required to be revived. A debt embraced in such an homologated account is not therefore barred by the prescription of ten years.</p> <p>Placing a debt on his account by an administrator, and asking for authority to pay it, is an acknowledgment of its correctness, and prescription ceases thenceforth to run on it, while he is in office.</p> <p>Any creditor of a succession, whose claim has not been prescribed, may demand an account from the administrator.</p>

<p>The surety on the bail bond oí one who is accused oí a felony, and who is in prison awaiting sentence on a conviction ol another crime, may effectively surrender the accused by a formal declaration to that effect to the sheriff, and have his bond validly canceled by the sheriff, without the necessity of going through the-idle show of the sheriff leading the prisoner out of his cell, and the bail thereupon leading him back into it, and there formally delivering him to the sheriff..</p>

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

<p>A PPEAL from the Parish Court of Iberia. Allison, J.</p>

<p>PPEAL from tbe Parish Court, parish of Iberia. Allison, J.</p>

<p>'The parish court has jurisdiction to issue an order of seizure and sale, where the amount involved is $500, exclusive of interest.</p> <p>"Where executory proceedings are taken in the parish court, all conflicting claims of privilege or mortgage on the property ordered to be sold, no matter how large the claims, must be brought in the parish court for classification and adjustment.</p> <p>'This court has not jurisdiction of an appeal from the judgment of a parish eourt, where the amount involved is $500, exclusive of interest.</p>

<p>The amount of the bond to be given by a testamentary executor, when demanded by a creditor of the succession, is fixed by law at one fourth above the amount of the debt claimed. Neither the clerk, nor the judge has any authority to fix the amount.</p> <p>If the security demanded by the creditor is not given by the executor within thirty days after service of the order of the court reauiring it, the office of executor is, ipso facto, vacated, and the judge is reauired to appoint a dative testamentary executor. In such a case no suit for the removal of the executor is necessary.</p>

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

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

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

<p>^PPEAL from the Parish Court of Bossier. Fort, J.</p>

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

<p>The interdiction of a person will not be pronounced on the evidence of two medical experts, neither of whom had ever conversed with him until the day before the filing of their report of his condition, and who had had no opportunity to test his mental condition.</p> <p>Mere weakness of mind in the defendant will not warrant a decree of interdiction when such a decree is not asked for by any of his relatives, and when, in view of the evidence adduced, it does not appear that the interdiction is necessary, either for the protection of his person, or his property.</p>

<p>In the absence of allegation and proof to the contrary, it will be presumed that the ordinances of a police jury which authorized th,e construction of necessary public works, provided for the payment of the debt thus incurred, as required by law.</p> <p>Where a valid judgment against a police jury orders the latter to levy and collect a tax sufficient to pay the amount called for by the judgment, in accordance with * the law then in existence authorizing the police jury to impose such a tax, a subsequent act of the Legislature repealing the law authorizing the said tax, and substituting another law which makes no provision for paying the judgment, which is still partly unsatisfied, divests the vested rights of the judgment creditor, and is therefore unconstitutional.</p> <p>The parish court is without jurisdiction to enjoin the execution of a judgment of the United States Court, or of a District Court of the State.</p> <p>The tax collector is incapable of standing in judgment alone, in a suit by a taxpayer to enjoin the collection of a tax levied to pay a tax. The judgment creditor. for whose benefit the tax was laid, must be made a party to the suit.</p>

<p>The third holders and owners of negotiable bonds of a parish, which were issued by the police jury in exchange for warrants of the parish that were almost entirely illegal and void, and which thus had as their consideration a debt that was only partly due by the parish, have no better right to recover on the bonds than the original holders thereof, when all of the facts and circumstances under which they acquired the bonds, raises against them a legal presumption ■of negligence, notice, or mala fides.</p>

<p>An aet of the Legislature which declares that no municipal corporation shall assess any license-tax on certain persons over $500, and prescribes that the act shall take effect from and after its passage, can not be construed as retroactive. It applies only to the future assessments of such a tax, and hence does not repeal any municipal ordinance assessing a larger tax, which was enacted by the corporate authorities before the passage of the legislative act. Statutes will always be construed as prospective in their operation, upless their language constrains a contrary construction.</p> <p>Foreign insurance companies issuing policies from their own domicils, who do. not carry on business here, who have no agent here, and who only agree to accept risks placed for them by a person residing here, can not be compelled to pay a license-tax to the city of New Orleans'in virtue of an ordinance which imposes a license.of ?1000 on "every agency doing insurance business in said city, for any insurance company or companies not therein located, for each and every company by said agent represented.” Foreign companies are amenable to said tax who do business here through an authorized agent.</p> <p>This court can not alter, or modify its judgment, because an alleged agreement between the parties, suggested for the first time on an application for a rehearing, will, in consequence of the judgment, work injustice to one of the parties</p>

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

<p>j^PPLICATION for a writ of- mandamus.</p>

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

<p>A debtor who has been legally arrested and imprisoned for debt, under a writ issued in a civil suit, can not, by confessing judgment, acauire the right to be discharged from arrest.</p>

<p>Where on the application of a debtor for a respite, the question in dispute i& whether or not the respite has been refused, the appointment of a provisional syndic before the decision of that question is premature ; and the debtor is. entitled to a mandamus, to compel the lower judge to grant a suspensive appeal from the order of the court making such appointment.</p>

<p>Where a respondent makes answer to an application for a mandamus', he thereby waives his right of subsequently excepting to the proceeding on the ground that the allegations of the relator were not sworn to.</p> <p>Persons in interest in a certain proceeding, notified of an application to compel a judge to grant an appeal in the ease, can not rely on any exception to the regularity of the proceeding on the part of the relator, filed by the judge alone. An exparte order of court, granted on the application of an executrix, commanding the sale of succession property in order to effect a partition between the executrix, who has an undivided interest in the property, and the heirs, will be set aside, and the sale of the property enjoined on the petition of the heirs who, in consequence of the exparte order, and the sale to be made under it, would be deprived either of their legal right to ask for a partition in kind, or, otherwise' of retaining until a final settlement the price of any of the property they might purchase, at a sale of it made exclusively to effect a partition.</p>

<p>^PPEAL from the Superior Criminal Court. Whitaker, J.</p>

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

<p>^ PPEAL from the Fifth District Court. Bogers, J.</p>

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

<p>An arrest of judgment in a criminal ease will not be allowed on the ground of a want of ciualifleation of the jury commissioners. Such an objection must be made in the preliminary stages of the trial.</p>

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

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

<p>'This court is without jurisdiction oí an appeal from a judgment condemning a party to pay a penalty, or forfeiture of fifty dollars, imposed by a statute of the State. '</p>

<p>Where a married woman, with the authority of her husband, and the sanction of the j udge’ executes a mortgage on her property to secure the payment of money borrowed by her, it is, prima facie, valid, and no threats of her husband made out of the presence and hearing of the mortgage creditor, and to which he was not a party, can affect the validity of the mortgage.</p> <p>The surrender of a matured mortgage-note, and the cancellation of the mortgage, is a sufficient consideration for a second note for the same debt, secured by a second mortgage, and payable at a later date.</p> <p>The defense by a married woman that although authorized by the judge to execute a mortgage on her property, he did not make the'preliminary examination of her reanired by law, can not be maintained when it appears that after becoming a widow she has voluntarily ratified the mortgage debt by'paying the interest on it.</p>

<p>Before a-suit for the forfeiture of the charter o£ any bank located in the city of New Orleans can be entertained, it is indispensable that a petition praying for the forfeiture shall be presented by the Attorney General, or ’by the district attorney, or by them both.</p> <p>The officers of a bank are without authority to waive the service of a petition praying a forfeiture of its charter, or to waive the delay within which third persons may intervene to protect their interest, or of filing an answer which virtually confesses the forfeiture of the charter, and admits the necessity of the immediate liquidation of the bank.</p> <p>A court is without authority to order the liquidation of a bank and the transfer of its assets to commissioners until the propriety of such an order has, on proper inquiry, been judicially ascertained.</p>

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

<p>'The rights of a consignee, on the goods shipped to him, who has refused to accept the consignment, and who attaches the goods as an ordinary creditor, are subordinate to the rights of an intervenor who has advanced on the goods, and holds as the trans terree of the consignor, the bill of lading of the goods. The intervenor in such a ease has a right of pledge on the goods.</p>

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

<p>On tho trial of an accused for carrying a pistol concealed on his person, evidence to show that the pistol belonged to another, that the owner placed it in the hands of the accused merely to got cartridges for it, and that the acc.used owned no pistol, and had never been known to carry one, is not admissible</p>

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

<p>A parson may bo legally prosecuted and condemned for murder under an indictment found within one year from the death of the deceased. The prescription of one year, applicable to such eases, begins to run from the death of the deceased and not from the infliction of the wound resulting in the death, or the date of the arrest of the accused.</p>

<p>A transposition oí figures from one column of the assessment rolls to another column, made by one of the assessors without the authority of the Board of Assessors, and made after the rolls were closed, is of no effect, and in construing the rolls will be held as not having been done.</p> <p>An assessment of the capital stock of a corporation at its par value, when the evidence shows it has a higher-market value, is a valid assessment.</p> <p>The law which makes the market value of the evidences of rights to the capital of a corporation, as a criterion of-value, for purposes of taxation, of its capital, or capital stock, is not unconstitutional.</p>

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

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

<p>A party wlio takes a suspensive appeal, and fails to prosecute it, thereby forfeits his right to a devolutive appeal.</p>

<p>The holder of a first mortgage note has a right to proceed by motion, as third opponent in an executory proceeding instituted by the holder of another first mortgage note, secured by the same mortgage, to have the proceeds of the sale applied to the payment of his note.</p> <p>The dismissal of a rule taken by a mortgage creditor in one court, to distribute the proceeds of the mortgage property ■which had been seized and sold under the process of another court, will not estop him from proceeding in the latter court to effect the distribution, the dismissal of the rule not haying the force of res adjudicata,</p> <p>A second mortgage creditor who buys first mortgage notes is thereby legally subrogated.</p> <p>The honafi.de transferees of concurrent mortgage notes are entitled to a ratable distribution of the proceeds of the mortgage property, and the fact that one of the transferees obtained his mortgage note after its maturity, does not impair his, right to a ratable distribution.</p>

<p>The conversations of an accused, on trial for murder, after the alleged killing, with a person jointly indicted for the murder, are not admissible in evidence when the indictment did not charge conspiracy.</p> <p>This court can not express an opinion as to the weight and nature of testimony in a criminal case; more especially when the testimony is not before it.</p>

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

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

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