Volume 32 — Louisiana Annual Reports

<p>Notice of a motion to dismiss an appeal l>.y posting on the bulletin-board of the court is not sufficient, where the names of counsel for appellant do not appear in the list of cases posted.</p> <p>Where a party to an appeal dies, no further proceeding can be had on the appeal until his legal representative has been made a party by permission and order of the court.</p> <p>Where the term of offico of a public officer, appellant in his official capacity, expires pending the appeal, his successor in office must be substituted as appellant.</p>

<p>APPEAL from the Second District Court, parish of Orleans. Tissot, J.</p> <p>Frank Michinard, for plaintiff and appellee, contended:</p> <p>First — That by bringing suit for a partition, the plaintiffs accepted the-succession unconditionally. C. C. 994 (988). 28 A. 713.</p> <p>By consenting in their answers to the partition, the defendants accepted the succession unconditionally. C. C. 1000 (994).</p> <p>The capacity to stand in judgment in a partition suit, necessarily presupposes the quality of heir or co-owner.</p> <p>It was not a sale “of property belonging (entirely) to minors, or in which they may be interested.”</p> <p>First — Because the share of the minor had been formally ascertained, and liquidated at one twelfth. Hence, it was a sale of one twelfth belonging to the minor.</p> <p>Second — Because the words “ property in which minors may be (not are) interested” obviously mean property which may eventually come to them.</p> <p>This provision of law is clearly intended for the benefit of the minors, and should not be extended by implication to owners of age.</p> <p>A. J. Yilleré, for widow and appellant, contended :</p> <p>That the sale in question was of succession property in which a minor ivas interested, and hence that the commission of the auctioneer was fixed by section 160 of the Revised Statutes of 1870.</p>

j^PPEAL from the Second District Court, parish of Orleans. Tissot, Ed. Phillips, for plaintiff and appellee, contended : First — That the will was not valid, because it was not dictated to the notary in the words contained therein. Second — That words and dispositions are contained in the instrument which were not dictated or used by the testatrix or by any one present. Third — That the will was not written as dictated.

REPEAL from the Eighth District Court, parish of Orleans. Dibbler The opinions of the court on the motions to dismiss were delivered by Lüdeling, C. J., and DeBlanc, J., and on the merits by Manning, C. J. Robert Mott, for defendant, contended : First — That the petition having disclosed the fact, that a divorce had been granted, which had not been reversed on appeal, or annulled by a court of competent jurisdiction, the plaintiff had no right of action for alimony. 18 An.…

Bissot, J. E. & J. Legendre, for the widow, appellant, contended: First — That Mrs. Boisblanc and her children were entitled to the homestead claim, because the policy held by them is not property in the sense of the act of 1852.

<p>Tli6 taxable value of that portion of the capital of a corporation represented by tlie shares ot its stock is the market value of those shares.</p> <p>The assessment of “the capital” of a corporation need not particularize every element of value entering therein. It need only be made in general terms.</p>

^PPEAL from the Fifth District Oourt, parish of Orleans. Eogers, E. W. Huntington and H. L. Dufour, for plaintiff and appellant, contended : That plaintiff had no reason to suspect, if such was the fact, that Maurice intended to convert the money to his own use.

Bernard. Pardee, J. James Lingan and T. A. Flanagan, for defendants and appellants, contended: That where the expiration of the delay for filing the appeal falls at a time when the court is not in session, the appellant has till the first court-day to file his appeal. This was done in this case. The appellant was entitled to show cause before this court on the 27th, and obtain an extension, if proper cause was shown.

<p>j^PPEAL from the Second District Court, parish of Orleans. Tissot,</p> <p>A. L. Tucker, for appellant, contended :</p> <p>That “ a change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” C. C. 41.</p> <p>“This intention is proved by an express declaration of it before the-recorders of the parishes from which and to which he shall intend to remove,” etc. C. C. 42.</p> <p>•“ In case this declaration is not made, the prooí of this intention shall depend upon circumstances.” C. 0. 43 ; 8 L. 213 ; 11 L. 178 ; 12 L. 190 ; 13 L. 297 ; 30 A. 498 ; 8 Cranch, 279.</p> <p>T. M. Gill, contra, contended:</p> <p>'First — That the judgment making the rule absolute was invalid. 5 Rob. 61; 20 A. 544.</p> <p>¡Second — That agreements o£ counsel, to be binding, must be in writing. 5 R. 125.</p> <p>'Third — That evidence of the loose confession of a deceased person is entitled to no weight. 6 A. 479 ; 10 L. 355 ; 2 R. 300 ; 7 R. 112 ; 6 A. 114, 763 ; 8 A. 278 ; 14 A. 275 ; 18 A. 618 ; 24 A. 604.</p>

<p>A PPEAL from the Superior Criminal Court, parish of Orleans. alcer, I. Whit-</p> <p>H. N. Ogden, Attorney-General, contended:</p> <p>That this court is without power to restrict the commissioners to any special method of procuring names, as the law is silent upon that subject. The truth is, .the whole subject matter of this bill is of fact, and not of law, and the decision of the judge below disposes of it. All of the other bills refer to matters of fact, not reviewable in this court. The motion in arrest of judgment upon the ground that “ the information does not charge that it was published with intent to defraud, but charges that defendant intended to defraud by means of the check” surely cannot require any notice. See Act No. 94 of 1873, section 9.</p> <p>Andrew H. Wilson and W. L. Evans, for defendant, contended:</p> <p>First — That challenge to the array is made because the officer, clerk, or the persons whose duty it was to make the array .of jurors, are in default in the performance of their duties; or on account of some original defect in making the return of the venire; “ or when exception is taken to the principle on, or the means by, which the jury has been procured, as when the sheriff has not chosen the jurors impartially.” Chitty’s Criminal Law, vol. 1, m. p. 536-7 and notes; Co. Litt. 166, a; Bacon’s Abr. Juries, E. 1. Tidd. 5th ed. 845; Black. Comm. 3d Book, m. p. 359; 1 Archbold’s Crim. Pr. and PI'. 6th ed., page 163-1; Bouvier’s Inst. ¶ 3041.</p> <p>■Second — That under the law the jury commissioners had no authority to draw a panel of jurors from names of persons taken from the directories of the city of New Orleans. See act 24, extra session of 1878, p. 280.</p>

^PPEAL from the Fourth District .Court, parish of Orleans. Houston* Bentinck Egan, for plaintiffs and appellees, contended: First — That a defense to the rule on the surety to hold him liable, setting up that defendant had not the notice he was entitled to by art. 239, O. P., should have been set up as an exception, and a judgment on it provoked, and not having done that, that defendant waived it. 31 A. 681.

<p>APPEAL from the Second District Court, parish of Orleans. Tissot, J.</p> <p>Charles F. Claiborne, for plaintiff and appellee, contended :</p> <p>First — That no one can be compelled to hold property in common with another. C. C. 1284. Each coproprietor has a right to a partition* which is made either in kind, when the property is susceptible of a division into parts, or by licitation, when the thing cannot be divided.</p> <p>Second — That a judgment is not1 susceptible of division. One of the first principles we learn is: that a judgment is one and indivisible. Succession Bougére, 28 A. not yet reported; 10 A. 455 ; 12 A. 346 ; 14 A. 329 ; 23 A. 26 ; 25 A. 476, 495.</p> <p>Finney and Miller, contra, contended:</p> <p>First — That the sale of a judgment by licitation for the purpose of a partition amoDg heirs is unwarranted. C. C. 1260, 1262, 1287.</p> <p>Second — That although a judgment for money is not susceptible of actual partition, it is of division. Raohal et. al. vs. Racbal’s Héirs, 10 L. R. 458.</p> <p>An obligation is divisible where it has for its object a thing which is divisible. 0. 0. 2104.</p> <p>Nothing is more susceptible of division than a sum of money, which is the object of the judgment against Maignan. A sum in simple division will accomplish it. C. C. Art. 2107 ; Code Napoleon, 1220.</p> <p>'Third — That there was no opinion of experts nor testimony of witnesses to show that the judgment was indivisible in kind, or that a division would be prejudicial. Lecarpentier vs. Lecarpentier, 5 An. 497 ; 6 An. 754; 7 An. 477.</p> <p>Fourth — That there is no provision in the judgment for an appraisement, as required by Art. 1247, O. C., nor family meeting to fix’'the terms of sale. C. C. 1263. In re Michael Dickson, 6 An. 754.,</p>

<p>This court will notice ex proprio motu that tlie amount in dispute is not sufficient to give it jurisdiction..</p> <p>The matter in dispute, on which the jurisdiction of this court depends, is the thing demanded in the petition.</p> <p>In determining the amount in dispute, the interest which has accrued up to the date of "bringing the suit must be added to the principal. Interest subsequently accruing is not to be estimated.</p> <p>Where this court has not jurisdiction of a case, it can make no order except to dismiss the appeal.</p>

A PPEAL from the Fourth District Court, parish of Orleans. J. Houston* H. L. Dufour, for plaintiffs and'appellees, contended: First — That there is no law preventing an administrator from renewing-notes considered by him as valid, if he deems it the best policy in the course of a prudent administration. The only prohibition is. against changing the nature of an obligation, or creating a new re-sponsibilty. 12 R. 16 ; 9 R. 276.

Tissot, J. A. J. Villeré, for administratrix, contended : First — That the administratrix therefore submits that she cannot be held liable for the original appraised value of the said property, when the appraisement under which it was sold was ordered by the court, after a public crying had satisfied the lower court that the original appraisements were incorrect. Besides, the opponent has failed to show that the property was worth any more than it was sold for.

Monroe, E. EC. Farrar, for relators and intervenors, appellees, contended: First — Art. 831 of the Code of Practice declares that the writ “ may be directed to public officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them.” See, also, High on Extraordinary Remedies, chap. 2, subdivision vii. and ix.; Moses on Mandamus, chap. xi. p. 84.

^PPEAL from the Sixth District Court, parish of Orleans. Bightor, Henry Denis, for plaintiff and appellee, contended : First — That the judge did determine the amount of the bond as required by law, when he signed the order with the bond under his eyes, and his attention being called specially to the amount.

j^PPEAL from the Second District Court, parish of Orleans. Tissot, Charles Louque, for appellant, contended: First — James Coyle was the usufructuary of the community property accruing to his children, and they could, not, during the existence of his usufruct, sue him to recover’’their share. R. S. sec. 1710; Acts 1844, page 99; 14 A. 356. No renunciation of this usufruct appears in the record.

<p>'The constitution of 1879 -was not operative from tlie date of its adoption "by tlie convention, but only from its ratification by the people as evidenced by the promulgation of the result of the election.</p>

<p>^PPEAL from the Third District Oourt, parish of Orleans. Monroe,</p> <p>S. P. Blanc, assistant city attorney, for plaintiff and appellee, contended :</p> <p>That the question of exemption is not new. Your Honors have fully disjaosed of if, not only in cases presenting simply analogous feature© and resting on the same principles, but in controversies between the banks and the city, in some of which precisely similar laws of exemption were set up against the license demand, and in one of which a plain and unequivocal exemption from all taxation, except on real estate, was expressed. City of New Orleans vs. Louisiana Savings Bank and Safe Deposit Company, 31 An. p. 637; State of Louisiana vs. Southern Bank, 31 An. 519 ; Louisiana Cotton Manufacturing Company vs. City of New Orleans, 31 An. 440 ; City of New Orleans vs. St. Anna’s Asylum, 31 An. 292. These eases dispose of every point which can be urged by the defendant to maintain a claim for exemption. Constitution of 1868, art. 118; 24 A. 86; 28 A. 766; 29 A. 284; 21 A. 1; Dill, on Mun. Oorp. sec. 616 ; 27 A. 438; 30 A. 259 ; 18 Wall. 225 ; Burrough on Taxation, p. 150.</p> <p>E. W. Baker, W. S. Benedict, and Jos. P. Hornor, contra, contended :</p> <p>First — The question as to whether the free banking act was a contract, and whether licenses can be enforced against the free banks, needs no argument.</p> <p>This court, in the cases of the City of New Orleans vs. Southern Bank, 11 An. '41; State vs. Southern Bank, 23 An. 271; State vs. Union Bank, Opinion Book No. 39, p. 426 ; State vs. Mechanics’ and Traders’ Bank, and State vs. Merchants’ Bank, Opinion Book No. 39, p. 316 ; the last three not reported, has declared that the free banking act was a contract by which the State and its creatures were bound not to impose such license. 31 A. 519.</p> <p>Second — The Act No. 192 of 1857 did not repeal the free banking act, which was a contract with the State, and hence could not be repealed.</p> <p>Third — The constitution of 1868 is not in conflict with, nor did it alter or change the free banking act, (and even if any change were made it could not affect banks organized after that constitution went into effect.) Constitution of 1868, art. 149; 21 A. 1; Hen. Digest, p. 788, iii. Nos. 1, 2, 3, 4, and 6 ; 21 A. 726; 23 A. 449 ; 10 A. 56; 11 A. 739 ; 20 A. 373 ; 29 A. 285 ; 30 A. 554, 910 ; 10 A. 398; 21 A. 434; 1 Woods, 85.</p> <p>What prescription bars licenses ?</p> <p>The late decision of your Honors in succession of Zacharie, 30 An. 1260, Axes ten years ns the bar to taxes, but licenses are not referred to. As to them, we submit that the limit of two years, recognized in the cases of Buckner vs. Fox, Collector, 22 An. 246, 16 An. 132, and 15 An. 381, would be more reasonable.</p> <p>Further, by section 36 of Act No. 96 of 1877, it will be seen that the term of prescription of all taxes has been reduced to three years. This we invoke.</p>

<p>One •who tahes after its maturity a simulated note executed "by a husband to defraud bis wife and secured by a simulated mortgage on community property, will not be permitted to enforce the note and mortgage to the prejudice of the wife'who, before the transfer of the note to its holder, had obtained a judgment against her husband of separation from bed and board, and for a settlement of the community.</p> <p>A wife separated from bed and board from herhnsbandby valid judgment may proceed by way of third opposition to enforce her claim to one half of the proceeds of certain community property, about being sold under an order of seizure and sale.</p> <p>"While a wife cannot set up any claim to the prejudice of any real mortgage, or sale of community property made by the husband before the institution of her suit for separation, she may do so when the alienation was simulated.</p>

Monroe, J. Breaux, Fenner & Hall, for relator and appellant, contended: First — That the officers of the State are without power to place a trust fund belonging to certain persons in the treasury to the credit of the general fund. Second — That the Legislature is empowered to appropriate from the revenues of any year the money necessary to replace a trust fund erroneously paid into the treasury of the State.

Bightor, J. Belden & Duvigneaud, for plaintiff and appellee, contended : That a person notoriously insane, whether interdicted or not, was incapable of forming a valid contract with one aware of the insanity. They cited in their support C. C. arts. 1780, 1782, 1783, 1788, and . 402 ; also 5 M. 425 ; 10 M. 604 ; 4 L. 115 ; 12 A. 24; do. 624; do. 651; and 26 A. 463.

<p>A PPEAL from the Fourth District Oourt, parish of Orleans. J. Houston „</p> <p>Braughn, Buck & Dinkelspiel, for plaintiffs and appellees, contended r</p> <p>First — That actions to annul on the ground of simulation are not prescribed by one year. Hennen’s Dig., vol. ii. p. 1213, No. 9.</p> <p>Second — That a future creditor may attack a simulated sale, and may seize at once without the necessity of resorting to the revocatory-action. See 15 A. 177.</p> <p>Third — Where a defendant sets up in his answer that a pretended sale made by Mm was a real sale he will be estopped from showing that pretended sale was a contract of pledge. Bender vs. Belknap, 23 A. 764; 26 A. 631.</p> <p>Edward Phillips, contra, contended:</p> <p>First — That the, contract is real, and violates no law. That it is valid, even if its nominal consideration was not the real one, provided another lawful consideration be proved. See 12 A. 529; 14 A. 563; 28 A. 29; 29 A. 161; 30 A. 966.</p> <p>Second — That a creditor cannot annul a contract made by his debtor before his debt accrued. See 4 L. 141; 5 L. 124; 12 L. 197; 11 Bob. 493; 2 A. 168; 6 A. .87; 26 A; 711; 30 A. 1136.</p>

<p>PPEAL irom the Second District Court, parish of Orleans. Tissot, J.</p> <p>E. H. Farrar, for M. E. Forstall, appellant, contended :</p> <p>That “ the testimony of witnesses in causes before the courts of probate shall be taken in writing and annexed to the record, and a list shall be made of such documents as are produced by the parties, and are not annexed to the record, that they may be read on the appeal.” This provision of law has always been held to be imperative. Polk vs. Childers, 4 An. 500; Tompkins vs. Benjamin, 16 L. 200 ; Graham vs. Graham, lb. 203; Reihl vs. Martin, 29 A. 17.</p> <p>Second — That the judgment of a probate court homologating the proceedings of a family meeting recommending a compromise in which a minor’s interests are involved, with no evidence before the court showing the reasons which governed the action of the family meeting,' is not a valid judgment.</p> <p>Henry Denis and St. M. Berault, for executor et al., appellees, contended :</p> <p>First — That we are no parties to the probate proceedings had by the tutrix, and, therefore, that we are third persons in this case, and cannot be made appellees. Bouttó vs. Boutce, 30 An. 117; Succession of Tyson, 21 An. 117.</p> <p>Second — That the probate court and family meeting can do, by ratification, that which they could do by- original act. Charpaux vs. Bel-locq, 31 An. 167.</p> <p>Third — That, if the probate judge is satisfied with the advice of the family meeting, when the undertutor concurs with them, and there is no issue before the court, he may legally rest his judicial action upon that advice, without examining himself the merits of the proposed transaction. C. C. art. 353; Code of 1808, art. 65; Lallane’s Heirs vs. Moreau, 13 La. 432.</p> <p>Fourth — That, as third persons, we must be protected by the decree of the probate court, whether the same is rendered upon sufficient evidence or not, and whether it can, after the majority of the minor, be or not reversed on appeal. Lallane’s Heirs vs. Moreau, 13 La. ■432; Ehodes vs. Union Bank, 7 Eob. 63; Succession of Hickman, 13 An. 364; Graham, tutrix, vs. Hester, 15 An. 148; Groux vs. Abat, 7 La. 33; Wisdom vs. Buckner, 31 A. 58, and cases therein cited.</p>

Hawkins, J. Geo. L. Bright, for plaintiff and appellant, contended: That under the acts No. 7 of 1870, and No. 48 of 1871, a clerk is to be recommended for appointment by the administrator, and the appointment made by the Council, and he can only be removed by the Council. The Council makes the appointment and the removal. There is no power in the administrator to appoint or remove. That plaintiff was employed and not removed by the Council. Sam.

Martin. Fonte-lieu, J. No brief filed on behalf of the State. Jas. E. Mouton, for defendant, contended : That an arraignment of the accused before the trial had begun was necessary. He cited in his support State vs. Epps, 27 A. 227 ; State vs. Ford, 30 A. 311; State vs. Christian, 30 A. 367.

REPEAL from the Third District Court, parish of Orleans. Monroe, Sam. P. Blanc, assistant city attorney, for plaintiff and appellee, contended: First — That since the adoption of the constitution of 1868 no exemption from taxation can be conferred on any special individual of a class. See 31 A. 292, 440, 519, and 637 ; 27 A. 646, 648, and 376. Second — That the original charter of the New-Orleans Canal and Banking Company did not exempt it from the payment of license taxes.

<p>In actions of rescission, it is proper and necessary to make all parties to the transaction* parties to tlie suit, and tMs may "be done by amended petition, if not originally done.</p> <p>Evidence taken in another suit, between other parties, is not admissible if objected to. lykero one surrenders his debtor’s note to a-third person for the latter’s check, and the check, is dishonored, that fact alone entitles the party to a resolution of the transaction.</p>

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

REPEAL from the Second District Court, parish of Orleans. Tissot, Merrick, Eace & Foster, Eichard Shackelford, and James Graham, for plaintiffs and appellees, contended : 1. That a nuncupative will by public act must be dictated by the testator to the notary, and written by the notary as dictated. O. 0.1578. 2. That it cannot be said that a will was dictated by the testator, when it appears that the words of each clause of the will were suggested to Mm by another person.

<p>A creditor of a succession who has received his share of the proceeds of the sale of certain land belonging to the succession, cannot he heard to claim the annulment of the sale, and to assert his title to the land.</p> <p>The creditor of a succession cannot revendiente the property of the succession which has "been sold to pay its debts, without first tendering the price, or so much thereof as was applied to the extinguishment of those debts.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.</p> <p>Wise & Herndon and Duncan & Moncure, for plaintiffs and appel-lees, contended:</p> <p>The law gives to every person a right to claim judicially what is due or belongs to him. When the creditor has against his debtor a title importing a confession of judgment, he is entitled to have the hy-pothecated property seized immediately and sold for the payment of his debt. Art. 732, C. P., enumerates the cases in which this summary process may be resorted to, and articles 734-5-6-7 prescribe the mode of conducting it.</p> <p>The defendants in this case are strictly within the purview of all these provisions ; their act of mortgage imports confession of judgment, and in suing out executory process they have strictly conformed to all the requirements of the law. Their right to pursue this remedy can only be arrested or interfered with by the debtor or third possessor, and that only in certain enumerated cases. O. P. 739 and 749. The right to an injunction is nowhere accorded to creditor, even though he is in possession of a prior mortgage or privilege on the same property. It is not one of the grounds mentioned in article C. P. 296 and following.</p> <p>The defendants are doing nothing here that the law does not give them a right to do, and if perchance their act should operate to the detriment of the plaintiff, it would be damnum absque injuria. But even this the law has carefully provided against in articles C. P. 683, 684, 685, and in article 395 and following, which gives her the right to proceed by third opposition against the- proceeds of the sale. 7 N. S. 277 ;-5 B. 496 ; 9 B. 256 ; 10 B. 28, 457 ; 25 A. 736 ; 19 A. 59, 62,132 ; C. C. 1032, 1054, 1058.</p> <p>T. T. & A. D. Land, contra, contended :</p> <p>First — That the causes or grounds of injunction set forth in the petition are good and sufficient in law, is too clear for dispute. The extin-guishment of the debt by payment or in any other legal manner justifies an injunction by the debtor, which will be granted on affidavit without bond. C. P. arts. 739, 740, and 15.</p> <p>Second — Creditors, when necessary to protect their interests, may intervene in suits, plead prescription and other defenses, accept a succession, sue to annul sales and contracts made by their debtor, and may sue one in possession of succession property to compel its de- . livery to the administrator. 2 A. 782 ; 30 A. 160 ; 31 A. 493.</p>

j^PPEAL from the Second District Court, parish of Orleans. Tissot, A. & W. Yoorhies, for widow appellant, contended: First — There is no necessity for the appointment of an administrator. Second — That, in no event, can the public administrator be appointed, since the widow in community and the heirs are present, and they are represented in the mortuaria.

Boorman, J.. Wise & Herndon, for plaintiff and appellee, contended : First — We say that Josephine Nicholson, having executed her judgment on this land, and having opposed the monition, and the sale being declared a good one, cannot again sell the identical property, the sale of which was homologated in a suit contradictorily- with herself. It is res ad judicata. 21 A. 589 ; 24 A. 545.

<p>An executor cannot at tbe risk of tlie succession carry on planting operations, and contraot in-so doing debts so as to bind tbe estate.</p>

<p>•X dcfoiKlnnfc cannot be bold in damages on account of tlie publication of an alleged libolous letter, when tbe plaintiff fails to show that tbe letter was either written, or composed by tbe defendant, or that be caused it to be written, or composed, or assisted therein, or published it, or caused it to be published.</p> <p>'.The sworn statement of a man of admitted truth that he did not write certain memoranda, will outweigh the conflicting testimony of witnesses, some of whom recognize a resemblance to his handwriting in that of the memoranda, and some of whom who do not.</p> <p>Because one insurance company has agreed with a certain plaintiff to pay on its policy such proportion as might be adjudged in a certain suit due to him by another company on its policy, and, haying an interest in the question, has employed counsel to assist in the investigation, is no reason to hold it bound in damages for slanderous matter in the pleadings of that other company, especially where it is shown not to have known of the -charges made in the pleadings.</p> <p>INo client can be held in damages for any slanderous or libelous words uttered by his attorney-</p>

<p>whether or not a consent judgment v-as rendered In a ease is a question of fact which this Court will remand to the lower court for trial.</p>

Beattie, J. Walter Guion, for plaintiff and appellant, contended : First — Where the plaintiff in sequestration has no privilege the surety-on his bond cannot be held, even though the property be… Held: even though the property be carried away. 0. P. 279, 280 ; 30 A. 522. Second — A defendant cannot except to the jurisdiction of the court, as to person,'when he has accepted the forum. 29 A. 194 ; 30 A. 891.

<p>j^PPEAL from the Second District Court, parish of Orleans. Bissot,</p> <p>T. Gilmore & Sons, for executors, contended :</p> <p>First — -The effect of that sale (it being a sale, under a decree of the probate court, to pay a debt of the successions of Dubois and Mish) was to extinguish any mortgage or privilege that might have •existed on the property. Succession of Triche, 29 An. 385; 27 An. :279; 24 An. 482 ; 23 An. 298; 21 An. 424, 253; Hennen’s Digest, page '962, No. 2.</p> <p>“Second — Beyond that, the evidence shows that the city taxes of 1869 and 1870 were collected by the sheriff under writs of fieri facias. Sheriff’s receipts, A and B, pages 311, 312, 313. Those claimed for 1868, if unpaid at the time of the sale, were not recorded, and without inscription there was no privilege against the property which •could affect third persons. Constitution of 186S, art. 123; Act of 1869, page 114; Adams vs. Wakefield, 26 An. 592; Savings Institution vs. Leslie, 28 An. 496 — both cases of city taxes for 1868; Marin vs. Sheriff, 30 An. 293; Cochran vs. Ocean Dry Dock, 30 An.</p> <p>‘Third — By sections 3615 and 3620 of the Revised Statutes, the sheriff is prohibited from executing a deed of sale to the purchaser until the State and municipal taxes are paid. Not only, therefore, was it his duty to see that the taxes were paid, but he was the special agent of the city to collect them. Ordinances of City, pages 179-190; testimony of Walsh, pages 290-295; Ricker, pages 306-308; Presas, 334-336.</p> <p>Fourth — Where property of a succession is sold, and and the accrued taxes due the city of New Orleans are assumed by the purchaser, and the city acquiesces in the assumption, the succession will not be held for the taxes.</p> <p>Fifth — Action against the sureties of a sheriff for failure to pay over money collected by him is prescribed in one and two years. And for any tort of the sheriff, such as seizing under attachment the property of a third person, the prescription of one year applies. 0. 0. 3536; Louque’s Digest, p. 495; Rev. Stats. 2816, 2546; 23 An. 300; 25 An. 360; 30 An. 486.</p> <p>S. P. Blanc and F.- N. Butler, for the city, contended :</p> <p>First- — At the date of the sale, the succession owed the tax; it was then due and exigible; the law required that ah taxes due should be paid out of the proceeds of the sale, and the succession, which has realized the entire purchase price, cannot shift its liability, and relegate the city to a third party for the collection of its tax.</p> <p>Second — That until Act No. 73 of 1872 the city of New Orleans did not have to record her liens for taxes, and that after the passage of that act she could not be construed to lose one of her liens for taxes for want of the required record, if it appeared that the record was made as soon thereafter as was practicable.</p> <p>Third — The constitutional article requiring the Legislature to provide by law for the registration of mortgages and privileges did not require individuals or corporations to register their liens or mortgages until the Legislature had provided the laws required by the constitution. 24 An. 214; 28 An. 497.</p> <p>E. H. Farrar, for himself as agent, contended:</p> <p>First — That a sheriff is responsible as depositary for money collected by him, and his liability for such collections is imprescriptible. C. C. 2979 to 2981; 23 An. 474; 26 An. 126.</p> <p>Second — The prescription of two years in favor of sheriffs and their sureties, provided in section 3546 of the Revised Statutes, does not begin to run until a demand is made on the sheriff. 3 R. 297; 14 A. 216; 23 A. 299; 30 A. 486.</p>

^PPEAL from the Fifth District Court, parish of Orleans. Boyers, Sam.

Boarman, J. T. T. & A. D. Land, for plaintiff, contended : First — The general jule of law is that all estates acquired during marriage by purchase form part of the community. C. C. 2402 (2371); 5 A. 611; 7 A. 104 ; 14 A. 618 ; 15 A. 588.

PPEAL from the Fifth District Court J. , parish of Orleans. Cullom„ V. Olivier, Jr., and Edward Phillips, for plaintiff and appellant, contended: First — Where several notes for different amounts, but in all other respects precisely alike, and due at the same time, are secured by the same mortgage, but held by different parties, the holder of one of them cannot cause the mortgaged property to be sold for cash, and without appraisement, without notifying the holders of the…

^PPEAL from the Sixth District Court, parish of Orleans. Saucier, Bayne & Renshaw, for plaintiffs, contended : First — The carrier’s obligation was to deliver in good order. Civil Code, 2764 ; 24 An. 333 ; 23 An. 586 ; 27 An. 233. This obligation is of the highest order, and the existence of commerce depends upon its maintenance. 13 An. 269 ; 14 An. 431; 11 Rob. 24; 17 An. 291. Second — The prescription of one year does not apply. 23 A. 363.

Cullom, J. Singleton & Browne, for defendants and appellants, contended: The preponderance of evidence shows that the -vendor was not insane when she sold her property to the defendants. Even if she had been insane, it is clearly shown she was not notoriously so, and that she was not so to the knowledge of defendants. The transaction complained of was perfectly fair, and much to the advantage of the vendor. The full value of the property sold was given for it.

^PPEAL from the Fifth District Court, parish of Orleans. Rogers, James Lingan, for relator and appellee, contended: That the appeal should be dismissed, because, First — The judgment having been acquiesced in and executed by the defendant, no third person could appeal from it. 21 A. 429 ; 27 A. 230 ; 21 A. 142; 7 N. S. 345. Second — -Appellant claims no interest in the case to any specific amount.

APEAL from the Fifth District Court, parish of Orleans. Rogers', W. S. Benedict, for the relator : No discretion is vested in the Treasurer when he has funds sufficient to pay warrants presented. 18 An. 19; 21 An. 352.' The court cannot prescribe rules for the Treasurer. 24 An. 16. Where proof is shown that funds are on hand the writ must issue. 27 An. 167.

<p>FFEAL from the Fifth District Court, parish of Orleans. Cullom, J.</p> <p>Singleton & Browne, for defendant and appellant, contended: -</p> <p>It is fully established by the evidence in the record, that the policy issued by defendant in 1860, on the life of Lotspeieh, had lapsed and become forfeited ; and that the terms and conditions upon which defendant, in 1869, agreed to issue a non-participating policy to Copes, the assignee of the forfeited policy, were not fulfilled by him. Defendant is, therefore, in no manner bound.</p> <p>D. C. Labatt, for intervenor, appellant, contended :</p> <p>The main issue is, was there or not at the death of Lotspeieh a valid subsisting contract with the defendant to insure his life ? It is admitted by defendant that there was a life policy in August, 1860. Its forfeiture has not been shown, and in case of doubt, it is not to be decreed, as forfeitures are not favored in law. 4 Bigelow, Life and Accidents, p. 5 ; 29 Barb. 557 ; 25 Barb. 189 ; 35 N. Y. 131; 25 Conn. 542 ; 19 La. 214 ; G Wall. 129. Furthermore, it is shown that an agreement to revive the policy was made with defendant and is binding upon it.</p> <p>The judgment appealed from is correct so far as it decides that defendant is liable for the amount of the policy ; but it should have been in favor of intervenor, and not oí plaintiff. 12 Smith, 253; 1 Zy-briski, 347 ; 1 Big. 315 ; 41 Miss. 538 ; 20 Beaver, 389 ; 3 Big. 559, 702 ; 4 Bigelow, 135, 572 ; 3 Kent, 375 ; 17 N. Y. 427 ; 1 Phil. 77.</p> <p>H. N. Ogden, for plaintiff, appellee, contended :</p> <p>A man having insured his life fot his own benefit and that of his executors, administrators, and assigns, under circumstances entirely free from the suspicion of intending to obtain a wager policy, can make a valid sale of his rights under that contract for a valuable ■consideration. Such a policy of insurance is a species of property salable like any other, and is not necessarily lost to the owner when he becomes unable to keep it in existence any longer himself. 3 Simons, 56 ; 20 N. Y. 32 ; 13 N. Y. 31 ; Bliss on Life Insurance; Bigelow’s Life and Accident Insurance Rep. p. 365.</p> <p>If the policy originally issued by defendant on the life of Lotspeieh, and assigned to plaintiff, had lapsed, which is conceded only for argument’s sake, the evidence shows clearly it was revived by defendant.</p>

<p>^PPEAL from the Parish Court of Bossier. Fort, J.</p> <p>T. T. & A. D. Land, for plaintiffs, contended:</p> <p>First — We therefore affirm the true legal doctrine to be, that a tutor has no right, power, or authority to retain the movable effects and to cultivate a plantation, the property of his ward, without the advice of a family meeting and the authorization of the judge. This is the only doctrine that will carry out the spirit and policy of the law for the protection and preservation of the property and the revenues of minors. It was so held in the case of Boisseau & Ford vs. William Marks, Tutor, decided in 1875, but not reported. And if the tutor fails to do this, he will be responsible for whatever he could have rented or hired the minor’s property for. C. C. 327, 328, etc.; 3 A. 611.</p> <p>Second — That the legal tacit mortgage in favor of minors which existed prior to the constitution of 1868 was not affected by a failure to record it before January 1st, 1870. That article 123 of that constitution requiring such recordation divested vested rights, impaired the obligation of contracts, and ttu refore was in conflict with article-10 of the Constitution of the United States; 6 N. S. 585; 3 L. 337 ; 4 L. 407 ; do. 94 ; 8 Wheaton, 1.</p> <p>Third — Homologated accounts of a tutor are merely provisional. They are not conclusive against the minor. C. C. 356; 13 A. 464; 29 A. 722.</p> <p>Fourth — A tutor cannot expend more than or contract debts exceeding the minor’s revenues, without judicial sanction. See 28 A. 898 ; 14 A. 760 ; 12 A. 074 ; 11 A. 667 ; 4 A. 88 ; 3 A. 325 ; Civil Code, art. 350.</p> <p>Fifth — The tutor cannot claim commission on the gross revenues of the minor. See 9 A. 505; 12 A. 334; 1 Hennen’s Digest, page 921, No. 9.</p> <p>Sixth — The tutor owes legal interest on the revenues of the minor which he fails to invest, when they exceed five hundred dollars. See C. C. art. 347; 3 A. 611; 5A.189; 5 A. 214 ; 4 A. 214; 14 A. 764; 11 A. 523; 10 A. 288 ; 4 R. 290.</p> <p>Seventh — The tutor cannot encroach upon the capital to pay expenses, exceeding the minor’s revenues, without judicial sanction. See C. 0. art. 350.</p> <p>J. D. Watkins, for intervenors, contended:</p> <p>First — That the demand by the former ward of a tutor for the proceeds of the crops produced by the tutor on the plantation of the ward1 estops the latter from urging that the tutor was without authority to buy supplies and hire labor to make the crops.</p> <p>Second — That article 123 of the constitution of this State is not in conflict with the Constitution of the United States. 20 A. 533 ; 26 A. 584; 11 Peters, 420, 539 ; 1 Baldwin, 69 ; 8 Howard, 163; 1 Howard, 315 ; 1 MeAll, 513 ; 9 Howard, 407 ; 13 Peters, 312 ; 22 A. 278 ; 24 A. 25.</p> <p>Third — Homologated accounts of a tutor have the force of judgments, and can only be attacked by a direct action.</p> <p>Fourth — When a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new constitution, courts will feel bound to adhere to that construction. (1874 Exp. Roundtree; 51 Ala. 42; 30 Mich. 201; 48 Ala. 540 ; 14; Fla. 587). Fifth — Upon a question of doubt as to the constitutionality of a statute it is the duty of the courts to sustain the statute. 62 Ill. 268 ; 5 W. Va. 22 and 85 ; 44 la. 529 ; 41 Cal. 147; 66 Pa. 164.</p>

Boorman, J. . J. S. Hargrave, for defendants and appellants, contended: The plaintiffs have themselves shown that they are the tenants of defendants, and therefore are not entitled to the possessory action against them. Looney & Elstner, for plaintiffs and appellees, contended : The plaintiffs have proved clearly that they are the owners of the property for the possession of which they are suing, and that they have been illegally dispossssed within the present year.

Whitaker, J. No brief filed on the part of the State. Henry 0. Castellanos and Arthur Gastinel, fqr the defendant, contended : First — That the question of whether the panel was drawn by a quorum of jury commissioners is a pure and exclusive question of law which this court has a right to pass on. 14 A. 461; 13 A. 46 ; 12 A. 679 ; 10 A. 271; 4 A. 505 ; 20 A. 442 ; 29 A. 824.

<p>A lessee is not in the strict sense of the word a third possessor, nor is his right to claim for improvements that of a third possessor proper.</p> <p>"Where property was leased subject to a mortgage the fact that a mortgage creditor exercises his legal right of foreclosure does not render him liable to the tenant in damages.</p> <p>A fair price is the measure of the lessor’s liability to the lessee for improvements put on the leased premises by the lessee which the lessor elects to keep.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.</p> <p>T. F. Bell, for plaintiff and appellant, contended :</p> <p>The incapacity of married women to contract is not absolute. When authorized by their husbands or by the judge, they are fully as capable as unmarried women or men, and the law makes no difference whatever between them and the latter. The laws which limit their capacity have for their object the maintenance of the marital power on the one hand and the protection of women against the abuse of that ‘ power on the other. 2 An. 1; 10 An. 433; O. 0. articles 122,128.</p> <p>The statute of 1855, now articles. 126, 127, and 128 O. 0., has only the effect of changing the rule of evidence and transferring the burden of proof on the married woman. 26 An. 401; 29 An. 123; 30 An. 722, 940.</p> <p>The law will presume that the judge, in authorizing the wife to contract in the absence of the husband, had the proof before him that the husband was absent. " Omnia prcesumuntur rite acta.” C. C. art. 132; 28 An. 233. And the j udge need not in his certificate state that the husband was absent.</p> <p>Defendant herself shows that the loan made 'to her by plaintiff was not ■ used for the benefit of her husband or the community existing between them, inasmuch as she says that she gave it to her son-in-law, to be used in his business. As she was authorized to contract, and her contract did not inure to her husband’s benefit, she is clearly liable.</p> <p>For the same reason, that she was legally authorized to contract and did contract for the benefit of her husband or the community, she could accept any terms of interest that a femme sole could.</p> <p>The authorization of the judge did not limit her in that respect.</p> <p>Looney & Elstner, for defendant and appellee, contended :</p> <p>The loan made to defendant has no validity except such as the order of the judge may have given to it, in authorizing her to borrow.</p> <p>The absence of the husband should have been made to appear from the order of the judge.</p> <p>The requisites of the statute of 1855 empowering married women to borrow and mortgage their property were not fulfilled.</p> <p>Defendant did not borrow and mortgage her property for her own and separate benefit, and that was the only thing which she could be authorized to do under the law of 1855. 29 An. 123.</p>

A PPLICATION for writs of mandamus and prohibition. Kennard, Howe & Prentiss, Cotton & Levy, for relator, contended r At this writing, February 2,1880, the learhed judge of the lower court • has made no answer. We are therefore entitled to judgment without further discussion. State ex rel.

J. lAjncliy Kennard, Howe & Prentiss, for plaintiffs and appellants, contended : First — That one notified that a contract has been made for him, subject to his ratification, by another pretending to have authority, will be presumed to have ratified, unless he repudiate it immediately.

<p>"Delivery is a matter of law to "be deduced from an established state of facts. Held that under the facts herein delivery was not shown.</p>

<p>PPLICATION for a writ of certiorari.</p> <p>First — The Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only. * * * (Constitution of 1879,. art. 81.)</p> <p>The Supreme Court shall have control and general supervision over ■ all inferior courts. They shall have power to issue writs of cer-tiorari, prohibition, mandamus, quo warranto, and other remedial writs. (Constitution of 1879, art. 90.)</p> <p>Second — The writ of certiorari can only be granted where the suit is to be or has been decided in the last resort, and where there lies no appeal.</p> <p>'The party applying for it must state the causes of nullity of the acts done by the lower court to his prejudice, in a cause where there lies no appeal.</p> <p>If the case be decided without evidence, (or on insufficient evidence?) it is a cause of nullity of the judgment. See 6 N. S. 381, Stewart vs. Barrow. O. P. 855, 856, 857, 8, 9, 60, 61, 64, 66.</p> <p>'Third — It is the duty of the undertutor to act for the minor whenever the interest of the minor is in opposition to the interest of the tutor. C. C. art. 275.</p> <p>Fourth — The tutor cannot borrow for the minor, purchase for him im-movables, or compromise respecting his rights, without an authority from the judge, granted on the advice of a family meeting. C. C. art. 353.</p> <p>Fifth — A tutrix has no right to create a debt against her minor child without the authority of the judge and the advice of a family meeting. "Woodbridge vs. Pope, 22 A. 296 ; 16 A. 88; 15 A. 148.</p> <p>Sixth — At common law, the writ is used for the purpose of revision, and is extended to all cases where palpable injustice has been done, and that even where the inferior court was acting in matters resting within its discretion. 1 Miss. 112 ; 1 Wend. N. Y. 288 ; 8 id. 47 ; 2d. Mass. 173, 489 ; 3d. id. 188, 229.</p>

Beattie, J. John S. Billiu, for plaintiffs and appellants, contended: The special obligation imposed by the acts of 1869 upon the clerk of the court was to furnish to the recorder the necessary abstracts from his office to maintain and perpetuate the mortgage in favor of the plaintiffs. His neglect to do so was a palpable breach of that obligation which was specially imposed on him by law, and gave rise to damages ex contractu.

McVea, J. W. B. Robertson for defendant: First — That the judge had no right to excuse from serving any juror who had been regularly drawn, except for cause shown. 3 A. 51; 7 A. 285. Second — That every man charged with crime has a right to a trial by an impartial jury, and that an impartial jury can only be had when drawn according to law. Constitution of the United States; Constitution of Louisiana, 1868, article 6.

<p>APPEAL from the Fourth Judicial District Court, parish of St. James. Duffel, J.</p> <p>Rort. G. Dugué for defendant:</p> <p>First — After the jury had delivered their written verdict, the judge erroneously instructed them to change, alter, or add to it. He directed the foreman then and there to sign it as foreman, and to date it, and told him to date it on the 11th of October, 1879. All this is proved by the affidavit at the foot of the rule for a new trial.</p> <p>¡Second — a. The judge erred, when, of his own motion, he caused the jury to be polled and the verdict to be changed. C. P. 527, 528. It is only when one of the parties requests it that the jury is polled, or their verdict corrected, altered, or amended, b. It was error, in polling the jury, to ask them “guilty without capital punishment, is that your verdict ? ” The inquiry should have been limited to the question “Is this your verdict? ” 12 A. 264.</p> <p>'Third — The verdict shows on its face that it was not signed by all the jurors, as it purports to be. All the names are in the same handwriting. The original verdict has, with the permission of the lower, court, been filed with, the record here for the inspection of the judges of this court.</p> <p>Fourth — The affidavit at’ the foot of the rule for a new trial and the other testimony in the record establish that the jury were illegally permitted frequently to separate after they had been empaneled.</p> <p>Fifth — As suggested in the assignment of errors, nothing in the record befpre the court shows that a jury was ever sworn to try this case, nor that a trial was had, nor, if had, that the accused or her counsel were present at the trial. State vs. Douglass, 28 A. 425, and authorities there cited ; 31 A. 379 ; 30 A. 367.</p> <p>J. C. Egan, Attorney-General:</p> <p>The motion in arrest of judgment was properly overruled by the court, because the grounds alleged that there was no legal grand jury, and that Louis S. LeBourgeois was not authorized to act as foreman, are not sustained by the testimony in the record. There was a legal grand jury, and said Bourgeois was foreman of the same. The plea of autrefois convict cannot be plead in this case. After the first conviction of murder the new trial was granted, then a nolle pros. was entered, the prisoner was then indicted by the grand jury for murder, arrested, and upon this trial convicted for murder. This was not autrefois convict, nor can autrefois convict be taken advantage of by motion in arrest of judgment. The error for which a motion in arrest of judgment is made must appear on the face of the record, and therefore no defect in evidence or improper conduct during the trial can be urged during this stage of the proceedings. Sec. 1109, vol. 1, Bishop on Criminal Proceedings.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.</p> <p>T. T. & A. D. Land, for plaintiff and appellee, contended :</p> <p>That no evidence was introduced to sustain this exception. It was properly overruled. It was one of non-joinder, and came too late, after' default. 10 A. 536, 216 ; 11 A. 637, 713 ; 22 A. 291. The act of 1871, p. 19, has repealed C. C. art. 2085, as to joint obligors, and it might be logically concluded that the decisions in regard to the joinder of joint obligees are now inapplicable. But this point it is unnecessary to decide in this case. The exception was dilatory, and should have been pleaded in limine litis; and besides, the allegations of the petition, which must be taken for true, do not disclose a suit on a joint obligation, or that any third person has a joint inr terest in the subject matter of this litigation. Plaintiff .may well have leased his undivided half-interest in the plantation to defendant for $1250.</p> <p>Hicks & Hicks, contra :</p> <p>First — That Buckner, a joint lessor, cannot maintain the action for his undivided half of the rent, and the exception must, upon the face of the papers, be sustained. See C. C. 2079, 2081, 2083, and 2093; also Ailing vs. Woodruff, 16 A. 6.</p> <p>'■Second — That the exception is not founded on form, but goes to the absolute want of any right in the plaintiff to maintain the action, and may be urged at any stage of the case. C. P. 345, 346; 17 La. 236. If the action of Buckner had been for the whole amount of the rent, then perhaps an exception of non-joinder must have been filed in limine litis.</p> <p>'Third — That the debt was indivisible without the express consent of each of the parties, and must be so enforced. B. C. C. 2111, 2153, 2083, 2093.</p> <p>Fourth — That even a payment to one obligee of his half does not dispense with the necessity of his being joined in the suit to enforce payment of the remainder. B. C. C. 2087.</p>

Turner, J. First — Parol evidence is inadmissible to prove a list or return of property by a taxpayer to the collector for the assessment of taxes. The law requires the list or return to be in writing and signed by the taxpayer himself, and verified by his affidavit. See Acts of 1871, page 112, secs. 23, 24, and 25 ; and in the absence of such a list the assessor and collector must ascertain and give the true and correct boundaries of the taxpayer’s lands.

^PPEAL from the Third District Court, parish of Orleans. Monroe, First — That the shares of stockholders are not exempt from taxation under the charter of the Citizens’ Bank. And if they are not exempt by contract, then the Legislature under the constitution of 1868 has no power to exempt them.

First — A mortgage creditor of a succession has a right to proceed by seizure and sale in a court of ordinary jurisdiction against the mortgaged property, and the probate court has no jurisdiction o-ver succession property thus proceeded against. 30 An. 323 ; 26 An. 600 ; 28 An. 622.

^PPEAL from the Eifth District Court, parish of Orleans. Cullom, Eirst — Unless a century has elapsed since the birth of an absentee, his death will not be presumed. 2 M. 138 ; 9 M. 257 ; 5 N. S. 668. Second — We are told that the plaintiff is without interest. Cui bono, then, (brief for rehearing, II.) the rendition of such a decree as is solicited by the plaintiff?

^PPEAL from the Sixth District Oourt, parish of Orleans. Bightor, The facts and circumstances attending the execution' of. the notes, and the notes themselves on their face, show that they were given as a continuing security for the repayment of a loan on which demand was always in season. Vreeland vs. Hyde, 2d Hall’s Reports, N. Y. p. 429 ; Merritt vs. Todd, 23 N. Y. p. 28.

<p>"Where an act of mortgage has been consented to by an agent, authentic proof of the agent’s authority must be made to obtain executory process.</p>

<p>APPEAL from the Seventh Judicial District Court, parish of Avoyelles* Yoist, J.</p> <p>Firs&wkey;Suceession property in which minors are interested' must bring the full amount of its appraisement. 29 A. ,505, 506.</p> <p>Second — Property cannot be sold on twelve-months time, unless under and by virtue of a second order of court.</p> <p>Third — An auctioneer who is an administrator cannot act as auctioneer of the property he administers.</p> <p>The plaintiff contends that the second offering on a credit of twelve months could not be made without a special order of the court. The language of article 990 is almost the same as that of articles 680 and 681, providing for sheriff’s sales. The ft. fa. orders the sheriff to sell for cash. If the property does not sell for cash, he immediately re-advertises it to be sold on a credit of twelve months. He does not return his execution and get another to authorize him to sell on a credit. It seems to be the object of the law to make the same provisions for the sale of succession property. Article 990 provides that if the appraised value is not bid at the first offering, the property shall be sold on a credit of twelve months for what it will bring. It does not say that a new petition shall be filed and a new order obtained for the second sale. The whole complaint is based upon the absence of a second order, which the law does not provide for. The judgment of the lower court was in favor of defendant, and it is respectfully asked that this judgment be affirmed.</p>

<p>When the law vests a public officer with a discretion to do or not do a thing, a mandamus will not lie to control him.</p> <p>The franchise or exclusive privilege of running horse-cars through the streets of INew Orleans is properly within the meaning of section 10 of Act- Mo. 30 of 1876, and.the City Council has the right to appropriate the amount realized by salo thereof to the redemption of the bonded debt, as directed by said section.</p>

Turner, J. First — We quote the following authorities : A mortgage may be given for part of an obligation, R. C. C. 3294. See, also, 3304, 3307. No written acceptance of a mortgage necessary. 8 A. 508 ; 12 A. 739. ¡Second — PC. D. 1001, Nos. 9 and 938, Nos. 3 and 1002, No. 16. The offer in the Leonard lease to have plaintiffs relinquish their mortgage, and their refusal, was an acceptance of the mortgage. A mortgagee’s acceptance-is presumed.

<p>A suit enjoining tlie execution of an acfc of the Legislature, and claiming over $500 damages, ■was appealable under constitution of 1868, and will, under that of 1879, be transferred to the Circuit Court, and not dismissed.</p>

<p>"Where a corporation illegally entered upon land and constructed works thereon without previous expropriation, the owner on the perpetuation of an injunction prohibiting the entry before expropriation, is entitled to a money judgment for the value of the property illegally taken.</p>

Graham, J. Whether the prisoner was a fugitive from justice or not, was a question of fact, and the giving of a bond by the prisoner for his appearance and trial at court had nothing to do with the question of fugitive from justice or not. The State having proven that the prisoner had fled from the State, prescription was interrupted, If the prisoner desired to have the benefit of prescription, it was his duty to ■show when he returned and ceased to be a fugitive.

A PPEAL from the Fifth Mg Vea, J. Judicial District Court, parish of Iberville. First — Intervenors cannot question the legality or validity of the proceedings on which the intervention is engrafted. Second — The tenure by which an executor holds the property of a succession is for the benefit of all concerned therein. Third — Hereditary rights in the possession of the executor are liable ta the process of garnishment.

Pardee, J. Eirst — A judge has no authority to try causes out of the parish of the-defendant’s residence or domicile. 21 An. 560. Second — Eor the purpose of the determination of the rule, all the facts alleged in the petition must be considered as proven. Defendant does not deny any of the allegations of the petition, files-with his motion no counter affidavit. .Are the facts set forth in plaintiff’s petition sufficient- to warrant the issuance of the injunction ?

PPEAL from the Fourth Judicial District Court, parish of St. James. Duffel, J. First — Where the act of sale of an immovable is duly recorded the vend- or retains thereafter his 'privilege, even though his special mortg age be lost by renunciation or by failure to re-inscribe. O. 0. 3249, 3271; 19 An. 125 ; 17 L. 66 ; 8 An. 267 ; 17 An. 257 ; 4 An. 313 ; 3 An. 600 ; 12 R. 279 ; 3 L. 112 ; 3 R. 216.

Hawkins, J. First — The fund was a “ trust fund,” which could not be diverted, and should have been applied to the extinction of the coupons which it was intended to satisfy. Act No. 73 of 1872, p. 128, sec. 17. Second — It may well be that the bondholders were not the owners of the fund, but they certainly had a claim to it and could require its application to them, without any diversion. 2 Woods, 108.

A. PPEAL from the Parish Court of East Feliciana. Brame, J. First — The succession of D. J. Eluker having been closed by the final1 account of the administratrix, 28 An. 446, Mrs. I. A. Eluker oould not, as tutrix, cause a sale of property in which minors were interested to be made without the advice of a family meeting. 3 P. 119 ; 17 L. 500 ; 10 L. 319 ; 4 An. 523 ; 16 An. 420 ; 21 An. 712; 11‘ L. 149 ; 13 L. 433 ; 10 P. 396 ; 11 R. 67, 75 ; 2 An. 727; 11 A. 109 ; 1.

PPLICATION for a writ of mandamus. Eirst — The Judge of the Third* District Court rendered a decree staying proceedings in his court until the Second District Court had determined the question of interdiction. We respectfully urge that we are entitled to a decision upon the issues presented to the Third District Court without awaiting the issue of the very proceedings which we insist-are absolutely null; proceedings over which we, not being parties, have no control.

<p>A PPLICATION for a mandamus.</p> <p>First — Relators contend that the judgment causes them irreparable injury, because it opens the judgment previously homologated, so as to let in the opposition of other parties concluded by the judgment, who at no time were before the court opposing, and that the decision disturbs the res adjudicate/, character of that judgment, and is tantamount to rescinding and annulling the same in an anomalous and irregular way. If such a practice is sanctioned, there is no virtue whatever in the theory that a judgment of homologation establishes any thing or ends litigation.</p> <p>'Second — The prayer for general relief cannot be interpreted to let in other interests, or the same persons claiming rights at' law under different titles, so as to open an homologated account. 11 A. 69 ; 16 A. 426 ; 7 La. 61,162 ; 21 A. 303.</p> <p>'Third — There can be no doubt that as forced heirs these plaintiffs were without interest to attack the administration of the disposable portion. The mother could have thrown it in the river had she chosen. R. C. C. 1493,1673 ; 8th A. 121; Adams 12 A. 769 ; Sue. Macius, 31 A. 130 ; 13 A. 424, Clarkson ; Art. 1634 (1627) C. C.</p> <p>One who claims under a will must concede it as an entire instrument; he cannot claim under one portion and repudiate or impeach another portion.” State vs. Joyce, 48 Ind. 310.</p> <p>Under this authority no opposition could be entertained by the plaintiffs as “ transferees of the residuary legatees,” to dispute the will under which they claim the legacy to Mr. Ames.</p> <p>There is another error in the reason, viz.: “Opponents being heirs-besides transferees of the universal legatees, are only prima facie-bound by the items of the accounts.”</p>

<p>It is the province of the judge to fix the amount of the bond to he givon for a devolutive appeal ; and whoro the bond given by appellant is for an amount less than that fixed by the' judge, the appeal ■will be dismissed.</p>

Judicial District McVea, J. Court, parish of Iberville. .'First — A lawyer may legally stipulate for his fee a certain per centage of the sum he may recover. :-Second — It is contended that the court that rendered the judgment of revival is not the same court that rendered the original judgment. The Fifth District Court of Iberville is at present the same as the Fifth District Court that existed prior to the constitution of 1868, divested only of some of its jurisdiction.

<p>APPEAL from the Fourth Judicial District Court, parish of St. James. Bufel, J.</p> <p>First — -The possession of the sheriff did not divest Alexis Ferry of his ownership, which continued until the adjudication made, on the 12th of February, 18G8, to his wife.</p> <p>■"Ownership and the possession of a thing are entirely distinct.” C. C. 488. Down to the moment of adjudication the debtor remains the owner of his seized property. C. C. 663.</p> <p>Possession is not necessary or essential to the contract of sale or of mortgage, 28 An. 650-1, nor to an action of partition, C. C. 1243, for it is not the possession, but the ownership which is the basis of the sale, mortgage, and partition.</p> <p>Counsel for plaintiff quotes also, in connection with the above, C. 0. 3267-8, 476, 483,1879, 2423, 2424, 1881; 28 A. 650; C. C. 2428, 1895, 1940, 3399, 3459 ; C. P. 690, 694, 656, 657, 658 ; C. C. 1757,1754.</p> <p>Second — By mere operation of law, and therefore “ according to law,” the mortgage was accepted and acquired by the bank at the moment of its execution, on the 4th February, 1868.</p> <p>By the delivery of notes, on the 4th of February, 1868, the law presuming that the notes were delivered to the bank on the day of their date, and that the receipt of the notes operated eo instanti, the acceptance of the accessory mortgage. C. C. 2615.</p> <p>“ H¡e who has once acquired the ownership of a thing by one title cannot afterward acquire it by another title.” C. C. 487.</p> <p>As to unilateral contracts and acceptance, see C. C. of 1825, articles 1758, 1773, Í774, 1798,1805; Pothier’s Obligations No. 9; Pothier’s Préts No. 20 ; 11 M. 217 to 220 ; H. D. p. 938, Nos. 3, 7, 2, and 251-3-4 ; 2 L. 552, 547 ; 13 L. 254, 267 ; 6 R. 143,150 ; 7 Al. 349 ; 9 An. 130 ; 11 Al. 402 ; H. D. p. 1001 ; No. 9, p. 1002; No. 16 ; Code Napoleon, art. 2127 ; La Cour de Lyon, arret du 9 Mai, 1837 ; Dalloz, An. 1838, II. 7 ; La Cour de Cassation a jugó ¡’affirmative, arret du 5 Aout, 1839, eh. c. IY. Sivey 39 I. 753 ; 23 A. 272 ; 16 A. 437 ; 24 A. 36 ; 23 A. 357 ; 30 A. 39; Louque’s Digest, p. 436 ; (e) No. 6.</p> <p>,A mortgage is binding on the parties to it. C. C. 3312, 3315, 3316, 3522. '.That Madame Ferry was a party to the act of 4th February, 1868. See C. C. 3314, 3315, 3316, of 1825 ; 28 Al. 661-2 ; 26 Al. 552-3 ; 22 Al. 336-7.</p> <p>'First — A valid mortgage cannot be imposed on an immovable by the-owner thereof pending its seizure by the sheriff. C. C. 3300 ; 5 M. 268 ; .7 La. 487.</p> <p>Second’ — A mortgage recorded months after the owner who had executed it had ceased to be owner, and not accepted by any one, is not binding on the property. 20 A. 488 ; 29 A. 321; 30 A. 11.</p> <p>Third — We hold that the act of February 4th, 1868, registered on the :23d of April, 1868, was ineffectual as to any third party dealing with Mrs. Ferry, touching said Home-Place plantation, which became her property under the adjudication of the sheriff on the 12th of February, 1868,</p> <p>Fourth — Nor will it avail the plaintiff to say that E. J. Gay & Co. were informed by the recorder’s certificate in the act of May 24th, 1871, ■of the existence of the Citizens’-Bank mortgage, resulting from the :act of February 4th, 1868. Our answer is dictated by the' court in :20 A. 204 and 427, and 25 A. 180 : “ A recital of a pre-existing mortgage cannot supply the inscription.”</p>

<p>Under the constitution of 1879 this court is clothed with jurisdiction, by writ of certiorari, to revise the proceedings of all inferior tribunals in cases where no appeal lies.</p> <p>A recorder of the city of New Orleans has full power to determine whether a prisoner, arrested by his warrant under a criminal charge, is or is not entitled to bail, and no district court can internóse by the writ of habeas corpus, and disturb the recorder in the exercise of the said power, and itself determine the question of bail.</p> <p>A recorder has such interest in maintaining the jurisdiction of his court over a question which the law has entrusted him with, that he has authority to use any of the legal writs necessary to enable him to uphold his jurisdiction.</p>

^PPEAL from the Fifth District Court, parish of Orleans. Rogers,. The intent and effect of the constitution of 1879 does not terminate the existence of the Funding Board created by Act 3 of 1874.

Tissot, J. First — A mother who contracts a second marriage without the advice of a family meeting, loses ipso facto the tutorship of her minor children, and is deprived of the power of appointing by will a tutor to such issue. Second — Where there are no debts to pay, and no legacies to satisfy, the appoinment of a testamentary executor is inoperative.

<p>^PPEAL from the Parish Court of Avoyelles. Hall, J.</p> <p>First — There is• clearly an absolute want of jurisdiction in the parish court to hear and adjudge such a contestatio litis. The succession of Melazie Ledoux is practically a party plaintiff, and the succession of Dominique Coco a party defendant. The judgment of the parish court, overruling the plea of prescription, and ordering the claim to be placed upon the tableau, has precisely the same legal effect as would be a decision by the district court, if the opponents had sought in that tribunal to obtain a judgment against the administrators by a direct action. One is as much the basis of res adjudi-cata as the other.</p> <p>Bad the Sheldon heirs brought an action before the district'court praying judgment for the sum, it seems plain] that that tribunal could have taken jurisdiction of the case ; and there being no such thing ,as a concurrent jurisdiction between these two courts, the authority ■of the district court must be exclusive. It is, however, proper in ¡such .eases .to present an opposition before the parish court for the purpose of notice, and to stay the homologation until the subject-, matter can be litigated before the courts of competent jurisdiction ; such has been the practice. Con. arts. 85-87; succession of Bingay, 22: An. 101; Bynum, Adm’r vs. Bynum, Adm’r, 24 An. 126-453 ; Chopin vs. Eorstall, 28 An. 303,716 ; Flournoy vs. Flournoy, 29 An. 737.</p> <p>Second — If the court is of opinion that the parish court properly exercised its jurisdiction over this claim, then the plea of ten years-prescription is interposed by the administrators and several of the heirs of Dominique Coco. The action to enforce a payment of this, claim is pei’sonal in its nature, and prescriptible by the lapse of tern years. C. C. 3544.</p> <p>Third — The measure of diligence required of an administrator is that-of a prudent man in caring for his own estate.</p> <p>First — Administrators are responsible for the amount of uncollected’ notes in their hands which they have negligently failed to collect and also for any loss resulting from a failure lo obtain securities for a debt due the succession which it was their duty to obtain.</p> <p>Second — A controversy arising'out of the adjustment of matters which) necessarily form a part of an administrator’s account- is one over-which the parish court must have jurisdiction to^pass upon those-matters in order to be able to homologate the account. Any other-interpretation, if carried out, would deprive the parish judge of all. jurisdiction over successions above $500 in value.</p>

<p>APPEAL from, the Superior Criminal Court, parish of Orleans. Whitaker, J.</p> <p>First — An indictment for rape is fatally defective which fails to charge that the act charged was done by force. Russell, vol. 1, p. 675 ; Blackstone, vol. 4, p. 210 ; 30 A. 1250 ; 39 Me. 322 ; 7 A. 519 ; Constitution of 1868, article 79 ; 29 A. 589 ; 10 A. 195.</p> <p>Second — That it must appear from the face of the indictment that the unknown principal was a male capable of committing rape.</p> <p>Third — If the indictment does not conclude against the form of the statute, and the offense is only prohibited by the statute, and not by the common law, it is insufficient, and no judgment can found on it. 2 Hawk Pleas of the Crown, ch. 25, sec. 116; 2 Mass. 116.</p>

Hough, J. The judgment appealed,.from is erroneous for the following reasons, viz.: Eirst. The prescription of five years has no application. The will under which the testamentary executor qualified and sold the property now sued for by plaintiff was absolutely null, and, therefore, all subsequent proceedings under it were equally so. 1 Rob. 48; 5 Rob. 483 ; 6 An. 242 ; 2 An. 726 ; 28 An. 697 ; 29 An. 660. Second.

Boarman, J. First — That misrepresentations as to the ownership of goods by the defendant after the ownership had ceased, supplemented by other suspicious circumstances, will justify the plaintiff in attaching. 29 An. 635.

<p>•All objections to the manner of drawing juries, or to any defect or irregularity that can he pleaded against any array or venire, must he urged on the first day of the term,</p> <p>Tn an indictment for manslaughter the word “ slay ” is not essential; and it suffices to charge that the accused, “ with force and arms did willfully and feloniously shoot and kill ’* the deceased.</p> <p>'The distinction between the right of the State, in cross-examining the witnesses of the accused, and the right of the accused in cross-examining the witnesses of the State, as stated in Swayze’s cwse, 30 An. 1327, approved and afiirmed.</p> <p>It is error in the district judge to restrict the counsel of the accused, in his cross-examination of a witness for the State, to the matters brought out on the direct examination.</p>

<p>A PREAL from tbs Seventh Judicial District Court, parish of Pointe Coupee. Yoist, J.</p> <p>"The third opponent cannot contend that plaintiff’s twelve-months bond under which the property was sold is extinguished, and at the same time claim the proceeds of the judicial sale made to satisfy that very bond. 29 An. 274 ; 3 An. 454 ; 22 An. 135 ; 23 An. 245.</p> <p>The mortgage at the foreclosure of which the property was sold on a twelve-months bond ceased to exist after the sale. The law substitutes to it the special mortgage which secures the bond. C. P. art. 693, ?¿ 7. It is, therefore, unnecessary to re-inscribe the original mortgage.</p> <p>When, as in this case, the sheriff has taken from the purchaser several twelve-months bonds, corresponding to the respective claims of the mortgagees, and execution afterward issues on one of said bonds, the creditors should be paid from the proceeds, according to their original rank, which the bonds represent.</p> <p>'The respective original mortgages of plaintiff and third opponent having been lost for want of re-inscription, and both parties holding the twelve-months bonds of the purchaser, furnished when plaintiff’s said original mortgage was foreclosed, the third opponent is entitled to a pro rata distribution of the proceeds of the sale afterward made by execution on the twelve-months bonds. 9 La. 1; 16 La. 164; 3 An. 144 ; 7 Rob. 73 ; 2 An. 242.</p> <p>It is only as long as the proceeds of the sale remain in the hands of the sheriff that they are subject to the original mortgages, but no longer. O. P. art. 401 ; 7 Rob. 87 ; 14 An. 423.</p> <p>As -soon as the proceeds have been distributed by order of court the mortgages cease to exist. The twelve-months bonds are the proceeds themselves of the sale, and the holders of the same are on a footing of equality together.</p>

<p>j^PPEAL from the Parish Oourt of East Feliciana. Brame, J.</p> <p>Tho judgment was rendered by a judge interested therein. 31 A. 323; Const. 1868, article 90.</p>

j^PPEAL from the Sixth District Court, parish of Orleans. Held: “The object of the legislature in this article was to save the appellees the trouble and expense of a distinct appeal where the case was brought up by the adverse party.

<p>Mere illegality in the appointment of an administrator or curator, will not vitiate the acts done under it. The acts of the officer in such case are valid, although he should have been illegally appointed.</p> <p>The fact that the officer appointed to administer a vacant estate is styled an administrator, instead of curator, does not render void his acts. The duties of these two officers are substantially the same.</p> <p>The legality of the appointment of an administrator cannot be questioned by way of opposition to his account.</p> <p>The appointment of one who is at the same time an ordinary and a commercial partner of-deceased, as administrator or curator is not absolutely void.</p> <p>In the settlement of the accounts of the administrator or curator of a vacant estate, minor heirs who are absentees, are properly represented by the attorney of absent heirs, and a tutor ad hoc should not be appointed for them.</p> <p>Courts of probate have no jurisdiction to settle the accounts of the liquidator of a partnership, but they havo jurisdiction of the settlement of the accounts of an administrator, and where the administrator incidentally brings into his account the details of an extrajudicial settlement made of the interest of deec.-tsed in a partnership, the probate court has jurisdiction to ascertain and determine whet her the administrator has accounted for all the effects of deceased, and therefore incidentally to inquire into the partnership settlement.</p>

<p>Perfect ownership consists of the use, the enjoyment and the disposal of the thing — the usuSi fruotus and abusus.</p> <p>Perfect ownership gives the unlimitod right of disposal and enjoyment. Imperfect owner? ship gives this right only when it can he done without injuring the rights of others, tlrafo. is, of those who may have real or other rights to exercise upon the same property.</p> <p>Plie usus, fructus and abusus are tho three elements of perfect ownership and constitute the jura in re- The right of a lessee is not a real right — a jus in re- It is a jus ad rem. The lease of real estate does not therefore operate a divestiture of any element of property, hut it prevents or encumbers the exercise of the right of full ownership. The right* of a lessee is substantive, and is independent of changes in the ownership of the thing. Hence the purchase or expropriation of the rights of the owner does not necessarily embrace or operate upon the right of the lessee. That right, in order to he affected, must - itself he the object of the purchase or expropriation.</p> <p>Tho purchase or expropriation of tho rights of the owner simply gives subrogation thereto-^no more, no less — and are the measure of the rights of the purchaser or expropriator-</p> <p>If tho right of lessee is worth no more than he has agreed to pay in futuro for it, the expro> \- priator of that right would pay him nothing, as it is worth nothing. * But if the right of J lease will bring a greater sum than it is to cost the lessee, the latter is entitled to he paid \ the amount of snob excess, which amount cannot he charged upon tho sum ñxed for the- j rights of the owner, unless tho owner has received the rent in advance, or unless the < value of his right has been fixed by reference to the present actual value of the lease. J The true test of tlio value of tho rights of the lessee is found in the excess which it will now ■ soli for over the amount he has agreed to pay for it. I*</p> <p>The improvements put by the lessee on the leased promises belong to him. The owner of the- 1 premises has tho right of electing to take them or not. But the owner can not he compelled to take them.</p>

j\.PPEAL from the Parish Court of Bapides. Thornton, J. First — Because no such thing as a mere list of debts is recognized in law as a basis upon which a judgment can be rendered, nor can the creditor or heirs be cited to sanction or oppose such a proceeding by notice through the public prints, and said pretended homologation as to them is an absolute nullity. 30 An. 702 ; 8 B. 121; 2 An. 895 ; 12 An. 268 ; 30 An. 692, 363.

Poohé, Judge ad hoc. First — We propose now to discuss the legal results quoad the ownership-of this note flowing from Mrs. Landry, intrusting the husband with the administration of this note and the obtaining judgment on the same.

<p>.A.PPEAL from the Parish Court of Iberville. Cole, J.</p> <p>First — A will executed in another State devising property situated in Louisiana must as to that property, whether movable or immovable, be reduced to the disposable portion. C. C. 1493,1502,1504 ; R. S. of' 1870, sec. 3677 ; C. C. 1220 ; 17 A.. 15 ; 23 A. 22.</p> <p>Second — The powers of administrators appointed in different States extend only to the limits of the sovereigns creating them, and that neither allows the other to intermeddle with any assets within their respective jurisdictions. 17 An. 16 ; Burbank vs. Payne & Co., 19' An. 42 ; 8 La. 508 ; 2 N. S. 20.#</p> <p>The article C. C. above quoted says : “ The judge before whom such succession shall be opened, shall proceed to appoint or confirm the officer to administer it under the name and in the manner pointed out by the existing laws.”</p> <p>Art. 1121 (1114) C. C. fixes the order of preference to be observed in making appointments.</p> <p>A dative executor is a private officer. C. C. 2817 (2788).</p> <p>Third — One who claims the administration of a succession must make due publication of his application. C. C. 1114,1116 ; C. P. 966,167 ; 13 A. 582 ; 18 L. 402.</p> <p>Fourth — Andrew II. Gay, who holds a power of attorney from Lawrence L. Butler, a beneficiary heir, which authorizes him to represent said heir, has a preference over Henderson, a non-resident, and a stranger to the succession. 21 A. 614 ; C. C. 1121; 3 A. 261; 23 A. 22.</p> <p>First — Mrs. Butler’s will was duly and properly probated, and in form is valid under the laws of Mississippi which govern its conception. (See transcript of probate proceedings before the Ohancery Court of Harrison county. R. pp. 11 to 24, also sections 974,995,1785, and 2388, Revised Code of Mississippi. B. pp. 40 to 43).</p> <p>As Mrs. Butler was a resident of, and domiciled in the State of Mississippi, and as movable property has no situs, but is governed by the law of the domicile, any disposition of property of that kind, valid under the laws of Mississippi, is valid every where. See Rev. O. C. art. 10 [10]; 8 Rob. p. 414 ; 9 Rob. p. 438 ; 12 Rob. p. 334; and 15 An. p. 155.</p> <p>The disposition of immovable property situated here is not null, but simply reducible. See Rev. C. C. art. 1502 (1489); 12 Rob. pp. 552 to 558 ; 1 An. 142.</p> <p>Arguments made and authorities cited by counsel for appellants under this head are irrelevant, since the movable property belonging to this estate is not situated in the State of Louisiana. 15 An. p. 154.</p> <p>The claim that the will contains a prohibited substitution, and is void for ambiguity, we do not think it necessary to- discuss,, but will let the will plead its own cause.</p> <p>Second — That an administrator who has been appointed by the court of the State where the will was made and the testator lived, and where most of her estate was situated, is entitled to the administration of the property of the succession as situated in this State. 15 A. 244 ; 0. 0. 1596 ; 6 L. 688 ; 8 N. S. 232 ; 8 L. 86 ; 30 A. 887.</p>

Hough, J. First' — The celebrated restrictive act of 1853, which is relied on by the defendant, ought not to be applied in.this ease, for the following reasons, viz.: 1. This debt was not “ created by an ordinance,” and, therefore, no provision could be made for its payment at the time the debt arose, as provided in the act.

PPEAL from the Fourth Judicial District Court, parish of St. Charles.

PPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J. First — The judgment became vacated and discharged under the bankrupt act the moment Horner & Gaff proved their debt against the ‘ estate of the appellant. Sec. 5105 and 5106 U. S. Statutes ; 6 Black-ford, 254; Bump, 8 ed. p. 106; 9 Bankrupt Register, p. 508; 20 A. 108 ; 151 A. 601 ; 22 A. 440 ; 27 A. 572 ; 29 A. 21.

<p>In a contest for an office where the plaintiff alleges that the commissioners’ returns have been “fraudulently changed, altered and manipulated” so as to give the defendant, the commissioned incumbent, a majority, inferior or secondary evidence cannot be resorted to without proof of the loss or destruction of the official returns.</p>

<p>An indictment will lie quashed when it appears that the clerk of the court who acted as a jury commissioner for drawing the jury which found the bill, had never been sworn as such commissioner.</p>

<p>APPEAL from the Ninth Judicial District Court, parish of Rapides. Thornton, parish judge, sitting in place of Blackman, J., recused.</p>

Hough, J. This is a suit by executory process, issued by the Thirteenth District Court, parish of Madison. Defendant obtained from the same court an order removing the cause to the Circuit Court of the United States. From this order the plaintiff has appealed and filed an assignment of errors: First. That the case is not transferable under any of the acts of Congress, being an action in rein, and no issue raised by the defendant upon which the court can act and pass judgment.

<p>An indictment charging the killing to have been done by the accused “ willfully, maliciously, and of his malice aforethought, ” held to sufficiently charge malice.</p> <p>A medical man is competent, as an expert, to testify as to the cause of death.</p>

<p>APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.</p> <p>The ruling of the court was correct. Tin dal, C. J., page 183, Eoscoe’s Criminal Evidence, says: “ I understand the rule to be, that, before you can contradict a witness by showing that he has at some time said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction. It is not enough to ask the general question whether he ■ever said so and so; because it may frequently happen that upon •the general question he may not remember having so said; whereas ■when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said.”</p> <p>'The bill of exceptions show the grounds on which defendant relies for judgment in his favor. The position assumed by the State, in brief and authority referred to, is hardly tenable as applied to the law governing this case. One of the main purposes of the evidence was to show malice, and consequently bias, against defendant. State vs. Duncan, 8 R. 562 ; State vs. Brown, 4 An. 505 ; State vs. Adams„ 14 An. 620, with authorities in decisions referred to.</p> <p>As the exceptions show that time is not of the essence, as in case where" a particular piece of evidence is sought to be introduced, as in the-case of State vs. Cazeau, 8 An. 114, it does not apply.</p>

Ilough, J. First — That the plaintiffs were properly joined, having a common interest, and that the Supreme Court has jurisdiction of the case. 2» An. 105 ; 31 An. ,765 ;■ 23 American Reports, 414; 6 Wall. 196 ; 7 Howard, 624 ; 24 Howard, 451. Second — That the confession of judgment by the police jury being beyond their power, was null and void, and hence that the prescription of one year was not applicable to a suit to annul the judgment.

4 PPEAL from the Parish Court of Bossier. Braclen, J. First — All the property, rights, and credits of the succession stand precisely in the attitude that R. W. Dougherty and his property, rights,, and credits stood at the moment of liis death, in June, 1877. Second — At that moment the law fixes tlie obligations, privileges, destination, and distribution of the property, rights, and credits of his succession.

Pierson, J. First — The true question in this case is, to what amount must the surety be solvent? and not whether he be solventas to the whole world. The amount of the solvency of the surety is declared and fixed in. art. 3011 of the Code of 1825, and in art. 3042 of the Code of 1870„. which limits his solvency to the possession of property sufficient to-answer for, or to pay the amount of the obligation or bond which • he signs. C. C. 1985, 3042 ; 17 L. 436.

<p>•The Board of School Directors of a parish are without authority to bring suit for the reven-dication of land donated by Congress to the State for public school purposes, and sold under a law of the State, unless empowered to do so by a legislative act.</p>

Beattie, J. ■ First — What the intimate friends of a' deceased person said about his insanity is admissible to show the common fame and notoriety of the insanity. 6 A. 172. Second — Where a deceased was notoriously insane to the knowledge of those dealing with him, contracts made with him will be held null, although interdiction has not been applied for. 12 A. 24, 624, 651; C. C. 396,1781,1788,1766, 2439.

Whitaker, J. First — The testimony offered was admissible as part of the res gestae, to show intent and knowledge. The objection made only applies to an investigation to affect title of real estate, and is inapplicable when the object is to prove criminal intent and knowledge.

<p>A sheriff lias a cause of action in damages or otherwise to protect his possession and to shield himself from liability; but this right of action is limited by the degree of responsibility which may result should the property seized be illegally withdrawn.</p>

<p>APPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.</p> <p>First — That the parol evidence to show the consideration of the transfer from Miller & Walton to John A. Miller was inadmissible, is established by the following authorities: Skillman and Wife vs. Lacey, 12 M. 404; Clark vs. Farrar, 3 M. 252, 253 ; Hart vs. Clark, 5 M. 614; Semple vs. Fletcher, 3 N. S. 385 ; 2 L. 447; 17 L. 366; Girocl vs. Yiaes, 23 An. 588; 8 M. 216 ; the cases of Semple vs. Fletcher, 3 N. S. 385 ; Pothier on Obligations, 1.1, pt. 4, art. 3 ; 0. 0. 1808, 241,1876, 2275 ; 6 M. 429 ; 4 N. S. 159 ; 2 L. 448 ; 4 L. 1 ; 16 L. 130 ; 9 R. 416 ; 4 An. 441 ; 15 An. 577 ; 27 An. 198 ; 28 An. 181.</p> <p>Second — But if the evidence is held admissible, it shows a giving in payment by an insolvent debtor, which is prohibited. O. 0. arts. 2658’ and 2440 ; 10 L. 159 ; 21 A. 196.</p> <p>Third — -The relation of creditor and debtor existed between the plaintiff and Miller & Walton at the date of the transfer attacked by reason of the suretyship of Jackson for Miller & Walton. Yan Wyck vs. Seward, 18 Wend. 375 ; Jackson vs. Myers, 18 Johnson R. 425 ; Fox vs. Hill, 1 Conn. R. 275 ; How vs. Ward, 1 Greenleaf R. 195 ; Lewk-ner vs. Freeman, 1 Eq. Cas. Abr. 148.</p> <p>That parol evidence is admissible to show the true cause of a contract, even though it be another cause than that set up in the contract. C. C.' 1894, 1900 ; 3 An. 135 ; 26 An. 548 ; 30 An. 966. .</p>

A PPEAL from the Ninth .Judicial District Court, parish of Rapides. Blackman, J. Under the provisions of sec. 2754, Rev. Stats, of 1870, police juries cannot close, obstruct, or change public roads without the consent of the contiguous property owners. ’The plaintiffs are not contiguous property owners such as the statute relied upon by them contemplates ; but residents of. the town of Alexandria, to whom the said law gives no cause of action in the premises.

Hough, J. ¡Plaintiff contends that the sale of certain real estate made by order of the probate court, in the succession of her late husband, at the instance of the testamentary executor,- is null and void for the following reasons: ¡First. The will itself, a nuncupative one by private act, was null and void, because it does not appear by whom, or where, or in whose presence it was read at the time of making the same. Prescription of five years does not apply.

^PPEAL from the Third District Gourt, parish of Orleans. Monroe, The relator’s case is exactly the same as that of Oollens, 30 An. 861, Elmore, not reported, and Moss, 31 An. 142, ail three decided in. favor of the relators.

<p>One who, in consenting a mortgage, has specially waived the homestead, cannot quoad the mortgaged property, claim the homestead, overruling Hardin vs. Cerf, 29 A. 333.</p>

j^PPEAL from the Fifth District Court, parish of Orleans. Cullom, ¡First — When a debtor insures his life for the benefit of his creditor, and the premiums are paid by the creditor, or charged against the debtor, the creditor can collect the insurance policy, but he must pay the balance of such collection over and above the amount of his legal indebtedness due him to the debtor’s heirs.

'MeVea, J. Plaintiff’s husband having bought in his name, at the partition sale of her father’s succession, property belonging to said succession, and having retained, and not paid, the price of sale, which was due to her, it should be considered and decreed that the title is in plaintiff, and that the property was bought by her husband for her account and with her paraphernal funds. 22 An. 105; 15 An. 569 ; 1 An. 520; 8 An. 499 ; C. C, arts. 1265, 2320, 2337,2412.

lPPEAL from the Parish Court of Iberville. Cole, J. The statute which allows $¡¡1000 to the minor children in necessitous-circumstances, in the succession of their father, does not apply to the succession of 'their mother. The text of the law is so clear,, that its letter cannot bo disregarded under the pretext of pursuing-its spirit. C. C. article 13 ; 29 An. 64 ; 29 An. 703 ; 30 An. 671.

<p>APPEAL from the Seventeenth Judicial District Court, parish of RecL River. Pierson, J.</p> <p>First — The defense is purely technical and confined to two grounds, first, • jurisdiction ratione material, and, second, want of the necessary-parties. We submit that the court had jurisdiction ratione material.. Rev. Stats, of 1870, sec. 2903 ; 28 An. 585 ; 29 An. 315, 320 ; 31 An.. 375.</p> <p>Second — It was the duty of the sheriff to pay over these proceeds to-these plaintiffs to an amount sufficient to satisfy their judgments. He refused to pay them over, because there were attachment suits-pending in court under which the property was first seized. These attaching creditors have no privilege until after judgments have-been obtained in such suits. 20 An. 346, and authorities there cited. It is the duty of the sheriff to pay over the proceeds of property sold by him under execution to the parties shown to be entitled to-them by the certificate of mortgage and the writs in his hands. 15-An. 513 ; 9 As. 509 ; C. P. 766.</p>

A PPEAL from the Thirteenth Judicial District Court, parish, of East Carroll. Hough, J. .First — It is conceded in the answer of E. J. Brown, and not contradicted by H. B. Wade, “ that he was put in default for non-payment of the price.” 'This admission in the answer, and the production of the unpaid notes for the price, entitled plaintiff to a resolution of the sale and-' restoration of his property, as the court below very correctly decided.

Thoi'nton, J. ‘First — The fact is admitted that the defendants are using the will thus probated ex %oarte as a muniment of title in the courts of the United States, in which courts, the defendants, who are plaintiffs herein, are unable to attack the will or question its validity, because of the want of probate jurisdiction in those courts. 'We say, therefore, that under these circumstances, the facts being admitted in the record, it was the duty of the parish court to have…

<p>APPEAL from tlie Sixth Judieial District Court, parish of St. Tammany, Duncan, J.</p> <p>Eirst — A fi.fa. is issued to be returned in seventy days. The law prohibited a longer deiay. C. P. 604 ; Acts 1855, p. 253 ; 15 An. 189 ; 17 An. 467. •</p> <p>Second — The failure of a sheriff to return within the time is prima facie evidence of the debt. 23 An. 253, 207.</p> <p>Third — The purchaser at a judicial sale is a necessary party to an action to annul the sale. 30 An. 310 ; C. P. 608, 609 ; Hennen’s Dig. p. 746 (e.) No. 2 ; 10 E. 425.</p> <p>Fourth — The affidavit by an agent that he verily believes the debt is due is insufficient. C. P. 242 ; 7 N. S. 610 ; 11 An. 625 ; 13 An. 473 ; 10 An. 324.</p> <p>Fifth — The corporeal possession of tlie property in controversy, its effects and presumptions of law arising therefrom. Arts. 3442, 3443, 3444, R. O. C.; C. P. 605, No. 4, 607, 608, 609, 610, 611, 612, 613.</p> <p>Sixth — A curator ad hoc has no capacity to act until served with copies of citation and petition. 6 R. 142 ; 12 E. 540 ; 10 E. 324 ; 13 An. 487 ; Hennen’s Dig. Absentee 9, s. 277 ; 10 M. 472 ; 12 E. 461; 9 An. 550.</p> <p>Seventh — The curator ad hoc is not bound to ñle an answer. It may be a better defense not to file answer. C. P. 260, 266 ; 14 An. 75, 79 ; . 2 An. 239 ; 3 An. 381 ; 11 An. 184.</p> <p>Eighth — Prescription cannot avail the defendant. C. C. 3483.</p> <p>Ninth — The adjudication of Doherty was in contravention of law. E. C. C. 122 ; C. C. 12.</p> <p>First — On motion to dismiss, the husband’s affidavit cannot be considered in favor of the wife. O. O. 2281.</p> <p>Second — This court has no jurisdiction. Const. 1879, arts. 81 and 261.</p> <p>Third — The affidavit was good. C. P. 216, 217.</p> <p>Fourth — The defendant in Eussell vs. Torre was an absentee. E. C. C. 47, 3556, No. 3.</p> <p>Fifth — The sale was within the return-day of the writ. C. P. 318 ; 30 An. 1128.</p> <p>Sixth — A tender of the price to the defendant, the purchaser of the property, is a condition precedent to plaintiff’s action to recover. 30 An. 891; 30 An. 174 ; 30 An. 1233.</p> <p>Seventh — Prescription. C. C. 3542, 3543 ; Hennen’s Dig. (N. S.) p. 1219, No. 5, 6, 8,14, p. 1220, No. 18, 24, 25..</p>

<p>APPEAL from the Fifth Judicial District Court, parish of Iberville. McVea, J.</p> <p>1. The defendant made no motion for a new trial, and his criticisms of the verdict upon questions of fact therefore lose much, of their “weight where not made before the court which tried the case originally ; ” that “ an appeal from a judgment founded on a verdict should only be taken after the refusal of a new trialand that “ judgments founded on verdicts should never be brought before the Supreme Court, without showing that an attempt has been made to obtain a new trial.”</p> <p>Such are the rules derived by Mr. Hennen from the decisions. Digest, vol. 1, pp. 99-100, and they are laid down in such cases as Wright vs. Ferren, 10 A. 92, and the precedents there cited.</p> <p>2. It is said in appellant’s brief, that the judgment does not conform to the verdict, it being claimed that the verdict is for a right of way only, and the judgment adjudges the land to the plaintiff with full title. At this point it may be proper to quote the law wiiich controls the question. The Act No. 14 of 1876, p. 33 ; Act p. 31, B. S. of 1870, sections 1479,1481,1483, 1485.</p> <p>“A verdict must always be understood with reference to the pleadings, and as responsive to the issues made by them.” Trepagnier vsi Durnford, 5 Martin, 456 ; Harrison vs. Faulk, 3 La. 70 ; Downes vs. Scott, 3 Bob. 88 ; Keane vs. Fisher, 9.A. 74.</p> <p>“The whole finding of a jury on special facts must be taken together.”1 Innis vs. Crummin, 1 N. S. 563.</p> <p>“ Uncertainty in a verdict may be rectified by reference to the pleadings.”' Newton vs. Ker, 14 An. 704; Gay vs. Ardry, 14 L. 288.</p> <p>“ Whatever' is beyond the province of the jury to find in the particular case may be disregarded, and judgment rendered without reference to it.” Peytavin vs. Winter, 6 La. 559.</p> <p>“ A special verdict simply finds the facts, leaving the court to render a judgment which shall be a proper legal conclusion from such facts.” Campbell vs. Creditors, 16 La. 351.</p> <p>“ By a special verdict the facts of the case are put on the record, and the law submitted to the judges.”' Bouvier’s Law Dictionary, 14th ed. verbo Verdict.</p> <p>3. ,The transfer of the “right, title, estate of the owner in and to the land,” to a company having perpetual succession, could be nothing else but an appropriation in fee. 50 Pa. State, 425 ; 2 Blatchford, 95 ; 1 Kernan (N. Y), 308 ; 2 Devereux & Battle, N. C. Law, 451; 4 Sneed, 528 ; Cooley, 558.</p> <p>“In estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner for the contemplated improvement or work.” B. S. sec. 1482.</p> <p>But this prohibitory provision indicates the general rule whose operation is thereby restricted; and as to other damages, beyond the-value oí the land taken, there can be no doubt that they may be-offset, as the judge charged. In so charging, he but followed tlio-rules laid down by this court in Railroad vs. Lagarde, 10 A. 150 and Railroad vs. Calderwood, 15 A. 481, in the interpretation of the same statute. A similar rule has been followed in many Other-States, as will be seen by the authorities collected by Cooley, at p.. 568, Con. Lim. There is no authority in any book or decision..</p> <p>5. The findings of a jury on questions of fact will not be set aside-unless manifestly erroneous..</p> <p>1. On 24th April, 1879, defendant filed, and had served on plaintiff’s-counsel, a supplemental and amended answer.</p> <p>The supplemental answer specially denies that the full ownership of said lands sought to be expropriated is necessary for the public-use. He avers that a servitude of-way will fully accomplish all-purposes of said railroad, and a width of fifty feet is all-sufficient.</p> <p>On the 29th of April, before the case was called, defendant asked to-have this supplemental and amended answer allowed, but the court-refused the same.</p> <p>The lower court erroneously refused to allow it.</p> <p>First. It could not be said to come too late, because the trial had not begun, The plaintiffs could not be taken by surprise, for they were-ready to sustain the averments of the petition, that the ownership-of the land was necessary to its purpose.</p> <p>Second. That it is an issue which could be made by special plea, is-settled by what is said in 31 An. p. 432 : “ We think the legal presumption is that the full ownership is necessary to a corporation-having perpetual existence, and that if it is not necessary, the onus-of showing it is on defendant, who should specially plead it.”</p> <p>2. “That the list of jurors, when once legally formed, must constitute that out of which the jury is to be formed whenever the case is tried.. That the legal panel or list could not be dismissed and a new list formed for the subsequent term of the court.” O. C. 2631.</p> <p>3. It was also objected, that the court had excused a juror who was* over sixty years. The statute does not exempt any one, and only-fixes as a qualification that he be a freeholder. The jury has to betaken as they stand on the list, unless a cause can bo shown ; so the-excusing a juror, who is competent, may operate to the injury of the party in two ways. The juror may be lost, and his name not being called, may give one objectionable to defendant.</p> <p>This statute being one to compulsorily take a man’s property, should be strictly construed, and all its requirements and safeguards strictly enforced. Oooley on Oon. Lim. p. 529, 528, 539, 540, 340.</p> <p>4. In expropriating the right of way for a railroad merely, a servitude on the land, and not its ownership, is acquired. 11 A. 98 ; Constitution, art. 110 ; O. 0. 722, 490,491, 492, 505 ; 55 Pa. St. 16 ; 29 Mo. 141; O. O. 509 ; 32 Vt. 68; O. 0. 777 ; 0. 0. 2634; O. P. 690; 0. 0. 2626, 2630, 2632, 2640 ; Field on Oor. 496.</p>

^PBEAL from the Sixth District Court, parish of Orleans. Bightor, There is no doubt whatever of plaintiff’s right to appeal from the judgment of the court a qua accepting the sureties tendered by appellant, overruling the motions made to dismiss the appeal, and refusing to issue the executions demanded by the judgment creditor. It was so decided in 19 An. 4; 16 An. 192 4 La. Ill; 8 An. 288 ; 24 An. 329 ; Act No. 24 of 1876. .

Mü Vea, J. First — Prescription does not begin to run where property, money, or other effects are in the hands of a fiduciary, until a demand has been made. 30 A. 486 ; 14 A. 216 ; 23 A. 300. Second — The president and cashier of a corporation continues to be liable to the corporation as president and cashier, even though he may cease to perform the active duties of his office, until his office has terminated in some one of the ways pointed out by law.

<p>Because tlie right of a plaintiff to demand a statement of account from a defendant is not prescribed, it does not follow that the debt is not prescribed which is evidenced by the-account.</p> <p>The debt, incurred by the president and cashier of a corporation on account of money of the-corporation held by him, and notes and premiums due the corporation not collected by him, is prescribed by ten years from the time he ceased to exercise any of the functions oí his offices. The obligations of such an officer to return the books or any other specific property of the corporation shown to be in his possession is not prescribed in ten years.</p>

j^PPEAL from the Third District Court, parish of Orleans. Monroe, First — That the laws in existence when these railroad bonds were issued in 1854 were ample to authorize the city to levy taxes to meet them at their maturity, and formed part and parcel of the “ contract ” , which was protected by the prohibition in the Federal Constitution against the “impairment of the obligation,” and consequently could not be repealed or affected by Act No. 5 of 1870. ■Second — That while…

Beattie, J. First — Novation is never presumed, and can only result from the manifest terms of an agreement clearly evidencing the intention of the creditor to alter the form of his debt.

A.PPEAL from the Parish Court of Iberville. Gole, J. First — The burden of proving the note fraudulent without consideration, or a disguised donation, is upon the opponents.

A PPEAL from the Thirteenth Judicial District Hough, J. Cóurt, parish of Tensas.

Saucier, J. • First — As to third persons, the transfer of a debt can have effect only from the date of notification thereof to the debtor, and until the notification, the debt can be attached notwithstanding the transfer. 11 Rob. 326 ; 17 An. 258; 0. O. 2643 ; 7 An. 620 ; 20 An. 96 ; 9 An. 226. Second — By the bankrupt law, U. S. R. S. see. 5044, it is the assignment, and not the adjudication in bankrupcy, which may dissolve an attachment. 13 Nat. Bankr.

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

ÜPPEAL from the Parish Court of Madison. Dennis, J. ' 'The judgment of the lower court, refusing the motion-for a new trial and the motion in arrest of judgment, and sentencing the accused, should be sustained for the following reasons : First — Because the Supreme Court cannot review the correctness of a general verdict on questions of fact. Second — Because it does not appear that there was any discrepancy between the allegata and probata.

<p>It seems to "be a settled doctrine, that a State court is not prevented from entertaining an action and rendering judgmont against a receiver appointed by a Federal court, but only from interfering with bis possession or from enforcing tlie judgment in the State tribunal.</p> <p>Want of permission from the Federal court, which appointed a receiver, to bring suit against him in the State court, is waived by the appearance of counsel in his behalf, such appearance being an admission tbat tbe defendant has been regularly brought into court.</p> <p>The “New-Orleans Savings Institution ” was at least a bank of deposit, and, as such, liable to the payment of the annual licenso-tax imposed by the city of blew Orleans, under its ordinances, on “ banks, banking houses, banking companies, or banking agencies.”</p> <p>But privilege claimed by the city on its personal property, not having been registered, cannot be recognized.</p>

<p>^PPEAL from the Sixth District Court, parish .of Orleans. Saucier,</p> <p>'The debts and affairs of an individual member of a firm are entirely separate and distinct from the debts and affairs of the firm itself. The corpus societas is a legal entity, entirely distinct from each of its members. 4 M. 378 ; 11 M, 429 ; 2 La. 84; 9 Rob. 196 ; 7 La. 337 ; 14 An. 497 ; 22 An. 443 ; 10 An. 479.</p> <p>Parol testimony is inadmissible to prove the promise of a commercial firm to pay a pre-existing debt of one of its individual members.</p>

^PPEAL from the Fifth District Court, parish of Orleans. Oidlom» The suit brought in the Court of Claims and decided on appeal by the Supreme Court of the United States was against the United States, • and was brought on a tort. The present suit is against the representative of Elgee’s estate, and is based upon a contract. The parties are not the same, the cause of action is not the same, the object of the suit is not the same.

Yoist, J. A certified copy of the petition of twenty voters, required by Act of' 1877, the original of which is filed in another suit between the same parties, fulfills entirely the, purpose of the law. The objection to-the copy of such a petition is purely technical.

<p>Application for mandamus.</p> <p>The relator is entitled to a mandamus from the Supreme Court to compel the judge of the District Court to try a case in which the defendant has no right to a jury. Const, art. 90 ; C. P. art. 829, 830, 831.</p> <p>The suit is upon the note of defendant’s wife and himself, given for the price of property purchased in her name during the existence of the community. The debt is, therefore, his own. C. C. art. 2402, 2398 ; 29 An.'75 ; 10 La. 148 ; 9 Rob. 210 ; 12 An. 598 ; 19 An. 206.</p> <p>Besides, defendant has assumed the debts of his wife.</p> <p>This suit is, therefore, upon an unconditional obligation to pay money, and defendant is not entitled to a jury, because he has not made oath according to art. 494, C. P.</p> <p>Defendant is not sued upon an unconditional obligation to pay a sum of money, and is entitled to a jury without making oath as required by art. 494, O. P.</p> <p>He only signed the note sued upon in order to authorize his wife in the purchase of property made for her own account.</p> <p>The presumption that all purchases during the community are for its account can be rebutted. 8 An. 286 ; 30 An. 167 ; 1 Rob. 367.</p> <p>If defendant were liable in this case, his liability would arise, not from his signature placed on the note only to assist his wife, but from the operation of the law. *</p> <p>Defendant’s assumption of his wife’s debts, which is not binding upon him, because made by attorneys without special power to m'ake it, . was only an assumption of community debts, and not of her separate debts. If there is a doubt in the mind of the court, the trial by jury should be allowed. 3 An. 197.</p>

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

<p>'Though, under Article 90 of the constitution of 1879, itmight be proper for this Court to compel by Mandamus a District Court to grant an Inj motion in a case clearly sufficient on the facts and involving no question of law, and in which, therefore, the District Court would be without discretion to refuse the Injunction, still, as a rule, this Court will not use the power conferred upon it by said article of the Constitution, to compel an inferior judge to grant an Injunction which he has refused according to his conscience and his understanding of the legal issues involved in the case. The remedy, in such a case, is by Appeal.</p> <p>Tor the information of members of the bar and litigants, the Court lays down, in this case, the general rules, by which it shall ordinarily be guided in the exercise of the power granted by article 90 of the Constitution of 1879.</p>

<p>Application for Writ of Prohibition.</p>

<p>^PPEAL from the Second District Court, parish of Orleans. Tlssot,</p> <p>Articles 3069 and 3070 only apply to the wrongful maladministration of an estate and consequent danger to the surety. The evidence shows that the funds of the estate were strictly used to pay its legitimate and privileged debts. The executor, in such cases, is not a wrong-doer, and is entitled to the credit of whatever sums he has paid which should legally be paid. 11 Bob. 479 ; 7 Bob. 49 ; 2. An. 45 ; 4 An. 76. The surety is, therefore, in no danger.</p>

<p>It is proper for tlio District Attorney, in examining the jurors on tlic-ir vo ir dire. to ask each of them: “Have you any conscientious scruples as to inflicting the death penalty in case of murder ?” This point is no longer an open question.</p> <p>The law does not require that section 1000 of the .Revised Statutes he read to the jury by the District Attorney. "When the Counsel for the accused lias read it to them, and the Court in its charge has stated that, that section was the law, and that, under its provisions, the jury could qualify their verdict by adding “without cajútal punishment,” the statute is fully complied with.</p> <p>It is not necessary, for the validity of the verdict in ciiminal cases, that the accused he present in court, in person, when the case is assigned for trial, or wlien attachments aré ordered for witnesses, or when a motion for new trial is made.</p>

Eightor, J, 'The plaintiff moves to dismiss the devolutive appeal on the following grounds: First — That the Certificate of the Clerk and the Transcript are imperfect and incomplete, and that the defects and omissions in said Transcript are attributable to Appellants.

Whitaker, J. The accused is indicted under Sec. 907 of the Rev. Stat. of 1870, which does not require that the bank officer charged with embezzlement should have been in possession of the money. A defendant may move an arrest of judgment for all defects which are not cured by verdict; but not for a mere formal defect.

<p>A PPEAL from the Superior District Court, parish of Orleans. Lynch, A J.</p> <p>Plaintiffs’ property was destroyed by a mob, which held possession of the Oity on the 14th of September, 1874, and on the following days-in defiance of its police or militia. Under section 2458 of Rev. Stats., of 1870 the Oity is responsible. 28 An. 936.</p> <p>The judgment appealed from is correct, and should be affirmed, because :</p> <p>First — The troops engaged in the memorable struggle of the 14th of September, 1874, were neither a mob nor a riotous assemblage, and hence the Oity is not liable. Rev. Stats, of 1870, sec. 2453 ; Dillon on Municipal Corporations, § 760.</p> <p>Second — The Oity had been deprived of all power to preserve the peace by the enactment of the Metropolitan Police Law.</p>

<p>'Under the laws now in force in the State, prescribing the manner in which election returns and tally-lists shall be forwarded ^y the returning officers to the Secretary of State, and the compilation and promulgation of said returns shall be made by the latter officer, his duties are purely ministerial, without any discretion whatever on his part. ■</p> <p>If he has made the compilation and promulgation upon other returns than those prescribed by the law, he must make them over again, in a way to conform strictly to the Statute.</p> <p>The writ of Mandamus lies to compel him so to do.</p> <p>Tut the Decree of the Court, issuing the 'Writ, does not decide the question of title to the ' office to which the Relator claims to have been elected; it only gives him a prima facie title to the office in controversy.</p>

PPEAL from the Sixth District Court, parish of Orleans. Bighlor, J. 1. The insolvent, Testart, was not the owner of the property alleged to have been pledged to Defendant, at the time of the pretended pledge, and, therefore, said pledge was null and void. O. 0. 3142-3-5. 2. No valid pledge has been proved as against Intervenor, who is a third person. 0. 0. 3157-8 ; 2 La. 387; 3 La. 528 ; 2 La. 361 ; 4 M. 570 ; 2 La. 459 ; 15 An. 465 ; 14 An. 375 ; 31 An. 865. 3.

Lynch, J. First — Compensation does not take between depositor and depositary, when the debt due by the depositor is on an account' distinct from the deposit. C. C. 2956 ; 7 An. 637 ; 3 An. 516 ; 12 An. 257 ; 23 An. 116 ; 11 An. 73 ; C. C. 2210. ¡Second — The claim of Defendant is not liquidated. It is for a sum alleged to have been paid in error, which Plaintiff denies. Defendant must prove that he paid through error. C. C. 2302 ; C. P. 18.

<p>^PPEAL from the Fifth District Court, parish of Orleans. Rogers,</p> <p>First — Therefore, the only remaining question is in reference to the secure of McDonald’s interest in the hands of the Clerk of the-Court. The Court below holding that it was no seizure at all, and-Harrison acquired no rights thereby.</p> <p>In the case of Daley vs. Cunningham, 3 A., 55, it was held:</p> <p>“A judgment could not be attached by a seizure in the hands of the-Clerk of the Court by which it was rendered, who is merely a keeper of its records, having no legal possession of, or control over it.</p> <p>This is exactly the ease now before the Court, and we think conclusive-on the issue.”</p> <p>'Second — The only mode by which the sheriff can proceed under a writ of fieri facias to seize the rights and credits of a debtor in the-hands of a third person are very clearly and distinctly laid down in Article 246 of the Code of Practice, and section 1523 of the Revised-Statutes, The last section of Article 246, C. P., reads as follows :</p> <p>■« The property and effects in the possession of a third person, belonging-to the defendant, or debts due by him to such defendant, shall be-decreed to be levied on as by the sheriff from the date of the service-of the interrogatories on such persons. And no seizure shall bind! any property, money or effects, rights or claims in the hands of a garnishee, either under process of attachment or -fieri facias, unless service of the interrogatories has been personal upon such garnishee.”</p> <p>It has been repeatedly held that until the interrogatories are propounded there is no legal or valid seizure against the property in the hands of a third person. Mere notice of a seizure is not sufficient. The law and the decisions on this subject are' direct, clear and positive,, and must be strictly complied with, otherwise the whole proceeding is null and void.</p> <p>Third — And it is further urged that said writ of fieri facias had expired) when the rule was tried. Section 3415 Revised Statutes prescribes-the method by which a sheriff may proceed after the return day by keeping a certified copy of the writ and returning the original into court, and authorizing him to proceed to sell under the copy.</p> <p>In the present case the original writ was retained and not even a copy returned to the Court, and the property seized is therefore released. 2 La., 280 ; 1 Rob. 540 ; 2 Rob., 341; 9 Rob. .64.</p> <p>First — Service of interrogatories was not necessary. The claim seized was an incorporeal right. Garnishment is only auxiliary and cumulative. 23 An. 346.</p> <p>Second — The original writ of fieri facias was retained by the Sheriff of this Parish beyond the return day, as he should do under the law. Rev. Sta. I 3415. 2 La. 280 ; 30 An., 88 ; 5 An. 237 ; 2 An. 361; 12 Rob. 13; 11 Rob. 66.</p>

<p>On Motion to Dismiss.</p> <p>j^PPEAL from the Fifth District Court, parish of Orleans. Cullom,</p>

<p>Oít Motion to Dismiss.</p> <p>^PPEAL from the Fifth District Court, parish of Orleans. Rogers,</p>

A PPEAL irom the Fourth District Court, parish oí Orleans. Houston,. A j. - Defendant declared in his marriage contract that he was a citizen of the-United States and of the State of Louisiana, domiciled in the City of New Orleans. His wife followed his condition, and has no other domicile than that of her husband. O. 0. art. 39 ; 29 An. 253 ; Story,. Conflict of Law, g 46. Suit must be brought before the Court of the Defendant’s domicile. 27 An. 566.

<p>4 PPEAL from the Fifth District Court, parish of Orleans. Rogers, ii J-</p> <p>.TPirst — -The Plaintiffs rely upon the fact that their claim is for necessary supplies purchased by the captain, in command of the steamer, on the' credit of the steamer, fully proven to be just and correct, and so admitted to be judicially.</p> <p>Second — They rely upon the seizure by the sheriff under the ft. fa., and the privilege given by that seizure (O. P. 722), as well as upon the advantage of the adverse judicial possession resulting from that seizure, which rendered it legally impossible for their judgment, debtors, McElroy & Melangon, by a retrocession or otherwise, to disregard that seizure or in any way affect their rights as seizing: creditors under it. The Court will bear in mind that under the-terms of the release, Wilmot & Co. are to be accorded all the benefit, resulting from the seizure, and the pretensions of Blanks, the opponent, are to be decided precisely as if the steamer still remained in the custody of the sheriff.</p> <p>Third — They contend that the paper (Record, 139-139), relied on by Blanks as an act of sale from himself to McElroy & Mclangon never conveyed title, because, (1) It was simply an agreement to sell; (2) It was never recorded in the office of the collector of the customs, as required by law.</p> <p>See U. S. Revised Statutes, secs. 4192 to 419G, inclusive.</p> <p>3 An. 88. C. C. 2796. 8 N. S. 390 ; 17 La. 85; 4 La. 110 ; 2 Rob. 182„ 229.</p> <p>Fourth — The appellees next contended that, if there was a salo and transfer of title as claimed by the opponent, then the retrocession of that title could not be made by McElroy & Melangon to their prejudice,. or in disregard of the rights they had acquired as fur-nishers of supplies in good faith, even if there had been no seizure-made under this judgment by the sheriff. The Code in positive terms prohibits individuals from renouncing what the law has established in their favor, when the rights of others are affected therelnj.</p> <p>O. 0. art. 11. 6 An. 2. C. C. 1989 (1984). 28 An. 739. 2 Rob. 180. 4 La. 198. 23 An. 355. 4 La. 198 ; 9 Rob. 306 ; 3 N. S. 466.</p> <p>First — Plaintiffs had no privilege on the boat at the time the seizure waa made. Their claim was prescribed. C. C. 3277 — 3237.</p> <p>Second — Defendants were not commercial partners, and one of them had no right to confess judgment for the other. C. C. 2997. 1 An. 147. C. P. 206. 3 An. 34.</p> <p>Third — The nullity of a judgment may be alleged, even collaterally, in any form of proceeding, by any one having the least interest to have the nullity pronounced. 30 An. 691; 1 N. S. 9 ; 21 An. 26 ; 11 An. 761; 24 An. 252; 8 N. S. 145.</p> <p>Ifourth — The retrocession, by virtue of the resolutory condition, put the parties back in the same position they occupied previous to the sale, and the opponent took his property back free from all charges ■created by the 'purchasers or resulting by the operation of the law from his possession as owner. O. C. 2046. 19 La. 28; 6 An. 2; 8 La. 83; 12 An. 699 ; 7 An. 135, and Stevenson vs. Brown, not yet aioported.</p>

<p>APPEAL from the Fourth District Court, parish of Orleans. Campbell, J.</p> <p>In a petitory action the contending parties must claim the same property. Until the identity of the property be shown, the rules relative to petitory actions are inapplicable.</p> <p>As against one in possession claimant is not bound to show title in himself good against the world ; a fortiori is he not required to make such proof when the adverse party does not claim to be in possession. 8 La. 239-246 ; 8 An. 499.</p> <p>The rule that the party relying on title acquired by sheriff’s sale must show deed, writ, and judgment., not invariable ; he is only held to offer the best evidence he has, although not including the aforementioned. 16 La. 441; 17 La. 40.</p> <p>That he does not offer them is ground for objection only ; if there be no objection, the sheriffs deed is conclusive. 15 An. 389; 20 An. 242, 380 ; 10 An. 503.</p>

i PPEAL from the Superior District Court, parish of Orleans, Lynch . A j. Although plaintiffs misconduct may have contributed remotely to the’ injury, if the defendant’s misconduct was the immediate cause of it,, and with the exercise of prudence he might have prevented it, lie is not excused. Redfield on Railways, vol. 2. see. 177 ; 10 An. 33; 17' An. 19 ; 23 An. 182.

Whitaker, J. The information should have disclosed from whom the accused received the money charged to have been embezzled. 2 Archbold (Pomeroy’s Ed.) p. 1338, 1341; 3 C. & Payne, 422 ; 5 C. & Payne, 300. The information charges the accused as agent, and not as a depositary or bailee, and there is a variance between the fact alleged and the fact attempted to be proved. The evidence on this point should not have been received, and Defendant is entitled to a new trial.

<p>APPEAL from the Second Judicial District Court, in and for the Sixth and Seventh Municipal Districts of the parish of Orleans. Houston, Judge of Fourth District Court, parish of Orleans, acting in the place of Pardee, J., recused.</p> <p>The law governing this case is well settled. It has been held that, under under the legal definition of public things, R. C. C. 453, 454, public squares, courthouses, and jails of a parish are public property, and, as such, cannot be executed for debt.</p> <p>4 A. 84, Police Jury of Baton Rouge vs. Michel.</p> <p>30 A. 65, Plaquemines Parish vs. Foulhouze.</p> <p>30 A. 61, MoKnight vs. Parish of Grant.</p> <p>See, also, 21 A. 244.</p> <p>It has also been held that this rule is not affected by the consideration whether or not the public property is in actual use, and that “it suffices that the public has a right to use.” 30 A. 67.</p> <p>It has also been settled, that in issues of this kind, the courts cannot consider the question as to whether or not the public property is necessary for the public use, for this is a political, and not a judicial question. Picket vs. Brown et al. 18 A. 562.</p> <p>Police Jury of Plaquemines vs. Eoulhouze, 30 A. 67.</p> <p>The Defendant knew, when he bought, that the property was public. The Sheriff’s notice of seizure, advertisement, and adjudication to Defendant all describe the property, as the “courthouse and square,” etc. (R. 179-150.) He could not plead ignorance of the law, R. C. 0. 7, and knowing that the property was public, he knew, also, it was not liable to seizure. He was, therefore, a purchaser in bad faith. R. C. C. 3452.</p> <p>Brashear vs. Dwight, 10 A. 645.</p> <p>Walworth vs. Stevenson, 24 A. 253.</p> <p>He therefore owes the rents and revenues of the property from January 25,1878.</p> <p>The doctrine of estoppel does not apply.</p> <p>Police Juries can only manage or administer ; they caunot alienate. A fortiori they cannot, by indirection, by acts of omission, or commission, alienate.</p> <p>See R. C. 0. 429, 431, 445, 2996, 2997.</p> <p>29 A. 592, 261 ; 26 A. 59.</p> <p>23 A. 191, 232, 251.</p> <p>R. S. I 2734.</p> <p>2 Kent, Lecture XXXIII. Sec. Y. *p. 306.</p> <p>SO A. 66.</p> <p>The property, not being used any more for a courthouse, ceased to be public, and became the private property of the Parish. Dillon on Municipal Corporations, $S 435, 436. 14 An. 872 ; 8 An. 149 ; 13 La. 328.</p> <p>Plaintiff is estopped from contesting the validity of the Sheriff’s sale,, because he appointed an appraiser. 27 An. 314 ; 7 How. 183.</p> <p>Plaintiff must tender the amount of the purchase price paid by the purchaser before he can contest the validity of the sale. 24 An. 325 ; 21 An. 425 ; 28 An. 854; 29 An., 537 ; 30 An. 174.</p>

<p>APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.</p> <p>IThe only principle applicable to this case is that contained in C. C. 2320, to the effect that masters and employers are responsible for the faults of their servants and employees. 7 An. 325 ; 14 An. 818 ; 26 An. 170 ; 17 An. 166; 11 An. 396; 16 An. 321; Potbier des Obligations, vol. 1, p. 166; Duranton, vol. 7, p. 512, No. 724; Toullier, vol. 6, p. 117, No. 282 ; O. N. 1384.</p> <p>This responsibility cannot be gotten rid of by delegating the work to another and giving him control. Sherman & Redfleld on Negligence. p. 132, et seq., % 102 and 103 ; 5 Rob. 113 ; 22 Ala. 264; Cooley on Torts, pp. 558 and 560.</p> <p>Defendants are not responsible for the injuries alleged to have been suffered by Plaintiff, because they employed a skilled person as a contractor to do the work, and had no control or supervision of it.' 28 An. 943 ; Addison on Torts (3rd ed.), pp. 395-397 ; 29 An. 791.</p> <p>3?laintiff has utterly failed not only to make his cases certain, but even reasonably certain. 17 Wall.. 557 ; 4 Mete. 59; 1 Selden, 492; 3 Am. Rep. 143, and others.</p>

Saucier„ J. The Receipt of Defendants was for sugar stored with them for account’, of Plaintiff. By the stringent provisions of Act No. 150 of 1868, sec. 4 (Rev. Sta. see.. 2480), Defendants were forbidden from permitting the transfer or removal of the sugar without the written assent of the person holding their receipt.

<p>Under the law of Louisiana, the general rule forbidding the establishment of title to real estate by parol evidence, finds no exception in the case of a fraudulent violation of an alleged parol mandate to buy. The decision in Hacltenburg vs. G-artskarap, 30 An. 898, affirmed.</p> <p>Prescription against the action of forced heirs for the reduction of excessive donations, only begins to run from the death of the donor.</p> <p>Article 1556 of the Civil Code of 1825, by which donations inter vivos were revoked, up to the disposable portion, by the subsequent birth of children to the donor, was a law based upon considerations of public policy, and not passed in view of giving to the donor any .right or privilege in any manner personal to him. Therefore, the Act of the Legislature of 1855, repealing the said Article of the Code, cannot be considered as having a retroactive effict, or impairing any obligation of contracts, or affecting vested rights.</p>

<p>TSTo provision was specially made by the Constitution of 1879 for the administration of justice in the Sixth and Seventh Municipal Districts of the City of ÜSTew Orleans, during the interval between the first Monday of April and the first Monday of August 18S0.</p> <p>therefore, under the provisions of Art. 259 of the same Constitution, and for reasons of public «order and of absolute necessity for the administration of justice, the laws, in existence atitbe time of the adoption of the Constitution, which placed those Sixth and Seventh Municipal Districts under the jurisdiction of the Second Judicial District Com t, are still in force in that particular respect, and that Court, so far as those Sixth and Seventh Municipal Distiicts are concerned, is still in existence, and the Judge presiding over it, still in office. This order of things will remain so until tho first Monday of August 188 0.</p>

<p>This Court will presume that the Court a qua properly exercised the discretion vested in in refusing a continuance claimed on the ground that Defendant’s Counsel was unavoidably absent and engaged in the actual trial of a cause in another Court, if tbe Pecordí does not contain the proof of the facts upon which the continuance was asked for.</p> <p>The rule of law that both parties should be dismissed when guilty of mutual wrongs, has its-qualifications in suits for divorce, and only applies when the wrongs are similar in nature* and so proportional as to render it difficult to ascertain which party is mainly in fault.</p> <p>The testimony of the husband and of the wife is inadmissible in a suit for a divorce. Suchi cases do not come within the exception of article 2281 of the Civil Code. The rule of exclusion of the testimony is founded upon considerations of public policy and morality-</p>

On Motion to Dismiss. PPEAL from the Fifth District Court, parish of Orleans. Sogers, . J. The witnesses were heard in open court. By consent of Counsel, the case was thereupon submitted, and the District Judge rendered liis judgment on that oral testimony, because the written report of the phonograplier was never filed.

The issuance and perpetuation of the Prohibition are prayed for on the following grounds, to wit: 1st — That the late Fourth Judicial District Court was, and tho present Twenty-Second Judicial District Court is (as a tribunal and irrespective oí the Judge thereof), utterly without jurisdiction to take cognizance of and try the suit No. 2018 of the State of Louisiana ex rel. vs. John A. Cheevers, the relator and applicant herein for the writ of prohibition. 2.1 — That the…

On Motion to Dismiss. PPEAL from the Sixth District Court, parish of Orleans. Bightor, The judgment was signed on May 25th, 1878, and the Citations of appeal are dated respectively the ,28th October and 15th December,, 1879. Appellants could have had the Citation issued, and the-Appellee served within the year. The want of Citation is distinctly imputable to them. 21 An. 618 ; 8 La. 220 ; 8 Martin, N. S. 673 ; 23. An. 207 ; 21 An. 271.

<p>In order to adjudicate upon tlie issue presented in tins Motion to dismiss and tlie Answer thereto, it -would be necessary for this Court to take cognizance of the evidence annexed to those pleadings, which is in pais and dehors the transcript. It cannot constitutionally be done. It makes no difference that evidence is before this Court by consent of Counsel and that the facts are not disputed.</p>

j^Pi’EAL from the Fifth District Court, parish of Orleans. Uogers} Article 2281, C. C., expressly permits a wife to testify for or against her separate interest. 23 An. 164. Burden of proof is on the wife claiming that property purchased during the Community is her separate property, purchased with her separate funds. 15 An. 33 ; 11 An. 526 ; 12 An. 193 ; and others.

j^PPEAL from the Sixth District Court, parish of Orleans. Bightor, In cases of simulation, it is difficult for the plaintiff to present conclusive evidence. For that reason, the rule of law lias been established, that only a prima facie ease needs be made out, and it shifts the burden of proof on the defendant. 10 An. 691; 6 An. 647 ; 15 An. 42 ; 4 La. 254 ; 6 La, 538 ; 2 La. 16 ; 6 An. 710 ; 2 Vesey, Jr., 155; Hovendcn on Fraud, p. 9.

<p>1 PPEAL from the Superior District Court, parish of Orleans. xjl kins, J. Ilaw-</p> <p>The points upon which we rely are, then, these:</p> <p>First — That all actions against the city of New Orleans, for work or labor done, either under a contract, or for damages, or extra work* are prescribed, unless commenced within one year from the time the-contract was to be performed. R. S. 2822, and Act No. 91 of 1858.</p> <p>■Second — That under twenty-fourth section of the city charter of 1870, Act No. 7, Extra Session of 1870, the city could not contract to improve, pave, grade, or lay banquettes at its own costs, but that the whole of said cost had to be borne by the front proprietor.</p> <p>Third — That one who contracts under said section twenty-four, to do work on banquettes, must look exclusively to the front proprietor for the payment, and that the city cannot enter into an engagement to the contrary.</p> <p>Fourth — That the plaintiff has engaged with reference to said law, and has expressly contracted to look to the front proprietors, and to pretend to nothing against the city in case of non-payment, recognizes and declares the law, and cannot afterward seek payment at the hands of the city on the bills against the abutting proprietors.</p>

<p>In this caso, Plaintiff having obtained an Injunction “restraining tho City of Hew Orleans from closing or interfering with his business (that of coffee-house with theatrical performances or vocal music), and from collecting the sum of §1500, as license on said busuiess,” tho City reconvened in its Answer, claiming payment of tho license-tax and praying for an Injunction, “restraining Plaintifi from continuing to carry on his business until he shall have paid the said license.” The District Judge refused to grant the Injunction cd for by the City.</p> <p>Held that the provisional Injunction granted Plaintiff, was no reason why the Injunction prayed for by tho City should be refused; and that the District Judge is ordered to gran t tho latter.</p>

Tissott J. Dumas has always had his domicile in the City of New Orleans, where he was born and married, though his residence has been temporarily in Prance. It is only the political, not the civil domicile, which is forfeited by an absence of two years. Dumas never acquired a domicile in Prance. Even if he had forfeited his domicile here, still the suit must be brought befe re the Court of his last domicile.

^PPEAL from the Sixth District Court, parish of Orleans. Mghtor, The office of Public Administrator is purely statutory, and, in no sense, the offspring of the Constitution. The recent Constitution has not proprio vigore vacated the office. It has not in terms repealed any thing but the Constitution of 1868. As to statutory laws, it only repealed such as were inconsistent with the new organic structure. Cooley, Const.

<p>On Motion to Dismiss.</p> <p>APPEAL from the Twenty-Fourth Judicial District Court, parish of St. Bernard. Livaudais, J.</p>

<p>^PPEAL from the Third District Court, parish of Orleans. Monroe,</p> <p>Defendant not having áppealed from the judgment dismissing her Be-conventional Demand, cannot by her Answer to the Appeal have that part of the case revised by this Court.</p> <p>Plaintiff sues as owner to be quieted in his possession. All he has to do, is to show his title, and to prove possession and disturbance, which, he has done.</p> <p>I£ the alleged simulation were proved by Defendant, still the suit should be maintained, because Defendant has shown no title, and simulation may be lawful. 17 La. 128 ; 15 An. 547 ; 20 An. 172 ; 11 An. 1G8. There is no simulation of Plaintiff’s title, and none has been proved.</p> <p>This suit is technically an “ action of slander of title.” Defendant by her Answer became plaintiff in a petitory action, and assumed the burden of proving in herself a title superior to that of the possessor. 14 La. 849 ; 1 La. 102 ; 11 An. 174.</p> <p>Defendant’s Demand in Reconvention is, as well as the rest of the judgment appealed from, before this Court for revision. C. P. 592; 30 An. 803.</p> <p>This is not a possessory action, as contended, inasmuch as the property in controversy is not real but movable. It is the rents and revenues of the Market-house which are the object of this litigation. 3 Rob. 518 ; 5 An. 585 ; O. P. 46, 41, 6, 4, and 49.</p> <p>If the property were real, this suit would be one in jactitation of title, and Defendant can show and maintain her title. 27 An. 308; 11 La. 186.</p> <p>We have pleaded fraud and simulation, and need not resort to the Re-vocatory action. 11 An. 169 ; 5 An, 1; 12 An. 173; 10 An. 570 ; 6 An. 710 ; 5 An. 668, and others.</p>

]?PEAL trom the Superior District Court and Third District Courfcj parish of Orleans. Lynch, J. “We contend that in this case all the formalities of law have been complied with. That the proceedings, being summary, may be tried at any time, in the manner provided by law. That our title, being conclusive, could not be attacked collaterally, but, if at all, by direct action.

A PPEAL from the Third District J. Court, parish of Orleans. Monroe,..

<p>On Motion to Dismiss.</p> <p>BPEAL from the Sixth District Court, parish of Orleans. Righior, J.</p>

The only legal relief left to Relator is by the writs of certiorari and prohibition applied for. Under article 90 of the present Constitution, this Court has the power to issue them independently of its appellate jurisdiction. The District Judge should be prohibited from passing sentence upon the-Relator, because the law under which he was prosecuted, Act No. 44 of 1879, was abrogated by article 167 of the Constitution.

<p>The Court will presume, when an Information is signed by the Assistant District Attorney of the Parish of Orleans, under the provisions of Act "No. 27 of the Legislature of 1878, that ho performed the duty of the District Attorney, owing to the absence, sickness or inability of that officer.</p> <p>Although two distinct articles are alleged to have been stolen, the taking of them constitutes one distinct offence, as to the thing, time and place, and the Information is not defective for uncertainty or duplicity.</p>

<p>lsfc. Act lío. 31 of 1876, commonly known as the “Premium-Bond Law,” did not establish a gambling or lottery scheme, in violation of the exclusive privileges of the Louisiana Lottery Company; and now prohibited by Art. 167 of the Constitution of 1879.</p> <p>2nd. Said Act lío. 31 of 1876 is not unconstitutional as a “ reference11 law, under Articles 115- and 116 of tho Constitution of 1868. These Articles commented upon.</p> <p>^ gaj(£ Ao(. -j£-0i gL of 1876 does not violate the Constitutional Amendment of 1871, forbidding tho increase of the debt of the City of ÜsTew Orleans.</p> <p>4tb. Said Act lío. 31 of 1876 does not impair the obligations of antecedent contracts and bonds-of tho.City of Sow Orleans, and is not, on that score, unconstitutional.</p> <p>Municipal Charters are not contracts within the sense of the Constitutional provisions prohibiting the impairing of the obligation of contracts. The Legislature retains full authority to amend such Charters, and to enlarge or diminish the powers granted thereby.</p> <p>Legislatures cannot trammel the powers of their successors by passing irrepeatable laws.</p> <p>The proposition that, because a Legislature, in framing the Charter of a municipal corporation, lias authorized the creation of a certain debt, and has provided means for securing the payment of principal and interest thereof, it can, in the same act, destroy the power of future Legislatures to extend tho powers ol the corporation so as to enable it to contract other debts and provide ior their payment, is utterly untenable.</p> <p>The powers oi municipal government are simply a delegation of the powers of State government; and both are, in the same manner and to the same extent, subjects of legislative' control and discretion.</p> <p>The seventh section of said Act "No. 31 of 1876, prohibiting the levy of any tax to pay interest on any other bond than the “ Premium Bonds,’ and repealing all laws which directed the levy of taxes for such purpose, is palpably and baldly unconstitutional.</p> <p>But nothing is bettor settled than that the unconstitutionality of part of a statute does not necessarily invalidate the whole. The same statute, and even the same section of a statute, may contain unconstitutional provisions and also salutary and useful provisions* not obnoxious to any constitutional exceptions.</p> <p>Test of constitutionality of the law in such cases.</p> <p>The doctrine of estoppel is unquestionably subject to important restraints and qualifications in its application to public corporations; but such juridical persons are not emancipated: from those great duties imposed by the law of natural justice and honesty.</p> <p>A law unconstitutional because it impairs the obligation of contracts, is only null so far as-the rights of those persons are concerned, the obligations of whose contracts are thereby impaired. As to all other rights and all other persons, it is entitled to full force and effect.</p> <p>There are cases in which a law, though unconstitutional; must be sustained, because the party who makes objection, has, by prior action, precluded himself from being heard' against it.</p> <p>The principle is now well settled, that bonds issued by municipal corporations, in pursuance of legislative authority, and nogotiahle in form, have the qualities and incidents of negotiability, and that in the hands oí bona fide holders, they are not subject to equities as to ■ consideration or otherwise.</p> <p>5th. Articlo 209 of the Constitution of 1879, which limits the power of municipal taxation to' ten mills on the dollar, cannot affect the rights of antecedent contract creditors of the City of New Orleans. They are protected by the Constitution of the United States,, which forbids the States to pass laws impairing the obligation of contracts.</p> <p>Relator, as holder of “Premium Bonds” of Now Orleans, is entitled to the Writ of Mandamus to compel the City officers to perform their ministerial duty in levying, collecting and applying the special tax of five mills on the dollar, as provided for by Act No. 31 of 1876.</p>

^PPEAL from the Third District Court, parish of Orleans. Monroe„ A mandamus will lie to enforce the collection of a municipal tax, needed! to pay the obligations of a municipal corporation that were outstanding when a law or a constitution has been passed or adopted limiting the municipal taxation, as such limit prevents the levy and' collection of a tax in excess of the limit for the purposes of carrying-on the general government only, and does not refer to payment of…

<p>Although an Intervenor cannot retard the trial of a case, yet lie is entitled to the time necessary to have his Intervention served and pnfc at issue, before the case can be tried.</p>

First — \Injunctions without bond must be confined to the causes only set forth in C. P. 739. Second — If any other cause is alleged, there must be bond and security., or the averments will be disregarded, or the injunction dissolved, at. the option of Defendant. Third — Reconventional demands are not permissible under Art. C. P. 739L Fourth — Issues already adjudged between the parties should not be allowed to be plead under this article.

<p>A case involving more than $200, exclusive of interest, and less tlian $1,000, on appeal from the late Parisli Court of the Parish of Ouacliita, to the late Fourteenth Judicial District Court for the parish of Ouachita, at the time of the adoption of the Constitution of 1879, should he transferred as directed by Act No. 29 of the Legislature of 1880, to the Court of Appeal for the Second Circuit, the only Court in the State now having jurisdiction of such a cause, under the present Constitutional organization.</p> <p>The mode of trial of such oases shall be as provided for, in said Act No. 29 of the Legislature of 1880.</p> <p>The title of said Act No. 29 is, in no manner, repugnant to Article 29 of tiie Constitution of 1879.</p> <p>This Court will exercise its original power over all inferior Courts, as granted by Article 90 of the Constitution of 1879, to order the Couits of Appeal to try such cases.</p>

<p>APPEAL from the Eifth Judicial'District Court, parish of Richland. Richardson, J.</p>

<p>A mere clerical error in the Information, sucli as cash instead of case, cannot he considered a serious groundupon which to avoid the verdict of the jury.</p> <p>Objections to the manner of drawing a venire, must be made on the first day of the week for which the venire was drawn. Act No. 44 of 1877.</p> <p>Evidence of alleged misconduct ot the ¡sheriff and the jury cannot be examined and considered by this Court, unless embodied or attached to a Bill of Exceptions.</p>

Vaughan, Judge ad hoc. If, at the time of the sale, the contract was wanting in any of the requisites of a real sale, these defects cannot be cured or remedied by any subsequent verbal agreement or transaction between the parties. When the thing sold remains in the possession of the seller, the law raises the presumption of simulation; and the buyer must remove the presumption. 30 An. 968 ; 28 An. 357 ; 23 An. 666; 19 An. 53 ; 15 An. 555; 5 An. 99; 1 An, 132.

McClendon. Special Judge. The community of a previous marriage must be settled and the debts-paid before the widow of a subsequent marriage can claim the thousand dollars gratuity out of the property of the first community. 0. 0. 2402 ; 29 An. 583 ; 31 An. 495 ; 21 An. 520 ; 6 An. 441; 5 N. S. 568.

k PPEAL from the Eleventh Judicial District Court, parish of Union.. ¿3L Graham, J. First — One holding for another cannot plead prescription of any term of years against the demand of the owner for the thing so held. C. CL 3436. Second — -Action to rescind a.settlement on account of error or fraud is not prescribed by one year ; only ten years prescribe such an action. C. C. 2221 (2218); 2 A. 443.

Whitaker, J. First — The judge should limit Ms charge to giving the jury a knowledge of the law applicable to the case ; and when he undertakes to define a crime, he should use clear and intelligible language. -Second — It is irregular, and the example open to abuse, that the judge should warn the accused not to compel the court to pass so frequently on matters of evidence in the presence of the jury.

ARREAL from the Fourteenth Judicial District Court, parish of Oua-chita. Parsons, J. First — Citation is a sine qua non; the evidence thereof is the sheriffs original return filed in the Supreme Court. If the law permits the counsel of an appellee resident to waive citation, the original waiver must be filed in the same court. Courts cannot presume so vital a fact. 13 An. 620.

Smith, J. . First — That the act of mortgage bearing upon an incorporeal — an undivided interest in a plantation — bore upon a class of property not falling within the terms of the Homestead Act, and hence not subject to its provisions. Second — That any change in the disposition or nature of the property mortgaged is inoperative as to us, and that we have the legal right to enforce the contract according to its terms. 14 An. 47.

<p>An Indictment is defective for duplicity and uncertainty and will be quashed, when, in one and the same Count, the accused is charged with the two distinct offenses, defined respectively in sections 791 and 794 of the Revised Statutes, to wit: that of stabbing any person with intent to commit murder, and that of inflicting with a dangerous weapon a wound less than mayhem.</p>

<p>.APPLICATION for Writ of Prohibition.</p>

Trousdale, J. First — The present license law repeals all parts of-former license laws which provide for the seizure and sale of property to enforce payment of licenses. Second — There is no law now in force which authorizes such seizure and sale. Third — If there is such a law, article 210 of the Constitution prohibits such seizure and sale until the expiration of the year 1880.

<p>Acfe No. 7 of the Legislature of 1880, providing for the fixing of the first terms of the District Courts under the Constitution of 1879, construed as suspending, for those terms of Court che operation of that part of Act No. 44 of 1877, which required the drawing of the jury fifty days before the session of the Court.</p> <p>This Court cannot take cognizance of objections urged by the Appellant for the reversal of the verdict oí the jury and judgment of the Court below, unless those objections have been incorporated in a Bill of Exceptions,'which must be precise and explicit, and not to be aided by inferences, in default of which the presumption is that no error has been committed.</p>

F. P. Stubbs, Special Judge. The parties, by their Compromise, have novated the original debt, and the vendor’s privilege, which secured it, was not transferred to the new debt. Jacobs’ Law Dictionary, vol. 4, p. 279. C. C. 2189 et seq-Pothier, vol. 1, p. 438, No. 546 et seq. Domat, 2305. Plaintiff is entitled by law to his homestead. 28 An. 333.

Richardson, J. First — Section 12 of Art. 119 of 1880 violates par. 1 of sec. 2 of Art. 4 of the Federal Constitution, by abridging the privileges and immunities of the citizens of other States. Cooley on Taxation, p. 64 ; 4 'Wash. C. C. 371; 14 Ala. 627 ; 22 Ark. 556, 564; 11 Allen, 268 ; 12 Wall. 418; 27 Mo. 464 ; 14 Mo. 237.

Richardson, J. First — An administration is unnecessary when there are no debts.

<p>Permission given verbally to occupy immovable property during tbe lifetime of tbe donee ■without any rent or charge, does not confer any right of usufruct, use or habitation, but simply constitutes a tenancy at will, revocable at the pleasure of tbe owner.</p> <p>Oral evidence is admissible, in such a case, to prove the simple fact of the permission to occupy the property without rent, but not to establish any title to the property itself, whether of ownership or usufruct, use or habitation, derived from, or created by spelt permission.</p>

<p>The power of this Court, in passing upon questions of law, in criminal cases, to look into the-facts with which those questions of law are “blended, is fully discussed m this Opinion.</p> <p>This Court cannot take cognizance of the evidence upon which a Motion for a New Trial was-refus'ed by the Court a Qua, unless that evidence is embodied in a Bill of Exceptions.</p> <p>Hules laid down for the conduct of the District Courts, juries and'sherifis; in criminal cases-</p>

Graham, J. When a married woman dies, leaving at her death an undivided interest in community property in possession oí the surviving husband, and when at her death the community owes no debts, her heirs may sue in the District Court for their share of said community property as soon as the husband enters into a second marriage. 9 L. 580; 12 E. 266 ; 4 O. S. 653; 3 A. 562 ; 5 A. 381-2 ; 6 A. 295.

<p>Appeal bonne. from the Nineteenth Judicial District Court, parish of Terre-Goode, J.</p>

<p>Taluo and settlement of Counsel foes.</p>

Landry. Hudspeth, J. First — Defendant has the right to amend his answer, provided the application is made at the proper time, and the amended answer does not alter the substance of the original answer. ■Second — The plea of a want of consideration, in a suit on a promissory note, is not inconsistent with the general issue ; and defendant is at liberty to plead want of consideration, either by coupling it with the general denial, or by presenting it in an amended answer. 19…

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

<p>No entry and settlement, under the united States Homestead Act of the 20th of May 1862 oan be made of swamp lands previously donated to the State of Louisiana by the united States, when the lands have been examined, surveyed and listed and the Report of tb& Surveyors approved by the Secretary of the Interior, according to the laws of Congress.</p>

<p>APPEAL from the Twenty-First Judicial District Court, parish of St. Martin. Fontelieu, J.</p> <p>First — The original judgment declares (1) the existence of the debt; (2) fixes the amount; (3) and secures, in terms, to the creditor the means of enforcing its payment, according to the law in existence at-its final rendition.</p> <p>Bach vs. Foogood et al., 18 La. 416.</p> <p>(Justine vs. the Union Bank, 10 Rob. 418.</p> <p>Second — The State is bound to afford adequate process for the enforcement of rights ; and where an intention to hamper or embarrass proceedings to enforce the remedy, so as to destroy it and thus impair the contract, is apparent, the statute is void.</p> <p>Cooley’s Const. Lim. p. 286-289.</p> <p>Oatman vs. Bond, 15 "Wisconsin, 28.</p> <p>Hoffman vs. City of Quincy, 4 Wallace, 548.</p> <p>State ex rei. Strauss vs. Brown, 30 An. 82.</p> <p>State ex rei. Henry vs. the Mayor, 29 An. 865.</p> <p>Edwards vs. Kearsey, 96 U. S. 598.</p> <p>15 Howard, 304; 1 Howard, 311.</p> <p>Third- — The remedy subsisting in a State w'hen and where a contract is made and is to be performed is a part of its obligations, and aDy subsequent law 'of the State which so - affects the remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and void.</p> <p>Edwards vs. Kearsey, 96 U. S. 607.</p> <p>Fourth — The remedy for payment was special, and required to be made a part of the judgment; thereafter no law could affect any right of relator fixed by that judgment.</p> <p>Bevised Statutes, 2428.</p> <p>Pennsylvania vs. Belmont Bridge Co., 18 Howard, 431.</p> <p>Bemiss vs. Dwight, 3 An. 337-8.</p> <p>Authorities cited above.</p> <p>Fifth — The act of 1877, p. 88, repeals our only remedy, strikes at rights ascertained and fixed by the judgment of November 29th, 1873, and is, therefore, as to these, null and void.</p> <p>No parish tax for any purpose whatever shall exceed ten mills on the dollar of valuation. Const, of 1879, Art. 209.</p> <p>A remedial law may be repealed at any time, and from the date of such repeal no obligation can be enforced thereunder.</p> <p>A judgment ordering the levy and collection of a tax, which does not fix the time of collecting the same, is pro hac vice inoperative and of no effect.</p> <p>The levy of a tax based upon previous assessments is null and void.</p>

Landry. Hudspeth, J. A creditor of an estate, whose claim is liquidated, and who has obtained by order of court a rendition of account of the administrator, is entitled to an execution against the property of the administrator, upon failure of said administrator after the delay allowed by law to pay him the amount fixed by the judgment homologating the account. C. P. 993 and 1057 ; 13 An. 416 ; 18 An. 220.

Landry. Hudspeth, J. First — An administrator cannot ask for and prosecute an appeal from a judgment sustaining opposition to a claim recognized by him by being placed on tableau and opposed. It is the exclusive right of the person whose claim is rejected to appeal. Even if he were not a party to the judicial contest resulting in sustaining the opposition to his claim, he can appeal by making- allegation of being aggrieved.

PPEAL from the Parish Court, parish of St. Mary. Mente, J. To question or test the authority of the Mayor of Morgan City to enforce the police and sanitary ordinances, and the ordinances relative to private markets of said city, by way of injunction and a claim of damages, before a suit is instituted, is unwarranted in law.

Landry. Hudspeth, J. First — Any person having interest may ask the court to homologate the proceedings of a meeting of creditors held for the purpose of considering an application for a respite. Second — In petition praying for such homologation, opposition may be made to the right to vote of any of the persons who participated in the meeting. Third — All the parties in a concurso are plaintiffs and defendants. There is no citation required' to be made on any.

Landry. John JJ. Ogden, Judge ad hoc. A joinder of issue by default or general denial does not, in a petitory-action, admit the authority of plaintiff to sue. The probate court' of the parish where the deceased resided and had his-, domicile has exclusive jurisdiction of the opening and administration of his estate; and the opening of the succession in another-parish is an absolute nullity.

Fontelieu,J. A judgment dismissing a suit after trial on the merits is a definitive judgment, and is conclusive and final as between the parties; if rendered for matters not involving the merits, or if it be qualified and not absolute, it is not final. Such a judgment is presumed to be on the merits unless it be accompanied by words of qualification, such as “without prejudice,” or “in case of nonsuit.” 3 Wall. Oir.

Landry. Hudspeth, J. The best evidence, in all cases, must be produced, The Treasurer of a local Board of School Directors for the years 1870 and 1871 could only disburse the funds confided to him upon the-written official warrant of the President of the Board; and then only for the debts of the ward to which the funds were apportioned. Sec. 23 of Act No. 6, extra session of 1870, and par. 10 of said act.

APPEAL.from the Nineteenth Judicial District Court, parish of St. Mary. Goode, J. First — Where it is shown that minors have no available means, a purchase on credit by their tutor, though sanctioned by a family meeting, whose proceedings are duly homologated, will not bind them. 11 An. 247 ; 5 Rob. 287 ; 4 An. 85. Second — A tutor is without authority, by a confession of judgment for and in the name of his wards, to give any force to a transaction not authorized by law.

Martin. Fontelieu, J. First — The court will of its own motion dismiss an appeal for want of pecuniary interest in the appellant. 28 A. pp. 89 and 90. Second — The interest which entitles a party to an appeal must be a real existing interest in a particular cause, and not a conjectural one, contingent on the happening of an uncertain event. The State ex rel. A. Agusti vs. J. D. Houston, sheriff, 30 A. 1174; Arrowsmith vs. Bappelge et al. 19 A. 327.

Hudspeth, J. Prescription — ■ The prescription of two years (Act No. 101, Legislature 1873,) specially applies to purchasers of real estate sold in satisfaction of judgment for State, parish; or municipal taxes, and who had judicial possession of such real estate for two years preceding the passage of the act. It cures only informalities, not absolute nullities.

<p>Under the laws, 'which mate it the duty of the City Council of New Orleans to turn oyer to the Board of Liquidation of the City Debt, all the property, real and personal, of the City, to be by said Board sold or disposed of, and the proceeds applied to the payment of the City Debt, — the City Council cannot sell or grant the right of way through any of its streets to a Railroad Company, unless it is for a consideration in Cash or otherwise, which can be realized, and turned over to the Board of Liquidation and by them applied to the payment of the City Debt.</p> <p>The power of granting this right of way or franchise, is inherent in the City itself and not susceptible of transmission to the Board of Liquidation; but when the power lias been exercised hy the City, the result of it, the franchise, then becomes property in the legal sense of the word, and the price, consideration or proceeds of the same should, under the statutes, be transferred to the Board of Liquidation.</p>

<p>An amendment alleging a want or failure of consideration, cannot be allowed, after tbe general issue. Stare decisis.</p> <p>A second amended Answer pleading Compensation,' should, be allowed to be filed, if the debts pleaded in compensation, are described with sufficient precision.</p> <p>A stipulation by the maker of a note, that he will pay such Counsel fees as is customary, in case of legal proceedings, etc., is not an unconditionalfobligation to pay a specific sum of money, which deprives him of his right to a trial by jury.</p>

JZaclcer, J. A municipal corporation can impose no tax on any occupation, unless authorized to do so by its charter. 29 An. 261; Cooley’s Const. Limit. 193 and 387 ; 29 An. 261.

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

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

<p>Under Article 81 of tlie Constitution of 1879, this Court will dismiss the Appeal when the real amount in dispute, exclusive of interest, is less than $1,000, as shown hy the Becord, though the Plaintiff's Petition claims more than that sum.</p>

<p>The acts of a judge adhoc, appointed under the law which provides for such appointments, are valid and binding, like those of other defacto officers; and the qualifications of snob a judge ad hoc cannot be enquired into collaterally.</p>

Landry. Hudspeth, J. The value of property seized under execution, the sale of which is enjoined by a third person claiming to be the owner, and not the amount of the writ, determines the right to appeal. Hennen’s Digest, p. 19, No. 18. The jurisdiction of the Supreme Court must be apparent from the pleadings. 25 An. 286.

<p>APPEALS from the Fourth District Court for the parish of' Orleans, Houston. J.; and from the Fifth District Court for the parish of Orleans, Rogers, J.</p> <p>By the 6th section of Act 87 of 1876, the Governor is authorized to appoint the members of the Board of Flour Inspectors of the City and Port of New Orleans, without requiring the advice and consent of the Senate.</p> <p>That section of the act is not void for repugnancy to article 114 of the Constitution of 1868, which required that every law should express its object or objects in its title. The title of the actaffords a reasonable clue to the subject matter of the section, which is germane to the subjects referred to in the title of the act.</p> <p>The Court will not declare an act of the Legislature void, unless its re-pugnancy to the Constitution is clear beyond all reasonable doubt.</p> <p>Under the Constitution of 1868, the defendants held their offices for a term of four years, from January, 1877, but when that Constitution was superseded by the Constitution of 1879, they ceased to hold the offices for. any term of years, but continued to hold office by virtue of articles 259 and 260 of the schedule of the Constitution of 1879, at the will of the Governor to be elected under that Constitution.</p> <p>When an office is not held for a term of years or during good behavior, it is held at the will of the appointing power, and the incumbent may be removed at any time.</p> <p>First — The defendants having been regularly commissioned and qualified under the Constitution of 1868, hold over until their successors are duly nominated by the Governor and appointed by and with the advice and consent of the Senate. Constitution, articles 161, 259.</p> <p>Second — The plaintiffs are not to be considered as appointed until their nomination by the Governor is confirmed by the Senate. Baum-bach vs. Dubuc, 9 An. 237.</p> <p>Third — Where an office is filled during the recess of the Senate by an incumbent holding over in consequence of an expiration of term which took place before the meeting of the General Assembly, the office is not vacant, and the Governor cannot create a vacancy by a recess appointment.</p> <p>Fourth — These propositions are settled by the case of Baumbach vs. Dubuc, 9 An. 237, which case is, under the principles announced by your Honors in Wilson vs. Wiltz, to be adhered to under the rule of stare decisis.</p> <p>Fifth — The pleadings and proof do not justify the charge that the defendants were removed for cause by the Executive.</p> <p>Sixth — If they do, the power to remove is no longer an executive, but a judicial, function. Constitution, articles 196 to 201 inclusive.</p> <p>Seventh — There is no conflict between section 1 of Act No. 71, extra session of 1870, and the 6th section of Act No. 87 of 1876 ; they are laws in pari materice, and must be construed together.</p> <p>Eighth — If there be a conflict, the 6th section of the act of 1876 is unconstitutional, its object not being expressed in the title of the act. Constitution of 1868, article 114 ; Walker vs. Caldwell, 4 A. 298.</p> <p>Ninth — Applying for an appointment does not estop the defendants.</p>

<p>This Court has no original jurisdiction of the question of eligibility of the judicial officers of the State, under Article 171 of the Constitution of 1879. That jurisdiction, as granted in Article 200, only applies to the removal of such officers and for such causes as are defined in Article 196 of the same Constitution.</p>

On Motion to Dismiss. APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J. Plaintiff has not acquiesced in the judgment; his acts were conservatory only.

Taylor, J. First — The contract between Blackwell-and Herold, whether a nominate or innominate contract, is a valid obligation. 12 A. 125-6, 531. It-was an executed contract on the part of Blackwell, and the crop was-completely vested in Herold, so that the vendor could not reclaim it; though, on the part of Herold, it was partly executed and partly executory and conditional. Story on Contracts, Secs. 236, 246 ; C. C. 2456,2021; 23 A. 405 ; C. C. 488,489,494.

Taijlor, J. First — The presence of the under tutor is indispensable at a family meeting, and a family meeting held without his presence and advice is illegal and void. R. C. C. 276; 6 N. S. 454 Commaux vs. Baibin, 10 La. top pg. 574; Stafford ux vs. Villair ei al. 941; Tutorship of Bates.

Taylor, J. First — The homologation of the proceedings of . a family meeting involving the interests of minors, will be set aside on appeal, when it appears that the lower court, at the date of the homologation, had no evidence before it going to show whether the recommendation of the family meeting would injure or benefit the minors. 32 A. 97, Succession of Henry J. Forstall.

ÁPPEÁL from the First Judicial District Court, parish of Caddo. Taylor, J. First — “ The compromise fell the moment the obligor refused to perform the conditions.” 23 A. 712, Barrett vs. Hord. Second — The defendant cannot be permitted to enjoy the fruits of the compromise, and al the same time repudiate the corresponding obligations imposed on him by it. 23 A. 784, Stewart vs. Haas.

First — Admissions in the answer relieve plaintiff from proving his demand, and throw on defendant the onus of establishing his defense. So the pleas of payment, novation, dr compensation, admit the existence of the debt, whose continuance will be presumed, and plaintiff will have judgment, unless defendant make good his plea. 3 N. S. 273 ; 12 L. 397 ; lá L. 372 ; 48 L. 6 ; 14 A. 54.

Taylor, J. First — This case was remanded by the Supreme Court in order to enable the parties to ascertain, according to law, what was the residuary interest of Mrs. Williams in the community existing between her and B. F. Hollingsworth, deceased. 82 A. 162. Second — Plaintiff, the assignee of Mrs. Williams, then sued the executors of Hollingsworth for an account, in order to determine the residuary interest of the widow in community.

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

<p>j^PPLICATION for Writ of Mandamus.</p>

I PPEAL from the Eighteenth Judicial District Court, parish of Bos-xjl sier. Turner, J. First — Laws in pari materia should be construed together in order to ascertain the meaning of the Legislature. R. C. C. 17 ; Succession of Herbert, 5 A. 121; Gayle vs. Williams, 7 L. 466; Rouamt vs. Hunt, 17 L. 407 ; Phelps vs. Riglitor, 9 R. 531.

Taylor, J. - First — The claim of defendant in rule is not liquidated, and therefore cannot compensate that oí plaintiff, which is certain and admitted. 0. C. 2209; 9 A. 189. Second — Plaintiff claims a deposit entrusted to defendant by a confidential contract, and compensation is not permissible. 0. 0. 2956 ; 1 M. 847 ; 3 A. 514: 7 A. 53 ; 12 A. 257 ; 6 A. 40, 207.

<p>APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.</p> <p>The law does not require a vain or impossible thing.” 22 A. 33.</p> <p>•“ When the letter of the law leads to an absurd conclusion, the judge is bound to recede from it until he arrives at a reasonable conclusion.” 16 L. 268.</p> <p>Sec. 7 of Act 45, Ex. Ses. 1870, applies to cases arising under the writs of mandamus and quo warranto, and the act to prevent intrusion into office, and not .to contested election cases. 12 A. 825, 13 A. 175, 21 A. 289.</p> <p>The order of appeal is the act of the judge, and a mistake of a return day made by him can not be visited upon the appellant.” 31 A. 596.</p> <p>The plurality of votes legally cast elects the -candidate. The legal returns are the best evidence of the vote cast, but when lost or destroyed, or not made out, the evidence of those who held the election and those who witnessed or assisted in the count is good evidence to establish the result of the election.</p>

A PPEAL from the Second Judicial District Court, parish of Bossier. Drew, J. First — No suit shall be instituted against any surety on any appeal bond, nor on the bond of any administrator, tutor, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal. R. C. C., 3066 ; Acts of 1842, p. 303.

PPEAL from the First Judicial District Court, parish of Caddo. Taylor, J. The common law method of proceedings in the prosecution of crimes, offenses and misdemeanors has been adopted in this State, unless otherwise provided, and must be pursued step by step, or the law’s penalty cannot be imposed. R. S. 976; 1 Bishop on Crim. Pro. Secs. 80, 93.

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

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

A PPEAL from the First Judicial District .lx Taylor, J. Court, parish of Caddo. First — The plaintiff having sued and recovered judgment against the defendant for part of an entire demand, in order to give jurisdiction to the parish court, lost the amount sued for in this case. C. P. 91,156 ; 2 R. 207 ; 22 A. 492 ; 25 A. 228-4.

Taylor, J. First — A sale has no effect against third parties, until recorded in the parish where the property is situated. Knowledge is not equivalent to registry. 21 A. 426 ; 26 A. B84 ; 29 A. 315 ; 28 A. 375. Second — An unregistered private act, though with possession, has no effect against tona fide purchasers without notice. The vendee’s laches, in not registering his title, descend to those who claim under him.

A PPEAL from the Second Judicial District Court, parish of Bossier. £X Drew, J. First — The unconstitutionality of an act of the Legislature will not be declared by courts, unless it is manifestly so. Second — Art. 29 of the Constitution is not violated, when the bill includes legislation of cognate matters, and does not embrace subjects diverse in their nature. Cooley’s Constitutional Limitations, 142.

<p>Pending the Appeal from the judgment sentencing him to hard labor in the penitentiary for larceny, the accused escaped from jail:</p> <p>Held that, -whilst a fugitive from justice, he cannot he represented by Counsel in this Court to prosecute his Appeal, and that the said Appeal will be dismissed if the accused has not returned to tho custody of the law within a time fixed by the Court.</p>

<p>The Minutes of tho court may very properly ho corrected by interlineations, at the reading of them in open court and before their approval.</p> <p>It will be presumed that the Grand Jury came into court in a body and presented the Bill of Indictment in open court, when it is endorsed “ A true Bill,” and signed by the foreman, and the entry in the Minutes shows that “thereupon the Court ordered the finding of tho Bill to be recorded, etc.” The rule omnia rite acta applies. State vs. Onnmacht, 10 An. 108, affirmed.</p> <p>The endorsement of the Bill needs not specify the offense charged in the Indictment. Previous Decisions affirmed.</p>

PPEAL from the Second Judicial District Court, parish of Bossier.. Brew, J. First — In an indictment, ownership cannot in terms be laid in the estate of a person deceased, but it may be in the administrator by name. Bishop on O. P. vol. II, 3d ed., sec. 725 ; Archbold’s O. P. 10th ed., vol. II, sec. 357 ; Wharton’s O. L. vol. II, 1837 ; State vs. Woodley, 25 Ga. 235Cole vs. Com. 5 Grattan, 696.

<p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Boorman, J.</p> <p>First — The proceeding by way of mandamus is the proper one for the relief sought. High on Extraordinary Remedies, sections 139, 324, 369, 382, 392; Cooley on Taxation, pp. 524, 525 ; Dillon on Municipal Bonds, sections 24, 25 ; Dillon on Municipal Corporations, sections 685, 687,688, 690 ; C. P. 829, ét seq.</p> <p>Second — The bonds were issued by authority of an enabling act of the Legislature. Act No. 96 of the Sessipn Acts of 1872 (found upon page 12 of Acts of 1872); also Acts of 1876, pp. 34 and 124.</p> <p>Third — They were issued for one of the purposes mentioned in the enabling acts, and by authority of the police jury acting under said acts.</p> <p>Fourth — The provision of means for payment of the interest and principal, as contemplated by the statute, has been regularly made, and the parish has recognized the validity of the bonds every year, from the date of their issuance down to and including 1879, by annually paying the interest on them and part of the principal. She is now estopped from disputing their validity. Bigelow on Estoppel, pp. 584, 466 ; Daniels on Negotiable Instruments, p. 475, section 1545, and p. 476, section 1546 ; 5 Wall, 781.</p> <p>Fifth — The parish, through its police juries, has ratified, and confirmed, through a series of years, this issuance of bonds ; and the right to issue bonds being a corporate power of the parish, ratification can take place, and is equal to previous authority delegated to its agents for the purpose. Angel & Ames, section 304; Dillon on Municipal Bonds, section 23; Dillon on Municipal Corporations, sections 383, 384, 385, 375, 91; 2 Kent. 291; Story on Agency, section 52; R. C. C. 2272 (second clause); City of New Orleans vs. Southern Bank, 31 A. 565 ; 29 A. 581; 28 A. 258 ; 26 A. 636 ; 25 A. 356 ; 12 A. 15 ; 4 A. 440 ;</p> <p>5 Hill (N. Y.) R. 137 ; 8 Ohio St. 401; 34 Ill. 421.</p> <p>Sixth — Relator, not being an original holder of the bonds, and being a bona fide holder for value before maturity and without notice, is unaffected by the defences urged against the bonds. Daniels on Negotiable Instruments, vol. 1, section 812; Dillon on Municipal Bonds, section 7, p. 15 ; also note to section 8, p. 18 and authorities there cited; Dillon on Municipal Corporations, vol. 1, p. 508, section 416; also section 905, et seq.; Bigelow on Estoppel, p. 364 ; Central Law Journal for January, 1880, p. 72.</p> <p>First — Where an act of the Legislature authorizes the police jury of a parish to issue the bonds of the parish for certain purposes, the police jury must specially authorize the issue of the bonds, and in default of this action of the police jury, all bonds issued under color of said legislative act are invalid. 30 A. 287 ; 29 A. 590,</p> <p>Second — -Police juries have no power to contract debts or pecuniary liabilities without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debts so contracted. Revised Statutes, sec. 2786 ; 23 A. 191,232,251; 24 A. 457 ; 26 A. 59.</p> <p>Third — Political corporations are not bound by the unauthorized acts of their agents, when the mandates of the latter are of record or embodied in a statute. 29 A. 590.</p>

<p>Plaintiff having made part of his Petition a Record which shows a judgment against him and in favor of Defendant, for a larger sum than Plaintiff’s claim, the Exception of hTo cause of action was well taken and should be sustained, as Compensation takes place by the simple operation of the law.</p> <p>One judgment compensates another though the original obligations upon which they are rendered were not compensable.</p>

Taylor, J. A married woman, whether separated in community from her husband or not, is bound by contracts, the execution of which rendered her separate property more valuable and productive, whether for advances, improvements or labor. First' — He who alleges agency must prove it, in order to recover on a contract made with the alleged agent. 30 A. 493.

<p>The furnisher of materials used in repairing a building has no privilege, if the evidence of his oontraet has not been recorded. The recording of notes, given in payment of the ma - terials after they have been furnished, -will not answer the purpose of the law.</p> <p>$Tor is the furnisher entitled to his privilege, if he allows the building and the lot of ground to be sold without a separate appraisement.</p> <p>The Attorney of absent heirs is entitled to compensation with the privilege of a law charge, if his services have been beneficial to the succession.</p>

<p>An administratrix who changes her domicil is still bound to account to the Court oi her former domicil, where the succession has been opened.</p> <p>But a tutrix who has changed her domicil, canuot he called to account to the Court of her former domicil, which has appointed her, and can only b e sued before the Court of her new domicil, even for the purpose of rendering her tutorship account. This has become a rule of property whioh this Court will not reverse.</p> <p>An administratrix cannot sue the succession she represents, and, therefore, prescription will not run against her on her claims against the succession, as long as she is administratrix.</p>

<p>A Mandamus will lie to compel a District Judge to sign a Bill of Exceptions when presented in proper form.</p> <p>"Whatever may he the intent of a party in court, whose objection to evidence is overruled, and whatever may be the supposed effect of the testimony admitted, such party has a right to take a bill of exceptions, and it is the duty of the judge to grant it.</p> <p>Requisites of Bills of Exceptions.</p>

<p>when Plaintiff's Petition states that a certain document is thereto annexed and made part thereof, and in point of fact, the document has not heen annexed to the Petition or tiled, on Defendant’s exception to the cause of action or sufficiency of the Petition, the document should not he considered as forming part of the latter.</p> <p>The rents of seized property belong to the seizing creditor from the moment of seizure, aud he has an action against the tenant to recover them, which is not suspended during the delay resulting from either the usual proceedings to effect the sale, or a contest over the proceeds after the sale is made.</p>

<p>APPEAL from the Eirst Judicial District Court, parish of Caddo. A. D. Land, J., ad, hoc.</p>

<p>This Court cannot take cognizance of the evidence upon -which the accused was denied a new trial hy the Court a qua, unless that evidence is embodied in a Bill of exceptions. State vs. Nelson, 32 An. 842, affirmed.</p> <p>A previous conviction for a similar offense should not be charged in the Indictment ,• but, after verdict and before sentence to the double penalty under Section 974, Rev. Sta., the prisoner must be allowed to show cause, if any he has, why the increased punishment should not be inflicted by the Court on account of the previous conviction.</p>

<p>Partial insanity does not render a person legally incapable of making a •will.</p> <p>Even persons subject to complete insanity, if tbey have lucid intervals, may make a valid will during those intervals.</p> <p>The test of tlie law on the subject is, whether, at the moment of making his will, the testator was of sufficiently sound mind to fully understand the nature of the testamentary act and appreciate its effects.</p> <p>"When the will was made by the testator himself, unaided by others, and its provisions and expressions are sage and judicious, containing nothing “sounding to folly,” it will be pre sumed, even in the case of a person habitually insane, that it was made during a lucid interval j and the burden of proof will be on those who attack it, to show insanity at the moment when it was made.</p> <p>English, French and American authorities reviewed.</p>

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

<p>^PPEAL from the First Justice’s Court, parish of Orleans. Childress,</p>

<p>An Appeal shall not be dismissed because documents offered, but not vntroduced in evidence by the Appellee, have not been transcribed in the Hecord.</p> <p>The late Second. District Court for the Parish of Orleans had jurisdiction of probate causes in which the amount in dispute exceeded five hundred dollars. The limitation to that amount applied, under the then existing laws, only to the parish courts in the country parishes.</p> <p>The principal and surety should be sued, when legally practicable, in the same action.</p>

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

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

Blackman, J. First — Dying declarations are matters of fact, over which this Court has no jurisdiction. Second — An exception to the ruling of the Court will not prevail where the accused'has suffered no injury thereby. Third — Malice is presumed from willful killing.

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

<p>The -writ of Prohibition only issues against a court •which acts without jurisdiction or authority.</p> <p>A Certiorari should not be granted when there exists a remedy by Appeal.</p>

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

Hawkins, J. First — The dejure officer, though prevented by the officer defacto from performing the duties, is, nevertheless, entitled to the salary of the office. Second. — The City of New Orleans, which elects a person to fill an office, knowing that another person has been lawfully appointed by the Governor, is liable to the officer de jure for the salary of the office.

<p>The temporary and voluntary ahsonoe of the accused from Court; during some of the unimportant proceedings of the trial, especially as no injury therefrom is urged, is no sufficient ground to reverse the judgment rendered against him.</p> <p>Th* following charge to the jury, viz: “In cases where threats and hostile acts are proven, the jury may also oonsider the general character of the deceased. The fact, however, that the deoeased was a man of dangerous character does not justify the hilling, but only enables the jury to pass on the danger of the attack,” is too restrictive as to the effect to be given to the testimony and may mislead the jury, and, therefore, invalidates the verdict.</p> <p>This charge being in writing and embodied in the Record, and involving a question of law, can be revised by this Court on an assigment of errors, although, no Bill of exceptions was taken to the same.</p> <p>A juror stating on his voir dire, that he has formed a fixed opinion in re'gard to the guilt or ' innocence of the accused, but that said opinion would yield to testimony showing the facts to be different from what he heard, ia an incompetent juror.</p>

<p>It is nob necessary that tlie Petition of a married -woman, seeking the judicial authority to mortgage her property, or the Certificate of the judge issued thereon, should contain a description of the property to be mortgaged.</p> <p>A married woman who, in the absence of her husband, has sought and obtained the sanction of the judge, under articles 127 and 123 of the Code, to borrow money and mortgage he r property, does not need the farther authorization of her husband.</p> <p>'iThe law protects the weakness of women, not their* dishonesty. When a married woman has used fraudulent means to obtain a loan of money, she is estopped from pleadingjher incapacity, and she forfeits the benefit of the legal presumption that her contract enured to the advantage of her husband.</p>

<p>'There having heen a partnership betweon Plaintiff and Defendant, no specific indebtedness resulting therefrom, can be claimed by the former. The only action he can maintain, is one for the settlement of the partnership affairs.</p>

i PPEAL from the Eourfch District Court, parish of Orleans, Houston, J.. On appeal from a judgment making absolute a rule to traverse the-answers of a garnishee, which traverse is limited to the question of right of the garnishee to retain certain stock in its hands, the stock constitutes the matter in dispute, and if it is not shown to be worth more than one thousand dollars, the Supreme Court has no jurisdiction.

Lynch, j: Eirst — A proceeding by rule to be placed in possession of property alleged to have been purchased under Act 47 of 1873, at a tax-sale, is not authorized by law. The party applying must proceed by petition and citation. Second — In a tax-sale every formality of law must be complied with under pain of nullity.

\ PPEAL from the Third District Court, parish of Orleans. Monroe, J. The Court a qua, after hearing, determined the solvency of the surety. A commercial firm is competent to become sureties where the partners consent, and the person signing the bond is always bound and is a good surety.

^PPEAL from the Oivil District Court, parish of Orleans. Tissot,. Eirst — The effect of an attachment is to divest the possession, not the-ownership, of the debtor. As to the creditor, the only effect is to give him a privilege on the property attached, with right to be paid-by preference from its proceeds. 9 Rob. 375, Tyler’s case. Second — Partnership property cannot be seized for the individual debir of one of the partners. 21 An. 518 ; 27 An. 556 ; 11 R. 130 ; 3 An. 319.

<p>Plaintiff in injunction, claiming as Ms own, property under seizure, not having in his Petition alleged the source of his title, Defendant has the right to show, without having pleaded fraud and simulation, that the title is fraudulent and simulated.</p> <p>The purchaser who leaves the property purchased in the hands of the vendor, must, when the same is seized by the creditors of the latter, show by clear proof that the sale is real, in order to destroy the presumption of simulation.</p>

<p>APPEAL from the Sixth Judicial District Court, parish of West Carroll. Brigham, J.</p>

j^PPEAL from the Fifth District Court, parish of Orleans. Bogers, J. First — A valid assessment is the basis of taxation. Second — Act No. 12 of 1875 conferred no authority on the Board of Assessors to make assessments for years prior to the passage of that act. Third — The assessment of the property of defendant, being upon a different basis from that of any other property in the State, of the same class, is not a lawful assessment.

<p>When a Judgment of Separation d mensd et thoro has been granted to one of the spouses, the other spouse is not, because a year has elapsed and no reconciliation taken place, entitled to a Judgment of Divorce.</p> <p>Such legal right belongs exclusively to the party in whose favor the Judgment of Separation is rendered.</p>

<p>The accused cannot object to going on trial, for want of liis witnesses, without presenting the proper affidavit.</p> <p>The absence of jurors who have been summoned, when the panel can be completed from those present, is no legal reason for not trying the case.</p> <p>A lack of sufficient understanding or intelligence is a legal cause for the discharge of a juror.</p>

A PPEAL from the Sixth District Court, parish of Orleans. Bightor, J. first — Intervenors cannot deny the jurisdiction of the court into which they have voluntarily come. 19 L. 165 ; 8 Rob. 123 ; 30 A. 754. Second — Neither can they urge the insufficiency of the affidavit on which the writ of provisional seizure issued. 21 A. 118; 27 A. 240. Third — The plea to the jurisdiction ratione persones should have been made in limine and before the defendant answered to the merits.

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

<p>^PPEAL from the Fourth District Court, parish of Orleans. Campbell,</p> <p>First — A double dwelling house, stable, cistern and outstanding buildings, whether they have their foundations in the soil or not, are declared immovable by Art. 464 O. 0. They constitute a part of the immovable, and cannot be sold separately. 21 A. 324 ; 12 A. 227; 23 A. 749 ; 25 A. 436 ; 26 A 349 ; 2 A. 451.</p> <p>Second — The plaintiff does not pretend that he made or constructed the improvement, or that they were made or constructed out of his materials, but sets up that he bought them of a third person. Under no circumstances can he pretend to have the right to remove the improvements, as asked for in the petition.</p>

<p>REPLICATION to bring an original action of Nullity of Judgment.</p>

<p>Appeal from a judgment for $25, amount of a License tax.</p> <p>Tliis Court only lias jurisdiction in such, cases, when the constitutionality or legality of the tax ie in contestation.</p> <p>Defendant and Appellant has not hy his Answer or otherwise put at issue the constitutionality or legality of the tax complained of.</p> <p>This Court is, therefore, without jurisdiction.</p> <p>^Furthermore, the City ordinance imposing the tax is not in evidence ,• had this Court jurisdiction, it could not review the judgment appealed from.</p>

Whitaker, J. It is too late, after accepting a juror and after judgment, to move for a new trial on the ground of the incompetency of a juror. A new trial should be granted where a bill of exceptions establishes the truth *oi the iaet that on a trial ior murder, in the parish oí Orleans, the names of the talesmen were drawn from the jury wheel by an unauthorized stranger and not by the sheriff or his deputy, as the order of the judge and the law required.

^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J. First — There is no privity of interest, quoad seized property, between a sheriff and his successor in office, and the plaintiffs allegation of liability for the loss of such property by neglect, against the former sheriff, is inconsistent with a similar charge quoad the same property against the latter.

^PPEAL from the Sixth District Court, parish of Orleans. Mghtor, First — An order of appeal is an essential formality, in the absence of which an appeal must be dismissed. C. P. Art. 574 ; 6 N. S. 323 ; 2 A. 752, 902 ; 5 A. 666 ; 9 A. 158 ; 22 A. 373 ; 2 A. 628 ; 20 A. 193 ; 24 A. 276 ; 23 A. 543.

j^PPEAL from tlie Sixth District Court, parish of Orleans. Bightor, J. A debtor who has made a composition with his creditors under the Bankrupt Law of the United States, and failed to comply with its terms, can be sued in a State court, and compelled to pay the entire debt of the creditor whose share of the composition has not been paid.

EPEAL from the Sixth District Court, parish of Orleans. Mglitor, J. First — Suit for a final divorce upon a judgment of separation from bed and board, will be maintained where it is shown that there has been no reconciliation since date of judgment, and one year has-expired from date of rendition, nor is it necessary to aver or prove an effort for reconciliation. Second — Art. 138 C. C. is not repealed by Sec. 2, of Act No. 122, of 1877.

Toist, J. First — In the absence of the District Attorney, the District Attorney pro tempore is authorized and required to discharge and perform the duties required by law of the District Attorney. R. S. 1074 and 1075, Second — -The accused cannot object that a.copy of the indictment was not served upon him after going to trial. 4 A. 379.

<p>.An action for damages resulting from a provisional seizure of furniture in a suit for rent, (in which it was decided that, the rent sued for, had been paid), needs not contain the allegation of malice or want of probable cause.</p> <p>'Such an action is not based upon the suit for rent but upon the wrongful use of the writ of provisional seizure.</p> <p>This writ having been set aside by a court of last resort it is prima facie established that said writ had been wrongfully issued and that damage was inflicted on the party whose property was seized.</p> <p>‘This party is entitled only to the actual damage suffered by him, directly from the seizure oi his furniture.</p> <p>But for the want of care taken of the furniture whilst in charge of the constable, this officer is liable and not the plaintiff in provisional seizure,</p>

^PPLICATION for Writ of Prohibition. First — A writ of prohibition may be granted by the Supreme Court to prevent a District Judge from taking cognizance of a suit involving issues pending before the United States Circuit Court (5 R. 27), and also before a District Judge of co-ordinate powers, who had previously acquired jurisdiction over the parties and the subject-matter of the controversy. O. P., arts. 94 and 335.

^PPEAL from the Civil District Court, parish of Orleans. Houston, First — The Act No. 93, of 1880, is in violation .of the Constitution, Articles 29, 44, 48, 56. Second — Taxpayers and creditors have the right to invoke the unconstitutionality of an act when the carrying out of its provisions injures them pecuniarily. Third — Where suit is brought to prevent the doing' of an illegal act by officers of the State, they alone are necessary parties defendant.

Hahn, J. First — To determine whether an appeal will lie from an order dissolving an injunction on bond, under article 307 C. P., the Court is compelled to consider whether the order be erroneous ; if it be, the appeal lies. .'Second — The order allowing the inj unction in this case to be set aside on bond was erroneous : First. Because plaintiff had alleged and sworn that the act prohibited would work it irreparable injury. Second.

i PPEAL from the Third District Court, parish of Orleans. Monroe, J. First — When admissible to contradict her judicial admissions and notarial allegations, the simple oral denial by a married woman of their truth is not sufficient to destroy these admissions and allegations. 25 An. 597 Second — Money resulting from a wife’s mortgage of her paraphernal property may be given by her to her husband without invalidating that mortgage, because: 1st. He can lawfully administer it.

Houston J. First — The laws in force when the Constitution of 1879 was adopted, provided for a municipal election in the city of New Orleans on the Tuesday after the first Monday of November, 1880. (See Acts 1870, Extra Sessions, p. 31, Sec. 4 ; Acts 1871, p. 145 ; Acts 1877, p. 89, Sec. 2). 'Second — The Constitution continues in force all laws not inconsistent with it.

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

j^PPEAL from the Second District Court, parish of Orleans. Tissot, J. First — Proof is admissible to show the improper character of the tutor oí the minors as a reason for the testator keeping the possession of the property from his control. Second — The testator has a right to have the whole of his property retained in the hands of his executors, provided the revenues are delivered to his minor heirs.

<p>Relator, having refused to answer a question propounded to him by the grand jury, was brought to the bar of the Criminal District Court of the Parish of Orleans and there ordered by the Court to answer the question, which he stillrefused to do; whereupon he was committed for contempt.</p> <p>He applies for a writ of Certiorari and asks that this Court, in the exercise of its constitutional supervisory power, should review said proceedings and declare them null and void.</p> <p>XTeld that the writ of Certiorari is limited to cases where it appears, on the face of the record, that the proceedings complained of are absolutely null. In the case at bar, the record shows no irregularity in the proceedings, and it is not understood that any such charge is preferred against them. The application must be refused.</p>

<p>The power of this Court to issue writs of Habeas Corpus is confined to cases -within its appellate jurisdiction.</p> <p>Its authority, in this respect, is not extended by the terms of Article 90 of the Constitution beyond the special restriction contained in Article 89.</p> <p>The fact that the case in which the contempt of court has been committed, is appealable, does not render the proceeding for contempt appealable. Case of "Wood, 30 An., 672, affirmed.</p>

Pierson, J. First — A new trial should not be granted on the ground of newly discovered evidence, when such evidence goes to the impeachment of a witness, and not to the merits of the case. 1 Archbold, 178. Second — The minutes in a criminal case may b'e amended and corrected, when done contradictorily with the accused. 81 A. 387.

PPEAL from' the Second District Court, parish of Orleans. Tissot, J. The liquidation of a deceased partner’s interest was a matter cognizable before the Second District Court for the Parish of Orleans. The surviving partner has no absolute right to administer the effects of the partnership and wind up its affairs ex parte unless the succession is vacant and all the heirs are absent and not represented.

<p>APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.</p> <p>Where the order of the lower court involves the final disposition of a legal proceeding, it works an irreparable injury, and an appeal lies.</p> <p>Where the interlocutory order puts the appellant in a condition from which he cannot be relieved by the final decree, he is entitled to an appeal.</p> <p>Where the interlocutory order has the effect of restraining a writ of seizure and sale in another suit, and defeats the seizure and sale, it is an irreparable injury, and the final judgment cannot place the plaintiff in the seizure and sale where he was when restrained.</p> <p>Any order rendered in one suit, which stops or controls another suit, has the effect of a final judgment, and inflicts an irreparable injury which can be relieved by an appeal.</p>

<p>Relator applies to tins Court for a writ of Habeas Corpus on the ground that she is illegally imprisoned hy order of the Eighth Justice of the Peace of the Parish of Orleans, whilst there is now no such magistrate in existence, said office having been abolished by the Constitution of 1879.</p> <p>Held that the court of the Eighth Justice of the Peace of the Parish of Orleans, as a police-court, was not interfered with by the present Constitution and is still in force, subject to the future action of the Legislature, as provided for in Article 136 of said Constitution.</p>

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

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

<p>1. So far as the object of a suit is to ascertain tlio nature and effect of the judgment of a certain court and to regulate the extent to -which that judgment should ho held entitled to receive execution, -j^he court itself -which rendered the judgment, is the only one which can entertain jurisdiction of the action.</p> <p>2. Causes affecting the execution of a judgment and requiring a limitation or restraint of that execution, when those causes have arisen after rendition of the final decree of this Court, are cognizable by the lower court.</p> <p>3. The plea of lies judicata cannot be opposed to an action of which the very object is the interpretation and regulation of the judgment pleaded in bar.</p>

<p>APPEAL from the Fifth District Court, parish of Orleans. Bogersr J.</p> <p>Pirst — Prescription does not run duriDg the existence of a pledge.</p> <p>Second — Act 109, of the Acts of 1854, made a perpetual pledge of the stock of the railroad company, subscribed for by the City of New Orleans, in favor of each and every holder of the bonds issued in pursuance of the provisions of said Act, and the ordinance of the Common Council of said city, approved April 7th, 1854, and subsequently ratified by the duly qualified voters of said city, on the 21st da'y of April, 1854, and consequently prescription cannot, and did not, run against said bonds.</p> <p>Third — The action of the City of New Orleans in issuing the bonds sued on, secured as they were by the law which authorized their issuance, and acting as owner of the stock of the railroad company, estope her from denying that the stock was pledged to meet the redemption of the bonds.</p> <p>Fourth — The bonds themselves state on their face that the railroad stock stands forever pledged to secure their redemption. On the faith of which statement the bonds found a money market, and, therefore, the city is again estopped from denying the existence of the pledge.</p> <p>Fifth — Act No. 53, of 1874, postponed the maturity of the bonds sued on until December, 1876, from which time, therefore, prescription should be calculated.</p> <p>Sixth — The prohibition to issue a ft. fa. against the city (Act 1870, No. 5), and to mandamus (under Act 1874, No. 53), makes applicable the rule “ Contra non valentem, non currit prescription</p> <p>Seventh — The bonds sued on were acknowledged by semi-annual statements of the city, within the time required for prescription, and prescription was thereby interrupted.</p> <p>Eighth — The payment by the city of interest coupons to the holder of the bonds sued on, less than five years before the institution of this suit, interrupted prescription on the several bonds of which these coupons formed a part.</p> <p>First — A statutory pledge of stock in a railroad corporation, made to secure the payment of certain bonds, issued by a municipal corporation in payment of its subscription to said stock, where the pledgee never has any possession or control of the stock so pledged, does not interrupt prescription on the bonds.</p> <p>Second — It is not the contract of pledge which tacitly interrupts prescription, but the actual possession by the creditor and pledgee of the thing pledged.</p> <p>Third — The Act No. 53, of 1874, applies on its face and by its terms only to those classes of bonds for which sinking funds had been provided by law. No sinking fund was ever provided to pay the railroad bonds.</p> <p>Fourth — The maxim contra non valentón has no application, because Act No. 5, of 1870, did not hinder, delay, or obstruct the bringing of an action on the bonds.</p> <p>Fifth — The reports of the Department of Public Accounts are mere statements of the fact of the issuance and outstanding of certain bonds, and are not acknowledgments of the right of the bondholders.</p> <p>C. C. Art. 3520 ; 1 An. 343 ; 13 An. 579.</p> <p>Sixth — Where a bond and coupon both fall due on the same day, and the coupon is subsequently presented for payment, severed from the bond, and is paid, such payment is no acknowledgment of -the right of the holder of the bond ; and this, for the reason that the coupon and the bond, though physically attached, and though originating contemporaneously from the same contract, are separate and independent instruments, the one representing the capital of the debt, and the other representing the interest, capitalized by anticipation. The coupon has lost its character as mere interest, and has become a principal debt, itself bearing interest from maturity. 21 How. 539 ; 1 Wall. 175 ; 9 Id. 477; 20 Id. 583 ; 92 U. S. 502; 96 IT. S. 62, 631; 98 U. S. 473 ; 32 Md. 501.</p>

<p>This Court has the power, under Article 90 of the Constitution, in its sound discretion, to issue a writ of Certiorari to revise the proceedings of a District Court, in cases where no Appeal lies and where serious injury roiglit accrue for want of other legal remedies.</p> <p>Each judge of the Civil District Court of the Parish of Orleans exercises, in the cases allotted to him, all the powers of the court.</p> <p>Recognition of the great constitutional law that “ no person shall he deprived of life, liberty, or property, without due process of law”</p> <p>Contempt of Court is of two hinds: that which is committed in open court, and that which is committed out of the view and hearing of the court. Por tlie punishment of the first hy commitment and fine, no proceeding needs he talcon contradictorily -with the offender.</p> <p>But for the punishment of the latter by the same means, the offender must he granted a Buie to show cause and he allowed, to offer evidence and argument in his defense.</p> <p>Note of the Reporter. — The following Decisions were omitted by error from their proper place in this volume, and are reported here for that reason. The first case, viz: Widow Y. M. Benavis vs. Jose Barba and Sheriff, was decided in New Orleans, in May, 1880. The others were all decided at Opelou-sas, in July, 1880.</p>

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

<p>APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.</p> <p>The surviving spouse in community, who claims the usufruct of the share of the community which would belong to the heirs of the deceased spouse, is bound to give security under the provisions of the article 558 C. 0., in all cases, except when said surviving spouse has the legal usufruct in virtue of the article 223 C. C., or is the natural tutor or tutrix of the said heirs.</p>

<p>In criminal cases, tlie jury cannot leave a sealed verdict -with, tlie clerk during tlie adjournment of tlie court and thereupon be permitted to separate. The verdict rendered under such circumstances, Trill be set aside. The provisions of the Code of Practice relative - " to jury trials have no application to criminal cases.</p>

<p>A PPEAL from the Thirteenth Judicial District Court, parish of St. .Landry. Hudspeth, J.</p>

<p>A provisional Injunction having "been granted by the lower court to prevent the execution of a judgment for money, and, on the Rule nisi} such provisional Injunction being dissolved, a suspensive Appeal will lie from the dissolving order and will stay the execution of the judgment for money.</p>

<p>APPEAL from the Second Justice’s Court, Second Ward, parish of St. Landry. Poiret, J.</p> <p>The Legislature alone can create new crimes, and can alone provide for their punishment criminally. Municipal corporations cannot, as this is a branch of the sovereign power not delegated to them.</p> <p>Ordinances of municipal corporations must not conflict with either the-Constitution or laws of the State; and in so far as they do so conflict, they are null and void.</p> <p>Imprisonment for debt was abolished in this State by statute.</p> <p>The Constitution of 1879 provides: “Art. 5. There shall be neither slavery nor involuntary servitude in this State, otherwise than for the, punishment of crime, whereof the party shall be duly convicted.” * * *</p> <p>" Art. 9. Excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual pnnishments inflicted.” * * *</p>

<p>A party, who has signed as surety the note of a planting partnership subscribed by its agent, is estopped from denying either the existence of the partnership or the authority of the agent.</p> <p>Mere inaction on the part of the creditor does not discharge the surety.</p>

Mary. Goocle, J. First — To preserve vendor’s liens as against third persons, the public record must contain on its face a substantial description and identification of the the thing affected. The words “ for balance due on a sugar mill and machinery ” is not a sufficient identification. Second — If there be no lien as between the seizing creditor and the seized debtor, a mill and machinery attached to land cannot be seized and sold separately from the land.

Mary. Goode, J. A minor grandchild of a deceased person cannot be said to be in necessitous circumstances when the father of the child is living, robust, and with a good trade, and supports and educates the child. All homestead grants and exemptions being in derogation of common rights, must be strictly construed.

A PPEAL from Twenty-Fifth Judicial District Court, parish of Yer-IX million. Mouton, J. First — A real tender is unnecessary when the offer to pay is peremptorily refused. Second — A want of tender set up in limine litis against a suit for the nullity of a tax sale should not be maintained, if the amount is not apparent or made to appear.

<p>APPEAL from the First Justice’s Court, parish of St. Martin. DeBlancr J. P.</p> <p>A municipal corporation, owning improved wharves and other artificial .means, which it has provided and maintains at its own cost, for the-benefit of those engaged in commerce on the public navigable waters of the United States, is'not prohibited by the National Constitution from charging and collecting from those who use its wharves and other facilities, such reasonable fees as will fairly remunerate it.</p> <p>The sum that is thus charged and exacted by cities and towns is in no-just sense a tax or license, but only a contribution or fee for the privilege of using those facilities, and a remuneration of the advantages derived therefrom.</p> <p>A tax or license is equal and uniform when it applies to all under the same circumstances, making no exceptions, and operates uniformly on the class to which it applies.</p> <p>First — Corporations can make no improvements on river banks within their limits, nor collect dues or any charge whatever, unless especially authorized by the legislative branch of the government.</p> <p>■Second — They cannot charge wharfage and other dues, unless it be for an equivalent.</p> <p>Third — When they have authority to impose licenses or levy taxes, they cannot disregard every principle of uniformity and equality.</p>

A PPEAL from the Nineteenth Judicial District Court, parish of St. Mary. Goode, J. First — Where one proceeds via exeouiiva under a mortgage with the pact de non alienando against property in the hands of a third possessor, the latter can urge no defense that the mortgagor could not. Louque’s Digest, p. 442, No. 11. Second — The mortgage is indivisible, and clings to each and every portion of the mortgaged property. 0. 0. 3282.

Landry. Hudspeth,'J. First — A benificiary heir is required, after judgment against him, to show that the estate which he inherits is less than the amount claimed of him. Second — After assets to sufficient amount to discharge the claim are shown to belong to estate inherited by him, the burden is on him to .show liabilities of the estate.