Volume 33 — Louisiana Annual Reports

Tissol, J. The words “It is my will and desire that my estate be distributed among my legal heirs, ■ according to the laws now in force in Louisiana,” used by the testator in his act of last will, are clearly disposable words in favor of his heirs, in this case, his' children j and the will must be held to be a testamentary disposition, in their favor, of his estate.

Houston, J. When defendants attached the property of plaintiffs, on a just claim, and the attachment was set aside, and the seizure is shown to have been merely nominal, and no damages are proved to have been suffered by defendants, and plaintiffs acted without malice and with probable cause, no damages can be recovered. In no event can vindictive or exemplary damages be recovered, when defendants acted without malice and with probable cause.

^PPEAL from the Third District Court, parish of Orleans. Monroe, First — A foreign insurance company which causes its policies to be put in circulation within the municipal limits, taking risks and deriving profit from among the community, obtains thereby all the advantages and performs all the necessary acts within those boundaries , usual to the insurance business of companies domiciled in the city, and is, hence, doing an insurance business in the place.

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

<p>A party who has sanctioned the proceedings he complained of, cannot have the same avoided through a writ of Certiorari. C. F, art. 864.</p>

k BPEAL from the Third District Court, parish of Orleans. Monroe, A J. Pirst — The liability of the surety on the official bond of the sheriff is not fiduciary, and totally different from that of the sheriff, which arises from the law and independently of the bond. Bev. Statutes, Sec. 3538; C. C. Art. 3035; Troplong, du Cautionnement. Ed. de Paris, 1846, Tome XVTE, Ho. 51, p. 59. '•Second — Liability on bondmust be strictly construed; Troplong, du Cautionnment, p. 135 ; XT.

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

<p>' The Petition for a Mandamus must be sworn to, as required by Art, 840, C. P., and the omission of the Petitioner’s oath cannot be subsequently cured by means of a suppemental Petition.</p>

<p>Repeated applications for further time liad been, made by Appellant, supported by the Certificate of the Clerk of the lower Court, that it was necessary to complete the Transcript of Appeal; and the additional time asked for, was granted by tbis Court j wben Appellee showed by the Certificate of the Clerk of the lower Court, that the Record to he transcribed, was in the hands of Appellant’s Counsel all the time that application was being made for further delay. Appellee moved, in making this showing, that the order for further delay be rescinded and the Appeal dismissed.</p> <p>Held that the order should be rescinded, but, as there is no Transcript and, therefore, no Appeal before this Court, there is none to dismiss.</p>

<p>ÁÍPPEAL from the Second Judicial District Court, parish of Plaque-mines. Tar dee, J.</p>

<p>A Motion in arrest of judgment should Tie denied when made on flie ground, that the charge to the jury was given orally hy the judge after Counsel for the accused requested it should he in writing, though the request was withdrawn before the charge was given, and though the judge had announced his readiness to grant the request.</p>

.A.PPEAL from the First City Court of New Orleans. Skinner, J. Art. 206 has no retroactive effect; its terms are of the future. It does not affect licenses imposed prior to the Constitution going into effect, January 1st, 1880. The licenses sued for were imposed prior to January 1st, 1880, in obedience to a number of mandatory and unambiguous special laws governing the City of Mew Orleans. Acts of 1870, Ex.

k PPEAL from the Fifth District Court, parish of Orleans. Rogers, il J. A contract between a commercialfirm of cotton factors and a cotton planter, for the advancing- and furnishing of supplies for a plantation in the alluvial country, must be held to contemplate and embrace the usual contingencies of flood and drouth.

^PPEAL from the Fifth District Court, parish of Orleans. Rogers, It is the opinion entertained of the factor’s personal skill and integrity that induces the principal to patronize him. Bussell on Factors, §§ 36, 40 and 44. The factor cannot induce a consignment and apply the proceeds to other than the purposes agreed to. 2 An., 26. The relation between factor and principal is not the ordinary relation of debtor and creditor.

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

■^PPEAL from the Sixth District Court, parish of Orleans. Hightor, 1.The president of a corporation has tho right to employ an attorney at law without tho authorization of the Board of Directors. 2. ,In a suit on a contract and quantum meruit, evidence is admissible to prove the quantum meruit, and to show that -the plaintiff is entitled to recover independently of the contract. 3.

<p>The claim of the City of New Orleans on an alleged judgment in personam for drainage taxes, against aperson whose succession wae opened in the Second District Court for the Parish of Orleans, was properly before said Court for recognition, classification and payment by the Executors.</p> <p>Such a judgment is only prescriptible by ten years from iis rendition. -</p> <p>Under the Constitution of 1868, several objects might be contemplated in a statute, but each objectmust have been expressed in its title.</p> <p>Laws in derogation of common right must be strictly construed and not extended beyond their precise terms.</p> <p>Of this character are those laws which are designed to substitute a summary mode, of procedure to the ordinary rules of practice.</p> <p>Act No. 30 of the Legislature of 1871 could not constitutionally, under the title of “An Act to provide for the drainage of New-Orleaans," provide for the creation of a new drainage District and still less for the institution of extraordinary proceedings to coeroe payment of drainage taxes. The title of that Act was not indicative of such and other objects of the statute.</p> <p>Judgments obtained by the summary proceedings provided for. in that law, are'null and void.</p> <p>When a testator, after bequeating by his will a certain claim against his debtor, exchanges with the latter the original evidence of the debt for his bond or other evidences of indebtedness, the legacy is not revoked by implication, nnder the Code of Louisiana.</p> <p>The practice tolerated by this Court, in view of expediting business and lessening costs, of considering as part of the Transoript of Appeal, records of other cases filed in this Court, inust be exercised with discretion and within reasonable limits. "When, therefore, other Transcripts are intended, by agreement of Counsel, to be used in this way, as part of the liecord of the case at bar, reference must be made to the title and number of said other Transcripts, and the attention of this Court must be called to them, or it will not treat them as part of the evidence before it j and the defect shall not be remedied on application for a rehearing.</p> <p>Constitutions are to be interpreted in the same manner and according to the same rules as Statutes.</p>

Tissot, J. First — Bv former laws municipal taxes, of the City of New Orleans, were “ due and payable ” from and after certain fixed dates: theywere “exigible” only from and after certain fixed, subsequent dates. Act of 1870, Ex. Sess., Ho. 7, p. 39, sections 18, 21; Act of 1871, Ho. 48, p. 147, section 9; Act of 1874, Ho. 41, p. 78.

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

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

<p>This is a suit for $154, brought in the late Parish Court of the Parish of Iberville; judgment was rendered for said amount and an Appeal taken to the late Piftb Judicial District Court; after the adoption of the Constitution of 1879, the case was transferred to the 23rd Judicial District Court for the Parish of Iberville, organized under said Constitution.</p> <p>Relator asks that the 23rd Judicial District Court, being without appellate jurisdiction in the matter, be ordered to dismiss the Appeal and issue execution on the judgment.</p> <p>-Held that, under a proper interpretation and understanding of the provisions of the Constitution of 1879, the case is to be tried de novo by the 23rd Judicial District Court.</p>

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

<p>A party who bases his right to an Injunction on Article 303, C. 3?., must show, either that he has a right of property in the thing, or that the act sought to he enjoined, would, if done, give hini a right to damages.</p>

A PPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J. First — In the action under the intrusion and usurpation law the State is, at times, the sole plaintiff, and always the plaintiff. The injured person, although his name must be joined to the proceeding, may not be a party j but, when made a party, he is so incidentally and secondarily.

Rogers, J. Hirst — That tlie property acquired by a public or quasi public corporation, by donation or other absolute title, does not belong to tbe State which created tbe corporation. Therefore, that tbe cotton press and yard acquired by tbe Charity Hospital from tbe heirs of Stephen Henderson, and by partition with several institutions, never was and is not now tbe property of tbe State of Louisiana.

<p>An extension of time of thirty days being granted by this Court, to file the Transcript oi Appeal, the Appellant on the day after the thirtieth day of the extension allowed, applied for additional time: held that the application is too late, and the Appeal should be dismissed.</p>

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

<p>A Motion in this Court, before the case is on trial, to strike out of the Transcript of Appeal documents alleged to have never been offered in evidence, is without precedent and will not be entertained.</p> <p>Having obtained judgment from the District Court against the Board of Liquidation, declaring certain State bonds and warrants legal, and ordering the funding of them, under Act Ho. 3 of 1874, and the judgment of the District Court not being appealed from, the [Relator applied for a Mandamus to compel the Board of Liquidation to fund said bonds and warrants and issue in their stead the Consolidated Bonds provided for by law.</p> <p>¿Held that, under Act Ho. 11 of 1875, the Board of Liquidation is to fund bonds or warrants, the legality of which is questioned, only alter said bonds or warrants have been declared legal and valid by the Supreme Court j and, therefore, the judgment of the District Court, though final, is not, under the special provision of said law, binding upon the Board of Liquidation.</p> <p>'The [Relator himself, though the judgment of the District Court was in his favor, had the right to bring said judgment up for review by this Court, to meet the express and special requirement of the Statute.</p>

Mónroe, J. First — That the transcript of appeal was filed, too late, no days of grace being allowed after an extension of the return-day. Cane vs. Caldwell & Kahn, 28 A. 790; Beckmver vs. Eckelman, decided in May, 1879, by this Honorable Court, but not reported — Opinion Book No. 53, f. 193. '■Seoond — That in order to obtain a second extension of time, the appellant must apply to the oourt on or before the last day.

Where the effect of an order dissolving an inj auction is to deprive the owner of land, or one claiming to be owner, of its possession, pendente lite, the order is appealable from. 11 An. 59; 14 An; 847; Ifr. 57; 22 An. 512; 24 An. 154; 30 An. 970; O. P. 307

<p>APPEAL from the Third Judicial District Court, parish of Union. Graham, J.</p> <p>First — It is not necessary to make a separate conclusion in eaok oase in a single count in an indictment. Bishop on Crim. Procedure, vol. 2, p. 5; note.</p> <p>Second — When the information commences with the words “in the name and by the authority of the State of Louisiana/’ etc., all acts and charges therein contained are in the name and by the authority of the State of Louisiana.</p> <p>Third — The inscription on an indictment does not affect the accusation contained in the body of the instrument. 12 A. 743.</p> <p>Fourth — The testimony of an accomplice need not be corroborated to give the jury the power to find a verdict of guilty. The jury are the sole judges of the evidence. Greenleaf, vol. I, sec. 280; 25 A. 522; 1 Denio, 86; Wharton, vol. 1, sec. 763; 2 Barb, 216; 1 IN'. Y. 379.</p> <p>Fifth — The accused waived those rights which are created in his interest and for his benefit, when he proceeds to trial without objecting. 6 A. 690; 12 A. 679; 14 A. 667.</p> <p>First — A party already indicted for a felony is not a competent witness to testify for the State, against an accomplice in said felony, when it appears that the party sought to he introduced as a witness, is the principal offender. Greenleaf, 1st vol. § 379; Starkie, 1st vol. § 379.</p> <p>Second — In prosecutions for the crime of beiDg accessory before the fact of a felony, the principal in said felony is not a competent witness against the accessory, for the reason that the said principal is necessarily guilty in order that there should be an accessory to his crime, and being necessarily guilty under the law of a felony, he is bound to be infamous, and, therefore, incompetent as a witness. Greenleaf, 1st vol. § 372.</p> <p>Third — When a party is being tried for tbe crime of being accessory before the fact of burglary and grand larceny, and the principal who committed said crime is permitted to testify against the accessory, it is the duty of the presiding judge in his charge to advise the jury not to convict the defendant upon the testimony of the principal alone, and that il they believed that there was no evidence introduced on the trial corroborating the testimony of said principal, they ought not to convict upon his evidence alone. Greenleaf, 1st vol. § 380; Starkie, 1st vol. § 380; Wharton, 1st Vol. § 789.</p> <p>Fourth — When a party is on trial for being accessory before the fact of burglary and grand larceny, evidence is inadmissible to show that the accused bad committed the crime of burglary, or that the accused was present aiding and abettiDg the principal in the commission of said offense.</p> <p>Fifth — An accused charged with being accessory before tbe fact of burglary and grand larceny, is entitled to have a copy of the indictment against him and a list of the jury summoned to try him served upon him two entire days before his trial, unless he waives that right. B. S. Sec. 992; 3 A. 51.</p> <p>Sixth — In indictments against accessories before the fact, the charge against the principal should ho as full, complete and explicit, as if the principal alone was concerned and upon trial. Bishop on Crim. Procedure, vol. 2, § 8.</p>

<p>This Court will dismiss the Appeal ax officio when there is no copy of the judgment appealed’ from, in tbe Transcript.</p> <p>"When tbe Appellant goes to trial on an insufficient Transcript, without suggesting a diminution of tbe record, and the Appeal is, therefore, dismissed, be shall not be permitted,, after tbe judgment of dismissal, to complete tbe Transcript.</p> <p>A rehearing will not be granted in such a case.</p> <p>Tbe right of parties before this Court, under agreement of Counsel, to supply tbe deficiency of tbe Transcript, must be exercised before and possibly during submission, but surely not after judgment•</p>

^PPEAL from the Sixth District Court, parish of Orleans. Bightor, Tlrst — The law does nob favor forfeitures, but leans strenuously towards holding insulano* companies to the payment of legitimate losses. ¡Second — “ When notice of loss is required to be giran forthwith, or at once, these terms are not to be construed with absolute strictness, so as to require a literal compliance, but, reasonably, in view of tbe loss, and the circumstances surrounding it.

First — The First City Court is without jurisdiction to evict a tenant from leased premises, or to entertain a suit for the posséssion of an immovable. Art. 135 Con. of 1879. ^Second — There is no privity of estate or contract between the sheriff who seizes under a fieri facias and the tenant whom he finds in posession, and, consequently, no relation of landlord and tenant.

<p>A judgment of the late Parish Court of the Parish of St. Mary, passing upon the constitutionality of a certain municipal ordinance of Morgan City, was appealed from directly to this Court and the Appeal dismissed on legal grounds. The present Eelator then obtained an Appeal from the said original judgment of the Parish Court to the Court of Appeals of the Pifth Circuit, which.also dismissed that Appeal. This is an application for a Mandamus to oompel the latter Court to try the case. Held that the dismissal of the Appeal by this Court rendered the judgment of the Parish Court final.</p>

Brigham, J. First — Where the record shows the prisoner to be in court during the trial, and that the trial of the case was proceeded with, and a verdict rendered on the day of trial, it will be presumed that the prisoner was in court at the time of the rendering of the verdict. And such presumption will stand until disproved. 33 111. 276.

^PPEAL from the Sixth District Court, parish of Orleans. Bightor,. Yirst — The streets are the common property of all citizens and theiruse by railway companies must be such as not to unnecessarily endanger those who are exercising only a legal right in using them. Barks&ul vs. H. O. & C. R. R. Co., 23 A. 182; Shea vs. 6th Av. R. R Co.r 62 H. Y. 180; Shea vs. Protero R. R. Co., 44 Cal. 414; 66h Av.

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

<p>APPEAL from tbe Fourth District Court, parish of Orleans. Houston, J.</p> <p>We submit the following propositions:</p> <p>Dirst — The evidence is that Mrs. Jackson made two payments, one of $8500 in 1869, and one of $9000 in 1872, besides interest upon the house in controversy; and that those p ayments were made out of her own money.</p> <p>Second — That the evidence is that she retained the administration and control of her own funds. *</p> <p>Third — That a married woman can purchase property partly on credit, provided her means and circumstances justify the investment. Lehman, Hewgass & Co. vs. Mrs. Barrow, et nx., 23 A. 183; Jordan & Co. vs. Mrs. Anderson, 29 A. 749 ; Terell vs. Cutrer, 1R. 367 j Stroud vs.‘Humble, 2 A. 930; Dyson vs. Phelps, 14 A. 733; Succession of Pinard vs. Holton, 30 A. 167; Metcalf vs. Clark, 8 A. 286.</p> <p>Rourfh — That the evidence is that Mrs. Jackson’s circumstances are such as to justify her purchase.</p> <p>■Wife may, during the existence of the community, purchase on credit for investment of paraphernal funds, if she has at her disposal property reasonably sufficient to enable her to make the acquisition.</p> <p>First — Pleadings cannot he amended during the trial.</p> <p>Second — Petition foriDjunction should not he amended, unless an affidavit be made to the allegations and causes necessitating the amendment.</p> <p>Third — Aitera cause is taken under advisement, evidence should not be received.</p> <p>Fourth — 3$To part of the purchase price of the property was ever paid out of Mrs. Jackson’s money. The cash payment by Mrs. Jackson, and the credit payments were made by mortgaging the same property, and but one of the mortgages has been paid, viz., that for §5000, and this was paid by the sale of part of the property purchased.</p>

<p>A mortgage is not negotiable like the note it is intended to secure, but, on the contrary, passes into the hands of the transferree subject to all the equities and defenses which existed between the original mortgageor and mortgagee.</p> <p>The Defendant in this case is the accommodation endorser of the note of a married woman, authorized by her husband. The holder did not have it presented and protested at maturity. Plaintiff charges that Defendant is liable both as surety and as endorser, and in the latter capacity though the note was not presented and protested. Defendant pleads she is not a surety and has been discharged as endorser for want of demand and protest. JEEeld that, under the circumstances of the case, Defandant is liable as endorser, although the note was not demanded and protested. Pull exposition of the law governing the case; like this, of the endorsement of a note for which the maker is primarily not liable.</p>

Diret — The judgment of an inferior court upon any question which such court has jurisdictional competency to hear and determine, cannot be set aside by the Supreme Court by writ of mandamus.

<p>APPEAL irom the Ninth Judicial District Court, parish of Tensas. Hough, J. '</p>

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

<p>APPEAL from the Fifth District Court, parish of Orleans. Sogers, J.</p> <p>■Public officers become personally responsible to third persons on contracts made for a city, when the city, retaining the advantages of the said contract, avoids payment through the said officers, on plea of want of authority to make such contract.</p> <p>It is apparently useful and not illegal for the City of New Orleans to contract for the recording of judgments. This is not changed by the fact that the liens arising from taxes are otherwise recorded.</p> <p>-Administrators and Mayor of New Orleans cannot be held in damages for error of judgment in voting for or approving an ordinance.</p> <p>For official acts in the apparent and presumed discharge of their duty, city officers are not personally responsible.</p> <p>fie who voluntarily contracts with a city is bound to consider its powers, and cannot hold its offioers for mutual error.</p> <p>It is the duty of the City Attorney to present all legal grounds of defense in suits against the City. The Mayor and Administrators cannot control or restrain him from so doing.</p> <p>Members of a City Council cannot be sued jointly or in solido for their votes on a question.</p> <p>For official acts there is no joint or solidary liability, unless conspiracy, malice or fraud be alleged.</p> <p>‘The responsibility of City Officers lor acts ultra vires is prescribed by one year.</p> <p>"Where an agent is duly constituted and names his principal and contracts in his name, the principal is responsible and not the agent.</p> <p>He who contracts to do one thing and does another and different thing without authority cannot recover on his contract.</p> <p>‘The recording of certified copies of tax.judgments, when contracted for, requires a fulfillment according to its terms.</p>

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

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

<p>In default of proper evidence in the Record, to show the value of the services of the notary, of* the Counsel of the syndic and of the Attorney of absent creditors, in the-Estate of an Insolvent, this Court will not disturb the judgment of the District Judge, which has fixed the respective amounts due for such services.</p> <p>Thesyndic may, in behalf of the mass of creditors, question the validity of the claims set up-by certain creditors in opposition to his Account and Tableau of Distribution.</p> <p>The charge of undue preference may be madQ by opposition, in the concurto of creditors, and. needs not necessarily be made by means of the revocatory action.</p> <p>The prescription of one year to the action inavoidance of a fraudulent confession of judgment,. only begins to run from the time that knowledge of said confession is brought home to the-party injured thereby.</p> <p>The rule of law in revocatory actions, that only such creditors can attack the validity of an act giving an undue preference, whose claims were in existence at the time of the illegal/ act, does not apply to a contest for the classification of claims in a concurso under insolvent proceedings.</p> <p>The law does not prohibit a creditor, who pays an actual and effective value at the moment of' the contract, from obtaining a privilege or security, because he has reasons to suspect the * inability of bis debtor to pay all bis debts.</p> <p>Nor does the law forbid a creditor holding such security to obtain the privilege by seizure,. provided for in Art. 722 of the Code of Practice.</p>

<p>APPEAL from the Tenth Judicial District Court, parish of Red River. Logan, J.</p> <p>Pirst — This proceeding by rule is not a proper one in which to test the nullity of the bond, for the reason that all the creditors of Lisso & Scheen are not made parties — Christopher Chaffe, Jr., definitive syndic, only represents those who are legally bound by the cession.</p> <p>Second — The attachment bond was made payable to. the clerk of the District Court for the use of all parties in interest, or concerned, and is conditioned for the payment of all damages that shall be sustained by Lisso & Scheen or any other party interested; and the cession of Lisso & Scheen did not destroy the right of action on the bond, but transferred all right of action on it to the insolvency proceedings and concurso, except so far as the non-resident creditors holding debts not affected thereby are concerned.</p> <p>Third — That a trial of plaintiffs’ rule contradictorily with the definitive syndic and the executors of the surety, in this collateral way, would not form res judicata, particularly with regard to non-resident creditors holding debts unaffected by the cession.</p> <p>Fourth — There is neither evidence nor pleading in the record on which the court could base a judgment upon the quantum, of damage vel non.</p> <p>Fifth — The recourse of those creditors of Lisso & Scheen, who are bound by the cession, upon Christopher Chaffe ¿Trjs bond as definitive syndic, for any failure to properly defend this cause, is not exclusive of other remedies.</p> <p>¿Sixth — The abandonment by the interveners of all claim to damage on account of the illegal seizure of their property does not preclude like claims by other persons.</p>

^PPEAL from the Sixth District Court, parish of Orleans. Saucier, Any alienation or encumbrance of property mortgaged with the pact of non-alienation, is void and of no effect, as against the mortgagee. The third holder of such property is not a third possessor, nor entitled to the rights of one.

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

<p>^PPEAL from the Civil District Court, parish of Orleans. Tissot,</p> <p>¿First — It is elementary tliat no action lies to enjoin the mere passage of an ordinance by a municipal corporation. Such an ordinance can do no injury, in a legal sense, much less any irreparable injury.</p> <p>^Second — The petition at bar present a case where the plaintiffs are undertaking illegally to interfere with municipal legislation and administration in a matter peculiarly within the province oí the City Council, under the powers delegated to it by the Legislature of the State. A railway is an improved public highway. ¿Tones on Railroad Securities, sections 99, 159, 227, 228, and cases cited; 30 An. 987; 19 Wall. 666, The law gives the defendant company the right to pass through streets. Acts 1876, p. 31. The question as to methods under this grant, if any further consent be required, rests with the Common Council. The streets are public things, the title being in the public, or in the city for public use. 4 Martin, 97; 1 An. 128; Dillon Munc. Corp., sections 514, 555, 556; 13 La. 326. And the right of the Legislature and the city to prescribe methods of using the streets, whether by floats, timber-wheels, processions, funerals, or oars is undoubted. 26 An. 529 ; Dillon, sections 555, 556, and Dotes; 21 Pa. State, 169.</p>

<p>’ The Register of Conveyances of the Parish of Orleans is "by lawbound to furnish to the Board of Assessors a monthly statement and certificate of all conveyances recorded in his office, ■without requiring stamps or making any charge therefor,</p>

<p>APPEAL from the Twenty-Second Judicial District Court, parish of St. James. Cheevérs, J.</p>

Monroe, J. First — The office of Branch Pilot of the port of New Orleans is a State office, and has no duties connected with the parochial affairs of any parish. Second — The duties of a Branch Pilot of the port of New Orleans are to be performed afloat ; the office is aquatic, of a marine character; its duties are all performed on water, and are not such as to enforce any domicil on land as the situs of performance.

1 PPEALfrom the Seventh Judicial District Oourt, parish of Franklin. Elam, J. Eirst — A continuance should have been granted by the District Court, the accused having shown that he had not time and opportunity to pi epare for his trial. That, owing to the prejudice existing in the public mind against him, his chances for a fair and impartial trial, at the present term of the Court, would be impaired.

^PPEAL from the Eourth District Court, parish of Orleans. Houston, First — An adjudication in bankruptcy dissolves attacbments of the debtor’s property made witbin four months, and vests the property in the assignee. U. S. Bev. Stat. Sec. 5044; Bump, pp. 473, 495, 497,130, 131, 202, 502. Second — A copy duly certified of the assignment is conclusive evidence of the assignee’s right to sue. U. S. Bev. Stat. 5049 ; Bump, pp. 537, 538.

<p>APPEAL from the Thirteenth Judicial District Court, parish of St. - Landry. Martel, Judge ad hoc.</p>

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

Rogers, J. Plaintiff claims that defendants are indebted to bim under a written contract oí guaranty. Defendants “aver that the same was made without any consideration whatever.” First — Plaintiff replies, that in all contracts a just cause or consideration is presumed until the contrary be proven. 1 Hennen, 496. No. 12, 2 Hennen, 1006. No. 75, 5 Marcadé, p. 2 to 6. 1 Larombiere, p. 275. No. 9.

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

Ascension. Cheevers, J. First — A suspensive appeal will not lie from an original order granting a writ of injunction. 29 An. 869; 3 Hob. 437. Second — The State of Louisiana is not a party to this suit, lias not intervened therein, and is without interest.

Knoblock, J. First — Ellis, by answering to Gay’s suit for slander of title, by setting up title to Secs. 92, 340, and 150 of T. 15, S. R. 16 E, changed the suit into a petitory action, in which he became plaintiff, and he must succeed or fail on the strength of his own title. 27 An. 307 j Bidwell vs. Caveroc, 18 La. 103 j 5 R 22 j 24 An. 511.

Luzenberg, J. First — Act No 42 of the State of Louisiana, passed in the year 1871, under which this prosecution is based, is unconstitutional, because it does not express its objects in its title. Second — That if said act be declared constitutional, it is not applicable to accused, hence, any conviction under said act is null and void.

<p>This Court will not use its supervisory power, under Article 90 of the Constitution, by th« writ of Oertiorari, to investigate whether or not, an inferior Court, in an u n appealable case has decided correctly, when it has acted within the limits of its ■jurisdiction and in proceedings apparently legal.</p>

Tissot, J. I. the taxpayer; and that obligation maybe enforced in any ordinary legal proceeding, notwithstanding the law has provided a summary method for a collection of the tax. II. Act 77 of the year 1880. (a) Unconstitutional: Because, 1. The object of the law is not disclosed in its title. % The act embraces more than one object. 3. It is retroactive in its operation. 4. It divests vested rights. in. Provision in Act 77, relative to a Tax-Collector’s sale. 1.

Houah, J. First — The Supreme Court cannot revise arefusal to grant a continuance. A decision thereon-involves a question of fact. State vs. Wilson, 23 An. 559. Second — Tlie time allowed counsel appointed by tbe court to defend the accused to prepare-his defense is regulated by the judge a quo. State vs. Ferris, 16 An. 425.

<p>In a proceeding under the Intrusion into office law, at the instance and on the relation of a private individual, the first inquiry is: has the Relator a muniment of title to the office held by the Defendant? If he has not, and only contests the rights of the Defendant, without exhibiting an apparent title in himself, the proceeding must fall.</p> <p>The object of that law, which provides for a summary proceeding to test the superiority of tho respective titles of the Relator and the Defendant, to an office, was not to embrace eases in which no prima facie title, such as a commission, a judgment or a return of eleetion, can be produced by office claimants.</p> <p>The law in question was not intended as a substitute for the law providing for and regulating the contestation of elections, and has not repealed the same.</p>

<p>This Court will not use its supervisory power, under Article 90 of the Constitution, to compel a District Judge, who has appointed, Recording to his judgment and his conscience, one of two applicants tutor of a minor, to appoint the other applicant instead, on the ground that the latter is the party designated by the law. The Decree can only be reversed on Appeal, if illegal.</p> <p>RTor is it an open question any more, that a Mandamus does not lie to control the exercise of the discretion of inferior courts, in a particular manner.</p>

Houston, J. •First — A right of action to annul a sale of real estate and for damages thereunder, is not such appreciable right as can be seized, appraised and sold.

Cole, J. A law authorizing contributions for the purpose of building local levees is not a law levying-a tax, and a suit to recover the amount of such contribution, where same is less than $1000, is not appealable to the Supreme Court. 21 An. 51; Rooney vs. Brown, 20 An. 499; 11 An. 220, 370; 14 An. 498; 2'An. 330; 11 An. 324; 9 R. 333; 4 An. 2; 11 M. 324; 32 An. , 818.

Tissot. . J. In the absence of forced heirs, the universal legatees are seized, of right of the estate of the deceased. It is upon their heads that all the rights of ownership and possession of the-deceased pass at the very moment of his death. It is to them that the maxim applies: “ Le mort saisit le vifBut the particular legatees do not represent the deceased. Rev. C. 0., Arts. 940 and 1609.

<p>APPEAL from the Ninth Judicial District Court, parish of Concordia. Hough, J.</p> <p>Eirst — 'When tlie funds to be distributed does not equal a thousand dollars, and the issues do-not relate to the legality or the oonstiutionality of the law, but relate to questions of facts, the Supreme Court is without jurisdiction to try the same. Article 81, Constitution of 1879. State of Louisiana vs. Maxwell, 27th An. 722.</p> <p>Second — The constitutionality of a law will not be considered when an issue to that effee has not been raised. State of Louisiana vs. Widow J. C. de St. Romes, 26th An. page 753.</p> <p>’’When a judgment declares an assessment illegal and enjoins the collection of the tax under it, an appeal -will lie direct to the Supreme Court, regardless of the amount involved. Oonst. Art. 81 j 9 An. 206.</p>

Hough, J. Tirst — The parish of Concordia, being a political corporation, it can assess no greater license tax than that imposed by the General Assembly for State purposes. Art. 206, Constitu* tion 1879.

JBarbin, J. First — The court will not grant a motion for a delay of the trial oí the ease because of the ahsonce of a State witness when the defendant has not summoned said witness, nor makes an affidavit that said witness is necessary to his defense, and what he expects to prove by the witness. Second — That all which is said at the time of the commission of the crime is a part of the res jestae, and is good evidenoe.

<p>Tn a suit "by a mortgage creditor to have a tax sale decreed null and void, and to have tlie property purchased from the tax collector, seized and sold in satisfaction of the mortgage, the purchaser sought to be evicted occupies the position of defendant in a petitory action and has the right to show any and all titlos under which ho holds the property.</p> <p>The question of the hypothecary rights of plaintiff against third persons, in such a suit, is prematurely presented and should be the object of another action.</p> <p>A suit in nullity of a tax sale is only prescribed in three years from the date of the sale.</p> <p>A tax sale may validly be made by a deputy of the tax collector.</p> <p>The written notice to the owner 05 his agent, prescribed by Act hfo. 47 of 1873, is an essential pre-requisite of the tax-sale, and, in its default, the sale is null and void.</p> <p>That informality may be taken advantage of by a mortgage creditor.</p>

<p>APPEAL from the Eighth Judicial District Court, parish of East Oar-roll. Delony, J.</p> <p>First — That plaintiffs and defendant were undivided proprietors of the effects of the succession of their common ancestor, ‘W. B. Balfour, for the part or portion coming to each, of them, which, amon'g them, forms as heirs a community of property as long as it remains undivided. B. C. G. 1292.</p> <p>^Second — That plaintiffs’ interest in the Ayrie plantation, belonging to the said succession, being recognized and fixed by defendant as one undivided balf interest of said plantation, they were entitled to one-half of the rents or revenues of same, which iormed a community of property so long as the said plantation remained undivided. B. C. C. 3292.</p> <p>'Third — That, as owners in common with defendant of said undivided interest, plaintiffs were authorized to* lease to defendant their said interest, for a certain price, in lieu of their one-half interest in the revenues of said plantation. That said lease of the said undivided interest in the said plantation continued beyond the year in which it was made, and from year to year thereafter, until the final partition of the plantation.</p> <p>Fourth — That by reason of the facts that defendant continued to occupy the dwelling and other improvements belonging to the whole plantation, after the first year had expired, and without notice to plaintiffs of his varying terms of his original lease, there was a tacit recondnction of the agreement of lease from plaintiffs to defendants, of their undivided one-half interest in said plantation, for the years 1874, 1875,1876, 1877 and 1878, and that defendant is hound for same. 2 B. B. 161, 404 ; 6 B. 262 ; 1 An. 17; 5 An. 302; 9 An. 504; 20 An. 190; 21 An. 743.</p> <p>Fifth — That the relation of plaintiffs and defendant to each other, as joint owners and co-proprietors of the capital (i. e. the rents), which proceeded from the plantation which they held iu indivisión, being thereby governed by the law of partners, the plea of prescription canuot prevail. Pothier, Obligations, vol. 2, p. 100; 3 L. B. 551; 10, An. 221; 2t. O. C. 2890 ; 12 An. 354 ; 14 An. 740, 742; 16 An. 170. •</p> <p>Defendant maintains that:</p> <p>A joint owner, who uses no more than liis share of the common property, in the absence of a¡ lease or an agreement to pay rent, owes no rent to his co-proprietors. 23 An. 150, Becnel vs. Becbnel; 26 An. 255; 23 An. 502.</p> <p>A reconduction of a contract of lease is itself a contract, made so by operation of law; there can be no reoonduction without there first being a conventional lease, and without the lessee having occupied the leased premises after the first contraes had expired. C. C„ 2688 and 2689.</p> <p>The prescription of three years applies to claims for rent on open account. O. C. 3538; 24 An. 73; 22 An. 581; 1 An. 211.</p>

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

Tissot, J. “ Defendant who pleads the general issue without confessing or denying his signature, is considered as having confessed it.” 8 N. S. 300; 1 La. 488 j 2 La. 420 ; 5 La. 33; 14 La. 361; 19 La. 86-88; 8 La. 312.

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

<p>APPEAL from the Eleventh Judicial District Court, parish of Natchitoches. Pierson, J.</p> <p>Kirst — Laws of prescription are in their very nature arbitrary and against equity, and cannot Re relaxed except under positive law providing for interruption and suspension; there are no legal causes of interruption or suspension except those incorporated in the Civil Code.</p> <p>Second — The acknowledgment of an obligation by an administrator only interrupts prescrip- * tion, hut does ijiot suspend it; that his acknowledgment as a fiduciary should have greater effect as against the estate of a deceased person than the acknowledgment of that person himself if alive, is opposed to law and good reason.</p> <p>Third — The doctrine of “ contra non velentem ” was never a principle of our elementary law, and has properly been eliminated from onr jurisprudence.</p> <p>Eirst — That all the plaintiffs are equitably barred and estopped from assailing the title of Ambrose Deblieux at syndic’s sale on January 6th, 1872, having stood by when the sale was made, and having acquiesced therein for several years since.</p> <p>Second — That three of the plaintiffs, viz: Emile Cloutier, Ambrose Deblieux and Eulberfc Cloutier, are equitably bound and estopped from introducing evidence tending to defeat the said syndic’s sale — Deblieux being the adjudicator, and Emile Cloutier and Eulberfc Cloutier having acquired title from, and now being in possession under, him, of the lands claimed, 15 A. 648; ÍH.S. 577; 4E S. 402; 8 La. 237; 4 A. 250; 1 R. 369 ; 5 A. 677.</p> <p>Third — Mere illegality in the appointment of an administrator or syndic, 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. 32 A. 364, Altemus' succession.</p> <p>Eourth — Illegality in the act must be alleged and proved. 30 A. 268, Succession of Du gar t; 32 A.-Run ovan vs. Parker. In case at bar, the provisional syndic is enjoined from collecting an asset ol' the estate, not from alienating its property.</p> <p>Eifth — The forms and duties of provisional syndics are defined. R. S. 1793; and among them is the right to demand and receive “all the claims of the insolvent debtor.” 13 R. 28, Bradley vs. Creditors. Under the law and the facts of this case there can be no question of Lemee’s “power or authority,” as provisional syndic, and of the regularity of his proceedings. C. P. 990, 719 ; C. C. 1224, 1225.</p> <p>Sixth — A twelve-months’bond “is a written obligation to pay a person therein named, absolutely and unconditionally, a certain sum of money at a specified time,” and are subject to the prescription of promissory notes. Ghastantvs. Strong, 22 A. 410; Bank of Louisia/na vs. Williams, 21 A. 121. That the fu fa. issued under a twelve-months’ bond is controlled by laws governing executory proceedings, and a seizure under it interrupts the period of prescription acquired at that date, and keeps same continuously interrupted during its hold on.the property seized. That this is analogous to a pledge. C. C. 3578; 20 A. 192; Walker vs. Lee, 22 A. 152; 23 A. 215; 21 A. 155, 32.</p> <p>Seventh — That the institution of injunction suits against the execution of thejfi. fa., enforcing the twelve-months’ bonds, has the effect to continually suspend prescription on the bonds. Scarborough vs. McCall, 4 A. 322.</p> <p>Eighth — That the note of Marco G-ivanovitch against E. E. Cloutier and J. B. Cloutier, Sr., in solido, was not prescribed at the date of the syndic’s sale, in January, 3872. Plaintiffs allege it was at that date, in order to destroy that sale which produce these bonds. Defendants claim that the acknowledgment of the debt by E. E. Cloutier, on the 8th of July, 1865, interrupted prescription, and that the contemporaneous acceptance of the debt suspended prescription afterwards; and during the time the heirs of deceased permitted the property to remain in the hands of the trustee. C. O. 3552; 22 A. 107, Police Jury vs. Daralde; 22 A. 117; 21 A, 128; 23 A- 2Ú4, Citizens’ Bank vs. Amans; 23 A. 199, Blanc vs. Herfczog; 23 A. 447, Baklam vs. Henderson; 30, A. 673, Sewell vs. MoTay; 30 A. 853, Renshaw vs. Stafford; 2 A. 925 $ 3 A. 531; 1 R. 556; 8 R. 145; 11 R. 183; 29 A. 495; 11 R. 348; 32 R. 155; 1 A. 365; 30 A. 858; Mariat vs. G-uilbrau, 31 A. 713 ; Heirs of Porter vs. Hornsby, 32 A. 337.</p>

Belony, J. First — In charging the jury the judge is not confined to the specific charge asked for by defendant’s counsel. Second — Tbe action of tbe oourt a qua, on a motion for a new trial, cannot be reviewed om appeal, unless an unmixed question of law be presented. 11 An. 478. Third — In moving for a new trial on tbe ground of newly-discovered evidence, and tbe name • of the witness be not disclosed in tbe affidavit, the motion will be overruled. 8 !R. 543.

<p>APPEAL from the Twenty-Third Judicial District Court, parish of Iberville. Cole, J.</p>

<p>APPEAL from the Fifteenth Judicial District Court, parish of Pointe Coupée. Fbisi, J.</p>

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

A PPEAL from the Fifth Judicial District Court, Parish of East Baton Bouge. Me Vea, J. 'When a new trial is granted, the writ of fi. fa. must issue upon the judgment rendered therein, and not upon the first judgment, although the two judgments may be similar. .-Fraud is a valid ground of injunction, for fraud vitiates everything.

Goode, J. -An order of recusation works such an irreparable injury as entitles a party to appeal. 5 M. O. S., p. 293 ; 6 M. O. S., p. 130, ■ Where the record shows that the judge is only professionally, and not personally interested, the matter should be tried by a lawyer of the district, and not by the judge of an ad* .joining district. Sec. 3, Act Ko. 8,1880.

<p>A PPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.</p> <p>Where a judgment .shows on its face, that it was rendered without issue joined, and without reasons being given by the judge for the same, it is absolutely null, and cannot he revived. Const. 1868, Art. 80; 32 An. 1006; 30 An. 363; id. 692.</p>

<p>The right of creditors of a succession to have the property thereof sold by the Executor to pay their claims, is absolute and ia no manner dependent upon, or to be preceded by, an Account of administration or Tableau of distribution.</p>

Hough, J. , On Motion to Dismiss. First — Under Article 574 C. P., the motion of appeal, made in open court at the same term at which the judgmeut was rendered, operates as a citation of appeal, and is, in fact, a constructive citation. Brickell vs. Connor, 10 A. 235. Second — Therefore, under Art. 594, C. P., after appellant has taken an appeal by motion in-open court, he cannot withdraw it, but is bound to prosecute, or to abandon it.

Toist, J. The olerk should certify unqualifiedly in conformity to Art. 896, C. P., that the transcript contains all the testimony adduced. If the clerk cannot so certify, and there has been no statement of facts prepared, no bill of exception or special verdict taken, and no assignment of errors filed, the appeal must be dismissed. 16 An. 84, Watson vs. Jones; 11 An. 604.

<p>APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Ellis, J.</p> <p>UTirst — Opposition to tlie homologation of a partition must be made in writing, within the legal delay. C. P. 1030; R. C. C. 1375.</p> <p>;■ Second — The party aggrieved by a judgment of homologation, can be relieved only by new trial; and a new trial cannot be granted to one who has permitted a judgment of homologation to be pronounced without opposition. Lang vs. Creditors, 14 La. 240; Succession of Maoarty, 3 An. 384.</p> <p>First — Tke court may, in its sound discretion, grant a new trial ex officio, C. P, 547• Gale vs. Kemper’s Heir, 10 La. 209.</p> <p>Second — This discretion must be a legal discretion. 3 H. S. 100; 4 H. S. 132.</p> <p>Third — Where, by use of reasonable diligence, the party could not have known that the court would take up the case, a .new trial should be granted. Biley vs. City of Louisville, 3 An. 965.</p> <p>Fourth — A new trial should always be granted to obtain the ends of justice, 1 Bob. 192 j Wilkins vs. East Baton Bouge, 10 Bob. 57.</p> <p>Fifth — A new trial must be granted when there are good reasons therefor. C. P. 558 ¡ 10 Bob. 57.</p>

<p>APPEAL from the Parish Court, parish of East .Feliciana. Brame, J.</p>

<p>The Courts of Appeals are, under Article 90 of the Constitution, amenable to the supervisory authority and power of the Supreme Court, like all the other tribunals of the State, and, in that respect and for that purpose, they are inferior Courts.</p> <p>The Court of Appeals for the Parish of Orleans has jurisdiction of oases in which the amount involved is exactly $1000, exclusive of interest.</p>

<p>APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.</p> <p>The effect of the registry of a notarial act in the conveyance office, is to give notice to the world of the provisions therein contained. This effect is produced from the day the act is deposited for registry with the recorder. R. C. C. 2254, 2264.</p> <p>A counter-letter affecting the transfer of real estate has no effect against creditors or bona fide purchasers, unless registered. R. C. C. 2239; 3 R. 439; 9 An. 69; 12 An. 622.</p> <p>If the real owner of property allows it to stand recorded in the name of another by a title translative of property, and that other fails in business, it becomes the common pledge of his creditors. 29 An. 604.</p> <p>During the pendency of a revocatory action, or one in revendication of property, no alienation thereof can be made to the prejudice of the claimant. R. O. C. 2453, Act No. 3, of 1878, p. 31, re-enacting same; 13 L. 260 ; 9 An. 257; 16 An. 280.</p> <p>In a revocatory action based upon fraudulent disposition of property by the debtor, where plaintiff shows his liabilities, it is incumbent on those opposing the alienation to show property to an equal or greater amount. R. C. C. 1985; 2 N. S. 68; 4 N. S. 652; 2 L. 16.</p> <p>A preference given to one creditor, even ignorant of the debtor’s insolvency, is a fraud on the other creditors. 2 L. 18; 8L. 3C8; 14 L. 367 • 30 A. 512.</p> <p>Knowledge of the agent or attorney is knowledge of his principal. Story on Agency, 451, 140, p. 159.</p> <p>Where prescription of one year is plead against plaintiff’s 'action, it is the time within which it is brought which is the test, and not the sufficiency 'of the allegations which, support it. 27 A. 715.</p> <p>'The plea of discussion cannot be renewed after defendant bas not only suffered but provoked a trial on the merits oí a revocatory action. B. C. 0.1973.</p> <p>A donation inter vivos, cannot be made by proxy, particularly where it does not appear that the power of attorney is executed in authentic iorm. Such a donation confers no title to donee of immovable property. B. O. C. 2996,1540, 1542,1543.</p> <p>In order to sustain a revocatory action it is necessary to prove: 1. Insolvency; 2. Fraud; 3. Injury; 4. Knowledge.</p> <p>It is the value of the debtor’s property at the date of the sale complained of, and not its subsequent value, that determines the question of solvency.</p> <p>Where creditors accept the property of a debtor at fixed values, the aggregate of which exceeds the entire indebtedness, and discharge the debtor, reserving the right to attempt to recover certain property transferred previously by such debtor, such reservation is invalid on its face.</p> <p>■While the XT. S. bankrupt law was in operation the State insolvent laws were suspended, and conventions between debtors and creditors, looking to the discharge of the former, were not ipso facto proof of insolvency, but must be judged on their merits.</p> <p>In cases analogous to a cessio bonorum creditors must show that they have exacted from the debtor all the property allowed by law before they can pursue property previously transferred by the debtor. Liberality in such a oase is fatal.</p> <p>'The true test of insolvency .is not the immediate inability of the debtor to pay his debts in cash, but it is the comparative value of his debts and assets, whenever the alleged insolvency is said to have taken place.</p> <p>Good faith is always presumed. The burden of proof is on him who alleges bad faith. JBridgeford & Oo. vs. Simonds et al., 18 A. 123.</p> <p>The names of all the principals must be disclosed as plaintiffs by one bringing suit as agent for several parties. 24 A. p. 18- An amended petition, setting forth the names of the principals, is too late if filed after prescription is acquired.</p> <p>u When the mortgageor holds by a title apparently legal and valid, which is properly inscribed in the public records, the mortgagee in good faith is not affected by fraud, - or simulation, or want of consideration between the mortgageor and his vendor.” 32 A. 420; 11 La. 408; 26 A. 467. ,</p> <p>’There is ho notice to the world of any rights reserved by notarial act against real estate by record of same in the conveyance book of the parish. Such reservation, in order to affect third parties, must be recorded in the book of mortgages and privileges.</p>

<p>A PPEAL from the Twenty-Second Judicial District Court, parish of XX Ascension. Duffel, J.</p>

<p>APPEAL from the Seventeenth Judicial District Court, parish of East •Baton Rouge. Sherburne, J.</p>

T. A. Moore, special judge. First — The probate sale of succession property relieves the real estate of the mortgages created by the deceased, O. O. , and the rights of mortgagees attach to the proceeds of the sale-in the hands of the executor. 8 An. 505; H. 150, RTo. 1; 13 An. 558; 24 An. 483. Second — In this case the ranking mortgage was paid, whilst in full force, out of the proceeds of a probate sale of property, which had been decreed to be sold to pay his claim.

<p>There is elo improper joinder of actions and of parties, in a snit for actnal and punitory damages, against the principal and the surety on an injunction "bond.</p> <p>Punitory or vindictive damages on account of a suit by injunction alleged to have been brought through malice and without probable cause, shall not be granted without clear and positive proof of the malice and want of probable cause.</p> <p>The dissolution of an injunction is prima facie evidence of an injury sustained by the party enjoined, and entitles him to actual damages.</p>

Rightor, J. 'The levy of an attachment in the hands of a garnishee by a simultaneous seizure with service of interrogatories, copy of petition and citation to answer, only affects or attaches the property, rights, credits and effects belonging to the defendant in the possession and control of the garnishee, or the indebtedness of the garnishee to the defendant at the • moment the attachment was levied. Such attachment can have no prospective or rete speotiv© effect.

ApPLIOATION for a Writ of Certiorari. First — The prohibitory mandate issued under C. P. 866 is not the writ defined by C. P. 845, but is an injunction ancillary to the writ of certiorari. C. P. 862, 856, 866. Second — Where, proceedings are absolutely null, or a party has been condemned without being cited, an injunction is not the only remedy. C. P. 857. Third — Under such circumstances, the judge and the constable are parties.

Rogers,. J. Plaintiff obtained order of seizure and sale on mortgage note. The property was sold, and was insufficient to pay plaintiff’s claim, and the balance due is $1122 82. This suit is for this balance. The only questions are: 1st, Was the sale in block legal? 2d, Was the sheriff or the plaintiff authorized to pay the taxes due on the property ?

Beloney, J. Eirst — A surety on an official bond is estopped from pleading that he had not the requisites of a surety at the time he signed the bond. 18 An. 64; 10 R. 413 j 30 An. 584-5. Second — Article 3042, R. C. C., and the acts amending the same, are for the protection of the. beneficiary of the bond, and cannot be invoked by the surety to set up his incompetency. A non-resident is bound. 30 An. 584-5 j 10 R. 413; 2 EC.

<p>Municipal bonds issued in pursuance of legislative authority and negotiable in form, are not subject to equities as to consideration or otherwise, in the hands of a bona fide holder for value before maturity.</p> <p>Act No. 69 of the Legislature of 1861, authorizing the Town of Donaldsonville to issue the-bonds sued upon in tnis case, and the law of 1853, now section 2448 of the Revised Statutes, prohibiting police juries and incorporated towns and cities to contract debts-without providing the means of paying them, are notinconsistent, and the later enactment-did not repeal the previous one. Therefore, the Town of Donaldsonville is only bound on said bonds to the extent of the provision made for the payment of the same, by the levy of an annual tax of $1000 on the real estate of said town, during ten years.</p> <p>The objection raised by Defendant, that such a tax is not uniform and, therefore, is uncon» stitutional, is not tenable. The point fully examined.</p>

Toist, J. In actions for malicious prosecution the burden of proof is on plaintiff to show both the want of probable cause and malice. Malice is presumed from the want of probable cause. Hennen Dig., p. 823, No. 6. Malice in law means an act done wrongfully and without reasonable and probable canse, and not, as in common parlance, an act dictated by angry feeling or vindictive motives. Jones vs. Nicholls, 3 Moore & Payne, 12.

Barbin, J. The dissolution of the plaintiff’s injunction on the ground that one claiming to be an officer could not be enjoined from drawing the salary because salaries of officers could not be seized, is a legal absurdity, there being no analogy between the two.

Bightor, J. ITirst — The Court is not called upon to take better care of parties litigant than they choose to take of themselves. 7 An. 44. Second — Any defect or error, or irregularity in bringing up the appeal, if it appears that such error, irregularity or defect is imputable to appellant, will, on motion, cause its dismissal. 15 An. 116; 22 An. 112; 29 An. 173.

Pierson, J. The wife has the right, with the authorization of her husband, then confined in jail under criminal charges, to alienate her paraphernal property to pay or discharge attorneys’ fees, employed hy her to defend him.

Bernard. Livaudais, J. On The Motion to Dismiss. Eirat — If the testimony taken on the trial of the case in the lower court has not been reduced to writing, and the record contains no bill of exceptions, or statement of facts, or special verdict, or if the assignment of errors filed in the appellate court is without foundation, the appeal should be dismissed.

<p>This Court will take notioe exproprio motu of tlie unappealable amount of tlie matter in dispute before them, and dismisB tbe appeal.</p>

<p>APPLICATION for a writ of Prohibition.</p>

<p>The purchaser at a tax-sale cannot proceed by Rule against the former owner to be put in possession. He must institute a suit by Petition and Citation. Affirming Decision in 32 An. 704.</p>

Court, parish of Tensas. In a bond for appeal, the condition that “the appellant shall prosecute his appeal ” is material, and its omission will authorize the dismissal of the appeal. C. P. 579; 27 An. 645; 22 An. 296; 2 An. 1013. When the condition of an appeal bond for a devolutive appeal is only for payment of the costs of the appeal, the appeal should be dismissed. 28 An. 805; 13 An. 417; 3 An. 135, and C. P. 578.

<p>Although tho jurisdiction of the lower Court ceases when the order of appeal has been granted and the bond filed, yet the Court retains its power over its Clerk; to compel him to fulfil the ministerial duties of his office, in the case.</p>

<p>In default of satisfactory proof tliat the lot of ground claimed in this case as school land, •was ever selected as such under the Act of Congress, this Court holds that there should be judgment of nonsuit against the Plaintiif, without passing upon the issues of title and prescription raised by the pleadings.</p>

Charles. Hahn, J. Hirst — Property purchased at a sale for a partition among co-heirs, and paid with the inheritance of the heir is separate. 2 An. 930 ; 4 An. 803; 5 An. 743 ; 17 L. 296; 1 R. 347 $ 4 R. 115; 1L. 522. Second — Partition is a sort of exchange among co-heirs. C. C. 1382.

Toist, J. On the Application eor Rehearing First — The opinion and decree of the Court virtually concede that the writ of fi. fa. was issued prematurely.

<p>A suspensivo appeal from, a judgment dissolving a preliminary injunction and rendered on a Rule nisi, does not deprive the defendant of the right of having the case tried on the merits in the lower Court, even where the injunction is the sole relief sought by the plaintiff.</p>

Pierson, J. It ia competent for parties to waive rights and forms when not prohibited by law; the appellees have waived their objections to form in this case, by not excepting, at the proper time, to the mode of proceeding. 18 An. 65,468; 4 L. 482; 14 L. 248; 12 R. 194; 14 An. 520. An exception relating to the form of action cannot be plead after answering to the merits. Such exceptions are dilatory, and are waived by pleading to the merits.

Bowman, judge ad hoc. Appellee contends that a writ of seizure and sale cannot issue against the property of a Succession under administration, where plaintiff has obtained a judgment against the succession in an ordinary action. C. P. Art.; 1 An. 205; 2 L. 547; 12 An. 642; 3 IT. S. 498. Plaintiff having elected to pursue the via ordinm'ia, cannot afterwards resort to the executory process to enforce the collection of a judgment recognizing his mortgage. 3 IT.

Houston, J. Hirst — In a proceeding under the “intrusion act,” where the last commission expressly declares the vacancy to have arisen from the removal of the prior appointee, the courts are powerless to go behind the appointments made and pass upon the propriety or legality of the action of the executive. 32 An. 934; 25 An. 396; 12 An. 719 ; 17 An. 161.

<p>On the Motion to Dismiss.</p> <p>It» is no good cause of complaint for tlie Appellant and no ground of dismissal, that three appeals taken by different parties in the same case, be embraced in one Transcript.</p> <p>Insufficient service of citation of appeal, not attributable to the Appellant, should not canse the dismissal of the appeal.</p> <p>On the Merits.</p> <p>Under the late bankrupt law-of the United States, the property of the bankrupt could legally be sold free of encumbrances, by order of the Federal Court, provided the mortgage creditors were properly notified to show cause why it should not be done.</p> <p>In default of such notice, the mortgages or privileges on the property were unaffected by the sale.</p> <p>Therefore, when the mortgage creditor, who was notified, bought the property at the sale ordered by the Court, his mortgage was extinguished by confusion, but he took the property subject to the mortgage of the creditor, who was not notified to show cause why the property should not he sold free of encumbrances.</p> <p>Suoh purchaser is a third possessor, not liable to a personal judgment on behalf of the mortgage creditor, but against whom the latter has an action of indemnification for the value of any part of the thing mortgaged, which has been deteriorated or taken away, if the property is not sufficient to satisfy the mortgage.</p> <p>The purchaser in suoh case, is not entitled to be reimbursed the taxes on the, property and other expenses paid by him, with priority over the mortgage creditor with the pact de non alienemdo. Under the pact, the vendee has no better right than the vendor, the original mortgagor.</p>

Kssoi, J. First — Property of a succession soid, even to pay debts, must, at the first offering, bring the appraised value in the inventory. Second — Property oí a succession, sold on the application oí the administrator, should be offered for cash at tho first offering, and if it does not bring the appraised value in the inventory, must be re-offered, in accordance with O. P. Art. 990, on twelve months’ credit.

Sherburne, J. I. There was no seizure of the property. First — Because no actual possession was taken by the sheriff. L. D. p. 279-6 A. Uos. 2, 4, 5.

First — That a judgment is improperly signed after a debtor has made a cession of his goods. 14 An. 443. Second — That the rights of all creditors should remain in the state they were at the date of the insolvency. Third — That thereafter the suit should be cumulated with the proceedings in concurso.

<p>APPEAL from the Sixth Judicial District Court for the parish of Ot leans. Bightor, J.</p> <p>The plaintiff sues to set aside a sale made by a special commissioner under a decree of tbe United States Circuit Court for tbe District of Louisiana, for tbe sale of mortgaged property, for alleged informalities. .</p> <p>Tbe defendants petitioned for tbe removal of the caseto tbe said Circuit Court, on tbe ground that tbe suit involved a Federal question, within tbe provisions of Sec. 2, of the Act of Congress, approved March 3,1875.</p> <p>Tbe plaintiff appeals from tbe order of tbe late Sixth District Court removing tbe cause.</p>

<p>The license tax imposed by the City of New Orleans on keepers of private markets, does not violate the Constitutional rule of equality and uniformity in taxation, though no license tax at all is imposed upon the sellers of meat, vegetables and other articles, in the public markets of the City.</p>

Saucier', J. WháfO a third party interested appeals, and does not cite the defendant in the suit, the appeal will be dismissed. Where an appeal is taken by a third party interested, he must cite both plaintiff and defendant in the suit, otherwise the appeal will be dismissed for want of proper parties.

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

<p>"When property, at-the sale of the tax collector, was bid in for the State, and afterwards was redeemed by a mortgage creditor, by payment of the taxes for the amount of which it was adjudicated to the State, the owner, from whom the mortgage creditor claims back the redemption money, is not allowed to contest the original legality of the taxes.</p> <p>The Ordinance of the Convention of 1879, for the relief of delinquent tar payers, affords no assistance, in that respect, to the party whose property has been redeemed as aforesaid.</p>

<p>APPEAL from the Civil District Court, parish of Orleans. Lazarus, J.</p> <p>First — In an injunction suit where it is not alleged the damage will work irreparable injury, the injunction may be dissolved on bond. C. P. 307.</p> <p>Second — Where the damage complained of is estimated in dolía i s and cents in tho petition for injunction, and the same is dissolved on bond, tho plaintiff has no right of appeal.</p> <p>Third — In case an appeal is allowed to the Supreme Court, in such case the appeal may be dismissed on motion when it is apparent on the face iff the petition that the damages complained of are fixed in a determinate sum in the petition of plaintiff.</p> <p>^ixfjt — The petition discloses a cause oí action and aright to the writ of injunction as prayed for. Williams vs. Payson, 14 An. 7. v</p> <p>Second — Where the object and effect of an injunction is to prevent the practice of future . frauds and wrongs against the rights of plaintiffs threatened to he committed in the future, the court is without power to dissolve the writ on bond under Art. 307 C. P.</p> <p>Third — Art. 307 C. P. applies only to cases where some right to some specific article or class of articles of movable property capable of manual delivery as immovable property, or some right in immovable property is in dispute. The bond required by that section only relates to that description of property or right. Art. 307 C. P.</p> <p>Fourth — This Court will entertain and hear an appeal from an order dissolving an injunction on bond, under the provisions of Art. 307, C. P., to determine whether, under the facts as disclosed in the petition, the bond ordered to be given to dissolve tho injunction is inadequate in amount to protect the plaintiff and to prevent Art. 307 C. P. being used in such manner as to defeat the spirit of the article and the plaintiff’s remedy.</p>

^PPEAL from the Sixth District Court, parish of Orleans. Rightor, Horses, feed, harness and carts, put in a stable for sale, by a third’ person, are subject to the lessor’s ben.

APPEALS from the Civil District Court for the parish of Orleans. Monroe, J. and Bightor, J. First — A State, through its constitutioual provisions, no more than a legislature or judiciary can enact a law or render a decision which in effect impairs the obligation of a contract. 8 Wh. p. 92; Green vs. Riddle; Fletcher vs. Peck; and Dartmouth College case.

Pierson, J. First — The correctness of the ruling of the lower court, refusing the application for removal to United States Court, should be tested, where no evidence was offered on the trial of the application, on the allegations contained in the petition.

Sherburne, J. Eirst — A dation en paiement, made hy the husband to the wife in satisfaction of her paraphernal rights, must he for the full.value of the property transferred, and the burden of proof is always -upon her to show that value. R. C. C. 2655 et seq.; 30 An. 202, 511, 1114; 23 An. 439; 1 An. 301; 8 An. 484.

Briclger, J. ITirst — The court need not charge the jury in the very words ashed by defendant, providing a full and fair charge, substantially charging everything requested, be given, and no prejudice is done the accused. 25 An. 407; 31 An. 304; 8 An. 114; 6 An. 653.

Cole, J. IS'irst — Neither the community nor the husband can claim against the wife’s separate estate, for improvements placed thereon, more than the enhanced value of the said separate estate at the death of the wife, and if the same exceeds the cost of the improvement, then only to the extent of the cost. 2 An. 43; 14 An. 763. (a) To ascertain this value the rule laid down in 4 Rob. and 6 Rob., Nolan vs. Babin, must be followed.

<p>3t isnot by writ of Injunction, but by that of Mandamus, that a judgment creditor of tlie City of Kbw Orleans should proceed, to compel its Mayor and Administrators, in preparing the annual budget of tbe city, to comply with, the law by placing Ms judgment tliereon and. providing for its payment.</p> <p>Such being tho case, Plaintiffs petition for an Injunction discloses no legal cause of action.</p>

Yoist, J. ¡First — Mrs. ¡Labatut, tlie defendant in the suit in which the sheriffs sale sought to be annulled in this suit, never parted with the possession of the property sold, and the purchaser, Provosty, never took possession or control of said property. Second — Provosty never paid the purchase price. It was paid out of moneys, etc., belonging to Mrs. Labatut, the whole proving that the sale was illegal and void.

John the Baptist. Duffel, J. Hirst — It is a rule of property that, if at the time of the sale of riparian land, the alluvion attached has attained a sufficient elevation above the water to be susceptible of private ownership, the alluvion does not pass with the land, unless so expressed. That test has been definitely settled by repeated decisions of this Court.

A PPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J. Eixst — A party claiming property in a petitory action must recover on the strength of his own title rather than on the weakness of his adversary. 22 An. 57; 11 An. 546; 22 An. 20; 11 M. 293; 12 B. 46; *12 An. 512; 3 B. 206; 10 B. 505; 11 B. 233; 12 An. 748.

<p>The fact that a judgment was rendered at chambers, does not exempt the case from the operation of Art. 574 C. P., which provides that no citation of appeal shall be necessary when the appeal has been granted upon motion in open court, at the same term that the judgment was rendered.</p> <p>■When the acts enjoined amount to a trespass or a change of possession of immovable property, the injunction cannot be dissolved on bond and an appeal lies from the dissolving order. Decision in Sigur vs. Judge, 33 An. 133, affirmed.</p>

<p>Tli© Court a qua ruled properly, that tlie Petition of intervention of tlie judgment debtor in the garnishment process against third persons, should stand as an Answer.</p> <p>The rents of property dedicated to a Parish for public use, are, like the property itself, ex* empt from seizure for debt, even if the object of the dedication has been abandoned or changed by the municipal authorities of the Parish.</p>

Lazarus, J. First — Act 74,1880, is a local and special law, and the substance thereof with notice of intention to apply therefor was not published for thirty days in New Orleans, and the fact of such publication is not recited in the Act. Constitution Art. 48. Bouvier, verbo locals Webster, local. Second — The Act and its title embrace more than one object, and the Act embraces objects not expressed in the title. Constitution, Art. 29.

Hough, J. Hirst — Prom the fact of co-proprietorship in indivisión, the law, independent of any convention between the co-proprietors, begets certain mutual rights and duties, such as the right of partition, the right of mutual participation of the fruits and revenues, and the consequent duty to account to each other therefor; the duty of the co-proprietor in possession to take the same care of the property as if it were wholly his own; the right of incurring expenses…

Monroe, J. First — Where there is do agreement between an applicant for insurance and the company ho proposes to insure in, as to the amount of insurance, either direct or implied, there can be no contract between the parties. May on Insurance, 52; Civil Code, 1766,1798; Pothier, Traite de Confc. d’Ass. No. 87. Second — An insurance contract is only then complete, when nothing remains to be done but issue the policy.

^PPEAL from the Parish Court, parish of East Carroll. DuBose, AH, debts bear interest at five per cent from maturity, whether expressed or not. R. C. C. 1938; 15 An. 465. A judgment is a debt, and one of the highest character, and hence should bear interest, whether it is expressed in the judgment or not.

<p>The title to one-lialf of the Community property is vested in the heirs of the deceased wife at the moment of her death, and it is not necessary for them, when they claim it, to allege that the Community is liquidated and solvent. Decisions in 25 An. 379, and 36 An. 639, overruled. Decision in 32 An. 848, affirmed.</p>

<p>Act Ho. 19 of the Legislature of 1876, appropriating the sum of §7850 for the payment of the-expenses of a joint committee of the Senate and House of Representatives appointed in 1875 for the purpose of examining the books and accounts of the State Auditor and Treasurer, is violative of the Third Constitutional Amendment of 1874, which provided that; the revenue of each, year should be devoted to the expenses of the same year.</p>

<p>The very object of an application for a rehearing is to have this Court reconsider whether or not there is error in the Decision rendered on the record such as it is. When there is no such error, the rehearing must be refused.* If the record is defective, it is not after judgment rendered in this Court, that it can be corrected. Bacas vs. Smith, 33 An. 142, affirmed.</p>

Logan, J. First — A contract, or agreement, cannot be enforced bj- a third opposition. An agreement to divide the proceeds of a sale will not support a third opposition, which can exist only upon the issues designated in C. P. 396. 3 La. 495; 1 P. 41; 8 P. 14; 12 An. 341; 3 An. 454; 29 An. 274; 23 An. 2'45; 22 An. 135; 27 An. 560; 2 An. 684; 5 An. 756; 10 An. 238; 26 An. 260; 21 An. 263, 500.

A PPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J. In a rule to compel a testamentary executor to give bond and security, under Art. of R. C.f the executor cannot contest the order of the probate judge, that he shall give security within thirty days from service. Such an order is within the exclusive discretion of the probate judge is a mere conservatory proceeding, not subject to revision by appeal.

Me Fea, J. An act of sale without a price must be considered as an act of donation, when made with the formalities required for donations. 13 La. 387; 5 M. 694; 10 La. 90; 2 An. 766; 5 An. 433; 14 An. 710; 15 An. 666. The earnings of the wife’s needle, or any other work or labor, belong to the community. 30 An. 171.

<p>The statutory prohibition against purchases by administrators of successions, of the property thereof, is in favor of the creditors and heirs; and, therefore, the nullity of such purchases is not so absolute that they cannot he ratified or acquiesced in by the interested parties.</p>

<p>A creditor of tlie heir of an estate, to whom the latter has granted a special mortgage upon the property thereof, cannot proceed via executiva and have that property seized and sold, while the succession, of which it forms part* is still under administration, so as to atrip the Administrator of the possession necessary for a liquidation of the affairs of the estate.</p>

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

APPEAL froru the Eighth Judicial District Court, parish of Madison, Deloney3 J. Pirst — A judgment is the most solemn act of a court and cannot be created except by the action of a court. An apparent judgment, absolutely null for want of citation, appearance or plea, is no judgment. Second — Pleas, like res adjudicata, precluding an examination of the merits, cannot be aided by inference, but must be. established beyond all question.

<p>APPEAL from the Second District Court for the parish of Orleans. IPissot, J.</p> <p>First — Where the answer sets up specially the plea of prescription, without any denial, the whole claim is thereby admitted, and proof offered in support does not affect the admission. 7 it. 468; 18 An. 161.</p> <p>Second — Where a party for answer specially pleads prescription, the onus is on him to substantiate his plea on the trial of the cause. 15 An. 332.</p> <p>Third — The prescription of one year is only applicable to claims for board in private houses, where it is made a business to furnish board at a fixed prioe, and does not apply where a person may occasionally have hoarded; a fortiori not to the case of a person who never kept boarders in its literal sense. 22 Am. 316; Marcadé Prescription, 212, 213.</p> <p>Fourth — Nor does the prescription of three years apply to the last two cases above alluded to. 22 An. 316, Succession of Ann Frye, Opinion Book 53, folio 107.</p> <p>Fifth — Where repairs are made on a honse for the convenience of the occupant, or to repair damage done by her, and at her request, and do not improve the property, they must he at the expense of the occupant.</p> <p>Sixth — Continuous and frequent acknowledgments of indebtedness prevent the acquiring of prescription</p> <p>Where there is neither price fixed by the parties nor one left to the award of a third person named and determined, the agreement wants an essential ingredient to constitute a contract of lease. O. O. 2670, 2071, 2672; 17 An. 22; 19 An. 101; 20 An. 268.</p> <p>A claim for rent of an immovable is prescribed by three years. .C. O. 3538; 22 An. 681, 325; 24 An. 73.</p> <p>Claims for hoard and lodging are prescribed by one year. C. C. 3534; 2 An. 759; 3 An. 458; 5 An. 599; 3 An. 141; 21 Am. 657.</p> <p>Claims for money loaned are prescribed by throe years. C. C. Article 3538.</p>

<p>APPEAL from the Twenty-third Judicial District Court, parish of West Baton Bouge. Cole, J.</p> <p>First — That plaintiffs’ act of incorporation is a grant made by the State to the Company, having all the attributes of a contract, by which both the grantor and grantee are solemnly and respectively hound. 7 Cranch, 165; 6 Cranch, 87; 4 P. 514; 16 H. 369; 6 H. 301.</p> <p>Second — That any attempt on the part of the State to enforce Art. 207 of the Constitution, and Act No. 77 of 1880, carrying the same into effect, would operate against die company as a divestiture of its chartered rights, impair the obligations of a contract, and be violative of § l of seo. 10 of Art. 1, of the Constitution of the United States, and of Art. of the State Constitution. 8 "Wal. 430-439; 13 Wal. 264-269; 16 "Wal. 244; 20 Wal. 36 ; 15 Wal. 454.</p> <p>Third — That although the taxing power of a State is never presumed to be relinquished, yet, where the intention to relinquish is declared in clear and unambiguous terms, it cannot be recalled except for cause, and tbe exempted party put in default.</p> <p>Fourth — That under the shield of protection extended both hy Federal and State governments, plaintiffs became the owners of sixty male slaves, constituting the working force with which the road was to be completed; and when the State passed the ordinance of secession, and peveredits connection with the Federal Union, and afterwards manumitted the slaves, it assumed the responsibility of its own act, and the loss resulting therefrom cannot he visited as a penalty upon plaintiffs. If it were so, the State would be taking advantage of its own wrong. See Joint Resolution No. 22, p. 40, of 1855; No. 24, p. 42, of same year.</p> <p>Eiftb. — The same rule obtains in regard to the maintenance of levees — The State assumed the work of their erection, and failed. See Joint Resolution Ho. 5, p. 8 1865. Appointment of Levee Commissioners. Act Ho. 20, p. 34, of 1866; Act Ho. 115, p. 212, of 1867; Act Ho. 116, p. 216, ol I860; Ho. 117, p. 218, of 1867; Ho. 122, p. 236, of 1867; Ho. 72, p. 82, of 1868.</p> <p>Sixth — That the State alone (for causes other than those enumerated in plaintiffs’ charter) possesses the right to declare the forfeiture of a charter granted by it; but this must be judicially decreed, and cannot be inquired into collaterally. It is a tacit condition of a grant, that the grantees shall aot up to the end for which they were incorporated; and when they donot, the privileges and immunities granted may be withdrawn. But the misuse or abuse must be judicially ascertained — it cannot be declared by constitutional or legislative enactment. 13 L. 506; 15 L. 26; 5 An. 179; 9 An. 265; 2 R. 529; 12 An. 568; 11 R. 404.</p> <p>These questions were exhaustively and ably treated by your Honors in the case of the City of New Orleans vs. Poydras Orphan Asylum, Decision Book 53, p. 550, lately decided, to which the Court is respectfully referred</p> <p>•Seventh — By Act Ho. 89, p. 162, of 1866, the State authorized bonds to be issued in favor of the plaintiff company, and thus showed it did not consider the company censurable for the non-completion of the road.</p> <p>The judgment of the lower oourt should be affirmed.</p> <p>Exemptions from taxation are to be strictly construed. 8 Ind, 328; Cooley on Taxation, p. 146; Burrough on Taxation, seo. 70, p. 132.</p> <p>The exemption from taxation of the above-named corporation dates from the time of the com - pletion of the road. Sec. 2, Act Ho. 271 of 1853, p. 248.</p>

PPEAL from the Eifth District Court for the parish of Orleans. Rogers, J. First — A married woman, authorized by her husband, may become a surety for a third person. G. C. 124,1781, 2397; Farrel vs. Toe et al., 2 An. 903; Helwig vs. West and Wife, 2 An. 1; Roberts vs. Wilkinson, 5 An. 377.

Rightor, J. Rirst — Where there are a number of defendants represented by three attorneys, the alleged inability of one attorney to be present during the trial, because of his professional engagements elsewhere as Assistant City Attorney, is no ground for a continuance, when the application is not supported by affidavit, and when the record shows that notwithstanding said statement he was present during the whole of the trial in the court below, hlore especially should this…

<p>Article 206 of the Constitution does not affect the legality of tlie License ordinance of the-City of New Orleans, No. 6253, passed on the 23rd December 1879, under the laws then in force, and imposing certain municipal license taxes. Decision in City of New Orleans vs. Vergnole, 33 An. 35, affirmed.</p> <p>The Administrator of Finance of the City of New Orleans has no authority to reduce in-some particular cases the amount of the license tax fixed by the city ordinance.</p>

Monroe, J. Eirst — An ordinance of the City Council, levying a license tax upon vessels enrolled and licensed under laws of Congress, is in conflict with the Constitution of the United States and void. Second — A license tax upon tow-boats is unconstitutional under Art. 118 of the Constitution of • ’ 1868, because not uniform upon all vessels. Third — An ordinance of the City Council, inconsistent with the provisions of the Constitution of 1879, cannot be enforcod.

Hough, J. On Motion to Dismiss. [First — The clerk’s certificate ought to show that the transcript is a full and complete transcript of the record of the case in the lower court; and when the certificate does not show that fact, the appeal should be dismissed. 21 An. 458. Second — The clerk’s certificate ought to show that the transcript contains a copy of all the evidence adduced on the trial in the lower court. C. P. 896.

A PPEAL from the Ninth Judicial District Court, parish of Tensas. xa. Hough, J. Eirst — Errors of law need not be pleaded, they may be presented by an assignment of errors suggested in the brief of counsel, or they may be noticed ex officio by the Court. 5 IN. S. 341: 2 A. 335 : 4 A. 129, 254.

<p>APPEAL from the Fourth udicial District Court, parish of St. James. Duffel, J.</p> <p>The rule that creditors cannot sue to annul contracts made before their debt accrued (C. C. 1993), refers only to contracts which can produce some effect — not to those which can produce none — such as simulated contracts and those which are reprobated by laws of public orde<.\ 15 An. 177 ; 12 An. 173; 1 An. 133.</p> <p>The prescription of one year against the action of an individual creditor to annul the acts of his debtor, only begins to run from the day he has obtained a judgment against him. O. C. 1994. Until be gets a judgment, be cannot bring the action, unless the defendant in the action to annul be made a party to the suit for liquidating the debt. C. C. 1972,1975.</p> <p>An act importing a confession of judgment is not a judgment.</p> <p>Contracts of a debtor made more than a year before suit is brought to anmil them, cannot he avoided, if the only cause of nullity be the preference given to one creditor over another: But, if they contain other causes of nullity, they may he avoided. C. C. 1987.</p> <p>A married woman cannotbind herself for her husband’s debts. C. C. 2398. This is alawof public order; and any attempt to violate it is absolutely null. C. C. 12; Demolombe, vol..l, p. 15, No. 17; p. 19, No. 20; 9 L. 585; 3 Merlin, Répertoire, verbo Dérogation; 1 Toullier, p. 87 et seq.; 14 An. 169 ; 12 R. 82.</p> <p>Contracts violating that law are considered as made in fraudem legis, like other contracts which violate other laws on the same and kindred subjects, and they cannot be ratified. 15 An. 651, 628; 30 An. 291,1021; 13 An. 12; 29 An. 253 ¡ 26 An. 375; 22 An. 462; 9 L. 351; ' 14 L. 115 ; 1 An. 304; 12 R. 82.</p> <p>Creditors of the wife, as well as the wife herself, may attack an invalid mortgage upon her * property, and sue to annul a sheriff's sale of her estate made in.violation of the rules and forms of law. C. C. 1989, 1990, 1970, 1977: 6 R. 21; 9 L. 542; 6 All. 552; 10 An. 18; 5 R-288; 30 An. 511.</p> <p>The mortgage of a married woman does not bind her, unless it inures to her separate advantage. This advantage is of the essence of the obligation, and must be shown by those who seek to enforce it, in a case where she has not been authorized by the judge. 29 An. 123; 30 An. 1021, 110G.</p> <p>And in order to bind her, the amount which inured to her benefit must be made certain, and must be shown to have been expended in something which the husband was not bound to furnish her. 9 An. 268; 5 An. 495, 586; 7 2T. S. 67; 7 M. 465; 4 R. 510; 1 An. 423; 6 R. 64; 6 An. 57.</p> <p>When no separation of property is proved, community must be presumed; and all debts contracted during the community, are presumed to be community debts, for which the husband alone is liable. 30 An. 1106; 12 An. 663, 852; 1U An. 30; C. C. 2403 ; 19 An. 249; 13 An. 546; 6 An. 57; 12 R. 580; 1 An. 428; 5An.l73,572 ; 6An.453; 13 An. 593.</p> <p>The wife is only bound to contribute to the family and household expenses when she has ob- «• tained a separation of property — and to bear them alone when nothing remains to the husband, after the judgment of separation has been executed. O. C. 2425.</p> <p>She ought (but is not bound) to bear a portion of the marriage charges, if all her property be paraphernal and she have reserved to herself the administration of it. C. C. 2389; 10 An. 554; 14 An. 281.</p> <p>In this case there is no judgment of separation; and it has not been shown that all her property was paraphernal, and that she had reserved to herself the exclusive administration of it.</p> <p>A notice to pay, a notice of seizure, a notice to appoint appraisers, an inventory of the property seized, etc., are necessary to make a valid sale under executory process. O. P. 735, 745, 654, 671; 6R.192; 2 An. 145; 22 An. 22; IE. 295; 5 An. 737.</p> <p>PTo papers at all were served on Mrs. Delogny, the sheriff's return to the contrary notwithstanding — and the sale is a nullity. (See her sworn testimony, p. 24 of transcript.)</p> <p>When a writ of seizure and sale prescribes a delay certain for its return into court, it must be returned as in the case of a fi. fa. C. P. 745, 642. A sale after the return day is void. 18 An. 657 ; 22 An. 23 ; 28 An. 75 ; 26 An. 735; 2 An. 776.</p> <p>A sheriff's sale must be made at the seat of justice, unless the debtor requires it to be made on the premises, under pain of nullity. O. P. 664, 665; 17L.76; 6R.21; 3An.l47; 2An.33G.</p> <p>The agreement between Mrs. Delogny and her son Neuville, to the effect that the exemptions should only apply in case a stranger should purchase the property, considered in this brief at p. 16 et saq. Testimony of Mrs. Delogny, pp. 25 and 26 of transcript.</p> <p>Pirst — The wife may at any time resume and take the administration of her separate property, and had that administration when the debt to R. R. Delogny was contracted.</p> <p>Second — When administering, debts contracted by her for the cultivation and improvement of her property are valid. Such was her debt to IT. R. Delogny.</p> <p>Third — When separate in property or separately administering her estate, it is not only her right, but duty to contribute to the family expenses. C. O. 2389, 2395; Toullier, vol. 4, Secs. 553 to 565; Toullier, vol. 3, 2d part, p. 100.</p> <p>She was separate, and separately administered her estate in this case.</p> <p>Pourth — To maintain the “ revocatory action,” the creditor must show first that his debt existed at date of the act complained of; and second, that the act was not only injurious, but fraudulent. O. C. Arts. 1993, 1978.</p> <p>Plaintiff has proven neither fact.</p> <p>Pifth — If a debt is a just one it is no fraud to acknowledge it before it is prescribed, or to refuse to oppose its execution. A debtor is not obliged to do wrong to one creditor in order to protect another creditor.</p> <p>Sixth — If the alleged fraud consists merely in giving preference to one creditor, the action i« barred by one year from the date of the act giving the preference, C. C. 1987.</p> <p>Plaintiffs’ action was brought four years after H. It. Delogny’s purchase, and is barred.</p> <p>Seventh — An act absolutely void and non-existent cannot be ratified. If the law declares that an act done by an incapable can be ratified, that act is not in the proper sense, and, from every standpoint, absolutely void.</p> <p>Eighth — The law declares that the acts of married women, ultra, vires, and beyond the limits of their legal capacity, may be ratified. C. O. 1786.</p> <p>That those contracting with them cannot plead the nullity resulting from her incapacity. C. C. 1791.</p> <p>Hinth — If an act is, from every point and view null and non-existent, as contrary to public order, any one having the least interest may plead its nullity. C. C. 12.</p> <p>The fact that the person contracting with the wife cannot plead it, shows that her act is not in all respects null and void.</p> <p>Tenth — Her act, in such cases, is only conditional. The suspensive condition which affects it is that she shall, or Shall not, ratify after her incapacity ceases. If the condition happens— if she ratifies, it is valid from its date. If the condition do not happen, if she does not ratify it, and she or her representatives repudiate it, it is void, db initio. Like all conditional contracts, they are void or valid, db initio, according as the condition happens, or does not happen. The happening or non-happening of the condition retroacts to the day of the contract, and validates or invalidates it accordingly. C. C. 2021, 2042.</p> <p>Eleventh — It is only in this sense, and to this extent, that the contract can be properly said to be void. It is only when the wife does not ratify it, and it is repudiated by her or her representatives, that the event has happened that nullifies the act retroactively. It is only in this class of cases that our courts have ever declared such acts null and void.</p> <p>Twelfth — The acts done by married women, ultra vires, are only relatively, only conditionally, null. See Marcade, vol. 4, p. 405, on Arts. 1124 and 1125, O. H.; Toullior, vol. 1, pp. 597, 598. See, also, C. O. 2221, which declares that if the wife does not sue to annul such acts within ten years, the action is barred.</p> <p>Thirteenth — The incapacities of married women may be classified as follows: 1.. Incapacity for want of authorization, Arts. 122, 2397 C. C.; 2. Incapacity growing out of the relation she bears to the husband, C. C. 1790; and 3, incapacity growing out of the subject-matter of the contract, O. C. 1790, 9398.</p> <p>fourteenth — Those incapacities are all akin — all of the same nature. They are all born of the same necessity, to wit: That of securing the husband’s supremacy on the one part, and of protecting the wife’s dependence on the other part. The incapacity in the one case is as much a regulation of public order as in the other. The nullity affecting the wife’s sale of her immovables, without authorization, is as radical as that affecting her promise to pay the husband’s debt. This is demonstrated by Arts. 2397 and 2398. They are grouped under , the same section of the Code treating of the incapacity of the wife; and the language of prohibition is identical in the two articles.</p> <p>fifteenth — It is only when viewed from the standpoint of a married woman, who has not ratified, and who, in person, or through her representatives, repudiates the contract, that it oan be said, or ever has been said in any adjudicated case, that the contract is null and void. In such a case the condition has happened which defeats, resolves and renders as never having existed, the contract.</p> <p>■Sixteenth — The cases cited by plaintiff are all of the class stated in above, Ho. 14. They have no application to this case, where the wife, after the death of her husband, has formally ratified the contract, thereby fulfilling the condition wh.ch retroacts and validates the act db initio.</p> <p>Seventeenth — The note and mortgage are evidence of a single contract. The mortgage act contains full proof of the debt, and of that identical debt, the note is only another and additional evidence. The acknowledgment made in writing on the note, in ¿Tanuary, 1872, operated upon the entire contract — just as transfer of the note operates a transfer of the mortgage. The fact that the mortgage is not negotiable, in the sense of the law merchant, so as to defeat equities, is totally irrelevant to this case.</p>

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

<p>Tbe bonds sued upon baying been issued in settlement, by compromise, of former claims against tbe municipal corporation, as in tbe preceding case of 'Widow Viléor Dugas vs. Tbe Town of Donaldsonville, tbe fact that tbe original claims were prescribed when tbe new bonds were issued, is no defense to an action on said bonds.</p>

McVea, J. Upon all questions as to the effects, scope and constitutionality of a law of Congress, it is the decision of the United States Supreme Court alone that settles the law (7 R. 219; 22 An. 507) j that tribunal having held the provisions as to stamps in the Internal Revenue laws of 1864-66-67 applicable to State as well as Pederal courts, all conflicting decisions of State courts are null and void.

<p>APPEAL from the Sixth. District Court for the parish of Orleans. Hightor, J.</p> <p>Dirst — An action against a Recorder for the damages resulting from the failure of official duty in notinscribing a marriage contract in tlie register of mortgages (Rev. O. C. Art. 3388), arises ex contractu, and is only prescribed by ten years. .Brigham vs. Bussy, 26 An. 676 ; Rev. C. O. Art. 3394; C. rej. 2 dec. 1816, Marietta. See remarks of Laurent on Art. 2197, Code Napoleon. Troplong, Priviléges et Hypothóques, Tome 4, Nos. 1000,1001,1002,1003, p. 352 etseq.; Locró, La Lógislation Civile, Tome 16, p. 480; Bassompiere contre Lamarié, 30 Juin,1810. Journal du Palais.</p> <p>Second — A Recorder who undertakes to perform an official duty for an individual upon payment of a fixed fee, incurs a conventional obligation like that of a negotiorum gestor. R. C. C. 2295; 1756. His obligation was a civil one, created by tbe operation of law (R. C. C. 1760), and he thereby assumed all the responsibility resulting from an express agency. The damages, in such a case, are demandable under the articles of the Code, relatingto the inexecution of contracts (Rev. C. C. 1930), whether the violation be active or passive. Rev. C. C. Art. 1931 et seq.</p> <p>Third — The duties devolving upon Recording Officers arc to the individuals exclusively who have occasion for their official services. Cooley on Torts, p. 383 et seq. Sheiman & Red-field on Negligence, § 286. Recording Officers aregpublic agents, responsible to those who employ them, “ for the damages that may result from the non-performance of their duty ” (Rev. C. C. Art. 3002), and “ also for their fault or neglect.” Rev. C. C. Art. 3003.</p> <p>Fourth — Prescription commences to run against an action to recover damages in such cases only from the date at which the cause of action arose and the injury was sustained. Like the action of an evicted vendee against his vendor, it arises at the time the eviction occurs and resembles an action in. warranty. “ L’action en garantió contra un conservateur des hypotliéques a raison de nullité d’une inscription provenant de son fait, peut étre exercée aprés dix ans de la date de l’inscripfcion.” S. V. 17, 1, 3i7; C. N. 5, 1, 255; D. A. 9, 461.</p> <p>Fifth — It was the Recorder’s duty, under the Code of 1825, and at the time the erroneous inscription in this case was made to register the plaintiff’s marriage contract in the register of mortgages (Code of 1825, Art. 3351), and he was then as he is now, “ answerable for tho injury resulting from omitting to properly record such acts.” Code of 1825, Art. 3357.</p> <p>■Sixth — The cancellation of the Recorder’s official bond only releases his sureties, but does not affect his liability. '22 An. 29.</p> <p>First — The plaintiff’s action against the heirs of Pierre Landreaux, who was Recorder of Mortgages for the parish of Orleans in 1835, for damages incurred through alleged failure to record in that year in the proper book in his office the plaintiff’s marriage contract, is not an action ex contractu,, but one ex delicto, and is prescribed by one 3 ear. O. C. 3536 (3501); 6N. S. 668; ib. 691, ib. 710; 15 An. 418.</p> <p>Second — Even if the prescription only ran from the date of the decision of this Court in May, 1874, (26 An. 534), or from the date of the payment of the proceeds of the property of plaintiff’s husband to his other creditors C. C. 3537 (3502), on the 22d June, 1874; still, the prescription had been acquired before the institution of this suit, which was only filed October 15th, 1877.</p> <p>Third — No reference should strictly be made to a former suit brought by the plaintiff (No. 6444 of this Court — decided on a point not presented by either party, 29 An. 363), hut if it should be thought that in fairness to the plaintiff, allusion should be made to it, then, we will say, that the former suit was only brought in July, 1875 — after the prescription of one year had been acquired, as conceded at page 4 of plaintiff’s original briei in that case.</p> <p>Fourth — It is admitted by the counsel for the plaintiff at pp. 8 and 9 of the printed brief annexed to the transcript, that her marriage contract containing a constitution of dowry, had to he, and was properly recorded in tho Book of Donations, C. O. of 1825, Art. 1541.</p> <p>Fifth — Under the same Code her mortgage for her dotal rights existed without registry. Art. 3298. ,</p> <p>■Sixth — If she deemed it useful or proper to have an inscription made of the legal mortgage, she was, by law, authorized to demand it, and should have seen this done in 1835. C. C. 3304 (now 3332).</p> <p>Seventh — The registry of the wife’s legal mortgage under the law in force in 1835 was not intended for her protection, but for that of her husband’s creditors.</p> <p>Eighth — The change in the law, made thirty-four years afterwards, viz: in 1869, and granting a delay within which to make the registry of all legal mortgages, could not have had the effect of imposing a liability on an officer, whose term of office had long since expired, and who. under the laws in force while he continued in office, had incurred no responsibility to the plaintiff.</p> <p>Ninth — The plaintiff has only herself to blame for the neglect to avail herself of the delay allowed her by the act of 1869, within which to have the proper mortgage inscription made for her own security.</p>

<p>APPEAL from the Fourth Judicial District Court, parish of Jackson, Bridger, J.</p> <p>First — An error in the minutes of the court cannot serve to contradict the indictment on whioh the accused was tried.</p> <p>Second — The objection to the formation of the jury must he made on the first day of the term of court. 8 R. 514; See. 5, Act No. 32 of 1840, p. 28.</p> <p>Third — The court will presume that the grand jury were sworn according to law, even if the record does not show the fact. Minors Rep. 62 and 138.</p> <p>Fourth — All motions and dilatory tactics resorted toby the accused are properly overruled when, in the discretion of the court, they are only urged for the purpose of delay.</p> <p>Fifth — No statute of this State authorizes the taking of testimony hy commission in criminal cases; such practice is unknown to the common law.</p> <p>Sixth — A motion for continuance on account of absent witnesses is properly overruled when the accused does not show proper diligence in securing their attendance.</p> <p>Seventh — The crime of arson is imprescriptible. The burning of all houses and buildings are arsons. Secs. 841, 842 and 843 B. S.; 12 An. 382.</p> <p>Eighth — In reference to prescriptible crimes, prescription does not begin to run until a public officer having power to direct investigation or prosecution has knowledge of who the perpetrator of the crime is.</p> <p>Ninth — Where the judge omits something which he should have charged, and the accused has not been injured thereby, he, the accused, cannot complain. •</p> <p>Tenth — The confession by accused is admissible in evidence although he may have been intoxicated whilst making it. 25 Ala. £0.</p> <p>Eleventh — The jury is the sole judge of the evidence adduced on the trial of the case.</p> <p>The accused in a criminal case has a right to take the testimony oí witnesses residing out of the State by commission, and the case should be continued to allow him to procure the evidence, when it appears that the testimony can be had within a reasonable time. Tr. p. 16 to 22, and Bill of Exception 22 and 23, and 28 to 31; State vs. Hornsby, 8 It. 562.</p> <p>The District Attorney in a criminal case cannot say to his witnesses, “I can’t ask leading questions, such as did she cry,” &c., and then, when objection is made, withdraw the question and ask, “ What did she do ? ” The answer was fully suggested to the witness, and it was error to permit the witness to answer. Tr. p, 75.</p> <p>The defendant had a right to lead the witness for the State. This right was improperly denied by the Court. Tr. 81 to 83.</p> <p>The court a qua improperly refused to permit the defendant to prove the contradictory statements of the witness Bussell for the purpose of impeaching him after a sufficient basis had been laid. Tr. p. 84.</p> <p>The court a qua improperly refused to charge the jury that if the proof of an alibi was sufficient to create a reasonable doubt as to the guilt of the accused he was entitled to the benefit of that doubt. Tr. 88.</p> <p>The court improperly refused to charge the jury as to the extent to which the corpus delicti must be proven before a confession would sustain a conviction. Tr. p. 92.</p> <p>The court improperly refused to charge the jury in regard to the weight to which an insincere confession is entitled under the law. Tr. p. 94.</p> <p>The court improperly refused to charge the jury thatproof of enmity of the witness for the State against the accused, and proof of pecuniary interest in the result of the trial was a legal means of impeaching a witness. Tr. 96.</p> <p>The defendant was forced to a trial at the same term at which the bill was found, and without sufficient time to prepare his defense, and without being permitted to obtain what proof he could to support his innocence. The court a qua was requested to deliver a written charge two days before the argument of the case was closed, and then did not charge the jury until after two o’clock the day after the argument of the case was closed. At the same time he gave the jury to understand that the delay was caused by the accused. This delay and the comment of the court, in his charge, upon the argument of the counsel for the accused, and the manner in which, at the close of his charge, he cautioned the jury to guard the interest of society, and the fact that the points in the charge most favorable to the accused were given first, and the points against Mm last, all tended to prejudice the jury against the accused and to encourage a convictiou. The whole record in this case shows that the accused did not have a fair, legal and impartial trial. The motion for a new trial ought to have been sustained. Tr. 50 to 58.</p> <p>The motion in arrest of judgment was improperly overruled. The crime charged is clearly prescribed. Act 120 of 1855; Act 1^1 of 1855; Acts 1858, p. 212; B. S. 986, 841, S4t, 843; Bishop’s Crim. Law, 6th ed. vol. 3, secs. 9 and 11; 3d G-reenleaf, 13th ed. sec. 52; Bussell on Crimes, p. 551 (old 552).</p>

First — A judgment of separation between the wife and husband must he promptly settled so far as the husband’s estate is sufficient for the purpose of payment, or it must be followed by a tona fide and uninterrupted suit to obtain payment: otherwise it becomes an absolute nullity. C. C. 2428; 28 An. 346 ; lb. 572; 4 An. 513 ; 27 An. 403; 2 An. 149; 1 An. 308; 1 E. 431; 3 E. 328.

MgMor J. Eixst — Consent cannot confer jurisdiction. An exception to the jurisdiction of a court, ratione materiee, cannot be waived. Courts are bound ex officio to’notice the want ofjurisdiotion ratione materiee, and that, though no exception be made. O. 3?. 606, § 6, 608; 1 hT. S. 200, 703; 3 E. S. 136; 14 L. 177; 6 E. 365; 11 E. 77; 5 IT. S. 10,11; 12 An. 829; 21 An. 235; 23 An. 210; 25 An. 510; Hermain’s Law of Estoppel, p. 356, sec. 146, p. 166.

<p>APPEAL from tlie Second District Court for the parish of Orleans. Tissot, J.</p> <p>Eirst — Where, on the demand of an heir to obtain an account, and have fixed and delivered his interest in an estate, the executor files an account, which does not include an obligation due from tbe heir to tbe estate, tbe co-beirs are interested to have tbe account amended, and to defeat claims made by one whose obligations far exceed his rights.</p> <p>Second — Co-heirs having an interest may intervene in a proceeding between one of tho heirs and the executors, to protect their rights, save tbe estate from illegal demands, and to have accounts correctly made. 4 Rob. 296; 28 An. 607; 25 An. 534; 17 An. 133.</p> <p>Third — An intervention, even in ordinary proceedings, is allowable at any time before judgment, provided tbe intervenor shall be always ready to proceed, and shall not retard the case; but tbe required time for citation under the intervention must always be allowed, and is not to be considered as retarding the trial. C. 3?. 364; 16 L. 283; 3 An. 331; 20 An. 258; 25 An. 565.</p> <p>Eourth — Though the intervention be entered on tbe day of trial, it must be admitted, and time for citation allowed, it necessary. 25 An. 565.</p> <p>Eifbh — An appearance for the purpose of opposing an executor’s account, in a probate court, can be made at any time before the homologation. 9 L. 48, 59 • 23 An. 527; 4 Eob. 296; 10 L. 358.</p> <p>Sixth — An account rendered in one succession without citation, other than that of publication, to the heirs thereof, is not binding on them. 6 L. 225; 3An.383; 8N.S. 347; 2L.146;6L. 354; 8 L. 231; 16 L. 157; 13 An. 97, 537; 9 L. 284; 9 An. 85; 11 An 412,</p> <p>Seventh — An account to pay debts rendered in one estate is no bar to the enforcement oí an obligation due to another estate; the province of an accountis to obtain conclusive authority to pay or distribute funds, and not to bar or defeat claims not involved in the account, nor in any manner relating to the purposes for which the aocount was rendered. The whole effect of an accountis to conclude persons, as to passive debts therein expressed, and to protect the administration in their payments. 12 An. 337; H. D. p. 759, Nos. 2,13 et seq.</p> <p>Eighth — One who is acting as the agent of an estate must account in full for bonds and securities deposited with him for safe-keeping.</p> <p>Ninth — The possession by the executor of John Denegre’s estate, of bonds belonging to the estate of James D. Denegre, and which he has been charged, as executor, to return to the owner, is the possession of the estate he represents, and if he fails to account for them, that estate will he responsible.</p> <p>Tenth — The receipt of the bonds by John Denegre, for safe-keeping for the estate of James D. Denégre, and his written treatment of the bonds as the property of that succession, will estop him, and those claiming under him, from defeating a recovery of tbe bonds, by denying the title to be in that estate. 21 An. 594; Bigelow on Estoppel, pp. 420, 425; 8 Cal. 303; 9 Cal. 573; 6 Whart. 418; 9 Bing. 382.</p> <p>Eleventh — One who denies the usufruct of another for one purpose, cannot, in the same case, and for another purpose, admit it, nor gain an advantage in one direction by a denial of that, which, in the next breath is admitted, in order to secure a further advantage._ If. the usufruct is admitted as existing at all, it is admitted as existing in full.</p> <p>Twelfth — The acceptance of part of an obligation to make good, bonds which have not been accounted for, does not ratify the misuse of tbe bonds nor remit tbe balance due.</p> <p>Thirteenth — A depositary, mandatary or agent, cannot plead prescription to relieve himself from accounting for bonds left with him. 31 La. 565; 15 An. 469; 1 Eob. 43; 2 An. 997; 12 E. 535; 14 An. 230; 7 An. 535; 15 An. 143; 22 An. 151; 27 An. 133; 16 An. 397; 12 An. 630; Troplong, Prescription, vol. 2, Art. 490; 26 An. 476; 19 An. 491.</p> <p>Eourteenth — An account rendered to fix tbe moneyed interest of an heir in the cash of an estate, cannot include property as real estate, bonds and furniture, held in a state of in division.</p> <p>Eifteenth — An heir who desires to realize his interest in the real and movable property of an estate, must proceed by partition, and not seek through an account to have the value of that interest paid him.</p> <p>Sixteenth — There is no law which imposes a duty on executors to withdraw iunds belonging to major heirs from foreign investments or deposits made by the testator, more especially when the testator expressly leaves it to the discretion of his executors to retain said investments or deposit, as placed by him.</p> <p>Seventeenth — A loss of part of such a deposit by the failure of the bank where it was placed, and without fault of the executors, is not chargeable to them, and must he borne by the estate.</p> <p>Eighteenth — An heir who has been supported and his expenses paid by an estate, owned in common with other heirs, is properly chargeable with the costs or amount of his maintenance and such expenditures.</p>

<p>-An Intervenor, not having prayed for citation against Plaintiff, is no party to the latter’s suit and cannot offer evidence on the trial of the case.</p>

Monroe, J. First — A criminal conviction of the State Treasurer, under Sec. 3784 Revised Statutes of 1870, is not an essential pre-requisite to a suit for the recovery of the fourfold penalty therein provided in favor of the holder of warrants, payment of which has been illegally refused. The criminal prosecution and civil suit are independent of each other. 12 Wheaton, pp. 14 and 15.

Bightor, J. To render a conventional mortgage valid it is necessary that the exact sum for which it i© given shall be declared in the act. O. Code, article 3309 ; 2 An. 790 ¡ 9 R. 482; 17 An. 00.

<p>On the Motion/to Dismiss.</p> <p>93io Intrusion into office Act is yet in force and linropealed or unaffected by any provision in the Constitution of 1879.</p> <p>In proceedings under tliat Act, the failure of the State to appeal does not prevent any other party in interest from doing it.</p> <p>Whilst this Court will not compel the Attorney General by Mandamus to tako and bring up an appeal in the name of the State, still that officer cannot bind the State by acquiescence in a judgment adverse to her.</p> <p>A mere allegation of acquiescence, contained in a motion to dismiss, unsupported by affidavit, does not justify tbo remanding of a cause for the purpose of having the question as to acquiescence tried in the lower court.</p> <p>On the Merits.</p> <p>The State has the undeniable power to prescribe qualifications as conditions precedent to the right to hold office, and, in ordaining such qualifications, the State Constitution could enact provisions with a retrospective effect, without violating the Federal Constitution.</p> <p>Article 171 of the Constitution, providing for the ineligibility of public officers for certain causes, was intended to have a retroactive operation as well as to provide for the future.</p> <p>The reason, object and means of enforcing said Article 171, fully considered.</p> <p>In an issue as to the eligibility of a public officer under the, same Article, the discharge obtained by him from the competent authority cannot be attacked collaterally. It must be done directly, and the discharge must be averred to have been obtained by fraud or error.</p> <p>The admission of Defendant, that he has made no settlement with the School Board of the Parish for school funds, though coupled with the allegation that he has disbursed more money than he received, on account of said Board, and that his vouchers have been filed with the State Auditor, — is a full solution of the question at bar. As he has not obtained his discharge from the proper authority, the School Board, he is not eligible under Article 171.</p>

<p>On the Motion to Dismiss.</p> <p>Two appeals having been granted to the same appellant, the appellee moved the dismissal of both.: of the first appeal, for alleged irregularities, and of the second,, on the ground that the first order having once been granted and a bond thereunder filed by appellant, the lower court was divested of jurisdiction and had no authority to issue the second order. JECeld that, if the first order of appeal was illegal, the lower court was not divested of its jurisdiction over the case and could legally issue the second order.</p> <p>It has never been held in Louisiana that a party must move for a new trial in a jury case, as a condition precedent to his appeal, though it is, as a general rule, proper that he should do so.</p> <p>To take away the right of appeal, there must bo an unconditional, voluntary and absolute acquiescence in the judgment rendered, on the part of the appellant.</p> <p>On the Merits.</p> <p>The tenant of a predial estate cannot claim an abatement of the rent, under Article 2743, C. 0., on account of an overflow of the Mississippi River. Such an event is not one of the accidents of extraordinary nature that could not have been foreseen by the parties. Decision in 16 An., 162, affirmed.</p> <p>The surety is only discharged by a prolongation of .the term o£ payment granted the debtor, when it is granted by a party having the legal authority to do so. The administratrix of a succession lias no such authority 5 and the fact that she was also widow in community does not give her any additional power in that respect.</p> <p>An issue which was not raised in the lower Court and is made for the first time in the brief of Counsel in this Court, shall not be noticed or passed upon.</p>

Rogers, J. Where a bond is given by a cashier of a bank, with sureties who are each bound for a separate amount, and the bond contains a promise on the part of the principal and sureties to pay said amounts to the President and Directors of the bank, and also recites that if the principal faithfully perform his duties as cashier, the bond is to be void, but otherwise of full force and efíect, such bond is, in legal intendment, in favor of the bank, and the bank can maintain…

' Bridger, J. Pirsfc — Sec. 843 It. S. does not contain an exception or proviso. Second — Provisos in statutes are not required to be set out in an indictment charged thereunder, unless the proviso or exception is a part of the definition of the crime. 25 Conn. 48 j 24 Conn. 522. Third — When an indictment conforms to the wording of the Statute under which it is drawn, it is valid.

<p>Tb* -nullity of purchases by administrators of successions, of the property thereof, though absolute in one sense, may be ratified by the parties in interest. 33 An. 598.</p> <p>The receipt of the price of sale by the heirs would be a sufficient ratification, if made with knowledge of the facts from which the nullity resulted.</p> <p>The Defendant, urging that Plaintiffs cannot assail the legality of the sale because they have ratified it, should have specially pleaded the estoppel and cannot set it up under the general issue. Such defense is analogous to that of payment, release, novation, etc. and. must he specially pleaded.</p> <p>In a suit by the heirs for the recovery of property thus bought by the administrator, the tender of the price of sale is not necessary as a condition precedent. All that equity requires in such case, is to permit the defendant administrator to claim the-amount in re-convention.</p> <p>The plea of the necessity of tender of the price of sale should be setup m limine or, at least, specially.</p> <p>The deiendant administrator in such case is, in the sense of the law, a possessor in bad faith and, as such, bound to the restitution of fruits and revenues.</p> <p>On the other hand, he is entitled to reimbursement of necessary expenses for the preservation of the property, under Article 2314, O. 0., and to proper compensation for construe* tions and improvements, under Article 508, O. C. There is no reason to say that this article does not apply to possessors in bad faith.</p>

Hightor J. First — That the holder of a mortgage with the non-alienation clause can proceed directly against the property, making the third possessor defendant.] Second — That when a succession is insolvent the demand and notice required by Act 69 are useless and not necessary, and the holder of mortgage containing the pact can proceed against the property in the hands of the actual owner and possessor via executiva.

An appeal lies from an order dissolving an injunction on bond, whenever it may cause irreparable injury — The injury is irreparable when the act complained of amounts to a change of possession of immovable property. A mandamus lies to compel a district judge to grant an appeal from such an order, and he will he prohibited from enforcing it until the appeal is determined. 14 An. 57 ; 11 An. 39; 22 An. 512; 24 An. 154; 26 An. 603 ; 23 An. 51.

Thompson, J. Where A intermarries with C, surviving spouse oí a father of a family of children, who are minors, and by private act of sale disposes of a portion of the landed estate belonging to the succession as his individual propeity, in which his wife intervenes, relinquishing her liens and privileges upon the property, as the property of the husband, in fítvor oí his vendee, the act of sale is not an administrative act ; and so far as the succession is concerned cannot…

Bightor, J. First — To recover damages for false arrest, the arrest must have been (a). Malicious. (b). Wanton. (c). Without probable cause; and there must be ■ (d). Proof of actual damages. Second — Attorney’s fees cannot be allowed as damages. Third — Sales made out of the usual course of trade are denounced by the bankrupt law as “prima facie fraudulent,” and this sale being proven, there was ample probable cause for the arrest.

Lynch, J. In case of Composition proceedings under Act oí Congress of 1874, where a creditor has two-distinct debts, and one only is placed.by the debtor on the statement of debts, the omitted debt is not affected by the composition, although the creditor participated in the proceedings.

Luzenburg, J. JFfrst — 'When the exact; point in a bill of exceptions cannot be discovered, tbe bill must be disregarded. 1 Parker, 272; 6 An. 420, 651; 11 An. 283, 430; 12 An. 679 ; 14 An. 461. Second — If the evidence has a diroct tendency to prove the particular crime charged, it is admissible, although it tends to prove the commission, or contemplated commission, of another separate and distinct offense. 38 Mo., 496, 587; 42 Ib.» 242.

Oheevers, J. First — On the 21st; of October, 1868, a donation inter vivos was made on certain express condi • tions and stipulations set out in tbe act by tbe late J. B. Futch to defendant, Mary Jane Cantey, of notes to tbe amount of §6256 98 made by John X). Cantey, ber busband, and secured by vendor’s lien and privilege on bis property. (31. page 87).

<p>Application for a Prohibition.</p>

Lnzenburg, J. Questions of law in criminal cases are reviewable by this Court only when they come up by bills of exceptions or assignments of error. First — It is not essentially necessary that questions should he brought before this honorable Court on hills of exceptions or assignment of errors to authorize its interference. The court can taire cognizance of all errors patent on the record. State vs. Krepple et al., 20 An. 402.

Cole, J. First — The provisions of Art. 656 C. 0., if interpreted to the letter, would, in effect, condemn to sterility the superior estate. Every man has a right to clear and cultivate his land; he may make ditches, not for the purpose of making the water flow upon the adjacent land, but for the purpose of improving and cultivating his own, and nothing it healthy.

Houston, J. Eirst — A party to a cause who, without reservation, introduces in evidence an official certificate, cannot impeach its integrity or the truth of its statements. ■ Second — -The father of the insured died of Bright’s disease of the kidneys. Defendant company accepted an application in which it is stated the father died of paralysis.

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

Judicial District Court, parish, of Lafayette. Mouton, J. Hirst — There was no p irtition of the plot of ground sought to he expropriated from the Boudreaux heirs nor of the grading thereon, the joint and undivided value whereof is in contest. Rec. p. 36-7-8.

Rightor, J. First — When the appellant has not filed the record within the time fixed in the order of appeal; nor within the three days of grace; nor within the further time allowed him by the Supreme Court — the appellee has a right to presume the appeal has been abandoned; and has the right also to demand its dismissal and rejection, and to conclude the appellant from a renewal of the appeal, if it appear from the transcript that citation of appellee was served on appellee.

<p>The certificate of the Recorder of mortgages stating that an act of partnership in commendarn was registered in the mortgage office, in a certain book, of which the number and folio are given, there arises a legal presumption that the registry was made in the manner prescribed by law, especially when no attempt has been made to disprove the truth and correctness of said certificate.</p> <p>A partner in commendam may have with the firm with which he is thus connected, all the business transactions which a stranger could have, without thereby taking part in the affairs of said firm and rendering himself liable for its debts.</p> <p>Oral evidence is inadmissible to prove the promise of a person to furnish his signature on negotiable paper to another party, when the purpose of the evidence is to show that such person is liable for the debts of said other party by virtue of the promise.</p>

<p>APPEAL from the Third District Court for the parish of Orleans. Monroe, J.</p> <p>First-Judgments against a dead man are void. Edwards vs. Whited, 29 An. 647; Surgi vs. Colmer, 22 An. 23 ; Garard vs. Reed, 5 R. 508.</p> <p>Second — Judgment against a living man cannot he executed by fi. fa. after his death. Hall & Lisle vs. Bolden, 29 An. 118.</p> <p>Third — Either a judgment or assessment in a name other than that of the owners, is void and does not bind them, and cannot be executed against them. City vs. St. Romes, 28 An. 17 j City vs. Schmidt, 10 An. 771 ; Fischel vs. Mercier, 32 An. 705; Lague vs. Boagni, 32 An. 912; Gindry vs. Broussard, 32 An. 924; Thibodeaux vs. Keller, 29 An. 508; Stafford vs. Twitcbell, 33 An., not reported.</p> <p>Fourth — Heirs need not be recognized by judgment of probate court to maintain an action to protect inherited property. Le Page vs. New Orleans Gas Light Co., 7 R. 183; Tugwell vs. Tugwell, 35 An. 823; Carter, Congreve et al. vs. Fowler, 32 An., not reported.</p> <p>Plaintiffs having had full knowledge of the assessments complained of, and having, through their counsel, applied for and, in some instances, obtained reductions, in the name orstyle in which the assessments were made, they are bound by said assessments, although not made in their individual Dames.</p> <p>The assessment and judicial collection of the city taxes complained of were governed by Acts Ho. 7, Extra Session 1870, and Ho. 73, of 1872, and not by the Acts of 1856,1858 and 1859, cited by plaintiffs.</p> <p>If the sheriff’s advertisement identifies the property, the description is sufficient.’</p>

i PPEAL from the Sixth Judicial District Court, parish of St. Helena. XX Duncan, J. Eirst — A giving in payment made by a transferror who i3 insolvent and to transferree aware of the fact, is null and void. C. C. 1982,1983; De Greek & Co. vs. Murphy & Gaines, 26 An. 297.

<p>An issue about the legal stains of one of the parties, which requires the introduction of evidence to prove the facts alleged, cannot he raised in this Court. '</p> <p>Unless the sheriff, in offering property for sale at public auction, announces, after reading the mortgage certificate, that the purchaser shall have the right to retain the amount of the anterior mortgages and piivheges, there can he no valid adjudication.</p> <p>But the nullity is susceptible oi ratification.</p>

Pardee, J. First — A defendant who goes to trial without requiring a decision on her plea of res judicata waives it. Second— Ex parte orders rendered without any contestatio litis and without any evidence to suppoit them, do not constitute the authority of the tbiDg adjudged. Third — Marriage and heirship must be judicially established like other facts. Fourth — Probate courts have no jurisdiction to determine by ex parte orders questions of heirship.

<p>.On application for Writs of Certiprari and Prohibition.</p>

Hough, J. First — It might be forcibly argued that under the Constitution of 1879 no taxes for the con struotion of the public levees could be imposed, except one mill ior the State and five mills ior the districts. Article 213 requires the State to maintain ‘‘alevee system,” and to that end authorizes a general tax of one mill on the State at large, and five mills on the alluvial portions of the levee districts.

APPEAR from the Civil District Court for the parish of Orleans^ Lazarus, J. Congress shall have power to regulate commerce with foreign nations and among the several States. tT. S. Constitution, Art. I, sec. 8, par. 3. Ho State can impose a tax upon freight transported from State to State, or upon the transporter because of such transportation. 15 Wallace, 281. Pirst — The tax complained of is levied under the provisions of the Act Ho. 77 of 1880.

Sogers, J. ■j’irst — Articles 190 and 196 O. P. do not order that the name of the agent of an absent defendant should appear in the petition. Second — Proof on the trial, that the person served as agent was duly authorized, and his principal was absent, being the principal before tbe court, 3 An. 453; 3 An. 9; 7 An. 268; 17 La. 498; 17 La. 587, is sufficient. 3?irst — The petition must mention the name and place of residence of the defendant, or the place where he lives.

<p>APPEAL from the Fifth District Court for the parish of Orleans. Bogers, J.</p> <p>(First — A subsequent law, wliicli is general, does not operate tlie repeal of a special law upon the same subject without expressions declaring an intention to repeal, or “unless there be such, repugnancy between them that they cannot both be complied with under any circumstances.” C. C. 17, 23,1946; De Armas, 10 M. 172; Sedgwick, p. 123; Blain vs. Baily, 25 Ind. 165; State vs. Newark, 2 Dutch (hT. X) 519 ; Sedgwick, 2d Ed. 97; 12 M. 697; IN. S. 161; 2 NT, S. 33; 3 N. S. 190; 51. S. 527, 575; 6 L. 135; 7 L. 166; 4 B. 71; 1 An. 54; 2 An. 919; 8 An. 398; 5 An. 121; 6 An. 605; 12 An. 498, 805.</p> <p>Second — "Every reasonable doubt as to the intention of the law-maker is resolved against rather than in favor of the retroactive operation of the Statute. Its retrospective features must be the necessary result oí a strict construction of its expressions.” “Wade 35, 58 ; Barb. 161; Pa. 357, 81; 4 Peters 401; 9 W. Va. 162; 23 M. 203; 41 Md. 453; 21 Wis. 268; 15 • "Wis. 548; 21 Conn. 351; 52 Pa. 315; 10 Conn. 77; 29 N. J. 311, 333.</p> <p>‘Third — “The general rules of interpretation are the same, whether applied to Statutes or Constitutions.” Sedgwick, 19; Cooley’s Con. Dim. 63; 3 Ind. 258; 21 NT. X 12 ; 10 O. N. S. 588; Wade on Betrospective Daws, 8, 37; Bishop on Statutory Crimes, § 92; 7 Md. 135; 5 Ind. 557; 5 Md, 337.</p> <p>Fourth — The special acts defendant claims have never been repealed.</p> <p>An Act for the relief of the Orphan Boys’ Asylum of New Orleans, approved March 12th, 1836, “ that from and after the passage of this act all the property, real and personal, belonging to the Orphan Boys’ Asylum of New Orleans, be and the same is hereby exempted from all taxation, either by the State, parish, or city, in which it is situated, any law to the contrary notwithstanding.”</p> <p>No. 96 — An Act for the relief of the Female Orphan Society and for other purposes. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That the exemption from taxation passed in favor of the Orphan Boys’ Asylum of New Orleans, by act approved 12th March, 1836, be extended to the Female Orphan Society, and to all other Orphan Asylums in the State, and to the House of Refuge for the Reformation of Juvenile Delinquents, and that they be exempted from parish and municipal as well as State taxation, any law to the contrary notwithstanding.” Approved March 25th, 1844.</p> <p>Fifth — Alleged repealing claims of the Constitution of 1868.</p> <p>Article 118: “ Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes.”</p> <p>Article 149: “All rights, actions, prosecutions, claims, contracts and all laws in force at the time of the adoption of this Constitution and not inconsistent therewith, shall continue as if it had not been adopted.”</p> <p>Sixth — The special acts of 1836 and 1844 were in force at the time of the adoption of the Constitution of 1868, and secured immunity from all taxation. “It is undeniable that the revenues derived from the property for which the exemption is claimed are devoted to the charitable purposes for which the Poydras Asylum was established; without such revenues or donations made to it, it is obvious that this institution would fail to accom: plish the praiseworthy public object for which it was established. Its successful operation may be considered as an auxiliary in the administration of the municipal government which is under obligation to provide for its paupers.” “ By the Act of 1847, the sites of these institutions were exempted from taxation ,• it is, therefore, clear that the Legislature, by the act of 1850, intended to grant them a more extensive exemption. But if the least doubt existed in our minds as to the true construction of this Statute, it is clear that the defendant would be "entitled to the exemption claimed under the acts of the 12th March, 1836, and 25th March, 1844.” “ The corporation of New Orleans derives the power of taxation from the Legislature; and as the Legislature has expressly withheld from it the power to tax defendant’s property, the attempt to tax such property must necessarily be abortive.” City of New Orleans vs. Poydras Asylum, 9 An. 589.</p> <p>•Seventh — Cooley on Taxation, p. 145: “ The exemptions commonly made by express Statute are based upon reasons so forcible that they have seldom been contested. We refer now to the exemptions of tools of trade j of the limited personal property of very poor persons; the property of córporations or associations devoted exclusively to the work of public charity, or in other directions where what they accomplish operates in the relief of public burdens and the like. Exemptions of the property of religious societies and of persons oc corporations engaged in instruction have not passed, are challenged on the score of right and policy; but the power to make them is unquestioned.”</p> <p>Eighth — Considered by the late Supreme Court. Unreported case, City of New Orleans vs. George ‘W. Campbell. On rehearing, Mr. Justice Egan, referring to property of this defendant, says: “Besides the exemption of the property itself with all enhancement of value from improvement results in this instance from the grace of the State toward an object of beneficence, a public charity which it is neither the will nor the policy of the law to tax.”</p> <p>Ninth — Property of defendant when acquired: Cotton press property was acquired in 1838; property in square 62 was donated by Mr. Poydras in 1824 ,• property in square 129 was given by Mr. Poydras in 1817 and was the original site of the Asylum. Record pp. 28, 29.</p>

A PPEAL from the Second District Court for the parish of Orleans., A Tissoí, J. ITirst — In determining the reduction to which .donations inter vivos or mortis causa are liable, the value of the property at the decease of the donor or testator is to be considered, but where the appraisement in the inventory, made after the death, is shown to he erroneous, the court should be guided in fixing the value by other and more reliable evidence.

Mary. Goode, J. First — The Governor of the State of Louisiana cannot .remove a constitutional officer, nor use* the appointing power vested in him by the Constitution to fill an elective constitutional office, before a vacancy in such an office is judicially declared according to law, or before the incumbent has been removed by address, or has resigned or died. 24 An. 19 and 595-j 25 An. 119; 32 An. 934; 21 An. 490; L. L. p. 499, No. 18.

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

. Saucier, J. First — Defendant pleads simply tlie general denial. He sets up no claim in reconvention, compensation or otherwise. Second — The only issue of fact to be decided is: Did plaintiff deposit with Mrs. Kelsey as much as 61140 ? This is proved by plaintiff, and corroborated, independently of the admission of Mrs. Kelsey. Much more than $1140 is proved.

Houston, J. A judgment against garnishee, legally entered, cannot be set aside by motion. The garnishee must resort to a direct action. A writ of fi. fa. is the essential basis of a valid garnishment process. 28 An. 319, Boss & Co. vs. Merchants’ Insurance Company.

Montgomery, judge acl hoc. First — An executor stands on a different footing from an administrator, and a judgment agains an executor in one State is grima fade evidence of a debt in a suit against another executor of the same testator in a different State. Hill vs. Tucker, 13 Howard, 458; 10 L. 14; 7 R. 206. See, also, Fisher’s Digest, page 5038.

Whitaker, J. First — G-rounds set out in a motion for a new trial are not reviewable hy this Court when they involve a consideration of the testimony introduced before the jury.

Rogers, J. First — The joint ownership of real estate does not create a partnership as to the same. A special contract in. writing is necessary for that purpose. C. O. 2836 $ 4 An. 217. Second — But a planting or agricultural partnership between such joint owners as to the cultivation of the land, may be established by parol. 25 An. 593; 4 An. 217.

Knobloclc, J. j’irst — This Court cannot review a judgment refusing a new trial which was asked on the ground of newly discovered evidence. 21 An. 473 ; 22 An. 468. Second — Objection to the formation of the jury comes too late after going to trial. 8 R. 514 ; Sec. 5, Act No. 32 of 1840, p. 28.

Delaney, J. ' Pirst — A creditor can assert all tbe rights of bis debtor either to recover property in bis behalf or to assert a right on property. 30 An. 727-733 j 2 An. 782 j Code bTapoleon, 1166; 4 Maroadé, p. 433, with bis comments on that article. Second — A revocatory action seeks to annul an act done by liis debtor in fraud of bis rights. It does not refer to non-action of the debtor. Civil Code, Art. 1969; 30 An, 733-4.

Judicial District Oourt, parish of Concordia. Hough, J. .Eirst — The Art. of the C. P. in reference to suing one at Ms domicil can have no application to a proceeding against a District Attorney to remove Mm from office because he is a non-resident. • Second — The question of domicil is the sole question in the ease upon its merits, and, therefore, can only he tried upon answer, giving the State as well as the defendant an opportunity to produce evidence.

Rogers, J. j'ixst — The weight of the evidence shown to be that defendant committed the slander complained of. Second — A proper interpretation of defendant’s own evidence also fully proves that fact. Third — Evidence of special injury arising from a slander is unnecessary to show that plaintiff has sustained damages. C. C. 1934; 16 Da. Rep. 389.

Pardee, J. First — The proof of malice need not be direct; it may be inferred. 15 An. 605. Second — Where, in legal intendment a prosecutor acted maliciously, there is a right to tbe action for damages. 15 An. 337. Third — In an action for damages for a malicious prosecution, it is shown tbe defendant acted from motives of private interest, and bis prosecution of tbe plaintiff was dismissed, tbe advice of counsel will not exempt bim from liability. 15 An. 672.

<p>On Motion to Dismiss.</p> <p>Appellant not having asked, that all the Defendants and. Warrantors he cited as Appellees, the Appeal must he dismissed.</p> <p>The want oí proper parties in this Court will he noticed at any time, in any form of suggestion and, even, ex mero motu,</p>

Knoblock, J. An information under Sec. 791, Revised Statutes, charging the defendant with “ wilfully and feloniously” shooting, is deficient, and should have charged the shooting to have been done wilfully, feloniously and maliciously, or with malice aforethought, with the intent laid.

<p>This Court will not issue the writ of Prohibition where the evil complained of, may be remedied by Appeal.</p> <p>The mere apprehension that two courts, trying cases between the same parties, may issue conflicting orders to the injury of the Relator, is not a sufficient cause for this Court to-interfere, by anticipation of the conflict, in the proceedings of one of the two courts, and issue the writ of Prohibition against the judge thereof.</p> <p>The writ of Prohibition is not one of right, and should only issue in cases of usurpation of power or jurisdiction by the lower court. 32 An. 1186.</p>

.ApPLIOATION for the writ of Prohibition. 'First — The inferior oourt has power, exproprio motu, and a fortiori, upon motion of parties, to rescind an order of appeal improvidently issued, either “because the delay within which it should have been asked has elapsed, or because the case was unappealable.” 32 An. 816.

Eightor J. P'irst — Injunction obtained on sworn allegation of irreparable injury cannot be dissolved on bond if the allegations were sufficient to obtain the injunction. Second — A suit cannot be dismissed on plea of lis pendens when no proof was offered of the existence of another suit involving the same issues.

Knoblock, J. This case was submitted in New Orleans, and by consent of parties was decided at Monroe. Eirst — There can be no rebuttal where there has been no evidence for the accused. Second — When the State closes its case and the accused offers no evidence the Slate cannot call any other witness. It is in tlie discretion of the judge to allow the State, having closed, to offer another witness. 27 An. 694; 29 An. 716.

Bogers, J. First — The grant by the State of Louisiana to the Crescent City Live Stock Landing and Slaughter-House Company, by act Ho. 118 of 1869, of the exclusive right to carry on the business of live stock landing and slaughtering in the parishes of Orleans, Jefferson and St. Bernard, for a period of twenty-five years, is a valid grant, binding upon the State and the citizens of the State. State exrel. Belden vs. Fagan, 22 An. 545; Slaughter-House Cases, 16 Wallace, 36.

Cole, J. First — The amended petition was improperly allowed. Being offered on the day of trial it was too late. The injunction having issued without bond, no ground requiring a bond could be considered. 31 An. 112; 30 An. 1164. Amendments to petitions for injunction not allowed. Rhodes vs. Union Bank, 7 R. 63; Bayley vs. Tate, 10 R. 45. The pendency of a suit to evict whioh was the averment of the amended petition, requires a bond. O. P. 298-309.

Houston, J. ¡First — “The leading principle of the law of trade-marks is, that the manufacturer or merchant who has produced or brought into market an article of use or consumption that has found favor with the public, and who, by affixing to it some name, device or symbol, which serves to distinguish it as his, and to distinguish it from all others, has furnished his individual guaranty,,oí its value, shall receive the reward of his skill, and shall not he deprived thereof…

Eirst — The single point under discussion in this suit is to determine the particular class of acts which our law intended to denote by the term “ trespass.” Second — The term “ trespass'' is derived from the Common Law of England: it must then be taken in some one of the meanings it had in that system. R. C. C. Art. 15.

Houston, J. First — The Bank of Commerce, of St. Louis, having remitted to the Southern Bank, of New Orleans, three checks, aggregating $21,000, to be applied with the balance of its account in paying a check drawn by the remitting bank upon the collecting bank of $35,000 : and the Southern Bank having collected^ the money on the checks* on the morning of its suspension, and after it had ceased, operations, but failed to apply the proceeds as advised, the remitting bank is…

Rogers, J. First — On an allegation of ownership, any person or corporation may prove such allegation by any species of evidence not prohibited by law. Second — On a merger of a defacto, into a dejure corporation, all rights being transferred, the new company can judicially assert its claims in court.

Bogers, J. Eirst — Mortgages, under the hypothecary system of Louisiana, may be given to secure debts having no legal existence at the date of the mortgage, and to secure loans to be obtained in the future on the faith of its security. C. C. 3292 (3259.) Such mortgage shall be realized, in so far as the promise shall be carried into effect, by the person making it.

<p>i PPEAL from the Civil District Court for the parish of Orleans. n_ Tissot, J.</p> <p>First — A mandamus will lie to enforce the performance of amere ministerial duty against the-State Treasurer. C. P., Art. —, and 2 Otto, McComb.</p> <p>Second — The State debt ordinance in the second article is not conditional on the creditor’s-acquiescence in the third article, and any legislation to produce that result is unconstitutional and void.</p> <p>Third — The refusal of the Treasurer to stamp the bonds at the reduced interest is based on an unconstitutional statute of the Legislature requiring surrender of the coupon due January 1,1880, without payment, which effectually violates the Federal Constitution, Art. 1, Sec. 10, by impairing the obligation of a contract.</p> <p>Fourth — The State judges are personally and officially bound to administer the Federal constitution as the “supreme law of the land.” 1 Wheaton, Hunter vs. Martin ; 1 Wh., 340.</p> <p>Fifth — -This proceeding by mandamus is in no sense a suit against the State, but, on the contrary, is authorized by the State to enforce her will, as expressed in the organic law, according to justice and equity.</p> <p>Sixth — The State is not presumed to have authorized its officer to resist obedience to her behests, based on an iniquitous condition in a statute, which amounts to confiscation, spoliation or repudiation, because she was powerless under her Federal relations to do so if' this were attempted.</p> <p>First — This Court has no jurisdiction in this case, as the amount involved is under one thousand dollars.</p> <p>Second — The State Treasurer is prohibited from stamping these bonds by Act Ho. 121 of 1880, unless the January coupons should be surrendered.</p> <p>Third — The relator cannot accept one portion of the debt ordinance and reject another.</p>

Bightor, J. First — Reicliard’s pledge is invalid because there was no actual delivery. 17 L. 185-428; 18 L. 453 ; 6 A. 516 ; 19 A. 368 ; 26 A. 185 ; C. C. 3162. Second — He has no seizure because the description of the property is too vague to give any information as to what was seized. Third — He lost any privilege under his fi. fa. by the failure to obtain a copy within twenty-four hours. C. P. 642.

First — Parties to a check for advances on a contract mentioned in the body of the check, commit themselves by tbeir signatures on the check, and cannot afterwards contradict the conditions forming the basis of the advance made, in order to exonerate themselves of the misapplication of the money to a contract different from that mentioned in the check.

<p>It is-enough that the minutes of the court show that the Information was filed witli the consent of the court; it needs not appear on the face of the Information itself.</p> <p>When the accused has not requested the court to assign Counsel to defend him, under the statute, he cannot complain that none was assigned to him, and make it the ground of a new trial. s</p>

<p>APPEAL from the Seventeenth Judicial District Court, parish of East • Baton Rouge. Sherburne, J.</p> <p>First — The Act Bo. 84, of 1878, undertaking to regulate the observance of the Christian Sabbath, is violative of the Constitutions of Louisiana of 1868 and 1879, and of the treaty of cession of Louisiana. Constitution 1868, Art. 12; 1879, Art. 4; Cooley, Constitutional Limitations, 476.</p> <p>Second — The title of the Act Bo. 84, Acts of 1878, does not express the objects embraced in the body of the act, and is, consequently, unconstitutional. Cons. 1868, Art. 114; Cons. 1879, Art. 29.</p> <p>Third — The Act of 1878, Bo. 84, the Sunday law, if a general law, does not repeal Sec. 0, Act of 1878, incorporation of Baton Bouge, a special law. The inconsistent provisions of a general law do not repeal the provisions of a special law. 13 An. 458; 12 An. 49?, 805.</p> <p>Eourth — The General Assembly is without power to delegate its legislative power to a police jury in the manner in which it is done in the Act of 1878, No. 84. Cons. 1879, Arts. 14 and 15; Cooley, Cons. Lira. 141.</p> <p>Eifth — The Legislature being prohibited from enacting local laws, cannot indirectly do so, as done in the Act of 1878, No. 84. Cons. 1879, Arts. 46 and 48.</p> <p>Sixth — Where an Act is unconstitutional under the Constitution of 1879, it is destroyed thereby, although not unconstitutional under the Constitution of 1868. Constitution 1879, Art. 258. .</p> <p>Seventh — The ordinance of the police jury of East Baton Rouge, prohibiting the “keeping open establishments on Sunday, for the purpose of selling,” is not authorized by, nor responsive to, the enabling Act of 1878, No. 84, which authorizes police juries “to make such "regulations as they may deem proper in regard to the sale, barter, or exchange of intoxicating liquors or merchandise on Sunday, and to totally prohibit the same on Sunday, if in their judgment necessary.”</p> <p>Eighth — An indictment for statutory offence must describe the offence in the words of the statute, or words certain and equivalent. 5 An. 324. Nothing can be taken by intendment. 10 An. 191.</p> <p>Ninth — An attempt to commit an offence is not punishable, unless there is a statute making it penal. Under our system, we have no offences except those so declared by statutes. 7 Rob. 252, and many others.</p>

Sherburne, J. Pirst — 'When an indictment which is indorsed “a true bill” and signed by tbe foreman of tbe grand jury is found in tbe record it is evident that tbe same was a finding of tbe grand jury. State vs. Brown, 32 An. 120. Second — In the examination oí a juror on his voir dire it is proper to ask him whether he has prejudices against convicting on circumstantial evidence. Third — The State has a right to recall a witness bofore closing the case.

A PPEAL fro.m the Fifth. District Court for the parish of Orleans, ii Rogers, J. First — The defendant, a momber of the firm of Levi & hTavra, or Levi, Navra & Co., could not relieve himself from his liability as a commercial partneo by selling out his interest to a third person.

<p>The graduates of the Law Department of the University of Louisiana must obtain a license-from the Supreme Court, before they are admitted to practice, as attorneys-at-law, in any court of the State. Section 112 of the Revised Statutes does not make their diploma the equivalent of a license; and they are liable to the Clerk of this Court, under section 756». Revised Statutes, for his fee of §10, for a certificate of admission. In the present case, the applicant having been admitted to practice in all the courts of the State, by order of this Court, the object of the required license has been fulfilled, and such order is equivalent , thereto.</p>

Ellis, judge ad hoc. All matters put at issue in a suit for partition are concluded by the judgment rendered therein, which will operate as res judicata. The doctrine announced in 10 A. 636 applies only to such matters as arise before the notary, after the decree of partition has been ordered, and which were not submitted to the Court prior to rendering that decree.

JEllis, judge ad hoc. Tho Supreme Court is without jurisdiction. The principal of the judgments of Winter & Hunter vs. Peter Hunter is, in one case, $500, and in the other $397 57, amounting together (exclusive of interest) to $895 57, which sum, without deducting $105, which has been paid on the judgments, is insufficient to give the court jurisdiction.

Gunbyy judge ad hoc. Testimony before the clerk is subject to such objections as may be made at the taking thereof, and also subject to such other objections as may he mad© to the introduction thereof on the trial. R. R. S. § 491. The administrator of an estate represents the creditor as their trustee. 2 An. 923; 4 An. 169; 21 An. 149.

<p>ApPEAL from the Becorder’s Court for the City of Monroe.</p>

<p>The judgment appealed from, being* rendered against all the Defendants indiscriminately and without severance, and being, therefore, indivisible, and proper showing* being made in this Court that one of said Defendants was dead at the time the judgment was rendered and the appeal taken, it is ordered, on Motion of the legal representative of the dead Defendant, that the judgment be set aside and the case remanded to the lower Court for the appearance of proper parties.</p>

<p>This Court cannot review a verdict and judgment of tbo court below, on tbe ground that Appellant is charged in the indictment with having committed the ofience on the 19th of March, 1880, and the evidence shows that the offence was committed on the 19th of March, 1881. Were this Court to review such evidence to ascertain whether the averment in the indictment was or was not properly sustained by the proof, it would be trying the case on appeal as to the facts.</p>

Mam, J. First — The revival of a judgment simply averts prescription. It does not make valid that which is invalid. Held: in June, 1879, that the plaintiff had properly cited the assignee in order to revive the judgment.. The case was not remanded to try that issue, which was settled ¡ and the District Judge was without authority to overrule the Supreme Court and refuse to revive the judgment.

J. Bridger, A-n action to compel an Administrator to account and to destitute may he cumulated. 14 An. 779; 4 An. 486.

<p>When immovable property bag been sold by authentic act, valid on its face and accompanied by actual delivery and continuous possession and control by tbe vendee as owner, a creditor of tbe vendor cannot seize tbe property in disregard of tbe transfer ; and, when enjoined by tbe vendee, sucb seizing creditor will not be allowed to allege and prove that • tbe sale is a fraudulent simulation. Review of tbe whole jurisprudence of Louisiana on this subject.</p> <p>Tbe title of tbe vendee, under sucb circumstances, can only be attacked in a direct action in avoidance of tbe sale, whether revocatory or en declaration de simulation.</p> <p>And, in sucb direct action, whether revocatory or en declaration de simulation, tbe plaintiff must aver and prove that tbe act sought to be avoided, operates injuriously to him.</p>

APPEAL fi;om the Sixth Judicial District Court, parish of Morehouse. Vaughan, judge ad hoc. Eirst — Parol evidence is admissible for the purpose of correcting ah error or mistake in a written deed to land. Second — Parol evidence is admissible to show that such deed is not the repository of the intentions of the contracting parties. The sale of a thing belonging to another, is null and conveys no title. C. C. 2452¿ 27 An. 492.

^PPEAL from the Civil District Court, parish of Orleans. Tissot, J. (Decided in Monroe by consent of parties.) ITirst — Tbe concluding article of tbe ordinance of tbe Convention for tbe relief of taxpayers, includes interest and costs when it refers to taxes and licenses. Second — Tbe words taxes and licenses in Act 49 of 1880, includes interest and costs. Third — Interest is an incident of tbe principal — and is governed by same rules as to its manner of payment.

Brigham, J. First — On. arriving at age, the sole heir ean attach sales of his father’s estate while he was a minor, on showing that sneh sales were illegal and injurious. Second — The administrator cannot renounce prescription on a claim against the estate. Third — A writ of seizure and sale cannot issue until notice of the order has been served and the delays given.

<p>On Motion to Dismiss.</p> <p>This is an injunction suit to prevent the seizure and sale of homestead property worth $600. The judgment, of which execution is enjoined, is lor $1076. Held that the matter in dispute is the homestead property, and the claim is below the appealable amount, necessary to give this Court jurisdiction.</p>

<p>The Administrator of a Succession, who has placed a privilege creditor, as such, on his account and tableau of distribution, cannot afterwards pretend to amend his tableau and recognize such creditor only as an ordinary one, on the ground that the acknowledgment of the privilege was made in error of fact, without proving, not only the error, but, also, that he was ignorant of it, at the time he presented the original account.</p> <p>The fact that a privilege creditor has received part payment of his claim by anticipation and from the general funds of the estate, will not prevent him from being paid the full, balance of his claim out of the particular fund upon which he has a special privilege.</p>

Blchardson, J. Hirst — A wife has a claim against her husband for the proceeds of her slaves sold by him before the close of the war. Second — Confederate money was a good consideration during the existence of the Confederate Government, and where Confederate money belonging to the wife was used by the* husband, she can recover its value in United States currency or gold.

<p>APPEAL from the Sixth District Court, parish of Morehouse. Brig- - ham, J.</p>

<p>APPEAL from the Fifth District Court, parish of Ouachita. Richardson, J.</p>

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

Stubbs, special judge. The homologation of a tableau of distribution does not bar a second administration of the succession, where the funds represented by the tableau to be in possession of the administrator have never been distributed, and tbe second administration is provoked for the purpose of bringing into the succession property held by third persons under simulated titles; aud in such proceeding the administrator is the proper party to represent the succession.

A PPEAL from the Fifth Judicial District Court, parish of Ouachita. Richardson, J. 3Tirst — •‘When a creditor holds but one claim against the debtor, and the debtor writes to him about the debt you hold against me,” the promises made will be held to have been made in reference to the claim held by the creditor, without the debtor’s specially describing the claim.

<p>The amount in dispute being more than $200 and less than §1000, the Court of Appeals is commanded by Mandamus to entertain jurisdiction and try the case. Same reasons as in Winter & Hunter vs. the Judges of the Court of Appeals of the Second Circuit, decided at same term.</p>

<p>APPEAL from the Fifth District Court, parish of Ouachita. Richardson., J.</p> <p>Plaintiff’s demand is that he be decreed to have paid a judgment for $703 principal, for $3CQ vindictive damages, and $200 damages for legal expenses.</p> <p>The test of jurisdiction is-what plaintiff demands and defendant denies — this gives the matter in. dispute.</p> <p>Suppose the District Judge had given plaintiff judgment for $300 vindictive damages, would the Circuit Court have jurisdiction of defendant’s appeal ? Could that Court revise a judgment for 1003 ?</p> <p>Could the Circuit Court amend the judgment rendered, by giving plaintiff $300 ? or, the whole §500 claimed in his petition?</p> <p>The Supreme Court alone could review a judgment for $1003 or §1203 — or amend the judgment for $703 by increasing with the damages prayed for. «</p>

Graham, J. This case was argued and submitted at Monroe and, by agreement of Counsel, was decided at Opelousas. .

<p>On Motion to Dismiss.</p> <p>Appellees seek to recover judgment against Appellants for 8234, and to annul a transfer of property made by Appellants for more than $1000. Held that the matter in dispute is the right of Appellees to submit the property to the judgment for $234, and that this Court has no jurisdiction.</p>

<p>APPEAL from the Third District Court, parish of Union. Graham, J.</p>

<p>. On Motion to Dismiss.</p> <p>In a suit in which the Plaintiff claims $964, and the defendant admits his indebtedness to the amount of $600, the matter in dispute is the difference between these two sums, and the case is, therefore, not appealable.</p> <p>A seizing creditor, whose judgment, for $964, is enjoined, cannot, upon dissolution of the injunction and rejection of his claim for the statutory damages, appeal to this Court on the ground that the damages, added to the amount of the judgment, make up the appeal-able sum.</p>

Bridger, J. When the petition shows that a judgment was rendered against a parish during the existence of the law for a special judgment tax, and that there is no provision made for its satisfaction, there is a cause of action against the police jury of the parish to cause a special tax levied and collected for that purpose. 31 An. 709, 765; 32 An. 884.

Bichardson, J. Eirst — After default taken, and answering to the merits, the defendant can not plead any exception which is dilatory in its nature. Second — After answering to the merits setting up payment, it is too late for the defendant to plead a certificate of protection from the Bankrupt Court, of which he was in possession before and at the time of the institution of the suit. Third — Such an exception is dilatory in its character and must be plead in “ limine litis.

<p>ApPLICATION for writ of Mandamus.</p>

<p>APPEAL from the Twenty-Fifth Judicial District Court, parish of Lafayette. Moulton, J.</p> <p>Tlie capacity and status of an heir is to be determined by the laws in existence at the date of opening of the succession.</p> <p>The status of a child depends upon that of the mother, the child of a free woman is free, 'and the child of a white woman is white.</p> <p>Illegitimate children may prove their maternal descent and the acknowledgment of their mother by any legal evidence, for all purposes. 26 An. 99; 4 An.-305-6; C.C.212; 6 La. 57U.</p> <p>The paternal descent of a child cannot be proven to affect his right of inheritance from his mother.</p> <p>Insanity is not presumed and must be clearly proven to exist at the date of the act attacked on the ground of insanity.</p> <p>FTo law requires a manual presentation of a child at its baptism by the mother.</p> <p>The certificate of baptism in the usual form is entitled to full faith for all it contains germain to the act.</p> <p>First-Heirship of collaterals admitted and proved.</p> <p>Second — Strict proof of descent and identity of child required. 11 An. 59 ; 6 An. 161. Burden on opponent. Same authorities.</p> <p>.Third — Opponent is a bastard, R. O. O. 202; 18 An. 590, and could not be acknowledged, R. C. O. 203-204; and cannot inherit. R. O. C. 920-918; 18 An. 590; 6 An. 161; 15 An. 342. The law reprobates the begetting of illegitimate children. 38 An. 592, &c.</p> <p>Fourth — A person deaf, dumb and insane, cannot make a legal acknowledgment of a child. R. O. C. 1782-1788.</p> <p>Fifth — Baptismal registry not sufficient, when one of the parents is white and the child colored. Old O. O. 221; 21 An. 437, &c.</p> <p>Sixth — The simple Baptismal Act, without the declarations of the parents or of a duly authorized agent carries with it no civil effect. Marcadó vol. 2 p. 50, 75 ; R. O. C. 205-2987.</p> <p>Seventh — The Baptismal Act is an act under private signature, due execution of it, as well as signature must be proved before in is admitted in evidence. 22 An. p. 458; Brief, p. 6.</p> <p>Eighth — Priests are not officers, 10 An. 673. Proof that' De Chaignoz was a priest was necessary.</p> <p>Einth — Acknowledgment oí a natural colored child from a white parent cannot be established by presumption of facts. Old Code 221. Legal acknowledgment absolutely necessary. R. O. C. 918; 33 An. p. 282.</p> <p>Tenth — Proof of maternity alone not sufficient.</p> <p>Eleventh — Decision in 4 An. 305, not considered correct. See Brief, p. 11-13, and not applicable to the case at bar.</p> <p>Twelfth — There was an absolute necessity in this State to discourage the amalgamation of the white and colored race, which did not exist in France. 6 An. 161; Old Code 95.</p> <p>Thirteenth — Every claim, set up by natural children may be contested by those who have any interest therein. R. C. O. 207; 11 An. 59; Marcadé vol. 2 p. 71.</p> <p>Fourteenth — The mention in the note of evidence, that evidence was objected to, without stating grounds, is not equivalent to the reservation of Bill of Exception. 32 An. 260; Acts 1877, E. S. p. 176, requires objections to be taken down, and also ruling of the judge thereon otherwise bill must be tendered.</p>

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

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

<p>APPEAL from the Nineteenth Judicial District Court, parish Of St. Mary. Goode, J.</p>

Hudspeth, J. Court, parish of St. This case involves questions of fact principally. Aleases property to B for a stipulated amount per annum. The whole amount of the lease is paid by B in advance. B subsequently sub-leases the property to C for a stipulated price, to be paid to B by O. The judgment creditors of A cannot seize the rents arising from the lease in favor of B without alleging and proving fraud.

Martin. Fontelieu, J. Pirst — Notice to counsel of the day of assignment merely, of case pending, is sufficient. Mooney vs. Hopper, 3 L. 445j Cooley vs. Seymour, 9 L. 276. Second — Counsel coming into case, bound by agreement in writing made by counsel having control of case at date anterior, district attorney was, therefore, bound to try the case as requested.

<p>The sale of Plaintiffs’ interest in the land sued for in a petitory action, for a fixed price and without warranty, is the sale of litigious rights, and the ven dee being tl e sheriff of the court in which the suit is pending, such sale is null and void. The fact that the suit is still carried on, alter the transaction, in the name of the original Plaintiffs, does not prevent the nullity.</p>

<p>APPEAL from the' Twenty-fifth Judicial District Court, parish of Lafayette. Mouton, J.</p> <p>The beneficiary heir, present or represented, has preference over every other person, not excepting the surviving husband or wife. R. C. C. 1042 -1121; Sue. of Briscoe, 2 An. 268; Sue. of Williamson, 3 An. 261; Sue. of Brinkham, 5 An. 27. Curatorskip of an estate can only he granted by an order of court. 6 An. 7Q0; 3 An. £87; 26 An. 330.</p> <p>When appointed their powers cease when heirs present themselves and demand the administration. 4 L. 571; 4 An. 25; R. C. C. 1192.</p> <p>Preference may be claimed as long as the appointment has not been confirmed on an earlier applicant, though the opposition has not been made in the ten days. Sue. of McKinney, 4 An. 25; Sue. of Block, 6 An. 810.</p> <p>Deputy Clerks cannot exercise judicial functions. Constitution, Art. 122, Act 1880, 2flo. 106, Secs. 2, 7.</p> <p>Though the surviving spouse be a creditor or usufructuary of an estate, the beneficiary heir may still claim the preference in the administration. R. C. C. 1121; Sue. of Brinkham, 5 An. 27.</p> <p>An enabling order from a clerk is not necessary to authorizo him to perform duties he is authorized by law to perforin.</p>

Clegg, J. Arbitrators constitute an exceptional tribunal created by tbe parties, to wbom tbe law permits tbe parties to delegate a final and unappealable jurisdiction (when there is no fraud or misconduct) under tbe name of amicable compounders. 14 An. 323. In a submission to arbitrators, all questions put at issue by tbe pleadings fall within tbe powers of tbe arbitrators to decide. 31 An- 97, Jackson vs- Hoffmann.

Hudspeth, J. Court, parish of St.. First — A wife separate in property from her husband is a third person. Her possession is as-complete and as distinct from that of her husband as the possession of any other person* Second — Her possession has the same legal effect as against her husband, or as against his creditors, as that of any other person. Third — Possession, with or without good faith, of movables is title by .legal presumption.

<p>The husband in this case, having by his wife’s last will the usufruct of her share of the Community, and, whilst acting as her Executor, having sold for Confederate money ootton belonging to the Community, is held to have sold it as usufructuary and not as Executor, and to be liable for its value.</p>

<p>APPEAL from the Twenty-ñfth Judicial District Court, parish of Vermilion. Clegg, J.</p> <p>IFirst — The affidavit of an accused for a continuance cannot be contradicted; it must be taken as true. 30 A. 296.</p> <p>Second — On an indictment for petty larceny, a verdict for having received stolen goods knowing them tobe such, is not responsive, and must be set aside, and the case remanded.</p> <p>Third — Where counsel is assigned by the Court to defend an accused person, a sufficient time should be allowed in which to prepare for the defense, especially where special cause is shown for a longer delay.</p>

Landry. Hudspeth, J. An action, in which plaintiff claims to be the owner of real estate, and aslrs ‘for the annulment of its sale for taxes on the ground that he had offered to redeem by paying the purchase price within the legal delay, and that the defendant be enjoined from perfecting that title, or doing any act to deprive him of the property, is a petitory action in its nature, C. P. 5; IP. 242; 9L 147.

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

Clegg, J. First — The right of trial by jury is one accorded by Art. 7 of the Constitution of 1879, and cannot be denied or abridged in any manner, except as therein provided. That said article does not contemplate the trial of an accused person in any other manner than by a jury. Second — That act number 35 of 1880 is unconstitutional in providing that an accused may waive trial by jury and be tried by the Court.

<p>On the trial of Oppositions to the application of a debtor for a respite, the creditors cannot propound interrogatories to him, such as, whether he had disposed of his property during the pendency of the respite proceedings, when the Oppositions contained no such charges, . hut only averred that he had not placed all his property on his schedule.</p> <p>It seems that it is no good ground of opposition to the application for a respite, that the debtor placed on his schedule parties who were not his creditors, because, by so doing, he cannot prejudice the real creditors, and any of the latter, though not on the schedule, can, by making oath, vote at the meeting</p> <p>In the absence of charges and proof of dereliction of duty, the notary appointed by the Court to hold the meeting of creditors, had the power, in the exercise of his sound discretion, to adjourn the meeting.</p> <p>The majority in number and in amount, required for a forced respite, is that of creditors, whether placed on the bilan or not, who have appeared at the meeting, taken the oath prescribed by law, proved their claims and voted for the respite.</p> <p>The respite and insolvency laws are perfectly distinct. The former rest upon the apparent solvency of the debtor, and are not suspended or affected by the general bankrupt law of the United States.</p>

<p>APPEAL from the Criminal District Court for the parish of Orleans. Roman, J.</p>

<p>Lands held in indivisión "by several parties must be assessed as a -whole in the names of all the joint owners and for the non-payment of taxes, must be seized and advertised for sale also as a whole, in proceedings directed against all the joint owners.</p> <p>The injunction to prevent the tax sale in the case, is made perpetual on account of numerous other irregularities in the proceedings.</p>

<p>A testamentary executor who has qualified as such, cannot be deprived of his commission on the amount of the inventory because the heirs and legatees agreed between themselves to make a distribution of the assets of the succession.</p>

Clegg, J. An attorney can accept service of process and interrupt prescription. A curator ad hoc may also acknowledge service and interrupt prescription. 31 An. 540; 2 An. 916. The acts of an attorney or agent unless disavowed in proper time, and as soon as brought to the notice of the principal will be thereby ratified and be binding for all purposes.

Pirst — An amended answer comes too late when offered after the case has been called for trial. 22 A. 350, 534; C. P. 420. Second — An amended answer changing the substance of the issue oannot be allowed. 11 La. 73; 22 An. 350; 28 An. 109 ; 32 An. 920 ; C. P. 419-420. Third — The matter of a continuance addresses itself to the sound discretion of the court. 18 An. 222; 19 An. 268.

Barbin, J. The information is defective as follows: First — It does not state before what court the perjury was committed. Second — It does not aver the administration of the oath, nor state by whom it was administered. Third — It does not aver that such court or person had competent authority to administer the oath. Fourth — It does not state the substance of the offense charged, as required under common law precedents, with the modifications of the law of Louisiana.

<p>A defective and insufficient; description of the property sold, in the sheriff's advertisement is cured by tbe prescription of five years as established by Art. 3543, O. C. Previous Decisions affirmed.</p> <p>The title of the insolvent is not divested by the cessio bonorum, and his heirs are not estopped from claiming the property surrendered, when it has not been disposed of by tbe syndic. 11 An. 158.</p> <p>The purchaser who knew the defect in the title of the property he purchased and. owing to such defect, got the property for much less than its value, cannot be considered as a purchaser in good faith, in the legal sense of the word, and is not protected by the prescription of ten years.</p> <p>The prescription of three years does not apply to the rents and revenues of property olaimed , in the petitory action, against a purchaser in bad faith.</p>

4 PPEAL from the First Judicial District Court, parish of Caddo. Taylor, J. Pirst — The writ of mandamus is a writ of right; the mandamus proceeding a purely civil one; and it need not be brought in the name of the State, or signed by the Attorney General or District Attorney. C. P. 840; 29 An., 793; 30 An. 1312; High’s Ex. Legal Demedies, sections 3, 4 and 430; 33 An. 510.

A PPEAL from the Eirst Judicial District Court, parish of Caddo. Bk. Taylor. J. 3?irst — The vendor’s privilege on movables gives him a preference if the property still remains in the possession of the purchaser. C. C. 3227. If the purchaser is divested of his possession, the privilege is lost. II it. 140; 5 An. 348; 8 An. 45; 12 An. 233, 235.

<p>The verdict of the jury, even as to the facts of the case, has no controlling influence upon the conclusions of this Court. It is its province and duty to reverse such verdict, as -well as the judgment of an inferior court, when a careful examination of the record and review of the evidence show that the jury was mistaken as to the facts. To hold otherwise would be defeating the object of the law by which this Court is to review the facts as well as the law of the case.</p>

Drew, J. The nse and hire of property and interest on money and damages to community property had, used and done by the husband exclusively during the wife’s suit for divorce and, until final partition, should he allowed the wife in settlement of accounts in mating the partition. H. E. 733, Ho. 3; E. C. C. 1349; 5 An. 561; 15 An. 350; 23 An. 351 ; 28 An. 362; E. C. C. 1350.

Taylor, J. In point of fact, the effect of the keeper’s receipt was to perfect the sheriff’s seizure and • return; and the possession of the money seized by the sheriff was continued through the keeper. It was the legal duty of the sheriff to seize, attach and take the money into his possession and retain the same, subject to the order of the 'court issuing the writ.

<p>This case not coming within the appellate jurisdiction oí the Supreme Court, and the Court of Appeals having neither usurped jurisdiction nor refused to perform any duty imposed upon it by law, this Court will not use in the premises its supervisory power under Article 90 of the Constitution. Previous Decisions affirmed.</p>

Taylor, J. ’ 11 I'irst^ — A foreign- córpóration, unless prohibited by special statute, may make contracts within the scope of its authority in another State than that of its. creation.. 7 L. 31;.4 It. 517; 13 Pefers, 521. . • . . Second — Foreign corporations may institute suits in courts of this State, and in case of insolvency be represented by assignee or receiver. Angelí & Ames on Corporations, p, 395 and notes; 2 A. 430.

Taylor, J. A party setting up title in liimself stands in position of plaintiff in petitory action and must mate the title clear. All proceedings and formalities in sale of real property of minors are sacramental and must he construed stricii juris. The offices of tutor and administrator, though residing in one person’, are entirely distinct.

<p>The description oí tlie thing stolen, in an information ior larceny, being: “One hog, the prop* . erty of A. B., is sufficient.</p> <p>Act No. 35 of 1880, providing for the trial of offenses in certain cases, has only one object set forth in its title and is constitutional.</p> <p>It is competent for the Legislature to change the manner of criminal trials regardless of the time of the commission of the offense, without rendering the act in which such change is made, obnoxious to the Constitution.,</p>

Gfraham, J. In an indictment for severing from the soil it must he alleged who was the owner of the soil In a charge of larceny there must be some definite value fixed to the property stolen. You cannot cumulate the charges of larceny and severing from the soil. One cannot be convicted ot two offenses for one single act. Where there is more than one count in an indictment and the verdict of the jury is “guilty; there is a conviction upon each count.

Cole, J. Urst — It does not appear that the accused was present during the trial. Second — The court erred in refusing the accused a new trial. 32 An. 842. Third — The trial by the court without the intervention of a jury, was illegal and unconstitu tional. The Constitution requires a jury in all criminal cases and a prisoner cannot con sent to the adoption of any other mode. Const.

<p>ApPLICATION for writ of Mandamus.</p>

<p>TJnder section 790, Rev. Sta., “thrusting ” a person may -well include thrusting with “ an iron bolt, rod or pin,” whether the point be sharp or not.</p>

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

<p>Under the present Constitution, the accused in criminal oases, in which the punishment of death or imprisonment at hard labor may be inflicted, is eutitled to an appeal to this Court, whether the verdict of che jury or judgment of the lower court is or not for a lesser punishment. Similarity on this point between the Constitutions of 1853 and 1879, and difference with that of 1868. 14 An. 649.</p>

<p>On Motion to Dismiss.</p> <p>An Appellant should not be prejudiced by the error committed by the jndge in fixing the return day of the Appeal. |</p> <p>On the Merits.</p> <p>A public officer vacates the office held by him by accepting another office incompatible with the former. 32 An. 193.</p> <p>The accused had the right to prove by a competent witness, that another person, accused with him of having stolen a hog and convicted on a separate trial, had asked him just before the time of the alleged offense, “ to go and help him to get his hog.” The circumstance was part of,the res.gestte, and the evidence admissible to show the absence of the animus /urancli.</p>

<p>APPEAL from the Second Judicial District Court, parish of Webster-Drew, J.</p> <p>First — Every partner may, without the consent of his partners, enter into a partnership for the share he has in the partnership. G. O. 2871; 24 An. 317; 16 An. 418.</p> <p>Second — There must be at least two persons- to every contract, and one person cannot act as agent to two persons and make a sale with himself for them. 2 R. 556; 6 L. 407; 11 M. B. 298; C. O. 1798.</p> <p>Third — In order that the wife can make a valid purchase for herself with her paraphernal ■ ' property, she must have a separate administration of her paraphernal funds. 20 An. 531; 21 An. 343; 18 An. 105, 588.</p> <p>Fourth — The use of Mrs. Murrell's paraphernal property belonged to her husband, and the firm owes her nothing for it. 21 An. 343, 344, 345; 18 An. 105, 588; 16 An. 290.</p> <p>Fifth — The defendants claim sale of cotton, the onus is on them to prove a valid giving in payment.</p> <p>Sixth — The entries show no elements of a contract.</p> <p>Seventh — The entries are not correct in date.</p> <p>Eighth — To have any effect against John Murrell they should be shown to have been made at the date they bear and during the existence of the partnership.</p> <p>Hinth — It is not probable 1-hat a husband who was administering the property of his wife prudently, would invest her money in cotton on Bed Biver.</p> <p>Tenth — 'We are to presume that he would be as prudent in administering his wife’s property as the partnership business, and if he refused to take cotton for claims due the partnership, as he did, he would not at that time take cotton for his wife’s claim.</p> <p>First — Plaintiff basis his claim to share in the commission house of Bawlins & Murrell upon the partnership articles of I. Murrell & Bro., dated in 1848. Plaintift’s petition and oath as a witness so states. Partnership of I. Murrell & Bro. was confined to Claiborne parish. The business of Bawlins & Murrell was conducted in New .Orleans. The first was planting and a retail business; the second was a commission business.</p> <p>Plaintiff's judicial declarations amount to Fall proof against them. B. C. C. 2291; 4 B. 457 ; 6 A. 397; 13 An. 369; 15 An. 676 ; 16 An. 22; 24 An. 300.</p> <p>Second — Plaintiff and defendant made all their partnership agreements in writing, and in the first one stipulated that any change should be in writing.</p> <p>Parol evidence cannot be admitted against or beyond these writings. B. C. C. 2276 and 2236 ; Story on Partnership, See. 278.</p> <p>Third — John Murrell was a planting partner with Isaac Murrell in Claiborne; this did not make him a partner in Bawlins & Murrell in New Orleans. A partner of my partner i», not my partner. PC. D. 1082, Ho. 3. .</p> <p>Fourth — The agreement of 8th March, 1848, limited the firm of I. Murrell &Bro. to six years, and didnot prevent I. Murrell from joining Bawlins in 1866. After the six years, it was a partnership at will and might be dissolved, or I. Murrell might withdraw at pleasure. Smith’s Mercantile Law, p. 54; Story on Partnership, Sec. 279.</p> <p>Fifth — Entries in partnership books at the time of the transaction are conclusive on the partners, The partners are mutual agents of each other, and the entry an account rendered of the transaction. 1 PC. D. 511, Ho. 6 and Ho. 8.</p> <p>Sixth — A partnership is a commutative contract. B. C. C. 2301. Something must be put in by each partner — credit, skill, industry, money or property, and profits and losses must be.shared. B. C.C. 2814; Smith’s Mercantile Law, pp. 43, 44 and 50,52, 54; Bonvier's Dictionary, Partner, pp. 285, 286, 291.</p> <p>There must he an agreement to be partners, otherwise there is no partnership. 30 An. 631.</p> <p>There must be a contract, and each partner must put in something to form a partnership. • Story on Partnership, Sec. 2; Story, Sec. 2, paragraph 3.</p> <p>Some important ingredients said to constitute its essence, a contract. Story, Secs. 3, 4, 5, 6, and p. 19, Sec. 15. Some common stock must "be brought in by each party — money, goods, effects, or other property, or labor, or skill — something must be contributed.</p>

Brew, J. First — Defendant conld, as she did, mortgage all her right and title in community lands, where her deceased husband owed no debts. B. C. C. 3289 ; 30 An. 93; 24 An. 264; 26 An. 260; 12 An. 864. Second — Intervenor has no interest to attack the mortgage, where he fails to prove the mortgagee unable to pay his debt. C. P. 15; 1 B. 470; 5 B. 253; 5 An. 263.

<p>The rule that a tutor cau act as administrator of his -ward’s parent’s estate as long as creditors do not object, is re-affirmed in this instance.</p> <p>Under the circumstances of the case, the action of the tutor, in the Motion to revive, is maintained pending the application for the appointment of the administratrix.</p> <p>The issue presented on the Merits is the same as in the case of Mrs. E. E. Griffin vs. City of Shreveport, just decided,</p>

<p>APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J. ■ •</p> <p>Rirst — Petitory action. Plaintiff claims under public act executed January 15th, 1881, recorded January 25th, 1881</p> <p>Second — Defendant claims under private act, dated December 2d, .1879, recorded (by copying in conveyance booh) Sept. 15th, 1880, without any acknowledgment or proof whatever of its execution.</p> <p>Third — Plaintiff in good faith; no knowledge of defendant’s title, or the pretended registry thereof, or his possession of the land.</p> <p>Rourth — The means of obtaining knowledge not equivalent to actual knowledge. Parties presumed to b&iu good faith, until the contrary is shown. 7 A. 3.</p> <p>Rjfth — Sale of immovables under private signature have effect against creditors and third persons in general only from day such sale is registered according to law, and the actual delivery of the thing sold. O. O. 2442, 2246.</p> <p>Sixth — Registry of private act of sale without effect, unless previous to its being recorded it was acknowledged by the party, or proved by the oath of one of the witnesses, and such acknowledgment or proof recorded with the instrument. C. C. 2253 ; 28 An. 725; 16 L* 443, 454; 9 An. 154; 6 An. 171; 4 R. 335.</p> <p>Seventh — Plaintiff’s title superior, because must be held older in point of registry.</p> <p>Rirst — If an act of sale under private signature is recorded in the proper office, the question whether it was recorded on sufficient proof is immaterial so far as concerns the question of notice to the public. 9 An. 547; 10 An. 502; 11 An. 533; 25 An. Ill; 28 An. 725.</p> <p>Second — Defendant’s title being prior in registry, must prevail.</p>

<p>*Wlien an attempt is made to discredit a -witness by showing that be made a contradictory statement on a previous occasion, it is not sacramental that the exact time of the alleged contradictory statement should be designated; it is enough that sufficient reference be made to the circumstances that attended the statement, and to the statement itself, so as to place the witness fully on his guard. School Board vs. Trimble, cwitepage 1073.</p>

<p>The accused has the right to waive the constitutional provision of the trial by jury and elect to be tried by the Court. Decision in State vs. White, just rendered, affirmed.</p> <p>It is not necessary that the Parish in which the offense was committed, should be named in the body of the indictment. The law provides that it is sufficient that it should be named in the margin of that instrument.</p> <p>The Record showing that the prisoner was formally arraigned, the legal and necessary inference is, that he was present at the arraignment.</p> <p>In cases not capital, it is not indispensable that the prisoner be asked if he has anything to say why sentence should not be pronounced. Affirming State vs. Taylor, 27 An. 393.</p> <p>The presence of the accused during the trial is sufficiently shown by the Record. State vs. White, also affirmed in this particular.</p>

<p>APPEAL from the First Judicial District Court, parish of Caddo. Alexander, Judge ad hoc.</p>

Taylor, J. ITirsfc — A party who, without opposition, suffers evidence to be adduced contrary to or beyond the allegations contained in the pleadings, though it might have been excluded on legal grounds, is bound by its effect. Evidence makes pleadings. 15 La. 328; 15 An. 389; 20 An. 241, 379. 12 R. 20. Second — Every act of man, that causes damage to another obliges him by whose fault it occurs to repair it. R. C. C. 2315.

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

Bogers, J. ~We submit we have shown: First — That an Insurance Company who charges a claimant with fraud when he seeks to recover a loss upon a policy is liable in damages for slander and libel. Second — That all the-facts recited in the petition are proved. Third — That the wrong done the plaintiff is aggravated by the fact that the Insurance Company procured a notorious vagabond, unworthy of belief, to substantiate the ialse charge they had made.

1 PPEAL from the Criminal District Court for the parish of Orleans. A. Boman, J. First — In an information for larceny it is sufficient to allege the ownership of the property stolen to be in the ostensible or apparent owner. 33 An. 122; Wharton on Criminal Law, 8th ed-, vol. 1, Sec. 945.

J. Monroe, First — The State is sovereign in so far as she has not parted with her attributes of sovereignty to the Federal government. Second — -In a monarchy the exemption of the sovereign from the operation of statutes in which he is not named is founded on prerogative. 1 Watts (Pa.) 54; 2 Blackstone, 400. Third — The prerogative is a principle of our government and a part of the law of the land, Ib.; 19 mil. 239.

Monroe, J. A party who acquiesces in a judgment rendered against him hy voluntarily executing the same cannot appeal therefrom. C. P. 567. This Court will take judicial notice in an especial manner of the course of proceeding, the decision and: the jurisprudence of the Circuit Court of the United States for the Fifth Judicial Circuit, District of Louisiana. First — The Supreme Court will consider original evidence when all parties consent. 3 An. 115; 28 An. 274.

Monroe, J. First — The creditors, having forced a surrender byE.

<p>On Motion to Dismiss.</p> <p>Do Appeal lies from an order transferring a case from one to another Bivision of the Civil District Court for the Parish of Orleans, because such order is interlocutory and cannot cause an irreparable injury. Affirming Decision in 31 An, 47.</p>

<p>A.PPLICATION for Writs of Certiorari and Prohibition.</p>

<p>The shares of the capital* stock of corporations are not “ credits ” within the meaning of the Code, and the pledge of such stock is perfect by the simple delivery of the Certificate of stock, without notice to the corporation</p> <p>The principle is binding upon the Corporation itself, whatever its by-laws may provide to the contrary.</p> <p>The maxim of stw'e decisis should apply in this case.</p>

' Taylor, J. (This case was originally decided at the October Term, in Shreveport, and transferred to New Orleans, where the Decision on the Rehearing was rendered.) First — Felonies and misdemeanors, forming part of the same transaction, may be joined, as in larceny and conspiracy to steal. Whart. Crim. Pleadings, 8th ed. pp. 291, 285. Second — It is not duplicity to couple successive statutory phrases in one count óf an indictment. Whart. Crim. Pleading, 8th ed. § 251.

<p>ApPLIOATION for writ of Prohibition.</p>

Hough, J. First — It is immaterial whether the exact language of the statute be used or not, so the accused he informed of the exact nature of the charge against him. All unnecessary allegations will he considered as surplusage. Arch. Crim. P. and P., vol. 2, p. 14; Sec. 394; Wharton’s Crim. Law; Bishop on Criminal Procedure, vol 1, Sec. 478.

A PPEAL from the Twelfth Bar bin, J. Judicial District Court, parish of Grant. An application for removal of a cause made in due time and in due form, under the Act of Congress of 1875, by a citizen of another State, should be granted. Unless one have an actual and real interest which he pursues, he cannot be heard attacking the title of another. Code of Practice, 15.

Tissot, J. The law fixes the place of the opening of a succession, “ in the parish where the deceased resided, ifLhe had a fixed domicil or residence in the State,” at the’tirae of his death. C. C. Art. 935. “A change of domicil 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.” O. C. 41.

Rogers, J There was a commercial partnership in existence between John P. Bichardson and George W. Cary, at tho respective dates of the notes sued on. An indorsement in blank is presumed to Lave been placed upon a note at the date thereof. See New Orleans Canal & Banking Co. vs. Samuel Templeton, 20th An. p. 341; and Crosby vs. Morton et al., 13 La. p. 357.

Monroe, J. An individual loaning money to one member of a mercantile firm and receiving a firm note therefor, has a right to presume that the note is made in the course of the partnership business and binds all the members of the firm. 46 Iowa, 485.

APPEAL- from the Civil District. Court for the parish of Orleans. Tissot, J. On Motion to Dismiss. It is only where a judgment is rendered by which a succession can he aggrieved, that a succession representative can, in his official capacity, appeal from the same.

Roman, J. First — A juror is competent to serve where he has only an impression, and not a fixed and. deliberate opinion as to the guilt or innocence of the accused. 33 An. 1101 • 14 An. 462; 22 An. 43; 23 An. 148 Second — Tbe testimony of witnesses given before tbe coroner’s jury is inadmissible in evidence on the trial of a case. Third — The evidence before the coroner’s jury is admitted for a restrictive purpose — to prove death, hut nothing further. 7 An. 84; 10 An. 456.

Bightor, J First — The defendant having with full knowledge of alleged breaches of open policy of insurance, received premiums earned thereunder, is estopped from setting up such breaches, to avoid a liability for a loss. Wood on Fire Insurance, pp. 832, 838, 839; 34 Iowa, 89 j 26 Iowa, 9; May on Insurance, p. 612; 5 Denlo (H. Y.) 154; 3 Hill (JY YJ 225; 56 Pa. State, 267 ; 19 Barb. (H. Y.) 441; 48H.Y.379; 28An.l9.

Sherburne, J. . First — Threats made hy the deceased towards the accused, aud not communicated to him he* •fore the hilling, is incompetent evidence. 21 An. 473 ; 29 An. 593. Second — This Court cannot review a judgment refusing a new trial which was ashed on the ground of newly discovered evidence, 21 An. 473 ; 22-An. 468.

<p>The evidence does not establish such contract and liability on the part of Defendant as charged by Plaintiffs.</p> <p>Plaintiffs having by their conduct led Defendant to believe that a certain party was their accredited agent, are estopped from denying the agency.</p> <p>It is elementary that a demand, not embraced in the pleadings and, therefore, not passed upon by the lower Court, cannot be urged on appeal.</p>

<p>ApPLICATION for a writ of Mandamus.</p> <p>In a rule to erase mortgages, the amount of plaintiff’s claim determines the jurisdiction..</p>

A PPEAL from the Eifth District Court for the parish of Orleans. Sogers, J. The defence is special and the burden of proof is upon the defendant. Terry vs. Insurance Company, 1 Dillon Rep., 403; 31 Missouri Rep., 725; Piedmont Life Insurance Company vs. Ewing, 2 Otto Rep., 379; Swick vs. Home Insurance Company, 2 Dillon Rep., 164.

<p>The District Judge has the power to determine whether witnesses have been heard as experts and what compensation they should receive as such. C. 3?. 462.</p> <p>Having so determined, ho has power by Mandamus to order payment of suoh compensation by the Parish treasurer. C. P.130.</p> <p>Such compensation may be fixed by the Judge ex parte.</p> <p>The petition for a Mandamus needs not be in the name of the State. It is only the "Writ that must be issued in the name of the State. And the prayer of such Petition being for an Order commanding, etc., is equiyalent to a prayer for a Mandamus. The word is not sacramental.</p> <p>This Court will not issue the writs of Prohibition and Certiorari to inferior judges in cases in which they have exercised their legal authority and discretion. Previous Decisions affirmed.</p>

APPEAL Jr.om .the Twenty-fourth,. Judicial-District Court, parish of Plaquemines. Livaudais, J. First — A challenge to the array comes too late after the first day of the term. Sec. 12, Act Hoy 94 of 1873, p. 169; 5 An. 342.

Bightor, J - First — Plaintiff never bad any view of the article sold. Defendants knew that the lard was not merchantable. Second — Article 2501, K. C. C., does not comprise such defects as are concealed by reason of the thing purchased being in a box, barrel or package. 7 An. 243; 5 Kob. 217; 3 An. 445; 10 Kob. 5. Third — As to provisions, vendor represents them as sound and wholesome. Addison Contracts, vol 2, p. 211, § 616.

<p>A PPEAL from the Fourth District Court for the parish of Orleans. Houston, J.</p> <p>First — An intervention not at issue cannot be tried.</p> <p>Second — The dismissal of an intervention in the absence of the intervenor and his counsel, has only the effect of a judgment oí nonsuit.</p> <p>Third — The decree of the court can alone be looked to to determine the plea of res judicata.</p> <p>Fourth — Where the decree of the court dismisses an intervention without passing upon the issues raised in it, and which were not at issue, it cannot support the plea of res judicata as against those issues.</p> <p>The intervenor must be always ready to plead, or to exhibit his testimony, because he has always his remedy by a separate action to vindicate his rights. C. P. 389.</p> <p>The intervenor cannot, by absenting himself from court, or by abandoning his cause to its fate, prevent the trial of the case, and action upon his intervention.</p> <p>A judgment, dismissing an intervention, when all the parties are present or represented therein, is a final judgment, and forms res judicata.</p> <p>The test as to the effect of a decree as res judicata, is its finality and conformity to the terms of the Civil Code, 2265; Revised Code 2286. Keilam vs. Rippey, 3 An. 202.</p> <p>In an application for a writ of injunction, the facts important and vital to the issuance of the writ or not, cannot be ignored, they are essential to the petition, and must be set forth.</p>

Brew, J. Transferred to New Orleans by consent of parties. The original opinion was delivered at Shreveport, and the opinion on the Rehearing at New Orleans. Pirst — The widow in community is the owner of one-half of the community property at the moment of the opening of the succession, subject only to the payment of the succession debts.

.¿APPLICATION for Writs of Mandamus and Prohibition. . Eirst — The judgment of this Court of the 28th of May, in the matter of State of Louisiana ex rel. Howell vs. A. J\ Echeverría, on rehearing, was final and absolute at the instant of its rendition. Sec. 1007 B. S. U. S. has no application to judgments and executions of State Courts; it refers solely to United States Courts.

Barbin, J. First — Prescription did not run against a resident within the Federal lines holding a claim against a resident within the Confederate lines, from April 19th, 1861, to April 2d, 1866.

Pardee, J. Pirst — A general denial does not admit that defendant was guilty of a libel. 28 An.238. Second — On proof of the libel, damages should follow. 27 An. 219 ; 19 An. 194. Pirst — The matters charged as libellous were said, published and done by the defendants in the discharge of their official duties. They were privileged.

James. Gheevers, J. The names of incompetent persons, especially those charged with crime punishable in the Penitentiary, should not remain in the box from which the jury is drawn. 20 A. 356, ib 442, Act 2Sb. 44, Regular Session of 1877; Act bTo. 54, 1880. A person charged with larceny cannot act as a grand juror, and a subsequent trial arid acquittal of such person will not establish bis status. 21 A. 251; 30 A. 884.

A PPEAL from the Second District Court for the parish of Orleans. A Tissot, J. The question before tbe Court is simply one of jurisdiction. Tbe action of plaintiff is not * for a partition, but for a sum of money due by a succession. Such an action must be brought in a court of probate jurisdiction. Tbe Second District Court for tbe Parish of Orleans — a Court solely of probate jurisdiction — bad jurisdiction in tbe premises.

<p>A venire drawn by a majority of the Jury Commission, in the absence of a member who has not yet qualified, is legal and regular.</p>

<p>In a criminal prosecution where two defendants are jointly on trial, the State is entitled to. six peremptory challenges for each twelve challenges to which such defendants may be entitled. Act No. 24 of 1878 is not unconstitutional and governs this point.</p> <p>The presence of the accused in court is not necessary during the filing, trial and disposition of a motion for a new trial. Previous Decisions affirmed.</p>

Sherburne, J. First — When an accused refuses to plead to an indictment, the order of the court to enter t» plea of “ not guilty ” is right and proper. Second — The objection of accused that he has not had sufficient time to prepare his pleas is worthless when he has already been tried for the same offense, and is about to undergo a new trial.

<p>A prisoner arrested by virtue of the mittimus of a committing magistrate, cannot, in an application for a habeas corpus, raise tbe question of the legality of said magistrate's title to-office, when the latter is the regular incumbent de facto, acting and presiding over a tribunal of recognized legal existence and competency.</p>

4 PPEAL from the Twenty-second Judicial District Court, parish of o_ St. James. Cheevers, J. There is no law requiring verdicts to be in writing. 32 A. 854 ; 8 R. 513, 518; 31 A. 96. PTo foreman need be appointed and verdict may be delivered orally. 31 A. 96. Bad orthography will not vitiate or void a verdict. 32 A. 854, 782 ; 31 A. 91.

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

A PPEAL from the Fourth-District Court for the parish of Orleans. XX Houston, J. Price paid by purchaser at a tax sale, and applied to payment of taxes, may be recovered by tbe purchaser from the owner, ,even though the sale be invalid, and even though the assessment be irregular.

First — The relators are not entitled to the relief claimed, the case being appealable. C. P. 857 j State ex rel. vs. Skinner, Judge, 33 An., p. 1092; State ex rel. Debuys vs. Judge Civil District Court). 32 An 1256. Second — The relators have not served the notice required hy Sec. 2 of Bule XXX, of the rules of this Honorable Court to obtain their writ of Prohibition.

Landry. Hudspeth, J. Transferred to New Orleans by consent of parties. A motion to homologate the report of experts, binds the mover to its correctness. It is a j udicial admission which he cannot withdraw, after the other party has accepted the issue so tendered. Gridley vs. Connor, 4 An. 416; Del Bondio vs. ET. O. Mutual Insurance Association, 28 An. 139; Bender vs. Belknap, 23 An. 764.

Ul Martin. Fontelieu, J. Transferred to New Orleans by consent of parties. First — Mortgages are prescribed by thirty years, with the exception of such as are specially excepted. Conventional mortgages are not excepted. Second —Stock loan notes are prescribed by five years from the date they are exigible.

Monroe, J. First — The holder of a promissory note of a commercial firm, who has acquired same for value, in due course of business, before maturity, is entitled to recover against said firm, and the members thereof, in solido. Second — Where no suspicions circumstances are shown, due inquiry is made, and the holder has acted in good faith and given value, he is entitled to recover. 2 Wallace, 110 ; 26 Annual, 15.

Bightor, J Pirst — A promissory note may be antedated, and will be valid in point of law, there being no statute to the contrary. Story on Promissory Notes, chap. 1, sec. 48-; Baylayon Bills, chap. 3, Sec. 7; Ghitty on Bills, chap. 5, p. 169 (8th edition). Second — The burden of proof is upon the plaintiff, he must make out his case.

<p>The incompleteness of the Transcript is attributable to the Appellee himself and not to the Appellant, and the Motion to dismiss the Appeal should, therefore, be denied.</p> <p>The object of the demand is not the same as in the former suit, and the exception of ret judicata should be dismissed.</p>