Volume 34 — Louisiana Reports

liorna», J. Where the prosecutions instituted in the court have not been equally apportioned to that section by lot, the Judge of Section A, thereof, is not vested with jurisdiction over the jierson of defendant, and is without legal authority to preside over the trial. Constitution, Art. 130.

Houston, J. In an action of ejectment, where no money is claimed, it is the amount of the lease which gives the Court jurisdiction. 20 An. 47.

<p>APPEAL from tho Criminal District Court for the Parish of Orleans. Homan, J.</p> <p>I.</p> <p>l'ho regular panel of jury of tlie Criminal District Court for the Parish of Orleans, shall only he drawn in the mode and manner prescribed by Act No. 98 of 1880, at least fifteen days before the expiration of every month in which the Court shall hold its sessions, and the persons whose names shall be so drawn and remaining after the selection of tho Grand 'Jury therefrom, shall constitute the Petit Jury for the month or session succeeding the drawing, and no other drawing can he legally ordered to take place during the month, except when the regular panel he exhausted on the trial of a criminal case, where the accused is charged with a felony, and the jury he not complete, or when in the case fixed fir trial, talesmen are or will be required. Act98of 1880, Secs. 2d and 5th; Act 138, Ex. Ses. 1877.</p> <p>When the petit jury have not been drawn strictly in the mode prescribed by law, the trial, conviction and sentence are null. 20 A. 356; 20 A. 442; 29 A. 543; 24 A. 259; 19 A. 105; 30 A. 603.</p> <p>A judge cannot apply fora purpose the provisions of a law enacted for a special and different purpose, nor can he amend said law to meet an emergency not provided for.</p> <p>Under Act 138 of 1877, the Court may direct either the Sheriff or one of his deputies to draw the tales jurors in certain cases, but under Act 2To. 98, 1880, which was subsequently enacted, the Commissioners, together with the Criminal Sheriff in propria, persona shall draw the jury for the regular panel.</p> <p>All proceedings pertaining to or affecting a criminal trial should bo strictly kept by the minute clerk appointed for that purpose, and omissions or irregularities occurring through neglect or otherwise, cannot ex parte be corrected, amended and made valid, after a number of days, by a nunc pro tunc entry taken and recorded in the minutes, now for then, and courts will not sanction such action.</p> <p>H.</p> <p>Any allusions, hints or remote allusions from the judge, by inadvertence or otherwise, upon the facts in a trial, is an infringement on the province of the jury, and when there are doubts as to the language actually used by the judge, where it is ambiguous, or when the bill of exception is so expressed as to show discrepancies between the statement in the body of the bill and those appended by the Court, the accused will have the benefit of the doubt, and it is safer to grant a new trial. 30 A. 600; 7 hTev. 377; lb. 149; 127 Cal. 310; 2 Winston,47; 17. C., 3 Jones Law, p. 6; 17Mo.l42; 11A.537; 17Mo.329; 38 Mo. 213; 16 Cal. 137; 19 Peck, 311; 12 Peck, 521; 27 Tex. 759; 12 Cal. 34; 16 Cal. 137; 5 Ohio, 309 ; 2 Bibb. 89; 3 Gt. & Wat. on 17. T., p. 872; lb. 706.</p> <p>HI.</p> <p>A person for trial for a capital offense has full scope to interrogate a juror, and inquire into the state of his mind as to conscientious scruples, his opinion or policy, to enable him to exercise his constitutional rights to peremptory challenges and challenges for cause. 3 ParkerC. R. 199; 17 RewHamp. 171; 13 17. H. 556; 48Barb.274 ; 36 R. Y. 276; 14HI. 433 ; 16 Ark. 58; Whart. Cr. L. 857; 7 Cal. 140.</p> <p>IY.</p> <p>An examination before a committing magistrate is not a trial or criminal prosecution in the sense of Article 6th of the Constitution, which contemplates that both the accused and the jury should see and hear the witnesses, and never intended to make it a rule of evidence that the testimony of a deceased witness, taken before a Recorder, could be read or used against a prisoner on trial before a jury. Art. 6, Const. 1879; 20 Mo. (3 Jones) 436; lb. 446.</p> <p>When prisoners on trial have not had fall advantage to cross-examine a witness, either on account of intimidation, excitement or ignorance, or on account of being too deaf to know the nature of the testimony of the witness, his deposition, if he be dead, is not admissible in evidence against the accused.</p> <p>Y.</p> <p>Any inducement, however slight it may be, made by one in authority will vitiate a confession induced byit, Wharton Cr. Evid. (8fch Ed.) §651; Greenleaf on Evid. 264, (notes.)</p> <p>So, also, if there be collateral inducement. State vs. Grant, 22 Maine R. 171.</p> <p>Words of advice and adjuration coming from one in authority, couched in such terms as might have led the prisoner to believe that his position may be bettered by a confession, will render the confession obtained thereby inadmissible in evidence. Meynell’s case, 2 Lewin, C. C. 122; Greenleaf on Evid. pp. 392 and 393, (notes); Whart. Cr. Evid., §673; Arch. Cr. PI. & Pr., vol. I., (13th Ed.) 388, 305, 306. See also R.„vs. Thomas, 6 Car. & P. 353.</p> <p>1. Sections 2 and 3, of Act JSo*. 98 of 1880, provide for tlie manner of selecting the jury to "be presented to thepiisonor, and Section 5 as directing how the jurors shall be presented to the prisoner from the venire.</p> <p>2. The challenge to the tales jurors is without merit j it can never be known in advance that tales jurors will be required, and the law does not say they shall be drawn fifteen days in advance of the trial of the case.</p> <p>3. The Court may, of its own action, set aside a juror in a capital case when said juror has conscientious scruples on the* subject of capital punishment. Wharton’s Am. Crim. Law, 4th Ed., Sec. 3035.</p> <p>4. In an examination of a juror as to his competency, all questions are properly excluded which do not affect the competency oí the juror in any way.</p> <p>5. The testimony of a deceased witness, which was taken before a recorder contradictorily with the accused at his preliminary trial, is good evidence and was properly received. Bishop on Cr. Pr., vol I., Secs. 1195, 1197 and 1201; Wharton’s Cr. Ev., 8th Ed., Sec. 227 ,- Wharton’s Am. Crim. Law, 5th Ed., vol IT., Sec. 667; Archbold’s Crim. Pr. and PI., vol. I., p. 478, and foot note to Sec. 1010.</p> <p>6. A bill of exceptions cannot be considered by ibis Court when the judge a qua denies the statement therein contained, when said statement is the express ground of objection urged by the accused.</p>

Bightor, J. One, whose interests are not affected, or who is not aggrieved hy a judgment, cannot appeal from it. Held: that the executors are without interest to appeal, and an appeal granted to them will he dismissed. R. C. C. 1012,1671; 30 A. 128 : 13 La. 3 (3d paragraph) j 9 La. 415; 19 La. 278; 11 A. 177.; 10 La. 499. The heirs, legatees, creditors and claimants compose the succession.

Bay, Special Judge. This case was originally decided at Monroe, and was transferred, by consent, to Itfew Orleans, where the Decision on rehearing was rendered.

<p>Tlie verdict of “guilty of involuntary manslaughter,” in this case, is legal and responsive, though the indictment charged the accused with voluntary manslaughter.</p>

Tissot, J. When the widow administers a succession as tutrix, she administers the same as an effect, a thing belonging to her wards, and is governed by the rules appertaining to the administration of tutors. 16 An. 420. The tutrix, in such case, may legally borrow money and grant mortgages when so authorized by the court, and upon the advice of a family meeting. 13 An. 304; 7 Pol) 63.

1. An answer admits what is alleged in the petition and not denied. 4 Wallace, 548; 4 N. S. 615; 14 A. 137; 11 A. 103. 2. Services rendered by a Parish Attorney under an ordinance giving him a stipulated salary, and accepted by the Parish, is an executed contract, the 11 obligations” of which cannot be “impaired.” 10 Howard, 416 ; 6Cranch,136; 8 Wheat. 92; 4Wheat.694; 103 IT. S. 10; 13 Wallace, 379. 3.

Twentieth Judicial District Court, Parish of Lafourche. Knobloolc, J. ■ 1. hTo severance having been asked for on the part of the State, there could have been no-separate trial under a joint indictment, when defendant objects. 2. Tbe evidence must be confined to the issue, for the general rule is, that no evidence is admissible of other felony, or offenses committed by tbe prisoner, than that charged in the indictment. 3d An. 512; Wharton Am. Cr. Law, 4th Ed. par. 647. 3.

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

1. The Constitutions of 1845, 1852 and 1864, and the laws thereunder, authorized justices of the peace to hold preliminary examinations in all criminal cases. % The Constitution of 18G8, and Section 1010, Revised Statutes, thereunder changed the system, so that justices of the peace could not preliminarily examine in cases, capital or felonious, and remitted that duty to Parish and District Judges exclusively. 3.

Houston, J, 1. The obligations of sureties in the official bond of a defaulting sheriff are identical with those of the principal. His obligations are to be considered as transported into the bond in their entirety, and bind the sureties for specific performance iu the same manner as he is himself hound by law. Schmidt vs. Hew Orleans, 33 A. 19, •52.

Houston, J. 1. If the property of A be seized under proceedings authorizing the seizure of that of B. it is a, tortious act. Tbe right of plaintiff arises under that article of our Code which declares ‘‘ that any act whatever of man, that causes damage to another, obliges him by whose fault it happens, to repair it.” C. C. 2315, 2316; 5 B. 116; 9 It. 367; 12 B. 20; 4 B. 39, 136; 6 B. 385; 4 A. 201; 7 A. 524; 17 A. 21; 8L. 33. 2.

<p>A habeas corpus will not issue where the. piiscner, who had furnished bail before the committing magistrate, for his iippeajanee before the Listnct Court, presided over by the same officer, is ordered by the latter, after a tine bill ior manslaughter has been found, to be confined, and refuses to furnish a new bend. It requires no proceeding to authorize the Judge to issue such an order, which is in the nature of a bench warrant.</p>

Mghtor, J. 3.Where an insurance company issues the following receipt: “ Shreveport, La., July 22, 1873. $248 80. Received of Mr. G. R. Todd, draft for two hundred and forty-eight 80-1001 dollars, drawn on J L. Tompkins, of Shreveport, La., and payable on the first day of August next.

JBavbin, J. The Judge, under Act No. 35 of 1880, has no authority to elect or select a particulra’ week of the ordinary teim, during which a jury drawn is to serve, but the jury, if… Held: under Act No. 35, parties tried, cannot he sentenced to tbe State Penitentiary, at hard labor. One giving bail to appear at the next regular jury term of court, in December, cannot be called and forced into a trial at a prior term, ordered and held in September, under Act No. 35 of 1880.

1. Act Ho. 15, approved Eebruary 24th, 1877, relating to the cancellation of official bonds, does not require any new pleadings to he filed after the Governor has referred the parties • to a competent court to decide upon their respective rights.

<p>Suit based on infringements of a trade-mark.</p> <p>Tbe evidence establishes the proprietary interest of plaintiff in his trade-mark; also, the medicinal properties of his bitters, and that he is not guilty of fraud in using the word “imported ” on his labels.</p> <p>The unauthorized use by other parties, of plaintiff’s trade-mark, is no justification of defendant’s acts of infringement; but, on the contrary, such circumstance is, under the authorities, one of aggravation.</p>

Homan, J. 3. “Crime against nature” is a common law offense; also an offense against the law of Louisiana. Sec. 788, It. S. of La.; 4 Blackstone, 214; Bouvier’s Law Dictionary; Bishop on Criminal Law, Yol. 1, Seo. 503. 2. “ Every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before the jury shall be sworn, and not afterwards.” Seo. 1064, li. S. 3.

<p>-ApPLICATION for Prohibition and Mandamus.</p>

<p>APPEAL from tlie Twenty-sixth Judicial District Court, Parish of Jefferson. Halm, J.</p>

<p>APPEAL from Third District Court, transferred from Superior District Court for Parish of Orleans. Hawkins, J.</p>

<p>Appeal from tlio Twelfth Judicial District Court. Barbin, J.</p>

High,tor, J. 1. The non-filing of the record of appeal on the return day thereof, or within ílm e judicial days thereafter, is a presumption juris et de jure of the abandonment of the appeal, subject to be rebutted only by proof that within said delay an extension of this return day has been obtained in the appellate court.

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

<p>A tax sale will be annulled where the pioperty was not assessed in the name of the real owner, but in that of another party, and where no notice of seizure was given to the owner.</p>

Lanar us, J. “Rachel” being alive, it follows, that the'proceedings in the Second District Court, by which defendants were put in possession of her property, are null and void: 1st. Because “nemoest hseres viventis.” 2d. Because the Second District Court was exclusively a court of probate jurisdiction, and had no power to administer upon the estate of a living person, subject to no incapacity determined by some special law. R. S. 1870, § 2011.

Pardee, J. 1 The act of the Legislature, approved 17th February, 1806, relative to Board of Levee Commissioners, repealed all former laws authorizing parochial authorities to construct levees •at the cost and expense of riparian proprietors of lands leveed. 22 An. 58.

<p>The motion to quash the venire was properly overruled, in the absence of a charge of fraud, or averment of a great wrong or injury caused to the defendant.</p> <p>The accused was not entitled to a new trial on the ground that the evidence at the inquest was taken along by the jury, together with other papers, in retiring to deliberate, and that the table in their room of deliberations was covered with law books, to which they had access.</p> <p>It is not necessary that the accused be personally present in court at the trial of the motion for a new trial.</p>

Goode, J. 1. In a tax sale every formality of law must be strictly complied with, under pain of nullity. 4 L. 148; 14 A. 209 ; 33 A. 291; Cooley on Tax, 323; Blackwell, 33; 13 Cal. 609. 2. Property must be legally described in the assessment roll. Blackwell, pp. 123, 278. 3. Property of non-residents must be placed on tbe non-resident portion of the roll. Acts 1871, Act 42, ?ec. 18. This provision is mandatory. Cooley on Tax, 277; 19 Maine, 100 ; 1 Mass. 48; 23 JST.

<p>No person but a resident in tlie Parish can be appointed by the Judge dative tutor to a minor, ■without giving bond.</p>

<p>Under Section 1871 of the Revised Statutes, the Judge cannot, upon the mere filing of the creditors’ petition for a forced surrender, issue an order to compel the defendant to make the surrender. A suspensive appeal lies from such an order.</p>

<p>The remarks which the jury read by permission of the court, after their verdict was rendered and filed, did not affect the validity of the verdict.</p> <p>The publication made by the defendant, of the proceedings of the Council of the Town of Houma, was not libellous.</p>

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

<p>Phis Court has jurisdiction of suit for the levy of a tax to pay three judgments owned by plaintiff, although the amount of each judgment is less than one thousand dollars, if the aggregate amount of the judgments exceeds one thousand dollars.</p> <p>In such a suit the right to the levy of the tax prayed for is an issue presented for decision, and the proceeding is not an ordinary execution of a judgment, or of judgments, which aro res judicatce, of the issues involved in the oiiginal suit or suits only, and the right of appeal cannot be defeated by such consideration.</p>

<p>APPEAL from the Sixth District Court for the Parish of Orleans. Iiightor, J.</p> <p>Where a railroad company has obtained a right to construct a double railway track, and to run cars of similar dimension to those in use on other city lines, and violates the conditions of the adjudication, by constructing the tracks and a curve closer than the required distance and by using cars of larger dimensions than those prescribed, thereby using the highway otherwise than the adjudication allowed. A court in determining the care the railway company was bound to exercise, to release itself from liability for an injury to a passenger, caused by the dangerous proximity of the tracks and the use of cars of improper dimension, will be governed by the conditions attached to the contract and adjudication of the right of way, as directly affecting the question of liability. Slattery vs. R. R. Co., 3 App. cases, 1207; Lyman vs. Union R. R. Co., 114 Mass. p. 83; Bodley vs. R. R. Co., 1 App. cases, 754.</p> <p>Rules of contributory negligence have no application to facts shown in this case. Barksdale vs. H. O. O. R. R. Co., 23 A. R. 182.</p> <p>Plaintiff had the right to suppose the ordinance of the city complied with by defendant, and the extension of his elbow a few inches out of window of car over the space between the tracks or highway, reserved under the adjudication, was on his part no act of negligence. Wharton on .Negligence, Secs. 362, 341.</p> <p>The city regulations affect the question of care required of both plaintiff and defendant, and the former had the right to expect the Company in constructing the tracks, had separated the double track the required distance, and operated cars similar in width and dimensions to those on other lines. Hyde Parks vs. Gay, 120 Moss, p. 592; 2 Redfield Law of Radlway, p. 192, Secs. 2, 3, 4; p. 198, Ros. 12,13, 14; Rashville R. ±t. vs. Smith, 6 Haskell, 175 ; Smith vs. Gardiner, 11 Gray, 418.</p> <p>Ordinary care, skill and diligence is such a degree of care as men, of ordinary prudence, under similar circumstances, usually employ. Robinson vs. W. P. R. R. Co., 48 California, 410; Ernst vs. Hudson 'R. R. Co., 35 R. X. 27; Ernst vs. Hudson R. R. Co., 39 R. X. 61, on appeal; Beers vs. Housatonic R. R. Co., 19 Conn. 567; Sawyer vs. Sauer, 10 Kansas, p. 466.</p> <p>The law does not hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both. Rewsom vs. Rew Xork Central, 29 R, X. 390. :</p> <p>A defendant cannot impute a want of vigilance to one injured by his acts, as ‘negligence — if that very want of vigilance were the consequence of an unlawful omission of duty on the part of defendant. Gordon vs. Grand St. R. R. Co., 40 Barbour, 550; Boudrou vs. R. R. Co., 92 S. C. Penn. p. 475; Pa. R. R. Co. vs. Ogier, 35 Penn. 60.</p> <p>Carriers of passengers are bound to carry safely, those whom they undertake to carry, as far as human care and foresight will go; where an injury is received by a passenger in consequence of anything in the construction or management of .the vehicle or the machinery of transportation, the carrier is responsible if any exercise of care or foresight would have prevented it. Edgerton vs. New York & H. R. R., 35 Barbour, 193-8 ; Bowen vs. New New York Central, 18 N. Y. 411; Story on Bailment, See. 601; Pineo vs Roy, 12 Otto, IT. S. 451-7.</p> <p>Passenger’s right to recover for an injury, is unaffected by the concuning or contributory-negligence of railway, and a municipal corporation or third persons. G-illet vs. Western R. R. Co., 8 Allen, 562; Snow vs. Housatonic R. R. Co , 8 Allen, 443; Panlmer Admr. vs. Erie R. R Co., 34 New Jersey, 151; Eash vs. 3d Av. R. R. Co. 1 N. Y. 149.</p> <p>Railway companies are bound to lay their tracks along a street which is a public road, properly, and keep them in repair and proper condition. Rockwell vs 3d Av. R. R. Co., 64 Barbour, 430; Affirmed in 53 N. Y. p. 625 ; R. R. Co. vs. Stout, 17 Wallace, 661.</p> <p>Difference between railways where steam is used, and street ears, commented on. Thompson on Negligence, pp. 362, 341; p. 440, See. 8.</p> <p>In 8 Penn. L. St. 479, Laing vs. Calder, passenger’s right of recovery was affected by fact that notice was given to passengers not to put hand outside of window.</p> <p>In 9 Harris, Pa. 203, held that passengers could recover where arm projected and was struck hy a passing freight train.</p> <p>In McClurg case, the Supreme Court overruled last case. But in 13 and 15th Pass. Rail vs. Boudrou, 92 Pa. 475, has toned the doctrine of contributory negligence to mean, that a passenger “although guilty of a want of care, will not he prevented from recovering damages from the Company, when the negligence of the company was the causa próxima of the injury.”</p> <p>In 51 Illinois, Chicago R. R. Co. vs. Pondrom, 341, case of McClurg pronounced not well considered.</p> <p>In Spencer vs. Milwaukee R. R. Co., 17 Wisconsin, p. 463, case of Todd in 3 Allen, pronounced unsound and contrary to weight of authority.</p> <p>In Winters vs. Hannibal & St. Jo. R R. Co., 39 Missouri, p. 474, opinion is adverse to doctrine in Maryland case cited hy defendant.</p> <p>In Huelskamp vs. City Railway, 34 Missouri, p. 539, case was remanded owing to an error in instruction. But in 37 Missouri, p. 539, plaintiff recovered, though injured on platform. Case is thoroughly argued.</p> <p>Case at bar presente features different from all cited, in this, that the Company violated the conditions upon which the right of way was obtained, and its liability rests on the unauthorized and unlawful use of the highway and prohibited cars. Rev. C. C. 2315 ; 1 Red-field Railway, 2 Ed. p. 542, Sec. 7; pp. 538, 132; Eclipse Towboat Co. vs. Pont R. R Co., 24 A. R. p. 12; and is also affected by the habits and customs of passengers in using the cars known to the Company.</p> <p>There is no fixed standard of damages for a broken limb, and no court will interfere with verdict, unless it find on the record and finding of jury, evidence of passion, partiality or bias. 18 N. Y.t Aaron vs. 32d Av. R R. Co.; 2 Daly, 448,127; 9 Penn. 207; 48 Wisconsin, 569; 27 Missouri, 375; 10 La. A. R. 37; 17 La. A. R. p. 19 ¡ 23 La A. R 181.</p> <p>When in a suit to recover damages for personal injuries it appears that the plaintiff was negligent, and contributed by his carelessness to the disaster, he cannot recover, even though the defendant be in fault. 27 An. 54; 30 An. 20; 32 An. 615: 33 An. 154</p> <p>This rule applies to actions brought hy a passenger against his carrier. 5 An. 514; 9 An. 441; 11 An. 292; Redfield on Railways, 4th Ed., §193; Sedgwick on Damages, p. 495; Railroad Co. vs. Aspell, 23 Pa, St. 147; Railroad Co. vs. Jones, 5 Otto, 442.</p> <p>Erom the admissions in the petition, as well as the proof in the record, it appears that the plaintiff would have sustained no injury if his arm had not been carelessly exposed outside of the car window.</p> <p>Such an act is negligence in law, and has been so pronounced by the courts. 3 Allen, 18; 7 Allen, 208; 56 Pa St 294; 29 Ind. 85; 5 Bush, (Ky ) 1: 39 Md 329; S. C. 17 American Rep. 568 ; 2d American Railway Cases, by Redfield, 552, note ; 34 Mo. 45.</p> <p>The evidenee shows defendant was not in. fault, but that the accident is attributable entirely to the want of care on the part of plaintiff</p>

Homan, J. 1. Under Article 8 of the Constitution of 1879, an indictment is fatally defective which does not inform the accused of the “ cause as well as the nature of the accusation. 2. Before the confession of the accused can be received in evidence, the State must show “ affirmatively,” that the confession was voluntary. 3 A. 499; 28 A. 927 ; 30 A. 881. 3.

1. The instrument sued on is an assignment or transfer to the extent of three thousand dollars. The facts show a complete-transfer to that extent. This is an assignment. 1 Bouv. 156, Ho. 8; 2 Ib. fiQ5; 1 Sandf. 416 ; 2 Hilt. 477; 6 How. (Miss.) 487; 5 George, 506 ; 12 M. 702. The instrument being an assignment, plaintiff can sue in his own name. 15 Aik. 491; 6 Yerg. (Tenn.) 512; 2 Pet. 239; 2 La. 89 ; 4 A. 303. ; 2.

Houston,' J. 1. The child, John Hearn, aged 22 months, was struck down, severely injured and almost instantly killed, on the 21st day of September, A. D. 1877, in the City of New Orleans, by car No. 66, of defendant, driven by a driver in the employ of defendant in its ordinary course of business. 2. The plaintiffs are surviving parents of the child so killed, and as such, are entitled to recover of the defendant damages for all injuries to the child, and for its death. 3.

<p>APPEAL from the Civil District Court for the Parish of Orleans. ’Lazarus, J.</p> <p>Third persons alone may avail themselves of the want of inscription of mortgages: neither the contracting parties nor their heirs can take advantage of the non-inscription of a> mortgage. C. C. 3342, 3343, 3344 ; 7 An. 100 and 776.</p> <p>When a purchaser, as a part of his purchase price, assumes the payment of a note of his vendor, the obligation resulting from such assumption is peí sonal, and falls under the ten year prescription. 32 An. 283, Scionneaux of Waguespack et al.</p> <p>The assumption by a purchaser, of a note of his vendor secured by mortgage on the property acquired by him, as part of his purchase price, gives rise to a vendor’s privilege, growing out of the nature of the contract, and of which any holder of the said note may avail himself. It. C. C. 3249 and 1890; 7 Rob. 44; 17 A. 256; 24 A. 381; 3L A. 410; 32 A. 283; Laurent XXX., p. 6, §2; p. 11, § 9; p. 18, §16.</p> <p>It is only to aifeet third persons that an act containing a privilege must be recorded. R. C. C. 3273.</p> <p>The denial of ownership of a note is not.a defense calling for any proof of such ownership by - the plaintiff; the defendant must specify a good defense against the real owner. 30 A.' 680, Klein vs. Buckner.</p> <p>1. Vendor’s privileges exist only for the unpaid portion of the purchase price. They exist only by the operation of the law. They are the creatures of the law, under Art. (3216) 3249, Civil Code, and cannot he extended by implication or analogy or convention of parties. Aits. 3185, 3186, 3312, 3249, Civil Code ; State of Louisiana vs. Citizens’ Bank,' 33 An. «06 $ Scionneaux vs. "Waguespack, 32 An. p. 287; Hennen’s Digest, p. 1238.</p> <p>2. The origin, cause or raison of the vendor’s privilege, as defined by Laurent, Vol. XXX., p. 6, § 2; p. 18, § 16, is the crucial test to determine the privilege. It is the acquisition, by the purchaser, of the vendor's properly, to the increase and enrichment of the buyer’s estate, that causes it; therefore, the vendor has his privilege for the unpaid cost price of his property so acquired. But this raison or cause of the law can exist only for the rights of the vendor so transferring his property, and when other parties claim it, the raison of the law does not extend, and the maxim of cessante ratione legis cessat ipsa lex fully applies against them. Laurent, Vol. XXX., p. 6, §2; p. 18, §16; Broom Legal Maxims, p. 100,</p> <p>3. The simple assumption of an ordinary mortgage of the vendor hy a purchaser of property cannot change the original obligation or character of the mortgage and create a vendor’s privilege in favor of the mortgage, creditor, wheic none existed under his mortgage.</p> <p>4. The ordinary mortgage creditor can have no greater or higher rights against the purchaser of property who has assumed the mortgage, than those created by his mortgage, and which he possessed thereon, against his original debtor. The nature and character of his obligation cannot be changed hy the assumption of the debt — he has no greater rights against the assumes than, he had against his first debtor. Such a change in his debtor does not increase his rights. They remain the same, and no vendor’s lien can thus be created in his favor,</p> <p>o. The assumption of and promise to pay the debt of the vendor, made in the act of sale, as a part payment of the purchase price, and accepted by the vendor, if accomplished and not invalidated, is a ’payment pro tanto to the vendor, on which no vendor’s privilege exists, under the law of vendor’s privilege. Art. 3249, C. C.; Domat’s Lois Civiles, Part L, Book in., T. 1, Sec. 5, § 4; 6 Mar. X. S. 638; 2 Mar. X. S. 149; Pothier on Sale, Sec. Ill, §30.</p> <p>6. Thc^creditor whose debt is assumed, is not a vendor, or holding a vendor’s rights or title. His lights in this sale, to which he is not a party, arise solely under the assumption in the stipulation pour autrui therein, which gives and defines them, and are not beyond it.</p>

<p>APPEAL from tlie Civil District Court for the Parish of Orleans. Bightor, J.</p>

<p>Act Ro. 96 of 1877, which provides for the limitation to three years, of the privilege attaching to taxes, does not affect the mortgage securing such taxes.</p> <p>Act Ro. 77 of 1880, which provides for the limitation to three years, of all tax mortgages and tax privileges, only applies to future taxes.</p>

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

<p>In order to bold an adjudicate©, who refuses to comply with Ms bid, responsible in damages, under a sale a lajolle enchére under Article 2611 of the Civil Code, the property offered at the second offering must be identical in substance and in description; the conditions must be the same and on the same terms as they were at the first offering. M In 559; 3 it. 401; 4 A. 242.</p> <p>Any change-or variance in the quantity of property, or of the terms and conditions of the sale, will vitiate the second $ale, and will operate a release of the delinquent bidder from all damages in the premises.</p>

Roman, J. 1. The action of the trial court in questions of continuance, when dependent upon matters of fact, cannot be revi-ed. 11 A. 81; lb. 422; lb. 479; 14 A. 40; lb. 42. 2. Nor where the refusal to grant a continuance is because due diligence has not been used to procure the witnesses. 4 A. 441, ‘505; 6 A. 311, 556, 593, 651; 7 A. 47, 122, 531; 8 A. 114; 10 A 501; 14 A. 79, 673, 785; 23 A. 539 ; 28 A. 46; 31 A. 179. 3.

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

Monroe, J. 1. The Fifth District Court of New Orleans, under tlie Constitution of 1852, had no jurisdiction over any suit where the amount involved was less than fifty dollars. Constitution of 1852, Titled, Art. 61; Act No. 181 of 1853 ; Constitution of 1845, Secs. 75, 78; Act No. 43 of 1846; Act 229 of 1853; Act 255 of 1855; Act 344 of 1855; Revised Statutes 1856, Sec. 27, p. 280; Act No. 345 of 1855, 2.

<p>APPEAL from the Fifth District Court for the Parish of Orleans. Hogers, J.</p> <p>1. Where the violation of a contract is active or positive, no putting iu default is requisite as a condition precedent to the recovery of damages for the breach of contract. Erwin vs. Eenwiclr, 6 N- S. 233; Haughery vs Tliiberg, 24 An. 442; Taylor vs. Chase, 18 L 90; Davis vs. Glenn, 3 An. 444; Leeds vs. Passman, 17 An. 32; Coneryvs Noyes, 17 An. 201.</p> <p>2. Where a party to a contract performs his part of it unskilfully and in such manner as to cause damage to the other party, this is an active violation of the contract, and no putting in mora is necessary as a condition precedent to the recovery of damages by the party injured. Conery vs. Noyes, 17 An. 201; Lobdell vs. Parker, 3 L. 331; Martin vs. Pollard, 9 L. 174; Overton vs. Simon, 10 An. 170; Miller vs. Stewart, 12 An. 370; Nicholson vs. Desobry, 14 An. 81.</p> <p>3. When a mechanic undertakes to make and deliver a piece of machinery, and actually does deliver the machinery, but in a defective condition, lie will be considered in default from the time of the delivery of the defective work, and will he held responsible for such direct damages as the other party may have suffered from the delay caused by the defective work. Cable vs. Leeds, 6 An. 293; Bill vs. Penny, 15 An. 212; Nicholson vs. Desobry, 14 An. 81; Merlin, Feme Contractuelle, §111. No. 2.</p> <p>4. The fact that the party to whom the defective machinery is delivered makes use of it after delivery as its defective condition admits of, does not release the other party, or his warrantors, from liabilty for damages for defective performance; nor does a subsequent acceptance of the machinery, as complete after further work has been done upon it, release . the party in default or his warrantors from liability for damages for defective and dilatory performance of his contract. Regina vs. Bradlaugh, 38 Law Times, N. S. 118; Mindell vs. Steel, 8 Mees and W. 858; Munro vs. Blunt, 8 Ellis and Blackburn, 749; Wenshurst vs. Deely, 2 Manning, Granger & Scott, 253; Reed vs. Board of Education, 4 Abbott, N. Y. (5 TT. S. Dig. 127, No. 187); Esert vs. White, 10 Bush. (N. Y.) 169; Smith vs. Coe, Hilt. (N. Y.) 365; Tucker vs. Williams, ib. 562; Hill vs. School Dist. No. 2, 17 Maine, 316; Dermott vs. Jones, 2 Wall, 1; Railroad Co. vs. Smith. 21 Wall. 250; Grimm vs. Gamache, 25 Mo. 42; Stewart vs. Pulton, 31 Mo. 59 ; Smith vs. Brady, 17 N. Y. 173.</p> <p>5. Where there is a stipulation in the contract that the work is to bo done by one party to the “entire satisfaction of the other,” the latter is constituted by the act of the parties the judge and arbiter of tbe sufficiency or insufficiency of the performance; and no receiving of the work, except as work which has been done to the entire satisfaction of the party so constituted arbiter and judge of the sufficiency or insufficiency of the performance, will preclude the latter from recovering damages for defective performance. Benjamin on Sales, §§ 139, 140 ; Hardman vs Bellhouse, 9 Mees. & Welb.; Gray vs R. R. Co. 11 Him. (N. Y.); McCarren vs. McNulty, 7 Gray, 129; Pindley vs Breedlove, 4 N. S. 105; Conery vs. Noyes, 17 An. 203.</p> <p>6. A paity permitting the completion of the performance of a contract, after the time for the performance has expired does not tbeieby forfeit his right to damages for the breach of the contract as to time. Buff vs. Bimaldo, 55 N. Y. 664; Barber vs. Rose, 5 Hill, (N. Y.) 76; 15 Johnson, (N. Y.) 250; 12 Barbour, (N. Y.) 336; 6 Harris and Johnson, (Md.) 38-</p> <p>7. Parties to suit cannot claim that the debt sued for has been remitted, except where the remission of the debt has been specially pleaded. N. O. Gas Light Co. vs. Hudson, 5 R. 487; Biudworth vs. Hunter, 9 R 371.</p> <p>8. A stipulation in a contract that a party thereto may retain out of moneys agreed to be paid to the other party damages exigible for defective or dilatory performance, is a stipulation exclusively for the benefit of the party in whose favor it is made; and which he can waive without prejudice to his right to sue for and recover damages as stipulated in the contract. Benjamin vs. Hilliard, 23 How. 162; Everett vs. Gray, 1 Mass. 102; Bret* ton vs. Turner, 6 N. H. 481; Sraedes vs. Pord, 1 Ellis and Ellis, 602; Duckworth vs. Allison, 1 Mees. & Welb. 412; Riggs vs. Búrbridgo, 15 Mees. & Welb.; Bigg vs. Robert, 3 Carr, and Payne, 40, (14 E. C. L. R. 203); 1 Kent’s Comm. 545; Lane vs. Cotton, 12 Mod. 482; Hadley vs. Baxendale, 9 Exch 341; C. C. 2130, (2126) 2199; Tuullier, Liv. Iff. Tit. III. des Contrata, No. 335; Demolombe, Cours de Code Nap., Liv. III. et IY. Ch. Y. Nos. 441, 446 37ft; Larombiíjre, Yol. III. p. 566; Gilbert, Codes Ann. 1282,1283; No. 2; Mouton vs. Noble, 1 An. 192; Succession of Nivet, 5 An. 145; Bach vs. Cohen, 3 An. 103; Tresca vs. Maddox, 1 Ann. 208; 29 An. 958; 19 An. 212; Shute vs. Hamilton, 3 Daly (N. X.) 462; 3 TJ. S. Dig., N. S., p 147, No. 2; Thompson vs. Allison, 28 An. 733; C. C. 2125.</p> <p>1. The prayer of the petition determines the character of the suit.</p> <p>2. Failure to complete and deliver a piece of work within the stipulated term, is but a passive breach of the contract. Art. C. C. 1931; and authorities under No. 3, below.</p> <p>3. Damages for the passive breach of a contract are due only from the time of putting the party in default, in the manner provided by law; and no evidence as to such putting in default is admissible unless properly pleaded. Arts. C. C. 1933, 2126,1911; 6 N. S. 229; 3 An. 444; 6 Bob. 450; 16 An. 390; 17 An 32; 5 La. 5; 115 Nob. 500, 501; 7 La. 193; lLa. 98; 13 La. 229; 9 Nob. 500; 3 An. 208; 11 An. 300; 15 An. 112; 14 La. 81; 10 Nob- 526; 6 N. S. 624; 2 Nob. 403.</p> <p>4. The exception of no cause of action and the objections to the admission of any evidence, except as to the breaking of the platen on November 13,1877, should have been maintained. See authorities under No. 3, above.</p> <p>5. Evidence of active breaches of a contract is not relevant or proper in a suit for damages, based on the passive breach alone of such contract.</p> <p>6. Allegations of non-delivery are totally inconsistent with allegations of delivery of defective work. Such allegations materially destroy each other.</p> <p>7. It would be unreasonable and unconscionable for a party to retain the possession apd use of, for the sake of making and actually making large profits from the use of, a work, and to recover damages growing out of the delay in completing such work, which completion such use and possession alone has prevented. 24 An. 442 ; 26 An. 72.</p>

<p>APPEAL from tlie Second District Court for the Parish of Orleans. Tally, Judge ail hoe.</p>

<p>"Where a loss lias been adjusted between an Insurance Company and a policy holder, such adjustment is a new and independent agreement; and the action for the recovery of the adjusted loss is a suit, not upon the policy, but upon the new promise or contract. In such a suit, the Company cannot set up, in defense to the claim, breaches of warranties or stipulations in the original policy.</p> <p>The Company can escape the liability of the adjusted loss only in a clear case of fraud or error, in which the burden of proof lies upon them, and they must establish the charge with certainty.</p>

Houston, J. 1. Malice and want of probable cause must concur to entitle plaintiff to recover; but malice need not be proved affirmatively; it may be inferred from want of probable cause. 9 E. 487, 318 ; 9 A. 219. 2. The discharge of plaintiff by the examining magistrate, is presumptive evidence of want of probable cause. 2 Gr. on Ev. See. 455; 24 A. 330: 3.

<p>Tliia ia a suit on a policy of insurance, for the destruction of the insured building. The policy contained a clause under which the insurer was not responsible for losses occasioned by explosion. And the defense was that the losses wore due to that cause. By the explosion of the sugar house boilers, the building caught fire, which fire was apparently extinguished, but it broke out a second, and a third time, within forty eight hours after the explosiou.</p> <p>Held, that the existence of a fire as an effect of the explosion must be presumed to have continued as such an effect, unless the contrary be proven, and the insurer was released from liability for the destruction of the building.</p>

Sherburne, J. The party opposing a motion assumes the character of plaintiff in petitory action;- he must show title. The onus proba/ndi is on the party alleging that title has been divested to show divestiture. A tax deed of .property sold by tax collectors in 1881, authentic in foim, or made by authentic act, can alone be received in evidence under Sections 45 and 46 of Act 77 of 1880, and Section 2d of Act 107, 1830.

<p>APPEAL from the Eleventh Judicial District Court, Parish of Natchitoches. Breda, Judge ad hoe.</p> <p>A contract of pledge is a secondary and purely auxiliary obligation, and its character, eifcct and duration is controlled by the principal obligation; accordingly, should the principal obligation be null — should it be conditional; should it he non-exigible or extinguished, so pari passu would the pledge be affected; perpetually adhering ns it does to the principal obligation, it cannot be detached, dissevered or diverted from it without destroying the contract itself. C. C. 3136-7-8.</p> <p>Until the debtor be divested from bis property be remains tbe proprietor of the pledge, which is in the hands of his creditor only as a deposit to secure his privilege ou it. O. C. 3166.</p> <p>The creditor cannot, in case of failure of payment, dispose of the pledge. O. C. 3165.</p> <p>One person cannot pledge the property of another (a fortiori he cannot alienate it) except it he with the express or tacit consent of the owner; hut this tacit consent must be inferred from circumstances so strong as to leave no doubt of the owner’s intention, as if he was present at the making of the contract, or if he himself delivered the creditor the tiling' pawned. 0. 0. 3145-8; 8 JR. 10; 11 A. 223; 28 A. 70; 29 A. 329.</p> <p>The transferor assignment of a debt or of an incorporeal right is in all respects assimilated to-a sale, and is so-treated and demonstrated by the Articles of the Code on the subject. O. C. 2615-2616 and 2457.</p> <p>The sale of a thing belonging to another is null, (C. C. 2427) and so equally is a giving in payment, which differs only from a sale in this, that delivery is of its essence and a thing is substituted for a price in money. C. G. 2625.</p> <p>The rule that prescription is suspended on the principal debt so long as the pledge continues, applies solely to- the principal or primary obligation, and has no application to collaterals constituting the thing pledged. 21 A. 128; 22 A. 107-117; 23 A. 199 and 294. So likewise a partial or entire payment of one collateral does not interrupt prescription on the other collaterals.</p> <p>The onus is on plaintiff to show interruption where prima fació it has accrued. 26 A. 245 ; 21 A. 295 i 20 A. 565.</p>

Gole, J. 1. Acknowledgments shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception. O. 0. 304. 2. Acknowledgment is a preliminary and necessary act, when legitimation of children is attempted. 3. When the law gives a statics upon the condition of marriage, it means such marriage as it itself prescribes. 4 A. 375 ¡ 12 A. 367. 1.

Houston, J, 1. The failure of an officer elect to qualify by giving bond within thirty days after the receipt of his commission, operates a vacation of his office, and the Governor has the right to… Held: vacates the latter. 29 A. 824 ; 32 A. 193; State vs. Delwood, 33 A. N. B.

<p>APPEAL from tlie Seventeenth Judicial District Court. Parish of Red, River. Pierson, J.</p> <p>1.Where jurisdiction is wanting ratione materice, the court is bound ex-officio to notice it, and the judgment of a court wanting such jurisdiction will be null. 1 If. S. 200, 703; 3 If. S. 136 j 14 L. 177; 6 B. 365; 11 B,. 77 ; 21 An. 611, 616, 662, 239, 479 ; 26 An. 602.</p> <p>2.The investiture of jurisdiction ratione materice, after the institution of the suit, will not efface the nullity. 21 An. 754. The sheriff acting under writ of ft. fa., and the purchaser at a sheriff sale must take notice whether the court had jurisdiction ratione materice. Judicium a non mo judice datum nulliua est momenti. 7 If. S. 2; 6 B. J92; 9 An. 350.</p> <p>3.The District Court in 1870 had no jurisdiction ratione materice to partition the property of a succession, such jurisdiction could only be exercised by the Probate Court. Const. 1868, Art. 87 : C. P. 924, §§ 14, 1022 ; 1 An. 228 ; 2 An 151; 22 An. 517; 23 An. 56, 407 ; 22 An. 131; 24 An. 270, 156 ; 27 An. 126 ; 23 An. 212; 28 An. 367.</p> <p>4.Succession is also the right by which the heir can take possession. 0. C. 874. Possession signifies both a right and a fact. C. C. 3434. The succession only ceases when the estate has been reduced to possession by the heir. 30 An. 139, 95; 25 An. 335; 24 An. 114; 27 An. 686; 25 An. 143, 221; 26 An. 603, 611; 28 An. 849, 372; 29 An. 412.</p> <p>5.It is only those who have received the price, or to whose benefit the price has enured, that are bound to make restitution to the purchaser before suing to reclaim their property. The rule restituo in integrum is founded in the equity, that no man shall enrich himself at the expense of another, and will not extend to a reclaimer of property who has derived no benefit from the parting with it.</p> <p>6.Legal rights are to be founded only upon the observance of equitable and legal principles. Those who engage in a collusive conspiracy with the husband to despoil the wife and her minor children of their property, cannot he heard in a court of justice to found any rights in themselves from such conduct. 3Sx twrpi causa non oritur actio. Bank of the U. S. vs. Owens, 2 Pet. 538; Webb vs. Pritchett, 1 B. and P. 264 ; Slidell vs. Pritchard, 5 B-. 106 ; 3 An. 314.</p> <p>7.A thing that is absolutely null cannot be ratified. Vacuity can no more be added to, than taken from. Comments of Marcado, vol. 5, p. 90, on Art. 1338. O. If.; C. C. 2272; Decuir vs. Le Jeune, 15 An. 571; il>. 700.</p> <p>8. Estoppels do nob apply to married women and minors. 4 An 231; 6 An. 397; 16 An. 213 ; 7 An. 293; 2 An. 757; 13 An. 4; 12 An 852; 14 An. 169; 2 Woods, 151; 23 An. 647; 16 An. 190.</p> <p>1. Of the removal of the cause to the United States Circuit Court. Vide: Removal of Causes, 100 U S. 473; Barney vs. Latham, 103 U. S- 205; Sec 5. of Act March 3d, ld75; Sec. 3 of A ct March 3<1, 1875; Sec. 1 of Act March 3d, 1875, does not apply.</p> <p>2. The guardian or the tutor of the minor, had the right to apply for the removal. The appointment of Elizabeth Twitchell, in Vermont, as guardian for the minor, M. H. Twitclicll, was not an absolute nullity. C. C. 250, 253, 266, 263.</p> <p>The vaiious petitions for removal show that at the date the minor was attempted to be cited, all the parties defendant resided in Vermont.</p> <p>The suit was tried in the District Conrt, contradictorily with the guardian. Vide the agreements of counsel, found in T. Ho. 7731. pp. 32 etscq; 36 et seq; 39 et seq.</p> <p>3. The alleged exception on part of the plaintiffs, to the defendants’ petition for removal, inadmissible, and proof thereof should not he received or considered by the District Court, nor by this Conrt. Vide: Taylor vs. Rockfeller, 13 Law Register, 303; Removal of Causes, 10 Otto, 471; 4 H. S. 344 ; 7 La. 394; 14 La. 515; 6 R. 33; 1 H. S. 299.</p> <p>On tiie Merits.</p> <p>1. If the succession of W. E. Hall had not been fully administered, nor the heirs put in possession, the proper course was for a new administrator to have “been appointed, and the suit entered in his name. King, Administrator, vs. Atkins, 33 A. 1059.</p> <p>2. This suit is equivalent to an unconditional acceptance of the father’s succession by the heirs; and its effect relates back to the date of his death. Glasscock vs. Clark, 33 A. 585; C. C. 987; 977 etseq.</p> <p>3. The heir of a deceased person being considered seized of his succession from the moment of its being opened, the right of possession which the deceased would have had if the com - munity had been dissolved by judgment vested, and continued in the person of the heir, and each heir becomes an undivided proprietor of the effects of their father’s succession.</p> <p>Glasscock vs. Clark, 33 A. 585.</p> <p>4. A final settlement, and full and complete liquidation of the affairs of the community, or the father’s succession not necessary to entitle the heir to take possession thereof. Glassock vs. Clark, 33 A. 585.</p> <p>This diversion specifically overruled the rulings of the Ludeling Court, found in 25 A. 379 j 27 A. 634. On these, plaintiff’s action was founded.</p> <p>5. But plaintiffs, in their petition and briefs, admit that the succession of W. E. Hall, had been liquidated and all of its debts paid. Vide T. Ho. 7348, p. 145; Vide plaintiffs’ original brief, pp. 51, 52. 22.</p> <p>6. When the heirs take possession the succession is closed. 30 A. 139; 25 A. 335; 30 A. 95 j 27 A. 686 ; 24 A. 114; 25 A. 143, 221; 26 A. 603, 611; 28 A. 349, 372 ; 29 A. 442.</p> <p>7. That the District Court of De Soto Parish had constitutional jurisdiction to grant the decree for a partition of the lands belonging to the former community of W. E. and Caro* lino Hall, and between the widow Caroline and the Hall minors, we regard as conclusively settled in the following cases: 33 A. 51, Life Association of America vs. Hall; 30 A. 177, Boutte vs. Boutte; 31 A. 574, Buddecke vs. Buddecke; 12 La. 214, Henry vs..Keys.</p> <p>S. Of good faith. Robert vs. Brovn, 14 A. 598; G C. 503; 11 M. 675; 7 H. S. 358; 6 R. 438; 2 A. 347; 5 A. 380.</p> <p>9. Bad faith possessors are entitled to necessary expenses for the preservation of the property, and to a proper adjustment of their claims for constructions and improvements. Heirs of Wood vs. Hicholls, 33 A. 751; Heirs of Self vs. Taylor, 33 A. 769; C. G 508, 2413.</p>

J. Sec. 7, Art. 138, C. C., does not contemplate conferring criminal authority upon the civil tribunals organized under the Constitution of 1868. These tribunals eannot inquire into the guilt or innocence of one charged with a crime. The proofs mentioned in said Section have reference only to the finding of a court of competent jurisdiction, to-wit: a Criminal District Court, Recorder or other committing magistrate.

<p>Where a creditor attacks a sale made in the name of a third person, for the occult benefit of his debtor, the burden is upon him. Where the evidence affirmatively supporting^the transaction has not been rebutted, the sale will not be disturbed.</p>

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

<p>The registry of the judgment rendered on a mortgage note, in this case, was not a sufficient reinscription of the original mortgage, as the judgment did not contain and, when registered, did not convey all the necessary information for the purpose of the reinscription.</p>

Logan, J. 1. The pendency of an appeal in the Supreme Court, upon a transcript regularly filed, has the effect to legally interrupt prescription of the right of appeal, subsequently, if the first be dismissed for want of form ; and the period of time during which the first appeal was pending should be subtiacted from the two years’ time within which non-residents are allowed to appeal. C. C. 3518; C. P. 593.

Oole, J. 1. The written evidence necessary to prove the interruption of prescription of any debt of a deceased person, as required by Article 2278, R. C, C., need not be in any particular form. It suffices if same be in the form of aletter, memorandum, or the obligation itself, (when in wilting) in an account or otherwise. 33 A. 1067; 23 A. 455; 30 A. 1263; 27 A. 70; 25 A, 511; 7 A. 201. 2.

<p>APPEAL from the Twenty-third Judicial District Court, Parish of West Baton Bouge. Gole, J.</p>

<p>The prayer of the petition in this case, notwithstanding its confused averments, shows that the suit is the revocatory action, and it was properly dismissed hy the lower court for want- of the necessary allegation of the vendor’s insolvency.</p> <p>The plaintiffs were not entitled to amend their petition after it was dismissed as showing no cause of action.</p>

<p>APPEAL from the Twentieth Judicial, District Court, Parish of Lafourche. Knobioch, J.</p>

Tammany. Duncan, Judge ad hoc. 1. Rural property, and not urban, is exempt from seizure under Article 645, Code of Practice. Parmers alone are entitled to the exemption Cruly’s case, 25 An. 219; 26 An. 645 ; 28 An. 575. 2. Whilst the Constitution of 1879 did not repeal or afreet rights existing at the time of its adoption, registry was necessary to perpetuate the light. Arts. 219 and 220, Constitution of 1879. 3.

Helena. Kernan, J. Malicious slander will be punished by damages. 17 A. 64. Malicious slander will be punished by damages commensurate with the character of the language used. 19 A. 333. It is not incumbent on the plaintiff to show malice, which tbe law implies, on the part of the publisher, nor to prove injury if the charges are false» 25 A. 170.

<p>The right of defendant to his liomei-toad existed prior to the Constitution of 1879, under the law of 1865, aud was nofc impaired or affected by the provisions of tbe foimer, except as to the necessity of recording bis claim to such homestead under the requirements of the subsequent legisla! ion, with which ho complied.</p>

<p>APPEAL from the Eighth Judicial District Court, Parish of Madison. jDeloney, J.</p>

J.iightor, J. 1. Attachment is a harsh and severe remedy, to which resort should not he had except when actually necessary. 3 L. 18; 18 D. 587; 11 A. 438; 14 A. 832. 2. A judgment in favor of defendant is equivalent to a decision that the attachment was wrongfully obtained, and that the principal and surety are liable on the bond. Moore vs. ■Wilbenberg, 13 A. 22; Accessory Co. vs. McCerren, ib. 214. 3.

Pierson, J. 1. Motions for new trials, on the ground of ne\Vly discovered evidence, will not he granted when said evidence is not material to the issue, hut is designed alone to impeach the evidence of a leading witness for the State. Wharton’s Am. Cr. Law, 4th Ed , Sections 3184 and 3185; Archhold’s Cr. Pr. and PI., 7th Ed., p. 652, Vol.

<p>The suit of a creditor of the husband to have the transfer made by the latter to his wife, in payment of her rights, rescinded and annulled, on the ground of fraudulent simulation, <*annot he viewed in any other light than that of the revocatory action, and is prescribed in one year. Affirming previous decisions.</p>

<p>The minutes of the court a qua, as transcribed in the records, show that this case was allotted to Section B of said court, in which the accused was tried. This differentiates it from the Addotto case 34 An. p. 1, and shows that the accused is not entitled, on this ground, to a new trial.</p>

<p>A PPEAL from the Twentieth Judicial District Court, Parish of Lafourche. KnoVlocli, J.</p>

<p>The plaintiff and appellee having caused the case to be set down for trial on the summary docket, as one entitled to be tried by preference, must be deemed to have waived liis rights to a motion to dismiss the appeal on the ground that the bond given by appellant was not such as required by law.</p> <p>The teachers of the public schools of New Orleans cannot, under the law, be appointed for a longer term tlign one year.</p>

<p>APPEAL from the Second Judicial District Court, Parish of Jefferson. Pardee, J.</p> <p>The benefits of Art 593, C. P , that the delays for appeal as regards minors, “must be computed from the day of their coming of age,” cannot be extended to a suit where the minor seeking to appeal, had, or has only a residuary interest as heir in a succession party to such suit, represented by a testamentary executor. 12 It. 323.</p> <p>“ This Court cannot amend the judgment between appellees; nor can an appellee obtain any relief on the appeal prosecuted by some other party to the suit.” 20 An. 121; 10 An. 288.</p>

Rough, J. . . . The sale of the school section to York and Hoover was null and void: 1. Because it was made without the “ consent ” of the inhabitants legally given. Act of Congress, February; 1843. U. S. Stat. at Large, VoL 5, p. 601; Durant vs. Board of Liquidators, 29 An. p. 77,. where the said act is quoted ;' Rev. Stat. 1876, Sec. 1316; C. C. 1797, .1818, etc. 2. * Because said land was not sold in lots, as required by law. Rev. Stat. 1876, Sec. 1316.

<p>Hncler the laws of tlie State, police juries are clotlied witli plenary and exclusive power to regulate l>y ordinances tlie manner of malting and repairing public roads in tbeir respective parishes.</p> <p>Tbe burden imposed on land owners by tlie parochial road laws, is not a tax within the meaning of the Constitution in its limitation of the municipal taxing power.</p>

<p>APPEAL from the Eighth Judicial District Court, Parish of Madison. Deloney, J.</p>

<p>APPEAL from tlie Eighth Judicial District Court, Parish of East Carroll. Deloney, J.</p> <p>1. The court a qua has the right to correct its minutes, so as to have them conform to a correct statement of the facts, at any time. Archboid’s Crim. Pr and PI, 7th Ed , Yol. I, p. 690, note 1; Halo’s Pleas of the Crown, Vol I, 1st Am. Ed., p. 646; Bishop on Criminal Procedure, 2d Ed., Yol I, Secs 1161 and 1162; Criminal Law Magazine, Yol. I, Sec 12, p. 253; State vs. Westfall, 19 Iowa, 328; Bilanski vs. State, 3 Minn 427; Burnett vs. State, 14 Tex. 455</p> <p>2. Particularly does this right exist when said correction is made contradictorily with the accused. 31 A. 387; Ib. 4C6 , Ib. 357; 32 A. 1227.</p> <p>3. It is not necessary, in a verdict, to insert the name of the accused, or the offense. 30 A. " 382; 31 A. 717; 32 A. 854.</p>

Section 19 of A ct No. 77 of 1880 applies to the Parish of Orleans as well as to all the other parishes of the State. Taxpayers in the City of New Orleans have no light to test the correctness of assessments before the oourts, unless they have first made application for correction before the Board of Assessors. And appeals to the courts from the decision of the Board of Assessors must be prosecuted promptly.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Laemus, J.</p>

Hawlces, Judge ad hoc. 1. Where the Judge is recused, and can find no resident attorney competent to act as Judge ad 7¿oc, the ease shall be assigaed to a District Judge of an adjoiniug District Sec. 2, Act 40 of the Acts of 1880; Act 70 of the Acts of 1876. 2.

<p>APPEAL from the Ninth Judicial District Court, Parish of Concordia. Hough, J.</p> <p>The Supreme Court lias no jurisdiction of a possessory action, in which the value of the possession is neither alleged or proved to exceed the sum of one thousand dollars. 22 A. 272.</p> <p>Jurisdiction is fixed by the pleadings and the evidence, and where the evidence in the record shows that this Court has no jurisdiction, ex-partc affidavits filed after appeal is perfected are not permissible to contradict or vary the evidence so as to ohange or show that it has.</p> <p>On the Merits.</p> <p>In a possessory action the possession of the executor, during his administration, is the'possession of the heirs, and will entitle them, after a partition, to maintain the action. 5 A. 689, 643.</p> <p>The civil possession of the vendee, together with the actual and real possession of the vendor, will suffice to maintain the possessory action, when brought within one year of the vendor's actual and real possession, and before an adverse possession has been acquired. 13 L, 237; 19 L. 241; 10 A. 518.</p> <p>1. The premises in dispute did not belong to Fletcher, or the Fletcher Place. Plaintiff had no right, or title, orpossession. She cannot maintain a possessory action. C. P. Art. 49 ; 7 La. 415 ; 13 An. 573 ; 4 An. 515.</p> <p>2. She should have ordered a survey, and admitted the deeds offered to prove the locus in quo and the extent of the Fletcher Place, and of possession of the plaintiff. 9 M., bottom of page 79 ; 19 La. 256; 7 An. 578; 15 La. 451; 6 An 66 ; 19 La. 484.</p> <p>3. The possession of the disputed premises by Fletcher, plaintiff’s vendor, was a tortious possession; he could nob convey any right to the same to his vendee. Ex “ turpi causa,” etc.</p> <p>4. The plaintiff, not having actual possession at the time, or prior to the alleged disturbance, his action must fail.</p> <p>5. The amount involved in this suit exceeds in value the sum of one thousand dollars.</p>

<p>APPEAL from t.lie Second District Court for the Parish of Orleans. Tissot, J.</p>

<p>It is now well settled in our jurisprudence, that the property held in pledge by a creditor, may be seized from his possession by another creditor of the pledgor, and that the said pledgee cannot, by injunction, arrest such seizure.</p>

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

<p>When stolen property is found in the possession of the person charged with larceny, it is for the accused to show how he came by said property, and it is for the jury to decido whether his account or explanation of such a fact is reasonable or sufficient, or not. Such account is not to be taken for true, simply because the prosecution docs not rebut it.</p>

Brigham, J. 1. The refusal of the Court to charge as requested by counsel for accused is correct when such charge contains an opinion of the effect of the evidence. 12 A. 195; 22 A. 43. 2. Held: is the most competent to pass upon his competency, and said judgment will not be disturbed unless there has been some error of law made therein to the detriment of the accused. 5.

<p>The will of the husband, who Ioffe no forced heirs, having bequeathed the usufruct of his share of the community property to the wife, giving her, at the same timo, the right to sell the said property itself, the wife, accordingly, sold such property and bought it in herself, at the public sale. Held, that she acquired hy this purohase all the rights that any other purchaser would have acquired, and that she could convey a valid title to the property.</p> <p>The Parish Court could legally authorize a married woman, iu the absence of her husband, to purchase property of the value of more than 8500.</p>

Houston, J. Warrants issued to meet the appropriation made for the support of the University of Louis* ianav pursuant to the provisions of Article 230 of the Constitution of 1879, are constitutional warrants, and, as such, are entitled to be paid on the same footing as warrants issued for salaries of constitutional officers. See 32 An. 1216.

<p>It is the value of the thing claimed, and not the amount of the judgment sought to he sattisfied out of it, which determinates the jurisdiction of this Court, when title is asserted to the property. There being no allegation, no affidavit, no testimony to show the value of the property in this ease, the appeal is dismissed.</p>

Sherburne, J. Property assessed to Heirs of Engleliarfc cannot he the basis of judgment against the Heirs of John Davenport, to whom the assessed property belongs. 28 An. 17; 10 An. 771. A tax sale is illegal when the tax is levied on more prox>erty than is actually owned- An assessment on 500 acres being §1500, on 404 acres would only be §1212. A sale by collector made in June, 1875, is null and void. 32 An. 228; 30 An. 817.

<p>JjTo owe can be allowed to question tbo validity of a sal© and, at the same time, to judicially áemaud the proceeds of suoh. sale.</p> <p>'SCjie tutor's receipt, by authentic act, for money due his wavda, cannot be ooutradicted by oral ovidenoe</p> <p>$To Jaw oompejs tire tutor to consult a family mooting or to obtain the authorisation of the .«Tudge, for the purpose of investing the minor’s fund» on mortgage, in acoordance with •the provisions of the Code.</p>

<p>APPEAL from the Twelfth Judicial District Court, Parish of Grant. Barbm, J-</p> <p>The law of this State authorizing the revival of judgments was not intended to provide any different mode of interrupting prescription of judgment from those applicable to other forms of debt, but was only intended to prevent the prescription of judgment debts, and to continue them in force from ten years from the date of revival. The proscription of a debt evidence by a judgment can be interrupted in the same modes as the prescription of debts evidenced in any other way. 30 An. 1071.</p> <p>Judgments not revived in accordance with Art. 3547, Civil Code (R. S. 2813) are prescribed by the lapse of ten years.</p> <p>Citation to revive, unless from the Court that rendered the judgment, does not interrupt the prescription. Same.</p> <p>The power to confess judgment in favor of the principal, must be special and express to the agent. C. C., Arts. 2996-7.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. liUjhtor, J.</p> <p>The special mortgage given by the natural tutor to secure the rights of his minor children and the faithful performance of his duties as tutor, is not exigible until one of the minor» attains his majority, 'when he can proceed to sale of property mortgaged, after discussion of the other property of the debtor. C. C. 325 to 333.</p> <p>An order of seizure and sale on such special mortgage without rendition of an account fixing specific amount due a minor, and authentic evidence of the exact indebtedness is premature and unauthorized,</p> <p>The special mortgago docs not import a confession of judgment for any specific amount. 22 A. B, 267; 1 A. B. 279; 31 A. B. 279 ; 31 A. B. 217.</p>

Monroe, J. When A sues a corporation to claim dividends or ownership of certain shares which he alleges the corporation illegally allowed to be transferred to B by C, pretending to act as hie agent, B, who has the certificates of the corporation for the shares, and in whose name they are recorded upon the boohs of the corporation, is a necessary party to the suit. 20 A. 381, 383; 32 A. 546; 40 G-a. 408.

Logan, J. The plaintiffs claim title under the recital contained in the sheriff’s return, to the effect that the property “ was adjudicated to Elizabeth A. Bolden, tutñx, etc. T. p. 85 et seq. The defendant claims title under the recitals and terms contained in the sheriff’s proces verbal to the effect that11 Mrs. Elizabeth A. Bolden, widow of Madison Carroll, by her agent and attorney in fact, T W. Abney, being the last and highest bidder, became the purchaser,” etc. T. p.…

<p>Insubordination and disrespectful conduct of the employee towards his employer is a suflicient ground for his discharge and the rescission of the contract of employment.</p>

Lamms, J. .¿■ ¿Second — The Court is especially requested to reserve, as not in issue in this case, the further questiou as to whether the stockholders of the plaintiff may not have the right, after the expiration of charter, to use the road in accordance with its destination, subject only to the legitimate exercise of the City’s police power over the streets.

Cok, J. 1. An executor may join an heir in demanding a partition to show, by admissions, the right, of the heirs to take seizin of the estate. 2.

Monroe, J., acting for Lazarus, J. In Louisiana, the fee of the streets of a city is in the public, and is administered by the Legislature primarily, as chief representative of the public interest, and, subject to this control, by tbe municipality through its legislative body. Renfchorp vs. Bourg, 4 M, 97» 135 ? Mayor vs. Hopkins, 13 La. 326, 330 ; Dillon on Municipal Corporations, 3d Ed., § 652.

<p>This is, to all intents and purposes, a suit against the City of New Orleans, which is hy law dispensed from giving hond in judicial proceedings.</p>

Monroe, J. 1. Whenever a party interested in the performance of a ministerial duty imposed by law upon apublio officer of a corporation, shows a deliberate refusal or neglect to perform, at the specified time required by law, by which he will be injuied or apprehends injury or damage, and such party has no other adequate remedy at law, he will bo entitled to the writ of mandamus to compel performance. *2.

Monroe, J. 1. This is a proceediug to enforce compliance with Act 49 of 1869 of the General Assembly. That Act authorizing and directing the City of Hew Orleans to issue the bonds held by Relator, and directing, under penalty, a oertain specific sum to he raised annually and deposited as a special fund with the Fiscal Agent, to meet the interest of said bonds, constitutes a contract, and creates, ex necessitate, a debt. 2.

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

<p>An indictment charging the accused with feloniously and knowingly receiving the property, and that “ he well knew the same was stolen property,” is in sufficient conformity to tbe statute.</p> <p>Sfor is it necessary that tbe indictment should state who stole the property, or from whom the accused received it.</p> <p>The charge that the accused stole the goods is sufficient, without the further averment that he took and carried them away.</p> <p>Xor does the statute make any formal requirement as to tbe mode of expressing ‘the criminal intent of stealing the property.</p>

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

CChe discretion of officers charged with the construction of levees, in regard to their location and their necessity, as well as the amount of land to be appropriated in satisfaction of the servitude established by Art. 665, O. C., is subject to judicial control. 11 A. 160; 20 A. 309; 66 N. T. 407; 23 Minn. 167 ; 22 A. 60. Commissioners empowered to straighten a river, to protect a country against inundation, are not liable personally for incidental injuries to individuals.

Houston, J. 1. Act No. 9 of 1874 is in plain conflict with Arts. 6 and 94 of Constitution of 1868 in depriving the accused of the trial by jury, and granting judicial powers to recorders prohibited. 2. ActNo. 9 of 1874, by prescribing a different penalty, repealed Act No. 120 of 1855 and Act No. 21 of 1866. 21 Pick. 373 ; 4 Bur. 2026. 3.

<p>The special drainage tax levied by tbo Police Jury of Terrebonne Parish is unconstitutional and void, because by a previous levy of a teu mill tax they had exhausted their power.</p> <p>Tho present Constitution does not impair any contract existing by virtue of Act No. 6 of 1878, between tbe State and Terrebonne Parish, for the power to levy the tax authorized by this Aot is not abrogated, but with legislative authority a tax can be levied to continue this work of public improvement.</p> <p>Act No. 33 of 1879 contains nothing inconsistent with the present Constitution, on the contrary, Art. 214 of tho Constitution gives it vitality, and by it tho taxing power for loveo purposes is conferred directly upon tbe Levee Commissioners.</p>

Hough, J. Where the intervenor has been ordered by the Court to produce his books and correspondence before a commissioner of his domicil for examination by plaintiff, and plaintiff swears be can establish material and specific facts by the books or documents called for, and inter venor fails to obey order, plaintiff is entitled on motion, to have the specific facts sworn to, taken pro coufesso, and it is error to refuse the same.

Houston, J. 1. The death of a partner dissolves the partnership, as, also, does the expiration of the term. 2. The breaking up and utter annihilation of the business of a firm dissolves the partnership. 3.

Delon ey, J. 1. When the bill of exceptions contains no'specific objection, but uses vague and indefinite terms, it will not be considered by this Court. Voorhies’ Crim. Juris., Sec. 156, p. 472; 32 A. 819 j 10 A. 458; lb. 453; 12A.382; oA.342 ; 6 A. 420 and 651; 11 A. 283 and 430 j 12 A. 67!); 14 A. 461; H. IX Sec. 14, p. 410. 2.

<p>Although a caso has already been fixed for trial, an application for a jury is in time if, at the moment it is made, the case does not stand fixed for trial. Affirming previous decision.</p>

Barbin, J. i. To bind a married woman, the creditor must prove either that the’ debt enured to her separate benefit, or that she was a public merchant, and the obligation was connected with her business as such. 15 A. 352 5 13 A. 540. % There is no proof that the obligation sued on had any connection with her business as merchant, or that it enured to her separate benefit. 3.

Lnsenberg, J, 1. An assignment of errors in ciiminal, as in civil cases, must he written and filed within ten days after the filing of the record, in accordance with Article 897, 0. P.; 12 A. 862. 2. An information for an assault hy wilfully shooting at, drawn under Article 792, B. S., need not allege that the shooting was done with a dangerous weapon. Section 792, B. S., was enacted for the purpose of suppressing the use of dangerous weapons in cases of assault.

Houston, J, 1. Consideration for promissory notes presumed; party denying consideration must clearly prove his allegations. 2. Sanity of maker of note always presumed. Peculiar special rules iu Louisiana. C- C. 1788, [1781]. 3. Insanity must be proved to have oxisted at the moment of the execution of the note. 4. Pecuniary consideration in Louisiana not required.

<p>APPEAL from Hie Fifteenth Judicial District Court, Parish of West Feliciana. Yoist, J.</p> <p>Amendments not changing tho issue will he allowed at any stage of the cause, prior to j udg- . ment. 27 A. 316, 713; 28 A. 627; 32 A- 395.</p> <p>An executor who fails to render an account once in twelve months shall be dismissed from office, and pay ten por cent, per annum from the date of the expiration of the twelve months. R. S. 1465 • 9 A. 376; 13 A. 585 ; 33 A. 1021.</p> <p>All executors, etc., shall deposit all moneys in one of the chartered hanks of this State, or one of their branches, allowing interest on deposit, if there be one in the parish, * * and shall not pay any claim until a tableau of distribution shall he homologated, or unless ordered by a competent court, and then only to pay such debts as may be ordered for payment, etc., etc. R. S. 1463; R. G. C- 1150; 19 A. 97 ; 32 A. 557.</p> <p>•* Corporations unauthorized by law' or by an act of the legislature, enjoy no public character, and cannot appear in a court of justice, hut in the individual name of all the members who compose it, and not as a political body.” + * C. C. 446; 29 An. 379, Workingmen's Accommodation Bank vs. George T. Converse et ais.; 12 R. 428; 3 A. 541.</p> <p>11 The act requiring executors, etc., ‘to deposit all moneys collected by them, etc., under penalty of being condemned to pay the estate 20 per cent, per annum interest on the amount not so deposited or withdrawn without order of court, besides all special damage, and dismissed from office, being highly penal, must be rigidly construed.' ” 7 R. 477; 9 A. 412; H. B., vol. 11, p. 1490.</p> <p>•* Where there is no bank paying iuterest on deposits in the parish where tho executors reside and tho succession is opened, they need not deposit the funds, the object of the law being not so much their safety as to render them productive.” 7 R. 477; 11 A. 279.</p> <p>“ The right to do what is ordered to be done within a given time exists so long as no action of court or the opposite party has in erveued to conclude that right.” H. 1). verbo Time, p. 1580.</p>

Yoist, J. 1. Novation is never presumed. O. C. 2190. 2. And where it is conceded that one new note is given for the aggregate amount of two other notes for same consideration and interest, by same maker to same payee, solely because the two notes were old and worn out, novation is disproved. 3.

Oole, J. 1. In an expropriation suit, the jury must find a verdict in money for the value of the land and such damage as defendant may sustain. It cannot contain conditions. C. C. Arts. 2630,2031,2632. Mills on Eminent Domain, Section 112, and authorities cited; Section 258, and authorities cited. 2. The value of the land in fee must he paid in money. Value of right of way can he offset. 3.

Charles. Oheevers, Judge of the Twenty-second Judicial District Court, in place of Malm, J., recused. 1, Property offered for sale for taxes must bring tlie full amount of taxes due, or it cannot be transferred to the purchaser. Aot 47 of 1873,101; Bollocq vs. City of New Orleans, 31 A. 471. Aot No. 77 of 1880 refers to the collection of futuro taxes, and not taxes due prior to 1880. State ex rel. Mrs. Jackson vs. Recorder of Mortgages, 33 A. 3.

<p>APPEAL from tbe Civil District Court for tbe Parish of Orleans. Mghtor, J,</p>

<p>Whore a judgment from bed and board is rendered in a suit by the husband against the wife, who reconvenes and prays for a divorce, and it does not say in whose favor it is rendered, the Court will infer that it was rendered in favor of the wife, where the custody of the issue of the marriage is given to her, and the community is condemned to pay costs.</p> <p>On a subsequent proceeding for a divorce, each claiming the benefit of the judgment and alleging the expiration of one year and absence of reconciliation, the Court will pronounce judgment in favor of the wife, and award her the custody of the child on a prayer for the amendment of a judgment against her, appealed by tho husband.</p>

Houston, J. 1. When the Constitution has fixed the salary of an oifioer, to be paid out of a speoial fund, all aots of any branch of the government which prevent or modify the execution of such a provision are unconstitutional, null and void. 33 A. 1313. 3.The salary of the Register of Conveyances is fixed by the Constitution and is to be paid out of the Judicial Expense Fund for the Parish of Orleans, by preference over warrants issued only by legislative authority. Const.

Houston, J. It A Judge in one division of Civil District Court cannot sit in another division. Constitution, Art. 30. 2. A final money judgment cannot be annulled and a fieri facias quashed and seizure released by an ex parte order, without notice or citation.

Harbin, J. The will contains a substitution, for the following reasons: 1. Because it is drawn in the exact language of the entail of the common law and the substitutions limited by the ordinance of 1747, and prohibited by the Code Napoleon, Kent, Yol. 4, pages 20 and 21, and what was an entail or substitution then, must be one now. 2.

Livau&ms, J. 1. Injunction after injunction cannot lawfully issue from the same court, arresting execution upon the same, or even on different grounds — otherwise a creditor could he perpetually baffled by his debtor, and the administration of jastice become a mockery and a by-word. 12 A. 197-613. 2.

Goode, J. 1. Title to a continuous and apparent servitude cannot be proved by parol. C. C. 2440, 2275 • 32 A. 839; 28 A. 678; 12 A. 213; 5 A. 132, 204; 15 A. 541; 3 Rob. 452. The opposite rule asserted by defendant and appellee is not sustained by the cases from 12th and 20th and 25th Annuals.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. - ■</p>

Ilujhtor, J. I. 1. According to the rules of commercial and common law, the books of a bank are not admissible in evidence in its favor. 2. Even were the books of a bank, admissible in evidence in its own favor, according to the rules of common and commercial law, it is a condition precedent to their admission that the entries therein must be proved by the evidence of the clerk who made them, or, if he be dead, by proof of his handwriting.

At a sheriff’s sale made at the instance of a special mortgage creditor, the purchaser must pay the amount of his bid into the hands of the sheriff, at the time of sale, even if he he himself a judicial mortgage creditor, or the property will be resold. C. P. 689.

Lanar us, J., in place of Houston, J., absent. 1. The Public Administrator, under Acts of 1870, No. 87, and of 1877, No. 74, can be appointed administrator of a succession only in specified contingencies. 2. He cannot be appointed wben tbe widow in community is represented by an agent and also by counsel of record. 3. A temporary absence of the widow in community on a visit, does not justify his appointment. 4.

<p>Where there was a judgment in the lower court homologating an account of administration, so far as not opposed, which judgment had become final, and where the only opposition to the account was a claim for §237.60 for drainage tax, this Court has no jurisdiction to determine the merits of the controversy, because the amount to he distributed is no longer an appealable bond.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Mghtar, J.</p> <p>1. Where proper and necessary partios have not boen made to an appeal it will be dismissed. 12 L. 271; 13 L, 302 ¡ 12 R, 203; 10 L. 100; 3 R. 430 ; 5 R. 230 ; 12 R. 180 ; 8A. 367;11A, 674; U A, 074; 14 A. 313; 3 R. 140 ; 10 R. 309 ; 4 A. 377; 11 A. 409 ; 3 A. 174; 21 An. 209; 10 A. 78; 18 A. 281 j 10 A. 40; 31 A, 334; 33 A. 484; and 21 A. 735.</p> <p>2. A judgment ordering a garnishee to liquidate an indebtedness to the defendant and de. posit tbe amount thereof with tho sheriff within a reasonable delay fixod, or in default to pay tbe amount of tbe judgment of plaintiff, tho indebtedness of garnishee to tho defend, ant being, under bis answers, ovidontly greater than plaintiff’s judgment, is an interloontory Judgment whioh doos not work tbe garnishee irreparable injury, and no appeal lies therefrom. 23 A. 213; 22 A. 138.</p> <p>3. Where tbe transoript contains no agreed statement of faots, note of evidenoo, or bill of exceptions, and no assignment of errors has been filed, the appeal should be dismissed. 29 A. 71; 33 An. 350.</p> <p>4. If tbe garnishee admits an indebtedness to tho defendant, bat, does not speoify the amount, tbe Court can order him to liquidate tire same within a limite l timo, and p iy ovor to the sheriff suoh amount ns be may find due. 13 An. 212; 12 An. 272; 10 La. 501.</p> <p>5. An amonded answer fllod without leave of Court is not to bo considered as part of tile record. 5 La. 80.</p> <p>0. An averment that tbe garnishee is "advised that defendant lias assigned bis claim, ” is too vague and indefinite to be entitled to notice. 21 An. 33,</p> <p>7, Aot No. 27 of Extra Session of 1877, does not apply to a garnisheo who admits an indebt, edness, and where tbe plaintiff is not seoking to disprove or traverse tbe answers of tbe garnishee.</p> <p>1. Only persons interested in maintaining the judgment, and in having it remain undisturbed need be made parties to the appeal, 11 A. 186 ; Hon. Dig. p.’263-4; Elder vs. Rogers, 11 A, 606.</p> <p>% A judgment condemning a gamislioe to pay money, incase ho fails to deposit a specific sum with the sheriff, when he has answered he did not know how much ho owed, is not interlooutory, but final, and an appeal lies therefrom. Wabash and Erie Canal vs. Beers t 1 Black, 54; Philip’s Practice, 75.</p> <p>3. Where the record enables the Court to decide on the merits, no formal assignment is necessary. The certificate of the clerk showing that the record contains all the proceedings in the suit is sufficient. 15 A. 420; 18 A. 261; 28 A. 115; State vs. Bank of Louisiana, o 3ST. S. 341; 14 La. 368.</p> <p>4. Analysis of cases cited by the Court in the decree on the motion to dismiss.</p> <p>5. Kone but those interested in maintaining the judgment undisturbed need be made parties to the appeal. 11 A. 606; 6 R. 399; 16 La. 324; 23 A. 260; 16 La. 109; 3 R. 36 ; 5 R. 224; 12 R. 203 ; 8 L. 367; 18 A. 281; 21 A. 209.</p> <p><5. In a suit where the garnishee has been condemned, and has appealed, the original judgment debtor need not be made a patty to the appeal. Elder vs. Rogers, 11 A. 606; Marqueze vs. LoBlanc, 29 A. 203.</p> <p>7. Where interrogatories are not traversed, no judgment can bo rendered against a garnishee whose answers show neither an attempt to evade responsibility, nor an acknowledgment of indebtedness.</p> <p>8. A judgment must bo in accordance with the pleadings, and responsive to the prayer, and no judgment can grant more relief than is asked. 4 M. 289; 2 K. S. 241; 81ST. S. 469 : Hen. Dig. pp. 731-732; Louque’s Dig. p 338; Bernheim, Baeur & Co. vs. Sorsby, lately decided by Court of Appeals.</p> <p>p. Garnishee eannot be held liable, as his answers were not traversed within twenty days. Act 27, Extra Session of 1877; 31 A. 547.</p> <p>10. Where there is a condition precedent to recovery, it must be complied with before the party can recover. Drake on Attachment, Sec. 553.</p> <p>11. The exact amount due by garnishee must be shown. Drake on Att., Sec. 553; 5 Robinson, 447-</p>

Hough, J. 1, The plea of prescription, as a peremptory exception, is in the nature of a demurrer; all the allegations in the petition must he taken as true for the purpose of a trial of the same* 313 An. 374,138,177, 204 ¡ 14 An. 137; 14 La. 421; 10 An. 586 ; 9 An. 9 } 6 Rob. 419. 2. A nuncupative testament by private act must be read as required by law, under pain of absolute nullity.

Sherburne, J. ’Where the matter in dispute is a party’s light to subject property to the payment of his judgment for an amount less than $1,000, this Court is without jurisdiction, although the property sought to be subjected to said judgment is worth more than §1,000. 33 A. 1083; B. C. C. 19T7.

<p>Defendants, as mauufaot-urors, aro exempt under Art. 207 of tlio Constitution, but, as dealers, which the evidence shows them also to be, tlioy are liable for a license tax.</p>

Lazarus, J. The Public Administrator has no right to claim to be appointed in a succession when there are heirs present in the State.

liightor, J. 1. Where a lessee of a store permits a third person to occupy a room or apartment in the leased store, free of rent, and without any fixed term, the latter is under tenant at will of the principal lessee; and his goods and effects found in such room or apartment of the leased store, are not subject to the right of pledge 'enjoyed by the landlord of the principal lessee, except as is provided by the Civil Code, Art. 2706. 2.

Monroe, J. 1. A bank cannot apply deposits held by it to the payment of an indebtedness due it by the depositor. C. C. 2210, 2956 ; 12 An. 257; 7 An. 53; 2 An. 25; 11 An. 73 ; 23 An. 116 ; 32 An. 590. Neither custom, nor the by-laws of tbe bank can authorize such compensation or set off, when prohibited by law. 23 An. 113; Sec. 5136, R. S. IT. S.; 5 N. S. 344; 9 An. 44; Angelí and Ames on Corporations, §§ 333, 335 ; C. C. 433, 445; 25 An. 413. 2.

<p>APPEAL from tbe Civil District Court for tbe Parish of Orleans. Laxarus, J.</p>

<p>This application being for a writ of prohibition only, no other question than that of jurisdiction of the Court, or competency of the Judge, can be raised.</p> <p>As no plea to the jurisdiction appears in the pleadiogs, or was passed upon by the lower court, there is nothing before this Court to determine.</p>

Royers, J. 1. Plaintiff sues to have opened to use, an alley, originally laid off for the use of her lot and six others. 2. Defendants, and their authors, plead prescription of ten years, and ask to he quieted in their occupation. 3.

<p>A corporation is liable to assessment for the excess of tbe market value of its capital stock over and above tbe value of its tangible property otherwiso assessed and taxed. Oases in 31 A. 475, 852, and 32 A. 20, establish this rule, and are to he followed on tho principle of stare decisis.</p> <p>Buies in matters of assessment and taxation should be stable, and when once settled, should not he lightly disturbed.</p>

liightor, J. 1. The duty of one-half of one per cent, on auction sales, prescribed by Sec. 155, R. S., must be paid to the State by the auctioneer. !R. S. Secs. 140-146. 2. The law levying the duty is constitutional. 28 A. 717; 31 A. 381. The duty on auction sales is not a tax on the property, nor a license on the auctioneer, but a charge on the fact of sale. 28 A. 717; Wintz vs. Girardey, 31 A. 381. It is to be paid primarily, not by the auctioneer, but by the owner. Ib.

Lelony, J. 1. Under the laws providing for compulsory transfer of property, such estate alone can bo taken as is necessary for the purposes for which it is taken. (7 A. 184; 2ST. 0. Railroad Co. vs. Gay, 32 A. 741). 2. A corporation cannot apply property taken under these laws to a different purpose from that for which it is expropriated. Cooley on Constitutional Limitations, 556; Matter of Albany St., 11 Wend. 152; 26 Conn. 255. 3.

<p>APPEAL from the Seventh Judicial District Court, Parish of Avoyelles. Yoist, J.</p> <p>Appeal was granted, in this case by JSdwards, J. ad hoe, Twelfth Judicial District Court, successor of above court.</p>

<p>Where a party bays property from a married woman, be cannot, when sued by her to annul tlie contract, set up that the property never belonged to her, but to the community existing between her and her husband at the time of the purchase.</p> <p>A married woman is not estopped by her declarations in the act of sale or conveyance, from seeking to annul it, on the ground that the act in question was an attempt to take her paraphernal jjroperty to pay or secure the debts of her husband. The principle, as usually recognized and enforced, is not applicable to a married woman, when assailing acts charged to be in contravention of the law prohibiting a wife from binding herself or her property to pay the debts of her husband.</p> <p>"When a married woman, not separated in property, signs an obligation with her husband and other parties for a debt, for which they are bound in solido, but which has not enured to her separate benefit, she is not liable therefor.</p>

Houston, J. Í. The adjudicatee at sheriff’s sale, made for cash, must pay the full amount of his bid. 2.The sale of a tax payer’s right of redemption does not deprive him of his claim for the amount of the adjudication of the property. 1. That in case of a sale made by a sheriff, the adjudication divests the defendant of whatever title he has in the property sold and vests the sathe in the adjudicatee.

Berthoud, 3d Justice of the Peace, acting in place of Gardere, 1st Justice of the Peace, absent. 1. Proceedings by affidavit, warrant and arrest, to recover flues for violation of municipal ordinances, are neither, strictly speaking, civil or criminal in their character, hut, paw taking of the nature of both, are called quasi criminal.

1. Even where there is no warranty of title, an evicted purchaser may recover the price paid, with interest from the date of eviction, unless he had knowledge of the danger of eviction and assumed the risk. R C. C. 2505, (2481); S^wall vs. Roach, 5 An. 684; Canal Rank vs. Copeland, 6 L. R. 550; Bach vs. Syndic of Miller, 16 An. 44; Hall vs. Hevill, 3 An. 327 j Scott vs. Featherstou, 5 An. 314. 2.

Houston, J., Respondent. 1. Where one of the heirs is a minor, the heirs of age cannot be put in possession unconditionally of their part or share of the estate, until a partition is effected. C. C. 1047; 30 An. 389; 21 An. 3G4. 2. When a testamentary executor is administering a succession, an ex parte judgment, without citation or notice to the executor, putting the heirs in possession, is an absolute nullity. C P. 1000-1003; 4 B. 283; 6 3J. 9 ; 12 An. 611; 18 An. 156.

Lazarus, J., acting in place of Houston, J., absent. When the mortgage creditor, With the act containing the ‘pact de non alienando, seizes and sells the mortgaged property under the process of the ordinary court, the administrator of the mortgage debtor has no right to demand that the sheriff or the purchaser shall pay to him the proceeds of the mortgaged property. See C. P. Arts. 683 et seq.; 16 La. p. 170 ,? 5 An. p. 306; 24 An. 381.

Skinner, J. A licensed confectioner cannot sell liquor, or keep a bar, at his confectionery, without a liquor license; the barroom business and that of the confectionery are specially designated and separated in Section 11, Act 119 of 1880. When two or more kinds of business are combined, except as specially provided for in Section 6 of Act 119 of 1880, a separate license is required for each kind of business. Section 13, Act 119 of 1880.

Gheevers, J. After a party has pleaded to an indictment and been convicted, it is too late to object to the constitution of the grand jury, or to the disqualification of any member thereof, more especially if it was known before, as claimed in this case. 14 A. 827; 28 Miss 687; 2 Barb. 427; 2 Parker; O C. 235; 7 Eng. 630: 33 A. 1404; 29 Iowa, 267; State vs. Kimball, 2 Ire-dell, 101; 4 Dev. 305; 6Blatch. 248: 7 Ittohardson, 327.

<p>Relator's right to a tax to satisfy liis j udgment against tlie Parish is to be determined by tbe law in foice at tbe date of bis contract.</p> <p>Tbe limit of taxation, fixed by law, at tbe date of bis contract, and the constitutional enlargement of tbe limit to ten mills, bad been exhausted by the parochial authorities at tbe date of the mandamus. A mandamus to compel tbe Police Jury to levy a tax to satisfy Relator’s judgment was therefore improperly granted.</p>

Pierson, J. When all the matters set up have been passed upon in another suit, they form the basis of an estoppel. 28 A. 625. A partyis estopped from contradicting in a subsequent action what he has judicially admitted to he true iu a previous action between the same parties, (23 A. 764) a fortiori when in the first case he has sworn to a given state of facts. A debtor who points out property is estopped from objecting to the sheriff’s action. 13 A. 461.

Cole, J. The maxim of Ic mart saisit U vij\ is so inlerwoven with the principles established in our Civil Code on the subject of succession, and so well recognized in our jurisprudence that a mere reference to tho law is all that is required. II. ('. C. 871, 872, 873, 874, 880, 884, 940, 941, 942, 943.

Logan, J. On Motion to Elect. 1. It is not an inconsistency in pleading to a direct action to annul, to allege that a sale is simulated, and if not simulated that it is fraudulent. 30 A. 1203; 27 A. 98. 2. The law does not permit a creditor to sue all his debtors in the same action, unless there is a,iomt liability or priority of contract which authorizes the joinder; nor will it permit a party to be joined in a demand in which he has no interest. 14 A. 181; 12 A. 74.

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

Houston, J. The ordinance regulating wharfage dues is constitutional. - 20 Wallace, 577; 5 Otto, 84; 10 Otto, 423: 5 Otto, 430. The banks of a river are public property^ 10 Peters, 662 ; C. C. 457 (448), 458 (446), 8C3 (854); 18 La. 234. The banks are out of commerce, and subject to the public servitude. 9 Martin, 656, 916; 6 Bob. 350; 15 An. 657; 11 An. 148 j 30' An. 190. The building of a private wharf and charging wharfage dues is a punishable offense.

Toist, J. In tax sales absolutely null, the tax collector (having no interest) is not a necessary party j a precedent tender is not required, and the prescription of one or three years does not apply. Section 3 of -Act No. 7, Extra Session, 1875, held to apply to taxes throughout the State, (30 A. 871; 32 A. 2^8) and is not unconstitutional. Where there is doubt, the unconstitutionality of a law is not declared.

APPEAL' from tlie Eighth Judicial District Court, Parish of Madison. Déloney, J. First — -Where a succession is accepted for minors nnder benefit of inventory by operation of law, and those minors, after mgov ty, take possession of tbe estate, assume the quality of heir in judicial proceedings, and mortgage its property for their own debts, they forfeit the benefit of invent >ry, and become heirs purely and simply.. Sevier vs. Gordon, 29 A. 440.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.</p> <p>1. The exception that a petition for the removal of the application of the Administrator for appointment as Dative Testamentary Executor, to the Circuit Court of the United States, cannot he maintained, because:</p> <p>(a) It was decided in a rule to show cause why the removal should not he made, against the present exceptor, and is conclusive herein.</p> <p>(Z>) There is no law authorizing the removal of an application for the appointment of an executor to a succession pending in a State Court:</p> <p>2. The Public Administrator is entitled to the appointment of Dative Testamentary Executor of all estates wherein the executor from any cause cannot discharge the duties of the office.</p> <p>(a) The heir or widow, or surviving husband, can only exclude him, when present in the State, and actively claiming the right to assume the duties of the office. Sec. 3d, Act. 1877, p. 111.</p> <p>(b) The act only settles as between these parties who shall be privileged to assume the. duties — when urging their several claims before the Courts.</p> <p>3. Where the office is vacant thé law imposes upon the Public Administrator the responsibility for the proper administration of the estate: and, therefore, the co-relative right to the appointment.</p> <p>4. The executor, must not only commence, hut in a reasonable delay, complete his qualification as executor; which, for one domiciled out of the State, is:</p> <p>(a) Taking the necessary oath.</p> <p>(b) Causing an inventory to be taken, and giving bond as an administrator is requited to give. Rev. Stat. 1460; C. C. 1679 ; Watson vs. Bondurant, 30 An. 4.</p> <p>5. The penalty for failing or refusing to do which, is forfeiture of the right to the office. Rev. Stat. 1648; C. C. 1666. Sue. of Feray, 31 An. 727.</p> <p>6. Departure from the State of non-resident executor forfeits title to the office, even if he leaves power of attorney. C. C. 1145; Rev. Stat. 1741; Act 1847, p: 115, as interpreted by Y erkes, Guardian, vs. Broom, Executor, 10 An. 359; Dobb’s Succession, 9 An. 354: Watson vs. Bondurant, 30 An. 6.</p> <p>i.</p> <p>On the First Ground op Exception.</p> <p>1. This is an original suit between citizens of different States, where the matter in dispute exceeds the value of five hundred dollars, and was, on proper petition and bond, lemoved to the Circuit Court of the United States for the Eastern District of Louisiana. After such removal, all proceedings therein in the State Court are ooram non judice and void. Dillon on Removal of Causes, and authorities there cited.</p> <p>2. It was a proper case for removal. Gaiues vs. Fuentes, 2 Otto, 20 ; Craigie vs. McArthur, 4 Dillon, 474; Bonduraut vs. Watson, 13 Otto. 386; Washington Improvement Co. vs. Kansas Pacific Railway Co., 5 Dillon, 490.</p> <p>On the Second Ground op Excettion.</p> <p>1. Where an executor, who is a beneficiary finder the will, has complied with the order of the court fixing his bond, and has received his letters, and is in the exercise of his functions, or has completed thorn by the payment of the debts, legacies and expenses incidental to the succession, and claims to hold as universal legatee, ho cannot be destituted of bis -seizin on the petition of the Public Administrator, to enable that officer to make a com» mission. Such a case does not fall withing the provisions of Sec. 3, Act 74, p. Ill, of 1877. The executor is not in the position of one who cannot discharge the duties of his office.</p> <p>2. Tiie Public Administrator is a stranger to the succession. Be has no right to initiate proceedings to create a vacancy for his own emolument.</p> <p>3. Until an executor is removed at the suit of a party in iuterest, the interference of the Public Administrator is officious. Succession of Winn, 26 A. 162; Succession of Poret, 26 A. 157; Succession of Bougere, 30 A. 425; Succession of Dietrich, 32 A. 127; Succession of Henry ; 31 A. 555; Succession of Miller, 28 A. 573-4; Buston and Wife vs. Brugier, 30 A. 482; Succession of Jennie Walker, 32 A. 321; State Bank vs. Evans, 32 A. 466.</p>

Lazarus, J. 1. The right of the City to sue for any tax, license, claim, or debt, exists independent of any express law. Art. II Constitution of 1879: C. C. 427 et seq.; 13 An. 497; 13 Iowa, 61; 1 Oill & 0. 499 ; 9 An. 561; 13 Peters, 493 ; 19 Wallaoe, 227. And the authority is speoially granted by Act No. 88, of 1877. 2. Article 210 of the Constitution of 1879, docs not prohibit suits for taxes.

Monroe, J. First — Where an issue lias been made and determined adversely to a party litigant, no matter in what form presented, it becomes “ res adjudicata- ” as to any subsequent action on his part to revive it iu an other form. 24 An. 104 \ 23 An. 893; 29 An. 291.

<p>APPLICATION for writs of Certiorari and Prohibition. F. A. Monroe, Judge Civil District Court, Respondent.</p>

<p>-A.PPEAL from the Second Recorder’s Court of New Orleans.</p> <p>Ordinance No. 7668, A. S., is not repugnant to the provisions of Arts. 1, 203, 218 and206 of the Constitution of 1879.</p> <p>“It does not interfere with the citizen in the enjoyment of life, liberty and property.” Jt is not a tax upon property, nor a license to pursue any particular calling</p> <p>Ordinance No. 7668, A. S., is a prohibitory one. Tt prohibits the sale of comestibles at certain places and at certain hours of the day, as mentioned in its provisions.</p> <p>The penalty is for the violation of the prohibitory clauses of said ordinance, and not to enforce the collection of any dues mentioned therein.</p> <p>The general powers of the City under its charter are sufficient to warrant their enacting the necessary ordinances, controlling the management of public markets aud the sale of comestibles, in the interest of the public. 2 La. p. 217; 27 An. p. 417; Lamarque vs. City of New Orleans, 1st McGloin. p. 28.</p> <p>Those comestibles were sold at and on tbe wharves of New Orleans, within her corporate limits.</p> <p>The ordinance complained of is opposed to the following articles of the Constitution of 1879. viz: Arts. 203, 218, 206, and 1; aud also to Sec. 12, ($§19-20) of the Charter of New Orleans. (Act 7 of E. S., of 1870.)</p> <p>The ordinance is unreasonable; is in restraint of trade, and is not impartial. — 16 Pickering, 125 ; 5 Cowen, 462.</p> <p>The City has no authority to enforce the collection of taxes, licenses, or dues, by fine or imprisonment. — See oases of Municipality No. 1 vs. Pance, 6 An. 515 ; and case of State vs Mannessier, (Opinion Book No. 53, p. 237.)</p> <p>The ordinance is ultra vires.</p> <p>It deprives one person of his property for the benefit of another, without any corresponding advantage to the person so deprived, — 31 An. 66.</p> <p>The ordinance assumes to operate beyond the corporate limits of New Orleans.— Act 7 of E. S. of 1870, § 1 and 2; 5 La. 465; 17 La- 574; 9 A. 323.</p>

Delomy, J. 1. The burden of proof of the interruption of prescription of a promissory note after prescription has accrued, falls upon the holder, and an indorsement of a payment after it is proscribed is not sufficient to interrupt prescription. The parol testimony of the holder is not admissible to establish the interruption. Written proof alone is admissible. 21 A. 293. 2.

Jifonroe, J. Corporations may be equitably liquidated in a court without a forfeiture of charter or dissolution. When a majority of the shareholders refuse to administer a corporation and hold nó election for officers and abandon its affairs, a court, under Article 21, C. C., will interfere in behalf of a minority, and liquidate the affairs of said corporation.

Thompson, Judge, Respondent. 1. The capacity of a defacto officer of a corporation cannot be impeached collaterally. C P. 867 ; 25 A. 673 ; 26 A. 493 ; 28 A. 274. 2. The law provides a remedy in such cases. C. P.867. 3. Defendant is estopped from denying the capacity of plaintiff in this case, by reason of her call in warranty of plaintiff in the case Holden vs. 35. D. Gullett, Sr., represented by Mrs. M. A. Gullett, curatrix of same party.

<p>Where a plaintiff sues, to recover against the loss of a stock of furniture insured and destroyed by fire, and alleges that the furniture was in a warehouse in the rear of the building, at the corner, instead of alleging that tho same was in said building, the misdescription cannot relieve the Company when it is proved that the policy had been destroyed; that the insured had no other transaction with the Company ? that the building contained a warehouse, up and down, and when evidence was freely introduced .showing the intent of the parties, and establishing that the entire building, which was two-story, was covered in its length and width by a continuous roof extending over a yard and the rear warehouse.</p>

Biyhtor, J. On Bui, of Excebtions. 1.Where an instrument of transfer and subrogation shows upon its face that the subrogee lias acquired only a one-half interest in a thing, the acquirer of such half is without interest in the question as to the ownership of the other half. Gill’s objection to the rule, and to any proceeding thereunder, should have been maintained, and the rule dismissed. 7. An. 167-168. . .

Monroe, J. Third persons appealing must allege and prove m the lower court a pecuniary interest of an appealable amount. 23 An. 768 ; 21 An. 743; 23 An. 581; 24 An. 426. Prescription is suspended during the judicial administration or liquidation of an estate or insolvent. 33 An. 308; 32 An. 337; 31 An. 713; 30 An. 838; 12 An. 210 ; 3 An.-529; 1 An. 365; 11 Kob. 346.

A PPEAL from the Fifth District Court for the Parish of Orleans. Sogers, J. 1. Railroad companies, ae common Cartiers, must provide secure and sufficient platforms. 2. Depots, stations and platfoims shall be sufficiently lighted. 3. Employes of such companies must be provided to warn passengers of danger. 4. Railing in any of the above stated precautions and safeguards for passengers, the company is guilty of negligence, and liable in damages. 1.

<p>Where it appears from the record that the lower court had jurisdiction, ratione mater ¿ce ct personce, of a cause, and the proceedings were regular, a writ of prohibition will not issue from the Supreme Court on an application based on the ground that the lower court had usurped jurisdiction and authority, by rendering a judgment against the law governing the case.</p>

Houston, J. 1. An assignee without consideration for the assignment, entitled to sue. 10 Martin, 117; 2 R. S. 296 ; 5 Rob. 295; 4 An. 350; 21 An. 732. 2. A judicial mortgage may be enforced by seizure and sale, or hypothecary action. 4 La. 239 ; 12 La. 296 ; 8 An. 460 ; 15 An. 564. 3. The deed of It ust under which defendants resist plaintiff’s claim is invalid, as a Louisiana conveyance or security for debt. 2 An. 330; 7 An. 413; Thibodauxvs.

James. Gheevers, J. An act of mortgage or deed given to secure the payment of promissory notes described in the act, and which provides for the sale of the property to pay those notes at maturity, recorded in the office of the Recorder of Mortgages, in the Parish of St. James, in this State, where the propeity mortgaged is situated, is a good and valid mortgage, and will rank accordiug to its registry. Hayden vs. Nutt, 4 An. Rep., 65; Ells vs. Sims, 2 An. 253; 10 La.

Sherburne, J. 1. A natural tutrix who remarries without convoking a family meeting to advise as to her continuance as tutrix, ipso facto, ceases to be tutrix, and thenceforth she is without power to bind the minor by any acknowledgment, express or implied. 2D An. 802 ; 31 An. 380. 2.

liujhtor, J. A factor’s contract must stipulate the amount he is to advauce to entitle him to a privilege r he has no privilege for any sum beyond the amount stipulated. 30 An. 1332. Where the factor agrees, after payment of the amount stipulated to be advanced by him, to pay a second lien, he is bound therefor to the extent of the amount of crop that has come into his hands after paying his o\vn advance. 1.

<p>APPEAL from tlie Civil District Court for the Parish, of Orleans. liightor, J.</p>

Houston, S. 1. A married woman is not bound by her mortgage, although purporting to be executed under an authorization from the Judge, unless she actually borrowed money or contracted a debt thereunder. 2. The Act of 1855, (No. 200) cuts lier off only from pleading that money, actually borrowed, did not enure to her benefit; but from no other defense. 3.

Rogers, J. 1. The tender made by appellants, in May, 1877, was an admission of the debt, and bars their subsequent plea of prescription. 18 An. 602; Greenleaf on Evidence, Tol. 2, Sec. 600; 2 Starkie on Evidence, See. 788. 2. The rule that admissions cannot be divided, does not apply to those in the pleadings; 18 La. 6; 4E. 144 $ 14 An. 860: so that the admissions in the answer of defendants can be divided. 3.

Monroe, J. 1. The judgment of a justice’s court in an ejectment suit where plaintiff sues as landlord is not conclusive of title between the parties, where the plaintiff in the suit has never been in either physical or legal possession of the property, and whore the defendant has always possessed and claimed as owner. A contract of lease can only be created by consent of parties. 3.

<p>A suit for mandamus by the Police Jury of a parish to compel the Clerk and Sheriff of the parish to remove their offices and archives toa now seat of juBtice designated by said Police Jury, which contains no moneyed demand, discloses no appealable interest within the appellate jurisdiction of the Supreme Court; and an appeal taken from a judgment f ’ therein will be dismissed.</p> <p>The affidavit of appellant or of his counsel, touching the pecuniary amount involved in a controversy, will be considered by the Supreme Court, when the record discloses some pecuniary amount in dispute; but when it appears from the'nature of the suit that no judgment can be rendered, adjudicating a pecuniary gain or loss to either party, such affidavit will not be considered as conferring jurisdiction.</p>

Lazarus, J. 1. The rule of construction that a later statute does not repeal a former statute unless by positive enactment or irreconcilable conflict; that one section of a statute does not repeal a former, if it can he construed as an exception to such former section, is more strictly enforced in reference to the Civil Code than even in the case of a statute. 2.

81cinner, J. 1. The City of New Orleans is authorized “ to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to provide for its collection.” Sec. 12, City Charter; Act 30, Extra Session 1870. 2.

lüglvtor, J. i. The circumstances of each case must determine the necessity for removal. But generally, any loss resulting from an apparently necessary and bona fide effort to put out a fire, wheth er it be spoiling the goods by water, or throwing the articles out of the window — in a woid, every loss that clearly and proximately results, whether directly or indirectly from the fire —as goods lost or stolen at afire — is within the policy.

, ad hoe. 1. Evidence which brings conviction to the mind of ordinary men, beyond a reasonable doubt, is sufficient to establish death. 2. There are cases where death can only he shown by circumstances; in such cases the court is hound to deduce from all the incidents surrounding the accident and attending the disappearance. To require anything so positive as occular evidence, would defeat the ends of justice iu such instances. 3.

John the Baptist. Augustus, J. ' The want of authority to sue cannot be pleaded after a judgment by default. C.P. 333 j Hennen, E. D-, p. 1165, par. 23; 14 An. G58. The Legislature can delegate legislative powers to Polico Juries. Constitution, Art 202. The control of levees in their preservation and police care and protection, is expressly vested by law in Police Juries.

Houston, J. 1. The Act of Mortgage states the sum due with sufficient exactness when it mentions the principal sum and interest. 2. A special mortgage is simply the General Mortgage bearing on one piece of property. 3. The special mortgage secures the pa.ymeut of whatever sum may be duo by the tutor, on . his final account, within the amount of the special mortgage. 4.

Monroe, J. Both under general laws, and express authority of her charter, the City of New Orleans administers the use oi the river banks for the public convenience and utility, and has all the powers requisite to that object. She has the right to all advantages it may produce, and can make works to increase the revenues. City Charter, Sec. 12; 18 L. 278.

1.The probate Courthad exclusive jurisdiction of this cause. 2.The Court erred in admitting in plaintiffs’ behalf the records, petition of V. F. Cotton, tutor etc. 3.The Court erred in excluding evidence to prove that neither plaintiffs nor their father had funds or other means with which to purchase the property; erred in excluding the evidence to prove that the property was acquired and paid for after the marriage of the defendant, Annie T. Cotton, and heríate husband,…

<p>APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J.</p> <p>1. The civil effects of a marriage of slaves, with the consent of their masters, is only dormant during slavery, and when they are emancipated and continue to cohabit as man and wife, all the civil effects attach from the date of the celebration of the marriage. Bishop on Marriage, Secs. 311, 214; O. 0. C. 182; 6 M. 559; Bishop, §§ 159, 160, 161, 162; 25 A. 617 ; 30 A. 1168.</p> <p>2. Cohabitation after emancipation is a ratification, and like in all other civil contracts, not prohibited by law omnis ratikdbitio retrotrahitur et 'tnandato cequiparatur. 15 A. 342; Bishop, Sec. 163, and authorities before cited.</p>

<p>The defendants, an ex-sheiiff and Ms sureties, are not liable for tlie rent of productive real estate, situated in tbe Parish of Orleans, while under seizure, when the same is occupied as owner by the defendant as Ms residence, and where the sheriff has authorized the plaintiff to use Ms name for all useful purposes, and the plaintiff has declined the offer.</p>

<p>Application for Mandamus.</p>

Oole, J. 1. Expropriation proceedings are conducted under a special law, which prescribes exact formalities, and are not to he governed by the general rulesprescribed by Code of Practice. Rev. Stats., Secs. 1479 to 1493. 2. The Corporation of the New Orleans Pacific Railway was created under the general law, and confirmed and extended by Act of Legislature — right to expropriate not derived from the special act; amply provided for under the general law. 3.

<p>A party holding the builder’s privilege, duly recorded, does not lose the benefit of such privilege,-where the property has been subsequently mortgiged, and after the death of tho privilege and mortgage debtor, has b -en sold without a separate appraisiuent of the , land and building, before the sale.</p> <p>Such appraisement» maybe made after the sale, and the privilege creditor is entitled tobe paid out of such sale in preference to the mortgage creditor.</p>

Tissot, J. When the sheriff has levied a writ of seizure and sale issued by a court of general jurisdiction, his possession of the property is that of the law, and no other tribunal has the jurisdictional power to deprive him of his custody. C. P. Arts. 656, 662, 762; Winn vs. IClgee, 6 B. 100; State vs. Judge 5th Dist. Court, 15 An. 34; Twity vs. Clarke, 14 An. 503; State ex rel. Thompson vs. Judge, 6 An. 548.

Houston, J., Respondent. A. 1. Where two parties claim to be paid out of one fund, and the trustee is an officer of a municipal corporation, and where one of the parties has enjoined the officer from paying the other, and that other subsequently procures a mandamus to issue, the party enjoining has a sufficient interest to intervene in the mandamus proceedings, and necessarily to sue out a prohibition from this Court against the Judge who issued the mandamus 2.

<p>Succession property was offered for sale in this’case by the sheriff, and the appraisement price not being bid, tbe property was instantly re-offered and sold on a twelve months’ bond. The surety on such bond is held liable under the circumstances of the case, however irregular the sale, which was voidable, but not absolutely void.</p>

<p>The power of tlio District Court to correct its minutes so as to make thorn conform with the truth, is recognized and well settled in our jurisprudence.</p> <p>The fact that in passing a sentence of death on a criminal, the District Judge fixes in his judgment the day aud date of the rxeeution, a duty devolving upon the Governor, does not vitiate the judgment or the trial, and will afford no relief to the defendant on appeal. That portion of the sentence will be considered as unwritten.</p> <p>The Supreme Court will not review the refusal of a now trial, on a motion involving questions of law blended with facts, unless the grounds are incorporated in a bill of exceptions.</p>

Houston, J. Where creditors of an insolvent reduce their claims of judgment, and within a year thereafter, sue to annul a sale of their debtor’s property to a confidential clerk, made on unusual terms, out of the regular course of business, a part of the consideration being a debt averred.to be due the clerk, and the balauce being monthly notes, which the cleik has no means to pay, the Court will annul such sale. 1.

liiyhtor, J. 1. A sale for cash and a sale with the condition of assuming notes past due, are identical. % If a defendant in.execution appoint an appraiser who acts and neglects, or evades being sworn, he will nob he permitted to take advantage of his own neglect or delinquency. 1.

<p>In a testate succession the commission allowed to the testamentary executors shall not be charged so as to affect fcko legitime reserved to the forced heirs.</p> <p>The executors cannot claim, in addition to their commission allowed them by law on the amount of the inventory, any additional commissions on collections made by them for rents or other debts due the succession.</p> <p>A clerk in the employment of a merchant at a fixed salary, cannot be allowed an additional compensation against filio succession of his former employer for services rendered in the ' general management of decedent’s business, without proving an agreement to that effect between the deceased and himself.</p>

Pilcher, Judge ad hoe. Where a party sets up a large claim against a succession for rents of a previous year long after the crops have been removed and disposed of, ho will he held to strict proof that such claim has not been paid, before the same will be allowed on the tableaux of distribution. The court will presume such claim was satisfied out of the crops upon which it operated as a privilege.

Houston, J. A purchaser of property from a tutor, when a certificate from the Mortgage Office is produced, showing the property to be free of incumbrance, aud when the general mortgage which existed against the tutor in favor of his wards, is shown to have been released by the substitution of a special mortgage received aud accepted upon the advice of a family meeting, and after due valuation by experts, by a couTt of competent jurisdiction, is protected by the decree…

Sherburne, J. The Code of Practice, Arts. 306, 400, 401, authorize proceedings such as these, where plaintiff claims to be entitled to a privilege on the proceeds of sale, up to his pro rata share thereof. The purchaser of a judgment takes with the judgment all its accessories and securities. Hennen’s Digest, Sale III, b. 2, B.; Louque, same reference, Execution, Y, d. 12, Louque, p.640. Prescription of one, two and three years not applicable to claim against agent.

Yoist, J. Where one has made representations which justify an attachment, and a creditor has acted pn them, the representations, for the purpose of dissolving the attachment, are to he taken as true. Bigelow on Estoppel, p. 473 ; Livermore vs. Rhodes, 27 How. Prae. R. 506; Drake on Attachment, p. 53, Sec. 75; Cooke vs. Kuykendall, 41 Miss. 65; Morgan vs. Nunes, 54 Miss. 308; Roach vs. Brannon, 57 Miss. 490; Central Law Journal for Dec. 17, 1880, p. 481.

<p>Tlie riglit of action for damages, under Article 2315, C. C., does not survive in fayor of the husband of the deceased.</p> <p>A druggist is held liable in damages, in the premises, for having sold Sulphate of Zinc instead of Epsom Salts.</p>

<p>APPEAL from tlie Twenty-third Judicial District Court, Parish of Iberville. Gole, J.</p> <p>If the notes were based on a valid consideration — which is not admitted — then the mortgage to secure them is a fraud, because Coughlin was hopelessly insolvent at the time of its execution and could not give one creditor an undue preference over the others. C. 0. 3359-3360.</p> <p>Ho direct action in this case is necessary, because the representative of a succession in his final account is plaintiff, being the mortgagee, he is doubly so. He sets up his mortgage, which is opposed. 5 An. 400 ; 27 An. 547; 29 An. 520 ; 33 An. 202.</p> <p>Prescription begins to run from the date of the judgment of the opposing creditor. C. O. 1994.</p> <p>Unless the mortgage of the administrator be a pure simulation, it cannot be attacked by opposition to his final account.</p> <p>If the mortgage be a real contract, but is alleged to be invalid for undue preference over other creditors, such an issue must bo made by direct action, and the action on such issue is barred by the prescription of one year from the date of the mortgage. 31 An. 592, People’s Bank vs. A.melie G-irod, Wife; O. C. Art. 1987; 30 An. 745.</p> <p>The Articles 3359, 3360, Civil Code, refer to contracts made by a debtor within tlie three months immediately preceding his actual failure and surrender of property, and not to contracts made by the deceased whose succession is found insolvent in course of administration. ' 4 La. 247, Bauduc vs. His Creditors.</p> <p>There is nothing in the record to show that the mortgagee, or any one else, knew the mortgagor was in insolvent circumstances at the time of executing the mortgage. The witnesses say it was not known he was embarrassed, even.</p>

Lusenberg, J. 1. Art. 8 of the Constitution of 1879, which reads: “In all criminal prosecutions the accused shall enjoy the right to he infoimed of the nature and cause of the accusation,” does not confer any right on an accused not heretofore enjoyed. It simply means that no prosecution can be conducted in secret. Criminal Law Magazine, pp. 181 and 182. 2.

Gheevers, J. 1. Privileges are valid against third persons from the date of registry. 28 An. 365 ; 32 An. 315; 29 An. 416; 37 An. 246, 275 ; C. C. 3273; 33 An, 967. 2. Yendor’s lien and privilege on boilers sold for the use of plantation is not destroyed by the boilers being attached to plantation. The registry of note in mortgage book reciting consideration, is good and sufficient. 28 An. 749 ; 32 An. 1287; C. C. 3277, 3348, § 4. 3.

<p>Oil tlio division of a public corporation, possessing corporate property, into separate new communities, each becomes entitled to hold in severalty the public property which falls within its limits. The rule is different when a new corporation^ is created, and the old one from which it is taken remains unchanged, preserving its original name.</p> <p>Property donated to a parish in fee simple, for its use and benefit, and upon which a courthouse was built and used, cannot be legally sold under a Police Jury ordinance, although the parish seat being changed the building was abandoned and threatened going to ruin. Such sale having been made without legislative authority is a nullity, and so conveyed no title. In such a case, the defendants are entitled to a reimbursement of the purchase price, as a condition precedent to the recovery of possession of the land by the iilaintiff.</p>

Richardson, J. 1.Change of owners makes no change as to servitude. Held: accordingly, that the owner of an estate whose waters flow by natural drain on the lands of his neighbor, has the right of cutting ditches or canals by which the waters may he concentrated, and their flow increased be¿ ond the slow, natural process by which they would ultimately reach the same destination. 33 An. 796; 12 La. 503 ; 15…

Richardson, J. 1. In a prosecution for larceny, based upon finding the stolen property in defendants ' possession, the identity of the things stolen and found is essential. 2. The interference of the District Judge with defendant’s evidence to disprove that identity is capable of injuring her defense; and, if unlawful, is error, justifying a new trial. 3.

Richardson, J. 1. The contract between the State of Louisiana and the North Louisiana & Texas Railroad Company, under Act 97 of 1872, was an exchange, the State giving its second mortgage on said road for stock to an equal amount. 2. When a party has been evicted of tho thing by a judgment, received in exchange, and has only a certificate of title to tho same, tho thing remaining iu tbe possession of the other exchanger, a fcendor of tho certificate is unnecessary.

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

A juror should be a competent and intelligent person, understanding the English language. Acts 1880, So. 54. It is never the duty of the Court, it is not proper, to announce to the jury abstract propositions of law not involved in the particular pleadings and evidence in controversy, however correct those propositions may be. Bishop on Criminal Procedure, vol. I, § 978. Hypothetical propositions, not applicable to the case, tend to mislead the jury. 2 An. 756; 6 An. 286.

A PPEAL from the Fifth District Court, Parish of Ouachita. ardson, J. liidh- 1. Those persons who derive title to real estate directly from a certain deed are privies thereto, and bound by the recitals therein. Greenleaf, § 23. 2. One privy to an authentic act can not contradict, by parol evidence, the consideration mentioned in the deed without allegatious of fraud, error or violence. 11 M. 630; 1 La. 240; 4 La. 1; 4 R. 299 j C. C. 2276. 3.

<p>"Where a partition in kind cannot conveniently he made, the property should he sold to effect the partition. Property cannot ho conveniently divided, -where such division would necessitate the cantling of tenements to an injurious extent.</p>

<p>The State legislature has unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the paramount authority of tbe national government.</p> <p>The power granted by the legislature to a railway company to build a road between two points, carries authority to cross navigable waters and to build necessary draw bridges, and this authority implies the right and imposes the duty to maintain and repair or rebuild such bridges. A railway company having authority to build or rebuild a bridge across a navigable stream, is not responsible in damages for temporary obstructions of*the stream by scaffolding, or by the construction of a temporary stationary bridge, and for unavoidable delay in the completion of tbe bridge.</p> <p>1. The charter of tbe Vicksburg, Shreveport and Texas Railroad, authorizing theconstruction and maintenance of a railroad from Vicksburg to Texas, through Monroe and Shreveport, gave the permission to bridge tbe streams on tbe route, and in case of navigable streams, the right to use tbe moans necessary to build and maintain drawbridges, and if necessary to obstruct the streams temporarily, it was legal. Act 228,1853 ; Redheld, 322; Fall River Iron Works vs. Old Colony Railway, 5 Allen, 221; Work’s Injunction, 4 McL. 425; Columbus vs. Pioneer Bridge Company, G McL. 70.</p>

Bicharclson, J. 1. The wifo having the right to administer, personally, her paraphernal property, though she permit the husband to control and manage it, may withdraw it from his administration at will. C. C. 2384, 2386, 2387, 2391. 2. The act of purchase by the wife, with the consent of the husband, was the resumption by her of the administration of her separate estate. 1R.367; 4R.194; 2Ani930; 5An.611j 8 An 286. 3.

<p>The State lias tlie constitutional right to appeal in criminal cases, where the indictment lias been quashed before it trinl, or held bad upon a demurrer, and whore it purports to charge an offense punishable with death or imprisonment at hard labor.</p> <p>In such cases the State is not required to furnish an appeal bond, as she cannot he condemned to pay costs.</p> <p>A judgment quashing an indictment on the ground of the unconstitutionality of the Statute under which the charge is brought, when the accused has not been tried, as to his guilt or innocence under the charge, will not be a bar to a subsequent prosecution of the accused under the same charge.</p> <p>Act No. 8 of the Extra Session of 1870, entitled an Act) relating to crimes and offenses, is not unconstitutional.</p>

A FPEAL from the Third District Court, Parish of Claiborne. ham, J. (?r«- The principal is responsible for the acts of his agent and bound by his contracts, if made ‘within tbe scope of his agency. C. C. 3021; 30 An. 587; 18 An'. 535 ; 6 It. 97; 7 li. 400; 4' : An 19; 8 IS. S. 200. ' > Tbe principal is hound by tbe contracts of the agent, although the agency is revoked, if the revocation is unknown to the party with whom he contracts. 18 An. 535; 1 An. 80; 2 An. 316. .

Brigham, J. In an hypothecary action, to allege that the necessary legal demands and notices have been made is sufficient, without stating the exact time. An allegation stating that the debtor is dead, and tbe creditor has obtained judgment against tbe administrator or executor of the succession, is a sufficient allegation to show that the succession has been opened. It is not necessary to allege an interruption of prescription, or to specially plead the want of payment.

<p>An adj udicatee at a tax sale cannot recover, in a petitory action, from purchasers of the same property at a judicial succession sale, where no tax deed is recorded at the date of the probate sale.</p> <p>Tax collectors are bound to deliver a certificate of adjudication, vesting a defeasible title, for registry. In case of refusal they can be compelled to issue one. The Auditor’s title, made two years after the sale, where the property is unredeemed, confers an absolute title confirmatory of the previous one by collector.</p>

Graham, J. In a suit to rescind a sale for the non-payment of the latter of two instalments, the prescription applicable to defeat the action on the note for the first instalment cannot be supplied in bar of an action on the note for the last instalment, if the first note was extinguished and remitted at the time suit was instituted upon the last note.

A PPEAL from tlie Tliird District Court, Parish of Uuion. ham. J. Gra-. A sale made to one not a creditor, by an insolvent debtor, is not presumed to be fraudulent, and in an action to annul it, the burthen of proof is on the party attacking it. C N. 538. A merchant in failing circumstances and under protest may sell his property to a bona Me purchaser. 22 L. 2C0. A debtor on the eve of insolvency may make a cash sale of movables. 12 L. 308.

Bichardson, J. 1. Tlie clerk has no power to vary or change the terms of an order of the Judge, in an order of seizure and sale, in the writ issued by him to the sheriff, under such order, directing the sale of the mortgaged property. He can neither increase or diminish the quantity of land or other property ordered to he sold, nor amount of money decreed to he due hy the Judge. The clerk is merely a ministerial officer. 2.

<p>APPEAL from the Fifth District Court, Parish of Ricliland. llichardson, J.</p> <p>1. Minora claiming restitution in integrum must place matters in statu quo, and cannot recover the property in kind without refunding the price applied for their benefit. 6 S. 684; 8N. S. 210 ; 3 La. 544 j 9 La. 305.</p> <p>2. Under the Constitution of 1852 and the laws, the clerk of the District Court had no power to grant orders for tlie sale of succession property to effect a partition between minors.</p> <p>3. Our whole system of administration of tlie estates of minors is opposed to an anticipation of their means by purchases on credit. 11 An. 247.</p> <p>•4. "When a family meeting authorizes the tutrix to purchase land and slaves at a succession sale in which the minors were interested, up to the amount of theirinterestsiuthesuccession, and the tutrix buys property in her own name to nearly three times the interest of the minors, tlio purchase will, as to the minors, he such a nullity as is not susceptible of being ratified by them to the prejudice of rights of third persons previously acquired. 11 An. 247; 8 An. 442; 12 R. 3fr5 ; 8 La. 321.</p> <p>5. When the funds of the minors tobe invested is their residuary interest in a succession which owes large debts, and can not be ascertained before the sale of the succession property, the advice of the family meeting, that the tutrix be instructed to buy at said sale land and slaves, to an amount equal to the interest of the minors in said succession, is too vague and indefinite to be earned into effect, and is an absolute nullity. 5 La. 21.</p> <p>6. Any material variation from the instructions and advices of the family meeting by the tutor, in investing the funds of the minor, such as investing more money than advised, or purchasing on terms of credit, when the family meeting directs the purchase to be made for cash, or making a joint purchase with others when not advised, will be, so far as the minors are concerned, an absolute nullity; and the purchase will be considered a» having been made for the tutor individually. 4 An. 85; 5 R. 287; 11 An. 247.</p> <p>7. A transaction purporting to be an investment of minors’ funds, but absolutely null on the face of the papers, is no more subject to ratification than an illegal salo of his property by the tutor, when the effect of such ratification is to destroy or impair the rights of third persons previously acquired. 8 An. 442.</p> <p>8. When the tutrix is instructed to buy “land and slaves at a succession sale for her minor children, to the extent of their interest in that succession,” (which, after the settlement of the succession, is ascertained to be $7,500) and she buys at that sale in her own name, land and slaves, to the amount of $19,303, satisfying the difference by what is due herfrom the succession, the minors seeking to recover the*landmust tender their tutrix or her assignee the amount of her money which was expended in the acquisition.</p> <p>9. Where the administrator executed no title to property sold by him, but in his proces verbal of the sale made under order of court to pay debts, recites in express language that certain described property was adjudicated to Mrs. Delana Rebecca Jane Burt, and she afterwards signs tlie^rocrs verbal as tutrix, the recitals in the proces verbal will control the signature, and third persons who treat with her as owner will he protected. G-reenieaf,* § 23; 5 N-. S. 4; O. C. 2023.</p>

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

<p>1. Under tlie homestead provisions ol' the Constitution of 1879, tho exemptions therein provided only take effect from the date of registry, as provided by law, and are -inoperative against debts contracted prior to such registry.</p> <p>2. ‘When a thing has been exchanged for another thing and a sum of money, the contract is a sale to the extent of the money consideration, and when credit is given for the latter, the creditor is entitled to a vendor’s privilege.</p>

<p>APPEAL from the Fifth District Court, Parish of Ouachita. L>. G. Morgan, Judge, ad hoe.</p>

<p>In a trial on a charge of murder, the accused has the right to show and prove previous threats of the deceased against him, and the dangerous chaiacterof the deceased, as evidence tending to rebut the presumption of malice, and to mitigate the offense charged. Held, that after such evidence had been introduced, the District Judge erred iu giving the following special charge;</p> <p>“ That if you find the accused made the first assault at the time of the hilling, then you should disregard the evidence of previous threats and of the dangerous character of the deceased. ”</p>

<p>The Supreme Court is without jurisdiction, where the suit is to enforce a mortgage for §400 and interest against a third possessor, though the land subject to the mortgage may be worth more than one thousand dollars.</p>

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

Martin. ffontelieu, J. The power to buy a mortgage note does not convey the power to postpone the payment of that note to others of the same series. The power to “ pay debts and adjust accounts ” does carry, as necessarily involved in it, the right to acknowledge debts and notes. Act No. 3 of 1878 forbids tlio sale of property, pending proceedings to enforce a mortgage upon it, and any sale made in violation of that Act is an absolute nullity, and can produce no effects.

<p>Section 7 of Act No. 44 of 1877, does not repeal or conflict with Section 992 of the Revised Statutes, requiring, in certain criminal cases, the service on the accused of the list of the jury which are to pass on his trial, two entire days before his trial.</p> <p>The list of jurors ordered tobe drawn by the Judge, in the exercise of the discretion vested by Act 44, Section 7, must be served on the accused in accordance with Section 992, Revised Statutes.</p> <p>In a preliminary examination, the accused has the right of having the testimpny of witnesses in his behalf, taken down in writing, ‘certified and preserved, and the testimony of a witness thus taken will be admitted in evidence at the jury trial, if the witness is shown to be absent, a non-resident of the State, and not obtainable; without any fault of the accused.</p>

Landry. Hudspeth, J. 1. Creditors cannot claim more than their debtor could. If their debtor had any rights, they date from 1878. 2. Purchasers having assumed thepayment of the mortgage due minors, nofurther recordation was necessary, as to them. 3. In addition to the assumpsit of these purchasers, the minors’ mortgage had been legally recorded, and in time, (as against opponents, whose rights date from 1878) hy recording the judgment recognizing the minors’mortgage.

<p>APPEAL from the Twenty-first District Court, Parish of St. Martin. Fontelieu, J.</p>

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

<p>1. ‘Where wholesale dealers sell to a married woman, separated in property and transacting business as a public merchant, goods appropriate to her trade, upon the orders of herself or of her husband acting as her agent under express written procuration, they are not bound to follow the goods, and see that they are actually used in the business of the wife.</p> <p>2. In a suit against a married woman, where both she and her husband are cited, and default is taken against both, although she alone afterwards appeared and answered, the authorization of her husband will be presumed.</p> <p>3. “Where a defendant dies pendente Ute, in absence of administration, suit is properly revived and continued by making the heirs parties, and if the heirs are minors and have no qualified tutor, they may he made parties through a curator ad hoe duly appointed to represent them.</p> <p>4. In such case, citation eo nomine to the curator is not essential. Service of the petition for, and order of, appointment specifying the object and purpose thereof is sufficient, especially when [the suit proceeds without objection, contradictorily with attorneys presumed to he authorized to represent him.</p>

Fontelieu, J. It is a well settled rule of construction, of grants by the legislature to corporations, that only such powers or rights can be exercised by them, or under them, as are clearly comprehended within the words of the Act. Mayor of Plaquemine vs. Both, 29 An. 26; Mayor of St. Martinsville vs. Str. “Mary Lewis,” 32 An. 1293; Mayor of New Iberia vs. Migues, 32 An. 923; Cooley, Const. Lim. p. 191.

<p>APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.</p>

<p>APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.</p>

<p>A person cannob claim the benefit of tlie homestead laws, on the ground that she has brought up and is supporting in her house orphan children, who constitute her family and are dependent upon her for such support.</p> <p>Homestead laws are to be strictly construed.</p>

<p>In a criminal prosecution, the accused Las a right to object to the admission of an implied confession resulting from an offer to compromise, on the ground that it was not voluntary, and whore a witness has testified that the confession was not induced by promises or threats, the accused should be allowed to offer rebutting proof going to show that he was forced to malee the offer in question, and the refusal of such offer, and the admission of the confession, in spite of it, is sufficient to vitiate the verdict and cause the remanding of the case. '</p>

<p>APPEAL from the Thirteenth District Court, Parish of St. Laudry. Hudspeth, J.</p>

<p>The rights of the minor children or of tlie widow of a deceased debtor, claiming under the provisions of the Homestead law of 1852, must be tested under their condition or situat'on as existing at the date of the death of the deceased, and not at the date of the settlement of the succession. If the widow, or any one of the minors, even though the latter be not the issue of the widow, possess in his or her own right $1000, nothing can be allowed under the homestead law.</p>

<p>ApPLICATION for Writ of Habeas Corpus.</p>

. Pier-son, J. Under an indictment for murder, the prisoner may be convicted of manslaughter, and such conviction will be good, though the evidence may convince the Judge that the crime amounted to murder, otherwise a conviction of manslaughter, in such a case, would amount in effect to an acquittal, for a conviction of manslaughter is an acquittal of the graver crime of murder. 7 An. 40 and 41.

Pier-son, J. Where a person, or two persons, acting in concert, kill two persons at the same time, whether by one and the same, or two distinct acts, the two killings constitute two . different crimes, for which they must he prosecuted in two different indictments. W. P. P., Sec. 468.

<p>It is not the duty of the court, nor is it proper to announce to the jury, abstract propositions of law not involved in the pleadings or evidence of the case.</p> <p>There is no reason to make the motion for a new trial, when overruled, the subject of a bill of exceptions.</p> <p>There is no objection to the Judge’s reading from the book, from which he is quoting, ia delivering a •written charge to the jury.</p> <p>It is notrequired that talesmen should be summoned only from the bystanders.</p> <p>In criminal cases, the judgment needsnot be signed, nor need reasons be given for it.</p>

Taylor, J. On the bill of exceptions to the refusal of the Hon. Judge a quo to charge as requested. T.' 85 Thomp. on Neg. 383; M'ks End. on Torts, 283, 286, 287; Thomp. on Carriers, 441, 241, 243 j Red. on Carriers, 256; Pierce on Railroads, 327.

<p>1. It is not necessary that an indictment should show, on its face, that it was found during a session of the court, when that fact appears from the minutes in the record.</p> <p>2. Where the finding, endorsed on the indictment, is signed “A. Wartelle, Foreman,” and the minutes show that “ Arruaud Wartelle ” was appointed foreman, held, sufficient.</p> <p>3. Sec. 1048, Rev. Stat., dispensing with the necessity of sotting forth in indictments for murder the manner and means in and by which the death was caused, is not inconsistent with Art. 8 of Constitution of 1879. Affirming State vs. Bartley, 34 An. 147.</p> <p>4. Evidence to show the absence and sickness of the witness and the consequent impossibility of procuring his attendance, is admissible, in aid of the sheriff's return of non-service, as a foundation for the introduction of his testimony taken on preliminary trial.</p>

Taylor, J. The locus in quo, not having been subdivided in lots, blocks, streets and alleys, prior to the incorporation of Shreveport, (Acts of 1839, p. 200) did not form part of the city of Shreveport, until its limits were enlarged in 1871. If not within the city limits, the city could exercise no control over it, even to keep it for the public use. If within the pity limits, there is no evidence to show a dedication.

Taylor, J. 1. Article 209 of the Constitution of 1879, which limits the powers of municipal taxation to ten mills on the dollar, cannot affect the rights of antecedent contracts of the city of Shreveport. They are protected by the Constitution of the United States, which forbids States to pass laws impairing the obligations of contracts. This is no longer an open question in the jurisprudence of this State. 31 An. 765; 32 An. 409, 726, 884; 33 An. 79, 1179. 2.

<p>a: PPEAL from the First District Court, Parish of Caddo. Taylor, J.</p>

<p>A suit to revive a judgment against a defendant since deceased, is properly brought against the legal representatives of his succession.</p> <p>A citation addressed to the executor of a succession is substantially a compliance with a prayer for citation on the legal representative of said succession, and is addressed to the de* fendant in the oapacity set forth in the petition.</p> <p>Under the requirements of Art. 312, Code of Practice, the plaintiff, in seeking to revive a judgment by citation on the legal representatives of .a succession,- must prove the capacity of the alleged legal representatives.</p>

<p>•Tho lessor who takes a provisional seizure before the rent is due, when he acts without malice and in the honest belief or fear that the lessee will remove his property from the leased premises, does not thereby render himself liable in damages, even if the lessee did not have any fraudulent intent of saving his property from the lessor’s privilege for rent.</p>

<p>Tlio.judgment of homologation of tlio account of an administrator, allowing a balance of money due by liim, is pi escribed after ten years, and the debt extinguished, whether said • account was advertised asan annual or final one, when, in fact, it was a complete account of administration.</p>

<p>An appeal bond for costs, oovering only the oosts of appeal, is defective.</p>

<p>ApPEAL from the Second District Court, Parish of Bienville, Drew, J.</p>

<p>Under the charge in an indictment of stealing chickms, proof is admissible to show that hens were stolen.</p> <p>A sentence not containing the words "it is considered ” is legal and valid. The use of the words is not sacramental.</p>

<p>An action lies to recover a disputed claim from one of the partners of a dissolved firm, when it was placed as an indebtedness on the books of the firm, and such partner, by agreement with his co-partner, at the dissolution causes him to assume all the debts and liabilities ol' the partnership among which the claim figures.</p> <p>The creditor in such a case, who makes himself party to composition proceeding's in bankruptcy by the assuming partner, and grants him a discharge, on certain terms, is concluded and cannot recover from such debtor.</p> <p>The provisions of a^composition are binding, when confirmed, only on the creditors whose names and addresses and claims are shown in the debtor's statement produced at the meeting at which the resolution has been passed. The composition does not afi'ect or prejudice the rights of other creditors who did not make themselves parties.</p> <p>Payment of the claim by the first partner subrogated him to all the rights of the creditor against the second partner who assumed the debt. • Judgment affirmed.</p>

1. Act 21 of 1882, amendatory of Act 47 of 1880, makes it the duty of the Judges of the Civil District Court for the Parish of Orleans to approve the warrants for the salaries of the minute clerks, docket clerks and record clerks of said Court, when signed by the clerk. Mandamus is the proper remedy to enforce the performance of that duty. C. P. 829, 834, 830. 2.

1. The sura demanded and not the judgment rendered determines the jurisdiction of the appellate court. 16 An. 430. 2.A case cannot be rendered unappealable by entering a remittitur after judgment. State ex rel. Orleans R. R. vs. Lazarus, Judge. Opinion Book 56, Folio 752. 1. The amount in dispute, and not the amount claimed, gives jurisdiction.

<p>APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.</p> <p>“ The sale of a thing belonging to another person is irall.^ C. C. 2452.</p> <p>This applies to past duo obligations to pay money, as well as to other property. Bird vs. Cockrem, 28 An. Bop. 70; Henderson vs. Case, 31 An. Bep. 215; Texas vs. "White, 7 "Wallace Bep. 700; 21 "Wallace, 143 ; 10 Wallace, 90 ; 14 Peters, 321; 99 United States Bep, 440; 26 An Bep. 556 ; 13 Ba. Bep. 214.</p> <p>Detached coupons past due are independent obligations which mature like other obligations bear interest after maturity and" are subject to the rules of prescription applied to promissory notes. Conger vs. City of Hew Orleans, 32 An. Bep. 1255.</p> <p>1. Where the owner of property confers upon another an apparent title to or power of disposition over it, lie is estopped from asserting liis title against an innocent third party who has deult with the appaient owner in reference thereto, without knowledge of the claims of the true owner. McNeil vs. Tenth National Bank, 46 N. Y. 325, 329, 333, 337, 339; Dus Bassos ou “The Law of Stock Brokers and Stock Exchanges,” 611, 600; Moore vs. Metropolitan Bank, 55 New York, 41.</p> <p>2. "Where one of two innocent parties must suffer, the loss must remain upon the one upon whom it has all eady fallen. 6 An. 621; 21 An. 342; 4 An. 19.</p> <p>3. Where one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud. Babcock vs. Lawson, ICnglLh High Court, Q. B. Div. 27, W. E. 866; Mahan vs. Dubuclet, 27 An. 45; 7 An. 358; Walker vs. Casmiway, 4 An. 20-21.</p>

<p>A judgment cannot properly be rendered for more tb.an is demanded.</p> <p>The burden of proof is on the opponent, when he alleges assets beyond those acknowledgedia the account.</p>

Sogers, J. On Motion to Dismiss. 1. The law grants three judicial days after the return day within which the transcript of appeal may be filed. C. P. 589 and 883; 1 Hennen Dig. Appeal YHI (d.) No. 3, p. 82. 2. The court may grant further time to file the transcript, hut the time granted by the court are not judicial but running days, which begin only after the expiration of the delay granted by law. 33 An. 119. 3.

<p>APPEAL from the Civil District Court, for the Parish of Orleans.Bightor, J.</p>

<p>APPEAL from t-lie Fifth District Court for the Parish of Orleans. Rogers, J.</p>

JSlam, J. 1. The act of the Judge a, quo, in referring the case back to the jury for their consideration’ when they have brought in a verdict not responsive to the charge, (is legal and correct 2. A verdict for trespass cannot be found against a party charged with breaking and entering. 3. Objection to the competency of a juror should have been made when he was presented.. It is too late to raise such objection in a motion for a new trial. 26 An, 383. 4.

Harbin, J. Whether this case be viewed as coming under the clause in the Constitution of 1879 of “ the matter in dispute,” or under the clause of “the fund to be distributed,” the plaintiff’s right of appeal is clear. 1.If it he regarded as falling under the clause of “the matter in dispute,” ibis settled beyond controversy that it is the plaintiff’s demand that is the matter iu dispute, and not the demand of third opponent. 31 An. 452; 30 An 623 ; 2 An. 190 ; 8 L. 167; 11…

1. Whenever the monthly or yearly rent paid by the tenant, or the lease which he, the tenant, shall-allege to hold, shall exceed the sum of $100, the District Court alone has jurisdiction of a suit for ejectment. Rev. Stat., §215(5. 2. The jurisdiction of the court in such a suit is determined, not by the lease which the landlord may set up, hut by the lease which the tenant shall allege to hold. Same. 3.

<p>In an action for damages for defamation, malic© is the essence of ©lander, and ife must be proved, either by direct testimony or by implication flowing clearly from the language' and conduct of tlie defendant.</p> <p>Hence, damages cannot be recovered against a party who informs against an employee of a railroad company, of conduct injurious to the company, of which the informant's wife is a stockholder. Judgment reversed.</p>

Tissoij J. 1. Where a judgment creditor of the City has pursued and exhausted all legal remedy for the satisfaction of his judgments fruitlessly, he will be entitled to a mandamus to compel the corporation to levy a sufficient tax to pay the same, where the judgments are absolute and unaffected by any limitation whatever. See 8th Otto, p. 381, Hanger case. 2.

<p>An allegation by a party in an injunction suit, touching the value of movable effects seized as the property of another party, will not estop the same plaintiff from alleging and proving a different value of the same property in another and distinct suit.</p> <p>The determination of the value of such property is within the judicial discretion of the lower court, and the judge thereof will not be guilty of contempt, for entertaining jurisdiction of the second suit, because be had been prohibited from entertaining jurisdiction of the first suit, iu which it appeared that the value of the property involved in the first suit exceeded his jurisdiction.</p> <p>Rule for contempt discharged. Prohibition refused.</p>

<p>Embezzlement is not an ofíense at common law, but was created by Statute. Embezzle includes iu its meaning, appropriation to one’s own use, and therefore the use of the single word embezzle, in the indictment or information, contains within itself the charge that the defendant appropriated the money or property to his own use.</p> <p>The simplification of criminal pleadings was commanded by this State in her first criminal Statute directing the common law forms to he divested of unnecessary prolixity.</p>

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

The defendant, in occupying or encumbering, or permitting tbeeneumbranceof the banquette with materials, .when they were not necessary to be used in the construction or repair of a house, did so in violation of the city ordinance, and is responsible for all damages resulting from such violation. City Ordinance, No. 127, (1). Thompson on Negligenoe, Vol. I, 340, 343.; Vol. II, 1232.

Iliglvtor, J. Where defendant claims his right to take the property by agreement, he should have returnc d • the part of the price paid and the notes, and should have demanded the furniture; and if refused, should have proceeded through the courts. Ho .one has a right to take the vindication of his supposed legal rights in his own hands, and a verdict of a jury awarding damages against one who does so will he favored rather than disturbed by-the court. 0.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.</p>

Clegg, J. Where the wife, by selling the sanm, converts to her own use improvements placedonher plantation by a third person, who had occupied the place by permission of her husband, she becomes indebted to such third person for the cost of theimprovements. C. C. 508; 5 An. 135; 8 An. 512.

A PPEAL from the Sixth Bightor, J. District Court for the Parihli of Orleans. 1. In a suit to recover on a policy of insurance, the burden of proof in avoidance of the policy is on defendant. If defendant fails to prove the matters set up in defense, plaintiff will recover. Campbell vs. N\ Eng. Mut. Life Ins. Co., 98 Mass. 381; Miller vs. Mut. Benefit Life Ins. Co., 31st Iowa, 210; 1 Dillon Rep. 403; 31 Mo. 725; 2 O. Rep. 379. 2.

<p>APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.</p>

<p>1. Where a judgment recites, upon its face, tlie consent of the defendant “ given in open • court,” citation and default are unnecessary; the consent so given need not be in writing; and the fact and sufficiency of the consent will be presumed, unless the contrary be made to appear. 29 An. 557; 11 An. 280.</p> <p>2. A married woman, with tbe authority of her husband, has power to make a compromise. 26 An. 289.</p> <p>3. A married woman, authorized by her husband, may mortgage her separate property for her separate debt, without prior examination by a Judge and compliance with other requisites of Üev. Stats., Secs. 2432 ct seq¡ 15 An. 54.</p> <p>4. Where the effect of a compromise and of judicial proceedings in execution thereof, consented by a married woman, authorized by her husbaud, is merely to subject her separate property to the payment of her separate debt, she will be held bound thereby.</p> <p>5. Where a married woman, after being examined by the Judge apart from her husband, admits in open court that the claim sued ou enured to her separate benefit, she will not be permitted thereafter to contradict such admission as a ground for attacking the judgment.</p> <p>6. Where a compromise and judgment, such as above indicated, have been voluntarily-executed by the woman, after her widowhood, they will be thereby conclusively ratified.</p>

Kelators, holders of the two promissory notes made by Joseph Deynoodt, whereby the latter promises to pay, absolutely and unconditionally, a certaiu sum of money at a time specified therein. Story, Promissory Hotes, §1. Suit Ho. 120 is based exclusively on those notes and on unconditional obligations to pay specific sums of money, and “ shall be tried without a jury,” O. P. 494, and by the Judge alone.

<p>A judgment of ejectment of a party as tenant "by a Justice Court 'will not sustain the exception of res judicata in an action by tbe party ejected, for possession as owner of tbe same premises.</p>

Livaudais, J. 1. The order appealed from does not work irreparable injury. C. P. 307; 2 An. 321; 4 An. 147; 12 R. 489 ; 11 An. 40 ; 14 An. 847: 2. This Court has no jurisdiction in the case where the appeal is taken from an interlocutory order dissolving an injunction on bond, unless the damage complained of works an irreparable injury. (Same authorities as above.) 14 An. 57; 23 An. 152; 29 An. 360; 32 An. 1192; 33 An. 133 ; 33 An. 943 ; 33 An. 760; 33 An. 930.

Monroe, J. I. 1. The proprietor of a private way who sells the privilege and use thereof to another, creates . thereby a conventional servitude — no matter by what name he designates the thing sold. C. C. 754, 756. 2. Such sale does not divest the vendor or ownership of the land; (C. C. 656), and words indicative of the sale of use in perpetuity are merely to prevent dissolution of right on grantee’s death. C. C. 719, 758. 3..

A PPEAL from the Twenty-third District Court, Parish of Iberville. ¿1 Oole, J. 1. Eees of attorneys are to be measured by: 1st. Extent of legal knowledge. 2d. The responsibility incurred. 3d. The difficulties of the case. 4th. The amount in controversy. 5th. The physioal and mental labor incurred. 6th. The usual charges for similar services. 21 An-. 687; 30 An. 463 ; 6 5T. S. 399. 2.

<p>A married woman was authorised by the judge to effect a loan of money, and to mate h»v note therefor and secure it by a mortgage upon her separate property. The note and mortgage were executed, the husband appearing before the notary with his wife and Joining in the Act and authorizing her. Executory process having been sued out thereon, held, that no other authorization, either by the judge or the husband, was needed to empower her to resist that process by injunction*</p>

JRoman, J. 1. This Court will not review the opinion of the Jndge a quo in determining whether a juror is competent or not because bis memory is defective $ this is a matter resting entirely in. the discretion of the lower court. 2.

<p>A PPLICATION for a Mandamus.</p>

JRoman, J. 1. It is in the discretion of the Criminal District Court of the Parish of Orleans to adopt such method of allotting cases as may he decided upon by it. 2. Allotting the cases on the affidavits filed is an allotment of cases as provided for in Article 130 of the Constitution.

<p>The appearance bond of defendant and its forfeiture for bis non-appearance are proper evidence to go to tbe jury, like evidence of concealment, flight, etc.</p> <p>The Judge did not err in refusing to charge that the open and undisguised possession of the animal alleged to have been stolen, in the public streets and in company with others, “ was incompatible with the gailt of the accused.”</p>

<p>APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.</p> <p>An outstanding perfect title in a third person is an eviction as between vendor and vendee. 14 An. 717 j 13 An. 499; 7 L. 286; 10 L. 120; 1 R. 362; 11 It. 397; Duvergier, t. 1, Ho. 313; Duranton, t. 16, Ho. 249; Troplong, Ho. 413; Pothier, Vente, Ho. 97 ; Marcado, t. 6, p. 252.</p> <p>The warranty of the first vendor includes the losses occasioned to the last vendee, by the eviction. C-C. 2506; C. P. 385; C. H. 1630; Duranton, Vente, t. 6, Ho. 296; Troplong, Vente, 1.1, fo. 557-fi28; Dalloz, 1827, part 1st, p. 93; Marcadé, t. 6, fo. 273, 276; Pothier, Vente, Ho. 147-149; Journal du Palais, 1842, vol. 2, p. 60; Dalloz, 1831, part 2d, p. 851; 1826, part 2, p. 177.</p> <p>1. An action of warranty cannot be maintained without proof of actual dispossession or eviction, or that the plaintiff holds the property under a new and different title from that derived through the defendant warrantor. 1 Rob. 262; 7 La. 801; 11 La. 320; 11 Rob 397 ; 13 An. 499; 26 An. 588.</p> <p>2. As long as the plaintiff is in actual possession, under a title under which lie continues to acquire, by prescription, against the “ ©victor,” no eviction has taken place.</p> <p>3. A party who goes to trial, voluntarily offers his evidence and submits his cause, is not entitled to a non-suit, if ho takes the chances of a judgment on the case as made out. He must he presumed to have pioved every existing fact; and if this evidence does not make out bis case, a final judgment must be rendered against him.</p> <p>4. Taxes paid, and value of pennanent improvements, constitute a claim against the “©victor,” and not against the warrantor. 10 Hob. 178, Laizer vs. G-eneres ; 12 An. 534, Stanilusvs Weber,</p> <p>5. Use and possession are in lion of interest. 13 An. 499 ; 6 An. 304 ; 3 La. 395; 16 lia. 35.</p> <p>G. Under Art. 2482, Code of 182G, 2505 Ii. O. C.. any warrantor is only liable for the prico he received for the property. In this particular case, even if the court should deem tlie law different, no other amount could he award* d, because there is no proof of any increase, etc. 5 H. S. 559; 6 An. 297, Burrows va. Pierce; 10 An. 259; 14 An. 722,757; 12 An. 534.</p>

<p>In a suit to recover damages resulting from the illegal attachment of cotton seized as belong» iug to the debtor in the attachment proceeding, in which proceeding tbe true owner intervenes and recovers judgment, recognizing bis title to the property, the party who bad taken out the attachment is liable to the actual damages resulting directly from the seizure, among which may be reckoned all the necessary expeuses incurred in the suit to recover tbe property, and also the actual loss iu the price of the cotton whilst under seizure.</p> <p>If, however, tbe cotton is sold by consent of parties by tbe sheriff during tbe pendency of tbe litigation and tbe proceeds go into bis bauds, and he fails to pay over tbe tbe money to tbe party entitled to receive it, such party cannot recover tbe amount from the attacking creditor as part of the damages resulting from the attachment. The loss is caused by tbe delinquency of tbe officer, and does not result immediately from tbe seizure. ‘</p>

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

<p>Application for Mandamus.</p>

Homan, J. 1. Wliero error of law in the charge appears on the face of the record, it is properly before the court. State vs. Ricks 32 An. 1098; Falk vs. People, 42 111. 332: Wharton’s Prac. § 449. 2 The court will review the whole record on appeal, and when there is no bill of exceptions. State vs. Forrest, 23 An. 433 * State vs. O’Conner, 13 An. 486; State vs. Henderson, lb. 489 ; Rankin vs. Holloway, 3 Smedes & Marsh., 614; Murdock vs. Hurdon, H. & M. Ya. 200 ; Bish. Or.

<p>Where suit is brought on a claim for less than a thousand dollars, coupled with a revocatory action to annul a fraudulent sale made by the debtor, so far as it affects the creditor, the purchaser at such sale cannot appeal to this Court from a judgment annulling the sale to the extent ashed for, though the property may be worth more than §1000. Mandamus refused.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Houston, J,</p> <p>On Motion to Dismiss.</p>

<p>In a cause which requires the investigation of long and intricate accounts, in which the lower court (ltd not appoint auditors, tlio Supreme Court will remand tlio cas© for the purpose of submitting the investigation of its accounts to auditors, under Art. 443, C. P.</p> <p>Judgment reversed aud cause remanded.</p>

<p>APPEAL from the Criminal District Court for the Parish of Orleans. JOnsenherg, J.</p> <p>The deposition of a witness taken on the preliminary examination before a magistrate, is not admissible on the trial before the jury, if the State or prosecutor can, by due diligence, bring the witness into court. The right to use such evidence grows out of the great doctrine of necessity. Wharton Cr. Ev., Sec. 229; IT. S. vs. Macomb, 5 McLean, 287; State vs. Staples, 47 H. H 113 ; Powell vs Waters, 17 Johns. 176; Wilbur vs. Sheldon, 6 Cow. 162; Crary vs. Sprague, 12 Wend. 41; Berney vs. Mitchell, 34 N. J. L. 337; Broggvs. Com., 10 G-rat. 722; Summons vs. State, 5 0. St. 325; Bergen vs. People, 17 111. 426; Kendrick vs. State, 10 Humph 479 ; Dupree vs. State, 33 Ala. 380; Hobson vs. Harper, 2 Blackf. 309; Collins vs. Com., 12 Bash. 271; Gerliauser vs. Ins. Co., 7 Nev. 174.</p> <p>As to the doctrine of necessity. 1 Bish. Cr. Proc 3d ed. Sec. 1195; Sullivan vs. State, 6 Texas Ct. Ap. 340.</p> <p>Where the charge is obtaining goods by false pretenses, the judgment should be arrested when the information f.uls to allege any bargain, or colloquium as to a bargain by which the goods were obtained. Com. vs. Strain, 10 Met. 521; State vs. Philbriek, 31 Maine 401 ; State vs. Bonnell, 46 Mo. 395.</p>

<p>Application for Prohibition.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Tissoi, J.</p>

<p>The law is well settled, that the franchises and corporate rights of a Company and the means vested in it for the purpose of its existence, canuot he granted away and tiansfened hy any act of its own, or by any adverse proceeding, unless with the consent of the oiiginal grantor, formally expressed. In the absence of any provision to that effect, either in the general law or in the charter of such Company, the franchise cannot he levied upon for debt.</p> <p>The franchise, so termed, in this case, is nothing more than a right of way or license conferred by the Municipal Ordinance, and cannot be treated as a corporate right, which deiives only from sovereign dispensation. It is, in this instance, only an incident of the corporate existence of the Company, as created by law, and determines with tho extinction of such corporate life.</p> <p>Hence, neither the franchise or corporate rights, nor the right of way of the Company, have passed at the bankruptcy sale.</p>

<p>APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.</p>

<p>This Court will not pass upon the whole judgment of the court a qxia% when the latter only granted an appeal from a certain portion of such judgment. The nature of this cause requires that it should be remanded.</p>

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

<p>Where a testatrix leaves one-fourth of her succession to certain collaterals and next makes mont-y legacies and special legacies of property in' kind to others, leaving the remainder of her property, after satisfaction of the foregoing legacies, to her husband, the legatees of the fourth will be entitled to one-fourth of the w hole assets after payment of the debts.</p> <p>The legacies of money and property will be satisfied next, and the husband, as universal legatee, will take the residue.</p>

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

<p>In a petitory action, tlie rule is well established, that the plaintiff has the light to meet the title opposed to him, even when it is a, tax sale, by all means of attack, as if specially pleaded.</p> <p>It is equally well established, that parole evidence is admissible to prove simulation and fraud in the apparent acquisition of real estate.</p>

<p>APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livauclais, J.</p>

<p>The confession of judgment by the executrix in this case, is considered by the Court as an acknowledgment of the debt of the estate, and prescription does not run against debts thus acknowledged, whilst the estate is being administered.</p> <p>The note given by the executrix in lieu of the one of the decedent, held by the creditor, is an acknowledgment of the debt of said executrix.</p> <p>The rule that executors can neither create liabilities nor change the nature of such liabilities of the estate as already exist, is also re-aifirmed in this case.</p>