Volume 35 — Louisiana Annual Reports

The pledgee of anoto can sue upon it in his own name, without diaclo»ing the nature of big title, and recover the entire amount, subject to the obligation of returning to the person • legally entitled to receive it, any surplus that remains after satisfying the pledge. 19 An. 526 : 2 La. 264; 7 An. 225; 21 An. 5 ; 8 N. S. 370; 4 La. 219; 6 An. 757.

Landry. Hudspeth, J. 1. Motion to quash the venire because of an alleged defect or irregularity must be urged on the first day of the term. Sec. 11, Act No. 44 of 1877, p. 58 ; State vs. Thomas, 32 An. 350 ; State vs. Jack Williams, 34 An. 1251, etc. 2.' Commissions to take testimony outside of this State cannot issue in criminal oases. State vs. Bulford, 33 An. 684. 3.

<p>When a boy is sliot intentionally or carelessly by another boy with a shot gun loaded with powder and fired off on one tbe streets of New Orleans, the father of the boy who discharged the gun is liable for damagos for the iujury inflicted and suffering caused thereby.</p> <p>The boy shot did not contribute to his own injury and excuse the fault of the other, because he would not or could not get out of the way when ordered by the boy shooting to do so.</p>

Houston, J. 1. A carrier of freight who contráete to deliver goods at a destination beyond the terminus of his own line is answerable for the default of any connecting road in the line of trans. portation. Hutchinson on Carriers, pp. Ill, 112,117; Redfield on Railroads, pp. 104,109; Field on Damages, p. 324; 8 Exch. 341; 49 Vt. 255; 48 3ST. H. 339 ; 1 Woods, 100; 68 Fa. St. 272 ; 21 Wis. 582; 104 Mass. 122. 2.

áPPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. Iu a suit, the application of a party for letters of administration on a succession, the record must show that there is property within the jurisdiction of the Stale and this Court.

Cole, J. Ik “ All objections to the manner of drawing juries, or to any defect or irregularity that can be pleaded against any array or venire, must be urged on the first day of the term, or all sucli objections shall be considered as waived, and shall not afterwards be urged.” See. 11, Act No. 44 of 1877 k 2» Act No. 44 of 1877 is not in conflict with nor repealed by Arts. 116, 47 and 48 of the Constitution of 1870. 3.

<p>APPEAL from the Twelfth District Court, Parish of Rapides. JBarbvn, J.</p>

Cnllom, J. Where two persons sign a confcraofc of charter party, by which a vc&sei is hired to them, for the purpose of “ carrying personal property for hire ” therein, such contract constitutes the charterers, quoad that undertaking, commercial partners, C. 0. Art. 2895 (2706) See. 3; 4 La. 106 * 2 Bob. 183 j 1 An. 147 * Wilinot vs. Steamer Ouachita Belle, 33 An. p, 611, 1. Commercial partnerships aro never presumed.

A PPEAL from the Civil District Court for the Parish of Orleans. Fir/ldor, J. 1.

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

Mwu'oe, J. 1. Under the decision of the suit of Hancock vs. Citizens’ Bank, 32 An. 590, reserving the rights of the Bank to proceed by proper action, an ordinary suit with process of attachment, the defendant being a non-resident, is a proper action. Case of Purvis vs. Reed, quoted by defendant, not applicable to the case at bar. 2. The suit of Hapcock vs. Bank, 32 An. 590, was not tried on its merits.

<p>In petty larceny there can Toe no accessory. Those who in grand laroeny would be accessories before the fact, under our statute are principals in petty larceny. Henoe, the following charge to the j ury in a case of petty larceny is correct; When a person hires another to commit a theft, and for that reason the* theft is committed by tbe person, thus hired, and the person hiring for the commission thereof enjoys the benefit of the theft, such person is guilty of larceny, although absent at tbe time tbe theft is committed.</p>

Lwsenberg, J. 1. There is no law requiring the prosecution to conduct a case to suit the convenience of the defense. 2. A new trial will not he granted to enable a party to impeach a witness who testified on a former trial. State vs. John Fahey, 35 An. 1; 5 Maas. 261; 7 Tex. 69; 2 Garter, 435 ; 14 Mo. 348; 8 Gratt. 637; Graham and Waterman on New Trials, vol. 1, p. 1074-1077. 3.

A PPEAL from the Civil District iX JSightor, J. Court for the Parish of Orleans. A law which makes it the duty of City Administrators to appropriate a sum sufficient to pay bonds, makes it their duty to levy that sum by taxation if they are without other means. 34 An. 477. A money judgment may be obtained, and an order to levy a tax to pay it granted in the same proceeding.

Court, Parish of Morehouse: Brigham, J. 1 Two distinct felonies may be laid in different counts in the same indictment. Bishop on Crim. Procedure, vol. 1, Secs. 450 and 451 and authorities there citod. 2.

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

Mom-oe, J. “ The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by equity, custom or law, is considered as incidental to the particular contract, or necessary to carry it into effect.” C. C. 1903,1901, 1943, 1963,1964, 1963, 2343. Warranty respecting the buyer’s peaceable possession of the good-will sold is of the nature of contract in the Civil Law of sale.

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

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Olegg, J.</p>

<p>APPEALS from the Justice Ward’s Court, Fifth Ward, Parish of East Feliciana. And from the Fourth City Court of New Orleans.</p>

Logan, J. I. The lessee of mortgaged property, like any other third possessor, has arightto require on© proceeding to dispossess him, under executory proceedings, to exhibit a notarial title to the mortgage note, notwithstanding the act of mortgage contains the non-alienation clause. S. The remedy by appeal is not exclusive. The action of nullity in a judicial proceeding may often be asserted by injunotion as well.

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

J. 1. Indictments may be amended so as to make the name of accused mentioned in the indictment correspond with the proof adduced on the trial. R. S. Soc. 1047 ¡ 23 An. 604 j 30 An. 367; 31 An. 40S. 2. The declarations of an accomplice made in the presence of tlio co-defondant are admissible in evidence on the trial. Wharton, p. 189 ; Waterman’s TJ. S. Digest, p. 13S, 27os. 123,124, 125 and 126. 3.

Houston, J. 1. The presumption that property is community must yield to contrary proof. 16 L. 40; 30 An. 275; 5 R. 292; 9 An. 60; 13 An. 379 j 14 An. 716 ; 30 An. 167. 2. Any legal evidence is admissible to prove what the spouses brought into marriage, 5 R. 292. 3. The ownership of a thing, whether it be movable or immovable, carries with it the right to all the thing produces, etc. C. C. 498-505. 1.

Cole, J. 1. The Court has a right to direct the jury to reconsider their verdict before it is recorded, and it is its duty to do so when satisfied that there has been a palpable mistake. 3 Parker, 552; ProffatC on Jury Trials, Sec. 450. 2.

APPEAL frora the Fourth District Court for the Parish of Orleans. Houston, J. 1. Whore a loss is ooramunicated to an underwriter, and he negotiates for its settlement, makes offers to that end, and never complains of want of preliminary proof, its production is waived. Philips on Insurance, vol. 2, p.475; Flanders on Fire Insurance, p. 593; Blake vs. Ex. Mutual Ins. Co., 12 Gray, 255; Owen vs. Farmers' «Joint Stock Ins.

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

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

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

<p>A vendor of cotton is entitled to have the sale annulled for non-payment of the price when vendee is in actual or constructive possession.</p> <p>The fact that the vendee has delivered the cotton to a oreditor of his, the proceeds to he applied to the payment of his debt, cannot be set up by such oreditor to j ustify a claim to the ownership of the cotton.</p> <p>The ownership did not thereby pass. It continued in tbe vendee, at whose risk the thing remained. The creditor’s possession, after such delivery, is that of the vendee.</p> <p>Such a transaction is not a dation en paiement. A consent} a price and delivery were necessary, but a weighing was not indispensable.</p> <p>Where special defenses are not set up, the Court cannot supply them.</p>

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

<p>In an executory pioceeding by a syndic, to enforce payment of a note secured by vendor’s privilege and mortgage, it is not necessary to accompany tbe petition for the seizure and sale of the property with any evidence of transfer of the note by the insolvent, who was the payee, to his creditors. Possession of such note by the syndic, even if unendorsed, isa piesumption of such transfer. -What title the payee had to it has passed to his creditors by the surrender and by the acceptance of it by the court.</p> <p>In such a caBo it is sufficient for the syndic, under proper averments, to exhibit authentic evidence of his appointment as syndic of the creditors of the insolvent payee, the note and an authentic copy of the act of sale and mortgage.</p> <p>Damages will not be allowed, even if tlie appeal bo frivolous, where it is daoolutloe only, and, therefore, has not delayed the appellee in the execution of bis judgment. Having sustained no loss consequent on the appeal, appellee cannot recover such damages.</p>

Tissot, J. When two judicial days have elapsed and intervened, a default may be confirmed. C. P. 312; Hall vs. Mulholland, 3 G. 113 ; DoBIanc vs. LeBlanc, 15 An. 224 ; Hart vs. Hixon, 24 An. 137. Where tbe appeal is taken only for delay, the judgment will be affirmed with damages. C. P. 907; 3 M. 405; 31 Au. 427.

<p>The rule, that no damages can be recovered for the inexeoution of a contract when its non* performance was prevented by a fortuitous event or irresistible force, has two exceptions, one of which is when there has been some fault of the party contracting which preceded the fortuitous event, and without which the loss would not have happened; and the other when he has expressly or impliedly taken the risk of such event or force.</p> <p>The non.performance of a contract for the delivery of corn is not excused by a freeze of a river, when it may be executed in another.way than that first in the contemplation of the parties. If the freezing of a river be a fortuitous event, it is the duty of the party con* tracting to provide other means of transportation, and especially is this so when he is warned of the impending freeze, and knows the necessity of the party with whom he has contracted to have the corn delivered for reshipment.</p> <p>"When the circumstances shew that the term was fixed in favor of the creditor, and the con* tract was made to enable him to fill another engagement by a stipulated time, the debtor or party contracting waits until the last day of the term at his peril, and takes the risk of % weather changes which impede the execution of the contract in the manner least onerous to himself. A contract can be passively violated by not doing what was covenanted to be done at the time and in the manner implied from the nature of the contract.</p>

A PPEAL from tlie Civil District tx Houston, J. Court for the Parish of Orleans. 1. Testamentary executors continue in office until the estate is finally wound up, E. 0. C., 1673, unless removed from causes specified by law. C. P, 1013 et seq. 2.

<p>APPEAL from the Civil District Court for the Parish of Orleans, T'mot, J.</p>

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

1. Every illegal act of man causing damage to another obliges the wrong-door to make full • reparation, whether the damage was done to tho property or person of the complainant— whether it affected his body or mind—and whether its exact amount is susceptible of proof or not. The obligation binds the wrong-doer iu favor of the party who is injured. C. C. 2315 and 1934, third paragraph. 2.

1. Where a non-expert witness is under examination as to the sanity or insanity of a testator? he is limited to the statement of bare facts, and is not allowed to give his opinion of tho mental soundness or unsoundness of the de cujus. 1 Gray, 337; 34 Y. Y. 190 ; 42 N. Y. 270; 1 Barb. 408; 13 Tex. 568; 2 Allen, 511; 3 Mass* 371; 9 Mas3. 225. 2. The only exception to this rule is in favor of the subscribing witnesses to a will. 8 Greeiil42; 3 Mass. 330; 12 Penn.

<p>A writ of error, though operating as a supersedeas, does not have the effect of reviving or continuing in force the injunction dissolved by the judgment from which such writ of error has been obtained.</p> <p>But it is also the rule, based upon a principle of comity, that the court from whose judgment the supersedeas has been taken, should not render any decree during the pendency of said supersedeas, which would practically destroy its effects.</p> <p>Therefore, this Court will not, in the present case and at the instance of the relator, order the payment of an entire fund to him, whilst other parties are also claiming payment out of it, in the Supreme Court of the United States, under a writ of error to this Court, which operated as a supersedeas.</p> <p>The principles upon which the decision of this Court is based in the Hart case are formu* lated anew in this case.</p>

Court for the Parish of Orleans. Bogers, J. 1. The charter of a corporation can only be forfeited at the instance of the State. 18 An. 677; 3 An. 954; 31 An. 836. % Under tho law of Louisiana a corporation has no right to make a voluntary cession of its assets. 5 Rob. 63 ; 15 An. 19 • 18 An. 685; 31 An. 836. 3.

Tissot, J. 1. Cases illustrative of negligence in street car drivers, in not giving passengers a reasonably safe opportunity to «alight, by starting before the passenger has stepped down: Mrs. Howell vs. St. Charles Street Railroad Company, 22 An. 603; 61 2ST. Y. 621; 30 N. Y. 370, 373 ; 49 2ST. Y. 673 ; 49 N. Y. 671. 2.

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

<p>The presence of the accused in court when the verdict of the jury is received, on a trial for a felony, cannot he dispensed with, and the record must show that fact affirmatively.</p>

<p>APPEAL from the Third District Court for the Parish of Orleans. Ileusha w, J udge ad hoc.</p>

<p>A mandamus lies to compel tbe granting of an appeal from a .judgment dismissing part of a petition and part of tlie prayer thereof.</p> <p>It is no defense to an application for such remedy, that the case, for the remaining part, continues pending before the court, or that the judgment is interlocutory and causes no irreparable injury.</p> <p>Such judgment is a final judgment, requiring, as in faot it received it, signature by the Judge,</p> <p>The fact that the plaintiff continued the prosecution of the remaining part of the case and. that ho did not, upon the refusal of the appeal, apply for a mandamus, oannot be considered as an acquiescence in the judgment, or an abandonment of his right of appeal.</p>

<p>ilPPLICATION for a Certiorari.</p>

<p>Where an administrator charges himself with §1500 in his account, as the result of a compromise of a twelve months’ bond in favor of the succession and prays that such compromise may be approved by the court, such demand gives this Court jurisdiction of an appeal from a judgment rendered on an opposition to the account, although the cash fund proposed to be distributed by the account and the amount of the inventory of the succession is less than §1000.</p>

<p>A mandamus cannot lie to compel a District Judge to grant an appeal to tlie Court from a judgment dismissing a case, as 1o one of the defendants, where an exception is filed to the jurisdiction, and the petition in the suit shows that the amount claimed is less than one hundred dollars.</p> <p>Such dismissal does not extinguish the corporation, plaintiff in the case. The suit continues to he pending as to the other defendant.</p>

<p>■/APPLICATION for a Mandamus.</p>

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

<p>The law does not and cannot sanction or maintain a sale of property by the original owuer or by bis vendee during the pendency of a revocatory action instituted by a creditor of the original owner, seeking to avoid, in its effects as to him, an alleged fraudulent sale of llie same property by bis insolvent debtor.</p> <p>The property thus claimed to be liable for tbe payment of bis debt by a creditor cannot bo alienated pending his action so as to prejudice bis light.</p>

<p>Where a policy of insurance on buildings issues to a party, but the loss is, by the terms of the policy, made payable to another, who, the evidence shows, bolds a special mortgage .. .on the property, the party to whom the policy issues cannot alone and without authorization from the beneficiary maintain a suit to recover the loss.</p> <p>Where, in the same policy, a lot of furniture is insured on account of another party, the suit to the extent of the loss on the furniture will be maintained in the name of the policy holder where it is shown that such beneficiary has authorized the suit for his benefit and his ownership of the furniture is proved.</p>

<p>A stipulation in a policy of life insurance, issued by a Massachusetts company, that the unpaid portion of the year’s premium shall always be considered as an indebtedness to the company and that the failure of the insured to pay any instalment of premium when due shall operate a forfeiture of the policy, except as provided in Chapter 186, Laws of the Commonwealth of Massachusetts, approved April 10th, 1861, does not violate the provisions of that statute. • Under such a contract the amount of the unpaid premium must be deducted from the net value of the policy at the date that the premium becomes due and is not paid, in ascertaining the net single premium remaining to the credit of the insured, and intended by the Statute to carry a temporary insurance, notwithstanding his failure to pay the stipulated instalment of premium when it became due.</p>

<p>A charge or commission for an attorney’s fee, where a parish license is sought to be collected by suit, imposed by an ordinance of a police jury, cannot he collected. The parishes aro without authority to impose such charge.</p>

<p>A son-in-law has not an insurable interest in the life of his mother-in-law.</p> <p>When the insurable interest arises or is implied from, relationship, it will be held to exist when the relationship is such that the insurer has a legal claim upon the insured for services or for support.</p> <p>Even where such legal claim does not exist-, but from the personal relations of the insurer and the insured, the former has a reasonable right to expect some pecuniary advantage from the continuance of the life of the latter, or to fear loss from his death, an insurable interest will bo held to exist.</p> <p>A policy of insurance, procured by one for bis own benefit upon the life of another, the beneficiary being without interest in the continuance of the life insured, is against publio policy and therefore void.</p>

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

1. The power to sell must be express and special. C. C. 2*297. 2. There was no negligence on the part Of plaintiff in leaving the certificate of stock with Allen, ‘ Bank of Ireland vs. Evans, 32 English Law- and Equity Report,-28; Loring vs. . Salsbury Mills, 125 Mass. 138. 3. There is no circumstance in the record that amounts to an, implied authority to sell, even if Such authority were valid. 4.

<p>Appeal from the J. Civil District Court for the Parish of Orleans.</p>

<p>A Mandamus is the proper remedy to compelan inferior Judge to sign bills of exceptions properly taken and tendered for signature, and, under the circumstances of this case, the mandamus is granted.</p>

Sogers, J. On the Exception. .1. We have shown that the exception filed is a peremptory exception as to form and must be filed in limine litis. It (J. P. 344-5. 2. That an exception denying the capacity of the plaintiffs«to stand in judgment must be pleaded in limine litis. 12 La. 618; 6 Rob. 484; 11 Rob. 7; 19 La. 429; Act 1839, Sec. 23, p. 192; 3 An. 150; 3 M. 373; 2 bT. S. 389 ; 5 bf. S. 343; 1 La. 113-283; 14 La. 328; 7 La. 181; 2 An. 1017; 5 An. 332; 5 La. 40. 3.

<p>Am appenl will lie from an ordor putting one in possession of an estate when there has boon no judgment to that effect. An older made ostensibly to execute a judgment will bo vacated, if it appears that no judgment, such as would, justify the order, has been rendered.</p>

<p>APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Hahn, J.</p>

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

K’iiobloelc, J.' i. First. Delivery is not the mere consequence, but is the essence of a dation enpaiement. 0. C. 2656 ; Pothier, Contract of Sale, par. 602; 3 M. 226,269; 12 La. 375; 20 An. 282 ;-21 An. 322; 27 An. 616 ; 28 An. 308; 30 An. 1114. Second—(a) A thing not susceptible of delivery cannot be the subject of a dation m paiement.

<p>Ordinances of fcbe City Council of atfew Orleans recognizing the claim of an attorney, vrho had "been employed us special counsel of the City in important litigation, and. providing for part payments of his fees, interrupt prescription on the claim.</p> <p>A contract couched in clear and unambiguous terms cannot be avoided as moaning a different agreement than the terms used import, and the letter of the contract must prevail, instead of invoking the remote intent of the parties.</p>

Rogers, J. l; Two of tlie commissioners of an insolvent bank cannot institute a suit when the law re* quires the appointment of three. 7 N. H. 253 ; 8 Md. 187; 9 Ark. 320. 2.

Logan, J. The plea of discussion is a dilatory plea. State vs. Bradley, Administrator, l An. 643 ; Dwight vs. Linton, 3 Bob. 57. It cannot be allowed after issue joined by default. C, P. 333. In relation to improper pleas in the defendant’s answer, the better practice is to object on the trial to any testimony to support such pleas. 21 An. 272; 20 An. 194; 3 Bob. 365.

<p>APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Hahn, J.</p>

<p>APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Malm, J.</p>

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

Jones, J. 1. The person whose name is alleged to he forged is a competent witness to prove the forgery. 1M.215. 2. A bill of exceptions will not he considered and passed upon when it is not plain and explicit as to the objections of defendant and ruling of the court thereon. .3. The Judge a qua is not confined or limited to the charge, or the use of language thereof, asked by defendant. 4.

1. It is well settled, that a.representative of a succession may sell community property to pay debts, upon a proper showing, even though minors are interested therein, especially when the estate is insolvent. Minors have but a mere residuary interest in community property, and can take nothing until its debts are paid. 33 An. 473; 28 An. 176 ; 11 R. 508-10; 9 An. Í07. 2.

Delony, J. 1. A contract to indemnify, by which one surety agrees to indemnify a co-surety against loss, by reason of goiug upon the bond, is an original contract and. may he proved by parol; and this is true, although there is no proof showing the real motive of the person making the promise. Thomas vs Cook, 8 Barn. &Cres.728; G Curbing, 553; Chapman vs. Morrill, 4 Wind. 057; Anderson vs. Spouce, 37 American Reports, IG3. 2.

<p>The payment of taxes, whether due to the State, or parish, or to incorporated villages, towns, or cities, can no longer he enforced by suit, but only in the mode provided by the Act of the General Assembly approved July 5,1882.</p>

Hawlces, Judge ad hoc. • 1. Tales-jurors may be summoned to serve from outside the presence of tiie court when it becomes necessary to have their services. Sec. 7, Act 44 of 1877, p. 57; 5 An. 316; 1 Chitty’s Grim. Law, p. 218; 14 An. 464; 23 An. 148; 26 An. 47. 2. A juTor whose opinion is not fixed and deliberate, is competent to serve if he is not otlier- ■ wise incapacitated. 32 An. 1101; 14 An. 462; 22 An. 43 ; *23 An. 148; 33 An. 889. 3.

Charles. Malm, J. Act No. 88 of 1880, so far as imposing other tax or license on rice growers for levee purposes than the State levee tax of Art. 213, the District levee tax of Art. 214, and the duty of excavating and constructing their own dolls and refilling them when disused, is unconstitutional. Also in requiring a license tax for continuing dolls previously in use as well as constructing new ones, the same being on an agricultural pursuit and in violation of Art. 2Ü6.

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

<p>■In an action of boundary by tbe owner of unimproved lands, tbe only matter in dispute is tlie value of tbe lands included between tbe' two contested boundary lines, and unless appellant shows that the value of sucb lands exceeds one thousand dollars, tbe Supreme Coart is without jurisdiction and tbe appeal must be dismissed. ,</p>

<p>APPEAL from the Eighth District Court, Pariah of Madisbn. Delony, J.</p> <p>No appeal lies from an interlocutory judgment Which causes no irreparable injury 5 nor wherever the appellant can be relieved on appeal from the final judgment in the case, Eields, Tutrix, vs. G-agné and Wife, 33 An. 339; 31 An. 47; 13 An. 300; 1 An. 25; 3 N. S. 25 ; and authorities collated in 1 H. t>M p. 23, No. 8, and p. 28, No. 22.</p> <p>An injunction cannot issue to prohibit one from suing or exercising his rights before a court of justice. The right to claim judicially what one believes be is entitled to, and the right to prosecute a suit in court, are rights which can be denied to no one. Brott vs. Eager, Ellerman & Co., 28 An, 262; 26 An. 500.</p> <p>The remedy by injunction cannot be substituted for that by appeal 5 and where a plaintiff in injunction can prosecute and vindicate his rights effectually by an appeal, his injunction will be dissolved for no cause of action. 4 An. 12.</p>

<p>'Where the móñuaria, proceedings in a succession show a full administration, closing with the putting in possession of the legatee or testamentary heir, and the discharge of the success sion representative, the proceedings cannot be reopened and another administration, inaugurated.</p> <p>Articles 1067 et seq. of the R. C. C. have reference to successions actually under administra» tration and not to such as have been thus wound up. They were intended for the protection of new, or straggling creditors, not previously known.</p>

Eapides. JBlaclcman, J. The absence of part of the jurors, when a case is called for trial, in no manner deprives the defendant of the opportunity of inquiring into the character and qualifications… Held: is the most competent to pass upon Ms competency, and said judgment will not bo disturbed, unless there has been some error of law made therein, to the detriment of the accused. State vs. Barnes, 34 An. 395.

Delony, J. A judgment rendered against an unrepresented dead person is null; also without citation. 29 An. 647 • 22 An. 23; 24 An. 253. The immediate Tights of an heir remain in abeyance until he decides whether he accepts or rejects a succession. A beneficiary heir has but a residuary interest, which can only be determined when the succession has been duly administered. 17 An, 41; C. C. 946, 1033, 1073.

Bar-bin, J. A judgment deoreeing a homestead is not a final judgment* Only final judgments support the plea of res judicata• See 1 An. 92 5 3 An. 202. It is not transmissible to heirs. Bryant vs. Lyons, Sheriff, 29 An. 64. Such a judgment protects the defendant iu oxeoution only so long as he continues to own and reside on the property, to be in necessitous circumstances, and to have persons bona fide dependent upon him for support.

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

Whittington, J. 1. Art. 338 C. P. gives the causes of recusation of Judges, and applies to justices of the peace as well as other Judges. Justice Whittington was not disqualified from any of the causes mentioned in said Article. 2. Art. 210 of the Constitution is not self-operative, and has not been made operative as regards municipalities. 34 An. 733. tv 3. Act 119, p. 167 of Acts 1882, is not imperative, hut simply leaves it to the option of political corporations. 4.

Sherburn, J., acting in place of Kernan, J., recused. 1. A sale clothed with judicial sanction cannot be attacked or inquired into collaterally. .19 An. 353 ; 23 Aq. 46!); 28 An. 639 ; 29 An. 693. 2. The purchaser at a probate sale is protected by the order of court. 6 R. 47l; 1 An. 29 ; 22 An. 175 ; .25 An. 55; 28 An. 755. 3. Actions of nullity and rescission of prohate sales are prescribed by five years. R. C.. 0. 3543; 34 An.

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

<p>An attorney-at-law, who lias been discharged by his client, cannot, against the will and orders 1 of the latter, give bond and prosecute an appeal in his name. And an appeal so taken will be dismissed on motion of the client.</p>

A PPEAL from the Second District Court for the Parish of Orleans. Tissot, J. An attachment is improperly dissolved where the defendant fails to prove that ho never made any attempt to sell the property, where the grounds of th§ attachment are that he was about to convert his property into evidences of debt, to place it beyond the reach of his creditors. “Wetherow vs. Croslin, 24 An. 128; 55 An. 200; 27 An. 617, 104 ; 15 An. 425.

<p>The postponement of a criminal trial to the next day after that on which' it is set, although it may occasion inconvenience to the counsel and expense to the parish, will not of itself prejudice the prisoner’s rights, nor will the fact that a civil cause is put aside in order to take up the criminal trial affect the regularity or legality of the conviction.</p> <p>The State has the right to ascertain the fact of a juror's ñtness and impartiality by other than ■ the stereotyped questions on the voir dire, and may interrogate the juror in such manner and form- as will best- serve to shew whether the juror has been subjected, knowingly or not, to influences that would unfit him for the discharge of his functions.</p> <p>When the venue has been changed, the indictment must be transmitted to the court to which the cause has been removed and does notneed to have stamped upon it the seal of the court from which it comes. If a trial is had and the judgment is set aside, the indictment remains in the court where the trial was had, and no more needs the seal of either court for the second trial than for the first. The new forum stands in the place of that in which the indictment was found, and as it would not need a seal if the trial had taken place in the latter court, so it does not in the other. The minutes of court, its orders, etc., cannot be sent up, and therefore must be copied, and the copy attested by a seal.</p> <p>Counsel should not.be permitted to re-argue the question after the court has decided it. Their remedy is by exooption to the ruling.</p>

<p>APPEAL from the Twenty-third District Court, Parish of Iberville. Oole, J.</p>

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

<p>» Where it ia apparent that an appellee can recover fiom a surety on an appeal bond the amount of the judgment appealed from, if affirmed, the appeal will not be dismissed owing to alleged deficiencies in the bond.</p> <p>Where the proof shows that plaintiffs in attachment were authorized to entertain the fears declared in their petition, the execution of the writ can oause no damage. The verdict of a jury allowing such on a reoonventional demand lacks foundation and must fall.</p>

Cole, J. 1. Any three members of the jury commission are sufficient to perform all the duties appertaining to said commission. Sec. 3, Act No. 44 of 1877, p. 56. 2.

<p>The condition in a policy of insurance that claims thereunder shall be barred, unless j udicially prosecuted, within one year from the date of loss, is legal and not violative either of ex-, press provisions, or of the policy, of the law of prescription of this State.</p> <p>The fact that plaintiff was arrested and prosecuted for arson, especially when such prosecution was not at the instance of defendant, furnishes no excuse for non-compliance with such condition,</p>

Yoistj J. Courts have power, in their discretion, to determine whether a paper filed in a suit styled a peremptory exception shall be considered as an answer to the merits. 5 An. 41; 20 An. 428; 32 An. 613.

, Felony, J. 1. In a suit for damages on an injunction bond, if the record shows that the equitable remedy of injunction has been abused and the administration of justice has been trifled with, then, and in such case the, court will assess against such party the highest damages allowed by law. 23 An. 799. ' 2.

Bar-bin, J. 1. An appeal bond is fatally defective if it does not contain -the condition that “ appellants shall prosecute the appeal.” Art. 579, C.P ; 33 An 421; 27 An. 645; 2 An. 1013. 2. The omission of such a condition cannot be supplied by intendment, nor can the surety’s liability be extended to it. 3 An. 685; 9 An. 423; 10 An. 155. 3. The condition is material. 2 An. 1013; 33 An. 421. 4. Suspensive appeal bond must conform to Arts 575 and 579, C. P.

<p>In an application for a certiorari, wherein it is not charged that the .fudge arbitrarily refused to admit legal evidence, this Court will not pass upon the correctness of his action. He' had the legal power to admit, or reject evidence, and he has exercised it in the form pointed out by law.</p> <p>The Supreme Court, iu the exercise of its supervisory powers over inferior courts, will not transform itself into a court of appeal, for the revision of the rulings of such courts.</p> <p>Where a court renders judgment in favor of a plaintiff and does not expressly pass upon a re-' conventional demand, the omission to do so is equivalent to a rejection of such demand. • Where it is charged that a justice’s court has illegally, but not arbitrarily, refused to issue its process on a call in warranty, tbe error, if any, was committed in the exercise of a legal discretion, alud is not revisable in this Court in any form.</p>

<p>"Where the transcript does not contain the ordinance or resolution of the town council, under which the appellant was fined, or information of any hind of the terms and scop© of tbtv f ordinance, the fault is imputed to the appellant, and his appeal will be dismissed*</p>

Sherburne, J. The Superintendent of Public Education is prohibited by statute from appearing in court, either in person, by private counsel, or in any way except through the Attorney General, or District Attorney of the place where he is located. Act No. 21 of 1872, p. 61.

<p>A Judge oannofc change the minutes of his court to correct the errors of counsel, but tlie ' power is inherent in every court to oorreot its minutes, in chambers as well as in term, ao as to make them conform to the truth.</p> <p>In criminal oases, when the correction is applied for in ohambers by the State, notion must bo given the defendant, and vice versa, and in civil onuses, when the change affects the rights of parties to suits, and the application ooraos from one of them in chambers, notice must be given the other.</p> <p>An appeal taken by petition cannot he made returnable before the expiration of the delay computable for the distance from the domicile of the appellee to the placo where the appellate oourt is held.</p>

Cole, J. 1. “ When a necessitous widow dies without having received the portion of $1,000, under tlie Act of 1832, her major heirs canaot claim that portion from the husband’s sucoossion. Only children, and her remoter descendants, who are minors and necessitous, are entitled ' to claim suoh portion.” 30 An. p. GOO, Vol. 1. 2.

<p>APPEAL from the Eleventh District Court, Parish of Natchitoches. Pearson,-3.</p>

Monroe, J. 1. By the statute of 1869 (Sess. Held: that the exposition of statutes by subsequent legislative bodies, has weight, though not a controlling authority, in regard to ihe construction of the statutes. Sedgwick on Stat. and Const Law, 2d ed., p. 214; Coutant vs. The People, 11 Wend. 511; Rex vs. Loxdale, 1 Burr, 447; Pike vs. Megoun, 44 Mo. 491.

REPEAL from the Twelfth District Court, Parish of Grant. Barhin, Where one is at the same time universal legatee and executrix, she may take the succession, treat it as her own, and be no longer responsible as executrix, eren though she has also qualified in that capacity.

Lelony, J. A debtor sued by the transferred as owner of his indebtedness, cannot attack plaintiff’s title, where a payment by him to plaintiff would release him from his obligations, unless ho has equities which could be pleaded against the original creditor, he is without interest, to inquire into the transfer. McDowell vs. Cook, 10 An. 31, 32; Kearn vs. Goldsmith, 14 An. 349; Lableur vs. Hardy. 11 R. 394.

Yoist, J. An interlocutory order, not clothed with the forms of a final judgment and not signed by the Judge, cannot he appealed from. C. P. 566 5 20 An. 490, 583; State ex rel. Herd vs. Judge 8th Diet., East Carroll, not reported. An interlocutory judgment can be appealed only when such judgment may cause an “irreparable injury.” C. P. 566 ; 15 An. 336; 21 An. 634. When defendant has confessed, or judicially admitted the demand of plaintiff, cannot appeal.

Blackman, J. 1. The simple acceptance of a succession is tacit, when some act is done by the heir (or legatee) which necessarily supposes his intention to accept and which he would have no right to do but in his quality of heir (or legatee). C. C. 988, 1013, 1614, 992, 999; 8 An, 431; 9 An 517; 7 An. 553; 5 An. 113; 6 An. 514; 21 An. 717. 2.

<p>Whoro the transcript is not filed on the return day, or within the legal delay following it, the Court is impotent to grant an extension of time to file it.</p> <p>The failure to do so in this case is of defendant’s procurement. Sentenced to death, ho made his escape before the return day, and thus the transcript was not even prepared. Captured long after the last judicial day had thus elapsed, he must stand the irrevocable consequences of his rashness.</p>

<p>The teat of jui infliction of theSirpiome Court in a suit by injunction, wben tbe writ is obtained by tbe judgment debtor who is the owner of tho property seized, is the amount of tbe judgment iujoined. Alitci\ when a tbiid person obtains the writ to pievent the sale of bis own property to pay a judgment agaiust another.</p>

Tissot, J. 1. Erasures not approved by the testator are considered as not made. C. 0.1589. 2. Testaments can bo revoked only in one of tho forms prescribed by law for testaments. 0. 0.1691,1692. 3. The word erasures in Article 1589 applies to the whole will. The signature is not excepted, because it is one of the constitutive parts of the will. 4.

<p>Whore an application Is made for tho appointment, of a ourator, administrator, or dative testamentary exeoutor, notioe of the application should be published for ten days in the manner prescribed by law. If no opposition is made thereto, and this faot is made known to the J udge, he should thereupon make the appointment, upon the applicant giving the required bond and taking tbe prescribed oath. ■ Before such appointment is made a tender of a bond is premature; and the appointment of another party upon an allegation that the first applicant had failed to give a sufftoiout bond, is illegal, where such first applicant had never been appointed, and where only tho notioe of his application had been published.</p> <p>Notice of suoh application must precedo the appointment.</p> <p>Where an appointment has been made and the party fails to qualify in ton days thereafter, the appointment is vacated.</p>

Hightor, J. 1. A party, against whom a judgment is rendered by an appellate court, who thinks himself injured by the manner in which the execution was ordered, must seek relief by a superardeaSy to he granted by the court from which the mandate was issued. No appeal lies from the order of execution. C. P. Arts. 6*29, 877, 878; 11 L. 366; 6E. 92; 20 An. 581; 11 An-196 ; 97 U. S. 361. 2.

Rightor, J. 1. Plaintiff is the holder of 100 shares of the capital stock of the Crescent City Gas Light Company. - >• , >v That Company has consolidated with the Hew Orleans Gas Light Company. The effect of this consolidation is the dissolution of both of tbe constituent corporations, and the creation of a new corporation, to which passed all the lights and obligations of the old ones.

<p>An ex parte order of court reoognising 'one as -heir of a deoeased person and putting her in possession of his sucoession, laoks the essential elements of the thing adjudged and oan* not bo pleaded as res adjvdicata.</p> <p>The reoord of a suit in .another State is admissible in evidence to prove rem ipsam, but is inadmissible to establish the status of one, not a party thereto or privy. The judgment rendered in such suit is not conclusive on those who had no notice, either actual or constructive, of the proceedings, and who made no appearance therein.</p> <p>The depositions of witnesses, relating to pedigree, taken in this State to be read in evidence in a- suit in another State, can bo used as evidonco in a subsequent suit in this State between different parties, when it is admitted that the witnesses are dead, and the testi-. mony is offered for the sole purpose of proving pedigree.</p> <p>An ex parte order of oourt, suoh as hereinbefore described, is not such “ title ” as will enable the party who obtained it to plead the prescription of ten years under eolor of tille against an attack of creditors of the deoeased.</p>

Iiigldor, J.. 1. “ One who contracts with what he acknowledges to he and treats as a corporation, inour- ' ring obligations in its favor, is estopped from denying its corporate existence, particularly when the obligations are sought to bo enforced.” Latolais, Administratrix, vs. Citizens’ Bank of Louisiana. 2. “ Although a corporation had expired by limitation, and judgment of forfeiture of charter had also been pronounced against it on behalf of the State, yet, when, from…

A PPEAL from the Fourth District Court for the Parish of Orleans. Houston, J. 1. A degree of mental derangement, or imbecility of mind, that induces the belief that the party was incapable of fully comprehending the effect and consequences of his acts; or that he is so weak as to be almost an instrument in the hands of the person seeking to obtain the advantage, will avoid a sale. Baldwin vs. Dunton, 40 Illinois Rep. 192. 2.

Tissot, J. 1. The defendant having proposed, and the plaintiff having assented to the renewal of cortain bonds held by him, on certain terms and conditions, the condition, not happening within the time limited, is considered as having failed. C. C. 2033; Yeatman vs. Brad well, 1 An; 424. 2.

<p>Ia a contract for the delivery of coal l>y ono of the contracting parties to the other, within a given time, and the contract is silent as to the quantity, parol evidence is admissible to show the real intention of the parties in this respect and to explain its meaning.</p>

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

<p>The purchaser at a publio sale Is entitled to demand an unencumbered title before being compelled to comply with the terms of the adjudication.</p> <p>A mortgage describing the property hypothecated as “un vasto terrain k l'encoignure deq rues Orleans et Bourbon ” will not be hold invalid for want of sufficient, description of the “ nature and situation " of the thing, at the instance of one who has not been misled thereby. , !</p> <p>A mortgage made by a mortgagor alone for the security of bonds to be negotiated; is not ab initio invalid for want of a concurring mortgagee. It stands as a valid unilateral contract, but remaining suspended and imperfect until the hondeare issued and negotiated, when the raortgago takes effect, in favor of the holders of the bonds, whose acceptance of the mortgage is sufficiently evidenced by the acceptance of the bonds secured thereby,</p>

<p>“Warrants issued in favor of the University of Louisiana, of the Agricultural and Mechanical College, and of the University for the education of persons of color, under legislative appropriations made in obedience to Articles 230 and 231 of the Constitution, are entitled to be paid by preference over all other warrautrt drawn on the General Fund, with the exception of warrants issued in favor of constitutional officers whose salaries, are fixed by the Constitution, the latter having priority over ail other warrants drawn on said fund.</p>

Lazarus, J. t. The question of title as between the City and Donovan’s heirs is settled in Municipality No. % for opening Boflignac street. 7 An. 76. That case is res adjudicata. 2. That case was one for widening the street; the right to recover the value of the batture then formed in front of Donovan’s lot, with subsequent accretions, in case the City needed it for widening the street-, was recognized and reserved. 3.

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

<p>APPEAL from the Civil District Court for the Parish of Orleans. Mightoi'j J.</p> <p>1. A dooision of Ibis Court, settling the nature and extent of liability of persons as sureties on a bond sued on, is conclusive as between tbe parties to tbe auit. Ledoux vs Durrive, 10 An. p. 7.</p> <p>2. In a subsequent suit between alleged oo-sureties for “contribution,” such decision, though, not technically Laving the force of ros judicata, determines tbe rights of tbe parties and is oonoluslvo as to all matters decided therein.</p> <p>3. On an exooption of no cause of action, all documents annexed to the petition form part of it»</p> <p>4. A bond whioh, as between tbe sureties, expresses no joint or solidary obligations as among themselves is a several obligation, with no greater foroo than if eaob undertaking were evidenced. by a separate and distinct writing. The obligation to “ contribute,” as between tbe different persons or sureties, does not therefore exist, and tbe exception of no oanse of action disclosed should ho sustained in a suit by one of them against another, Teutonia Bank vs. Wagner et alM 33 An. 732.</p>

- , . Tissot, J. Plaintiff claims to have certain windows, shutters, etc., in the house she purchased from defendant, and which defendant had caused to bo closed and nailed up after the sale, opened, and her right to the use of the same decreed; and also that certain scrceus erected by defendant opposite to said windows be removed, and for damages, and for the removal of certain fixtures over the dividing line, etc. 1.

<p>The debt sued for in this case being for the current expenses of the Municipal Corporation, and payable out of the current revenues of the several years in which it was contracted, does not fall within the restrictive operation of Section 2448 of the .Revised Statutes.</p>

Delong, J. 1» In felonies, those who are present, aiding, abetting and assisting in their commission, are principals, and liable to punishment as such. 34 An. 525. S. The discharge of the jury on failing to agree rests largely in the discretion of the Court. 7 An. 520.

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

<p>APPEAL from the Eighth District Court, Parish of East Carroll. * Felony, J.</p>

<p>The alleged value of the property in dispute, oontained in a supplemental petition filed by plaintiff, will be the teat of the amount in disputo in the controversy, even when a larger amount had been alleged in tbe original petition.</p> <p>In oases arising sinoe tbe organization of the present Courts of Appeals, the Supreme Court has no authority to transfer to such tribunals oases which are not of a sulfioieut amount to vest jurisdiction in this Court.</p>

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

<p>Where the allegations of neither party disclose that the sum in dispute exceeds one thousand dollars exclusive of interest, the Court "will dismiss the appeal ex propria motu.</p>

John the Baptist. Hahn, J. Railway companies are liable for injuries done to cattle on tlioir traok, where the injury could have been prevented by the use of ordinary care (Lacey’s Digest of Railway Decisions, par. 24, p. 345) and that, although the animals were wrongfully on the track. Ib. par. 26. There is a prima facie case of negligence made out against the railroad when the animals were pasturing on plaintiff’s own land.

<p>Examination of the differences between interlocutory and final judgments.</p> <p>Oral testimony is inadmissible between the parties to a written contract to show simulation. This oau be done only by a counter letter, or written evidence amouutiug thereto. Conversations or understandings anterior to the dateof the instrument attacked are presumed to be included in it. The rule applies to all written acts, whether they relate to immovables or to movables. The unbending jurisprudence of this State does not allow a party to vary or destroy his own voluntary declarations or written agreements by anything Bhort of written evidence.</p> <p>The rule is not binding on third parties. Oral testimony may be admissible, however, between the parties to prove a new and subsequent agreement as regards some part of the previous one.</p> <p>The oral testimony received to show simulation of an act of dissolution of a partnership and a sale by one partner of his interest therein to another should have been rqjected-</p>

<p>APPEAL from the Eighth District Court, Parish of East Carroll. J. W. Montgomery, Judge ad hoe.</p>

<p>A suspensive appeal lies from an interlocutory order permitting a plaintiff to bond seques* tered property. Such bondiDg may cause irreparable injury.</p> <p>Such appeal can be sought by an intervener, in whose possession the property was when sequestered.</p> <p>A mandamus lies to compel the granting of such anVppoal.</p>

Litigants who do not produce the best evidence under their control will be presumed to do oo because suoh evidence is unfavorable. Cockerel vs. Smith, 1 An. 3 j 1 An. 346 j Winston vs. Prevost, 6 An. 166. When sned for damages, for sale of A'a property under process against B, the defendant caw set up that the transfer from B to A was fraudulent, and is not restricted simply to showing that it was simulated. Fisher vs. Moore, 13 R. 95} New Orleans Th. Ins.

<p>In a suit against a defaulting Parish Treasurer and his sureties tor funds embezzled by him, the sureties cannot set up as a defense the nullity of the Treasurer’s bond, predicated on. the failure of the members of the Police Jury who elected him to have taken the oath required by law within the prescribed time. That question cannot be raised in this collateral manner,</p>

<p>The failtn e of the City to pay cash each month for a contractor's work justifies him in abandoning his contract when such payment is expressly stipulated in it.</p> <p>Expected profits from a contract to be realised in the tature, which are dependent upon contingencies, cannot be included in a judgment for damages for its violation, and especially when both allegation and proof are general and'vague.</p> <p>A judgment against the City of Now Orleans for the value of services rendered under a contract must be paid out of the revenues.of. .the year for which the contraot was made.</p>

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

<p>The goods of a third person found in a leased store, where they had been consigned by their owner to the lessee, to be sold by the latter at a price fixed by the owner, with the understanding and agreement that the lessee or consignee could keep, as his compensation, all that he could obtain above the inventoried prices, and that no rent or storage was due by the owner, will be affected by the lessor’s privilege, and are liable to the latter’s seizure for unpaid rent due by the lessor.</p>

<p>Co-lieirs have the light to sue for a partition by sale where the property held in common cannot be conveniently divided in kind, although the shares of other heirs therein be burdened with mortgages.</p> <p>A judgment directing such partition cannot be attacked collaterally. If it was rendered on insufficient evidence or in disregard of the forms prescribed by law, it can only be revised on appeal. If it was obtained by ill practices, not patent on the record, the remedy is by an action in nullity. ’</p> <p>An answer made by the defendants, in which they neither deny nor admit any of the allegations of the petition, but submit the case to the determiuation, joins issue as effectually as a judgmeut by defauLt could have done. Such an answer and such judgment throw upon the plaintiff the burden of establishing the allegations'of the petition as fully as if a special denial of each had been filed.</p> <p>A judgment rendered on an issue formed by such answer, is not a eonsent judgment. Where rendered by a court, after hearing evidence and an opposing intervenor, it must be viewed as the result of the exercise of a judicial discretion and as a decision of the ‘issues presented.</p> <p>In partition suits the validity of the adjudication does not depend upon a proportion to the appraisement. The property cau be legally adjudicated regardless of the valuation placed upon it, even when minors are co-owners.</p> <p>Co licit s have a right to as'semble and consult touching the propriety of purchasing or not the property to be sold for a partition. In case of adjudication to them, they are authorized t to retain the price Until their rights in the succession have been liquidated. They have the right of fixing for their respective shares such terms as they may deem most advantageous.</p> <p>The fact, if it exist, that revenues or profits were yielded by the property previous to the adjudication, and are unaccounted for; does not affect the validity of the sale.</p> <p>In partition suit between co-heirs, the mortgages affecting the share of any one of them are referred to the proceeds, and either of them can, by rule against the mortgage creditors, have them so relegated and the inscriptions thereof erased from the mortgage book. Such creditors have the right to contest the validity of the sale in such cases.</p> <p>This case is differentiated from that in Life Association vs. Hall, 33 An. 53.</p> <p>A distribution proposed in the lower court and not disputed on appeal will not be disturbed.</p>

<p>The deputies designated by the Criminal Sheriff of the Parish of Orleans for duty at the •' Parish Prison, and as such entrusted with the legal custody of the prisoners therein confined, are not employees of the Parish Prison within the meaning of Act No. 64 of the legislature of 1882, which requires that the salaries of such employees be paid by the City of New Orleans. These deputies must look to the fund created by Article 146 of the Constitution for the payment of their salaries. Courts of justice cannot overlook a clear and unambiguous constitutional provision for the purpose of ascertaining that the framers of the Constitution intended to make a different provision on the same subject matter, by an investigation into the journal of the convention.</p> <p>The instrument published under the authority of the State, as the Constitution, is the organic law which all courts must expound, support and obey.</p>

<p>The refusal of the Judge to deliver his charge to the jury in writing upon the seasonable request of the party, as required by statute, is error, and justifies the avoidance of the sentence and judgment.</p>

<p>A petition must contain allegations sufficient, if true, to entitle the party to the relief prayed.</p> <p>Appiopriations of money cannot now he made by the legislature for a longer time than two years. The appropriation of 1876 Sbv pensions continued two years after the Constitution of 1879 took effect, hut not longer.</p>

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

<p>The settled praotioe is to consider the surety to the injunction bond a party to the appeal without mention of.liira in the motion for appeal if his principal be appellant, and without citing him if the appeal is by petition, his principal being appellee.</p> <p>Where the government, in the Act of Congress confirming a title to land, makes special reservation of the rights of all parties then claiming an interest therein, such parties are remitted to the State courts for the litigation of (heir claims.</p> <p>The holder of a patent with such reservation will be considered as plaintiff in a petitory action against adverse claimants, whatever be the form in which he makes the attack, and must therefore recover on the strength of his own title.</p> <p>A proceeding by seizure and sale of land in the possession of third parties for more than thirty years, cannot have the effect of lowing them to assume the attitude of plaintiffs in a petitory action. Their position is that of defendants in such a suit. "Cintila better title be shown and reooguized contradictorily with them, they oan securely rely on their possession.</p>

<p>Where, in a criminal case, no objection is made by the accused or his counsel to the charge delivered in wiiting when given, and no bill of exceptions taken thereto, and there is no proper assignment of errors, and complaint is for the first time made in tjhis.Court.with, respect thereto in the brief of counsel, the matter will not be reviewed by this Court, nor the sentence disturbed.</p>

<p>AppEAL from the First City Court of New Orleans. Skinner, J.</p>

<p>Property acquired by an heir at a partition sale of bis ancestor’s succession, if paid for by bis heritable share thereof, is and remains an inheritance, and the mode of acquisition is not a sale in the ordinary or legal sense of that word.</p> <p>The resolutory condition which is implied in commutative contracts, and which inheres specially to a sale, does not attach to such modo of acquiring property.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. All exemptions from, and*commutations of taxes oh property not “actually used for church, school, or charitable pulposos,” are illegal, null and void. Art. 118, Constitution of 1868; 28 An. 498 and 756; 31 An. 447.

Rigldor, J. Any purely arbitrary or fanciful name may be adopted as a trade-mark 5 it must not be a woidin common use. “Septoline” is, therefore, a proper and legal trade-mark. Inauy ranee Oil Tank Co. vs. Scott, 33 An. 951; Cooley on Torts, p. 362; Brown, Trade-Marks, Secs. 236, 274; Manufacturing Co. vs. Trainer, 101 IT. S. 53. The trade-mark protects the merchant or seller of an article. 6 Otto, 245 5 24 An. 297; Brown on Trade-Marks, Secs. 38-62.

<p>APPEAL from the Tenth District Court, Parish of Red River. Logan, J.</p> <p>A sale by an administrator tx contractu is void. 26 An. 660; 7 N. S. 113; 2 La. 328.</p> <p>Sales of succession property under administration must be preceded by proper appraisement, order and public advertisement. 2 La. 328; 13 An. 548; 20 An. 233; C. C. Arts. 1051, . 1057 to 1059, 1167.</p> <p>A sale of minor’s property by tutor, in a private agreement, is absolutely void. 4 La. 269.,</p> <p>Action of rescission begins on the actual coming of age of minor, and is only prescribed in ten years. C. C. 2221.</p> <p>Whenever an administration is begun, as when there are minors who can only accept with benefit of inventory o,r majors do accept in like manner, or there are debts, it must he fully closed and settled, and no major heir or tutor for minor can stop the administration or affect it; and that a tutor for a minor is without power to ratify an illegal alienation made by the administrator, and can do no act to affect the minor’s interest in the residuum, which begins on a final liquidation and settlement. C. C. 1058; 7 Boh. 24; 10 B. 457; 4 An. 223 ; 5 An. 304; 2 Hen. Dig. p. 1462, Ho. 10, and authorities; C. C. Arts. 946 ; 1033, 1073; 27 An. 352; 29 An. 502; Blake vs. Kearny, 30 An. 389.</p> <p>A decree setting aside a null agreement enures to the benefit of all interested.</p> <p>A necessity must exist for a sale of succession property by an administrator, and he is not authorized to provoke such sale to effect a partition among heirs. 22 An. 309 ; 20 An. 355.</p> <p>An unfaithful administrator should be removed. 28 An. 784.</p>

Lasarus, J. The provisions of Act No. 5 of the Extra Session of the legislature of 1870, restricting the issue of the writ of fieri facias against the City of New Orleans to enforce the payment of any judgment for money against it, cannot be constitutionally extended to the case of a contract judgment, or a judgment enforcing an obligation contracted by the City previous to the passage of the said Act. Cooley’s Const.

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

<p>APPEAL from the Eighteenth District Court, Parish of St. Tammany. Thompson, J.</p>

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

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

<p>i PPEAL from, the Civil District Court for the Parish of Orleans. £1 Monroe, J.</p>

Monroe, J. 1. Where property is bought in the name of the wife, and the notarial act contains her explicit declaration that it was bought and paid for with her paraphernal funds, the husband, being a party to the act and assenting to the declaration, his heirs are estopped from denying it. Only forced heirs can contest the truth of the declaration to the extent of their legitime, when the act is intended to deprive them of it.

<p>The heirs of a deceased testator sue to recover his estate from the universal legatees, alleging that the last will of the deceased was null and void for certain causes of nullity which are set forth in the petition.</p> <p>Judgment is rendered decreeing the will valid, and the title of the'universal legatees, or of1 '• those holding under them, to the estate sued for, a good one, the latter having been made parties to the suit. ,</p> <p>After this decision another suit is instituted by the legal heirs against the executors alone, propounding the same causes of nullity as before, and praying that the order probating ‘ the will be annulled and set aside, and the will declared null and void. The owner of the estate, by title derived from the universal legatees, who was a defendant in the former suit, intervenes in this last suit and resists, the pretensions of the plaintiffs on the same grounds as before.</p> <p>Held, that the judgment in the first suit could be pleaded as res adjudicate to the demands of » the plaintiffs in the last or preseut one, ‘and that this plea was properly sustained.</p>

Lazaras, J. The demand foc^ihe* partition of real property held in community between the mother and her childreapothe father having made a will disposing of his share in the community, carries with it as an incident her accountability for rents and revenues and the settlement of accounts arising from, the joint ownership. King vs. 'Wartelle, 14 An. 750 ; G-osselin vs. Abatt, 3 L. 549; Dickson vs. Dickson, 33 An. 1374; Aitken vs. Ogilvie, 12 An. 354.

liightor, J. 1. The proposition as well as the assent to a contract may be express or implied. R. C. C. 1811; 19 La. 286. 2. Held: that these circumstances have entered into the contract; and where the actual breakage is not beyond what is usual, the vendee cannot refuse to receive the property and rescind the contract. 1 McGloin, 193. 5.

Bightor, J. 1. The effect of decree of confiscation is to divest alL interest of the confiscate©; and from, that moment the life estate is vested in the government and the ownership in the… Held: that the fee simple vests in the presumptive heir of confiscatee from the date of judgment of condemnation. 2.

<p>APPEAL from the Civil District Court for tjie Parish of Orleans. Tissot, J. ' ' '</p> <p>1. The absence contemplated by Article 46, C. C., vrhich resqlts.in the forfeiture of domicile, is an absence without intention to return. This Article jnust lie construed with C. C. 42, 42;’- 1 Kent, 77, 346, (12th ed.); '2 Ibid.’ 431, notii (b) ; Acts 2855, p’. 331; &3 An. 911; 30 An. 498; 7 An. 408; 13 D. 298; 2 An. 950; 15 An. 638. , . <■</p> <p>2. Under-tutor is competent to represent tutor, under power of attorney in latter's temporary absence; “ competency is the rule—incapacity the exception—and the exception must be drawn from the law itself.” Ko law declares him incompetent and the trust does not necessarily conflict with, ox its acceptance vacate the office of under-tutor. Dennen’s Digest, 853; C. C. 25, 275 et seq.; Ibf314j- 10 An. 648; JR.’S 3828; -Acts 1847, p. 115; 1 Wait, Actions and Defenses, 214; 9 An. 355. .</p> <p>3» When a family meeting duly assembled advises a sale of a minor’s property, and its reasons for so doing are stated in the process, the order homologating the deliberations and decreeing a sale is properly rendered; in this case proof aliunde is offered, which es* tablishes its correctness. Vacant and inaccessible ground belonging to a succession, which brings no revenue to and is a burden upon the minors’ estate, may legally be sold, if such sale be found advantageous to them. C. C. 339; G. C. 280, 291, 339, 340; 16 An. 422; 11 R. 509 ; 2 R. 418.</p> <p>1. There cau be no valid or legal alienation of the property of minors unless all the formalities of law are strictly complied with.</p> <p>2. The petition for a family meeting, to advise and deliberate upon the expediency of a sale of minors’ property, should be died by one qualified to act, and within the jurisdiction of the court. The under-tutor should be present at the family meeting, and either oppose or approve their deliberations. 10 L. 319; R. C. G- 276; 4 L. 383 ; 2 An. 941; 23 An. 167.</p> <p>3. In every succession where there are minors there must be a tutor and an under-tutor. If one could act as agent and representative of the other, there would be no necessity for these two distinct and separate offices under the law. The same person cannot be both buyer and seller. 11 M. 299 ; 4 ST. S. 267; 8 N. S. 165; 9 L. 355, 48; 14 L. Ill; 15 L. 394; 18 L. 351; 19 L. 431; 4R.205; 6R.320 ; 2An.782 ; 3 An. 533, 582.</p> <p>4. The utmost good faith required of an agent cannot take position where the principal’s interest and his own necessarily clash. 13 An. 18; 2 An. 299; 5 L. 340.</p> <p>5. The under-tutor cannot act in the dual capacity of agent and attorney in fact of the tutrix and as under-tutor, there being a clash of interests.</p> <p>6. A voluntary absence of two years from the State forfeits a domicile within the State. R. C. C. 46; 32 An. 681, 687; 9 An. 167.</p> <p>7. A tutor temporarily absent from the State must in all acts of tutorship be represented by his or her agent. R. G. C. 314.</p>

<p>la a suit for damages because of a criminal prosecution, where the only witness for the plaintiff is himself, who admits there has been no loss of his business, exhibits an insignificant expenditure, and displays insensibility, a verdict for a small sum will be considered sufficiently punitory of the defendant.</p>

Tissot, J. 2. The surviving partner is entitled to the appointment of liquidator of tbe affairs of the late partnership, unless he is shown to be incompetent or dishonest. Story on Partnership, See. 344. 2. It is the duty of a liquidator or administrator to dispose, at the earliest practicable moment, of such portion» of the property committed to his charge a» may be perishable or expensive to keep. C. C. 2162, 1163. 3.

Halm, J. 1. The Parish of Jefferson having two Police Juries, the Police Jury for the Right Bankwas without lawful authority to accept a donation of immovables made to the parish. O. C. 1549, 1540; Acts of 1858, p. 103 ; O. C. 1537. 2. The seat of justice for the Parish of Jefferson having been fixed by the parish authorities in 1874, the law positively prohibited its removal thereafter: hence the donation in question was necessarily inoperative. Rev. Stats.

<p>A. mandamus does not lie to compel an attorney appointed Judge ad hoe to try a cause in ■which the District Judge has recused himself, when the question of the validity of the recusation, which involves that of the legality of the appointment of the Judge ad hoc, is pending, on a suspensive appeal, before the appellate court.</p>

<p>The fact that a grand jury has found a hill for a capital offense is of itself a sufficient presumption of guilt to preclude any inquiry into the merits of the prisoner’s case npon a habeas corpus, or upon an application to he hailed.</p> <p>The constitutional provision that all persons shall he hailahle, nnless for capital offences, where th© proof ie evident, or fcho presumption great, is common to every Constitution this State has had, and its nniform judicial interpretation has been that the finding of a hill for a capital offence creates a presumption of guilt, sufficiently strong to preclude further inquiry' into the merits of the prisoner’s defence on an application for hail, and this presumption extends to all purposes oxcept to that of a fair and impartial trial before a petit jury.</p>

Monroe, J. ITo evidence admissible to prove title in defendant under general issue. Draper vs. Richards, 20 An. 306; Well vs. St. Dizier, 9 An. 120. Defendant who, though alleging title,, does not state its character or derivation, is considered as a mere trespasser, against whom plaintiff need only show an apparent title. 9 Rob». 215 ; 10 R. 510. From a possessor without title a Joint owner may recover the whole-undivided property. $ La. 134; 6 An. 232; 31 An. 74.

haearus, J. 1. The manner in which defendant received and detained at Mobile the property in question gave rise to an implied contract between plaintiff and defendant, that defendant would, as a common carrier, transport that property to LTew Orleans and there deliver it in good condition to plaintiff’s consignee. Bank of Kentucky vs. Express Co., 93 TX. S. 174. 2.

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

Goode, J. 1. Private counsel may appear in court and assist the State officer in the prosecution of a case. 23 An. 774. 2. The jury commission is not restricted to any one method of obtaining names of jurors. If their selection is made from the citizens and bona fide residents of the parish where the court is holden, the selection and action are valid. 3.

Lueenberg, J. 1. Am allegation that defendant did commit an assault, etc., is an allegation of a conclusion of law. State vs. Mnrráy et alM 41 Iowa, p. 531; 1 Bish. Cr. Pro., 3d ed., Sec 331. 2. “It is not enough to state a mere conclusion of law.” Wh. Pro. of Ind. and Pleas, 4th ed., p. 23; TJ. S. vs. Cruikshank, 92 U. S. 554; State vs. Ricord, 56 Ind. 107; 1 Roll. R. 79; 2 Hawk, c. 25, S. 59. 3 “Time and place must be attached to every material fact averred. 1 Whe.

Houston, J. An attachment sued out on paragraphs 4 and 5 of Art. 240. C. P., should be maintained, when defendants, who are sued upon an undisputed debt, are on the eve of disposing of all their property, and are paying by preference certain of their creditors. 24 An. 258.

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

4 PPEAL from the.Civil District Court for the Parish of Orleans. Itiylitor, J. 1. A married woman cannot mortgage her property for a loan made in her name, but in reality for her husband. 2. The burden of proof is on the creditors to show that the contract enured to the benefit of the wife, unless they exhibit strict compliance with C. C. Arts. 126-128. 3. The Second District Court had no other but probate jurisdiction.

Tissot, J. 1. The general rule of law iu all civil cases, is that the burden of proof is upon plaintiff, who must make his case not only probable but certain. Hennen Dig. Evidence, xiii (a), 2To. 1. 2. A suit involving the question of marriage vel non, is no exception to this rule. 15 An. 410 ’ 20 An. 98; 15 An. 46. 3. Marriage in Louisiana is considered in no other light than as a civil coutract, which must he established as conclusively as any other fact.

<p>The Articles of the Constitution defining the original jurisdiction of inferior courts are not subject to the rigorous construction applicable to those defining the appellate jurisdiction of this Court, but must be construed with reference to Art. 11 of the Constitution, which guarantees adequate remedy in the courts for all legal rights. Hence, Articles 829 to 836, C.P., granting, among other things, the remedy of mandamus to compel “corporations established by law to make elections required by their charter,” will not be held to be repealed by the Constitution, because the rights enforced thereby are not susceptible of pecuniary valuation; since the effect of such construction would be to leave the citizen without legal remedy to prevent violations of his legal right to vote.</p> <p>Refusal to grant delay for filing application for new trial, when sufficient time has been allowed, does not constitute such nullity of proceeding as to vitiate them.</p>

<p>They who have lived together in open concubinage are respectively incapable of making to each other a donation, either inter vivos or mortis causa, of movables exceeding one-tenth in value of their estate. A will, by which the whole estate of the concubine is given to her paramour, will be reduced, on application of her legitimate son, to one-tenth.</p>

Bightor, J. 1. The general denial and plea'of confession and avoidance are inconsistent defenses. 23 An. 109, 239 ? 31 An. 84; G. P. 419, 420. 2. The charter of a railroad company is a special law. It is a private statute requiring plea and proof to be noticed judicially. 33 An. 956. 3.

4 PPEAL from the Civil District Court for the Parish of Orleans. ii BigMor, J. 1. The means and instruments whereby a government conducts its affairs, or performs its functions, are not objects of taxation for and on behalf of such government. Cooley, Taxation, pp. 130, 131; Burroughs, Taxation, p. 505; Cooley, Const. Lim. p. 482. 2. They are not within the grasp of the intent of laws designating the objects of taxation. Supra, Ibid. Cooley, Taxation, 13Í ; 17 Wall. 329. 3.

Bightor, J. 1. The prejudice resulting from numerous decisions under Article 118 of tbe Constitution of 1868 must be removed before the new and… Held: under the proviso, which is in these words: “ Provided, the property so exempted be not used or leased for purposes of private or corporate profit or income”—that the property of religious, charitable or educational institutions, which is leased for revenue, without regard to the use made of such revenue, is excepted from the…

Tissot, J. 1. When one of the heir3 is a minor, the heirs of age cannot be put in possession, unconditionally, of their shares or portion of the estate, until a partition is effected. C. C. 1047; 30 An. 389; 30 An. 807; 3 An. 502; Succession Therese Baumgarden, 35 An., K. R. S. A succession is a unity. It cannot exist as to one heir, and be extinct as to another heir.

Of Orleans. Monroe, J. Sec. 8 of Act No. 73, of 1872; Sec. 17 of Act No. 96, Extra Session 1877, and Sec. 18 of Act No. 9, Extra Session 1878, are full and ample authority for the assessment and recovery of the tax for the City of New Orleans for 1878, on the capital stock of the defendant Company, which was omitted from the assessment rolls of 1877.

Blaelcman, J. 1. It is admitted that the defendant killed all the stock mentioned in the petition. 2. Title to real estate cannot be established by parol testimony, neither can the right of way to a railway company be proved by that species of evidence. Right of way passes the fee in the soil, not merely its use. 3. The license of the owner of the soil permitting a railway company to grade the track, cannot he construed as a permission to run its engines and trains.

Monroe, J. Every act, whatever, of man that causes damage to another obliges him, by whose fault it happened, to repair it 5 the right of this action shall survive, in case of death, in favor of the minor children and widow of the deceased, or either of them, and in default of these in favor of the surviving father and mother, or either of them.

.. The olographic will of John Burnside, written in April, 1857, and established after his death in 1881, was executed, that he might “ dispose of all his worldly estate,” by that, “his last will and testament,” after his death. He had no living ascendants nor descendants, nor kindred, to he objects of care.

Lazarus, J. The writ of attachment, in case of non-residents, is not merely a conservatory writ, but is the basis and foundation of jurisdiction, which cannot be acquired except under the very letter of the law, allowing the process. 10 An. 324; 18 L. 367. Defendants have every presumption in their favor. 14 L. 503-j 11 An. 622,- 15 An. 709.

<p>Under an indictment for shooting with intent to murder, a verdict of “inflicting with a dangerous weapon a wound less than mayhem,” is fatally variant.</p> <p>The two offenses are separate and distinct crimes which could not be joined in the same count' of an indictment.</p> <p>The offense found is not necessarily embraced within that charged.</p>

<p>A mandamus does noi lie to the Court of Appeals,‘to'compel it to take jurisdiction of a caso which it has dismissed, where it appears that the amount claimed or the matter in dispute exceeds one thousand dollars.</p> <p>It is indifferent whether the demand be made in a direct suit, or in an opposition to an administrator’s account in the settlement of a succession, showing for actual distribution an . amount less than $1,000,</p>

<p>APPLICATION for Prohibition.</p>

<p>Where a Judge, after overruling an exception to his jurisdiction ratione materiaft renders a judgment on the merits of the case without passing on that portion of the demand which it was claimed was not within his jurisdiction, this is virtually sustaining the exception, and the defendant has no occasion to complain.</p> <p>On application for a certiorari and for a prohibition, the proceedings will not he annulled or restrained.</p>

<p>ÁEPEAL from the Ninth District Court, Parish of Concordia.’ Eough, J.</p>

<p>APPEAL from tile Twelfth District Court; Parish of Rapides. BlackTnan, J.</p>

PPEAL from tlie Civil District Court for tlie Parish of Monroe, J. The president of a bank who, in suing upon a note, avers that the paper sued on belongs to the bank, is bound individually by the averment and cannot thereafter gainsay it. Farrar vs. Stacey, 2 An. 211; Taylor vs Normand, Adm’r, 12 Rob. 241 ? Osborn vs. Legras, 29 An. 293; Denton vs. Erwin, 2 An. 22; Gridley vs. Conner, 4 An. 416; Greenleaf on Evidence, §22.

<p>APPLICATION for Mandamus.</p>

<p>Persons engaged in rice milling are manufacturera, and as sucli are exempt from license under Article 206 of the Constitution.</p>

<p>An act in which a party stipulates to make a donation inter vivos to a married woman, of a part interest of the donor's claim to lands' left by his and the donee’s common ancestor, on condition that the donee’s husband shall undertake, at his exclusive trouble and expense, the recovery of all the lands claimed under the common ancestor, with the stipulation that the donee will he put in possession as soon as the donor is recognized as the owner of the lands, is really and in law a contract of mandate under which the husband agrees to take the steps necessary to the recovery of the lands, accepting as his compensation in case of success, a part interest in said lands to enure to the benefit of his wife.</p> <p>His wife and her heirs cannot rooover from the so called donor, if her husband failed to execute the suspensive condition of his contract. The nullity of such contract, as a consequence of the failure of the suspensive condition, can be urged as a means of defense by • the donor or his heirs.</p>

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

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

<p>Tlie adjudicatee of property at judicial sale, being entitled to pay but once to receive a clean unincumbered title, when harrassed by conflicting claim» of mortgage and other rights, may call the various claimants to interplead and settle their claims contradictorily with each other, to the end that he may pay advisedly to his secure exoneration.</p> <p>Under the peculiar constitution and rules of the Civil District Court for the Parish of Orleans, such a proceeding, having all other elements of a direct action, may be filed in the suit in - which the adjudication was made.</p> <p>The erroneous styling of such a petition as an. intervention will not invalidate it, if it contains the essentials of a proper and lawful action.</p>

<p>A PPEAL from the Twelfth District Court, Parish of Grant. Bar-, XX bm, J.</p>

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

<p>The trial Judge has the Tight to take judicial notice of the existence before his court of á prosecution for an infamous crime against one called on to serve as a juror, and is authorized to exclude him from service.</p> <p>Wuere a charge asked to be given to the jury is couched in terms calculated to tell them which of the wicnesses heard they should in preference believe, and the charge requires qualification, limitation or explanation, the refusal of the Judge to give it will not be disturbed.</p> <p>G-iviug such cliargo would be to trench on the facts, which the Judge is forbidden from doing. The appreciation of facts and of the credibility of witnesses is exclusively within the province of the jury.</p> <p>Where the ruliug of the court, refusing a now trial, although it he of record and accompanied by the evidence heard, is not excepted to, a bill of exception taken to the admission of testimony, on the trial of the motion, will not be considered by this Court.</p>

Boman, J. 1. It is not permissible for counsel to assign as errors, patent upon the face of the record, alleged errors in the oharge of the Judge when there are no errors of law apparent, and no objection made to the charge at the time it was delivered. 11 An. 192; 22 An. 456. 2. The Judge in his charge to the jury is not restricted to the language of the special charges requested by counsel; or to give the same to the jury without explanation or elucidation. 3.

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

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

<p>The decree of a court accepting a surrender and ordering a meeting of creditors, cannot be attacked collaterally by tbe party who provoked it, in the absence of nullities apparent on the face of the proceedings.</p> <p>The appointment of a syndic, who has qualified, is subject to the same rule.</p> <p>Proceeds in the hands of a sheriff, resulting from the sale of property of the insolvent, form part of his assets, and must be turned over to the syndic of his creditors tor distribution among them in concursu.</p> <p>A judgment directing the delivery of such proceeds for such distribution does not strip the the suing creditor of his rights, if any, thereto, which he will be at liberty to assert when an account shall be presented for a repartition of funds.</p>

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

Tissot, J. 1. Any number of causes of action may be cumulated in a single suit, provided they are not contradictory or inconsistent. 2. Held: Those who commit torts, or assist or encourage others in so doing, are bound in solido for the damage occasioned by the trespass; the release of one of several debtors in solido, in an obligation arising from a trespass, operates the extinguishment of the debt as to tbe remaining co-debtors, unless the creditor has expressly reserved…

<p>A graduate in medicine from the University of this State is not required to make and record an affidavit of having received his degtee in order to enable him to sue for his fees. The statute upon that subject applies only to those whoso diplomas are from other institutions ,</p> <p>The charges of a physician for services cannot be determined solely upon the basis of skill. The amount of the patient’s estate, and his consequent ability to pay, also enter into the calculation and influence it.</p>

Tissot, J. An injunction may issue to compel the doing of an act as well aa to restrain from doing an. act. 7 An. 443; 14 An. 281 j 2 N. S. 501; 18 An. 242; C. P. 296, 298. In all cases where the obligor is capable of performing the contract, the obligee has his option, either to sue for damages or to enforce the specific performance, and he may sue for damages already due, and for the specific performance in the future. C. 0.1926,1927.

<p>On an application for respite the usual order staying proceedings against person and property is lawful and competent.</p> <p>The eburt granting such order has power to enforce it, and to annul an d set aside acts done in violation thereof.</p> <p>The privileged creditors who, under Art. 3095 C. C., are excepted from the operation of respite proceedings, are those whose privileges result from the nature of their debts. It does not include privileges resulting merely from seizure. 24 An. 359.</p>

<p>An agent or debtor who is instructed by. bis principal or creditor to remit, without indicating any particular mode of remittance, and who does remit -in the customary mode, is not responsible further.</p> <p>If the same care, prudence, and judgment is exercised in purchasing a Bill of Exchange for a remittance, as a prudent business man uses in the conduct of his own affairs, the unexpected failure of the banting house drawing the Bill, before it can be presented, will entail no responsibility on the purchaser of the Bill.</p> <p>The payee of a bill is estopped from bolding its agents or debtor, who purchased it under instructions, responsible, after he has elected to treat the bill as his own and received a dividend upon it.</p>

Lazarus, J. 1.The wife who has left to her husband the administration of her paraphernal property, may afterwards withdraw it from him, and'has a right of action against her husband for the restitution of her paraphernal effects and other fruits.

<p>APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Hahn, J.</p>

<p>On a rule against a surety on a “bond for a suspensive appeal from a money judgment, which was affirmed, the exigencies of the law are satisfied where the writ issued is seasonably returned nulla bona, after demand from the parties and their failure to point out property.</p> <p>"VYhere the defendant in rule avers that the defendant in writ owns real property in excess of plaintiff’s judgment, subject to execution and notincumbored to his prejudice, which was pointed out; the burden is on him to prove the existence of such property, the title of defendant to it; its non-alienation and that if*seized, it will realize or net an amount sufficient to pay the judgment in whole, or reasonably in part.</p> <p>A judgment creditor is not bound'to seize burdened property pointed out, when the attempt to sell would only result in costs, before proceeding against the surety on the appeal bond.</p> <p>The decision on appeal of the rizle against the security cannot bo retarded on the statement made in the brief, that since the judgment below against the security the plaintiff has levied on property of the defendant, the sale of whioh was enjoined and the matter being-on appeal. The appellate court is not bound to wait tin til the determination of such suit, stillless until after it is ascertained whether the writ has or not realized or netted anything.</p>

<p>An action lies to annul a money judgment against a surety on a sheriff’s bond, when it is proved that since the joining ofissue, the surety bad paid, under judicial compulsion, the fall amount for which he had signed the bond. Maroy vs. Praeger, 34 An. 54, affirmed.</p>

James. Oheevers, J. An appeal should not be dismissed because documents merely offered, but not filed, have not been transcribed in the record. 32 An. 1076 ; 2 L. 165; 11 An. 72. A clerk has no right to include documents in the record, which have not been produced and filed. If be does include them, the Court cannot consider them. 32 An. 1076.

<p>Section 119, Revised Statutes, is a penal but nota criminal statute.</p> <p>An attorney-at-law falls within the category of persons named in Sec. 905 Rev. Stats., and is. sufficiently described in an indictment as an attorney.</p> <p>An attorney who lias wrongully used or disposed of money collected for his principal may-be convicted of embezzlement, even though he acknowledged its receipt.</p> <p>This Court will not review the ruling of the Judge on a motion for a new trial, on the ground of newly discovered evidence, in absence of a bill of exceptions bringing np the ruling and the evidence. 32 An. 842.</p>

<p>There exists no legislative authority for the assessment or levy of an income tax, under the existing revenue and assessment laws.</p>

Tissot, J. 3. The Judge should, in his order directing letters of tutorship to issue, appoint an under tutor to the minor. O. 0. 0. 300. 2. The homologation of proceedings of a family meeting, when the under tutor was not present to advise and recommend at the family meeting, would be a nullity and could not be the basis of a legal title. O. C. C. 302; Stafford vs. Villain, 10 La. 328; Comeau vs. Babin, 6 H. S. 454. 3.

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

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

<p>A. judgment rendered by a Circuit Court of Appeals in a case within its jurisdiction is final and cannot be reviewed by the Supreme Court.</p> <p>Hence, in such a ease, this Court will not interfere with the proceedings of the Circuit Court, when, in an appeal pending before it, the papers are destroyed by fire, and the Court sets aside the judgment appealed from aud remands the cause to the District Court to be tried de ■novo, with the view to reinstate the pleadings, the evidence, and other papers in the case. i</p> <p>The Supreme Court will decline to pass on the correctness of such a ruling.</p>

<p>Where an appellant fails to file the transcript on the return day, or within the legal delays thereafter, and his appeal is dismissed because such failure ie imputed to his fault, he cannot renew his appeal thereafter.</p> <p>The failure to seasonably file the record, without legal excuse, is considered as an abandon* ment of the appeal.</p>

Bar-bin, J. 1. Robbery is not prescribed by one year. R. S. § 2814. 2. The terms “against the pence and dignity of the St ite” and “against the peace and dignity of the same,” in an indictment, are equivalents, and may be used indiscriminately. 3. A confession of a co-dofendant may be used in evideno) against boih the accused, when evidence has gone to the jury that they had acted, in the perpetration of the crime, together. 4.

<p>An indictment for forgery containing the purport or tenor of the instrument said to bare been forged, and setting forth the words of such instrument, can be legally amended during the trial, by substituting the word oblige to the word charge at the conclusion thereof.</p> <p>The variance was not material and could not prejudice the defense.</p> <p>The correction was trivial and left the sound and sense substantially the same.</p>

Brigham, J. 1. It is not necessary that the vendee sign the deed. C. C. 1811 ; 4 An. 162 ; 23 An. 272. 2. A deed under private signature duly recorded without the affidavit of the subscribing witnesses, gives notice to third persons. Art. C. C. 2253 is merely directory. 9 An. 547 j 10 An. 502; 11 An. 531; 25 An. 111. 3. Contracts are binding, though the contracting parties signed the same without reading it. 22 An. 14; 30 An. 1157. 4.

<p>■When the ruling of the trial court striking from the record a plea of autrefois convict has been held to have been erroneous, we cannot consider the merits of the plea which have never been passed on below, but are compelled to reverse the judgment and remand the case to be proceeded with under the reinstated plea.</p>

District Court, Parish of Ouachita. Iliohardson, J. 1. After the delay granted in a vente a remere has elapsed, whether the act be considered as such or a common law mortgage, unless fraud or want of consideration or novation be shown, the vendee’s title is unassailable. Hearnan vs. Glades, 2D An.; W. R. Longue, 638. 2.

Brigham, J. An unliquidated claim may be urged by way of opposition to administrator’s account. 10 L. 358 ; 10 An. 224 ; 29 An. 493. Compensation can only be plead when defendant’s claim is as equally liquidated as plaintiff’s. 1 Hennen, p. 254, § 5.

<p>APPEAL from tlie Third District Court, Parish of Lincoln. S. X>. Pearce, Judge ad hoe.</p>

<p>Before a witness oan bo discredited on the ground of having made a contradictory statement to that made on the trial, such mode of discrediting cannot be resorted to, unless the proper foundation is first laid by ashing the witness whether he had made suoh state* jnont, giving the particulars of the time, place or ciroumstanoea under which it was made, ■Where this cannot be done, beoause the witness sought to be discredited is dead, the proof of suoh contradictory statement will not be admitted.</p>

<p>A mandamus does not lie to compel a Judge to render judgment, or to sign one which is ten* dered him by counsel, in accordance with the verdict of a jury, when there is a motion, for a new trial pending and undecided, and where the Judge proprio motu has quashed the verdict and reinstated the case to be tried anew.</p>

<p>The enumeration of the various works of public utility and advantage, for which corporations were authorized in Section 683, Revised Statutes, was exemplary and not exhaustive, and all similar and analogous enterprises were covered by the concluding words, “and generally all works of public utility and advantage.”</p> <p>The business of establishing a wharfboat and a steam elevator at the river bank of the port of Monroe, for the convenience of liver carriers and of all shippers and receivers of freight, and of carrying on, through such instrumentalities, a receiving, forwarding and storage business, falls within the purview of the law.</p> <p>The members of such a corporation are not liable to be sued, as individuals, for the corporate debts.</p>

Rich* ardson, J. On Motion to Dissolve. 1.Property of a non-resident debtor is not exempt from attachment because he has a place of business or a commercial domicile in this State. 10 An. 727. 2.When the defendants have, in various litigations with plaintiffs, alleged themselves and their firm to be non-residents, they will not he permitted to deny the truth of their allegations, which have been acted on by plaintiffs, in order to dissolve an attachment They are estopped…

<p>ApPEAL from the Third District Court, Parish of Union Graham, J.</p>

<p>Mandamus will issue to compel the granting of a suspensive appeal in a ease where the constitutionality or legality of a fine, forfeiture or penalty imposed by a municipal corporation is involved, although the pleading before the municipal authority may not have set forth the particular law or constitutional provision violated. The sufficiency of the defense will be adjudged on the appeal.</p>

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

<p>'When a minor is lawfully summoned by a sheriff to serve as a member of &-posse comitatus to aid in the arrest of an escaped convict and, while so engaged, negligently and with legal fault shoots another member of the same pom by mistake for the convict, the parent of the minor with whom he resides cannot be held responsible for the damages occasioned thereby.</p> <p>The law obliged the minor, being of proper years, to serve on the posse, and suspended the paternal authority, and subjected him to the exclusive authority of its officer, and pater, nal responsibility being the offspring of the paternal authority, the legal interruption of the latter operated a like interruption of the former.</p>

<p>A tax title, regular in form, duly recorded, and accompanied by possession, cannot be attacked collaterally or disregarded by direct seizure of the property Iield thereunder, in execution of judgments or mortgages against a former owner; at least, unless absolute nullity of the tax title is patent on the face of the deed.</p> <p>!8fo such nullity being apparent on the face of the plaintiff’s deed, his injunction herein, restraining the seizure and sale of the property by a creditor of a former owner, was properly perpetuated.</p>

<p>An information that charges, “that A. B. at 8 o’clock in the night time with the felonious intent, the dwelling house of one C. D. feloniously then and there to aet fire to and burn, feloniously and burglariously then and there did break and enter the said dwelling house,” is not obnoxious to the charge of duplicity, as it charges but one offense, and that offense declared by Sec. 851, Rev. Stat.</p>

Rich* arclson, J. An adjudication to the wife, at sheriff’s sale, of property of her husband, subject to a special mortgage imposed thereon by the latter, the payment of which she assumes as the purchase price, is absolutely null and in contravention of Art. 2398 of the Civil Code. 1 An. 304; 5 An. 600; 23 An. 440.

<p>A debtor’s indebtedness cannot be divided without Ms consent, and hence, he cannot be held liable for an order on a part of his indebtedness, unless he consents to the appropriation, by his acceptance of the draft, or unless an obligation can be implied from the custom of trade, or flows from the nature of the contract between the parties.</p> <p>Custom cannot prevail against a positive law.</p> <p>The provisions of Act 134 of 1880 form part of the contract between railroad companies and other parties undertaking public works and their contractors. Hence, a railroad company cannot be held liable on an order for money drawn by one of its contractors, before the latter has made provisions for the payment of the wages due to his laborers, or to ♦those of his sub-contractors, and when said company has refused to accept such order.</p>

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

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

<p>Whore a parish has levied an annual tax often mills on the dollar, it is without authority to levy an additional tax to pay a judgment against the parish, when it is not shown that the judgment was founded on a contract. The restriction on the taxing power contained in Act 209 of the State Constitution must be enforced in all cases where it does not contravene the inhibitions of the federal Constitution.</p>

<p>APPEAL from the Third District Court, Parish of Claiborne. Graham, J.</p>

Bichar dson, J. The action for partition is only prescribed by thirty years. So long as the action for partition is not prescribed, all accessories, such as collation etc., exist with it. 14 An. 750; 12 An. 354; 8 L. 230; 9 An. 90 ¡ II An. 227; 16 An. 170. An heir cannot be relieved from the obligation of collating a debt due the succession, on the ground of prescription accruing after the date of opening the succession. 15 An. 209; the Court quoting 14 An. 250; 12 An. 353.

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

<p>A forced respite cannot be attacked collaterally by a creditor, on the ground that the debtor has violated the terms thereof.</p> <p>Such a respite resulting from a judgment must stand and remain in full force, until avoided or set aside in a direct action.</p>

<p>There is no provision of our law that forbids an administrator from baying property mortgaged to pay a succession debt, and where the proceedings are regular and free from the imputation of fraud, and the sale has been followed by an undisturbed and continuous possession of more than ten years, the purchaser is protected by prescription,</p> <p>jtfor will the fact that the sale was made upon a mortgage note due the succession, which was credited with the amount of the adjudication, vitiate the sale if the administrator charges himself in his account with said amount.</p>

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

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette; Clegg, J.</p>

Martin. JPontelieu, J. 1. Homestead rights arising trader prior laws are unaffected by the Constitution of 1879, and must be construed as if that Constitution had never been adopted. Const. Art. 220. Mills vs. Sheriff, 25 An. 336; Roupe vs. Caradine, 20 An. 244; Gilmer vs. O'Neal, 32 An. 980; Poole vs. Cooke, 34 An. 331. 2.

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

<p>Land held under a certificate of entry entera the domain of private property and becomes a subject of contracts, and is fully under the operation of our laws touching the property rights of all classes of persons, and such certificate is sufficient evidence to support a petitory or other real action.</p> <p>Where land is entered in the name of the wife during the marriage, but the patent issued after the community is dissolved by a judgment, the land will be presumed to be an acquisition of the community. The title dates from the certificate and not from the patent.</p>

<p>A police jury lias the power to remove a treasurer appointed "by it.</p> <p>There exists no antagonism between R. S., Sec. 2743 and Article 201 of the Constitution. The right of removal delegated by the statute was not abrogated by the Article. The constitutional provision relates to certain parish and municipal officers elected by the people or appointed by the Executive, and does not apply to subordinate functionaries chosen by a police jury.</p>

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Clegg, J.</p>

<p>Where an appeal bond was given for the amount prescribed in tlie order for a suspensive appeal, and was filed within the time prescribed for such appeal, it is a good bond for a suspensive appeal, though it is recited in the body of the bond “that an appeal, suspensive or devolutive, was granted,” and it is not stated for which appeal the bond was given.</p> <p>Where an administrator suffers a valuable plantation, mortgaged to the succession, to be sold for taxes for a nominal sum and buys it in through one of the heirs interposed, who subsequently sells it, but the entire price—cash and credit-goes into hands of the adminis' trator, such purchase and sale enures to the benefit of the succession. And where two of the notes representing part of the price are delivered by the administrator to an heir who sues thereon, a creditor of the succession may intervene and have said notes declared the property of the succession.</p>

Mary. Goode, J. A being indebted toB, delivers property to B to sell, and to apply the proceeds to the extinguishment of the debt; the title to the property remains in A. 8 An. 435; 12 An. 672 ; 31 An. 600; Allen, Nugent & Co. vs. Ben Buisson, 35 An. not reported; H. D. p. 839. Such a contract makes B the agent of A. 8 An. 435; 12 An. 672; H. D., p. 839.

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

Mary. Goode, J. 1. The plea of the general issue, and special defenses in justification are inconsistent issues, and cannot stand together; the former is waived by the latter, and the defendant should have been required to elect between them. 10 L. 306; 28 An. 239, 109; 29 An. 136; 31 An. 84. 2. The charter of a company is a private statute, not a special law, requiring plea and proof to be noticed judicially. 33 An. 956, 954; 23 An. 415. 3.

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

4 PPEAL from the Nineteenth District Court, -Parish of St. Mary. Goode, J. An injunction, sued out by the purchaser of real estate, to prohibit his vendor from selling the property under his privilege, does not prevent this vendor from purchasing the property when it is sold later under a junior mortgage, nor retaining his bid in his hands in satisfaction of- his mortgage. C. P. 679, 706.

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

Mary. Goode, J. First. When the answer of the garnishee denies any indebtedness to the defendant, no judgment can be rendered against the garnishee, without a rule or other proceeding to traverse the answers of the garnishee. O. 3?. 264; 16 An. 253, 348; 19 An. 374; 27 An. 93 ; 28 An. 691; 6 An. 122; 31 An. 865; 32 An. 280. Second.

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

<p>In a suit involving the correctness of the assessment of plaintiff’s property, the jurisdiction of the Supreme Court must be tested by the amount in dispute, which is the tax which would be due on the difference between the assessment complained of and the assessment urged by the taxpayer. If such a tax does not exceed one thousand dollars, the appeal must be dismissed.</p>

<p>The State can appeal from a judgment quashing an indictment before trial,, when the offence charged is punishable capitally or at hard labor.</p> <p>Sec. 790 Rev. Stats, denounces as a crime the shooting, etc., any person with murderous intent, whether done while lying in wait, or while perpetrating arson, etc. Tho circumstances under which the shooting was done may be either those of lying in wait, or perpetrating other named crimes, and an indictment charging the shooting under either will be good.</p> <p>An error in date of the term of court at which the indictment was found may be corrected with leave of the court.</p> <p>The insertion in the indictment of the words "with a dangerous weapon ” is not essential, where all the ingredients of the crime that are set out, necessarily imply the use of a dangerous weapon.</p>

<p>Declarations of accused made an hour after tlio time, anda mile from the place of the homicide, are not admissible as part of res gestee.</p> <p>The rule that, when confessions or declarations of accused are received on behalf of the State, they must go in all together, applies only to such confessions and statements as are made at one time or in some connection with each other. The admission of confessions of accused does not justify the reception of contrary, self-serving declarations made six weeks previously.</p>

<p>"Where the trial Judge is requested to give a special charge to the jury, his refusal to do so although the charge asked is not objectionable, is not error if the charge has been substantially covered by that already delivered by the Judge.</p> <p>The character of the deceased as a turbulent man may be looked into in determining the ■ amount of provocation, when it tends, in connection with proof of an overt act on the part of the deceased, to produce in the mind of the slayer a reasonable belief of imminent danger.</p> <p>The right of self-defence does not depend exclusively upon the reality or imminency of the danger apprehended, but whether at the time the accused had reasonable ground to believe himself in danger of losing his life or of groat bodily harm, and had no other apparent means of escape than to take the life of his adversary, and whether such reasonable grounds existed, is a fact for the determination of the jury.</p> <p>The trial Judge is not bound to charge on a particular point of law, although the charge may announce a correct legal principle, where, in the exercise of a sound discretion, he is satisfied that such charge is not applicable to the case.</p> <p>Evidence of the good character of the accused is admissible in his behalf, and is not to be limited in its effect to merely doubtful cases, but to be weighed as any other fact in the case, and as one tending in a greater or less degree to establish the innocence of the accused.</p> <p>It is not every irregularity in the proceedings, or error in the instructions of the Judge, that vitiates a verdict or sentence, but it must be an irregularity that deprives the accused of some substantial right or protection, and an error so grave as to justify a belief that, but for its commission, a different and more favorable result to the accused would have been reached. *</p>

<p>Where three hundred names of jurors have heen put in the box from whioh the jury has been drawn for tlie first weeks of the term, it is not necessary to revise the list and put in more names to draw a.-jury for a later week of the same term.</p> <p>The list of jurors served on the prisoner need not be a copy of the proces verbal of the draw* ing. It is only needful that the list be complete and correct.</p> <p>The omission of the word “foreman ” from the signature on the back of an indictment is not fatal. It is sufficient that the foreman has signed his name to the finding of the jury, “a true bill,” without mentioning his capacity.</p> <p>The objection that a juror is an unnaturalized foreigner must be made as a challenge, when he is presented, and cannot be urged in arrest of judgment.</p>

<p>A judgment, partly in favor of and partly against an appellant, will not be disturbed as affooting the appellee, where no amendment of the same is aslced. .</p> <p>A possessor in bad faith, is not entitled to remain in possession until the value claimed by him for improvements put upon the land, and which the former owner has been condemned to pay to him, has been reimbursed.</p>

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

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

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

<p>Where the inscription of a mortgage by authentic act contains a copy of all portions of the act upon which the mortgage is based, it complies with the requirement of Art. 3348 Rev. C. C., although it be not a copy of the entire act.</p>

<p>"Where certain property is seized, under a judgment against a surviving widow, belonging to the community between her and her deceased husband, one of the heirs of the deceased cannot enjoin the sale beyond his interest in the property, although the succession of the deceased may he under administration and the community unsettled.</p>

<p>A release bond, furnished to set aside a sequestration, in furtherance of an order made on the petition of one claiming to be the agent of the plaintiffs, and represented to be such by the counsel of the latter, will be considered as the deed of the plaintiff, when signed by such party in their behalf.</p> <p>In default of a delivery of the property released on such bond, after judgment declaring it to belong to the defendant, the plaintiff, as principals, and their surety, will be held responsible for the value of the same.</p>

<p>APPEAL from the Fourteenth District Court, Parish of Calcasieu. Bead, J.</p>

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

<p>"Where the record of a criminal case contains nothing upon which the Supreme Court can act, the judgment is necessarily affirmed.</p> <p>A motion for a new trial on the ground that evidence, of which the defendant knew, was more important than he had supposed, was property overruled.</p>

Taylor, J.. W hen the deceased leaves a father or mother, he or she is forced heir for the onedfourth of the estate. And the child may dispose of three-fourths by last will and testament. Cole vs. Cole, 7 3ST. S. 414; Theall vs. Theall, 11 La. 429; JBarbet vs. Roth, 14 An. 381. > This has been a rule of inheritance in Louisiana since 1829, and the doctrine of stare decisis applies.

Pierson, J. 1. Article 207 of the Constitution of 1879, exempts from taxation and license, for a period of ten years, “the capital, machinery and other property employed in the manufacture of ***** agricultural implements, furniture, and other articles of wood.” Webster defines thp word manufacture, as “ the operation of reducing raw materials of any kind into a form suitable for use.” It is defined by Worcester, as “the process of making anything by art, or of reducing…

Taylor, J. 1. In a doubtful case the agreement is interpreted against him who has contracted the obligation, and also against him, whether obligor or obligee, when the doubt or obscurity arises from a want of necessary explanation which he should have given. C. C. 1957-8. 2.

<p>Stale claims, long withheld from prosecution or presentation, are regarded with disfavor.</p> <p>Extra-judicial admissions of a dead man are the weakest of all evidence, since they cannot be contradicted, and no fear of detection in ftilse swearing impends over the witness.</p> <p>The evidence of a claim that has long been delayed in its prosecution, when no hindrance was in the way, must be more conclusive than in ordinary circumstances. It must be established with more than reasonable certainty.</p>

<p>A mandamus does not lie to compel a District Judge to appoint an attorney-at-law to try a case in whicli be bas recused himself as having been of counsel, when the Court, of which he is an officer, is represented by another Judge clothed with concurrent powers, and who is not himself recused.</p> <p>The Act of 1880, No. 40, is inoperative in such a case.</p> <p>Under Act of 1882, No. 71, the Judges of the District} Court for the First Judicial District are authorized to adopt rules for the classification and distribution of causes before that Court, and to provide for the trial of recused cases.</p> <p>A Prohibition does not lie to prevent the other Judge, not recused, from, trying such cases in which his fellow Judge is recused as of counsel.</p>

<p>Municipal corporations may adopt ordinances for the good order of the community, and where the power to suppress bawdy houses is conferred, the power to adopt means for that suppression follows by necessary implication.</p> <p>An ordinance which prohibits bawdy houses being kept in an indecent manner need not specify the various acts of indecency which will render its keeper liable to punishment.</p>

Taylor, J. The plea of compensation to plaintiff’s claim in globo waives general denial, and admits the claim m globo. Durnford vs. Agrae, 3 H. S. 270; Jones vs. Bishop, 12 La. 397; Rost vs. Byrne, 14 La. 372; Diggs vs. Parish, 18 La. 6; 14 An. 54; 22 An. 442; 23 An. 142; 25 An. 182. He who pleads compensation must do so specifically aud prove it. 11 M, 639 ; 1 H. S. 127-412 ’ 3 H. S. 75, 373 • 6 N. S. 226-250; 14 An. 54; IT La. 259.

^ PPEAL from the First District Court, Parish of Caddo. Taylor ', 1. A confession will not be excluded where there is amere adjuration to tell the truth, unaccompanied with a threat. 2 Buss. 286 ; 34 An. 18. 2. Though confessions ate unduly obtained, subsequent confessions as to the same fact, if the court believe, from the circumstances, that the influences have been roraoved, etc. State vo. Hosh, 12 An. 895. 3.

Logan, J. 1. Interrogatories to absent witnesses must be signed by tbe party or bis counsel. Depositions are not admissible when tbe witnesses are not named in tbe petition, or order for commission. The order for commission is premature, if rendered before the expiration of three days after the interrogatories have been submitted or notified to the adverse party. C. P. 425, 426. 2.

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

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

^PPEAL from tlie First District Court, Parish of Caddo. Taylor, 1. The Act of March 3d, 1857, confhmed to the several States theip selections of swamp lands, which had then been reported to the commissioner of the general land office, so far as the lands were then “vacant and unappropriated, and not interfered with by an actual settlement ” under existing laws. U. S. R. S. 2484. 2.

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

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

<p>An executor residing out of the State, and who, ooming here, represents himself as a real-dent and is recognized by the court as executor aud as entitled to act as suoli, cannot olaim that lie was recognized a3 a domiciled executor and is exempt from bond, wliere he does not clearly establish that at the time he had changed his domicile.</p> <p>^Non-resident executors are not requested to take an oath, having already been sworn. The taking of an oath as executor here is a superfluity, and docs not qualify them. The giving of the bond alone does.</p> <p>Where there are two executors, and one qualifies and the other does not, the entire commission accrues to the one who has qualified. 25 An. 320, affirmed.</p>

<p>The subrogee to a lessor’s rights is entitled to claim, with, provisional seizure, whatever rent was due at the date of the transfer.</p> <p>A. stipulation in a lease to pay part of the rent to a person named, does nob divest the land* lord of a right to the amount, where the stipulation pour auti'ui was not accepted previous to the transfer. The subrogee is entitled to claim such amount in the right of his . suhrogor.</p> <p>The burden of proof is on him who alleges payment. The plea admits the debt.</p> <p>Damages cannot be allowed to a seized tenant, where the rent claimed was duo at the date of. seizure.</p>

<p>In proceedings in ram, as in ordinary eases, the jurisdiction of the appellate court tested by the amount in dispute, as shown by the amount claimed in tbo pleadings, and not by the value of the property attached, or by the amount of the judgment which is, or may be, subsequently rendered in the case. t be</p> <p>In such oases the court, before which the proceedings are instituted and under whose process property in its territorial jurisdiction may, ou proper showing, attach other property of the absentee situated in the State, and in parishes not within the jurisdiction of the court.</p>

<p>It is not necessary, to support a prosecution foi forgery or falsely uttering, that the instrument purporting to be forged should be perfect in its resemblance to the kind it was designed to represent. It is sufficient that it was calculated to deoeive.</p> <p>Thus m order addressed to a merchant in these words: “Please let George have sixteen dollars worth, and charge the same to Mr. George Garrett;M held sufficient.</p>

<p>The excusing of a tales juror by the Judge, although not legally exempt, and although the accused may have at the time exhausted his peremptory challenges, is not sufficient to vitiate the verdict. .(i</p> <p>An accomplice may be called as a witness for the State, even when jointly indicted with said accused and before his own conviction or acquittal, where the trials are separate.</p> <p>The Judge is not bound to give a charge, although it may be correct as an abstract principle of law, where, in his belief, there is no fact proved to which it is pertinent.</p>

<p>APPEAL from the Second District Court, Parish of Bossier. Drew, J.</p>

<p>A Judge has a right to change the terms of the court over which he presides. He was not deprived of such authority by the Act No. 7 of 1880, which only directed how the order* fixing the terms should be made and published.</p> <p>Where a term of court has been ordered to be held by the Judge under a general order fixing the terms, and subsequently he prepares another order, in which it is announced that it will not ho held, and hands such order to the clerk with instructions not to record it, th* Judge can, within a short time after, and before any action is taken under it, withdraw or erase the order, and the first order for the holding of the term will be in full force, and the term held under it, a legal one.</p> <p>Where a change is made in the terms it is not necessary that a notice of suoh change should precede the order making it, hut that notice for the prescribed time should he published before the arrival or holding of the term.</p> <p>Where, owing to some obstacle, the grand jury cannot be empanelled on the first day of the term, it may be empanelled on the second day.</p>

Taylor,. J. * Two instruments parts of same contract must be construed together, and where one has superseded or followed the other, reference may be had to the latter to explain any ambiguity. 9R. 30; 3 R. 171; 2 An. 92. No construction rendering important expressions useless is'admissible. 12 M. 114; 4N. S. 85; 8 N. S. 365; 12 L. 539; 3 R. 171; 3 An. 578; 4 An. 485.

j^PPEAL from the First District' Court, Parish of Caddo. Taylor, 1. A disposition, couched in terms present or past, or a disposition, the terms of which express no time, refers to the time of making the Will, and embraces only property owned at the date of the will. 0* 0*1720-22. 2.

<p>The Judge does not err in refusing to give to the jury a charge, however legal, which is evidently covered by previous charges. Such charge is unnecessary.</p> <p>Sentence can be legally passed on a conviction of guilt of larceny, although the indictment was for burglary and larceny and the verdict was on both, and the indictment, fatally defective on the count for burglary t was, with the verdict, to that extent quashed on a motion in arrest.</p> <p>The indictment and verdict on the charge of larceny, which is an offense not necessarily connected, remained perfect and wore a good foundation for the sentence.</p>

<p>~ EAL from the Second District Court, Parish of Webster. Drew,</p>

. Houston, J. 1. The neutral ground on Canal street, occupied by defendant, was dedicated as a promenade, riaintiff's having acquired their property with reference to such dedication, had vested rights to the same, of which they could not be deprived by the vendor corporation.

On Application for Writs of Certiorari, Mandamus and Prohibition. i. Courts have the authority to enjoin all illegal acts. . : The power to impeach could not be bestowed upon the City Council. Constitution, Articles 14, 15, 80, 92, 196, 200 and 201; 31 An. 440; Cooley Const. Lim. 107, 211; People vs. Draper, 15N.Y.; 32 Au. 943 and 947 ; Story on Constitution, 796,797,800,802; 11 An.443 ; 6Bush, Ky. R. 1; 3 Metcalf’s R. 237; 28 An. 444; 19 Johnson, N. Y. 58. II.

<p>A legal assessment is essential to the validity of a tax sale, and where that is wanting the sale will not he protected by the prescription of two, three and five years. Such sale, however, being made by competent authority, wbeie no nullityis patent on the face of th« deed, the purchaser cannot be held a purchaser in bad faith, but is entitled to be reimbursed the legal taxes paid, and for useful improvements. Previous decisions reaffirmed'.</p> <p>Parol evidence is inadmissible to prove the assessment and payment of a special tax, where it is not shown that there exists no written evidence of said facts.</p>

Houston, J. 1.The owner of a dog which inflicts a wound upon a person walking upon the public highway is responsible in damages for such injury (C. C. 2321); and this holds whether the injury resulted from the negligence of the owner himself or from, that of his agent or servant. O. C. 2316, 2317. . 2.

Monroe, J. 1. If'there is a discrepancy between the statement of loss and the statement testified to at the trial, it does not thereby follow that the claimant has been guilty of fraud or false swearing, for the statements made in the proof of loss may have been honestly, though erroneously made. 14 Wal. 375; 3 Bis. 106 ¡ 4 Daly, 96 • 43 Barber, 400; 50 HI. 120. 2.

<p>An objection made to the time of drawing the jury, without charging fraud or wrong, as required by Section 10 of Act 44 of 1877, oannot be considered.</p> <p>Tho authentication of the clerk to the copy of an indictment extends to the body of the instrument, and to the indorsement thereon, where both are in tho hands of the attesting deputy.</p> <p>Tho Statute, R. S. 992, does not expressly say: that the list of jurors to be served on the accused shall be attested by the clerk under his offioial signature. Where tho list issued and admitted to have been served, is a newspaper clipping, which bears the impress of the seal of the court, and which ends with the words: a true copy, followed by the printed name of the deputy clerk; where no complaint is made that the list is otherwise defective, where the list is truly an exact copy of the original, and where there is no injury shown, substantial compliance with the law cannot be denied.</p> <p>Tho looseness with which the documents were issued by the olerk is censurable.</p> <p>Oral testimony is admissible to prove the contents of a dying declaration, first proved to have been lost.</p>

<p>j^PPEAL from the Second District Court, Parish of Bienville. Drew',</p>

<p>Application for writ of certiorari.</p>

<p>APPEAL from the Twenty-third District Court, Parish of Iberville. Pope, J.</p>

<p>Whore It appears from anterior proceedings, that the District Judge has sustained his juris» diction, it would be doing a vain thing to require the filing of an exception and its overruling, before considering an application for a prohibition. The rule in 39 An. 809 is not thereby infringed.</p> <p>The writ does not lie to prevent a District Judge from trying exceptions filed after tbe granting of a new trial.</p> <p>A judgment prematurely signed does not become final and produces no effecfc, where a motion for a new trial is seasonably made and subsequently granted.</p> <p>Such motion, in the country parishes, where first continued to another term by consent of parties, and next, from term to term, by the court, and which the mover has uniformly ~ endeavored to have tried, does not lapse at the close of either of the terms. It can be entertained and allowed by the Judge, where good cause is shown.</p> <p>The granting of such a motion for a new trial practically obliterates the premature signature of a judgment.</p> <p>13 An. 563; Estopinal vs. Zuñís, not reported, 0.33. 45, folio 34, and State ex rel. Wentz vs. Judge 5th Dist., 35 Am., affirmed.</p>

<p>A suspensive appeal having been dismissed for insnfiioionoy of the transoript, the appellant is entitled to a devolutive appeal, if applied for within a year from the rendition of the judgment.</p>

' The legislative Charter, as well as the transfer from the City of New Orleans to plaintiff, confers upon it the exclusive right to supply the City aud her inhabitants with water from the river through pipes and conduits.

Tissot, J. 1. Where a contract is made expressly subject to certain rules of trade, and those rules are known to the person making the contract, that person is responsible for any loss that may ensue in either the carryiug out or termination of such contract under such rules. 2.

Bwaudais, J. 1. Under the ruling in 32 Ac. 1135,118?; 34 An. 834, and in Ho. 8749 of the present docket, this Court is without jurisdiction to hear this case pn.appeal. • 2. The,agreement of association between the Branch Pilots of the Port of Hew Orleans, set out in the record, is lawful, and is not governed by the law relating to partnership (R, S. 2707-2709) being specially authorized and recognized by statute. 3.

<p>Compensation cannot bo validly set up in extinguishment of a claim for the price of commod* ities sold for cash, where possession of the same was obtained by an artifice or breach of trust.</p> <p>The purchase price, payable ccss7i, must bejpttid under the agreement.</p> <p>Compensation rests essentially on good faith, and cannot take place against a claim for the ‘ restitution of a thing of which the owner has 'been unjustly deprived.</p> <p>Article 1392, C. N., is identical with Article 2210 of our Code, and the authorities agree in that sense. Rulings in 6 An. 46, 207, 356 5 7 An. 53 5 28 An. 629, and other cases, affirmed.</p>

<p>APPEAL from the Sixth District Court, for the Parish of Orleans. Righto v, 3.</p>

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Clegg, J.</p>

<p>Act 2tfo. D8 of 1880, the object of which is to organize anú put in motion the Criminal District Court for the Parish of Orleans, created by Article 130 of the Constitution, is not a local or special Ittvo and does not fall under the ban of the Constitutional prohibition embodied in Article 48.</p> <p>It has but one object and that object is expressed in its title* 33 An. 783, affirmed.</p> <p>If part of Section 4 he unconstitutional, the remaining is not assailable and constitutes the Section*</p>

Bightor, J. 1. Plea of want of tender, as a prerequisite to the opposition of a monition, which opposition involves a petitory action, cannot be made by a warrantor after the applicant for monition has joined issue with the opponent, and from his answer, it appears that the tender would be a vain thing. 8 La. 252 ; C. P. 333, 336, 345, 346. If such a plea be sustained at all, it should only have effect as to the warrantor excepting. 2.

Hahn, J. Mandamus issues whore the law has assigned no relief by the ordinary means. 0. P. 830 ; High, Secs. 15 and 30; 26 An. 259. The law (Act 23, 1877, p. 36, See. 28) provides in what contingency the police jury shall levy a tax and how it shall be collected and paid. Such requisition cannot be implied, but must be actual and positive, aud should be alleged.

* PPEAL from tlie Civil District Court, for the Parish of Orleans. -Cl. Houston, J. 1. A party who has been in the practice of insuring for another is presumed to have had proper authority, and cannot afterward omit doing so without informing the other 5 ho will otherwise be liable himself. 6 M. 649; 6 La. 583; 2 ft. 103; 73 HI. 404; Domat 1, 15, Sec. 4, Art. 4. 2. The attorney is responsible, not only for unfaithfulness in his management but also for his fault or neglect.

r Houston, J. Ho tax can bo imposed on the shares of stock of a corporation, unless over and above the property of the corporation, all of which is directly titled; tbe shares have a taxable value.

<p>Ie criminal practice eo rule compels the trial Judge to charge tho jury iu the Identical terms and language suggested hy counsel for the accused. A charge embodying substantially the principle invoiced by the acoased, and containing a correct exposition of the law regn.lating the point involved, is sufficient and will ho maintained by the Supremo Court, The following charge was properly refused iu a criminal trial, as being argumentative and involving nice distinction iu metaphysics, whioh it is not the province of the court to expound to a jury:</p> <p>“Iu cases of wanton cruelty, tho presumption is always against the State, for no man is cruel without some interest, without some motive of fear or hate."</p>

Monroe, J. 1. A sale of stock made l>y pledgee, under the power given in the «act of pledge, though invalid in itself, is confirmed by a settlement of the balance resulting from the sale, made between tbe pledgor and pledgee. 16 La. 51; 18 La. 517. 2. Where the pledgor, at the time of settlement, has the means of knowledge respecting the manner of making the sale, the possession of such means is equivalent to knowledge. 1 - Dillon, 85; 11 Wall. 107; 101 TX. S. 141. 3.

<p>ApPLICATION for Writs of Certiorari and Prohibition.</p>

<p>Ill absence of proof of fault or negligence in the employment of incompetent or careless servants, an employer is not responsible for damages resulting to one servant from the fault or negligence of another. Upon the facts and circumstances disclosed by the evidence, plaintiff’s claim for damages cannot be sustained.</p>

<p>In an action by the State against a defaulting sheriff and his sureties for public monies, collected and not accounted for, an averment that the monies collected belong to a particular class and were received within a stated period, will be deemed sufficient. The State cannot be required to allege matters of details not within her knowledge. It would be exact-lug an impossibility. Exceptions to the vagueness of the demand are properly overruled.</p> <p>Where objections to trial are based on alleged irregularities in ordering, making and submitting a report of experts, and there is no occasion to complain of the mode in which the same was made and returned, and where testimony show the report to be correct, the ruling of the court will not be disturbed.</p> <p>■ Sureties, who have already made payment on account of the sums for which they have subscribed a sheriff’s bond, ate entitled to credit, and can be held for the difference only.</p> <p>A rule, taken by experts to have their fees taxed, should have been served on all the parties to the suit. Service on the plaintiff alone is insufficient. The judgment making such rule absolute, although repeated in the judgment on the merits, will prove of no effect.</p>

<p>A pledge of bonds, stocks, notes, etc., made by delivery of them, is valid, as well against third persons as against the pledgor, if made in good faith.</p> <p>Simulation of ownership of bonds and stoeks may be shewn, by parol proo^ as between the parties to the simulation. .</p> <p>Third parties, who have dealt with the apparent owner, cannot be prejudiced by the revelar tion of the real ownership, if they have acted in good faith,</p>

<p>In an injunction auib to restrain a tax collector from, proceeding with advertisement and sale of property for taxes, when judgment is rendered dissolving the injunction and ordering the tax collector to proceed with the sale to-satisfy the taxes and naming the amount thereof, this last portion of the decree is not to be treated as a moneyed judgment, in estimating the amount of bond required for suspensive appeal»</p>

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

<p>Where a tax was duly levied on a factory for the manufacture of articles of wood by the City of Kew Orleans, and included in the City budget for 1879, collectible in 1880, an exemption therefor cannot be claimed under Article 207 of the present Constitution, subsequently adopted. That Article had no retroactive effect. The case comes within the scope of the decisions of City vs. Vergnol© and Succession of Hupuy, 33 An. 39 and 258.</p>

<p>Appeals will be dismissed where ono bond only was furnished, under motions and orders of appeal from two judgments in two distinct and separate matters.</p> <p>Widows in necessitous circumstances, who remain in possession of a email farm, in insolvent successions, which was exposed to be sold at any moment, to pay debts and to keep which a keeper would, otherwise, have to he employed, will not be charged for the value of the oooupanoy.</p> <p>Where the residuo in suoh suoecsslons is insufficient to pay both the privileges and the homestead, the court will abstain from passing critioally on the merits of subsequent claims, to whioh nothing, in any ovout, oould accrue.</p>

<p>A trial Judge is justified in refusing to give to tbe jury special charges which, although legal and pertinent, are amply covered by charges previously given.</p> <p>It is unnecessary, in an indictment under Sec. 832, R. S., chargingiu tko words of the Statute, that the accused has feloniously received the object which had been feloniously stolen, he well knowing that the same had been so feloniously stolon and taken, to charge specially that the offence was committed with intent to defraud the owner of the property, or some person, or for the purpose of felonious or wicked gain.</p>

<p>In an action for the specific performance of an agreement to sell for cash a piece of immovable property, if it is shown that the defendant, who is a widow, had purchased the pro* perty in her own name during marriage, under the régime of the community, and had in good faith believed it to be her separate property, but discovered, after her agreement to sell the same, that the property belonged to the community, and that her husband’s share of the same, which had accrued to her as his universal legatee, was affected with a general mortgage, resulting from a bond of tutorship, and if it appears that it is impossible for her to cancel said mortgage, there is a lawful excuse for the non-perfórmance of hor contract, as the same had been made by her through an error of law. The defendant is therefore released from the obligation of her contract.</p>

Lazarus, J. Personal service is necessary in a personal suit; substituted service by the appointment of a curator ad hoc does not constitute that “ duo process of law,” contemplated in the 14th Amendment, Constitution U. S., and is in conflict therewith. Pennoyer vs. Nefl‘, 95IJ. S. Reports, p. 714 et scq. Foreign corporations form a particular class of absentees specially provided for in Article 236 of the Constitution of Louisiana of 1879.

Lazarus, J. 1. The plaintiff gave her full and express power of attorney to her father, investing him not only with power to administer, but to mortgage and sell her property. 2. The father borrowed $6,000, and secured it by mortgage on a plantation in which plaintiff was interested, as heir of her mother, jointly with her co-heirs. 3.

<p>The power of determining or deciding whether the facts, as set out in a bill of exception, are true, must of necessity rest with, the trial Judge. Any other rule would be impracticable, and would lead to endless disputo and inextricable confueion»</p>

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

<p>APPEAL from the Recorder’s Court of the City of Monroe. Trousdale, J.</p>