Volume 36 — Louisiana Annual Reports

Houston, J. 1. Samuel H. Kennedy, on the thirty-first day of March, 1879, obtained the writ of sequestration, from the late Fifth District Court of the Parish of Orleans, under which writ the civil sheriff: seized and took into his possession certain mortgage notes, which he now holds, under said writ. The mortgage notes were, at the date of tho issuance of the ■writ of sequestration, in tlie possession of David Urquhart, president of said Institution.

PPEAL from the Civil District Court for the Parish of Orleans. -C\. Houston, J. 1. A judgment is a litigious right as long as an action to annul it is pending. 2. An attorney-at-law who practices in the Court where such a judgment was rendered and where the action of nullity pends, cannot acquire it by transfer in settlement of an agreement to collect the same on a contingent fee of fifty per cent. C. C. Art. 24, 2447. 3.

. Laewms, J. Frank & Co. are not parties to the judgment and though they maybe beneficially interested in it. they cannot control the execution. 5 N, S. 707: 24 A. 549. Tlie judgment as rendered is indivisible and must be so executed.

<p>An agreement by which one party engages to deliver to the other such quantities of coal as the latter may require during the year “to the extent of sixty thousand barrels with privileges of twenty thousand move.” at a stipulated price, but containing no obligation on tiie part of the latter to take or pay for any stipulated quantity, is a nudum pactum, from the performance of which the promisor may, at any time, withdraw.</p> <p>One promise may be a good consideration for another promise, but there must be a mutuality of engagement.</p>

Itightor, J. 1. The defendant, being president of several city railroads, is considered, iu law, a public man, and not a private citizen. Odgers on Libel, -10. 2. That in all matters 3. That a libel is an offense which may be punished by fine and imprisonment; that slander is not classed among criminal offenses, liovised Statutes. 4 That the falsehood of all defamatory words is presumed in plaintiff’s favor; that he noc-d give no evidence, that, they are false.

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

<p>The rules relative to tlie time of payment of debts, delivery of legacies and the separation of patrimony find no application in cases of thoroughly solvent successions.</p> <p>The appellate court does not sit to revise the reasons assigned by the judge of the lower court in support of a judgment which is affirmed. It surely cannot do so where the reasons were “orally assigned,” and therefore do not come up with the transcript. This Court reviews and passes upon the correctness of the judgment appealed from. The reasons assigned by it for the affirmance of such judgment are to be taken as those justifying the judgment of the lower court. '</p> <p>"Where tlie lower court orders, without giving written reasons, the delivery to a surviving wife in community, of the legacies made to her by her deceased husband, of property once forming part of the community assets, aud this Court, affirming that judgment, decides that the bequests made consist of the half of the deceased in such property, tlie reasons of this Court must be deemed as those 'which wore or should have been given by the com t of first instance</p> <p>Rehearing refused.</p>

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

<p>Plaintiff, two co-heirs and her mother, became joint owners of 200 snares of stock belonging to the community between the last named and her deceased husband, John "B. Schiller, in the proportion of one-half to the mother and one-sixtli to each of the heirs. Defend_ ant corporation permitted the mother to dispose of 134 shares of said stock, and plain_ tiff brings this suit to recover one-sixth of said 131 shares. Held, that the mother’s transfer must bo hold valid to the extent of her entire interest in the stock, viz: One hundred shares, and that the sixty-six shares undisposed of belonged entirely to the heirs, ami that plaintiff could recover only her share, one-third, of the thirty-four shares unlawfully transferred. Held, that the dividends paid to the mother while tutrix of her minor children, and even afterwards during the existence of a judgment recognizing her as legal usufructuary of the interest of her children in the community estato cannot be recovered. The subsequent judgment of this court, in an action to annul this latter judgment, only had effect as to third persons, from the date of its rendition, and only authorized tho recovery of dividends paid thereafter.</p>

<p>Tli© constitutional prohibition of monopolies is absolute and effective, and therefore abro . gated tbe exclusive nrivilego of slaughtering animals for food, given by the legislature of 1869 to the Crescent City Stock Landing and Slaughterhouse Company, and invested the municipal authorities of the city with power to regulate the matter, subject to tbe approval of the Hoard of Health.</p> <p>A slaughterhouse is prima fade a nuisance, and therefore until the municipal authorities regulated the location of such buildings by fixing the limits within which they should not he placed, no|one could lawfully locate one within the city boundaries.</p> <p>After those authorities had thus regulated the matter, a company may locate its abattoir and appurtenances in conformity thereto, and an injunction will not lie to restrain it in the absence of proof of nuisance.</p>

<p>A purchaser of real estate and other property, on time, is relieved from the obligation of making ft tender and consignment, to relieve himself from interest after maturity, •where the vendor himself brings, before maturity of .the notes, an action to annul the sale; but owes such interest from the finality of the judgment rejecting the demand in nullity in default of a tender and consignment. Article 2559, Ü. C.C,, applies to cases in which the suit to evict is not brought by the vendor, hut by others.</p> <p>The executors of a surviving wife have no right to sue for the recovery of the whole amount, of notes belonging equally fo her succession and to that of her husband, whose heirs of age are recognized and put in possession. They can sue only to recover the half of the notes accruing to her succession.</p> <p>The purchaser failing to pay at the termination of the «suit to annul the sale, a suit became necessary to coerce payment.</p> <p>In the event of such suit, the fees of the attorneys employed must be paid by tbe imrohaser at the rate agreed upon in the aggregate of the capital .and interest due at the timo of the filing ot the petition and due the succession represented by the executors.</p>

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

<p>Plaintiff obtained a respite from liis creditors under the insolvent laws of the State. In Ms schedule he reported certain notes as owing on o V. M., on whom the usual notices were served, but who did not attend tlie meeting of the creditors or participate in the proceedings. Y. M, & Co. had sued the plaintiff — the insolvent debtor — on the notes before the District Court of hfew Orleans, before the respite was applied for, but after the same was granted withdrew the suit and instituted attachment proceedings on the notes in the State of Mississippi.</p> <p>The notes, though executed in favor of Y. M., purported to have been transferred to Y. M. & Co., a firm of which he was a member. Judgment was rendered by default against' plaintiff — the debtor — in the State of Mississippi, and immovable property in that State, which was included in the schedule of the insolvent, was seized thereunder and advertised for sale. The parties all resided in Xew Orleans</p> <p>Held, that an injunction against the sale properly issued from the District Court of ISTew Orleans, and was properly perpetuated.</p>

<p>The principles aim*»»* . cd in tlie decision of Fairox. vs. same defendant, are applied in this case.</p> <p>The authority oí a tutrix to sell movables of minor ward, under administration, mint be exercised under judicial authorization and at public sale, Articles 338 and 5J41. llov. C. C. being construed together.</p>

Under the general issue in an action of libel the defendant canot give in evidence, by way of justification, facts tending to show that the words were privileged communications-The special defense should he pleaded. 10 A., 231. 28 A., 239. A party who has published a libol, after being informed of its falsity, cannot defend himself under the plea that the libel was a privileged communication.

<p>Testimony offered to show that the deceased was not in the habit of carrying deadly weapons, is irrelevant, in a prosecution for murder, where the defense is self defense.</p> <p>That the deceased had large and influential family connections and friends; that the life of the accused, after the killing and before his bond was forfeited, was threatened by relatives of the deceased, is irrelevant testimony to rebut the presumption of guilt claimed to result from the forfeiture of the bond and flight from justice.</p> <p>The State has a right to reexamine a witness, before his leaving his seat, touching a matter testified to by him on cross-examination.</p> <p>Testimony to establish tln»t threats were made, is inadmissible, where it is not offered also . to prove that they wore communicated-to the accused.</p> <p>The testimony of witnesses, not yet heard, cannot be impeached. An attempt to do so, is premature.</p> <p>Evidence is admissible to show the condition of the weapon of the deceased, when found.</p> <p>The trial judge, at the request of the jury and in the presence of the accused and his counsel and where no objection is made, has a clear right to instruct the jury as to the different verdicts which they can render.</p> <p>The bill of es ceptions taken after the jury bad retired from tbe box and which does not show the ground upon which it is based, is not entitled to notice.</p> <p>The trial judge is right in refusing to charge the jury, that “where a witness, credible and “ of good character swears affirmatively to the existence of a fact; that they heard and “ saw things, that the testimony of witnesses as thus swear affirmatively is entitled to “ more weight than the testimony of witnesses of good character and credible who swear “ negatively that they did not see or hear.” The charge, as aslced, was too broad and laoked precision. Evidence of a negative nature, may, under particular circumstances, not only be equal, but superior, to positive evidence. Also, where a negative depends on the establishment of an opposite fact, such as an alibi for instance. '</p> <p>"Where the judge was requested to charge the jury in writing and has done so, and where he is subsequently asked to give a special charge and expresses areadinoss to give the same orally, or in writing, and it appears that counsel are willing that ho should give the same orally andhe does so, thereisno occasion to complain that the same was not givenin wilting.</p> <p>The ruling in 35 A. 535 and cases there cited, was made under quite a different state of facts.</p> <p>Testimony cannot he received to impeach the testimony of witnesses, who did not swear to a particular fact, which he declared not to remember.</p> <p>A continuance should not bo granted and is properly refused on the ground of the absence of a witness, where legal steps have not been taken and due diligence used to secure him and when the case was fixed by consent, without any reserve of rights; the more so, where the evidenco, if offered, would not be admissible. It is only where the exercise of the legal discretion was arbitrary and oppressive, that the appellate court will interfere, and then, provided the refusal has worked a manifest injury.</p> <p>Special charges are properly refused where they are substantially covered by the general charge, or other charges, already given.</p> <p>Hearsay evidence, not part of the res gestee offered to show uncommunicated threats is illegal and was properly excluded.</p>

<p>An accused who offers to support his affidavit on a motion for a new trial on the ground of newly discovered evidence, by the testimony of the newly discovered witnesses themselves, when he produces them' in court on the trial of the motion, is entitled to such a hearing. On the judge’s refusal to hear such witnesses, the case will be remanded for the purpose of taking such testimony, or to give to the accused the benefit of the affidavit of said witnesses.</p>

<p>Where an indictment for a prescriptible offense is filed more than a year after its commission. and prescription is therein negatived by the usual averments, the onus is noton the State to prove the negative, but on the defendant to establish the affirmative; i. e., that the commission of the offense was made "known to some competent officer more than one year previous.</p> <p>Where a horse was stolon in one parish and sold in another, to a person .who, at the time, was a justice of the peace in the latter parish, from whom it was recovered by the owner, a knowledge of the crime thus derived by such officer, to whom the name and whereabouts of the offender is unknown, and being without authority or jurisdiction in the parish where the crime was committed, does not affect the question of prescription.</p> <p>The information to such officer, in contemplation of law, to have such effect must arise from a formal complaint before him.</p> <p>Where, after a, jury retires to make up their verdict, the court adjourns till the following morning, and subsequently the judge being informed that the jury has agreed and desires to deliver the verdict, convenes the court before the time to which it was adjourned has arrived, and receives the verdict, and the prisoner and his counsel are present and make no objection, such alleged irregularity caunot vitiate the verdict.</p>

<p>In the absence of any appearance on the record that the defendant requested the court to assign counsel, or applied for continuance on the ground of absence of counsel ot record, the mere fact that the trial proceeded without the aid of counsel to defendant does not constitute error.</p>

<p>An action for damages for a malicious prosecution cannot "be maintained, unless malice and want of probable cause are affirmatively shown, and a resulting injury therefrom.</p>

<p>Act No. 4, of 1882, sec. 10, is not unconstitutional.</p> <p>The license imposed is graduated and uniform, as is required by articles 206 and 208 of the C onstitution.</p> <p>The word “ graduate” there used, means ''proportion." The Legislature can levy a license tax, where the amount is regulated and fixed on an established basis, to which it must bear a certain proportion. The Legislature can divide trades, professions, vocations and callings into classes and assess a license on the persons composing the several classes, provided it be equal and uniform, on all the persons of the same class.</p> <p>A license for keeping places for “variety ‘performance," can-well be graduated or proportioned on flic basis of tbe population of ilio city or town in which the same are kept.</p> <p>A law which imposes suoli license for keeping such places in cities or towns, the population of which exceeds 25.000 souls and fixes the same at $1000, and which imposes Ruch license for keeping such places in such cities or towns, the population of which is less tlion 25 - 000 souls and fixes the same at $500, operates equally and uniformly on the two classes, and does not violate the constitutional provision against local or special legislation. It is general in its purpose and in its terms, and designed to reach all persons belonging to each class, throughout the whole territory of the State.</p>

<p>PPEAL from the Eighth District Court, Parish of East .Carroll. Delony, J.</p>

<p>APPEAL from the First. City Court of New Orleans. . tíkimter, J.</p>

<p>In an indictment for shooting with intent to commit murder, the intent must he described in terms which would he sufficient, in case the act had resulted in death, to sustain an indictment for murder.</p> <p>The qualification of the intent as ‘‘felonious ” merely, without the addition of “ wilfully and of malice aforethought, ” describes only an intent to commit manslaughter and not murder. K. S. sec. 1048.</p> <p>The defect is substantial and is a proper subject for motion, in arrest of judgment.</p>

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

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

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

<p>An intervenor in whose possession, other than as owner, pledgee or consignee, property has been judicially sequestered, has not the right in law to release said property on a forthcoming bond.</p> <p>Under our law that right is restricted to the parties to the suit, and to an intervenor who shows a prima facie case of a bona fide title as ownor, pledgee or consignee.</p>

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

<p>On an application for a mandamus the ruling of a district judge referring exceptions to the merits, cannot To© reviewed.</p> <p>The writ issues to proceed, not to recede: to do, not to undo.</p> <p>The judge is vested with a legal discretion and he lias exercised it.</p> <p>His action can cause the exceptors no irreparable inynTy,as it can he revised by himself, before the final determination of the suit, or on appeal by this Court, which, if lie have erred, will render such judgment as he aught to have pronounced.</p>

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

<p>Eights of a creditor of the community cannot he defeated by an adjudication of the share of minors in the common property to the surviving spouse and by a special ^nortgage given in their favor by the latter, to secure their liquidated rights.</p> <p>Such creditor is entitled to be paid his claim, by preference, half by the widow who has accepted the community and half by the heirs, each for his virile share; the minors not to be bound for more than their share of inheritance.</p> <p>Simulation cannot be set up by the vendee against the reality of his purchase of real estate, after the validity of the same has been judicially asserted by him and recognized by the</p> <p>Want of consideration cannot be urged after a plea and proof of payment.</p> <p>Prescription does not run against notes which have been uninterruptedly sued upon via eje-cutiva and via ordinaria, although in one instance, before a court having no jurisdiction.</p> <p>A money judgment on appeal can be amended by allowing interest due, accidently omitted, without granting a rehearing. ,</p>

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

PPLTCATION for Prohibition and Certiorari. 1. Congress alone has power to regulate commerce with foreign nations and among ihe several States (Constitution, Art. 1. Sec. 8). The power to regulate commerce includes the regulation of navigation, and pilotlaws are regulations of navigation. 12 How. 299 2.

<p>Whore the writ of civil arrest has "been finally set aside by judgment of the court -which issued it, that ierras res judicata as to the wrongiulnesa of its issuance and subjects the party who provoked it to liability for actual damages.</p> <p>In absence of proof of malice or want of probable cause, none but aotual damages can be recovered.</p> <p>Counsel fees for prosecuting suit for damages not allowed.</p>

Livaudais, J. 1.Where the debtor is insolvent and the property sold the only asset out of which previous judicial mortgages can he paid, they must he satisfied out of the proceeds according to the date of their registry. Rev. C. C. 3322. Qid prior est tempore, potior est jure. 7 A. 344; C.P. 301, 403. 2.A third opposition is the proper proceeding for a judicial mortgage creditor to assert his privilege where his debtor is insolvent.

PPEAL from the Civil District Court for the Parish of Orleans-. Ú1. Monroe, J. 1. A managing director of a corporation stands in the relation of a fiduciary or trustee. he cannot oontract with himself, nor take any other position in his own interest which is adverse to liis trust. 103 V. S. 657-8:25 B(*avt586: 1 Younge & Collyer C. C. 326; 30 Barh. 553; 37 H. Y. 317; L. It. 3 App. Cases, 1218; 59 Me. 277. The principle is not new in Louisiana. 27 A. 641. 2.

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

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

Monroe, J. The laws of the State giving to sheriffs the right of demanding from a party seizing personal property, claimed by a third person, abo?id of indemnity, is, by Act of Congress, made applicable to the marshal of the United States, in similar case of seizure under process, mesne or final, issuing out of the Federal courts sitting in the State. Rev. Stat. of La. sees. 3579, 3581,3584; Rev. Stat.

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

<p>A ‘ PPEAL from the Sixth Judicial District Court, Parish of Morehouse . t\. Brigham, J.</p>

<p>Appeal lies from order of judge a quo rescinding bis former voluntary recusation against tlxe protest of a party, and after tlie recusation lias been acted upon. Such order of rescission is illegal.</p>

. Lazarus, J. Plaintiffs, owners of valuable property, occupied by them as dwelling house*, complain of a nuisance constructed by defendant near them, which causes them special damage, impairing the use and value of their houses and endangering the lives of their families. An injunction was granted by the court, and on a trial before a jury was maintained; and it is apparent from the record that the jury found defendant’s structure and appurtenances a nuisance per se.

A PPEAL from the Civil District Court for the Parish of Orleans. Laewus, J. A sale made subject to a condition which has not happened is not complete and cannot be enforced. C. 0. 2457, 2025; 1 Domat sec. 8, p. 213. When goods and produce are sold by weight, tale or measure, the sale is not complete until the things sold are weighed, counted or measured. C. C. 2458; Campbell vs. Penn, 7 A. 371; 12 K. 53 ; 15 A. 438; 17 A. 146; 21 A. 414; 1 Domat, sec. 7, p. 221.

<p>After the evidence is closed in the trial of a criminal case the defendent cannot be allowed to introduce other testimony, even with a view to contradict statements of a state witness, drawn out of him in rebuttal, on the pretense that his statements embraced new matters. The proper course is to object to such testimony or to move for its expulsion. There must be an end-of the trial, which would otherwise be protracted indefinitely.</p> <p>A motion in arrest of judgment is not the proper mode of presenting objections to the man. ner of drawing or organizing either the grand or petit jury, or of presenting errors not apparent on the face of the record.</p> <p>District judges have the right to order special jury terms at which all criminal cases may bo tried. The right is not limited to special terms for the trial of minor offenses with a jury less than twelve in number. State vs. Claude, 35 A. 71, affirmed.</p>

t. Heirs who take possession of a succession that owes no debts become absolute owners. 31 A.506; 33 A. 827; 34 A. 1168; 30 A. 93; 32 A. 321.

<p>PPEAL from the Niueteentli District Court, Parish of Terrebonne. Goode, J.</p> <p>1. Appellant’s constitutional right of appeal cannot be taken away by the ex parte affidavit of appellee. Alleged acquiescence in the judgment appealed from must be brought to the attention of the court by the highest species of evidence which the facts are susceptible, otherwise it cannot be noticed. 29 A. 862; 32 A. 176.</p> <p>2. The provision of Article 567, C. P., will not be extended by presumption or implication. The acts relied on to show an acquiescence in the judgment appealed from should be unequivocal. 29 A. 763, Where the judgment is seyerahle and divisible, its partial execution will not debar appellant’s right of appeal as to the remainder. 35 A. 213; 4 A. 216; 3 11. 253 ; G E. 273 ; 3 A. 358. 593 ; 23 A. 152: 3 "Wal. 687, 688,</p> <p>3. Mules placed upon a plantation by its owner and. intended for the cultivation thereof, become immovable by destination, it. C. C. art. 468; 23 A. 749; 27 A._657.</p> <p>4 The vendor’s privilege upon movables which have become immovable by destination ceases to exist, and cannot be exercised to the prejudice of third persons, hypothecary creditors of the vendee. Troplong Priv. et Hyp. T. 1, "Nos. 109, 114. et seq.; C. rej. 22 Janv, 1833 (Mirault): S.-Y. 33, 1. 446; X). P. 33,1, 151; G-renoble, 18 .7anv. 1833 (Marade); S.-Y. 33, 2, 462; D. P. 33, 1, 85.</p> <p>5. The vendor of movable’s cannot demand the resolution of the sale for the non-payment of the price, when the objects sold have become immovable by destination and are subject to the hypothecary claims of third persons. Lyon, 21 Mars. 1839 (Cavé): S.-Y. 39, 2, 423; D. P. 39, 2, 104 : 0. rej. 9 Dec. 1835 (Périer); S.-Y. 36, 1, 177; L. P.36,1, 5; Paris, 16 Aout, 1832_(Yeyvaaset); S.-Y. 33, 2, 474; D. P. 34, 2, 25; Paris, 24 Hov. 1845 (Hallette); S.-Y- 45, 2, 664; Marcadé, T. 6, Tit. YI. art. 1656, p. 288; Paris, 25 Juill. 1846 (Maire); S.-Y. 46, 2, 358; I). P. 46, 2, '151; P. 46, 2, 562, and id.; C- rej. 9 ¿Turn, 1847 (méme affaire;) S.-V. 47, 1, 889; D. P. 47, 1, 248.</p> <p>6. The vendor of an immovable, availing himself of the resultory condition, must have the property restored with all the improvements and accretions which have become incorporated with it. 3 A. 60S.</p> <p>ON MOTION TO DISMISS.</p> <p>Appellant cannot reap the benefits of the judgment in its favorable features and ask in the same breath the reversal of the same judgment in other respects when unfavorable to them. 32 ¿.947.</p> <p>Having gone into possession of the plantation under the same judgment which rejected his demand for the mules and having seized the mules as movables and claimed a portion of the proceeds of their sale, the appellant has abandoned the only question which is raised by him on appeal.</p> <p>OH THE MEEITS.</p> <p>The resolution of the sale of a plantation does not carry with it mules purchased subsequently to tlie purchase of the plantation, nor is the vendor’s lion on said mules lost by the fact that the plantation reverts to its original owner. C. 0 . 2045 ; 31 A. 634; 32 A. 463; 29 A. 607; 28 A. 741; O. C. 3250; 32 A. 463; 29 A. 607: 28 A. 741; O. C. 3250; 14 A. 342; 28 A. 739; Potliier Contract of Sale, secs. 382, 404, 470.</p> <p>The registry laws are to be consulted only when there is a conflict between parties claiming mortgage or privilege. Shelly’s claim is not based upon either. 32 A. 463: 24 A. 541; 24 A 498: 12 K. 279; 12 A. 699; 12 A. 227; Con. 1879, Act 177.</p> <p>"Where a privilege is granted by law. it is for him who maintains its loss to show some provision by which it is extinguished or excepted from the general rule. 12 A. 698.</p> <p>The vendor’s 'privilege is not lost by the fact that the property has become immovable by destination; quoad tbe vendor it is always a movable. 28 A. 750; 32 A. 1285; 34 A. 535, 923; C. C. 3227, 3277 ; 12 A. 227.</p>

<p>PPEAL from the Sixth District Court,' Parish of Morehouse. Brigham, J.</p>

<p>An action in damages against a common carrier for injury sustained "by goods between delivery by consignor for transportation and delivery at the place of destination, arises from the breach of the contract of affreightment ex contractu, not from a quasi offense ex delicto. The negligence or non-feasance does not constitute a case of trespass, which implies the actual commission of an act by the use of force or violence.</p> <p>A suit to recover damages said to have been thus sustained in consequence, must be brought at the place of the domicil.</p>

<p>Vhe only bond which can be required of a party appealing suspensively from a judgment rendered against such party, as a judgment debtor, for a forced surrender of his property under the provisions of sec. 1781. Revised Statutes, is a bond for probable costs.</p> <p>Such a judgment does not condemn him to pay any sum of money or to deliver any movable or immovable property; hence the appeal bond is not regulated by Arts..575, 576 and 577, Code of Practice.</p> <p>In fixing the amount of a devolutive appeal bond, the judge of the lower court must ascertain the amount of probable costs, and in computing che same in appeals from the Civil District Court for the parish of Orleans, he must consider the system which requires the payment of the transcript to or otherwise provided for.</p>

<p>A PPDTOATION for Mandamus.</p>

<p>The incompotency of one member of a grand jury vitiates an indictment found by it. and a motion to quash, on such ground, made prior to plea, is timely and proper.</p>

Knobloch, J. 1.When property is sold at auction, the highest bidder is declared to be the purchaser, and the thing sold is adjudicated to him. R. L\ C. 2607. This adjudication is the completion of the sale. The contract from that timéis governed by the same rules which govern the ordinary contract of sale It.

<p>Where tlie sum demanded is above the appealable amount, the fact that an intervention is for less than that amount, will not make the case less appealable, where the plaintiff’s claim is rejected and he appeals.</p> <p>A simulated sale and mortgage of lands can be attacked by creditors of the apparent vendor when proceedings are taken to foreclose the mortgage.</p>

<p>^ JPPLIOATIOX for Mandamus.</p>

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

<p>It is undoubtedly correct, as a rule, that an erroneous instruction or charge to the jury caD not be corrected simply by another instruction or charge -which states the law accurately; hut the rule does not obtain where the erroneous instruction is expressly admitted to be such and is formally withdrawn from the jury by the trial judge, who, in doing so, gives the law correctly, as should have been done at first.</p>

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

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

<p>In tho absence of sufficient proof to repel the presumption of the gratuity of services rendered in the execution of a mandate, courts are powerless to allow remuneration for such.</p> <p>Specially will tho same be denied where surrounding circumstances fortify that presumption.</p>

<p>In an agreement between a sugar planter and another party for x-he cultivation of a crop on joint account, the planter is not responsible in damages, for injury done to his co-associate’s cane by an unexpected freeze, or for delay in saving the crop, when impeded in his operations by incessant rains and bad roads.</p> <p>In a settlement of accounts between such parties the court cannot reject the itemized account of one of the parties on the ground that the charges are excessive, and consider expert testimony for the purpose of ascertaining the quantum meruit. JL'lie items of the account must be scrutinized under the evidence, and rejedted or allowed under the preponderance of evidence.</p>

PPEAL from tbe Tenth District Court, Parish of Red River. Logan, J. 1. A creditor of the insolvent, with the right of mortgage upon the property surrendered, not upon the schodule, may sue tlie syndic to be placed upon tlio schedule with his debt and mortgage. Revised Statutes, sec. 1811; 1 L. 172. 2.

A PPEAL from the Civil District Court for the Parisli of Orleans.

<p>(Consolidated.)</p> <p>A mortgage creditor can proceed via executive to enforce his claim, nothwithstandrag the death of the mortgagor, and even though the property is under administration.</p> <p>If he does not thus proceed, the executor may obtain an order of sale in the mortuary proceedings as the representative of all the creditors.</p> <p>But the mortgage creditor cannot he forced to submit to a sale of fractional parts oí' the mortgaged property, nor can he he compelled to run the risk of diminishing its saleable value, by submitting to a sale in lots and on credit on the theory that, if sold piecemeal, tlie property will realize more than if sold in block and for cash.</p> <p>If the executrix has been forced to give security for the mortgage debt at the instance of the party holding it, he is protected against all contingencies, and cannot complain if the sale proceeds under her order, -where the terms and mode of sale have been changed to conform to his demands.</p>

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

A PPEAL from tlie Eighth District Court, Parish of Madisou. ri Deloney, J. 1. A minor alleging that through a fraudulent conspiracy entered into between the executors of the estate to which he is a legatee, whereby said executors, through a party interposed, purchase at a sheriff’s sale the property “ entrusted to their administration. ” to his damage and far below its value, and in violation of law, does set forth a cause of action, ft.

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

<p>As between tlie parties, consent is essential to establish, a partnership, by which is meant, not that the parties should qualify their contract as a partnership co nomvne, but that such consent should appear either from the terms or the nature of the contract. Where, as in this case, it affirmatively appears that pne party employs the other and agieos to pay him a stipulated proportion of the net profits as compensation for services, that does not constitute a partnership inter sese.</p> <p>The fact that plaintiff earned on business in the name of Halliday <& Go., without any partner, cannot relieve defendant from paying him what he justly owes,</p> <p>Defendant being the manager of the business in New Orleans, in the absence of plaintiff, who resided in St. Louis, and having control of the book-keeper and books, the books are proper evidence against him, being, properly speaking, his own statements of the business to his absent principal. Other defenses are without merit.</p>

<p>APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.</p> <p>Defendant a,nd Appellee unrepresented in this Court.</p>

<p>The burden, of proof in a suit in damages for the hilling of animals by a railway company rests on the plaintiff to show negligence. Stevenson’s case, 35 A. 498. affirmed.</p> <p>A company which is induced to build its road through certain lands, which does so, and which is permitted to ran its trains regularly through the same, cannot be considered as a trespasser.</p> <p>A company is not at fault for not fencing in its track, although the same runs through a pasture ground, in the absence of contract or law requiring that protection.</p>

<p>APPEAL from the Mayor’s Court of Baton Rouge. Booth, J.</p>

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

<p>"When there are two distinct immovables in a succession, hotli of which are subject to the same first mortgage, and each subject to diflorent second mortgages, the administrator cannot, by provoking a sale of one immovable before the other, benefit the second mortgagees on the immovable unsold, to the prejudice of those on that sold, by the distribution of the entire price of the latter to the extinguishment of the first mortgage.</p> <p>Although the right of the first mortgage creditor to take the proceeds is absolute, order will be made, when the other immovable shall ho sold, to make such distribution of the proceeds thereof as will leave the respective second mortgage creditors in the same position as if both immovables had been sold and the proceeds of both marshaled for simultaneous distribution.</p>

<p>PPEAL from the Eighth District Court, Déloney, J. Parish of East Carroll.</p>

<p>■\ PPEAL from the Twenty-sixth District Court, Parish of St. .IfL. Charles. Halm, J.</p>

<p>PPEAL from the Twelfth District Court, Parish of Avoyelles. aTsl. Karlin, J.</p>

<p>APPEAL from the Twelfth District Court, Parish of Avoyelles. Oullom, Judge ad hoc.</p>

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

<p>In a suit "by tlie payee of a check against the drawer, notice of presentment and of dishonor may he oral and verbal, but it must be proved. Presumptions and beliefs that such notices were given will not suffice. There must be certainty and exactitade of proof that they were given.</p>

1 PPEAL from the Seventeenth District Court, Parish of East Baton . Kouge. Slierbwm, J. The title to real estate passes absolutely, as to the whole world, by the act of sale thereof, be it recorded or not, subject to the rights of certain creditors. 35 A. 831.

<p>The trial judge, in a criminal case, is Tested hy law with the discretionary powers to discharge jurors already empaneled in the case and to reassign the cause for another day, if he believes that there is a necessity for such ruling, and that the ends of justice will he best subserved bv such a course.</p> <p>The belief of the judge, apparently well founded, that the jurors already selected and sworn had been illegally drawn, is manifestly a reason to justify such ruling.</p>

<p>APPEAL fuom the Ninth District Court, Parish of Concordia. Sough, J.</p>

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

<p>"Where suit is brought upon a contract of affreightment for a part of a ship’s load, to be delivered on or about a given day, and the ship’s arrival at port is delayed by an accident to her machinery so that the shipper has to employ another vessel, he will be released from his 9bligation to comply with the contract, unless he has voluntarily continued it, and has waived his right to a release by demanding compliance therewith by the ship.</p>

<p>One, who alleges himself to be the owner of a judgment, who charges that the title to the same, in another party, is a simulation and who asks to be recognized as owner, contradictorily with that party, does not attack the title collaterally, but directly. Evidence to prove simulation of the title attacked is well admissible.</p> <p>Simulation having been proved, plaintiff is entitled to relief.</p>

<p>The question of tlie constitutionality or legality of the interest imposed by the Legislature upon delinquent municipal taxes, does not involve the legality or constitutionality of the tax; nor is it a penalty imposed by a municipal corporation, being imposed, even if a penalty, within the meaning of the Constitution, by the Legislature of the State.</p> <p>The case does not, therefore, fall within our appellate jurisdiction.</p>

<p>Where the original petition is for an unappealable sum, and an amended petition is filed for the sole purpose of inflating the demand so that our jurisdiction may embrace it, the appeal will be dismissed. It is not more permissible to endeavor to compel jurisdiction by averments of fictitious values than by averments of fictitious claims.</p>

<p>APPEAL from the Fifteenth District Court, Parish of Pointe Coupee. Toist, J.</p>

<p>A bond of fifty dollars cannot support a suspensive appeal predicated on an order for a bond of one hundred and fifty dollars.</p> <p>An agreement between parties consenting to a decision of cause at chambers, reserving appeal to either party, on a bond of §100 for a suspensive, and $50 for a devolutivo apjieal, is necessarily superseded and revoked by a different and subsequent agreement, fixing no amount for a suspensive appeal and containing no reference to a devolutive appeal. In sucli a case, the amount of the bond for either mode of appeal must be fixed by the court and the bond unvusti comply -with the order of appeal.</p>

<p>A challenge to the array must 1)0 made upon the first day of tho term, under tho requirements of Act 44, of 1879. This not is operative in the parish of Jefferson and superseded previous acts upon tho same subject-matter relating to said parish, special and general.</p> <p>Where ampio opportunity is afforded tho accused to procuro tho attendance of a witness and ho fails to liavo issued a subpoena for him, and there is otherwise a lacle of diligence, a continuance should not ho granted. That tho witness is summoned by tho State makes no difference.</p> <p>Where a witness cannot bo found at his usual placo of residence, and the search and inquiries for him lead tho officer to tho conclusion that ho has left the State, the deposition at the preliminary trial was properly admitted.</p>

<p>In a suit between residents of the same parish, in which plaintiff proceeded by attachment of his debtor’s property, the defendant is not entitled to institute a demand in reconvention for damages growing out of the attachment.</p> <p>Such a demand is not only different from the main action, but is not necessarily connected •with and incidental to the same. In such cases the reconventional demand will be dismissed as in case of non-suit.</p>

<p>A P'PE AL from the Criminal District Court for the Parish of Orleans. íTl. Homan, J.</p>

<p>Consolidated.</p> <p>Exceptors have no interest to question the validity of the judgment of the parish court of Concordia recognizing their opponents as widow and heir of Hitchcock and putting them in possession of his estate. They exhibit nothing throwing doubt upon the sole heirship oí the heir or indicating any other person having rights as such, and whether the mother be surviving widow in community or not, she is recognized as such by the heir, who has accepted unconditionally and joins her in these proceedings, by which she is fully bound.</p>

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

<p>"Where the deceased owed no debts, and the claims against the succession are small and not urgent, an injunction by the beneficiary heirs or their representatives, restraining the instant sale of the property, will be maintained, if such heirs offer to pay the debts and legacies, or tender a sum sufficient to cover them.</p>

<p>A PPL1CATION for Mandamus.</p>

<p>The fees of an attorney of absent heirs are chargeable to the portions of the heirs whom he represents.</p> <p>An exception will apply to cases where the services of such attorney have proved valuable and beneficial to the succession, in which cases he will be allowed a reasonable compensation out of the mass of the succession.</p> <p>In a contest for the administration of a succession, the attorney of the defeated applicant has no claim for his services against the succession. Butin a case where the defeated applicant is named as an alternate executor in the will of the deceased, his attorney will he entitled to a reasonable compensation from the succession for such of his services as were beneficial to the estate, such as procuring an inventory and the appointment of an attorney of absent heirs and the like.</p>

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

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

<p>The use of clue diligence is a pre-requisite to obtaining a continuance of a criminal prosecution.</p> <p>Attachments for absent witnesses cannot be issued unless they be personally served with subpcenas.</p> <p>To procure a continuance because of an absent witness, the accused must aver in his affidavit that he cannot prove by any present witness the fact he expects to prove by him, for whose absence the continuance is prayed: And the fact he expects to prove must be stated.</p> <p>Where there has keen a continuance, and a copy of the indictment has been served on the. accused once, it need not he served again immediately preceding the trial.</p> <p>An objection to a ruling of the trial judge on a criminal prosecution, and a reservation of a hill thereto, noted in the minutes of the court, will not he noticed unless the objection is made the subject of a bill duly signed and certified by the judge. The Act of 1877, permitting an objection to be reserved by the clerk taking a note thereof, is an amendment of the Code of Practice, and as that Code regulates the practice of civil causes alone, the amendment can relate alone to those causes.</p>

<p>Matured notes growing out of tlio same transaction, in the hands of the same creditor against the same debtor, constitute hut one debt.</p> <p>Payments made after maturity of such notes, are imputable to the entire debt.</p>

<p>Interdicted persons are, in ©very respect, subjected to tlie same rules and. protected by the same laws which govern minors.</p> <p>The curator of an interdicted person cannot incur expenses for the support and maintenance of his ward in excess of the latter’s revenues.</p> <p>Such expenditures, unless authorized by a family meeting, are at tho risk of tho curator, who, in his final account, will be held liable for the capital, intact, of the interdict’s estate.</p> <p>The account of a curator is due to the court, and his omission to make the heirs of the inter diet parties to the proceeding will not debar the latter of their right to oppose his account.</p>

<p>A PPLICATION for Certiorari and Mandamus.</p> <p>Where, under a writ of attachment, a debt due by a third person, made party garnishee, has been seized in his hands, if the defendant in the attachment suit gives a release bond under Article 259 C. I?M the attachment is thereby dissolved, the bond substituted for the property attached, and the garnishee canuot set up the pendency of the suit as a reason for withholding any part of the debt. 2 A. 243; 18 L. 58.</p> <p>Under Act Ho. 51 of 1876, p. 92, one not a party to the suit claiming to be in the actual or constructive possession of the property, real or personal, attached, may on intervening in the suit, and on prima facie showing to the court, that he is the bona fide owner, pledgee or consignee of the property, have the same delivered to him on executing a bond in the same manner and amount, within the same delay, and with the same effect as the defendant himself could.</p> <p>"Where such an intervenor has been allowed to bond the property attached, the attachment being thereby dissolved, the garnishment is thereby released, the garnishee ceases to be a party to the suit, and the property attached in his hands is no longer in custodia legis, or subject to the control of the court.</p> <p>When after such bonding by the intervenor the garnishee, conformably to the authorization of the court, has paid to the intervenor the amount of the debt attached, the plaintiff in attachment cannot, on the subsequent trial of the case on the merits, disregard the dissolution of the attachment by the release bond furnished by the intervenor, treat the garnishee as still a party to the suit, and take judgment against him personally. Such a judgment is coram nonjudice and an absolute nullity.</p> <p>Such void judgment may be attacked at any time, in any form of proceeding, whether collaterally or by direct action, by any one having the least interest to have the nullity pronounced. 30 A. 692; 29 A. 647; 24 A. 253 ; 33 A. 618.</p> <p>An execution upon such a iudgment can be considered as issued without a judgment to sup - port it. 33 A. 618.</p> <p>Even though the garnishee might have appealed therefrom, his right at any time to relief by an action in nullity is expressly secured to him by law. O. 3?. arts. 604, 611, 612; 5 A. 218.</p> <p>It was error, therefore, on the part of the court of appeals to have maintained an exception to the effect that in such a case an action in nullity did not lie, and that relief was only obtainable by appeal.</p> <p>The refusal of the court of appeals to go into the merits of the action in nullity was.based upon an erroneous construction of a question of law and practice preliminary to the whole case.</p> <p>In such a case, your Honors have held that your supervisory control over an inferior court, under Article 90 of the Constitution, could be invoked to compel, by mandamus, such court to reinstate the case and proceed to a hearing on tlie merits. State ex rel. McG-ee et al. vs. Judges Court of Appeals, 33 A. 182; High on Ex. Hem. § 151.</p> <p>1. ‘Where the circuit court has taken jurisdiction and decided the case, maintaining a'peremptory exception, its acts are riot roviewable and mandamus and certiorari will not lie. 33 A. 16, 182, 1201; 34 A. 782; 35 A. 838; 32 A. 2224, 552.</p> <p>2 The decision of a peremptory exception which disposes of the case is not a construction of some question of law or of practice preliminary to the whole case,” hut is a final judgment, combining on its face the elements of jurisdiction and decision, the whole an act of judicial discretion.</p> <p>3. When a record is opened for discussion on the points of defense, that fact evidences the determination of all preliminary questions, and the decree disposing of the case according to the judgment of the court does not fall under the supervisory control of this Court. d</p> <p>4. An action of nullity does not lie when the plaintifi had remedy hy appeal. A litigant’s laches are no grounds for nullity.</p> <p>5. A judgment is not absolutely null which was predicated on a citation duly served.</p>

<p>A partition of a tract of land, made under a decree of the Supremo Court affirming that below, if attachable, can ho attacked only in a direct action for its annulment.</p> <p>Tlie details for making partitions prescribed with minuteness in tlie Civil Codo aromado with special reference to partitions of successions. When a partition is sought between co-owners of property who aro not co-heirs, the general rulos thus prescribed will govern, blit such details as are manifestly inapplicable will not bo considered sacramental.</p>

<p>When persons mutually engage in bandying opprobrious epithets, an action of slander for words thus uttered will not be encouraged.</p> <p>In a suit in damages foi* trespass, and assault and battery, in which the- jury clearly fail to render a proper verdict, the appellate court reviewing the facts will set the verdict aside and render such judgment as the nature of the case and justice may demand.</p>

<p>A party seeking to recover under an alleged partnership, against his alleged partner, must prove the existence of the partnership with legal certainty.</p> <p>In this case, in which plaintiff claims that he was a partner with the defendant in the construction of certain wharves and in a wharfage business carried thereon, the evidence shows that the wharves had been constructed under a contract made by defendant in his individual name, with funds realized by means of his individual noto; and that the plaintiff was his solicitor and collector on a compensation consisting of one-fourtli of the gross receipts of the wharfage business. Hence, there was no partnership and plaintiff has no ownership in the wharves.</p>

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

<p>An appeal must be dismissed when tbe transcript contains no pleadings, and presents no question of law or fact for decision.</p> <p>Unless tlie amount in dispute .somewhere appears in tbe transcript, dismissal ensues for want of jurisdiction; but if jurisdiction is apparent and tbe transcript is barren of any issue of law or fact, there is nothing to decide, and dismissal equally follows:</p>

<p>A PPEAL from tlie Seventeenth District Court, Parish of East £jL Baton Rouge. Sherburm, J.</p>

<p>A party for whom constructions consisting of improvements and appurtenances have been made under contract, who has accepted the work, has expressed his satisfaction therewith, and settled therefor without objection or complaint, is estopped for claiming damages for alleged violations of said contract.</p> <p>Under a contract for general work, in which the owner makes a direct contract with a carpenter and engineer for these respective specialties, the general contractor cannot be held responsible in damages for the alleged shortcomings oí either.</p>

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

<p>PPEAL from tho Twelfth District Court, Parish of Rapides. x JL Blackman, J. -</p>

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

<p>On a rule on administratix to pay debts.</p> <p>The decretal part of a judgment rendered by the Supremo Court, and not the opinion or the reasons, afford the proper test to ascortnin the matters which become res adjudicator undor tlio docrco.</p> <p>An order or judgment rescinding an order of appeal previously obtained by a party to a suit will bo annnllod and sot aside if it apnoars that the rescinding order was rendered after tho death of the party who had obtained the appoal.</p> <p>The latter’s administrator is competent to prosecute an appeal from such a judgment.</p>

<p>PPEAL from the Seventeenth District Court, Parish of East Baton A Rouge. Sherburn, J.</p>

<p>PPEAL from the Sixth District Court, Parish of West Carroll. Brigham, J.</p>

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

<p>In proceedings by a railroad company for the forced expropriation, of lands for the construction of its road, the test of the value of the lands is their market valuó as shown by the evidence. The assessment of a plantation of several hundred acres of land, among which is a large proportion of swamp lands, at an average price per acre, by the owner, will not estop him from proving a higher value of that portion of his lands which the railroad company proposes to use.</p> <p>The railroad company is responsible for all impediments to drainage and to the system of cultivation which the location of the road causes to the owner of the expropriated and contiguous lands. Vicksburg, Shreveport and Pacific K. R. Oo. vs. Dillard; Bourdier St Bebiesen vs. Morgan R. R. Co. Affirmed.</p>

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

<p>APPEAL from the Eleventh District Court, Parish of Sabine. Pierson, J-.</p>

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

<p>Praying for Writs of Certiorari and Habeas Corpus.</p> <p>The relator haring in his possession eertain movable property for which a writ of seques, tration was issued, and being ordered hy the district judge to deliver said property to tho sheriff, refused to obey tho order and was imprisoned for contempt. He applied to this Court for writs of certiorari and habeas cmpus. Held that his possession of tho property not being under or by 03 der of court, his refusal to deliver it to the sheriff, did not constitute a case of conic nipt-, and that he is entitled to tho habeas corpus item this Court.</p>

Oheevers, J. PACTS. 1. This case was remanded for the talking of further testimony as to whether the contract of sale between plaintiffs and Lagaré was consummated in Louisiana or Ohio. 34 A. 926. 2. An executory contract between plaintiffs and Legaré was made in Ohio, subject to the sus-■pensive condition that the boilers were delivered in Louisiana to the vendee and found, after personal inspection and view, in good order and satisfactory.

PPPEAL from the Second liecorder’s Court of New Orleans. Ford, J. 1. The “ Gardeners’ Tax,” levied by Section. 9 of City Ordinance 479, C, S., is admitted to be without authority under the taxing power delegated to the city of New Orleans. 2. The taxing power of the city is its only power for obtaining revenue, by exactions or contributions levied upon its citizens, and that power is limited to the ad valorem or property tax and a tax on occupations known as the license tax.

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

<p>In a caso where tlie amount of the principal demand is not suiiicient for the jurisdiction of the Supreme Court, but that of the reconventional demand falls under its jurisdiction, if the defendant obtains an order of appeal from the entire judgment in the alternative and furnishes a bond exceeding the amount fixed for the devolutive appeal bond, his ap-X>oal will be sustained on his reconventional demand.</p> <p>The owner of a sugar refinery who contracts to granulate the crop of syrup of another, will not be responsible in damages for shortness of result, and inferior quality of the sugar obtained, unless the effect can be attributed under the evidence to his fault, negligence, want of skill, or to his defective machinery.</p>

<p>APPEAL from the Ninth District Court, Parish of Concordia. Bough, J.</p>

<p>In prosecutions for libel, proof of publication, libellous and unauthorised on its face, makes out a pi'kna facie case for the State and establishes a legal presumption of malice. The burden of establishing justification is then thrown upon defendant.</p> <p>If the publication be not privilege^ justification can only lesulfc from proof, both that the matter charged was true and that the publication was made with good motives and jus* tillable ends.</p> <p>Article 168 of the Constitution is not inconsistent with, and does not repeal section 3641, Revised Statutes,</p> <p>Belief in the truth of libellous matter charged, when not privileged, is no justification when the charge is actually false</p> <p>The action of a member of a congregation in publishing to all the world a libel concerning his minister or priest is not privileged — however, it might be with like communication addressed to the church authorities.</p>

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

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

<p>On an appeal from a judgment appointing tlie public administrator for tlie parish of Orleans administrator of a succession alleged by him tobe vacant, the question is not whether the deceased had left heirs present or represented, in the State, hut whether the existence of such heirs was made known, by opposition or otherwise, to the court, before the rendition of the judgment.</p> <p>If the judgment was preceded by an application with proper allegations, by public notice, was rendered after legal delays, and without opposition, the appellate tribunal cannot consider evidence brought after the judgment tending to show the existence and presence of legal heirs with a view to obtain a reversal of the judgment.</p>

<p>Where the transcript is complete, hut the certificate of the clerk is defective in not showing it, the omission in the certificate may ho supplied hy a proper and timely motion.</p> <p>Where no judgmonfc for damages is rendered or prayed for against the surety on an injunction bond, he is a competent surety on the bond of appeal taken from the judgment dissolving the injunction.</p> <p>Where, after marriage and under the regime of the community, a business -which had formerly belonged to and been conducted hy the wife, is conducted in the name of the husband, it becomes the business of the community, and its acquests and good-will are liable to seizure for the husband’s debts.</p>

<p>APPEAL from tho Twenty-second District Court, Parish of St. James. Oheevers, J.</p>

<p>While the range of cases in which writs of mandamus maybe issued is enlarged by the grant of supervisory power over inferior courts, it does not follow that that writ may be invoked always instead of an appeal. It would revolutionize our jurisprudence to hold that evory right that was formerly enforced by appeal and every wrong that was formerly redressed by appeal can now be enforced by mandamus when an emergency seems to require or invite it.</p> <p>A mandamus will not issue to compel an inferior judge to bond an injunction when he has refused to dissolve on bond. The remedy is by appeal.</p>

<p>A special statuto exempting property from taxation in 1858, is not repealed by tbe Constitution of 1879. N. O. vs. X^oydras Asylum, 33 A. 850, affirmed.</p> <p>An unqualified exemption by tlie State, implies an immunity from municipal taxation. Whenever tbe sovereign exonerates, be does so with munificence, unless restictions have been formally expressed.</p> <p>Under sectiou 9 of Act 74 of 1858, tbe capital stock of tbe defendant company is not liable to assessment and tax for fifty years.</p>

<p>A PPEAL from the Twenty-sixth District Court, Parish of Jefferson. l.\. Hahn, 3.</p>

<p>Where the plain tiff in a petitory action claims tlieland in controversy under a title which lie as serts was warranted hy the author ol‘ the defendant’s title opposed to him and that the defendant is thereby estopped from setting up his title against him, the fact of the warranty must ho clearly established and may he disproved hy evidence showing a distinct and continued acknowledgment of the titlo of deion4ant’s author hy those from whom or through whom the plaintiff claims.</p> <p>Such acknowledgment may also he opposed to a claim of title hy plaintiff based on presumption.</p> <p>Even where a title has been acquired hy proscription, it may afterwards he lost by su hso-quent adverse possession of the land, peaceable and undisturbed for more than two years, hy one holding a just title translative of tli© property.</p>

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

<p>"Where one is administrator of a succession which has a claim against him individually, or as unconditional heir of another decedent, prescription is suspended during the continuance of the administration.</p> <p>Prescription is likewise suspended as to such claim against one who is his co-heir, or who is hound with him in the same manner and for the sam e sum. A suit hy him, as administrator of one succession, against his co-heir in another succession, when their liability quoad this claim is the same, would he virtually a suit against himself.</p> <p>A claim against one for rents collected and received hy the connivance or consent of the administrator to whom they belonged, is likened to the responsibility of a negotiorum gestor rather than a wrong-doer, and the action to recover them is not ex delicto. The proscription of one year is not applicable thereto hut that of ton years.</p> <p>The doctrine: contro, non valentón agere non currit prescription ’ is not inconsistent with the laws of Louisiana, or repugnant to our system of jurisprudence, and will he enforced in proper cases.</p> <p>Opinions and dicta to the contrary must he considered as overruled. The decision in the Succession of Parmer, 32 A. 1037, affirmed.</p>

<p>A tenant who quits promises, to which he claims to have obtained a new lease, and which he declares he has left because ordered to do so by his landlord, cannot successfully claim damages for an illegal and wrongful ejectment.</p>

<p>APPEAL from the Twelfth District Court, Parish of Grant. Harbin, J.</p>

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

<p>Where nothing in the pleadings of the parties nor in the entire record informs the Court that the subject matter is within its jurisdictional amount, the Court proprio matu -will dismiss the appeal.</p> <p>The fact of its jurisdiction must be made affirmatively to appear.</p>

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

<p>A PPEAL from the Civil District Court for the Parish of Orleans. t\. Bightor J.</p>

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

<p>A PPEAL from the Seventeenth District Court, Parish of East Baton Jl\_ Rouge. Sherburn, J.</p>

<p>The exemption from taxation of defendant’s property by its charter, passed in 1877, is unconstitutional, and the city’s demand for taxes is sustained.</p> <p>To the extent that the exemption was the consideration of defendant’s obligation to supply free water to the city, defendant is entitled to relief.</p> <p>The exemption was not the sole, but only part oí the consideration of the obligation to supply free water.</p> <p>This partial failure of consideration entitles defendant to relief to the precise extent thereof, which is accomplished by condemning the city to pay for its water to the value of the taxes recovered.</p>

<p>Consolidated.</p> <p>An agreement by which one transfers to another certain movable property with the proviso and condition that this latter is to sell it, pay himself what the transferror owes him, and distribute the residue to certain named persons, is not a sale, and the transferee does not thereby become tbe owner of the property. He is at most a bailee or trustee.</p> <p>A seizure under JL fa. of this property by a judgment creditor of the transferror is lawful, and an injunction by the transferee restraining the sale of it, will he dissolved with damages.</p>

<p>The light to "build branch roads and to expropriate for the purpose* Conferred by a charter to a railroad company, is embraced within the .title of its charter, which reads: “An to incorporate the Mississippi, Terre-aux-Bceufs and Lake Borgne .Railroad Company, and to define its powers and authoritj."</p> <p>The expropriated owner, through whose land the road is built, has a right of passage across it to go from one part to another.</p> <p>Where such owner has failed to adduce sufficient evidence in support of' his claim for damages, his right to assert and prove such should be reserved.</p>

<p>A sale of succession property made under an order of court to pay debts, on the application of creditors, is a judicial sale.</p> <p>The purchaser at such a sale, when it appears that the court was of competent jurisdiction, is not bound to look beyond the decree recognizing its necessity.</p>

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

<p>Tn a suit for damages occasioned by a wrongful act, prescription commences to run. not from the time the act was done, hut from the time when damage was sustained in consequence of it.</p> <p>"Where an act under private signature has been recorded upon due proof of its execution, and the original has been withdrawn from the Recorder's office by the party to whom it-belongs, a third person wishing to mahe it available against such party may introduce in evidence a copy of such record. It is the best evidence attainable by him.</p> <p>A. railway company that lias destroyed a levee for its own convenience and v iihout authority, building another at a different place, which gives way shortly thereafter, is responsible for tho damages consequent thereon.</p>

<p>On Third Opposition of M. L. Dickson.</p> <p>Property composing the community "between husband and wife accrues, at the dissolution of the community by the death of one of the spouses, in full ownership to the survivor and to the heirs of tho deceased eventually, subject to a usufruct in favor of the former and always burdened with the claims of creditors of the community, who can subject it to tho payment of their debts.</p> <p>The surviving spouse and the heirs can mortgage their undivided share or interest in the real estate thus acquired. Tho mortgage creditor, in seeking payment of his claim (there being no creditor of the community), is entitled to be paid out of the proceeds of sale of such interest, in preference to any claim of the heirs against the .surviving spouse not recorded at the date of the mortgage.</p> <p>The partnership or community, which may have been formed after the dissolution, between the surviving spouse and the heirs, is not to be likened to that once existing between husband and wife. Claims arising nftor dissolution of that community between the spouses, do not enjoy the rights and privileges attaching to claims against the conjugal community property.</p> <p>An improper allowance of interest on the decree can bo corrected and stricken out. without granting a rehearing.</p>

<p>A party ailing for an account of money and securities entrusted to another cannot, in tbo progress of trial, be allowed to shift his position and assume in argument that the prop* erty in question had been pledged and had been tortiously disposed of by the pledgee.</p> <p>A debtor who transfers securities in full ownership to his creditor in settlement of the latter’s claim, with the right of redemption -within a specified time, loses all lights and titles of ownership to that property if he fails to redeem within the prescribed delay. Such a contract is one of sale and not of pledge.</p>

<p>A libel is any publication whether in writing, print, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided,jor which has a tendency to injure him in his occupation.</p> <p>Publication is the communication of the libel or defamatory matter to a third person.</p> <p>Every sale or delivery of a written or printed copy of a libel is a fresh publication, and every person who sells a written or printed copy of it may be sued therefor, and the onus of proving that he was ignorant of its contents is on the defendant. In giving currency to slanderous and libellous reports and publications, a party is as much responsible crim - inally and civilly as if he had originated the defamation. His 'oi^y defence to a civil suit is to shew the truth of the charges preferred, while in a criminal prosecution not only must the truth'be proved, hut that the truth was published for good motives and for justifiable ends.</p> <p>The word ‘malice ’ in such cases does not imply, much less mean, ill will or personal malice. Malice is an imputation of the law from the false and slanderous nature of the charge. Legal malice need not bo proved. Actual malice may he proved to enhance the damages</p> <p>Any publication which is false and defamatory subjects the publisher and the seller to damages in favour of the party aggrieved, and it is not incumbent upon him to prove that he has been injured by the publication.</p> <p>The discharge of one who has been prosecuted for libel does not prove want of probable cause for the prosecution, nor malice in the prosecutor.</p>

<p>Notes executed by a young man in favor of Ms uncle, under the pressure of threats from the latter of talcing the life of the former in case of his refusal -to acknowledge a pretended indebtedness to his uncle, are invalid, and payment of the same will not be enforced by the courts.</p> <p>The reverential fear of a relative, coupled with threats, is sufficient to invalidate a contract.</p>

<p>A PPEAL from the Civil District Court for the Parish of Orleans. / A_. Bightor J.</p>

<p>Although tlie members of a planting partnership are hound only jointly for partnership debts, yet they may stipulate for a solidary obligation hv special contract, and they will be so hold by the courts.</p>

<p>A PPEAL from the Civil District Court for tho Parish of Orleans. J~\ Lazarus, J.</p>

<p>Where the owners of a steamboat are captain and clerk of her and she is chartered for a year, the charterer stipulating the privilege of appointing the oaptain and officers, and no change is made of the existing officers, it is a tacit appointment of them.</p> <p>The hoat is not less in the custody of the charterer becauso the master is also part owner. "Whete the charter-party gives the charterer full and absolute control of the boat when where and how she shall be employed, lie is responsible for damage done to the boat when ‘laid up’ equally ns when m voyage.</p> <p>"When the charter-party contains the agreement that the charterer shall be responsible for damage from unavoidable accident, and that the owner shall have the damage repaired which shall be reimbursed him by the charterer, the owner is entitled to judgment for such sum as he shall prove was expended by Mm for such repairs, after deducting the amount paid by insurance companies on their policies.</p>

<p>^JPPLICATION for Mandamus.</p>

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

<p>In a settlement of accounts^between planting partners, compound interest will_ not be allowed to either party unless it is shown by positive evidence that the party charged with interest had accepted the 'account as thus made or that he had directly or tacitly acquiesced in the charge of annual interest to be considered as capital in each ensuing account. Interest cannot be allowed on a claim never-presented to tbe’debtor before suit,,which is*allowed on a quaAitwm meruit, and the validity of which results from the judgment.</p> <p>The managing partner of an ordinary partnership is entitled to bo reimbursed his actual expenses necessarily incurred in the interest of the partnership.</p>

<p>Opposition of Edith Boyer to account of Administratrix.</p> <p>The wife has no proprietary interest in the property and effects of the community until its dissolution. Tourné vs. Creditors, 6 La. 459; Tourné vs. Tourné, 9 La. 452; G-uice vs. Lawrence, 2 A. 226.</p> <p>The husband is head and master of the community; and he may dispose of its revenues and movable effects gratuitously, without the consent or permission of the wife, and without accountability to her or her heirs. It is only whero the wife can prove, satisfactorily, that the husband has disposed of the community property by fraud, to injure her, that she can proceed against the heirs of the husband for one-half. R. O. C. Art. 2404.</p> <p>Repairs made, during the existence of the community, to the separate property of the husband, used and enjoyed by the spouses, are at the expense of the community; and the revenues of the separate property of the husband belong to the community, which cannot, therefore, be charged with the rents of such property.</p> <p>The recompense due for improvements to the separate property of the spouses, cannot exceed the enhanced value of the property, at the date of the dissolution of the community, resulting from such improvements. R. C. C. 2408.</p> <p>Money belonging to the child of the father by former marriage, received by him as tutor during the second marriage, is a debt of the second community; and it bears interest from the date at which it was so received and such community is liable for both the principal and interest of the debt.</p> <p>The widow in community has no claim for money expended by the deceased husband in the maintenance of his heir, child of a former marriage, either during the minority or majority of such heir, in the absence of all evidence of any intention on tbepart of the husband whilst living, of making such charge and the community is entirely solvent and possessed ample revenues during its existence.</p> <p>The community of acquets and gains is not strictly a partnership : it is the effect of a contract ; and it is governed hy special law. R. C. C. Article 2807.</p> <p>The widow in community, administratrix of the succession of the deceased husband, is entitled to commissions on the entire community property inventoried' as part of the , successions of her husband.</p>

<p>In a contract of employment for one year at a stipulated annual compensation, an express proviso reserving to the employer tlie right to discharge at any time, if dissatisfied with, the manner in which the employee performs his duties, is a valid and legal agreement which the courts must enforce.</p> <p>The employer has no right to discharge, prior to the end of the term, for any other cause than because he is dissatisfied ¡ and if it appears that the discharge was for other cause, as for instanoo, because his services were no longer needed in the business, or because the employer wished to reduce the number of his employees, or the like, and that the alleged dissatisfaction was a mere pretext, we should hold the employer responsible.</p> <p>But, in this case, the evidence satisfies us that the dissatisfaction was the true cause of the discharge and this exempts the employer from responsibility.</p>

<p>A motion to dismiss for incompleteness of the record must contain specifications of the particulars in which it is incomplete.</p> <p>The fact that, an appeal to the court of appeals was taken simultaneous with an appeal to this court is no ground for dismissal of the appeal here, there being no suggestion of our want of jurisdiction .</p> <p>An assignment of errors is in timo if filed -within ten days after the appeal is lodged in this Court.</p> <p>An assignment of errors on appefu tC. P. 897) is not entirely -vitiated because it contains grounds involving alleged errors of fact.</p> <p>The only effect is that such grounds will ho disregarded by the appellate court, hut alleged errors of law appearing on the face of the record will he considered and passed upon.</p> <p>Property in the possession of the sheriff under a legal writ at the instance of a judgment and privileged creditor cannot be seized and sold to the injury and detriment of such creditor. All that can bo seized are the rights and interest of the debtor subject to the pre-existing execution.</p> <p>The purchaser of such rights cannot as such enjoin and restrain the previous execution.</p> <p>The recent amendment to the Constitution touching the .appellate jurisdiction of this Court, does not apply to a case in which the ownership of property valued at $2000 and damages assessed at $100, are claimed.</p> <p>A petition for a rehearing which urges the points previously pressed and passed upon, offers no merit.</p>

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

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

Lamms, J. - 1. The absolute nullity of a judgment is a good defence to an action to revive it. Kiug vs, Pickett et als. 31 A. 1006. 2. A judgment against a dead man is an absolute nullity, and does not affect his heirs not made parties. McClosltoy, Bigley & Co. vs. Wingfield & Bridges, 29 A. 142, Edwards vs. Whited. 29 A. 650 ¡ 5 B. 508; 5 'A. 737. 3. There can he no evidence of the service of petition and citation except the sheriff's return.

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

Boyers, J. The sale of shares of stock in a corporation is perfect as between the vendor and the purchaser, by the agreement to sell followed by payment of the price, delivery of certificates, and by tbe vendor signing the transfer book of the corporation, so as to enable the purchaser to fill up his name as transferee in the transfer book, and such sale puts upon the purchaser all the risks and ownership accruing after such sale.

<p>In tbe absence of a published petition on tlie part of abutting proprietors, or of a similar notice of intention on tbe part of tbe city, based on a resolution duly adopted, for tbe paving of a street, recovery cannot be had from the front owners for the cost of such improvement.</p> <p>Section 1 of A.ct 73 of 1876, applies to ordinary streets; soction 2 refers to streets, or roadways, in tbe centre of which runs a middle, or neutral strip (not private property). It is in the last case only that the city can, by ordinance and of its own motion, order a paving?, but this can be done solely after a proper vote of the Council, and publication of a notice of municipal intention, subject to the right of front proprietors of objecting, on valid grounds.</p> <p>Section 3 of that act, which declares that tbe notarial contract for tbe work, executed by the Mayor, shall be prima, facie proof of compliance with antecedent legal requirements, is not conclusive on that subjeot. It shifts the burden on the property owner, who must be permitted, on plea'and proof, to rebut it.</p> <p>Tbe authority to make local assessments does not exist unless unequivocally conferred. It can be exercised no further than clearly delegated. Where tbe mode in which it can be done is prescribed, it constitutes the measure of tbe power and must be followed.</p>

<p>Parol evidence is admissible between tbe parties to show error in an act of mortgage. Hence, it will be competent for a mortgagee to prove by parol evidence that there is an error in the act which restricts bis mortgage to one-half of a piece of property, and that the real contract was that his mortgage should affect or cover the whole of the property.</p>

<p>In an action for damages where the causes of damage are set forth in such a manner as to enable the defendant to ascertain with reasonable certainty the grievances complained of and their nature, the suit should not be dismissed on an exception of vagueness in the allegations.</p> <p>"Where a party proceeds by attachment against another, when at the time he is indebted to the one proceeded against for a larger amount than he claims, and on trial a judgment is rendered against him for this balance and all costs, it cannot be held in a subsequent suit between the parties, that the attachment had been maintained.</p>

<p>Under the facts disclosed by the evidence the judgment appealed from is, in all respects correct.</p> <p>A partnership for doing work of construction on a railroad is an ordinary partnership and does not impose solidary liability on the partners.</p>

<p>PPEAL from tbe Civil District Court for the Parish of Orleans. T-issot, J.</p>

<p>A preliminary injunction can issue to maintain a plaintiff in possession, but should not be allowed to oust one in possession of property.</p>

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

<p>Where the payment of the price of immovable property -is resisted on the ground that the vendor Tras not the sole owner, hut that another party had an interest in it, and the vendor agrees that, if this other party will renounce in his favor, he shall share the price with him when collected, such agreement can be proved by parol and if proved should be enforced.</p> <p>JSTor will the disclaimer made of title in the act of renunciation estop the party from recovery under the agreement or be used to show that the party had no interest* and that the agreement was a nudum pactum.</p>

<p>-A. voluntary confession of a prisoner is admissible in evidence against Titan.</p> <p>The cross-examination of a witness may embrace any matters pertinent to, and growing out of, or connected with, what has been elicited on the examination in chief.</p> <p>The general rule of law is that who fn- rough another’s agency is to he regarded as done by himself. One whose *oie v. ■.» i- < -?:e^ the commission of a criminal act is prin cipal, -without regard to the physical e;s ho emx>l*»\and whether he is present or absent when the act is done.</p> <p>The test to determine whether one is principal rathei accessory is whether he is so situated as to make his personal help available--not actual ph vsh;al help necessarily, but help of any kind — not help i.'udored by actual presence but, c ‘refractive presence as well. Thus if he watched to j>n v< oí Lis companions brim; Miiprmed, or stationed himself to give the alarm to favour their escape, or was in ¡ao.-h til nation as to come to their assistance, so that the knowledge of his watching, or position, or .situation i 'spired or was calculated to inspire his confederates with additional conHumce, and enable them quicker or safer or more effectually to commit the crime, then he is ^principal.</p> <p>If one, with knowledge that the commission of a crime has been determn^l /.u, gets away and keeps away from the spot for the purpose of facilitating the commission of it, he is a principal although he is not present or near enough to givo assistance physically and manually to his confederates.</p>

<p>The ruling of a district judge refusing a preliminary injunction is reviewable on an application for a mandamus.</p> <p>A suspensive appeal ftom sucli ruling would afford no adequate relief.</p> <p>In the exercise of the supervisory powers vested in this Court by the present Constitution, relief can be allowed in cases of denials of justice, in which, under previous Constitutions, none could he awarded.</p> <p>A mandamus lies to compel a district judge to grant an injunction in limine, where a clear case is presented and the requirements of the law have been complied with and whore injury would result were the apprehended act, sought to he prevented, not arrested.</p> <p>The writ may issue at the discretion of the court where the law has assigned no adequate relief by the ordinary means and where justice and reason require that some inode should o-cist of redressing a wrong, or an abuse of any nature ; also, even where, a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay that the administration of justice may suffer,</p> <p>The articles of the Code of Practice, dormant under previous Constitutions have been vivified by Article 90 of the present Constitution and serve as guides, in the exercise of the supervisory jurisdiction of this Court.</p> <p>In a proper case, this Court may issue a restraining order which will produce the effect of the injunction asked, had it been granted.</p> <p>There is no error in refusing an injunction where the facts alleged are insufficient, the petition disclosing no cause of action.</p>

<p>Cruel excesses of the husband, towards his wife, consisting in abusing, cursing and striking her, refusing her food and subsistence, medicine and medical aid during her sickness, when shown to be able, with sufficient means to furnish the same, are causes which entitle the wife to a separation from bed and board.</p>

Tissot, J. 1. An agent authorized to sell cannot pledge his principal’s property, to secure his own debt. Story, Agency, §§ 78, 225, 228; Kent, 2 vol. p. 626, etseq.; Wharton, Agency, pp. 193, 745, et seq.¡ C. C. 3145; 25 A. 31319 A. 368; 19 A. 300; 10 A. 70, and cases cited. 2. The maxim: JSn fait de meiibles la possession vaut titre, is no part of the law of Louisiana. It was unknown to the Homan law.

<p>Judgments overruling exceptions in the progress of a cause are interlocutory and come tip for review on the appeal from tlio final judgment when properly presented. A separate appeal from them is neither necessary nor desirable when they do not dispose finally of the suit.</p> <p>The rules of this Court are not mechanical contrivances to entrap suiiors and counsel, hut well-considered regulations to promote tho efficient performance of public duties.</p> <p>Stipulations in policios of insurance limiting the time •within which claims shall be prosecuted are valid and legal, and form the law for the parties.</p> <p>When, on presentation of a claim for loss, a company positively denies its legal liability, but</p> <p>' says that being re-insured for seven-eighths of the loss in other companies, it is willing to pay if the re-insuring companies will also consent; and when the ro-insuring companies have not consented; and when all negotiations have ended and tho company has absolutely refused to pay nearly two months before the expiration of tho period limited in the policy for the prosecution of the claim, such negotiations form no excuse for delay beyond the terra, and action brought six months after the expiration is barred under the stipulation.</p> <p>An open policy insuring the freight lists of steamboats plying tho Mississippi and tributaries, upon proper and timely entries thereon, unmistakably means that if by reason of any of the perils insured against, the boat should bo prevented from earning the freight stipulated on cargo shipped, the company will make it good to tho extent of the insurance. When by reason of such peril the boat is disabled from completing her voyage and is compelled to resliip her freight at the same rate which she was to receive, the loss is total and tho company liable.</p> <p>The rule which requires vessels navigating the high seas to repair, if it, can he done, and to prosecute the voyage without transferring freight, must submit to reasonable limitations in its application to rivor-craft, whoso voyages are short and whoso shippers have tho right to require prompt forwarding of their goods in ease of detention by accident. Tinder the circumstances hero, tho boat was justified in resbipping.</p>

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

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

<p>PPEAL from the Ninth District Court, Parish of Tensas. Hough, J.</p>

Mchardson, J. 1. Admissions of one, since dead, made under circumstances which make it impossible to convict the witness of perjury, not admissible. 7 Hob. 112, Sue. of Segoud. 2. Admission of a person who has died since the alleged declarations, if admissible, are the weakest kind of evidence, and entitled to very little if any weight. 10 La. 355; 7 A. 763; 10 A. 279; 8 A. 278, 279; 8 A. 275; 7 Hob. 112. 3.

<p>PPEAL from the Civil District Court for the Parish of Orleans. t~\ Houston, J.</p>

PPEAL from the Civil District, Court for the Parish of Orleans. Tissot, J. 1. The Federal Statute must be interpreted according to common law principles, the common law being a part of the Government itself. Story on the Constitution, § 157, vol. 1; Journal of Congress, October, 14, 1874, p. 27; McCool vs Smith, 1 Black Rep. 465; Mayo vs. Wilson, 1U. H. 55; How vs. Beckham, 6 Howard, Practice Rep. 229. 2.

A PPEAL from the Civil District Court for the Parish of Orleans. JjL Houston, J. 1. When one having no personal interest in a property, insures it in his owu name, lie will he presumed to have acted in behalf of the true owner, and the insurance will insure to the heneñt of the latter, upon his subsequent adoption of it, even after a loss has occurred.

Monroe, J. Leovy & Kruttsclmitt for Plaintiff and Appellee. 1. The statute of 1882, (No. 69) entitled “an act to fix and regulate quarantine charges at the Mississippi Hver station,” etc., is a local and special law, and is null and void, because prohibited by Article 48 of the Louisiana Constitution As to local and special laws see 19 Iowa, 43; 4 Kansas, 124; 23 Md. 503. 2.

<p>A PPEAL from the Nineteenth District Court, Parish of Terrebonne /'\ Goode, J</p>

<p>Tli© wife who has obtained an order of court assigning her a domicile during the pendency of her action for separation from bed and board, is not amenable to the legal consequences of the refusal of a wife to obey the three reiterated summonses issued to her at the instance of the husband, during the pendency of the suit, under the provisions of Arts 143,144 and 145 of the Civil Code. In such a case, her refusal to return to the matrimonial domicile is for a lawful cause, and is amply*justified by the order of the court which assigned her a special domicile during the litigation. The fact that she changed such domicile cannot defeat or suspend her action, unless such change is shown under an issue specially raised contradictorily with her, as directed by Art. 147, Civil Code.</p>

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

<p>In suits to uncover simulations tlie largest latitude is allowed in the reception of testimony.</p> <p>A judicial mortgage will operate upon land acquired by tlie judgment debtor after the recording of the judgment as well as that owned before, notwithstanding the titles do not appear in his name but in that of others who hold for him.</p> <p>Claims acquired by another after such recording of a judgment against the real owner are subordinated to that judgment, and cannot be satisfied until the judgment creditor has been paid in full.</p> <p>If such creditor has paid the cases upon the lands pending the litigation to prevent a sale of them, he is entitled to reimbursement of the sum thus paid along with his judgment, and in preference to any other claims.</p>

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

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

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

<p>In a suit to recover immovable property and to annul a Sheriff’s sale, under which defendant claims title thereto, accompanied by more than one year’s possession, a sequestration of the property should not be ordered without the usual bond, on an allegation that the defendant is collecting the revenues and fails to pay the taxes and make the necessary repairs to the property.</p>

<p>The condition in a charter-party, “ Vessel to have lien on cargo for freight, dead freight and demurrage,” though binding between the parties, only aifects cargo shipped by third persons when the latter, expressly or impliedly, have consented thereto.</p> <p>Mere knowledge of the existence and terms of the charter-party, if accompanied by no modifying facts, might suffice to bind the third shipper to its conditions. But when the course of dealing of the vessel has been such as to lead shippers to suppose that the conditions would not be insisted on, and, under such boliof, the goods had been sent to the vessel, and when the vessel’s agents must have known, when they received the goods, that the shipper would not assent to the conditions, the implication of consent must fail and defendants should not have laden the goods unless they were willing to give clean bills.</p> <p>Under the circumstances of this case, hold tbat defendants were bound either to give clean bill of lading or return the goods.</p>

<p>Hew trials in criminal cases are not grantable for newly discovered evidence if it be only cumulative.</p> <p>The word ‘ imprisonment ’ alone and unqualified, when used in criminal statutes, is in contradistinction to ‘ imprisonment at hard labour,’ and means any other confinement than the latter.</p> <p>Where the punishment of a crime is imprisonment at hard labour and a pecuniary fine, and both are inflicted, and in default of payment of the fine, the criminal is sentenced to another term of imprisonment at hard labour, the alternative punishment must be altered to imprisonment.</p> <p>Every convicted criminal should be adjudged to pay the costs of the prosecution, and should be compelled to pay them, if legal process can be made effective.</p>

<p>Application for prohibition.</p>

<p>The Codo of Practice contains no rules or special provisions authorizing and regulating applications for continuance of a cause on account of the absence of one of the parties to the suit, who desires to testify in the cause.</p> <p>'Such applications must bo left to, and controlled by, the sound discretion of the trial judge, whose ruling will not be disturbed on appeal unless manifestly erroneous or glaringly unjust. A ruling which denies a continuance to a party domiciled in the parish in which the suit is pending, urged on the ground of the absence of that party, at his temporary residence in another parish, and of the indispensable importance of his testimony, which he desires to be taken under a commission, is not erroneous, and will be upheld by the Supreme Court. A continuance will not be granted on the ground that the counsel of the party applying for it is oalled away, and that his presence is demanded for important professional business pending in the court of another parish in which he resides and practices. In an action of partition, the judge has the legal authority to select the best means of discovering the most efficient mode of effecting the partition; to that end he may appoint experts for the purpose of examining and reporting the true condition of the property, and of suggesting a mode of partition. The law does not require him to consult either party in the selection of experts.</p> <p>In their examination and deliberations, the experts are not required to proceed contradictorily with the parties ¡ thev are not compelled to notify or consult either.</p>

<p>Wliore a creditor obtains a money judgment against the city and registers it under tlio provisions of Act 5 of 1870, lie cannot by mandamus compel tbe city or board of liquidators to issue bonds in satisfaction of tbe judgment, on tbe plea tliat tbe work done which formed tbe consideration of the judgment entitled tbe creditor to the bonds demanded.</p>

<p>"When tlie evidence in the record satisfies us that the omission of the endorsement on a draft offered in evidence was merely a clerical error, and when the evidence otherwise sufficiently establishes the endorsement, the omission -will furnish no ground of reversal.</p> <p>In proceedings for forced surrender on a petition setting forth all the requirements of Section 1781 R. S., it is not error for the judge to make his order expewte commanding the defendant to file a schedule of his creditors.</p> <p>If after such order the defendant, by rule or exception, traverses the truth of the allegations of the petition, he must make at least a beginning of proof, in order to throw on plaintiff tlie burden of establishing his allegations, which, upon the affidavit to the petition are to bo taken HQprwnco facie true.</p>

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

<p>A PPEAL 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. Houston, J.</p>

<p>APPEAL from the Twenty-third District Court, Parish of West Baton Bouge. Matthews, Judge ad hoe.</p>

<p>A peremptory exception to the plaintiff’s %vant of capacity to sue cannot he pleaded after answer filed.</p> <p>Where a child of tender years is injured by running under a mule which is being driven at an ordinary trot, and without negligence by the driver, no recovery can bo had for dam* ages becaúso of injuries suffered by the child.</p>

<p>An appeal lies from tlie ruling of a district judge increasing the amount previously fixed for tlie bond to be furnished for a devolutive appeal, although the matter he within the discretion of such judge.</p> <p>The main demand being appealable all orders and decrees made in the suit, whether before or after judgment, are revisahle by the appellate court.</p> <p>Such ruling is not a final judgment requiring signature. It is a mere iuterlocutory order which might work irreparable injury. *</p> <p>Piling of a bond in accordance with an order of appeal does not divest the jurisdiction of the inferior court over questions affecting the sufficiency of the bond; and it matters not whether the insufficiency result from an error of the judge or from default of a party.</p> <p>■Where the inferior court ha3 inadvertently fixed the bond for a devolutive appeal at a sum less than the actual costs, it may, on discovery of the error, amend the order and require sufficient security.</p>

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

<p>An opponent who does not dispute the correctness of any of the items of an administrator’s account, "but simply claims to he placed thereon for a larger amount, has no interest to attack a judgment of homologation on the ground that proof was not administered of the correctness of the account.</p> <p>The rulings of an instance court on the admission or rejection of evidence are not subject to review by this Court in absence of exception reserved thereto.</p> <p>The correctness of the judgment appealed from must be tested by the law and the evidence upon which the court acted, in absence of exceptions to rulings made in course of the trial.</p>

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

<p>A PPE AL from the Eleventh District Court, Parish of Natchitoches. r\ Pierson, J.</p>

<p>APPEAL from the Eighth District Court, Parish East Carroll Pilcher, Judge, ad hoc.</p>

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

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

<p>PPLICATION for Mandamus, Prohibition and Certiorari.</p>

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

<p>where from tlie allegations oí the plaintiff it appears that the apprehended injury is com-pensable by money, and the bond for the dissolution of the injunction covers the sum fixed by the plaintifl as damages, no appeal will lie from tlie order of dissolution.</p>

<p>PPEAL from the Twelfth District Court, Parish of G-rant. . Barbin, J.</p>

<p>The action to annul a judgment for fraud of the plaintiff must he brought within a year after its discovery, and the interruption begins from the service of the citation and not from the filing the suit.</p>

<p>APPEAL from the Sixteenth District Court, Parish of East Feliciana. Wedge, Special Judge.</p>

<p>The right to amend pleadings is not reducible to inflexible rales. It must be determined in the exercise of a sound legal discretion. Amendments should always be allowed for the promotion of justice, where they cause no injury, provided time may be asked and allowed to a party pleading and showing surprise.</p> <p>A supplemental answer which simply amplifies a general denial by enumerating the reasons for which plaintiff should not recover, and does not change the original relief asked, can he allowed to be filed shortly before trial and the case will be proceeded with when no motion for a continuance, for time to prepare, is made.</p> <p>Exceptions to the admission of an act of sale in a case wherein recovery of the price is claimed by a purchaser, in consequence of his eviction from the property sold him cannot avail. The act is the fundamental fact on which the litigation rests. Exceptions to the refusal of the judge to admit cumulative testimony and to the reception of irrelevant proof need not be passed upon.</p> <p>A purchaser who buys property adjudicated to a succession representative at a judicial or forced sale of the same, in furtherance of an agreement between them that he will not bid thereon against him, and whose purchase is subsequently annulled in consequence of such reprobated combination, must be considered and dealt with as a buyer who purchases with knowledge of the danger of eviction and at his peril and risk. Under such circumstances he cannot, after eviction, repete the price paid.</p> <p>ISfo case can be found where, money having been paid by one of the parties to the other upon an illegal contract, both being pw'ticypes crvminis, an action has been maintained to recover it back.</p>

<p>Article 2203 of tlie Civil Code, winch provides that* the remission or conventional discharge in iavor of one of the co-debtors in solido discharges all the others,” applies to obligations eat delicto as well as to contract obligations.</p> <p>Parol testimony is inadmissible to prove a compromise, which must be reduced to writing.</p> <p>But a judgment of a competent court of record predicated on a compromise and a resulting consent between the parties, is admissible in proof of a compromise.</p>

<p>APPEAL from the Fifth District Court, Parisli of Ouachita. Mehardson, J.</p>

<p>When a suspensive appeal had been perfected in a case then appealable, before the promulgation of the constitutional amendment, our jurisdiction thereof vested, although the return-day and actual filing of the transcript did not occur till after such promulgation. CL'he case stands on the same footing with appeals of the same character which had been filed prior to the promulgation, and the transfer thereof to the Circuit Court will be granted.</p>

<p>Kon-residents of tli© State cannot be legally represented by a curator ad hoc in a persona aooion against them, unless property of theirs has been subjected to the process of the court or actual service has been made upon them. The appointment of a curator ad hoc to them in such a case is unavailing,</p> <p>Judgment cannot be rendered against a party who is not mentioned in the proceeding and who has not joined issue or made himself party. A mere citation served on such party does not compel appearance or justify judgment in default.</p> <p>Defenses not justified by the answer and made in oral or printed argument, do not constitute issues and are not entitled to be passed upon.</p> <p>One not a party to a proceeding cannot on appeal ask an amendment of a judgment which cannot affect him.</p>

<p>The amendments to articles 81 and 95 of the Constitution, promulgated on the 15th of May, 18S4, did not impair the right of appeal in oases involving more than one thousand, hut less than two thousand, dollars, then pending in the Supreme Court.</p> <p>The legal effect of the amendments was to immediately strip the Supreme Court of jurisdiction of those cases; hut the jurisdiction'was not thereby destroyed. It was, by the operation of the amendments, transferred to the courts of appeal, with full power to hear and decide said cases.</p> <p>Hence a motion to dismiss a caso of that category cannot prevail in the Supreme Court whence the appeal unimpaired in all its legal effects will he sent to the proper court of appeal.</p>

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

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

<p>A school hoard organised according to law has a right to stand in court to claim from an other school hoard likewise constituted, school funds which should have been paid to it by the State authorities and which were illegally paid out to the latter. A receipt therefor would exonerate the debtor hoard,</p> <p>If the funds aro not in kind in the possession of such hoard, hut can be traced to property in which thoy have been invested by such board, the property itself can be recovered in place of the funds which it represents.</p> <p>An action to recover under such circumstances is not barred by the prescription of five years or less.</p>

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

<p>Where there is denial of any assessment, or other issue made of the legality oí a tax, this Court has jurisdiction.</p> <p>While suits for the collection of taxes upon property are prohibited, the prohibition does not apply to the collection of licenses which may be prosecuted by rule or motion, as provided in the legislative act, and in other ways.</p>

<p>The issues arising under a provisional account filed by a former administrator, and the oppositions thereto are not identical with those presented by a suit for a final account broughv against the former administrator, after his removal, hy his successor in office. Even if they -were identical, the former proceeding -would only furnish ground for a plea of dens in the latter suit, which could not be set up except in limine.</p> <p>'When an administrator has been removed, he owes to his successor in office an account of all funds and property which he had received for account of the succession. Tn an insolvent succession, he cannot in such account claim credit for dohts of the succession paid bv him on his own responsibility and without judicial order or authority. He was not vested with power to rank the creditors and distribute the succession funds. Such ranking and distribution can only be made by the court, after hearing to all the creditors upon proceedings according to law. He must pay over to the new administrator the funds received by him, for distribution according to law. And it is only upon such proceedings of distribution that lie can assert his claim, contradictorily with all creditors, for reimbursement of the sums paid out by him in the extinguishment of succession debts, to the extent that the succession has been benefited by such payments.</p>

<p>APPEAL from the Fifth District Court, Parish of Richland. . Mehardson, J.</p>

<p>When the Supremo Court was not in session on the return clay for appeals nor for several days thereafter, in consequence of the inability of the judges to reach the seat of the court, and the court was opened by the clerk and adjourned from day to day, an appeal filed on the day the court first sits will bo in time,</p> <p>Where a community of acquets exists between husband and wife, and the husband cultivates a plantation that belongs to the wife, the debts incurred by such cultivation are the husband’s and cannot be enforced against the wife's property.</p> <p>Even though the wife has signed lien contracts in favour of a factor for supplies and advances, if the fact be that she has not the administration of her separate property, but the husband does administer it as head of the community, he alone is responsible for the supplies and advances.</p> <p>And if the debt that is contracted is put in the form of a note which is signed by the husband and wife, she will not be bound thereby.</p>

<p>An order of a presiding judge recusing himself in a cause on the ground of interest, and appointing the judge of an adjoining court to try the cause, is not vacated or revoked by the fact that the successor of the said presiding judge has in the meantime been commissioned and inducted into office.</p> <p>The order of recusation, if rot void ab initio on its face, cannotbe attacked collaterally, and remains in full force until rescinded or revoked by a direct order from competent authority.</p> <p>Tinder Section 1425, Revised Statutes, a speedy trial is imperatively required in all contested elections. If the suit cannot be tried, owing to physical or legal impossibility, at the next regular term of the court, a special terra must be ordered.</p> <p>A mandamus -will lie to compel tlie judge, even if he he only appointed under a recusation of the judge of the court, to order a special term and to try the case -without unnecessary delay.</p> <p>An appeal does not lie from an order dissolving on bond an injunction in a contested election case.</p>

<p>PPEAL from the Twenty-first District Court, Parish, of Iberia. judge ad hoe.</p>

<p>APPEAL from the Twenty-fifth District Court, Parish of St. Landry. Debaillon, J.</p>

<p>Act No. 71 of 1882, for tlie i>impose of increasing the number of judges in the first judicial district, clearly intended to limit the term of the new incumbent to the time of the next general election, to wit. the 22d of April, 1881.</p> <p>That provision is not violativo of Art. 109 of the Constitution, which fixes the term of all district judges at four years.</p> <p>It is the true meaning, intent and spirit of the Constitution that general elections for district judges should occur only once every four years; aud that the terms of all elective district judges should expire at the same time.</p> <p>Hence, the G-eneral Assembly in increasing the number of district judges under authority of Article 110, cannot fix a term expiring at a time different from that at which expires the term of all other elective district judges in the State. Such a provision would be unconstitutional.</p>

<p>A litigant who fails to produce proof within his reach creates a presumption that it would he prejudicial to his case, and this presumption is strengthened when the evidence is in his possession and has been called for by his adversary by a demand upon him to produce it.</p>

<p>The fact that a husband, who has obtained a judgment of separation from bed and board against bis wife, continues to occupy the same house as his wife, but separate apartments, while he is preparing a new homo to which he moves alone as soon as it is ready, will not be construed as a reconciliation under the Civil Code.</p> <p>Those circumstances will not bar his right to a divorce one year after the rendition of the judgment of separation.</p>

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

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

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

<p>Interest on moneys of tlie wife received and expended by the husband can be allowed only from his death, when the claim is set up against his succession.</p> <p>In a suit for revival of a judgment, citation within ten years interrupts prescription. If the judgment rendered thereon does not specifically revive the judgment, that error maybe corrected by proper proceedings below.</p>

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

<p>More absence of a witness, However material, is not ground for a continuance, unless it appears that due diligence Had been used, and also that there was j ast expectation of being able to procure the attendance of tbe witness in case tbe continuance were granted.</p>

<p>Application for Habeas Corpus.</p>

<p>In a murder case, a verdict of “guilty of capital punishment ” cannot serve as a foundation for a sentence of death. The verdict, taken literally, convicts the accused of no crime known to the law or charged in the indictment; and if we resort to conjecture as to its true intent, the arguments are equally balanced as to whether it meant “ guilty with capital punishment,” or “ guilty without capital punishment.”</p>

<p>In a criminal prosecution a juror is not incompetent 'because it is shown that on the clay before the trial he declared in a public store that he intended to convict every person tried before him as a juror, and when it is shown that on his voir dire the juror showed that he had no bias or prejudice in the case. Courts will not consider gossip in determining the legal qualifications of jurors.</p> <p>A juror who acknowledges to have formed an opinion in the cause, but asserts that such an opinion will readily yield to the evidence on the trial, and that he feels able to do impartial justice in the case, is competent. State vs. Dugay, 35 Ann. 327; and other decisions affirmed.</p> <p>Evidence to show that the accused had made efforts to cause the deceased to leave the country, in reference to a criminal prosecution instituted against him by the latter, who is the material witness in such case, and that in that connection he had made threats against tlie deceased, is admissible, as it tends to show elements of malice in the homicide.</p> <p>Evidence of the dangerous character of the deceased and of threats made by him against accused, unless preceded or accompanied by evidence of an assault or overt act, or of some hostile demonstration, at the time of the killing, is inadmissible as a defense against the charge of murder. The law of self-defense expounded.</p>

<p>"Where an appeal ig talcen by a person convicted of a crime and under sentence, who escapes from custody during the pendency of his appeal, and who remains a fugitive,his appeal will be dismissed.</p>

<p>A voluntary confession of the accused, not made under restraint or constraint, is admissible in evidence. If it is admitted by his consent, he cannot afterwards object to it.</p> <p>Objections to the form of tlie oath administered to the jurors must bo made at the time of [heir qualification. Such objections are assimilated to those made to the possession by a juror of the proper qualifications, which must be made whom he is offered, and to those that may be made to the list of jurors, which must be complained of when the imperfection or defect is discovered. It is too late to object to the form of the oath in a motion for a new trial.</p>

<p>"Where, on appellant’s own motion and suggestion, an appeal is made returnable at a time and place different from those required by the provisions of a mandatory law, and where the order of the judge granting the appeal shows that he merely adopted the suggestion of appellant by granting the appeal “as prayed for,” the error is imputable to the fault of appellant, and, under the settled jurisprudence of the State, the appeal must be dismissed.</p> <p>The constitutional right of appeal is a right of appeal in conformity with law.</p> <p>Rules of practice, when once settled by authoritative decisions, must, in public and'private interest, be adhered to.</p>

<p>In an action for partition of property held in indivisión, tlie jurisdiction of this Court must lie tested under the same rules which govern in succession matters. The jurisdiction of this Court depends upon the amount of the fund to he distributed, and not upon the amount claimed therein.</p> <p>In this case the amount of the inventory is less than $2000; and the fact that appellant claims $5000 against the community, cannot vest jurisdiction in the Supreme Court.</p>

<p>Where in ’an act of mortgage the property mortgaged is first described by legal subdivisions and these sub-divisious are tben declared to compose a certain plantation, giving the name thereof and otherwise sufficiently describing it apart from the sub-divisions mentioned, held that the mortgage rested on tbe plantation and that parol evidence was admissible to show that the description by the legal sub-divisions was erroneous and that said numbers did not, in whole or in part, compose the plantation.</p>

<p>Non-arraignment, that would have "been fatal to the legality of the verdict and sentence, does not exist where, after discovery that the defendant had not been arraigned, he waives arraignment and the trial begins, de novo, and the jury are re-sworn. .</p> <p>Objection to the form of the jurors’ oath must be made when it is administered, and cannot be made the basis of a motion for a new trial.</p>

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

<p>The fact that on© presented as a juror has formed an opinion from rumours of the case and has expressed it, does not disqualify him if he avers that the rumours would not influence him as a juror, and that he will be guided by the evidence in rendering a verdict.</p> <p>The exercise of a lower judge’s discretion in granting or refusing a continuance will not be disturbed, if it has been done soundly and not harshly or arbitrarily,</p> <p>A prayer or motion fora second continuance for the same cause, for which one has already been granted, is entitled to less favour than the original application.</p> <p>Conversations with the prisoner touching his identity are admissible to prove that fact, no inducement, threat or promise having been made to him or in his presence.</p>

<p>The mere relation of attorney and client does not, of itself, disable the attorney of a judgment creditor from buying on his own account at a sale in execution of the judgment, provided he act with perfect fairness and good faith, and in no manner in opposition to the interests of his client.</p> <p>When the attorney has so acted; when his client, though advised of the sale, has given no authority to buy; when the bid of the attorney was to the advantage of the client, because, but for it, the land would have been sold at a less price; and especially when, as in this case, the client having been offered the option of talcing the land or the price, preferred and received the latter, he cannot, long afterwards, be permitted to assail the title of the attorney and demand to be substituted as owner under said title.</p>

<p>Mandate or tbe contract of agency is provable by parol testimony.</p> <p>Ten years is tbe prescription period for an action of mandate, or an action to compel an agent to account.</p> <p>This prescription begins to run when a settlement has been demanded and refused, or in other 'words when the agency has terminated.</p>

<p>PPLICATION for Mandamus.</p>

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

<p>A legislative charter may confer upon a railroad company the right of way upon any street, highway or turnpike in the State, and the right to construct thereon its road</p> <p>Under such grant the company is authorized to lay the track of the road upon ;.nd through the street of an unincorporated town along its route without farther permission or authority. The company cannot, however, so exercise the right and construct the road through a street as unnecessarily impair the right of the public to the free use of such street, and indict serious and unequal damage upon private property contiguous to said street; and property owners so injured may domand by suit the reconstruction of the track, and under conditions its ultimate removal.</p>

<p>Where a police regulation specifically empowers the mayor of the city to order the summary removal of an occupant from a house for certain causes, and. subjects such occupant to penalties for disobedience, and it does not appear that the mayor has ever ordered her removal, she has not committed the act of disobedience that brings her within the jurisdiction of the police court.</p>

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

<p>Ill computing the amount of tlie l>ond to be furnished for a suspensive appeal from a judgment dissolving an injunction with costs, the proper expenses incurred by the sheriif, as consequences of the injunction for the preservation aud cultivation of a sugar plantation under seizure, may be taxed as costs occasioned by the injunction, and must be included in the amount of the bond furnished to be required for such appeal.</p> <p>"When the bond tendered does not cover them, a mandamus does not lie to compel the district judge to grant such appeal on such bond.</p>

<p>APPEAL from the Mayor’s Court, Town of Minden. Crawford, J.</p>

<p>"Where the plaintiff in an injunction alleges that the acts complained of will cause him an irreparable injury, and the facts set forth in the petition fully confirm such averment, the judge is without authority or discretion to dissolve the injunction on bond.</p> <p>And though the motion to dissolve denies the alleged injury and sets up matters that justify the acts enjoined, and evidence is offered to establish the same, such evidence on the trial of the motion is not admissible. It constitutes a defense to the action, and such defense and the evidence to support it must be deferred to the trial on the merits ai d oannofc be allowed at that preliminary stage of the cause.</p>

<p>PPEAL from the Criminal District Court for the Parish Of Orleans. Bomcm, J.</p>

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

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

Bightor, J. A. The law favors the settlement of differences between man and man by means of arbitration and instead of retarding or keeping back just such arbitration as this it is highly favored and ought to be liberally construed. C. 0. Art. 3102; Jackson vs. Amber, 14 Johnson, N. Y. Reports, 96. * B. Arbitrators signing an award cannot be led to contradict his action and say he did not concur. Campbell vs. Western, 3 Pages, Reports. 124 C. C. Art. 3131.

<p>Plaintiffs, the lessees of the wharves and landings, were under no obligation as such lessees to reconstruct and rebuild the levees fronting on the river and the bulkheads destroyed by a storm of extraordinary violence. And where the city contracted with said lessees independently of said lease and without reference to do said work under the lease, it must pay for it.</p>

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

<p>PPLICATION for Prohibition and Certiorari.</p>

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

<p>Under our laws and jurisprudence, all parties who do not appeal from a judgment are ap-pellees and the judgment cannot he reversed or amended as to them.</p> <p>Hence, in a case brought from this Court to the Supreme Court of the United States, and our judgment is there reversed, none hut the party who took the writ of error can invoke any relief under the judgment of reversal, although the interests of other persons who were parties to the original suit, could he affected by the judgment.</p> <p>When this Court is instructed to render a decree so as to conform to the opinion of the Supreme Comt of the United States, it will not render a judgment which militates with the established rules of our jurisprudence. It is an inherent power in the highest court of every State, even while enforcing a judgment of the Supreme Court of the United States, to decide upon its own jurisdiction and upon the jurisdiction of all inferior courts to which its appellate power extends.</p>

<p>Though tho State cannot ho sued in a State court, yet whore an adjudication of immovable property at a tax sale has "been made to the State, in a suit against the tax collector malting the sale, and the recorder of mortgages who had recorded the assignment alleged to he void, aud the register of conveyances charged with tho duty of recording the tax title, brought by the original owners in possession, the proceedings connected with the sales from the assessment to the sale may be reviewed by tho court and judgment rendered maintaining or annulling the sale and ordering tho erasure of the inscriptions.</p> <p>Tho State may not be concluded by an adverse judgment in the premises from assorting her rights to the property in a diret action or other proper proceeding.</p>

<p>Where an appeal has been granted, under a mandamus from this Court, in conformity to our ruling, a motion to dismiss, based upon the same grounds as was the refusal of the lower court to grant the appeal, cannot prevail.</p> <p>Where three separate issues are made in the settlement of a succession, all tending to one conclusion, and are the subjects of separate judgments, they may be all brought up in a single appeal, and one appeal bond is sufficient.</p> <p>The functions of an executor are at an end when he has discharged the debts and legacies and rendered his account. He cannot afterwards prolong his administration for the purpose of effecting, by suit, a liquidation of the conjugal community that existed between the testator and his surviving spouse, and a partition of the community property, not even if joined by the heirs in such suit.</p> <p>When his duties have terminated and his account homologated he cannot properly refuse the demand, made by the widow in community or heirs, to surrender the property in his hands to them. The settlement of the community and partition of the property must be left to them.</p>

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

<p>In a revocatory action tlie test of the jurisdiction of the Supreme Court is in the amount claimed of the original debtor, and not in the value of the property the sale of which is sought to be revoked.</p> <p>The judgment, if the action is maintained, is that the contract is avoided only as to its effect on the complaining creditor. As to third persons it remains in full force. Lobe & Bloom vs. Arent, 33 Ann. 1086. Affirmed.</p>

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

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

<p>PPLICATION for Certiorari.</p>

<p>When a party is indicted for murder and convicted of manslaughter, the judgment should he arrested if the crime had not been denouuoed to a public officer having the power to direct a prosecution within one year previous to the finding of the grand jury, and the accused had not fied from justice. $Tor could proof bo offered of these causes o Í the suspension of prescription unless the same are averred in the indictment. The arrest of judgment in such a case^ does not debar another prosecution for manslaughter under a sufficient and proper indictment.</p>

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

<p>A writ of mandamus will issue to compel the judge of the lower court to grant an appeal 'from a judgment rendered by him homologating the account of a receiver appointed under his authority to receive and account for the proceeds of the sale of succession property, preparatory to a judicial partition between the heirs of the succession.</p> <p>Such a judgment, which determines the responsibility of the receiver, and fixes the basis of the partition, could not be reviewed in the partition proceedings, and would, if erroneous, work irreparable injury. It is, therefore, appealable.</p>

<p>PPEAL from the Fourth District Court for the Parish of Orleans. 1A Houston, J.</p>