Volume 37 — Louisiana Annual Reports

<p>This Court has no jurisdiction to review facts submitted to a jury in a criminal case, «o as to determine-of the correctness or incorrectness of their verdict.</p> <p>Applications for a new trial, on the ground of newly discovered evidence ought not only to set forth the proper averments, hut should also ho verified by oath.</p> <p>Objections to the charge of the trial judge to the jury, unless made at the time when the same is given and unless properly presented by bill of exceptions, will not be considered on appeal.</p>

<p>Tn a pursuit, by numerous creditors of their common debtor’s property, tbe creditor, who baa recourse to a revocatory action in order to annul a fraudulent transfer of his property by tbe debtor, will obtain no preference over the other creditors, by reason ofliis revocatory action, if it appears from tbe evidence that the attacked transaction was not only fraudulent but also simulated and unreal. In such a case tlie creditors who ignored tlie pretended transfer and who proceeded by attachment ysúll have priority.</p> <p>A’credilov’s claim for vendor’s privilege will not be recognized if he has allowed the goods on which he claims tbe same to be sold confusedly with a mass of other things belonging to bis purchaser, and if be tails to identify bis goods.</p>

<p>Where a party convicted of stealing certain movable property of a railroad company, appeals from tbe sentence imposed therefor, ana bases his appeal solely op the ground that the corporate existence of such company was not proved on the trial, though averred in tbe indictment, it amounts in effect to a contention that he was convicted on insufficient evidence, and in the absence of a bill of exception taken on the trial with‘respect to said alleged omission, or of any charge asked of the judge touching tbe effect of said omission, this Court is without power to inquire into this matter of fact, and to consider evidence on the point where taken on a^motion for a new trial.</p>

<p>Where two defendants wore jointly sued for a claim exceeding two thousand dollars and judgment was rendered as prayed, and only one appeals, the Supreme Court has jurisdiction, although the appellant is liable only for one-half and that half is less than the appealable sura.</p> <p>The holder by transfer of tickets, consisting of paste-boards bearing no date and no promise to pay, but figures calling for an amount of money, issued to plantation laborers for labor, issued by one of the partners without the knowledge or consent of his co-partner, cannot-recover against the latter, in default of proof of actual indebtedness by the partnership to such of his transferrors, and of a bona fide transfer from the original creditor to him.</p> <p>Labor tickets, thus issued, are not written evidences of indebtedness, binding on the alleged debtor, and the indebtedness of the planter must be proved by competent evidence.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. x\. Monroe, J. 1. A judgment, final and conclusive against the City of Hew Orleans, and not expressly limited to any particular fund in the judgment itself, is not to be so restricted. 98 U. S. 381, 395; 4 Wall. 435; 9 Wall. 409; 99 U. 8. 591. 2. Such a judgment, when registered according to Act Ho. 5, Acts of 1870, Dx. Soss., must be provided for in tho budgets of the Citv of Hew Orleans until fully paid. 3.

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

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

<p>A PPEAL from tlie Twenty-sixth District Court, Parish of St. A Charles. Malm, J.</p>

A PPEAL from, the Civil District Court fór the Parish of Orleans. XJL Monroe, J. 1. No presumption arises against a/plaintiff, from failing to callas a witness a little boy aged eight years ylio was present at the accident for which damages aro claimed, when all the facts have been proven by other competent witnesses. 32 A. 1130.

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

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

<p>In a revocatory action tlie jurisdiction of this Court is determined not by tlie value o f the property, tlie sale of which is sought to be annulled, but by the amount of the creditor’s . demand, exclusive of interest.</p>

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

<p>JTew trial on the ground of newly discovered evidence will not he enforced when the witnesses were known before trial, hut could not he found, and when no postponement was asked on account of their absence, nor when the evidence is merely cumulative and corroborative and not calculated, in the opinion of the judge, to produce a different result on another trial.</p>

<p>Tho claim of a parish against a riparian owner in said parish, for the costs incurred by tho police jury in making and repairing the public levee and the public roads on'the owner’s property, is not in the nature of a tax, toll or impost, or of a fine, forfeiture or penalty imposed by a municipal corporation, and if the amount of such claim is not equal in amount to the lower limit of our jurisdiction, the appeal cannot be sustained in this</p>

<p>A ct 12 of 1875 conferring upon the State Board of Assessors the power of making the assessment for the city of Hew Orleans as well as the Slate, did not abolish distinctions established by existing laws between the subjects of taxation falling under the taxing power of city and the State respectively. Hence the assesment rolls for each were not nooossarily counterparts and copies of each other, and the mere fact that they differed from each other, did not, of itself, invalidate cither.</p> <p>The law authorized the assessments under the head of “capital,” all capital of corporations “not invested in real ostate,” and such assessment is not void for defective description because not setting out the particular items and objects in which the capital is invested. 32 Ann. 21; 31 Ann. 477.</p> <p>Complaints of mere excessive valuation of taxable property in the assessment, t annot be listened to as a defense to a suit for the tax. If appeal on such questions be made to the courts, the action must be directed against the Board of Assessors.</p> <p>The capital stock of defendant is nob exempt from taxation under Act 42 of 1874.</p>

<p>An appeal from a judgmonfc of a recorder’s court on the ground that the case involved a contestation as constitutionality and legality of a “fine, forfeiture or penalty imposed by a municipal corporation,” cannot be maintained when it does not appear from the record that such “contestation” was raised in the lower court prior to final judgment!</p>

<p>In criminal cases the Supreme Court will not consider alleged errors in the charge of the trial judge to the jury, when suggested in an assignment of errors, and when no objection was made to the charge when given, unless upon* its face the charge should appear to be unjustly and glaringly erroneous. State vs. Ficulfi, 35 Ann. 774 ; State vs. Curtis, 34 Ann. 1213; State vs. Beaixd. 34 Ann. 106, affirmed.</p> <p>The charge must be considered as a whole, and the practice of selecting therefrom isolated passages for criticism and animadversion, will not be sanctioned, when it appears that such passages, although apparently erroneous, are fully explained by other passages in the instructions.</p>

<p>The five days lien on agricultural products in favour of tlie vendor exists whether the sale was made for cash or on credit, and is enforcable after the produce has gone into the possession of third parties under a liona fide sale equally as well as while it is in possession of the original vendee. G-umbelv. Beer, 36 Ann. 484, reaffirmed.</p> <p>In a suit for produce or its value accompanied by a sequestration based ou a defective affidavit, when the defendant fails or refuses to object to the affidavit or to take advantage of its defects, the intervenor is powerless to avail himself of them. He cannot complain of irregularities which tlie defendant has condoned.</p> <p>The sole change in the intervenor’s status made by the Act of 1876 is to enable him [to bond the sequestered property.</p>

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

<p>Our Code of Practice does not assume to regulate criminal pleading and lias nothing whatever to do with it.</p> <p>An appeal in a criminal case lies only from the sentence or final judgment, unless the ruling of the court upon a motion, plea, or other interlocutory matter finally disposes of the case.</p> <p>The meaning of the sentence “ whenover the punishment of death or imprisonment at hard labour may he inflicted ” is whenever the offence charged is one the legal punishment of which is death or imprisonment at hard labour.</p> <p>When an appeal has been taken by the defendant from an overruling of any plea that does not finally dispose of his case, the appeal will be dismissed if the Attorney General so moves.</p>

<p>The State and municipal corporations duly authorized, can, in the exercise of the rights of eminent domain and of police, empower telephonic companies to use the streets and sidewalks of a city, for the purpose of erecting poles and other works necessary for the transmission of intelligence, and can impose terms and conditions for tho enjoyment of the privilege</p> <p>Abutting owners in front of whose premisos such poles have "been erected, with such authority and after compliance with all conditions imposed .for the benefit of the public, have no occasion to ask the removal of the same, when the poles do not specially and materially obstruct them in the free use of their property, or invade some vested right, and do not inflict on them some injury which is not common to all other persons.</p> <p>Such owners have no fee in the sidewalk, or street, in this State, and have no right to claim previous just compensation.</p> <p>Poles erected under such circumstances are not such nuisances as such owners can successfully ask to have abated.</p>

<p>The property of the New Orleans If cm ale Orphan Asylum is entitled to the same exemption from taxation which has been extended to, and judicially recognized in favor of the Poydras Orphan Asylum- Act Uo. 96 of 1844; 33 Ann. 850.</p> <p>That exemption extends to other property, such as stores owned by the corporation and rented for revenue, which is used exclusively for the charitable purpose of maintaining the asylum, as well as to the property actually used and occupied as an asylum.</p>

<p>The lessor of a plantation by bonding the property provisionally seized for Ms rent, cannot thereby defeat the privilege of the plantation laborers thereon, who have intervened in the suit prior to the bonding, asserting their privilege.</p> <p>25br is it necessary to preserve the privilege of such laborers, that they should demand a separate appraisement of the crops seized prior to the bonding or to judgment rendered.</p> <p>A workman or mechanic who repairs the sugar-house and the machinery therein, is not entitled to a privilepe on the crops or other property subject to the laborers’privilege. The plantation laborers are entitled to a superior privilege over the lessor only on the crops; as to the residue of the property subject to the two privileges, tbeir privilege is concurrent with the lessors.</p> <p>All laborers on a plantation who are omployed in the planting, cultivating, gathering and preparing a crop for market, and in work connected therewith or auxiliary thereto, are equally entitled to the privilege provided by Act 3217, C. C.</p>

<p>■Where a partner lias retained tlie right to dissolve the partnership at his pleasure and on a given day orders the books to be balanced for the purpose of ascertaining the interest of the retiring partner, but on the completion of that work fails and neglects to pay tho sum thus found to be due, and the retiring partner remains in daily attendance and does in the business of the firm precisely what he had always done without remonstrance or complaint of the dissolving partner, the partnership will be held to have continued until this latter has abandoned his position or has been driven from it, or the former has done some overt act signifying that the dissolution has already taken place.</p> <p>Where an error lias been made in tho judgment of the lower court in favour of the appellee which he endeavours to correct, and applies to the lower judge to correct it and to the _ opposing counsel to permit its correction, he will not he mulcted in the costs of appeal because this court does what he vainly endeavoured to have done below.</p>

<p>^ PPEAL from the Third District Court, Parish of Union. Young, J.</p>

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

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

<p>A PPEAL from tlie Criminal District Court for the Parish of Orleans. / \ Halier, J.</p>

<p>The responsibility of the father for tlie damage occasioned bv tbe act of his minor child residing with him, is not affecced by the fact that he was momentarily absent from the house at the time of the act.</p> <p>Neither is it affected by the tender’age of the minor. The fault, although not legally im putable to the child by reason of his lack of capacity, is imputed by the law itself to the father, as resulting from some defect of care, watchfulness and discipline in the exercise of the paternal authority.</p> <p>In estimating damages, we must be guided by the evidence in the record. Where the verdict of the jury is not manifestly excessive, and where we can feel no certainty that any modification thereof, would come nearer exact retribution, wo are not justified in dis turbing it.</p>

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

<p>A defense in a criminal case that the law under which tlie defendant was tried and convicted is unconstitutional, comes too late when made on appeal for the first time. The appellate court cannot consider and determine questions of law which were not submitted to, and passed by, the trial judge.</p>

<p>Xb© Supreme Court has jurisdiction over a suit for a toll which is resisted as unwarranted by law, or illegal, whatever be the amount claimed.</p> <p>The constitution in force, as well as that of 18(58, have brought a change in that of 1852, which was that considered in 9 Ann., p. 65 The court could not then pass on the legality of such toll, where the amount of it did not exceed $300, which was then the lower limit of its jurisdiction. The court can now do so, regardless of the amount claimed, under Art. 81 of the Constitution.</p> <p>The exception to the capacity of plaintiff to sue, cannot be considered on a motion “ to dismiss for want of jurisdiction,”</p> <p>The court will allow the State an opportunity to be heard in cases in which grave rights of hers are involved.</p> <p>The charter of the plaintiff possesses all the features of a contract. The legislature was, therefore, without power to repeal it; and Act No. 86 of 1884, in so far as it operates to repeal the said charter, is declared unconstitutional, without prejudice, however, to the rights of the State, whatever they may he, under the other provisions of said act.</p>

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

<p>APPEAL from the Twentieth District Court, Parisli of Lafourche. Winder, Judge ad hoc.</p>

<p>The Court of Appeals lias jurisdiction over a controversy, the matter in dispute wherein involves the allowance to a minor in necessitous circumstances, of one thousand dollars, under Art. R C. 0. 3552, which is a reproduction of the Act of 1852.</p> <p>The recent amendment of Art. 81 of the Constitution in force, which gives to this court exclusive jurisdiction when the right to a homestead is claimed, refers to the homestead mentioned in Arts, 219 to 223 of that instrument, and not necessarily to the provisions of Art. R. C. C. 3552, which only makes necessitous widows and minors privileged creditors of the estate of the deceased.</p> <p>A mcmdanvus lies to compel the Court of Appeals to hear and determine such a case, although it has ruled that' it has no jurisdiction over it.</p>

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

<p>^ PPLICATION for Maudamus.</p>

<p>A deposit of money in court, equal in amount to the sum prescribed for a suspensive appeal-bond, stands in lieu of the bond.</p> <p>But such deposit must be made within the time that a suspensive appeal-bond is permitted to be given. If made or tendered after that time has expired, the deposit is not receivable.</p> <p>Although the judge did not iix the amount of the bond until the tenth day, no complaint was made of want of time to comply with the order, but a bond was given and when it proved worthless the fault was with the appellant.</p>

<p>The powers of a probate court over property claimed as belonging to a succession under administration are purely jurisdictional in their character. They do not authorize the judge, on his own motion, to deal directly with the property. He can neither make nor revoke titles or leases, of his own accord. His powers must he set in motion by a j>roper litigant in due form of proceeding; and, when they affect the adverse rights or possession of third persons not connected with the succession, the ordinary action hy petition and citation must be resorted to.</p> <p>Even a trespasser is protected in his possession until his trespass is established by due proof at the demand of one who shows some better right in himself, in a proper suit. He cannot be ousted on a proceeding by rule—still less by an ex-parta order of court.</p>

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

<p>CertiorcM'i issues only to test tlie validity of proceedings,‘and not the correctness of .judgments rendered by courts of competent jurisdiction. It serves to pass upon questions of form and not of substance. ■</p> <p>Since the adoption of the Constitutional .amendments ^of Article 81, fixing the jurisdiction of this Court, all the powers .of this -Odurt, over causes decided by it, 'in which the matter in dispute does not exceed $2000, have been transferred to and now vest in, Courts of Appeals, by whom they can be exercised in proper .cases, as effectually as they could have been by this Court, previous to the amendment.</p> <p>This Court is impotent to afford the relief'-now sought.</p>

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

<p>An information charging a threat to burn an entire town, with a malicious intent to destroy the dwelling-houses, stores, etc., of all the property holders of said town, is not defective under Act 64 of 1884, on the grounds that it does not name any person against whose property the threat was made or against whom the malice existed. The information conformed to the facts charged. The malice and threat were not directed against any par* ticular individual, but, against an entire community. It would be useless and unreasonable^ to require the settingforth of the names of all the property owners. T$e crime consisted in the threat to burn the buildings, etc., of another or of others, with the malicious intent to destroy their property.</p> <p>The charge of the judge that “the evidence is short, clear and to the point and leaves not much room for doubt,” is a clear violation of the letter and spirit of Section 991 of the Revised Statutes, and necessitates the remanding of the case.</p>

<p>■ A PPEAL from the Civil' District Court for the Parish of Orleans. I.jl. Houston, J.</p>

<p>Article 138 of tlio Civil Code relative to separation from beil and Tjoard, remains in force and was not repealed "by Act 76 of 1870 and Act 122 of extra session of 1870.</p>

<p>Continuances aro peculiarly within the legal discretion of the trial judge in criminal oases. Refusals to grant them will not he interfered with, unless in cases of flagrant error, or gross abuse of power. The onus rests upon the accused to show the same affirmatively.</p> <p>An affidavit for a continuance, on the ground of the absence of a material witness, necessary to prove assault by the deceased on a described person, and to establish self-defence, is insufficient, where the accused docs not at least, by his own sworn declaration, identify himself with such person.</p>

<p>Under a consolidation of two railroad companies, the corporation thus formed is alone re sponsible for all damages resulting from acts committed or works made since the act of consolidation, although the road bed alleged to have caused the damages claimed, was the property of, and had been begun by, one of the companies which went into consolidation.</p> <p>Hence the Hew Orleans Pacific Railway Company cannot he held in damages alleged to have resulted from works made by tbe consolidated company, after the 20th. of June, 1881, a which time it was merged into the Texas and Pacific Railway Compan y.</p>

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

<p>The decision of the Supreme Court of the United States, rendered since the original decree in this ease, has settled the vexed question of the construction of the exemption from discharge in bankruptcy of debts contracted “while acting in a fiduciary character, ’* and has held that such exemption only embraces technical trusts, suck as those of executors, administrators and the like, and does not include trusts resulting from the relation of agents, commission merchants, etc. This reverses the tormer jurisprudence of this Court on this .subject, and, the question being purely -Federal in its character, we shall horeafter follow the decision of the highest Bederál court.</p> <p>An analysis of the instrument sued on in this case, satisfies us that the debt created thereby-was not, under this construction, excluded from the discharge in bankruptcy,</p> <p>Although a discharge iu bankruptcy is ordinarily personal to the debtor, yot when discharged creditors attack the transactions of the bankrupt which took place after the discharge, his transferees are entitled to the benefit of such discharge, and cannot be deprived thereof, when properly pleaded, by the failure of his collateral heirs, who are themselves estopped from attacking such transfer, to plead the discharge in their own defence. Such a case is not within the purview of Moyer vs. Dewey, 103 U. S. 101.</p>

<p>A PPEAL from the Twenty-third District Court, Parish of Iberville. IX Talbot, J.</p>

<p>Tlio amendment of 1884 to Art. 130 of the Constitution did not destroy the old, or create new, district courts for the Parish of Orleans, hut merely altered the j urisdiction of the existing courts.</p> <p>The amendment to Art 146 of the Constitution only relieved the judicial expense fund from contribution to future criminal expenses. It granted a preference on said fund in favor of the officers named therein over all future charges on the fund; but it did not operate retroactively to destroy the valid, vested rights of prior legal warrant holders.</p>

<p>Aii obligation containing the words: ‘‘This is to certify that I am to pay,” etc., is an unconditional promise to pay money or a promissory note.</p> <p>Suits brought on unconditional obligations to pay money, must be tried without a jury, unless the defendant pleads want of consideration, or sets up a reconvontional demand, and makes oatli to tjie truth of the allegations of his defense.</p> <p>In such suits, and in tbo absence of such oath to such defenses, the court is right in striking the case from tho jury docket and in passing upon it itself</p>

<p>Wliore a mortgage has been given for the loan of money by two co-proprietors of land, and one afterwards buys the other’s undivided half of it, he cannot successfully setup a right of homestead upon the land against or in derogation of the mortgage.</p> <p>And this the more when ho has assumed the payment of his co-owner’s half of the mortgage-note as a part of the purchase price, since the homestead-right is not pleadable againsl the vendor’s lien.</p> <p>The debtor must exercise liis right of selecting the newspaper in which the sale of his property is to be advertised when notice of seizure is given him or before advertisement is made. The sheriff has not to hunt him to ascertain his wishes.</p>

<p>A sale of a stock of goods in block with the adjuncts of a country-store wholly on credit and. without security to an impecunious buyer has the appearance of a simulation, and whon the seller has no property left and is largely insolvent, fraud is established and the sale will bo annulled at the suit of the seller’s creditors.</p>

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

<p>Where a purchaser of land at execution-sale fails to comply with, the requirements of law and the sheriff refuses to give him a deed and he takes no step to force him to execute one, whereby the title to the land remains on record as in the former owner and creditors of this latter 'execute their judgments upon the land without objection or protest the purchaser at such sale will acquire a good title.</p> <p>Where no title has ever been executed and there is no- record of the adjudication, there is nothing to support a petitory action.</p>

<p>APPEAL from the Seventeenth District Court for the Parish of East Baton Ttouge. Burgess, J.</p>

<p>A suspensive appeal does not lie from an interlocutory decree dissolving an injunction, where tlie dissolution is permissive only of an act, the commission of which cannot cause any irreparable injury.</p> <p>The effect of the dissolution of an injunction issued against an actual possessor of real estate, to prevent him from collecting the rents thereof, is to place the parties in the condition which they occupied before the writ asked was allowed.</p> <p>The injury resulting to plaintiff—should ho finally succeed in his petitory action—could be ascertained, computed and liquidated into dollars and cents. Such injury is not irreparable.</p>

<p>A devolutivo appeal taken by a warrant or a bond holder under Act 11 of Extra Session of 1875, requiring the action of tlio Supreme Court on all warrants or bonds the validity of which is questioned as a prerequisite to the funding* of such warrant or bond, must be governed by Article 598. Code of Practice, which denies the rii**ht of appeal, if a year lias expired since the date of the final judgment.</p> <p>Tho Supremo Court has no jurisdiction in. such matters, but by appeal—which must be brought by the party who has recovered judgment, if the defendant Board refuses or neglects to appeal.</p> <p>An appeal in such a proceeding, taken after a year has expired from final judgment, will be dismissed.</p>

<p>None but creditors and forced heirs can attack the acts of an owner of property fraudulently alienating it.</p> <p>Article 1754, Civil Code, is applicable only to spouses who have forced heirs; and though the nullioy of donations, disguised or macte to persons interposed, is absolute, in the sense that they are not reducible merely, but wholly null, it is only relative to forced heirs, and cannot be invoked by mere simple collateral heirs.</p>

<p>In a suit for damages for malicious prosecution of a civil suit, and for a wrongful pro vis. ional seizure, the first ground of action will be disregarded in absence of proof of malice and want of probable cause. The judgment dissolving the writ is res judicata as to its wrongful issuance, and establishes liability for actual damages.</p> <p>Where alleged injury to credit and resultant losses appear attributable to the suit itself and not to the seizure, they will not be allowed as damages for the wrongful issuance of the latter.</p> <p>The counsel fees, allowable as damages for the wrongful issuance of conservative writs, are not those incurred for the defense of the suit, but only those rendered exclusively in relation to the writ.</p>

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

<p>In an action by a judgment creditor, for the simulation of a purchase of property, which he alleges to be that of his debtor, the value of the property, and not the amount of the .judgment sought, to be executed thereon, is tbe real matter in dispute.</p> <p>A married woman, duly separated in property from her husband, has the legal right to purchase property for her own and separate account, either for casli or on terms of credit—and property thus purchased, becomes her paraphernal estate. The burden of proving the invalidity of such purchasos. is on the party attacking the same.</p>

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

<p>An order of seizure and sale in a proceeding via ejecutiva, on a mortgage importing confession of judgment, is a judgment, and, after its rendition, such proceeding is not removable from the State to the "Federal court. So. an action brought by the defendant to restrain the execution of such judgment, is auxiliary to the proceeding and is not removable</p> <p>Boudurant vs. Watson, L03 U. S. 287, only applies to injunction suits to restrain execution of State court judgments, when brought by persons not parties to such judgments,</p>

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

<p>APPEAL fi-om the Seventeenth District Court, Parish of East Baton Rouge. Tkt/rgess, J.</p>

<p>The forfeiture of an appearaee bond is a proceeding in a criminal case, and tlie appeal from tlie judgment of forfeiture is not to be tested by tlie rule applicable to civil actions.</p> <p>Whenever the offence charged in the indictment is of a grade that gives us jurisdiction because one of the jurisdictional punishments may be inflicted, that fact attracts jurisdiction to the appearance bond that was given in that criminal proceeding. The test of our jurisdiction is not the amount of the bond but the grade of the offence charged.</p> <p>The forfeiture of an appearance bond given without authority will be set aside.</p> <p>The object of an appearance bond is to secure the trial of the offender rather than to fill the coffers of the Treasury, and therefore when after forfeiture the sureties bring the offender into open court during the term when the bond was forfeited, the judgment of forfeiture should be set aside, provided there is no collusion or deceit or fraud practiced or attempted to be put upon the court.</p>

<p>áPPEAL from the Ninth District Court, Parish of Tensas. . Young, J.</p>

<p>A PPEAL from the Twenty-Sixth District Court, Parish of St. John ^ 1 the-Baptist. Wahn, J.</p>

<p>A married woman duly authorized to contract by a competent judge, under Art. 127 Civil Code, cannot contradict her own declarations and the recital in the judge’s certificate, in the absence of allegations of fraud against the creditor, or of fraud committed to his knowledge. But evidence under an issue without the required allegations, admitted Without objection, will be considered—and the pleadings being thus enlarged, will open the door to the investigation of the real consideration of the contract sought to he onforced against a married woman. If the evidence shows that the contract was not based on the objects stated in the judge’s certificate, but for a different object to the ■knowledge of the creditor, the burden of proof that the contract enured to the benefit of the wife is thus shifted on the creditor seeking to enforce the contract</p> <p>A judge of a parish court under the Constitution of 1868, was absolutely without power to authorize a married woman to contract a debt exceeding five hundred dollars, even when acting in the absence or place of the district judge on an application addressed to the latter.</p> <p>In order to give validity to a contract by a married woman for the ostensible purpose of talcing her husband out oí jail, the evidence must show that the husband was actually incarcerated, and that he was liberated through the means of his wife’s contract, either by sale of property or loan of money.</p> <p>It is not sufficient to show that he was threatened with a criminal prosecution which was averted by means of his wife’s contrac!..</p> <p>A tax sale of property sold at a previous tax sale, which is itself shown to be null, can convey no title.</p>

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

<p>This being an action for damages for an aggravated and causeless assault upon a diseased and helpless man, attended with every circumstance of insult, violence and humiliation, no serious question arises except as to quantum of damages. !No rule exists by which to estimate the precise pecuniary indemnity which will compensate for such injury ; and the verdict of the jury, not being manifestly excessive, will not be disturbed.</p>

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

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

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

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

<p>An allegation tliat tlie plaintiff possesses the property as owner does not make the action petitory, It was necessary to allego tliat slie possessed as owner or in some other capacity tliat entitled lier to the possession. When tho prayer is for the restoration/)f possession alone, the action is possessory.</p> <p>Whore the defendant pleads in reconvention sums expended for repairs, taxes, etc and was prevented from introducing testimony in support of his plea because the case went off on an exception, it will be remanded to enable him to introduce such testimony when he alleges that he possessed in good faith.</p>

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

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

<p>^REPLICATION for Prohibition.</p>

<p>In an action on a policy of insurance, the act of tlie insurer who has knowledge of an increase of risk by a change of use of the insured premises, without objecting to the same or cancelling the policy, will be construed as a waiver of his right of forfeiture of the contract by reason of such increase of risk.</p> <p>Parol testimony is admissible to show such waive]’, although the policy contained a clause requiring the agreement of the insurer to be endorsed on the policy.</p> <p>If the insurer, after knowledge of the increase of risk, continues to receive premiums, he will be held to have waived the forfeiture.</p> <p>Positive testimony on a given point must predominate over negative testimony on the same-point.</p>

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

When property attached has been sold in limine under C. P. 261, the ■proceeds take the place of the property and still continue to be “property attached,” and subject to the right of the defendant to bond “in •every stage of the suit,” under C. P. 259. Application for Mandamus.

<p>In an appeal from, a judgment in an injunction suit, involving tlie debtor’s claim of a homestead under the act of 1865. previous to tlie recent amendments of the Constitution, the-test of the jurisdiction of the Supreme Court was in the value of the property claimed' as a homestead, and not in the amount of the judgment enjoined.</p> <p>Homestead exemptions being in derogation of common right, parties claiming thereunder mnst show by clear proof that they fill all tlie requirements of the law conferring such exemptions.</p> <p>A short residence on the property with a view to claim it as a homestead, but abandoned before the seizure will not be sufficient.</p>

<p>A motion in arrest of judgment which charges no error aim refers to affidavits which are not in the record, is not enfitled to notice and is properly overruled.</p> <p>An assignment of errors filed long after the submission of the case and which, in itself, is. without merit, will not be considered.</p>

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

<p>A purchaser at a judicial sale to foreclose a conventional mortgage, has a right to call the seizing creditor in warranty, to defend a suit, the object of which is to evict him.</p> <p>■Such purchaser is entitled to restitution of the price paid, first from the seized debtor, and next, for deficiency, from the seizing creditor, where the sale is annulled.</p> <p>The seizing creditor, under article. C. P., 713. escapes liability if the purchaser is obliged to ijuit the property on the hypothecary action of a creditor having a legal or judicial mortgage on all the property of the party in execution, hut lie must he held where the action is on a conventional mortgage.</p>

<p>¿Succession representatives and tutors who are not surviving partners iu community or ordinary partnership, or legatees, or heirs, are absolutely prohibited from purchasing any property entrusted to their administiation. The fact that they are mortgage creditors does not form an exception in tlieir favor. The prohibition which derives from five Roman law extends to all purchases, whether the sale was provoked by the succession representative, or by a creditor, whether in, or out of, the moriría proceedings. Under the express letter of the prohibitory laws, the purchases are reprobated and are absolute nullities, whether made directly or by moans of a third or interposed person, whether for good or improper motives.</p>

<p>It is an essential condition precedent for the recovery of damages on a bond furnished for an injunction, that the injunction be decided to have been wrongfully obtained. ,</p> <p>A judgment which recognizes that an injunction was properly sued out and which dissolves it, owing to the happening of events subsequently occurring, isnot one deciding that the injunction was wrongfully obtained and cannot serve as a foundation for a claim in damages.</p>

<p>^ IMPLICATION for Certiorari and Prohibition,</p>

<p>A car driver can be charged justly with negligence, only where he fails to observe or do something he ought to see or do, and would notice or do with ordinary vigilance; where he fails to be prepared for something visible, or at least of probable occurrence, or that might be reasonably expected of iiim.</p> <p>If the accident happen from a sudden and unanticipated act, which is the result of the thoughtless impulse of a child, of which human foresight could not be prescient, no liability attaches to the drivor ox to Ms employer.</p>

<p>Any fraudulent making or alteration of any writing mentioned in our statute, or writing in-eluded, in tlie terms therein used, constitutes the crime of forgery.</p> <p>It is not necessary to set out in the indictment the particular acts that constitute the crime, but is sufficient to charge that the defendant did feloniously forge a certain cheque.</p> <p>The charge that the defendant forged a cheque or hill of exchange is not vicious for duplicity. A cheque may be described in an indictment for forgery as a cheque or hill of exchange.</p> <p>The object of our statute in permitting the forged instrument to be described by its ordinary designation was to exclude the need of designating it hy its exact legal name.</p>

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

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

<p>Where a power of attorney empowers an agent to sella lot at the corner of two streets and the deed of the ageut specifies which corner by mentioning the boundaries of the square in which the lot is, the indefiniteness of description of the lot in the power of attorney is cured by the full description of its locus in the deed, and a purchaser of the lot hy public auction is not justified in refusing to comply with his bid because of the indefiniteness of description in the power of attorney.</p> <p>Such, refusal is the less justifiable when the original vendor who is the author of the power of attorney did not own a lot at any other corner of the named streets, and he and they who hold under him have possessed the lot thirty years.</p>

<p>The State court has jurisdiction of a hypothecary action to enforce a judicial mortgage resulting from the inscription of the judgment of a Federal Court.</p> <p>The inscription of the judgment of the Federal Court sitting in this State, creates, equally with that of a judgment of a court of the State, a judicial mortgage.</p> <p>The effect of a judgment declaring the simulation of transfers and. unmasking the title of the real owner, is not confined to the plaintiff in the suit, hut places the property as if the simulated title had never existed and subject to the rights of all creditors according to the rank which the law acfcords them.</p> <p>The pledgee of collaterals, who proceeds for a judicial foreclosure of his pledge, is not debarred from purchasing at the judicial sale thereof.</p> <p>Objection to the capacity of plaintiffs to stand in judgment not raised by the pleadings will not be noticed.</p> <p>The credit claimed for the $2500 paid by Friedlander, is allowed for reasons given in Adams & Co. vs. Friedlander.</p>

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

Landry. Hudspeth, J. 1. In a criminal prosecution, the defense cannot demand a severance as a matter of right. 12 Wharton Or. P. and P. 309. The ruling of the trial court upon an application for a severance cannot he reviewed by the Supreme Court. 8 Aim. 114. 2. To entitle the defense to an attachment for an absent witness, service of the subpoena must be personal. 15 Ann. 525. 3.

<p>Courts have inherent power to pnnisli for contempt and our Code of Practice has expressly conferred ifc, but a judge cannot assume or decide that a witness has sworn untruthfully and punish him for the perjury as a contempt.</p> <p>Refusing to answer a question that a witness is bound to answer is contumacy and is punishable as a contempt. Answering such question untruthfully is perjury, the punishment of which is remitted to the regular action of the criminal law.</p>

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

<p>When a suit is "brought gin the district court to annul a decree of partition rendered by a parish court, and to enjoin a sale ordered, thereby, and when the district court not only dismisses the suit on exceptions, but, at the prayer of defendant, renders an. affirmative decree ordering the sale to proceed pursuant to the decree of the parish court, and suoh judgment is, on appeal, affirmed in this Court, it has the effect of res judicata, between the parties and their p rivies, as to the validity of the judicial power ordering the sale.</p> <p>One who has intervened in a judicial proceeding and claimed to regulate the distribution of the proceeds of a sale ordered therein, cannot afterwards attack the sale itself for nullity.</p> <p>The titles of defendants resting ux>ou adjudications under a judicial partition sale, the validity and judicial character of which cannot now he questioned, they hold the property disincumbered of judicial mortgages attaching to the interests of individual owners in indivisión, and said mortgages were transferred to the proceeds of sale.</p>

<p>A chief object of the laws authorizing the wife to obtain a judicial separation of property, is to emancipate not only her property, but her industry, from control of the embarrassed husband, and from liability for bis debts; to enable her to conduct business in her own name and for her own account and benefit, and thus to earn a livelihood for herself and family. When she thus conducts business in her own name and ostensibly for her own account and induces innocent third parties to contract with her npon the faith of her own and her husband’s representations that the business is her own, she cannot afterwards repudiate her obligations on the pretense that the business was really that of the bus band, in opposition not only to her representations, but to all the ostensible appearances of its conduct. Having thus represented and held out the business as her own, by con. ducting it in her own name through a series of years, as well as by her express assurances, the doctrine estoppel fully applies.</p>

<p>The driver of a feed car, running on one of the streets of the city, allowed boys to ride by his sides on the platform, fare free. On their getting troublesome, he ordered them to get off, slackening his car to a mule walk, without touching, throwing off or threatening either. One pushed another, who, losing his balance, fell, slipping under and being crushed by the vehicle, death ensuing later.</p> <p>Under such circumstances, the company cannot he held liable. The injury was not the natural and probable result of the driver’s orders, and such an occurrence as he might and ought to have reasonably foreseen. Jtwas the consequence of one for whose acts the company is not responsible, and who, like the injured party, was an intruder on the car.</p>

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

<p>Ail executor is, in effect, liut tlie mandatory of the testator touching the dispositions of the will. He must, in the exercise of his functions thereunder, conform to its terms and directions. So where he is instructed to pay a stipulated sum to any asylum he may select “especially devoted to the care of aged persons,” he is not authorized to give it to an asylum devoted hy the terms of its charter, “to the relief of destitute females and helpless children” and cannot he compelled to do so.</p>

<p>"When a motion is made for a continuance in this court accompanied by a writing purporting to be an order or consent of the opposite party thereto and the counsel of the latter alleges that such writing has been improperly obtained, tbe motion and writing submitted therewith will be sent to the lower court with directions to take testimony on the matter and return the samo to this court,</p>

<p>The transfer of a judgment “ so far as the same now remains unpaid," with subrogation to , existing rights against the person and property of the debtor, does not authorize the transferee to assail prior contracts of the original judgment creditor, under which, for due consideration, certain property had been released from the judicial mortgage resulting from the record of the judgment; nor does it subrogate the" transferee to the rights of the transferrer to complain of non-compliance with alleged terms of such extra judicial contract. In any event, the transferree could not judicially claim the nullity of such contract withou making both paities thereto parties to his suit.</p> <p>Where antecedent tender is required, amere written communication demanding the cancellation of a contract and expressing the willingness to return what had been paid, when not actively declined or refused, is not a substitute for the tender itself or an ex-n cuse for not actually making it.</p>

<p>A mandamus lies to compel the State auditor to issue Ms warrant on the State treasurer for tho payment of a valid claim recognised bylaw, to meet which, an appropriation was inade by the legislature.</p> <p>The holder of such claim is authorised to rofuso a warrant drawn against a general fund to tho credit of a particular year; when the law directs payment to him from any money in the treasury not appropriated, and when there is not money enough to the credit of that fund, for that year, to satisfy that warrant.</p> <p>•Such holder can require the auditor to issue to him another warrant on the treasurer, to bo paid out of tho general fund at the time in the treasury, unappropriated, and to tho credit of another year, out of which it can he paid.</p> <p>Tlie State auditor has no authority to restrict the pavment of tho holder of such claim, to the general fund of a particular year, out of which il could not be paid.</p> <p>Under the terms of the concurrent resolution of the General Assembly, Tifo. 124, adopted subsequently to Aef* 2So. 23 of 1884, the^eneiidaries therein named are entitled to a distribution among themselves, only of tho surplus or residua of tho general fund of 1883, remaining after payment of the claim recognined by Act 23 in favor of tho relator; which makes the necessary appropriation, to meet the same, out of money at tho time in the treasury.</p>

<p>Where a tax-sale has been declared a nullity, the purchaser at such sale is entitled to reimbursement of the capital, interest and penalties he has paid, unless where the assessment of the property was radically defective or other essential legal requisites not complied with, in which last case only the principal and interest of the taxes paid can be recovered.</p> <p>‘Whatever presumptions in favor of tax deeds may attach under the provisious of the Constitution, they have no application to tax-deeds which have been decreed null and void. In order to recovor penalties paid under a void tax-sale, the plaintiff must prove the validity of the assessment, and having failed to malee such proof, his claim to that extent is non-suited.</p>

<p>A PPEAL from the Ninth District Court, Parish of Tensas. Youn<j,S.</p>

<p>An irregularity in the manner of drawing the juiy, unless it he alleged and shown to be accompanied by fraud, or a great wrong, cannot avail an accused on appeal. Jt is not every irregularity in criminal practice that works injury.</p> <p>Under a showing that an accused, in a case pending in New Orleans, when witnesses do not live at great distances from the court, took necessary steps to summon his witnesses within three days of the notice of trial, and seven day* in advance of trial, is prima facie proof of due diligence. Under such a showing, the absence of a witness residing in said city, hut temporarily absent therefrom, whose attendance the accused had sought to secure by moving for necessary process to be served in the parish where the witness is supposed to be at the time, such steps being taken seven days before trial, will entitle the accused to a continuance of his cause.</p>

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

<p>A motion to dismiss an appeal because of the deficiency of the transcript, which contain» BUifttno note of evidcmee, bill of exception, or statement of facts, cannot prevail if the appellant has filed, within legal delays, an assignment of errors which presents an alleged error of law appearing on the face of the record, and which can he disposed of without reference to evidence or matters of fact.</p> <p>The act of an appellant in filing in the same court another suit for the same causes of action alleged in the suit decided against him, after taking an appeal theroin, will not be con-st ued as an acquiescence in the judgment so as to defeat his right of appeal.</p> <p>A cause of action for a partition is disclosed, where the petition avers that the petitioner is-a- child by a first marriage, that her father died owning half of the property composing the community existing during his second marriage, of which there was no issue and that the petitioner is his sole heir.</p> <p>The defense, that such partition cannot take place, for the reason that such property is burdened with a usufruct in favor of the surviving spouse, lacks foundation and is no valid objection.</p>

<p>Where the record does not show that an indictment was returned into court by the grand jury, the case must be remanded and the sentence set aside.</p> <p>To justify the quashing of a venire on account of irregularities in the drawing of the same, it must appear that a fraud was committed or a great wrong done to the serious prejudice of the party or parties accused.</p> <p>Under an indictment charging an assault b" wilfully shooting at, a conviction will not be •set aside because of the refusal of the trial judge to instruct that it must appear that the assault was made with a malicious intent.</p>

<p>A PPEAL form the Sixth District Court, Parish of Morehouse. jLJL Brigham, J.</p>

<p>A prohibition will not issue to a city court, in an ejectment suit», in which the defense is a renewal of a pi e-oxisfcing lease exceeding one hundred dollars, when, on the trial of the exception to its jurisdiction, the renewal was not proved.</p> <p>Time is of the essence of such defense. If the defendant in the suit did give notice, he should have proved with certainty not only the notice of his intention to renew: but that it was given before the expiration of the lease.</p> <p>To prove a contract exceeding five hundred dollars in value,, a credible witness and corroborating circumstances are required. The fact that the only witness to prove it, is the party claiming rights under it, is not sufficient to make him incompetent; but it may diminish his credibility. When such testimony is unaccompanied by coiToborating circumstances, it is surely insufficient to prove the contract.</p>

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

<p>This is an action for slander upon the professional character of the plaintiff, which is proved by the concoidant testimony of his fellow-citizens and brethren of the bar to be above reproach. The evidence, however, explaining the meaning of the words and the connection in which they were used, acquits defendant of the charge of slander, as found by the .jury who-tried the case.</p>

<p>Tho confession of judgment l>y a debtor arrested for debt, does not authorize his release from imprisonment, 1 Ann. 126 , 31 Ann. 799.</p> <p>There exists no discrepancy or disparity between tbe law relative to tho release from custody of snch debtor, in proceedings in oases of arrest by district courts, and that on the subject, by parties ol‘ the peace or city courts. They are substantially tho same.</p> <p>The city judge had jurisdiction of the case and the proceedings apxicar to have been regularly conducted.</p> <p>The application for a certiorcvri to vitiate the proceedings is refused.</p>

<p>APPEAL from the Twenty-sixth District Court, Parish of St. Jolm tlie Baptist. Halm, J.</p>

<p>After trial lias begun, accused cannot obstruct its progress by motions for attachment of jurors who are absent; and refusal to grant attachments in such case is not error.</p> <p>Proof of violent character of person wounded, in a trial for wounding less than mayhem, is properly rejected, unless proper foundation has been laid by evidence of overt act, hostile demonstration or threats on his part.</p>

<p>An order transferring a cause from the Supreme Court to a circuit court, on the representation of appellant and appellee, that the matter in dispute, or fund to be distributed, is less tban 82000, will be rescinded where it is. subsequently ascertained that it was based on an error of fact and that the amount involved clearly brings the case within the jurisdiction of the Supreme Court..</p> <p>An appeal cannot be prosecuted and the case must be stricken from the docket, where the transcript of appeal or papers purporting to constitute such, have been filed after the expiration of an extension of the return day originally fixed.</p>

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

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

<p>A mmdamius does not lie to compel the granting of an injunction, wliore the averments of the petition show that, if allowed.it would, or might, clash with another injunction issued by another court, apparently first seized of jurisdiction over the same matter, in a litigation between the same parties,</p>

<p>. The power of the judge of any court to punish, by fine and imprisonment, a witness for refusing to answer truthfully to any questions put to him, which is simply peijury, cannot be derived from Art. 136, Codo of Practice, or from any other provision of our law. Perjury is a felony, which cannot be punished otherwise than according to the prescribed forms of law.</p> <p>An order from a district judge fining and imprisoning a witness on such grounds, can be examined by this Court under a certiorcm, and the order will be annulled and sec aside.</p>

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

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

<p>Act 16, of tlie General Assembly of 1864, directed til© issue of $10,000,000 of State bonds, and required tbe Governor to sell or exchange the bonds for treasury notes, Confederate or State.</p> <p>A number of these bonds were given in exchange for sugar, to meet the wants and exigencies of the State government. JBCeld, that such disposition of them violated the mandatory requirement of the law, and the holder of them acquired thereby no right or title to them as would enable him to have them funded and exchanged for consolidated bonds under the funding act of 1874.</p> <p>The presumption in favor of oficial acts, that they are rightly done, is not a presumption ju¡ris et de jure, but one open to contrary proof.</p>

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

<p>PPEAL from the Fifth District Court, Parish of Caddo. Hieles, J.</p>

<p>The assessment of the property of a tax payer on the rolls and the modes used in fixing its value, are presumed to be oorreet until he establishes the reverse.</p> <p>The income derived is not always the proper criterion.</p> <p>That rule surely does not apply to exceptional property, which is not designed to yield a rental or commercial purposes, but destined wholly, or mainly, for personal use, benefit and gratification.</p> <p>Heal estate subjected to a servitude does not cease to belong to the grantor who continues to own the same and who can dispose of the same as he may please, provided he does not thereby interfere with the enj oyinent of the servitude by the creditor thereof.</p>

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

<p>This Court lias no jurisdiction over an opposition to an executor’s account when the amount claimed is less than $2000, and tlie fund to be distributed does not exceed that amount; and on its own motion must dismiss the appeal.</p> <p>A creditor has no right to oppose each and every item, on a tableau of distribution, in a thoroughly solvent succession, where, after an amount amply sufficient to meet his claim has been retained, the payment of such items cannot possibly affect or injure him.</p> <p>Such an opposition, for want of interest in tbe opponent, is frivolous on its face and cannot arrest the distribution, except so far as may be necessary to provide for payment of the claim, if ultimately allowed.</p> <p>Where the fund thus arrested docs not exceed $2000, an appeal does not lie from the judgment on the opposition to this Court, which is devoid of jurisdiction.</p>

<p>Where a preference in payment has "been given by the legislature to the warrants for an appropriation over all warrants upon the general fund or over certain specified warrants thereon, the holders of such preference-warrants are entitled to be paid in accordance with such provision subject to the pre-payment of the Constitutional and the University warrants.</p> <p>Where the residue oí the general fund, after payment of these two classes of warrants, and the payment of those warrants to which legislative preference has been given,1 is insufficient to pay in full all other appropriations, they must share such residue pro rata,.</p>

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

<p>A PPEAL from the Seventh District Court, Parish of Catahoula. Jrx. milis, judge ad hoc.</p>

Balcer, J. 1. On the hearing of applications for change of venue, the fact whether prejudice existed in the public mind against the defendant to such an extent as to render an impartial trial unlikely, may be ascertained ftom the opinions of well informed witnesses. 2. Defendants are bound by the evidence given by their witnessess upon examination in open court, and cannot contradict the testimony so given by the exparte affidavits of the same witnesses. 3.

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

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

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

Houston, J. 1. Streets and public places cannot he appropriated to private use. 0. C. 454, 458, 863 ; Dillon’s Mun. Corp., Secs. 61, 518; 2 Ann. 770; 3 M. 296, 303; 27 K. X. 611; 4 Oald. 406, 419 ; 70 Pa. St. 310 ; 79 Pa. St 257; 56 Pa. St. 413. 2. The switch in question is an obstruction of the highway, especially injurious to plaintiff and his property, and liable to he removed as a nuisance. 3 L. 566; 4 M. 9; 6 JEt. 349; 6 East. 427; 35 Ann. 1062, 1074. 3.

<p>PPEAL from the Twenty-fourth District Court, Parish of St. XriL Bernard. Lkaudals, J.</p>

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

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

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

<p>Evidence to establish prior threats is inadmissible unless proof be first given that there was an overt act of attach and that the defendant at the time of the collision was in apparent imminent danger.</p> <p>In the absence of proof of abostile demonstration by the deceased, evidence of threats made against accused, to prove that the latter had a right to kill, is irrelevant.</p> <p>ITo one has a right to kill another simply because he has made some threats against him.</p> <p>Witnesses should not be cross-examined on the assumption that they have testified to facts, touching which they have given no testimony.</p> <p>Where no foundation has been laid as to the quarrelsome disposition of the accused and the case does not present a single element of self-defense, questions: whether the witness is acquainted with the reputation of the deceased as being of a quarrelsome disposition, or otherwise, and whether that reputation was good or bad, are properly ruled out; the more so when there was shown no attack by the deceased and no disposition on his part which gave the accused reasonable ground to believe that he was about to be attacked.</p> <p>A trial judge cannot be asked to charge the jury, in a criminal prosecution, as to what the law is in a case which is not before them, but totally differs from it. As well might he be called on to read to them the Civil Code and the Code of Practice, or the Institutes of Justinian.</p>

<p>The rule -of law (C, 0. art. 1933) which requires, in an action sounding in damages for the passive violation of a contract, that the debtor be first put in default, has for its main object to secure the right of the creditor to claim his damages against an offer of the debtor to execute the agreement. Hence it cannot be invoked as a defense by a defendant who absolutely denies the existence of any contract. As a means of defense, the failure to put in default must be specially pleaded.</p> <p>A party who violates his contract in bad faith, will be held responsible for all damages, including those which could not be foreseen at the time of making the contract, which can be traced to his breach of contract.</p> <p>All damages must be proven with legal certainty. Statements of items in globo, without details when called for, are not sufficient.</p>

<p>The dedication of property to public use must appear by evidence so conclusive as to exclude all idea of private ownership.</p> <p>So where a road has been used by the public for thirty or forty years by the mere sufferance or tolerance of the owners of the land which it traverses, such use does not, of itself, establish the formal assent required to prove a dedication and divest the title of such owners.</p> <p>The Act 63 of 1868, entitled an act relating to public roads, is unconstitutional and void.</p>

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

High tor, J. 1. .Antoine and Emile L. Camdre, having under their administration as agents of the defendant, Mrs. Brugior, various bonds belonging to her, used the same in the interest of the firm of A. Oamére & Sons, composed of themselves and another partner, and 'substituted therefor values represented by several notes which are in the possession of Mrs. Brugior, and inferior in value to her said bonds.

<p>Wharfage dues are not taxes or duty of tonnage, or regulations of commerce, or obnoxious to the Constitution of the United States, but are lawful charges for conveniences furnished to commerce.</p> <p>¡Neither are they a tax, toll, or impost, within the meaning of the State Constitution.</p> <p>The Supreme Court has no jurisdiction over a cause, in which such dues are claimed, for an amount below that fixed as the inferior limit of its jurisdiction.</p>

<p>In a proceeding where a non-resident creditor has attached in Louisiana property of a nonresident debtor fraudulently brought in this State, tlie rights thus acquired cannot be-defeated by a receiver appointed under a creditor’s bill, by a court of another State, by means of an intervention in which he claims the property as receiver for the purpose of bringing the same within ihe jurisdiction of the court wherein he holds his appointment.</p> <p>The general rule is that such a receiver is the mere creature of the court appointing him,, and his powers cannot he exercised beyond the confines of that State.</p> <p>!For the purpose of claiming the protection of our courts, no discrimination can he made-between residents or citizens of this State and citizens of another State. It suffices-that the seizing creditor whose rights are assailed by a foreign receiver, be not a resident or citizen of the State whence the latter derives his powers.</p>

<p>' Where, in a criminal case, the jury after retiring to deliberate on tbeir verdict, return into court and request the judge for certain information, not pertaining to the evidence adduced on tlie trial, and the counsel for the accused present, consents that tlie information may be given, and it is given, accompanied by a statement of tlie judge that it lias nothing to do with the ease,’which must he determined by the evidence heard on the trial j such irregularity, under these circumstances, is not sufficient to vitiate the verdict.</p> <p>,An indictment under Act 8 of 1870, denouucmgthe offense of shooting at a house occupied hy persons lawfully therein, is not amen Able to the charge-of duplicity, because, of the averment that the shooting was with intent to murder a person named in the house.</p>

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

A PPEAL from the Civil District Court for the Parish of Orleans. /~\ Monroe, J. 1. In trade mark cases the question is not whether the complainant was the original inventor, nor whether the article made and sold under his trade mark by the defendant is equal to his own in quality or value.

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

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

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

Houston, J. i. The causes for exclusion and removal, established by Art. 308, B. O. C., are not applicable to the mother of illegitimate children, but refer solely to the tutorship of legitimate offspring. The surviving mother is of right tutrix to her natural children duly acknowledged. B. 0. O. 256.

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

<p>Sequestration is a rigorous remedy and cannot be extended by implication nor beyond those cases for which, the law has expressly provided.</p> <p>An allegation that the writ is necessary to maintain the property pending the litigation in order that the revenues may bo promptly collected is insufficient. There should be apprehension of waste or of conversion to use.</p>

<p>.A party who seeks the annulment of Ms contract on the ground of error, must establish error as to the nature of the contract, or as to the substance of the object of the contract, or as to the substantial qualities of sucli contract.</p> <p>"Where the notarial act evidencing the contract read and signed by the complainant discloses fully and truthfully its nature and object with all its substantial qualities, the party cannot set up error on these points.</p> <p>"Where a party unconditionally assumes a liability contingent as to its eventual amount, as in the case of the stock mortgages of the Citizens’ Bank, he is bound thereby, although he erroneously believed that such liability wonld be nothing, or less than it proves to be, such error affects the accidental and not the substantial quality of the object, and cannot affect the contract unless induced by the fraud or false representations of the oth*r party.</p> <p>‘He who alleges fraud must prove it. If the false representations which induced such error were made by a third person, without the knowledge or procurement of the other party to the contract, the validity of the contract is not affected thereby.</p> <p>Lesion, however enormous it may be, baa no effect to invalidate the contracts of persona of full age and under no incapacity, except certain designated contracts, of winch this i& not one.</p>

. Mielas, J. 1. Malice is evil intent-. Wharton Cr. Law, § 106. 2. The intent to do enormous or severe bodily harm, followed up by homicide, is murder*. Wharton Or. Law, § 315. 3. Objections urged in a motion for a new trial, based upon the alleged misconduct of tbe jury, should be embodied in a bill of exceptions. 36 Ann. 310; 31 Ann. 804; 31 Ann. 1171; 35 Ann, 418 ; 30 Ann, 389, 403, 1. Death ensuing immediately after a mortal blow, the law presumes intent. 2 Bish. Cr.

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

A PPEAL from the Eighth District Court, Parish of East Carroll. jTA_ Delaney, ,T. 1. The right to secure a debt by a sale with right of redemption, is well established. 32 Ann. 94; lb. 784; 31 Ann. 384. 2- The right to redeem falls ipso facto upon failure to pay the sum borrowed. 35 Ann. 855, Jackson vs. Lemle. 3. Where the wife sets up her judgment of separation defensively, and it is alleged to be fraudulent and collusive, she must sustain its validity by proof.

<p>The verdict of «a jury in a criminal trial need not be written.</p> <p>"Wo have no code of practice for criminal causes but follow the common-law procedure in them, and written verdicts are unknown to that system. Yerdicts in criminal Irials are delivered by the foreman of the jury ore temes and are recorded by the clerk.</p> <p>Where a witness introduced by the defendant has sworn that he did not know a certain thing to have happened, and other witnesses aTe offered by the defendant to prove that it did happen and he knew it, their testimony should be receiyed although the effect of it is to contradict his own witness. The main substantive thing to bo proved was a fact inconsistent with the prisoner’s guilt and the knowledge of that fact by the first witness was only an incident.</p>

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

<p>Ail order of the Civil District'Court dismissing an appealfrom the city court on the ground that the record of appeal was filed unstamped, is invalid in the absence Of‘any law requiring such records to be;stamped before filing.</p> <p>The stamp act of 1880 does not'apply to appeals in suoh cases, whioh had then no legal existence.</p> <p>The right to appeal from judgments of city courts in certain cases was conferred by the amendments of Articles 130 and 135 of the Constitution adopted in 1884.</p> <p>The Act of 1880 did not propose to repeal the anterior legislation regulating costs in cases of appeal from justices of the peace, •which is not on the same subject matter.</p> <p>Costs incurred in appeal cases from the city courts are limitable to five dollars, by rule of court, and recoverable in stamps.</p>

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

<p>Revisory legislation, embodied into a system of laws and termed tlieRevised Statutes of the State, which embrace antecedent statutes of a general nature on various subjocts, and reduces them to one body and one text, repeals all prior statutes upon the same subjects not included in the revision, especially where it contains an express repealing clause.</p> <p>So, the third section of the act approved the22d February, 1817, denouncing the crime of concealment by the mother of the death of her infant child and declaring the penalty therefor, was repealed by the repealing clause of the Revised Statutes of 1870 (Section 3990 thereof), the said section not being included in said Revised Statutes and not being excluded from the operation of said repealing clause by express exception or mention therein.</p>

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

<p>Whore an injunction suit is submitted on a rule to dissolve and on the merits and a judgment is rendered dissolving the injunction with damages, which judgment is responsive to the issues on both the rule and the merits, and where, on appeal to the circuit court, the latter affirms the judgment, this Court, on application for certiorari and mandamus will not look into the reasons assigned by the district judge and the appellate judges respectively and interfere on the ground that the former based his judgment od the merits, while the latter based their affirmance on the grounds of the rule to dissolve. The proceedings being regular and the jurisdiction undisputed, wo are not concerned with the sufficiency or correctness of the reasons of the judgment.</p>

<p>A city court hag no jurisdiction over a suit, the object of which is to obtain a perpetual injunction to prevent tbe exercise of a right exceeding in value one hundred dollars.</p>

A PPEAL from the First City Court of New Orleans. 1. The banks of the river are public, and within her corporate limits the city of New Orleans has the exclusive right to control, manage and administer their use for the public convenience and utility. Riparian proprietors have no right to interfere with the exercise of this right. C. C. Arts. 490, 491, 492, 455, 457;' 18 La. 228; lb. 284; City Charter, Sec. 12 of 1870, Sec. 8 of 1882. 2.

Houston. J. 1. The purchaser of alease at judicial sale assumes as part of the.price the payment of the rent for the unexpired term. 11 Ann. 433; 14 Ann. 218; 17 Ann. 174; 12 Ann. 524; 32 Ann. 371. 2. The purchase of a “lease and right of occupation” is tlie purchase of a “lease” 14 Ann, 218. 3.

A PPLICATION for Mandamus. 1. The city may institute a suit of the city of New Orleans without being authorized thereto by ordinance or regulation. Sec, 27, Act No. 20,1882. 2. Where a party agrees to do certain work for another, and in the event of a failure to do such work, the obligee is, by the contract, authorized to have such work done at the expense of the obligor, this stipulation of the contract is no bar to a demand by tho obligee for specific performance.

Lamrus, J, Seotion 1808, of the Revised Statutes of Louisiana, which declares: “Any debtor who shall, within three months preceding his failure, have sold, engaged, or mortgaged any of his goods and effects, or shall have otherwise disposed of the same, or confessed judgment, in order to give au unjust preference to one or more of his creditors oyer the others, shall' be debarred from the benefit of the insolvent laws, and the said deed or acts shall be declared null and…

<p>PPLICATION for Certiorari.</p>

A PPEAL from the Eleventh District Court, Parish of Natchitoches. XjL Pierson, J. 1. This suit is brought for the recovery from the defendant of eight per cent interest on $3444 44, same being the one-ninth of the succession of B. L. Saunders, of which the plaintiff was awarded the usufruct during her natural life, and at her death to he returned to the succession or the heirs of deceased. 11 Ann. 657, Gee vs. Thompson; 27 Ann. 593, Succession of Newman; 11.

<p>An insolvent, wlio avers in his petition of surrender that he was carrying on his “business under a firm name of'his own “and Company”, will not be allowed to prove in a contest over an account presented by himself as syndic that ihe firm was composed of himself and another person. In such a case, creditors who dealt with him under his firm name can obtain no preference over creditors who had previously dealt with him under his individual name. Hence all his creditors are entitled to an equal participation in the distribution of bis assets.</p>

_ Baker, J. 1. Tho judgment will not be disturbed because of the absence, occasioned by sickness, of counsel for the defense, when the defendant at the trial, instead of asking for a continuance, announced that he was ready to be tried. State vs. Doyle, 36 Ann. 91. 2. The action of the district judge in overruling an application for a new trial in a criminal case, will not be reviewed when no bill of exception is reserved thereto.

Baker, J. 1. A confession, if proven to have been voluntarily made, is admissible in evidence. 2. In an indictment for embezzlement, if the ownership of the property stolen is alleged to have been in a corporation, it is sufficient if its defacto existence is established. 2 Bish. Cr. Pro. § 752. 1.

<p>1. The failure of a district judge to decide a cause within five months after its submission, amounts to a denial of justice.</p> <p>3. A mandamus will issue in such a case, to coerce a decision of the suit.</p> <p>3. The delay is unreasonable and furnishes good cause of complaint.</p> <p>’When a mandamus lias been made peremptory commanding an inferior judge to decide a case without further delay and he disobeys or fails to obey that mandate, the Supreme Court will order the recalcitrant judge to be arrested and imprisoned until he has obeyed its mandate.</p>

<p>In an application for a writ of habeas corpus, based on tbe alleged want of jurisdiction of a court to take cognizance of a charge of grand larceny—tbe affidavit charging that the crime was committed within the jurisdiction of the court; and the fact that alleged stolen goods were found in the possession of the accused, will be considered as showing prima facie jurisdiction in the court, thus throwing the burden of proving the reverse on the relator.</p>

<p>The charge to a jury in a criminal case must be taken as a whole. Isolated parts if objectionable may be controlled by other expressions and all taken together may be good law. It is not error to charge a jury that they could safely accept the law from the judge. The judge might have put it stronger and have charged that it was the jury’s duty to accept it.</p>

<p>Ia a suit by the syndic of an insolvent for the purpose of annulling a contract alleged to operate an unjust preference in favor of one creditor over the others, the value of the property pledged or transferred is the test of the jurisdiction of the appellate court.</p> <p>If tho amount of the security sought to he recovered by the syndic does not exceed $2000, the Supreme Court is without jurisdiction.</p>

<p>Tlie rules which regulate tho confection of transcripts of appeal in civil cases, apply alike in criminal cases.</p> <p>A transcript of appeal in a criminal case, which contains no other matters bnt the record of defendant’s motion for a new trial, and which purports to ho such under the certificate of the clerk, is utterly insufficient and cannot sustain an appeal.</p>

<p>APPEAL from the Twenty-seventh District Court Parish of West Carroll. Williams, J.</p>

<p>APPEAL from the Fourth District Court, Parish of Caldwell. Bridger, J.</p>

Biehardson, J. 1.On trial of an exception of no cause of action all plaintiff’s allegations must be taken as true. 2.One seeking to enforce and profit by what he terms an immoral agreement cannot invoke the rule “ Nemo allegans suam turpitudinem audiendus est” against one socking to protect himself from its effects.

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

<p>A PPEAL from the Fifth District Court, Parish of Ouachita. ,/_jL Richardson, J.</p> <p>1. In suits for malicious prosecutions, it must to alleged and proved tliat tlie prosecution complained of was at an end, otherwise the petition discloses no cause of action. 33 Ann, 222, Lawler vs. Levy.</p> <p>2. To establish a claim for malicious prosecution, it must he proved by plain tiff—</p> <p>First—That he has been prosecuted and that the prosecution is at an end.</p> <p>Second—That it was instituted by defendant maliciously and without probable cause.</p> <p>Third—That he has been damaged. 15 Ann. 421, Blass vs. Gregor & Wilson; Greenleaf on Ev„ vol. 2, §§ 453, 454, 449; , 11 Ann. 289, Gould vs. Gardner ,’Sager & Co,; 10 Ann. 537, Talbot va. Stone; 12 Ann. 332; 8 Ann. 12; 9 R. 387.</p> <p>3. Where the party causing the arrest acts under the advice of .learnedjcounsel, he',has probable cause. 2 Green., § 459; 11 Ann. 289; 10 Ann. 537.</p> <p>4. Attorney’s fees for bringing a suit for damages cannot be allowed." .Only such damages as had been incurred previous to the institution of the suit can be considered."^.35 Ann. 697, Day vs. R. R.; 35 Ann, 465. Campbell va. Short.</p>

A PPEAL from the Third District Court, Parish of Claiborne. I. A. JSgan, Special Judge. Tfie surviving spouse holding tfie usufruct of one-fialf of tfie community property, under Act ITo. 152 of 1844, during his natural life or until second marriage, cannot be destituted of that usufructuary right by suit, except for second marriage. Act 1844, p. 99, sec, 2 s C. C. 915 and 916*; 19 Ann. p. 14; 11 Ann. 297; 31 Ann. 752; 29 Ann. 520; 3 Ann. 489; 22 Ann. 446 and 499; 5 Ann. 588.

A PPEAL from the Fifth District Court, Parish of Ouachita. /~\ liidhardson, J. Municipal corporations are subject to be sued upon their contracts and in tort. Dillon on Municipal Corporations, pp. 749, 750. They have a right of action to enforce contracts made within the scope of their authority. An agent contracting without authority binds himself. Hewitt vs. Rondebush, 24 Ann» 254; Richie vs. Boss, 15 Ann. 668; Cooley & Phillips vs. Eatebau ot als., 26 Ann. 515.

<p>A PPEAL from the Twenty-second District Court Parish of St, f\ James. Duffel, J.</p> <p>'Testimony to establish that threats were made, is inadmissible, where it is not proved that they were communicated to the accused. State vs. Cluvallier, 36 Ann. 81; 33 Ann. 1344.</p> <p>Evidence of the vicious or dangerous character ot tho deceased, is not admissible unless the proof previously administered, has laid the legal foundation for tho admission thereof. State vs. Claude, et al. 35 Ann. 71; 35 Ann. 770; State vs. Jackson, 33 Ann. 1087; Stato vs. Bird well, 36 Ann. 859.</p>

<p>APPEAL from the Seventh District Court Parish of Franklin. Bilis, Judge ad hoe.</p>

<p>PPEAL from the Fifth District Court, Parish of Ouachita. Micliardson, J.</p>

<p>Recovery of damages for the death of a freeman, caused by an accident occurring before the passage of the Act of July L0, 1884, cannot bo bud in the face of the uniform jurisprudence forbidding it.</p> <p>A railway company is responsible in damages for an accident caused by an imperfect and» unsafo bridge to an engineer of the company, although tho road wa‘s in course of construction and not yet open for traffic or travel and although the bridges while the road' is constructing are not required to be as porfect as wben finished for traffic and travel. They must bo sufficient not to needlessly endanger the lives or limbs of the employees' while the road is in its unfinished state.</p> <p>The defence that a railway company is not responsible for accidents occurring in the absence of its governing officers cannot be listened to. Such doctrine would be tantamount to relieving the company of all responsibility. The company is present in the person of the conductor of the train, or such employee as is operating it.</p> <p>The doctrine of fellow-service releasing a railway company from liability for injaries, because the servant injured is fellow with the servant through whose fault the injury was suffered, is modified, and it is now established that a conductor of a train represents the company for the time and is the master of the engineer who is obliged to obey his orders.</p> <p>It is error to charge the jury that although damages for the death of a person cansed by a railroad before July 10,1884 are not recoverable, yet they are recoverable for the loss of support by the deceased, because that is the direct consequence of the death.</p>

<p>A verdict of a jury on questions of fact as to which the testimony is directly conflicting will nob be disturbed unless manifestly insupportable.</p>

<p>Although the burden may be on defendant who avers a compromise, a case will be remanded' for further ovidenco where, the ends of justice requiring it, the proof is seemingly incomplete, and plaintiff has offered to disprove authority claimed to have been by him* delegated.</p>

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

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

PPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J. Ro weight must be attached to testimony instrinsically improbable, and suggestive of collusion and conspiracy. L. D. 246, referring to 29 Ann. 764. 'Where there is a contention between the parties as to what the contract really is, it will be construed by the manner m which it has been executed by both the parties or by one of them with the express or implied assent of the other.

<p>An attorney-at-law, wlio represents an heir in the settlement of a succession, may legally be appointed ad hoe to represent another heir who is absent from the State.</p> <p>An acknowledgment of service of judicial proceedings is not a waiver, but an admission of actual service. An opposition by such attorney, to tbe executor’s account, objectingto items thereon, is in the nature of an answer and cures what irregularity may have existed, if any.</p> <p>The appointment of such attorney by a district judge who once was the counsel of the executor, if irregular, is not void That fact did not make him incompetent. He would become so when actually recused or recusing himself for cause.</p> <p>The seizure of the interest of an heir in the property composing the succession in which he inherits, is le^al, and the adjudication thereof conveys title.</p>

PPEAL from the Fifth District Court, Parish ,of Ouachita.. .¿JL Richardson, J. One cannot speculate upon the chances of a verdict in his favor, and after conviction object to tho jury. After verdict it is too late to urge disqualification of a juror who sat upon the trial. 8 Rob. 590 ; C A. 310; 4 A, 182; 13 A. 270 ; 7 A. 284 ; 21 A. 54G ; 25 A. 370, 537, 573; 30 A. 91; 26 A. 383; 32 A. 1162 ; 4 Dali. 354 . 33 A. 896 ; 35 A. 24.

<p>In the country, an appellant on application will be allowed time to complete the clerk’s certificate. where the motion to dismiss is taken on tho day on which the case is called for trial and three judicial daj s from the return day have not elapsed, and this though the cause may be submitted, tbe appellant not being strictly at fault.</p>

<p>A married woman can compromiso a ponding suit against licv and legally bind lierself and lier property to tho stipulations of tlio compromiso.</p> <p>When suits for largo sums liave been instituted against a married woman and she has made answer thereto and failed to plead that the debt was her husband’s, or marital coeicion or other Hire defenco, and has compromised those suits and thoroby obtained a remission of a largo part of the sum claimed, she cannot afterwards in a suit upon the compromise-notes setup successfully the above defences and avoid the payment of her obligations thus deliberately given.</p>

<p>Seccticn 1010 Revised Statutes regulates the method of conducting preliminary examinations in criminal casos; and, so far as the testimony of witnesses is concerned, it is only-required that it should bo reduced to writing hy the magistrate or under his orders, and it is not made necessary that it should be signed by the witnesses or certified by the judge. When, on trial, the witness is unobtainable after due diligence, his former testimony so taken, when its genuineness and official character are properly established by proof, may be used in evidence.</p> <p>Where, when a case is on trial, a subpoena issued to a witness formerly residing in an adjoining parish has not yet been returned, evidence may be received showing that ho has left and is absent from the parish, and that it is impossible that the subpoena should reach him. Such evidence lays a sufficient foundation (or the introduciion of the testimony of such witness taken on the preliminary trial, where it appears that his absence and whereabouts were unknown to the District Attorney, so as to enable him to have secured his attendance.</p> <p>Objection to the statement by a witness of conversation overheard between the accused and another person, on the ground that the witness was playing the eavesdropper, may go to the effect, but not to the admissibility of the evidence.</p> <p>Where witnesses are hoard on matters affecting solely the questions touching the admissibility of evidence, and to be.determined by the jndge alone, there is no error in hearing them out of the presence of the jury.</p> <p>One indicted as principal in a murder cannot be convicted thereunder as accessory after the fact.</p>

A PPE AL from the Twenty-first District Court, Parish of St. Martin. il Gates, J. 1. The proper form in which to bring an action for tho revival of a judgment is that in which the judgment was rendered, 23 Ann. 594; 28 Aun. 8G9. 2. In a suit of revival of judgment, the defendant cannot raise any defense short of the absolute nullity of the original judgment. 34 Ann. 340. 3. Parish courts, as courts of probate, had unlimited jurisdiction in all probate matters.

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

<p>APPEAL from the Thirteenth District Court, Parish, of St. Landry. Hudspeth, J.</p> <p>It is the duty of railway companies to keep in a safe condition their premises, depots and approaches from thence to their passenger cars. Pierce on Bail ways, pp. 275-6.</p> <p>The law implies in the contract of carrying passengers by railroad companies that they shall provide safe and convenient egress and regress from the -lines of their road. Digress of American Law Register, p. 786, No. 4.</p> <p>It is the duty of such companies to keep tlieir depot, platforms and approaches from their passenger trains lighted up at night. Wharton on Negligence, pp. 654 and 652; 34 A. p. 777.</p> <p>It is gross negligence in a railway company to suffer its passengers to grope their way in the dark from its depot to its passenger train over a crooked and unsafe passageway.</p> <p>Our courts have authority te award exemplary damages agaiust railway companies for gross negligence resulting in wounding and maiming a passenger, especially where such nogligeuce is attributable directly to the company. 10 A. p. 34; same vol. p. 88.</p> <p>The husband, for an injury inflicted on his wife, can sue for loss of her services to himself and'his minor children, as well as tlio damages inflicted upon her. 10 A. p. 33.</p> <p>A plaintiff in a case of damages ex delicto must make his case certain; a probable case will not satisfy the exigency of the law. XU A. 121; 15 A. 105; 16 A. 151; 21 A, 185. ..</p> <p>The negligence must be affirmatively proven. 15 A. 115; 27 A. 229; 11 A. 292 ¡ 23 A. 726; 18 L. 340; 35 A. 695 and 498; Wharton on Negligence, § 360, 871-2 and S99; Pierce on Railroads, 423; Thompson on Negligence, vol. 1, p. 512, § 15.</p> <p>Apla'ntiff cannot recover for an injury which was purely accidental, and not shown to have been caused by any fault on the part of another.</p> <p>A plaintiff who has contributed to an injury cannot recover, even if ho succeeds in proving fault on the part of another. The rule of law in Louisiana is that where both, are at fault neither can recover. 30 A. 15; 31 A, 490; 32 A. 615; 33 A. 154 ; 5 Otto 697; 18 L. ‘ 339 ; 3 A. 48 and 441; 6 A. 496 ; 11 A. 292 ; 23 A. 462; 23 A. 53; 36 A. 751; 28 A. 320 ; 9 A. 441.</p> <p>Field on Damages, § 126 to 131, inclusive.</p> <p>One must protect himself when he can. 23 A. 264 ; 30 A. 15.</p> <p>No recovery can be had by one who knew of the alleged cause of tlie injury, and who could have avoided it and did not do so. 34 A. 180 ; 33 A. 155; 5 Otto 441; 6 McLean 242 ; 34 A. 1086.</p> <p>Positive testimony must prevail over negative testimony. 33 A, 800; 26 A. —; 2 A. 1008 ; 37 A., case'of Benjamin S Storey vs. Hope Insurance Co. (unreported).</p> <p>No one should be allowed to increase by his own misconduct the amount of damages resulting from an injury for which he seeks to hold anothor responsible. 35 A. 1132; Sedgwiok 170.</p> <p>•There can be no recovery where 'there is an intervening cause, and where the imputed negligence was not the immediate and proximate cause. Field on Damages, sees. 9, 10, 11, 45 to 53 inclusive, and- appendix, p. 705; American and English Railway Cases, vol. 10, pp. 740 and 752; 35 A. 641; American Law Register, vol. 33, No. 9, p. 604; 2 A. 144 ; 34 A. 180.</p> <p>If there is a reasonable doubt as to tbe cause of an injury, tbe boneflt of tbe doubt will be given to tbe defendant, if his trade is a lawful one. Wood’s Law of Nuisances, sec. 472 , 35 A. 648.</p> <p>1. Plaintiff, in a cáse of damages ex delicto, must make his case certain; a probable case willnot satisfy tbe exigency of the law. 16 An. 121; 15 An. 105; 35 An. 498 and 694.</p> <p>2. Tbe burden of proof is on tbe plaintiff to show tbe defendant company’s negligence whenever its liability for an injury depends on its nogligenco, and tbe negligence muob be affirmatively proven. Thompson on Negligence, vol. 1, p. 512, seo. 15; Pierce on Railroads, p. 423 ; Wharton on Negligence, secs. 860,871-2,899; Pleytas vs, Pontoliartrain Railroad, 18 L. 340 ; Klein vs. Railroad Company, 23 An. 726 ; Perkins & Billiu vs. Morgan, 27 Ann. 229; Knight vs, Opelousas Railway Case, 15 Ann. 115; Hill vs. Opelousas, 11 Ann. 292; 35 Adu. 694 ; 30 Ann. 244.</p> <p>3. Proof that the injury was sustained is not prima facie evidence of negligence, and does not establish a charge of negligence against oho person causing the injury. See Slier, man on Negligence, sec. 5; Hammock vs. White, 11 C. B. N, S. 588.</p> <p>4. Tlie negligence complained of must have been the immediate cause of the injury sustained by plaintiff.</p> <p>5. Negligence is tbe failure to do what a reasonable and prudent person would ordinarily have done under tbe circumstances, or doing what such person under the existing cir - cumstances would not have done. 95 U, S. Reports, p. 441, R. R. Co. vs. Jones.</p> <p>6. The degree of care which the law expects, and the omission of. which is negligence, is that degree which men of ordinary prudence would exercise in a given situation. *</p> <p>7. When circumstances point just as much to negligence on the part of one of the parties as to its absence, or points in neither direction, a recovery cannot be had. See 31 Ann, 490 3 Ann. 48, 441. ’ ’</p> <p>8. Plaintiff cannot recover for an injury resulting from tlie negligence of the defendant if, notwithstanding such negligence, he might have avoided the injury by the exercise of care and prudence on liU part, or if his own want of such care and prudence, or that of the party injured, contributed to the injury. Am. Law Register, vol, 5, No. 5, p. 397; Redfield^on Railways, p. 337.</p> <p>9. There is abundant proof in the record that plaintiff was guilty of the grossest negli gence.</p> <p>10. An intervening agency of sufficient force and power of itself to have caused theinjury, and occurring between the first causo and the result, is considered in law as the prox - imate cause of the injury, whilo the first cause is the remote; aud plaintiff cannot recover when lie declares on the first as the proximate cause, and it is shown not to bo. See 7 Wallace 52 ; American Law Register, vol. 23, p. 604.</p> <p>22. When two witnesses, unimpeached, contradict each other, the presumption is in favor of the one who swears affirmatively. H. D. p. 557 (d), 1] No. 12; 2 Ann. 1008 (bottom of pago); 23 Ann. 800; Pierce on Railroads, 292 (bottom of page and note).</p> <p>11. The allegata must correspond to the probata, and when witnesses contradict each other as to when, whore and Iiow the accident occurred, their testimony is to be taken with some allowances, and such inconsistencies affect their credibility.</p> <p>13. The positive and affirmative testimony of one witness having no interest in a suit, supported by corroborating testimony and circumstancos, is entitled to more weight and consideration than that of several who contradict each other on a material fact which they are introduced to prove.</p> <p>14. Exemplary damages are only allowed when malice, fraud and grossest negligence are patent and proven. Sedgwick on Damages,</p>

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

<p>An appeal will ¿not be dismissed beoause of irregularity in the citation of appeal and return thereon, when citation lias been prayed for.</p> <p>An- «appeal bond -for a suspensive appe«al is in time when tiled within the year following the adjournment of the court in the country. The delay is'not to'be computed from the date'of the signature of the judgment during term.</p> <p>lies judicata is not a ground for dismissal of an appeal. .r It is a means of defense which can be urged on tho merits only.</p> <p>A second motion to dismiss made after submission of the cause is too late.</p> <p>A judgment rendered homologating an account and ordering a distribution of funds, is a nullity where the cession of property previously ordered by the court has been avoided and set aside.</p>

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

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Be Baillion, J.</p> <p>1. In a suit against a corporation, the existense of the corporation must be set out. The court cannot judicially recognize ité existence. C. P. 112, 119,198; 34 Ann. 963; 28 Ann. 415.</p> <p>2. A citation issued against a defendant, not a natural person nor alleged to be an artificialperson, and served, first, on “ the agent of the nondescript defendant; and, second, on an individual who accepts service for another agent, is null and cannot be the foundation of suit or judgment.” C. P. 198, 201; H. D. Citation; W. Nos. 2, 4, 6, 15.</p> <p>3. When the circumstances of a case show that a party suing for damages for injury sustained from a railroad accident loft the train while in motion, without necessity and without being placed in peril by the road, no recovery can be had. Redfield on Railway, sec. 194; Hutchinson on Carriers, sec. 643; Leading Eng. and’Am. R. R. Cases, vol. 26, p. 351; 9 Ann. 441.</p> <p>4. If in sucli.a’case'the^train stopped long enough to allow the passengers to get off at their station, and they lingered aboard beyond a reasonable and proper time to got off, the relation of carrier and passenger ceased, and the carrier is not answerable except for criminal negligence. Hutchinson, sec. 613; Redfield, sec. 613 ; Hutchinson, sec. 553.</p> <p>5. Though defendant were in fault, if defendant’s negligent act was the proximate cause of the injury, no recovery can be had. 34 Ann. 778, 139, 182; 27 Ann. 54; 30 Ann. 20 ; 32 Aun. 615; 33 Ann. 154; 5 Ann. 514; 9 Ann. 441; 11 Ann. 292 ; Redfield on Railways, sec. 193; 3 Ed, Sedgwick, p. 495 ; 5 Otto 4U; Shearman and Redfield 25.</p> <p>6. If the evidence shows that the injured child was traveling in company with and under the charge of her- parents, and she is non sui juris, their negligence is her negligence. Thompson on Negligence, vol. 2, pp. 118, 1183.</p> <p>7. When the damages are excessive the verdict will be reduced.</p>

<p>An appeal from a judgment rendered by the district court for Terrebonne parish, return' able to this court “ according to law,” is not returnable at Opelousas, but at IsTe-w Orleans] on the second Monday of .February.</p>

<p>Where the suit is in its inception a contested election-case and the appeal comes up on a question of pleading at the proper time and place for appeals in such cases, it will not be dismissed on. the ground that the suit has been converted into au action under the Intrusion Act which should have been returned in ten days.</p> <p>An appeal from a judgment dismissing the suit cannot be dismissed for prematurity.</p> <p>Whore a suit has been stolen from, the court-house and the plaintiff files another reciting the allegations of the first and other proceedings therein, the plea of Us pendens is not maintainable.</p> <p>A stolen suit may be reconstructed and reinstated in other ways than that specifically provided by general or special statutes. A new petition setting forth the allegations of the first, or incorporating a copy of it, may be as efficacious and is as permissible as the special methods pointed out by the statutes.</p> <p>Neither is it necessary that the lost suit should be reconstructed by judgment of court in a separate and independent suit before renewing the allegations upon which the contest for the office is made, although the facts that the allegations and objects of the two suits are substantially the same and that the first was brought with the formalities and within the time prescribed, must be satisfactorily established before the defendant can be compelled to answer to the merits of the main action.</p> <p>The new petition is a substitute for the first and a trial is had upon it as it would have been had upon the first with the additional issues raised, whether such first suit ‘had over in fact been instituted and the proceedings had thereunder as alleged.</p>

<p>In a prosecution for knowingly and maliciously sending' a'Jetter to another threatening to accuse him of a crime, undoc Act 64 of 1884, the use of the words “willfully, maliciously and feloniously ” ‘is the certain and entire' equivalent ,of the'words “knowingly add maliciously ” employed in the statute.</p> <p>An admission, made to avoid a continuance, that the prosecuting'witness had made frequent threats against the accused, does not debar .the;‘'State2from proving on the trial the times and circumstancesjnnder which such threats"were made.</p> <p>Proof of the truth of the charges threatened toHoe made is not per se a justification under the statute, though such proof, in connection with other evidence tending to rehut the malicious intent, might'under some circumstances be'admissible.</p> <p>This offense is entirelv'different from libel, and neither the letter nor the reason of the con stitutional provision permitting the truth of the libel to he given in evidence has any application here.</p> <p>The only qualification of the crime is that the.‘act denounced was done “knowingly and maliciously,” i. e , with malicious intent'; and while'charging that the malice must be established, ¿the judge did not err in charging that the particular character of the malicious motive was of no consequence.</p> <p>It is no obstacle to a conviction under Act 64 tbat tbe evidence might have supported the graver offense denounced by Act 63.</p> <p>The statute does not violate the constitutional guaranty of liberty of speech.</p>

<p>A PPEAL from the Twenty-first District Court, Parish of Iberia. XjL Gates, J.</p>

j. PPEAL from the Fourteenth District Court, Parish of Calcasieu. .

<p>The occupants of a homestead have the same right tp travel and sojourn in other places for temporary purposes of health, business or pleasure that other citizens have; aud so long as such privilege is exercised in good faith, within reasonable limits and without inten tiou to change or abandon the homo, but with the fixed and certain intention of return, ing thereto, the homestead exemption is not affected thereby.</p>

<p>Only one rehearing in any cause can be granted, unLess matters are decided which have not been previously considered and reserve has been made for the application.</p> <p>A petition for a rehearing filed after a judgment on a rehearing, in the absence of a reserve for such petition, will not be considered, and the clerk is authorized to issue a certified copy of the judgment, which lus become final, as though the application had not been</p>

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

<p>Criminal statutes cannot be extended to cases not included within the clear import of their language.</p> <p>Act 64 of 1884 does not denounce as an offense the accusing another of a crime with malicious intent, but only malicious threats to make sucli accusation. A verdict of guilty of charging another with malicioas intent, convicts of no crime known to the law of Louisiana, and, on motion in arrest, the same must be set aside.</p>

Parish of St. Mary. Goode, J, 1. When (an alleged) cenant denies the title of his j landlord, the relation between them is severed. 26 A, p. 502, and Bigelow. 2.

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

A PPE AL from tlie Twenty-first District Court, Parish of Iberia. i\ Gates, J. - Radiating or anomalous lots or sections 16 are not reserved for schools by acts of Congress. Ruling Secretary of the Interior, 23d July, 1860, 17 L. 510, 33 Ann. 424, Letter of United States Commissioner, July 1st, 1882.

<p>An extension of time to file a transcript, although seasonably asked, will not be granted where it appears that the appellant instructed the clerk months previous to the return day not to make the transcript, and that it is owing to this injunction that the record was not prepared.</p>

.Drew, J. 1. Appellants are estopped from assailing a judgment which is sustained by their own motions for non-suits. 2. Pending a trial upoX exceptions filed by one party to a suit, the opposing party cannot avoid the force of the exceptions by non-suits. Crocker vs. Turnstall, ü H. 354 ; Torke vs. Allen, 20 A. 237, 3.

Mall, J. When the question involved is the title to an office, and on the trial two commissions are presented, one hy each of the claimants, aud the question of right depends solely and exclusively… Held: that “if the question depended solely upon the two commissions, * ■* in the absence of proof to tbe contrary, the presumption is in favor of that bearing the latest date.” 16 Ann 438; 19 Ann. 210. That opinion is in direct conflict with that in State ex rel.

A PPEAL from the Tenth District Court, Parish of De Soto. rL Hall, J. 1. “ The party who pleads prescription is hound to prove the facts necessary to sustain the plea.” 15 A. 332, and 31 A. 88. 2. “A party without title can avail himself of no prescription except that of thirty years.” 12 M. 535. 3. “ There must be actual corporeal possession precedent to civil possession as a basis of commencement for the ten or thirty years’ prescription.” 15 La. 580; Dodimon vs. Bonow, 11…

A PPE AL from the First District Court, Parish of Caddo. Taylor, J. Where the sum of money paid and promised for property is given with some other thing of much less value the contract is a sale. It is not an exchange or a giving in payment. Sue. Rur* niss, 34 Ann. 1015; Ward vs. Levy, 32 Ann. 786; Jenkins va. Caddo, 7 Ann. 559. Yendor transferred a judgment in solido versus four persons—one proved he was not bound.

<p>Article 342 of the Civil Code, which, prohibits the sale of a minor’s property for less than its appraised value mentioned in the inventory, applies only to sales provoked by his tutor, during the courso of his administration, and not to sales under execution, either of judgments, or by executory process for the foreclosure of a mortgage executed by the tutor with the authorization of a competent court, under the advice of a family meeting.</p> <p>In such a mortgage *t is competent in law for the tutor to waive the benefit of appraisement* in case of execution, and to agree to pay attorney’s fobs in case of suit for collection.</p> <p>A stipulation for usurious interests in such a mortgage, when the interests are capitalized, cannot entail a forfeiture of the interests, and much less vitiate the whole contract.</p>

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

\ PPEAL from the Second District Court, Parish of Bossier. XJL Drexo, J. 1. Interest is due on any balance found to be owing by an administrator from the date of the judgment establishing the debt.

<p>APPEAL from tlie Fourteenth District Court, Parish of Cameron. Bead, J.</p>

Landry. Hudspeth, J. - The words 1 ‘feloniously and oí his malice aforethought” are sufficient in an indictment for murder, and the indictment is not vitiated by the omission of the word willful. 27 Ann. 572; Archhold's Cximinal Proceedings pp. 881 882, bottom of page. 1.The Statutes of Louisiana denounce the erime of willful murder only. It.

<p>:State vs. Johnson, 37 Ann. 422, maintaining sufficiency of jury oath to find verdict “according to the evidence,” affirmed.</p>

<p>An indictment charging burglary and larceny in a singie count is not bad for duplicity.</p> <p>A verdict of “guilty of burglary and larceny” is equivalent to a verdict of “guilty as charged in the indictment,'*• and is good as a verdict of burglary in the particular man* ner charged. Had the verdict been for larceny alone, or had the sentence imposed penalties for both offenses, different questions might arise.</p>

<p>Evidence taken in support of a motion for a new trial, in criminal caaes, will not be considered on appeal unless it be incorporated in or attached to a bill of exceptions taken, from the refusal of a new trial by tbe judge a quo.</p>

<p>'In a capital caso the action of tlio District Judge wlio orders the trial of an accused on the same day that ho is arraigned, iu the unforeseen absence of his chosen and retained counsel, and refuses to attorneys appointed to him by the Court more than three hours’ time to prepare their defense, is erroneous iu law and unjust to the accused.</p> <p>Under such circumstances, his refusal to postpone the trial for two judicial days will be reversed on appeal, and the case remanded for another trial.</p>

Drew, J. Under plea of self-defence if the evidence as to who committed the direct overt act he uncertain, or contradictory or cii cumstantial, evidence as to the character of the accused for violence must be admitted. 2 Bishop’s Crim. Pro., Secs. 613, 615, 616, and authorities in notes.

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

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

Taylor, J. 1. Sec. 6 of act 94 of 1873 provides that sheriffs shall receive from the several parishes for summoning jurors on venires the same compensation as is fixed by law for other summons, i. e., 50 cents for service and 10 cents mileage. Act 101 of 1870 ; R. S. of 1870,. sec. 762. 2. Act 44 of 1877 does not repeal said section either directly or by implication. It is silent as to compensation of sheriffs and liability of parishes for same. 3.

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

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

<p>APPEAL from the Twenty-seventh District Court, Parish oí Rich-land. Williams, J.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Monroe. 1. A petition for slander needs only contain a concise statement of the cause of action, with circumstances of time and place, and with a claim for damages stated in a round sum. C. P. 172: 4 N. S. 280: 3 L. 290 : 3 Ann. 70: 23 Ann. 280. ■2.

PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J. 1. Plaintiffs, suing exclusively for their own benefit, in order to recover, must have an interest in the damages claimed at the institution and during the pendency of the suit., C. P.3 Art. 15; 1 Bob., 470; 5 A., 263. 2.

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

<p>APPEAL from the Tenth District Court, Parish of Tensas. Beeves, J. ad hoc.</p>

<p>3Tor tho reasons given in State ex vel. Bell vs. Judge, 36 Ann., 886, the order dissolving the injunction herein appealed from is annulled and set aside.</p>

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

<p>1. Sales of property for futuro delivery, with tho bona, fide intention and obligation to make actual delivery, are lawful contracts; but if, under the form of such a contract, the real intent be merely to speculate on the rise or fall of prices, and the goods are not to be delivered, but the contract to be settled on the basis of differences of price, the transaction is a wager and is non-aotionable.</p> <p>2. But in order to affect the contract, tho alleged illegal indent must have been mutual, and such intent in one party, not concurred in by the other will not avail.</p> <p>3. The law presumes lawful purpose until the contrary is proved; and when one party charges illegal intent, the burden of proof is imposed upon him.</p> <p>4. The validity of the contract depends upon the state of things existing at its dáte. and-is not affected by subsequent agreements under which the parties voluntarily assent to a settlement on tho basis of differences.</p> <p>5. The mere fact that at tho date of his contract, the vendor had not the goods, and had made no arrangement for obtaining them and had no expectation of receiving them unless by subsequent purchase, does not suffice to impair the contract. The contrary doctrine, once announced, is now thoroughly overruled.</p> <p>6. It follows that the failure to identify tbe particular goods sold does not afCect the matter, because the sale is not of ascertained articles, but of articles of a designated kind and. quantity to be selected thereafter, which is a lawful contract, when th e obligations are reciprocal.</p> <p>Applying the foregoing principles to the facte ef this cage, which is a contract for the future • delivery of cotton under the rules of the Cotton Exchange of How Orleans, tbe defense of wagering is not sustained.</p>

Tissot, J. 1. An appeal taken, from a judgment, where a wife is the plaintiff will be dismissed on motion, if it appears thac she was not legally authorized to prosecute the suit in the court below. The authorization of the wife must be given either by the husband or the judge before the trial of the cause a qua. 2 Ann. 140; 21st Ann. 576 ; 2 2 Ann. 204 and authorities therein cited. » 2.

<p>A suspensive appeal does not lie from an interlocutory decree dissolving an injunction on* bond, unless it appears that the act prohibited would work an irreparable injury to the plaintiff.</p> <p>"When the plaintiff in injunction has failed to allege any personal injury to flow from the act complained of, it is safe to conclude that he could not suffer irreparable injury from the interlocutory order dissolving his injunction on bond.</p> <p>A district judge who allows an injunction to be dissolved on bond, because the act com-' plained of would not work irreparmble injury to the plaintiff, should consistently refuse a suspensive appeal from his dissolving order, as the latter only applies when the inter* locutory decree would cause irreparrable injury»</p>

<p>^PLICATION for Prohibition.</p>

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

<p>APPLICATION for Mandamus and Prohibition.</p>

Tissot, J. 1st. Where the subject matter of «a negative averment lies peculiarly vrifchin the knowledge of the other party, the averment is taken as true unless disproved, by that party. 1 Greenleaf, Sec. 79; 31 Aun., 69L; 13 Anu., 397; 10 Ann., 639; 1 Bishop, Marriage and Divorce, Secs. 435, 436. 2d. Every intendment of law is in favor of matrimony, thereby casting the burden of proof upon the party objecting, requiring him to rebut the presumption, temper preesumitur pro…

PPEAL from tlie Civil District Court for tlie Parish of Orleans. !JL Tissot, J. - If an examination of tlie whole will will show that it was read to the testator in the presence ence of the witnesses, it is immaterial in what words the idea is convoyed. 1 H. S. 73; 3 N. S. 368. It suffices if, from tlie whole instrument, it cnn bo inferred that the witnesses were present. 26 Ann. 338; 12 Ann. 604.

<p>The contract involved is interpreted and held to be a valid reciprocal contract, by which the plaintiff was bound to furnish, and defendant receive and pay for, hogsheads and-barrels, as required under the terms of the contract, at the prices fixed ; and also that defendant was bound to pay for the articles as delivered. Campbell vs. Lambert, 36 Ann. 35, commented upon.</p> <p>Plaintiff having delivered certain barrels andhogsheads, which had not been paid for though the bill had been presented at defendant’s office, and having informed defendant’s agent that he would furnish no more because his bill had not been paid, and no offer to pay having been afterwards made, was not in default during the term of his contract.</p> <p>The breach of contract complained of being one of nonfeasance, and there being no legal excuse for omission to putin default, defendant’s reconventdonal demand for damages is rejected.</p>

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

<p>In an application for mandamus to compel an inferior judge to grant a preliminary injunction which he has refused, the mere allegation of error in the ruling, unaccompanied by any charge of arbitrary or oppressive conduct, denial of justice, refusal to perform any duty, or by any showing of absence or inadequacy of other means of relief, will not support the remedy sought. The writ of mandamus is an extraordinary remedy, only allowed under the exceptional circumstances set forth in the law, the existence o® which must be sufficiently set forth in the petition.</p>

<p>OL'he statute requires tliat proceedings by a landlord against his tenant for the recovery of* possession of leased property shall be summary, an.d this applies equally to such proceedings in the appellate as’in the court of the first instance.</p> <p>Where an exception had been filed in the City court and had been maintained, and on appeal the District court had reversed that ruling, it was the duty of the latter court upon such reversal to proceed to hear and determine the merits. ,</p> <p>Such appeals are triable by the District courts in vacation or the summer recess as like cases are triable by those courts in vacation when originating in them.</p> <p>Pleadings are taken for what they really are and not for what their authors designate them.</p>

<p>It is not until after a plea to the jurisdiction, has "been made and overruled below, that an application for a prohibition can be entertained by the Supreme Court. In the absence* of an averment to that effect, the prayer for relief is premature and cannot be allowed..</p>

<p>An order of court, authorizing the seized debtor to release his property from seizure on bond, although rendered on a rule contradictorily between tbe parties, is not a final judgment, but an interlocutory decree, from which no appeal lies unless such judgment may cause an irreparable injury to the party against whom it is rendered.</p> <p>'Section 3411, Revised Statutes of 1870, which authorizes the release on bond of property under seizure, applies to all executions, to seizures under executory process, as well as to executions under writs of fieri facias.</p> <p>A seized debtoy, who applies for permission to bond his property either from seizure or sequestration, cannot be required as a condition precedent to pay judicial costs or expenses incurred by the sheriff for keeping or cultivating the property pending the seizure.</p> <p>The defendant owes no costs until final judgment on the controversy.</p> <p>The right of appeal from an order setting aside on bond a writ of sequestration, depends alike on the irreparable injurv which the order may cause to the party obtaining the sequestration.</p>

<p>Sven if private bankers stood upon the same footing as incorporated banks, and were subject to the same rules of assessment as to their capital, and were to be taxed only upon the surplus of their assets over their debts, they could not escape taxation by simply • investing a portion of their assets, equivalent to such surplus, in non-taxable United States bonds; but such bonds, though themselves non-taxable. would nevertheless be counted as a part of the assets and as offsetting, to that extent, the liabilities. 29 Ann. 851.</p> <p>The claim of relators being thus untenable, on their own theory, it is unnecessary to con aider the more radical contentions advanced by defendants herein.</p>

<p>The inferior court, whose judgment is appealed from, retains jurisdiction to determine primarily the character and effect of the appeal taken.</p> <p>A suspensive appeal taken from an order dissolving on bond an injunction issued to prevent the commission of acts which, if done, would cause an irreparable injury, places matters in the condition in which they stood before the motion to bond was made, and in which they would have continued, had not such motion been filed. In other words : the effect of the appeal was to maintain the injunction in force. 33 Ann. 438, affirmed. The district judge had authority to find and to punish transgressors for contempt.</p>

Charles. Besamgon, J. All appeals in criminal cases are suspensive, aud no citation i3 requisite. Act ITo. 30,1878. The presence in court of a defendant in a criminal case when a motion for an appeal is made by the State and particularly after the information is quashed, is unnecessary. 31 Ann. 652; 32 Ann. 559. Where an appeal is moved for, returnable according to law, and the judge fixes the return day other than that fixed by law, the appeal will not be dismissed.

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

Houston, J. 1. Upon the death of the wife, the husband’s authority as head and master of the community is at an end. C. 0.2.506; 15 Ann. 636; 23 Ann. 638; 2i) Ann. 663; 32 Ann. 849; 33 Ann 584. Upon the dissolution of the community by death, one-half of the community property vests in the heirs and the other half in the surviving spouse, subject to the payment of the community debts. Ib. 2.

<p>A contract for over five hundred dollars may be proved by one witness and corroborating circumstances. Where the contract was to pay two thousand dollars for exclusive and undivided attention to a childless woman of large property who was apparently sinking and had made no will and ardently desired to make one, the intensity of her desire to-gain timo and strength to make «a will and the large property at her disposal, and the fact that the physician gave his undivided attention as the contract required, are corroborating circumstances sufficient to support the oath of one witness and establish the-contract.</p> <p>Whore one declares upon a contract he cannot recover upon a quantum meruit,, but while-testimony of value of services is inadmissible under the contract, it is admissible to-shew the reasonableness of the contract and that it is one likely to be made under the circumstances. The contract must first be proved, and then its reasonableness-may be shewn by proof that it was not grinding hut fair.</p> <p>The correct repetition of conversations is the most difficult feat of memory and of expression, and therefore the narration by a witness of tbe conversation of a dead person is the weakest of all evidence. The promise of a dead person to pay the debt of another cannot be proved by parol.</p>

BUjhtor, J. 1. One Tvho las judicially admitted the legal existence of a corporation is estopped from Iileading nul tiel corporation, when afterwards sued for damages on the injunction bond and for malicious prosecution. B. C. C. Art. 2291; 14 Ann. 308; 33 Ann. 732, 1444; 94* U. S. 104, 673. 2. A petition stating the name of a corporation and also the name of its president is in strict compliance with law. R. C. C. 439; C. P. 112,198. 3.

A RPEAL from the Civil District Court for the Parish of Orleans. XX Rujhtor, J. l. In expropriation of land for works of public utility, the owner of the land is entitled to the value of tho land actually taken, at the market value of the same area or acreage of land similarly situated in the same locality at the time the land is actually taken, without considering any enhanced value which will result from the contemplated improvement when completed. 2.

<p>The charter of New Orleans empowers her Council to Ax the compensation of every officer of her own or of the State whoso salarios are to be paid by herself, and to prescribe the number of such officers.</p> <p>'The exercise by the Board of Health of the power to appoint sanitary inspectors and police’ men at salaries larger than the appropriation made by the City Council will warrant, and to require the City to pay them, is inconsistent with and in derogation of the City’s right to iix the compensation of all officers that are to bo paid by her.</p> <p>Discretion is lodged in the Council as to the amount of the appropriation to be annually made for the Board of Health and the Board has no control over it. 11 can expend that and no more.</p>

<p>Evidence of violent and dangerous character of deceased, in a murder case, is inadmissible unless supported by the foundation of proof of assault or hostile demonstration at the time of the killing.</p> <p>Where the,'judge states as his reason for excluding such evidence that the proof did not establish such foundation, we cannot reverse his ruling.</p>

<p>A PPEAL from the Sixteenth District. Court Parish of East Feliciana. A.JL Kernan, J.</p>

<p>^PPLICATION for Prohibition.</p>

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

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

<p>If any one, under pretence of rights afterwards judicially determined to be unfounded, uses process of law to restrain another in the prosecution of a lawful claim, he cannot use the delay his own act has caused to defeat the claim he has wrongfully resisted. A party cannot provoke and protract litigation based on his refusal to deliver leased premises, and then avail himself of the lapse of time to avoid damages for his wrongful refusal. Prescription does not run pending the litigation thus provoked.</p> <p>Where proceedings in ejectment have been taken and the defendant justifies his holding-possession under an alleged unexpired lease and the issue has been determined against him, he cannot afterwards, when sued for damages for illegal retention of the property, set up again the alleged unexpired lease. The ejectment suit is res adjudicata upon that and cognate matters.</p> <p>Among the damages that a lessor is entitled to recover from a recalcitrant lessee who unlawfully retains the leased premises is a bonus that another lessee has bona fide offered for a long lease, the rental duiing detention that such other lessee has engaged to pay, the attorney’s fees paid by the lessor in getting possession of his property, and compensation for whatever advantages have been lost by the lessee’s obstinate withholding possession.</p>

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

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

<p>Whilst a mortgage given by the widow in community during her administration of her deceased husband’s .succession, is not null, yet, it can have no effect beyond her actual interest in the property, determinable upon a settlement of the community Such mortgage considered under the circumstances of this case.</p> <p>[Note of the Reporter.—The following opinion was delivered, on rehearing, in May 1884, at New Orleans, where the case, at first decided at Shreveport, had been removed by consent of parties. The original opinion is reported in 33 Ann.. 1244. The present opinion was. by mistake, omitted from the 36th Annual.]</p>

<p>-fudgniemts which are absolute nullities cannot be revived. They cannot be continued in existence, when they never had any life.</p> <p>[Note of tub Revorter.—This opinion was not reported in full in the .‘lf)lh Annual. II is thought proper to report it in full now.]</p>