Volume 38 — Louisiana Annual Reports

JDavey, J. 1. There is an expre°s grant to the city by the State u to exercise ageneral police power in the city of Hew Orleans.” Act Ho. 20, 1882, par. 15, Sec. 8; Act Ho. 20,1882. par. 1, Sec. 1. 2. The subjects,of the police power are as numerous as the wants, safety and good con-' duct of the community require; they arise from the necessities of society. 3.

\ PPEAL from tlie Civil District Court for the Parish of Orleans-.PA Rightor, J. When a contract is made verbally and partially executed, the acceptance of a writing wliicb incorporates its terms erroneously does not prevent oral testimony of the true terms.. U1 Mass. 45; 45 H. T. 712. 1.

Rightor, J. 1. An attachment against a non-resident does not fall by his death, but thereafter a> curator ad hoc may be appointed to his succession and his absent heirs, and judgment* rendered, with privilege and preference on the property attached. Bussey vs. Nelson,. Supreme Court, No. 7160. 2.

<p>The Hen of the unpaid vendor of cotton, -vvlien enforced in five days, is superior to that of the holdor for value of a bill of lading for the cotton.</p> <p>Although the vendee of the cotton has put it on shipboard, and has drawn his bill of exchange against it, and the bill of exchange with bill of lading attached was bought by an innocent party for full value who has had the bills endorsed and delivered to him,., yet if the vendor has not been paid and ho pursues his vendee and the cotton within the five days allowed him, he must prevail over tlie holder of the bill of lading.</p> <p>Tbe vendor’s Hen on cotton for five days yields to nothing unless it may be to a warehouse receipt which has been pledged as collateral for money borrowed, and not to that unless the receipt has been paraphed before issue •' for hypothecation.”</p>

<p>Id insolvent proceedings, where no objection is made to the votes of creditors before the-notary holding the meeting or within ten days after the filing of the procos verbal, objections based on the informality or insufficiency of the affidavits to the debts made before the notary cannot, thereafter, be urged.</p> <p>A surety or accommodation maker or endorser of a nbte, only becomes a creditor of his-principal when he has paid the debt and, until such payment, he is not entitled to vote as a creditor in the insolvent proceedings of his principal.</p>

A PPEAL from the Twenty-second District Court, Parish of As- /~\ cension. Duffel, J. .1 Wlioro a juror in a criminal trial has l)eeu accepted by tlio district attorney upon the faith of bis sworn replies and tendered to the accused, and upon this subsequent examination he contradicts himself and admits that he lias heard of the case, the State may exercise her right of peremptory challenge. This right exists until the oath is administered to the juror.

. DeJBaillon, J. I.A statement made by the accused a few moments before the killing is inadmissible to* })rove tbe x^risoner’s object in being at t-lie place when tho killing occurred. The declaration is self-serving. 30 Ann. 538 ; Wharton’s Cr.

<p>The Constitution and laws guarantee to a party charged with crime the right to he hoard b? counsel, and where tlio party is unable to employ counsel, it is the duty of the court to-assign one. This right is not an empty formality, but an inestimable privilege, and the counsel so assigned should be allowed a reasonable time to make preparation for the defense, and where under oath he states that he has been unable to do so, assigning just reasons therefor, and asks a delay for the purpose of preparation, and it is refused hint and ho has nob been wanting in diligence, held that such ruling was error.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. AJA- Monroe, J. i. .A writ of injunction cannot bo lawfully resorted to to compel specific performance where it appears that the alleged contract which it is sought to enforce is not completed or certain in all of its parts, nor where the plaintiff has not carried out as far as possible his part of the alleged contract. High on Injunctions, par. 708, and casos there cited.

<p>The codal provisions of our practice touching injunctions are broader and more comprehen sive than the rules of the chancery courts and include causes for injunctions that would not be sanctioned in a common-law court. Differences in the manner of obtaining the-writs under the two systems are not less manifest than the difference in their scope. Under our system when it has been judicially determined that the writ was rightfully issued, there can be no doubt that the party who has been injured by disobedience of it may recover all damages he has suffered thereby.</p>

<p>District courts have no power to question the authority of mandates of this Court or to refuse to execute them j but the utmost effect which can be claimed for them, so far as tboir execution is concerned, is that they shall he executed according to law. When an application is made to restrain further proceedings in execution of a writ on the ground that the requirements of the law as to the mode of exocution have been violated, the district court does not exceed its powers iu granting such an injunction. "When, thereafter, it has rendered a judgment dissolving the injunction, the party cast had the right to a suspensive appeal, and in granting the same the judge only performed his legal duty.</p> <p>During the pendency of such appeal, the injunction operates as if never dissolved, and it is not the duty of the judge to proceed with the execution of a writ thus enjoined.</p> <p>-An application for mandamus directing him so to proceed cannot ho allowed.</p>

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

<p>•Tlie appellant who presents a defective transcript, and who is shown to have had the transcript made through or under the exclusive supervision of his own counsel, outside of the clerk’s office, is legally responsible for all defects, omissions and irregularities therein, and is not entitled to any time to correct such errors or omissions. In such a case, appellee’s suggestion, without a formal motion to- dismiss, will prevail, and the appeal will be dismissed.</p>

<p>mallufa°turer of beer, or one charged as “ engaged in the business of a brewery,” is not exempt from license taxation under the State Constitution. The subject of such exemption is regulated by Art. 206 of the Constitution. Article 207 refers alone to a property tax.</p> <p>A brewer or manufacturer of beer is not one “engaged in d:stilling and rectifying alcoholic or malt liquors,” and is not therefore subject to the license tax provided by Section 9 of Act 4 of the Extra Session of 1881; but such license is governed and regulated by Section 3 of said act. Under that section, where the receipts are $30,000, and less than $40 000. such manufacturer is only liable to a license tax of ten dollars, instead of seventy-five dollars.</p>

<p>APPEAL from the Civil District Court, for the Parish of Orleans. Lamms, J.</p> <p>X. Municipal taxes not recorded, do nut affect real estate in the hands of a third person-26 Ann. 592; 30 Ann. 296; 28 Ann. 496; 25 Ann. 334; 30 Ann. 1365; 36 Ann. 765 ; Constitution, Art. 176.</p> <p>2.Even if properlv recorded the privilege against real estate is prescribed in three years ► Constitution, Art. 176.</p> <p>3.Municipal taxes are prescribed in ten years. 30 Ann. 3260.</p> <p>4.Taxes not assessed or recoided in the name of the true owner, do not affect real estate in the hands of third persons. 15 Ann. 35; 28 Ann, 537 ; 29 Ann. 509; 30 Ann. 176,</p> <p>5.Where property is sold under order of court in a succession to pay debts and all claims for taxes are by order uf court transferred to the proceeds of sale, the property passes to* the purchaser free from such taxes. 30 Ann. 1261; 33 Ann. 258 ; 23 Ann. 298.</p>

<p>Alleged errors in rulings of the judge affirming the competency of jurors who were objected to by accused, have no weight when the jurors were peremptoiily challenged and did not serve on the jury, and when it does not appear that accused’s peremptory challenges were exhausted before the jury was empanneled.</p> <p>"Where it appears from the statement of the evidence attached to a bill of exception that the laws, touching which a charge was asked of the judge, had no application to the •case, he did not err in refusing the charge on the ground that it had no such application.</p>

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

<p>A mandamus properly lies to compel the city council to provide for the payment of an acknowledged claim against the city. If such mandamus is disobeyed, the judge issuing it can punish for contempt those guilty of the disobedience.</p> <p>In such case the process for contempt should not he directed against the entire city council1 hut against those only who have refused to obey the writ.</p> <p>Disobedience to a mandamus, ordering the city council to provide for the payment of a city debt, is shown by those members of the council who, after the debt is budgeted on the-report of the finance committee, vote against an ordinance for its payment.</p>

<p>The dissolution of an injunction on bond is an exercise of the discretionary power vested expressly in the judge by the terms of the Code of Practice. When refused, a mandamus will not lie to compel a dissolution. The remedy is by appeal.</p> <p>Where partnership property has been sequestered by one of the partners to prevent elevas" tation and irreparable injury by the other partner, and the property remains in judicial custody, this other partner cannot have the sequestration set aside on bond under Art. 279 of the Code of Practice. He is not such defendant as is contemplated by that article. The sequestration is not of his property but of the property of the partnership in wnichi he has only an interest.</p> <p>A sequestration is indivisible so long as the property to he seized is undivided. The release on bond of one half of each piece of property would leave the other half of each piece in the sheriff’s hands, and as that officer could permit no interference with that the release would be a vain act.</p> <p>When acts oí preservation axe necessary to be done at once on sequestrated property and. the judge has issued an order for their performance, a writ of prohibition will not issue-commanding him not to execute that order. The judge’s first duty is to preserve property in judicial custody.</p>

<p>This case involves questions of fact alone, and the conclusions of the judge ft quo are approved.</p>

1. The will of Jacob Strauss contained the following clauses: “I give all I may die possessed of to my grandchildren, Charles E. S. Cass and Isabella A. Cass. The giving to them to be conditioned on their attaining the age of majority. In case either of them die before attaining tbe age of majority, then the part or portion given as above conditioned to accrue to the survivor likewise conditioned on such survivor attaining the age of majority.

<p>A PPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeJBaillon, J.</p>

<p>‘Where, at the moment when the debtor acquired an immovable, there stood i ecorded against him in the parish a judgment, the judicial mortgage resulting from such record attached to the property eo instanti with the ownership, and he could not acquire a homestead in said property to the prejudice of such mortgage.</p> <p>'The jurisprudence is constantand uniform that privileges, mortgages and real rights attaching to property cannot be disturbed or affected by homestead rights which did not exist at the moment when they attached.</p> <p>"The rule covers judicial as well as conventional mortgages.</p>

Baker, J. 1. The exclamation of a child left in charge of a shop where a larceny is committed, mad e during the continuance of the transaction and addressed to the owner of the stolen property in those words: “You are being robbed!” is admissible, as forming part of the res gestase, i Greenl. on Ev. §§ 99,100; Wharton Cr, Ev. §§ 202, 203; Roscoe’s Or. Ev. 6 Am. ed., 22.

Bightor, J. The sale of a note for future delivery which is held in pledge, to which a pledgee agrees and binds himself to present the note on the day fixed for the delivery, and to deliver it upon payment of the purchase price, and then credit the note to secure which it was pledged, with the amount, of the sale, binds the pledgee for the amount of the purchase price to the pledgor, and relieves the pledgor from paying such sum to the pledgee, where it is established that…

Lazarus, J. Miller c(j Finney and Blanc & Butler for Plaintiffs and Ai>pellants : I 1. Held: that he could not avail himself, in defense of the fraudulent character of the bank, or of the misrepresentations under which ho had been induced to subscribe for the .stock.

<p>iln a criminal prosecution, the papers of which have "been purloined from the clerk’s office, the district attorney has the legal light to enter a nolle, prosequi of the charge contained therein, and to present a now indictment or information on the same charge against the same party. To hold otherwise would render the State powerless against a criminal who had friends to purloin the papers of his case.</p> <p>An indictment or information which in two separate counts charges the offence of putting out an eye with a club, and the crime of assault with intent to commit murder with a club, is not bad for duplicity. The two offenses could grow out of the same act, hence they may be charged in the same indictment.</p> <p>An accused whose case is fixed for the second week of the term has not the right to require service of the list of jurors drawn, fur the third week of the term.</p> <p>ffn a case not capital the jury may be allowed to separate during the trial.</p>

<p>A member of an ordinary partnership, who contracts a partnership debt and who is the financier and business manager of bis firm, and the only member having an individual credit, should he pay this debt with his own money or property, could not legally avoid such payment or the contract connected with it, on the ground of error, the error consisting in not-knowing at the date of the contract that he was only bound for his virile shaie and not the whole of the debt.</p>

<p>The decision of questions of jurisdiction belongs necessaiily to the court before which they' are raised, and its decision is final unless reversed by an appellate tribunal.</p> <p>Mandamus will not lie to compel an inferior judge to proceed to the trial of an appealablecase whicli be lias dismissed by sustaining a plea to bis jurisdiction. The remedy is by-appeal.</p> <p>Our jurisprudence would be revolutionized if we should hold that every right that has here, tofore heen enforced hy appeal, and every wrong that has heretofore been redressed by appeal, may now be enforced or redressed by mandamus whenever the necessities of a. suitor appears to require or invite it.</p>

<p>When a taxpayer enjoins the seizure and sale of his property for taxes, ho occupies the position of a judgment debtor enjoining the execution of a judgment ngainht himself; and the tost of our jurisdiction is the amount of the taxes and not the value of the property. The Constitution does not vest this Court with jurisdiction, regardless oi amount, of cases involving the legality of assessments, and we cannot assume it.</p> <p>The ground of the injunction involving no question as to the legality or constitutionality of the tax, but assailing solely the legality of the assessment, the appeal is dismissed.</p>

<p>A surety, sued for indemnity by a co-surety who has paid under judgment, has no interest to question tho validity of the transfer by another surety to the plaintiff, where such transfer impairs no right of his against the transferror.</p> <p>An illegal deduction contained in a judicial proceeding, and corrected by the court of last resort, cannot serve as a foundation for the plea of estoppel in a subsequent suit.</p> <p>Evidence showing the signature of a bond by principal and sureties, suit against the sureties, payment by some of them under judgment, the insolvency of certain of them, and other material facts, authorizes recovery from a co-surety to a certain extent.</p> <p>Articles 2,104 and 3,058 It. C. C. must be combined together. "When thus construed, they mean that where loss is occasioned by the insolvency of one or more co-sureties, whether solitary or joint, it must be borne by the solvent sureties when called upon by the paying surety for indemnity or reimbursement of what was paid under judgment.</p>

<p>The Supreme Court will not undertake to examine a cause on its merits if the transcript of appeal is too imperfect and incomplete to inform the court of the matters and evidence which were contested below.</p> <p>Rut, if the shortcomings or imperfections of the transcript are not imputable to the fault of! the appellant, and if the ends of justice require a review of the judgment appealed from, the appeal cannot ho dismissed; but the case will be remanded to be tried de novo.</p> <p>This relief will be granted in a case in which the papers were destroyed by fire together-with the Court House after the appellant had perfected his appeal.</p>

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

<p>Iii partition suits between co-owners, who are “of age and present,” but who “cannot agree on> the partition and mode of making it,” the rules established by the Code relative to the partition of successions, are applicable, under the express terms of C. C. 1290.</p> <p>Whether the judicial partition is made in kind or by sale, it is now settled that the mortgages and privileges created by one co-owner on his own undivided share, are transferred from the entire property to the share allotted to him, or, in case of sale, to his-share of the proceeds.</p> <p>After such a sale, when a rule is taken upon the mortgage creditor to show cause why his mortgage should not be cancelled and erased as affecting the property, the creditor cannot, in answer thereto, attack the validity of the judgment of partition, unless at least for absolute nullities.</p> <p>The co-owners in partition suits have the perfect right to agree to submit the questions to the court, on issue properly joined, and the judgment of the court rendered, on such issue, according to law and evidence and not according to any consent, is not a consent judgment.</p> <p>Parties have the right to waive delays with reference to submission of their causes and the signature of judgments therein, without impairing the validity of the proceedings. After judgment in partition and proceedings commenced in execution thereof by advertisement of the sale, a seizure under executory process by the mortgage creditor forms no obstacle to the sale, which proceeds, subject to the rights of the creditor, which, as shown, pass to his debtor’s share of the proceeds.</p> <p>There is nothing reprehensible in an agreement by which a party contemplating purchase at a judicial sale for cash, agrees with a third person that, if he acquires, he will sell to-the latter on terms of credit — in absence at least of any evidence that the third person intended to bid at the sale or that the agreement was made with the purpose of preventing competition.</p> <p>Where a man’s wife has an interest in a suit, and where the husband has no separate interest therein, the latter cannot testify.</p> <p>The share of the co-owner under a partition sale is only ascertained after deduction of his-share of the costs of the proceeding, and the mortgage creditor must submit to such deduction.</p>

<p>APPEAL from tile Tenth District Court, Parish of DeSoto. Taylor, J.</p>

<p>A PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.</p> <p>A. The obligation of the city to refund a tax illegally exacted is an obligation of contract protected by the Constitution of the United States.</p> <p>1. Municipal as well as private contracts may he expressed or implied. C. C. 1780, 1797, 1809,1811, 2292, 2293; Argenti vs. San Francisco, 16 Cal. 255, 282; 12 Wall. 12; I)ilion Mun Coip. §§ 459, 938.</p> <p>2. Wherever the law attaches a duty to refuud money unduly exacted and paid by mistake, there results an implied promise to reimburse as in the case of a want of consideration. C. C. 2301, 2302; Hubbard vs. Brainard, 35 Conn. 501; Collector vs. Hubbard, 12 Wall. 12; Bradford vs- Chicago, 25 III. 423; Dillon, Mun. Corp. 5th Ed. §§ 459, 938; Argenti vs. San Francisco. 16 Cal. 255, 282.</p> <p>3. The action in like cases is assumpsit and is ex contractu. Collector vs. Hubbard, 12 Wall. 12; 2 Metcalf 228; Am. Jurist, vol. 23, pp. 143, 271; Bradford vs. Chicago, 25 111. 423; Dillon, Mun. Corp. 3d Ed. 939, 940, 938.</p> <p>4. The contract to refuud money unduly exacted and paid in error is called a quasi-con’ tract; so is the obligation to refuud the purchase money under a void title; so is the -duty to account for an estate managed by one person without the consent, as during the absence, of another; and so are the obligations of tutorship and curafcorship, and yet it will scarcely he denied that all of these imply contract obligations protected by the Federal Constitution. O. C. 2293, 2305, 2301, 2302; Paul vs. Kenosha, 22 Wis. 266.</p> <p>5. It is the civil obligation of contracts which (the Constitution) is designed to reach; that is, the obligation which is recognized by, and results from, the law of the State iu which it is made. Cooley, Const. Dim. p. 347, 5lh ed.</p> <p>6. The rate of taxation at the time the obligation arose, enters into and forms part of the obligation, and cannot afterwards he withdrawn to the prejudice of the obligee, without impairing the obligation of contract. /</p> <p>'7. By Act Ho.-of 1872, sec. —, the rate of taxation was fixed at twelve and one-half mills, and to that extent relator is entitled to the exercise of the taxing power.</p> <p>B. Should the relator he denied the right of contract, then he says : As the city only needs, can only use, and has only appropriated, for alimony or government, nine of the ten mill tax it levied, re'ator can he paid from the revenue derivable from, the surplus mill. Acts 18S4, Ho. 88.</p> <p>1. Relator registered his judgments pursuant to Act Ho. 5, Ex. Sess. 1870; he accepted its remedy, and lie has no other. By that act he was entitled to have his registered judgments paid from the budget revenues, subject always to the preferred claims of the city’s alimony.</p> <p>2. The revenue not needed, nor appropriated, nor used for alimony is the ten per cent rebate on the whole budget estimate; this rebate includes one mill of the ten mills tax and much more than exceeds one hundred thousand dollars per annum.</p> <p>3. Relator’s acceptance of the only remedy offered him, that of Act 5 of 1870, Ex. Sess., and the only means of revenue for his payment being the aforesaid rebate, he has a vested right in this exclusive remedy and in tho means of payment, which cannot he divested by the legislature, under the State Constitution. Shields vs. Olíase, 32 Ann. 409; Copley, Const. Dim, p. 443; Hubbard vs. Brainard, 35 Conu. 563; Dillon Mun. Corp. 3d ed § 845; Memphis vs. United States, 97 U. S. 294; Folsom case, 32 Ann. 714.</p> <p>4. The attempt of the State by Act 88 of 1884 to wrest from creditors the said revenue, by appropriating it for unadopted and problematic improvements, occurring after the acquisition of said vested rights, must be disregmled and held void, as unconstitutional. , See authorities cited above.</p>

Houston, J. The following legal propositions are elementary : X. La date ne doit pas étre mise le jour méme oü-le testateur ócrit ses dispositions. Laurent, XIII, p. 1700, Ho. 204. •2. “Onadmet que le testament olographe fait foi de sadate. Laurent, XIII, 269, 274, Hos, 242, 243; Lemolom.be, Lon. IV, p. 158; Gilbert (Codes), 429. TTn testament olographe est regardó córame un acta solennél qui fait foi de sa date. Toullier, III, p. 210; Cassation, Juin, 1810; fcíiroy, p. 290.

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

<p>The State can. appeal in criminal cases after verdict rendered and judgment has been arrested.</p> <p>In an indictment for murder it is not essential that the name of the deceased should follow the word “murder.” If it be in another part of the sentence so that it certainly appears to be the object of thatverb, and there can be no doubt upon whom the crime is charged to have been committed, it is sufficient to answer the requirements of our statute.</p> <p>If the prisoner is fully informed by the indictment for the murder of what person he is accused, so that if he had been acquitted he could plead autrefois acquit to another indictment for the murder of the same person, the indictment is good.</p>

<p>A PPEAL from tlie Eighth District Court, Parish of Madison. 1A. Delomj, J.</p>

<p>The Supreme Court has no jurisdiction ovéi* suit by mandamus to compel the clerk of a district court to give access to an employe of the police jury in his office for the purpose of transcribing mutilated archives, when the petition contains no moneyed demand, and the record fails to disclose any pecuniary interest exceeding $2000 in any of the parties to the suit. ,</p>

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

<p>The conveyance of property in the forra of a sale does not vest the ownership in the apparent buyer if the deed was really intended by both parties to be a mortgage.</p> <p>The answers of one of the parties to interrogatories on facts and articles propounded by the other, are equivalent to a counter-letter and have the same force and effect. They are unquestionably admissible in evidence.</p>

Goode, J. 1. In actions of damage for trespass, tbe Morgan’s Louisiana and Texas Railroad Company is amenablo to the jurisdiction of the Court where the trespass occurs. Act No. 37, Session Acts of 1877, page 37, section No. Í2; 33 Ann. p. 955; 36 Ann. 186. 2. Where an employe is injured by a railway accident, and the act that caused the damage could have been prevented by the railroad company, it is liable for damages under positive provisions of the Civil Code.

<p>A PPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.</p>

<p>An amended petition which, purports to supply omissions in general allegations contained in the original petition, and to correct clerical errors in other allegations, and which concludes with a prayer for the same amount of money, based on the same cause of action, does not alter the substance of the demand, and. is therefore admissible.</p> <p>Touching the corresponding rights and duties of railroad companies in constructing their works, the rule of law requires that a railroad company, in enforcing its right of way over the lands of others and in constructing its road, should leave the adjoining lands and fields which it crosses, in the same condition as regards the facilities of cultivation and as concerns the utility of those lands to their owners as they were before the entry of the company.</p> <p>Hence a railroad company which constructs an embankment on the lands of a planter, and thereby stops np his ditches and other artificial drains, is responsible to such owner for all losses of crops and other damages occasioned by such interruption of his drainage.</p>

BaTcer, J, 1. Where the prisoner was acquitted of the charge of forgery, it is unnecessary to determine whether evidence to establish his connection with the forgery was improperly admitted The remedial interposition of courts in granting new trials is wholly for the benefit of parties, and not to compel the good conduct of judges. 3 Gra. & Wat. on H. T. 717; 2 Caines, 85; 3 Gilm. 202; 2 Tenn.’ It. 5; 9 Cowan, 680; 1 Scam. 18; 1 Gilm. 475; 2 lb. 185; 11 Conn. 342; Greenl.

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

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

Tlio removal under the Acts of Congress of a suit via ordinaria, by the non-resident defendant into the United States Circuit Court for final determination, di vests the State Court of all jurisdiction over the cause of action embraced in such suit.

A PPEAL from the Tenth District Court, Parish of Red River. A Hall, J. J. The debts of the succession being all paid and the rcsidiivtn ascertained, the heir may appear and demand the succession from the administrator. O. P. 1000. 2. This demand of the heir shall be pronounced upon in a summary manner by the judge. C. P. 1002. 3.

Tissot, J. I. When a passenger in a street car is injured by a collision between that ear and a steam railway train, she has an action against both to recover the damages. Hn such case, she must prove her own care and non-contribution to the accident, and the negligence of either or both defendants; the contributory negligence of her train, will not affect her however. 71 N. Y. 288; 19 Id. 351; 36 N. J. 225; 2 Mete. (Hy.) 119 ; 9 Bush. 728 ; Shearm and Rdf. Neg. 48; Whart.

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

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

<p>Persons legally married are, until a dissolution of marriage, incapable of contracting another.</p> <p>Honce a marriage attempted by the wife of a previous marriage, before its dissolution by law or by the legal presumption of the death, of lier husband, is not valid. In a suit in tended to enforce legal effects of such a marriage against the pretended second husband the latter as defendant can plead the nullity of the marriage by way of exception and without resorting to a direct action. No legal effects can result from such a union.</p> <p>The term of absence without news of either of the spouses, which gives a sufficient cause to the other to contract another marriage, is ten years.</p> <p>An absence of four .years, unaccompanied by any circumstances tending to justify the belief that the absent husband is dead, is not sufficient to create the legal presumption of the validity of a second marriage contracted by the wife.</p> <p>The burden of proof in such a case is ou the wife w'h© seeks to enforce the legality of her second marriage, to show that the absent husband was dead at the time that she attempted to contract another marriage.</p>

A PPEAL from the Criminal District Court for the Parish of Orleans. AJL Roman, J. 1. In any indictment for forging or uttering any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same shall be usually known. R. S. Sec. 1049. The marriage certificate or act is required by the Civil Code. Art. 105. Justices of the peace are authorized to celebrate marriages within their respective parishes. C. C. Art. 103.

\ PPEAL from the Twenty-fourth District Court, Parish of Plaquej_A mines. Livcmdais, J. I. 1. Oust title, good faith and actual possession are all essential to support the prescription often years. B. G. O. 3478, 3479, 3480, 3481, 3482, 3483, 3484. 2. The Act of Congress of March 2, 1849, donating swamp lands to Louisiana, did not convey title “to lands claimed or held by individuals.” Sec. 2, Acts Cong., 1849. 3.

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

<p>A policy of insurance on the life of aman vests the rights to the policy and to the fund arising on the happening of the loss, at the date of the execution of the contract. This has been frequently held in cases where third persons are tlie beneficiaries, and the same rule must apply when the beneficiary is the insured himself or “his administrators, executors or assigns.” Hence when such a policy is talcen out by an unmarried man, the rights and interests thereunder belong to his separate estate, and do not fall into a community aúsing under a subsequent marriage. If in such case, premiums have been paid by the community, itis entitled to have such payments reimbursed to it as expenditures made by it for the benefit of the separate estate of the insured spouse.</p>

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

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

PPEAL from the Tenth District Court, Parish of Red River. , Hall, J. The beneficiary heir, residing out of the State, becomes, when he accepts the administration of a succession in this State, subject to the provisions of the law now embodied in Section 14 of the Revised Statutes of 1870. Sue. of Penny, 10 Ann. 292. Under the prayer for general relief the court will grant such further relief as the averments of the petition will justify.

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

Hall, J. I. In case heirs neither accept nor reject a succession, it becomes the duty of the judge to appoint one as administrator. R. C. 0.1041. In such case the beneficiary heir is entitled to preference. B. O. C. 1042. Administrators thus chosen have the same powers, and are subject to the same responsibilities as the cuiators of vacant estates. B. O. C. 1049.

Hall, J. Since the revision of the Civil Code and Statutes, in 1870, there has been no law in force, autliorizizing the appointment of a provisional administrator, with the exception of Act 87 of 1870, creating the office of public administrator, excepting the parish of Orleans, same was repealed by Act 74 of 1877. 30 Ann, 101, Succession of John Ciarle. IX, Upon tbe applicant’s own showing, he should have ceen required to give bond for §25,000 K. C. C. 1127,1048. III.

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

<p>APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.</p> <p>“A sale of partnership property by one of tho commercial partners on the eve of insolvency is null and void, and will he set aside.” 24 Ann. 247,217; Ann.75; 211.38; 25 Ami. 169.</p> <p>The recording in Uio mortgage office of an act of sale, containing a vendor’s privilege on a “ sugar mill and machinery,” is sufficient to preserve the vendor’s privilego against third, persons. Tho subsequent incorporation of the machinery into tho mill converts it into an immovable by destination, but the conversion does not prejudice tbs privilege and the samo may he signed and sold separately, as they may he detached and removed without injury to the soil or structure.</p> <p>Joseph O. Cailin vs. M. T. Gordy, sheriff, et- alM 32 Ann. 1287; 28 Aim. 749 ; 34 Ami. 925.</p> <p>“ Eveu when it is shown that the expressed consideration of a transfer does not exist, tho contract cannot., on that account, he invalidated if the transferee proves that there was another legal and sufficient consideration." 30 Ann. 966 ; 52 Ann. 94.</p> <p>‘•■When immovable property has been sold by authentic act. valid on its face and accompanied by actual delivery and continuous possession and control by the vendees as owner, the seizing creditor will not he allowed to allege and prove that tho sale isa fraudulent simulation.'’ 33 Ann. 1026.</p> <p>‘•But we think the otdv issue which could have been passed upon in this ease was that of simulation — the only issue which the creditor has a right to make when ho commences with a seizure ” 31 Ann. Mo Adams vs. Soiia, p 865.</p> <p>A party who judicially demands to be paid the proceeds of a sale, admits thereby the legality of that sale, ami is estopped fiom impeaching it, 29 Ann. 274; 31 Ann. 100; 23 Ami. 245; 22 Ann, 135; 3l Ami 81.</p> <p>'The vendor’s privilege on movables, can only he enforced while tho goods are in possession of the vendor. 20 Ann, 545 .ami 557; C. O. 3227.</p> <p>Actual malice need not bo shown, to entitle a party to exemplary damages; if the act was wantonly or recklessly done, it U enough, or if in evident disregard of the rights of ofheis. Bouvier Law D. p 630; 26 Conn. 416 ; 42 Miss. 607.</p>

<p>Article 3304 0. C., making valid a mortgage granted on the property of another wlien tlio mortgagor subsequently acquires the ownership, requires three elements to give it. application, viz:</p> <p>3. “A person contracting an obligation towards another,” i. ebecoming his debtor;</p> <p>2. That such debtor should have granted a mortgage on property of which ho was not tin» owner;</p> <p>3. That bitch debtor should “ subsequently acquire the ownership of the pvopm-t.y.”</p> <p>It has no application when the person who subsequently acquired the property had granted a morlgago as agent, and in the name of the then owner-, without any personal guarantee, and with full exhibition of his powers embodied in authentic act of procuration referred to in the act of mortgage.</p> <p>Although it was judicially determined that the procuration did not authorize the morlgago and that, therefore, it was not. binding on the principal, yet, under the express terms of the Code the mandatary, having exhibited the power of attorney under which he. acted, incurred no responsibility. 0. 0. arts. 3C12 and 3013.</p> <p>Hence, nob having contracted a debt uy virtue of the act. his subsequent acquisition of tlio property did not validate the mortgage.</p> <p>The rights of the commissioners heroin being ba^od exclusively on the hank’s claim of mortgage, and that thus falling to tlie ground, they have no rights or interest to set up the alleged nullities of the j udioial sale attacked.</p>

James. Dnffel, J. 1st. A purchaser of succession property, sold under executory process, has t.be right to-retain in his hands the surplus of the price of adjudication, after paying the amount of the seizing creditor’s writ, to be apx>lied directly by him to the payment of anterior, concurrent or subsequent mortgage and })rivilege creditors.

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

<p>APPEAL from tlie Justice Court. First Ward, St. Tammany. Duporte, J.</p>

<p>A PPLTCATION for Prohibition.</p> <p>1. In an action of boundary, the only matter in dispute is the value of the lands included between the two contested lines, and unless relator shows the value of such strip exceeds two thousand dollars, the Supreme Court is without jurisdiction. 35 Ann. 311.</p> <p>2. In this caso the action partakes of the nature of an action of boundary (only in this sense) that the reports of the parish surveyor chosen by both parties to draw the hound - ary line is sought simply to be approved and homologated — both by the allegations and prayer of respondent’s petition.</p> <p>And therefore the only matter in contest would be the surplus land beyond tbo titles of the parties apportioned according to law by their chosen surveyor in proportion to the respective titles of the parties</p> <p>The affidavit of respondents that said disputed strip is worth three hundred dollars, taken in connection with the report and testimony of the surveyor, settled the question of jurisdiction. O. 0. 832, 833, 851 ¡ B. S. 3740, 3743, 3745. See Exhibits A and B, annexed to the return of respondents.</p> <p>3. A party cannot shift his position to a contradictory one, so as to defeat the action of the law. Louque’s 1)., p. 225, § Cl, and p. 226, § 84.</p> <p>4. After the consent survey, the sole object of the action of respondents against relator was to prevent a disturbance to their possession of the strip of land allotted to them proportionately by the surveyor, and that possession is alleged to bo worth three hundred dollars; therefore the appellate jurisdiction was legalLy exercised in the premises. K either the title, ownership or possession of the properties owned by the litigants were in question, and tho issue was simply which line should bo decreed to be the true one and to ■ whom the twenty-foot strip belonged to: therefore it is the ownership and possession of the latter which determined the appellate jurisdiction of the Circuit Court. Lombard vs. Belanger, 35 Ann, 311; see also Manning’s TTnreported Cases of Supreme Court, Ternoir vs. Weaver, p. 107.</p> <p>5. Where it appears from the record that the lower court had jurisdiction, and the proceedings were regular, a writ ol prohibition will not issue from the Supreme Court on an application based on the ground that the lower court had usurped jurisdiction and authority, etc. 34 Aim. 782 ; 33 Aun. 257, 1356, and authorities there quoted; 36 Ann. 768; 32 Ann. 555, State ex rel. vs. Falls.</p> <p>€. Relator is now estopped from seeking relief by writ of prohibition, because he submitted 1o the jurisdiction of the appellate tribunal by pleading all his defenses to said appeal. He should have desisted at first and applied for the remedy he now seeks. He took the chances of a judgment in his favor, and lie now (omplains because hs has been disappointed. State ex rel. vs. Judge, 36 Ann. 768.</p>

<p>APPEAL from the Fifteenth District Court, Parish of West Feliciana. Yoist, J.</p>

<p>When a plea to the jurisdiction ration? personen has boon filed in the District Court and referred to and tried with tho merits, and judgment lias been rendered sustaining tlie plea and dismissing the demand, the party injured has the right to appeal from such judgment to the proper appellate tribunal. Sncli appeal vests the latter with full jurisdiction over the case and over all questions of l.aw and fact involved therein, including that of the jurisdiction of the District Comí. In determining such question and lovers ing tho judgment appealed from, the judges of said court do not transcend the bounds of their jurisdiction, and the application for the writ of prohibition has no foundation.</p>

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

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

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

<p>The owner of a building is responsible for personal injury sustained by the fall of part of it, when the accident is the result of his neglect to repair, or of a vice in the original construction.</p> <p>Ignorance of the condition of the building, or the circumstance that it could not be easily detected, is not exculpatory. Notice is not required as a condition precedent for the recovery of damages.</p>

PPEAL from tlie Civil District Court for the Parish of Orleans. Houston, J. -- 1. The duty of establishing and maintaining public schools throughout the State was imposed by the Constitution of 1868 on the General Assembly, and it was authorized to provide legislation for their support throughout the State by taxation or otherwise.

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

<p>APPEAL from the Civil district Court for the Parisli of Orleans. Mowroe, J.</p>

<p>The State, having once taken proceedings for the forfeiture of a bail bond in a criminal case, and having obtained a judgment against the parties, which is final and lias never been, in any mode, annulled, avoided or reversed, cannot recover another and new judgment on the same bond against the same parties.</p>

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

<p>All things which the owner of a tract of land has placed upon it for its service and improvement, such as working animals, implements of husbandry, machinery and other appur tenances, are immovable by destination, and are covered by a pre-existing mortgage Which attaches to the realty.</p> <p>But the effect of the mortgage on such movables is maintained only as long as the condition of immovable by destination continues, hence the owner may remove them from the mortgaged premises, and if the removal is done in good faith, and if by means of a sale, it is followed by delivery to the purchaser equally in good faith, the effect of the mortgage thereon is destroyed.</p> <p>Hence, in such a case, the creditor can not pursue such things in the hands of a third party, purchaser and possessor in good faith, so as to subject, them to his mortgage.</p> <p>But his right to prevent, by legal proceedings, the removal of such movables from the mortgaged premises, or to pursue them in the hands of a third possessor in bad faith, is fully recognized.</p>

<p>A PPEAL from the Fourth District Court, Parish of Caldwell, ¿A Burgess, J.</p>

<p>The City of Now Ofleana lias control of its streets and drainage and may improve tlie oil and alter the other as circumstances require.</p> <p>The City can change its system of drainage and do whatever is essential to perfect it, but it cannot wantonly and unnecessarily disregard the rights of its inhabitants.</p> <p>The City can widen a ditch lying along the b >ider of the plaintiffs’ Canal Company, but must cover it, as without a covering ingress and egress to and from the canal would be impeded or prevented. In widening the ditch to improve the drainage the city cannot needlessly interfere with the rights and privileges of the Canal Company.</p>

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

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

<p>The pleas of autrefois convict and autrefois acquit have derived from the common law principle that no person shall be twice put in jeopardy of life or limb for the same offense, and neither of the pleas can be sustained unless the previous trial invoked as a plea in bar .shall have been for the same charge contained in the new indictment or information, and unless the evidence required in one charge would bo sufficient to establish the other.</p> <p>Hence the plea in bar is not good to defeat a charge of “ assault with a dangerous weapon, to-wifc: a knife, with the intent to kill and murder and inflicting a wound less than mayhem,” when it appears that the previous trial of the accused set up in bar, had been on a charge of’robbery, although at the same time and on the same person.</p>

<p>APPEAL from the First District Court, Parish of Caddo. Mieles, J.</p> <p>A. — Anindictment charging that the prisoner “with force and arms, -wilfully, forcibly, unlawfully and against her will, the person of Mrs. Inez 'W'atkins, a married woman, did seize, secrete and convey whilst in transit from Claiborne parish, in said State, to the State of Tesas, and whilst in the city of Shreveport, State of Louisiana, from the depot of the Vicksburg, Shreveport and Pacific Railroad Company, in a hack waiting at said depot ror that purpose, forcibly and against her will, to the hou.se of ill-fame of Dannie Roos in said city,” etc., does not charge the Common Law crime of abduction as defined and denounced by the Statutes of England and the American States. 24 and 25 Viet. C. 100. S. 53 ; "Wharton’s Or. L. 8th ed. § 586; Bishop on Statutory Crimes, §§ 616, 617, 619, 620, 622; Desty’s Am. Or. L. § 136, b. 137, a. 138.</p> <p>B — The indictment charges the offense laid down in Section 805 R. S, This section denounces three separate and distinct crimes: 1st. The forcible seizing and carrying of a person out of the State. 2d. The forcible seizing and carrying of a person from one part of the State to another. 3d. The imprisonment or secretion of a person without authority of law.</p> <p>C- — In an indictment under this section no specific intent need be alleged. The general criminal intent presumed to be involved in the commission of all crimes is implied in this one, but “intent ” is not of the essence.</p> <p>D — The word “ forcible ” is necessary to the description of the two first two acts, as without it the Statute would not denounce a wrongful act. Differently with the last.</p> <p>It charges an aggravated form of false imprisonment.</p> <p>Imprisonment is an unlawful restraint put upon one’s personal liberty. Coercion is necessarily involved in the act. Therefore, force being included in the term, it is unnecessary in the indictment to all ege a ‘4 forcible 'false imprisonment. ’ ’</p> <p>D — The indictment.need not allege that the carrying was from one to another parish of the State. Any two points in the State alleged in the indictment is sufficient.</p> <p>G — The indictment sufficiently lays the venue in the parish of Caddo as to both counts.</p> <p>H — The Supreme Court cannot review questions of fact.</p> <p>I —The Supreme Court cannot determine a question of law necessarily based upon certain facts, unless the evidence is properly presented to them for review. State vs. Redwine, 37 Ann. 780.</p> <p>J — The last count charges the offenses laid down in both Sections 805 and 796, R. S.</p>

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

PPEAL from the Fifteenth District Court, Parish of Pointe Coupée. Toist, J. 1. Acts 78 of 1876, and 46 of 1877, create a special levee district, and authorize the levy of a specific tax per acre on the lands protected by the levee of the district. 2.

<p>Merchants who indiscriminately transact business, both as 'wholesale and as retail dealers, are liable to a license in each capacity.</p>

<p>The two defendant companies entered into a contract whereby tlie Louisiana company transferred to the Pennsylvania company certain valuable rights and privileges iu considera, ti.on of the Pennsylvania company’s agreement to pay to the bond subscribers of fcbe Louisiana company, who would transfer their subscriptions to it, a certain'amount of money.</p> <p>Held: That this created an obligation on the Pennsylvania company to pay the money, subject to tbe suspensive protestativo condition of the bond subscribers’transferí ing their subscriptions, and no term having been fixed, the obligation was not discharged by the failure and refusal of the plaintiff, a bond subscriber, for a time, to accept the benefit of the contract. Having subsequently offered to perform'the condition'by transferring his subscription, the Pennsylvania company’s obligation to pay became complete,'it having received and enjoyed the full consideration of its contract, and^plaintiff’s vacillation and delay having placed it in no worse condition.</p> <p>Inasmuch as plaintiff’s suit is in affirmance of the contract which itwas' alleged th©;Louia* iana company had no right to make, and as it is not tbe latter’s fault that plaintiff; has not long since received the stipulated consideration, plaintiff’s claim against the Louisiana company has no foundation.</p>

<p>The courts of this State have no jurisdiction over a suit by an individual, the object of which is to enfoico specific peiformnnc© of a contract with (ho State, whore the hitter is not o party to the suit, 1ms not consented to be sued and is not represented therein by a Slate functionary duly empowered to do .so, at the bringing of the action.</p> <p>The power conferred to represent may be recalled. Tbo withdrawal thereof leaves the once constituted agent without authority to further rejn’osent.</p>

Talbot, J. 1. That principle of the old Roman law adhering to the laws of Spain and obtaining in -Louisiana up to the adoption of the Civil Code in 1828, which treated as nullities stipulations in acts of partnership, providing for the continuance of the partnership between the survivor and the heirs of the partner dying first, was superceded by Art. 2880 (2851) of the Civil Code.

<p>‘The general rule governing the measure of damages in actions for tortious conversion the value of the property converted with interest.</p> <p>The rule is subject to exceptions where the conversion is accompanied by violence or personal outrage, and perhaps where other particular damage is shown to have been clearly and directly occasioned by the wrongful act.</p> <p>.Bub in this case we see no reason to disturb the verdict of the jury, which applied the gen> eral rule.</p>

<p>APPEAL from the Tenth District ■ Court, Parish of Rapides. Blackmail, J. ....</p>

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

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

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

1. In an indictment charging the defendant with receiving stolen property, under Sec. 832, • 11. S., a verdict finding the accused guilty of “knowingly receiving stolen property,” ia legal. 2. Guilty knowledge is of tlie essence of tlie crime. Bishop Cr. Prac.Vol, II., § 906; Wliar. ton Cr. E. §§ 983, 989; Wliartoa Or. Ev. § 164; Desty Cr. L, 147, a. 3.

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

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

<p>An appeal in a criminal proceeding, asked after the term during which the judgment complained of was rendered and mad'o returnable on appellant’s suggestion, on an improper day, must be dismissed as sought and returned too late.</p>

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

PPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J. 1. The incapacity of the wife is icmov(d by the antboiization of the husband or the judge. E. O. C. 1786. The objection is waived by previous pica and answer, in which the husband joined, and could not thereafter be urged by way of objection to the introduction of evidence. C. P. 107, 118; 14 Ann. 805; 10 Ann. 504 ; 9 Ann. 216; 5 Ann. 369. 2.

<p>A PPEAL from the Eleventh District Court, Parish of Natchitoches. jUA_ Pierson, J.</p>

■ Roman, J. 1. It is not requisite to charge in the indictment anything more than is necessary to accurately and adequately express the offenee. Whart. Cr. PI. and Pr., Sec. 158.

<p>Opinion based on conversations is no ground for challenge of a juror when the juror states that he can try the case according to the law and the evidence, taking the law from the court and the evidence from the sworn witnesses, and»do exact justice, regardless of such opinion.</p> <p>Where the defendant has attempted to impeach the testimony of witnesses for the State, the latter may suppoit the same by evidence character for veracity and integrity.</p> <p>When the term of the district court has been fixed and begun two weeks before the session of the Circuit Court, and the accused has been tried and convicted before the beginning of the latter term, and when, having no business, the Circuit Court does nob meet, tho district court violates no law in continuing its term for the purpose of disposing of motions for new trial, etc., and passing sentence on the convicted defendant.</p> <p>When a defendant has been once arraigned and lias pleaded to an indictment on a former •trial, re-arraignment is unnecessary, and if made, it is no objection that tbo caso baa been previously set for trial.</p>

<p>Defenses of ■want of consideration, extinguishment by remission, prematurity resulting from' inexpiration of extension of time granted, against a mortgage note sued on, are inconsistent and inadmissible.</p> <p>An injunction on those grounds, tlie evidence sustaining neither, is properly dissolved.</p> <p>An appeal from tbe judgment dissolving is frivolous, and damages are allowable.</p>

<p>In the exercise of its supervisory juTisdidion the Supreme Court cannot entertain a com* plaint against an inferior court, which practically involves the correctness of a judg* ment rendered hy said court, which had unquestioned jurisdiction ratione materia et persona over the cause, or the correctness of any oí its rulings in such a cause, when it appears that the rules of law and practice governing the triol of causes have been* observed.</p> <p>Such an attempt would be an unjustifiable assumption of jurisdiction and powers not granted-by the Constitution, or sanctioned by law or jurisprudence.</p>

PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J. 3.A mamed woman cannot be authorized by the judge to stand in judgment, Unless citation is served on «the husband, or an attempt to cite him. made, 24 Ann, 141; 9 Ann. 12; Duranton, Yol. 2, Ho. 446. 2. She can be authorized by the judge of her domicile alone. 12 L. 71; 31 Ann. 174. 3.

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

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

PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J. The granting of a new trial, where the sole ground of the motion is that the verdict is contrary to the law and the evidence, is within the discretion of the lower court; and its action is not subject to review by this Court.

<p>The dismissal of an injunction suit on an exception is equivalent in law to a judgment decreeing tlie injunction to have been wrongfully obtained.</p> <p>An action in damages following such a judgmen t, by the defendants in the injunction suit, involves but one question, and that is tbe quantum of damages to be allowed.</p>

<p>Motions for appeal in criminal cases tried in Orleans parish, must be filed within ten days after sentence. The law regulating criminal appeals expressly prohibits granting them after ten days have elapsed from sentence.</p> <p>Appeals in criminal cases from Orleans must be made returnable within ten days after granting them.</p> <p>The law regulating appeals in criminal causes cannot be relaxed when its provisions are plain and its requirements absolute.</p>

Tissot, J. 1.No partial transfer by a creditor hinds the debtor, unless he assents thereto, and until such assen-t the partial transferee oannot sue. 8 La. 536; 3 R. 432. 2.In such case the equitable interest of the partial transferee is like that of a dormant* partner represented by the original creditor. 9 Ann. 74. 3.When one party wrongfully puts an end to the contract, the other can recover value of his services. 110 U. S. 345. 1.Where six distinct and separate causes of…

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

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

<p>Property must be assessed in tlio name of the tine owner. If assessed in any other name. tho assessment is defective and cannot be the basis of a legal tax sale,</p> <p>A woman divorced from her husband is in tbe same situation toward him as though no marriage had ever been contracted between them. Sho has the legal right to resume her original name, and property which she buys and whiclf is recoided under that name cannot he legally assessed against her under another name, not even under her former name as a married woman.</p>

<p>Held, that plaintiff was and. remained, one-fourtli ovner of ship “S. J. Oteri M until November 14,1883, at which date his interest terminated by his voluntary acceptance of the return of the price which he had paid for said interest.</p> <p>Held, that for the trips made by said ship prior to August 24,1883, when the firm of S. Oteri & Bro., was dissolved and terminated, he is entitled to accounting of profits on same basis as had been always customary in previous transactions.</p> <p>Held, that after 1he termination of the partnership, plaintiff’s interest in the mercantile ventures ot buying and selling fruit thereafter carried on by S. Oteri ceased; and that, as he could not be held for losses on such ventures, he cannot claim the profit. «His interest thereafter was confined to his share of the earnings of the vessel per se. As these have not been kept in such manner as to enable us to ascertain their actual value, and as this is the fault of defendant, plaintiff is allowed his share of a liberal charter-price of the ship during that period.</p>

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

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

Lamm8, J. 1. The defendant is hound by the same rules in pleading and in making proof as plaintiff; and an answer which merely refers to a contract as invalid, must state specific defects, or, on exception at the trial, defendants will not he allowed to prove any defects. 2. Defendants cannot attack collaterally a contract between plaintiff and the city of Hew Orleans; nor have they any interest or right to question such a contract. 3.

<p>On appeal from an order dissolving an injunction on bond, when a motion to dismiss tbe ap* peal on tbe ground tbat tbe interlocutory order appealed from could not work an irreparable injury, our decree denying tbe motion to dismiss and holding that the acts enjoined, if committed, would operate irreparable injury, necessarily involves the conclusion that the injunction should not have been dissolved on bond, and hence the dissolving order appealed from must be avoided and reversed.</p>

<p>A. notary will not bo bold individually responsible for paying tlie price of sale, deposited bv tbe purchaser, to tbe ostensible owner and vendor in tbe absence of proper instructions given to him and accepted by him to pay it otherwise.</p>

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

Monroe, J. The exception by defendant of lis pendens was properly overruled by the court. The Tubal Cain, 9 Federal Rep., 836; 7 Wallace, 619; 14 Ann., 383; 3 Sumner, 165; Godfrey vs. Hall, 4 La., 158 ; 17 La., 480; 6 Mart, N. S., 517 ; 13 Ann. Rep., p. 233.

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

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

<p>lío appeal lies to this Court in a case in •which plaintiff claims less than $2,000, on distinct contracts, from each of several defendants, not hound jointly or severally, though five in number, and the claim against each nears $1,000, aggregating together some $5,000. Consent cannot confer jurisdiction rations materia\</p>

<p>An information under Section 792 oí the Revised Statutes, which charges that the accused wilfully, feloniously and .of liis malice aforethought ■* * shot into and among a crowd with intent to kill and murder some person or persons, is not had for duplicity.</p> <p>The description of the a/nimns of the, shooting is sufficient to qualify the intent to commit murder.</p> <p>The information is not deficient for using the words into and among instead of the word at used in the Statute. It is not deficient because it does not in terms charge an assault, when it appears that other words used contain the necessary ingredients of an assault.</p>

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

<p>An appeal taken in a criminal cas© and mad© returnable witbin ten days after the order of appeal is granted, will be dismissed if the transcript of appeal is not filed on the return day, or within three judicial days thereafter. Sec. 4, act 30 of 1878; State vs. Butler, 35 Ann. 392.</p>

PPEAL from tbe Civil District Court for the Parish of Orleans. Lazarus, J. 1 “ Gross premium,” in the license act, includes all premiums, from whatever source. 2. Exemptions from taxation are to be strictly oonstrued, and as “ rebates ” are not mentioned among the items to be deducted from the “gross premium,” they cannot be allowed. Act No. 4, 2d Ex. Sess. 1881, p. 70. 3.

<p>1. State vs. Alexander Balize affirmed.</p> <p>2. Proof administered of tke previous prosecution of another ‘ person " accused of same "offense” is not proof of knowledge by tke prosecuting officer tliat the accused had committed tlie offense, and he cannot thereby sustain his plea of prescription.</p>

. Tissot, J. I. Where appellants were not condemned to pay any sum of money, or deliver any property, the bond need only be to cover costs. 30 Ann. 801. Where an appeal is taken from a judgment, and the property is in tlie bands of the officer of the court, under an orderissued on the petition of plaintiff and appellee, a bond fixed by the judge for an amount to cover costs is suspensive. 7 IN. S. 352; 10 Ann. 345; 27 Ann. 231, 685.

Mlis, J. The action of tho trial judge in overruling a motion in arrest will not be reviewed on appeal unless a bill of exception is taken thereto. Compelling accused to go to trial without a copy of the venire, furnishes no legal ground for a motion in arrest.

<p>PPEAL from the Criminal District Court, Parish of Orleans. Balcer, J.</p>

<p>APPEAL iron the Tenth District Court, Parish of De Soto. Sail, J.</p>

<p>The unpaid price of sale of movable property, unless it be specially provided to the contrary, is secured by vendor’s lien.</p> <p>A sale and counter-letter of movable property, recorded in the conveyance office in which transfers and contracts relative to real estate alone are required to be registered, are not notice to third persons equivalent to knowledge.</p> <p>A contract, evidenced by an act of sale and a counter-letter, which together show that the sale, made part cash and part, on time, although not designed by the parties to be absolutely final and conclusive, but intended to enable the vendor to use the notes in his business, the title to be put back in the vendor’s name as soon as the notes issued are retired and returned to the purchaser and drawer, does not establish asimulation, but a real transaction, by which the title passed.</p> <p>Purchasers of such notes, for a valid consideration and before maturity, are entitléd to recover the amount thereof, with lien on the property sold.</p>

A PPEAL from tbe Civil District Court for the Parish of Orleans. Tissot, J. 1. The agents of merchants residing in a foreign country, or in another State, are personally liable, whether they describe themselves as agents or not in the contract. In such cases it is presumed that the credit is given exclusively to them to the exoneration of their employers j but the presumption maybe rebutted by proof that the credit was given to both, or to the principal only.

<p>A former acquittal for the same offense cannot be urged aa newly-discovered evidence in support of a new trial. Such fact must have been known to defendant, and evidence to that effect could only have been offered under a special plea of autrefois acquit.</p> <p>Jurors cannot be heard to impeach their verdict; and when no objection is urged to the correctness of the judge’s charge, the allegation that the jury misapprehended its meaning, supported by the affidavit of a juror to that effect, cannot be sustained as ground for-a new trial.</p>

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

<p>1. A cbaige of tbe judge, in a capital case, that is not reduced to writing, and to wbicb no bill of exceptions was taken at tbe time, cannot be examined upon an application by accused tor a new trial. 34 Ann. 106,1213; 35 Ann. 543, 773.</p> <p>2. An objection that tbe verdict of tbe jury is contrary to law and tbe evidence is bad. 33 Ann. 313; 11 Ann. 478.</p> <p>3. An objection, raised for the first time upon an application for a new trial, that one of the jurors who tried the case was an unnaturalized citizen, comes too late; it should have been urged when tbe juror was offered to be sworn. 8R. 590; 13Ann.276, 21 Ann. 546, 257; 26 Ann. 383.</p> <p>4. A juror cannot be beard to impeach bis own verdict. 3 Ann. 435; 6 Ann 653; 35 Ann. 1032.</p>

<p>Ejectment proceedings are summary in character.</p> <p>A prayer that the defendant he cited is not a conversion of such proceedings into ordinary ones. The word used is that found in the statute.</p> <p>Mandamus is the appropriate remedy to compel the trial as summary, of such suit, where the district judge has on that account ruled as a question of practice, or procedure, that it has ceased to he such and had been converted into an ordinary action.</p>

<p>A. PPEAL from the First District Court, Parish of Cadclo. /A Hides, J.</p>

<p>APPEAL from, tbe Twentieth District Court, Parish of Assumption. Beattie, J.</p>

<p>0 N MOTION and Suggestion of the Relator to Execute the Decree of the Supreme Court of the United States.</p>

<p>ON MOTION and Suggestion of Plaintiff to Execute the Decree of the Supreme Court of the United States.</p>

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

<p>‘No injunction lies to restrain tlie enforcement of a municipal ordinance which has been abandoned and become inoperative, whether that fact is brought to the knowledge of the court of the first instance or on appeal.</p>

Lamms, J. A judgment is conclusive of every fact necessary to uphold it, whether the final adjudication resulted from tedious litigation or from a suit in which obstacle was presented. Freeman on Judgments, sec. 330; 2 Howard IT. S. 340; Succession of Hebrard, 18 Ann. 485.

<p>A PPLICATION for Habeas Corpus.</p>

<p>A PPEAL from tlie Ninth District Court, Parish of Tensas. Xjl Newell, Judge ad hoe.</p>

<p>TXhe State Tax Collector cannot be compelled by a mandamus to receive from a purchaser of land forfeited to the State, and again offered for sale in payment of the price bid, where • the property is burdened with back taxes due the State and city, three per cent Louisiana bonds, known as “Baby Bonds,” though che purchaser has paid the amount owing for costs, fees, commissions, etc., in cash.</p>

<p>"When a bill of exceptions recites the facts which the counsel had contended before the jury, bad been established by the evidence, and refers to the evidence in support thereof, and asks for charges applicable to the state of facts recited, the judge’s refusal to give the charges on the ground that they are inapplicable to the case, is error, unless the judge states that there was no evidence in the case supporting or tending to support the contentions of counsel..</p> <p>It is the duty of the judge to give full instructions to the jury covering the entire law of the case as respects all the facts proved or olaimed by counsel to be proved, provided such claim, is supported by any evidence.</p> <p>Authorities reviewed and criticised.</p> <p>The functions of the judge in such case, is different from that involved in rulings on admissibility of testimony, when he is entitled to weigh the testimony as to jnoof of necessary foundation, as a matter involving the exercise of his own discretion.</p>

<p>1. Where, in country cases, appeals are taken before judgments are signed, they may be considered as taken nunc pro tunc. 12 Ann. 096, State vs. HcKeown.</p> <p>‘2. Appeals prosecuted from judgments on forfeited bonds are treated as taken in “criminal matters” in tho sense of Act 30 of 3878. State vs. Cassidy, 7 Ami. 276; State vs. Williams, 37 Ann. 200.</p> <p>-3. When tho return day is fixed by tho court on its own motion and not at the suggestion of appellant’s counsel, though in. direct violation of Act 30 of 1878, the fault is not imputable to the appellant and he cannot be prejudiced thereby.</p> <p>4. An appearance bond taken by the sheriff, without an order of court admitting the accused to bail, or fixing the amount of bond is 6 Ann. 700, State vs. Lougineau ; 12 Ann. 224, Staters. Cravey; 12 Ann. 349, State vs. Smith; 10 Ann. 532. Stale vs. Gilbert.</p> <p>5. When the record enables the court to decide on tho merits, either party may, at any time, refer tho court to any error apparent on the face of the record, without making a formal assignment thereof.</p>

<p>An adjuclieatee may be compelled to comply with the terms oí a sale when the title tendered is such as he is bound to accept.</p> <p>Such adjudicateo cannot urge, as a defense, that the title offered him by the owner was-made to such owner by an agent whose procuration was, at the time, revoked by the notorious insanity and seclusion of the principal, unless the mental derangement was such as would have justified interdiction, and the purchaser was aware of the incapacity..</p> <p>Where the purchaser bought ifi good faith and paid a fair price, which enured to the benefit of the principal, and where the principal or his curator, after his interdiction, could not successfully claim the nullity of the transaction, or could not be made to take back the property, the sale will not be vitiated.</p> <p>A power of attorney is revoked by the interdiction of the principal, but continues in force until the judgment to that effect has been rendered. The mandate does not expire by the seclusion of the principal or his confinement for treatment in an insane asylum; but-it does by the reclusion.</p> <p>The word seclusion, found in Article 3027 R. C. 0., line 5th, should be read reclusion. It was introduced in the Code of 3825 by the compilers. In case of discrepancy between the French and English texts, the former prevails.</p> <p>Reclusion means incarceration under a sentence, to undergo an infamous punishment, carrying civil degradation, in a house of forced labor.</p> <p>Seclusion means a voluntary confinement, or retreat from social life.</p> <p>Ignorance of the revocation of a power of attorney will protect an innocent third party dealing in good faith -with the agent, as such.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans^. ■.'I/aaarus, J. , .</p>

<p>Injunction will not lie against a prospective nuisance, except in cases where its establishment will occasion imminent danger or irreparable injury, or at least where there is no question that the proposed erection will be a nuisance in the sense of the law.</p> <p>'Defendants having obtained permission from the city to erect a steam engine on their own premises, plaintiff, a neighbor, cannot enjoin them from such erection in advance, upon allegations of apprehended danger and injury, when the evidence leaves it doubtful whether such danger or injury will result from the erection in the mode proposed by defendants, and when, if they arise of a nature to justify legal redress, the remedy then afforded will be ample and sufficient to abate them.</p> <p>.It is not necessary to determine what amount or character of danger or injury would support plaintiff’s right to judicial relief.</p>

REPLICATION for Mandamus. The duties of inferior courts in executing the decrees of the Supreme Court are simply ministerial. They cannot prerent tho clerk from issuing process deemed necessary by tho party who has prevailed or by his attorney. Their sole power is to order to be entered upon tho minutes of the Court such mandates and to declare them executory. Acts of 1855, p. 51; Revised Statutes of 1870, sec. 464; State ex rel.

<p>The issue by the t<rial judge of a bench warrant on the motion of the proseouting attorney for the arrest and detention of a witness who had just testified before the jury on the charge of perjury, is not an act prohibited by the Statute, which forbids tbe judge “in his charge to tbe jury to state or repeat the testimony of any witnesss, or to give any opinion as to what facts have been proved or disproved,” particularly when there is no allegation that he alluded to or commented upon the testimony of such witness.</p>

<p>APPEAL from the Third District Court, Parish of Lincoln. Young, J.</p>

Homan, J. I. The question of the jurisdiction of the court is merely a matter of inducement, and according to the universal rule of criminal pleading it will be sufficient either to charge in words that the officer bad jurisdiction, or to aver facts from which the jurisdiction would in law appear, both not being required. 2 Bish Or.’Proc. §§ 910, 904.

<p>A PPE AL from the Criminal District Court for the Parish of Orleans. JllA. Roman, J.</p> <p>The action of the ttial judge in overruling a motion for new trial, on the ground that the verdict is contrary to the law and the evidence, is not subject to review on appeal. This Court has no jurisdiction in criminal cases, except upon unmixed questions of law.</p> <p>Any particular fact or circumstance sworn to by a witness to show that an accused on trial had nothing to do with or was not present at the commission of the offense for which he was being tried, was material to that issue, and if untrue forms a legal basis for prosecution for perjury.</p> <p>An indictment for perjury need not set out the indictment or information upon which the trial was had in which the perjury is claimed to have been committed, nor set out in detail all the proceedings in that case. It is sufficient to charge that upon the trial of tho case named and designated the perjury was committed.</p> <p>It is sufficient to aver that the court in which the case was pending had jurisdiction, or to aver facts from which the jurisdiction would in law appear, both not being required. 2 Bish. Or. Pr. §§ 904, 910.</p> <p>A statement that the cause was pending in a particular Section of the Criminal Court of the parish of Orleans, to which it had been duly and rogulariy apportioned by lot, is a sufficient averment of facts from which its jurisdiction does in law appear.</p> <p>It is sufficient either to allege that the false evidence was material or to aver facts from, which its materiality is evident,</p> <p>When a party is on trial for murder, the evidence of a witness that, at the time of the homicide, the accused was at another place, is material on its face; and its materiality need not be specially averred in an indictment for perjury in which the evidonco is set out</p> <p>An indictment for perjury should expressly aver that the court had jurisdiction to hear and determine the cause wherein it is alleged that tb© accused swore falsely; or it should appear conclusively from the nature of the proceedings that such jurisdiction was vested in the court, in order to enable the appellate court to tali© judicial notice of the fact.</p> <p>An indictment for perjury should expressly aver that the matter sworn to and upon which the perjury is assigned was material, or it should appear conclusively on the face of the facts set forth in the indictment that the matter sworn to was material.</p> <p>Where perjury is charged as having been committed by a witness in the course of a trial for murder, it should appear affirmatively that the proceedings* in the murder case were by indictment found by a grand jury. Const. Art. 5.</p>

<p>An application for a prohibition will not be considered, unless a plea to the jurisdiction has been first filed and overruled in the lower court.</p>

Talbot, J. The joint ownership of real estate does not create a partnership between the owners A special contract in writing is necessary for that purpose. C. (J. 2807; Benton vs. Roberts, 4 Ann. 216; 14 Ann. 11. So where the joint ownership is severed by sale duly recorded in conveyance book, every one is bound to take notice of same; and articles furnished the plantation after said sale, cannot he recovered of the party selling out before they were furnished.

A PPEAL from the Civil District Court for the Parish of Orleans. Righior, J. 1. Plaintiffs, as vendors, entitled to a judgment for the price, to-wit: $1287 02, with legal interest from judicial demand and costs; and to a further decree maintaining the sequestration and recognizing their vendors' lien upon the property sequestered. C. P. Art. 275, par. 7; C. C Art, 3227; 1 Ann, 82; 4 Ann. 453. 2'.

<p>APPEAL from the Seventh District Court, Parish of Eranlclin. Moore, Judge ad hoe.</p> <p>-1. A transcript of appeal pui porting to bo a transcript of certain parts of the trial, and not a complete record of all the judicial proceedings necessary. t<? the determination of appellant’s case, is not a complete transcript, and the appeal should be dismissed. C. P. 587 ; State vs. Johnson, 37 Aim.</p> <p>”2. "When the record shows a bill of information was filed and a trial regularly proceeded with, and after the conviction and before sentence the prisoner escaped and was a fugi« tive from justice for more than two years, that after having been recaptured and before sentence was pronounced upon him it was shown the bill of information was lost and there was no copy in existence, and the contents of the information was proven by parol evidence reduced to writing, and such evidence was made part of a bill of exception, and was afterwaids abstracted from the clerk’s office, tho defendant cannot complain that the record does not disclose the nature of the charge against him for the reason that he is estopped from claiming any benefit or advantage from irregularities, madd possible by his wrongful act of escaping from legal custody.</p> <p>^3. Parol evidence is admissiblo to prove the contents of an information lost and no copy of same being in existence. Wharton Cr. Ev, § 204 et seq.</p> <p>•4. Identity is a question of fact and cannot bo inquired into by the Supreme Court.</p> <p>‘5. A convicted felon cannot defeat the just execution'of the law by qrgingthe loss of records occurring long after his conviction, and of which it is placed in his power to take advantage by moans of his unlawful escape.</p> <p>■&. The status of a criminal prosecution should not be impaired by the culprit’s escape. When he is recaptured, matters ought to be considered as in the same condition as at the time of his flight. The criminal should not be permitted to profit by his own wrong.</p> <p>IParol evidence is inadmissible to show the existence, loss or contents of an indictment or information; and where an indictment or information is lost, destroyed or abstracted from the clerk’s office, no further proceedings in such case can he had, except from a duly certified copy of the record in such case, taken from the record book kept for the recording of such documents, after positive proof of the loss, destruction or abstraction of the same. Whar. Cr. Ev. § 153, and cases cited in note 8; Wright vs. State, 50 Miss ► 191. This case also reported in Hawley’s Arner. Cr. Rep. 1 vol., p. 191 j 1 vol.Bish. Cr. Pro. §§ 1178-79-80-81, and 319; Act Ho. 17 of the State of La., 1878, p. 42.</p>

<p>APPEAL from tlie Seventeentli'District Court, Parish of East Baton Eouge. Burgess, J.</p> <p>The ruling of the tiial judge upon the competency of a juror who did not serve upon tho jury in a case in which the peremptory challenges were not exhausted, will be reviewed on appeal.</p> <p>A juror is competent who swears on his i)oir dire that,’notwithstanding his previous impressions, “his opinion would readily yield to the evidence if different from what he had heard, and that lie could give the accused a fair and impartial trial.”</p> <p>When accused is on trial for peijury conmiittod in a former case, evidence of thieats and intimidation on his part to influence or prevent evidenco contrary to his own, is admissible in tho instant case as tendiug to show that the perjury in the former case was willful and con upt.</p> <p>'The action of tho trial judge in overruling a motion for new tiial will not he reviewed unless a regular and former bill of exceptions thereto is taken. The statement appended to the motion and signed by the judge, that counsel excepted and tendéis his hill, will not suffice.</p> <p>.Evidence taken on the trial of a motion for now trial will not ho noticed unless embodied in a regular formal hill of exceptions, actually or by reference as part thereof, although it may he in tho record.</p> <p>,A juror will not be beard as a witness to impeach the finding of the jury of which ho was a member, by showing misconduct on part of himself or fellows, or the unusual means by which they agreed to a verdict.</p> <p>.A juror has tho right to influence the action of his fellows by all fair arguments and reasoning, and give them the benefit during their deliberations of all the information he may have hearing upon the case.</p> <p>It is not a “separation,” or misconduct, such as to vitiate a verdict, for the foreman to advance to tho stand and ask the judge a question in open court, although it is more regular to ask all instructions from the box — particularly when the explanation of tho judge slious that the question and answer were not unfavorable to the interest of tho accused. 4 L’. 27; 23 Ann. 148; 8 It. 590; Thompson & Merriam on Juries, § 362, No. 2, p. 429, § 355, p. 423</p> <p>Any private communication whatever between tho judgo and any member of the'jurv, after the jury had retiied to consider their verdict, vitiates the finding. Thompson & Mer* iiam on Juries, sec. 355, and cases cited. A judge is not authorized to give jurors separate and private instructions out of the hearing and without the knowledge of counsel on both sides. State vs. Ifrisby, 10 Aim. 144; Thompson and Meriiam, sec. 357.</p> <p>The mere presenco of an oificer of court at deliberations of tbe jury, and conversation about-the case, invalidates the veidict. Thompson and Merriara,-seo. 362.</p>

Helena* Eernan, J. Actions to resolve the sale for non-payment of price prescribe only in ten years. And this term of prescription bogins from maturity of first instalment, -when the piice is to be paid, in instalments. 14 Ann. 340 ; 23 Ann. 355. Minors cannot bo prescribed against, except in cases provided by law. C. C. 3522; 33 Ann. 769.

PPEAL from the Ninth District Court, Parish of Tensas. Leiois, J. That portion of art. 739. C. P., which provides that the debtor can arrest the sale “when time has been granted to him for paying the debt, although this circumstance he not mentioned in the contract,” has no reference to time granted before, but can only mean time granted after the date of the contract. It contemplates an agreement extending the time made subsequent to the contract.

<p>The legislature of the State has vested the city of Hew Orleans with authority to regulate the use of her streets and to authorize the establishment thereon of railroads operated by steam. The ordinance of 1871, Ho, 1031 A. S., authorizing the N. 0. Jackson anxLG. H. E.*E. Co. to use steam on its track on St. Joseph street, was a valid exercise of that power.</p> <p>The act of the General Assembly, Ho. 78 of 1870, never went into effect by reason of noncompliance with the terms of its concluding section; and even if it had gone into effect the proper construction of it would be that it was a mere negative of authority to use steam on St. Joseph street, under said act, but that it did not prohibit the ‘city from granting such authority. (</p> <p>In absence of any allegation or proof that defendant’s railroad is improperly constructed or conducted, or uses defective machinery, or, in any way, occasions injury not incident to the prudent and lawful exercise of its right, plaintiff is not entitled to the injunction or damages claimed.</p> <p>An action of damages will not lie for merely consequential injuries resulting from the pursuit of a business and exercise of rights, lawful in themselves, when they are exercised with prudence and caution and in a manner to cause no unnecessary injury. 8uch inconveniences or injuries must be borne as the tribute of individual inconvenience to the general good.</p> <p>Article 156 of the present Constitution is not applicable to this case.</p>

<p>An accused is not entitled to compulsory process for obtaining witnesses in bis favor, in support of a motion for a new trial.</p> <p>The provision of the Constitution (Art. 8) touching witnesses in criminal cases, applies to witnesses on the question of the guilt or innocence of the accused, and has no reference to motions for now trials or other proceedings connected with a criminal cause.</p> <p>The Supreme Court will not disturb the rulings of trial judges, in their manuer of fixing and hearing motions for new trials or similar proceedings unless the same appear on their face arbitrary or glaringly unjust.</p> <p>Evidence intended to impeach the testimony of witnesses on the trial is not a legal ground for a motion for a new trial on the ground of newly discovered evidence.</p>

Montgomery, J. ad hoe. 1. The administrator should, within ten days after Ms appointment, advertise and sell all’ the personal property of the succession. O. C. 1163,1049,1051. 2. If he fail to sell when required by law to do so and the property wastes or perishes, he-must account or pay for the property. 3.

Williams, J. 1. In selling land at tax sale all the requirements fixed by law must be rigidly complied with on pain of nullity. The necessary proceedings step by step must appear in the tax deed. Louque, 715, 5, 716, 16; 19 Ann. 185. 2. Mortgages perempt. They do not prescribe. The doctrine of prescription is stricti juris. The mode of cancelling a perempted mortgage being fixed by law, this mode is exclusive.

<p>A person to whom complaint has been made by the victim of a rape, when placed on the witness stand, cannot be permitted to repeat all the details of the outrage and the name-of the ravisher as reported to her, but can only testify as to the fact of the complaint being made and as to the condition of the victim when making the complaint. Such testimony is not to be regarded as independent and original evidence to establish the guilt of the accused, but its purpose is to support the testimony of the person outraged.</p> <p>The counsel for one accused of such crime, who seeks to impeach the testimony of the principal witness by showing contradictions between the statements of such witness made on the preliminary examination and those made on the trial, should be permitted to-read-parts of the previous deposition and ask the wituoss if she had so testified, and should not be compelled first to read to her the entire deposition out of the presence of' the court and jury,</p>

<p>1. Private corporations must bo authorized by tlie legislature or established according to law. When legally established, they may hold real estate, and receive legacies and donations.</p> <p>They may enact statutes and by laws for their government.</p> <p>The right of succession is inherent to their nature, and they transmit their successions and their rights of property.</p> <p>2. A corporation cannot fulfill another office of public or personal trust.</p> <p>A corporation legally established may be dissolved by an act of the legislature, if they deem it necessary for the public interest.</p> <p>3. The Grand Lodge was incorporated by an act of the legislature in 1816, and given full powers to hold real estate and to receive donations and legacies. It also chartered all such subordinate lodges as the Grand Lodge had at that time created, and conferred upon them equal powers.</p> <p>By the act of 1819, all lodges that had been organized in the initerfan, were likewise incorporated, and those which might be subsequently organized also. '</p> <p>4. As a general rule the question as to the forfeiture, or dissolution of charters and acts of incorporation is one which concerns the public order, and the corporation is presumed to oxist for all purposes of justice until the forfeiture is declared by the judgment of a compotent court in some proceeding to which the State is a party.</p> <p>5. New legislation cannot be engrafted upon different and distinct subject matter by way of amendment without mention being made of the object in the title; but any subject matter that is germaen to the original text may "be incorporated without being amenable to this objection, if it be stated in the title what particular law is to be thereby amended or reversed.</p> <p>6. Every disposition by which the donee or the legatee is charged to preserve for or to return to a third person is null; though a disposition by which a third person is called to take the gift in case the donee does not take it is valid; and so is a disposition by which the usufruct is given to one and the naked'property to another.</p> <p>7. The intention of the testator must principally be endeavored to be ascertained without departing from the proper signification of the terms of the testament, and same must be understood in the sense in which it can have effect rather than that in which it can have none. The intention of the testator must prevail over the grammatical meaning of the words employed in tlie testament, if from other dispositions contained therein or other words employed, it is manifest that he had another thought than that the terms employed in a particular disposition would otherwise convey</p> <p>8. “Legacies to pious uses ” are those which are destined to some work of piety, or object of charity, and are highly favored by the law, on account of their motives for sacred uses and their advantage to the public weal.</p>

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

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

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

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

Beattie, J. Every court has the power to correct its minutes so as to conform to the facts, and such corrections can ho made after appeal taken. 31 Ann. 388, 407, 557; 32 Ann. 1229; 33 Ann. 135; 34 Ann. 370; 35 Ann. 852. -A party who is brought up for sentence five days after conviction, is not entitled to further delay to prepare and file a motion for new trial.

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

Young, J. 1. Heirs who sue for the nullity of a testament and the reduction of an excessive donation, are not required to make a tender of what they had received before bringing their suit. 33 Ann. 749; 36 Ann. 236 ; 33 Ann, 773; 34 Ann, 1017; Sue. E. Commagere, Ho. 9532. •2.

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

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

Court, Parish of Ouachita. Eirst— Intervenors most take the case as they Rod it., and cannot object to the manner in ■which the suit is hronght, 20 Ann, 174; 19 L. 155; 4 N. S. 487 ; 8 R. 123; 21 Ann. 118 ; S7 Ann. 239. Second — -To enforce a claim for paraphernal funds against the father, inherited by a child from a deceased mother, neither a tutorship nor settlement of tutorship is necessary. 28 Ann. 830; 31 Ann.’ 533.

<p>APPEAL from the Criminal District Court for the Parish of Orleans, Baker, J.</p> <p>1. A dying declaration made under an immediate sense of impending dissolution is admissible in evidence. 30 Ann. 362 j 31 Ann. 95; 32 Ann. 1086; Wharton Cr. Ev. § 281.</p> <p>2.. There is no law malting it necessary for the dying man to say that he believes he will immediately die, as a condition precedent to the validity of his declaration as evidence it is sufficient if sucli belief is established by his actions and the surrounding circumstances. Wharton Cr. Ev. §§282, 284.</p> <p>Declarations by the person whose death is the subject of investigation concerning the cause of death or its attendant circumstances, are admissible; provided, the court be satisfied that such declarations were made in solemn contemplation of immediately approaching death. Best Ev. § 505, n. 1; 1 G-reenl. Ev. § 156, et seq.; Whar. Horn. §§ 742-775; State vs. Cornish, 5 Harr. (Del.) 502; Bull vs. Com., 14 G-rat. (¡13; Hill vs. State, 41 Geo. 484; Dixon vs. State, 13 Ela. 636; State vs. Simon, 50 Mo. 370; People vs. Hogdon, 55 Cal. 72; Sullivan vs. Com., 93 Pa. St. 284, 296; State vs. Patterson, 45 Yt. 308; West vs. State, 7 Tex. Ct. App. 150.</p> <p>While it rests with the court to decide on the admissibility of a statement offered as a dying declaration, a strictly legal discretion must be exorcised; and if it decide for the admission of the declaration, it must be for one, or both, of two reasons:</p> <p>First. That the declarant had expressly stated his own sense of his immediately approaching death; or,</p> <p>Second. That from the testimony it is apparent that declarant must have been assured of such impending dissolution.</p> <p>1 Greenl. Ev. § 158; 1 East P. C. 354 . 1 Denis C. C. 1; Box vs. Yan Butchell, 3 Carr. & P, 493; 2 Parker C. B. 235; Bex vs. Pike, 3 Carr. & P. 598; Bex vs. Hucks, 1 Stark H. P. C. 523; 1 Phill. Ev. 235, 85; Carr. Supp, 232, 1 Arch. 449; Whar. Cr. Ev. §§ 276-281, 284; Best Ev. p. 485; Com. vs. Cooper, 5 All. 495; Montgomery vs. State, 11 Ohio, 424: Morgan vs. State, 31 l'nd. 193; People vs. Grunzig, I Parker C. C. 299; Brakefield vs. State, 1 Sueed, 215; People vs. Perry, 8 Abb (H. Y.) Prac. H. S. 27, 34; .Lewis vs. State, 9 Sm. & M. (Miss.) 115; State vs. Trivas, 32 Ann. 1086; State vs. Spencer, 30 Ann. 362; State vs. Molisse, 36 Ann. 920.</p> <p>The decision of the trial court on the matter of the admission of a statement offered as a dying declaration is proper subject for review. Whar. Cr. Ev. § 298, Com. vs. Dunan, 128 Mass. 422; Sullivan vs. Com., 93 Pa. St. 284; Donnelly vs. State, 2 Dutch. 463, 601 ; State vs. Trivas, 32 Ann. 1086.</p>

<p>APPEAL from the Sixth District Court, Parish of Morehouse. Bussey, J.</p>

JúlMs, J., to whom the case was referred. Where the administrator has filed his tableau and account, any creditor not recognized therein has a right to sue the succession that owes him and have his claim recognized by judgment. 10 Ann. 224; 3 Ann. 407: 5 II. 270; O. I*. 984-G; 19 L. 441; 7 Ann. 367; 5 Arm. 709; 23 Ann. 102; 28 Ann. 322; 2 Ef. S. 659; 5 ET. S. 218; 6 2S. S. 450; 1st Bob. 389-404; 3B. 264; 9 Ann. 500.

Holstecul, Special Judge. 1. The special judge ordered a new trial, ex officio, of the exception which had been passed upon by his predecessor, a special judge, and tried the exception. Plaintiff retained bill. Courts have the legal right to order new trials, ex officio, and the exorcise of this right is in their discretion. C. P. 5-17; H. D. P. 987, Ko. 7; 10 Ann. 766. 2.

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

<p>APPEAL from the Sixth District Court, Parish of Morehouse.. Dunn, judge ad hoc.</p> <p>1.Good faith is essential in a person pleading prescription of ten years to real estate,, under a title. C, C. 5479.</p> <p>2.A judgment is not prescribed till ten years after the date of the adjournment of thetorm of court wherein the judgment is rendered. Page 555; 29 Ann. 518; 35 Ann. 285.</p> <p>3.Service of citation on one obligor in solido stops prescription against tho other obligors insólido, or the heirs of such obligors. O. 0. 3552 ; 29 Ann.298; 26 Ann. 60S; 30 Ann-498.</p> <p>4.A judgment of separation of property is null, if the wife does not pursue her husband’s-property by an uninterrupted suit to collect her debt, till it is collected or all of hiarneans are exhausted. C. C, 3428; 34 Arm. 690; 27 Ann. 193; 28 Ann. 151, 346.</p> <p>5.An act of giving in payment from a husband to his wife must be an authentic act. C - C. 2428.</p> <p>6.When a fraudulent simulation is made, and all of the debtor’s creditors are afraid or unwilling to go to the expense and trouble of procuring the evidence and instituting and prosecuting a suit in declaration of simulation, the creditor who goes to this expense- and trouble and succeeds in unveiling the simulation, and having the property decreed the property of his debtor, is entitled to be paid out of tho proceeds of such property totlio prejudices of all creditors who failed to bring such a suit. 9 R. 29; 8 Ann. 453.</p> <p>7.One cannot claim by reconvention what one is estopped from demanding in a direct action.</p> <p>8.In. a suit in declaration of simulation where it is shown that no money passed, the transaction will be annulled. 1 Ann. 42; 10 Ann. 691; 12 Ama. 666.</p>

Biehwrdson, J. In order that a party may be held bound by a judgment, it is necessary: 1st. That he should have been sued and judgment prayed for against him. 2d. That judgment'should have been rendered actually and in terms against him. 3d. That such prayer should have been made, and such judgment rendered against him in the same quality in which he is sought to be bound under it. P. G. 0. 2286.

John the Baptist. Host, J. 1. Where an indiciment is laid before the grand jury without any names of witnesses being indorsed thereon, with the cox'oner’s inquest and the testimony taken thereat, and the grand jury, without summoning, swearing or examining any witnesses in the case, finds a true hill against the accused upon the testimony taken before the coroner, the indictment will be quashed as being found on illegal and insufficient proof. 14 Ann. 461; Archbold’s P. and…

<p>An indictment is not amenable to duplicity, because it charges one or more acts contemporaneously, germane in character, and altogether making one offense, although each of said acts constitutes in itself a minor offense of the same genus with the graver one charged.</p> <p>A verdict of guilty of shootieg with intent to kill is not responsive to the charge of shooting with intent to murder, nor does it meet any offence denounced by any statute of the State.</p> <p>Where the indictment is good bnt the verdict returned is unwarranted and illegal, and is. therefore, annulled and set aside, the accused is thereby not entitled to his discharge, but can be tried again under tbe same indictment.</p>

<p>1. A motion for new trial that is unaccompanied by any hill of exceptions, or evidence touching tho errors complained of, will not he examined.</p> <p>2. Unless the record discloses a bill of exceptions, motion in arrest of judgment, proper assignment of error, or error apxmrent on its face, the judgment will be affirmed.</p>

<p>The State is not entitled to prove, in support oí a charge of burglary of a bouse, and the larceny of a pocket-knife therein by the accused, another burglary at a different time and place and the larceny of a gold watch, to interpret the intent of the accused, in the commission of the former.</p>

<p>Samo principle as in preceding case.</p>

<p>Arricio 29 of the Constitution, which provides that every law of the General Assembly must embrace but one object, and must express the same in tbo title, is mandatory, and any enactment which violates it is null.</p> <p>Act lío. (>4 of 1884, entitled, “An act to provide for tho punishment of the offense and crime of malicious threatening or threats, the malicious sending of threatening letters or communications of malicious publications, or resorting to malicious acts, or threats of injury to person, reputation or property, though no valuable thing be demanded, or sought to be extorted,” embraces at least four separate objects, and is, therefore, unconstitutional, null and void.</p>

Blackman, J. 1. Excessive seizure is no ground of injunction against fieri facias. Bagley vs. Tate, 10 It. 45; Powell vs. Hayes, 31 Ann. 789; Burgess vs. G-oidy, 32 Ann. 1297; Gusman vs. EePoret, 33 Ann. 333. 2. Seizure of rented immovable property under fieri facias need not bo accompanied by notice to tenants. Carroll vs. Chaffe, 35 Ann 83; Pipkin vs. The Sheriff, 36 Ann. 782. 3.

Blachnan, J. 1. In a revocatory action it is not necessary to make the original debtor party to the suit, where the debt has been previously liquidated by judgment. He then becomes a party without interest. C. G. 1972 and 197C; 1 L. 503; 15 -L. 470; 1 JR.. 256 , 10 B. 399; 28 Ann, 928, 2. Hot only contracts but all acts done by the debtor in fraud of his creditors maybe avoided by the revocatory action.

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

Labauve, J. 1. The title to Act No. 84 of the Acts of 1878, is sufficient to sustain all the provisions of the act, either under the Constitution of 1868 or 1879. State vs. Bott, 31 Ann. 663; 37 Ann. 191; Cooley on Const Lim. pp. 144 (marg.) and 145; Blumenthal vs. Huerter, Western Rep. vol. 1, p. G34 (Sup. Ct, of 111.); Slack vs Ray, 26 Ann. 675; Police Juiy vs. Colomb, 20 Ann. 198; New Orleans vs. R R. Co., 27 Ann. 415; State vs. Henry, 15 Ann. 297; Art. 86.

A PPEAL from the Twenty-first District Court, Parish of Iberia. xPL Gates, J. A charge or fee on sale of marketable commodities imposed by a municipal corporrtion for purposes of revenue, are not legal. If imposed under the police power, for police purposes, they are legal. The police power of the State, as to exclusively local matters and subject to the restrictions of constitutional limitations, may be delegated by the General Assembly to the local authorities.

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

<p>There is no law to justify and no room or reason for the appointment of an administrator to a succession which owes no debts, and after the property has been put in the possession of the heirs who have accepted the same, thus winding up and finally settling' up the succession.</p> <p>If the existence of debts should be afterwards discovered, the creditors would have re course against the heirs, but not against the succession which has ceased to exist.</p>

A PPLICATION for Certiorari. 1. Relator in a case like the one at bar, cannot in his petitiou introduce new allegations or facts not appearing in tho record. The court will disregard such new allegations, and decide the case on the face of the papers. 32 Ann. 1222 ; 33 Aim. 256. 2.

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Bourges, judge ad hoe.</p>

Laudry. Hudspeth, J. 1. Nine months having elapsed — since the case had been transferred — a transfer was absolutely necessary under the terms of the law. 2. Notice prior to transfer was not necessary. The law being mandatory had to be obeyed. It was thus obeyed in the case to which reference is made in the body of the brief. Comt and suitors accepted the transfer in said case and not a word was said about the necessity or the most remote propriety of such a notice. 3.

<p>1. The dowry is given to the husband for him to enjoy the same so long as the marriage shall last. R. C. C. 2347.</p> <p>"With respect to the effects of the dowry, the Imsband is subject to all the obligations of the usufructuary. R. C. C. 2365, 549, 594.</p> <p>If the dowry consist of immovables, or of movables not valued by the marriage contract, the husband or his heirs may be compelled to restore the same at the dissolution of the marriage. R. C. C, 2367.</p> <p>2. Atthe dissolution of the marriage all effects which both husband and wife reciprocally possess, are presumed common effects, or gains, unless it be satisfactorily shown which of such effects they brought in marriage or which have been given them separately, or which they have respectively inherited.</p> <p>3. In order to charge the community for separate account of the husband, the proof must show, with reasonable certainty, that his property, or money, has been used for the benefit of the community.</p>

PPEAL from the First Justice’s Court, Sixth Ward, Parish of Iberia. Duleus, J. 1. Justices ot the peace have jurisdiction in all matters except succession or probate matters, where the amount in dispute does not exceed one hundred dollars. See State Constitution, Art 125: Code of Practice, Art. 1064. 2. They have jurisdiction for sums of money, whether debts, taxes or fines, provided they do not exceed one hundred dollars. O. P. Arts. 1063-1064. 3.

A PPEAL from the First District Court, Parish of Caddo, i. x Taylor, J. 1. Authentic acts make full proof against the parties, not only of their agreement, hut also of what passed before the notary. Succession of Tete, 7 Ann. 95. 2. In the absence ot a specific averment of error, fraud, ambiguity and the like, oral testimony is especially inadmissible to show that the consideration mentioned in an act of mortgage was not the true consideration.

Drew, J. 1. In fixing the compensation for the professional services of an attorney in any particular case, there are two considerations which will determine the judgment of this Court. One is the extent and kind of service, and the labor incident to its rendition ; the other is the ability of the party who is liable to pay. Breaux, Fenner & Hall vs. Francbe, 30 Ann. 338. 2.

<p>Failure of lessor to maintain the thing leased in a condition such as to servo the use for -which it is hired, and to make repairs necessary to that end, while it may give the lessee the right to claim a dissolution, or to claim damages resulting from sucli failure, does not confer upon him the right to continue to use and occupy the premises without compensation ; and if, notwithstanding a suit to dissolve, he fails to restore or offer to re store the thing leased to the lessor and continues to use and occupy it, he is liable for the rent during the term of such occupancy.</p> <p>■Where the lessee fails to pay the rent due under such circumstances, the writ of provisional seizure is a lawful remedy, and damages cannot be recovered for its issuance.</p>

Taylor, J. 1. Private property shall not be taken nor damaged for public purposes, without just and adequate compensation being first paid.” Constitution of the State of Louisiana, art. 156, U. C. 497, 2628, 2629. 2.

\ PPEAL from the Second District Court, Parish of Bossier. Drew, J. 1. Police juries may be prohibited by a writ of injunction from obstructing any stream susceptible of navigation. Ingram vs. Police Jury, 20 Ann. 226. 2. Police juries have no power to construct! public levees. The law gives them simply the management and control of completed public levees. Acts 88 of 1880; 104 of 1882; 84 of 1884. 3.

Taylor, J. 1. An administrator may urge any defen.se lie has, whether by general depial, confession and avoidance, or peremptory exception. 111. 533; 5 R. 123; 3 Ann. 223; 6 Ann 54. 2. The petition must contain a clear and concise statement of the object of the demand as well as the nature of his title or the cause of action on which it is founded. C. P., 172* Pickett vs. Vance, 14 Ann. 668.

<p>1. "When a community is unliquidated and owes debts, the administration of tbe estate of tbe husband involves that of tbe community, and tbe community property may be validly sold by tbe administrator of the husband’s succession-for tbe payment of community debts.</p> <p>2. In case of sale by an administrator to pay debts, rules applicable to alienation of minor’s property do nob apply, and citation to heirs is unnecessary.</p>

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

Taylor, J. 1.An action for the revendioation of real property is properly brought before the court ' having jurisdiction over the property. C. P. art. 163 ; 0. 0. 56. 2.Absent defendants in such an action may be represented by a curator ad hoc. 6 Ann. 048, 3.It the absent defendant is not a necessary party, the suit should not be dismissed as to other defendants who have been cited and have not pleaded to the jurisdiction.

Pierson, J. Evidence which tends to show the intention of the parties, and to show the real consideration in a contract of sale, is clearly admissible. Although the vendor intended to defraud his creditors, if the real vendee was not a party to such fraud, the sale, as to him, cannot be annulled. 26 Ann. 467; 34 Ann. 883; ID L. 594.

Taylor, J. 1.Where minor heirs claim the property of their ancestor, for alleged illegalities in the sale thereof, they must, as a condition precedent to suit, return or offer to return the purchase price of the property which enured to their benefit by going to paya debt due by such ancestor. 21 Ann. 383, 425; 24 Ann. 324; 26 Ann. 234; 28 Ann. 269; 30 Ann. 174, 891, 1232 ; 3 Ann. 121. 2.All irregularities and informalities connected with or growing out of any public sale…

A PPEAL from the First District Court, Parish of Caddo. Taylor, J. 1. In order to put the debtor in default, the demand that the contract shall be carried into effect must be made either by suit, in writing, by a notarial protest, or in presence of two competent witnesses C. O. art. 1911; 30 Ann. 264; 37 Ann. 659. 2. The husband, who was agent of his wife, is not a competent witness for her or her co-defendants, all being members of the same firm and having a common interest.

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

<p>APPEAL from the Second District Court, Parish of Bienville. Brew, J.</p>

A PPEAL from the First District Court, Parish of Caddo. Ai. Hieles, J. Although the contract be either not commutative, or, if commutative, the reciprocal obligations are not to be performed, at the same time, yet the party wishing to put the othor in default must be himself ready, and must offer to receive the performance at the time and place stipulated in the contract, or implied from the nature of the act to be done, etc, (J. 0. 1914, 1933.

<p>Parol evidence is inadmissible to prove tlie pendency of an indictment in a court of record.A copy of tbe indictment and the minutes of the court allowing its presentment and filing would be the best evidence of the fact.</p>

<p>APPEAL from tlic Third District Court, Parish of Union. _ Young, J.</p>

<p>A juror wlio, when sworn on his vow dwe, says that from what he knows of the character of the accused he has a little prejudice against him, but that this feeling can, in no manner, affect his verdict and that he will be governed solely by the law and the evidence, is not incompetent.</p> <p>Where the mortal blow is given in one parish, bnt death ensues in another, the crime may be prosecuted in either parish, and it is not essential to the validity of the indictment in such case-that said facts should be averred therein. The crime may be charged to have been committed in the parish where the bill is found.</p> <p>Where a person, after being wounded, sends for a minister and declares to him that he expects to die, lias no hope of recovery and continues to speak in this strain till his death, the condition of mind prerequisite to making a valid dying declaration, is sufficiently proved.</p>

<p>The rule that the jury is bound to accept and apply the law as laid down by the judge, and that it cannot disregard it without violating its oath and duty is reaffirmed; and it is not error to refuse a charge “that it* the jury cannot conscientiously believe that the judge has charged the law correctly, they do not violate their oath in disregarding it.” Such a principle would utterly emasculate and annul the rule.</p> <p>It is not essential that the violence inflicted by the defendant should have been the sole cause of the death¡ but if it hastened the termination of life, or really contributed, me* diately.or immediately, to the death in a degree sufficient to be a clear contributing cause, that is sufficient</p>

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

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

Young, J. The tax title pleaded by defendants is void for the following reasons: 1st, There was no sufficient description of the property. B. S. §§ 3266, 3272; Act 42 of 1871, sec, 32; Bur. 330-1; Blk on Tax Titles, pp. 136,137 (a) 148; 13 L. 210; 6 Ann. 542; 8 Ann. 19 ; 9 Ann. 540 ; 32 Ann. 235; 33 Ann. 556,1164; 37 Ann. 61. 2d. The rolls were not signed and sworn to by the tax collectors and board of assessors, as required hy law.

A PPEAL from the Tenth District Court, Parish of Bed Biver. A Hall, J. i. A partial history of this case may he found in the following opinions of this Court, viz: 32 Aun. 141; 34 Ann. 423; 35 Aim. 281. II. Of the exception of no cause of action.

<p>A pPEAL from the First City Court of New Orleans. jLJl. Boeier, J.</p>

<p>Voorhies, J. PPEAL from the Second City Court of New Orleans.</p>

<p>In .this, suit for license on the business of “ selling at retail, ” the defendant- is described as “conducting the business of butcher in the Hinth Street Market, whose receipts exceed $1000.” Objection to tliis-variance cannot ayail, in absence of any note of -evidence in , the transcript, because we Ifnow that butchers in public markets do sell meats at retail, and it may have been proved that defendant followed such a business.</p> <p>A butcher, in so far as he slaughters and dresses animals, may possibly be classed as a la"borer or mechanic., "but as such brandies of his business cannot lawfully bo pursued in the public markets of New Orleans, and aa w© have no note of the evidence received below, we cannot apply the exemption invoked under art. 206 of the Constitution.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J. The spirit of our legislation is to lend every facility to examine into the conduct of administrators, and technical objections opposed to such investigation are entitled to little favor. 4 Ann. 123; 36 Ann. 416.

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

Young, J. 1.Where witnesses are sequestered by order of court, and the order is disobeyed by one of the witnesses who had been warned by the sheriff not to come into court, and who was fully cognizant of the order, it is discretionary with the court a qua to exclude the disobedient witness’s testimony, particularly when it does not appear that his evidence was material to the prisoner’s defense. 36 Ann. 149; 34 Ann. 383; 15 Ann. 79; Arch- • bold’s Crim.

Houston, J. ' The separation of witnesses is subject to the discretion of the trial judge, who may order the defendant to withdraw, when the case has been closed as to him, and when ho is to be a witness as to the issues between plaintiff and the intervenors, particularly when the defendant makes no objection, which is urged solely by counsel for the intervenors. State vs. Harrison, 38 Ann.

<p>The law authorizes oppositions to accounts rendered by succession representatives to recognized heirs, ordered to be put in possession of the estate.</p> <p>Such oppositions may be made either by the heirs themselves or “other claimants,” under the express provisions of the Code of Practice.</p> <p>The court before which the succession proceedings have been instituted Is seized of jurisdiction from the inception to the terjninationjthoreoi' and is competent to pass upon such oppositions.</p> <p>It appearing from the unambiguous language of a written compromise made the basis of a judgment, that the terms thereof did not embrace the thing demanded in a subsequent suit, the plea of res judicata is overruled.</p> <p>Amount of attorney’s foe fixed according to the circumstances of a particular case.</p>

<p>The testamentary executor of the will of a deoedent, who has been judicially recognized, and who has qualified as such, and who is also universal legatee under the will, cannot at his option shift his position without the sanction or authorization of the court and assume or exercise rights of ownership of the property of the succession.</p> <p>Hence a sale of succession property made by such executor under such circumstances, transfers nothing and no rights to the purchaser, and is null and void.</p> <p>The holder of the property under such a title must account for rents and revenues of the samé during the whole time of liis possession.</p>

<p>Syllabus — Same as in case No. 9728, in the maiu action.</p> <p>Pending an action involving the title of immovable property, which is rented under a pro* vious contract of lease, tbe tenant, from whom the rents are adversely claimed by the parties, may be authorized to deposit the same aa they mature, subject to the final decision of the cause, in a bank selected as judicial depository.</p>

. Delivery of the thing pledged is essential to the validity of the contract of pledge. What constitutes delivery depends on the nature of tho object pledged and on tbe circumstances ot the case. The pledgee need not always have manual corporeal possession of the thing pledged. A third person may be detainer of it by agreement between tbe partios. C. C. 3162. The pledgor may have possession of the thing pledged for account of the pledgee.

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

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

Balter, J. 1.If an officer is not competent to administer an oath in a criminal trial, objections should have been made at the time witnesses or jurors were offered to be sworn by such officer. An accused will not be permitted to take the chances of an acquittal and failing of success secure a new trial by deferring action as to such officer’s incompetency until after conviction. 36Ann.20G; 37Ann.215; 3G Ann.864; Whar. Cr.

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

<p>A PPEAL from the Twenty-fifth District. Court, Parish of Vermilion. Clegg, J.</p>

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

<p>Held, that under the Section 6 of the State license law, A.ct 4, 2d Ex. Sees, of 1881, a retail dealer whose ordinary license would be five dollars, but who combines with said business the sale of liquors in less quantities than one pint, can only be required to pay a total license of $50, and not $55 as claimed by the parish.</p>

Monroe, J. 1.Where the heirs of the drawer of promissory notes, secured by mortgage and vendor’s privilege, obtain from the holder renewals and extensions without the vendor’s knowledge or participation, they cannot when sued on the notes, claim a diminution of the amount evidenced thereby, because of an alleged deficiency in the quantity of the land sold. Nor can they call their vendor a third person as to the renewals and extensions in warranty.

<p>The charge that a plaintiff sues in two capacities that are inconsistent with each other, should be talren advantage by exception. It is too late after judgment and by motion for a new trial.</p> <p>An acknowledged account is barred only by (he prescription of ten years.</p>

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

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

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

<p>Under a- contract -wherein a firm or commercial partnership undertakes to furnish the capital required fco prosecute a designated enterprise to a third person named, -who agrees to manage and control same through his influence, and the net profits thereof are to be equally divided, the expense thereof is upon the latter, unless the contrary is stipulated or agreed upon.</p>

<p>Where the execution of a judgment of an inferior court is sought to be prevented by means of a writ of prohibition on the ground of the want of jurisdiction in the court rendering the judgment, the circumstance that such court had overruled the plea to its jurisdic-‘ tion, and assumed jurisdiction of the cause, does not debar this Court from reviewing the question of said court’s jurisdiction and its ruling thereon. In fact, before that court took jurisdiction of the cause, an application to this Court for its interference would be premature.</p> <p>The object or purpose of a suit or the matter in dispute should be determined not by tlie prayer of the petition alone, but from tho body of the petition in conjunction with the prayer.</p> <p>13ven if the prayer does not ask in plain terms the decree that tho allegations of the petition would clearly warrant, such omission will not prejudice the petitioner’s right to recover on the averments of his petition, where they are sufficient to sustain the proper action and decree, and there is a prayer for general relief.</p>

<p>Mandamus will not lie to compel a judge of tlie district court to grant an injunction which lie has refused,when the case for injunction does not fall within any specific provision of law, but is based only on the general provision of Article 303, O. C., authorizing judges to grant injunctions when necessary “to prevent any injurious act.” Such applications are addressed to the discretion of the judge, which is not subject to control under our supervisory jurisdiction.</p>

<p>Qn Application for Habeas Corpus, for the Privilege of Bail.</p>

<p>On Application for Bail by Writ of Habeas Corpus.</p>

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

<p>Where a court acts clearly within the bounds of its jurisdiction, and no vital defects or irregularities mark the proceedings in a case before it, this Court will not, under its supervisory powers, annul the judgment rendered in such case though it may he contrary to the law and the evidence.</p> <p>Inferior courts should, as a rule, respect the decisions of appellate courts and be guided by their authority; but though it may be charged that the judge of an inferior court has refused to be governed by the decree of the appellate court, on an appeal from one of his own judgments in his (the inferior judge’s) decisions in other like cases before him, this Court is without power to compel him to conform his action and conclusions to the views of such higher tribunal.</p>

<p>k PPLICATION l'or Mandamus.</p>

Homan, J. ]. An appeal in a criminal case will be dismissed, proprio motu when made returnable on appellant’s suggestion at an improper time and place. 38 Arm. 34, 42, 363; 36 Ann. 865 ; 35 Ann. 980; 32 Ann. 692, 542; 27 Ann. 540. 2. “Violently” is equivalent to “forcible,” and conveys with technical accuracy the idea of force as involved in the crime of rape.

Houston, J. 1. Carriers of passengers liavo the right to make reasonable rules and regulations for the management of their business. 2. The rule, requiring the blue coupon to remain on the strip of tickets until detached-by the collector at Napoleon Avenue, under the double system of fare and tjbo changing of all Lhe drivers, where the second fare is collected, is not only reasonable but is absolutely necessary to secure the collection of the second fare. 3.

A PPEAL from the Civil District Court for the Parish of Orleans. xJl Bightor, J. 1. Title to real estate can neither be created or destroyed by parol evidence. 4 Martin, 475; 9 Hob, 414; 4 Ann. 229; 12 Ann. 54; 26 Ann. 445; 27 Ann. 198. 2.

<p>A decree of this Court reversing a judgment of the district court rejecting all evidence in support of a party’s demand, on the ground that his petition set forth no cause of action, has only tho effect of deciding that if all the averments of said petition are proved, the party is entitled to some relief.</p> <p>Where, after trial on the merits, certain important allegations are not proved, the case is in no manner affected by our former decree, but stands on its intrinsic merits</p> <p>Where defendant in executory process enjoins the enforcement or negotiable mortgage notes held by a third person who acquired before maturity, on the grounds of payment and compensation between the maker and the original payee of the notes, alleging simulation and fraud in the title of the transferee, failure to establish such simulation and fraud destroys the foundation of the case.</p> <p>It is an elementary principle of the law of negotiable instruments that such equities subsisting between the original parties cannot be set up against a bona fide transferee for value before maturity,</p> <p>Where the notes were taken in payment of a debt, knowledge by tbe transí eree of the actual insolvency of the transferor, even if proved, could give rise to no relief, except under a revocatory action, of which the petition in this case wants tbe essential features in the allegations, the prayer and in the parties made.</p>

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

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

Balcer, J. ON MOTION TO DISMISS. A transcript of appeal in criminal cases must he filed within ten clays after granting the order of appeal. The Code of Practice does not regulate criminal proceedings. Article 589 evidently refers to civil matters. 31 Ann. 1171; 31 Ann. 805; 31 Ann. 483; 6 Ann. 653; 13 Ann. 491; 14 Ann. 469; 36 Ann. 310; 37 Ann. 62; 32 Ann. 1268; Sec. 4, Act 30 of 1878. ON MERITS. 1.

A PPEAL from the Civil District Court, for the Parish of Orleans, x JL BigMor, J. 1. Where an insurer knows that the premises may bo used for storing cotton, and inserts this written clause: “It is understood that when the above building is used as a warehouse the rate will be changed,” the storing of cotton will not avoid or forfeit the policy.

<p>APPEAL from the Civil District Court for the Parish of Orleans. 1 T'issot, J.</p>

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

<p>A PPEAL from the T wen tied) District Court, Parish of Assumption. LX. Beattie, J.</p>

<p>APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.</p> <p>1. “If the offense be statutory it is indispensable to describe it, if not in the letter, at least in the spirit of the statute oreating the offense. The substance must be rigidly given.” Yoorhies Crim. Jur. p. 388, no. 69, 70, 72; same book. p. 387, no. 67^ ,68; Wharton Crim. Prac. and Plead (8feh ed.) §§ 152,153, 154,163, 166; 5 Ann. 324: Bishop Grim. Proc. § 360 and notes, § 362 and notes, §§ 268, 277.</p> <p>2. An information framed under See. 793, R. S. of Louisiana, whi«b does not aver that the assault was made with felonious intent, or that the intent was to feloniously kill-and slay, is defective and bad for uncertainty, because in snob cases the intent forms the gist of the offense and must be specially averred. Wharton’s Crim. Law (8th ed.), Yol. 1, §641; 36 Ann. 99; Yooihies Crim. Jur. p. 388, No. 72; Wharton’s Precedents of Ind. §242; Bish. C. P. §556.'</p> <p>3. An information framed unfer said Sec. 793, which does nob allege that the party assaulted was a “person in the peace of the State then being,” is fatally defective. The law in said section intended to deal with unprovoked assaults upon peaceable and unprovoking persons; and although not material to be averred in murder or manslaughter cases, is of the essence of the offense created and punished by Sec. 703 of It. S. of Louisiana. Voor. Grim. Jur. p. 144, p. 387, no. 07, 68: also p. 388, no. 69, 72; Whar. Or. P. and P. §§ 152, 153. 154. 166: Bisb. C. P. §§268, 556.</p>

Balter, J. Where the defense denounced by the statute consists in wilfully or maliciously setting fire to and burning a building, the indictment may charge the burning to have been done “feloniously, unlawfully and maliciously.” It is permissible, hut not essential, to set out that the criminal act was both wilful and malicious, 1 Eish. C. Proc. §§ 436, 434, 558; Bish. on Stat. Crimes, §244; Whart. Or. P. and P. §§228,362, 163.

<p>The legality and constitutionality of the Private Market Ordinance of the City of Kew Orleans, Uo. 4798, A. S., have been hitherto fully affirmed by this Court.</p> <p>Under Article 86 of the Constitution, prosecutions for the violation of said ordinance may be properly carried on in the name of the State.</p>

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