Volume 39 — Louisiana Annual Reports

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

<p>Where in a motion for an appeal the return day is left in blank and thejudge on his own mo tion fills up the blank with an illegal return day, the irregularity will not he imputed to the fault of the appellant.</p> <p>State courts have the right to examine collaterally into the alleged defects of judgment rendered by United States courts of original and limited jurisdiction, when such judgments are made the basis of litigants’ titles But the inquiry must he restricted to an examination to ascertain whether the court which rendered the judgment had jurisdiction and whether it exercised that jurisdiction according to the forms of proceeding established by law.</p> <p>The inquiry into the facts must he restricted to test the verity of allegations as to domicile or citizenship, necessary to give jurisdiction. "Want of jurisdiction may he shown either as to the subject-matter or the person, or in proceedings m rem as to the thing. 18 "Wallace, 457, Thompson vs. Whitman.</p> <p>2To inquiry can he made as to the correctness of the judgment upon the merits.</p> <p>In dealing with such questions, arising out of proceedings instituted under the Act of Congress, providing for the confiscation of property used for insurrectionary purposes, State courts muse be guided by the rules of Common law as expounded by the Supreme Court of the United States, and not by local laws, unless the latter harmonize with Federal jurisprudence.</p> <p>In a Common law proceeding in rem for the condemnation of property seized under the statute, the monition published is a citation on all interested persons, who are thus made parties to the action — and after a default there is no necessity for a jury trial. 11 Wallace, 303; 20 Wallace, 110. Alien enemies have the right to appear and defend their rights in a court of justice when cited therein'. 93 U. S., 283.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. ZA Lamms, J. A judgment for possession of premises leased can he extinguished by agreement. The' agreement is a new obligation The obligation to deliver the premises resulting from the judgment is extinguished by the substitution of an obligation to pay the rent due, and remain in the premises to the end of the lease. C. C. 2181, 2190, 2180.

A PPEAL from the Twenty-second District; Court, Parish of St, XX James. Duffel, J. In the absence of record that the defendant requested the court to assign counsel, or applied for a continuance on the ground of the absence of counsel of record, the mere fact that the trial proceeded without the aid of counsel to defendant, does not constitute error. 36 Ann. 91.

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

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

Sail, J. All judgments rendered, signed and recorded during the same term of the district coum in the country parishes take effect as judgments, and operate as judicial mortgages, from the last day of the term of the court at which they are rendered. C. P. 555 ; 29 Ami. 518 ; 35 Ann. 285.

A PPEAL from t.lie Civil District Court for the Parish of Orleans. Monroe, J. 1. In partitions by judicial sale, any one interested in giving or receiving a clear title, or in having the proceeds distributed, may have the property freed from incumbrances, and the mortgages referred to proceeds. 35 Ann. 528, 531. 2. By such sale the property passes disincumbered and mortgages are transferred to proceeds, 37 Ann. 321; 28 Ann. 714. 3.

Thirteenth District Court, Parish of St. Landry. Hudspeth, J. 1 A party who accepts the quality of universal legatee and that of executor conferred by will, probates the will, and enters into possession of the property, and “uses and treats it as his own;” ho cannot long afterwards retract such acceptance, or set up the nullity of the will or its probate or the proceedings carried thereunder. 28 Ann. 697; 31 Ann. 552; 18 Ann. 141; 7 Ann. 617; 4 L. 61; 15 Ann. 529; 24 Ann.…

Rig]dor, J. 1. A party to whom goods are sold will be held as principal debtor. 2. The fact of his assumption of a commission for the vendor in an incidental employment-to buy a certain product will not affect his standing or the nature of his responsibility. Ewell’s Evans on Agency, pp. 7-8. 3. New issues cannot be made by subsequent or supplemental answer introducing an inconsistent defense. Cross on Pleading, 67.

Young, J. 1. To sustain a sequestration, the question is not what the friends and neighbors of defendant thought or believed he would do, but what had the plaintiff a right to believe the defendant was doing and would continue to do, from his own acts, declarations and tacit admissions.

P. Leivis, Judge ad hoe. 1. The matter in dispute is the existence, interpretation and effect of an alleged judgmenin reconvention for $5400, the right of Duncan to have the rules of compensation applied to it, and the right of plaintiff to enjoin with reference to that judgment.

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

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

<p>The best evidence must bo produced.</p> <p>A copy of a copy is not admissible in evidence unless the original is alloged and proven to bo lost, and that a copy thereof cannot be obtained. C. C. 2268, 2269, 2270, 2279, 2280 ; C N. S. 208; 2 Ann. 998; fi Ann. G83; 7N. S. 550; 5 N. S. 175; 13 L. 536.</p>

<p>Proof that there has been a decrease in the values of buildings in the immediate vicinity of that, whose assessment is sought to be reduced by suit, and also a diminution in the rents of such property in the same locality, and proof likewise of extravagance in the construction of the building, so that such cost is not a proper test of its value when assessed, will justify a reduction of the assessment.</p>

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

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

Monroe, J. When a person is in possession of real estate under an act, not void on its face, the question of fraud and simulation cannot be inquired into collaterally by commencing with a seizure, but the seizing creditor must resort to the revocatory action.

Tissot, J. The liquidation and adjudication to the surviving parent of the shares of the minors in the community may render a settlement of tutorship useless and unnecessary. In such cases there is no prescription of four oi ten years. 5 Ann. 598; 21 Ann. 643; 23 Ann. 17; 25 Ann. 612; 30 Ann. 673; 34 Ann. 1041; 37 Ann, 121; 38 Ann. The inscription of the liquidation suffices. 35 Ann. 943.

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

<p>The Supreme Conrt oannot and will not exercise jurisdiction in all cases uot excepted by tbe Constitution, unless it appears affirmatively from' the pleadings that tbe matter in dispute involves an amount exceeding two thousand dolíais.</p> <p>The burden of proof is not on the appellee to show want of jurisdiction, but on the appellant to prove the existence of jurisdiction, as deñued in the Constitution.</p> <p>Iu an action looking to the fixing of "boundary lines, it is incumbent- on the appellant to show that an amount is therein contested exceeding two thousand dollars, in order lo maintain his appeal here.</p>

A PPEAL from the Civil District Court for tlie Parish of Orleans. JljL Jiightor, J. 1. Sections 37 and 38, of Act 42 of 1871, unambiguously make tax liens and privileges imprescriptible, 2. The provisions ol this law. touching the imprescriptibility of tax liens and privileges created under it, have never been repealed. 3.

Monroe, J. A. J. Where an injunction against the mayor and the council of the city restrains tbe signing and promulgation of an ordinance and also the enforcement of it, it may bo dissolved so far as it restrains the signing and promulgation, and maintained so far as it prevents the enforcement or operation of the ordinance. 2.

PPLICATION for Certiorari and Prohibition. L 1. The writ of prohibition issues when one court takes jurisdiction of a cause that belongs to another; the writ of certiorari issues in unappealable oases to test the validity of judicial proceedings. C. P. Art. 84G and 855. 2. Civil courts may issue injunctions against the enforcement of penal laws. High on Injunction ; 24 Ann 86; 3 Woods, 222. 3.

<p>Suit instituted under the original jurisdiction of the Supreme Court, by virtue of Article 200 of the Constitution of this State, by the Attorney General, on the information of fifty citizens and tax-payers, for the removal of the defendant from office, for nou-feas1 anee and mal-feasance, favoritism and oppression in office, gross misconduct and incompetency.</p> <p>Reid by the Court:</p> <p>That the charges of mal-feasance and gross misconduct have been fully established against the defendant by tbe evidence.</p> <p>That a district judge has no right or authority whatever to employ experts at the expense of litigants, or of a succession, or of a minor, to examine and report on the pleadings or evidence in any record, when such examination is to be made by the judge himself.</p> <p>That the allowance of the fees to such experts made by this defendant, in the matter of tbe succession of Quiazzaro, was not only an act of mal-feasance on tb© part of the judge, but it was also an act of spoliation.</p> <p>That the minutes oí all courts of record throughout the civilized world are uniformly recognized as evidence of the very highest rank, and never allowed to be contradicted by parol testimony, unless perhaps under an allegation of fraud or forgery. In our jurisprudence the minutes of courts have always been clothed with an authenticity which borders on sanctity.</p> <p>That tlie minutes of a court are in tlie nature of a citation and need not be offered in evidence, as they make proof of themselves.</p> <p>That it is unlawful and unwarranted for a judge to assume the personal administration of a fund belonging to litigants, or to a succession, or to a minor.</p> <p>That this defendant, having assumed such personal administration of the funds of the Quiazzaro Succession, has also assumed, in consequence, the burden of proving clearly that a proper and lawful use lias been made of those funds; that he has completely failed in such proof and accounting; that his acts in the premises show glaring malfeasance on his part.</p> <p>Duties of the minute clerk examined and defined.</p> <p>Strong condemnation by the Court of the customary omission of defendant to cause the minutes of his court to be read aloud by the clerk, and to be signed by himself.</p> <p>That it is not necessary, under Article 200 of the Constitution of this State, for the purpose of the removal of a district judge, that the non-feasance, or malfeasance, or gross misconduct charged, should, as a condition precedent, be proved to be criminal or corrupt-.</p> <p>Malfeasance defined.</p> <p>That it was the intention of the framers of the present Constitution of this btafceto leave the application of Article 200 to the sound and legal discretion of the Supreme Court; and that, by the decree of the latter, none but able, ^conscientious and irreproachable judges should be retained on the Bench in the State of Louisiana.</p> <p>Difference between the provisions of the Constitution of the United States and the preseut Constitution of the State of Louisiana, for the punishment of impeachable offences.</p>

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

Young, J. 1. When the crime prohibited by one statute is greater in degree and includes the crime punished by the other statute, the greater crime denounced in a single count necessarily embraces the prosecution of the lesser crime, for which, therefore, the accused may be convicted under the count. 35 Ann. 734; 6 Ann. 286. 2. The verdict, being “the finding of lay people,” need not be framed under the strict rules of pleading, or after any technical form.

A PPEAL from the Civil District Court for the Parish of Orleans. lüg'htor, J. 1. A lumping assessment, including “ money loaned on interest, all credits and all bills receivable for money loaned or advanced $175,000- — does not enable the tax collector to ascertain the tax due on any class or article of property, and is void.

John the Baptist. Host, J. Servitudes are divided into two classes: personal and real. O- C. 646. A personal servitude is oue established for the benefit of a person, such as usufruct, use, habitation and antichresis. A real servitude is one established on an estate for the benefit of another estate. Examples: right of drainage, right of pasturage, right of watering. C. O. 72J. Servitudes are continuous or discontinuous, apparent or uon-apparent.

Burgess, J. Due and proper diligence must be shown in order to obtain a continuance on the ground of the absence of a witness, and the judge a quo must use his discretion in such cases. 28 Ann. 40. The ruling of tho judge a quo on a motion for continuance in a criminal case involves both questions of law and fact, and cannot therefore he examined on appeal, because the jurisdiction of she appellate court in criminal cases is limited 1o questions of law alone. 23 Ann. 558.

Beattie, J. A plea of condonation admits the charge of adultery as true. The exception of reconciliation shall not avail where the wrong h repeated. C. O. 152-3-4. Positive or direct testimony is not neccessary to establish adultery. 16 Ann. 4.

Roman, J. 1.Any statement which is the natural or inseperable concomitant of the principal fact in controversy, is not within the meaning of hearsay, hut is an original and independent fact, admissible in proof of the issue. 1 G-renl. on Ev. Secs. 99,100. Where the probative force of the statement offered as partof the res gestae rests not on the credit of its maker but on the cogent influence of the circumstances under whifih it was uttered, it becomes original evidence.

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

<p>PPLICATION for Mandamus.</p>

<p>A transcript which is shown by the cleric’s entry, not to contain all the evidence which had been received and considered below, and which does not show that the appellant took the necessary steps to seenro and bring up a statement of facts, cannot sustain an appeal.</p> <p>An assignment of errors, which does not assign any error of law, appearing on the face of the record, hut specifies only errors of fact, does not’comply^with the requirements of the law.</p>

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

<p>Refusal of new trial will not "be disturbed when the grounds assigned consist of alleged irregularities in the course of the trial to which no exception was taken at the time of their occurrence.</p>

<p>An appeal will not be dismissed where the bond was furnished before the order of appeal was granted, for an amount corresponding with that fixed in the order.</p> <p>A married woman, separate in property, is properly authorized by the district judge to sell her paraphernal estate, when her husband is unable and fails to minister unto her necessities, and she has no other means of supporting herself.</p> <p>The refusal of the husband to give his sanction to such sale being unfounded, can lawfully be supplied by that of the judge.</p>

<p>The Supreme Court has no iurisdicfcion oi' an appeal taken by the State from a judgment quashing an information for an offense punishable by fine, or in default, by imprisonment or otherwise than at hard labor, as, in such a ease, no fine exceeding $300 can possibly bavebeen actually imposed, which is the constitutional requirement.</p>

<p>A sheriff is responsible for all loss or damage resulting from tbe malfeasance or gross misconduct of his deputy, but such malfeasance or misconduct of the deputy does not subject tbe sheriff to the punishment of removal or suspension from office, unless he has encouraged or sanctioned the delinquency of his deputy.</p> <p>The deputy himself can be punished for his delinquencies by line and imprisonment, and prohibited from acting in said capacity.</p>

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

<p>The Supreme Court has no jurisdiction over a tax suit, in which a suiu not exceeding $2000 is claimed, where the constitutionality or legality of the tax sued for is not put at issue, and where the question presented is one of procedure only.</p> <p>If the amount sued for exceeded $2000, the court would, as in ordinary similar cases, in which money is claimed, have jurisdiction over the question of procedure.</p>

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

JAvaudais, J. 1. “In matters of continuance great discretion is always vested in the trial judge, and his rulings thereon are not disturbed except in cases of glaring injustice.” State vs. Bord. 37 Ann. 457. 2. The facts of this case show that the application for a continuance was without merit. 3. The circumstances of this case are widely different from those stated in State vs Simpson, 38 Ann. 23. 4.

\ PPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J. The seller isbound to deliver and warrant thing sold. O C. 2475, 2476,2482,2511; 3L. 306; 6 B 506; 3 Ann. 327; 16 L. 185; 24 Ann. 108. Under C. O., Art. 2272: “ * * * The confirmation, ratification, or voluntary execution in due form * * * involves a renunciation of the means and exceptions that might be opposed to the act, * * ” The intention must he to ratify by the voluntary execution. 171 L. 286.

Tissoi, J. 1. The ordinance of September, 1885, changing the limits within which slaughter-houses could be lawfully carried on, was a lawful exercise of municipal authority. Cons. 248, 2. The slaughter-house of defendant, being outside of the legal limits, became unlawful, lienee a public nuisance, as well as a private nuisance, to those in proximity to whoso residences it was established. 3.

<p>APPEAL from tlie Twentieth District Court, Parish of Assumption. Knobloch, J.</p> <p>(«) When real estate is owned in indivisión by several persons, upon the undivided simio of one of whom a judicial mortgage is of record, and the whole property is leased by the joint owners by public act duly recorded, the seizure and sale of the encumbered interest does not dissolve the lease in so far as the other unencumbered interests aro concerned, and the tenant cannot be dispossessed of the unencumbered interests. The judicial mortgage and all rights under it must he restricted to the property of the debtor alone and cannot, in any possible manner, affect the property of third persons or any one holding under such third persons. R. G. O. Arts. 3278, 3279, 3282 and 3321; 12 Ann. 867 ; 28 Ann. 763 ; O. Ü. Arts. 2732 and 2733; TTeunen's Digest, vol. 2, p. 1365 ; 8N. S.,p. 336, 11 Ann. 95.</p> <p>(b) The purchaser at such sale is entitled only to joint possession with the lessees, who hold for the other joint owners. 23 Ann. 150 ; 33 Ann. 298.</p> <p>(c) A purchase)* of property at private sale, which property is under lease at the time, said lease being duly recorded, cannot legally take possession of the leased premises during the lease, audit he does, renders himself liable to an action in damages by the lessees. It. O. O. Aits. 2732 and 2733; 11 Ann. 95; IK. S. 264; 8K. S. 563.</p> <p>(d) All crops growing or gathered upon leased property, the product of the labor of the lessees, are the property of such lessees, and if taken possession of by the purchaser of suoh property at judicial sale thereof, under a foreclosure of mortgage or otherwise, renders him liable to the lessees for the highest, market value of such crops. 28 Ann. 763 ; 32 Ann. 201; Cooley on Torts, top page 433.</p> <p>(c) Every, at whatever of, man that causes damages to another obliges liim, by whose fault it happened, to repair it. R C. O. 2315.</p> <p>{/) All profits of which a person lias been deprived by the illegal acts of another, whether prospective or otherwise, are allowed at civil law when proved. G. O. Arts. 1933 and 1934; 10 Ann. 633; 3 L. 332; Sedgwick on the Measure of Damages, 7th edition, pp. 108-143.</p> <p>(#) Where an action for damages is tried by a jury they are peculiarly the judges of the measure of damages, and unless tlieir verdict is palpably wrong it will not be disturbed by the appellalo court. Hennen, vol. 1, p. 92 (b); 3 Ann. 670.</p> <p>(h) Every assertion of title to, or act of dominion over personal property inconsistent, the rights of the owner is in law a wrongful conversion, and proof of such acts is sufficient to establish suoh conversion. 2 Ann. 281,289.</p> <p>O') Every wrongful conversion of property of another constitutes the party so converting a trespasser, and renders him liable as suoh, the measure of damages to be determined by the fact, whether such acts were malicious or otherwise. 9 Ann. 490</p> <p>(j) The remedy in behalf of lessees prescribed by articles 2696, 2703 and 2704, of the R. O. O. is not exclusive, nor does it deprive the lessee of his action in certain cases against the party evicting him for the damage caused him, but the only penalty for failure to give the notice therein prescribed, is the loss of his remedy for damages against his lessor. 31 Ann. 71.</p> <p>(A*) When a defendant prays for (rial by jury in his answer, or subsequently, and the court so orders the trial, and the case is accordingly fixed for trial, itis too late on the morning of the trial, after the case lias been called for trial, for the defendant to waive the trial by jury thus ordered, and such jury trial cannot be thus waived unless the plaintiff consents, and contrary to his objections to such waiver. 2 M. 48; 10 Ann. 24.</p> <p>(0 The exception of no cause of acbian filed herein was properly overruled by the lower court. This is an action in damages, and arising out of a quasi offense committed by tbe defendant, and an action personal in its character, and could be brought by the plaintiffs. R. C. C. 2315: 6R. 38?; 9 Ann. 490; C- Part32; 27 Ann. G29; 28 Ann. 761.</p> <p>(tu) A party cannot ask for the dissolution of a contract and at the same time demand its specific performance, the one demand is repugnant to and inconsistent with the other. He cannot ask to dissolve a sale and at the same time demand the purchase price. 31 Ann. 73; Hennen, vol. 2, p. 1138II, (a) Hos. 2,12,13,23.</p> <p>(n) If the contract of lease is, by its nature, indivisible, then it cannot be divided for any purpose; it must be wholly enforced or wholly annulled and dissolved. 7 Ann. 612.</p> <p>(o) In all bi-latteral contracts, when reciprocal obligations are assumed, these obligations cannot be all enforced on the one side and not enforced at all against the other side. And if one of the contracting parties is released from the fulfillment of his obligations, the carrying out of wliicb was the very consideration for the obligations engaged to be performed by the other side, the latter party is likewise released. 10 L. 23 ; Hennen, vol. 1, p. 803. (e) Ho. 6; 3L Ann. 67; 1 Ann. 422.</p> <p>(/>) lb ofits, of which a person is illegally deprived by the act of another, are recoverable, of whatsoever nature or kind they may be, and any such profits proven to have been thus lost must be accorded.</p> <p>(q) Defendant’s demand in reconvention was properly disallowed, and all evidence offered to prove it properly rejected, because the allegations of said demand do not upon their face set forth any cause of action against plaintiffs, and because irrelevant and inadmissible under tbe pleadings, and not incidental to or necessarily connected with, or growing out of plaintiffs’demand. 2R.216;3R. 387 ; 9 Ann. 7 ; 14 Ann. 859 ; HR. 347; Hennen, vol. 2, p. 1173 (b) 14 Ann. 734.</p> <p>O') Interest at the legal rate properly runs from the date of wrongful taking, and even if it does not, the court should apply the rule of “ 7)e minimis non curat lex,” and should not, even if the judgment is amended in this small particular, throw the cost of appeal upon the appellee! Hennen, vol. 1, p. 99 ; 38 Ann. 347; 7 Ann. 116. 847 ; 38 Ann. 347, Sedgwick leading case on the measure of damages, p. 597.</p> <p>(*•) Ho question of partnership or partnership rights are involved in this case. The lessors were simply joint owners of the leased property.</p> <p>(/) Even should the Court hold the lease to have been dissolved, so far as the whole property was concerned, by the sale of the encumbered portion under the judicial mortgage, still the lessee cannot be held for anything in the nature of future rents, all obligations arising under and by virtue of the contract of lease are put at an end by the dissolution of the contract. 1 Ann. 421; 31 Ann. 70.</p> <p>00 The lease in this case was properly recorded in the office of the conveyances in the parish where the leased property is situated. R. C. ('. Arts. 2266, 2254,2245; 29 Aim. 116; 33 Ann. 1250.</p> <p>1st. The suit should have been dismissed on the exception of no cause of action, because plaintiffs having alleged that, as lessees, they had been evicted from the leased premises by defendant-, a third party, upon a certain claim of right to such property, which, as plaintiffs alleged, “ he claimed was his private property,” could not hold defendant responsible for the damages claimed to have been suffered by them, and could only pursue their rights, if at all, against their lessors, Gonzales & Co., and furthermore, having alleged in their petition that they had been dispossessed of the property leased, which they had held possession of under a lease “for more than one year,” plaintiffs have given to their suit the character of a possessory action which, as lessees, they have no right to institute. C. C. Art. 2703 (2673); Art. 2704 (2674); Art 2696 (2666); C- P. Art. 48; 2 La. 227; 23 Ann. 427; 31 Ann. 71; Marcadé, vol. 6, pp. 456, 457.</p> <p>2d. That the lease relied upon by plaintiffs, as having been entered into between them and the agricultural firm of Gonzales & Co., was in no- manner binding upon defendant, a third party, because the same was never recorded in the hook o f conveyances of the parish of Assumption, the only proper place where the registry of the same could affect or serve as a notice as to third persons. See 30 Ann. 437: 38 Ann. 1121; 9 Ann. 504; 5 Ann. 263.</p> <p>3d. That, even granting for the sake of argument, the lease declared upon by plaintiff’s was rocorded in the proper place to serve as notice to thiid persons, of its existence and inscription, nevertheless, the same was, in its nature, essentially indivisible and inca pable of existing except as a whole and in its entiiety; and that the seizure and sale by Dorcino Landry, a judgment creditor of Jean Gonzales, one of the members of the firm of Gonzales & Co., the lessees of plaintiff’s, of the undivided one-third of the plantation so leased under a judgment rendered and properly recorded in the Mortgage Office in the parish of Assumption, long prior to the execution of the lease to plaintiffs by Gonzales & Co., cut off and dissolved, in its entirety and as awhole, the lease under which plaintiffs claimed the possession and the right of possession to the property ; and that defendant, having purchased, at the sheriff’s sale made in the suit of Dorcino Landry vs, Jean Gonzales, the undivided third of said Jean Gonzales in the property, and immediately thereafter having purchased the remaining two undivided thirds of the same from the other two owners thereof, had the absolute right to enter into and take possession of the plantation as a whole, without incurring any liability whatever to plaintiffs by reason of such possession or otherwise. C. C. Art. 2823. (2794); 14 Ann. 108; 12 La. 210; 2 Ann. 478; 15 Ann. 661; 30 Ann. 1314, 404, 32 Ann. 203.</p> <p>4th. That even should it be held that the lease relied upon by plaintiffs was duly recorded so as to affect defendant, and that it should be further held that it was not indivisible and not dissolved and cut off in its entirety, by the seizure and sale under the judgment in the suit of Dorcino Landry vs. Jean Gonzales, nevertheless, defendant, as the purchaser, at the sheriff’s sale made in that suit, of the undivided one-third interest of Jean Gonzales, in the property so leased, had the undoubted and absolute right of taking and entering into possession of the undivided third of said property, free from any rights or claims of plaintiffs under that lease, and that even in this case, if defendant had taken possession of and worked the whole plantation, plaintiffs would have no right of action against him by reason thereof, unless defendant has made a profit from said plantation, and that then plaintiffs should be compelled to remunerate defendant for all proper ex • penditures incurred by him in carrying on the plantation, and should not be permitted to recover from defendant unless he had mismanaged the property, or bad made a profit from it, or had maliciously deprived them of the use and enjoyment of the two-thirds not sold in the suit of Landry vs. Gonzales. C. C. Art. 2295, (2274); Art. 2299, (2278); 10 Ann. 257; Art. 1965, (1960); Hennen, vol. 2, p. 1020, No. 19; 4 Ann. 76; 7 Ann. 130 ; 12 Ann.354; 22 Ann. 489; 30 Ann. 1099; O. C. Art. 2314 (2292.)</p> <p>5th. That plaintiffs, for the reasons given and by further reason of the fact that defendant, instead of making any profit from the crop made in 1881, on the “Gonzales” plantation, incurred a heavy loss, notwithstanding a skillful and economical management of the property, have no right of action, nor claim against defendant, for any supposed profits resulting from the crop operations of that year. Nor is their claim for the alleged value of seed cane, corn and hay, which the said defendant took possession of with the plantation, entitled to give any greater consideration, because, under their lease with Gonzales & Co., plaintiffs received with the leased plantation a certain quantity of corn, hay and seed cane, which they bound themselves to return with the plantation at the expiration of their lease, and that the quantity which defendant took possession of with the plantution, when he entei ed into possession under their lease, and which quantity the evidence shows has never been otherwise, returned to their original lessors, nor any one else. 32 Aun. 203; C. (J. Arts. 2710, 2680.</p> <p>6th. That the lease relied’ uponby plaintiffs, if ever binding against defendant, was dissolved by the seizure and sale in the suit of Dorcino Landry vs. Jean Gonzales, and that defendant, as purchaser of one-third of the plantation at that sale, and of the other two-thirds thereafter, had the right to take possession of the corn, cane and hay, as pai't and parcel of the leased premises, and which, by the terms of the lease, plaintiffs wore bound to return and abandon with the plantation at the expiration of their lease. And if, on the other hand, the lease was not dissolved in its entirety by that seizure and sale, it was certainly dissolved as to one-third of the property, and that as defendant had the undoubted right to enter into possession of one-third, at least, of the plantation, and work the same for his own account, plaintiffs cannot hold him responsible for the corn ami hay so taken possession of by him with the plantation, for the same were used by defendant, and the seed cane planted by him to make the crop of 1881, for the recover/ of the alleged profits of which plaintiffs have also sued defendant. The two claims aro inconsistent and destructive of each other.</p> <p>7th. The district judge erred in his rulings, during the trial, in the following particulars:</p> <p>1. In refusing to allow defendant to waive the trial by jury previously prayed for by him, on plaintiff’s counsel objecting to such waiver, though not making a specific prayer for a jury on behalf of plaintiffs. O. P. Arts. 494, 495; Hennen, vol. 1, p. 767 (b), Kos. 3, 4, 7, 9.</p> <p>2. In allowing plaintisfl’ counsel to introduce evidence, lor the purpose of establishing the value of the seed cane left on the leased property by plaintiffs, and taken possession of by defendant; and also the quantity of sugar and molasses made on the property in 1881, while in defendant’s possession, and the value of same O. C. Art. 2703, (2673); Art. 2704, (2674); Art. 2696, (2666); O. P. Art. 48, 2La.227 ; 23 Ann.427 ; 31 Ann.71; Marcadó, vol. 6, pp. 456, 457.</p> <p>3. In refusing to allow defondant to establish, by the testimony of defendant himself, and by other evidence offered by him, by way of reconvention, the amount of expenses incurred by him during the year 188J, upon the “Gonzales” plantation, as alleged and set forth in his answer, and in restricting the evidence, as he did, to disproving plaintiffs’ allegations for the recovery of loss of profits, and for no other purpose.</p> <p>8. Tlie district judge also erred in his charge to the jury in the following particulars, by refusing to charge the jury as follows:</p> <p>1. That a lessee of a plantation is bound by law to leave the property so leased whenever the lease is put an end to. in the same state in which he received it, and that he must return with it everything that he received with it, and everything that he agreed to do-liver with it at the termination of the lease.</p> <p>2. That when a party leases a plantation with farming implements thereon, and takes with it seed cane, hay and corn belonging to the lessor, and upon the plantation at the time of taking possession with the obligation of returning the same quantity of such property at the termination of the lease, the lessee is hound to return such seed cane, corn and hay, with the leased property, whenever the lease is terminated, as one of the obligations and stipulations of his contract, and as part of the leased premises.</p> <p>3 That if the jury believe from the evidence that plaintiffs leased from Jean Gonzales & (Jo. their plantation, and that they received with it a certain quantity of hay and corn, to be returned with the plantation at the end of the lease, and that they further hound themselves to leave on the plantation at the termination of the Lease seed cane sufficient to plant a specified quantity of land, and should further believe that defendant purchased ata sheriff’s sale, mado on the execution of a judgment rendered and recorded prior to the lease so entered iuto, the undivided third of Jean Gonzales, and after said sale acquired the other two-thirds of the plantation, that then they, the jury, should consider defendant entitled, by reason of his said acquisition, to everything that should be returned by plaintiffs, as lessees, with the plantation; and that if the jury should believe that defendant took possession of any corn, hay or seed cane, when he took possession of the plantation, and which had been produced by plaintiffs, that they should then consider the quantity so taken possession of by defendant and should not hold him responsible for the same unless they, the jury, found that the quantity so taken possession of by defendant exceeded the quantity which plaintiffs received with the plantation when they took possession as lessees.</p> <p>9th. The judgment is erroneous in giving interest on the amount for which it is rendered, because no specific rate of interest is claimed in the petition of plaintiffs, nor any date fixed from which interest is asked to run; and, second, because the verdict of the jury fixes no rate of interest upon the amount found to be due, nor does the same provide any date from which the same should run. O. P. Art. 553; 30 Ann. 735; 20 Ann. 217.</p>

Brame, judge ad hoe. 1 After a remittitur has been properly entered before judgment reducing the demand below the jurisdiction of the Supreme Court, the lower court cannot by any explanatory remarks oust the Court of Appeals of appellate jurisdiction and confer it on the Supreme Court. 2.

Burgess, J. There is a perfect and an imperfect dedication of property to public use under both the civi* and common law. The former is a donation and passes the fee j the latter is a qualified dedication, and under the common lawis termed an “ easement,” under the civil law “ a servitude of public use. 30 Ann. 64; Rev. C. C. art. 482; Dillon on Man. Co rpM 3d ed., par. 638. Any other classing of this qualified dedication creates a distinction without a difference.

<p>The amount in dispute is the highest sum for whioli the appellate court can render judgment under the allegations and prayer of the petition.</p> <p>A party who makes a transfer in writing of live stock, and who does not prove that the contract, apparently a sale, was designed to be one of suretyship, and that he received no consideration, cannot recover the stock in question.</p> <p>An intervenor who claims ownership of such stock, as having been given in payment to him of a judgment against the defendant, cannot recover where it, appears that the debt for which the judgment had been obtained had no existence, having been previously extinguished by payment, and where the surrounding circumstances tend to show that the proceeding is the result of a combination between the defendant and the intervenor (plaintiff in the suit) to frustrate plaintiff from his rights.</p>

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

<p>A surety on a release bond in an attachment proceeding against a resident, ia concluded by the judgment against the defendant, if regularly rendered.</p> <p>Such surety, on a rule to hold him liable fot such judgment after return of an unsatisfied execution, has no right to set up defenses which do not avail the judgment itself.</p> <p>A ruling refusing a continuance to procure an absent witness to establish other defenses and striking out of the answer to the rule impertinent issues, is correct and will not be disturbed.</p>

<p>A. nuncupative will under private signature need not be shown to have been dictated by the testator, when written out of the presence of the witnesses.</p> <p>The affirmative answer of a testator to a question: Whether the paper contains his last will ? amounts to the presentation prescribed by law. The presentation need not be manual, or more formally made.</p> <p>Witnesses who declare that they saw the testator sign the paper purporting to be Ms will, and that they themselves signed it; and who further declare that they recognize their signatures to the same instrument, virtually testify that they recognize the signature of the testator to it.</p> <p>The law which provides for the drawing up of a procos verbal of probate of a will, is not man* datory, but merely directory. Apparent deficiency in its recitals cannot have the effect to vitiate the piobate, but may be supplied by legal presumption or by additional proof in a suit contesting the will.</p> <p>The appointment of a dative executor on the filing of a petition for the same and before any advertisement and expiration of the delay for opposition, is unwarranted. It can be made only after publication and in the absence of opposition.</p> <p>An order of sale obtained by a dative executor thus appointed, is procured by one having no authority to ask ib and m ust be rescinded.</p> <p>A plaintiff must make his case legally certain. It is not sufficient to make it morally probable.</p> <p>The Court does not pass on the capacity of plaintiffs to sue at the present stage for recovery of debts due the succession.</p> <p>The contingent appointment of a dative executor, on the condition that public notices shall be given and that it be not opposed, is of no avail, where, after the advertisements have been published, though the application has not been opposed, the appointment is not confirmed by a subsequent formal decree conferring it on the petitioner.</p>

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

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

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

<p>The Supreme Court has no jurisdiction over a controversy for the distribution of the proceeds of a judicial sale made to satisfy a judgment creditor, where the claim of the latter does not exceed §2000, the amount of the sale is less than that sum and the aggregate of the sums claimed by the third opponents is inferior to the proceeds of sale.</p> <p>Consent cannot confer jurisdiction ratione materice,</p>

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

<p>A party oast in an action of nullity of twenty-tour judgments, in none of which, the amount in dispute exceeds $2000, brought in oue petition, cannot sustain an appeal in the Supreme Court, although the amountinvolvod in all the judgments together does exceed $2000.</p> <p>A cause not appealable in amount to the Supreme Court for the review of the judgment originally rendered therein cannot be made appealable-there to review the judgment-rendered in an action of nullity in the same, cause.</p>

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

<p>Tn oase of loas of the original information in a criminal cause, a duly certified copy thereof, taken from the record hook, may be substituted therefor, upon which copy the trial may proceed. Act 17 of 1878.</p>

<p>An application for a new trial, for the purpose of proving the insanity of the accused, must be supported by evidence tending to substantiate the mental aberration of the accused, else the trial judge may decline to grant it.</p>

<p>This Court has no jurisdiction of a criminal case wherein a fine of three hundred dollars has not been actually imposed ; and when the crime charged is not punishable with im • prisonment at hard labor in the penitentiary. State vs. J. Mack Smith, recently de cided, is affirmed.</p>

<p>The pledgee of anote, secured by mortgage, lias the right to take measures, that is: to sue for payment in his own name, or for the use of tbe pledgor, to satisfy the debt to secure which the pledge was made, subject to the obligation of accounting to his debtor.</p> <p>The appeal taken by a defendant from a decree of executory process, which allows as attorneys’ fees a larger percentage than that agreed to iu the act of mortgage, is not frivolous and damages cannot be allowed.</p> <p>Executory-process can issue on the pledged note, although the plaintiff annexes unauthentic evidence of the debt due him and secured by the pledge.</p> <p>On an application for a rehearing the court can, without granting the prayer and hear the case anew, make verbal corrections which do not change materially the effect of the decree previously rendered.</p>

<p>The absence of tlie accused, in a case of larceny, from the courtroom at the hearing, of a motion of the State’s attorney for the amendment of his information, with a view to an alteration of the name or surname of the owner of the stolen property, will nol/vitiat« tlie proceedings. His presence in court is required only at tlie trial of his guilt or innocence, and not during all other preliminary or secondary proceedings, involving matters connected with the form or conduct of his trial.</p> <p>An amendment of an indictment or information in a case of larceny, changing the name of the alleged owner of the stolen property, may be allowed after arraignment, and the accused cannot complain, after conviction, that he was not arraigned under the indict-. ment or information as amended.</p>

<p>In a rule taken by an heir to be put, in possession of an estate, and for other purposes, any Irregularity in such proceeding, though urged in oral and written argument, will not be considered in the absence of pleadings raising such issues, save in exceptional cases.</p> <p>An heir is not entitled to be put into possession of certain funds in the hands of an adminis* trator, when it appeal’s that this fund is in litigation between the succession and another claimant. The lioir cannot receive it until the litigation is terminated, though other* wise he might he entitled to it,.</p>

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

<p>PPLICATION for Mandamus.</p>

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

<p>APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackmcm, J.</p>

<p>Under the effect of C. C. 415, the rules laid down in articles 363 and 364, relative to tutors and guardians of minors residing out of the State, apply equally to guardians of insane or interdicted persons residing out of the State.</p> <p>Such guardians, when duly appointed and qualified according to the laws of the State where the insane person resides, are entitled to recognition as such by our courts, to be vested with the power and authority defined in said articles. But to support a decree to that effect, it is essential that they should not only have been appointed, but that they should have qualified in conformity with the laws of the State where they have been appointed.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans, Bightor, J.</p> <p>Every publication of language concerning a man or bis affairs, which, as a necessary of natural and proximate consequence occasions pecuniary loss to him, is prima facia a slander. Townshend on Slander and Libel, § 70, p. 115.</p> <p>Slander is defaming a man in his reputation by speaking words which affect his life, office or trade. Ibid, p. 59. foot note 3.</p> <p>"Words uttered must be construed in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individuals better informed in the matter alluded to, might form a different judgment on the subject. Moak’s Underhill on Torts, pp. 122,123.</p> <p>Language is not to be construed in a milder sense (witioH aensu), because it is capable of a forced construction by being interpreted in an innocent sense. Bigelow on Torts, (Student's Edition), p. 39; see also 2 L. 577 ¡ 2 N. S. 257, and other authorities quoted in brief.</p> <p>"When language is slanderous per ae, damages maybe recovered without special injury or damage being proved. Townshend on Slander and Libel, p. 542; 38 Ann. (vol. 38)/No. • 2, p. 161, aud the authorities in that decision quoted.</p> <p>Injury to one's feelings is a legitimate ground of action for reasonable indemnity. 38 Ann. (vol. 38) No. 2, p. 161,</p> <p>Communications made by one person to another, having for object the protection of the private interest of either or both of tlio parties, must, in order to be privileged, have been made with a firm belief in their truth; otherwise malice is tobe presumed. To determine whether such communications were made under a firm belief in their truth, it is necessary to consider the circumstances attending the publication, and the means of information possessed by the publisher for knowing whether or not the communication or publication was true. That mischief which a man does he is supposed to mean, and he is not permitted to put in issue a meaning abstracted from the fact. Townshend on Slander aud Libel, pp. 135, 600; Moak's Underhill on Torts, p. 129; Eolkard’s Starkie on Slander and Libel, p.343.</p> <p>The answer of defendant equivocates. It includes every possible defense, except apology to : the party aggrieved. It cannot avail him, 38 Ann. (vol. 38), No. 2. p. 161.</p> <p>There is no such thing in law as a half-way justification. Townshend ou Slander aud Libel, § 212 and note, 2d ed. • •</p> <p>1. The truth of the words uttered, or publication made, is an absolute defense to a civil action of. libel or-slander. Const. 1879. Art. 168; Perret vg. Times, 25 Ann. 176 ; 14 Ann. 406; 15 Ann. 592; Hawkins vs. Picayune, 29 Ann. 137; Staub vs. Van Benthuysen, 36 Ann. 469.</p> <p>2. Statements made by one person about another to a,third, though untrue, are privileged when they aie made witnout malice, under a firm belief iu their truth, and for the purpose of protecting his own pecuniary interests or those of persons equally interested in the subject matter of the communications, or in reply to questions upon, the said subject matter put to him by persons interested in it and entitled to an answer. Townshend on Libel and Slander, secs. 209, 240, 241 ; Odgers on label and Slander, pp. 203. 209, 234; Hauey vs, Trost,'34 Ann. 1147.</p>

<p>APPEAL from the Twelfth District Court, Parish of Craut. Blackman, J.</p>

<p>The Supreme Court can exercise its jurisdiction in so far only as it shall have knowledge of the matters argued and contested below.</p> <p>■A wm?id«mwwill not lie to a recorder for refusing to allow an appeal fiom a judgment inflicting a fine for the violation of a municipal ordinance, when the constitutionality or legality of the ordinance authorizing the fine was not contested and put at issue before the judgment.</p> <p>Mandamus does not lie to compel the granting of an appeal in a case which, on the face of the papers, is unappealable.</p>

<p>Ia a proceeding by mandamus for fche cancellation of an inscription of the drainage tax mortgage, on the ground that the tax is not exigible against relator’s property, either tor want of consideration br for non-performance of the drainage contract, or on account of previous payment, the controversy does not involve the legality or constitutionality of the tax.</p> <p>In such case the test of the jurisdiction of the Supreme Court is the amount of the tax in discussion, and the appeal cannot be sustained if said amount does not exceed two thousand dollars.</p>

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

Tissot, J. L. The vendor of illuminating oils is liable to tbe vendee in damages for tbe destruction of property by fire caused by tbe volatilization and ignition of a barrel of gasoline sold as “puroline.” It. C. C. Art. 2445; Addison on Torts, pp. 850 and 851} 18 Ann. 232 j Tbompson on Negligence, vol. i, pp. 232 and 236. The vendor who is a dealer in dangerous agencies liable, though ignorant of the vices of the thing sold. Pothier, Contrat de Tente, Part II, Chap.

<p>■When a party appeals, but fails to bring up his appeal in time, and it is filed after the return day and dismissed, he cannot, under another order, bring up a second appeal. The appeal will be considered as abandoned.</p>

<p>APPEAL from the Fourth District Court, Parish of Winn. JBridger, J.</p>

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

<p>ON MOTION TO DISMISS.</p> <p>Notwithstanding- the clerk’s certificate is not technically sufficient, and the transcript contains neither a statement of facts, note of tlie evidence, bill of exceptions nor assignment of errors — the appellant having been absent from and taken no part in tlie trial, though, constructively, a party to the proceedings — the appeal maybe likened to one brought up by a third person, resting his claim to relief upon questions of law alone, The irregularities in the mode of bringing up such appeal may be disregarded by the court when the questions relied upon as determining the right snificienfely^appear from ,the trun script.</p> <p>ON THE MERITS.</p> <p>In the absence of proof to the contrary, it will be assumed that every fact essential to the validity of the judgment, was proven in the court below.</p> <p>'A partnership once formed and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it.</p> <p>It is a civil person, which has peculiar rights and attributes. The partners are not. tlie owners of partnership property.</p> <p>It belongs to the ideal being, which has the control and administration thereof, to enable it to fulfill its legal duties and obligations The partners own the residuum.</p> <p>Partnership property — whether ordinary or commercial — is liable to creditors of the partnership in preference to those of the individual partners.</p> <p>Notwithstanding the interest of the deceased member of an ordinary partnership is subjected to administration as his other property, funds realized from the sale thereof cannot be withdrawn from partnership creditors and applied to minors’ claim to $1000.</p>

<p>The eviction of a purchaser under a voidable tax sale, who, at the time of the purchase, held a mortgage on the property, renews the mortgage and relieves it from all effects of the extinguishment resulting from the mortgage creditor’s having acquired the ownership of the thing mortgaged.</p> <p>But this renewal is ineffective if the creditor has, iu the meantime, permitted the principal debt to secure which the mortgage was given, to become prescribed.</p> <p>The purchase by the mortgage creditor, while extinguishing the mortgage, did uot destroy the debt or affect the creditor’s right and power to enforce payment of it and to prevent its prescription. Having suffered the debt to become extinguished, bus mortgage is necessarily destroyed, and he has no more right to enforce it when the debt has been extinguished by prescription than if it had been extinguished by payment.</p>

<p>"Bequests fov pious uses are higlily favored by law.</p> <p>An unincorporated institution, organized, administered and maintained by a municipal corporation, and known as 11 The Insane Asylum,” maybe the object of a charitable bequest.</p> <p>A legacy to such an establishment is intended for the relief of the indigent insane of the city, and vests, at the testator's death, in the municipal corporation for the use and benefit of the unfortunate cared for by it.</p> <p>An unconditional legacy, once vested, cannot be divested. After it has passed, it cannot revert.</p> <p>'The municipal corporation may subsequently discontinue such institution as a locus. It may confine and keep such persons in another local and special institution.</p> <p>By such discontinuance the legacy does not lapse and revert.</p>

<p>APPEAL from tlie Eleventh District Court, parish of Natchitoches • Pierson, J.</p>

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

<p>The Act No. 38 of 1856 provided a peculiar system oí government for the parish of Jefferson, under which the various corporations composing the parish, and not therein named, were to be represented on a parish committee which were to apportion the general parish expenses between the several coiporations, and the latter were to pay the same ouof the funds raised by the exercise of their own powers of taxation.</p> <p>When, subsequently, the city of Kenner was incorporated and vested with taxing and other municipal powers, it became one of the “corporations composing the parish of Jeffert son," and fell under the operation of the Act of 1856, by the effect whereof she was entitled to representation in the parish committee, and to pay her share of general expenses through the assessment of that committee and without direct paVochial taxation.</p> <p>Such has been the construction of the law after its passage. The city of Keuner has never been awarded representation on the police jury, but has been excluded therefrom; and has been always recognized as entitled to representation on the parish committee and subject to its assessments, which have been annually made.</p> <p>Acts No. 58 of 3874 and No. 119 of 1884, exhibit a similar interpretation of the law.</p> <p>The power assumed by the police jury, on which Kenner was not represented, in 1878 and subsequent years to levy direct taxes on ICenner, while she was, at the same time, subjected to assessments by the parish committee, cannot be supported. It would involve taxation without representation and the imposition of double burden, besides contravening the law of the State as interpreted by the parochial authorities, by the Legislature of the State and by the local judge of the district.</p> <p>This ca.se does not fall within the general rule that incorporated towns, in absence of special legislative exemption, are subject to police jury taxation, whioh is not abraded.</p>

<p>Tlie constitutional ordinance for the relief of delinquent tax payers, which authorizes the funding of Auditor’s warrant in baby bonds, only grants to the warrant bolder the option of having bis wnrrants exchanged for bonds to be exercised prior to the date therein lixed for their maturity.</p> <p>The power conferred upon the Funding Board continues subsequent to that date for the sole purpose of examining, auditing and funding nunc pro tunc such warrants as shall have been presented to them or to some officer of the board antecedent to that date.</p>

<p>Act 33 of 1870, fixing fees of appraisers in succession cases, does not apply to fees ot experts in insolvencies, which are to be allowed on the basis of qucmtum meruit. Where the allowance is fair and reasonable, it will not be increased-</p> <p>Tax bills in the usual forms are presumptive evidence of the assessment and of the claim.</p> <p>A taxpayer cannot complain of the disparity between the bills and the assessor’s certificate, where the amount on which the tax is claimed is less than that mentioned in the certificate.</p> <p>Payment by preference out of the proceeds of an insolvent’s movable property, of taxes on personal property, is iightfully ordered when the proceeds of such property does not include those of his real estate.</p> <p>Article 177 of the Constitution dispenses from the registration of liens on movable property. The payment of taxes on personal property is secured without registry.</p> <p>Prescription urged in argument will not be considered when not pleaded below or on appeal.</p> <p>Objections to the allowance of interest for years previous to the existence of the debt, have no force when the date fixed is a clerical error, which might have been corrected, if found in the original judgment, by simply calling the judge’s attention to it. The judgment creditor cannot iusist on an interest which he has not claimed.</p> <p>Attorneys’ fees, stipulated in a mortgage act in case of non-payment of the debt at maturity, are due when the mortgagee is bound to employ counsel to collect his. claim, and such counsel represents him in the insolvency proceedings.</p>

<p>The widow of a deceased party by second marriage will not be allowed to"*claim, as administratrix, either in her own right, or on behalf of creditors, money expended by the husband for the maintenance and education of Ms children by a first marriage, when it appears that he made no such charge when living, and had never intended to make it; that the first community was solvent, that he was solvent during the existence of the second community, and at the moment of his death, and that the creditors whose rights are championed by the administratrix, were not creditors of the first community, and only became creditors of the deceased in due course of commercial dealings, imme diately preceding his death. Affirming decision in the succession of Boyer, 36 Ann. 506*</p>

A PPEAL from the Twenty-fourth District Court, parish of PlaqueJz.A. mines. Livcmdcm, J. 1. Minority suspends prescription. R. C. C. 3522, 3544, 2. Prescription is suspended against a minor emancipated by marriage until her majority. 33 Ann, 35G; Troplong Prescription, T. 2, No. 740; Marcadé Prescription, art. 2252; C N. Bousquefi Diet. Pres. Tit. Mmeur ; Laurent, p. 32, No, 46.

íávcmdcvis, J'. 1. Revenues of paraphernal property of either spouse, during marriage, form pare of the community, when the husband has had the administration of the same. R. C. C. 2386, 2402, 2406; 16 L.l; 17 L.296; 19 L.574; 3 Ann. 611; 4 Ann. 248; 6 Ann. 634. 2. The wife and her heirs and assigns have the privilege of exonerating themselves from the debts contracted during the niarriage. by renouncing the partnership or community of gains. R.C. C.2410. 3.

<p>Continuance on the ground oí absence of witnesses, who are out of tbe State and beyond the process of the Court, will only be enforced in strong and clear oases in which three elements must concur: (1) Materiality end admissibility of the evidence: (2) due diligence; (3) affirmative showing that the absent witnesses can and will'beproduced at the future term.</p> <p>The judge a quo, having exhibited strong reasons, showing that these requirements have not been complied with, and having concluded that the application was made for delay, his ruling will not be interfered with.</p> <p>The proces verbal of the coroner’s inquest is admissible for the restricted purposed’showing the fact and cause of death.</p> <p>The Constitution authorizing the appointment of an assistant coroner, his authority to hold inquests is recognized, the holding of such inquests being the main and nearly solo purpose for which the office of coroner exists.</p> <p>Where the procos verbal is signed by the assistant coroner, it will be presumed that he was the officer who held the inquest, although there had been a failure to correct the formal recital that the inquest was held before the coroner.</p> <p>It appearing that no hurt to justice resulted to the prisoner, technicalities wilt not bo strained to avoid a trial and sentence.</p>

<p>Want of consideration and knowledge of circumstances of relief, under which a note was issued and a mortgage consented to secure ics judgment, may be pleaded against a third part}’, but cannot exonerate the drawer and mortgager, unless fully established against such party whose presumed innocence is always implied.</p> <p>Representations of indebtedness and of ownership by one and acted upon by another, in good faith, conclude the former and protect the latter.</p>

<p>The owner of lands, who allows a railroad company to occupy and use the same for the construction of its road and other appurtenances necessary to the operation of a railroad, without remonstrance or complaint, will be held to have acquiesced therein and sucb a waiver will bar his action to dispossess the company.</p> <p>Bat such a waiver will not defeat his right of action for damages or for the value of the lands thus taken by him. Affirming St. Julien vs. Railroad, 35 Ann. 924.</p> <p>The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its roads and works would he of little value, such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the beds of its road, or water for its engines, and the like. Morgan ya. Louisiana, 93 U. S. 217.</p> <p>Such franchise includes the right of appropriating lands for the construction of necessary appurtenances, without which the road could not be successfully operated.</p> <p>Sucb a franchise is transferred in a marshal’s sale of a railroad and all its franchises to the purchaser, even if he is a natural person.</p>

<p>A citation judicially held to be absolutely null is not sufficient to interrupt prescription running in favor of a defendant.</p> <p>Hence, the citation served on a married woman, under a petition in which she is sued as a . single woman, caDnot subsequently, after the defendant is sued as a married woman and duly cited, be invoked as a citation sufficient to interrupt prescription.</p> <p>'Plirough such a citation the married woman was not made a party to the suit, and if the service of the legal citation is made after prescription has acquired, the defendant having been cited too late, the plea of prescription is good, and it will defeat the action</p>

<p>APPEAL from the First Recorder’s Court. Dewey, J.</p>

<p>A party is not estopped by judicial declarations made for the purpose of simplifying proceedings and for the common interest and convenience of all parties concerned, and which have neither misled nor damaged anyone.</p> <p>Heirs who intervene in a succession proceeding as opponents to an account filed by the executor and ask therein for an order directing the executor to pay over the money to them, thereby recognize the existence and validity of the succession proceeding, and cannot sot up its nullity as a ground for relief.</p> <p>Taxes levied on the business of a partnership form part of the expenses of the business, and, when recovered back from the government, are to be distributed among the jiarfcners according to the terms by which the expenses were shared.</p>

<p>The State of Louisiana has the inherent right to regulate her finances and to use her revenue according to her own judgment, unless restrained by any contract obligation or verbal right created by the Legislature in favor of creditors, as to any portiou of the same.</p> <p>Any balance remaining to the credit of one or more of the separate funds created by law, after the satisfaction of all warrants drawn against the same, is the property of the State, with full power in the Legislature to apply the same to any lawful purpose under the constitution.</p> <p>Holders of warrants drawn against tho general fund of 1884 have no contract or vested right to any balances for taxes due in 1883 and previous years, which wore destined by Act 107 of 1884 to the gee eral fund of 1884, sufficient to defeat the legislative will, as expressed in Act 79 of 1886, ordering certain doscribed taxes for said years, to be placed to the credit of a special levee fund, and adopted before the collection of such taxes had been effected.</p> <p>Act LTo. 79 of 1886 is not a special or local law within the intendment of Article 48 of the State Constitution; hence, it is not affected by the omission of the uotice prescribed in that article.</p> <p>Levee districts are not corporations within tiie scope of the prohibition contained in Article 56 of the Constitution. They are State functionaries exercising delegated powers as parts of the government. An act of the Legislature authorizing one of the levee boards to build a levee in the State of Arkansas, if necessary, to protect a portion of the State from overflow is not violative of any article, prohibition or provision of the State Constitution.</p> <p>Act 79 of 1886 is not an appropriation of money within the meaning of the constitution, as it does not purport to draw auy money out of the treasury. It merely directs a transfer of a contemplated revenue, iron* a separate fund, to which it was destined, under a general act, to a special fund, and thus moves money within the treasury, but not out of it. A statute of Louisiana authorizing the construction of a levee within the State of Arkansas, with its consent, for the protection of Louisiana lands, is not am on able to the prohibition of the second paragraph of Section 10 oí’ Article Í of the Constitution of the United States, forbidding any State, without the consent of Congress, to enter into any agreement or compact with another State. It is an exorcise of no greater power than the requisition of the Governor of one Stale on the Governor of another, for the arrest of a fugitive from justice.</p>

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

<p>The executors of ;i will who deliver possession of an immovable to tho usufructuary under the will, legally lose seisin of the property, which does not revert, to the suooossion if the usufruct expires before tbe functions of tlie executors bave expired ¡ the usufruct then becomes incorporated with the ownership. Hence, in such a case the legatee of tho naked ownership of the immovable cannot demand delivery of his legacy of tho executors,</p>

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

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

<p>A PPEAL from the Seventeenth District Court parish of East Baton jL JL Rouge. Burgess, J.</p>

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

<p>Under sections 1049 and 1052 and others of the lievised Statutes, which are similar to the Victoria Statute of England on the same subject, the common law requirements as to the framing of indictments have been relaxed ; and it is sufficient to charge the dime in the words of the statute, without setting out the particular acts constituting the spe, cial offense charged in the indictment. State vs. McG-rau, 37 Ann. 292.</p>

<p>The Carondelet Canal and Navigation Company have, and its predecessors had, a perfect - right to use, appropriate and enjoy the property adjacent to Bayou St. John and Canal Carondelet, on either side, for tlie purpose of facilitating their operations in the improvement of navigation therein, as contemplated in their several charters.</p> <p>Among their chartered rights are the construction and maintenance of roads on either side and collection of tolls thereon ; to take and receive from each passing vessel toll, according to her tonnage,- to prevent any person from using the same in any injuriously to them, or embarrassing to commerce.</p> <p>No one can derive any adverse right of possession or ownership to any property adjacent to said bayou or canal from the State, by a title subsequent in date to the Navigation Campan j’s charter; because the State, in such case, would be the common author.</p> <p>Having the exclusive right, under its charter, to the use of the banks or shores of the Bayou St. John and Canal Carondelet, for its operation for the purpose of navigation, no one has the right to establish a ferry, for the conveyance of passengers, across the' same without xiermission of the defendants; and when such permission is given by them, on the condition that it shall not impede navigation thereon, it may be recalled when ascertained to be inconvenient and a hindrance to vessels.</p>

A PPEAL from tlie Civil District Court for the Parish of Orleans. jLJL Monroe, J. 1. A sale with the right of redemption is a sale vúth a resolutory condition, and not a contract of hypothecary or pignorative security. Duranton, Cours de troit, Yol. 16, Secs. 388, 389,390 ; Lahaye’s notes to Napoleon Code, Art. 1659; Dallo» on Sale, No. 825; 23 Ann. 661. 2.

A PPEAL from the Civil District Court for the Parish of Orleans. JTX Houston, J. 1.

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

<p>Plaintiff, as tlie alleged sexton of certain cemeteries, seeks to enjoin the defendant from claiming the same employment, on the ground of the illegality of the attempt to remove him under his alleged employment.</p> <p>In the case entitled Healey vs. Rev. P. E. Allen, Ho. 9740 on the docket of this Court, it was held that they could not resist his removal by the writ of injunction; for the same reasons he cannot, by the same means, prevent the appointment of his successor.</p>

<p>Tn an action to recover property real and personal -with rents and revenues, and damages for injury and waste, the whole amounting to only $1710, the addition of a roving claim for $500 additional damages for illegal possession, without any specification of the nature thereof, will he treated as fictitious and not entitled to consideration as part of the amount in dispute giving this Court jurisdiction.</p>

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

<p>A. suspensive appeal suspends the execution of the judgment complained of, but does not divest the court of jurisdiction over a controversy involving, not the identical, hut a similar matter.</p> <p>Iu such a case prohibition does not lie against the court.</p>

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

<p>APPEAL from the Civil District Court for the Parish of Oileaus. Tissot, J.</p> <p>An insolvent, boing about to make a surrender to his creditors, cannot make a transfer of property to his wife without consideration. Such transfer is absolutely null and void, both from tbe incapacity of the parties and because it is a mere simulation, O. C. 1784; 1 Ann. 301; 2 Ann. 484; 15 Ann. 491; 23 Ann. 442; 30 Ann, 225; 3 Martin, 695, 708; 38 Ann. 385.</p> <p>If such a transfer could be operative, the property would still be community property and would be subject to debts due by the community under a surrender made by the husband to its creditors would pass to them - O. C. 2402, see. 1791, Be^ ised Statutes ; 2 La. 360; 33 Ann. 478; 34 Ann. 1029 ; 18 Howard. 159 ; J17 W. S. 208.</p> <p>Property surrendered by an insolveut and accepted by the court for the benefit of creditors, passes under the control and jurisdiction of the court, and no adverse rights can bo acquired from the insolvent in or upon said property after said cession and acceptance. 20 Howard, 594 ; 24 Howard, 450; 36 Ann. 75; 105 H. S, 72; 2 La, 360.</p> <p>This is true of all of the property of the insolvent, whether real or personal, and whether situated within the State of Louisiana or any other State. Cases cited.</p> <p>The Civil District Court of the Parish of Orleans, the court which accepted the cession of property and the court which has jurisdiction of all the parties, who are citizens of New Orleans, has jurisdiction to set aside alleged transfers of property mado while it was under administration, and which had passed by the cession to the creditors of the insolvent. 20 How. 549; 36 á.nn. 75.</p> <p>The court.has jurisdiction ; all of the parties reside in New Orleans; the transactions between the parties were made here; the property claimed by the syndic had passed to him as the repiesentative of the creditors of Carrier©, and was under administration in the Civil District Court when the alleged transfer was made to defendant. 3 Ann. 2P5 ; 8 Marten, 134; 7 Marten, N. S. 409; 33 Ann. 1161; 12 Bob. 80; 3 Marten, N. S. 652; 4 Allen Bop. 550; 7 Allen Bep. 57.</p> <p>The courts of Louisiana are courts of equity as woll as law, and exercise the usual powers of courts of equity. G. G. 21; 1 Ann. 139; 2 Ann. 87.</p> <p>Mrs. Garriere, tlie wife of Emile Oarriere, wlio made surrender of all of his property and the property of the community, and which property is now under administration of this court, is not a necessary party. The husband represented the community, and the syndic now represents it and its property.</p> <p>X. A Louisiana State court, has no j urisdiction to try and determine a cause whore the question to be decided is as to the title to immovable property situated in another State. Mussina vs. Ailing, 11 Ann. 568, particularly pp. 571, 572.</p> <p>2. It has been held, where a money judgment can be rendered against a dofendent, the court may inquire into the validity of the title to lands in other States, in order to know whether such judgment for money should be rendered or not. This is doubtfully and guardedly held in McDowell vs. Dead, 3 Ann. 391. (See comments upon this case in Mussina vs. AlliDg. 11 Ann. 168, above cited.) But it has never been held that aLouisiana court can decide a cause where the sole issue is as to ownership of land in another State and where no money judgment is asked.</p> <p>3. Where a suit is brought to annul title to immovable property as fraudulent or simulated, and there arc intervening titles between that of the judgment debtor and that of the defendant, all of the intervening titles must be annulled before the plaintiff can recover; and all the holders of intervening titles must be made parties to a suit to annul.</p>

<p>APPEAL from the Second Recorder’s Court of New Orleans. Burthe, J.</p>

<p>In a proceeding by rule to enforce the provisions of a judgment rendered in a partition proceeding, and to compel the completion of an adjudication of property-which entered into the partition proceeding and judgment, which judgment has become final, this judgment cannot he changed, altered or amended by the judgment on the rule. It constitutes rea adjudicata.</p>

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

<p>APPEAL from the Twenty-fourth District Court for the Parish of Plaquemines. Livaudais, J.</p> <p>1. The clause of Sec. 24, Act 96 of 1882, speaking of police juries, and providing “they shall also equalize the assessments of all properties of like character and relative value within their respective parishes in accordance with Article 203 of the Constitution,” introduces the new feature of a Board oí’ Equalization in our tax laws, which, though anticipated in our Constitution, has never been before carried into effect by the General Assembly.</p> <p>2. In the absence of statutory provisions for its jurisdiction, and exercise and effect of its decisions, in our own statute we must look for its interpretation, in these respects, to the systems of other States having tax systems similar to our own, from which wo have borrowed the new feature 16 L. 394 -, 30 Giatt. 477.</p> <p>3 The powers of a mere hoard of review can only be exercised for correction of errors in individual assessments, alter the return of the sworn list of the taxpayer and on duo application made, and when refused, an appeal to the courts can only he had on proof of the exhaustion of those preliminary remedies; a resort to those remedies is an indispensable condition precedent to relief in the courts to correct errors of assessments.</p> <p>4. Boards of review increase or diminish individual assessments; are obliged to hear evidence thereon; can add omitted property to the lists; and arbitrate between the individual taxpayer and the assessor; their decisions are not final; they deal with the taxpayer in his individual capacity.</p> <p>5. Boards of equalization act from motives of public policy, deal with the taxpayers en wcm-c, and are especially designed to carry out the principle of uniformity and equality in taxation, by comparison “of relative value of property in the different portions of the State.” Constitution, Art. 203. The powers of review and equalization are distinct, and the rules governing their exercise are also separate and distinct, although in some States, as in our own, both functions are exercised by a single hoard. Burroughs on Taxation, § 101.</p> <p>6. Boards of equalization, unlike boards of review, cannot add omitted valuations to the tax list; their powers are limited to equalizing ; “ their action is on classes of property, not upon the property of individuals, thus securing equality of value of all property belonging to the same class.” Desty on Taxation, Yol. I, p. 496 ; 50 Iowa 678; 42 towa 623 ; Welty on Assessments, § 153,154; 56 Cal. 195; Cooloy on Taxation, 421; 7 Minn. 207 ; 4 Mich, 579 ; 21 Barb. 611; 43 111. 456 ; 49 111. 517; 72 111. 241 ; 3 Col. 608’; Desty, Yol. I, 496 ; 30 Gratt. 477. “This is the general construction given to the laws relating to equalization boards in other States.” 30 Gratt. 477. Tt is a distinct power from correcting assessments.</p> <p>7. Boards of equalization differ from hoards of review further in their mode of action. They can act with or without application of any one; they need not take evidence or hear testimony; they may act exproprio mofu. 127 Mass. 505; 2 Gray 298 ; 120 Mass. 130 ; 92H. X* 604; Desty, Yol I, p. 496; 43 Conn. 309. .They may adopt their own means in reaching their conclusions. 16 Mich. 12.</p> <p>8. Their action, unlike that of the hoard of review, need nob be upon any individual assessment or assessments, and they need not make separate individual entries on each valuation. They need not foot up the valuations on the rolls. 22 Minn. 356. They can effect the equalization by adoptiug a committee’s report: they can equalize by the adoption of a percentage of reduction or increase, and need not go through the arithmetical computation and make the actual arithmetical changes in figures necessary. 15 Mich. 154 ,* Cooloy on Taxation. 422; Burroughs on Taxation, § 238; Desty, p. 603; 29 Me. 196 ; 1 Mich. 3T. B. 16: 48 N. Y. 93 ; 20 Yt. 643 ; 38 !Kf. H. 580.</p> <p>9. Unlike those of boards of review, the decisions of hoards of equalization are final. Welty 158; Cooloy on Taxation 291.</p> <p>10. To enforce by mandamus the carrying into effect of an equalization made by a police jury, individual taxpayers affected thereby may join in an action; 51 111, 132; Burroughs on Taxation ; 54 111. 243 ; 58 Penn. St. 338; 34 Conn. 105 ; 24 Ohio St. 210 ; !) Iowa 570 ¡ Dillon, Mun. Corp. §§ 731, 732, et seq., all cases where joint injunctions were sustained on the ground of privity of interest, and the common relief sought in similar cases of excessive taxation. ,</p> <p>11. When such equalizations arc made it is the duty of the assessor, as tlie party malting the rolls and signing them, to make the manual correction; 34 Ann. 373; Desty, Vol. I. p. 610 ; 44 Cal. 616; Id. 613 ; and he may be mandamused thereto ; Desty. 526 ; 65 N. Y. 228; 44 Cal. 616; 30 Ann. 263.</p> <p>12. A police jury acting as a board of equalization is not confined to any particular form in which to express their decision; where the law prescribes no particular form for a municipal corporation or body in which to exercise its functions, it may do so in any of the usual forms, resolutions, ordinances, etc. Dillon, Vol. I, p.362. § 246; 2d Edit. Abbot on Corps., p. 487; 36 Ann. 643.</p> <p>13. The principle of inolusio unis eccolusio a Iterius doevS not apply to an article of the Constitution, except one positively prohibitory, as abridging the po^ver of a legislature. Cooley Cons. Liras. (87,172 )</p> <p>1. Boards of reviewers do not act by ordinance; they, as well as boards of equalization, are assessors (47 Cal. 646 ; 37 N. Y. 428); as such they must examine the lists submitted to them, form their judgment as to the value of each piece of property listed, arbitrate between the assessors and taxpayers, and enter such corrections and ehangevS as they wish to make upon the lists, and return same to the assessor, from which he makes out his roll. Secs. 32, 24, 23, 27 ; Acts 90 of '82 and 98 of ‘80.</p> <p>They are a body of limited powers, and must act strictly according to la\v. and may he compelled to do so by the State as well as by the taxpayer.</p> <p>2. They are not boards of equalization, but such incidental powers of equalization as tlioy may have must bo exercised in accordance wi£h Art. 203 of tlio Constitution, with reference to the relative values of property in different portions of the’State. But even as a hoard of equalization their powers are strictly construed, and any unauthorized action is void. Dosty’s citations, p. 497, Nos, 10, 11, 12 and 15; 43 111. 450; 49 111. 517 ; 50 111. 424; 53 111. 477. They have no power to raise or lower the assessment of the entire district constituting their territorial jurisdiction in the aggregate. Cooley 291; 51 Iowa 107; Desty on Tax, pp. 496, 497 ; 11 Neb. 63.</p> <p>3. An unauthorized rule of valuation adopted by them goes to the groundwork of the assessment, and vitiates the tax based upon it. 43 Wis. 55 ; 37 Td. 75. 48: 42 Id. 502 ; 5 Mich. 154; 57 Wis. 5.</p> <p>4. They must assess property only according to its cash valuation (Art. 203), and not according to parochial needs, which will he considered J)fy the police jury when iegulating the rate of taxation to bo subsequently levied.</p> <p>5. Adjudications in other States will not govern here unless based upon laws similar to on?1 own.</p> <p>6. In this State the tax “ list” and tax roll” afe separate and distinct things Acts 96 of 1882 and 96 of 1880; Secs. G, 8,13, 14, 15, 10, 17. 18, 19, 20. 21. 22, 24, 32.</p> <p>7. The proceedings with reference to the assessment of taxes arc based upon the former. They are the records of the judicial acts of those officers entrusted bylaw wTith flic solemn duty of assessing the tax.</p> <p>The proceedings with reference to the enforcement of tax collections are based upon the rolls. They are the tax collectors' warrant or authority to collect. Bee. 32.</p> <p>8. The assessor cannot he compelled, by mandamus, to alter the roll after it has been-filed. He no longer has oontrol over it. Desty. Sec. i 12. p. 57*1; 18 Pick 575; 49 H. Y. 635: Secs. 19 and 32 of Revenue Acts.</p> <p>9. Hor can he be compelled by mandamus to obey an ordinance of the police jury containing instructions with reference to assessraen t s.</p> <p>10. A suit with such declared object is really a suit to test the correctness of the assessment and must be brought in the maimer prescribed by law. The statutory remedy is exclusive.</p> <p>11. Tlie owners of different pieces of property have no privity of interest as to entitle them to bring such action jointly.</p> <p>12. A judgment in such a suit could only affect the assessment of the party plaintiff'. Sec. 36, Rev, Acts.</p> <p>13. A taxpayer, who makes no return of list nor complaint to the board of reviewers, that the vaination of his property is excessive, is presumed by bis silence to consent to the tax imposed. If a party does not have his assessment corrected and perfected when he has power to do so, he is assumed to admit its correctness. 46 Mich. 530; S, C. 9 H. W. Rep. 838 ; 100 XT. S. 547; 40 ¿S. J. haws 268 ; 4 Xev. 231 ; Want of knowledge no excuse,* 57 Iowa 80; 17Id. 389.</p>

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

<p>An injunction can lawfully issue to prevent a water-works company from cutting off its water supply where the consumer has offered to pay in advance the proper amount tor the use of such water during the year, and the company claims a higher rate than is truly due and exigible.</p> <p>Under the terms of its charter, the company is hound to supply water at the rate charged by the city of New Orleans previous to the date of said-charter, which was fifteen cents for a thousand gallons to large consumers.</p>

<p>If tlie interference of tlie employer in tlie work, or any of its details, results in tlie doing of anything, as a part of the work, from which damage ensues to another, the employer is liable.</p> <p>If one permits the establishment of a public nuisance upon property under Ids control, though incidental to a work otherwise lawful, he will he liable.</p> <p>When an obstruction or defect, caused or created in a public street, is purely collateral to _ the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the employer is not liable.</p>

Houston, J. i. The surviving husband or wife takes tbe marital fourth as heir,- the jurisprudence denominates it an inheritance. Dunbar Heirs, 5 Ann. 159; Connor vs. Connor, 10 Ann. 451-450; Gee vs- Thompson, 11 Ann. 657; Doster vs. i'erguson, Tutor, 1 Ann. 262. The wording of the Art. 2382.

Bightor, J. A railroad constructed on the soil of another is movable personal, property; and a pledge thereof is governed by the law regulating the pledging of movables. 3 B. p. 166; C. Qa arts. 3140. 3152. The vendor of movables has a special privilege on the samo superior lo that of any creditor, except the lessor. C„ C. art. 32X7, No. 7; arts. 3227, 3263.

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

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

<p>Tho judgment of court awarding an insolvent a discharge from his debts has no other or further effect than one homologating the proces verbal of the proceedings of the meeting of his creditors granting the discharge.</p> <p>The creditors are called before a notary by summonses issued pursuant to an order of court.</p> <p>This is not a technical citation.</p> <p>Proceedings in matters of insolvency arc of a summary character.</p> <p>Notwithstanding the exclusion of yaml testimony lor the purpose ot‘ correcting, amending or supplementing the return of the sheriff upon a citation, the party urging it as an objection will he estopped, if he has previously introduced parol testimony on the subject.</p>

<p>A bond furnished in the amount fixed by the order of the court for a suspensive appeal which alone was prayed for, hut not furnished within the delay prescribed by law for a suspensive appeal, is sufficient to sustain the appeal as devolutive.</p> <p>The order, although restricted in terms to a suspensive, covers any appeal, the character of the same, as suspensive or devolutive, being determined by the amount of the bond fixed and furnished, and hy the time at which the bond is liled.</p> <p>The correctness or regularity of the judgment of a competent- court, mailing the appointment of an undertutor, cannot be questioned or reviewed collaterally, even by the court which had made the appointment. His appointment is full proof of his capacity and has effect on third persons until set aside by appeal or in an action of nullity.</p> <p>Hence, an adjudicate© of succession property cannot set up the nullity of the proceedings leading to the sale, on the ground of the alleged illegality of the appointment of the . nndertutor who presided over the family meeting which recommended the sale, if the record shows that he was appointed by a court of competent jurisdiction.</p>

<p>"When a judgment isrendered, interpreting a former appealable judgment byincorporatingin • it a feature which, if it had been expressly contained therein, would have supported an appeal to this Court, such latter judgment will also be appealable.</p> <p>Other grounds of motion untenable.</p> <p>The judgment of a district court which lias been signed can only be revised or altered in the modes provided by law. Under the guise of interpreting the judgment, the judge cannot, after signature, make a substantial change in the judgment itself oil a mere rule for that purpose.</p> <p>Interest cannot be collected on a judgment for money which is silent as to interest.</p>

Lazarus, J. Factors and commission merchants are entrusted with the possession and control of cotton consigned to them for sale, and have a speecial property in said cotton, and are treated as onwers in contracts made by them with third persons. Russell vs. Factors, 252-6, 234; Story on Agency, Sections lli, 1J2 and 401; Cowper’s Report, 254; llAdol. &. Ellis, 549 ; Smith on Mercantile Law, p. 77; Paley on Principal and Agent, p. 13.

<p>An attorney employed by a person in insolvent circumstances and in contemplation of declaring bis insolvency and of making a cession, is entitled to compensation for advice and services rendered in the preparation of his petition and schedules; and that compensation must be fixed by the court having jurisdiction of the insolvent’s estate according to the proof.</p> <p>Xhe provisions of liev. Stats., Sec. 1817, exclusively apply to the “fees of the counsellor who shall be appointed to represent the absent creditors,” and same must be deducted from the amount awarded to them.</p>

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

k PPEAL from the Twelfth District Court, Parish of Grant. Jt\j Overton, J. 1. A married woman, authorized l>y her husband, can enter into a valid compromise of disputes aud rights affecting her separate property.

<p>In a suit by a creditor for the nullity of a transfer by his debtor to the latter’s wife, of property, as a dation en paiement of her paraphernal funds, on the ground that such transfer is simulated and fraudulent, proof on tho.part of the wife that there was actual consideration, although inadequate, is conclusive against the allegation of simulation. The attack of the transfer as a fraudulent preference over the husband’s creditors is tho revocatory action of our code, and is barred by the prescription of one year.</p>

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

<p>A conventional mortgage, under our law, can result only from contract.</p> <p>Where such a mortgage is claimed, under the terms of an ambiguous writing, two things aro essential, viz: (1) The intention to create a mortgage on the part of the parties thereto; (2) in order to have effect with regard to third persons, the expression of that intention with sufficient clearness to serve as notice to them, when the instrument is recorded.</p> <p>Finding both these essentials wanting in the instrument under which the mortgage is claimed, the right is denied.</p>

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

<p>The Constitution guarantees to every person the right to seek redress through the courts for any injury to his person or property, or to enforce any legal demand therein.</p> <p>So a court is without power to prevent, by an injunction, a person from bringing a suit before another court of competent jurisdiction, to enforce a right claimed or redress a grievance.,</p>

<p>A.tide 246 O. P. is applicable to the City Courts of $Tew Orleans, and when the garnishee under fi.fa. has confessed that he is indebted to the judgment-debtor in a sum of money, the judge is authorized to order him forthwith to pay sueh amount into the hands of the constable.</p> <p>Where such order is made after tin ee days from service of notice of the seizure on the judgment-debtor, who has made no opposition thereto, he cannot, under certiorari in this Court, have such orders annulled on the ground that the money seized was due for wages and, therefore, exempt. He had the opportunity to raise this issue in the lower court, and, having failed to do so, the judge was not bound to raise it for him. The order was regular and authorized by the law.</p>

<p>The plea of lis pendens is a declinatory exception, and cannot be permitted in an answer to the merits; and if incorporated in an answer, it is thereby waived and loses its efficacy as an exception.</p> <p>An exception to the jurisdiction of the court rations personae is likewise a declinatory exception, and must be pleaded in limine litis and before answering the merits.</p> <p>The terms and stipulations contained in act of mortgage consented, as a collateral security for an anticipated indebtedness for advances to be made in aid of the cultivation of the crop of cotton, must control the destination of the proceeds thereof; and same cannot be otherwise imputed or applied without the consent of the debtor and mortgagor.</p>

Houston7 J. Where a claim for damages for tort, done by legal proceedings, is based on such unlawful proceedings, prescription of the action commences to Tun only from the final termination of the suit. Bogas vs. Juillard, 25 Ann. 347; Harvey vs. Pflug, 37 Ann. 906 ? Wentz vs. Bernhardt, 32 Ann. 637.

Houston, J. I. Property purchased in the name of either spouse during marriage becomes an asset of tho community (C. C. 2402); and the fact that a title is taken in the name of the wife does not make even a beginning of proof that the property is paraphernal. II. In order that property acquired during the community in the name of the wife bo considered paraphernal, it is absolutely essential that three crucial facts should concur, viz : {a) Paraphernality of funds. III.

Tissot, J. Land purchased by a commercial partnership belongs to tiie individual niembors as joint owners, and not to the partnership. 30 Ann. 800; 35 Ann. 839. The partner who makes advances beyond capital agreed on is entitled to .interest. ]29 Mass 518; 2 Lindley Part.,.see. 787; 2 Lansing, 300. Partner has no right to withdraw his capital during the partnership. O. C. 2858; 129 Mass 518; 2 Lindley Part., soo. 611.

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

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

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

<p>Mandamus will not lie to compel a judge of the Civil District Court to rehear a causo which, in the exercise of undisputed jurisdiction, he lias heard, and in which he has rendered a final judgment disposing of the whole merits of the cause, and forming res adjiulieata between the parties, on allegations of the insufliciency and illegality of the reasons on which such judgment was based.</p>

<p>PPEAL from the DeBaillon, J, Twenty-fifth District Court, Parish of Term ilion.</p>

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

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

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

<p>Where a man conveys an immovable to a woman and subsequently marries her, there being no marriage contract respecting the property conveyed, he cannot, during the marriage, though living apart from his wife, maintain an action against her to have said conveyance declared a simulation, nor can he by passing a simulated title to another person, enable such person to have the conveyance to the wife annulled on the ground of simulation or other cause.</p>

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

<p>An appeal taken, by the State to a judgment quashing the general venire of jurors on the ground that the term of court at which it was impannelled was irregular and illegal, and presented here after the jury had been discharged and the term had lapsed, will not be entertained, because any judgment we might render would be utterly futile andincon sequential.</p> <p>It might be different if the indictment had been found by the grand jury formed out of the venire quashed, which, however, is not the case.</p>

<p>A stale demand long witlilield from presentation or prosecution, until lie, against whom it is preferred, has died, is regarded with disfavor. It must be established, when no hindrance was in the way, with more than reasonable certainty. The unfavorable presumption, created by the delay, can be removed only by peculiarly strong and exceptionally conclusive testimony.</p>

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

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

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

Livaudais, J. 1. Tli© existence of a corporation or its riglit to exercise corporate powers, can only bo questioned by the State in a direct action. Rev. Stats., sec. 2593; 5 Ann. 179; 18 Aim. 677 j 24 How. 278; Field on Corporations, sec. 493. 2. The general lawsW the State enter into and form a part of tho charter. Abbott’s Dig. of Corporations, vol. 1, p, 445, No. 6. 3. When no term for tho performance of an obligation is fixed it may be executed immediately.

<p>The original grantee from the eifc.v of Now Orlóme of a franchise or privilege of a right of ■ way over certain streets for railroads, fur a term of twenty years, cannot, after the ex piration of said term, enjoin Uio city from advertising and selling the samo franchise, on the ground that the city has failed to comply with its alleged contract obligation to take and pay'for its “railroads, rolling-stock, equipments and fixtures.'”</p> <p>Such failure, even if the obligation existed, could not operate to prolong the franchise, or to restrain the city in the oxorciso. of its sovereign authority over its streets for the benefit of the people to whom they belong in common.</p> <p>The specifications of the proposed sale cover only the franchise of the right of way, and do not propose to sell any property of plaintiff, all of whose legal rights are expressly reserved under a clause requiting the purchaser to respect and equitably settle for them $ and under the same clause plaintiff’may compete at the sale without waiving any rights.</p>

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

<p>The sale of the unexpired term of a lease involves the sale of the obligations as well as the rights. But nothing prevents the severance of the right of occupancy from the obligation to pay the rent and the sale of the former alone. The purchaser, in such case, would, of course, assume the risk of his right being defeated by failure of the principal lessee to pay his rent; but ho would, by no means, become personally bound for the rent.</p> <p>The sale in this case being of the right of occupancy alone, and not of the lease, the defendant cannot be held for the rent.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J. First. Neither a suspensive or devolutive appeal will prevent prescription from running against the judgment appealed from. Marbury vs. Pace, 30 Ann. 1330. A judgment becomes final from the date of the signature of the judge a quo, and if ten. years are allowed to elapse from the date of such signature, before citation of revival is served on the defendant, it is prescribed.

A PPEAL from the Tenth District Court, Parish of DeSoto. il Hall, J. 1. A tender of tlie juror to tlie accused is no waiver of the right of peremptory challenge. Wharton, P. and P. §675; Waterman, C. D. P. 602 (140); Wharton, C. P. and P. 672; Bishop on C. P., Yol. 1, § 945; Proxfat Jur. Trials. §§ 105, 165; State vs. Roland, 3S Ann. 19. 2.

Bernard. Livandais, J. 1. Courts of justice are hound to interfere with the discretionary power of a municipal . - corporation, when the exercise thereof is unreasonable, unjust, oppressive, in-restraint of trade, oi in contravention of common right, or tends to create a monopoly.

<p>When a lease is silent as to tlie use which is to be made of the leased, premises, it does not follow that the lessee may make what use of them he pleases; but he is still bound, to enjoy the thing “according to the use for which it was intended by the lease.” G. C. 2710.</p> <p>In ascertaining the use so intended, resort is to be had to surrounding circumstances, such as the nature and situation of the premises, the use to which they had been previously aptplied, the occupation and character of the person applying for the lease, etc.</p> <p>In aid of such circumstances, parol evidence may also be received to show that during the negotiations the lessee had been expressly notified that a particular use, foreign lo tho destination of the premises, would not be permitted. Such evidence does not violate the general rule prohibiting parol to vary or contradict a written contract, but falls under the exception admitting parol in order to ascertain the nature and qualities of the subject matter of the contract. Under the facts of this case, an injunction to prohibit the establishment of a bar-room on the premises leased is perpetuated.</p> <p>No injury having resulted to the lessor and his right to dissolution under O. C. 2711 being not absolute, but subject to judicial discretion, the dissolution of the leaso is denied.</p>

Lasarus, J. 1. The district courts of this Sítate are courts of superior aud general jurisdiction, with as full power to issue the writ of injunction in all proper cases as any Lord High Chancellor. 2.

<p>“When a suspensivo appeal bas been granted from an order dissolving an injunction on bond, and lias been perfected by filing of proper bond, the judge cannot afterwards rescind tbe order of appeal, on the ground that order appealed from inflici ed no irreparable injury, and was, therefore, unappealable. Affirming 36 Ann. 192.</p> <p>The terms of the order of appeal granted, when unambiguous, must spealc for themselves, and cannot be controlled by the statement of the judge that he did not intend to do what he has actually done.</p>

<p>Certiorari eon only bo resorted to when proceedings are absolutely null.</p> <p>n is only wlion, upon examination of the record, the proceedings appear to be null and void, . (hat they should he avoided and the respondent directed to try them nuow. in conformity with the provisions of the law.</p>

A PPEAL from the Sixth District Court, Parish of Morehouse. _OL Jevy, Judge ad hoc. A judgment of separation of property, in order to be valid, must be executed; dation en paiement one year after its rendition, does not revive or give it effect. 28 Ann. 345; 34 Ann. 690. A judgment of separatiou to effect third persons must bo advertised or recorded. Parol evidence is inadmissible to show authority to purchase real estate. O. C. 2997,2440; ■ 23 Ann. 196 ; 28 Ann. 678.

<p>Property acquired during a marriage in the name of the husband is presumed to belong to the community. Hor will such presumption be rebutted by proof that lie acquired the property with the money of his children by a former marriage; nor will such fact affect the title of the community to the property, though it may create a debt against it.</p> <p>The heirs of the wife become vested with a title to her share of the community property at the moment of her death: and though they receive it subject to the payment of the community debts, they are not hound to aw'ait a liquidation of the community before resorting to an action to recover it. Tugwoll vs. Tugwell, 32 Ann. 848, and Glasscock vs. Clark, 33 Ann. 584, reaffirmed. Hor in such action, petitory in its, character, is the indebtedness of the community or its financial condition dissolved, when a legitimate subject of enquiry.</p>

<p>APPEAL from tlie Sixth District; Court, Parish of Morehouse. Mlis, J.</p>

<p>A district judge who has recu.sed himself and appointed a lawyer or judge ad hoc to try the recused case, is the only one who has the jurisdiction or authority to appoint some one to fill a vacancy caused "by the removal, death, or resignation of the latter.</p>

<p>Tn criminal cases the Supreme Court cannot consider an appeal the record of which contains no plea or matter presenting an issue of law involved in the trial.</p> <p>The course of attorneys who take appeals in criminal cases to which they pay no further attention is deserving of judicial censure.</p>

<p>Suits against lailroad companies for damages may be brought in tbe parish where the dam - age was (lone or the injury received.</p> <p>Where the speed of railway trains is not regulated, by statute, unless in exceptional cases, tbe existence of a high rate of speed does not argue a fault on the part of the company</p> <p>Tbe reasonable rule is that the highest rate of speed is proper and legitimate consistent with the safety of the passengers.</p> <p>A person cannot recover for an injury to which he lias contributed by his own want of ordinary care.</p>

PPEAL from the Fiftli Distiiot Court, Parish of Ouachita. Meharclson, J. “ A railroad company which grants tlie use of its road to another company, is responsible for accidents caused to passengers which itself carries, by tbo negligence of the other company thus running by its permission.” Railroad Co. vs. Barrow, 5 Wall., p. 90; A and E railroad cases, vol 17, p. 649 ; 56 Ind. 511.

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

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

<p>PPEAL from the Third District Court, Parish of Union. Holstead, Special Judge.</p>

<p>"Wliore in a single transaction a party commits two distinct crimes, so related to each other that proof to sustain one need not involve the proof necessary to sustain the other, indictments will lie for both and conviction of one will not bar the other.</p> <p>Thus when one, entrusted by A with cotton for aparticular purpose, obtains money thereon from B, by falsely representing himself as owner and selling to him, he may be indicted as well for embezzling As cotton, as for obtaining B’s money under false pretenses ¡ and conviction of latter offense will not sustain axiirefois convict to the other.</p>

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

<p>A general mandate to the husband by a wife separate in property to manage her plantation and administer her property, does not authoiize him to bind her by the drawing of bills of exchange, the power to draw which must be express and special.</p> <p>When bilis are so drawn by such an agent in the name of his principal, payable in the future, and are accepted by the drawees and by them passed off to third persons, the latter cannot recover on them against the principal without proof of express and special authority in the agent to draw them.</p>

Livaudais, J. An overt attempt or act of violence by the deceased against the accused shortly before or at the time of the homicide, must be proved before evidence of prior quarrels, threats or of the dangerous character of the accused can be introduced. 35 Ann. 74; 36 Ann. 148; 36 Ann. 862; 37 Ann. 389; 37 Ann. 489; 37 Ann. 644; 37 Ann. 782; 37 Ann, 897; 37 Ann. 443; 38 Ann. 22, aud other authorities.

MeOlendon, Special Judge. fl. Persons legally married are, until the dissolution of the marriage, incapable of contracting another. C C. 93. % Where a woman had full knowledge that the man she was marrying had a living wife she cannot claim the benefit of good faith based on the supposition that the man was divorced, especially when she failed to use the means immediately at hand to ascertain the truth. 3.

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

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

<p>(Consolidated with)</p> <p>Oppositions to Account of Administrator.</p> <p>I'li© fees of an attorney for services rendered in the defense of suits against a tutor, on account of debts of a minor’s parents, are a legitimate charge against the succession of the parents.</p> <p>When the proof shows that an administrator has used an honest endeavor to protect the interest of the succession and the heirs, the maxim contra spoliatorem omnia presumuntur does not apply.</p> <p>Unless it has been shown that a succession representative has neglected his duty and has not used an honest effort to collect rents, he cannot be mulcted in damages therefor, but he must account for all he has received.</p>

<p>In a prosecution for obtaining money or piopeity by false pretences, tbe indictment must contain averments that the accused made false representations of a state of things past or present, and it will not be good if the alleged false representations refer to the future only.</p> <p>A. promise is not a pretence within the meaning of the statute, oven when the party making the same does not intend to keep it.</p> <p>Hence an indictment charging the defendant with falsely offering or promising to procure • the release on bail of a person in actual custody, by means of which he obtained money, does not disclose an offence covered by the statute.</p>

<p>Garnishment process is a method of seizure and not a bill of discovery, Interrogatories should be confined to matters tending to disclose indebtedne^ to, or possession, or control of property belonging to the debtor.</p> <p>Garnishees have the right to except to impertinent questions and to withhold answers thereto until such exception has been ruled on.</p> <p>When such exceptions have been taken, failure to answer before ruling thereon cannot be ground for judgment pro confesso.</p> <p>When answers to proper interrogatories unequivocallv disclose that the garnishees have owed nothing and had no possession or control of any property of the debtor, since the garnishment proceeding, and such answers have not been traversed, garnishees cannot be required to answer other interrogatories touching the disposition and whereabouts of property which may have been in their possession at some time prior to the garnishment. Such inquiries could be proper only under a traverse.</p>

<p>REPLICATION for Mandamus.</p>

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

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

Á PPEAL from the Twelfth District Court, Parish of Avoyelles. jL\. Blackman, J. 1. A special privilege, or power, must be availed of, Stricti Juris. 2. The modo, manner, time and extent of enforcing any special right, privilege or authority, granted exclusively by the Consitution, must bo construed in accordance with it, and is mandatory. 3.

Baker, J. 1. A dying declaration made under a sense of impending dissolution is admissible in evidence. 30 Ann. 362; 31 Ann. 95; 32 Ann. 1086 ; 36 Ann. 920, State vs. Moliss; 38 Ann. 660, State vs. Keenan; 1 G-lf. sec. 158; Wharton, Or. Ev. § 281. 2.

A PPEAL from the Twelfth District £jl Overton, J. Court, Parish of Avoyelles. A bank taking a note before maturity as collateral security for money loaned, becomes the holder in good faith for a valuable consideration. 21 Ann. 555. One holding a note as colltaeral security is practically owner of it to the extent of his debt. 27 Ann., 561. The pledgee of a promissory note payable to the drawer’s own order and by him endorsed, may sue and recover on the note. 21 Ann. 555.

<p>An order made by tho judge, in course of a trial, in anticipation of tbe exhaustion of the regular jury panel, directing tbe sheriff to summon tales jurors and bold them to serve, if necessary, for tbe purpose of saving time and avoiding delay, is not illegal, and will not invalidate a jury formed from such talesmen tendered only after exhaustion of tbe regular panel.</p> <p>When immediately after the swearing in of the complete jury, and before any further proceeding is taken, one of tbe jurors is incapacitated by illness from serving, the judge may excuse him and fill bis place from tbe panel, particularly when tbe bill of exception exhibits no denial of any rights accruing to accused on account of such action.</p> <p>While concommant circumstances tending to explain a flight from justice, as arising from other motives than consciousness of guilt, are admissible, yet proof of subsequent return after some time, and submission to arrest are of doubtful admissibility, and at all events of too little weight to justify disturbance of judgment because excluded.</p>

<p>A proceeding taken by an interested party, under the provisions of R. S., secs. 10 and 3698, on an administrator to show cause why he should not furnish additional security upon his bond, may be by rule.</p> <p>But with the demand for this specific relief, that for the destitution of such fiduciary cannot be cumulated. The latter can only be accomplished by means of suit in the ordinary form. •</p>

<p>A real tender is a condition precedent, sine qua nony to authorize a suit to rescind a judicial sale. When it is alleged, denied and not proved, the plaintiff’s action must be dismissed.</p>

<p>The privilege granted by law in section 128 of the Revised Statutes, in favor of attorneys-at-law for the amount of their professional fees on all judgments obtained by them, cannot be extended so as to affect property which the creditor may have acquired in execution or in satisfaction of the judgment.</p> <p>When the judgment has been satisfied it ceases to have a legal existence, and hence it cannot be applied to any privilege or other legal purpose.</p>

A PPEAL from the Twenty-fifth District Court, Parish of Vermilion. Be Baülon, J. 1st. Forced heirs when attacking simulated sales of their ancestors are not compelled to produce a counter letter; but may prove simulation by parol evidence. And in such proceedings their right of action is not restricted to their legitime.

<p>When suit is brought on a note in names of three members of dissolved firm, and is excepted to on ground that one is dead, plaintiffs may amend by striking out name on pi oof that his interest had been fully transferred to ne of the others.</p> <p>A judgment rendered on the verdict of a jury defective in being for plaintiff without specifying amount, cannot he sustained; but in reversing it this Court, when satisfied that the record presents all the facts and evidence necessary to a decision of the cause, will not remand it, hut will lender such judgment-following 13 La. 109, and 14 La. 343.</p> <p>Where the judgment maintaining exception to an intervention declares that it was Tendered hy reason of the law and the evidence taken theieon, and the record presents no such evidence, the judgment will ho affirmed.</p>

Overton, J. 1st. The right to a homestead under obligations existing prior to the Constitution of 1879 must he discussed under the law of 1885. 35 Ann. 927. affirming cases 34 Ann. 331 and 32 Ann. 980 5 but the concurrence of facts necessary to a homestead must co exist at the time of the seizure. 33 Ann. 242; 35 Ann. 322; act Constitution, 219. 2d. The cases reported in 26 Ann. 156; 28 Ann. 355 and 608, not applicable to the case at bai, Marcotte vs. Messiek, Manning’s…

<p>The Supreme Court lias no jurisdiction over a suit in nullity of a judgment rendered on an hypothecary action, when the amount, to pay which the property is sought to he subjeoi cd, does not exceed two thousand dollars.</p> <p>The circumstance that the demand in nullity is coaled with a prayer for damages exceeding that sum, does not make the case appealable.</p>

<p>Act Xo. 45 of I860, which is entitled “An Act to organizo the City Courts in tho city of Xcw Orleans, to regulate tho territorial jurisdiction thereof and proceedings therein, and to fix the salaries of the judges,” is not unconstitutional as violative of either Article 46, or Article 135 of the Constitution.</p> <p>Its provisions, which dotine the territorial jurisdiction of the city courts, far from conflicting with, were enacted in furtherance of. Article 135 of the Constitution, in which the courts aforesaid arc created, tinder its provisions, it is clear that no resident of the left bank of the city of Xcw Orleans can he sued in the Third City Court, whose jurisdiction is restricted to that portion of the city of Xew Orleans which lies on the right bank of the Mississippi river.</p>

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

<p>APPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeBaillion, J.</p> <p>1. An act by which property is transferred to another, with the right in the latter to sell the same in satisfaction of a debt due by the transferrer, and the surplus, If any, after payment of said indebtedness to be returned to the debtor is not a sale or a giving in payment. 32 Ann. 949; 36 Ann. 439 ; 35 Ann. 108.</p> <p>2. The intervenor has elected his plea of mortgagee and is bound by it. 23 Ann. 699; 35 Ann. 108.</p> <p>3. When a title or a real right upon real estate is claimed to be valid under the laws of another State, where it was acquired, those laws must be produced in evidence or proved, otherwise the validity of that title or real right will be made to depend upon our own laws, more especially when that validity is denied. 15 Ann. 491; 9 B. 151; 8 Ann. 134: 14 Ann. 391: 17 Ann. 73: 24 Aun. 387.</p> <p>The form of written instruments are governed by the law and usages of the plaee where they are passed; hut their effect must he regulated hy the laws of the place where the property to he affected is situated. C. C. Art. 10; 34 Ann. 797; 3 Ann. 212.</p> <p>A conventional mortgage is a contract hy which a person hinds the whole of his property, or aportion of it only, in favor of another, to secure the execution of some engagement, without divesting himself of the possession. C. C. 3290.</p> <p>An instrument by v hich mortgaged property is authorized to be sold extra judicially, is not valid under the laws of Louisiana, as far as third persons are concerned, whatever may be its effect between the parties; and that, even if executed out of the State. 3 Ann. 212; 34 Ann. 797.</p> <p>An act purporting on its face to be a trust conveyance or deed of trust in fee simple will not be given the effect of an act of mortgage binding on third parties. 34 Ann. 797.</p> <p>Reasonable doubt as to the true character of the Act will protect effectually third parties from its operation. 34 Ann. 800-1, opinion Associate Justice Denuer.</p> <p>An act executed in Alabama, and avowedly a mortgage under the laws of that State, and affecting real estate in this State, will not, even between the contracting parties, have the effect here which is claimed for it in Alabama, and as a mortgage will not operate as a divestiture of title. 38 Ann. 890.</p> <p>Mortgages should be inscribed in the proper boolr, otherwise third parties are protected. Louque’s Digest Verbo Registry, II (C) Nos. 2, 3, 4, 6 and 7.</p> <p>To novate a debt twoo onditions must concur. 1st, to extinguish an existing obligation; 2d, to substitute a new one in its place. C. C. 2185.</p> <p>Novation is never presumed; it must clearly result from the terms of the agreement or by a full discharge of the original debt. C. C. 2190; Hennen Digest, p. 992, Verbo Novation, Nos. 1 and 2.</p> <p>If the pre-existing obligation be only modified in part, and any stipulation of the original obligation is suffered to remain, there is no novation. C. C. 2187; 9 An. 228; 22 Ann. 184; 34 Ann. 534; CJode Napoleon, 1273; Marcadó, vol. 4, p. 582; No. II, 765-768.</p> <p>The transfer of a debt without subrogation is not the substitution of a new creditor. Marcadé, Vol. 4, p. 587; No. Ill, 769, 770. C. N. 1273; Civil Code, art. 2163 ; 21 Ann. 5; 27 Ann. 547.</p> <p>The laws of registry is te give public notice with reasonable certainty of the essential particulars of a mortgage; and when that is done the purposes of the law are satisfied. 3 Auu. 219; 2 Ann. 251; 5 Ann. 225.</p> <p>When the inscription of a mortgage by authentic act contains a copy of all portions of the act upon which the mortgage is based, it complies with the requirements of art. 3348, O. C., although itbe not a copy of the entire act. 35 Ann. 984; 5 R. 225; 6 Ann, 242-349.</p>

<p>Principal cannot, urgo that he has not taken tlio oatli of office, neither can his sureties; and the law will presumo that he did take the oath when lie has performed other requirements of tlio law.</p> <p>Persons signing an official bond admit the capacity of the principal, and cannot afterward deny Ms capacity.</p> <p>Persons signing unofficial bond as sureties waive dofocts of form. As they bind themselves so shall they bo bound. "Where no separate booh is kept, registry in the mortgage book is sufficient.</p> <p>Sureties cannot complain of any act of omission or commission, which does not affect their rights as against the principal.</p> <p>Sureties cannot set up ineligibility of their principal when he has acted in the official capacity mentioned in the bond.</p>

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

<p>Where tlie co-proprietor and editor of a newspaper has, under contract with his co-partner, the absolute right to have full editorial control and to dictate its policy and formulate its utterances upon any and all topics and subjects without hindrance or iuterference from his partner or any other source, the deprivation and denial of such right by the acts of his co-partner constitutes an injury for which pecuniary damages would be an inadequate compensation, and, therefore, in the sense of the law, irreparable.</p> <p>If an injunction, restraining the party from violating and depriving the other of the exercise of such right, be dissolved on bond, such order of dissolution is an interlocutory decree which may cause anirreparablo injury, and is, therefore, subject to a suspensive appeal.</p>

Roman, J. The prisoner was on a railroad train, under arrest, hcmdeuffed and shackled, at a time when a conversation between two other men occurred in his x>resence; he remained silent. Bill of exceptions, II. pp. 24 to 27. Mere silence, while a party is wider aA'rest and in irons, affords no inference whatever of acquiescence in the statements of others made in his presence. Under such circumstances he is not called upon to contradict such statements.

<p>In a criminal prosecution it is nob competent for the District Attorney to question a State witness as to the cause of his unfriendly feelings against the accused, which he has admitted on his cross-examination by the defence, without objection. The inquiry cannot be pressed further than the existence of the unfriendly feelings.</p> <p>The decision in State vs. Gregory, 33 Ann. 779, affirmed.</p>

A PPEAL from the Tenth District Court, Parish of Red River. iA Hall, J. 1. In prosecution for shooting with intent to murder, where the evidence shows that it would have been murder, had death ensued, that, in itself, will be sufficient ground for the jury to infer the existence of the intention of murder. 'Waterman’s D., p. 52, No. 210; Bishop Grim. L., vol. 1, § 736. 2. A conviction under sec. 791 of the Revised Statutes is responsive to a charge under sec. 790.

<p>APPEAL from the Seventh District Court, Parish of Catahoula. Lilis, J.</p>

<p>One may be indicted by a name oilier than his true one, if he is sometimes called by it, answers to it when called, and makes an appearance in court demanding relief under it.</p> <p>The provisions of act 124 of 1874, making a distinction between grand and petit larceny do not conflict with, or repeal those of section 814 of the Revised Statutes, denouncing the crime of horse-stealing.</p> <p>An immaterial and impossible date in an indictment may be corrected at anytime; particu- • larly when the date is not of the essence of the offense charged.</p> <p>It is the right and the duty of judges to cause proper corrections to be made in the minutes of their courts, to the end that same may conform to the truth; especially when errors, or omissions are within their personal knowledge.</p> <p>It is not necessary that the minutes should show that the defendant was present at the timo a motion to quash is tried, nor when an indictment is amended in an immaterial matter.</p>

<p>A motion for a continuance, based on an ajidaint which is insufficient, cannot be allowed.</p> <p>A motion to ■ compel the State to elect between two counts, which does not set forth the grounds upon which it rests, cannot be granted. The overruling of it cannot be reviewed on appeal, when the bill taken to the refusal of the court to order the election, does not set forth either those grounds or those on which the action of the trial judge was predicated. |¶1</p>

<p>In all criminal trials the State is entitled to six peremptory challenges for each of the parties who are jointly on trial.</p> <p>The discretion of the trial judge to discharge jurors on the panel for reasons satisfactory to him will not he reviewed on appeal.</p> <p>In cases of conflicting statements of facts, in bills of exceptions, between judge and counsel, the Supreme Court will accept the statements of the judge; unless proper means are taken by counsel to vindicate their contention.</p> <p>Evidence taken in support of a motion for new trial will not be considered on appeal if it is not embodied in, or made part of reference of a bill of exceptions.</p> <p>An attack by the defense on the veracity or credibility of a State witness, may be legally met in rebuttal by the State by testimony to sustain the assailed witness.</p> <p>If the attempt is to show that the witness had previously made Statements or declarations contradictory to his testimony on the trial, it is competent for the State to show that soon after the occurrences which he relates, he had made to persons other than the impeaching witnesses, declarations in harmony with his testimony on the trial, although the particulars of his statements thus made are nót admissible.</p>

Taylor, J. •‘The real cause and consideration of a written contract involving the transfer of immovable property may be shown by parol evidence, although it appear that the real consideration was different from the one expressed in the contract.” 32 Ann. 432. “ The true cause of a contract may be shown by any legal evidence, oral or written, and the evidence adduced for that purpose never can be considered as contradicting the act.” 3 Ann. 230; 5 Ann. 741; 13 Ann. 25. 340;…

<p>It is not every error in the rulings of a judge during the progress of the trial that will justify the setting aside of the verdict.</p> <p>To warrant such action on the part of the court it must be so grave an error as to induce tlio belief that but for its commission a verdict favorable to the occasion might have been returned.</p> <p>Where there is a disagreement between the trial judge and the counsel for the accused touching the facts connected with a ruling complained of, and the record does not enable the appellate court to ascertain the exact truth, the statement of the judge appearing in the bill of exceptions or otherwise of record should control the conclusion of the court on the contro* verted points.</p>

<p>Plaintiffs, having sold a locomotive to defendant at a price of $2000, subject to latter’s right to reject it after trial, defendant did reject it. Agreement then made that defendant should further use the locomotive for twelve days, at end of which he was either to deliver it or pay the price. He afterwards refused to do either aud held and used the locomotive. Plaintiffs claim damages for tortious conversion in the value of the locomotive ftxed at a higher amount than the price originally agreed. Case was tried "by jury on this issue, plaintiffs asserting value to be greater and defendant asserting it t-» to be less than the price. Jury found for greater sum. Held: that defendant having abandoned the sale and sought to reduce his liability below the price, cannot now set up tbe price as the measure of his debt. Had the jury found a less amount, the plea would not have been heard.</p> <p>Plaintiffs are not entitled to special damages for attorney’s fees in this suit and amendment to that effect refused.</p> <p>The verdict of the jury, being based on their estimate of conflicting evidence and being expressly approved by the judge, will not bo disturbed.</p>

<p>. Notwithstanding the defendant’s challenges have been exhausted, at a time when one made by the counsel for the State is sustained, no ground of complaint is afforded the former The right is that of selection, and not that of rejection by tho State.</p>

Drew, J. Morbgagos and privileges are extinguished and confused when the creditor acquires the ownership of the thing subject to tho mortgage and privilege. It. C. C. 3277, 3411; 15 Ann. 407; 25 Ann. 559, 560 ; 34 Ann. 1032, 1035; 33 Ann. 454, 463. A conventional sale or exchange, although made in satisfaction of a prior mortgage, does not discharge or extinguish existing mortgages. The sale must be judicial to have that effect. Ayrand vs. Babin, 7 N. S. 473.

PPEAL from tbe First District Court, Parish of C iddo. Hieles, J. The court may instruct the jury to try the ease according to the law, the evidence and their experience. Bishop’s Criminal Procedure, vol. 1, see. 982. ' The presumption of the common law. that an infant under the age of fourteen years is absolutely incapable of committing the crime of rape, does not prevail in America.

<p>A decree setting aside a judgment of forfeiture of an appearance bond is theoretically and practically one granting a new trial and is not appealable.</p>

Drew, J. Amendments should always be allowed, when justice is subserved thereby if they do not change the substance of the issue, and cause no injury to the opposito party, nor prejudice to his rights. 27 Ann. 316 ; 36 Ann. 786 and 32 Ann. 395. Amendments do not change the substance of the issue when they can be cumulated with the original pleadings, 10 Ann. 599 and 8 S. 226.

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

Drew, J. Towns are corporations of limited powers and cannot tax except for the very purposes allowed by the law, and in the manner and under the conditions prescribed by law. Cooley on Taxation, 253 and note 1. Municipalities must confine themselves closely within the powers conferred.

Tissot, J. Both the form and effect of an ante nuptial gift of real estate, situated in Georgia, are governed by the law of that State. Georgia Code, § 8, 1782,1950, 2741, 2692, 2657, 2658, 2659, 2660, 58, 59, 2706; Story, § 438, 444, 444a, 475; Prolix, No. 60, 72, 73, 85; 27 Texas, 38; 1 Zacliariro, § 31.

<p>An indictment containing tlie charge of an “ assault with an intent to commit murder,” and a charge of “ inflicting a wound less than mayhem ” is not vicious for duplicity — as the two offenses can grow out of the same act, are kindred offenses and were incorporated in sepaiate counts.</p>

<p>"When the defendant in a suit for damages on account of an alleged tort, dios pending tire litigation, after citation and before issue joined, tlio suit may be prosecuted against tlie beirs of tbe deceased who have accepted bis succession. O. P. art. 25.</p> <p>But, if besides lawful beirs, tbe deceased bas left a surviving wife, the widow cannot be sued as an heir, but only as widow in community, as slie thus becomes liable for one-half of tlie damages which may be recovered, and tbe beirs aro then liable for tbe other half, each for bis virile portion.</p> <p>If tbe widow is cited as an heir slie is not properly brought into court in her legal capacity, and in such an event the succession being only in part represented, no valid judgment can be rendered in tbe case.</p> <p>A trial held under such pleadings is illegal, null and void, and the judgment rendered therein must bo set aside, and tbe cause remanded to tbe lower court for further proceedings.</p>

Hall, J. 1.A jury consisting of not less than six fine holders must be appointed to trace and lay out a new road proposed to be established, and they must take the oath prescribed by law. Sec. 3369 R. S. A road cannot be transferred to another place without the consent of the owners through or contiguous to whose land it runs. Ib. 34 Ann. 940. A failure to comply with an important requirement of the law in establishing a road nullifies the whole proceedings. 27 Ann. 204.

Houston, J. 1. By taking possession of tlie estate of liis wife, and continuing tlie same business for two years after lior death, without causing an inventory to be made, James Darcy became personally responsible for all the debts of the community. The share of his minor children was not liable for these debts. B. C. C. 988, 1010. 2.

<p>Xho principle that, in an action of nullify, the judgment attacked as null cannot ho pleaded as res adjudteata, does not apply whore the grounds of nullity assorted had been considered and validlykloterniincd by that .judgment itself.</p> <p>In this case,’not only were the grounds of nullity now charged considered and determined in the original judgment, but the same grounds were afterwards presented on an exception of nullity on which issue was joined, and which was again determined adversely to the exception. Xhis operates res adjudicata against tlio present action, which is brought by the sameparlies (in law), against the same judgment, and on the same grounds.</p>

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

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

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

Justices of the Peace have a right to grant new trials within three days after service on defendant of a valid notice of judgment, where the judgment was rendered out of his presence. Art. 1152/ Code of Practice; “Louisiana Magistrate,” p. 53; Knoblocb’s Civil and Grim. Justice, p. 74; Act 45, 1880, sec. 7; Hule XI, City Courts, New Orleans; Slate ex rel. Broussard vs. Koenig, 39 Ann. C. P., 1085, 1131.

Mall, J. 1.Indictments for statutory offenses need only describe the offense in the language of the statute, or words of similar import. State vs. Pratt, 10 Ann. 1915 State vs. Henry, 10 Ann. 207; State vs. Batman, 15 Ann. 156 ; Arch. Grim., P. and P., p. 14; Bishop on Grim. Prac , sec. 478; State vs. Williams, 37 Ann. 776 ; 33 Ann. 312; 36 Ann. 923. 2.If the statement of the real facts constitute a substantial violation of the statute, the indictment is sufficient.

<p>The provision of Art. 165, No. 9 C. P., making corporations committing trespass or doing damage “ liable to be sued in the parish where such damage is done or trespass com mitted,” does not confer jurisdiction of such, action upon justices of the peace away from tbe corporate domicile. The Art. 165 is found under a particular titie of the C. P.</p> <p>f tbe first article of which restricts tbe application of tbe provisions under said title to district courts, and declares that “special rules are hereafter established for justices of the peace.” Such special rules are found in the following TitleIV of said code, articles 1069 and 1070, of which expressly forbid them from exercising jurisdiction over defendants domiciled in the State outside of their territorial limits.</p> <p>The case is not affected by the fact that the provision of Art. 165, No. 9, is also embodied in section 725 R. S. The same Legislature adopted both the Revised Statutes and the Code of Practice, and in oases of conflict, gave precedence to the latter. By embodying the provision as an amendment to Ait. 165 and by leaving Arts. 1069 and 1070 unchanged-the legislative intont was fully indicated to maintain the latter in full force. Moreover, said articles are in direct conflict with Sec. 725 R. S., and under Art. 3990 R. S. the code must be ‘-held and taken as the law governing,”</p>

<p>PPLICATION for Oertiorari.</p>

<p>A judge who has been recused has no rishfc to take any judicial aciion in the case in which the recusation has been made</p> <p>lb does not appertain to him to say that the recusation is not well founded.</p> <p>Ho must, immediately, where he does not acknowledge, proprio motu, that tho recusation rests on good reason, call in another judge, or lawyer, as the case may he, to determine the question on that issue.</p> <p>It is not until after the question has been decided adversely to the party raising it, that Ihe judge can resume and exercise jurisdiction over the controversy.</p> <p>It ought to be well known that, under article 90 of the Constitution, this court has a general supervision and control over inferior courts, regardless of amount, in all oases, otherwise proper.</p>

Monroe, J. 1. Defendant’s employes entered plaintiffs’ premises (in their absence and without their knowledge or consent), by climbing the boundary fence, and destroyed the outer limbs of two ornamental magnolia trees. This is a trespass, and plaintiffs have their action for it, though no other damage be proved. Sutherland Damages, 3, pp, 364, 385, 869, 469 , Cooley on Torts, pp. 63-4. 8. The wanton destruction of shade trees may be an irreparable injury.

<p>A tax sale is not necessarily cancelled, and annulled by a certificate of redemption issued under the provisions of section 69 of act 42 of 1871, as such certificate is intended merely to redeem immovable property from a previous forfeiture to the State.</p> <p>Under that section the privilege of redemption is extended to any person interested, and this includes the purchaser at the tax sale.</p> <p>If the certificate is made in favor of the original owner, it is competent for the purchaser to show that he.made the payment out of his own funds with intention to retransfer the property to the former owner, on condition of reimbursement within a given time by the latter.</p> <p>An action to invalidate a tax sale made under a law of the State is barred by the prescription of three years. Barrow vs. Wilson, 89 Ann. 408, affirmed.</p>

PPEAL from the Civil' District Court for the Parish of Orleans. Houston7 J. 1. Master and Servant. Held: by his contract ot hiring, to assume the risk of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part. He has, therefore, no right of action, in general, against his master for an injury befalling him for such a cause.

<p>"When aman contracts a second marriage whilst his first wife is living and undivorced, and dies leaving property acquired during the second marriage, if the second wife married in good faith, the estate will ho shared equally by the two wives.</p> <p>"Where after the death of the husband the widow of the second marriage recovers an im movable, which had been acquired during her marriage, but from which the husband had been illegally evicted before his death, the property, together with its fruits and revenues recovered at the same time, will belong to the second community and be subject tobe equally divided between the two widows.</p> <p>The widow of the second marriage is only accountable for the revenues of the property in her possession received by her after the dissolution of the marriage from judicial demand. She is a possessor in good faith.</p>

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

<p>Defendants have a right to object to a cumulation of several distinct causes of action against tliem, where these have no cognate origin, and where they have no common interest to bo adjudicated upon in one judgment.</p> <p>They may sever, but are not bound to do so.</p> <p>In a suit in damages for the wrongful obtention of an injunction, the plaintiffs in injunction the sureties on the bond and an alleged instigator or fomentor of the proceeding, though sued, some ex contractu and others ex delicto, may be joined as defendants in the same suit' reserving their right of severance in their defenses.</p> <p>Consent cannot give jurisdiction; and when our attention is called to a defect of juiisdic* tion rationc materice, we are bound to rectify it, whatever the laches of the parties.</p>

Houston, J. 1. He who would sustain his plea of the prescription of thirty years must show, by satisfactory evidence, a continuous and uninterrupted public and unequivocal possession, under the title of owner, for the full term of thirty years. O. C. 3500 [3465], 3436. 2.

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

A PPEAL from tlie Civil District Court, for the Parish Orleans. LX. Rightor, J. 1.

<p>The sniviviug parent, holding property in common with minor children of a marriage with the deceased spouse, whether of the late community or derived by testament, may cause same to be adjudicated to him, or her, in whole or part, at an estimation of value fixed by experts appointed and sworn by the'judge, after a family meeting shall have declared that such adjudication is for the minor’s interest and advantage, and their ttndei tutor shall have given his consent thereto.</p> <p>A judicial adjudication of property thus held in common will not be annulled for informalities anterior to the decree of adjudication. Such decree is conclusive as to the facts on which it iests, until corrected on appeal, or annulled in a direct action.</p> <p>When, as in this case, the property sought to bo adjudicated to the surviving spouse is shares of stock of a corporation, and a rule is taken on such corporation to sho ' cause why the stock should not be transferred on the books of the corporation, in conformity with the decree of adjudication, the answer of the corporation thereto, presents an issue that mu8tbe decided as a necessary step to the completion of the adjudication. On appeal taken from the decision of the judge a quo, on the rule, we may decide upon the regularity of the anterior proceedings, and whether the consummation of same would bo to the best interest and evident advantage of the minors.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. JLjL.

Monroe, J. 1. The C. C. Art. 3237 grants a vendor’s privilege on the property sold for the payment of the price, or so much of it as is due, whether sold for cash or on credit. 2. This is a right which springs from the nature of the debt, and by force of law is embodied in the contract. 3. It is also a right of very high character conferring advantages superior to those which flow from a mortgage. 4.

<p>To authorize an appeal from an interlocutory decree the decree must be such as would work an irreparable injury.</p> <p>So where a lessor complains that the lessee has placed an electric batcery and ejected machinery in a part of a building leased by him, in violation of the contract of leaso, and ciaims damages to the amount of the rents to be paid for the residue*of the building, which he avers will be abandoned by the tenants, and demands the dissolution of the lease, and at the same time asks for an injunction to stop the running of the machinery pendente lite, the order of the judge refusing to grant the injunction is not appealable.</p> <p>The injury likely to be caused by the disturbance is not irreparable, nor is the refusal of the injunction decisive of the cause on its merits.</p>

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

<p>PPEAL from tbe Twenty-sixth District Court, Parish of Lafayette Be Baillon, J.</p>

<p>In the absence of proof tbat an act of sale, under private signature, attacked by foroed heirs, as designed to serve as a disguised donation — was sncli in tlie intendment of the parties, the court will not pass upon the sufficiency of the act sous seign privó, as ti ana lative of the property.</p> <p>The sales of immovable property made by parents to their children may be attacked by the forced heirs as containing a donation in disguise, if the latter can prove that no price was paid, or that the price was below one-fourth of tbe real value of the immovable sold, at the time of sale. H. C. C. 2444.</p> <p>The law does not favor actions by forced*heirs to undo transactions of their ancestors as done in fraud of their rights. The burden is upon them, and, in the absence of convincing proof, and in the presence of evidence which merely cast a suspicion, the court will not take the property of one man to give it to another; (Act of 1884 not applicable here.) The law does not, in proper cases, leave the heirs without relief. *</p> <p>If it be true that forced heirs can be likened to creditors, and may resort to the revocatory action, their right to sue would be barred by one year from the death of the parent.</p> <p>A partition cannot be ordered of property which cannot be described, so as to give bidders an exact knowledge of what is to be offered for sale.</p>

<p>A PPEAL from the Civil District Court, for the Parish Orleans. t A. FAghtor, J.</p> <p>1. This court will not i«t>ue the writs of x>robibition and certiorari to inferior judges in cases jn which they have exercised their legal authority and discretion. Previous decisions affirmed. 33 Ann. 378, 794,1284,1356. Writ of certiorari refused by this court on the ground that, under the supervisory power granted by article 90 of the Constitution, it cannot pass upon the correctness of the judgmentof an inferior court, in an unappealable case, when said judgment appears to have been legally rendered. 33 Anu. 378.</p> <p>2. Art. 911 C. P. having reference to applications for a rehearing, has been construed as not applying to the writ of certiorari issued from tbis court, under Art. 90 of the Constitution, to revise the proceedings of inferior courts in cases where no appeal lies. That article of the Code of Practice could not embrace such cases, for they were not in exist enee at the adoption of that Codo. The effect of the remedy granted in certiorari oases is the same as in habeas corpus cases. The judgment on its rendition becomes immediately executory in such eases. State ex rel. DeBuys vs. Judges Civil District Court, 32 Ann. 1263 and 1264.</p> <p>3. In an application for a writ of ccrtioraH, the record of the proceedings below makes full proof of itself, and is conclusive if not assailed and proven to oe incorrect and untrue. The unsupported affidavit of the relator, of facts and proceedings, when contradicted by counter affidavits, and negatived by the record, cannot avail the applicant. State of Louisiana ex rel. Mr. and Mrs. Walter Began vs. Judge of the First City Court of New-Orleans, 36 Ann. 977. In 18 Ann. 113, a mandamus case, the court refused to entertain an application for a rehearing, and in 21 Ann. 50, in a proceeding for a prohibition, also refused to entertain an application for a rehearing. Such was the law at the date the unit o£ certiorari was denied by this court in case just cited. State ex j el. Began vs. Judge First City Court, 36 Ann. 977.</p> <p>4. The judgment of 9> justice’s court ejecting the occupant of a house under the laws of landlord and tenant, charged to be null and void in an action of damages for wrongful ejectment, cannot be inquired into collaterally, if regular in form and valid on its face. Huygbe vs. Brinkman, 34 Ann. 831. Samo authoiity, p, 833, the comt adds : “ As the judgment under which plaintiff was expelled is ñnal and valid on its face, and as she does not claim title or ownership to the property from which she was ejected, we are at a loss to conceive upon what grounds she can recover damages in this suit.”</p> <p>5. The premature issuing of execution is a meie irregulaiity, which the defendant, may have corrected within the delay for, or after he has taken his suspensive appeal; but if he suffer the delay to expire, it does not then even give him the right to an injunction. Dayton vs. Commercial Bank of Natchez, 6 Bob. 20; Morgan vs. Whiteside, curator, 14 L. B. 280. See, also, 1 Bob. 497; Leggett vs. Potter, 9 Ann. 309; Hatch vs. English, 12 Bob. 136. The execution of a judgment is not void because issued before the delay had expired, but becomes valid by the expiration of the delay, there being no attempt on the part of the defendant to correct the irregularity. Sowle vs. Pollard, 14 Ann. 287, and authorities cited.</p> <p>6. A rehearing can he asked and allowed only where the court has erred. Bacas vs. Smith, 33 Ann. 141. Where there is no such error, the rehearing must be refused. 33 Ann. 588.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.</p> <p>t. A contract of sale;of property for future delivery is not an illegal’as being ot again* bling or wagering nature, unless there was-a mutual intention not to receive or deliver the goods, mutually known to the contracting parties, and existing at the time of the contract was entered into. 37 Ann. 814; Art. 2983 C. C.</p> <p>2.A partner is the agent of his copartners, and has the authority and power'to bind them by acts done within tbe usual scope of their business.</p> <p>3.The correctness of the claim in suit is established by the evidence.</p> <p>1. The fa'cts show that the transactions sued on were individual apeeulations of defendant’s former partner.</p> <p>2. This is undoubtedly the case as to three hundred bales bought and sold in the name of Carl. ■</p> <p>5. This last transaction sued on is characterized by the fifteen other transactions had between plaintiffs and Stucken & Co. From the fact that they were all settled by differences, the presumption is irresistible that it was tbe mutual intention of the parties to settle the last by differences.</p> <p>4.This conclusion is emphasized by the fact that plaintiffs used these contracts on the floor of the Exchange in settlement with their fellow-brokers — in 'other words, ringed them out — and paid no money in settlement thereof. That is why the loss occurred to them.</p> <p>5.After this.use of'the contracts on the floor of the Exchange, there jvas no contract left which Stucken &'Co. could enforce. Irwin vs. ‘Willar, 110 U. S. 499.</p> <p>I». Under the facts,*plaintiffs are not in the position of an innocent non-participating broker, seeking to recover disbursements made on account of his principal.</p>

Burgess, J. When the trial judge refuses a continuance for want of due diligence in procuring the attendance of absent witnesses, his ruling will not he disturbed, unless it clearly appear that his discretion has been abused. 37 Ann. 128, 774, 786 ; 31 Ann. 179, 408; 34 Ann, 381; 34 Ann. 679 ; 36 Ann. 15J, 852, 872. As non-resident witnesses can be summoned or attached in vacation (R..

<p>An opposition charging: fraud and undue preference against an insolvent, and seeking to have him debarred from the benefit of the insolvent laws, cannot be maintained, when the act complained of was undone before the cession and matters restored to their previous condition, the less so where the transactions appear to have taken place in good faith, andno injury resulted therefrom to the complainants.</p> <p>The rule of evidence is well recognized and well settled: that, where a litigant resorts to the declarations of another, he must take the whole or none. They are a unit. He cannot use the portions favorable and repudiate the rest.</p> <p>It lias, accordingly been held that-, where suoh party introduces iu evidence, without qualification, an instrument of writing, in which the other party has an interest, he cannot be permitted to impeach or gainsay the verity of its statements.</p>

<p>A will executed iu the country, and purporting to be a nuncupative testament, under private signature, in the presence of three witnesses only, one of whom did not understand the language in which tlio testator expressed himself and the will was drawn up, is invalid.</p> <p>The circumstance that, wjiile it was being dictated, what was then said had been translated to that witness, does not supply the want of knowledge of the language in the latter.</p> <p>The law disqualifies as a witness to a testament a person who is deaf. A witness who does not understand the language in which a will is dictated and written down is intellectually deaf, and practically, is as though he had not attended at all.</p> <p>A nuncupative will, under private signature, executed before two competent witnesses only is invalid.</p>

<p>A PPEAL from the Twenty-first District Court, Parish of Iberia. ■ r\ Monton, J.</p>

<p>(Consolidated.)</p> <p>Motions to dismiss appeals should be based on alleged irregularities in the lower court or in the appellate court in the proceedings relating to the nppeal, or want of jurisdiction in one or both courts, and should contain nothing relating to the merits of the controversy except for the purpose of illustration.</p> <p>One is not disqualified from being a security on an appearance bond because he is security for costs or on the injunction bond in the court below.</p> <p>Where a rule was taken to compel a compliance with an adjudication, and the property was adjudicated for a sum exceeding §2000, this court has jurisdiction.</p> <p>The plaintiff in execution of a money judgment, becoming the adjudicatee of real property at execution sale, during the pendency of a devolutive appeal therefrom, and put in possession thereunder by the sheriff executing the writ, cannot be treated as being illegally in possession because the only evidence of her title is the sheriff’s proees verbal of adju • dication.</p> <p>Notwithstanding the amount of such plaintiff’s judgment may be subsequently reduced by the appellate court to a sum less than the price of adjudication, and the sheriff’s proees verbal does not recite the payment thereof by the purchaser, she cannot be treated as in contempt of an injunction obtained by the judgment debtor, restraining her* from making sale of the property pendente lite, on account of her attempt to procure a deed of sale from the sheriff, by rule, in the meanwhile.</p>

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

<p>Iu case a jury returns into court a verdict which, in the opinion of the trial judge, does not conform to the charge in the indictment, or to any lesser ofiense of the same hind, he may remand tbe jury, under proper instructions, to correct it.</p> <p>In this maimer tbe delay and expense of-a new trial may be avoided and same object at* tained.</p> <p>An application for a now trial, predicated on newly-discovered testimony, is properly re* iused if it appears from tbe judge’s assignment of reasons in tbe bill of exceptions re* served, that it was cumulative only.</p> <p>Tbe judge bas tbe right to direct tbat proper corrections be made in tbe minutes, so as to conform same to tbe facts witbin bis personal knowledge, even after tbe trial and ver* diet bas been rendered.</p>

<p>Mandamus does not lie to compel a district judge to dissolve a sequestration unconditionally, on bond by plaintiff, where the property sequestered had already been attached.</p> <p>Coupling the dissolving order on bond with the provision that it shall not be construed as a release of the property from the attachments previously levied upon it, was a wise and judicious reserve.</p> <p>An exparte dissolution of a sequestration on bond does not affect attaching creditors who are not parties either to the suit in which the writs issued, or to the motion to dissolve.</p> <p>A restraining order will not issue where the party seeking it may obtain relief by other adequate remedy in the lower court.</p>

<p>A clerk’s certificate that a transcript is complete, as containing all the evidence adduced, etc., protects an appellant, although the transcript does not contain that evidence.</p> <p>In such a case, in furtherance of the ends of justice, the cause must be remanded.</p>

<p>A PPEAL from the Twenty-first District Court, Parish of St. Martin. /~\ Mouton, J.</p>

<p>A. judgment that bus been rendered iu an attachment suit against an absentee, represented by a curator a,d hoa} is one in Tam, and not in personam. Tt affects the property attached</p> <p>In sucli case the jurisdiction of tbo comt is derived from the seizure of the property, and its judgment has no validity except against the thing thus subjected to its control.</p> <p>The registry of suck a judgment does not result in a judicial mortgage, and a subsequent lease of the property is unaffected thereby.</p>