Volume 40 — Louisiana Annual Reports

<p>A District Court has no jurisdiction over a cause, the object of which is to have it determined that claims, to enforce which suits are apprehended to be brought before a city court in unappealable amounts, have been paid or setttled.</p> <p>As a corollary, such court has no right to issue an injunction to prevent the creditor from instituting such suits.</p> <p>It will be time enough to urge the plea ot payment when the claims are put in suit. It is not to be presumed that if the same is established, the city judge will not maintain it or will violate the law and his official oath- 39 App. 619 affirmed.</p> <p>While under Article 90 of the Constitution this court would be impotent to upturn an illegal judgment overruling the defense of payment, it could, under proper charges and proof, afford adequate relief under Article 200 of the same Constitution.</p>

<p>A person indicted for a capital offense is not entitled to bail on the ground that his case has been continued at the instance of the State, if it appears that the only effect of such continuance is to postpone the trial to the next month after the date for which the trial had been fixed.</p> <p>An indietment for a capital offense affords sufficient presumption of the guilt of the accused, to remove him from the right to bail under the provisions of Article 9 of the Constitution.</p>

A PPEAL from the Thirteenth District Court, Parish of St. Landry, i\ Bstilette} J. 1. An appeal in a criminal case filed within three judicial days after the expiration of the ten days allowed by law, will not be dismissed. State vs. Francis, 38 Ann. 464. 2.

<p>The only question on this appeal is as to whether a cause of action is set forth against G-lenny & Yiolett.</p> <p>. Considering the allegation of the petition that the principal defendant has sold or exchanged $34,000,000 of stock certificates for $10,000,000 or less of property; and considering that the sole allegation connecting Gr. & Y. with the matter is the simple one that they are engaged in selling and dealing in these certificates, without any suggestion that they act as agents of the Trust, or enjoy any exclusive privilege not open to every other person. Held: .First, that no reason is set forth for enjoining Gr. & Y. from selling, while leaving the rest of the world at liberty to do so; second, that whatever be the validity of the certificates as shares of stock, and whether or not they confer on the holders the privileges of corporate shareholders, they certainly represent an interest in the property for which they were taken, and have a value, and cannot be placed hors do tommorce by an injunction.</p>

1. The exception that the petition disclosed no right of action, because plaintiff was guilty of bigamy, and the judgment maintaining such exception and dismissing plaintiff’s suit, is res adjudicata between the paitiesasto all matters contained in the petition. C. C. 2*286, 2287, 1 Ann. 47; 19 La. 328; 3 Ann. 446; 12Aun.l97; 23 Ann. 619; 14 La. 59. 2.

<p>It appearing that defendant is the owner of the mortgage notes herein concerned and that he has actually paid the maker the face value thereof less a discount of nine per cent, he is entitled to recover the whole amount thereof, notwithstanding the inclusion of such usurious interest therein, under Art, 2924 Bev. C. C,</p> <p>In an action to cancel and annul a mortgage on allegations of fraudulent simulation, where the holder of the mortgage notes has actually reduced them by indorsement thereon, before suit to the amount actually due and correctly admits such reduction in his answer to the suit, and where the reality and good faith of his mortgage to the full extent claimed by him are clearly established, the mere failure to have erased the record in the mortgage office to thw extent of the reduction, caunot support a judgment against him throwing on him the costs of a suit, every issue in which has been decided in his favor. The proceeding was not one to erase or reduce an inscription, but to declare the simulation and nullity of the mortgage itself.</p>

<p>The objection that the supervisory powers of this Court cannot be exercised in appealable oases, is obsolete and has become a legal nuisance.</p> <p>It is only where a judgment has been rendered by a justice of the peace in the presence of the parties that notification of it can he dispensed with.</p> <p>It is only when thus rendered, or after notice thereof has been given, that the delay to make* the judgment final begins to run.</p> <p>Act 24 of 1876, which amends article C. I1. 575 so as to dispense with notice of judgment, where answer was filed or citation was served personally, applies to district courts and not to justices.</p> <p>A defendant is always in time to apply for anew trial where the judgment was not rendered in his presence and where he was not notified of its rendition.</p> <p>A justice of the peace, like all other magistrates,'has the right to grant a new trial, either on motion of the aggreived party, orproprio moiu, where he considers his previous finding erroneous.</p> <p>A justice of the peace has the right to assign a case for trial on giving the parties notice and sufficient timo to summon their witnesses,</p> <p>A justice of the peace has no authority, where the plaintiff does not appear on the day of trial, to hear evidence hy the defendant, in the absence of a reconventional demand, or the like, to pass upon the merits of the cause and render a judgment for the defendant and a gainst the plaintiff, condemning the latter to pay a specified amount as costs.</p> <p>The only judgment which he could have rendered was one of non suit. In acting otherwise he has exceeded the bounds of his jurisdiction.</p> <p>Under the showing, the judgment rendered and complained of is irregular and the execution issued under it, is unwarranted.</p> <p>Relator is entitled to relief.</p>

Houston, J. A bond given for an injunction is a contract upon which plaintiifs obtain on the writ-, and using it become responsible for the damages which its use occasions. 13 Ann. Hep. 21. This is true whether the bond was given in the Federal Court or State Court, 120 V. S. 206; 35 Ann. 22O-U90; 37 Ann. 482; 105 TJ, S., 446.

Monroe, J. ON EXCEPTIONS. 1. Ho appeal can be taken after the expiration of a year from the rendition of the judgment, C. P. 593; (and two years when the defendantis absent from the State.) lb, 2. An action ofnullity for vices of form should be brought within one year from the rendi. tion of the judgment, and can only he allowed in the cases enumerated in Art. 606.

Tissot, J. Railway companies owe no duties to persons who go upon their engines, cars or other moans. of transportation, as trespassers, and are, therefore, not liable to them for anything less than wilful injury.

<p>Powers of attorney to sell and transfer tlie property pledged, given by the pledgor to the pledgee, as an adjunct to the contract of pledge itself, are notrevoked by the insolvency of the pledgee or other causes stated in C. C. Art 3027.</p> <p>The Art. 3027 is derived from the Code Napoleon and expresses a" general principle of universal jurisprudence on the law of mandate, and the construction has been uniform under all systems that it did not apply to powers coupled with an interest in which the mandatary was made a procurator in remsuam.</p> <p>The amendment of the article by Act No. 19 of 1882 is considered and construed as not inconsistent with the foregoing principles or preventing their continued application.</p> <p>‘The right of retaining possession of the thing pledged until payment of his debt, conferred on the pledgee by Art. 3164 O.C. is an essential constituent of the juspignoris and not affected by the cession of the pledgor. The syndic may, on proper showing or proper proceeding, compel the liquidation of the pledge by sale so as to ascertain any possible resichvum applicable to other creditors ; but he does not acquire the right to demand the surrender of the pledged property into his official control and administration and subject to the costs and charges thereof.</p>

<p>An. annual charge of §5 per pole upon the poles of a telephone company already established.’ imposed by a municipal ordinance as “a consideration for the privilege” is not a tax either on property or as a license and cannot be sustained as an exercise of the taxing-power.</p> <p>It is not an exercise oí* the police power, as it involves no consideration oC public order,, health, morals or convenience.</p> <p>A municipal ordinance granting to a particular company, authority to construct and maintain telephone lines on the streets, without any limitation as to time and for consideration stipulated, when accepted and acted on by the grantee by a compliance with all its conditions and the construction of a valuable and expensive plant, acquires thereby the features of a contract which the city cannot thereafter abolish or alter in its essential terms without the consent of the grantee; and the imposition of new and burdensome considerations is a violation thereof.</p> <p>A proviso in the ordinance to the effect that “ the acts and doings of the company under this ordinance shall be subject to any ordinance or ordinances that maybe hereafter passed by the city.” does not convert the grant into a mere revocable permit. On the contrary’ it assumes that the ordinance is to continue in full force and effect, and recognizes the-right of the grantee to do and to act under and in accordance with it, and only subjects such 11 acts and doings” to future municipal regulations hob inconsistent with the ordi. nance itself.</p>

<p>A suit for hypothetical damages, not yet sustained and which may never be suffered, cannot be countenanced.</p> <p>In a suit against the succession and the surety of a notary, to hold them liable on account of the latter’s failure to register seasonably an act of mortgage, another act having been in the meantime recorded, cannot be sustained, when it is not alleged that the property has proved insufficient to pay the claims, or that the drawer of the note and the succession of the notary are insolvent; that the debt has not been paid, in whole or in part, and that injury has been suffered.</p> <p>It is not until such facts are alleged and proved and the dereliction of duty by the notary is established that damages, like those claimed, can he recovered.</p>

1. Parol evidence to allow statements of company’s regular ticket agent is admissible. 2 Lea (Xenn.) 594 ; 76 Penna. 66 ; 63 Me. 298, 302. 2. Representations concerning rights under ticket made by agent are within the scope of his authority and the company is bound by them. 10 Neb. 250; 11 Red. Rep. 698. 3.

1. The directors of a body corporate are trustees, and the stockholders are the cestui que trust, and have a joint interest in all the property and effects of the corporation. Jackson vs. Ludeling, 21 Wall. 616; Koehler vs. Iron Co., 2 Black, 715; Drury vs. Cross, 7 Wall. 299; Cochran vs. Ocean Dry Dock Co., 30 Ann. 1366; l Pony on Trusts, Sec-207, 'Note 5; Angel & Ames on Corp., Seo. 312; 3 Pomeroy Eq. Jurisp., See. 1088. 2.

<p>■While courts may allow even liberal compensatory damages against railway companies, in cases of gross fault and negligence on their part, resulting in severe injuries to the passengers whom they have, for due consideration, undertaken to carry safely, those corporations surely are entitled to protection against exaggerated and apparently stale claims, where the injury received or damages suffered is slight or nominal. In such instances the allowance made ought to he merely just and reasonable.</p>

Houston, J. 1. The law of Louisiana, like that of Prance, calls the State to a succession in two capacities : as heir at law and as trustee* O. C. 929 ; C. LT. 768; C. O. 485; C. N. 539 ; 6 Duran-ton, 344, 345; 12K.584; 3 La. 374 ; 6 La. 653; 5 Kob. 9; 11 Ann. 59. 2. “The succession of persons who die without heirs, or which are not claimed by those having- a right to them, belong to the State.” C. C. arts. 485, 917 and 929. 3.

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

A PPEAL from tlie Civil District Court, for the Parish of Orleans, ÍY Monroe, J. I. On Objection to Jurisdiction or this Court. 1. Held: files an opposition on the grounds of fraud, and praying for a judgment depriving the insolvent of the benefit of the insolvent laws of the State, and sentencing the insolvent to imprisonment: the matter in dispute is the amount of debts on the schedule from which the insolvent seeks a release, and not the amount of the claim of the…

<p>The Act of 1870, No. 87, does not authorize the appointment of the Public Administrator to the succession of a party dying intestate, where the heirs of the deceased are present or represented, and are in possession of the property left by him.</p> <p>The circumstance that the succession is that of a resident of another State, composed of personal property, which by the law ofjthe domicile Tests in the administrator there, does not justify the appointment here, where the heirs oppose it.</p> <p>The nature or title of such heirs and administrator is of no concern to the Public Administrator.</p>

<p>The sheriff is responsible to tbe injured party for all damages occasioned through his negligence, malfeasance or misconduct or that of his deputies.</p> <p>The party who obtains an attachment of his debtor’s property, and realizes nothing thereby, because a second writ obtained against the same property is designedly executed in advance of his, by a deputy sheriff with .fall knowledge of the facts, is entitled to recover damages against the sheriff.</p> <p>The measure of such damages is not the amount of his claim, if it exceeds the value of the debtor’s property which the injured party intended to reach; but he cannot recover more than he would have received if the-offi'cer had done his duty.</p>

<p>The evidence in the case fails to eatablish the claim with that certainty required to support a judgment.</p> <p>When a co-owner of indivisión of immovable property biings an action in his <$wn name for the entire damage done to the estate by a trespasser, the citation in such suit will avail to interrupt prescription as to the other co-owner who afterwards intervenes and joins in the action. The suit was necessarily for his benefit, entitling him to an account from the plaintiff in case of recovery, and it informed defendant of the entir cause and object of the claim and of the titles on which it was founded.</p>

<p>When manufacturers oblige themselves to furnish machinery to a planter of first-class material and workmanship and free from damaging defects, and guarantee the work for one year, and that same shall be first erected in their shops, as far as practicable, in order that the planlor, or his engineer, may inspect the same before their delivery on board of steamboat at the port of New Orleans, for shipment to him, and on duo notification he makes the inspection, and thereafter receives and uses said machinery, the burden of proof is on defendant to establish the following facts, viz:</p> <p>1st. That the workmanship and material were not of first-class; but, on the contrary, same were affected with damaging defects;</p> <p>2d. To reconcile his apparent, and implied acceptance of the mill and machinery, resulting from his use of same in bearing off his crops, with his, claim that some were in many essential particulars defective, both as to workmanship, and material 5</p> <p>3d. To establish by clear, and satisfactory evidence that the mill and machinery had received “ fair usage ” at his hands, otherwise he cannot defeat his contract to pay the price,</p> <p>4th. Holding under such a contract a large and valuable property, the defendant not having established the conditions precedent, is not entitled to delay proceedings for the purpose of having heard the evidence of his witnesses as to the quemtum of damages.</p> <p>5th. A judgment taxing cost is an interlocutory decree, though rendered after the judgment in the cause, and separately signed; but same cannot be revised or reviewed in case the evidence in support of it has not been reduced to writing, and is not in the record.</p>

; Tissot, J. I. All of the provisions of sections eight and nine of article one of the federal constitution are intended to confer powers and impose restraints upon congress and the general government, and do not impose any restrictions or restraints upon the several States.

Host, J. 1. The renewal of a note and mortgage between the same parties, though the interest which has accrued be added to, the principal, is no novation. It is but a continuance of the same transaction, novation is the substitution, either of a new creditor, a new debtor, or a new debt. C. G. 2185; Bosenda vs. Zabriska, 5 H. S. 157; 4 B. 493; 34 Ann. 534, But receiving new notes operates no novation. Hobson vs. Davidson, 4 Mart. 431; Bothier Oblig.

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

Allen, J. 1.A restoration or an offer of restoration of the amount received on account» of the purchase price is an absolute condition precedent to an action to resolve a sale for nonpayment of price.

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

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

<p>In all criminal prosecutions it is the desire, and to the interest, of the State, that all reasonable facilities be extended to the accused in the preparation of his defense.</p> <p>Hence, the accused is not responsible for the error committed by the clerk in issuing subpeanas to witnesses for the defense, if it appears that the order for such witnesses had been given in a proper manner by the accused or his counsel, and that the witnesses thus ordered are residents of the parish.</p> <p>A party accused, who discovers on the day fixed for his trial that a material and important witness, ordered by him, and by whom alone he could establish a fact important or indispensable to his defense, had not been summoned, because the given name of the witness had been by error of the clerk changed into another name, in making out the summons, is legally entitled to a continuance on proper showing, for the purpose of procuring the attendance of such witness.</p> <p>For making the discovery on the day of trial only, he can not be charged with want of due diligence.</p> <p>1. "Where an application for a continuance in a criminal case, based upon the absence of a material wi ness, is refused because of the lack of due diligence onthepart of the defense in securing the attendance of such witness, on appeal the record should contain affirmative proof of the exercise of due diligence or the judgment of the Court a qua will be affirmed. Knobloch’sOr. Di. p. 122, “Diligence.”</p> <p>tí A juror living in a parish other than the one in which the accused is tried is incompetent. 30 Ann. 335.</p> <p>3. And the Court may exproprio motu upon discovering the tact, discharge the incompetent juror before the introduction of any evidence in the case. State vs. Diskin. 34 Ann. 920, and authorities therein cited.</p> <p>4. The question as to whether the confessions of an accused are voluntary or not is for the trial judge to determine. If the evidence upon which he rules in favor of the voluntary character of the confessions is not incorporated in a bill of exceptions the Supreme Court cannot test the correctness of such ruling'and it will be sustained. 34 Ann. 147. •</p> <p>5. Parol evidence is admissible to prove a confession made in open court presided over by a magistrate when such confession was not taken down in writing. State vs. Simien, 30 Ann. 297,</p> <p>C. The tact that the confession was in the nature of a plea to a charge contained in the affidavit against the prisoner, the substance of which charge was undisputed, does not make it necessary to produce the affidavit and exclude parol testimony of the confes" sion. The contents of the affidavit was not at issue. It was simply an incident to the main fact to be proved.</p> <p>7. Where the ruling of the trial judge causes no injury to the accused he will not be granted a new trial. Knobloch’s Cr. Ei. p. 339.</p> <p>8. Leading questions may be put to an exceedingly unwilling witness. Wharton’s Cr. Bv. § 454 a.*, 26 Ann. 75; Profiat on Jury Trials, § 227.</p> <p>9. On an indictment for “rape” there can bo no verdict for “ assault and battery,” and the trial judge rightfully refuses to charge that there may.</p> <p>10. Errors in the judge’s charge to thejury should be brought up for review to the Supreme Court by bills of exception, and not in an assignment of errors, 35 Ann. 774; 37 Ann. 51, 1; 35 Ann. 543, 619, 970; 38 Ann, 497.</p>

<p>The action against defendant, Letorey, is not sustained by the evidence, so far as it charges simulation, and, as a revocatory action, is barred by the prescription of one year.</p> <p>A pledge of shares of stock in corporations is validly effected by the delivery of the certificates, without the necessity of notice to the corporation or transfer on its hooks.</p> <p>The case is not affected by the fact that the certificates refer to the charter, which contains a provision that no sale or transfer shall be made without first giving the corporation sixty days’ notice, with the privilege to it or its members to purchase on equal terms.</p> <p>Such provision obviously refers to transfers of ownership, and not to pledges. It will be time enough to discuss its effect and the rights of the corporation under it, when tbe pledgee shall seek to sell the stock in satisfaction of his pledge.</p>

<p>A PPEAL from the First District Court for the Parish of Caddo. jTaylor, J. »</p> <p>“ The right to rescind a sale for non-payment of the price is absolute on plaintiffs tendering the notes and amounts received, and his rights may he transferred to the heirs.” Castle vs. Floyd, 38 Ann. 583</p> <p>Registry is not necessary to preserve this right Johnson vs. Bloodworth, 12 Aim. 701. The right to dissolve the sale for non-payment of the price is independent of the mortgage. 28 Ann 598.</p> <p>An administrator cannot pay debts or legacies, even where there are sufficient funds, without being authorized by the judge to that effect. C. C. 1063.</p> <p>The fathers of minors cannot, in purchasing, retain the price, because entitled to receive the legacy for them and to enjoy the usufruct thereof during marriage.</p> <p>Bis debt to the estate is personal and his claim to the legacy in autre droit. Gorton vs. Gorton, 12 La. 466.</p> <p>The relation between factor and principal is nob that between debtor and creditor. It is a relation of trust and confidence and comi>ensation does not take place. O. C. C. 2207; Nolan vs. Sliaw, 6 Ann. 46.</p> <p>Accounts between principal and factor are necessarily provisional until settled, and even after settlement may be rectified by either party on account of error or omissious. Bloodworth vs. Jacobs, 2 Ann. 25.</p> <p>Every curator of vacant successions, as of absent heirs, is prohibited from purchasing by himself, or by moans of a third person, any property, movable or immovable, intrusted to his administration under pain of nullity. C. C. 3146; Michaud vs. Girod, 4 Howard, 503. A person interdicted is liketho minor. Ü. C. 415.</p> <p>Where the court has ordered the sale of property on terms of credit, and it was sold lor cash, the sale will be void for want of an order of salo. 15 Ann. 254.</p> <p>Minors and persons interdicted cannot be prescribed against except in cases provided by law. C. C. 3522.</p> <p>Judgments of courts charged with the administration of minors or interdicted persons— Probate Courts-cannot be contested in any other courts in collateral proceedings. 2 Ann. 642; 6 Wallaco, 703; 1 H. D. p. 763, No. 2.</p> <p>They are certainly conclusive unless .shown to be erroneous. 1 H. D. p. 588, No. 3.</p> <p>“ A trustee shall not be permitted to mix up his own affairs with those of the cestui que trust." Wormley vs. Wormley, 8 Wheaton, 463: ib. 444.</p> <p>A trustee is not an agent. Taylor vs. Davis, 110 TJ. S. 330, and authorities there cited.</p> <p>Those dealing with notice of facts are necessarily affected with notice of the law operating on those facts. Wormley vs. Wormley, 8 Wheaton, 445: Boone vs. Child, 10 Pet. 210-11-12: Vattin vs. Hinde. 7 Pet. 271-2.</p> <p>PliESCliJl’TJOX.</p> <p>Prescription of notes does not bar action to dissolve. 24 Ann. 537; 11 Ann. 655 ; 1 Ann, 442; 16 Ann. 129.</p> <p>Nor even omission to register, but in this case there was registry. 32 Ann. 461.</p> <p>Prescription of action to dissolve does not run against lunatics originally interdicted, when, as in this case, they bad no guardian or curator, indeed, the exception is not qualified. C. C. 3522, 3554; 2 Ann. 316, 320 ; 13 Ann. 340 ; 6 Ann. Ill; 1 Ann. 442; 16 Ann. 130 ; C. C. 415.</p> <p>1. “ Neither tlie heirs of a deceased person, nor the transferee, can sue foAho resolution of a salo until previous tender has been made of the outstanding purchase notes, and such part of the purchase price as may have been paid by the purchaser.” 38 Ann. 583, and authorities therein cited. “A tender is acondition precedent sine qua non, to authorize a suit to rescind a judicial sale.” Parquhar vs. Hes. 39 Ann. not yet repotted.</p> <p>2. “ The real cause or consideration of a wiitten contract involving the transfer of immovable property may be shown by parol evidence.” 32 Ann. 432; 3 Ann. 230; 36 Ann. 565. “Parol evidence is admissible to prove what occurred at the time of a judicial sale, or subsequently, in relation to compliance with terms of the sale.” 1 II. 433. “So, too, that the price of real estate sold at auction was paid to a mortgagee, and the mode of such payment.” 11 P. 270.</p> <p>3. This is an action to rescind a sale for nonpayment of the price. The proof shows that every dollar of the purchase price was paid, not directly by the nominal purchaser, Donaldson, but by White for him. It can make no difference, in fact or in law, to the interdict or Ms lieirs, whether the payment ot the price was made directly hy Donaldson or mediately through White.</p> <p>4. The heirs of Dr. M. L. Gilmer, guardian, are hound hy his acts, whether of fraud, negligence or omission, and having by the averments of their petition accepted Ms . succession, are estopped from contesting the title of defendants. 14 Ann. 642; 15 Ann. 140. Brands M. Gilmer, another plaintiff, the proof shows, and he himself admits, had full knowledge of aud advised the making of the sale to White in the manner in which it was done, and also discounted one of the notes given by White as part of the purchase price. He is clearly estopped from taking advantage of any defects or irregularities in the matter.</p> <p>5. This suit was not brought until thirteen years after the sale was made; after the property had passed into the hands of third parties, innocent purchasers, and after the death of almost all of the parties conneoted with the salo. It is a stale demand, one upon which the courts look with extreme disfavor, aud in order to establish which it is not enough for the plaintiffs to render probable, but they must make eortain 7 Ann. 555, 559; 14 Ann. 317: 35 Ann. 1005; 37 Ann. 95.</p> <p>Plea of Want of Tender.</p> <p>Neither the heirs of a deceased person nor the transferee can sue for the resolution of a sale until previous tender has been made of the outstanding purchase notes, and such part of the purchase piice as may have been paid by the purchaser.” 38 Ann. 583, and authorities cited.</p> <p>‘ • A real tender is a condition precedent sine qua non, to authorize a sitit to rescind a judicial sale. Article 417, O. I ., touching tenders made at any stage, refers to such as are made by a defendant. When it is alleged, denied and not proved by plaintiff, the action must be’dismissed.” Barquhar vs. H.'S. lies, et-al, 39 Ann. (decided at Opelousas, not yet reported). s</p> <p>The plea is good, but defendants, who now own the property, are anxious to have the cloud on their title removed, and lienee do not urge its consideration upon the court. ¿</p>

<p>While, asa general rule, uucommunicated threats are not admissible, yet where communicated threats, followed by subsequent attac k and difficulty leading to a killing have been proved, evidence of other threats made between the communicated ones and the assault may be received as corroborating the evidence as to the communicated threats, as indicating their meaning and seriousness, as characterizing the purpose of the assault, as throwing light upon the acts of deceased in connection therewith and as establishing the reality of the danger under apprehension of which defendant may have acted.</p>

<p>The competency of objected testimony cannot be determined, if the complaint is first-made when the statement of witness is reiterated. Having been once received without objection, it cannot be thereafter recalled.</p> <p>An information charging a statutory offense is sufficient, if in the terms of the statute. “</p>

<p>The -words of a- law are generally to be understood in their most usual signification.</p> <p>When, in Act No. 100 of 1878, prohibiting the keeping of private markets within a radius of six squw'es of a public market, in New Orleans, the Legislature used that language, they had in view to fix an equal and uniform distance in order to avoid any arbitrary discrimination, and intended that the distance should embrace, both, the length of the squares and the width of the streets; in other words, 2100 and not 1800 feet, American measure, as contended by the defence.</p> <p>The 3100 feet are to be computed from any point on the public market limits nearer the private market.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. i_jL Bightor, J. I. “ Conducting an insurance business is totally different from “ conducting the business of insurance agency.” Under the law imposing a license upon the former, recovery cannot be had against the latter. 31 Ann 781; 33 Ann. 10. - II. A lioense imposed under the taxing power for revenue is a tax, as distinguished from a a license imposed under the police power.

Voorhies, J. 1. The widow, individually, and as tutrix of her children, sues to recover damages for tho loss of her hnsband, who was an employee of tlie defendant. Individually she seeks to recover the damages which she sustained, and tbo damages which tbe deceased sustained . As tutrix she seeks to recover tho damages which the children sustained. 2. The exceptions should have been sustained.

Monroe, J. Telegraph companies, in the absence of statutory provisions, are not common carriers ; their liability is not measured by the same rules; their relation to their patrons is one of contract. Western Union Telegraph Company vs. Carew, 15 Mich. 525; Baldwin vs. U. S. Telegraph Company, 45 ÍT. Y. 744; Ellis vs. American Telegraph Company, 13 . Allen; Leonard vs. Telegraph Company, 41 ET. Y. 544 ; 2d Thompson on Heg. 836.

<p>APPEAL from the Twenty-second District Court, Parish of St. James. Rost} J.</p> <p>1. It is of the essence of good conscience ar-d morality that a party litigant should he consistent in his declarations, acts and demands "before a court of justice. That is also the law, and it is as it should be, so that judicial forms and remedies may not be perverted to unworthy uses. %</p> <p>2. Our jurisprudence has uniformly recognized and enforced the wise and salutary doctrine which firmly hinds a party to his judicial declarations and forbids him from subsequently contradicting his statements thus made. Earrar vs. Stacy, 2 Ann. 211; 29 Ann. 293: Glidley vs. Connor, 4 Ann. 416; 32 Ann. 962, 979; 33 Ann. 1370; 35 Ann. 743.</p> <p>“ The doctrine is so firmly sanctioned both by reason and justice, that our courts have unhesitatingly extended its operation to the State itself.” 28 Ann. 460; ‘28 Ann. 121; 34 Ann. 360; 30 Ann. 1309; 37 Aim,-107: Greenleaf, Yol. 1, p. 204; Bigelow on Estoppel, p. 293, Eos. 3 and 4.</p> <p>3. The record clearly shows: That from the 'time of the sale by plaintiff and his wife of their undivided half of the plantation to the four Gauthreauxs, Charles, Lise. Aline (wife of Eicolle, appellee, and Céline (wife of Poirier, appellee) — 31st of March, 1884 — until plaintiff’s receipt of their share of the proceeds of sale in the partition suit of Beltran, in April, 1886, he, plaintiff, studiously treated Aline and Céline Gauthreaux as part owners of the property and as his debtors. Their husbands (appellees here) had been entirely ignored np to that time as parties in interest: 38 Ann. 106, Beltran vs. Gauthreaux et als. After receiving'the shares of Aline and Céline as co-proprietors of Beltran in the partition suit, and crediting a part of the amount on the notes held by him, plaintiff, in May, 1886. filed this suit against them and their husbands (appellees here) in solido % to recover the balance due on the notes. Appellees interposed the plea of estoppel, and it was sustained by the district court.</p> <p>4. It is contended by the appellees that the principles and authorities above set forth and cited are directly applicable to the state of facts presented by the record, and that the judgment of the lower court ought to be affirmed.</p>

<p>The right of action of an accommodation acceptor of a draft, and who pays or retires tho same with his own meaus against the drawer, is for reimbursement, and it rests on the implied or conventional promise of the drawer to indemnify him.</p> <p>By such a transaction the drafts have no longer any value as such, and the drawer is en • tirely discharged of all obligations thereon, his liability being to the acceptor for indemnity, and the draft being an item of evidence.</p> <p>The fact that a member of a commercial firm in whose name negotiable paper has been issued by the managing partner, is ignorant of the transaction, and that ho entry of the same has been made in the partnership books, will nob release him from liability if it is in proof that tho transaction had been made for and had enured to the benefit of the firm.</p> <p>The acceptor who has paid such draft can recover only legal interest on the promise of indemnity.</p>

A PPEAL from the Civil District Court, Parish of Orleans. Monroe, J. Where a ship owner is sought to be held liable for an iudebteduess of the ship as such, owner, he cannot, under the general issue, be permitted to introduce evidence to prove a charter party. 8M. 207. A bill of sale of a ship accompanied by possession does not in itself constitute a good title in law; it is only pHma facie evidence.

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

<p>A PPEAL from the Twenty-second District Court, Parish of ajl Ascension. Di iff el, J.</p>

<p>Where numerous suits have been instituted against a common debtor by a number of creditors, accompanied in some crises by attachments and in others by sequestrations, and the property seized under the writs has been sold by written consent of all parties, and the funds are iu the hands of the sheriff, the debtor cannot be permitted to release the seizures and take the funds in his possession upon executing his bond (one bond) wherein the agreement for the sale signed by bim it is expressly stipulated “that the proceeds of the sale shall remain in the hands of the sheriff subject to the claims, rights, liens and piivileges of the seizing creditors.” Whatever may have been his legal rights, the agreement became the law to him</p>

<p>The right of a person accused of a crime, that is triable under act 35! of 1880, by a jury of five, to peremptorily challenge six jurors, was decided in State vs. Eveiage, 33 Ann. 120, adversely to the defendant’s pretensions, and correctly. That deoision is therefore affirmed.</p>

<p>APPLICATION for Mandamus.</p>

<p>Under an ordinance of the city of Baton "Rouge the owner of a dog was ordered by the mayor of the city to produce the animal at his office that it might be killed. The dog was brought to the mayor’s office in compliance with the order, but the killing was prevented by an inj unction from a competent court. Thereupon the owner of the dog was sentenced to imprisonment in the parish jail for twenty days. Held, that the sentence was null and the action of the mayor arbitrary and oppressive.</p>

<p>The Supreme Court has no concern with the evidence adduced before the jury touching the innocence or guilt of the acoused. It deals with questions of law only, when presented in proper shape.</p> <p>A verdict may be legally rendered, received and recorded, where the accused voluntarily leaves the court room and fails to appear after the sheriff’s proclamation to come and hear the verdict about to be rendered. He cannot be permitted to take advantage of his own wrong to defeat the ends of justice.</p> <p>An accused cannot be allowed, in a motion for anew trial, to urge surprise at the reception of certain testimony during the trial, when he, at the time, sought for no relief. His omission implies a waiver of what right he may have l$ad on that score.</p> <p>The absence of a witness affords no ground for a continuance or new trial, when it appears that the testimony would be hearsay, and, if admitted, would have been merely contradictory in part, with a te'ndency to impeach the credibility of witnesses on the trial.</p>

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

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

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

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

A PPEAL from tbe Seventeenth District Court, Parish of East _1_~\1 Baton Rouge. Burgess, J. 1. The tax is levied under the provisions of Act 'No.. 98 of the Legislature of 1886, The coal on which the tax is imposed was brought from the State of Pennsylvania.

A PPEAL from the Twenty-third District Court, Parish of Iberville. AY Talbot, J. Heirs may contest- tlie simulated sale of the ancestor. C. C. 2444. Heirs in case of simulation are third parties. Aots 1884, p. 12 ; 4 Ann. 500; 11 Ann. 227. In simulation plaintiif need only show that the title is a mask, and he interested in removing it. 11 Ann. 168. Burden of proof is on he who claims under the deed. 12 R. 95.' Every act is full of proof of itself.

<p>A PPEAL from the Fifteenth District Court, Parish of West Felii\ ciana. Yoist, J.</p>

Deloney, J. 1. The sureties of a defaulting tax collector cannot escape liability on the ground that, when they signed the bond, they did so in error, not knowing that such tax collector, qualifying under the commission issued by virtue of his election, was delinquent for collections made under Ms previous appointment; that, had they known of such defalcation, they would not have signed the bond, and that the Auditor was at fault for not publishing Mm as a defaulter. 7 Ann.…

<p>When ,lifter the evidence in a case is closed and the argument begun, one of the parties discovers new evidence, the effect of which is to furnish a new ground of defense and presents an affidavit of its new discovery and of due diligence, and when it is apparent that it would furnish ground for anew trial, the discretion of the judge in opening tho case and permitting a supplemental answer and offering of the evidence under it, will not be interfered with.</p> <p>Uuder Art. 69 of the Constitution, the term of an officer appointed by the governor during the recess of the Senate, cannot extend beyond the end of the next oh suing session of the legislature; and where the same name is subsequently sent to the Senate and confirmed and a now commission is issued, the latter is a distinct appointment and requires a new bond.</p> <p>Sureties for the fidelity of an officer appointed for a limited term are not liable for his defaults beyond the term of the appointment or commission under which the bond was furnished.</p> <p>Provisions of law authorizing officers to hold over until their successors are appointed and qualified,' can only extend the liability of the sureties for such reasonable time as, with due diligence, would enable the successor to he tppolnted and qualified.</p>

A PPEAL from tbe Twenty-fourth District Court, Parish of PlaqueAa. mines. Livcmdads, J. The action here corresponds more nearly to the ‘‘ petitory ” than the “possessory,” as it is based on ownership. It closely resembles the action of trespass of the Common Law, or quw'e clausum fregit. — See Burrell and Bouvier’s dictionaries; verb, “trespass” and “ quare clausum fregit, ” in which action ownership must be alleged and proved.

Young, J. 1.Tbe police jury of Concordia parish has plenary, unlimited and exclusive power to make such enactments in regard to roads witliin the limits of Concordia parish as may be necessary and convenient. Act N o. 146 of 1858; 34 Ann. 362; 30 Ann. 1092; Secs. 3364 and 3367, R. S.; 7 Ann. 150 ; Sec. 62 of General Levee Law of 1829 ; Bul. and Cur. 760. 2.The State enforces no system of its own in reference to voads.

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

<p>"Wbero goods, whilst on the wharf of a steamship company, awaiting shipment on one of the vessels of the company, are burned, the ownets of the goods cannot recover for their loss upon a policy of insurance, wherein the goods insured or to be injured are referred to (quoting) : “as goods laden or to be laden on board the good ship---’’when the policy contained the further expression (quoting:) “Beginning the adventure upon said goods and merchandise from and immediately following the loading thereof on hoard of said ship.”</p> <p>This last expression will control as to the time the risk began; the former may be regarded as descriptive of or as designating the stock of goods or merchandise intended to be insured.</p>

<p>To bind tli© wife as a public merchant two things are essential — 1. that the business be conducted in her name; and 2. that it be separate from that of her husband.</p> <p>Where the business is conducted in a name which is neither that of husband or wife, and when the plaintiff, in his businoss correspondence, addressed his [letters in such name with the prefix of Monsieur, he cannot claim that he supposed the name to designate the wife.</p> <p>When th© husband appears as the head of the business and mainly conducts it, when the licenses are taken out and the contracts executed in his name, and when he is regarded in the community as its head and master, no participation therein by the wife will make her liable.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. JRightor, J.</p> <p>1. The privilege of the lessor does not prevent the sale of the things subject to his privi* lego by an ordinary judgment creditor. 27 Ann. 482; 31 Ann. 870; 31 Ann. 865.</p> <p>2. The railroad company obtained judgment against Saiter, decreeing the property in question to be Saiter’s, subject to its lien; seized and advertised the same as his. They are bound by their judicial averments and actions, and forever estopped from contradicting the terms of their own judgment. 4 Ann. 416; 5 Ann. 18; 26 Ann, 186-7; 27 Ann. 315-16; 14 Ann. 140; 29 Ann. 171, 353; 30 Ann, 1147; 28 Ann. 60-1; 23 Ann. 764.</p> <p>3. No stipulution between the company and Saiter, to which Schwartz was not a party, can affect Schwartz’s right.</p> <p>4. That the insurance money which the company permitted Saiter to collect, and use pro tanto, was not sufficient to restore the property destroyed by fire, can vest no right in the company to claim the works constructed by Schwartz.</p> <p>5. (a) Questions not raised by the pleadings in the lower court cannot be considered here (C. P- 895), and judgment not prayed for cannot be granted.</p> <p>(b) Schwartz’s judgment against Saiter imports absolute verity and cannot be collaterally attacked. 38 Ann. 812; 36 Ann, 831, 533: 32 Ann. 896.</p> <p>(c) If considered, the judgment will be found valid.</p> <p>6. (a) Plaintiff waived his peiemptory exception and plea in bar by not requiring decisions thereon before going to tbe merits.</p> <p>(b) If not waived, plaintiff having restrained Schwartz from enjoying the lease, cannot profit by its own wrong.</p> <p>7. (a) Though Schwartz cannot sell the soil, he may sell the buildings and works put upon it by him, and</p> <p>(6) Is entitled to the first privilege upon the proceeds of the sale. 30 Ann. 361; B. G. C., 3249.</p> <p>8. The property in dispute is on a public street, or highway, of the oitv of New Orleans. 2 Ann. 770; 10 Per. 662; Dillon on Mun. Corp., XVTI.</p> <p>No presumption from mere lapse of time can be made to support a nuisance which is an encroachment on the public right.</p> <p>No private occupancy for whatever time, and whether adverse or by permission can vest a title inconsistent with that of the city or the public. Dillon Mun. Corp., Sec. 520, 521, and p. 503, note; 3 Pa. (Penrose and ‘Watts), 253; 1 B. I., 25D, and authorities cited, in Dillon Mun. Corp., Sec. 531, note.</p> <p>The railroad company itself does not assert that the property is on its premises, but on or adjacent to the Spanish Port grounds.</p> <p>The title deeds of plaintiff company make no proof whatever of its ownership of the dis puted ground.</p>

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

<p>Under the rules of the Civil District Court an injunction proceeding against the execution of a judgment is filed and treated as part of tbo suit in which the judgment enjoined was rendered. In such a case, after judgment rendered in the injunction proceeding, where neither appeal requires any "bond except for costs, appeals from both judgments may be well taken under one order and one bond fixed by the court. 30 Ann. 801; 36 Ann. 963.</p> <p>Inaccuracies in an order or bond of appeal in describing the judgments appealed from will not invalidate the appeal if the description contains statements suflicient to identify the judgments referred to.</p> <p>Defendants were sued to deliver a list containing subscriptions of various parties to 800 shares of the stock of plaintiff corporation of the face value of $50 per share, and in default of such*delivery, for judgment condemning them to pay the value of said list.</p> <p>Held, that the utmost consequence which the law could attach to defendants’ default in non-delivery of thelist could not exceed a personal obligation to discharge the liabilities of the subscribers in accordance with the terms of their subscriptions; aud that a judgment condemning them to pay $40,000 cash on such default, where the subscriptions were on terms of credit, and without recognizing orjj.reserving their right to receive the stock subscribed for, is manifestly insupportable.</p> <p>The foregoing robs the injunction proceedings of all significance.</p>

<p>Art. 214 of the Constitution of the State of Louisiana is self-acting, in so far as it confers directly upon the levee commissioner, authority to levy a tax of five mills for levee purposes, in their respective districts.</p> <p>The only legislative action contemplated under Art. 214 of the Constitution is the division of the State into levee districts and to provide for the appointment or election of levee commissioners.</p>

<p>The will contained the following clauses:</p> <p>The money collected from my life insurance “will more than pay every debt I owe on earth, andas T desire, leave my property to my heirs, to be equally divided among them according to the laws of the State of Louisiana,</p> <p>“ I leave to my brother, Dr.-J. W. Ball, $2500, and to my sister, M. J". McK., $1500, which my executors will pay out of the first moneys realized from my estate.”</p> <p>Held, that the insufficiency of the insurance money to pay the debts and tbe necessity of paying the legacies out of the> property, furnishes no ground for rejecting the legacies. The expectation and desire expressed in the first clause are entirely subordinated to the command expressed in favor of the special legatees, to whom the testator seems to have desired to give a preference even over creditors hy directing their payment out of the first moneys realized.</p> <p>Even if the two clauses were contradictory, the last written would prevail under Art. 1728 Iiev. Civil Code.</p>

<p>The action of a creditor to have a judgment recognizing a homestead in favor of his judgment debtor, declared inoperative and void, for the reason that the conditions which were the motive of the judgment, have ceased to exist, must not be confounded with the action for the nullity of a judgment as provided in Section 3, chapter 5 of the Code of Practice.</p> <p>Such an action rests on the principle that if anything should happen to destroy the force of a judgment, it will cease to have effect either against the parties or their heirs.</p> <p>The debtor who claims a homestead under Act 52 of 1865 must combine in him at least three conditions : he must own the property, he must occupy it as a residence, and he must have a family dependent-upon him for support. A judgment declaring a property as his homestead on those conditions will cease to have effect as soon as the conditions, or any one ot them, cease to exist.</p> <p>On proper showing such a judgment will be declared inoperative and avoided.</p> <p>As soon as the judgment becomes inoperative, the judicial mortgages which had been properly inscribed against the owner of the property, recognized as his homestead, and which were dormant, become executory against the property even in the hands of a third possessor by virtue of a sale from the original owner.</p> <p>The owner of a property exempt from seizure as his homestead cannot sell such property free of the mortgages inscribed against it before the sale. He has the legal right to sell the property, but it passes to the purchaser burdened with the judicial mortgages duly inscribed against the vendor.</p>

<p>An order granting to an appellant additional delay for filing iiis transcript after the return day, inadvertently, in contravention of the rule of the Code of Practice (Art, 883), vrilt be rescinded by the Supreme Court on its own motion, and cannot save the appeal.</p> <p>Such an order, obtained on the fourth judicial day after the return day, is an absolute nullity. In making motions for extension of the return day, appellants must be careful to be ■within the plain requisites of the law, or else they will eventually be deprived of any relief granted inadverí ently.</p> <p>A proceeding filed by the appellant in the appellate tribunal on the last day of grace, stating the cause not under his control by which he was prevented from filing his transcript iu time, but which contains no prayer for an extension, cannot avail him.</p>

<p>Section 1 of Act ó of the Extra Session of the Legislature of 1870 deprives the courts of this State of jurisdiction or authority to grant a writ of peremptory mandamus against the Comptroller or Treasurer of the city of New Orleans, the object of which, is to enforce the payment of money claimed of the said city.</p> <p>Act 109 of 1886 directs the performance of certain duties by the City Council alone, and imposes on the Comptroller and Treasurer the performance of none. Its provisions do-not appertain to the executive department of the city government, but same are exclusively confirmed to the legislative department thereof.</p> <p>Mandamus doe9 not lie for the enforcement of that act.</p> <p>Eormer opinion did not hold that Act Ho. 5 of 1870 barred the writ of mandamus as a remedy to enforce performance of specific duties imposed by subsequent legislation on the city of New Orleans, its Council, or anv of its officers; but that the law invoiced by rela+or did not impose the specific duties for the performance of which the mandamus-was asked. •</p> <p>Held: the word “ revenues/' as used in Act 109 of 1886. necessarily moans the budget estimate of revenues, because otherwise it would be a mathematical impossibility to frame the budget in accordance with the requirements of the city charter.</p>

<p>An act, purporting on its face to be a sale a remaré, is not translative of the ownership of the real estate to the purchaser, when it is shown that the parties did not intend that it should so operate.</p> <p>Such sales, made for an inadequate consideration and unaccompanied by delivery, will be treated, without .sufficient evidence to the reverse, as contracts, by which the tiling nominally sold stands as security and nothing else.</p> <p>Property admitted to be worth more than $2500 cannot be claimed to have b.een sold, even a remare, when the price stipulated is $460, or even $1000, and possession was not delivered.</p> <p>The vileness of the price and the retention of possession establish that the contract was designed solely to subject the property as a security.</p> <p>Such an innominate agreement is in the nature of a pignorative contract, by which a quasi hypothecary right is conferred. It is recognized by the jurisprudence of the State as a contract of security, and may he enforced, on a proper proceeding and showing, for specific performance.</p> <p>This cannot he clone in a suit which is .strictly a pure aod simple petitory action, involving nothing but rights of ownership.</p>

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

<p>PPE AL from the Seventeenth District Court, Parish of East Baton ■Rouge. Bu/rgess, J.</p>

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

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

JBurgess, J. The sale of property by the debtor to his creditor for eleven hundred dollars, the act stipulating that if the. debtor pays bis promissory note .for eleven hundred dollars within a cortain period the sale is to be void, whether viewed as a sale on condition or with the i-iglit to redeem reserved, in either view conveys title to the purchaser, if within tlio period the vendor does not- pay his note. See Civil Code. Arts. 2021, 2043, 2439, 2567; 2 La. 103.

<p>Creditors whose claims arose subsequent to a judgment of separation of property between husband and wife cannot contest the correctness or validity of such judgment, except, at least, for absolute nullities.</p> <p>Want of publication of the judgment, unless shown to have been fraudulent or injurious, is not a ground of nullity whicli subsequent creditors can urge.</p> <p>Where the judgment allows no money claim against the husband and only recognized, the wife’s title to a carriage and horses shown to have "boon her paraphernal property, no execution was necessary, and want of it is not a ground of nullity.</p> <p>The wife’s right to a separation of property is not limited to cases where she has actual claims against her husband which are endangered, but extends also to the case in which his circumstances require it, in order that she may enjoy the fruits of her separate industry for the support of hersolf and family without liability to her husband's creditors.</p>

<p>A salo made to one not a creditor, for a price in cash, though inadequate to the value of the property conveyed, cannot be annulled at the instance of the creditors of the vendor, who was insolvent at the time, to the knowledge of the purchaser, on the charge of simulation.</p> <p>A dation enpaiement, made in consideration of a valid and subsisting' indebtedness, cannot he revoked on the charge of simulation, if the conveyance was really intended to pass a title to the '■property to the creditor, and he really acknowledged full payment of the debt.</p> <p>In an action cn declaration de simulation, pure and simple, wliicb is unaccompanied with an alternative prayer that if the act complained of is not found to be a fraudulent simulation, it ho declared to have been one ia-/rai«2 of creditors, and, as such, annulled, it is not in our power to vender j udgmont annulling it on the latter ground.</p> <p>It is the settled jurisprudence that this Court is without jurisdiction in revocatory actions which seek to subject pro-party that has been fraudulently convey ad to the payment of debts less than $2000 in amount.</p>

<p>A PPEAL from the Sixteenth District Court, Parish of East FeliciAx ana. Kilbourne, J.</p>

<p>Aii hen*, to whom slaves have been donated, is hound to collate the value of the same, although slavery was subsequently abolished.</p> <p>The circumstance that ho act of donation was executed at the time will not relieve the heir from the obligation of collating, where the donation is admitted by such heir and no one disputes his title, and the slaves, at the opening of the succession of the donor, wore not returned as its property, but were retained by the donee.</p> <p>Collation takes place in all cases in which the donation was not made hors part, or as an extra advantage, or part.</p> <p>Payments made by a father and tutor to the husband of his daughter will not he considered as donations subject to collation, where it appeai-.s that, at the settlement of a succession in which the daughter was an heiress, the father and tutor retained in his possession the hereditary share of that daughter, then a minor under his tutorship, such share nearing the amounts paid the husband, the difference being easily accounted for.</p>

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

<p>"When a party, charged with violating a parish ordinance inflicting a fine for certain prohibited acts, appears and flies a plea or demurrer admitting the act, but setting up the* nullity of the ordinance, the case involves a contestation ns to constitutionality or legality of a flue or penalty imposed, and is appealable to this Court.</p> <p>The State and police jury having both joined in the appeal, and the defendant being duly cited, all proper parties are certainly before us, and even if the joinder of appellants was unnecessary, it obviates all ground of objection to absence of parties which is urged in the motion.</p> <p>Because a retailer of spirituous liquors ha* paid his license he does not become, on that account, exempt from the operation and effect of a police regulation, thereafter ordained by the police jury, in so far as his subsequent act, in violation thereof is concerned.</p> <p>An ordinance passed and promulgated, subsequent to the issuance of a license to a retailer of spirituous liquors, denouncing a penalty of fine against its violation, by such person as shall keep his saloon open after 10 o’clock p. m., is not amenable to the charge of being an ex post facto, or retroactive law, unless the act sought to be punished was committed antecedent lo its passage.</p>

<p>Unciera contract with reference to a public market by which the solo light conveyed by the city to the thii d person is the right to collect and appropriate the market revenues, the market remaining subject to all the regulations,.control and authority of the city Applicable to every other market, the thing let is not the market-house, but only the privilege or franchise of receiving the revenues, the market remains the prerasies of the city and not of the lessee, and the latter does not incur the obligations of a tenant of property to keep the premises safe for those lawfully entering thereon.</p> <p>When, howevor, a person has, by contract with public authority, assumed obligations to keep a public highway or other public place ip repair, he may be held liable to one who has been specially injured by reason of his failure to perforin such obligation.</p> <p>Tn such case plaintiff must prove: Í. That defendant has been guilty of legal fault. 3. That such fault was Jhe cause of the accident.</p> <p>When the evidence fails fco show that the fault imputed to the defendant was the cause of the injury, and makes it probable that the injury resulted from a different cause, which operated independently of the fault, defendant cannot be condemned.</p> <p>Warranty is a covenant, express or implied, arising out of a contract. »A person sued for a quasi offense is responsible only on the ground that lie has committed a fault, and ho cannot call another to warrant him against responsibility for his own faults.</p>

Houston, J. An indorser or surety paying a note is legally subrogated to all of the rights of the holder of the note to whom such payment has been made, and this legal subrogation embraces tbe mortgage given to secure the note. C. C. 2161, 3052, 3053; 2 Martin H. S,. 16L; 8 Martin Rep. 484, 706; 15 La. 213 ; 6 La. Hep. 47£í; 9 Ann. 248; 12 Ann. Bep. 9 j Durao vs. Heriari, 25 Ann. Rep. 81.

<p>In a suit in .which the plaintiff makes claim for a definite sum invested as her share of the capital stock of a partnership, and also for another and indefinite sum as her share of the net profits thereof on final liquidation and settlement, a motion to compel her to elect will not prevail.</p> <p>During the progress of the trial it is improper to appoint ex parte a single expert, when there is no professional opinion to be given on any question on the decision of which the case depends.</p> <p>It is improper for the report of auditors to be admitted in evidence before it has been duly homologated. The proceedings for the homologation of the report of auditors constitute a trial of its acouracy and sufficiency to be admitted in evidence.</p> <p>The appointment of a liquidator is one of those matters that must be left, in a great measure, to the sound discretion of the court.</p>

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

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

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

<p>In. this action for malicious prosecution the evidence fails to establish that tiie defendant acted with malice and without probable cause, which are essential to support such a suit</p>

Young, J. 1. In a petitory action the claimant must allege and prove every material fact necessary to establish good and perfect title in himself before he can recover. C. P. 44. 3. The whole burden of proof is upon the plaintiff in a petitory action. He must make his title certain; to make it possible, or even probable, will not suffice. C. P.44; 22 Ann. 378; 19 Ann. 12J ; 18 Ann. 29, 507. 3.

<p>A party wlio lias acquiesced in a judgment of the Supreme Court, which, has acquired the force of res judicata, dismissing for want of jurisdiction an appeal in a case in which he was a party and virtually deciding that the matter in dispute comes within the exclusive jurisdiction of the Court of Appeals, cannot be permitted to que tion the exercise of that jurisdiction by the latter court, the less so, where he has formally submitted himself to it.</p> <p>A prohibition in such a case does not lie.</p>

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

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

<p>The legal effect of the consolidation of two corporations under the provisions of Act Ho. 157 of 1874 is a perfect amalgamation which terminates the existence of the consolidating companies as separate autonomies and operates the creation of a new one, thus concentrating in one corporation, the members, the property and the capital stock of both.</p> <p>The consolidated corporation not only assumes duties and obligations similar to those of the former corporations, but it will be held on the very identical liabilities and obligations incurred by either of the former companies.</p> <p>Hence, under the amalgamation effected between the New Orleans Gas Light Company and the Crescent City G-as Light Company, the obligation imposed by the Legislature on the former company to furnish gas, free of charge, to the Charity Hospital, adheres to the new or consolidated company, without reference to the term or duration of the charter of said company as previously composed.</p>

<p>In order to invoke the exercise of the supervisory jurisdiction of this Court under the writs of certiorari and prohibition, relator must establish one of three things, viz: 1st. That the proceedings are infected with some fatal irregularity; or 2d. That the jurisdiction of the cause did not belong to the court which assumed it. but to a different court; or 3d. That the cause is of a nature jurisdiction of which is denied to any court, because not within the limits of judicial power.</p> <p>‘Constitutional executive officers are not exempt from judicial authority to compel them to perform specific duties imposed upon them by law.</p> <p>Officers charged with the conduct of elections and with the ascertainment and promulgation of the results thereof, may be compelled by mandamus proceedings to perform specific ministerial duties imposed on them by law.</p> <p>Where the statute requires the registrar to appoint commissioners ten days, and to publish them six days, before the. election, if he has violated his legal duty in the selection of such commissioners, parties interested are not precluded from judicial remedy because lie has so acted. They could not proceed before he had acted, and if denied the right to proceed afterward this would be a complete denial of right. The object of the law in requiring action ft certain time before the election was to afford an opportunity to correct any violation of duty which he might commit.</p> <p>The questions as to whether the law imposed the duty alleged, whether the duty was ministerial or discretionary in its chai acter, and whether the defendant liad violated his duty, are mixed questions of law and fact belonging exclusively to the merits of the cause and constituting, indeed, the entire merits thereof, and the court being seized with jurisdiction of the case was necessarily invested with full power to consider and determine them. Mere error in the judgment, even if it exists, could only be corrected by us in the exer - cise of a jurisdiction purely appellate, aud can form no foundation for invoking our supervisory jurisdiction.</p>

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

Voorhies, J. The renunciation by the creditor of the legal remedies to compel payment of bis debt is not presumed, and never implied unless the implication is clearly evident.

<p>APPEAL from tlie Civil District Court for the Parish of Orleans. Tissot, J.</p> <p>Quoted tlie following authorities, viz . Thorpe vs. N. Y. C. R. E. Co. 76 N. Y. 402; Caso of Goddard, 57 Maine; Baltimore City Railroad Company vs. Kemp, 61 Maryland 619 $ Railroad Company vs, Renney, 10 Wisconsin, 388; 4 Gray, Mass. 365; Penn. Railroad vs. Van Dives, 42 Penn. State Rep, 365; Weed vs- Panama, 17 N. Y. 362; Railroad Company vs. Derby, 14 How. U. S. 468; Pittsburg Railroad Company vs. Hinds, 53 Penn. State. 512; Woods’ Treaties on Railway Law, Vol. 2, p. 1179. ■ 3 Woods’ Railway Law, Sec. 366, p. 1422, the rule is stated to be thatthe railway company is liable for the acts of the servant of the sleeping car company, whose car is attached to its train, and it cannot shield itself from liability upon any ground, especially in cases where the whole train is under the management of the railway company. Landeaux vs. Bell, 5. Louisiana, 434; Chamberlain vs. Chandler, 3Mason, U. S. Circuit Court Reports.</p>

<p>Under the law of Louisiana slander is a quasi offense, actionable under the broad provision of the Code: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.</p> <p>If the woids are false, iniarious and uttered malo animo, they are actionable.</p> <p>Both malice and injury may be inferred from the nature and falsity of the words.</p> <p>Under the existing social habits, customs and prejudices, considered simply as facts, charging awhite man with beipg a negro, is calculated to inflict injury and damage to the knowledge of all persons, and no one can so make and circulate such a charge without knowing its injurious effect and intending to injure, if he knew that the charge was false. Such charge was recognized as actionable slander by this Court under the Constitution of 1868. 21 Ann. 308.</p>

Twenty-sixth Judicial District Court, Parish of St. John the Baptist. Most, J. The police jury is empowered, under the provisions of acts of 1813 and 1814 (Rev. Stat., Sec. 2743), to ordain and establish the draining of the lands of Bonnet Garré point. 5 Ann. 424.

<p>Tlie Supreme Court will not interfere with inferior courts iu cases of contempt, when it is found that such courts exercised a jurisdiction vested in them, that the decree rendered was a proper exercise of judicial power, and that disobedience of such order was punishable as a contempt.</p> <p>In such cases it has no concern with the question whether the act charged was or not committed, or did or not constitute a contempt, and will not review the facts on which the lower court acted to punish for contempt.</p>

Tissot, J. 1. Federal authority is powerless to control prohibited mairiages between white and blacfc citizens of a State. 3-1 Ann. 269. Therefore, Art. 95 C. C. 3825, preservod its original force until November 14, 1870, so that a civil marriage on the 18th of February, I860was null and void and no community resulted, to he dissolved by any court of justice.

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

Houston, J. a) A sale by a constable, in parish of Jefferson, under a writ of ft. fa. over 90 days old, not returned within 30 days from its date, is null and void. R. S-, Sec. 635; Graff vs. Moylan, 28 Ann. 75; Jacobshagen vs. Moylan, 26 Ann. 735. (b) Sections 8 and 9 of Act 57 of 1867, providing summary proceedings for the collection of taxes, not being expressed in the title, are unconstitutional. Art. 118, Const. 1864; Succession of Irwin, 33 Ann. 69.

<p>A party wbo resides in this State with the intention of fixing here his domicile for an indefinite peiiod of time and engages in active business pursuits for a number of years acquires a domicile in the place in whioli he has thus lived, which becomes the conjugal domicile, if, in the meantime, he contracts marriage even in a foreign country with a wife, whom he brings to his residence and who lives here with him a number of years.</p> <p>The wife who visits and sojourns in her native country and refuses to return to the domicile thus established is amenable to the courts of this State in an action for separation from bed and board by the husband for her alleged abandonment of the conjugal domicile.</p>

<p>To constitute perjury, it is essential that the false swearing should have been committed with respect to some matter over which the Court had jurisdiction.</p> <p>So where the alleged false oath was taken before ajustice of the peace, and the oath administered by him in an examination by or before such justice in a prosecution for burglary, such false swearing could not be perjury, because for such a crime, and others punishable with death or imprisonment at hard labor, ajustice of the peace in the country parishes is without jurisdiction to conduct such examination. This proceeding is exclusively committed bylaw to the district judge, and he cannot delegate his authority to a j ustice of the peace. Where the false swearing is not perjury, a charge of subornation of perjury cannot be based upon it.</p>

<p>PPEAL from the Civil District Court for the Parish of Orleans. liightor, J.</p> <p>Sec. 7 of Act. Ho. 106 of 1886 is graduated in accordance with Art. 206 of the Constitution, and the license taxes imposed on all companies and persons falling within any given class are equal and uniform. State vs. Chapman & Generally, 35 Ann. 76; State vs. O’Hara, 36 Ann. 94 ; State vs. Schonhausen, 35 Ann. 42.</p> <p>The license taxation on insurance companies fixed in Sec. 7, Act. No. 10), 1886, is violative of Articles 203 and 200, Constitution of Lonisiana 1879.</p> <p>In interpreting a law or an article of a constitution, regard must he had to its object, and the mischief it was'intended to remedy. 5 Ann, 516 ; C. C. 18 ; 6 Ann. 386 ; 9 Ann. 165; 12 Ann. 777,154 ; 11 Ann. 124 ; 12 Ann. 699.</p> <p>Reference to the history of a law or article of a constitution can he had to ascertain it» meaning. 11 Ann. 439 ; 16 L. 268 ; 5 F. S, 140; 5 Ann. 516.</p> <p>Prior to the Constitution of 1879 the Legislature constantly sought to proportion and graduate license taxation according to the quantity of business done, and by other equitable standards and proportionate apportionment, but were prevented by the courts declaring such graduations inadmissible under the then existing constitutions. 23 Ann. 449, 464 ; 94 Ann. 112; 26 Ann. 141; 28 Ann. 102. To obviate this difficulty Art. 206 of the present Constitution provided for a “graduation.”</p> <p>Where a new system of law is introduced in the State, the terms used in it are to be inter' preted by the jurisprudence from which it is taken. 16 L. 394 ; 30 Grattan, 477.</p> <p>The system of a graduated license tax is new in this State and is taken from other states, where it has long prevailed, and to which we must look for the meaning of the word “ graduation " — which means a proportionate scaling of the license tax on a basis “ which is reasonably fair and just.” 1 Pacific Rep. 204 (Kansas); there must be a “rational ” basis “ and the apportionment of taxes accordingly.” Cooley on Tax. Note to p. 13910 Pacific Rep. (Cal.) 113; 31 Iowa, 106. In “ graduation ” there must be “an intendod approximation to equality, and if the assignment is fair and judicious, or nearly attains it, as is perhaps practicable in a license law.” 23 Grattan, 473; 36 Ann. 93.</p>

Tissot, J. 1. Where plaintiff has proved the allegations of his petition, and shown a want of skill* incapacity or negligence on the part of defendant, and has proven his damages, he is entitled to recover. 2. “ Every aet whatever of man that causes damage to another obliges him by whose fault ithappened to repair it.” C. C., Art. 2315. “ Every person is responsible for the damages he causes, not merely by his act, but by his negligence, his imprudence, or his want of…

Tissot, J. 1. Upon the faets of this case plaintiff has shown no right whatever to maintain its lamp posts on the streets of the city ot New Orleans. 2. A citjf may, in the exercise of its police powers, unquestionably make all necessary provisions with respect to the poles and wires of all telegraph, telephone, or electric light companies, within its limits, which the comfort and convenience of the community may require. W. XT. Telegraph Co. vs. Pendleton, 122 XT.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.</p> <p>1. The transfer of a mortgage hy its holder to the creditor of a third person, to secure the debt1 of the latter, is an obligation with an implied suspensive condition resulting from the nature of the contract (Rev. G. C. 2026), whereby the transferrer binds himself to pay, or, at least, to abandon his right of mortgage íd payment to the transferroe, in order to enable him to enforce said right against the mortgagor in the lieu and stead, and in right of the mortgagee, in case of the non-payment of the debt at maturity by the debtor. P. Pont, Vol. 1, on Privileges and Mortgages, Nos. 472, in fine, 473 and 478.</p> <p>If the debt is then paid in full hy the debtor, the condition oq which the transferrer’s obligation was made to depend being defeated, the law will consider the agreement as never having had any existence, and release the transferrer from all liability thereunder. Rev. C. O. 2028, P. Pont, %Cbi supra.</p> <p>But if the debt is only partially discharged, then the deficiency only is to be supplied fr#m the proceeds of the ceded mortgage, for, the transferrer’s obligation having, on the payment of such shortage, been extinguished hy performance (C. C. 2130), hero tains his priority over other and subsequent mortgages for'the surplus of his claim : cessante causa, cessat effectus. 10 Rob., 155; P. Pont, Vol. l¿Nos. 479, 480.</p> <p>2. Whether the object of a contract entered into witb a view to secure the debt of a third person, be the cestion of a mortgage claim, or. of the mortgage attaching thereto, separately, or of the priority of-the mortgage only, the effects of the contract will be the same in eaeh several instance (P. Pont, on Privileges^ and Mortgages, Vol. 1, Nos 475 478), and the following special rules will govern, to wit:</p> <p>1st. The creditor who enforces the hypothecary right which has been ceded ortrans. ferredto him, acts in the lieu and stead, and in right of the transferee, and must exercise or enforce that right in the same manner'the latter would himself have done it. P. Pont, on Privileges and Mortgages, same volume, Nos. 473, 475 and 478.</p> <p>2d. The hypothecary right which has been ceded cannot he made to increase or decrease in the hands of the transferroe, and, inasmuch as it attaches to the whole and every particle of the sum it secures, whatever is left of the ¿latter, after satisfaction of the debt in reference to which the transfer was made, reverts to the transferrer. 10 Rob. 155, P. Pont on.Privileges and Morfcages, Vol. 1, Nos. 479 and480,</p>

<p>APPEAL from the Fifteenth Judicial District Court, Parish of St. Landy. Lewis, J.</p>

A PPEAL from the Eighth Judicial District Court, Parish of East Carroll. JDeloney, J. 1. Where there is no will, heirs ean at any time take possession of the succession on giving security to the creditors of the succession, if they require it. Minor heirs may be legally put in possession the same as the major heirs. 24 Ann. 270; 25 Ann. 56, 220 ; 21 Ann. 278; 29 Ann. 347; 30 Ann. 93, 128, 17S; 10 Ann. 169. 2.

A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. A confession of judgment on a petition addressed to a judge in a jurisdiction outside of the domicile of the debtor, to be subsequently filed in such jurisdiction beyond the domicile, is virtually a waiver of domicile, and prohibited by Articles 89, 92,129 and 162 of the Code of Practice. Revised Stat. 1870, Sec. 1204.

<p>PPEAL froui the Civil District Court, Parish of Orleans. fissot, J.</p>

<p>Under the provisions of Act No. 16 of 18Y5, the city óf New Orleans is required to pay certain officers and members of the Metropolitan police, and has no right to deduct disbursements from the taxes collected for that institution for the pay ment of such parties, for services rendered subsequent to tho law.</p> <p>Xhe city of New Orleans is not liable for taxes collected for that force, by defaulting sheriffs, simply because it allowed them privileges for accelerating the payment of such and her own taxes from delinqueuts.</p> <p>An expert appointed by a party to make researches deemed necessary for his defense, must he paid by that party.</p>

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

A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. The liquidating commissioners of insolvent banks can claim no salaries, but are restricted to the commissions allowod by the law. P. S., Section 1818.

<p>A ruling of the trial judge cannot be reversed, unless the bill of exceptions wakes such showing of the facts and circumstances a9 will enable this court to decide that be erred.</p>

Bightor, J. I. The master will be held liable for “subjecting the servant, through negligence, tc greater risks than those which properly belong to the employment. Thompson, Negligence, II, 969; Hilliard, II, pp. 424, 456, 459, 4G7; Addison, Torts, I, pp. 226, 257; Wharton, Negligence, § 205; Beach, Contrib. Neg. 311; Wood, Master and Servant, 678, 843; Wait, IV, p. 417; 102 Mass. 572; 55 111. 492; 8 Am, Bep. 661; 31 Ind. 175; 62Mo. 230; 63 Penn. St. 146; 34 N. J. L. 151.

A PPEAL from the Civil District Court, Parish of Orleans. ±\_ Tissot, J. All donations, whether made in or out of the State, are to be considered in determining the reduction to which they are liable, and must be fictitiously added to the property belonging to the donor at his death. C. C. 1505, Only those are excluded which have perished by accident in the hands of the donee. C. C. 1506.

<p>.In a suit- on a marine insurance contract, predicated on an open marine policy, proved and admitted to have existed between the insured and the company, the burden is on the company to prove its contention that the open marine policy had been cancelled and rescinded before the elite of the contract of insurance sufed on.</p> <p>Parol testimony is incompetent and inadmissible to vary, alter or modify the stipulations of a wiitten contract of insurance, aud, hence, it will not be admitted to support the contention of the insurer, that the insurance was for total loss only, if the instrument ev'dences a different agreement.</p> <p>A sale at public auetio 1, in accordance with the law of a seaport, at which a disabled vessel puts in after a storm or other distress, is the best mode of disposing of a cargo shown lo be too seriously d imaged for reshipment.</p> <p>An insured cannot v> cover for a total loss in the absence of proof of abandonment and of notice of the same on the insurer.</p>

<p>Where property lias been s: Id for taxes, and the taxpayer redeems it -within the term allowed therefor, the one who lends him the money to enable him b > redeem it does not • thereby become invested with title to the property, although the act acknowledging the loan coutainsan express subrogation of the lender to his (the taxpayer’s) rights, The title is in the purchaser at the tax sale, and he alone could pass it to another j and when it was redeemed the title reverted to the original owner, and could be made liable for his debts.</p>

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

Voorhies, J. A compromise may be set aside under the civil law, unless founded on a doubtful light. 28 Laurent, Nos. 324-5 ; í) NTarcadé, Nos. 471, 568-9; 18 Duranton, Nos. 395-8 ; 3 Aubry & Baa, p. 476 (E.); 3 Mourlon, N. 1170; Bomat, vol. 3, p. 10. No. 1. The rule is the same as common law. Stapleton vs. Stapleton, 1 Atkyns 10; Broderick vs. Broderick, 1P. ¥m. 241; Lucy’s Case, Be Gr. McH, & Gr. 364; Ex-parte Banner, 17Ch. Biv. 488; Wheeler vs, Smith, 9 H. 82.

VoorMes, J. I. A purchaser at a probate sale, which is a judicial sale, is not bound to look beyond the decree and tlie jurisdiction of the court. Hennen's Digest, p. 1494. II. A valid and indefeasible title is given by a sale ordered by a competent court on the petition of a tutor administering a succession, acting under the advice and direction of a family meeting, the object of the sale being to pay the debts of the succession.

A husband, who has been a party to an act of purchase in which it is deolared that the-price belonged to the wife in her parphernal right, and that the property is to he such cannot afterwards contradict it.

I. (a) The tax sale of property under an assessments the name of one not the owner, is an absolute nullity. Maspero vs. New Orleans, 38 Ann. 401; Lagne vs. Boagni, 32 Ann-912-913 ; Denegre vs. Gérac (b) The constitutional provision that tax deeds shall he “received by courts as prima facievalid svles,” merely establishes a new rule o£ evidence, and not new rights. Cooley on Taxation, 2d Ed. pp. 517, et seq. . EC.

<p>The provision in the present State Constitution directing the collection of taxes otherwise than by suit, was not self-operative; hence, a suit for a city tax iDstituted and prosecuted before the legislative act was passed to carry into effect the said provision, operated to interrupt prescription against the tax. City vs. Wood & Bro., re-affirmed, 34 Ann. 732.</p> <p>An assessment on merchandise or money at interest does not, though duly recorded, operate as a privilege on the immovables of the tax payers under Act 77 of 1880. See Section 24 of said act.</p> <p>Act 95 of 1882, fixing the term of prescription against tax mortgages and privileges at five years, does not contravene Art.'176 of the Constitution; nor does the provision in that article, as to the time .within which privileges shall be recorded, apply to tax privileges.</p>

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

Boman, J. On cross-examination a witness for the defense may be interrogated upon any question incidental to the facts and circumstances testified to on his direct examination. 35 Ann. 1015; 36 Amu. 573. A witness called by defendant was cross-examined on matternot connected with the matter stated in her direct examination; notwithstanding the timely objection of defendant’s counsel. This was error.

Houston, J. In order for a person to be legally adopted, it is necessary that tho authority of the court should first be obtained. The execution of an act of adoption before a notary without other formality does not constitute a legal adoption. Act Ho. 48 of X865: R. S., Secs. 2322 to 2328; Article 2X4 of R. C, C.; Succession of Hosser, 37 Ann. 840. A wife who renounces the community, loses all sort of right thereto. R. C. O. 24X1.

<p>APPLICATION for Certiorari and Prohibition.</p> <p>Cited fbe following authorities. Art. 23 Conet. 1879 ; 31 Ann. 122, Redon vs. Spearing; Barbin vs. Secretary of State, 32 Ann. 579; Art. 92 Const. 1879; Elliott vs. Peeraol, 1 Peters, 341; United States vs. Terrena., 13 Howard, 40; McCrary on Eleotions, 257, 382, 383.</p> <p>Cited tbe following authorities : R. S. Secs. 1385, 1431, 1432, 1433 and 1434; State ex rel. Eord vs, Miltenberger, 33 Ann. 2G6; Act 57 of 1877, and Art. 440, C. P.</p>

<p>A decree for executory process is not a judgment in the strict sense of the term. It decides nothing, but may be appealed from.</p> <p>It is an expw'te order which may be rendered at chambers as well during vacation as during term time.</p> <p>Act BTo. 86 of 1866 was not designed to prohibit the granting of such orders. It proxiosed to continue in the courts the power of hearing and determiniog contradictorily, during vacation, motions to quash conservatory and other writs on the face of papers and not on the merits and suits to eject tenants.</p> <p>Act 86 of 1866, -which purported to enlarge ihe powers of thecourts of New Orleans, as then composed, so as to authorize the hearing, during vacation, of motions to quash certain writs and orders, which are issued ex parte, has no reference to orders of seizure and sale, which are regulated exclusively by Art. 63 and Articles 732, et seq. of the Code of Practice.</p>

<p>APPLICATION for Prohibition and Mandamus.</p> <p>Cites tlio following authorities: Art. C. P. 846; State ex rel. Logan vs. Third District Court of NewOrlean, 16 Ann. 186; State ex rel. Michaud vs. Judge JTourtli District Court, 20 Ann. 239; Actl8ofl886, State ex rel. Walker vs. Judge, 39 Ann. 136; Livessey’s case, 34 Ann. 741; 39 Ann. 540 ; R, R. Co. vs. Mayor and Council, 39 Ann. 13"1 ; Marrero vs. Barker, 23 Ann. 302; Al’t. 566, C. P.; 14 Ann. 5i); 16 Ann. 396 ; Brotlssard vs. Judge, 39 Ann. 225.</p>

<p>Inaccuracies in a motion of appeal, in the bond and in the certificate of the clerk, amounting at most to clerical errors, are not sufficient to justify the dismissal of an appeal, if the proceedings are otherwise sufficient to identify the appeal with the judgment complained of, with legal certainty.</p> <p>The rights of litigants cannot be jeopardized by «slight inaccuracies of their counsel, or by the incompetency of clerks.</p> <p>In furtherance of the ends of justice, a case will he remanded to enable a plaintiff to amend so as to set forth more explicitly his cause of action.</p> <p>A judgment in a case in which a cause of action was not set forth, because it had then no existence, cannot constitute res judicata*</p>

<p>Advances clearly proved to have been used for to other than plantation purposes, cannot be allowed a privilege.</p> <p>Por services rendered by counsel in the settlement of a succession in which there was little or no litigation, the assets realizing some $6000, an allowance of $300 is ample, and will not be increased.</p> <p>A vendor of real estate is entitled to a privilege for the payment of the unpaid .[price, which exists until it has been relinquished, or the debt satisfied, or prescription has run</p> <p>The abandonment need not be in absolute terms. It is enough if it can be inferred from the acts of the parties that the vendor intended to waive his rank in favor of another » and subordinate his claims, in order to secure payment of the latter by preference over himself. What surplus, if any, remains thereafter accrues to the vendor.</p> <p>Mr. Justice Poché was absent during the term op accou'pt of illness,</p>

<p>An appeal made returnable on tlie suggestion of„tlie appellant at an improper place and at an improper time, will be dismissed.</p>

<p>An appeal mado returnable on the suggestion of tlie appellant at an improper place and at an improper time, will be dismissed.</p>

<p>The law makes ib the imperative duty of administrators of successions to see to and provide for the payment of succession debts, and, when necessary, to provoke the sale of the property, movable and immovable, for that purpose.</p> <p>This duty cannot be paralyzed by the mere judicial denial by an heir that the dobts ao. knowledged by the administrator are truly due.</p> <p>Tn older to restrain the execution of an order of sale provoked to pay debts, an lieir must nob merely allege, but prove, that the dobts do nob exist.</p> <p>The law does not forbid the sale of succession property in tbo summer timo, and the probate judge having, in the exercise of his discretion ordered the sale, we liavo no authority, on such ground, to interfere,</p>

Ellis, J. When the deceased had planted a crop and was furnishing the laborers, it is not only lawful, but the duty of the administrator to cultivate, gather and market the crop, to create all debts and pay same necessary to accomplishing that end, including purchasing and iurnishing goods to the laho5 era, and it is also his duty to preserve and protect tlio property at the cost of the estate. 19 Ann. 494; 30 Ann. 133; 22 Ann. 316.

PPEAL from the Third District Court, Parish of Lincoln. Young, J. Where act of sale and counter letter both concur in asserting that it is a sale, the latter containing the agreement that the vendor may redeem within a given time, it must be held to he a sale with the right of redemption, and if the right is not exercised within the time agreed on, the vendor can not exercise it afterwards, and the purchaser becomes irrevocably possessed of the thing sold.

<p>A note secured by mortgage, issued by a planter to fclie order of bis merchant, to make good all advances for the working of a plantation, although received as “collateral security,n may be sued on, directly by the latter, for the exact amount of the advances, — as a pledgee could do.</p> <p>In the absence of proof of want of consideration, and in the presenoe of evidence showing that the advances have been made, payment of the note may be enforced by the seizure and sale of the mortgaged property.</p>

Delomj, J. 1. The following articles of the R. C. C. are in point: 3441, 3442, 3445, 3446, 3487, 3488, 3489, 3490, 3556 Ho. 25. 2. Prescription only attaches to a right when it can he exercised. 2 H. D. 1227, Ho. 2^ Plaintiff’s right to reclaim the land never arose until after the lease expired in 1886. consequently this right could only, and never before, he judicially enforced when the right arose or the demand was duo. C. P. 1. 3.

<p>The Supreme Court has no jurisdiction over a controversy in which the matter in dispute is the nullity or validity of a judgment rendered for less than the lower limit of its appellate jurisdiction.</p> <p>An appellee who has represented to this Court that a case was not within its jurisdiction and the Court has acted on that representation by dismissing the appeal; who subsequently acquiesces in this judgment and voluntarily permits, without any objection, the Circuit Court to hear and determine the same case; who afterwards applies for a prohibition to this Court to arrest the execution of the judgment of the latter court, but is denied the same, and who sues to annul the judgment, surely cannot be heard any longer to set up want of jurisdiction mtione materice in the court rendering the judgment.</p>

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

W. F. Millsop, Judge ad hoc. In a motion to revive a judgment against a person since deceased, and who had made a surrender in bankruptcy, the assignee is the proper person to cite. Stackhouse vs. Zunts, 36 Ann. 529. Until an assignee or executor files his final account and is discharged, he still preserves his official function, though there may be no property to administer. 35 Ann. 1022.

Young, J. lies adjudicate cannot be raised as to a question which was not made an issue, and which has not been adjudicated upon. Estoppel is founded upon tbe principle that a party is hound.by his previous actions, admissions or allegations; so where he has a vendors privilege and fails to ask for and have it recognized in the judgment, he is not afterwards estopped from claiming bis privilege in a contest with other creditors. 29 Ann. 841; 32 Ann. 826, 827.

Ooeo, J. 1.Plaintiff in suit is not entitled to call liis vendor in warranty, 19 L. 368; O. P. Art. 378 et seq; 2 Ann. 271; Ibid 755; 15 L. 471; B. C. C. Art. 2519; !) Ann. 367; Cross on PI. 432. 2.Phat the warranty shall have existence, it is nocessory that the right of the person evicting shall have existed before the sale.

Mouton, J. A document placed in evidence by defendant, on cross-examination of plaintiff’s witness, without restriction, is to he considered as substantive and independent evidence.

1. As between the parties to a contract, suit cannot be brought on the accessory, ignoring the existence of the principal obligation. Ward vs. Douglas, 22 Ann. 463,. 2.

<p>"When a party is indicted and notice of the venire list is served on him, and the indictment is afterward nolle prossed and an information is filed against the accused at the same term of court, charging the same offense, it is not necessary to again serve a copy of the venire on the accused.</p> <p>"When the accused has made several distinct confessions at different times, the State cannot be requited to prove that the first confession was obtained without threats, violence or undue influence, before interrogating the witnesses as to other confessions.</p> <p>The State cannot be controlled in the order of introducing these confessions in evidence.</p>

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

<p>Where only a partial settlement of a partnership has been effected and where certain matters have been expressly reserved for future settlement and adjustment, an action will properly lie for a further and complete settlement.</p>

<p>In case the vendor really and seriously contemplates and agrees to sell a tract of land at. a price which is fixed and certain, and the vendor, while offering and proposing to buy the land, obtained also a transfer of a judgment upon the false assertion that it operates as a judicial mortgage on the land sold and in respect to which the vendor is really deceived, held that on appropriate allegations and proof, the transfer of the judgment may be annulled, and the amount that has been realized thereon, recovered of the von* dee.</p>

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

Landry. Kstilette, J. 1.Plaintiffs cannot be heard to set up exceptions as means of defense, and to have them tided separately, and in advance of the merits. This system of pleading and practice is confined to defendants. C. P. 20. 2.Contracts between husband and wife as a general rule are forbidden. C. C. 1790; 30 Ann. 203. Thoir capacity to contract is exceptional, and limited to certain specified cases.

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

<p>In the absence of prayer and proof that a dative executor had received sums of money from the executor, his predecessor, no judgment can validly be rendered against him.</p> <p>In order to recover from such predecessor, suit must be brought against him or, in case of his death, his succession. Although prescription be suspended against the creditors of an insolvent, the principle is inapplicable to successions, whether solvent or insolvent.</p> <p>The right of a mortgage creditor is lost by the failure to reinscribe within ten years, although previous to the expiration of that delay the mortgagor had died.</p> <p>But no reinscription is necessary when the mortgaged property is sold within the ton years.</p> <p>Payment of a judgment not reinscribed and not revived cannot be sought after the expiration of the ten years by which it is proscribed.</p>

Débaillon, J. l.He who pleads payment mast prove it by preponderance of evidence and beyond doubt. 18 Ann. 228; 23 Ann. 84; 24 Ann. 288. 2.The plea of payment admits the validity of the obiigation. 9 Ann. 528 ; 12 B. 397; 14 Ann. 54; 25 Ann. 172; Hen.

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

Bowrges, J., ad hoe. If the party who claims the land has acknowledged that the title of ownership is in his opponent, his alleged ownership is destroyed. 39 Ann. 1033. In a petitory action met by the defense of the prescription of ten years, the main legal discussion involves the question of the alleged just title, the good faith and the length of time of defendant’s possession of the property in controversy.

<p>APPEAL from the Thirteenth District Court, Parish of St. Landry. JSstilette, J.</p> <p>1.A promise to sell amounts to a sale between the parties if clothed with the formalities, provided by O. 0 . 2440; C. C. 2462, 2456.</p> <p>2.Id centum est quod cerfcum reddi potest.</p> <p>3.A vondor’s privilege springs from the law alono. O. C. 3249; C. H. 2103; 31 Ann. 729.</p> <p>4.A suspensive condition is never implied, it must bo expressly stipulated. So, in a prom ise to sell, a vendor cannot defeat the rights of a vendee who has been in possession for several years, by" insisting that he (tho vendor) has not the benefit of a special mortgage to secure the price when none was expressly stipulated.</p> <p>5.The mere forra of a contract will not be looked to so much as the essence of the contract and the real intent of the parties. Hen., p. 1000, Ho. 4 and cases cited.</p> <p>6.In construing it, the manner in which a contract has beeD executed and treated by both parties, will be considered to determine its true nature. C. C. 1956; Hen., p. 1012, Ho. 7*</p> <p>7.The construction will he against a vendor, or [a promisor in a contract to sell. Hen., p. 1012, Ho. 6.</p> <p>8.Executed contracts. Hen., p. 1011, Hos. 7, 9,11 and oases cited.</p> <p>9.Obligations of the ancestors pass to tho heirs. C. O. 67i.</p> <p>10.TTncondit onal heirs are absolutely bond. C. O. 882.</p> <p>11.Acceptance by heirs is express when they assume that quality in a judicial proceeding O. O 88.</p> <p>12.Plaintiffs in this suit stand in the place of their mother, and are bound by her contracts. They are not third parties to her contracts.</p> <p>13."When a person by his words or conduct causes another to believe in the existence of a certain state of things, and induces him to act upon same, he is estopped from averring against him a different state of things. Bigelow on Est., pp. 64, 65; 30 Ann. 50.</p> <p>14.A judicial mortgage attaches, though the title to real estate be not recorded. 35 Ann. 829.</p> <p>15.A promise to sell, with no reciprocal agreement that a formal sale shall be executed, and with no express stipulation to that effect in favor of both amounting to a proviso or suspensive condition; amounts to a sale between the parties, and will be so treated, where tho promisee has gone into possession. 11 B. 349; 12 B. 474; 5 Ann. 656; 6 Ann. 26; 1L. 314; 3 H. S. 586, 336; 2 L. 460 ; 6 N. S. 432. The case is different where such agreements or stipulations are expressly included in the contract to sell, amounting to a suspensive condition, and where the promisor remains in possession.</p> <p>16.In cases such as the one at bar a mortgage attaches to promisee’s property. 12 B. 474.</p> <p>17.A general denial puts at'issue plaintiff’s capacity where he sues in a representative capa* city. 5L. 405; '7 Ann. 621.</p> <p>Acceptance of promisee may he proved by evidence dehors the act. 2 L. 460; 3 H. S. 583.</p> <p>If the Kilpatrick heirs were unaware of the transfer of T. to his wife they should have cleaily proved it. Hen., p. 495, Ho. 2.</p> <p>Plaintiff in injunction cannot recover counsel fees as damages. 17 L. 263; 4 Ann, 304; 12 Ann. 239; 2L.102; 5L. 246; 14 Ann. 333 ; 19 L. 357; 13 Ann. 449,193 ; 14 Ann. 311. 757 820; 16 Ann. 563; 35 Ann. Calvet vs. "Williams.</p>

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

Bridger, J. 1. Justices of the peace shall have power to hail or discharge in criminal cases not capital or necessarily punishable at hard labor. Const. 1879, Art. 126: “Whoever shall he guilty of larceny shall he imprisoned at hard labor, or otherwise, not exceeding two years.” Sec. 812, E. S. 2.

A PPEAL from the First District Court, Parish of Caddo. Hieles, J. 1. The action of the court below in denying a motion for a continuance, will not be reversed in the absence of a showing that the court has abused its discretion.

<p>PPEAL from tiie Tenth Judicial District, Parish of Red River. j Rail, J.</p> <p>1. A general verdict operates as a conviction upon all the well charged counts of an indictment. Bish. Cr. Pr., sec. 1005; Prazier vs. State, 5 Misso., 536; People vs. Magallows, 15 Cal., 426 ; 49 Barb., 122.</p> <p>2. Better practice is to make one sentence begin to run where the other ends. Bish. Grim. Pr., sec. 1327, and authorities noted.</p> <p>3. A general verdict upon an indictment charging burglary and larceny in separate counts will authorize a separate sentence on each count.</p>

1.Charges to the jury will not be reviewed by the Supremo Court unless they were in writing and the defendant excepted thereto at the time they were given. 34 Ann. 1213 ; 35 Ann. 543, 619, 770; 38 Ann. 497. 2.When an instruction to the j ary appears misleading it it should be excepted to at the time, in order to give the court below an opportunity to correct the erroneous instruction or explain or qualify it, or make it more distinct. 35 Ann. 543; 37 Ann. 52. 3.Por the…

Boone, J. 1. In any indictment for forging, uttering, stealing, embezzling, destroying or concealing, or for obtaining by false pretenses auy instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by tlie purport thereof, without sotting out any copy or fac simile thereof, or otherwise describing the same, or the value thereof. R. S. Section 1049. 2.

Court, Parish of East Felica. Brame, J. 1. The accused has no right to exact a list of the State witnesses to be produced b fore the petit jury, nor can the Court require the district attorney to'furnish such a list as a condition precedent to a trial of the cause. 32 Ann., 782. State ex rel. 'Wickliffoj 39 Ann., 847, 2.- The fact that a witness was an accomplice may affect his credibility, but not his competency. 23 Ann., 78 ; 25 Ann., 592.

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

Hides, J. The tendency of modern jurisprudence is to relax tlio strict technical mies of the common law and look rather to substance than forms, to ideas rather than words. 32 Ann. 335. “ The object to be gained by the description of the stolen things, namely, to individualize transaction, will indicate liow definite it should be.” It is to enable the court to see from it that the things are in law subjects of larceny. Bishop O. P. 702.

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

<p>PPEAL from the Tenth District Court, Parish of De Soto. Mall, J.</p>

Barlcsdale, J. 1. There is no'law requiring verdicts to be in writing. 8 U., 31 Ann. 96; 32 Ann. 854; 33 Ann. 1414. 2. The law does not require jurors to be philologists. All that law requires is their ability to appreciate the facts and to apply the law. When they have done that and expressed their sense in an intelligible and unequivocable form the law is satisfied. 31 Ann. 96; 32 Ann. 854; 33 Ann. 855. 3.

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

<p>The word -'may" found in section 54 of Act No. 81 of 1888, does not mean shall. Traced back, through the last sentence of Article 229 of the Constitution to Aot No. 23, Section 28, of 1877, which the framers of that instrument intended to continue in force in that respect, it simply means are authorized.</p> <p>The Constitution merely directed that the Legislature “shall provide that every parish way levy a tax, which means, is authorized or empowered.</p> <p>Any legislation seeming to impose upon police juries the duty or obligation of levying the tax woold transcend the delegated authority and so be unconstitutional and barren of effect.</p> <p>Police jurors are therefore clothed by law with the discretionary or optional power of levying or not, as in their wisdom they may see fit and proper, the tax in question for school purposes.</p> <p>Tn case of a failure to levy the tax, no mandamus can'isaue to compel the levy.</p>

<p>The proceedings of police juries must "be kept in writing.</p> <p>The minutes of their proceedings make up a public record imparting absolute verity, and they cannot be attacked or contradicted in a collateral action, to which the board are not made parties. Nor can their secretary in such an action be required to correct alleged errors, or supply aliegod omissions in their minutes.</p>

<p>APPEAL from the First District Court,- Parish of Caddo. Taylor, J.</p> <p>1. Where the"petition alleges and shows there were no debts due^by^deceased, there is no administration necessary, and a sale by such administrator is void. *30 Ann. 479; Barton and wife vs. Bougier and Sheriff; 29 Ann. 560; Burns vs. Tan Loon and numerous others.</p> <p>2. Since the amendment to article 2237 C. C., forced heirs are not restricted in their right to annul simulated contracts of those from whom they acquire interest, by parol evidence to their legitime. The right of action in such* cases is now unlimited.»: 39 Ann. 316; Spencer, administrator,-] vs.” Lewis, administrator, et als., 39 Ann. 878; Cole, administrator, vs, Cole etal. (Act 5 of 1884). Minors whose property was,rsold.without legal authority can recover it without tendering the price of sale to the purchaser. 33 Ann. 745, 769.</p> <p>3. Prescription is suspended during minority of the party against whom it is pleaded. 38 Ann. 209, Barrow etal. vs. Wilson etal., and cannot be founded ¿upon a nullity* 39 Ann. 102, and 29 Ann. 560. Article 990 C. P. only contemplates sales of succession property to pay debts at the instance of creditors. 38 Ann. 651.</p> <p>4. Any sale or contract without a consideration is void. • “The want or failure of consideration may also be proven by parol evidence. Taylor’s Evidence, page 969, Sec. 1138, and page 978. Sec. 1150. Receipts in nearly every case can be explained by parol. Taylor’s Evidence, page 965, Sec. 1134.</p> <p>5. In sales of real estate to pay debts of succession] al) claims should.be]duly probated and recognized by¡the proper court. C. P. Arts 9984, 89, 990.</p> <p>6. The universal legatee stands in the place of her father, W. W. Harper. O. P. Art. 120.</p> <p>7. Actions to annul fraudulent sale must be commenced within a year after fraud is discovered. O. P. Art. 673. If no citation was served on the present appellants all the proceedings are void as to them. 30 Ann. 702, Successions W. O. Winn.</p>

<p>A PPEAL from the Second District Court, Parish of Bossier. XJL Boone, J.</p>

<p>APPLICATION for Prohibition.</p>

<p>APPEAL from the Civil Court for the Parish of Orleans. Houston, J.</p> <p>1. This Court has no jurisdiction of an injunction talc en hy the owner of property to restrain the sale thereof for an amount of taxes less than $2000, even if the property is worth moro than $2000. 38 Ann. 39, 230, 99; 36 Ann. 801, 392.</p> <p>2. Tho assessment roll must designate the lot according lo a particular plan. 37 Ann. 60.</p> <p>3. Registry laws apply to the State for its taxes. Constitution 1868; 30 Ann. 1365; 26 Ann. 592; 28 Ann. 496; 31 Ann. 514, 517.</p> <p>4. If the State neglects to record its delinquent tax list within the time prescribed by law, it loses its privilege as against third persons, and retains only a mortgage. 36 Ann. 272; 34 Atm. 1131; 31 Ann. 286; 29 Ann. 415; 28 Ann. 496, 305; 27 Ajan. 460, 407,244, 275, 48; 26 Ann. 80, 592; 24 Ann. CIO ; 23 Ann. 236 ; 20 Ann. 80, affirming; 12 Aim. 778. 18 Ann. 142; 16 L. 292.</p> <p>1. Tax collectors may proceed to enforce collection of taxes upon copies of the delinquent roll deposited in the recorder’s office when the original assessment rolls are missing-Act 50 of 1877, p. 81.</p> <p>2. Section 1 of Act 82 of 1684 provides that property offered for sale under the authority of that act shall he adveitised hy a description ‘ ‘ sufficient to identify, describe or deliver the property.”</p> <p>3. Absoluto perfection ip. the* description of property on assessment rolls is not required. It is sufficient if it be such as not to mislead tbe owner. Blackwell Tax Title, 139 to 140; Cooley on Tax. pp. 28C, 285; 'Woodside et al. vs. Wilson, 32 Penn. St. 55, 57; City vs. Miller, 49 Penn, St. 455 ; 13 Sergeant & Rawle, 360; 4 Watts, 351, 355; 18 Penn. St. 151; 58 Penn. St. 290; Rougelot vs. Quick, 34 Ann. 126; 1 Ann. 195.</p> <p>4. Where tho law provides for tho mode and manner of correcting assessments, and every opportunity is afforded the taxpayer to have the defects and errors of his assessment corrected, if any exist, he cannot afterwards plead such errors as a defense against the enforcement of the tax. Atax payer will no t be permitted to profit by his own negli. gence, and is therefore hound hy the assessment. 21 Ann. 439; 11 Ann. 195, 69, 251 ; 23 Ann. 781; 27 Aim. 520.</p> <p>5. Act 42 of i871 creates a lien and privilege in favor of the State for State taxes without the filing of the rolls. Sec. 37, p. 115. As the lien and privilege is not created by tho filing of the rolls, third persons have full notice of the existence of the tax lion and privilege to be created for each year’s tax before the filing of tho rolls. When such filing takes placo it operates as a registry of tbe lien and no mortgage can prime such lien unless recorded after tho taxes are delinquent and before the filing of the rolls.</p> <p>'6. No act done in contravention of a positive prohibitory law can affect tho rights of tho State, when such law was adopted expressly to preserve those rights. Therefore, a sheriff who violates the law hy passing an act of sale to a certain purchaser, without seeing that all the taxes are paid cannot release tho property from the burden of paying ;the tax. Section R. S. 3620; 33 Ann. 382.</p> <p>77.. A mere declaration in a notarial act of sale that all taxes had been paid cannot bind tho :Stafce of Louisiana, where no receipt or certificate to that effect had been exhibited to the notary, or when no evidence was adduced that the receipt or certificate was lost or mislaid.</p> <p>When such declaration was brought to tho notice of counsel after trial, it should not bo considered, there being no allegation of payment and tho deed of salo not having boon introduced for tho purpose of proving payment.</p> <p>.8. Where the Recorder of Mortgages omits to recite in his certificate a lien and privilege-in favor of the State for tbe tax of a certain year, the purchaser should not hold tho recorder. The State cannot be made to lose her tax by reason of the recorder’s mistake. Morano vs. Shaw, 23 Arm. 382.</p>

<p>U'ho fact, that by the charter of a mutual benefit association a particular method, of notice of assessments falling due is declared to be sufficient and binding on all members, does not exempt the corporation from the operation of the principles of equitable estoppel which apply to all other persons natural or Juridical.</p> <p>In matters affecting tho execution of contracts, tho doctrine of estoppel has uo use or significance when the contract has been complied with; it is only in cases of non-compliance that the question arises whether the other party has, hy his representations.or course of contract, estopped himself from setting up such non-compliance as a ground of forfeiture.</p> <p>"Forfeitures are rot favored by the law; and in cases of insurance, where the company has pursued a course of conduct which leads the insured honestly to believe that-, by conforming thereto, his rights will be protected, the company will be estopped from claiming a forfeiture, although Incurred under the letter of the contract.</p> <p>Hence, though the charter provides only for notice by posting, yet if the company adopts the practice of always sending written notice by mail to a particular class of members of assessments due, and if on a particular occasion it failed to send sucli notice, and if the failure to pay was solely due to the want of notice, and if, as soon as informed, payment was tendered, the company is estopped from claiming the forfeiture.</p> <p>Upon a review of the evidence, the facts of tho uniform custom to send notices, and of the failure to send it in the particular case in which default occurred, that this was the sole cause of non-payment, and that payment was offered as soon as knowledge was obtained, are found established.</p>

<p>The duties of a provisional syndic consist in keeping, as a deposit, all the effects of an insolvent debtor, in performing all conservatory acts which may be necessary in demanding and receiving rents and income of the property, in collecting all claims which may-become due during his administration, and in accounting to the definite syndic as soon, as he is appointed.</p> <p>He is not authorized to disburse funds which shall come into his hands.</p> <p>In case no invertory is made of the effects surrendered but only an estimation is made of their value, and a provisional syndic is placed in possession, and subsequently, a definitesyndic is elected, and he causes an invertory to be made which discloses an apparent deficit in quantity: Held, that in the absence of some direct evidence that the provisional syndic has disposed of, or misappropriated them, he cannot be made responsible* for the difference.</p>

Tissot, J. 1. When the surroundings of a public crossing in a populous city are such as to render it dangerous, it is the duty of a railroad company to take thereat such precautions for the-protection of the public as an ordinarily' prudent person would consider commensurate with the danger. Patterson on Railway Accident Law, Sec. 170; Beach on Contributory Negligence, Sec. G5; Whaiton on Negligence, Sec. 798 (a). 2.

<p>APPLICATIONS for Certiorari and Mandamus.</p> <p>b Sections 2079. et seq., R. S. 1870, providing for appeals from judgments rendered by justices of the peace in the Parish of Orleans, were not repealed by the adoption of the Constitution of 1879. They remained in a condition of innocuous desuetude until quickened into life by the Constitutional Amendment of 1884. Like Art9. 857 and 858, C. P., regarding the writ of certiorari, or the State insolvent laws, during the existence of the bankrupt act, the operation of these laws was suspended, hut they were not repealed. 117 U. S. 201. Hence Sec. 2093, R. S3., is the law governing the time within which the record of appeal must he filed in the appellate court.</p> <p>• 2. City courts, under the new system, took the place of justices of the peace in the Parish of Orleans under the old system. Sec. 7, Act 45, of 1880 ; Act 22, of 183S, and Act 129, of 188.; 33 A. 146; 33 A. 419.</p> <p>3. Sundays must he excluded from the computation in ascertaining which was the tenth day after the filing of the bond of appeal. Dies dominions non est jicridicus. 9 A. 371 ; 124 U. S. 131; 6 Rob. 18; 463.</p> <p>4 In determining whether the record was filed within ten days after filing of the bond (R. S. 2093, Rule 29 Civil District Court), both the day on which the bond was filed (i. e., June 11th), and the day on which the transcript was deposited in tbe ^clerk’s office of the Civil District Court (i. e., June 22d), must he excluded (0. P. 318, R. C. C. 2059), and this done the appeal was seasonably perfected. Tbe phraseology of Sec. 2093 is identical with Art. 575, C. P., and the decisions are uniform that it takes eleven days to make ten full days in matters of appeal, because the last day is not counted. 29 A 224 ; 29 A. 850; 25 A. 136; 30 A. 677.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Tissot J.</p> <p>Plaintiff seized, under writ of attachment, in the hands of G-ustave Peusor, certain money belonging to Geo. Peuser, who had absconded. The answers of Gustavo Peusor were traversed, and traverse tried before a jury, who found that the money was subject to the attachment. The verdict of the jury and judgment of the court are fully sustained by the evidence, and their verdict upon a question of fact will not be set aside except upon conclusive evidence that it is erroneous.</p> <p>¡Fox vs. Jones, 39 A. 929 ; 31 A. 432; 22 A. 31; 20 A. 438 ; 14 A. 139 ; 12 A. 297, 759; U A. 215, 625.</p> <p>The garnishee is meiely a stakeholder, and has no right to plead for other partios ; and the judgment against him should he affirmed or his appeal dismissed. Hanna’s Syndic vs. Lauring, 10 Martin Bcp. 510 ; 14 La. 514- Hazard vs. Agricultural Bank of Miss., 1L Bob.-336.</p> <p>The plaintiff has the right to sue his debtor and recover judgment against him, although ho holds collateral security,which is in litigation or liable to be rendered valuóles by adverse claims. The principal debtor may be sued without proceeding against a security or guarantor.</p> <p>a Bob. 135; 4 La. 158; 14 A. 193; Lewis, Trustee, vs. United States, 92 U. S. 622; CoJebrook on Collateral Securities, sec. 113; Jones on Pledges, sec. 681.</p> <p>"Where a third party intervenes in an attachment suit, claiming the property attached a®-: owner, and joins the garnishee in all of his defences, such third party is necessarily a party to a rule to traverse the answers of the garnishee, and it is error to deny snob third party the right of appearance on the trial of the traverse.</p> <p>Records of suits between plaintiffs and other parties are res inter alois acta, where neither’ defendant nor garnishee were parties to such suits, and are inadmissable.</p> <p>A garnishee has a right to plead all defences which may be necessary for the iirotection or his own interese. Drake on Attachment, § 673; "Waples on Attachment, p. 368 and note 5 8 A. 285; Drake 696 and notes; 15 L. 253 ; Drake, 415, 515 : 28 A. 69.</p> <p>A pledgee holding collaterals and not alleging their insufficiency to pay his debt, must proceed against such collaterals, before he can attach other property ot his debtor, 1! Wend, (N. Y.) p. 109; Story on Bailments, 320; IN.S.418; 2N.S.22.</p> <p>The burden of proof is on the attaching oreditor when seeking to contradict and disprove-the answers of garnishee. 4 A. 138 ; 14 A. 306, 791; 10 A. 31; Waples on Attachment^ p. 375, notes 4 and 5.</p> <p>The attaching creditor must disprove the answers, he cannot assail the veracity of the garnishee as a general witness. 14 A. 792.</p> <p>Although an. attorney be engaged as counsel for one of the parties to a suit,he cannot testify to or make use of what has been #onflded to bim professionally, and confidentially by tbe other party to the suit. Weeks on Attorneys, p. 261; 50 Mo. 337,</p> <p>A new trial should be granted when an attorney, in his closing, states facts of which there» is no evidence, and such statement is calculated to influence the jury. Weeks on Attorneys, p. 221, sec. 112; 25 Geo. 225; Ibid 24; Ibid 395; 4 E, D. Smith (N. Y.) 253; 55> Mo. 509; 67Wis, 529; 30 N. W. 790 ; 34N.W. 564; 14N.E.32; 37 N. W. 9X4; 38 NW. 27; 14 Mich. 313; 61 Wis. 114.</p>

<p>A.n original stockholder who signs without qualification a subscription for new stock to increase the original stock, is not entitled to cancellation of his subscription and to repetition for the amount pi id in, on the ground that all the new shares were not subscribed for.</p> <p>Tn the absence of any stipulation or limitation to the contrary, his subscription is not contingent or dependent upon the taking of all the shares, but is absolute and binds him accordingly.</p>

líiglitor, J. The evidence shows that the accident resulted from the negligence of defendant and failure of their employees to complywith their own rules and regulations, and the jury so found hy their verdict. Their verdict should be sustained, with the increased damages-claimed. The defense of contributory negligence on the part of plaintiff is not sustained by the evidence nor under the law.

Jtightor, J. Where a public corporation ratifies the tortious aets of its agents, it will be liable therefor - McG-ary vs. Lafayette, 4 Ann. 440; McG-ary vs. Lafayette, 12 Rob. 668; 12 Ann. 15; 13 Ann. 426. The right of eminent domain is limited to the actual necessities of the case. Wood's Field on Corporations, 2d edition, sec. 403.

<p>A P.PLICATION for Mandamus.</p>

Voorhies, J. 1. A railway company is to be held to the exercise o£ a very high degree of care in operating its road through the populous streets of a city, and will not be permitted to omit with impunity any reasonable duty that may tend to the safety of the public, which has-an equal right with the railroad company to the full use of the thoroughfares. C. P. Q. R. R. vs. Stumps, 69 Ills. 409. 2.

<p>A prohibition cannot issue to a District Judge to prevent him from doing an act which he denies to have done, which he refuses to do and which is not shown to have been done by him.</p> <p>A judgment or decree appointing a provisional syndic, in an insolvency proceeding, cannot be suspensively appealed from. It must be executed, although an appeal was granted from it and was perfected.</p> <p>A mandamus does not lie against a District Judge to direct him to annul such appointment and to cancel the letters issued to the provisional syndic, when for reasons assigned, the judge has declined to do so.</p> <p>The exercise of a legal discretion cannot be controlled by mandamus.</p>

<p>This case hinges mainly on questions of fact.</p> <p>It was sought to hold the defendant bank liable for the contents of a bank-box for wrongfully delivering the box, and to recover from Ringrose and Washburn the contents of said box, amounting to §100,000, which they are charged with having appropriated.</p> <p>Held: the bank, having delivered the box to the bearer of the ticket or card which called for the delivery of the box to “Bearer,” had legally complied with the contract, and was-therefore exonerated from all responsibility in the premises.</p> <p>Held: as to Ringrose and ‘Washburn, the evidence having entirely failed to show that the box in suit contained any money or values, as alleged by plaintiffs, or to connect either of these two defendants with any spoliation of that or any other box belonging to the succession of Risk, no recovery could be had as against them.</p>

<p>Jn sequestration of movable property based on a vendor’s privilege, an affidavit to tbe debt, to tbe privilege, and to tbe fear that “tbe defendant will conceal, part with or dispose of tbe movable in bis possession daring tbe pendency of tbe suit,” fills all tbe requirements of tbe law; and tbe party is not bound to swear to, or to prove, any other grounds of fear than tbe simple facts that be has a privilege and that it lies in the power of tbe defendant to defeat or destroy it by doing some of tbe acts which be swears he fears be may do.</p> <p>*Xhe case is still stronger where the purchaser of tbe movable has failed to pay tbe price when due; which default would be a sufficient reason for tbe.foar, even if tbe law required tbe creditor to swear and to prove that be has good cause to fear, which it does not.</p>

Orleans. Houston, J. ■1. Ho action can be brought; by’a second vendor against a vendor upon a warranty, except the intermediate vendor be a party ; this results from the general rule providing that all persons through whom relief is sought be made parties. See Soixas vs King, 39 Ann. ; Hyde vs. CraAdick, 10 E. 387 ■2. The second vendee has no action of warranty against the first vendor, except there be an express subrogation.

<p>Our supervisory power will be exercised only in cases where there has been a flagrant usurpation of authority, or when serious injury may occur to parties to whom no other remedies are afforded, or when the intermediate courts are without power to grant relief.</p> <p>This Court will respect the independence of inferior courts in the determination of questions confided to their judicial discretion, and will not usurp merely appellate jurisdiction not conferred upon it by the Constitution.</p> <p>If tho case in which relief is sought he appealable, the relator has adequate remedy by appeal and is not entitled to the prohibitive authority of this Court.</p> <p>A mere apprehension of injuryisnot, of itself, sufficient to justify the interference of this Court with the proceedings of inferior tribunals acting within the general scope of their powers.</p>

<p>"When an injunction suit is dismissed and the injunction dissolved without damages, a bond for costs is all that the plaintiff and appellant can be required to furnish to entitle him to the appeal.</p> <p>When the injunction bond has been fixed at an amount not sufficient to cover probable damages, the bond for appoal cannot be increased so as to make up the deficiency. Injunction and appeal bonds are distinct obligations, each conditioned for different purposes.</p> <p>It is neoessary, in order to ascertain the amount of a suspensive appeal bond, to consider what would be the effect of the judgment of the appellate court.</p>

<p>Act 136 of 1880 does not repeal Act No. 90 of 1877, which is a special statute relative to the-"bringing of suits by the city of New Orleans, before justices of the peace, for the collection of licenses, and to the tax to he paid "by the city on instituting such suits.</p> <p>Act 136 of 1880 is a general statuto, which fixes taxes to he paid in the shape of stamps, in all" suits brought before district and oity courts in New Orleans and which is not incompatible with the Act of 1877. Both can he reconciled and. stand together.</p> <p>Stamps for $1.50 on a license for $50 by the city is sufficient, and the city judge should issue-, process.</p>

<p>tiood faitli and possession aro not sufficient, to acquire immovable property by tbe prescription of ton years.</p> <p>A title sufficient in form to transfer immovable property is required as the basis of prescription.</p> <p>A purchaser of immovable property cannot be judicially coerced to accept a doubtful title.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. A Tissot J. 1. A donation of immovable property, with the icservation of the usufruct thereon by the donor, is null and void. R. C. C., Art. 1533; J5 Ann. 580 ; 5 Ann. 433; 11 Aim. 707; 12 Ann. 721; 4 Ann. 36. 2. A donation which divests the donor of the whole of his property, is null and void. It. O. 0.1497, It matters not that the donee agrees to support the donor during life. 11 It. 309. 3.

<p>Determining whether relator is or not entitled to a peremptory mandamus compelling the respondent judge to grant him a writ of injunction, depends upon whether the law entitles him to it, as of right. If the law gives the respondent the discretion to grant or - refuse it, the mandamus will not go.</p> <p>In a mandamus proceediugwe are not to enquire whether, in dissolving the writ, tlie respondent exercised a sound and legal discretion, hut to simply ascertain whether he had any discretion at all.</p>

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

<p>A rule to tax costs, and judgment thereon, are Interlocutory, and form parts of the original proceedings.</p> <p>It is a general rule that the sovereign cannot he sued in his own court without his consent; and hence no direct judgment can he rendered against him therein for costs, except in the manner, and on the conditions, ho has prescribed.</p> <p>■When a state submits itself to the jurisdiction of a cours in a particular case, either by the institution of suit or permitting itself to he sued, that jurisdiction may be used to give full effect to what the State has, by its act of submission, allowed to be done.</p> <p>But it is the duty of the courts of the State to carefully examine the acts of submission, and determine the extent to which jurisdiction extends, and render judgment accordingly.</p> <p>Neither the constitution nor the law governing such a proceeding as this confers jurisdiction on this court to render a direct judgment against the State for the costs of talcing testimony therein, in any event.</p>

<p>In all criminal prosecutions it is Che desire, and to the interest of the State, that all reason' able facilities be oxtended to tbe accused in the preparation of his defense.</p> <p>Hence the accused is not responsible for the error committed by the clerk in issuing subpos. nas to witnesses for the defense, if it appears that the order for such witnesses had been given in a proper manner by the accused or his counsel,, and that the witnesses they ordered are residents of the Parish.</p> <p>.A party accused, "who discovers on the day fixed for liis trial that a material and important witness ordered by him and by whom alone he could establish a fact important or indispensable to his defense, had not been summoned, because the given name of the witness had been by error of the clerk changed into another name, in making out the summons, is legally entitled to a continuance on proper showing for the purpose of procuring the attendance of such witness.. !For making the discovery on the day of trial only he cannot be charged with want of due diligence,</p>