Volume 41 — Louisiana Annual Reports

Monroe) .7. 1. The holder of an obligation for money payable to bearer, is. by virtue of his possession. vested with the legal title, and may bring suit thereon iu his own name, although the beneficial interest may belong to a third person ,• and the debtor cannot inquire into the title of the plaintiff, except to set up equitable defenses to the obligation sued on — the defendant has no other light except that of defense. 2 X. S. 201; 2 La. 264; 4 X. S. 107; 5 La. 48; 4 La.…

Taylor, J. If the buyer does not pay the price the seller may sue for the dissolution of the sale. C. C. 2561. The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. C. C. 2045.

Monroe, J. ft is a plain and elementary legal proposition that errors of names, description and numbers in private or public acts will be corrected upon proper evidence so as to conform to facts and to the intention of the parties. 36 Ann. 549, 870 ; 35 Ann. 560; 33 Ann. 1033; 26 Ann. 545; 20 Ann. 211; 1 Greenl. Ev. § 296 Ann.; 1 H. I)., p. 541, Ho. 6. The manner in which parties have executed a contract furnishes a guide for its interpretation.

Murphy, J. 1. The act No. 100 of 1878, being a special law, has not heen repealed by the present city charter, acts of 1882. 2. The act of 1878 and ordinance 4798, A. S., adopted thereunder, are not obnoxious to article 46 of the Constitution, which prohibits the granting to any corporation, association or individual any special or exclusive right, privilege or immunity; nor to the Constitution of the United States. 3.

<p>APPEAL from the Civil District Coxxrt for the Parisii of Orleans. Monroe, J.</p> <p>First. The defendant acknowledged the vessel was covered by the policy insured on, at the time she was damaged, on the voyage from Galveston to Vera Cruz:</p> <p>X. By notifying tlie assured after the condemnation of the vessel at Yera Cruz, that the company would hold tlie assured to all tlie obligations imposed on them by said policy.</p> <p>2.By sending its inspector, Captain Baker, to Yera Cruz, Mexico, to look after said vessel after said company was informed of the vessel’s damage and condemnation.</p> <p>Second. The evidence shows that the president and the general agent of the defendant company knew that the vessel was intended to be used in Texas and Mexican ports. To issue a policy, under the circumstances disclosed in the record, containing a printed warranty against the use of such ports, was an act of bad faith. Defendant is, therefore, estopped from availing itself of this warranty even if it intended it to be an operative part of the contract of insurance. Wheeler vs. Traders’ Insurance. 2 East. Rep. 136; "Kruger et al. vs. Insurance Company, 13 Pacific Reporter, 156; Wood on Insurance, p. 149, note.</p> <p>Third. The policy is to be liberally construed in favor of the insured. Exceptions to the risk and forfeitures are to be taken most strongly against the insurer. 1 Arnould on Marine Insurance (ed. 1850). p. 65, note; May on Insurance, § 175, pp. 205, 206-; Wood on Insurance, § 59, pp. 140, 141; Id., § 67, pp. 157, 158; 1 Phillips on Insurance (ed. 1853), p. 85. § 131.</p> <p>Tlie written portion of the policy prevails over the printed part. 1 Arnould oil Marine Insurance, § 46, Rulev; May on Insurance, § 176, p, 184.</p> <p>Fourth. Full and complete effect must always be given to the written description of tlie risk. It must not be destroyed even in paré, in order to give effect to a conflicting printed clause. To do so would make tlie printed override tlie written. Wood on Insurance, p. 129 ; Id. § 63. i>. 149; Id., p. 150; Plinsky vs. Insurance Company, 32 Fed. Rep. 47.</p> <p>Fifth. As tlie printed words are general, intended for any like occasion, and the written were specially selected for the particular instance, the latter, in a case of conflict, will prevail. Still, interpretation will reconcile all where it reasonably can; and, as a means to this end, will give greater weight to the written parts than to the printed. Robertson vs‘ French. 4th East. 130, 136; Bishop on Contracts, 415; Hernandez vs. Sun Mutual, 6th Blatcli. 317; American Express Company vs. Prnckney, 29th 111. 392; Howard Fire Ins. Go, vs. Brunneer, lltli Harris Pa., 50 ; Chadsky vs. Guinn, 97 H. Y. 333. See also Clark vs. Woodruff; 83 H. Y. 518.</p> <p>1. The bringing of an action at law on a policy of insurance and prosecuting it to judgment, is a conclusive election to consider it as expressing the true contract between the parties, and an abandonment of any attempt to have it reformed in equity. Washburn vs. Insurance Company, 114 Mass. 175; May, Insurance, section 566 ; Wood, Insurance, section 808; 1 Duer, Insurance, p. 74; 90 New York. 428; Taney’s Rep. 277.</p> <p>2. Heither a policy ol* insurance or other writteu agreement can be reformed unless a mistake be made by both parties, so that tlie intention of neither is expressed; or, if the mistake be on one side, there must be fraud on the other in talcing advantage of the mistake and obtaining a contract with the knowledge that the one is dealing with him in error. Bryce vs, Lorillard & Co., 55 H. Y. 243 : Insurance Company vs. Davis, 131 Mass. 318; 78 H. Y. 618 64 H. Y. 456; 59 H. Y. 244; 2 Crunch, 441; 7 Ann. 228; 50 Md. 524.</p> <p>3. A mistake as to the legal effect of the instrument is no ground for its reformation. 40 Ark. 167 (55 Am. R. 571); Prescott vs. Cooper, 37 Alin. 553.</p> <p>4. The mistake must bo proved beyond a reasonable doubt. 64 H. Y. 456; 63 Ala. 488; 67 Cal, 317; 30 Fed. R. 862.</p> <p>5. Tlie mistake must arise from ignorance, surprise, or misplaced confidence. 65 Ga. 103 ; 90 Pa. 228.</p> <p>(i. And no evidence is allowed to prove the mistake unless the policy was written differently from what was agreed on. Insurance Company vs, Huntzinger, 98 Pa. 47.</p> <p>7. Ordinary diligence must boused to discover the mistake. 70 Ga. 794.</p> <p>8. It is no excuse that plaintiff did not read the policy till after the loss. 21 tt. C. 24 (57 Am. It. 669); 114 Pa. 398.</p> <p>.9. Failure to bring suit for reformation until the loss has occurred is an unfavorable circumstance. Steinback vs. Insurance Company, 77 U. Y. 498.</p> <p>10. Unless there be a contradiction between the written and printed clauses of a contract, both must be enforced, because, in such case, the written do not control the printed words. Grierson vs. Insurance Company, 6 N. S. 55; Hunter vs. Insurance Company. 11 Ann. 139; Joyce vs. Insurance-Company, L. It. 7, Q. B. 583.</p>

liujhtor, J. 1, The filing, by defendant, of a motion for security for costs, under section 4, of Act No. 13G, of 1880, precludes him from subsequently questioning the validity of the service of citation upon him.

yyPPLICATiON for Mandamus. Relator, having sold sugar which was not paid for, sequestered the «amo under tho privilege granted by Arfado 3227 of’ the Civil Code, which has been always maintained by this court. ‘ 38 Ann. 12: 37 Aun. 53.

Recorder’s Court, Parish of (Means. Murphy, J. I. The Constitutional issues relating to the alleged illegal exercise of police power, exclusive grants, monopolies, and the like, presented by the learned counsel for defendant, are no longer open questions; and, we submit them, as forever settled, by former decisions of this Honorable Court, which have now hecomo the law of the State. 34 Ann. 4544; 36 Ann. 980: 38 Ann. 967. 974; 39 Ann. 439; 40 Ann. 173.

<p>An appeal taken front a judgment rendered in’a proceeding, apparently criminal, will not be dismissed tor want of a citation to (he plaiutiff, who cannot be permitted to change the character of the proceeding and claim that it is civil in its nature, to oust the defendant from an appeal taken by him. as though (lie proceeding was a criminal prosecution, in which no citation is required-.</p> <p>Police juries can only exorcise such powers as have been ¡¿raided to them in express terms, 01 such as are necessarily implied from, or incidental to powers so expressly «¡ranted.</p> <p>The Legislature of this State has not made any general grant of police powers to police juries. but has very carefully detailed, defined and limited the powers granted.</p> <p>The right to regulate the speed at which railroad trains may run through their parishes or through even the thickly settled portions thereof, is not granted, either expressly or by implication, to police juries.</p>

<p>REPLICATION for Mandamus,</p>

Voorhics, J. 1. Common carriers, in the conveyance of passengers, are bound to exercise a very high degree of diligence, care, skill and foresight. Lehman vs. R. R. Co., 37 Ann. 707. 2. Especially where the passenger is known to be in any manner affected with a disability by which the hazards of travel are increased. Wardle vs. C. C. Co., 35 Ann. 204 and authorities there cited; Hickman vs. Mo.

Tissot, J. Parties who have associated themselves for the purpose of carrying on a commercial business, may adopt a symbolic firm name representing them collectively, such as, “ Standard Music and Photo. Lith. Co.” Bates on Partnership, Yol.

<p>The City Council of New Orleans has the right, and. it is its duty, to refuse to pass an ordinance to pay claims of doubtful validity. Its decision, however, is not dual. The creditor has the right to apply to the courts to have his claim judicially determined, and its payment enforced, if correct and valid.</p> <p>An injunction cannot issue when there is no primary demand in aid of which this secondary remedy is -invoked.</p>

<p>RP PLICATION for Mandamus.</p> <p>The Inhibition of Art. 159 of the State Constitution, against holding more than one office except that of justice of the peace or notary public, applies exclusively to Constitutional offices, and has no relation to the position or office of deputy sheriff, nor to that of returning officer under § 5 of Act Ho. 161, of the Acts of 1882, 5 Ann. 155; 9 Ann. 515; 15 Ann. 597.</p> <p>A mandamus will lie to compel a district judge to approve a sheriff’s appointment of a deputy sheriff, who is legally eligible to such appointment, where the district judge has no other objection thereto; personally or officially, than his erroneous opinion that such appointee is ineligible; because the latter is returning officer for the same parish.</p> <p>The State Constitution makes no difference between State officers and Constitutional officers and the prohibition of Art. 159. Constitution with respect to holding office is alike directed against both classes of officers.</p> <p>The approbation provided for by C. P. 764 means the approbation of the judge of the court in which sheriff acts.</p> <p>The exercise of supervisory control by a higher tribunal, with respect to the ordering the lower judge to grant his approbation would be violative of the policy of the law, which refers such approbation to the judge whose residence and knowledge peculiarly invests him with the ability to judge of the fitness of appointments of the officials of his own court.</p> <p>Mandamus does not properly lie in the instant case, to control an inferior court in the exercise of its discretion, unless manifestly exercised arbitrarily.</p>

Righto r, J. 1. On the trial of a rule nisi, to show cause why an injunction should not issue, the plaintiff’s allegations must be taken for true, and the sole question is, whether such allegations make out a prima facie case and warrant the issuing of the writ. The Court should not go into the merits of the case. 29 Ann. 58; 80 Ann. 799. 2.

<p>While it is a rale in criminal jurisprudence that tlie verdict of a jury will not "be vitiated by the fact that during the trial the jury were allowed a moderate use of spirituous liquors, as a stimulant or refreshments, the doctrine will not be extended to cases where it is shown that at least two members of the jury consumed an inordinate amount of whisky or other intoxicating liquor, within a few hours, from which they felt sick at the time t-liat the verdict was reached.</p> <p>Such a glaring abuse of a dangerous privilege cannot be sanctioned or tolerated, but must be rebuked.</p>

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

<p>1. In case tlie record shows that the prisoner was brought to the bar of the court when tin*, trial commenced and that the trial was concluded at the same continuous sitting of the court, and without there having been any intervening adjournment held, the presence of the prisoner throughout the entire proceedings mustbe presumed.</p> <p>2. During the progress of the trial of the accused for murder, it is permissible for the State’s'counsel to so amend the indictment as to alter the given name of the deceased, or his initials, and conform it to the proven facts in the case. This was a matter of form, and not of the essence of the crime charged.</p> <p>3. The counsel for the accused requested the judge to charge the jury that “in order to “ excuse a homicide on the ground of self-defense, it is not necessary that there should be ‘ actual and impending danger; that the true test is whether the defendant, at the time of “ the act, honestly believed, etc. — had reasonable grounds to believe that lie was in inime- “ diate danger of loss of life, or of the infliction of great bodily harm, and that he had “ no other apparent means of escape."</p> <p>The judge declined to thus charge the jury, on the ground that, under the law, an actual assault or demonstration must be shown; but that, in other respects, the requested charge was correct, substantially. Held: there is no substantial difference between the charge requested and the one that was given; and that the opinion of this Court in State vs. Chandler. 5 Ann. 487, contains the law of self-defense as administer'd in the courts of this State.</p>

Bightor, J. 3.* This controversy is between the collateral relatives oC the decedent and his legitimated child, who was also named his universal legatee.— The attack is on the testament. We contend that it cannot be set aside until the act of legitimation is properly contested and .set aside.

Tmot, J. 1. Relator has a contract with the City of Now Orleans, as the successor of the cities of J effevson and Carrollton, to light the Sixth and. Seventh municipal Districts with illuminating gas. for a period of thirty years, or until March 9th, 1899, at the rate of $50 per lamp per annum. Vide: Act before P. E. Davis, notary public, dated April 24th, 1867; confirmed and enlarged by Act before Bonj.

<p>APPEAL from tlie Sixteenth District. Court, Parish of East Feliciana,. Brame, J.</p>

John the Baptist. Rost, J. ICvery act whatever of mini that causes damages to another obliges him by whose fault it. happens to repair it. Civil Code of Louisiana. Article 2335. livery person is responsible for the damage he occasions, not merely by bis act, but his negligence. bis imprudence, or his want of skill. C. O. Article 231(5.

Monroe, J. 1. By the Code of 1870 proscription does not run against minors unless specially mentioned. The Code of 1870 and all the rules upon the subject require that full effect shall be given to the exceptional and subsequent provisions of Articles 3522 and 3554, taken in connection with Article 3541, in so far as they might be considerod effected by tbe anterior and general provisions of Article 1987. 2.

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

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

Tissot, J. 1. Tlie Constitution intended that all matters of taxation, whether State, parochial or municipal, should be on the same footing. See Arts. 202, 203, 210, 218. 2. If the revenue states of 1880 and 1882, apply to city taxation prescription has accrued. 3. If not, Act 96 of 1877 governs, and all city taxes and lions from 1877 are prescribed by throe years. 4.

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

Tissot, J. 1. When the property of one against whom judgment has been rendered is incumbered by mortgageshaving an apparent preference ov.er the judgment creditor, the lattor may, by rule, proceed to have such mortgages erased. 28 Ann. 753; 1 Ann. 330. 2. All dilatory pleas must be specially set forth in limine and before issue joiued otherwise not admissible. O. P. 333; 34 Ann. 966; 11 Ann. 491. 3.

<p>The accused is entitled, during the progress of the trial, to have the testimony of witnossos introduced by the State for the purpose of laying the basis for the admission in evidence of dying declarations, reduced to writing, for the purpose of having it anuoxod to a bill of exceptions, and brought up in the transcript, for review by this Court, in order to' obtain a ruling upon a question of law, on which he relies for relief.</p>

Voorldes, J. 1. A mandamus lies to commissioners, or other ministerial officers, to compel them to discharge the duties imposed by legislative enactments. 2 McCord (S. C.) 176 Ann. 2. There need be no positive refusal to perform the duty. It is sufficient if there be unreasonable delay, and manifest intention not to perform it. 32 H. J. Law, 39. 3. In proceeding by mandamus, want of interest should be specially pleaded in return. 3. H. J*. H. 259. 4.

<p>yyPPLICATION for Certiorari.</p>

Taylor, J. We have shown: 1. That your Honors’ construction of Act Ho. 97 is erroneous because, in one class of business organizations, whose capital is composed in part of bonds oxempt from taxation, you allow the amount of the bonds to be deducted from the capital, when assessed for taxation, but in another class of business organizations, equally entitled to .such deduction, you deny this right. This is unequal taxation, and therefore unconstitutional. Const. Art. 203. 2.

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

Voorhies, J. 1. One of the owners of a party wall, or wall in common, lias the right, if he desires to put up, on his own ground, a new and liigher structure, which the wall would be inadequate to support, to tear down the wall and build one, in its stead, both higher and thicker, taking the additional thickness from his property. C. C. 582 (678).

<p>APPEAL from tlio Twenty-sixth District Court, Parish of St. John the Baptist. Host, J.'</p>

King, J. Among* collateral relations marriage is prohibited between uncle and niece. O. C. Art. 95; C. ET. 161 to 162; 34 Ann. 270; 15Ann. 342, 441. Art. 118 of the Civil Code has no application, when the good faith is claimed to flow from an error of law. Tgnorantia juris, neviinem excused. C. C. Aarts. 1112 and 1488,1840; Eavard, Yol. 3, p. —; Dalvincourt. professor of the law faculty of Paris, Chap.

Semple, J.' 1. Redeemable sales unaccompanied by delivery,, and the considerations of which are inadequate, will be treated by courts, without sufficient evidence to the contrary, as contracts for which the thing nominally stands as security, and nothing else. Howe vs. Powell, 40 Ann. 307 • Collins vs. Pollerín, 5 Ann. 99. 2. The contemporaneous lease by the vendee to the vendor is especially noteworthy and decisive. Journal du Palais, Rep. vo.

Young, J. 1. An affidavit, in which the creditor swears to the existence of the debt sued on, and which alleges the Codal grounds, is sufficient. C. P. 237 to 243. 2. An averment that defendant is indebted upon a bill alleges possession and ownership in plaintiff. 18 Ann. 554. 3. Whore attachment issues under C. P, 237, the character of indebtedness, which the affidavit alleges to exist, can he set up in the original and amended petitions. 4.

<p>In executory process, tlio fact that the order of the judge endorsed on the petition and authentic evidence attached thereto, was made heforo -the documents wore tiled in court, affords no ground for relief, in absence of proof of injury. Other points referred to and overruled.</p>

Talbot, J. I. PRESCRIPTION. This action is on an account; the contract of pledge securing the account is an auxiliary obligation which is extinguished with the account by the prescription of three years. R. C. 0., 3138. A mitten agreement for the loan of money entered into before the loan is actually made, will not arrest the prescription of three years. Campbell vs. Hicholson, 3 Ann. 458.

<p>When several creditors sequester and attach their debtor’s property, and the amount in each case is less than two thousand dollars, and the cases are consolidated for the convenience . of trial, this Court has no jurisdiction, although the several domands aggregate an amount over two thousand dollars.</p>

<p>A State warrant, recognised, as having been issued, for a valid, consideration, such as public/ work, for which the State is liable, and the legality of which is not contested by the State, iu entited to he funded under Act 11 of 1875.</p>

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

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

<p>APPEAL from the Civil District Court for the Parish of Orleans. 1lightor, J.</p>

Monroe, J. 1. Sections 2 and 3 of the Act of 1876 (p. 116) arc not repealed by Act of 1882 (p. 34). Held: that tho failure to talco the presribod oath rendered the proceedings illegal. Merritt ot al. vs. Village of Tortchoster, 71H. Y. 309. In TliomxJson vs. White (4 S. and It. 35), the word “firmly” was omitted in an oath. In Cambria street (75 Penn.

“Ifraud as a ground of nullity, must be urged in a direct action where an actual titlo has passed accompanied with possession.” Austin Thorpe & Co. vs. Dalioclia, Becker & Co., 28 Ann. 46; vide 15… Held: ‘ * That where an immovable has been donated to a wife by her parents by a private act defective in form; tho defect may be ratified and confirmed by subsequent acts on the part of the heir3 of the donor, such as wo think are established in this caso.

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

Ninth District Court, Parish of Concordia. Young, J. 1. The attachment bond is sufficient if if bo identified, either by its recitals or indorsements, with the petition. 2. If the allegations of the original petition are sworn to, and are sufficient to authorize the issuance of the writ, there is no necessity of filing a supplemental petition, nor of making another affidavit, in order to obtain an alias writ. 4 R. 194: 5 La. 298; 32 Aim. 76. 3.

<p>A steamboat builder is liable in damages for defects of construction which occasion loss to tlio owner.</p> <p>The measure of damages is tlio amount of reasonable costs incurred aud paid for by the owner, to remedy tlio delects and to place tlio boat in a proper condition, as contemplated by tlio contract.</p>

<p>l. Pi-raoifptioii of one year is not applicable to actions in declaration of simulation. •</p> <p>2. A creditor may assail a simulation though not a creditor at the datio of the simulated ad.</p> <p>3. Tho consideration of a mortgage, debt may ho questioned by a third person having an interest, and ho may make proof of simulation by parol evidence and by tho testimony of a party to the act.</p> <p>4. The law creates a presumption that a promissory noto has an adequate consideration ; but when thoro is a idea of want of consideration supported by the ovidonce throwing serious doubt upon it, tho presumption may bo rebutted and tho payee may bo required to provo consideration.</p> <p>5. Evidence considered and conclusion of district judgo sustained.</p>

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

<p>Jn a suit against a shoriff hy a third party lor tho illegal and ■wrongful seizuro of his properfcy, if is not required that ho should allege in his petition that he had made oath as to the ownership of the property and had notified tho shoriff to execute an indemnity hond. Act 87 of 1882 fully protects the sheriff, and if lie fails to follow its text, he makes tlie seizuro of tho property at Ids peril. 2Io must know that tho property belongs to the defendant in execution.</p> <p>Tho third party, whoso property is seized, is not hound to give notice to tho shoriff and demand an indemnity hond.</p>

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

<p>APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Favrot, Judge ad hoc.</p>

<p>Xu a contract between a planter anti an overseer, under which the latter was employed for a series of years (at a stipulated salary, the fact that the overseer begins a new year without express agreement or renewal of terms, will be held as a tacit reconduction of the contract for the same term and at the same salary.</p> <p>The conduct of an overseer, who impedes by rudeness and otherwise reprehensible conduct, the inspection of the plantation under his charge, by persons who are thereto authorized by liis employer, and thereby jeopardizes the latter’s interests, is a just cause for his discharge before tlio expiration of the term of his employment.</p>

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

<p>In case one (mil, in which tho amount demanded is $>100, ho consolidated with onothor, in which tho defendant in tho former is plaintiff, and claims $1670 '42, this Court has no jurisdiction of tho consolidated cases, hecauso. in no event could this Court render judgment for an amount in excess of tho latter sum.</p>

<p>Proceedings in cases of contempt can never "be set aside and annulled 'in a proceeding for certiorari, unless the court has no jurisdiction to make the order disohoyed.</p>

<p>It is not necessary to-set out a copy or fac &vnviUi of an instrument forged, in ilie indictment. If the description of the forged instrument is in conformity to Sec. 1040 It. S., it is suilioient.</p>

<p>A PPEAL from tho Twenty-Sixth District Court, Parish of Jefferson.</p>

Taylor, J., aml-Hall, J. 1. A district judge cannot recuse himself except for sufficient legal causo, as specifically provided by law. C. P. Art. 340; 2 Ann. 40, 503; 9 Ann. 321. 2.

<p>A complaint that in a criminal conviction there was no proof of the vemie, involves a question of fact exclusively within the* province of the jury, anti over which the Supreme Court has no jurisdiction.</p>

<p>APPEAL from tlie Sixteenth District Court, Parish of St. Helena. Brame, J.</p>

<p>If tlie record contains neither a bill of exceptions, motion in arrest of judgment, assignment of error or error patent on its face, the judgment appealed from will be affirmed.</p>

Ellis, J. The General Assembly shall graduate tho amount of liceuse tax tobo collected. Constitution, Art. 206. It is not in the power of tho courts to lay down any rule for graduating license taxos. 35 Ann. 76 ; 36 Ann. 94; 37 Ann. 42; 38 Ann. 897; 4th So. It. 504 and 512. Municipal corporations have tho right to mako rules for the collection of taxos due them. 20 Ann. 674, 708 and 710.

Voorhies, J. 1. The right to entertain jurisdiction upon an appeal from a judgment granting or refusing an application for a decree of emancipation has not been conferred upon the Supreme Court, and cannot, therefore, be assumed. The value of the property of the minor seeking emancipation is not the test and criterion on which the right of jurisdiction is to be ascertained.

Voorhies, J. 1. Tlie manner of fixing causes for trial in the Civil District Court is set out in Act 23 of 1882. 2. Injunction cases must “be placed, as soon as they are at issue, on the summary docket from which the cases are required to be called in their order. 3. Cases which are required by Act 39 of 1880 to be placed on tbe summary docket cannot bo fixed on motion. Rules Civil District Court, rule 9. 4. Act 23 of 1882 amends and reenacts Act 39 of 1S80. 5.

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

<p>It is well settled that wherever there is a chango in phraseology and a word not in tlio Statute is substituted in the indictment for one that is, and tlio word thus substituted is equivalent to the word used in the Statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient.</p> <p>In an indictment for inflicting a wound less than mayhem, with a dangerous weapon, the character of the weapon is a fact to be determined by the jury. Rulings in cases of State vs. Jacobs, 10 Ann. 141; State vs. Scott, 39 Ann. 943.</p>

<p>Tlio appellate jurisdiction oí tlie Supremo Court iu criminal cases, does not extend to questions oí iaot touching the guilt or innocence oí the accused; but is restricted to questions of law. * '</p> <p>That court cannot review the action of atrial judge determining a motion for a new trial, grounded on questions of fact and relating to rulings made during tlio trial, to which no bill was reserved.</p> <p>Neither can it review such action, although a bill bo taken to tlie refusal of the judge to hear irrelevant testimony, in support of such motion for a new trial, when, had the testimony been heard and the motion denied, it would not have had the right or power to inquire into the sufficiency of the facts proved to justify the granting of a new trial.</p> <p>An unintended act derives its character from the intended crime. The original malicious intent affects both. A verdict and sentence in such case is a bar to further prosecution.</p>

<p>The husband may become a creditor of the community for amounts of his separate funds invested for the benefit of the community.</p> <p>At the dissolution of the community the husband’s .judgment creditors may claim all flic rights and credits accruing to him from the community.</p> <p>The heirs and legatees of the wife, if they accept the community, will become liable for the debts of-the same to the extent of their shares therein.</p> <p>To entitle the husband to claim as a creditor of the community, the law demands substantial proof that the amounts were actually invested by him in the community.</p> <p>It is not sufficient to prove that during the marriage the husband received large amounts of separate funds, if it appears that ho spent a portion for his own pleasure and convenience and those of Ms wife; that he lost another portion by unfortunate loans, or by investment in securities which he afterwards disposed of.</p>

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

Monroe, J. 3.Prescription cannot he set up against a continuous damage. 2 Addison on Torts, 1103 j Wood’s Law of Nuisance. Sec. 772 ; 35 Ann. 952; 97 N. S. 608. 2. Maintenance of an embankment which floods the land of an adjacent proprietor is a nuiscmce. Wood’s Law of Nuisance, See. 358. l'hc proprietor below is not at liberty to raise any dam to prevent the running of water. B. C. C. Arts. 661 and 664.

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

<p>In questions involving the appellate jurisdiction of the Supreme Court, it is settled practice that if it appears from the pleadings that one of the parties to the suit has an appealable interest entitling him to appeal to the Supreme Court, the same right must he recognized in favor of his opponent.</p> <p>An elector who has declared his intention to become a citizen of the United States in pursuance of Art. 185 of the State Constitution, is a citizen of the State and qualified to hold the office of coroner.</p>

<p>1. Cheeks, signed and issued hy a debtor and received by a creditor as payments on account of a debt, are competent evidence to prove interruption of prescription after the decease of the debtor under O. O. 2278.</p> <p>2. The fact that such checks have been surrendered on payment and have returned into tlie possession of tlie debtor, does not effect their evidentiary value and competency, and a ¡wbpcencocLuccs tecum to compel their production isa legal and proper remedy.</p> <p>3. Although the cheeks themselves do not establish a payment on the particular debt, they do establish a payment, and it is well settled that parol evidence is admissible to explain an acknowledgment and to connect it with the debt to which it applies. To this purpose, the. stubs of the chock-book from which they were taken, though not signed by the debtor, a e competent evidence, like other parol evidence.</p>

<p>1. An objection to the introduction of any eviden.ce, in support of a demand contained in an answer, on the ground that it is too vague and indefinite, cannot prevail, if it appears from kindred averments of the plaintiff’s petition,, that the character of the transactions are well known to both parties. •</p> <p>2. If the pleadings are of such character as to advise the parties of the issues respectively made, and to enable them to introduce all the.evidence in-their power, the purpose of the law lias been effected.</p> <p>3. In a suit of a principal against a contumacious agent, for a settlement of accounts, and the recovery of the balance found to be due, in - which the defendant claims reimbursement for certain expenditures, the onus probancliis*on the latter, and he must show, by a satisfactory preponderance of evidence that; such disbursements were made for the account of the principal, and that same were authorized and acceptod by the principal, otherwise his claim for reimbursement will be denied. •</p> <p>4. Although a verdict of a jury, upon a question.of fact; is entitled to great weight and consideration, yet, if there is no question as to;the character, or credibility of witnesses, and no question of false swearing and the like, .but only a question of tbe weight and sufficiency of evidence, it occupies just the samó'place as other findiugs by a court of first instaneo, and like thorn may be revised or annulled, and for like reasons.</p>

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

<p>A twelve months’ bond which operates as a vendor’s privilege must, in the settlement of a succession, be paid by preference and priority over all other privileges, except the expenses for the sale of the property, affixing seals and other expenses necessary to the sale of the property.</p> <p>A privilege for supplies can only be enforced on the crop for which they were furnished.</p> <p>An administrator who sues the succession for a debt due to himself, and cites himself as administrator, cannot, by such a proceeding, conclude the creditors of the succession by the judgment rendered in the case. The creditors, by opposition to his account, can inquire into his claim as though no judgment had been rendered.</p> <p>An administrator who claims a privilege on personal property of the succession, and sells the real estate and personal property in bulk, without separate appraisement, loses his privilege.</p>

<p>A prisoner who, after sentence, escapes from custody, during the pending of his appeal, forfeits all rights to ho heard and cannot ho represented hy counsel on appeal*</p>

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

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

, Talbot, J. A petition which discloses the facts upon which a claim is made against defendant is sufficient. It is not necessary that it should negative any matters of defense. Olhamvs. Crogham, 3 M. IT. S. 517 ; Matthews vs. Pascal, 13 L. 48; McRea vs. Purvis, 12 Ann. 85. Counsel should have full freedom of speech in conducting the cases and in advocating the rights of their constituents. Cooley, Con.

<p>1. Under Section 785 Revised Statutes, tlio law of manslaughter is pertinent in every trial lor murder, because the statute authorizes the jury to find a verdict oí'manslaughter in any trial for murder. State vy. Brown, 40 Ami. 785.</p> <p>2. In bis oliargo to the jury on snob trials the judge discharges bis duty when be states the law oC manslaughter, but bo must leave the jury to determine whether it is applicable to the facts proved in the case; and if he uses language expressing or necessarily implying that, in his opinion, the law is not applicable to the facts, he iuvades the exclusive irrovince of the jury, in violation of Sec. 991 Rev. Slat,, and commits error.</p>

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

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

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

<p>In law the component parts of a firm are distinct beings from the firm, as well as from each other, and their rights and liabilities must fie testod and adjudicated accordingly.</p> <p>Hence a bank can claim no lien or privilege on the deposit of a partner made on his separate account, in order to set off the same against a debt owing them by the firm.</p> <p>The silence of a principal aftor knowledge of an unauthorized or illegal act of his agent, is equivalent in law to an acquiescence in, and ratification of, the act or conduct of the agent.</p>

<p>1. This court has troquently held that Article 210 of the Constitution had effect to abolish tho method of collecting taxes by suit which formerly prevailed, and to substitute therefor the method of summary expropriation without suit.</p> <p>2. But the proceeding authorized by Section 54 of Act 85 of 1888 is not a suit for taxes nor a suit employed as a means of collecting taxes. It merely authorizes the invocation of judicial aid to compel the delinquent tax debtor, who possesses and conceals and withholds the property assessed in such manner that tho tax collector cannot roach it, and who refuses to produce or deliver it, to make such delivery, in ordor that the collector may enforce the payment of taxes by seizure and sale thereof, in the manner required by the Constitution.</p> <p>3. If it bo true that the State has no mode of collecting her taxes except by summary expropriation of property, without suit, it is equally true that she has an absolute right to collect in that modo; and for the proper vindication of this right, the courts are open to her as well as to all her citizens.</p> <p>d. Hence, when the tax collector is thwarted in his offorts to'soize and sell the property by the illegal acts of the tax debtor, in concealing and withholding the property so that it cannot be reached, tho legislative department violates no constitutional provision when it provides a judicial remedy by which the debtor may be compelled to produce and deliver the property in order that the collector may perform his constitutional right and duty.</p>

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

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

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

Monroe, J. 1. Article 3066 of the Civil Code only applies to sureties 011 the bonds of curators, administrators, executors, tutors and syndics; it does not apply to sureties on the bonds of liquidators of partnerships, because not named in the exceptional legislation, and such bonds are ordinary civil obligations. Walmsley vs. Mendelson, 31 Ann. 157. 2.

Price, J. 1. Wliovo thoro aro two defenses to a suit in a justice's court, one involving a question of fact, and a second a constitutional question, and t-lie caso goes oft on the question of fact, no appeal lies to t.lio Supremo Court. 2.

<p>1. Donations inter vivos are subject to an implied resolutory condition to the effect that if. at the death of the donor, the donation shall prove to be in excess of the disposable portion as then ascertained, the donation will then bo resolved to tho extent of such excess.</p> <p>2. The effect of the accomplishment of this resolutory condition retroacts to the date of the donation, and the forced heir revendientes the property regardless of subsequent alienations by the donee and free from all mortgages or incumbrances placed on it by the donee or his assigns.</p> <p>3. The right to enforce this condition belongs to the forced heirs alone; and is personal to them, derived, not from the deceased, but directly from the law.</p> <p>4. Tn exercising this faculty of revendication tho forced heir acts in his own right, and if he has accepted the succession of tho deceased with benefit of inventory, ho cannot be opposed by an exception founded on a right against the succession of the deceased. Hence he is not bound or estopped by obligations of warranty, which the deceased may have incurred, subsequently to the donation, towards purchasers of the proi>erty unduly donated.</p> <p>5. A person who has agreed to purchase from a third x>ossessor pi operty which has been thus donated, while the donor is yet living and having legitimate descendants and presumptive forced heirs, would be liable to eviction by the latter at the death of tho donor under tlie conditions stated, and cannot be compelled to accept so perilous a title.</p> <p>6. Other special contentions of plaintiff considered and overruled, j</p> <p>7. Distinction between the warranty of convention sales and that arising under judicial sales referred to.</p>

Bescmgon, J. 1. 'l'ho rule that an administrator cannot he sued personally before lie renders his final account is not invariable. Where the administrator has been removed for maladministration and all the debts of the succession have been paid, those enütled to the residue may sue him personnally on Ins bond. Tlioy should not be remitted to a suit for an account. JPord vs. Kittridge, admx., 28 Aim., p. 333. 2.

King, J. 1. A builder’s account for labor performed and material furnished on job work is an open account and proscribed by three years. Article 3538, O. C. 2. Parol evidence is inadmissible to prove any acknowledgment of a debt by a deceased person in order to take the same out of proscription. Article 2278, O. O. Parol evidence ivS inadmissible to prove an acknowledgment of an open account in order to take the same out of prescrifrtiou. Act No. 78 of 1888. 3.

<p>The Civil District Court for tlio Parish of Oilcans exercises a Mended probate anil general ordinary jurisdiction and has authority to pass upon questions of ownership of real estate, when raised by an opposition to an account involving the character of the, title of such property.</p> <p>An opposition filed after an account has been homologated, as far as not opposed, and boforo final judgment, and which simply joins in an opposition filed before such homologation, does not come too late.</p> <p>Evidence is admissible from a surviving husband to show error in an act reciting that certain real estate was acquired by his wife with her paraphernal funds and for her separate benefit and-advantage, although he was a party to the act.</p> <p>Evidence is likewise admissible from him to show that the paraphernal property of the wife was Improved by the community and that the value of the improvement is common property.</p> <p>The rulings in 33 Ann. and in 10 Ann. 379 have no bearing, as the charge of error ivas not made then as it is in this case.</p>

<p>An evicted vendee of property under n defective title, tlie nullity of which is apparent from-an inspection of the title itself, will not bo considered as a possessor in good faith, so as to be released from accounting for rents and revenues during his possession.</p> <p>Under tlie laws of Louisiana the essential conditions of good faith in a possessor under a defective title are that lie was ignorant of the defects which vitiated his title, and that he had just reason to believe that he was acquiring a good title.</p> <p>Hence those defects must have reference to some hidden or concealed facts, and not to ignor anee of the law under which the title was a nullity. •</p> <p>Ho one can plead ignorance of the law in questions of ownership.</p>

Monroe, J. 3. Master and Servant. The risk assumed by the servant is the ordinary hazard incident to the employment, and this is synonymous with unavoidable accident. Wood, Master and Servant, p. 738. Unless t-lie act is necessarily and inevitably dangerous, no negligence. Do. 739, 681. It is not contributory negligence, per se, to engage in a dangerous occupation. Beach, Contrib. Keg. 370; Wood, p. 763; 39 Ann. 1013. 2.

<p>A creditor holding an unliquidated claim for properly not included in tlie inventory, against a succession under administration, must bring a direct action for tlie possession, or value thereof, m due course of such administration. Such a proceeding cannot be engrafted upon, or liquidated, by way of an opposition to a dual account.</p>

<p>Opposition to Tableau of Distribution.</p> <p>A claim having been awarded by the Frencli-American Commission to the executor of a deceased French citizen, and the amount collected by the French government and paid to the dative testamentary executor in this State the legatees of the testator in tlie fund will share alike, as designated by the testator, although some of them are French citizens and others citizens of the United States.</p> <p>The legatees, French citizens, opposing the distribution, claim under the will alone, and therefore cannot ask that its disposition be changed so as to increase the amount given to them by the'testator.</p> <p>The Fronch-American Commission having decided it had jurisdiction of a claim presented by the executor of a deceased French citizen, its award upon the validity of the claim is final and conclusive; but it had no jurisdiction to pass upon the conflicting rights of parties to the fund awarded.</p> <p>The validity and amount of the claim being ascertained, and the amount paid to the party in whoso name it was presented and prosecuted, all conflicting rights of parties to the claim can be ascertained by the ordinary judicial tribunals. When paid to the executor of a deceased claimant it will be ordered distributed in the oourso of the administration of tlie succession, without reference to citizenship.</p>

<p>1. It is not always that malice and want of probable canse can bo inferred from tlie discharge of an accused. If tlie discharge be jpmfla facie evidence, the presumption may bo rebutted by sufficient proof.</p> <p>2. In the absence of facts showing malice and want of probable cause, which are essential ingredients in an action for malicious prosecution, no recovery can be had for indemnity.</p> <p>3. It is the malice, composed of bad feeling, and the knowledge of the want of a probable and just cause, which create liability.</p> <p>4. Public interest and a proper administration of justice require that actions for a malicious prosecution should not be maintained without clear proof of malice and want of probable cause.</p> <p>5. Courts cannot inflict damages on a party for resorting* in good faith to law, for the protec tion of his rights, rather than taking* the chances of a recourse to arms, or tamely aban doning the field to an usurper.</p>

Helena. Brame, J. 1. The clerk not being sworn as a jury commissioner is one of the “defects ” enumerated in section No. 11 of Act No. 44 of 1887, and to prevail, must bo urged on the first day of the term, as well when urged against the legality of the grand jury as against the petit jury. 16 Ann. 141; 21 Ann. 609. 2.

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

King, J. 1. The summary proceeding by rule for the collection of licenses is legal. Act 101,1886, section 17, page 184; Act 119 of 1882; State vs. Chapman & Generally, 35 Ann. 76. 2. Ordinance No. 2661, C. S., does not violate Article 217 of the Constitution, in not being graduated and equal and uniform as to all corporations transacting the same hind of business. 3. Ordinance No. 2035, C. S., may be good in part and bad in part.

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

<p>1. If, in a prosecution, under a city ordinance, in a recorder’s court in tlie City of Row Orleans, there is a bona fide and timely contestation in regard to its legality and constitutionality, antecedent to trial had, or judgment being in'onotuieed thereon, the condemned defendant is entitled to an appeal, and, upon his distinct and emphatic, refusal thereof, mandamus will lie against him to compel its allowance.</p> <p>2. A recorder’s court in the City of Row Orleans, is not a court of record, and there is no legal prohibition against a defendant, in a cause therein depending, from urging pleas or defenses orally.</p>

<p>APPEAL from the Fifteenth District Court, Parish of Pointo Coupée. Senyple, J. *</p>

<p>APPEAL from tlie Civil District Court for tlie Parish of Orleans. Mug, J.</p> <p>1. A suit for the purpose of securing the erasure and cancellation of tax assessments liens, privileges and inscriptions, from the hooks of the Recorder of Mortgages and Comptroller of the City of How Orleans, on the ground that tho property was erroneously described on the assessment rolls, and was listed in the name of ono not the ownor of tho property, is not a suit in which the legality or constitutionality of tho tax is in contestation, and hence the jurisdiction of tlie Supreme Court is to bo tested by tho amount involved. 39 Ann. 900; 37 Ann. 899, 507; 36 Ann. 286, 36á, 801; 33 Ann. 286; 32 Ann. 817; 35 Ann. 965 ; 38 Ann. 231, 99; 33 Ann. 286; 32 Ann. 818.</p> <p>2. The constitutionality of no law has been raised as ail issue in this case, hence no su6h question can bo considered. 26 Ann. 753.</p> <p>3. The amount involved being but $523 66, this court has no jurisdiction. Article 81. Constitution.</p> <p>An allegation in a cause that certain assessments and tho taxes based thereon are absolute ' nullities, and a denial of such allegations, puts the legality of such taxes in contestation and the Supremo Court has appellate jurisdiction thereof. 36 Ann. 812 ; 33 Ann. 286.</p>

<p>Wlioro tlie principal lousiness of a manufacturer is the making of machinery and other articles used in the preparation of an agricultural product of this State for market, the property used for the manufacture of these articles is exempt from taxation, although the property may he incidentally employed in the manufacture of other articles, not included iu Art. 207, hut of a like kind.</p>

Mils, J. TIio Funding Law does not provide tliat the demand of the bondholder for funding should bo made of the Board of Liquidation in any particular manner or form. If tho bonds to be funded are questioned or questionable, tho Supreme Courtis the sole arbiter of their fate-The refusal of tho board to pass upon them is a questioning of their validity, and equivalent to their rejection. Acts Ho. 3 of 1874 and Ho. 11 of Extra Session of 1875; State ex rel.

<p>Prohibition lies to a District Court to prevent it. from passing, as an appellate court, over city courts, upon questions involving tlie legality or constitutionality of a tax anti a title to real estate.</p> <p>A demand that such property when assessed, be declared exempt from taxation, implies a prayer that tlie taxes which would thereupon bo claimed as duo thereby, bo adjudged to bo illegal. It involves the constitutionality of a tax»</p> <p>The judgment of a city court in such case is not appealable to a District Court, though it have ax>pollato jurisdiction over city courts, but such judgment is reviowable as to facts and law under tho Constitution exclusively by the Supreme Court of the State.</p> <p>Tho jurisdiction of a District Court, exercising original jurisdiction, is quite different from that with which it is vested when it sits as an appellate court over city courts.</p> <p>"When tho District Court exercises original jurisdiction, it may pass upon questions relative to tho title to real estate and to the legality or constitutionality of a tax, but when it sits as an appellato court it can do neither.</p> <p>An exception to its jurisdiction ratione materice may bo filed at any stage and want of .jurisdiction can be noticed by the court proprio 7notu, at any time, without plea.</p> <p>Consent cannot confer jurisdiction when the court has none ratio7ie materice.</p>

<p>3. The rulo is that a defendant must he present at liis arraignment and then plead personally and not by attorney; but when the record shows that the defendant was duly arraigned and did personally plead, tlie trial had thereon cannot be affected, because before arraignment and when not called on to plead, he had voluntarily, and through liis attorney, filed a written plea in bar, which had been tried and overruled in his presence.</p> <p>2. "When a plea of autrefois acquit shows on the face of the rocord that tlie former trial was had on a fatally defective indictment, this rendered tlio plea demurrable, and authorized the court to overrule it on that ground without submission to jury.</p> <p>3. It appearing that, on former trial, the judgo had, on request of defendant, charged the jury that information was fatally defective and that they were bound to acquit, it does not lie in defendant’s mouth, under plea of autrefois acquit, to assert that the former information was valid.</p> <p>4. Confession .made on the simple advice of officer to tlie prisoner that ho “ had hotter toll the truth,” is not amenable to objection that it was not froo and voluntary.</p>

Ellis, J. The lien of the vendor of sugar, an agricultural product sold in ÍTew Orleans, when enforced in five days, is superior to that of the holder for value of a bill of lading. 38 Ann. 12; 37 Ann. 53; 36 Ann. 484. • The five days’ lien on agricultural products in favor of the vendor exists whether the sale w«ás made for cash or on credit, and is enforceable after the produce has gone into the possession of third parties, under a bona fide sale, equally as well as while…

Young, APPEAL from the Ninth District Court, Parish of Tensas. Young, J. Defendants made a statement to the commercial agency of R. G-. Dun & Co. that they owned two plantations, costing $125,000, which were mortgaged for $33,000. Tlio proof is that tlie plantations did not belong to defendants, but to one of the members of the firm; that they only cost $75,350, and that they wore mortgaged for $88,000, instead of $33,000.

Voorldes, J. The payment of a note, at its maturity, extinguishes a mortgage given for its security. Tho subsequent re-issue of the note does not revive the mortgage.

y^PPLICATIQN for Prohibition and Certiorari. 1. Plaintiffs are at liberty to choose their form of action, but having once made choice, they are hound by their election, and hold to tho law governing tho particular remedy. Penn vs. Rearny, Blois & Co., 21 Ann. 23; Conery vs. Clark, 13 Ann. 317; City of How Orleans vs. Paving Co., 20 Ann. 394; Miltenberger vs. Hill, 17 Ann. 58. 2.

Monroe, J. Under both the Constitution of 1868 and 1869, private property cannot be taken or damagocl for any public use until full compensation is made. Act 110, Constitution 1868, Constitution 1879, Article 156.

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

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

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

<p>yyPPLIOATION for Writ of Habeas Corpus.</p>

<p>An attachment cannot be required against an absent witness, when it appears that he is not in the State and was not served and there is no showing that the accused did not know of his absence, that his testimony is material and that his attendance can be secured for an early trial.</p> <p>A previous statement, made at the calling of the case, on inquiry by the court, that only one attachment would be desired against an absent witness, not the one out of the State, is a waiver of all attachments against all other witnesses.</p> <p>Ho question, the object of which is to impeach the testimony of a witness, can be put, unless a foundation for it has been previously laid and the -witness put on his guard.</p> <p>Arraigning a witness who refuses to testify in a case in which he is a co-defendant with one • on trial, and who has severed in his defense, is no irregularity which, vitiates the proceedings as to the accused at the time on trial by the jury.</p> <p>A statement by the trial judge that evidently an effort is made to intimidate the witness on the stand, is not a comment on the facts.</p> <p>A question to ascertain the general reputation of the witness for truth and veracity, must seek to elicit the information for such, in the neighborhood in which he lives.</p> <p>A statement of what another said, touching the condition of a particular spot, at a specified time, may be admitted to establish one of the mediums by which a successful search was made for the weapon used in the commission of the offense charged.</p> <p>The reception of such statement cannot be complained oí*, in the absence of a showing that it unduly influenced the jury or injuriously affected the accused.</p> <p>Jurors, without any charge from the court, know that testimony of that character can, at best, be only circumstantial, particularly in criminal cases, in which substantial and convincing proof is required for conviction.</p> <p>The fact that the trial judge admitted two of the co-defendants to bail cannot be established to conduce to the innocence of the other accused.</p> <p>Such action, if allowed to be proved, might bo considered as a comment on the facts by the judge who -would not liavo been allowed the privilege of bail, where the proof is evident or the presumption great.</p> <p>Compulsory process .against witnesses will not bo granted, whore the testimony would bo cumulative only of that heard on the trial, and due diligence was not used to secure the attendance of the witnesses for the trial.</p> <p>Testimony to show the spot at which was found the weapon with which the crime was com: mitted is adjuissiblo.</p> <p>A question, put a witness on his own voir dire, to affect his credibility, and not allowed to bo answered, cannot sorvo as a matter of complaint where the witness was not hoard otherwise in the case.</p>

<p>Tiie presence of an accused, in court;, is sufficiently shown by a minute entry reading as follows: “In this case, the prisoner, 3?. A. 0., represented by his counsel, Messrs. S. D. and ■\VM and the District Attorney, being all present in open court, the jury come,*’ etc., etc.</p> <p>An attempt to impeach the veracity of a witness by proving that he had previously made statements different from the testimony which he gave in the case on trial, must be pre_ ceded by proper foundation to put the witness on liis guard, and if the statements ascribed to him, had been made in, or reduced to writing, the proper foundation is in the production of the -writing itself; otherwise the inquiry must be suppressed.</p> <p>There is no warrant in law or jurisprudence to justify counsel of an accused to take testimony to disprove statements of facts by the trial judge in a bill of exception.</p>

<p>1. A person indicted, for crime cannot, validly, plead, or be tried, or convicted, or sentenced, virile in a state of insanity, although. Ms mental derangement may only have supervened since the date of the crime charged.</p> <p>2. The [’objection of present insanity may bo made at any stage of the proceedings. It requires no special or formal jilea, but may be adequately presented orally, or tbe court may itself suggest and act upon it on its own observation.</p> <p>3. "Whenever and however presented, evidence, if offered, must be received and the issue must, in some way, be determined.</p> <p>4. As to the mode of determining it, some discretion is left to the judge, according to the time and circumstances under which the objection is made,</p> <p>5. When raised during the progress of the trial, the better course seems to be to submit the • special issue, with the general issue, to the jury; but whatever be the judge’s discretion on this point, it is error to refuse to entertain the objection, or to receive evidence, or to determine it in any way.</p> <p>6. When a witness, properly introduced to impeach the rejiutation for virtue and chastity of the prosecutrix in a rape case, has stated positively that he knew her general reputation, 1ns competency is not destroyed, because, on cross-examination as to the nature of his knowledge, he states that he has heard, ten, fifteen, or twenty persons speak of her character in that respect, and say that it was bad. Knowledge of reputation is derived from what one person has heard from others; and its generality is sufficiently sustained when the witness has hoard a considerable number of persons speak of it and when they all concur.</p>

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

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

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

<p>1. The discretion of a trial judge, in sustaining a challenge, on the part of the State, of a juror, for cause, is not reviewable on appeal, and an error in such ruling does not entitle the accused to relief. The defendant cannot exercise any control over the rejection of jurors by the State.</p> <p>2. A. second arraignment having been made under the information, no additional time for summoning of witnesses can be required thereafter, and on that account.</p> <p>3. Overruled and disallowed objections cannot be a proper foundation for a new trial.</p> <p>4. The fact that, in an information charging the commission of the offense of obtaining goods under false pretenses, the phrase, “with intent to defraud” is employed, instead of the phrase “with intent to defraud him of the same,” is of no special significance, when it appeal’s that in the same sentence occur specifications of the goods obtained, the false pretense by which they were obtained, and the name of the person from whom they were obtained. In such case it is to be presumed that the intent to defraud had clear reference to the owner of tbe goods.</p>

<p>1. A motion in arrest of judgment, is not the proper plea to urge against an error in the proceedings touching the time or the manner of impaneling a petit jury. Such a vice in the record can he taken advantage of hy an argument of error filed in this court.</p>

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

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

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

<p>The fact that, in a criminal prosecution, the trial judge informed the jury of what transpired during their absence, caused by his order retiring them pending an argument of counsel of a question, of the admissibility of certain evidence, is not a sufficient error to vitiate tho trial.</p> <p>It is not competent for a witness to explain the meaning of words used by another person, whose conversation or utterances he has recited before the jury.</p> <p>The trial judge cannot be required to charge any principle of law in the words or language suggested by counsel; it is sufficient that the charge embodies the substance of the principle urged if it be correct.</p> <p>The burden is not on the State to prove that the accused was unarmed in a murder trial,</p>

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

<p>This case having been submitted without argument or brief on either side, aucl on examination of the record failing to disclose any error to defendant’s prejudice, judgment affirmed.</p>

<p>Iu a motion for new trial on the ground of newly discovered evidence, if tlie evidence he newly discovered, if it he credible and unsuspicious, and if it he material and important in the case, the new trial should he granted.</p>

<p>1. In caso a confession is made by an accused to the officer who holds him in custody, it is admissible in evidence against him, if it was freely and voluntarily made, and totally disconnected from any previous conversation or communication on the subject.</p> <p>2.‘ Proof of throats made against the life of the accused by the deceased, and communicated previous to the homicide, are inadmissible, unless a proper foundation is first laid for tbe introduction thereof, by evidouce of some overt act, or hostile demonstration made by the accused at the time of the fatal assault upon. him.</p> <p>3. A written declaration of an accused person in the English language, taken at a coroner’s inquest, is admissible in evidence, notwithstanding his mother tongue is Erencli, and he had no knowledge of the English language, if, sentence by sentence, it was translated into the Erencli language, in his presence and hearing and by him admitted to he understood and correct.</p>

<p>In criminal cases tlie Supreme Court lias jurisdiction only on questions of law. A motion for a new trial wliicli presents no question of law will not be considered by this court.</p>

MeOlendon, Special J. 1. The fruits hanging by the roots on the lands belonging separately to either the husband or the wife at the time of the dissolution of the marriage, are equally divided between tlie husband and the wife or their heirs. It is the same with respect to the young of cattle yet in gestation, etc. Civil Code, Art. 2407; 9 Ann. 347 and 398; 12 Ann. 549; 16 Ann. 107,170. 2.

Bichardson, J. Whore the injury is partly due to the negligence of the injured and partly by failure of the company to provide proper and suitable apparatus, the negligence of the injured party will not exonerate the company from the consequences of its own default. Grand Trunk E. It. Co. vs. Cummings, 100 D. S. 700; Ellis vs. E. E. Co., 95 E. Y. 546; Townes vs. E. E. Co., 37 Ann. 632.

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

<p>A PPEAL from the Fifth District Court, Parisli of Ouachita. '* Richardson, J.</p>

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

Earksdale, J. The domicile of tlio owner is the situs of a judgment. Tlie assessment of a judgment for State and Parish taxes must ho made at the domicile of the owner, and an assessment at any other place is illogal and not collectible. Saunders on Taxation, pp. 68, 69 and 70; Cooley on Taxation, pp. 269 and 270, and also Noto 1 on page 270. A dual assessment cannot bo collected.

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

Williams, J. 1. 1. Informalities connected with or growing out of any public sale are prescribed against in five years, whether against minors, married women or interdicted persons. R. O. C. 3543. 2. Tax sales are public sales within the meaning of this statute. Saunders on Taxation, p. 318; Roberts vs. Zansler, 34 Ann. 205 ; Giddens vs. Mobley, 37 Ann. 419, bottom. 3. Tax titles are, and under Act 47 of 1873 were prima, facie valid sales.

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

<p>1. A license is a tax. It is a license tax and not a property tax. A license could not bo liold lo bo a property tax, without malting it unconstitutional, as being, together with the ad valonan tax permitted by the Constitution, in excess of it.s limitation.</p> <p>2. A statute which provides that all land, and other taxable property, situated within the limits of a corporation, shall ho exempt from the payment of parish taxes, does not exempt citizens of that corporation from paying parish licenses.</p>

<p>Its is not too late to file an opposition to a final account when the accountant has introduced liis evidence and closed it, and the minutos show “that the ease was taken up for trial, evidence introduced and case laid over until to-morrow morning,” and continues on the docket in this shape until the opposition is filed. .</p> <p>Wlien an administrator’s account shows an amount for distribution less than tlio lower limit of the jurisdiction of the Supreme Court, and tlio opposition, if sustained, would increase the amount so as to give the Supreme Court jurisdiction, the administrator would have the right to appeal; consequently the opponent has the same right to appeal.</p> <p>An action of nullity for the sale of succession property can not ho grafted on to an opposition to a final account. The opponents have tlioir remedy by separate action.</p>

Montgomery, J. 1. Where plaintiff sues in his own name for balance claimed on account for advances alleged to have been made by him to defendant, and where, in answer to a rule taken on motion of defendant, to compel him to file a specific bill of particulars and an itemized account, plaintiff'files an account between defendant and a commercial firm of which plaintiff was a member, and between defendant and a corporation in which plaintiff is a stock holder, showing balance…

<p>In charging the law to tlio jury in a criminal trial the judge will not he coerced to embody the law in tho language or form suggested by counsel. If, in his own way and language, the judge gives the substance of the charge requested, he has done his duty to the State and to the accused, and his ruling will not be disturbed on appoal.</p>

Heed, J. Ox Motion to Quash. The acts of the cleric as a jury commissioner, not having qualified as such, are null and void, and vitiates all proceedings in which he participated as jury commissioner. Act No. 44 • of 1S77, Sec. 3, p. 56, approved hi arch 8th, 1877 ; State vs. Williams, 30 Ann. 1028; State vs. Vance, 31 Ann. 398; State vs. Bradley, 32 Ann. 402. The evidence of the clerk is admissible to show that he did not qualify as jury commissioner.

<p>1. The clerk of court is a competent witness by wliom to prove that lie was not duly qualified as jury commisvsioner prior to the drawing of a venire.</p> <p>2. The law requires tliat amotion to quash, and sot aside a venire on the ground that the clerk had not been qualified as a jury commissioner before he assisted in the drawing thereof, shall be filed on the first day of the term at which the indictment is found, and any objection to that effect must be so filed, or exceptional circumstances shown which rendered compliance therewith impracticable.</p>

Reed, J. Defendant lias tlie right on cross-examination of the State’s witnesses to show the state of their feelings towards liim; and said evidence should go before the jury to bo properly weighed and considered by them. 14 Ann. 630; 33 Ann. 537-743 ; 36 A-nr». 153 ; 37 Aim. 78; 3 vol. Russell, Sec. 562; Wharton Grim. Ev., Sees. 376-485.

<p>Thai a qionibor of the petit jury which tried the case had hoen a member of the grand jury which liad found the indictment, while good as a ground of challenge to the juror, cannot avail on a motion for new trial.</p>

<p>APPEAL from the Twenty-third District Court, Paris of Iberville. Talbot, J.</p> <p>1. The jury commissioners have neither tlie right or authority to entirely empty the general venire box, after being once constituted, and place therein three hundred new names. Sec. 4. Act 44, 1877. „ ■</p> <p>2. If a jury commission, having boon newly appointed, have tlie right to make a new general venire box, and place therein three hundred new names, then they must do so within thirty days aftertlieir appointment. Sec. 4, Act 2so. 44,1877.</p> <p>3. Parol evidence cannot be introduced to explain, alter or vary the procos verbal of the venire or any other authentic act, when same has been signed by tlie clerk himself. State vs. Taylor, 27 Ann, 387; State vs. Bevells, 31 Ann. 387; State vs. Brooks, 39 Ann. 817.</p> <p>4. “In capital cases it is well settled, that jurors are not permitted to separate, and that upon a separation, misconduct and abuse will always be presumed.” State vs. T/Y/tuk, 23 Ann. 213 i</p>

<p>When the .jury commission has failed and neglected to take from the venire box for several years tlio names of jurors disqualified, absent and dead, it is competent for a succeeding jury commission to remedy the evil to empty tlio venire box, and place therein three hundred qualified jurors.</p> <p>Whore the clerk is introduced as a witness and questioned as to the right of the jury commission in taking from the venire box disqualified, absent and dead jurors, this is not such parol evidence as to contradict or vary the venires previously drawn.</p> <p>When several members of a jury commission, who are also school directors, have qualified as commissioners since tlioir appointment as school directors, they are comi>etont and legal commissioners.</p> <p>When the clerk of court, who is ex-officio a jury commissioner, has taken the oath as such, it is not necessary for him to again take the oath when the judge removes the commissioners he is authorized to appoint, and appoints others.</p>

Reed, J. An exception that petition shows no ground of action, admits tlie truth of all tlie allegations of the petition. 9 Ami. 9 ; 12 Ann. 190. Plaintiff’s allegation amply justify the issuance of the writ. Privileges are stricii juris, cannot arise from consent, hut spring from the law. 16 Ann. 107; 23 Aim. 3 ; 24 Ann. 568.

Landry. Brooks, J. !Motk)X to Dismiss. J. -V certificate which does not certify that the transcript includes all the proceedings, evidence and testimony is defective. 10 670; 3 L. 295, 446, 454; 2 íT. S. 67; 7 L. 537 ; 14 L. 265; 17 L. 27; 3 Ann. 180; 8 Ami. 592; 11 Ann. 644; 4 Ann, 487; 10 Ann. 180; 11 Ann. (¡04; 12 Ann. 582. 2.

<p>Same principles as in preceding- case.</p>

Goeo, J. In possessory action, the defendant is not allowod to attack the title of plaintiff, nor establish it in himself — Kemplo vs. Hulick, 16 D. 44; Dra/ier vs. Hardee, 21 Ann. 541 — for Article 55, C. P., forbids the cumulation of petitory and possessory actions, except by consent of parties — St. Armand vs. Dong, 25 Ann. 166; — but plaintiff must allege title to show in what capacity he claims possession. 16 D. 45.

Mary. Allen, J. 1. Where a statute provides that the police jury of a parish shall lay out and opon a public road, and proscribes no time within which the said road shall be laid out, and leaves it entirely to the police jury to provide ways and means for defraying the expense of the work, it simply confers a discretionary power, and does not impose a ministerial duty. 2.

Coco, J. 1. * The prohibition of the code againstja married woman binding herself for the debts of her husband or of the community is one affecting the public order and is directed against every form of contract by wliich such illegal purpose is sought to he consummated. 14 Ann.169; 12H.84; 12Ann.852; 1 Ann. 429; 33 Ann. 666-1039. 2. “The circumstance of the wife having a separate advantage in the contract is of the essence of the obligation and must be proved by other…

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

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

Ooco, J. 1. A private writing containing neither description nor price, and being coupled with condi' tions to bo performed, is not, as to others than the pretended vendor and vendee, a transfer of immovable property. 10 Ann. 613; 37 Ann. 751; It. C. C. Art. 1764, Sec. 1; 21 Ann. 196; 23 Ann. 699; 24 Ann. 85; 27 Ann. 529; 13 Ann. 361; 28 Ann. 725; 30 Ann. 1117; 34 Ann. 077 ; 5 South. Hep. 58. 2.

A PEAL from tlie Twenty-First District Court, Parish of St. Martin. Mouton, J. 1. It is sufficient that the prayer of the petition aslc that all defendants be cited. It is not necessary that they bo named in the prayer. It is sufficient if documents annexed to the petition indicate clearly who they are. 32 Ann. 561; 36 Ann. dd7. 2.

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

<p>3. When tlio title, possession and control of the claimant have all boon perfect and complej o, on thoiv face, the transaction cannot bo treated as such a pure simulation as to maintain a direct action. .¿Utter, in case the seller retains possession and control subsequent to the execution of the act of sale.</p> <p>2. An unrecorded lease has no effect with regard to third persons and creditors. It conveys no notice to them.</p> <p>3. When the thing remains in the corporeal possession of the seller, who is .supposed to act as owner to the injury of a third person, the rule, that the delivery of immovables accompanies their notarial transfer ceasos, and the sale is presumed to be simulated and fraudulent.</p>

<p>'When a settlement lias been made between partners during tlieir life time, and Hie executor of the deceased partner, sues for a settlement of the partnership [affairs, the settlement made during the life time of the partners, will be presumed to have included alliUiVeren-es betwoen them to the time of said settlement.</p> <p>Where repeated demands have been made on a surviving partner to settle and he fails to do so. and suit is brought for a settlement, the costs of suit will bo taxed and charged to partnership.</p>

Mouton, J. 1. Assertions and opinions of witnesses, based on no circumstance or data, cannot bo considered nor accepted as pvoof of facts, nor of the existence of facts; they, thorefore, cannot form a criterion or guide as to the value of a tiling on which an estimate is placed. H. D. Hemjen’s Digest, page 559, XYI (d) 3, Ho. 8, and authorities cited.

<p>Tlie [plaintiff may discontinue his suit at any stage previous to judgment, and that right on the part of an attaching or seizing creditor is not affected by the fact that a third person has intervened for the purpose of claiming the ownership of the property attached.</p> <p>The dismissal of the suit operates a release of the property claimed by the intervenor, and if he wishes to be quieted in his titlo, he must have recourse to a direct action.</p>

<p>APPEAL from the Twenty-ffftb District Court, Parish of Lafayette. De JBaillon, J.</p> <p>The law considers marriage purely as a civil contract. C. C. 86; Toullior & Duvorvier Droit Civil Trancáis, Yol. I, Tíos. 488 to 494, inclusive.</p> <p>The party seeking to recover should establish the marriage as conolusivoy as any other fact. Where there is no consent there is no marriage.</p> <p>Children born out of marriage can be legitimated only by an acknowledgment, and subsequent marriage, under provisions of Article 198, C. C., when the parent has legitimate descendants.</p> <p>Doth parents must concur in the acknowledgment.</p> <p>A mother may accept a donation for lior child. An act of donation if nofc good as donation may he good ns an acknowledgment .of an illegitimate child, if ifc embodies what is required for an acknowledgment.</p> <p>An illegitimate child duly acknowledged by the father is entitled to alimony. C. C. 242.</p> <p>Whatever relates to the forms of the marriage is directory' and not indispensable to its validity.</p> <p>A marriage in articulo mortis is as binding as any other.</p> <p>Where a marriage has been contracted there is the presumption of omnia rite acta.</p> <p>To set aside a marriage for inability to consont, the burden of proof lies with the one assailing it.</p> <p>Temporary derangement to invalidate a contract must be clearly proven. The situation and incapacity must be apparent.</p> <p>Sanity as well as capacity to consent is always presumed.</p> <p>To invalidate a marriage because of the insanity or temporary derangement produced by sickness of one of the parties, at the time, it must he shown that the other could not possibly have been ignorant of his state.</p> <p>Where there is good faith on the part of one of tlie parties to the marriage, it is good as to her or him and produces its civil effects.</p> <p>Good faith is always presumed. 24 Aim. 299.</p> <p>The law protects the innocent party to a contract.</p>

Blackman, J. 1. The account of administration by a sheriff of the crops, rents and revonues of a plantatation and disbursements thorofor while under seizure, when opposed by the debtor, generally and specially with averments of failure faithfully to account for revenues, and of improper charges, must he proved aliunde and especially in the case where credits have been suppressed for crops and rents, and charges made, proved to he improper. 35 Ann. 664; 3GAnn.

Landry. Lewis, J. 1. Parties sued as sureties are entitled to the benefits of discussion unless they have bound themselves in solido, or renounced the plea of discussion. 8 M. G35, O. O. 3045. 2. Where the court is in doubt as to the true character of the instrument sued on, whether a suretyship or a principal obligation, that interpretation. must be given to it which will favor the obligor rather than the obligee. C. 0.1957. 3.

Mention, J. 1. An ownor who has entered into a contract to liavo his plantation cultivated, cannot break tho contract without reference to acquired rights. 2. He cannot expel the person with whom he has contracted, and disregard tlie terms of the contract requiring that tho labor of tho one and tho money advanced by tho other shall be secured by tho crop, at the time that the one who has promised to make advances shall see proper to recall his promise. 3.

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

Bridger, J. 1. The title of a law repealing certain sections of the Revised Statutes adequately expresses the objects of tbe law when it designates the numbers of the sections repealed. State vs. Garrett, 29 Ann. 637; State ex rol. Hills vs. Barrow? 30 Ann. 659. By parity of reasoning the title of law amending and re-enacting a section of the Revised Statute adequately expresses the object of the law when it designates the numbers of the sections amended and re-enacted. 2.

■ Hall, J. 1. Tho general rule is that two or more distinct substantive offenses may he charged in seperate courts of the same indictment if they are of the same general nature, description and character. State vs. Crosby, 4 Ann. 434; State vs. Depass, 31 Ann. 487 ; State vs. Gilkie, 35 Ann. 53 • State vs. Green, 37 Ann. 382. 2. An indictment charging in separate courts cutting with intent to murder and wounding less than mayhem is not bad for duplicity.

<p>An indictment under Section 905 of tlie Revised Statutes, which declares that auy servant, clerk, broker, agent, etc., who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money which he shall have received for another, or for his employer, or principal, etc,, by virtue of his trust or employment, or which shall have been entrusted to his care and keeping, orpossession, upon conviction, etc., is sufficient, if it sets forth in words of similar import to those contained in the statute, the capacity in which the defendant received and posssesscd the money entrusted to Mm for delivery to another.</p>

<p>APPEAL from tlie Twenty-third District Court, Parish of West Baton Bouge. Talbot, J.</p> <p>The ruling of a trial court in refusing a new trial will not be revised by the Supreme Court unless the bill sets out the evidence to show the facts involved in the ruling. State vs. Nelson, 32 Ann. 842; State vs. Bolden, 35 Ann. 823 ¡ State vs. Chatman, 34 Ann. 881.</p> <p>Evidence of good character is admissible in the trial of one charged with murder, and such evidence offered for him “ should be considered by the court in connection with the rest as a part of the whole from which they are to determine their verdict, and should have such weight and effect as their judgments dictate. It is proper for the court to charge the jury that good character can have little practical effect against direct and otherwise satisfactory proofs, cannot' turn the scale against conclusive evidence of guilt. It may, under certain phases of a case, create a doubt whieh otherwise might not have existed in favor of the accused, or to remove a doubt existing against him. Bishop, Cr. Procedure, Sec. 1116, p. 676; 35 Aim. 770.</p> <p>An instruction to the jury need not be given in terms asked, and when the judge deems them calculated to mislead the jury it should not be. When instructions asked is partly correct, and partly erroneous, the whole may be rejected. Bishop on Cr. Procedure, See. 980, p. 598.</p> <p>Tlie matter of continuance is within the sound discretion of the district judge, and the Supreme Court will not interfere in such matters unless the account of the lower court involves palpable injustice. 31 Ann. 179; 32 Ann. 1003; 36 Ann. 153-852.</p> <p>Due diligence must be shown to have been used. Diligence is a matter of fact upon which the judge’s opinion is, if not conclusive, surely presumptively correct. The Appellate Court will not go counter to it unless the record shows that tlie judge was wrong. 37 Ann. 129.</p> <p>An affidavit for continuance on the ground of the absence of a material witness which fails to disclose of the whereabouts of an absent witness, or that any such person exists, and merely gives the belief of the affiant that he can secure his presence at the next term of the court is fatally defective. It is further defective where the accused failed to inform the sheriff of the whereabouts of the witness. 39 Ann. 421.</p> <p>It is a want of diligence where there are two persons of the same name in the pariah aud the accused knew the fact, to inform the sheriff which one he wanted.</p>

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

<p>APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.</p> <p>A juror cannot be examined as a witness to impeach the verdict of the jury of which he was a member. 38 Ann. 198 ¡ State vs. Chretien, 35 Ann. 1031.</p> <p>Upon grounds of public policy the courts have almost universally agreed, upon the rule that no affidavit, deposition or other sworn, statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered. Thompson & Merriam on Juries, Sec. 440, p. 540.</p> <p>Or to show that he consented to the return of the verdict without concurring in it in order to secure his discharge or because his health absolutely required him to be released from confinement. Thompson and Merriam, Sec. 441, P. 544.</p> <p>Jurors canuot be received to qualify by parol testimony matters of record; nor can they be permitted to state matters concerning their deliberations wlfich may be proved aliundo. Prom necessity, however, when gross injustice has been wrought from misconduct or misapprehension in their deliberations, they are to be permitted to prove such misconduct nr misapprehension.</p> <p>A. distinction has been taken to the effect that though a juror cannot be admitted to stultify his own action, yet he may be permitted to prove gross misconduct in his fellows. Wharton’s Criminal Law, 7th Ed., Yol. 3 — Practice, sec. 3328.</p> <p>It woould, perhaps, hardly he safe to lay down any general rule on this subject. Unquestionably such evidence ought always to he received with great caution. But’cases might arise in which it would he impossible to refuse them without violating the plainest principles of justice. U. S. vs. lleid, 12 Howard 361.</p> <p>The Supreme Court of Louisiana agrees with the Supreme Court of the United States that “ cases might arise in which it would he impossible to refuse the affidavit? of jurors without violating the plainest principles of justice. State vs. Walham, 31 Ann. 149.</p> <p>In exceptional cases such affidavits have been received. Taylor vs. Greeley, 3 Greanl. 204; Erie’s Case, 1 Wh. St. Tr. 605; Moffitt vs. Burman, 6 Grat, 219.</p> <p>The affidavits of jurors, or evidence of their admissions, are not competent testimony to prove ' their own misconduct; but it may be proved by the oath of a fellow-juror, who is not inculpated in such misconduct. Deacon vs. Shreve, 2 Zab. U. J. 176.</p> <p>Where the declarations of a juror, made after verdict, disclosed the fact that extraneous matters were considered by the jury in arriving at their verdict, and the further fact that said juror was prejudiced, the Supreme Court of Georgia received the affidavit and granted a new trial. Martin vs. State, 25 Georgia 494.</p>

<p>1. Newly discovered testimony, for tho purposo of impeaching a witness who has testified on the trial, is insufficient to justify the allowance of a new trial.</p> <p>2. Much more importance is due to tho testimony of a witness given on the trial in open court, than to any statements which he may have made, on some other occasion, either before or after the trial.</p> <p>3. The same principles of law are applicable to the contradictory statements of persons m extremis, as are to those of a witness under examination undev oath.</p>

Barksdale, J. An indictment which alleges that a man wilfully, feloniously and of his malice aforethought, with a dangerous weapon,” to-wit: a gun, “ assault one B., with intent then and there to kill and murder,” charges an assault with intent to murder, under Sec. 792 of R. S., State vs. Evans, ¿0 Ann. 216. An indictment for an assault with intent to murder, and not set forth neither the mode of assault nor the weapon with which it was made.

Taylor, J. 1. When a passenger on a railroad train is only slightly injured, the damages allowed should be merely just and reasonable. 40 Ann. 64. 2. A passengeer in a railway car, who has been injured by upsetting of the car, caused by negligence of the employes of the company, is not entitled in an action against the company to recover damages beyond the limit of compensation for the injury actually sustained. 3.

Drew, J. An action for damages for injuries suffered by a passenger on a railroad is one ex-contractu. K. I). p. 1057, No. 14; 5 La. 431, quoted by 40 Ann., p. 91. An injury must be repaired by Mm whose fault caused it. R. C. Code 2315; 17 Ann. 19, giving j $25,000 tor similar injuries; 23 Ann. 180, giving $15,000 damages; 34Ann. 139, allowing $7,500 for a broken arm; 38 Ann. 777, allowing $10,000 for loss of an arm.

Midis, J. 1. Tlie power of tlie Legislature or municipalities to grant railroad companies tlie riglit to lay and operate tracks in streets is subject to tlie proviso tliat tlie road be so constructed as not to exclude the public from any part of tho street. 35 Ann. 041. 2. A railway laid out over or on a highway so as to obstruct it, without express statute authority, is a nuisance. Dillon. Sec. 708. 3.

Hicks, J. 1. It is the duty of the lessor to maintain the lessee in possession of the leased premises. C. C. 2692. 2. Where a lease of land has not been recorded in the manner required by law for absolute sales of real estate, the lease will have no effect as to purchasers from the lessor. Constitution of 1879, Art. 176; C. C. 2264, 2266, 3347; 3 Ann. 198; 6 Ann. 729; 30 Ann. 436; 33 Ann. 1119. 3.

Person, J. Allirregulavities and informalities of a probate sale are cured by the lapse of five years. Passiana vs. Towell, 21 Ann. 584; Woods vs. Lee, 21 Ann. 505; R. S. 3392, 2376; R. C. C. 3543. Irregularities and defects growing out of any judicial sale are as well cured by the lapse of live years as by -a judgment in a monition proceeding. R. S. 2376; Roberts vs. Zansler, 33 Ann. 205. . A judicial sale cannot be attacked in a collateral manner.

he Second District Court, Parish of Bossier. Boone, J. Act 33 of 1888 conflicts with Articles 46, 47, 30 and 250 of the Constitution. 1. It violates Article 46 by passing a local and special law ‘ ‘ for the opening and conducting of elections.” 2. It violates Article 47 by indirectly enacting a local or special law by the partial repeal of general laws, viz: the general election and general registration laws. 3.

Hieles, J. ;. Any act complained of that would amount to a trespass or interfere with the use óf real proimrby, is not bondable when enjoined. Marion vs. Johnson, 22 Ann. 512; O. P. 307 ; 14 Ami. 57; 7 Rob. 442; 12 Ami. 455; 24 Ann. 154; 20 Ann. 003; 36 Ann. 918, and casos cited. 2. Tlio trial judge erred in refusing to charge the jury as to the injunction and attorney’s foes. 5 Ann. 518 ; 11 Ann: 3032; 29 Ann. 571; 34 Ami. 61. 3.

Taylor, J. 1. A factor who has complied with his contract is entitled 1 o commissions on all cotton promised to he shipped to him. 24 Ann. 159 ; 30 Ann. 503. 2. Attorney fees stipulated in an act of mortgage are due when the, mortgagor is bound to employ counsel to collect Ms claim. 30 Aim. 65 ; 39 Ann. 397. 3.

Hieles, J. 1. If a plaintiff in attachment voluntarily abandons it, he renders himself and his surety responsible in damages; and if it be set aside by order of court, it is prima fade evidence that it was wrongfully issued, and that damage to some extent has been sustained. The probability and justice of the demand may he pleaded and given in evidence in mitigation or justification of a claim for vindictive damages. 3 L. 103, 291; 2 R. 313; 11 Ann. 302. 2.

Taylor, J. 1. If tli© ad of I860, which imposed on front proprietors one-third of tin* cost of street paving*, was repealed, which is conceded, then the city was liable for the whole amount, • It is no ground of complaint on its part that, by the contract, it was relieved of one-third of the cost of paving, when it should have paid the whole. 2.

Boone, J. 1. Plaintiffs having a direct pecuniary interest in the result of the election held November 23,1888, relative to removal of parish seat of Bossier parish, have a right of action. O. P. Art. 35. 2. Article 11 of the Constitution of 1879 guarantees adequate remedy in the courts for all legal rights.

<p>1. "When a sale is rescinded, or annulled, for non-payment of the purchase price, by agreement between tlie original parties, whatever its validity may be as to them, the retrocession does not, necessarily, affect third persons.</p> <p>2. When the vohmtary retrocession is made to one who is not the original vendor, but merely the transferee of the rights of the vendor, and a more creditor for the unpaid balance of the purchase price, and not subrogated to the right of the vendor to demand the resolution of the sale on account of tlie non-payment of the price, it does not aifeot the rights of other mortgage creditors of the debtor.</p> <p>3. Under similar circumstances the transferee of the vendor’s note for the purchase price lias no right of action against the original vendee to compel the retrocession of the land.</p>

Boone, J. On Motion to Dismiss. A surety on an injunction bond is. on the trial, a party plaintiff to the suit. O. Ik 304. Tlie surety on an injunction bond is a necessary party to an appeal, and when tbe appeal is taken by petition lie must be oiled. Avogno vs. Jolmson, 22 Ann. 400. Wlien the appeal is taken by petition and there is no prayer for citation on the surety on injunction bond, the fault is attributable solely to appellant.

<p>It is negligence on the part of a railroad company, in miming* accommodation trains through a c-ity to a fair grounds in the suburbs, where large numbers of people congregate around the station, to nse an inferior locomotive, run by a fireman instead of a skilled engineer, and to run its trains at a dangerous speed in approaching the station.</p> <p>It is not contributory negligence in a person to risk 1ns life or place himself in a position of great danger, in an effort to save the life of another or to rescue another from a sudden peril or great bodily harm.</p> <p>“ The law has so great a regard for human life that it will not impute negligence to an effort to proserve it, unless mado under such circumstances as to constitute rashness in the judgment of prudent persons.”</p> <p>The allowance of excessive damages by juries for personal injuries must be discountenanced.</p>

APPEAL froni tlie First District Court, Parish of Caddo. Taylor, J. 1. This is a suit to remove part of a building and other obstruetioiis from a public alloy of the City of Shreveport. 2.

Taylor, J. 1. The Bourquin rent notes having been extinguished by a double novation, the mortgage .securing same was not transferred to the substituted credits, in the absence of an express reservation. G. O. 2189, 2195. 2.

A PEAL from the Second District Court, Parish of Bossier. Boone, J. 1. No judicial proceedings can be carried on in the name of a dead man. 5 R. 508; 5 Ann. 737; 8 Ann. 80; 9 Ann. 241; 22 Ann. 23; 33 Ann. 1013. 2. An administrator of an administrator cannot file an account in a succession of which he himself was never the legal representative. 1R. 403 ; 6 R. 435; 30 Ann. 485; 40 Ann. 703. 3. Estoppel must.be pleaded. 33 Ann. 744. Minors can never be estopped. 16 Ann. 98.

<p>A. municipal corporation has the power to contract with an individual, to authorize him to , build a market house, rent stalls and collect dues, during a specified period, with the consideration that the land, which is his property, and the improvements upon it, shall be conveyed to the city, and that the same, at the expiration of the term, shall be turned over absolutely, in good order to the corporation.</p> <p>The land and eonstruetions become municipal property at the signing of the contract, and the ownership becomes absolute at tlie expiration of tlie time in tlie city.</p> <p>Tlie market thus put up is a public market, and any private market found within the prohibited distance of six squares from, it, is there kept in violation of law.</p>

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

<p>On© engaged in cutting and making coats and pants, out of jeans cloth which has been already manufactured by another, is not a manufacturer of textile fabrics in the sense of article 207 of the constitution; and “the capital,'machinery, and other property employed” therein, are not exempt from taxation.</p>

Boone, J. 1. In a grant of lands by Congress to aid in the construction of a railroad, ‘there be mid hereby is granted,'' arc words of absolute donation; import an immediate transfer of title, and vest a present title in the grantee, though a location of the road and filling of its map is necessary to give precision and attach it to particular tracts. The location and filing accomplishes this. 2.

<p>A judgment sustaining pleas of prescription and prematurity against parts of a demand, and dismissing tlio suit, and restricting the claim for the difference, is a final judgment which disposes of the case to a certain extent, and Avhich constitutes res judicata^ if unappealed from Avithin a year after the signature thereof.</p> <p>An appeal from the judgment rendered on the merits of the claim as allowed to stand in court, does not bring up for reA'ie\r the previous judgment dismissing other parts of the demand.</p> <p>A municipal corporation, which lias contracted that a bonus shall he paid by a company to Avhich it has granted street railroad prmloge.s, in lieu of taxes, cannot after agreeing to remit, the bonus and to receiAre the taxes in place, and after collecting such taxes, sue to re.coA'er the bonus-, hoAVCAer true it he, that the immunity from taxes avus illegal. It can not claim both. 28 Ann. 497; 35 Ann. 548; 30 Ann. 432,</p>

<p>yyPPLI'CATION for Prohibition and Certiorari.</p>

Monroe, J. 1st. The only issue in this case is the validity of the contract, attacked, upon the theory of law and fact that such contract is based solely on the provisions of Act 56 of 1884. 2d. The Company having elected to deny that they have ever accepted that Act, the controversy is ended. 3d. The other issue made by the company, that the contract attacked is valid, independently of the existence of Act 56, cannot arise in this case : (a).

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

<p>An appeal made returnable by fault of appellant, at a different place and time from tliat required by law, will bo dismissed,</p>

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

<p>The jurisdiction of the Court of Appeals is restricted to questions of law. in cases in which the amount involved ranges between $100 and $500.</p> <p>It has no power, in such cases, to inquire into the facts, to determine whether the claim is inflated or not; but it has that power in cases involving more than $500 in which it can pass on both the facts and the law.</p> <p>The jurisprudence touching the right of the Supreme Court to dismiss appeals in case within its jurisdiction in which claims arc fictitiously inflated, does not apply to the Court of Appeals.</p> <p>In. all civil cases within its jurisdiction, under the constitution, the Supreme Court has authority to look into both the facts and the law, while the Court of Appeals can exercise such right only in cases involving more than $500, in which it can pass od facts and law.</p> <p>The Court of Appeals cannot dismiss an anpeal in a case in which the amount involved ranges between $100 and $500, because it finds the demand inflated. It cap determine only questions of law in such a case.</p>

<p>]. Arricio 580 of the Code of Practice, which provides “that some judgments arc executed provisionally, although an appeal has been taken from the same,’ do not relate to judgments appertaining to the appointment of definitive syndics of creditors, unless tin* court, in rendering the decree, order that they shall administer provisionally.</p> <p>2. After a suspensive appeal has been taken from such judgments, the judge has no power to grant any additional order therein involving the subject matter thereof.</p>

<p>A master who carries on an imminently clangorous undertaking, such as the generation and distribution of electricity, is bound lo know the character and extent of the danger, and to notify the same to the servant specially and unequivocally, so as to be clearly understood by him.</p> <p>Absence of actual knowledge is no exculpation. Constructive or obligatory knowledge supplies it. Sucli knowledge is presumed juris et da jure to exist.</p> <p>The servant is not required to know latent, but only patent defects. Actual knowledge must be established by the master, on whom rests the burden of proof.</p> <p>The servant has a right to assume superior knowledge in his employer, to rely on his prudence and judgment, and to believe that ho will not unnecessarily jeopard his person and life by avoidable risk.</p>

JMghtor, J. I. Availway “pool,” or an agreement between two or more competing railroad companies to divide between them their earnings from competitive tariff, is illegal, being injurious to tlie public interests and. contrary to public policy, and is, therefore, incapable of conferring upon the parties thereto any rights which a court of justice can recognize or enforce. 1.

<p>1. A woman who keeps a room in he? house to bo visited and occasionally occupied by lior concubine, without any contract for the payment of rent by the latter, cannot enforce such payment.</p> <p>2. The evidence in this case satisfying us that the services for which payment is claimed, had no other motive than the pre-existing concubinage of the parties and were merely incidental to such relation, the plaintiff cannot claim remuneration therefor.</p> <p>3. The evidence showing that there was no intention on the part of plaintiff to claim, or of the concubine to make, any payment of rent, or for services, no obligation to pay was created, especially when it appears that plaintiff received,, in other ways, a pecuniary quid pro quo for the benefits conferred.</p>

Monroe, J. 1.Where there is satisfactory proof of existing debts approximating the appraised value of ; the property belonging to the estate, and the movables are totally inadequate to disehargo the debts, it is the duty of the executor to apply to the court for an order to sell the mova- . hies and immovables, to pay such debts.

1. A suit tiled on the 24th of November. 1887, to recover damages for a guim-oftenee, alleged to have been suffered on the 25th of November, 1886, though not prescribed, is a stale claim (40 Ann. 65), subject to an unfavorable suspicion, requiring peculiarly strong and conclusive testimony to sustain it. 39 Ann. 685; 35 Ann. 1007 ; 5 Ann. 141; 7 Ann. 555; 14 Ami. 317; 2 Story's Bq. Jurisprudence, section 1520. 2. Without fault there can b.e no liability for a (/‘««si-offence.

<p>A suit brought for the collection, of city taxes, after the adoption of Act 117 of 1884 and in which the right of action is excepted to, is considered as abandoned, when the city, proceeding extra judicially under the provisions of that act, advertises the property for the payment of taxes due thereon, and cannot serve as a basis for an injunction to arrest the advertisement and sale.</p> <p>It does not constitute Us pendens which implies the co-existence of identical suits. The proceeding under A ct 117 of 1884 is non-judicial proceeding', and not a suit.</p> <p>Res judicata does not result from judgments to which the person against whom the ideáis levelled was not a party. Neither is it such, when the thing demanded and passed upon is not the same.</p> <p>The exemption, accorded by Act 207 of the Constitution, does not apply to property employed fortlie manufacture of articles of wood which are nob ready for immediate use, such as cabins and plants, without further manipulation or labor on them.</p> <p>It extends to property employed for the manufacture of doors, sashes and blinds, which are considered as articles of wood within tlje meaning of the Constitution.</p> <p>In the absence of sufficient proof to establish the capital, machinery and property thus employed, the court cannot finally adjudicate on the controversy, and will remand the case.</p>

Voorhie.s, J. Suit on policy of lire insurance. Two defenses urged, i. e.: (1) False representation and concealment as to character of risk when policy was issued. Held: though party may have acted in good faith, yet same vitiated policy. 2. The risk was materially increased by the demolition and reconstruction of the greater part of the sugar house, without the company’s consent thereto being endorsed upon the policy.

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

<p>REPLICATION for Mandamus.</p>

VoorltieÑ, J. i.' l: Two grounds for the relief sought were presented in the court below : a. Plaintiff had no pi-operty covered by the words of the assessment; b. If debts due it were within the, words of the assessment, such properly was not taxable in this State. 2. Either of these grounds is sufficient to.support the judgment appealed from. It does not appear which of tho two prevailed in tho lower court. 3.

r. A warrantor is only a defendant in a restricted sense of the term, i. e. in such a sense as to enable him to resist by all legal moans or defense a judgment against the defendant, which, by reason of the recourse against him, would affect his interest; but no judgment can bo rendered, against tlio warrantor, oxcopt one in favoi of defendant for such amount as lie may bo liable for under libs warranty. Suo Stoolo vs. Smith. i)fcli Ann. p. 172. II.

Rkjhior, J, A debtor cannot inquire into the validity or invalidity of bis creditor’s will. Heirs and creditors alone can attack contracts and donations made to their xmojudice. The debtor of an estate cannot object to an administration of it on the ground that it owes no debts. Heirs alone can urge that objection. A decree appointing an administrator or executor cannot be attacked collaterally. 28 Ann. 807; 30 Ann. 269.

Monton, J. 1. Oo-heirs as well as eo-owners have a right to enjoy and possess the hereditary property left to them by their ancestors. Aud when one of said co-heirs seeks to acquire any portion thereof by prescription, without title, he must prove conclusively that he has possessed the exact separate portion, which ho seeks to acquire, during 30 years--separately and as owner. 11. O. O., 1304, 1305. 2.

Voorhies, J. Defendant is responsible in damages for the injury inflicted upon plaintiff while on the public highway by defendant’s dog. C. C. 2316, 2317. 2321. The fact that the dog was chained during the day and loose at night, justifies the presumption that defendant know the vicious character of the animal. Buckley vs. Loonard, 4 Denio, 500.

Monroe, J. 1. It is the legal duty of the City of New Orleans to keep its streets in repair; Act 20, 1882, §7 and §86, pp. 20 and 30; and is liable in damage to a person injured by a dangerous place in a public street. O’Neil vs. New Orleans, 30 Ann. 229; JPonnimore vs. New Orleans, 20 Ann. 124; Dillon, Yol. 2, §788 and §789. 2.

VoorMes, J. 1. A private corporation has no right to erect poles ancl string wires through the public streets of New Orleans, without tlie consent of the City Council, expressed by an ordinance promulgated and produced in evidence, (Act 124 of 1880,) and is a trespasser and guilty of a public nuisance. 2. Even if it had such a grant of franchise from the City Council, it had no legal right to impede or obstruct the free use of a public street and highway. (Ib.) 3.

<p>The amount o£ property as to description and valuation cannot be attacked in any other mode or within any other time than those jirescribed by the statute.</p>

<p>Where an agen!, in Now Orleans, for non-residenÍ, dealers, has authority only to exhibit samples and receive orders which lie communicates to his principal for acceptance or rojee lioni held that an order so transmitted was similar in every respect to an order to purchase sent direct by the buyer to the seller, and when accepted and filled and tlio goods delivered to the carrier and insured by the buyer that it was a contract whore said order was accepted and fillod and tlio goods delivered.</p>

<p>A motion for a continuance, made for tlio/-r.vi time, by an attorney, assigned to defend an accused in a capital case, ought to bo allowed, when supported by his affidavit, that ho has not had sufficient time to prepare a suitable and valid defense which he believes there is m the case, less than forty-eight hours having intervened between his appointment and the calling of the case, which involves questions of fact and law, which require much study and research.</p>

<p>A verdict and sentence in a criminal case will not be disturbed when the transcript contains no motion to quash, no bill of exception, no motion in arrest, no assignment of error and the proceedings appear to have been regularly conducted.</p> <p>A motion for anew trial which chargee improper rulings by the district judge, will not be noticed, when the rulings were not objected to, at the proper time and in the proper form.</p> <p>An ai>ponl in such a case is almost trifling with the court.</p>

<p>The possible error of a trial judge who excuses a juror who has staled that he had a prejudice in favor of the .accused, and refuses the accused to cross-examine him, on his voir dire, affords of itself no legal ground of complaint to the accused, on appeal.</p> <p>The refusal of a trial judge to permit a witness to answer a question, the purport of which was, whether wounds received by an accused had been inflicted in a particular way — will not be interfered with, where the witness liad previously stated that he did not know how the wounds had been inflicted and that he was not an expert.</p> <p>A witness who has testified in a particular manner, in his first examination and who is sought to be contradicted by the defense, can be heard in rebuttal to testify as to a new matter brought out, in the attempt to contradict or impeach him, where the witness had not testified on that subject when examinod in chief.</p> <p>At any rate, the objection would go, if the testimony was cumulative only, and thus superfluous to the effect and not to the admissibility.</p>

<p>In a trial for murder, threats made by a brothor of Iho accused against the deceased, are not admissible in evidence, if it appears that the brother has not been indicted for the offence, and that no testimony has been introduced tending to show a conspiracy between the brothers for the perpetration of the crime charged to the accused.</p> <p>In such a case the brother is a third person, whose acts and words spoken can have no possible bearing on the guilt or innocence of the accused.</p> <p>The testimony of a witness taken at a preliminary examination in a murder case is not admissible as evidence at the final trial, unless it is shown that the witness has left the State, or cannot be found, or having been summoned was taken sick on the way. The showing that tho witness has removed to an adjoining parish, is not sufficient to justify the introduction of his testimony taken at the preliminary trial, and to thus deprive the accused of his constitutional right to be confronted with tire witnesses againát him. 14. S. 1870, sec. 1030.</p>

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

<p>1. Act 74 of 188G authorizing the court to appoint attorney to represent tlae State when the district attorney is recused, sick or necessarily absent, does not violate Art 124 of the Constitution.</p> <p>2. Refusal of the judge to retire the jury while talcing evidence as to foundation for admission of a dying declaration objected to on the ground that, if the declaration were excluded, the evidence touching it should not be heard by the jury, loses all significance when the declaration is admitted.</p> <p>3. While this Court has determined its jurisdiction to examine the evidence taken on issues of this kind and to review the findings of the district judge thereon, yet it will give great weight to such findings and will not disturb them unless manifestly inconsistent with the evidence.</p> <p>4. While the appointment of a foreman to the%)ctit jury by the judge is unnecessary and perhaps irregular, it is' a matter too trivial to serve as a basis for relief in this Court.</p> <p>5. When the witness of the accused has been questioned as to the physical power and prowess of the deceased, questions by the State on cross-examination relative to like qualities of the accused are germane and responsive to the subject-matter of the examination in chief.</p>

<p>APPEAL from the First Recorder’s Court of the City of New Orleans. Murphy, J.</p>

<p>APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.</p>

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

<p>Tlie ruling of a trial judge excusing a juror for cause, oven 'when not specified, is not revisable by this Court on appeal.</p> <p>A question, the objectrof which is to prove that a witness expected to meet a person at a certain place, is not one intended to establish an opinion, but a fact and is properly allowed to be put and answered.</p> <p>In such case, the accused has tlie undoubted right to cross examine, so as to disprove the fact of the expectation and cannot complain when it does not appear that he was not allowed that privilege.</p>

<p>1. Tn il proceeding' taken to put heirs In possession of an estate, an issue must he joined, as in other civil matters, with tlie administrator in possession, anil proof must he taken ami judgment rendered contradictorily, recognizing their capacity.</p> <p>2. .Judgment of foreign countries must he clothed with all the forms required to prove their authenticity, in the country in whisk they are pronounced, otherwise copies of samo will not lie considered autlientic, and cannot be admitted in evidence in tlie tribunals of this State.</p> <p>3. What purports to he the exemplification of a record in the Imperial Royal District Court of FrUdlnntl, in the province of Bohemia, in the Empire of Austria, which does not contain intrinsic evidence of a judgment or decree of that court, and which is not shown liy extrinsic ovidence, to have lieen in the form of -a judgment or decree oj' such court, cannot, ho admitted in evidence ill onr court as'that of such judgment or decree.</p>

<p>Act 7 of 1888, giving justices of tlie peace jurisdiction in cases of trespass, whore the same occurred is not a local or special law hut general in its character, applying to all magistrate’s courts throughout the State and to all corporations.</p>

<p>The Governor is vested with power to reniOAe an inspector of weights and measures, and the courts are without authority to inquire into the reasons for the removal.</p> <p>In the commission if words are used equivalent to •' remoAal ” and vliich plainly shoAvthai the party appointed is to act in the place of the one holding the office, this is sufficient to operate a remoAal, and to entitle the party appointed to take possession of the office. The last appointment supercedes the first, and is a manifestation of the poAver vested in the Governor to remoAe the incumbent. ]So other declaration is necessary.</p> <p>A person avIio has declared his intention of becoming a citizen of the United States and has qualified as an elector is a citizen of the State and elegible t o hold office.</p>

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

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

Mary. Oooñe,, J. A contract, beginning with the words, “ sold this day,” declaring that tlie alleged purchaser shall pay tlxe instalments of the price at fixed periods, with, interest, and stipulating that “ when done, Baldwin, or his heirs, will give a good deed,” is not a sale, translating a title, but is a promise to sell, under which the title remains in the promissor. Thompson vs. Duson, 5th Southern Reporter, p. 58 ; 34 Ann. 677; 13 Ann, 361; 15 Ann. 483.

<p>APPEAL from the Civil District Court, for tbe Parish of Orleans. ■ JEllis, J. • • • •</p>

Jlujliior, J. Shares of the capital stock of a corporation pledged to seoprc a bona fide debt, fix a corporate liability in favor of the pledgee, and an unlawful transfer thereof is a breach of corporate duty, for which the corporation is liable. Corporations hold all their property, effects and assets in trust for their creditors and shareholders.

District Court for the Parish of Avoyelles. Oooo, J. Where defendants are sued for a tract of land as trespassers, and they exhibit a judgment regularly obtained, an execution issued thereon, and a sheriff’s deed to their vendors followed by more than ten years uninterrupted possession as owners, the plea of prescription will be sustained, and their title cannot be assailed by the former owner or liis heirs. 2 B. 466; 3 Ann. 8.

Most, J. When the cash value of the property belonging to a corporation exceeds the value of its shares, the shares cannot be assessed. In the absence of any fixed market value of shares of stock, the value of the shares must be fixed and determined by the cash value of its assets,«less debts due. Defendants’ brief has just been handed to us.

<p>An application for a peremptory writ of mandamus will be denied when its object is to compel a district judge to fix tlie amount of an appeal bond for a suspensive appeal, when no bond was offered within the delays for a suspensive appeal.</p>

<p>1. A motion to dismiss an appeal for want of jurisdiction may bo filed at any time. The Court will notice such defect whenever and however it is brought to its notice, and even ex propHo motu.</p> <p>2. "When the claim of jurisdiction is based on a demand for damages manifestly fictitious and made merely to entrap the jurisdiction of this Court, 1ho appeal -will be dismissed.</p>

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

Court for the Parish of Orleans. Hightor, J. 1. Until it be shown that there is written evidence of a party’s parentage, it may he proved hy parol. 18 L. 594; 13 L. 109; 8 It. sec. 279; 20 Ann. 97. 2. Legitimacy is presumed.

<p>In proper cases and under appropriate averments, citizens and taxpayers may sue in tlie enforcement, or restraint of municipal action, but they cannot sue in affirmance of its contracts which containno stipulation pour aut/nd,</p>

<p>X. One of tlie formalities required, by tlie Civil Code in the confection of a testament nuncupative in form, and received by public act, is that the act must be received by a notary in the presence of three witnesses residing in the place when the will is executed; that, is to say, in the parish where the instrument is made.</p> <p>2. This formality must be observed ; otherwise the testament is null and void.</p> <p>3. Such testaments are full proof of themselves. They must bear upon their faces the evidence that all the formalities required by law have been complied with. An omission of any formality cannot be supplied by evidence dehors the testament. Succession of Volmer, 40 Ann. —; 4 South. Hep. 254.</p>

<p>1. The actual casli value of property is the constitutional basis of its taxation.</p> <p>2. The actual cash value of real or personal property is the price it would sell for cash; in the ordinary course of business, free from all incumbrances, otherwise than at forced sale.</p> <p>3. Neither the price of investment in, nor the net revenue, nor profit earned by a railroad is a fixed criterion of value in assessment matters.</p> <p>4. The market value of the stocks or bonds, is one of the truest criteria of the value of a road ; yet it does not hold when the corporation becomes insolvent.</p> <p>5. There exists no rigid rule for the valuation of property, which is affected by a multitude of circumstances which no rule can forsee, or provide for. The 'assessor must consider all the-io circumstances, and elements of value, and must exercise a prudent discretion in reaching a conclusion.</p> <p>This maxim applies with equal force to the board of reviewers.</p>

<p>.1 vendor. Reining the plantation securing his claim, has a right to make the advances necessary for the working of the place while in the Sheriffs' custody, and to overseer it with the Sheriffs’ consent. In both cases, he is entitled to recover the amount of the advances shown to have been made and to receive payment for his services.</p> <p>An account annexed to a petition “for reference f stands as an amplification of the petition and .justifies the admission of proof in support of the items figuring upon it.</p>