Volume 42 — Louisiana Reports

<p>APPEAL from the Civil District Court for the Parish of Orleans.King, .7.</p>

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

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

<p>1. While persons transacting business both as wholesale and retail dealers areW2 liable to license in each capacity, the evidence in this ease does not satisfy ns 0 thill defendants carry on a wholesale business within the meaning of the law.</p> <p>■2. The proviso in the license act to the effect that retail grocers who sell liquors in loss quantities than five gallons shall pay additional .license as provided in .Section 11 of the. Act, can not be applied, because Section 11 regulates several distinct kinds of business with different systems of license, none of which embraces the business of defendants, and therefore, it furnishes no certain rule applicable to the latter. ’</p> <p>i. Uenee the only rule applicable is that found in the clause fixing the additiona license at “not less than fifty dollars.’"</p> <p>1. This construction does not make the license, unconstitutional for want of graduation, because the business of retail grocer, of which this additional business only fox-ms a part, is, as a whole, duly classified, and the addition of a fixed sum to each class does not destroy the graduation.</p>

<p>APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.</p> <p>1. The procedure lor enforcing an obligation is no part of the obligation itself, and the legislative power may at pleasure change the remedy by any provisions that do not impair the right. Bishop on Contracts, Sec. 571; Wade on Retroactive Laws, See. 198; Penniman’s case, 103 U. S. 714; Gordon vs South Fork Canal Company, 1 McAllister 513.</p> <p>Hence Act No. 133 of 1888 does not impair the obligations of previous contracts of the kind, and between the character of parties described in the act, and is therefore constitutional.</p> <p>2. Section 716 of the Revised Statutes of the United States, considered in connection with Sections 1 and 2 of the Act of 1875 (U. S. Statutes 470) operates to prevent. the issuance by a United States Circuit Court of a writ of mandamus, except in aid of a jurisdiction already acquired, as well as in the case of a suit removed to it from the State court, as in the ease of an original proceeding before it. Rosenbaum vs. Bauer, 120 IJ. &. 453 ; Smith vs. Bourbon county, 327 Ü. S. 112.</p> <p>.3. Since the passage of the Act of 1887 (24 U. S. Statutes at Large, page 553) amending See. 2 of the Act of 1875, determining the jurisdiction of the Circuit Court of (die United States, and regulating the removal of cases from the State courts, etc.; no appeal lies from a judgment by the United States court remanding a ease to the State court.</p> <p>4. No plea will lie in a State court of the pendency in a United States Circuit Court of the same district of another suit betwen the same parties, for the samo object, and growing out of the same cause of action. Hampton vs. Barrett; 12 La. 159; Mix vs. His Creditors, 39 An. 626, affirming the doctrine of Stanton vs. ISmbrey, 93 U. S. 548, and of Gordon vs. Gilfoil, 99 U. S. 169; Crescent City Live Stock Landing and Slaughter House Company vs. The Butchers’ Union Livo Stock Landing and Slaughter House Company, 12 Fed. Rep. 225; Weaver vs. Field, 16 Fed. Rep. 22; Latham vs. Chaffee, 7 Fed. Rep. 520; 3 Summer 155; 2 Clifford 322.</p> <p>i.</p> <p>The pendency of another action for the same cause in the Circuit Court of the-United States, having jurisdiction, is a good plea in abatement in the StatO' court of the same district. Vide 22 N. H. 23: 3 McLean 22; 4 McLean 233; 5 Biss. 44. *</p> <p>Thatcher’s Practice, Circuit Court, page 417; Wait’s act. and do., vol. vi., page 399.</p> <p>In Memphis vs. Lean, 8 Wall., page 64, the United States Supreme Court decides the issue squarely.</p> <p>In 93 U. S. 548, the courts were in different States, and in 99 XT. S. 175, issues were not the same.</p> <p>Vide Code of Practice 335, No. 2; Hennen’s Digest 1166, pagos t -5. As the analogy to res adjudicata, Vide do., page 1167, No. 12.</p> <p>Act 133 of 1888 impairs the obligation of the charter contract and is unconstitutional. Private charters are held to he contracts. Cooley on Const. Lim., page 337.</p> <p>And laws which exist at the time and place of the contract enter into and form a part of it. Black Consti. Prohih., page 163; Cooley, page 346.</p> <p>1. There was no such thing as enforcing its obligation by specific performances, because the payment of damages was an adequate remedy. C. C. 3927; Morawetz ii. par. 1134, 5-6; Green’s Brice’s XTltra Vires 463.</p> <p>The sole obligation to which the railroad was exposed for non-performance of the obligations sought to he enforced was to pay the cost of the work. 37 An. 589.</p> <p>To impose upon the company the obligation of having its franchises seized and its business of public carrier conducted by the Sheriff, as provided in the Act of 3888, would mean the annihilation of its charter, rights and privileges.</p> <p>2. Mandamus did not lie to enforce a contract obligation, because of no adequate remedy apart from that writ. O. P. 830; Vide 9 An. 513; 57 An. 587; 39 N. V. 171.</p> <p>TIT.</p> <p>The application to remove should have been granted.</p> <p>Irrespectively of its ownership, the right to remove is granted in all eases arising* under the constitution or laws of the United States. U. S. Statutes at Large, March 3, 1887, page 552; Desty on Removal, page 47.</p> <p>The rule is that if some right which is asserted will bo defeated by one construction of tbe constitution, then the case may be removed. 96 U. S. 595; 100U. R. 264, 115 U. S. 248; 118 U. S. 112; 102 U. S. 141; 111 U. S. 449; 118 U. S. 130.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J, 1. The policy being prepared by tin1, insurer himself, it is to be most strongly construed against him.

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

<p>Outlays for printing tlie brief required by the rules of the Supreme Court are not charges susceptible of being taxed, as costs of appeal, which the party cast is condemned to pay,</p>

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

A PPEAL from the Civil District Court for the Parish of Orleans. lx Bightor, J. A subsequent will, plainly manifesting that the testatrix intended it to express all her testamentary disposition, revokes a prior will. Civil Code, Art. 1693. The decision of this court, that a will docs not constitute residuary legatees, will he followed when a prior will is presented not materially different from the will, the subject of the decision.

<p>In an action for damages for a malicious prosecution, an exception of no cause of action will foe maintained if it appears from plaintiff’s own petition, and from the judgment set up as his acquittal, that the prosecution was 'not actuated by ■malice or without probable cause.</p> <p>But if, in the same petition, the pleader cumulates a demand for damages against the same parties for an injunction alleged to liaye been wrongfully obtained, he discloses a cause of action by alleging that the plaintiff in injunction had voluntarily abandoned his writ and had discontinued his action.</p> <p>The voluntary abandonment of an injunction has the same, legal effect as a judgment rendered contradictorily, and decreeing the injunction to have been wrongfully obtained.</p>

Drenx, J. 1. Municipal corporations are governments of limited powers; wlien their charter, which is ’the measure of their authority, enumerates such powers in a clear and unequivocal manner, the letter of the law conferring such powers can not be disregarded under the pretext of pursuing its spirit. Cooley, pp. 192, 195; 12 An. 133; Act 29 of 1882, p. 21; R. C. C. 13, IS; 1 Zachariai, p. 78. 2.

<p>Under the Removal of Causes Act, the right o£ removal is determined on the face of the petition, as matter of law. The facts alleged are taken as true and can not he contested in the State Court. If disputed, their truth may he put at issue in the United States Court on a motion to remand.</p> <p>The law does not provide for verification of the application hy affidavit. Perhaps affidavit is unnecessary, hut, if otherwise, the affidavit of the attorney for a foreign corporation is sufficient.</p>

Rost, J. 1. On an exception of xxo cause of action and vagueness, documents annexed to the petition must be considered. 27 Axx. 224; 30 An. 1148. 2. Oix motion to quash venire for any irregularity, fraud or irreparable injury must be alleged and proved. 84 An. 118; Act 1877, 3sTo. 44, Sec. 10; 83 An. 1414; 88 An. 460. 8. The fact that there are names of persons disqualified in the venire box will not vitiate the drawing. 32 An. 84. 4.

Ellis, J. 1. A clerical error, in any judgment, as to a litigant’s Christian name is inconsequential, and may bo corrected by rule at any time, when his identity is not doubtful and no injury bus resulted to him from such error, 16 D. 71; 2 An. 508, 715; 14 An.

^PPLICATION for prohibition. 1. Prohibition will not lie when no exception to tlic jurisdiction of the inferior court has been made and overruled. 2. No law authorizes a district court to stay all proceedings against a debtor who applies for a respite before the respite is granted. O. C. 3084 to 3008. 3. The respite law is not an insolvent law, but is based on the supposed solvency of the debtor and his eventual ability to pay all his debts.

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

^PPLI CATION for Mandamus. 1. The Sheriff seizing real property under a fl.fa. and a fortiori, the purchaser can eject a tenant who occupies at a monthly rental of less than $100, in the city court. Ere dr i ch s vs. Skinner, 33 An. 110. 2. The tenant is bound to attorn to the Sheriff and to the purchaser at Sheriff’s sale, and does not cease to be a tenant and subject to the obligations of a tenant to the Sheriff and the purchaser at Sheriff’s sale.

John the Baptist. Rost, J. 1. Tlie Supreme Court will take no notice of points and objections raised by either party for the first time in his brief before this court, when such matters were not passed upon by tlie court a qua and form no part of the subject matter or questions of law brought up for review hy the appellant. 2. A motion in arrest of judgment is seasonably made when filed on tlie third judicial day following' the trial. 3.

<p>A PPEAL from the the Baptist. Twenty-sixth District Court, Parish of St. John Rost, J.</p>

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

Assumption. Guión, J. 1.Separate counts for shooting with intent to murder, and for inflicting a wound less than mayhem, with a dangerous weapon, may he joined in one indictment. . 37 An. 382; 35 An. 33; 4 An. 434. 2.When two counts are properly joined in one indictment, the jury may render a general verdict on all. 40 An. 730; Wh. Cr.

<p>When the return day for filing a transcript has becu extended, and the transcript is filed after tile expiration of the extension, the appeal will be dismissed, as the appellant is not entitled to the three days of grace which follow the return (lay.</p>

Rightor, J. Act 81 of 1888 of the Louisiana Legislature, “ in relation to free public schools, and to regulate education in the State of Louisiana,” etc., is constitutional and valid, and its .mandate, as contained in Sec. 11, requiring- the City of New Orleans to mate annually certain appropriation» for public education in this parish, should he enforced.

<p>In insolvency proceedings to wind up tlie business of an insolvent commercial partnership, a partner in commendnm wlio claims to be a creditor of his partner, does not occupy a different and better position than a full or active partner; and hence he can not be allowed to enforce a pledge granted to liim by his co-partner on the latter’s former share of the partnership property.' His rights as a creditor of liis partner individually must be subordinated to those of creditors of the partnership.</p> <p>In liquidating an insolvent commercial partnership, the only difference between a partiier in commendtun and an activo partner, consists in tlie former’s immunity from liability for tlie debts of tlie concern beyond tlie sum wliicli lie lias agreed to furnish by his contract.</p>

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

<p>1. The trial of a cause haying been commenced, and a portion of the evidence taken, when the sitting judge was displaced by the appointment of liis successor, a question was raised by the defendant as to his right to require a trial de novo. Held, that the reintrodnction of the testimony that was adduced before the judge ex officio was all the defendant could require.</p> <p>2. The plaintiff being the adjudicator of certain property at a judicial sale to effect a partition thereof, amongst the heirs of a deceased person, and having received an authentic deed thereto, is the holder of a just and translative title, and entitled to a judgment in a petitory action against a naked possessor without title.</p> <p>,B. The Second District Court of the Parish of Orleans had jurisdiction in 1878 to ■order a partition of property of it succession, between the widow and heirs of a deceased person, under administration therein.</p>

<p>It is not necessary to serve notice on tlie owner oí a building in order to recover damages from injuries received from tlie falling of the same, as to its dangerous condition. lie is bound to know the qondition of his property. Ignorance of its condition can bo no excuse for any accident caused by its weakness.</p> <p>"Where a standard of duty is lixed, audits measure defined by law, its omission^ negligence per se. J</p> <p>There can h(5 no difference in principle whether a building lias been made unsafe by tlie agencies of lime, weather or the acts of trespassers, which was within the power of the owner to prevent. In any event, and jmder all these circumstances, it is the duty of the owner to keep his building in a safe condition.</p>

King, J. An executor has no right to apply for an order of sale before thirty days have elapsed since his appointment, and when .such an order is prejudicial to a mortgage creditor of the succession, it should be set aside. Civil (‘ode, Art. L164. The mortgage creditor, in any case, is entitled to notice of any application to sell the mortgaged property. French vs. Prieur, 6th Rob. 299.

A PPEAL from the Civil District Court for the Parish of Orleans. JSllis, J. :1. A person not a party to an injunction suit, nor served with the writ therein issued, can not be in contempt for a violation of the writ. 9 Haw. (N. Y.) Rr. .425 ; 40Hun. (N. Y.) 85; 540. 2. Article 308 C. P., contemplates violation of injunction by none, except those against whom it is directed. 3.

Voorhies, J. 1. The law regards the application for a mandamus as summary in its nature, and the answer in opposition thereto should contain a full written defence, whether it involves exceptioxxs or merits. Shaw vs. Howell, 18 An. 195. 2.

<p>APPEAL from the Twenty-Sixth District Oourt, Parish of Jefferson. Rost, J.</p>

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

Bightorj J. •1. When a person claiming a succession as heir of the deceased, announces a state of fact which fails to disclose any right in her to the inheritance under existing laws, her demand must be dismissed for want of cause or right. 2.

<p>An- agent can not acquire an interest adverse to his principal. II he purchases property of which he has the management and which belongs to his principal he must be considered as holding it as a constructive trust tor his principal. He can not deny the title ot the principal to the property of which he has the agency. Nor can he dispute the capacity of the principal to sue.</p> <p>A counter letter retained by an agent who sells property for Jiis principal showing that a less sum was received than that actually expressed in the deed can have no effect against the principal, not a party thereto,'who sues to recover the price of the properly.</p>

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

<p>1. In questions oí IrimcUilont simulations, Rilé relations between the parties, such as those oí brotlier-in-law and employee, are circumstances entitled to due weight, but they are not inconsistent with the honest relation of debtor and • creditor, nor do they deprive the creditor of legal recourse for the enforcement of his debt.</p> <p>. In this ease the evidence circumstantially explains the origin and nature of the debt, and the motive of the proceeding is uncontradicted, and is supported not only by the testimony of the parties, but by numerous collateral facts proved by other witnesses.</p>

<p>The holder of accommodation paper acquired before maturity, without notice or knowledge of any equities or agreement existing-between the maker and tlie. payee of the note, is entitled to the same protection which is extended to the holder of negotiable paper acquired before maturity.</p> <p>The defence, in a suit on the note, that the. maker is not liable thereon, on the ground that tlie note was executed as an accommodation for the payee and tlie suing- holder, must be clearly proved in order to prevail.</p> <p>In such a case1 tlie burden of evidence is on the maker urging that defence.</p>

<p>Holders of State warrants drawn against tlio general fund of any year, out. of the Slate Treasury, under tlio general appropriation act of that year, have a standing in court to contest the validity of oilier warrants issued under a special appropriation act, drawn against tire same fund, if said fund is shown to bo in - sufficient to pay and satisfy all warrants drawn against the same.</p> <p>Under the provisions of Article, »:i of t he Constitution, the general appropriation bill alone may embrace several items or objects of expenditures of state revenues. All otlior appropriations shall be made by separate bills, each embracing but one object.</p> <p>Act No. 51 of 1888, entitled an act making appropriations to pay deficiencies due by the. State for the years 1885, 1880 and 1881, not being a general appropriation bill, and embracing in its body four different and distinct objects, is unconsl it utional, null and void.</p>

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

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

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

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

<p>1. When the Constitution vested this Court with original jurisdiction in cases involving the removal of judges from office, the grant carried with it all the powers necessarily or usually incident to such jurisdiction, including those to execute its decrees hy usual process, to control, to regulate and restrain such execution in proper cases, and to set aside and annul its own judgments in the eases and by the methods provided bylaw.</p> <p>2. Plaintiff and defendant wore the only parties to the judgment attacked and the only necessary parties to this action.</p> <p>3. Prescription against the, action of nullity for fraud only runs from date, of discovery of the fraud.</p> <p>4. The rule that the judgment silences all defences which might have been urged against its rendition can not be invoked in an action of nullity for fraud when the fraud alleged consists in acts of the party which prevented his adversary from setting up his defences.</p> <p>5. The grounds of fraud specified in C. P. 607 are illustrative and not exclusive, and the jurisprudence of this State emancipates the terms “ fraud and ill practices” from control by those examples and vests the courts with discretion to determine what kind and degree of fraud and ill practice should vitiate a judgment according to the principles applied to such matters by courts oi equity.</p> <p>6. A judgment will be annulled when a party, having good defences to an action, is prevented from urging them by the acts, promises and representations of his adversary, in which ho trusted, and by reason thereof, a judgment lias been rendered which it is against good conscience to execute.</p> <p>7. Prom the allegations of the petition, which are to bo taken as true, it does not appear that the defences claimed, or the agreements and understandings alleged were tainted with any illegal or immoral purposes or consideration: and were it otherwise, the defendant who is invoking the aid of the court to enforce a judgment obtained through such means would not be in position to object to allegation and proof by the other party of the illegal and immoral foundation thereof.</p>

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

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

<p>APPEAL from the Twelfth District Oourt, Parish of Avos^elles. Coco, J.</p>

<p>The Supreme Court, when the amount involved is less that $2000, has jurisdiction ' only of tax suits when the constitutionality or legality of the tax is involved.</p> <p>In the absence in the pleadings of any suggestion as to the legality or constitutionality of the tax, the appeal will be dismissed.</p>

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

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

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

<p>Unci or a contract o£ lease which binds the lessee to keep the property in good repairs, and to surrender it at the expiration o£ the lease in the same good order-in which he received it at the beginning o£ the lease, he has the option to make 1 lie required or necessary repairs at the end o£ the lease, and his lessor has no-cause o£ action £or damages for his failure to make repairs until the expiration of the lease.</p> <p>lienee, when the cause of action arises, the conditions on which the work was to ho done have ceased to exist, and in such a case the action for damages need not he preceded by a putting in default of the lessor. (C. C., Art. 1933; Exception I.)</p> <p>The, lessor who soils the leascdproperty during the continuance of the lease, with the express reservation of all his rights and claims as lessor, specially including the right to sue for damages caused to the property during the possession of the lessee, has a legal right of action for such damages after the expiration." of the loase, unaffected by the sale made in the meantime.</p>

Ellis, J. 1. Where a municipal corporation is sued upon a contract, which it has the power to make, a defence based, upon the non-compliance, with the charter provisions in making- the contract, will not he considered unless specially pleaded. 30 A. 453; 10 A. 809; 12 A. 35. 2. A contract to furnish shells to repair the streets, is within the power of the Commissioner of Public Works of the City of Now Orleans.

<p>AVhen it appears that the only persons practically interested, in an account are the aceountaixt and tlie opponeixt, both of whom aro ¡mi juris, and when it is shown tlxal they have xxiado extra-judicial settlements of the matters involved, and, by their joint action, have involved affairs in such confusion that a readjustment is impracticable, the judge a quo will bo sustained in leaving the parties where they have placed themselves and in dismissing the ease.</p>

<p>1. A husband who lias been a party to an authentic act by which it is declared that the wife purchases with her separate paraphernal funds and for her separate benefit, is estopped from contradicting the verity of such recitals; unless he first prove that such recitals were embodied in the act through fraud, error or violence.</p> <p>He must prove the error before he can be heard to contradict the verity of the-recitals. 2.</p> <p>3. Tlie proof of error must be clear and convincing. Where the terms of the act are unambiguous, ivhen it is shown that those terms were fully communicated to him, he can not escape their effect by saying that he did not understand the legal significance of the terms used, particularly after the death of his wife, in a contest with her heirs.</p>

<p>1. In case an accommodation acceptor and indorser of a piece of commercial paper acquiesces in its retention by a bank discounting it, notwithstanding it has been in part paid, and the payment of the remainder extended, for which extension a new note is furnished to tlie bank, such acceptor having also endorsed said time note jointly with another, he is bound on both, and his * obligation is not restricted to the latter.</p> <p>2.In case of such acceptor’s making payment of the whole of the latter, both notes, will be extinguished; but if he refuse to pay more than half, because his obligation is joint, his obligation on the former would remain in full force. Hence* plaintiff having paid the whole of the joint obligation, is not entitled to reimbursement for the amount paid in excess of his share thereof.</p>

<p>APPEAL from the Twenty-Sixth District Court, Parish of St. John the Baptist. Rost, J.</p>

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

Mbwroe, J. Plaintiff recovered judgment against M. O. Randall for $38,233.93 for deficiencies as its agent, and sues his four sureties for $2500 each, who bound themselves as such for that snm, It was objected that the bond was not formal and had not boon accepted by plaintiff. Plaintiff claims that the bond is sufficient in form and was accepted and acted upon by the company for ten years or more. If there was any defect in form the sureties, in signing the bond, waived it.

<p>An applicant from a Recorder’s sentence condemning him to pay a fine and in default, to be imprisoned for a number of days, for the violation of a municipal ordinance, cannotbo viewed as an accused in a criminal prosecution, by indictment or information, before a court of general criminal jurisdiction, for the commission of a crime punishable with death or hard labor or a fine, exceeding $300, and is bound, as a condition precedent to the filing of the transcript of appeal, to deposit with the cleric the amount prescribed by the rule.</p> <p>AetlG of 1881 and Act 19 of 188G, invoiced, applies to cases of prosecutions for crime and not to proceedings for dotation of city ordinances.</p> <p>On Rule Against the Clerk of the Court.</p>

<p>In a trial under an indictment for burglary under tlie provisions of Sec. 850 of tlie Revised Statutes of Louisiana, as well as at common law, tbe intent with which, (lie entry was made is the essential ingredient of the crime charged. The offence is not complete without the felonious intent, without which it would be merely a trespass.</p> <p>In general tlie intent may be presumed from what the offender actually does after breaking and entering; if he commit a felony it may be fairly presumed that lie entered for that purpose. But this, like other presumptions, may be rebutted.</p> <p>Henee in the trial of a charge of breaking and entering with intent to kill, the State is restricted to proof of that intent, and tlie accused can not he convicted of any oilier felony.</p> <p>In such a ease tlie accused must be allowed to introduce testimony to show that his intent was anything else but that to kill, oven if tlie iptenfc was in itself unlawful and unjustifiable in law. The accused must be allowed to prove all tlie circumstances surrounding or characterizing liis alleged intent. A partial explanation is not sufficient, and a ruling of the trial judge excluding evidence to show the real and whole intent is erroneous. Tlie object of such testimony is not to justify or mitigate tlie offence charged, but merely to negative, or rebut the presumption of the intent to kill.</p> <p>Tlie jury should be tlie sole judges of tlie effect of such evidence as going to show tlie real intent with which the entry was effected.</p> <p>Under such a charge, if tlie evidence shows that tlie accused committed some other unlawful act, but not with the intent to kill as laid in the indictment, he can not bo convicted. In the absence of proof of intent to kill, or in ease of' proof negativing such intent, there is no burglary.</p>

1. Every act whatever of man, that causes damage to another, obliges him by whose fault it happened, to repair it. R. O. 0., Art. 2315. 2. Every person is responsible for the damage he occasions, not merely by his own act, but by his negligence, his imprudence or liis want of skill. R. O. 0., Art. 2316. 3.

<p>1. In an indictment for larceny, description of thing stolen as “ One beef of the value of fifteen dollars, of the property of A. B.” is sufficient.</p> <p>'2. Proof of attempts by accused to intimidate a witness for the prosecution is admissible as tending to establish a presumption of guilt; and such admissibility is not destroyed by the fact that on a trial for the crime of intimidating the same witness accused had been acquitted.</p>

<p>' 1. Where the beneficiary heirs are all minors, their tutors are entitled by prefer- : ■ eneo to be appointed as administrators; and the terpt tutors, as used in Art..l(i4i embraces a duly exualified female tutor as well as male tutors.</p> <p>2. In such case where two tutors of different beneficiary heirs apply, the judge is rested with a large discretion in deciding between them, and unless manifestly wrong his conclusion will not be disturbed.</p>

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

Young, J. 1. A railroad company is negligent in providing machinery and equipments not suflieient for the .safety of its employees and [other parties using same; and in failing to keep same in proper repair. 40 An. 132; 37 An. 684; 14 Howard 468; 112 IT. S. 383; Itorer on Railroads, p. 935; Patterson, Railway Accident Law,, pp. 232, 235, 236, 237, 288, 240; American Encyclopaedia of Law, pp. 62, 68. 2.

<p>Under Act 126 of 1855, now become Secs. 1211 to 1216 inclusive, the power conferred upon the police juries and the authorities of towns and cities, relating- to the retailing of intoxicating liquors, went no farther than to authorize them to grant or withhold licenses for this purpose.</p> <p>The Legislature fixed the penalty for retailing intoxicating liquors without a license from the local authority.</p> <p>A police jury ordinance to prevent the retailing of spirituous liquors, which defines offences and imposes fines not known to the laws of the State, is null and void.</p> <p>Under Art. 170 of the Constitution it is within the power of the Legislature to delegate to local authorities full and plenary authority to regulate the sale of intoxicating liquors by uniform regulations, and to make a violation of the same an offence against the State. The Legislature has not yet passed any act conferring such power in pursuance of said article.</p>

<p>Tlio Supreme Court, having^no jurisdiction of facts in criminal cases, can afford no relief to an appellant wlio complains that the venue had not been proven on his trial. That matter was exclusively within the province of the jury.</p>

REPLICATION for Mandamus and Prohibition. 1 A decree rendered by a District Judge of an adjoining district sitting as judge atl hoc, in the place of the judge of the court recused on the ground of interest, overruling and dismissing the motion and exception of recusation, is not an interlocutory order but a definitive judgment, from which an appeal directly lies to the Supreme Court. 2.

<p>Tlie order of a competent court appointing an under tutor can not be attacked collaterally, and must stand until vacated or annulled by appeal or in a direct action of nullify.</p> <p>Tlie deliberations of a family convened for the purpose of recommending tlie appointment of a dative tutor, and resulting in an equal division between tlie members composing the same, decide nothing, and can not be tlie basis for the appointment of any one as tutor.</p>

<p>1. Whore the parties are owners of contiguous estates, and where the only ques-* tion to be determined is the boundary between the two, the action is one of boundary, and regulated by the provisions of Title Book I, B,. O. O.</p> <p>2. In an action of boundary, questions of ownership are not in issue unless founded on a prescription of thirty years, and titles are referred only to establish boundaries and not as affecting ownership.</p> <p>S. Where parties derive from a common author, the elder title must be first satisfied, and when that title conveys a fixed quantity of land, the holder is entitled to take such quantity.</p> <p>i. When an owner sells from a larger tract a fixed quantity of land to be cut off from one side by a line thereafter to be fixed, the fact that lie subsequently sells a part of the same land to a third person, does not destroy his obligation to give the first purchaser his quantity, and to so run the line as to give such quantity.</p>

<p>APPEAL from the Twentieth District Oonrt, Parish of Lafourche. Onion, J.</p>

<p>. When the record contains no note of evidence we will presume, in accordance with established precedents, that in rendering judgments the judge a quo proceeded upon proper evidence.</p> <p>, Parties are neither required to have their evidence reduced to writing, nor to see to it that a note is made of the evidence which is introduced.</p> <p>3. The ascertainment of the disposable portion and of the legitime of the heirs are incidents of the settlement of a succession, and they must be fixed before it is wound up and its property turned over to the usufructuary or heirs.</p> <p>In order to determine the disposable portion of a succession, and the legitime of the heirs, the amount of donations inter vivos is fictitiously added to the property belonging to the donor at the time of his death. But if the property be held in community between the surviving wife and the deceased, and the donation be from the latter to the former, this fictitious addition of the amount of the donation must be made to the active mass of the community, and not to the donor’s separate estate. The donation can not change the character or amount of the respective rights of the spouses in the matrimonial community.</p> <p>In ease the husband, as the head and master of the community, makes, in favor of his wife, from the community property, an excessive donation, which is, on charges preferred by his heirs after his decease, reduced, and the excess ordered to be returned — Held: that this excess must be returned to the active mass of the community, and not to the donor’s separate estate.</p>

<p>APPEAL from the Twentieth District Court, Parish of Assumption. Guión, J.</p>

<p>The Supreme Court has jurisdiction over a controversy between a defendant, calling liis vendor in warranty, in a petitory action, when defendant avers in his answer that the property from which plaintiff seeks to evict him, is worth more than $2000, and ho asks judgment eventually against his warrantor for that sum.</p> <p>A judgment rendered, declaring a surety good and solvent and allowing an appellant to furnish a new bond, can not bo reviewed on a motion made in the appellate court to dismiss the appeal taken from the judgment on the merits of the controversy.</p> <p>Such first judgment remains undisturbed until reversed on appeal therefrom.</p> <p>A sheriff’s adjudication of real estate must be recorded in the conveyance oilier in order to bind third parties.</p> <p>A transfer of the property thus adjudicated by the defendant to a party, not notified of the adjudication by such registry, conveys the property to the purchaser. .</p> <p>A plaintiff in a petitory action against one in possession can recover only on tlie strength of his title and not on the weakness of that of his adversary.</p>

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

Monroe, J. A sale of separate and paraphernal property of the wife acquired during marriage, will be enforced when it is incontrovertibly established in a suit against the purchaser, that it was purchased with her separate and paraphernal funds, of which she retained the administration free from the control of her husband. The purchaser must submit to this proof and accept the title if unobjectionable.

<p>1. A citizen o£ the State of Mississippi, having instituted a suit, in the ordinary form, in a civil court in the State of Louisiana, against citizens of the District of Columbia, averring her title to an undivided half interest, in joint ownership with defendants, in a certain suit and judgment, the domicil of which is in the parish where the suit is brought, though pending on a writ of error from the United States Supreme Court — Held: that an exception to the jurisdiction of the court, ratione personce, tendered by a curator ad hoc, appointed to represent the absentee defendants, is not good; that substituted service of citation is effectual; and judgment rendered thereon will bind defendants as to the property to be specially affected thereby.</p> <p>2. In such suit, judgment is evidently sought as a moans of reaching such property or of affecting an interest therein. It is, therefore, in the nature of an action in rem, in so far as it purports to enforce a contract in reference to a specific interest in property within the ultimate jurisdiction and control of the court of first instance; and final judgment, when rendered, will be binding on the non-resident defendants, within and without the State.</p>

Coco, J. “ In relation to property, the law only regulates the conjugal association in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals and under the modifications hereafter prescribed.” C. U., Art. 2325. “ Every matrimonial agreement must be made by an act before a notary and two witnesses.” O. C., Art. 2328. “ Every matrimonial agreement can be altered by the husband and wife…

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

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

J. Wliero a person removed with his minor children from the State oí Louisiana to Chicago, Illinois, with the intention o'f acquiring a domicil there for himself and them, followed by a residence in said latter State from June —, 1885, to June H, 1889 (nearly five years), and he so continues to reside; and the said person, being the father and natural tutor, has registered and voted in said State of Illinois, and he was employed there during said period, and his children go…

PPEAL from the Civil District Court,’Parish of Orleans. Monroe, J. 1. It is the duty of a railway company, to its servants, to take dxxe care that its line, rolling stock, machinery and appliances are in a safe condition for operation.

<p>A contract purporting to bo a sale a remare, which divides the price, which was for an antecedent debt, to be returned in two instalments, and declares the forfeiture of the right to redeem on a failure to pay the first instalment due, is pigniorative in character and an antichresis.</p> <p>The mortgage rights of the creditor are not destroyed by the pledge of the im« movable to him, if they have been preserved on the property.</p>

PPEAL from the Ninth District Court, Parish of Concordia. Young, J. 1. A nuncupative testament by public act must evidence by its recitals that it vms V'ritten by the notary, and written as dictated, all to be done in the presence of the witnesses. O. C. 1578; 6 N. S. 263; 12 La. 114; 15 La. 28; 16 La. 82; 1 R. 48; 9 An. 118; 11 An. 108; 20 An. 203; 21 An. 115; 25 An. 480; 26 An. 89; 28 An. 388; 37 An. 834; 40 An. 593. 2.

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

<p>Wlien an affidavit for continuance sets forth all the essential requisites as to the names and residence of the witnesses, the character and materiality of their testimony, the exercise of proper diligence, and the ability to procure attendance of the witnesses if the trial be deferred, the refusal by the judge, who signs the bill of exceptions without qualification and without reasons, is error.</p>

<p>APPEAL from the Seventh Justice of the Peace, Parish of Natchitoches. Nash, J. P.</p>

<p>'Tlie writ of certiorari is expressly intended for the purpose of bringing up a record in some pending suit, in some subordinate court, so that a superior, or the supreme court may, upon inspection thereof, determine whether there are or not any illegalities in the proceedings, and whereby they may be rendered absolutely null and void.</p>

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

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

<p>When the forfeiture of an appearance bond has been set aside the accused stands-before the court as though no such proceeding had taken place, and it was his duty, in complying with the conditions of the bond, to appear from day to day, until the charge against him was legally disposed of.</p> <p>The ccrart had the undcrabtea right to fix a day for the trial, and in default of the appearance of the accused to enter a judgment forfeiting the bond.</p> <p>When the surety on the bond moved to set aside a forfeiture of the bond, and the District Attorney afterward files 'a like motion, and the judgment of forfeiture is set aside, the surety has no cause to complain, as all that he asked was granted by the order setting aside the forfeiture.</p> <p>The recorders in the city of New Orleans are fully authorized, as committing magistrates, to take and acknowledge bonds where the punishment is hard labor.</p> <p>The forfeiture of a bond in a criminal ease, for the appearance of the accused, is a criminal proceeding, and is to be tested alone on a question of jurisdiction by the character of the crime charged against the accused.</p>

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

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

Ellis, J. The British Mercantile Insurance Company is a foreign company, doing business in the State of Louisiana, its principal oilice is in the city of New Orleans and its agent is L. II. Terry; therefore an assessment of its gross receipts in the city of New Orleans was properly made under the provisions of Sec. 10, Act 76 of 1886.

<p>1. A mortgage creditor of a delinquent tax payer having taken executory proceedings in the foreclosure of his vendor’s lion and special mortgage, and at public auction caused the mortgaged property to be adjudicated to him, occupies just the same relation to the assessment of the property for taxes as-the mortgagor and tax payer does. Such executory proceedings are in affirmance of the taxpayer’s title, and, as adjudicatee, the plaintiff can assert no higher 2'ight than his mortgagor could have done; and the limitation which the law imposes upon the tax debtor’s right of complaint against an alleged illegal assessment is binding on such adjudicatee.</p> <p>2. The prescription of three years provided by Article 186 of the Constitution only applies to unrecorded tax liens and privileges.</p>

PPEAL from the Civil District Court for the Parish of Orleans. King, J. 1. The domicil of the husband established lona fide is the domicil of the wife, except there be legal cause to the contrary. C. O. 120; Schouler on Husband and Wife, Sec. 00; Laquiévs. His Wife, 40 An. 459; 5 X. S. 01; lAn. 313; Vcrrel vs. Bouvaillon, 33 An. 1305. 2.

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

<p>A second appeal can not be allowed from a judgment wliicli had once been appealed in its entirety and disposed of in all particulars, and in all its legal effects and bearings.</p> <p>In an appeal taken by motion in open court, all parties .to the suit who arc not appellants are appellees, and all are concluded by the judgment rendered on appeal.</p>

Young, J 1. Parol testimony to show fraud or simulation in a sale of immovable properly of an ancestor to the prejudice of forced heirs may, in a certain class of cases, be introduced, hut such evidence never can he introduced by the heirs without the consent of the adverse party to shozv title in the ancestor to such property.

<p>, 1. The jurisdiction of this court, in cases like the present, must be tested by the pecuniary amount or value in dispute according to the nature of the action as disclosed by the substantial allegations of the pleadings, and not by mere jurisdictional allegations or affidavits of one of the parties.</p> <p>2. The record shows that the pecuniary value in dispute here does not exceed $2000.</p>

J. A real tender is a condition precedent, and sine qua non to authorize a suit to rescind a sale. Where no such tender is alleged or proved the action to annul and rescind the sale must be dismissed. Farquhar vs. lies, 89 An. 874. No answer or exception is required to a demand in reconvention. The mortgagor may waive appraisement in the act of mortgage and such waiver is legal and valid. 29 An. 210; 19 An. 89; 18 An. 68.

<p>AVhere the acts and proceedings o£ a School Board are Avithin the scope of its authority, and it has examined the statement and vouchers o£ its treasurer, and approved the same and granted a discharge, they are conclusive, unless said approval and discharge were obtained on false statements and fraudulent vouchers.</p> <p>The burden of proof in a suit to rescind a settlement with a School Board for fraud is on the plaintiff.</p> <p>Although the treasurer of the School Board may have kept his books in an irregular manner, yet, if the funds in his hand were accounted for, he can not be hold liable because his books are apparently different from his settlement with the School Board.</p>

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

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

PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J. One who goes upon a freight train for transportation, with the permission of the • hrakeman, to whom he pays a sum received as fare, and by whom he is induced 38 An. 115; 4 Am. and Eng. R. R. Oases, 589. to believe lie is a passenger, is a passenger, as regards the railway company.

Bightor, J. 1. It was not intended by Act 25 of 1878 (amendatory of Act 184 of 1869, Rev. Stat., Sec. 2667) to abolish all the rules and safeguards previously thrown around the partition and sale of minors’ property. 2.

<p>The ordinance adopted by the Council of the City of New Orleans, prohibiting smoking in the street cars, is constitutional and valid.</p> <p>The police power delegated to the city in Sec. 7 of the charter gives ample authority for the enactment of the ordinance.</p> <p>There is much discretion left to a municipal corporation in determining what is a nuisance, and the exercise of this discretion will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights and transcended the authority granted to it.</p> <p>To determine what is a nuisance is a question of fact.</p> <p>The City Council of New Orleans, to a certain extent, is vested with legislative authority, and it is vested with that discretion within its authority common to all legislative bodies. Within the exercise of this legislative discretion it has authority to determine what is a nuisance, and to pass the necessary ordinances to suppress it.</p>

Bightorj J 1. The revenues of a property which belong to the owner of the property can not he seized and sold separately from the property itself. 29 An. 354. 2. Any party in interest may proceed by rule to remove anything which illegally clouds a title. 29 An. 354. 3. A writ of seizure and sale can not legally issue until three days after notice of the decree of court granting the writ has boon served on the debtor. 30 An. 84. 4.

King, J. A creditor paying for another creditor whose claim is preferable to his by reason, of his mortgage, is entitled to a legal subrogation. C. C. 2161. ieing bound with others for the payment of the debt, he had an interest in discharging it. 1. The payment of - a promissory note by or for the maker, or by one not bound for it, extinguishes the note and the mortgage securing its payment. O. C. 2134, 3411, 2161; 25 An. 438; 40 An. 351. ‘ 2.

King, J. 1. The judgment for the drainage assessments, rendered in January, 1875, in 27 An. 20, is prescribed by ten years (C. C. 3547) and the inscription thereof should be canceled in the absence of proof of revival and reinscription. 2. This drainage assessment can no longer be collected and should be erased as an illegal incumbrance on property. Davidson vs. New Orleans, 34 An. 170; Succession Patrick Irwin, 33 An. 64. 3.

<p>A PPEAL from the Eighth District Court, Parish of East Carroll. Ix Williams, J.</p> <p>Where a debt against a succession duly sworn to is offered in evidence without objection, it will be held to.bo prima facie proven. 31 An. 703.</p> <p>Equity obliges the owner whose business has been well managed to comply with the engagements contracted by the manager in his name; to indemnify the manager in all the personal engagements he has contracted, and to reimburse him all useful and necessary expenses. C. C., Art. 2299; 19 An. 494.</p> <p>Where the executor of an estate has filed an account of his administration and all the credits are admitted and all the debits denied (as in the instant case), and the account appears to be fair and reasonable, the presumption is in favor of the executor, who is an offioer of the court, and positive and direct proof of every item is not required. 19 An. 494, Succession of Wederstrandt.</p> <p>He who pays the debts of another has a right to recover from the debtor the amounts so paid. C. C., Arts. 1965 and 2999; 11 An. 400.</p> <p>No man shall profit by the labor of another without compensation. Hen., Yol. 2, p. 1282; 2 An. 147; 10 An. 395.</p>

Rightor, J. Want of jurisdiction will bo taken notice of by the court ex proprio motu at any stage of the proceedings. Harmony Club vs. New Orleans Gas Light Company. Succession of L. C. Gohs, 37 An. 429. This court has no jurisdiction over a matter or claim against a succession when the amount claimed is less than $2000, and the fund in the hands of the executrix or administratrix does not exceed that amount.

EUis, J. ■“All acts or hindrances coming from the debtor, which deprive the creditor of tlio remedy and forum contemplated at the time of contract, suspend prescription.” Boyle vs. Mann, 4 An. 170. ■“ Where plaintiff makes out a clear case of inability to sue by reason of some hindrance by the debtor, prescription can not be set up by the debtor, and will not be sustained.” Martin vs. Jennings, 10 An. 553. “ Where the debtor himself has done some act to effectually prevent…

PPEAL from the Eleventh District Court for the Parish of Natchitoches. Pierson, J. A party to an authentic act will not be permitted to establish its simulation by parol, nor to contradict the act. Thenruer vs. 'Wiesinburger, 10 An. 125. As between parties and their heirs (other than forced heirs of the vendor) the only admissible evidence of the simulation of a formal written contract is a counter letter. Hebert vs. Lege, 29 An. 511, 512.

<p>APPEAL from the Twenty-Fourth District Court, Parish of Plaque-mines. Idvaudais, J.</p> <p>Tn 1841 plaintiffs’ predecessor obtained patents from the United States for a narrow strip of land, situated on the west bank of the Mississippi river, at the Jump, in the parish of Plaquemines, known as sections 7 and 8, in township 21, bounded by the Mississippi river in front and West Bay in the rear. The deposits and overflows of the river have filled up this bay, made of it high land and united it to the main land in front.</p> <p>1. Plaintiff is entitled to this made land by right of accretion. It. C. C., Art. 509; M. 216; 10 It. 99; 10 Pet. 662; 23 Wall. 46.</p> <p>2. An island subsequently joined to the main land becomes the property of the riparian proprietor. K. C. G. 518,514, 515; Marcade, T. 2, ISTos. 437, 438,439, 440.</p> <p>3. Plaintiffs have shown possession for thirty-years, and for more than ten years in good faith, under a just title translative of property, as owners, are entitled to recover. It. O. O. 3478.</p> <p>4. An apparent good title is sufficient to authorize a judgment against a defendant who pleads a general 'denial and sets up no title in himself. 3 It. 206, 317; 5 It. 510; 7 It. 149; 10 It. 99; 12 A. 748.</p> <p>5. Actual prior possession is sufficient to maintain ejectment against a mere trespasser. 14How. 292; 5 Saw. 475.</p> <p>6. Defendant,having entered by permission of plaintiff’s ancestor, can not now question the validity of plaintiff’s title, nor change the nature and origin of his original possession, nor come in competition with those under whom he holds, It. O. O. 3441, 3446, 3514; 9 It. 215; 10 An. 542; 1 Saw. 15.</p> <p>il Islands and sand bars which are formed on the beds of navigable rivers or streams, and which are not attached to the bank, belong to the State, if there be no adverse title or prescription.” R. C. C., Art. 512.</p> <p>A person entering- land in the United States Land Office, paying the price therefor and receiving his certificate therefor, going upon the land, occupying it for fourteen years, and paying taxes on it, can not be regarded as a mere trespasser without title.</p> <p>Against such a person, plaintiff in a petitory action must recover, not by the weakness of his adversary’s title, but the strength of his own; not even in the absence of any title but that based on possession. Possideo quia possideo. 2 H. 267; 12 3r. 81; 5 L. 178, 188; 10 L. 351; 14 L. 14; 1 R. 242, 378, 421; 12 R. 371; 2 An. 246; 13 An. 114.</p> <p>To recover in a petitory action, plaintiffs must show title and make it out satisfactorily both as to title and identity. 10 31. 293; 12 K. 46.</p>

Ellis, J. Acts 151 and 115 of the General Assembly o£ 1888, relating to building companies or homestead associations, are unconstitutional and void. 35 An. 682,1141.

King, J. A street railway obligating itself to keep in good repair and condition the bridges along its line, is responsible for an injury caused a person by a breach of this obligation. 2 Rorer on… Held: that the company were not liable in damages to the owner of the property destroyed. 83 Am. Rep. 1, Nickerson vs. Bridgeport Hydraulic Company.

<p>APPEAL from the Oivil District Court for the Parish of Orleans. Jábíwoe, J.</p> <p>A rule taken against an under tutor is not the proper proceeding- to obtain the-appointment of a dative tutor and under tutor to a minor when family meeting convened for the purpose of advising said appointments has failed to agree in their deliberations.</p> <p>2. A family meeting in deliberating- has the prerogatives of a legislative assembly; it is ruled in its deliberations by an absolute majority, and not by the-minority. Laurent, Droit Civil, Vol. 4, p. 573, See. 461; Demolombe, de la Minorite, Vol. 1, pp. 186, 187; Mareado, Vol. 2, p. 309, Sec. 39.</p> <p>3. An under tutor, appointed and qualified as such, under C. C. 251, at the instance of a mother claiming confirmation as natural tutrix, can not he removed by an ex parte order of the court from which said appointment emanates, on the-plea of error or prematurity. lie can only bo removed by a direct action. C. O. 306; C. P. 1017.</p> <p>4. Court has no power of appointing a dative tutor under Art. 270, C. C., exproprio 'mota, and without the advice of a family meeting. Art. 271, O. 0., has no application, because some one is claiming and willing to accept the tutor-ship of the minor.</p> <p>cited: C. O. 270, 271, 307; C. P. 957; Demolombe, Yol. 7, 183, et seq.</p>

<p>Act No. 183 of 1888, which authorizes mandamus proceedings to coerce specific performances of contractual obligations in certain cases, is not unconstitutional.</p> <p>It is a general statute, remedial in character only, divesting no vested rights and impairing no obligation of contract.</p> <p>The want of necessary explanation on the part of an obligee, who imposed the conditions which were accepted, will not, when the terms employed are obscure and equivocal, aggravate the burden of the obligor; but the construction most favorable to the latter should be adopted; the more so when the construction is in accord with the mode of execution of the contract by the parties.</p> <p>A street is a space dedicated to public use, for the passage and circulation thereon of ordinary driven vehicles and animals, in cities and towns.</p> <p>A neutral or middle ground is a strip of land extending betweeu the streets, or thoroughfares, which is not only not used, but prohibited from being used, as a street, and which, not being thus used, does not practically form part of the street proper.</p> <p>Under a contract by a city with a railroad company, giving right of way, that the latter shall keep in good order and condition, from curb to curb, the streets, intersections, bridges, etc., through which its tracks pass, it can not bo claimed that the company is under the obligation of keeping in such condition streets on which its tracks do not pass and which extend alongside of, and border on, middle or neutral grounds, dividing them, comprised between curbs or external linos, and which do not form part of thoroughfares, on which vehicles usually circulate.</p> <p>The obligation exists only as to such streets and spots on which the tracks actually pass.</p>

PPEAL from the Civil District Court for the Parish of Orleans. King, J. Defendant, having a fixed place at which there are nightly given singing, dancing and variety performances, mimic and character acting and exhibitions, and vocal and instrumental concerts, is liable for a State license of $1000 per annum under Section 10 of Act 101 of 1886. State vs. O’Hara, 36 An. 93; State vs. Schonliausen, 37 An. 42. 1.

<p>An indictment under a statute must set forth the particular facts and circumstances which, under the terms of the statute, are essential to constitute the crime charged.</p>

<p>APPEAL from the Fourth City Court for the Parish of Orleans. Marr, J.</p> <p>1. Publishers of newspapers, though not specially referred to by name in the license law, Act 101 of 1886, are, nevertheless, taxable under See. 12 of that act, which section fixes a rate upon “ all business not herein provided for.”</p> <p>2. A newspaper publisher is not a manufacturer. 3 McArthur 412; 1 Utah 47; Norris vs. Commonwealth, 27 Penn. 496.</p> <p>3. Words used in á constitution must be taken in their ordinary sense and meaning. Cooley Const. Lim. 58; 5 Md. 337; 32 Miss. 650; 5 Ind. 570 ; 34 Barb. 137; 9 Pick. 310; 4Vt. 540; Story on Const., Sec. 453.</p> <p>4. The fact that the constitutional amendment of 1888, extending the term of exemption, adds several industries to the favored list, shows that the list, as fixed in the Constitution, was intended to enumerate and not tq illustrate the enterprises which are exempt.</p> <p>5. Exemptions are to be construed strictly. Cooley Const. Lim. 61; 381-397; 528-529.</p> <p>cited: 34 An. 596; 35 An. V47; 35 An. 825; 35 An. 1154.</p>

Marr, J. cited: 30 An. 1323; 41 An. 191; Knobloch Crim. Dig. 94. 1. The essential feature of murder is malice. There can be no murder without it. 2. What the law punishes is not killing, but particular modes of killing, and these must bo averred and proved. Whart. on Horn., Chap. 20, Sec. 669; 30 An. 1823. 8. A crime is made up of acts and intents, and these must be set forth with reasonable particulars of time, place and circumstances.

PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J. “ When two or more are jointly indicted for murder, evidence tending to show a conspiracy between them is admissible although the indictment does not expressly charge a conspiracy in formal terms.” 37 An. 443. In a conflict of statement between court and counsel that of the court will be accepted. A motion in arrest of judgment only lies for defects apparent on the face of the record.

PPEAL from the Twenty-first District Court, Parish of Iberia. Mouion, J. On (lie question oí perjury, tlie materialty oí tlio facts testified to is a (jucstion oí law. Archbold, 172K. Tlie indictment shows conclusively, that the alleged false testimony given by the defendant was material to the issue upon which he was examined as a witness. If it is not material to the issue, it can not by any means induce the judge to give judgment one way or the other.

<p>A PPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.</p> <p>“ The proem verbal of the coroner's inquest is admissible for the restricted purpose of showing the fact and cause of death.” 39 An.*419.</p> <p>Self serving declarations made after traveling half a mile from the scone of the homicide can not bo taken as part of the res gestee.</p> <p>This court will not interfere with the enforcement of reasonable rules made by the • lower court for the purpose of expediting business. Conviction for a minor included in a major crime responsive to the verdict.</p> <p>J. The charge irfthe indictment, and not tlic verdict of the- jury, determines the* right of appeal.</p> <p>2. Under an indictment for murder, a verdict of “ guilty of an assault with intent to hill ” is fatally variant.</p> <p>3. The two offences are separate and distinct crimes, which could not be joined the same count of an indictment.</p> <p>4. The trial judge must charge the jury in writing, if requested by the counsel of either imrty, in all cases appealable to the Supreme court. Const, of 1879, Art. 81; 33 An.1227; 37 An. 200; 34 An. 977; 26 An. 599; 35 An. 535; 37 An. 729, 785.</p>

Buchner, J. Bill of indictment need not contain an exact copy of the forged instrument. 41 An. 318. Verdict of the jury not invalidated by a clerical error. 34 An: 370. cited: State vs. Sheldon, 8 Rob. 542.

cited; 41 An. 584. 1. In cases where persons are charged with the crime of rape,' statements made to third parties by the prosecuting witness, two hours after the commission of the alleged offence, that the accused was the party who committed the alleged offence, is inadmissible against tlie accused to prove his identity. State ys. Robertson, 38 An. 618. 2.

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

<p>A PPEAL from the Thirteenth District Court for the Parish of St. ÍX Landry. Lewis, J.</p>

King, J. 1. Express companies are common carriers.■ Hutchinson on Carriers, Sec. 68; Red-field on Carriers, Sees. 47,64; Anderson’s Dictionary of Law, verb. “ Express Carriers.” So. Ex. Co. vs. Cook, 44 Ala. 473. Courts take judicial notice that express companies are common carriers. AVells, Jfargo & Oo. vs. Cook, 16 Am. and Eng. Ry. Cases, 71. 2.

Monroe, J. 1. Act 4 of 1882 was intended to and prof esses to obliterate all distinction theretofore existing in the attitude of a divorced wife and a widow in community and heir, in regard to the community dissolved, irrespective of cause of dissolution. 2.

Voorlvies, J. Tlie shares of stock of banks and of corporations “whose stock is represented by shares,” must be assessed to the shareholders at their cash value, deducting from the share the pro rata of direct taxes paid by the bank, and with no deduetion'for United States bonds or other tax exempted securities held by the bank. Act 1888 No. 85, See. 6; 24, See. 90; par. 1, Con. Art. 203, Shreveport Bank vs. Board of Reviewors, 41 An. p. 1.

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

Monroe, J. 1. None of the authorities cited by counsel for the defence or by the judge below are in point. 2. The authorities of Assistant Oity Attorney and said judge would apply only in case the batture in question was public property, out of commerce and incapable of ownership or in the possession and administration of the city for use of the public. 3.

Rightor, J. A resulting trust arising by operation o£ law exists when an estate is purchased in the name of one person, and the consideration comes from another. 2 Atkyn Itep. 150. Where a person standing in a fiduciary relation uses fiduciary funds to purchase property, takes the title in his own name, there arises instanter, a resulting trust, Perry on Trusts (ith Ed.), par. 127; 69 111. 137.

<p>APPEAL from the Civil District Oourt, Parish of Orleans. King, J.</p> <p>1. In eases of contributory negligence the burden of proof is upon defendant. Am. and Eng. R. R. Cases, Vol. 31, p. 176; Vol. 23, p. 317; Vol. 28, p. 341; Vol. 29, p. 495; Vol. 24, p. 395; Vol. 29, p. 297; Vol. 19, p. 220; Vol. 28, p. 360; Vol. 15, p. 414; Vol. 14,p. 670.</p> <p>2. It is not contributory negligence per se to engage in a dangerous occupation. Knowledge does not necessarily constitute contributory negligence. One may exercise due care with full knowledge of the danger to which he lawfully exposes himself. If the danger is so glaring that, with the utmost skill and prudence, the danger is still imminent, it is contributory negligence for one to expose himself to it; but it is not so, if the danger is such that one maybe reasonably expected to avoid it by the exercise of skill and prudence. Beach Contrib. Nog-., See. 139, p. 370 ; 4 So. ltep., pp. 146,148; Roach Contributory Keg., See. 12, p. 40; 62 Mo. 35, 39,232; 65 Mo. 514; 20 Minn. 9,19; 78 Mo. 195; 82 N. Y. 370 ; 3 Col. 499; 110 Mass. Pord; 59 Mo. 495 ; 42 Wis. 584 ; 8 Allen 450; 146; 4 So. 62 Mo. 35; G5 Mo. 514.</p> <p>3. Ii llio employer carries on his operations in a dangerous and recklessly negligent manner, and the employe is injured thereby, the latter is not precluded from recovery, even though he had lull knowledge oí the manner in which the operations were conducted. 4 South Hast. Rep. 211.</p> <p>4. Slight negligence on the part of the employe will not bar recovery where the 'negligence of the employer has been comparatively much greater. 36 Wis. 92; Beach 21; 73 111. 236.</p> <p>5. Wlioro the employe acts upon a reasonable supposition oí safety induced by the employer, when there is in reality danger, the employer is estopped to set up that his employe’s conduct is negligence. Reach Contrib. Keg., See. 23, p. 71.</p> <p>0.The rule of proximate cause has no application to cases where the contributory negligence complained o£ is not an act contributory to the injury, but is simply knowledge. Reach Contrib. Nog'., pp. 7, 26, 35.</p> <p>1. This case is governed by the decision in Casey, Tutrix, vs. Sellers & Co., 41 An. 500 — the death oí Pollieh having boon caused by the same accident that caused the death o£ Casey; Pollieh and Casey being fellow-workmen in the same gang.</p> <p>2. The defence of Contributory Negligence finds in this ease the additional support that the placing o£ the wire guys under the row of trusses, which were liable to fall, was known to X’ollicU, and was tlio act of himself and his fellow-servants.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.</p> <p>cited: 13 La. 215; 32 An. 109; 34 An. 1121; 14 Peters 321; 26 An. 556; 28 An. 70; Daniel on Negotiable Instruments, p. 589, sec. 782; 7 Wall. 736; 10 Wall. 68; 31 An. 217; 21 Wall. 146.</p> <p>1. An obligation remainsnnmatnrecl when same lias been extended until the expiration of the third day of grace after the last extension. 52 Mississippi 506; Sagory vs. Traders’Bank, Court of Appeals.</p> <p>’2. The owner of property who has conferred upon another an apparent title to or power of disposition over it is estopped from asserting his title against innocent third parties. 46 New York 325; 55 New York 41.</p> <p>3. Where one of two innocent parties must suffer a loss through the misconduct of another, the loss should fall upon him who put it in the power of that other to inflict the injury. 27 An. 45.</p>

PPEAL from the Civil District Court for the Parish of Orleans. BlliSj J. Whenever rights of property and of enjoyment of industry are illegally and unconstitutionally invaded by municipal ordinances, civil courts have primarily jurisdiction. 1.

Rightor, J. 1. Where plaintiff alleges upon a contract claiming to have overpaid a builder for-work done under this contract, and defendant reconvenes, alleging the nullity of the contract by reason of alterations and additions to thebuilding, and claiming, therefore, as upon a quantum meruit, the burden of proof is upon the intervenor to show (a) the abrogation of the contract, (b) the extent of the alterations, and (c) the value of the same. 2.

King, J. cited: 38 An. 759; 33 An. 469; 35 An. 297. Although a purchaser may be protected by the order of court directing a sale in a matter over which it has. jurisdiction, yet he has the right to inquire into the validity of the proceedings had conducive to the order of sale to ascertain whether, under the showing made, the court had the power to make the order 40 An. 574.

<p>ON THE EXCEPTION.</p> <p>The clerk of court can not be hoard to urge the non-approval of the minutes by the trial judge, when it appears from the record that the accused was convicted, sentenced, judgment signed and an order of appeal granted and entered, on the minutes. Acts 1878; p. 56, R. S. La., Sec. 1002.</p> <p>An order of appeal does not derive its juridical life from the mere fact of the approval of the minutes by the trial judge at the adjournment of court, but the right of appeal accorded to the accused by the order is operative, and can be enforced from the moment of the rendition of the order and of its recordation on the minutes of the court. 38 An. 542.</p> <p>When, owing to illness of the trial judge, the minutes of the term of court have not been approved, a convicted accused to whom an order of appeal has been granted in open court, and entered on the minutes, after judgment signed, can not be prejudiced thereby, and the order of appeal is sufficient notice to the clerk to make out and forward the transcript according to law.</p> <p>ON THE MERITS.</p> <p>The clerk can not exact prepayment of cost for making transcript or security therefor. 23 An. 762; 22 An. 563, 578, 585, R. S., 1001; Acts 1878, p. 56.</p>

Drew, J. 1. “ The forfeiture of an appearance bond is a criminal proceeding, and the appeal from the judgment of forfeiture is not to be tested by the rule applicable to civil actions.” 37 An. 200; 38 An. 263,542; 41 An., State vs. Oornig. 2. “The sureties on a bond, which was given for and’procured the release of a prisoner charged with a criminal offence, can not gainsay its regularity, or the regularity of the proceedings in which it was obtained.” 30 An. 628. 3. “'When…

<p>APPEAL from the Fourteenth Judicial District Court for the Parish of Calcasieu.</p>

Murphy, J. cited: 5 N. S. 91; 37 An. 294; 33 An. 652; 38 An. 836; 4 La. 471. Where a certiorari has issued to complete a record, and a reasonable time for the service of the writ and the return of the record has elapsed, and the appellants have neglected to taire out and serve the writ, the appeal will be dismissed.

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

Ellis, J. Although mandamus does not lie to compel the Board of Liquidation to fund the obligations of the State, because said board have some discretion as to funding or not funding, the writ clearly lies to compel the board to‘meet and pass upon the application of a bond holder, by either granting or rejecting the same. High on Mandamus, Secs. 823, 24, 84, 46, 48; Oliver Vs. Board of Liquidation, 40 An. 321; State ex rel. Porstall vs. Same, 29 An. 693; State ex rel.

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

Monroe, J. Where the sole object of a suit is to procure an injunction, attorney’s fees for the whole'case may be recovered by the defendant in a suit for damages against the plaintiff in injunction. Cost of printing briefs are items of damages. Expenses of furnishing substitute for steam power, use of which is enjoined, are direct consequences of the injunction, and are recoverable as damages, on dissolution of the writ.

<p>Tlio amendment; to Art. 207 of the Constitution, the adoption of which was promulgated 12fch May, 1888, did not operate retroactively, and exempt property from taxation for the year 1888, assessed under the Revenue Act of 1886. The property so assessed owed the tax from the completion of the assessment rolls on the 31st March, 1888.</p>

King, J. PPEAL from the Civil District Court, Parish of Orleans. The carrier can not excuse a negligence, which caused the upsetting of a coach in a ditch, on a fanciful theory that if signals had been given and train stopped the coach possibly would upset in a coulee. Reynolds vs. Texas Pacific Railway, 37 A. R„ p. 694; 38 A. R. 118; 102 IT. S. R. 451. Where the carrier prepares models to illustrate and explain the accident, they should be complete.

PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. 1.

Bightor, J. 1. A railroad company is liable for injuries to its servants in consequence of indifference or neglect in furnishing proper and suitable machinery or apparatus for the performance of the duties required of employes. Hough vs. R. R. Co., 100 U, S. 22S; Wood on Negligence, pp. 681,213,738,753; Thompson on Negligence, p. 975. 2.

Rost, J. 1. A person investing money of another and receiving therefor an obligation in his- own name as attorney, may institute legal proceedings in his own name thereon for the benefit of his principal. 4 N. S. 481; 5 It. 478 ; 2 La. 264; 12 An. 298; 9 An. 70; HAn.113. V. 3 N. S. 291, 392; 4La.219; 2An.441; 4An.350. 2.

<p>APPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>cited: Hutchinson on Carriers, Secs. 468, 678, 701, 715, 718; Wood on Railways, Vol. 3, 1521; Lawson Rights, Remedies and Practice, Vol. 4, Sec. 1947; 36 Barbour 560; 74 111. 119; 12 Wall. 262; 67 N. Y. 212; 23 Maryland 409; 35 An. 15.</p> <p>cited: 2 An. 129; 4 An. 261; 1 Rob. 292; 9 An. 119; 18 An. 660.</p>

King, J*. 1. In a contest between two beneficiary heirs present in the State for the appointment of administrator of the succession, the choice is left to the sound legal discretion of the judge. He may appoint two or one as he sees fit. Succession of Bernard, 3 An. 566; Succession of Valery Martin, 13 An. 557. 2. An emancipated minor under Art. 385, O. 0., has an equal right to the appointment as a major heir.

Bilis, J. The property of the principal can not he pledged by the factor for his own use or debts, whatever the form in which the pledge is attempted to be made. Sec 2d Kent’s Commentaries, S. P. 626; Iladwin vs. Fish, 1 An. 74; Ibid. 379; Bonnot vs. Fuentes, 10 An. 70; Miller vs. Schneider, 19 An. 306; Young vs. Scott, 25 An. 313; Allen vs. Banh, 120 U. S. 33.

<p>A verdict, “guilty of wounding less than mayhem,” is responsive to an indictment charging that the accused has “wilfully, maliciously and feloniously inflicted with a dangerous weapon on O. a wound less than mayhem,” and is good.</p> <p>The ruling in State vs. Watson, 41 An. 599, has no hearing. It was.niade in. a case in which the charge was that the accused hud feloniously, etc., the words wilfully and maliciously, found in the statute, having been omitted and replaced by the previous one.</p> <p>Where an indictment contains two counts, and the verdict is guilty of the lesser offence, it will be sustained.</p>

<p>In cases of appeals taken by petition not filed in open court in presence of adverse party, citation is essential.</p> <p>Tlie law requires appellant to furnish the necessary stamps for the citations of appeal and when, owing to his failure so to do, the citations are not issued and served, this is imputable to his fault.</p> <p>Want of citation imputable to appellant’s fault entails dismissal of appeal.</p> <p>Appearance of appellees in lower court to urge dismissal of appeal before the return day thereof does not operate a waiver of citation.</p> <p>The law requires the appellees in this court to file all their grounds for dismissal of appeal within three days; hence, provided they plead want of citation as the fast ground, it will not be waived by the subsequent addition of other grounds.</p> <p>An appellee has a right to urge, on a motion to dismiss, want of citation and other grounds.</p> <p>All the grounds, in the same appearance, must be considered as urged in the alternative.</p> <p>By relying on the grounds supplementary to that of want of citation, the appellee does not waive the first ground of such want.</p> <p>Were he required to urge want of citation alone and remitted to the other grounds in case of the overruling of the first ground, he might come too late afterward.</p>

Lewis, J. A motion to recuse a judge can not be tried by the judge sought to be recused. It is bis plain duty to ref er tbe matter to some judge ad hoc. 33 An. 1293; 37 An. 253; 38 An. 217; 39 An. 995.

. King, J. 1. The defendant in executory process who alleges under oath that the debt on which executory process issued is extinguished in some legal manner (e. g., by compensation) is entitled to an injunction without bond. C. P. 738, 739, 710; Corner vs. 7,untz, 11 An. 861. 2. The defendant in this case filed an answer alleging under oath that the mortgage notes sued on wore extinguished by compensation and praying for an injunction without bond.

<p>The capital, machinery and other property employed in the manufacture of cordage, rope and twine is exempt from taxation.</p> <p>Temporary interruptions in the operations of the factory employed in manufacturing articles enumerated in Art. 207 of the Constitution, do not subject the property and machinery employed therein to taxation.</p> <p>Where the factory is leased, and the object of the lease is to prevent the manufacture of the articles required to be manufactured to exempt either property and machinery from taxation, the object of the lease is in direct opposition to the declared purpose of Art. 207, and the property and machinery become subject to taxation. State taxes, privileges and mortgages for the years 1883 and 188á are prescribed by live years, under Act 96 of 1882.</p>

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

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

PPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J. A confiscation decree and sale under the Act of Congress of 17th July, 1862, to confiscate the life estate of certain offenders, does not disturb the mortgages on theproperty. Act of Congress, 12th Statutes at large, p. 589; Bx parte Lange, 18 Wall. 177; Hatter of Macuard, 20 Wall. Ill; Avegno vs. Schmidt & Ziegler, 85 An. 585.

<p>1. The authentic act makes lull proof between the parties thereto, and in absence of fraud, error, violence or other matter affecting the consent, the parties to such acts can only assail their verity and i-eality in two inodes, viz: 1. By a counter letter. 2. By the answers of his adversary to interrogatories on facts a.nd articles.</p> <p>2. When the plaintiff, having no counter letter, proceeds imlimine to probe the conscience of the defendant by evoking his answers to interrogatories, such answers stand as part of the pleadings, and if they are destructive of plaintiff’s action, an exception of no cause of action will lie.</p> <p>3. Though answers to interrogatories on facts and articles may generally be contradicted; yet. when evoked in such a ease as a substitute for a counter letter, to prove what could otherwise be proved by nothing but a counter letter, such answers can not bo contradicted by anything but a counter letter.</p> <p>4.Plaintiff, liaving no counter letter, is bound to stand either on tlio authentic act or on defendant’s answers, and either of these being destructive of her action, it is to the interest of both parties that the litigation should be terminated at once without useless costs and delays.</p>

Foo?’Mes, J. A policy of insurance on the life of the husband, issued in favor of the wife, can not be surrendered by the husband, and if the surrender is, notwithstanding, accepted by the insurance company, and a new policy issued, payable to the creditor of the husband, the wife’s right will be unaffected, and the company will be liable to the wife on the death of the husband, the same as if there had been no surrender.

Balcer, J. If the 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. 11 An. 328. Application for new trial must be sworn to. 37 An. 1. The evidence upon which a motion for anew trial was denied by the court below can not be considered an appeal, unless brought up by a bill of exceptions. 39 An. 780 ; 38 An. 581.

<p>The Constitution authorizes the expropriation of lands for railroad necessities, on previous payment of the value thereof, and of damages, where any have been sustained.</p> <p>Intere,st is allowable on the amounts allowed as the value, from judicial demand, where the company has taken possession, and has not paid prior thereto; but on the damages only from judicial liquidation.</p>

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

Hieles, J. 1. The issues are confined to the defendants’ motion and pleas in bar. Trans. 6,7,8. 2. The bill of indictment is legal and perfect; so admitted by the State by his demirrer. See also State vs. Dopas, 31 An. 487; Statevs. Johnson,34An.48; State vs. Brown, 35 An. 1058; State vs. Morgan, 89 An. 214. 3. The issue is legal and perfect by plea of not guilty. See Trans. , 4.

<p>Where the record in a crimiual case presents neither bill o£ exception, motion to quash or in arrest, nor assignment of errors, and there is no error patent on the face of the record, the judgment appealed from will be affirmed.</p>

<p>■The defendant having authorized his attorney to abandon the appeal if he thought that the judgment would bo aflirmed, the attorney having informed him that in his judgment such would be the result, and having abandoned the appeal, not having executed a bond or taken up the case on appeal, the counsel representing the plaintiff having been informed by the counsel representing the defendant at the time that the appeal had been abandoned and the judgment acquiesced in, the property, to recover which a petitory action had been brought, having been delivered to plaintiff by defendant’s counsel, and the defendant never having objected to the change of possession, rent dues on the place at the time judgment was obtained having been paid to plaintiff by defendant’s lessee, in accordance with the direction of defendant’s agent:</p> <p>Held, that there was acquiescence, and that the judgment has been executed and the right of appeal is lost.</p>

<p>APPEAL from the Eighth District Court, Parish of Madison. Montgomery, J.</p> <p>1. Revenue Act of 1871 governed tlie assessment and collection o£ taxes (subject to amendments of 1872, 1873, 1874, etc.) until the passage of the General Revenue Act of 1877. See these acts and 39 An. 1007.</p> <p>2. No dead was over required to evidence a forfeiture to the State, under any revenue act passed during existence of Constitution of 1868, unless under those acts authorizing collection by suit.</p> <p>3. An assessment of property to a succession, where there was nothing to show the assessor that the succession had been closed or that the heirs had taken possession, is valid. Brown & Learned vs. Kent, 38 An. 807.</p> <p>4. An unimportant, unauthorized recital by a tax collector in a tax deed, though erroneous, will not affect the purchaser’s title. Reference to a former title in an act of sale, though that former title he defective, will not operate against the purchaser or affect his good faith unless it be proven dcliors the act that the purchaser had knowledge of the defect or informality in theformer title. 38 An. 885; 3 R. 223.</p> <p>5. Prescription runs against and in favor of the State. O. 0., Art. 3521; 9 An. 141; 30 An. 1262.</p> <p>6. No action can he brought to invalidate a tax title more than three years old, and a former owner can not deprive the purchaser of tile benefits of the pica of three years’ prescription by wrongfully attempting to take possession of the property and forcing the purchaser into the position of a plaintiff. Acts 1874, No. 105; 39 An. 406-1003.</p>

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

PPEAL from the Fifth District Court for the Parish of Ouachita. Richardson, J. Where there is no reeonventional demand, judgment, not final, but of non-suit only, can be rendered against plaintiff who fails to appear personally or by attorney the day fixed for trial. O. P. 536; 3 An. 660; 1 An. 176, 210, and 36 An. 288. Definite or final judgments are such as decide all the points in controversy between the parties. C. P. 539.

Barksdale, J. 1. A judgment rendered without citation is an absolute nullity. 36 An. 16!); 38 An. ‘2. The only way that a party can waive citation is in writing, on the hack ot the original petition delivered to the clerk, that he acknowledges that the petition has been duly served on him. 0.1’., Art. 177. 3. A waiver o£ citation and confession of judgment on tlienote is not such a waiver as is contemplated by law. G. 3?., Art. 177.

<p>The case of State vs. Harper, recently decided, governs this ease.</p>

Bridger, J. 1. On the trial of an exception of no cause of action coupled with a plea of prescription, where the court refuses to sever or to refer to the merits, the allegations of the petition are taken as true for the purposes of the trial of both exceptions, and the oxius probamcli is upon the party pleading' the exceptions. 2.

Richardson, J. PPEAL from the Fifth District Court, Parish of Ouachita. 1. Municipal corporations have only such powers and duties as are conferred in their charters or necessarily result therefrom. Dillon, Yol. 1 (3d Ed.), pp. 115 and 118. 2. Power to repair does not include a power to erect a new building. Dillon on Mun. Corp. (3d ICd.), See. ,140, p. 166; 17 X. Y. 449 ; 2 Cal. 289.

<p>When in a contract of partnership between a wife and a third person, it is stipulated that the wife’s husband shall represent the wife in all partnership business, and that his acts shall be binding on the firm “the same as if he were a member of said Arm,” such stipulation vests him with all the powers of a partner, and his signature of the Arm name to notes given in the business of the Ann is as binding as if signed by a partner.</p>

<p>1. Section 12 oí Act 101 oí 1886, the license law ol that year, which provides an annual license ior every individual carrying- on the business or profession of master builder, or mechanic who employs assistance, does not contravene the provisions ol Article 206 of the Constitution, which exempts from the payment of a license tax those who are engaged in mechanical pursuits.</p> <p>2. The law imposes a license on those persons who carry on any of the businesses, callings or professions therein enumerated, such as contractors, master builders, and the like; and the Constitution exempts those persons who aro engaged, in mechanical or manual labor.</p>

BAehardson, J. 1. It is the duty of railroad companies to provide for their passengers and employes a saforoad bed, with sound cross ties and substantial rails well and safely fastened down, and to keep their track in good repair. And any neglect to do so renders them liable for all damages caused thereby. Wood on Railways, Vol. 2, pp. 1095, 1096 and 1097, and note and authorities cited; Vol. 3, p. 1466, 1469 and notes, 21 Amor. Rep.

Landry. Brooks, J. Motion to Dissiiss. 1. A certificate which does not certify that the transcript includes all the proceedings, evidence, and testimony is defective. 10 M. 670 ; 8 L. 295, 446, 454 ; 2 N. S. 67; 7 L. 337; 14 L. 265; 171.. 27; 1 All. ISO; 3 All. 592; UAn.644; 4 An. 487; 10 An. 180; 11 An. 604; 12 An. 082. 2.

<p>A PPBAL from First Justice of the Peace, First Ward, Parish of St.. Landry. Brooks, J.</p>

<p>A tax payer who petitions for the passage of an ordinance levying a special tax; who has so acted in advancement of his own interest, and who has secured advantage from the passage of the ordinance, upon which other parties have acted, is estopped from setting up the illegality and unconstitutionality of the tax as a defence against paying it.</p>

A PPEAL from the Fourteenth District Court, Parish of'Calcasieu, il Read, J. Statements not contemporaneous with the act, or near enougn to be probably prompted by the same motive and apparently to constitute a part oí it, are incompetent and inadmissible. 1 Bish. Or. Pro., Sec. 1086.

Mouton, J. 'When defendants are alleged to have combined to commit a tort, there is no misjoinder. Nor when all parties to an act of sale and transfer, sought to set aside, are made parties to the suit. The call of a co-defendant in warranty by a defendant is not litis penitence. 21 An. 121. -One who has dealt with a company as a corporation may, according to circumstances, be estopped from denying its corporate existence.

John the Baptist. Rost, J. 1. In an indictment for shooting (while lying- in wait or otherwise), with intent to commit murder, the intent must be described in terms which would be sufficient, in case the act had resulted in death, to sustain an indictment for murder. State vs. Green, 36 An. 99, and authorities there cited and reviewed. 5!.

<p>In tlie absence of satisfactory evidence on a pivotal question of fact, the ease will be remanded, in furtherance of the ends of justice, for proof on the material, point.</p>

John the Baptist. Rost, J. 1. Two distinct offences may be charged in thesame information, provided they are charged in separate counts. Bishop Orim. Prac.,Sec. 189e£$e % Nor is iteven necessary that they'should be of the same class in order to justify their location in the same indictment (information), provided each is placed in a. separate cotmt.

Mary. Allen, J. Though a child of tender years be upon a railroad track, through the fault or negligence of his parents, and so be improperly there, yet if he be injured through the negligence of… Held: that there was no want of duo care on the part of mother or child. Marsland vs. Murray, 18 N. E. Reporter 680 (Mass.).

Coco, J. judgment of the Supreme Court can not be executed until it has been recorded in the records of the District Oourt. C. P., Art. 619. The minute book is the record referred to in Art. 619. It is that book which shows the history of a ease. In the suit at issue the minutes show that a judgment was rendered and an appeal taken to the Supreme Court.

<p>When a creditor, claiming* a vendor’s lien on certain goods lie and other creditors of a common debtor have attached, files an appearance in his own attachment suit claiming a ^preference on the proceeds thereof over the other attachment creditors, who are cited therein as defendants the amount of tlie proceeds of the particular property which is affected with the vendor’s lien, will control the jurisdiction of the cause in this court. It is only when a fund exceeding $2000 is sought to be distributed, and where the court acting intra and not ultra petitum, can direct tlie distribution of such fund. Whether it does so actually or not is immaterial, the Supreme Court has appellate jurisdiction.</p>

Coco, J. Redeemable sales unaccompanied by delivery, the consideration of which is inadequate, the courts are hound to consider, without sufficient evidence to the. contrary, as contracts in which the thing nominally sold stands as security and nothing else.

<p>No appeal will lie to the Supreme Court from a judgment against a party for failing to work the public roads in pursuance of Act 112 of 1880, rendered by a justice of the peace. This is a State and not a municipal law. There is, therefore, no fine, forfeiture or penalty, the constitutionality of which is involved, imposed by a municipal corporation.</p>

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

<p>cited: ■O. 0., Art. 8556; 86 An. 15; 10 Blatchford 260; 26 An. 66; 7 An. 572; 16 La. 174; 29 An. 297; 12 La. 137; 38 An. 49.</p> <p>cited: C. P. 754, 755, 756; Cross on Pleadings, 447, 453; 38 An. 329; 40 An. 365; High, Legal Rem. 140, 141; 39 An. 341; C. O., Art. 3556.</p>

PPEAL from the Twenty-first District Court, Parish of St. Martin.. Mouton, J. 1. The adjudication to the State in 1886 for the taxes of 1885 was anullity. Plaintiffs had paid-all the taxes for that year, prior to the adjudication, on the lands, owned by, and assessed to, them. Desty on Taxation, 812, 815; Bennett vs. Hunter, 9 AVall. 326; Atwood vs. Weems, 99 U. S.; (Justus Lee vs. Kaufman et ais., 106-U. S. 2.

PPEAL from tlie Twenty-first District Court Parish of Iberia* Mouton, J. Unconditional heirs may institute real action, in their own name, for the protection of the estate and of themselves. They are necessary parties. The administrator may or not be made a party.

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

PPBAL fi’om the Nineteenth District Court, Parish of St. Mary. Allen, J. When a judgment creditor seizes property as belonging to his judgment debtor, but the title to which stands in the name of another, he assumes the burden of showing simulation. 25 An. Ill, Pierce vs. Clark. A possessor of property is not bound to prove the verity of the sale attacked for simulation; the burden of proof is on the party attacking. 21 An. 617, Sellers vs. Sellers.

A PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J. 1. There is a personal obligation on the part of an adjudicatee to pay the proportion of the purchase price due to the owner of a concurrent mortgage or privilege. C.P. 708; 7R. 44-402; 16 L. 163; 5An.306; 23An. 546; 24 An. 382; 14 An. 147; 7 N. S. 381. ' 2.

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

<p>In an action to cancel the recordation of claims to real estate, based upon a contract, no judgment can be rendered, unless all the parties thereto are made defendants. Citation to one only is insufficient. Courts can not be required to decide cases piecemeal, or expose themselves to render contradictory or unavailing judgments.</p>

PPBAL from the Thirteenth District Court, Parish of Acadia. Lewis, J. Mr. Pierce, in his work on Railroads, pp. 283, 284 and 285, says: Liability of the company for injuries committed by lessees and others using its tracks and liability of lessees. — The company can not, in the absence of special statute authority and exemption, divest itself of responsibility for the torts of persons ope2*atmg its road by transferring its corporate powers, or leasing the road to them.

Blackman, J. Police juries are political corporations whose powers are especially defined by the Legislature, and they can legally exercise no other powers than those delegated to them.

A PPEAL from the Thirteenth District Court, Parish of St. Landry. J- *- Lewis, J. A judgment is to be interpreted according- to the natural and legal imports of the terms. 12 An. 156. Where the terms express or imply a stay of execution, the creditor can not disregard them and issue execution. A premature execution and seizure of his property entitle the debtor to damages. A tender by a defendant is an acknowledgment of his indebtedness.

PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J. 1. Where it appears that there are debts, and some of the heirs are minors and some of age, a succession should be provided with an administrator. 2 An. 412; 4 An. 561; 10 An. 534; 6 L. 212. 2.

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

APPEAL-from the Twenty-fifth District Court, Parish of Lafayette. Edwards, J. 1. Held: that he is entitled to compensation for the value of his Services up to the time of his discharge, and that in estimating the value reference should be had to the stipulations of the contract; to theprobable amount which the defendant would have received, had there been no violation of the contract and to the probable receipts, of…

Landry. Lewis, J. Under executory process none buttlie property specially mortgaged can be seized. Movables placed by their owner on his land to continue thereon forever and to be used for the cultivation of the land become immovables by destination; if placed by other than the owner of the land and to be used for a limited time they remain movables, and are not attached to the plantation and can not be seized under executory process.

<p>APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.</p> <p>cited: C. O. 2357-8-9-60-61-62; 4 Rob. 453; 2 An. 834; O. C. 3524, 3462; 5 An. 382; 12 An. 852; 14 An. 169; 9 La. 603.</p> <p>I. O. O. 2357. Immovables, settled as dowry, can be alienated or mortgaged during the marriage neither by the husband nor by the wife, nor by both together, except as is hereinafter expressed.</p> <p>*2. O. O. 2360. Immovables, settled as dowry, may be alienated with the wife’s consent when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.</p> <p>8. In a final partition among heirs, where they mutually claim collations from each other, they are all plaintiffs and defendants. 2 An. 923; 11 An. 386, 671.</p> <p>4. Replications are not permitted by our law, and so all allegations in the answer are open to every objection of law and fact as nonage, coverture, fraud, prescription and the like, as if specially pleaded; if defendant be surprised, the proper remedy is a contrueeance or new trial. I-Iennen Digest, p. 1155, 2, No. 1, and cases cited.</p> <p>5. Judicial admissions estop.</p> <p>6. Action to annul a judgment is prescribed by one year. C. P. 613.</p> <p>7. Action to annul contracts, testaments or other acts is prescribed by five years. O. C. 3542.</p> <p>S. The prescription against the action of a married woman to annul the sale of her total property begins to run from the date of the judgment of separation. O. C. 2363.</p> <p>9. Personal actions are prescribed by ten years.</p> <p>10. Judgments caxx not be attacked in collateral proceedings. 15 An. 279 ; 35 An. 831, 533; 32 An. 896; 38 An. 803.</p> <p>II. Contracts duly executed and recorded, and having no patexxt nullity stamped on their face, can not be assailed in a collateral px*oceeding. 20 An. 41; 23 An. 46; 30 An. 374; 81 An. 862.</p> <p>12. Authority of attorneys can not be questioned where parties are guilty of laches. 6 An. 736.</p> <p>13. Married women xxiay be estopped. 9 M. 852; 6 M. 524; 9 R. 28.</p> <p>14. Fx'ror, fraud, violence and want of consideration must be cleaxdy proved.</p> <p>15. A married woman is estopped from setting up her own neglect to execute her judgment of separation. While third parties may plea the nullity of such judgment for said reason, she can not. 31 An. 212; 18 An. 280.</p> <p>16. Where a judgment of separation decrees a moneyed judgment, the judgment of separation is valid, even if the judgment is not executed.</p> <p>17. Publication of such judgment presumed. 15 An. 81.</p> <p>18. A contract will not be invalidated for violence if there be another motive for making said contract.</p> <p>19. Mere inferences or opinions in regard to error, fraud, violence, etc., will not suffice to invalidate a contract.</p> <p>20. The law will not lend its aid to assist a married woman to perpetrate a fraud. 88 An. 406.</p> <p>21. Opponent can not plead her own simulation to annul the sale to her mother. 6 M. 254; 9 R. 28; 9 M. 852. At least not without a counter letter.</p>

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

<p>Where tlie sole heir to a succession and all the creditors make an extra judicial settlement of the succession and involve its affairs in confusion, this court will leave them where they have placed themselves and dismiss the suit.</p>

<p>An appeal taken from the refusal of a court to grant a continuance must be dismissed. The refusal is not an interlocutory order, susceptible of causing an irreparable injury. Particularly ought the appeal to be dismissed when the judgment on the merits is not appealed from.</p>

Taylor, J. 1. The judicial power, under the Constitution of the State, is one of the sovereign, powers of government, independent and exclusive of the legislative and executive powers of the government. See Arts. 14,15 and 80 of the Constitution. 2.

Hieles, J. 1. An exception to an entire charge which points out no specific errors, but asserts generally that it did not properly inform the jury of the law of the case, and that the charge is not law, is too vague to be considered by the Supreme Court. It is the duty of counsel to point out each erroneous instruction specifically,and bring it to the attention of the court, so the court can pass upon it.

Mary. Allen, J. 1. The erasure of the Christian name and insertion of another as the name o£ defendant in an indictment is no cause for arresting judgment. State vs. Turner, 25 An. 573. The identification is all that is necessary, it matters not by what name the accused is known. 2. The evidence upon which a motion for new trial was denied by the court below can not be considered on appeal, unless brought up by a bill of .exceptions.

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

A PPEAL from the Second District Court, Parish of Webster. Boone, J. 1. The statute provides that all objections to the manner of drawing juries, or to any defect that can be pleaded against any array or venire must be urged the first day of the term, or all such objections shall be considered wajved. Sec. 11, Act 44 of 1877. 2. The want of capacity of a jury commissioner is a matter of record in the court, easily obtained by a bare inspection of the record.

<p>otion to quash indictment on ground that clerk had not been sworn as jury commissioner, made after arraignment but before trial, will be held seasonable if proved that the defect was not known to accused or his counsel before arraignment and was urged as soon as discovered.</p>

<p>Aii indictment charging, in one count, one defendant with larceny of three hogs and another defendant, in another count, with having received seme three hogs knowing them to have been stolen property, a verdict and judgment acquitting the defendant of the charge of larceny necessitates the discharge of the other defendant. In such indictment, two generic crimes being conjunctively charged, the former is a necessary ingredient of the latter, and the foundation of it.</p>

Martin-. Mouton, J. 1. The jury commissioners appointed by the several District Judges of the State-hold their office during the pleasure of the District Judge. Act 44 of 1817. 2. The correct doctrine as to proof of perjury is, it may be proved by one witness and circumstances and facts otherwise appearing. Nor is it correct to say that the corroborating evidence or circumstance must be of weight equal to the testimony of one witness.

. 1 Boone, J. PPEAL from the Second District Court, Parish of Webster. ie The wife, whether separated in property by contract or by judgment or not separated, can not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.” It. O. 0., 2398; 29 An. 75-123. Individuals can not by their conventions derogate from the force of laws made for the preservation of the public good, or good morals. It.

Hicks, J. 1. A party is liable in damages for slanderous allegations set up by him in his. pleadings, where there is no probable cause in making same. 29 An. 66; 33 An* 1265. 2. The only defences to slander are a denial, or a justification, or a confession under mitigating circumstances. O. 0.1934; 16 La. 389; 11 An. 207; 14 An. 198; 16 An. 389; 3 An. 69; 6 An. 779; 38 An. 161. The use of opprobrious language implies malice when it is slanderous per se.

Taylor, J. 1. The amount of indebtedness secured is the measure of the creditors’ interest in the thing pledged. 40 An. 631, 667; 27. An. 561. 2. The pledge is lost by the failure of the creditor to retain possession of the thing pledged. C. C. 3162. Two creditors can not hold possession of the thing pledged at the same time for two different debts.

Boone, J. An exception to the citation is waived by appearing for the purpose of moving to. quash the writ of mandamus without first disposing of the exception. C. P.,. Art. 338. A motion to quash a writ of mandamus because of defective allegations, puts in issue the sufficiency of the allegations of the petition. High on Ex. liem., 369; 9th Wis. 279; State, Boggs, vs. County Court (W. Va.), 11 S. E., 72; also found in Lawyers’ General Digest for 1890, 1111.

om the Seventh District Court, Parish of Catahoula, As a general rule the inclusion in one count of two separate and distinct offences, is duplicity and fatal to an indictment, but where the acts… Held: in letter and spirit, to be out of this general rule, and not in fact, amenable to the charge of duplicity. 2d Vol. Bishop Orim. Pro., 191,192; State, vs. Collins, 33 An. 182; State vs. Hendricks, 38 An. 602. Assault is an essential element of shooting with intent to murder.

Cooo, J. 1. Sec. 976, Revised Statutes, contemplates the simplification of criminal pleadings. State vs. Cook, 20 An. 145; State vs. Wolf, 34 An. 1153. 2. Only essential substantive averments are required even in statutory crimes where it is best to follow the language of the statute, nevertheless an omission of words, the addition of which would convey no additional ideas already contained in an indictment will be sufficient.

<p>A PPEAL from the Twelfth District Court, Parish of Grant. Co co, J.</p>

<p>APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.</p> <p>1. nn indictment which charges that the defendants, with a dangerous weapon, and with intent to kill, did inflict a wound less than mayhem, is not had for duplicity because the statute employs the disjunctive “or” instead of “and.” 33 An. 1294.</p> <p>2. Under Section 794, Kevised Statutes, a count alleging that the defendant inflicted a wound less than mayhem with a dangerous weapon, and with intent to kill, is not double. 33 An. 1294.</p> <p>3. Where a statute makes two or more distinct acts, connected with the same transaction, indictable, although one of the acts be sullieiont to constitute the crime, the offences may be alleged cumulatively; the rule that the defendant mustnot be charged with two or more offences in any count does not apply to cumulative offences denounced in the same statute. 15 An. 498.</p> <p>4. In an indictment upon a statute which denounces two or more cumulative offences there may be alleged in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has or, and it will not be double, and it will be established at the trial by proof of any one of them. Bishop’s Crim. Proc., Vol. 1,486. Bishop on Statutory Crimes, Sec. 244. Several offences, distinct in kind and degree, can not be inciuded in the same count; but this rule does not apply to cumulative offences denounced in the same clause or section of a criminal statute. Such a clause may, and often does, enumerate several offences to the same act, and in such cases they may he charged cumulatively in one count. State vs. Pont, 2 An. 887; State vs. Bogan, 2 An. 838; State vs. Banton, 4 An. 32; State vs. Puller, 14 An. 668; State vs. Markham, 15 An. 498. The extract cited above from State vs. Adam et al., 31 An. 717.</p> <p>.5. If a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count, usingthe conjunction “and” where “or” occurs in the statute. Bishop’s Crim. Proc., Sec. 586, Vol. 1; Archhold’s Crim. Proc., 283, 298.</p> <p>In all prosecutions for the violations of tlie laws of this State, the utmost strictness of pleading and construction of the provisions of thepenal statutes are required. 32 An. 565; 89 An. 906.</p> <p>1. Two distinct offences can not be charged in the same count. 35 An. 53; 89 An. 959; 37 An. 382; 31 An. 487; 30 An. 61, 311; 32 An. 812; Bishop’s Crim. Proc., Vol. 1, 2d Ed., Sec. 444-5-6; Archbold, Vol. 1,'95; 295,297, 8th Ed; Wharton, Vol. 1, Sec. 382, 7th Ed.</p> <p>2. Two offences that grow out of the same act may he incorporated in separate counts. 30 An. 61; 32 An. 812; 38An.9l; 31 An. 487; 85 An. 53; 37 An. 382.</p> <p>3. Kev. Stat., Sec. 794, denounces two separate and distinct offences. 81i. 549; 41 An. 775.</p> <p>4. Where two offences grow out of the same act and are cumulative, they may he charged, and then only, in the same count. 2 An. 837; 15 An. 498 ; 31 An. 717; 82 An. 565; B7 An. 218, 662, 779; 38 An. 458; 39 An. 214; 41 An. 775.</p> <p>5. Tliese defects are of substance, and not of form, and therefore may be urged in arrest of judgment. 10 An. 30; 32 An. 565; 40 An. 744 ; 30 An. 1242; 21 An. 442; 35 An. 565; 5 An. 327; 10 An. 229; 20 An. 147; lb., 408.</p> <p>Several offences, distinct in kind, can not be included in the same count unless cumulative and denounced in the same clause or section of a criminal statute. 32 An. 565.</p>

Ellis, J. 1. An application for a new trial on the ground of newly discovered evidence must not only show duo diligence to obtain the testimony after its discovery, but. must also contain a showing of diligence to discover the existence of the testimony. State vs Woodworth, 28 An. 89; State vs. Crowley, 33 An. 782; State vs. Young, 34 An. 346; State ys: Decker, 35 An. 46; State vs. Sweeney, 37 An. 1. 2.

<p>In this case the plaintiff in a justice court sued for $12.40 on account. The defendant before suit filed tendered $7.28, and in his answer admitted this amount as due plaintiff. The difference is $5.12. The District Court had no jurisdiction of the appeal ratione materia.</p>

<p>APPEAL from the Second District Court, Parish of Bienville. Boone, J.</p> <p>3. A railroad company is responsible for injury resulting from a defective condition of its apparatus when such defect could have been discovered on careful inspection. 2 Woods’Ry. Law, Sec. 300; King vs. Ohio R. R. Co.; 14Fed. Rep. 277.</p> <p>o, It will be held liable for its negligence, even when the defective car belongs to another company from which it has received it. 4 Am. and IS. Ency. 421; 94 Mo. Rep. 468; 100 N. Y. 462.</p> <p>?>. The master is responsible to his employe for damages resulting from defects in the apparatus or machinery they are required to work with. Woods’ Master and Servant, Sec. 675-8; 87 An. 634, 653; 41 An. 964.</p> <p>4. The law imposes the duty on the master of furnishing reasonably safe and suitable implements for the business, and makes him responsible for such damages as result from his failure to perform this duty. 3 Woods’Ry. Law, .Sec. 370, et seq; 8 Allen Man. 441; Van Amburg vs. R. R. Co., 37 An. 653; Towns vs R. R. Co., 37 An. 634; 4 Am. and E. Ency. 417-26.</p> <p>5. The conductor is the superior of the engineer, and has authority over him. Van Amburg vs. R. R. Co., 37 An. 651; 112 TJ. S. R. 377; Towns vs. R. R. Co., 37 An. 630.</p> <p>O. The master is required to furnish a sufficient number of hands — and these with sufficient skill — to carry on the business safely. Johnson vs. Ashland Water Co., 5 Am. St. Rep. 243; Flike vs. Boston, etc., R. R. Co., 53 N. Y. 549, 554; 13 Am. Rep. 545; Hayes vs. Western R. R. Co., 3 Cush. 270; Mad River R. R. Co. vs. Barber, 5 Ohio Rep. 541, 563; 67 Am. Dec. 312; 29 Am. Rep. 97; Jones vs. Old Dominion Mills, 3 Am. St. Rep. 92; Pierce on Railroads, 372, note; 85 Am. Dec. 720; 02 111. 401-</p> <p>7, It is primafacie negligence on the part of themasterto attemptto operate dangerous machinery with an insufficient number of hands. 3 Woods’ Ry. Law, Sec. 381; Jones vs. Old Dominion Cotton Mills, 3 Am St. Rep. 105; Pierce on Railroads, 369; 17 Wall. 553.</p> <p>9.It is not negligence on tlxe part of a brakeman to rush between the cars to make a coupling without stopping to examine tlie drawheads to see if they are in a safe condition. King vs. Ohio R. R. Oo., 14Feb. Rep. 277; 4 Am. andE. Ency. 428 ; 3 Woods’ Ry. Law 1457; Woods’ Master and Servant, Sec. 330; Towns vs. R. R. Co., 37 An. 630; 38 An. 777; 4 Am. and E. Ency. 34.</p> <p>9. Burden of proof is on defendant to show contributory negligence. Bagley & Oo. vs. Jenevon, 24 An. 288; 4 Am. and E. Ency. 16-18; Woods’ Master and Servant, 777-8.</p> <p>10. Special plea of contributory negligence waives the general issue and restricts defendant to the proof of his special defence. Sherman vs. City of New Orleans, 18 An. 660; 3 An. 326; 9 An. 119; 19 An. 484; 22 An. 75; 20 An. 306; 32 An. 966; 31 An.81; 14An.54,869; 6 N. S. 226; 3 N. S.75; IN. S. 172.</p> <p>11. In Prn'i Materia — Am. and E. Ency. of Law, Vol. 4, p. 18, note 1: “There can be no contributory negligence, except when the defendant has been guilty of neg ligence to which the plaintiff’s negligence could contribute.”</p> <p>12. It is the master’s duty to provide suitable appliances (Am. and E. Ency. o Law, Vol. 4, p. 62, note 1), also to inspect and repair them (p. 63, note 1).</p> <p>The plea or allegation of contributory negligence is not a special defence.</p> <p>A special defence is one set up in avoidance or extinguishment of an obligation admitted or proved to have once existed. 31 An. 84; 6 L. 457; 9 L. Ill; 5 R. 486.</p> <p>When an employe is out of his place, the relation of master and servant no longer exists. Woods’ Ry. Law, p. 1490.</p> <p>'The only test by which it can he determined whether care has been used or omitted in any particular ease is the test of negligence in general.</p> <p>There is negligence where the party injured “where under all the circumstances and surroundings of the case something lias been done or omitted that ordinarily careful and prudent persons so situated would not have done or omitted to do.” Am. and IS. Ency. of Law, Vol. 4, p. 22, See. 9.</p> <p>■“ When the defect or injurious contrivances is equally known to or alike open to the observation of both employer anti employe, both are upon common ground and the employer is not liable for the resulting injury.” Am. and E. R. R. eases Yol. 28, pp. 308, 382, 546, and notes, 397; 11 Am. and E. R. R. C. 644.</p> <p>“ Brakesmen and other persons employed by a railroad company within the freight stations and the yards of the company, where they accept the employment, assume the risks arising from s * * the construction of the cars used by the company, and they are bound to exercise the care and caution which theperils of the business demand.” Am. and IS. 8; Am. and E. 98.</p> <p>A servant or employe assumes the risk of all dangers in his employment however they may arise, against which he may protect himself by the exercise of ordinary observation and care. 5 Am. and E. 508; 21 Am. and E. 637.</p> <p>If the instrumentalities furnished by the master for the performance of the servant’s duties are defective and the servant is aware of this, though not aware ■of the degree of defectiveness, he is bound to use his eyes; and if he fails to do so, he can not charge the consequences upon his master.” 2 Am. and E. R. R. c. 144; 17 Am. and E. R. R. C. 592; 12 Am. and 15. R. R. O. 217; 11 Am. and 15. R. R. C. 201; 8 Am. and E. R. R. C. 184, 225.</p> <p>“ To recover damages for injuries from a railroad company it is necessary for plaintiff to prove that the accident in consequence of which the injuries were received was caused by the negligence of the railroad company, and that the plaintiff was not guilty of any negligence which created or aided in the accident.” 40 An. 787 ; 31 An. 490.</p> <p>A person can not recover for an injury to which he has contributed by his own want of ordinary care. 39 An. 796.</p> <p>“ When one of the two persons either innocent or mutually negligent must suffer, the one who knew of the cause which occasioned the injury, and who could have avoided it and did not do so, must hear the loss.” 34 An. 180; 33 An. 154; 32 An. 615.</p> <p>If aparty does not act as aprudent and careful person should do, he must bear the consequences. Woods' Ry. Law, p. 1461, Sec. 372.</p> <p>“ Cars received from other roads for transportation, the company has a right to assume that they are in proper repairs and condition.” 37 An. 630, Towns vs. V., S'. & P. R. R.</p> <p>Where the employe knows that no suitable regulations have been adopted and that a custom to violate them has grown up by remaining in the service, he is regarded as waiving the defects and assuming the risk incident thereto. Woods’Ry. Law, 3 Vol., p. 1488, Sec. 382.</p> <p>To maintain an action by a servant against a master for an injury resulting from defective appliances, two elements must concur, viz: Fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant. 41 An. 500, Carry vs. Sellers & Co.</p>

Hieles, J. 1 Masters and employers are answerable for the damages occasioned by their employes, in the exercise of the functions in which they are employed. C. 0., Art. 2320, 17 An. 19 and 166; 23 An. 180; 15 Wall. 649. 2. No exact computation can be made for the damages due the plaintiff, and in eases of this kind much discretion is left to the jury in the assessment of damages. C. C. 1934, par. 3; 17 An. 19; 18 An. 26; 19 An. 362. 3.

Williams, J. 1. It is not necessaxy that the evidence of witnesses taken at a preliminary trial be signed by them. Sec. 1010, Rev. St.; 37 An. 685, State vs. Allen & Carter. 2. Evidence that a witness for whom a subpoena has issued has left the State, or is absent therefrom, may be received, showing that he has left and is absent from the parish. The retuxrn on subpoena is not the exclusive evidence. State vs. Allen & Carter, 37 An. 685. 3.

Boone, J. 1. AVhen the testimony is conflicting and contradictory, or when there is a question of character or credibility of witnesses or of false swearing and the like, the verdict of a jury will be affirmed, if for a reasonable amount, and sustained by the testimony of many witnesses, though contradicted by other’s, 41 An.-385, 810. 2. A verdict for $7500 for loss of a leg and attendant suffering is reasonable. See 38 La. An. 777; 41 La. An. 861. 3.

PPEAL from the Second District Court, Parish of Bienville. Boone, J. 1. In a grant of lands by Congress to aid in the construction of a railroad, uthere be and hereby is gra/nted,” are words of absolute donation; importan immediate transfer of title, and vest a present title in the grantee, though a location of the road and filing of its map is necessary to give precision and attach it to particular tracts. The location and filing accomplishes this. 2.

<p>Barksdale, J\ PPEAL from the Third District Court, Parish of Claiborne.</p>

A PPEAL from the First District Court, Parish of Caddo. Taylor, J. 1. A claim against a succession can not be rightfully acquired by the administrator or his attorney, for his individual benefit; but such purchase will bo held to have been made, for the benefit of the succession; and the administrator or his attorney will bo compelled to give up its advantages on the reimbursement of the purchase money. Stockton vs. Eord, 13 II.

<p>A judgment rendered in another State against parties who are not thereby expressly condemned to pay jointly and severally, will not be considered in Louisiana as a solidary judgment, in the absence of proof that in that State such judgment thus rendered would be viewed and treated as a seceral judgment against each defendant for the entire debt.</p> <p>Partners, because such, are not necessarily liable severally. Though commercial partners be, ordinary partners are not so liable. Solidarity is not to be presumed.</p> <p>The admitted rights of an intervenor should be recognized.</p>

<p>1. An agreement between three parties that they will join in a pool with a fourth party then absent, to purchase 10,000 bales of future cottons, if such fourth party shall agree thereto, operates a mere proposition to said party, which any one of the proposers may withdraw, cither before acceptance or immediately after receiving notice of acceptance.</p> <p>2. Mven if one of the proposers bo authorized to conclude the agreement on ac- . eeptanco hy the party to whom the proposition is made, yet such an agreement has no executory force hy reason of tlio entire indeterminateness of the object.</p> <p>3. All the proposers arc entitled to notice of the completion of the agreement, and to a voice in settling and ascertaining the details of the purchase, such as the months which arc to be bought, the prices to be paid, the broker to be selected, the party tobe selected as head of the pool authorized to receive notices, and to direct the operation, etc.</p> <p>d. When one of the proposers lias had no notice that the proposition had over been accepted or that the futures have boon bought until a month afterward, when the transaction has been closed out at a heavy loss, and when the other parties ¡have settled all the details and made the purchase without notice to or consultation with him, he can not he held bound by such loss.</p>

King, J. 1. The facts of the case discussed, with the view to showing that the damage, for which reparation is claimed, was due to the negligence and fault of the defendant, and that he is liable therefor. 2. Where a claim for damages has been assigned and transferred in a suit on the* claim under the assignment, the contributory neglect of the assignor alone can be set up and pleaded. Cooley on Torts, p. 672, and note; 35 An. 16; 35 An. 1138. 8.

King, J. 1. Where the creditors have not elected a syndic, the judge shall appoint the sheriff unless one of the creditors applies, and thereupon the judge shall appoint the creditor as syndic. R. S., See. 1810. 2. There was no election of syndic herein. Winkler and Ricks vs. Their Creditors, 84 An. 1221. 8. A creditor has a preference over a stranger to the administration of an estate.

A PPEAL from the Twenty-fourth District Court for the Parish of Plaquemines. Idvaudais, J. 1. The wife may at any time demand judicially the administration of her paraphernal property, and this demand need not necessarily involve a separation of pi'operty or dissolution of the community. R. O. C. 2387, 2391; 8 N. S. 231; 7 Ha. 292; 10 ha. 138; 35 An. 806 ; 39An. 384. 2.

<p>Ad official bond, furnished in compliance with the requirement of a law which specifics its conditions, is a legal bond, of which the law forms part.</p> <p>The obligations of a surety in such bond must be strictly construed, and must not be extended beyond the intent of the law.</p> <p>A surety on a notary’s bond is liable only for his failure to discharge well and faithfully the duties incumbent upon him, or required of him by law, and is not responsible for acts done by the notary, which he had no legal power to do.</p> <p>The attestation of a notary that payment of a note has been prolonged as per act before him, when in truth no such act existed, is not a duty incumbent on him, or required of him, and is unauthorized by law.</p> <p>The known falsity of the attestation does not involve the surety intopeeuniary liability.</p>

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

<p>1. During tbe marriage the wife Jias no right of action against her husband for alimony, unless there is demanded either a separation from bed and board or a divorce.</p> <p>2. A demand for alimony by a wife against her husband is an incident of a suit for separation from bed and board, or divorce. It is accessory to it and inseparablefromit. An independent suit for alimony, disconnected with and not growing out of a suit for separation from bed and board, or divorce, is an anomaly.</p> <p>8. There being in the plaintiff’s petition no demand for either a separation from bed and board, or divorce, a case for alimony is not stated; and an interlocutory judgment therein, awarding alimony pendente Ute, is a nullity, and no length of time would enable the party in whose favor it was rendered to shield it by a plea of prescription orres adjudicata.</p>

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

<p>^^PPLICATION for Mandamus.</p> <p>Tlie rules of practice regulating- appeals to and proceedings in the Supremo Court shall apply to appeals and proceedings in courts of appeal, so far as they may be applicable, until otherwise provided by law. Art. 103 of the Constitution.</p> <p>Where the testimony lias beenreducedto writing by the cleric, it serves as a statement of facts, if the parties should not agree to one. C. P., Art. 601; 6 La.120: 10 La. 562 ; 29 An. 72; 21 An. 134; IS An. 262.</p>

y^PPLICATION for Certiorari and Prohibition. “ Tlie real amount in dispute, exclusive of interest, whenever the same can bo legally ascertained from the pleading's and documents, and not the allegations of thcparlies, is to be the test of the jurisdiction of the Supreme Court.” See 82 An. 929 ; 32 An. 1191; 38 An. 394.

<p>3. Tlie nuncupative testament by public act need contain no other description o£ the witnesses than their names, their number and their residence. It need not expressly negative the existence of incapacities, which are mutters for exterior proof, as ground of nullity.</p> <p>2. Where the will describes the witnesses as domiciled in the place, that sufficiently declares their residence, because domicil, ex ri termini, includes residence.</p>

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

<p>Certiorari lien only to ascertain tlio validity of judicial proceedings on their face, and, when questioned, the jurisdiction of the court entertaining them. It can not serve to review a judgment.</p> <p>In the instant case, the proceedings being regular and the jurisdiction unquestioned, the application can not be entertained.</p>

y^PPLIOATIOJiT for Mandamus. The recorder is commanded by the State law to perform the duty required of him K. S., Sec. 1010. The remedy is a mandamus because • The object of those proceedings is to prevent disorder from a failure of justice High’s Kxt-. Leg. Iiem., See. 1. 2. Petitioners have a clear, legal right which slumld be enforced, and there is no other effective lawful means of enforcing the right. Iligh’s Extr. Leg. Rem. See. 10; Heard’s Shortt Extr.

<p>1. An ordinance of the City Council having-been violated, in which a mittimus is provided in default of lino, the terms of imprisonment must be limited to the terms of the ordinance.</p> <p>2. The Legislature authorized the City Council to lengthen the term of imprisonment; the law is permissive to the Council and is not an authority to the recorder to make the commitment for a longer time than provided in the ordinance.</p>

<p>Although the Constitution exempts from a license tax those who are engaged ill a mechanical pursuit, it docs not follow that a photographer comes within the immunity.</p> <p>Photography is a science; at least, a liberal art. A photographer is an artist who , practises an occupation in which the mind is chiefly concerned, the hands and body being less so.</p> <p>Legislative acts are entitled to great respect, and are presumed to be constitutional. To destroy the presumption, they must bo shown manifestly to violate the organic law. In this ease the ordinance and statute assailed are constitutional and valid.</p> <p>Those who seelr shelter under an exemption law must present a clear case, free from all doubt, as such laws, being in derogation of a general rule, must bo strictly construed. Plausible hesitation warrants an adverse finding.</p>

<p>A PPEAL from the Pirst City Court of New Orleans. Price, J.</p>

<p>1. Tlic Constitution o£ the State has not given the Legislature unlimited discretion in the matter of creating new parishes or changing the boundaries of existing parishes, but lias imposed important limitations on the legislative power in these respects and on the methods of exercising the same.</p> <p>2. These limitations are intended as a protection to the rights of existing parishes and the people thereof, who have the right to oppose the execution of legislative acts passed in violation thereof, and to invoke the aid of the judicial department.</p> <p>3. Injunction against persons proceeding under the authority and in execution of such acts is not only the proper, but the only effective remedy, because if parties wait until the act has been fully executed and the new parish organized, it is then too late to invoke judicial aid.</p> <p>4. The entertaining of a suit for injunction and the granting of the injunction in such a case arc not ultra rires of 'judicial power; and errors therein and in other proceedings in such cases do not give rise to the exorcise of oursuper- ' visory jurisdiction, but must abide determination in ordinary course.</p>

<p>1. Constitutional provisions and forms of proceeding relating to crimes denounced by the public criminal statutes of the State do not apply to violations, of mero municipal ordinances, save to a very qualified extent.</p> <p>2. The city of Now Orleans, even prior to Act 41 of 1890, possessed power to enforce* her ordinances by fine or by imprisonment in default of payment within the* limits fixed by law,; and when the penalty defined in the ordinance is within*, said limits, the recorders of the city arc bound to observe the same, and can neither extend nor diminish them.</p> <p>3. Any scheme for the distribution of prizes by lot or chance, by which one, on paying money to another, obtains a token which entitles him to receive a largexvalue or nothing, as some formula of chance may determine, is a lottery, ancX the sale of such “token” is a violation of the city ordinance prohibiting the. same.</p>

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

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

Monroe, J. 1. Plaintiff lias been the recorded owner and undisturbed possessor of the property assessed since December 24, 1806. Pages--of Brief, also It., p. 5; Tr. 10,114, pp. 35, 45, 46, 90. 2. The forfeiture to the State, Eebruary 11, 1875, was illegal, because the tax had been tendered and it liad been agreed that the sale should not take place; and it can have no effect because not confirmed by the Auditor.

Ellis, J. 1. When the principal dies or becomes a bankrupt, the law does not require the creditor to await the settlement of the insolvency bringing the suit. The court will not turn the creditor to the insolvency. C. 1’. 279,282; Cordon vs.Diggs, 9 An. 422; Alley vs. Hawthorn,! An. 126; Wogan vs. Thompson, 10 An. 284; Wells vs. Roaelii, 10 An. 505; Ilowyeat vs. Adams, II An. 78; Trimble vs. Brichta, 11 An. 271; 27 La. 468 ; 21 An. 284 ; 2 An. 428. 2.

Act No. 3 of I860, exempting consolidated bonds of the city of New Orleans “ from any and all taxation, is a special statute. It was not repealed by the present Constitution as inconsistent with Art. 207, which is the general law of exemptions, and prohibits other exemptions being made by the Legislature in the future. All laws not inconsistent were maintained in force by Art. 258.

<p>A PPEAL from the Oiyil District Court for the Parish of Orleans. n. Bightor, J.</p> <p>1. Taxes due tbe City of New Orleans are imprescriptible. Sue. of Stewart, 41 An. 127; 6 So. R. 587; Davidson vs. Lindop, 86 An. 765.</p> <p>2. Taxes are personal obligations. Cons, of 1879, Arts. 203 and 210; Cooley on Taxation, p. 1; Hilliard’s Law of Taxation, pp. 13 and 26; Camden vs. Allen, 26 N. J. 398; Oakland vs. AVhipple, 39 Cal. 113; Rundoll vs. Lakey, 40 N. A'. 517; Green vs. Craft, 28 Miss. 70; Desty on Taxation, Arol. 1, p. 7; Brent vs. City, 41 An. 1098; 6 So. R. 793; Sue. of Stewart, 41 An. 131; G So. R. 587; Sue. of I)upuy,33 An. 260; Reed vs. Creditors, 39 An. 120; Mullan vs. Creditors, 39 An. 397; 2 So. R. 45.</p> <p>H. Article 2L0 of the Constitution may prohibit the Tax Collector from instituting suits to enforce the collection of taxes; but an opposition to a tableau of distribution is not a suit instituted by the opposing Tax Collector. Sue. of Dupuy, 33 An. 260; Rood vs. Creditors, Hi) An. 120; 1 So. R. 784; Mullan, lb. 897; 2So.lt. 45; Hue. of Stewart, 41 An. 131; 6 Ho. R. 587; Brent vs. City, lb. 1098: 6 So. R. 793.</p> <p>4. “ A suit is a real, personal or mixed demand made before a competent judge, by which the parties pray to obtain their right and a decision of their dispute.” 0.R., Art. 96; Bouvier, ride “Suit.”</p> <p>“ Article 100. The plaintiff is ho who sues another for something which he says is due or belongs to him.</p> <p>u The defendant is one against whom this suit is brought.” C. P.</p> <p>Ti. The executor who files the tableau of distribution is plaintiff, and the opponent is defendant in the cause. Sue. of Romero, 28 An. 607; Hue. of Planclict, 29 An. 521; Hue. of Dongart, 80 An. 270.</p> <p>6. After summoning the City of Now Orleans into court the executor can not object to its appearing. Baker vs. Michinard, 17 An. 251; Pasteur et als. vs. Lewis & Lynd, 39 An. 11; Windon vs. McVeigh 93 U. H. 283.</p> <p>7. Where no objection is made by the executor to the offer and filing of evidence by opponent in support of the opposition filed by him, all objections to the form of proceeding and to the evidence are waived.</p> <p>1. A claim for taxes due by joint owners of property can not be enforced in ioio against one only of the joint owners; nor can taxes due since the Constitution of 1879 be enforced against any property other than that assessed until all efforts to collect taxes out of the latter have been exhausted. V. & A. Meyer & Co. vs. Parker, Tax Collector, 41 An. 440.</p> <p>This disposes of all claims for taxes since and including the year 1880.</p> <p>2. Judgments in favor of the City of New Orleans are subject to the same prescription as judgments in favor of any other individual, to-wit: Prescription of ten years.</p> <p>3. Where a cause of action has boon reduced to judgment, the exception of res judicata lo a subsequent suit upon the same causo of action is as applicable to the demand of a municipal corporation as to that of any individual.</p> <p>4. Taxes upon real estate in the State of Louisiana have, since the Act No. 34 of the extra sessions of 1877, ceased to be a liability in personam, and arc purely claims in rem.</p> <p>Especially is this the case whore no excuse is shown for not pursuing real estate alleged to be burdened with the taxes.</p> <p>5. A judgment dismissing an opposition to a provisional account is res adjudicata as to a claim to a distributive share in the fund distributed and no further. West vs. His Creditors, 3 An. 532; West vs. His Creditors,! An. 450; Ifranklin vs. Warfield, 2La. 127; IVilliams vs. Nicholson, 5 An. 720.</p>

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

A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. 1. It is the duty of railroad companies to furnish safe and easy ingress and egress to and from their platforms and station houses, and. to keep such platforms and station houses in a safe condition for use. * 2.

<p>A writ of certiorw'i will not be made peremptory,after judgment where the accused has failed to reserve any bill of exception and has neglected to file any plea in bar or to make any motion in arrest of judgment; the offence being substantially charged in the language of the statute, and the information not wanting in substantial averments to make it absolutely null.</p> <p>The illegalities were, cured by the neglect^to plead them, and by the consequent sanction of the defendant.</p>

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

Bilis, J. cited: 35 An. 561; 33 An. 1035; 24 An, 209; 15 An. 483; 10 Rob. 1S3; 14 An. 44; 42 An. 160. When a party interrogated on facts and articles in relation to a verbal contract to transfer real estate denies the contract, his answer can not be contradicted by parol evidence, nor is parol evidence admissible to prove such a contract. 4 An. 103; 4 La.-374; 15 An. 539; 26 An. 251.

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

<p>PPEAL from the Eighth District Court, Parish of Bast Carroll. Montgomery, J.</p>

<p>Application for certiorari and prohibition denied for reasons appearing in opinion in ease of Goldman vs. Gillespie. No. 10,703 of our docket.</p>

<p>PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.</p> <p>cited: 41 An. 436; 41 An. 440; 41 An. 181; 9 Wall. 362; 41 An. 1137.</p> <p>1. A corporation cun not by any fiction of law be said to have possession of the shares of its capital stock so as to ho able to produce them for sale by the Tax Collector.</p> <p>As to nature of ownership of stock, see Delaware Railroad Tax Case, IK Wall. 22S; Cook on Stock and Stock Holders (2d Kd.), p. 617.</p> <p>2. A corporation may indeed represent its share holders for purposes of assessment, as is decided, and oven for purposes of payment of taxes, as is intimated in Planters' C. Oil Co. vs. Assessor, etc., 41 An. 1137; but it has boon repeatedly held that it does not represent the share holders in suits to subject the stock to seizure and sale for taxes. IVaseca Co. Bank vs. McKenna, 32 Minn. 468 (21 . N. W. B. 556); Banners Nat. Bank vs Cook, 32 N. J. Law 347; Cook on Stock and Stock Holders (2d. Ed.), note at p. 632, et saq.</p> <p>3. Absurd results of plaintiff’s theory demonstrated.</p> <p>4. Second defence considered and shown not to be inconsistent with any of the matters necessarily involved and actually decided in the ShreveporfcBank ease.</p> <p>5. The bonds owned by defendant are exempt from any and all taxation. Act No. 3 of 1860; State ex rol. DaPonte vs. Board, 85 An. 650. This exemption applies to indirect as well as direct taxation.</p> <p>6. Taxation of the shares of stock of a corporation without deduction of the value of its bonds, while not the same thing as taxjng the bonds directly to the corporation, is nevertheless an indirect taxation of the bonds themselves. Van Allen vs. Assessors, 3 Wall. 589; Shreveport Bank Case (on rehearing), 35 An. 190; Cooley on Taxation, pp. 166, 167.</p> <p>7. The ease at bar and the Shreveport Bank ease distinguished.</p>

<p>1. A female under 12 years of age is incapable of yielding consent to sexual intercourse.</p> <p>2. While it is true that it is for tbe court to be satisfied of the competency and admissibility of evidence, and not for the jury, it is equally the right of an accused party to see to it that no incompetent or inadmissible testimony is adduced against him.</p> <p>3. The admissibility in evidence of a confession of tne accused must necessarily bo tried and determined by the judge before it can be given to the jury as evidence ; and in such a trial the accused has the right to participate, and, through counsel, cross-examine the .State witnesses by whom the confession is sought to be proved.</p>

<p>The Supreme Court, in tlio exercise oí its supervisory jurisdiction, can not entertain a complaint against an inferior tribunal, which had unquestioned jurisdiction ratione materia of the cause, when it appears that the proceedings were regular, in accordance with law and practice.</p>

<p>'Where tlie claim oí a minor lias been liquidated by a judgment, and a rule is taken against tlie tutor to compel liim to pay over said amount to said minor who lias attained his majority, the District Judge, having jurisdiction of tlie whole matter, is competent to entertain said rule. The proceedings under said rule being regular, a writ of certiorari will not issue, directed to the District Judge, avoiding tlie proceedings under tlie rule.</p> <p>Where the proceedings complained of have been prosecuted to judgment, and an appeal from the same perfected to the Court of Appeals, the District Court having lost jurisdiction, a writ of certiorari can not issue to liim, as the matter is no longer within tlie jurisdiction of the District Judge.</p>

<p>Under Act 29 of 1886 conviction of infamous crime is no longer a disqualification of a witness in criminal cases. State vs. Mack, 41 An. 1079.</p>

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

King, J. A ■firm engaged in carrying on a hotel is not*a commercial partnership, or a partnership by which each partner is bound in solido for the firm liabilities. 3 31'. 084, Sloeomb vs. Sibley; O. C. 2823.

<p>1. Whore the confessions oí a defendant are made voluntarily, without anything having been done to induce or extort them, they are admissible in evidence at his trial.</p> <p>2. Where an interpreter has been appointed and duly sworn to interpret the testimony of awitness, who didnot understand the English language, and it is made evident that he was competent, and faithfully and correctly interpreted the language of the witness, there was no ground for objection.</p>