Volume 43 — Louisiana Annual Reports

<p>There can be no doubt of the correctness of the general proposition that a consignee who accepts a consignment, with the knowledge that the consignor has drawn on him, for a stated, amount, against the goods consigned, impliedly promises to accept and pay the draft; and, that on refusal, he may be sued for a broach of contract.</p> <p>It is a recognized principle of the commercial law, of universal application, that a bill of lading, legally transferred, gives a title to the property which it represents. '</p> <p>Act 150 of 1868 is a legislative recognition and sanction of the principle.</p> <p>A bona fide creditor of a consignor, who holds the latter’s draft, for value, to which bills of lading, transferred in blank, are attached, to secure its payment, is-to be deemed the owner'ot the goods, so far as to give validity to the pledge, created by the forwarder, and, on presentation of the draft, with the annexed bills, to the consignee, before he has accepted the consignment, is unquestionably entitled bo the delivery of the property, and to the payment of his draft by the consignee.</p> <p>In order to make absolute the rights of such creditor, it is not essential that the consignor should have directly advised the consignee of the consignment and.of the drawing of the draft and transfer of the 'bills of lading. Such rights are fully secured when the holder of the draft presents it, with the bills of lading annexed, to the consignee before delivery of the goods to the latter.</p> <p>Possession acquired of the consigned goods, by the consignee, and disposal by him of the same, to the prejudice of such draft, are illegal and unauthorized.</p> <p>Surely, consignees have a right to pay themselves, by preference, of what may be due them by a consignor, out of the goods consigned by him to them; but only where the same have been shipped to them for that pun-pose, and the bills of lading have been mailed, or transmitted through the carrier, to them, under the terms of Act 11 of 1882.</p> <p>Consignees not so situated and to whom a draft, with bills of lading indorsed in blank attached, is presented before acceptance by them of the consignment, are bound, on such acceptance, either to deliver the goods to the creditor and bill holder, or to pay the draft presented.</p>

PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J. This is a suit on a contract of sale. Three circumstances concur to the perfection of the contract of sale: the thing sold, the price and the consent. O. O., Arts. 2*189,1779, 1811, 1816.

Talbot, J. 1. Prior to the adoption of the Constitution of 1879, the taxing power of the Legislature of the State appears to have been untrammelod or unrestrained by any constitutional limitation.

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

<p>Street railroad companies are not liable for wilful and tortious acts of tlieir servants committed outside of the scope of tlieir employment.</p> <p>They are under obligations to carry tlieir passengers safely and properly, to treat them respectfully, and if this duty is intrusted to a servant, he is responsible for the manner in which he executes the trust. They must protect their passengers, not only from violence and insults of strangers, but'a fortiori against the violence and insults of their own servants.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J. 1. Article 180 of tlie Constitution of the State provided for one Civil District Court-,, with c 2. Any irregularity in allotment will not deprive the court of jurisdiction, and render its proceedings null; such irregularities should be corrected on appeal or by direct action in the court rendering the judgment, and such judgment can not be attacked collaterally. State ex rel. Mestayervs.

Monroe, J. 18 How. 331; 104 U. S. 450; 88 Mass. 52; 27 Fed. Rep. 625; 50 Vt. 457; 7 Blatch. 347; 34 Tex. 425; 9 Oonn. 457; 36 N. Y. 200; 34 N. Y. 78; Thompson’s Liability of Stockholders, Sec. 385, 952. 1. The cause of action set forth in the petition is a tort and is prescribed by one year. It isa fraudulent breach of trust. 2 Johnson’s Ch. 181; 11 Pargel3; 8 Blatch. 347; 4 Iiuss. 272; 3 Vis. 75, 20; Fed. Rep. 582.. 2.

PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. 1. In Louisiana all contracts between husband and wife are prohibited, excep those which pertain to the restitution of her dotal or paraphernal property appropriated by the husband. 2. Delivery is of the essence of a giving in payment. C. C., Art. 2656. 3.

<p>1. Positive testimony by witnesses whose character and credibility are not impeached can not be overcome by suspicion founded on mere improbability of their statements when not shown to bo in any sense impossible; especially when the judge a quo who heard the testimony has given credence to it,</p> <p>2, The enforcement of the penalties against administrators for not depositing succession funds in bank lies within the sound discretion of the court a qua, which will not be interfered with by this court at the instance of appellants who are shown by the final account duly homologated to have no interest in the succession.</p>

. Voorhies J. One who leaves in apublic place where a person has a right to go a dangerous machine is liable for injuries caused thereby to persons who are in fact without fault, or who being infants are in law incapable of being contributorily negligent. Cooley on Torts, 2d Ed., 818 to 823; Lynch vs. Nurdin,l Q. B. 29; Railroad Company vs. Stout, 17Wall. 657; Mangan vs. Brooklyn Railroad Company, 38 N\ Y. 455; Pittsburg, etc., Railroad Company vs. Bumstead, 48 111. 221;.

Ellis, J. 1. Where the allegations of a petition are so vague and indefinite as not to be clearly understood, and as to make the character of the cause of action sought to be set up doubtful, an exception in limine to that effect will bo sustained. 2. Two or more essentially distinct and separate causes of action against different defendants can not be set up in the same suit.

Young, J.. PPEAL from the Ninth District Court, Parish of Concordia. 1. An injunction will lie to protect a de facto officer in his possession against the interference of a claimant whose title is disputed, until the latter shall establish his title by the judicial proceeding provided by law. Guillotte vs. Poincy, 41 An. 333, and authorities therein cited. 2.

<p>1. A previous appeal having been taken in tlie same cause, it is not necessary on a second appeal to copy the matter already embodied in a transcript on file in this court, but the clerk’s certificate that the new transcript, “ together with the transcript of appeal in this case already on file in the Supreme Court,” do contain, etc., will be sufficient.</p> <p>2. When the minutes show that the cause was submitted “after hearing pleadings, evidence and counsel,” and when the judgment recites “considering the law and evidence to be in favor of plaintiff,” etc., and when the transcript presents no evidence and no note of evidence, the court must presume that the judge proceeded on proper evidence.</p>

Ellis, J. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. Marbury vs. Mason, 1 Crancli, 168. All courts shall be open and every person for injury done him in his rights, lands,, goods, person or reputation, shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay. Con. of’ La., Art. 11; State ex rel.

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

A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. 1. A lessee’s possession of property is that of his lessor. 1-Ie can not dispute the latter’s title. 37 An. 732; 23 An. 585; 17 An. 154; 11 An. 632; 12 R. 214; lAn. 320; 10 L. 362; 8 R. 213; 11L. 173; 5 An. 36; 2R. 461; 6R.1S9; 6R.1; Abbott’s TrialEv.,p 528, No. 14. 2. A sheriff’s deed valid upon its face can not be treated as an absolute nullity in a collateral proceeding.

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

<p>1. .Act SB of 1888 conferred powers and imposed duties upon the Police Jury of Bossier to hold elections touching the location of the parish seat, and to ascertain and proclaim the result of said elections, and gave to its declaration and proclamation the effect of i2>so facto establishing the parish seat at the place so proclaimed to have been chosen.</p> <p>2. The Police Jury is, primarily, the judge of the nature and extent of its powers and duties under the law, and no person or officer is competent to question or reverse its determination, except by an appeal, in proper form, to the judicial power. Until reversed by such authority its determination must be respected.</p> <p>3. The declaration and proclamation by the jury of the result of the election, as being in favor of Benton, had the effect, under the law, of making Benton at least the defacto parish seat; and although its dejiw'e title may be in dispute in pending litigation, its defacto status must be accepted and recognized until the question of title is finally settled.</p> <p>4. It is of vital public interest that a parish should have a parish seat which should be fixed and certain. If the action of the Police Jury has been in accordance with the law, the parish seat of Bossier is at Benton. It had power to act; it has acted; its action can be set aside by judicial authority on issues properly framed; and until so set aside, every officer and person is bound to respect it.</p> <p>5. It is the clear duty of respondent to hold the terms of his court at the parish seat, and he, in common with all others, is bound to accept the action of the Police Jury, fixing Benton as the parish seat, until judieally annulled and set aside.</p>

<p>Appeals from tlie parish of Webster are under the law returnable to this court at Shreveport. If erroneously filed in New Orleans, this court can take no action thereon, except to strike it from our docket here.</p>

<p>The holders of old consolidated bonds of the City of New Orleans, the extension of which is provided for by Act 58 of 1882, by collecting the interest coupons and detaching them from said bonds, which matured after January 1, 1888, forfeit the right to have them extended.</p>

Monroe, J. 1. Section 7 of Act 101 of 1886, imposing licenses upon insurance companies, is graduated, and is therefore constitutional. State of Louisiana vs. Liverpool and London and Globe Ins. Co., 40 An. 468; 4 So. R. 504; State of Louisiana and City of New Orleans vs. Traders’ Bank, 41 An. 329. 2.

A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. _ All property acquired during marriage in the name of either husband or wife is presumed community. The general rule is that all donations inter vivos must be evidenced by an authentic act. The disposable portion is calculated upon the value Qf all property left by the deceased, and of all property donated by him inter vivos. The heir is preferred to the wife in a contest for administration.

District Court for the Parish of St. John the Baptist. Rostí «L Failure to arraign an accused in a capital case is a fatal defect. Where the record shows that in a capital case the accused has not personally plead to the indictment before the trial on merits, the verdict and judgment will be set aside and the case remanded to be proceeded with according to law.

<p>APPEAL from the Nwenty-fifth District Court for the Parish of Lafayette. Bourges, Judge ad. hoe.</p>

PPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J. When property is sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied are extinguished as far as the property is concerned, and the rights of the parties are transferred to the funds. It is not therefore necessary to reinscribe the mortgages to prevent their inscription being barred by ten years’ prescription.

<p>relative to Jurisdiction</p> <p>1. The defendant’s allegations in her answer, and the amount she claims, secure to her the right of appeal.</p> <p>2. The plaintiff and appellant, therefore, has ratione material a similar right of appeal.</p> <p>3. The court has jurisdiction of the appeal.</p> <p>On xiijí Meííits.</p> <p>1. Tlie testimony o£ tlie witnesses is conflicting and not satisfactory.</p> <p>Tlie price paid for tlie property, tlie improvements placed thereon since its purchase, the assessment for taxes, are necessarily given great weight in fixing tlie value of the property sought to he expropriated.</p> <p>2. Defendant’s demand for damages occasioned by the smoke, noxious vapors and loud jarring sounds caused by tlie engine and rolling stock, is not supported by the testimony; in addition, the amount prayed therefor is not decreeable under the cases of 85 An. 646, 88 An. 687.</p> <p>The damages arising from the depreciation in the value of tlie property, and from the difference in rental, are not proven.</p>

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

PPEAL from thG Civil District Court for the Parish of Orleans. Bightor, J, Properly certified copies of notarial acts make proof of what is contained in the original, unless proven incorrect. O. O. 2268. An act executed before a notary and two competent witnesses is an authentic act. O. O. 2234. The authentic is full proof of its contents unless declared and proved to be a forgery. C. G. 2336.

<p>An indictment which does not charge that the accused inflicted a wound “ less than mayhem,” as required by Section 924, R. S., amended by Act 17 of 1888, is fatally defective.</p> <p>Those words, “ less than mayhem,” or others of equivalent import, found in the statute, should have been used.</p> <p>Whether the facts were properly alleged or constitute an offence may be inquired into on a motion in arrest.</p>

<p>The granting of a severance lies within the sound discretion of the trial judge as a rule.</p> <p>A refusal to grant such severance will not he interfered with unless manifestly erroneous and injurious to the accused.</p>

<p>APPEAL from the Twelfth District Oourt, Parish of Rapides. Blaekman, J.</p>

Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne. “ 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 allowed.” 30 An. 528. “ The State is not under obligation not to have the accused tried before the regular term of court, because the latter has furnished bond to appear at such regular term.” Si An. 69.

Rightor, J. 1. Promissory notes, in unconstitutional commercial form, found among worthless papers of the deceased, with the words “ This note is paid in full ” written across them, sigifed by the deceased and explained, and accompanied by proof that this was done with the intention of discharging the malrers of the notes, will be held extinguished and remitted. 2.

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

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

<p>One thousand nine hundred and seventy-eight dollars does not exceed $2000. In tailing jurisdiction over a controversy involving that amount the Court of Appeals did not usurp authority.</p>

<p>:1. To maintain a prosecution for embezzlement there must be some averment made of the fiduciary relation sustained by the defendant and made by the statute an element of the offence; and it must be alleged that by vii-tue of said reflation and embezzlement liereceived into his possession the thing' which he is • accused of embezzling.</p> <p>;'2. The ownership of the property embezzled must be alleged.</p> <p>. It is not sufficient to allege that a certain draft was entrusted for collection ' without alleging to whom it belonged and for whose account the collection \ was made.</p>

<p>This court can not taire cognizance oí evidence embodied in a bill of exception to the denial of a new trial when said evidence was submitted to the jury on tlie trial of tlie accused.</p> <p>This court can not review the verdict of the jury on the facts before them on the trial of the accused.</p> <p>'The description of the. offence, in the language of the statute, is sufficient.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. ■‘N Rightor, J. 1. Fee simple title being shown to exist in plaintiffs’ ancestor, it continues in them unless divested, and the divestiture must be shown. 2. Right to batture is a right inherent in riparian property. It results from nat-' ural law, in consequence of the local situation of the land to which it attaches. Mun. No. 2 vs. Orleans Cotton Press, 18 L. 122. 3.

<p>1. In tlio decree rendered, and not in tlie opinion pronounced, will be found the thing adjudged.</p> <p>2. Commentaries on evidence contained in the opinion, not confirmed by decretal action based thereon, do not form the basis of res judicata.</p> <p>8. Where on application for rehearing a certain theory of the evidence is advanced on which a modification of the former decree is asked, if the modification asked is denied, expressions contained in the opinion refusing the rehearing, accepting or even approving the theory advanced, can not be invoked as res jxtdicata in a subsequent suit in which the same facts come in controversy.</p> <p>4. The plea of res judicata is stricti juris; it must be established beyond controversy, and doubts enure to the benefit of th’e party against whom it is pleaded.</p>

King, J. _ After the levee is advanced toward the river, and the batture brought within the dominion of private property by the extinguishment of the public use, and it is taxed and subjected as to possession and use to the will of the owner, a street can not be opened thereon without compensation being paid to the owner. 7 An. 78.

APPEAL frozo the Civil District Court for the Parish of Orleans» Voorhies, J. _ 1.Under Article 207 of the Constitution, the capital, machinery and other property employed in the manufacture of… Held: that newspaper publishers are exempt from license taxation under Article 206 of the Constitution.55 12 An. p. —, not yet reported. Opinion read April 7, 1890, final May 22,1890.

<p>1. Tlio interest o£ a deceased wife’s lieirs in community property is only residuary, and their inheritance is subordinated to the payment o£ the debts o£ the community.</p> <p>2. A surviving husband is personally and individually responsible for the payment of the debts of the community, while thewife is only contingently liable therefor; and the latter may relieve herself by making a renunciation of her interest in the community property, and after her death her heirs may relieve themselves either by renouncing her succession or accepting it with the benefit of an inventory.</p> <p>8. In case the claim of a community creditor is secured by a special mortgage, which is evidenced by an authentic act, importing a confession of judgment, and containing the non-alienation clause, he may foreclose the property mortgaged in executory proceedings taken against the surviving husband alone, and a judicial sale thereunder will convey a valid title to a purchaser.</p>

Beattie, J. It is not necessary to use in civil pleadings the words “ fraud,” “ error.” If the allegations of thepetilion tend to show fraud and error, evidence in support of the allegations will be admitted to prove them as though the words “ fraud,” “error,” were used. Moak’s Van Santvoord’s Pleadings; Bliss, Pleadings, Sec. 811.

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

A lien, J. The rule is that when some of the heirs are beneficiary, and there are debts, and the creditors or heirs of age demand an administration, it should be ordered* 80 An. 807, Succession of Olar..; 30 An. 93, and authorities cited therein.

King, J. 1. The following clause appears in the will of the late Colin J. Nicholson: “ To the support of asylums in the faith of the Protestant religion, specially devoted to the care of aged persons, $5000. This, or these, as the case may be, to be located in the city or parish of Orleans, La., and I leave to my executor the selection of such institution or institutions.” 2.

ElliSj J. 1. BAV. Marston personally is not a party to the suit in the lower court. He is not alleged to be either a principal or a surety to the debt claimed. The judgment against him individually in the lower court in solido with the defendant corpomMcm and its surety on the bond is erroneous. Suretyship is never presumed; it must result from the express terms of the contract. -C. O. 3039.

VoorhieSj J. 1. The city may be, as well as an individual, front proprietor. Mayor vs. XT. S., 10 Peters 717: Mmi. No. 2 vs. Orleans Cotton Press, 18 La. 122. 2. The city, in the present instance, owns all the land in front of plaintiffs fence. Ferriero vs. City, 85 An. 211; City of New Orleans, praying, etc., 20 An. 891. 3.

Pierson, J. On Motion to Dismiss. 1. Where the appeal is taken by petition out of court, citation is necessary. 581, 582, O. P. 2. An appeal bond which does not secure the costs of both courts is fatally defective, and the appeal will be dismissed. C. P. 578, 579 ; 33 An. 421; 4 An. 3; 13 An. 417; 28 An. 805. ON THE Mehixs. 3.

A PPEAL from the Twentieth District Court, Parish of Lafourche. Guión, J. Where title and possession concur in a vendee, creditors of the vendor are absolutely prohibited from attaching or seizing. This rule is absolute, and applies to movable property as well as to immovable property. 31 An. 862; 33 An. 26, L026; 35 An. 336; 38 An. 248; 39 An. 103, 488. 608; 41 An. 735.

Voorhies, J. 1. In the use of a franchise to erect and maintain poles and string wires along the public streets, the grantee is bound to comply strictly with its contract obligations, as to size and quality of poles and height of wires, and in method of erection, construction and maintenance; to use every precaution that prudence and foresight could suggest to make the structure safe to the people using the streets, and when its contract, as well as ordinary prudence,…

Blackman, J. The case of M. R. Starns vs. A. O. Lewis was a cause, an action brought before a court and therefore a suit. 0.1\ 95,147, and commenced by a petition addressed to a competent judge setting forth the cause of action. C. P. 171.

Where the demands are brought in the alternative, plaintiff can not be compelled? to elect. 27 An. 98. The effect of a certain act as estoppel depends upon “the intent with which the act is done,” and the circumstances existing at the time. 31 An. 371-3.

James. Duffel, J,; The signature of the testator to an olographic will need not be at the foot of it; it may be at the top, or in the body of the instrument. Lemoyne vs. Stanley, 3 Leving; Wright vs. Wright, 7 Bing. R. 457; White vs. Trustees British Museum, 6 Bing. 316; Sarah Mill’s case, 4 Dana, 1; Elizabeth Selden vs. J. Ooalter, 21st Vert, 264; Adams vs. Field, executor, 2 Va. Cases,«553; Dalloz, Ho. 2729; Pasicri-Sie, 1863, 2, 333.

. Hall, J. In a ease in which the tutor of the sole heirs is administering a succession without opposition from the creditors, a creditor, whose debt is acknowledged by the tutor and placed on his account, which has been homologated, has a legal right to demand the sale of sufficient property of the succession to pay his debt. 0 i. 383; 2 An. 462; 16 An. 420.

Mary. Allen, J. 1. Parol evidence oí the admissions of a party weakest of all evidence. When such party is dead, unless parol evidence of his admissions, acts, agreements, etc., urged against him are corroborated, and it depends solely upon the testimony of one witness, it will generally be disregarded. Bringier vs. Gordon. 14 An. 274; Bodenheimer vs. Executor, 35 An. 1005; Succession Townsend, 40 An. 66; Foote vs. Goodwin, 42 An. 521; 117 U. S. R. 580.

Monroe, J. 1. It is the legal duty of the Oity of NewOxdeans to keep its streets in repair, Act 20, 1882, Secs. 7 and 86, pp. 20 and 30, and is… Held: judgment must be rendered against the party in fault. Where all parties are before the court, justice will be rendered as to all. The law abhors a multiplicity of actions. C. P. 382; 41 An. 1040. The ease at bar is covered by the facts as well as by the reasoning of the court in Dominguez vs. Orleans R. R. Co., 35 An. 471.

Allen, J. 1. The 10-mill tax provived for in Article 214 of the Constitution of 1879, is in itself a local assessment. 2. Without Article 214 the power of the Legislature to enact Act 97 of 1890 would have been ample. 3. As Article 214 is entirely unnecessary, as an enabling provision, its sole object was to restrict the power of local assessment, which without it was practically unlimited. 4.

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

Semple, J. _A surviving husband is entitled to the benefit of homestead in a tract of land which belonged to the community, if all the conditions as to value, residence, dependent family, etc., exist. Marcotte vs. Messick, sheriff, et al., Manning’s Unreported Cases, page 42; Gamier vs. Sheriff et al., 39 An. 886; Constitution, Arts. 219, 220; Acts 1880, No. 114.

Hall, J To entitle a husband to claim from the succession of his deceased wife the marital fourth, under Article 2382 of the Civil Code, he must prove that his wife died rich, and that he was left by her death in necessitous circumstances. A husband who had abandoned his wife for seventeen years before her death can not be said to have been left by her in necessitous circumstances within the meaning of that article. 3 An. 713.

A PEEAL from the Seventeenth District Court for the Parish of East Baton Rouge. Buckner, J> 1. Where the father of minors die leaving an estate in community and the surviving wife and mother continue the same business with the labor and assistance of the minor children each heir is entitled to his portion of the succession of his father and mother, and the minors are not allowed pay for services during their minority. 2 An. 215, Ledbetter vs. Ledbetter. 2.

Buckner, J. When the State revenues of any year are insufficient to pay in full the warants of that year, it is the duty of the Treasurer to divide funds coming into his hands ratably among all outstanding warrants, making no classes or preferences among the warrants of equal dignity, but treating all alike. State ex rel. Bier vs. Burke, Treasurer, 37 An. 434.

Buckner, J. 1. Warrants issued under Act 67 of 1886, for aiding the trustees of the Southern University in erecting a “building for the education of persons of color,” should be paid as warrants of the second class, as provided in Act 47 of 1886. See See. 8, Act 47 of 1886; See. 3, Act 48 of 1888; Sec. 3, Act 82 of 1890. 2.

Buckner, J. 1. A juror, who lias a bias or prejudice, and wlio has formed an opinion, which ‘ can not be removed by circumstantial evidence, is incompetent. State vs. Jackson, 37 An. 768; State vs. Hunger, 11 An. 607. See State vs.Dugay, 35 An. 27; State vs. McGeheo, 36 An. 206. 2. The right of one accused, who exhausts his challenges, is not affected by the fact that his eo-dofendants have unused challenges. State vs. McLean, 21 An 546. 3.

Helena. Brame, J. Tlie promissory note in suit, having been given in pledge, and being actually now in pledge as collateral security, prescription can not run on tlie note. Posses- ■ sion of the pledge by the plaintiff is a constant recognition of defendant’s debt, and which prevents prescription even from beginning to run, 42 An. Rep., No. 8, p. 733. Aside from the foregoing the ease is with the plaintiff. The evidence shows interruption of prescription.

Buckner, J. ‘ 1. A judgment of dismissal is final. 2. A remittitur filed after judgment can not affect right of appeal. Gayden vs. L., N. O. & T. R. It. Co., 39 An. 269. 3. A judgment to be final need not settle all the rights of the parties. If it determine issues involved on the merits of the action, it is final and therefore appealable. Cary vs. Richardson, 33 An. 506; State ex rel. Ikerd vs. Judge, 35 An 212. 4.

Buckner, J. In a suit to annul a judgment brought within a year from its-date the judgment attacked can not be pleaded as res judicata. 82 An. 13, Holbrook vs. Holbrook. Otherwise the action of nullity would be a farce anda mockery, since the existence of the judgment attacked (which alone’givcs the right and the occasion to the action of nullity) would be itself a bar to proceedings to annul it.

<p>'Certiorari does not lie, under Article 90 oí the Constitution, to a District Court exercising its appellate jurisdiction over city courts, to determine whether oral or written proof should or not have been admitted and to correct an error, if any was committed, by the judge.</p> <p>Such question could only be considered, if the case were appealable and on appeal, and this case is unappealable to this court.</p>

Pierson, J. On Motion to Dismiss. A bond for devolutive appeal is sufficient [where its conditions are that appellant will prosecute his appeal with effect, or pay all such costs as may be awarded against him. O. P. 579. The amount in dispute is the highest sum for which judgment may be rendered under the allegations,and prayer of the petition. 39 An. 286. The amount claimed in the petition is the test of jurisdiction. 35 An. 1039; 39 An 830; 32 An. 1003; 33 An. 1051. 1.

<p>1. A statute authorizing the accused to waive the right of trial by jury and to ele'et to be tried by the judge, does not violate Article 7 of the Constitution. Affirming State vs. White, 33 An. 1218.</p> <p>2. If convinced that the waivcrhas been inadvertentlymade, it might be the duty of the judge to permit its withdrawal on timely application, i. e., made in such season as not substantially to impede or delay the course o£ justice; but a defendant who, with full benefit of counsel, has persisted in his waiver until after trial and judgment, certainly stands in no ease to complain.</p>

A PPEAL from .the Seventeenth District Court for the Parish of ii East Baton Rouge. Buchner, J. 1. Where the payment of a debt of a succession is secured by collateral security which the creditor neither attempts to collect nor deliver to the representative of the succession, and refuses to receive the money for the debt when tendered, he can not pursue the property of the executor and universal legatee which said property is claimed as a homestead. 2.

Montgomery, J. 1. When a debtor agrees to pay a.certain sum at a speeilied time, less the amount which pledged collaterals may realize, the creditor may as pledgee take legal steps to enforce the payment of the securities, but he is under no legal obligation to do so in tlie absence of any special understanding for that purpose. His failure to act can not be opposed to him when maturity haying arrived he seeks payment of his claim.

<p>APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buchner, J.</p> <p>An absentee may he validly cited, through a curator ad hoc, to answer in the court, within whose territorial jurisdiction is situated property belonging to him, when the purpose of the action is to enforce some real right against the property, orto enforce a contract respecting the same; and in such eases attachment is not necessary to vest the court with jurisdiction. Young vs. Upshur, 42 An. p. 3G2; Durruty vs. Mussacchia, 42 An. p. 357.</p> <p>An absent defendant can not he brought into court by substituted service on a curator ad hoc, unless in the same suit, property of his is subjected to the control of tile court by attachment. 35 An. 1184; 95 U. R., 714; 9 An. 34; 2 An. 562; 3 An. 101; 3 An. 417.</p>

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

<p>Where tlieproqcs verbal of the drawing of the jury shows that the acts of the jury commissioners were in accordance with Act No. 44 of 1877, it is sufficient. It is not necessary that the proees verbal should contain the evidence upon which their acts arc based. Where the proees verbal shows that the jurors were selected from qualified voters it is sufficient. That some of the jurors drawn are not qualified is not good grounds for setting aside the panel.</p> <p>Where the jury commissioners draw the jury in a room adjoining the clerk’s office, and which opens into it, and is a part of the office, this is a compliance with Act 44 of 1S77.</p> <p>The granting of continuances in criminal eases is a matter within the sound discretion of the trial judge, and will not be interfered with by this court, unless a manifest injustice has been done.</p> <p>It is a matter within the discretion of the trial judge to order the summoning of jurors in advance of the trial.</p> <p>When the accused challenges a juror for cause, which is overruled, and then challenges him peremptorily, when his challenges have not been exhausted, he is not aggrieved by the decision of the court, and has suffered no injury, as the juror did not participate in the trial.</p> <p>A motion for a now trial simply that the verdict is contrary to the law and the evidence will not be considered.</p> <p>Motions in arrest of judgment only can be considered when there are errors patent on the face of the record.</p>

<p>Tlie ruling of a trial judge in rejecting jurors for cause under challenge by the State affords no legal grounds for complaint on the part of the accused, unless after the exhaustion of his peremptory challenges an obnoxious juror has been selected to try him.</p>

<p>The defendant was charged, with burglary,under Seetion850of theltcvised Statute, “ whoever, with intent to kill, rob,” etc.</p> <p>The trial judge followed the language of the Statute in his charge to the jury.</p> <p>There was no necessity to charge that it was essential to find that the accused had acted with “ malice forethought ” in order to find him guilty.</p> <p>The jury were fully instructed with reference to the “ intent,” which must characterize the act, and there was no error in the judge’s refusal to charge as requested as to malice forethought: these words are not made essential by the Statute.</p> <p>The judge was also requested to specially instruct the jury with reference to drunkenness as a defence in a criminal ease.</p> <p>In his charge the jury was fully instructed on the subject; the special charge requested would not have added to the principle as explained. There was no substantial difference between the charge requested and that which was given.</p>

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

Ellis, J. 1. An exception of want of jurisdiction ratione materia, does not fit the ease, and is inapplicable to the issue. The points raised by the defendants could only be urged on an exception of want of jurisdiction ratione persona, or of no cause of action, or upon the merits. 2. An injunction operates in personam.

Monroe, J. ' 1. The petition of Jung, syndic of L. O. Desforges & Co., for the nullity of plaintiff’s judgment herein, shows no cause of action; and our exception to it should have been maintained. Plaintiff and defendant have done no act, and entered into no contract open to attack under the insolvent laws of this State. 2.

Voorhies, J. A travelling salesman paid by a certain portion of the profits realized on his sales is a salaried clerk. And as such is entitled to the privilege on tlie bankrupt estate as “ clerks, secretaries and other agents of that sort.” under R. C. 0., Arts. 3214, 3252, 3254. Codes Franeais Annotes, Teulet, D’Auvilliers et Sulpiey, page 669, Art. 2102, Nos. 33,34, 35, 36, 37, 38,46, 47, 48; Journal du Palais, Tom. 33, p. 256; lb.

<p>Notice to the delinquent tax payer is an essential prerequisite to a valid sale o£ his property for taxes.</p> <p>There is no law preventing the State from having property adjudicated to her at a ■ tax sale.</p> <p>Act 80 of 1888 is a curative and remedial statute, and is therefore constitutional. If it exceeds legislative power in some respects, it is to be confirmed so far as it does not violate the constitutional right of the property holder. Under eonstitional direction, it is discretionary with the Legislature to provide the time, and manner of notice, but it can not dispense with notice altogether. Act 80 of 1888 therefore does not cure the defect of the entire absence of notice.</p> <p>The rule in construing such statutes is, that the Legislature may malte the tax deed conclusive evidence of compliance with every requirement which the Legislature might, in the original exercise of its discretion, have dispensed with, and may validate retrospectively the proceedings which they might have authorized in advance.</p> <p>Where the plaintiff in a suit to annul a tax sale pleads the prescription of the tax, a tender is unnecessary. And also when the amount is indefinite and uncertain.</p> <p>In order to plead the prescription of three years in bar of the action to annul a tax sale under Section 5 of Act 105. of 1874, the defendant must be in possession of the property. When such possession is shown, it puts the original owner under notice of the necessity ol bringing his action, ancl if lie fails to bring it within the prescribed time, the bar of the statute applies.</p> <p>Whore property which is delinquent for taxes is ltept on the assessment rolls, and the tax for subsequent years is regularly assessed to the original owner and paid by him, it would be against justice and good conscience for the State, without notice to the owner, to sell the property and have it adjudicated to the State.</p> <p>In ease an appellee prays for a rule on the appellant to show cause why a decree should not issue, on the ground that the judgment and decree of this court has bocomefinal because appellant’s motion for a rehearing was unaccompanied by a printed statement of points and authorities on which same is'founded, in obedience to Rule IX of this court, it is a sufficient answer for the appellant, to state that, for a rehearing, he solely relied upon the points and authorities cited in his original briefs, on file, and upon printed briefs to be filed by an amicus auriui to whom an extension of time had been granted for that purpose. In answer to a rule filed by appellant’s counsel, pending the determination of the appellee’s rule, and his own application for a rehearing, it is a sufficient an swer-for the appellee, to state this relief is not appropriate at this time; that such an application must be made on the original hearing of the appeal in. this court; and that such a rule should have been thereon contradictorily taken, and not exporte as in this case.</p> <p>3. Having made an alteration in a previous decision, with which the opinion in, the instant case was manifestly in conflict, thus harmonizing the two, there is-no occasion for the allowance of a rehearing.</p>

Rost, J. I. When an act has but one essential object, and that is expressed clearly in its title; and when every clause of the Act relates exclusively to the mode of attainment of that one object; and when the sections of the Act are directly responsive to the title, and are germane and related to each other, the Act is in accord with Article 29 of the Constitution, and is constitutional and valid.

King, J. The contract of the City of New Orleans with the Firemen’s Charitable Association and its successors, for the extinguishment of fires in this city, can not be modified as if it were an ordinary contract.

Talbot, J. 1. Tt is not necessary to allege want of probable cause in action for damages for libel and slander. This is necessary only in cases sounding in damages for malicious prosecution. 2. In an action of slander or libel, the only possible defenses are a denial, a justification or a confession under mitigating circumstances. R. S. 3640; 14 An. 406; 15 An. 36; —An. 469. 3.

<p>1. An executor who pays hills, some oí them afterward shown not to have been due; who delivers property to legatees and thereby renders it impossible to execute the terms of the will, and makes these payments and delivery after the judge had refused to allow them to be made; after his dismissal will not be reinstated on appeal.</p> <p>2. Ordinarily a direct action must be instituted to destitute an executor from Iris office, but when the law and the will of the testator are disregarded, his dismissal will be maintained, although made on trial of an opposition to his account, when in the opposition charges of maladministration arc made and are proven without objection.</p>

Monroe, J. I. The brief contains an abstract of the pleadings and a full statement of the facts. There is no dispute about the essential facts of the case. They are neither admitted or established by uncontradicted evidence. II (a) Exception of no right of action. 1. The requirements of the City charter in respect to an annual estimate or budget of expenses and revenues does not apply to the reserve fund. State ex rel.

<p>Doubtful claims against an applicant for tlie administration of a succession are insufficient to exclude him, particularly where he raises counter pretensions for alike or larger amount against the deceased, and enjoys a good character and the confidence of the opponent.</p> <p>If he be liable and fails to charge himself with the debt, on an opposition by the parties concerned, duly proved, the court will have power to hold him.</p> <p>The exercise of discretion in such matters by the probate judge, will not be lightly interfered with by the appellate court.</p> <p>In the absence of a joinder in the appeal, or of a prayer to amend in this court, by an appellee, the judgment appealed from, as to him, must remain undisturbed.</p>

<p>Answers of garnishees to interrogatories are presumed to be truthful and entitled to full credit until traversed successfully by conclusive proof.</p> <p>•Service of garnishment process on parties supposed to have in their control prop- . orty belonging to a defendant against whom .an attachment lias been issued, secures nothing when made after such property has passed from thepossession of the garishees.</p>

<p>1. Previous phases oí this litigation reviewed.</p> <p>2. The sureties on the bond of the liquidator bound themselves for his honest and faithful administration, and for his rendition of “ a true, just and perfect account of his actions and doings” as such; the object of the bond is to hold the obligees harmless from fraud, shortcomings and malpractices on his part.</p> <p>3. Neither the liquidator nor his sureties can shield themselves from responsibility for fraudulent waste and conversion of assets because effected by means. of sale under a judicial order, during the pendency of an appeal from said order, on which it was. annulled and set aside, and when it is shown that the order was invoked and executed as a means of transferring the effects of the partnership to the liquidator himself, at a ruinous sacrifice, and with the fraudulent purpose to enrich himself enormously at the expense of his co-partner.</p> <p>4. The law furnishes a remedy against fraud, whatever guise it may assume, and even when perpetrated through the machinery of judicial ordersand decrees, where the court is made its unconscious instrument, it is not beyond remedy when exposed.</p>

<p>1. When the pvoces verbal oí the meeting of creditors shows a failure to elect a syndic, a petition by a creditor affirming the proceedings and praying- to be appointed syndic, is not an opposition required to ho filed within ten days after the meeting.</p> <p>2. Objections by an opponent to the .validity of votes east at the meeting examined and overruled.</p> <p>3. In «ase of failure to elect a syndic, and contest between two creditors for appointment as syndic, the judgment of the court appointing- tire sheriff will not be overruled on the complaint of the applying creditors when the result Ivould he only to remand the ease for choice between him and his opposing candidate, which would probably result in favor of the latter.</p>

<p>What is termed a pica of no cause of action, ceases to bo such, and degenerates into an answer, if it presents an essential averment of fact nut stated, or admitted in the petition.</p> <p>Dilatory pleas must be tendered and disposed of in limine, and can not be legally embodied in an answer.</p> <p>The prescription of one year, which is provided by R. O. O. 2498, is not applicable to a suit instituted under It. C. 0 2511 and 2314. 4</p> <p>The articles of Code of Practice 410 etseq., relative to “ real tender” do not relate to a suit brought under the last mentioned articles of the Revised Civil Code; but the putting of defendants in mora, in conformity to Articles 1911 and 1938, is required in suits for the rescission or cancellation of sales.</p> <p>In case a party to a contract of conventional sale of real properly, seeks its cancellation on the ground that he has been evicted from a portion thereof which is of such consequence relatively to the whole that he would not have purchased it without the portion from which he has been evicted, the question is, whether in point of fact, the plaintiff has been evicted from a part of the property possessing such consequence, when the contract wa§ entered in.fco,that its acquisition operated as an essential inducement to the trade.</p> <p>An absentee may be brought into the courts of this State by means of substituted service in all cases partaking of the nature of an action in rent; but lie can not be thus reached and subjected to judgment in our courts in a purely personal action.</p>

Landry, J. Unless ordinance shows no action for penalty was intended without prior demand, unnecessary to aver one. Unnecessary to aver notice of ordinance, this being conclusively presumed as to all on whom it is binding. Dillon Mun. Cor. See. 41G, ICd. of 1S90. All on whom ordinances are binding are bound to take notice of them. Dillon Mun. Cor. Sec. 306, Ud. of 1890. The notice referred to in Ordinance 3175 O. S. has no reference to the fine imposed in this ease.

<p>Same syllabus as in preceding case.</p>

Hall, J. The reservation by the parents in an act of donation inter vivos made to the minor children of their marriage of the “use and occupancy” of the immovable donated is not a reservation of the “ enjoyment and usufruct,” under C. 0.1533. There are three hinds of personal servitude: usufruct, use and habitation. C. C. 646. Usufruct defined to be the “ enjoyment ” of property. C. C. 533. Enjoyment used to signify usufruct. C. C. 223. Use defined.

<p>A suit should not be dismissed for inconsistency and improper cumulation o causes of action, In haying cumulated an action of partition with a petitory action.</p> <p>Demands not inconsistent may be brought in one petition, when between the same persons, in the same capacity, and when they are not contrary to each other, both as to the cause of action prayed for and the relief.</p>

<p>AToney received under a compromise can not be retained and at the same time the contract he annulled.</p> <p>'Tender or deposit of the same is an essential allegation.</p> <p>As long as the plaintiff retains the consideration and does not deposit the amoun received he is estopped.</p>

<p>The Supreme Court can exercise no jurisdiction over a criminal cause, when the transcript has been filed long after the return day, at a place at which the ap • peal was not made returnable, in the absence of any just cause shown author* izing the delay and irregularity. Appellant must stand the consequences of his laches.</p>

<p>An accused is not entitled to have a new subpcena issued in place of a previous one,, not returned served on the day of trial, when it appears that he is guilty of want of due diligence, andhisobject is delay; particularly when, on intimation of the trial judge, that if amotion for a continuance is offered and a showing made in support, he will allow relief — the accused declines action and rests on his.motion for a new subpcena.</p>

Monroe, J. The State Couvts have jurisdiction (concurrently with theU. S. Circuit Courts), of all suits of a civil nature, when the amount in dispute exceeds $2000, arising under the Constitution and Laws of the United States, inciutlingthe act to regulate commerce as one of those laws. 2*1 Statutes at Large, p. 552, year 1887; Olailin vs.Houseman, assignee,98 17.S. 180; Fystervs.

<p>1. Jeopardy o£ accused docs not begin until the jury is completed and sworn, and prior to that time the State’s attorney may not. pros, the indictment without prejudice to now proceeding for same offense.</p> <p>2. Plea of former jeopardy, when, on its face, bad in law, is demurrable, and may bo decided by judge without reference to the jury.</p> <p>3. Evidence of bad character of party injured not admissible when accused was the attacking party, and the attach was not necessary for self-defence.</p>

PPEAL from the Ninth District Court, Parish of Tensas. . Young, J. A foreign corporation organized for tlie purpose of investing money in mortgage securities, which has at one time seven investments in mortgages on lands in this State, running for a period of years, and which, by its agents, attorneys and employes, inspects and values property, examines titles, makes contracts, takes and approves securities, accepts mortgages, looks to the insurance of the property and…

<p>APPEAL from the Twenty-Third District Court, Parish of Iberville. Talbot, J.</p> <p>R. S., Sec. 701; New Orleans and Opelousas Railroad Oo. vs. Lagard, 10 An. 158; Vicksburg and Shreveport Railroad Co. vs. Oalderwood, 15 An. 481; New Orleans Pacific Railroad Oo. vs. Gay, tutor, 31 An. 431; Railroad Oo. ys. Dillard, 85 An. 1005; Railroad Oo. vs. Francis, 70 Ills., 238; Snyder vs. Railroad Oo., 25 Wys. 60; Railroad Oo. vs. Capps, 67 Ills. 607; Pierce on Railroads, 213; Schuylkil Navigation Co. vs. Farr, 4 Watts & S. 362; Rover on Railroads, 373, 383; Sutherland on Damages, 442; Troy and Boston Railroad Oo. vs. Turnpike Company, 16 Bob. 100; Railroad Oo. vs. Old Oolony Railroad Oo., 12 Quish (Mass.) ; Ricket vs. Metropolitan Railroad, 2d English and Irish Repeals (Law Reports), 175; Mills on Eminent Domain, par. 159, p. 194; Section 698, R. S., in so far as itrelatesto the plan to be filed with the petition in expropriation'proceedings is directory, not mandatory; Remy vs. Munipipality, No. 2, 12 An. 500; Telegraph Oo. vs. Railroad, 37 An. 883.</p> <p>1. Plaintiff has attempted but failed to prove any corporate action by it in compliance with the terms of its charter to authorize the expropriation of defendant’s property or of any rights thereon.</p> <p>2. Where property is expropriated, the leastpossible interest in it consistent with the purposes for which it is required, is to be condemned. This is true upon principle, and is consecrated as to telegraph companies, in this State by statute.</p> <p>(а) Upon principle: Lewis on Eminent Domain, Sec. 27S.</p> <p>(б) By statute: Act No. 124, Acts of 1880.</p> <p>The judgment in this case should be amended to conform to those principles.</p> <p>3. The judgment of the lower court,,in so far as it decrees that the amount of ' damages allowed by the jury should be paid into court, and not to the defendant, is clearly erroneous for several reasons:</p> <p>(а) Because the record failed to show any mortgage bearing upon this property or rights sought to be condemned.</p> <p>(б) Because no mortgag! does or can exist on the judgment for damages.</p> <p>(c) Because plaintiff in its petition claims no such right; but distinctly prays • that the sum awarded he paid to defendant.</p> <p>(cl) Because the Constitution of 1879, Article 156, which was subsequent in date to the statute providing for the payment of monoy into court, provides specifically that private property shall not be taken or damaged for public purposes without just or adequate compensation being first paid.</p> <p>A payment into court may indeed be security for the payment to the defendant, but it is not payment to it.</p> <p>Since the adoption of the Constitution the only way in which plaintiff could protect itself against mortgages, if any existed, would have been by making any alleged mortgagees parties. This, we asked to have done, and plaintiff declined</p> <p>4. Upon the record, the valuation placed by the jury on the rights expropriated, and the amount allowed by it ior damages, is a very low and conservative one. This court can certainly not distui-b the verdict and judgment upon any evidence in the record. It could at most but remand the ease, which is not asked by plaintiff.</p> <p>The proper measure of recovery in expropriation cases is the value of the property condemned, fixed upon the basis of its adaptability for the purposes for which condemned, and this is evidently the valuation adopted by the jury. Boom Company vs. Patterson, 98 U. S. 403,</p> <p>5. The-lower court erred in admitting improper evidence against us, which ruling was duly excepted to. The evidence in question was evidence of alleged benefits to be derived by defendant from the construction of plaintiff’s line of telegraph. This evidence was inadmissible under C. C. 2633. .</p> <p>The lower court also erred in excluding tile evidence of the cost of clearing- and keeping clear the right of way — evidence clearly admissible to show peculiar adaptability and value of the right of way for telegraph purposes.</p>

PPEAL from the Ninth District Court, Parish of Concordia. Young, J. 1. The sale of a plantation without the “ lease, use and possession ” thereof, and ' without the “ growing crop on said plantation ” does not comply with the law, and therefore is not a judicial sale. C. P. 656; O. C., Arts. 467, 3282. 2.

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

Coco, J. 1. The right to have a sale dissolved for nonpayment of the purchase price is one given to the seller by the textual provisions of the Code, Articles 2045, 2046, 2561. 2. Where the purchaser of immovable property who has not been evicted tliere- . from makes no offer to return the same, he can not both keep the land and refuse to pay the price. 26 An. 709 8.

King, J. In a suit for damages for personal injuries, a defendant wlio pleads contributory negligence, admits his own negligence. 42 An. 4; Am. and JKng. JKncycl. of Law, p. 18; 34 An. Í0SS; 32 An. 617; 3R An. 116, A contractor sued for damages caused by a defect iii public work, which lie agreed to keep in repair, can not urge a want of notice of the defect, where he denies that the defect existed. 37 An. 492, 495.

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

A PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J. A married woman can not stand in judgment without the authority of her husband or in the event of her husband’s inability to authorize her, without being authorized by the court.

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

King, J. 1. Where the interests of a minor and liis tutor are conflicting, any judgment rendered against a minor is a nullity where he is not represented by the under tutor, o: P. 275; 1 lien. Held: that the title to the land never vested in the community. * •* *

Coco, J. Every act whatever of man that causes damage to another obliges him by whose-fault it happened to repair it. Art. 2315, C. C. * The right of action arises when the final judgment causing damages is obtained, and not when payment is made. 25 An. 307. Damages are caused the moment a final judgment is entered against a persón and his right of action for the recovery of same thereon arises.

Monroe, J. The transcript made up under tlie direction of opponent’s counsel, purporting to embrace three several parts, is not aided by any assignment of errors, and is so confused and incomplete that the appeal should be dismissed. Miller vs. SUctwell, 88 An. 108; Samuels vs. Brownell, 88 An. 84.

King, J. 1. Payment to the tutor of a debt due the minor discharges the debtor. 2. Where a trustee invests in his own name trust funds, the cestui que trust can not elect to claim the pi-operty in which' the funds have been invested, instead of holding the trustee personally liable, where third innocent persons would be injui-ed by such election.

Bitckner, J. 1. The duty imposed on the Secretary of State is purely ministerial; hence mandamus will lie. 76 Va. 884; 79 Id. 269; 40 An. 895. 2. The State is not a party to this suit; any citizen could have instituted it to compel performance of a public duty. 11 An. 140; 9117. S. 855. 8. The Secretary of State refused to publish the amendment on the sole ground that it had not been presented to the Governor for lii$ approval.

<p>An appellee is not entitled to be cited to answer an appeal where the motion ot appeal is made and granted in open court within ten days after the signature-o£ the judgment, the order making the appealreturnable to the Supreme Court on a stated day.</p> <p>An appellant derives the right of giving a thing in pledge in place of a bond, not from the court, but from the law. A deposit of municipal bonds for an ample amount, made with the Clerk of Court, within the ten days, perfect the appeal.</p> <p>The essential allegations of fact contained in plaintiff’s petition are not supported, but negatived even by his own testimony.</p> <p>An employee in an oil mill, who is directed by a superior to go to a distant point, with no direction as to the route to take, if he is ignorant of the route, should inquire; and if, failing to inquire and without the direction or knowledge of the superior, he selects an improper and dangerous route through and amongst machinery and passing over and under running wheels and belts, when there were other proper and safe routes, he is at fault and assumes the risk of resulting injury.</p> <p>Where the evidence leaves the cause of an injury unproved it can notbe attributed to defendant’s negligence or fault. ></p> <p>The failure of defendant to summon a witness who was an employee at the time of the accident a year preceding the trial, in absence of any proof that he-remained in its employ, or was accessible, or was even living at the time ot trial, can not sustain any presumption against defendant.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J. 1. A widow seeking to recover from a third person, or to maintain an action concerning property belonging to the community, should establish the marriage as conclusively as any other fact. Her capacity to stand in judgment is as essential a fact of proof as any other, especially when her right to sue has been put at issue by the pleadings. 15 An. 410. 2.

Coco, J. 1. Sales of property perfected in other States do not carry the vendor’s privilege when sued upon in Louisiana unless such privilege be affirmatively proved to be accorded by the laws of such States. 41 An. 1048. 2. Privileges are strioti juris, and, as against third persons, must be clearly and conclusively established.

Buckner,..J. 1. A direct action of nullity will not lie to set aside a probate sale made in Hast liatón Rouge parish in 1872, in succession proceedings provoked by the public administrator. Field vs. Gagne and wife, 31 An. 182; Chapman Ex. vs. Nelson, Id. 341. 2. If it lies, plaintiff should not be required to bring it, but should bo allowed to attack the sale collaterally, for lack of jurisdiction. Weeks vs. M. L. S. and W R. R. Co., 47X. W. Rep. 737. ■ 3.

<p>A stipulation made between a mortgage creditor and an executor and liis counsel, to the effect that the creditor will not foreclose his mortgage, but will permit the sale of the mortgaged property by the executor upon terms of credit, in order that it may realize a larger price, provided the executor and his counsel will not charge commissions or counsel fees upon theproeeeds, will be enforced, if said contract is plain and unambiguous, and free from suggestion of fraud or ei'ror.</p>

<p>ON MOTION TO DISMISS.</p> <p>Suit having been brought against a State tax-collector for the revocation of a tax title he had made to the State, and judgment having been rendered annulling it, he is competent, quoad /¿oc, to prosecute an appeal for the State, and stand in judgment here.</p> <p>Personating the State, as such a suit concedes him to be, the State tax-collector was under no obligation to furnish an appeal bond, and the judge a quo properly dispensed him from it.</p> <p>ON TUB MBRITR.</p> <p>1. Notwithstanding a sale to the State was made in the enforced collection of State taxes of 1881, yet, being made in January, 1885, it was authorized by the terms of Sections 52 and 59 of Act 95 of 1882, and theproperty was correctly adjudicated to the State.</p> <p>2. The properly was adjudicated to the State, as the last and highest bidder, at public auction. A forfeiture for the non-payment of taxes is, ordinarily accomplished by the registry of a delinquent list, in the office of the recorder of mortgages or auditor of public accounts, whereby the title of alt properties lliereon listed passes to the sovereign by a statutory condemnation .</p> <p>3. Section 5 of Act 105 of 1874 is a recognized tax statute of prescription, which limits the time within which the original owner of property alienated for taxes shall be allowed a right ol' action against a purchaser, to invalidate his title. This prescription is sui generis.</p>

Ellis, J. ■1. A provisional syndic is entitled-to receive for his trouble and services 1 per cent, on the appraised value of the goods and effects confided to his care. 11. S., See. 1793. 2.

King, J. 1. The test of the funclahility of State bonds, under the funding law, is that they were issued in conformity to law, not in violation of either the State or Federal Constitution, and for a valid consideration. 31 An. 46; 40 An. 379. 2. The bonds, issued by the State in aid of tile property banks, are fundable under the terms of the funding law. 30 An. 611; 30 An. 1151; 34 An. 770. 3.

Monroe, J. 1. Needs of sale under Act 82 of 1884, have been recognized by this court, as valid titles to real estate, and this is especially so where it is shown that the owner was alive during the years for the taxes of which the property was sold. In re Lake, 40 An. 143; in re Douglas, 41 An. 766. 2. The only defense herein set up and the only objection made to the title by defendant, is that the former owner did not receive the notice rcciuired by law.

Ellis, J. 1. “ It is not negligence.per.sc for a passenger to expose his hand or arm outside of a street car.” 5 Mo. App. 471; 6 Cent. L. J. 333; 41 Cal. 10Ü; 17 SYis. 487; 39 Mo. 468; 52 Mo. 283; Am.andEng.

King, J. In a suit for damages for personal injuries, a defendant who pleads contributory negligence admits his own negligence. 12 An. I; Am. and Ting. TCncycl. of Daw, p. 18; 31 An. 1088; 32 An. 617; 38 An. 116. A contractor sued for damages caused by a defect in public work, which he agreed to keep in repair, can not urge want of notice of the defect, where he denies that the defect existed. 37 An. 192*195.

VoorhieSy J. A suit can not be dismissed for failure to comply with an order for a bond for costs, under Act 136 of 1880, except upon a motion to that effect, setting forth the failure to file the bond, asking the dismissal. No additional bond for costs can be required, pending the trial. A suit can not be dismissed for failure to fileabond, after judgment; nor in any event after the bond is filed.

PPEAL from the Civil District Court, for the Parish of Orleans. King, J. 1. Property employed in the manufacture of machinery and agricultural implements, where not less than five hands are employed, is exempt from all taxation for a period of ten years from the adoption of the Constitution (December, 1889), say 1st January, 1880, to 31st December, 1889. Constitution, Art. 207. 2.

1. Plaintiff, pledgee of mortgage notes, has a right to sue thereon in his own name. 36 An. 257; 33 An. 624 ; 30 An. 714; 28 An. 419; 89 An. 322; 21 An. 3. Pledgor’s insolvency does not effect pledgee’s right. 38 An. 864; 1 An. 31; 94 U. S. 734. 2. Pledgor can never come in competition with pledgee, nor in any way diminish or impair the value of the securities pledged. Troplong, des Priv. et Hyp. v. 1, No. 367; Grenier, v. 1, 93; 2 Rob. 241; 29 An. 548.

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

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

<p>Contributory negligence by a person, walking on the streets, will make it impos sible to recover from defendant sued for damages.</p> <p>The carrying a plank on the shoulder, measuring in length about six feet, on a principal thoroughfare, is not wrongful, but the person carrying it should be more than ordinarily careful. If an accident happens to him when attempting to board a steam street railway and the defendant company is not at fault, damages will not be allowed.</p>

<p>The functions of the writ of certiorari can not bo invoiced to pass upon the correctness of a judgment of dismissal rendered by a court of competent jurisdiction, in a case in which the proceedings have been regularly conducted.</p> <p>Those functions are restricted to ascertaining the validity of proceedings on the face of the record, in point of form.</p>

<p>A suit to annul a judgment need not be allotted, as cases before the Civil. District Court' for the parish of Oi'leans are required to be, under the Constitution.</p> <p>Such suit must be determined by the division in which the judgment attacked was rendered, which is the only one competent to pass upon it.</p> <p>If alloted to another division, it would have to be referred to the division in which the judgment attacked was rendered.</p> <p>Mandamus issues for the performance of a ministerial duty, and never to coerce 'the exercise of a judicial discretion, in a pm-tteuldr-teay. The judgment of a competent court can not be controlled in that mode by that of the appellate court, which can reverse it on appeal only, or where grave irregularities of form in the proceedings require it.</p>

Mouton, J. Where, in a.capital case, the jury is proved to have separated after they have retired to deliberate — especially where the proof is that a part of . the jury remained for a time out of the court-house, out of sight and out of hearing of the remainder, bad conduct will be presumed, and a verdict of guilty will be set aside.

<p>1. Tlie power of courts in Louisiana to appoint receivers is exceptional and limited.</p> <p>2. Courts have no power to appoint a receiver e.c ¿wrtfcwithout notice to or hearing of the parties in interest.</p> <p>8. The receivership in this case is an incident of a suit to which‘the City of 2>Tew Orleans is a party; and she is entitled to notice of all proceedings taken in such suit affecting lier interest.</p> <p>4. The receivership was only established by the consent and on the joint application of the city, and was limited to a special matter defined in the oi'der; itcan not be enlarged and extended to embrace other enormously increased powers without notice to the city.</p> <p>5 The city has an obvious interest in the question whether or not a receiver should he vested with the additional powers demanded, and should have been, notified and heard, before order granting them was made.</p> <p>6. This is not a proceeding to remove a receiver validly appointed; it is a motion* to vacate orders improvidontly and illegally granted without compliance with requirements of law; and the power of courts to vacate such orders is well established.</p>

<p>The object of tbe judicial stamp act is to secure the contributions to the judicial expense fund, not to set traps for litigants.</p> <p>It appearing that under the practice of the court and the custom of the clerk’s office it is permitted, when not objected to at the time, to use documents and testimony on the trial and to stamp them subsequently; and further, that in making up transcripts of appeal, it is the clerk’s custom to notify the counsel interested when he discovers any document that has been used in evidence to be unstamped, in order that he may supply the omission, the failure of the clerk, in haste, to notice an unstamped document and to give the customary notice, should not he visited on the appellant, who has relied on the clerk’s custom and on his complete certificate, as a fault depriving him of his appeal, when the omission of the stamp has been inadvertent, and is supplied as soon as discovered and before the appellee has suffered any possible harm.</p> <p>A railroad company whose freight train derails and runs into an adjoining building, causing damage to person and property therein, in the absence of justification and without contributory negligence on the part of the injured party, is guilty of gross negligence and liable for indemnity.</p>

<p>2. -It is unnecessary for an affidavit, filed before the judge of a recorder’s court, in the city of New Orleans, charging the violation of a city ordinance, to set out the charge in the manner and form, and with the circumstantiality of aver ment, that is requisite in the confection of a criminal indictment.</p> <p>'2. Vor the punishment of persons offending city ordinances, tlie power is lodged in municipal officers, and much must be, necessarily, left to their sound judgment and discretion in the manner of its exercise.</p>

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

<p>Tile mortgage securing shares of stocir of the Consolidated Association of the Planters of Louisiana, being extinguished by reason of the prescription of the demands of the association against the shareholders, the recorder of mortgages may he coerced by mandamus to cancel the inscription thereof from the mortgage records.</p>

<p>APPEAL from the Twenty-fourth District Court for the Parish of Plaquemine. Livaudais, J.</p>

<p>1. Placing claims for collection in the hands of a “ Bad Debt Collecting Agency ”• will not give an action for damages, when it is not proven that the threats made by the agency to place the debtor’s name in the list of those who can pay and are unwilling, nor that the threats made to advertise the account for sale, were carried out.</p> <p>2. Sending pressing and annoying letters, by the creditor to his debtor^ urging him to pay, is not actionable, it not beingproven that any publication has been made of their contents, or any steps taken which could oppress and injure the debtor.</p>

Baird, J. 1. Under the laws cf Louisiana legatees are divided into three general classes, viz.: Universal legatees, legatees under a universal title, andlegatees under a particular title. C. C. 1606,1612,1622. 2.

<p>1. An attorney at law, employed in any given case where attachment process is requisite, is authorized to make the necessary oath, withoufotlier procuration.</p> <p>2. A party intervening in a suit and joining the defendant in resisting the plaintiff’s demands, must for himself appeal from a general judgment against defendant and intervenor, otherwise he can not obtain relief therefrom. An appeal by the defendant will not suffice for that. A defendant who alleges in his answer the untruthfulness of the plaintiffs affidavit for attachment must make 9,ut the charge by a fair preponderance of proof.</p>

<p>The district judgeds peculiarly competent and well qualified to judge of the value and credibility of witnesses residing in his vicinity, and with whom he is personally acquainted, especially in reference to questions of fraud and collusion,, and his finding in such a case ought not to be lightly considered, or readily disturbed.</p>

<p>The power vested by Article S9 of the Constitution in the Supreme Court, and each of the judges thereof, to isuse writs of habeas corpus, is one of original, and not of appellate, jurisdiction.</p> <p>The Supreme Court will, in the exercise of its original jurisdiction in matters of habeas corpus, decline to review the testimony taken before the District Judge on a preliminary examination. Ilis jurisdiction in matters of habeas corpus is concurrent.</p>

<p>The vendor of lands who warrants the title cannot redeem them in such a manner as to invalidate the title he is bound to warrant.</p> <p>2. When the vendor obtains from the Stale, or from a donee of llie State, a recognition of his rights, and a return of the land, he can not, by having the title placed in the name of another, escape the responsibility of a warrantor.</p> <p>3. The one in whose name the title is made out can not hold the lands adversely to those who bought from the tax debtor.</p> <p>4. The Hoard of Levee Commissioners acknowledged the title of the tax debtor, and because of his right gave up all claims. Ly placing the title in the name of another, who had notice of the sale, previously made by the tax debtor, it will not enable'the purchaser to hold these lands against the purchasers from the tax debtor.</p>

Wear, J. A deed conveying land to'several persons by name and not stating the interest devised to each, necessarily conveys to them a joint title. Bouvier’s Law Dictionary, p. 678, Tit. Joint. The validity and effect of contracts aro to be determined by the law of the place where made. O. J?., Art. 10; C. 1\, Art. 13; 12 An. 489, 199,24; An. 363; 10 An. 415.

<p>1. A demand for a separation of property may be cumulated with a demand for a separation from bed and board.</p> <p>2. A separation from bed and board may be obtained on account of habitual intemperance, or cruel treatment. Though both be alleged, proof of either is sufficient.</p> <p>3. Habitual intemperance is the constant indulgence in sueh stimulants as wine, whisky, or brandy, whereby intoxication is produced.</p>

Wear, J. 1. The plea of res adjudieata applies to all definitive judgments, and a definitive judgment is one that decides all the points in controversy between the parties (C. P., Art. 539; C. C., Art. 2286), and no matter in what form of action or proceeding, whether by petition, intervention or exception, the question may have been presented, the same question oneo judicially decided between the same .parties acts as a complete bar. 19.La. Reports, p. 328; 32 An. 829. 2.

The right to the $1000 is apersonal one, and depends upon the condition o£ the person in whose favor it is granted. It is not a right that vests irrevocably in full property in such person, and forms apart of her succession which descends-to her heirs. It is aright that must be asserted and reduced to possession, demanded and received, before it can be vested in the party.

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

I. The property of the debtor is the common pledge of his creditors. C. O. 31$ 2. Every act done by a debtor with the intent of depriving his creditor of tho eventual right he lias upon the property of such debtor, is illegal, and ought as respects such creditor ho avoided. C. C. 1969. 3.

\ PPEAL from the First District Court, Parish of Caddo. Hides, J. 1. Every person wlio shall be indicted for any capital crime shall have a copy of the indictment and the list of the jury which are to pass on liis trial, delivered to him at least two entire days before the trial. R. S. 2997. The objection was timely, as it was made before announcing ready for trial, and before the jury was impanelled. 3 An. 50; 23 An. 020; 27 An. 206; 38 An. 470. 2.

Duffel, J. 1. The drawing of one incompetent member on a grand jury does not vitiate that body. Secs. 4, 5, 6 and 10, Act 44 of 1877; State vs. Foster, 31 An. 84; State vs. Washington, 83 An. 1403. 2. Where the incompetent grand juror has been setaside, the “sixteen” of Act 44 of 1877, being not sacramental, the remaining “fifteen ” can find a bill.

Duffel, J. A grand jury drawn with one disqualified person upon it is not thereby vitiated. Secs. 4, 5, 6 and 10, Act 44,1877. The incompetent juror being excused, the remainingjfifteon can find a bill. 11 An. 827; 15 An. 198; I’eotfie vs. Butler, 8 Cal, 485; A. and C. Kncy. of Law, p. 6, Vol. 9. There is no injury to’ defendant by the finding by fifteen. Bishop Criminal Pro., Vol. 1, p. 505, Sec. 855.

A PPEAL from the Criminal District Court for the Parish of Orleans. Lx Marr, J. A tales juror is a petit juror, and is covered by the provisions of Act Xo. 59 of 1878, Act 59 ofIS7S; 38 An. 481; Act Xo. 98 of 1880, Section 5; Act No. 138 of 1877, Kx-Sossion; Act No. 54 of 1888, Section 3; (! Wallace, 395; 108 Massachusetts Reports, page 21.

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

Pierson, J. “ The constitutional provisions wliicb guarantee to an accused the right to compulsory process is not a dead letter, and must be enforced. Under a proper showing for a continuance, on the ground of the absence of a material witness, the trial must be postponed.” 40 An. 74.1. “ Kvery person accused shall be permitted to establish his defence by anj- lawful evidence, and shall have the same process as the State to compel the attendance of witnesses.” It.

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

<p>In caso a party is charged with burglary and larceny, in one court, and is tried and found guilty as charged, and thereafter flies a motion for a new trial on the sole ground that the proof adduced was insufUeient to sustain the indictment for burglary: Held, that, at this stage of- the proceedings, it was competent and admissible for the District Attorney to enter a nolle prosequi as to the charge of burglary and prevent a new trial being- granted.</p>

Mouton, J. 1. Title is vested by a certificate of entry, and under such certificate the land enters fully into the domain of private property, and becomes subject to contracts; and such certificate is sufficient evidence of title to support a petitory action. 35 An. 931; 4 X. S. 260; 10B. 159; 11 B. 321; -19B. 334; 4 An. 262; 5 An. 197; 9 An. 137; 13 Peters, 436; 8 Howard, 461. 2.

<p>A juago is disqualified to pass on the homologation o£ an account, wliere the assignee o£ a claim, transferred by him, attempts to enforce its payment by an opposition to the account.</p> <p>Although the claim has been transferred without recourse, yet there is an implied warranty as to the existence of the debt, and the judge is interested to this extent.</p>

1. A plea of estoppel can not he maintained where it appears that the party, against whom the plea is directed, was ignorant of the truth relating- to the matter which formed the subject of the plea. 33 Au. 1194; 38 An. 813,100. 2.

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

Read, J. 1. Exceptions which affect the very foundation of the suit should be decided in limine, and should not be referred to the merits. 88 An. 525, Cochran vs. Violet etals.; 88 An. 282, Farmer vs. Halley. 2. Tender of the outstanding notes and such part of the price as has been paid by the vendee is a condition precedent to the institution of the suit. 38 An. 587, I-Ieirs of Castle vs. Floyd et als.; 23 An. 854, George vs. Knox; 21 An. 425, Latham vs. Hickey. 3.

^/^PPLICATION for Mandamus, Prohibition and Certiorari. 1. Bond for suspensive appeal from a judgment for a specific sum must be for a sum exceeding by one-balf the amount for which the judgment was given. An intervenor arresting the operations of a judgment for plaintiff against defendant, can not do so on more favorable terms than the defendant; but in this regard occupies no better position than the defendant. C. B. 575 ; 22 An. 115. 2.

<p>Tlie exorcise oí the supervisory powers oí the Supreme Court, under Article 90 of the Constiution, can not be successfully invoked, in a ease rightfully appeal-able to a circuit court oí appeals, in which an appeal has been granted, returnable to that court, to test the sufficiency oí the amount fixed by a District Judge, in allowing a suspensive appeal from a judgment rendered by him.</p> <p>The circuit courts oí appeal have, under Article 104 oí the Constitution, the exclusive power to issue writs of mandamus, prohibition and certiorari, in aid oí their appellate jurisdiction.</p> <p>It is to that court and not to this, that the relator should apply for relief, it entitled to any.</p>

<p>APPEAL from the Twenty-fifth District Court, Parish of Vermilio.» Mouton J.</p> <p>On the Exception of no Cause of Action.</p> <p>1. Eor the purposes of trial of the exception of no cause of action, the allegations of the petition are taken as true. 39 An. 660; 30 An. 1148; 31 An. 339.</p> <p>2. The object or purposes of a suit, or the subject matter in dispute, should be determined, not by the prayer alone, but from the body of the petition in conjunction with the prayer, 37 An. 628; 38 An. 912; 3 An. 268; 10 An, 719.</p> <p>3. An allegation that “ for the sole and only purpose of securing his personal debt to vendee, petitioner’s husband caused her to sign a document, which she afterward discovered to be a sale,” is a cause of action. R. C. C. 2398; 33 An. 1009; 34 An. 635; 42 An 950.</p> <p>4. An allegation that “ petitioner’s husband caused her to sign a document, that she signed it through ignorance of its contents, and of her rights in the premises,” is a cause of action. R. O. 0.1797,1819 ; 33 An. 1194.</p> <p>5. An allegation that “petitioner never received a cent for, or on account of, said sale,” and that “ it is a simulated and fraudulent sale,” is a cause of action. 36 An. 284; 31 An. 672; 36 An. 199.</p> <p>6. The petition herein filed alleges (Trans, page 2, line 29, and page3), that in November, 1872, her husband, Demosthenes Nunez, being personally indebted to Joe S. Nunez, of this parish and State, to the amount of eight hundred dollars, and for the sole purpose of securing this debt of his, caused her to sign a document of whose contents she was ignorant at the time; that she now finds this document pretends to be sale of the above described land to J. S. Nunez; that she never received a cent from J. S. Nunez for, or on account of, said pretended sale; that she signed it through ignorance of its contents and of her lights in the premises; that said sale is fraudulent, simulated and void, etc. That is to sajq that the sale is null for four causes of action, to-wit: Violation of Art. 2398, R. O. 0.; Error, Simulation, and Eraud. It therefore alleges a cause of action. 33 An. 1009; 34 An. 635; 42 An. 950; R. C. O. 1797,1819.</p> <p>On tiie Plea of Kstoi’pel.</p> <p>1. A married woman is not estopped by her declarations in an act from denying its validity. 33 An. 1009; 34 An. 633; 30 An. 1024; 34 An. 1065; 39 An. 600.</p> <p>2. The fact that a sale is signed by a married woman, in payment of which a note, signed by her husband and herself, apparently, is.given, is sufficient to set a would be purchaser on his guard. 29 An. 124.</p> <p>3. A security can not plead what his subrogor could not plead against the debtor; and as the State in this case can not plead that it is an innocent third party, the security can not plead it. 36 An. 781.</p> <p>4. The fact of defendant, Joe S. Nunez, being the apparent owner of the tract in dispute, did not influence the State, nor cause it to give credit to the tax collector, Joe S. Nunez. Therefore, the above plea of defendants, that they are innocent third parties, if maintained, would be unjustifiable and iniquitous. It must fall.</p> <p>Ratification</p> <p>1. A married woman who, during marriage, has signed a mortgage on her separate property in favor of a third party, the money received for which is given to her husband and used by him for his own use, nevertheless has the right to sue to annul a fraudulent sale of her property, and can not be said to have ratified such a sale by her said act. 28 An. 758.</p> <p>2. A married woman cannot ratify any act of hers, done during marriage, until the marriage is dissolved 34 An. 288.</p> <p>u. Defendants, having knowledge of the possession of vendor, which is a badge of simulation, were bound to take notice and inquire whose property it was. 30 An. 1024.</p> <p>ON THE MEllITS.</p> <p>1. The sale of the wife’s separate property for the purpose of securing the husband’s debt is forbidden by law, and, therefore, null. R. O. O. 2398; 33 An. 1009; 34 An. 630; 42 An. 950.</p> <p>2. One can not have the use and enjoyment of a tract of land without being, in possession. Trans , p. 2.</p> <p>3. A married woman may enjoin the execution of a judgment and the sale of her separate land thereunder. 30 An. 1021; 39 An. 600.</p> <p>4. Plaintiff was the pretended vendor, and she was in possession, to the knowledge of defendants (Trans., pp. 16,18) after the sale. Therefore the sale was a simulation. O. C. 2480; 36 An. 284; 40 An. 310.</p> <p>5. Although the sale purports to be a cash sale, it is proven that neither the note nor the cash was ever given to the vendor therein, or to any one for her. Therefore it was a sale without a price (Trans., pp. 15 and 16), and null. 5 R. 101; 1 An. 192; 36 An. 284.</p> <p>6. A party who signs an act of whose contents she was ignorant at the time, and who was ignorant of her rights in the promises, is not bound by such a con* tract. R. O. 0.1797,181E>.</p> <p>7. The sale being an absolute nullity (42 An 950; 33 An. 1009; 34 An. 635), the petitioner is the only true and lawful owner of the tract of land in dispute, and she is entitled to have the injunction issued herein made perpetual against defend ants and the sheriff.</p> <p>8. A woman can not ratify any of her acts, during marriage. 34 An. 288; Brief of Appellant.</p> <p>1. A party's right of action is to be tested by the grounds as set forth in his pleadings.</p> <p>2. Articles 2397 and 2398 C. O. are independent the one of the other, and neither exercises any control over the other. 41 An. 711.</p> <p>3. The prohibition contained in the latter article, which forbids the wife to bind herself or her property for her husband’s debts, does not restrain her from alienating her paraphernal property, even though the consideration of the sale be a debt of the husband. 6 An. 455; 41 An. 711.</p>

<p>A sale of property described by boundaries, where one of them cannot be definitely fixed and ascertained, is not a sale per aversionem. Where one of the boundaries is described as by “ donor’s” land, and no limit is fixed whore the boundary is to commence, it is not" a sale witli’n fixed limits and a sale per aversionem.</p>

A PPEAL from the Twenty-first District Court, Parish of Iberia.

Landry. Lewis, J. 1. The contract must not be confounded with the instrument in writing by which it is witnessed. C. 0.1762, lien. Big 1000, No. 1, and eases cited. 2. In contracts, the essence, rather than the form, is to be looked to.

<p>1. The Legislature has the right to exempt any business or occupation from license tax, and no license can be.exacted not imposed by the terms of the law.</p> <p>2. The General License Act of 1890 was designed to formulate complete and exclusive regulations for license taxation for 1891 and succeeding years, and operated the supersession and repeal of the prior Act of 1886, so far as relates to common subject matter.</p> <p>3. Courts may take judicial cognizance of the official journals of the houses of the General Assembly in order to aid them in ascertaining the true legislative purpose and intent when the same is doubtful.</p> <p>1. When the legislative intent is clear, the court should enforce it, and not resort to artful construction in order to defeat it.</p>

A PPEAL from the Thirteenth District Court, Parish St. Landry. -l jl Leiois, J. To support the plea of prescription of ton years for the acquisition of an immovable, the possessor must hold for that period a just title. O. O. 8474. His possession must be continuous and uninterrupted, peaceable, public and unequivocal. C. O. 8487.

Lewis, J. 1. JCvery act whatever of man, that causes damages to another, obliges him b> whose fault it happened to repair it. C. t.’. 2315. 2. In an action of slander the only possible defenses are: either a denial or a justification, or a confession under'mitigating circumstances. R. S. 3640; 14 An. 406; 15 An. 166; 36 An. 469; 38 An. 162. - •3. There is no such tiling in law as a half way justification. Townsend, Libel and Slander, Par. 212, and note. 4.

<p>APPEAL from the Twenty-first District Court, Parish of St. Martin. Simony Special Judge.</p>

<p>An officer will not be held responsible personally in damages unless it be proven that ho has acted arbitrarily, in violation of law, and without regard to the functions with which he is entrusted.</p> <p>Being himself at fault, plaintiff will not be allowed damages.</p>

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

A PPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J. 1. Plaintiff's title to the lands in controversy is complete and perfect; they were patented and sold by the State to Thomas Mille in 1860; after his death his heirs went into possession, and at the partition sale made by the sheriff of Iberville, in 1S77, they were acquired by the plaintiff, who has since held and possessed them. '■2.

A PPEAL from the Tenth District Court, Parish of De Soto. l\ Rail,. J. 1. ’ In all criminal prosecutions the accused shall enjoy the right to defend himself and have the assistance of counsel. Art. 8 Const. Where the accused can not employ counsel, the judge should assign one. State ys. Doyle, 36 An. 91; State ys. Yiana, 37 An. 606; State ys. Simpson, 38 An. 28* 2.

<p>APPEAL from the Sixteenth District Court, Parish of Bast Feliciana. Brause, J.</p> <p>1. Testimony of a personal difficulty the evening previous is admissible for the-purpose.</p> <p>(а) Of establishing the status of the accused as acting, at the time of the homicide, in his own right.</p> <p>(б) And that the accused believed at the time he was in danger of death or of' serious bodily harm, and to enable the jury to determine whether or not he had reasonable grounds to so believe.</p> <p>(c) Audio determine who was the aggressor-. Whar. Horn.,2d lid., Secs. 69-1, 695;. State vs. Claude, 35 An. 14, 75; Whar. Crim. Law, 8th lid., Sec. 611.</p> <p>2. That whether the accused believed himself in danger of death or of great bodily harm, and whether he had reasonable grounds to so believe, are facts to ire determined by the jury. Statevs. Garic., 35 An 970; Whar. Crim. Law, Stli Kd., Sec. 611; Whar. Horn., 2d Kd. 517; 23 Ala. 28; 26 Ala. 31.</p> <p>That the lower court erred in refusing- to give the requested charge on “reasonable doubt,” viz.: that “The evidence should be so clear and conclusive as to-satisfy their minds to amoral certainty that the accused is guilty of the crime-charged, and'that he erred in charging the jury. A reasonable doubt, gentlemen, is not a mere possible doubt; it should bo actual or substantial doubt. It is such a doubt as a reasonable man could seriously entertain, it is a serious, sensible doubt, such as you could give a good reason for. It is not sufficient you should believe his guilt only probable. In fact no degree of probability merely will authorize a conviction, but the evidence must be of such a character and tendency as to produce a moral certainty of the prisoner’s guilt to the exclusion of reasonable doubt. The evidence should be such as to satisfy your minds to a certainty beyond a reasonable doubt that the accused is guilty of the crime charged, otherwise you should acquit.”</p> <p>That the said charge is vague, uncertain, indefinite, and left the jury to infer-that if they seriously believed the defendant guilty, they should convict. People vs. Kerry, 24 Pac. Rop. 33; The Webster Case, 190; 5 Cush. 319, 320; Bishop Crim. Prac., Vol 1, Sec. 1052; Winter vs. State, 20 Ala. 39; People vs. Bemmerly, Cal., 25 Pac. Rep. 266; People vs. Wohlfrom, Cal., 26 Pac. Rep. 236.</p> <p>The accused, being entitled to the benefit of a reasonable doubt, had the right to have it fully defined and clearly explained to the jury.</p> <p>That the trial judge erred in refusing to receive evidence on the motion of a new trial, and to have the, same reduced to writing, or to make a statement of tlie remarks used by tlie District Attorney in liis opening and closing arguments to tlie jury. State vs. Seiley, 41 n. 146; State vs. Hyland, 86 An. 88; State vs. Anderson, 42 An. 590.</p> <p>•5. Where tlie District-Attorney in liis argument appeals to tlie prejudices of tlie jury, or declares his personal belief that the defendant is guilty, it is such misconduct as will warrant a new trial. Moss vs. Sanger, Tex., 12 S. W. Rep., 608; Hardy vs. State, Tex., 18 S. W. Rep. 1008; Washington vs. State, Ga., 13 S. K. Rep. 131; People vs. Hess, Micli., 48 X. W. Rep. —; Raggio vs. People, 111., 26 X. li.Rep. —; Railroad vs. Randall, Ga., 11 S. E. Rep. 706; Brown vs. Swineforth, 44 Wis. 282, 293; Berry vs. State, 10 Ga. 511, 522; Mitelium vs. State, 11 Ga. 615; Vorsyth vs Cothran, 61 Ga. 278; Thompson on Jury Trials, Yol. 1., Secs. 963, 963.</p>

Hicks, J. PPEAL from the First District Court, Parish of Caddo. . 7íes gestae aro events speaking -for .themselves through the instinctive words and acts of participants; what is said or done by participants under the immediate spur of the transaction. Rest.on Evidence, See. 195; Wharton’s Homicide, Sees. ¿62 anil 268.

A PPEAL from the Second District Court, Parish of Webster. lx Booney J. 1. It is competent for the State, on a trial for murder, to prove prior threats on the part of the accused against the deceased. Prior threats by defendant against the deceased are relevant. Bishop, Cr. Pr., 2, 629; State vs. Birdwell, 86 An. 829 2. Recent threats on part of accused are always admissible to show malice, and they give rise to presumption of law as to guilt.

<p>1. The judge, in his charge, may diyest the ease of all irrelevant matter found in arguments or in thepleadings.</p> <p>2. The charge objected to, whether correct or incorrect, had no bearing on the guilt or innocence of the accused, and did not prejudice him, and therefore offered no ground of relief from tile verdict and sentence.</p> <p>3. An instruction by the court, in the trial of a ease of larceny, that the issue was not whether a verdict would be a victory for or against a corporation, but whether the accused was guilty, was not a charge updn the facts. It only cautioned the jury to direct their attention to the real issue, which the line of argument might otherwise becloud.</p> <p>4. The admissibility of the statement of a witness of information received, which led to the arrest of the fugitive from justice, will not afford ground of relief, although part of the statement be hearsay.</p> <p>5. A witness who has testified in chief as to the good character of the accused, may, upon cross-examination, be examined as to a common report affecting his good character.</p>

<p>Where, in the selection of a parish seat, the Police.Jury is authorized to ascertain the result of the election, and make a mere informal statement of votes, a mandamus will not issue to compel them to take this informal statement as the true result of the election.</p> <p>This would be divesting them of a judicial discretion devolving- upon them by legislative act.</p> <p>After this informal statement, when the Police Jury compiles the vote and declares the result, it will he presumed they did their duty. The disregarding and setting aside of the informal statement is not in itself evidence of fraud. The Police Jury being authorized to declare the result of the election, it is vested with the power to investigate and to eliminate fraud, and this court, in the absence of legislative authority, has no power to review the findings of the Police Jury.</p>

A PPEAL from the Second District Court, Parish of Bossier. .t\ Boone, J. .1. All powers of levee taxation vested in Police Juries by Act 88 of 1879 were abrogated by the Constitution of 1879. 2./ Article 211 of the Constitution vests in I^evee Commissioners, to bo appointed or elected, the supervision of the erection, repairs and maintenance of public levees, and the power to levy taxes for that purpose.

<p>In the absence in the pleadings, when the amount is less than $2000, of any suggestion as to the legality or constitutionality of a tax, the appeal will be dismissed.</p>

Boone, J. 1. An appeal will lie from an order refusing to dissolve an injunction on bond. 32 An. 394; 38 An. 50. 2. An injury is not irreparable when it can be made good or repaired by money. The sworn allegation of plaintiff in injunction to tile contrary is not conclusive. 32 An. 1192; 33 An. 930; 37 An. 110. 3. Order of dissolution is proper when the injury is compensable by money, and the bond covers the sum fixed by the plaintiff as damages. 36 An. 772. 4.

Taylor, J. 1. The foundation of public policy is common honesty. “ Tlio fallacy lies in siijj' posing the property to be that of the family.” The property of a debtor is the common pledge of all Iiis creditors. Nugent vs. Caruth, 32 An. Hi. 2. The words in any event can receive not greater force than the word permanent, and to construe these words to mean forever would bo void on the ground of public policy. Supreme Court Reporter, U. S., Vol. 10, p. S16. 3.

Taylory J. 1. A mortgage given on a tract of land is sufficiently descriptive if it is reaso- ably accurate and full in itself so as to inform the public what property is covered by it. (24 An. 519, Consolidated Association of Planters of Louisiana vs. Mason et al.) 2.

<p>The holder of a mortgage with the pact de non alienando who has proceeded against the mortgagee via ordinaria and recovered a judgment for his debt, with recognition of his mortgage, has the right to issue a ft. fa. on such judgment and to seize the mortgaged property regardless of alienations wh’ch are inoperative against such a mortgage, and without notice to, or process against, the third possessor, affirming Bienvenu vs. Ins. Co., 33 An. 218.</p>

Taylor, J. One who, when sued, has availed himself of a written compromise signed only, plaintiff, by procuring a judgment thereon in his favor, is as much bound by the written compromise as if he had signed the same. 2II. 1002, No. I15; 2 An. 254 ; 32 An. 314; 11 M., Bradford vs. Brown; 211. 1011,Nos. 1, 2, 3, 4,5, 7, 9,10,11.

<p>In a revocatory action, the test of jurisdiction is the amount claimed, and not the value of the property, the sale of which the plaintiff seeks to have revoked.</p> <p>In an action de simulation, the value of the property is the test of jurisdiction. The action being revocatory and the amount at issue less than two thousand dollars, the appeal is dismissed at appellants’ costs.</p>

BarksdaleJ. I. — PRESCRIPTION. ■“ A written acknowledgment is not necessary to constitute an account stated; an account rendered unless objected to within a reasonable time, is an account stated, compte cerréis, from its presumed approval.” 28 An. 605; 26 An. 208; 27 An 133; 20 An. 119; 19 An. 185; and authorities cited on page 208 of 26th An.

A PEAL from the First District Court, Parish of Oaddo. Taylor, J. 1. The note being payable to bearer, the legal title was in the holder, and none other could sue upon it. 32 An. 583; Dan. Neg. Inst., Sec. 1192. 2. The judgment in favor of Cahn, in the case reported in Í2 An. 965, is res adjudicate that he was the holder of the note, not only against the parties to that suit, but against all others claiming an interest therein. Succession of Gilmore, 12 An. 563. 3.

<p>In case reputable citizens are wantonly and illegally arrested and incarcerated in jail, on‘'trumped up” and purely gratuitous charges of grave crimes committed, and thereafter the prosecutor confesses, that his only purpose was to procure immunity from prosecution for his brother for the same offense, the prosecution is malicious and without probable cause, and damages should be awarded.</p>

<p>The property of the debtor being the common pledge of his creditors, every act done by a debtor, with intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal. C. C. 1968.</p> <p>Where one purchases property from a debtor whom he knows is insolvent, with notice that his object in selling it was to deprive his creditors of their recourse upon it, and such purchase operates to their injury, the sale will be annulled.</p> <p>The purchaser in bad faith will not be entitled to a restitution of the consideration unless he proves that it inured to the benefit of the creditors, by adding to the amount applicable to the payment of their debts. O. C. 1977.</p>

<p>In the exercise of its supervisory jurisdiction over inferior tribunals, this court will not investigate the intrinsic merits of a controversy.</p>

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

1 Boone^ J. PPEAL from the Second District Court, Parish of Webster. 1. If the appellant has acquiesced in the judgment of the lower court the appeal will be dismissed. 32 An. 947, Stinson vs. O’Neal; 40 An. 201; Board of Church Wardens vs. Bishop et al.; also dissenting opinion of Justices Todd and Watkins in 39 An. 84, Duncan vs. Wise. 2.

Kingy J. 1. Ex parte evidence of interest is sufficient to support an appeal taken by a third person, under Article 571 of the Code of Practice. Payne vs. Ferguson, Curator, 23 An. 582. Cooley vs. Cooley, 38 An. 197. The order recognizing and putting in possession the heir and widow in community of the deceased, is properly rendered on the petition of the heir and widow, accompanied with proof supporting the demand.

<p>1. The general rule is that when the transcript presents no evidence, and no note oí evidence, this court will presume that the judge a quo had before him sufficient evidence to support his judgment, and will affirm the same; but this rule can not be applied, when the record shows that th'e judge acted without evidence, and upon consideration of the law only.</p> <p>"2. The plea of res adjudicata presents an issue of mixed law and fact, and a judgment sustaining it upon consideration of the law alone, and without evidence of the prior judgment propounded as its basis, is necessarily error.</p>

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

<p>The game ordinarily known and designated as pin-pool is not a gambling game iu the sense of the Constitution and the law; and a city ordinance denouncing it as such is illegal.</p>

<p>Plaintiff’s privilege, as lessor, upon the crop of sugar and molasses, was lost by him, as he did not, in accordance with Article 2709, of the Civil Code, and 288 of the C. P., seize it before it was shipped to the market to be sold, nor within fifteen days after it had been removed from the leased plantation.</p>

King, J. 1. In a suit to annul a sale, made under Act 82 of 1884, where it is alleged, (1) that the assessment was not made in the name of the recorded owner; (2) that the owner was dead at the time the assessment was completed; (3) that the assessment was illegal at its date; and (4) that the description of the lots and the numbers thereof in the advertisement were not correctly given according to the recorded title, does not assail the fact of assessment or advertisement;…

Rightor, J. 1. A corporation having adopted rules and regulations, known and called constitution and by-laws, for its government and the police of its members, and having provided thérein for the mode and manner in which such laws can be changed, no change, alteration, or amendment, in such rules and regulations, are valid and binding, unless such changes and alterations have been made in accordance with the provisions therein contained and made for that purpose.

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

<p>1. Newly discovered evidence, the only effect of which is to impeach the credit of a witness, is no ground for new trial.</p> <p>2. Surprise can furnish no ground for new trial, when no complaint was made or relief asked on that ground when it arose in the course of the trial.</p>

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

<p>1. In order to maintain and enforce an assignment of a credit, or incorporeal right, in respect to third persons, due proof must be made, not only of tlie transfer, but of notification haying been given to the debtor of such transfer haying been made, antecedent to any third person having acquired rights thereon.</p> <p>2. A judgment is the highest evidence of a debt, and the title merges in the judgment. A judgment neither creates, adds to, nor detracts from a debt. It only declares its existence, fixes its amount, and secures to the creditor the means of enforcing it. A judgment on a promissory'note extinguishes its negotiability. It is thereafter only transferable as other credits are.</p> <p>8. One who charges the simulation, or other illegality, in the consideration of the transfer of a promissory note, is held bound to make clear proof of his allegations, as in all other cases of contract. Such proof does not go to the validity of the cause, on consideration of tlie note, as between the maker and payee.</p>

<p>1. Tlie right of co-owners of property to demand a partition thereof is absolute and where the co-ownership is admitted, appeal does not lie from a simple decree of partition.</p> <p>2. When, besides admitting co-ownership, the parties have consented to the method and terms of partition fixed in the decree, they have nothing left subject to appeal.</p>

<p>1. It not appearing that a pending prosecution of the relatrix for a violation of a city ordinance is the same offense as that with which slic stands charged under a previous affidavit, made under the same ordinance, the Recorder had jurisdiction thereof to try and determine the same, notwithstanding the relatrix has appealed suspensively from a judgment and sentence under said previous charge.</p> <p>2. It is unquestionably settled, that, until a plea to the jurisdiction of a court has been made and overruled, an application for a writ of prohibition can not be entertained.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. a. The city of New Orleans, having leased the right to collect the revenues of the public markets to Vidalat &0o., was bound to maitanin the markets in a condition to serve the purpose for which the right to collect such revenues was leased. It could not, therefore, lawfully do any act to diminish such revenues during the existence of the lease. Civil Code, Art. 2692. :2.

<p>A motion made at the same term of court in which the indictment was found* before arraignment, to quash the indictment for irregularities in drawing the jury, is seasonably made. In such a case the defendant could not file a motion on the first day of the term.</p> <p>Defects in the drawing of the jury can not be taken advantage of, unless it appears that some fraud had been practiced, or some great wrong committed, in the drawing and summoning of the jury, that would work a great and irreparable injury to the defendant. Section 10, Act 77 of 1877.</p> <p>This act refers to and embraces the irregularities committed by the commission When a person not a jury commissioner intrudes upon their deliberations, anil takes part in them, this will vitiate the proceedings, and the venire drawn shouldbe set aside.</p>

<p>When the application for an injunction does not show a. prima facie right to the samej a mandamus will not issue to compel a district judge to issue the writ.</p> <p>As long as the judgment homologating the final account of an.administeator exists of record and unrevoked, it operates as a closing of the succession, and is a bar to further mortuary proceedings, which can only be had after the setting aside the same.</p> <p>When a succession has been settled and the administrator discharged, and- propertyplaeed in possession of the widow and heirs^acreditor whqappears sub^ sequenty must pursue them each for his share-</p>

Voorhies, J. PPEAL from the Civil District Court, Parish of Orleans. Article V. of the charter of defendant corporation providing that if a member fail to pay assessments within ten days after notification, as therein provided, he shall be suspended, and that if he die while delinquent, he forfeits all claim upon the association, and John H. Maginnis having died while delinquent, his executor can not recover.

<p>An appeal from an interlocutory order accepting the surrender made by an insolvent debtor will not interrupt tlie ten days’ time in which an opposition to the meeting of creditors is allowed.</p>

Voorhies, J. 1. The Legislature of a State, which was the residence of one or both parties, and where their marriage was celebrated, may prescribe the manner in which suit for divorce may he prosecuted in its courts, though only one of the parties be in, or a resident of, the State where such suit is instituted.

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

PPEAL from the Civil District Court for the Parish.of Orleans. Monroe, J. 1. Band sold in parcels by the owner of the whole, by fixed measurements, the first purchasers take only what their titles call for, and the last purchaser ták es-tile remainder of the tract, more or less. Savage vs. Foy, 7. An. 573; Lacour vs-Watson, 12 An. 214; C. C. 841, 843, 844, 845, 846, 847, 854. 2. There is no prescription to the action of boundary. Arcenaux vs. Benoit, 21 An. 973; C. 0.825. 3.

<p>A mandate to represent creditors at a meeting of creditors in an insolvent proceeding. which authorizes the agent or proxy to vote for an extension of time;, or that he vote for a settlement of the indebtedness in such manner as two-thirds in number and amount of the creditors may, determine, or to vote for the sale of the assets surrendered for cash or on terms of credit, or “for such, other matters as may come before the meeting of creditors as may bendflt him, the insolvent, or the creditors, and as may be proper and necessary,” will not authorize the vote for the dis, narge of the insolvent.</p> <p>In order to discharge the insolvent there- must be, in accordance with Article 2177 of the Civil Code, a vote of a majority of all the creditors, who are also creditors-for more than half of the whole sum due by the insolvent.</p>

<p>Act 118 of 1890, which requires all railroad companies throughout the State of Louisiana to put up bulletin boards in a conspicuous place, at all regular or way stations where they have a telegraph operator, and to keep posted thereon, for the information of the traveling public, or people generally, the time of the arrival and departure of all regular trains, on pain of afine of not less than one hundred, and not more than five hundred dollars, for each violation of its provisions, “without just cause,” “to berecovered in any court of competent jurisdiction within the parish where said violation may take place,” is not a criminal statute in the sense of the jurisdictional articles of the Constitution relative to the Appellate Courts of the State; and the procedure indicated for the recovery of the fine thereunder to be imposed is civil and not criminal in character.</p> <p>Of such a proceeding the Circuit Courts of Appeal have appellate jurisdiction, and prohibition will not lie to restrain the judges thereof from hearing and adjudging such a cause.</p>

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

<p>A judgment which lias been signed can not be altered, amended or revised by the judge wlio rendered the same, except in the manner provided by law. He can not, on Iris own motion, change a judgment which has been so signed, notwithstanding it was signed in error, and .w.as net'the judgment orally given.</p>

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

<p>1. While it is true that in the absence oí any statute authorizing it, the authorities deny any efficacy to an appointment of an executor outside of the territorial jurisdiction within which it was granted;.and that if such executor desires to prosecute a suit in another State, he must first obtain a grant of administration therein, in accordance with its, laws, yet exception must be therein taken to such executor’s want o’f capacity, otherwise the court' will be presumed to have acted on proper evidence of his capacity, and its judgment will not be annulled for want of jurisdiction of the court to render it.</p> <p>2. In ease the judgment debtor resides in a State different from that in which the decree was rendered, and it becomes necessary to institute proceedings for its revival, it is competent for the court of the State in which suit for revival is brought, to appoint a curator ad hoc, upon whom service can be made, and contradictorily with whom a judgment can bArendered. Such a suit is not an action in personam, but one quasiin ran, and. the judgment therein pronounced will be binding upon the absentees.</p>

<p>1. A mechanic who constructs and shapes materials with his own hands is engaged in a mechanical pursuit.</p> <p>2. He will he exempt, although he employs other mechanics who yrork with him, and, like him, follow a mechanical pursuit.</p>

<p>APPEAL from the Second Oity Oourt of New Orleans. Lavillebeuvre, J.</p>

<p>1. Unless it is made evident that jurisdiction lias been usurped, the court will not exercise its prohibitive authority.</p> <p>•2. The successful claimant lias a right to the emoluments and perquisites where-an incumbent illegally holds possession by means of judicial proceeding.</p> <p>3. An allegation predicated upon that right, accepted by the Court of Appeals as sufficient, in a matter of jurisdiction, will not be declared insufficient and the. proceeding treated as absolute nullity, by issuing a writ of prohibition.</p>

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

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