Volume 44 — Louisiana Annual Reports

King, J. _ 1. “A stale claim long withhold from prosecution or presentation until he against whom it is preferred has died, must be established with more than reasonable certainty. An unfavorable presumption is created by delay. It can be removed only by peculiarly strong and exceptionally conclusive testimony.” Wood vs. Egan, 39 An. 684.

<p>PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.~ _</p> <p>Fraudulent intent can never be absolutely proved; it can only be inferred.</p> <p>Therefore, the law presumes from certain acts a fraudulent intent on the part of him who commits them. This presumption is sometimes inconclusive, and may be rebutted (Sec. 1804, R. S.), and sometimes conclusive (Arts. 3359 and 3360, O. 0.).</p> <p>The legal presumption of a fraudulent intent is conclusive where the act complained of is a dation en paiement made by an insolvent within three months preceding liis surrender, whereby the donee obtains an unjust advantage and preference over other creditors, especially when property purchased from another creditor and not paid for is given to the favored creditor, and the insolvent was hopelessly insolvent at the time of making the dation enpaiement.</p>

<p>The Board of Directors of a corporation has the undoubted right to sell property of the corporation to pay its debts.</p> <p>But when the Board of Directors sells the property to one of the members of the board to pay debts, it must appear that there was a necessity for the sale, that the property was bought by the director in open market, at a fair price, without any undue advantage over the corporation, in good faith and without the slightest unfairness.</p> <p>'When the Board of Directors v7ho sold the property made the sale necessary by its mismanagement, one of the directors on said board will not be permitted to purchase the property. ,</p>

King, X _ Vnder Sections 386 and 387 of the revised Statutes of Louisiana acts of sale in cemeteries are made equally authentic and .in part full proof as if they had been passed before a notary public and two witnesses. Consequently the recitals therein are entitled to all the privileges and protection extended to the same by law and can not be contradicted by parol. C. C. 2276, 2238,2242, 2236, 2237; 40 An. 167, McKenzie vs. Bacon; same 336, Anderson vs. Beanham;82 An.

Monroe, J. _ 1. When a notarial will is annulled because the notary failed to state the residence of the witnesses after the manner required by the statute, he is liable to the legatee whose legacy fell as a result of said annulment. 2. The sureties on his official bond are responsible in solido with him.

<p>APPEAL from the Civil District Court for the Parish of- Orleans. Bightor, J. _</p> <p>1. The supposed nuncupative will by public act in controversy is void because there is not therein “ any express mention that the will was received,” by the notary, “ or was dictated by the testator orwritten by the notary, in the presence of the witnesses.” C. C., Art. 1878. These defects are fatal under Art. 1593, as has been expressly held in a case entirely parallel. Duval vs. Palms, 20 An. 203; Weick vs. Heine, 41 An. 1155; Succession of Vollmer, 40 An. 597, and numerous cases therein cited. The <. ase of the succession of Wilkins, 21 An. 115, cited approvingly in the opinion of this court in the Vollmer case, declares the very form adopted in the present case to be void. See also Miller vs. Shumaker, 42 An. 400; Succession of Sparks, 12 Rob. 38 and 39; Graves vs. Graves, 10 An. 212; Christine, tutor, vs. Verbois, 11 An. 108.</p> <p>2. Theunc.le of the deceased is nearer of kin by one degree than the cousins (he * being in the fourth degree and they in the fifth), and he is entitled to the inheritance to their exclusion, li. C. C. 914 [910].</p> <p>3. A party who files a petition in court, claiming to be the nearest of kin and sole heir of the deceased person, Rosa Vidal, and also her universal legatee under a will which he sets up as valid, and who has obtained a decree on such allegations probating the will and appointing him executor, and who has'eaused an inventory to be taken and has filed a petition for the homologation of the inventory by public act which he signed, and has obtained a decree homologating the inventory, and who has to a petition filed therein by another party denying his heirship and alleging the illegality of the supposed will filed a general denial, which contains a negative pregnant in these words, viz.: defendant “ pleads and avers a general denial to each and every of the allegations in the petition of Antonio Bilbenny, plaintiff herein, except as hereinafter admitted. Further answering respondent avers that he is the owner in possession of the property referred to, in good faith, by just titlb and by right of law, and that the plaintiff herein has no right of action in the premises, all of which he is ready to verify by proceedings at law in this Honorable Court, as well as by fact;” concluding with a prayer for judgment quieting him in title. and possession of his property will not put at issue any other title than that claimed through Rosa Vidal as heir and legatee by the defendant in this case and denied by the plaintiff in his petition, and the defendant can not be permitted to attempt to prove under the pleadings that the effects inventoried by him at his instance did not belong to the estate as shown by him in his formal proceedings in the Vidal succession of which this suit is an incident, but belonged to him personally in virtue of some other pretended claim antagonistic to his title as heir at law and universal legatee of Rosa Vidal affirmed by his general denial. Walker vs. Walker, 87 An. 107; Citizen’s Bank vs. Munroe, 87 An. 857; Gradley vs. Conner, 4 An. 416. Allegations that “plaintiff had not complied with his contract is only a legal conclusion.” 47 Fed. Rep., p. 43 No. 3; Rooks vs. Williams, 13 An. 374; Pargoud vs. Guice, 6 L. R. 77, bottom of page; Fortier vs. Zimple, 6 An. 55, last paragraph of page; Graydon vs. Justus, 24 An. 222; Cornell vs. Hill, 30 An. 251, No. 2 syllabus. “AYhat a party does not allege he can not prove,” Giraudel vs. Mendeburne, 3 N. S. 509; Dumartrait vs. Deblanc, 5 Ñ. S. 38 and 39; Ponsonby vs. Devaillon, 6 N. S. 243; Benoit vs. Hebert, ID. R. 214; Dixon vs. Emerson,9D. R. 107; Compton vs. Compton, 9 An. 499; Lyons vs. Jackson, 4 Rob. 265; AVells vs. Dezier, 9 An. 119; Colm & Bruen vs. Levy, 14 An. 355; Schneider vs. Letchford & Co., 21 An. 271; Paul LeVyson & Co. vs AVard, 24 An. 158,159; Drew vs. Attakapas Mail Trans. Co., 26 An. 306; Perkins vs. Potts, 8 An. 14 and 15; Dorsey vs. Hills, 4 An. 107; Pipes vs. Garrett, 1 Rob. 19; Rawitzki vs. L. & N. R. R. Co., 40 An. 47, 51.</p> <p>4. The defendant is also estopped by his acts. They can not be controverted by him except possibly under specially alleged circumstances supported by affidavits. Any other rule would render all legal proceedings and titles insecure. R. O. C., Art. 1106 [1098], 1108 [1101], No. 1; Webster,guardian, vs. Smith, 6 An. 710; Succession of McCloskey, 29 An. 406, 407; Board of Liquidators of Hart & Hebert vs. Huguet, 33 An. 362; Boatnervs. Scott, lRqb. 551, 552; Verret vs. Belanger, 6 An. 109; Gaudet vs. Gauthreaux, 40 An. 186. See authorities cited Compton vs. Sanford, 30 An. 838; Lippmins vs. McCrane, 30 An. 1251; Alexander vs. Bourdeer & Bellesein, 43 An. 322; Marsh vs. Smith, 6 Rob. 518.</p>

Voorhies, J. _ Real property sold by the administrator of a succession at public auction, under an order of court obtained on his sworn representations that there ore debts due, and where it appears that there is only one piece of property belonging to the succession, that no minors arc interested therein; that the proceedings on their face were regular and the court had jurisdiction; the purchaser of such property is in such case fully protected by the order of court…

. Monroe, J. By tho laws of Louisiana a commercial partnership can not own immovable property; the partners are joint owners. 3 La. 394; 28 An. 419; McKee vs. Griffin, 10 La. 420; 7 M. 244; Louque Dig., p.511; 3 Rob. 3D6; Thomas vs. Scott,. n>. 313, 4S4, 44; R. C. C. 2880, 2881. Whore the deceased was in community or partnership with any one who has survived him, it is the duty of the executors to sue for a partition.

Bightor, J. 1. Under the Constitution of 1869, private pioperty can not be taken or damaged for any public use until frll compensation is made. Constitution 1879, Article 156; GrifEen vs. R. R. Co., 41 An. 808; Cooley Const. Lim., 680, 681 (note); Chicago vs ‘Taylor, 125 U. S. 161,170; Railroad Co. vs. Ayers, 106 Ill. 518. 2.

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

King, J. _ 1. 3$oth parties to the suit being citizens of Louisiana, it can not be removed unless there is some Federal question involved. Conceding that defendant’s charter is a protected contract in the sense of the United States Constitution, and that the ordinance sought to be enforced is such a law as will impair its obligations, yet the facts do not contain such contention. State ex rel. City of Xew Orleans vs. N. O. & N. 35. R. R. Co., 42 An., p. 11.

A PPEAL from the Civil District Court for the Parish of Orleans. Vourhies, J. I 'The wife may place her paraphernal property in the hands of her husband as owner, and his acts may be purely administrative as to her, but absolute as to third parties who are not subject to equities of the wife in account with her husband. Miller vs. Handy, sheriff, 83 An., p. 164, and authorities cited in brief. Godchaux vs. Morrow, 41 An. 716; La. National Bank vs. Scott, 42 An., p. 785.

<p>APPEAL from the Twenty-fourth District Court for the Parish of St. Bernard, Livaudais J.</p> <p>cited: O. C. Arts. .503 and 508; 38 An. 150; C. P., Arts. 907 and 890.</p> <p>cited: 28 An. £30; 15 An. 698; 27 An. 398; 38 An. 150; 16 An. 415; 2 An. 347; 5 An. 380; 3 La. 543; 99 U. S. 520.</p>

<p>Tlie publisher of a newspaper is not a “ manufacturer of stationery” within the meaning or intent of Article 207 of the Constitution. Decision in State vs. Dupre* 42 An. 561, referred to, and its inapplicability to the instant case shown.</p>

<p>A PPEAL from the Second Recorder’s Court of the City of New Orleans. Aueoin, J.</p>

Voorhies, J. 1. When one who was a tutor voluntarily files an account of his gestión and cites his former ward to show cause why it should not be approved and homologated, waives the four years’ prescription of Article 362, O. 0., and is estopped by his judicial admission and prayer from pleading prescription when defendant appears and opposes the account. He can not summon defendant to court and then shut the door in his face. 2.

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

<p>When property attacked has been sold in limine, under Article 261, Code of Practice, the proceeds take the place of theproperty and still continue to be the property attached, and subject to the right of the defendant to bond in every stage of the suit, under Article 259, Code of Practice, unless the defendant has waived the right to bond by an agreement that’ the proceeds shall remain in hands of the sheriff, subject to the rights of the attaching creditors, and until thefurther order of the court.</p>

<p>Section I of Act No. 138 of 1890 is null and void, being in conflict with Article 99 of the Constitution.</p> <p>The title of the act refers to labor contracts. The body of the act refers to any contract.</p>

<p>PPEAL from tbe Civil District Court for the Parish of Orleans-Ellis, J,</p>

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

<p>Under tlie laws of Louisiana railroad companies are not compelled to fence in their tracks, and it is not negligence on the part of said companies to neglect to fence their tracks at a point where there is no public crossing.</p> <p>It is not negligence to fail to fence a trestle over a small canal in an open field where there is no public road, or general thoroughfare. Where a railroad company voluntarily fences a part of its track, this will not impose upon it the obligation to fence its entire track.</p> <p>Where an employee, not too young and too ignorant to appreciate the dangers of 'the situation, is aware that proper precautions have not been taken for his safety, and he continues the service notwithstanding the risk, he will be considered as having assumed the responsibility for his own safety.</p>

Voorhies, J. ■_ When a bill of exchange with collaterals attached is sent to a bank for collection and with no other instructions, the duty is imposed on the bank of delivering the collaterals to the drawee when on the demand of the bank he accepts the bill. If the bank on such acceptance refused to deliver the collaterals and loss ensued, it would be liable to the draw.er of the bill who transmitted it to the bank and liable also to the acceptor.

<p>When aperson has been discharged in bankrupt proceedings, and afterward gives his note to a creditor for a claim on his schedule, the moral obligation to pay-is a sufficient consideration for the note.</p> <p>Where a person deals with another who furnishes him supplies under an agreement to make monthly statements of the condition of his business, and he omits to place in said monthly statements a debt due his book-keeper, which was created before he became his employee, and which is no way connected with the business, this is not such evidence of fraud on the part of said book-keeper as to prevent his participation in the funds of the succession of the deceased employer equally with all the other ordinary creditors, including the merchant who furnished the supplies and to whom the monthly statements were made.</p>

<p>After the testimony in chief for the State and the defence has been taken, and a witness for the State had testified in rebuttal, the defendant did not have the legal right to offer witnesses to rebut the testimony given in rebuttal by the State, unless in exceptional cases.</p> <p>It is a matter in the discretion of the judge.</p> <p>It was a privilege asked which the court could refuse.</p>

Ellis, J. _ 1. The objection o£ plaintiffs to parol evidence to establish a consideration different from the consideration expressed and described in the dation enpaiement was well taken.

King, J. _ When the proofs of loss by fire of property insured, sustained by expert and disinterested evidence, show the loss to have been at least $6383.50, the judgment should be for that sum, there being no suggestion of fraud or ill practice on the part of the assured. An exception of prematurity must be filed and decided in limine. Xoble vs. Martin, 7 X. S. 282; Howard vs. Columbia, 1 La. 420; Benedict vs. Williams, 4 B. 392: Pecquet vs. Pecquet, 17 An. 232.

<p>APPEAL from the Seventh District Court for the Parish of Catahoula, Ellis, J. _</p> <p>1.By the restrictions placed to the power of the Legislature to create new parishes," the Constitution manifestly intends to subordinate the will of the-Legislature to that of the people of the parish or parishes to be affected thereby through their ballots. Act No. 39 of 1886.</p> <p>2.Section 14 of Act 107 of 1890 does not purport to create or appoint a board or committee of enumerators, but in terms it gives to three designated persons-jointly the power to mate jointly an enumeration of the inhabitants of the old and of the new parish.</p> <p>3.A special agency, delegated by an act of the Legislature for a particular purpose, must be strictly pursued, and when the power is eonferred.on three commissioners, jointly to do a certain act, they must all join in executing the duty there imposed. 31 Miss. 425; 4 English (Arh.), p. 320.</p> <p>4.It the purpose of a statute has a single object, to create a new parish, and some of its vital provisions are void, the whole act must fail unless sufficient remains to affect the object without the aid of the invalid portion. Cooley Const. Limitations, p. 211, 6th Ed.; 5 Ohio, 1497; 13 Wisconsin, 398. The administration of justice is the essential purpose of government in Louisiana. Any statute creating a new parish without providing constitutional means of administering justice within its limits is void. Constitution of 1879, Preamble, Art. 7.</p>

<p>A charge to a jury in a criminal case in which the judge limits himself to instructing the jury to the law in the case, and refrains from recapitulating the evidence so as to influence them, and does not repeat or state the testimony of a witness, and does not give an opinion as to what facts have been proved or disproved, affords no ground of complaint.</p> <p>A charge in the following words is not error:</p> <p>And whilst malice and premeditation involved a prior intention to do the act in Question, it is not necessary that the intention should have been conceived for any particular time. It is as much premeditation if it be entered into the mind a moment before the act as if it entered years before.”</p>

<p>Where a corporation builds a bridge for a town and parish jointly, and the exclusive privilege is granted to the corporation to collect toll for a designated number of years, at the end of the franchise, unless there is an express agreement to the contrary, the bridge must be delivered to the parish and town without compensation. The corporations became the owners of the bridge when it was completed, and the corporation which built it only owned the franchise.</p> <p>The consideration for building the bridge for the political corporation was the franchise grained to the building corporation.</p>

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

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

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

Voorhies, J. _ 1. The property of a debtor is the common pledge of his creditors, and the proceeds must be distributed among them ratably unless there exist some lawful cause of preference. I?. C. 0,, Art. 3183. 2.

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

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

<p>The words “ six blocks,” in Act No. 116 of 1888, have the same meaning as “ six squares” in the former Act No. 100 of 1878. They mean standard squares or blocks of 300 feet each, with the addition of fifty feet for each intervening street, making 2100 feet by the nearest walking route, regardless of the number of actual squares, short or long.</p>

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

EUis, J. • A creditor may exercise the rights of his debtor, when such debtor fails to ex. ereise them to the prejudice of his creditor. Gaines’ case, 131 U. S. 218; 43 Dalloz, 239; Articles 932-935; Hayden vs. Nutt, 4 An. 65; 25 Demolombe, No. 49; Sue. of Baum, 11 Rob. 321. 2. When a right exists the court will, in the absence of any specific remedy, supply one. J’ortier vs. Slidell, 7 Bob. 39S; Morris vs. Cain, 35 An. 760.

<p>1. When a defendant in a cause dies and has “not answered,” further proceedings against his heirs must be conducted in conformity to Article 120 of the Code of Practice, and the citation or notice and the delays therein prescribed must be allowed.</p> <p>2. The case is not affected by the fact that issue had been joined by default. A default is not an answer.</p>

Allen, J. 1. Public roads must be laid out by a jury of freeholders, and not by the police jury, and in the manner pointed out by law. R. S. of La., Sec. 3369. 27 An. 20á. 2. Private property can not be taken nor damaged for public purposes without just and adequate compensation being first paid. Const. 1879, Art. 156. 35 An. 1015.

Livaudais, J. Defendant can not remove a cause to the United States Court on the ground of local prejudice, unless he alleges that he could not obtain justice in the court a quo, or in any other State court, to which the defendant had a right under the present State law to remove this cause. Act of Congress, August 13,1888; Secs. 3901 to 3910, R. S. of La. The bond for removal must be framed in accordance with the above law.

<p>The right to require security by a creditor from a debtor who has been granted a respite is absolute u nder the provisions of Act 134 of 1888, and the creditor is not limited in time to require the security.</p>

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

<p>A writ of seizure and sale is not prematurely issued when one instalment of the debt is due.</p> <p>The property should be sold for cash to meet the matured note, and on terms of credit to correspond with the unmatured notes.</p> <p>'When the prayer of the petition asks that the mortgaged property be sold for cash to pay one instalment which is due, and the balance of the price on credit to meet other instalments not due at the time, and all of the nnmatured instalments fall due before the case is disposed of, the court may order the sale for cash to pay all matured instalments.</p>

^PPLIOATION for Prohibition. 1. Where the mortuaria proceedings in a succession show a full and complete administration, closing with putting in possession the widow and heirs of the deceased, the proceedings can not be reopened and another administration inaugurated In such cases the probate jurisdiction determines and can be no more revived. «35 An. 314.

King, J. _ 1. The principle that proof of both want of probable cause and malice must concur in suits for damages for malicious prosecution has its strictest application only in cases where the prosecution was of a public character and into which there entered none of the elements of private interest. 2. Malice is presumed where there is a total want of probable cause. 33 An. 392; 15 An. 421; 9 An. 219; 4 An. 377. 3.

<p>A PPEAL from the Ninth District Court, Parish of Concordia. Young, J.</p> <p>The mortgage creditor, with the act of mortgage containing the stipulation denon aUenmiclo, can not be affected by the expenditures which a third person, with full Knowledge of the mortgage, chooses to make upon the mortgaged property. If such expenditures are to be paid to the prejudice of the mortgage debt, the security arising from the mortgage would in most cases completely disappear. C. C., Art. 3397; Nathan ys. Lee, 2d N. S. 32; Guesnard vs. Soule, 8 An., p. 58; 1st Hennen’s Digest, p. 955, No. 1, et seq.</p> <p>One wlio purchases property mortgaged with the pact de non alienando is, with respect to the mortgage creditor, in no position better than the debtor. Hence such purchaser, least of ail when bound for the debt, can not, as against the mortgage creditor, claim to be paid money expended on the property. Such a purchaser is not a third possessor in legal contemplation. Ibid.; Civil Code, Article 3399, et seq.; O. P., Article 61, et seq.: Hennen’s Digest, p. 955, Nos. 1,10,12; 8th Rob. 165; 9th Rob., p. 69.</p> <p>The rents of the property seized becoming due after the seizure, whether in money or in part of the crops, accrue to the seizing creditor. See C. P., Art. 656; C..C., Art. 466; Summers vs. Clark, 30 An., p. 436; Townsend vs. Payne, 42 An. 914.</p> <p>Elam & Daff, contra, cited: C. C., Art. 3407; 6 N. S. 114; 2 An. 365; 31 An. 218; 1 La. 39; 8 Rob. 167; 5 Rob. 50; 19 La. 413.</p>

<p>PPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>cited: 20 Wendell 533; Daniel, Negotiable Instruments, Secs. 305, 308; Tiedmen, on Commercial Paper, Sec. 85; 2 Parsons on Bills, pp. 38 and 39; 4'N. S. 528; 2 An. 559; 14 An. 444; C. C., Art. 2474 and seq.; Troplong, Vente, 2 Vol., Secs. 934, 932; Aubry and Rau, p. 442; 16 Duranton, Sec. 510; 24 Laurent, Secs. 542, 543; 6 Mareadé, on Art. 1693, p. 351, Sec. 1. _</p> <p>cited: C. C. Art. 3018; 12 M. 84; 11 An. 170; 20 An. 564; 92 U. S. 447; 124 U. S. 545; 7 Wall. 557; 15 Pet. 377; 91 U. S. 398; 31 An. 175; 107 U. S. 740 ; 97 U. S. 445 ; 91 U. S. 398; 28 An. 552.</p>

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

J. 1.There is a strong analogy between the plea of res judicata and lis jyendens, and1 it is a fair tost to inquire whether a final judgment in the former suit would be res jvdicata in the latter.

Monroe, J. The naked sale of the “good will” of a business does not transfer the right to the use of the vendee’s name of trade. Goodwill embraces only the custom ana advantage peculiar to the place, etc., and not that appertaining to thejierson of the vendee. The wrongful use for purposes of business of one’s name may be enjoined.

Ellis, J. _ In this ease a rehearing is asked for on the ground that the brief filed on behalf of ¡the plaintiffs did not sot forth correctly the parties before the court, and did not call attention to the most important point in the ease. The court was-not correctly informed as to cither the parties or the issues. The opinion is based solely on Sectiou 3615, Revised Statutes, which does not affect the ease, having been repealed by Act 96 of 1877.

Voorhies, J. When the usual warning is withheld, the wayfarer has a right to assume that tins crossing is safe, and that the company is not violating the law and endangering human life by running an engine without signals.

A PPEAL from the Tenth District Court; Parish of De Boto. I\ Hall, J. _ 1.

<p>APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buekner, J.</p> <p>The heir is seized of the property of his De Cujus immediately on the opening of the succession. 15 L. 527; 7 R. 183; 12 R. 258; 2 An. 339.</p> <p>He is not affected by a final account unless he is cited. 11 R. 109; 16 An. 258. “ It is useless to quote authorities on this point.” Denham vs. Williams, 32 An. 972.</p> <p>Natural children can not be put in possession without citation on the heir. R. C- C. 926.</p> <p>Ex parte judgments may be collaterally questioned, when offered as the title in virtue of which property is claimed, and the rights of third pex'sons sought to be disturbed. 10 R. 193; 2 An. 724; 15 An. 187; 25 An. 86; Dalton vs. Wickliífe, 35 An. 359.</p> <p>Evidence in probate proceedings must be reduced to writing, and without it the judgment is null. 16 L. 197, 201; 17 L. 115; 3 An. 554; 4 An. 517.</p> <p>The administrator is bound to the heirs and is not protected by payment to a person not authorized to x*eceive. Verrot vs. Aubert, 6 L. 354.</p> <p>1. A judgment homologating an administrator’s final account and discharging him can not bo attacked collaterally nor treated as an absolute nullity. Fowler vs. Succession of Gordon, 24 An. 270.</p> <p>2. Even if such a judgment be not res acljudicata against one claiming as heir, it will nevertheless protect the administrator for a payment made in error. Baldwin vs. i.'arleton, 2 R. 56.</p> <p>3. A legitimated natural child is a legal heir and not an irregular successor; and is therefore seized of the succession of the father at the moment of his death. R. O. 0.199, et seq.</p> <p>4. A judgment determining personal status, though obtained expm'te, can not be collatei’ally attacked.</p> <p>5. The administrator is bound to deliver the residuum of the succession to the heir recognized by tbe court.</p>

^^PPLICATION for Prohibition and Certiorari. The Supreme Courtwill not issue the writs of certiorari and prohibition in exercise of its supervisory power over inferior court except in cases of usurpation of jurisdiction or power. State ex rel. Martha Selles vs. Judge 21st Jad. Dist. Court, 33 An. 1284. The case being appealable, the relators have an adequate remedy by appeal, and are not entitled to the interposition of the prohibitive authority of this court. State ex rel.

1. An order for executory process, and a sale thereunder, can not be successfully attacked by way of third opposition on the ground of prescription or payment of the debt. 0.1\ 738, 739 and 740; Livaudais vs. Livaudais. 2. Community property may be seized, after the death oí the wife, for community debts, without making her heirs parties to the proceeding. Broussard vs. JTournet, 28 An. 623. Killelea vs. Barrett, 37 An. 886 and 26 An. 233. Oriol vs. Hordon, 38 An. 759. 3.

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

<p>APPEAL from the Thirteenth District Court, Parish of St. Landry, Lewis, J.</p> <p>One of tlie qualifications of a juror required in this State is that he shall be a citizen of the United States and of this State. Act44 of 1S77, Sec. 1; Act 54 of 1880, Sec. 1.</p> <p>A judgment naturalizing a foreign born citizen can not be proved by parol.</p> <p>The personal disqualification of a grand juror is good ground for motion to quash. State vs. McGee, 86 An. 207.</p> <p>The admissibility of a voluntary declaration is a blended question of law and fact reviewable by tlie Supreme Court, and the evidence touching the admissibility of a confession must be reduced to writing and appended to bill of exception in order that the appellate court may determine tlie question of admissibility only. 34 An. 147; 1st Greenleaf on Evidence, Sec. 223; Warton’s Crim. Kv., Sec. 689; IstBish. Crim. Procedure, Sec. 1220.</p>

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

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

<p>A party having entered into an agreement authorizing the sheriff to retain an amount, part of the proceeds of the sale of a plantation realized under executory process; not having alleged that the agreement had been violated; having introduced a copy of it in evidence without any limitation or restriction ; having proven certain facts by the agreement, which, had they not been proven, might have resulted in a loss, can not be relieved from its effects.</p> <p>The sheriff is directed to retain part of the amount agreed upon to await the result of a decision in another court.</p> <p>Although one of the parties to the stipulation may not be a party to the suit conducted in part, at least, for his benefit and in compliance with the agreement, he is bound by the proceedings and the result of the suit.</p>

<p>APPEAL from the Twenty-second District Court for the Parish of St. James. Duffel, «7.</p> <p>Injunction lies to arrest asale of real property under executory process ylien there is no seizure. C. I\ 298, Nos. 7,10.</p> <p>When there is a junior mortgage, the sheriff can not exact from the purchaser the surplus of the purchase price over the amount due the seizing creditor. The purchaser is entitled to retain it. C.I\ 706; 81 An. 86; 38 An. 259; 39 An. 735; 18 An. 65, 537.</p> <p>When an act of mortgage stipulates in substance that the mortgage is given to secure a subscription to bank stock, but that the mortgagor shall not be a stockholder, and shall not be entitled to the stock until the mortgage shall bo accepted by authentic acts, and until this authentic act shall be recorded and other conditions complied with, the mortgage does not attach to the property until the happening of the conditions.</p> <p>"Third persons acquiring property apparently subject to a mortgage, which they have not assumed, may resist its enforcement. They may use all defences that are not personal to the mortgagor, who can not deprive them of these by waiver or otherwise. 33 An. 708 ; 2i An. 28.</p> <p>.Injunction lies to arrest an order of seizure and sale issued on acts which do not import a confession of judgment.</p> <p>When the matter in dispute is the validity vel non of a mortgage of over $5000, this court has jurisdiction.</p>

APPEAL fr.om the Civil District Court for the Parish of Orleans. Ellis, J. Where a defendant negligently exposes, on bis private property, to which he has allowed for years free access by children to play with a dangerous machine unguarded and unsecured, likely to attract children, excite their curiosity, and lead to their injury, while they are pursuing their childish instincts, he is liable to a child of tender years injured while playing with it. 13 An. 61; Beach on Cont.

<p>The syndic can maintain a revocatory action to have a mortgage canceled, if given in fraud of creditors.</p> <p>He may maintain the action against a creditor, as he can against a non-creditor of the insolvent.</p> <p>The origin, or the date of the claims of certain creditors, will not he acause of dismissal of the action, should it appear that some of the creditors have a right under the Actio Paulicvna.</p> <p>The laws applying to the settlement of insolvent successions in, puri materia may he construed with those applying to proceedings affecting the insolvents.</p> <p>Although a judgment is not conclusive on the creditors; similar in that respect to judgment against administrators, representing creditors, the syndic can maintain the revocatory action to have the mortgage of a creditor annulled, if it was given in fraud of the creditors.</p>

<p>A relator who applies for a mandamus to compel the granting of a suspensive appeal may discontinue his application at any time before judgment thereon.</p>

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

Montgomery, J. PPEAL from the Eighth District Court, Parish of Madison. 1. A suit against a corporation, improperly docketed as against the agent, individually, can notprejudice plaintiffs rights, if from the petition and the admissions it appears it is in fact a suit against the corporation. ' 2. A tax collector has the same remedy to enforce the collection of parish as State taxes. Sec. 6, Act 106 of 1890; Sec. 84, Act 1888, p. 139.

<p>PPEAL from the Eighth District Court, Parish of East Carroll. Montgomery, J. _</p> <p>cited: C. C., Art. 3252: 31 An. 545; 32 An. 459; 29 An. 703; 27 An. 99; 13 An. 352.</p> <p>cited: C. C., Art. 2418, Art. 3252, Arts. 534,. 536, 549; 11 An. 386.</p>

<p>The residents and alleged tax payers in a township in whom is vested the title of the 16th section for the maintenance of the schools have the right to invoke the interposition of the court to annul a sale of this section.</p> <p>Tender as a prerequisite to the suit can not be required. The price was not received by the plaintiffs.</p> <p>No title passed to the adjudicatee of the property.</p> <p>The amount should be returned by the authority, by which it was received. In the meantime plaintiffs can prosecute their suit to have the sale annulled.</p> <p>The general government donated the 16th sections to the townships and authorized their sale with the consent of the inhabitants residing within their respective limits.</p> <p>The legislative department of the Stated in compliance with the conditions of the grant, adopted laws requiring elections to be held to ascertain the will of a majority of the voters residing within the townships and providing certain prerequisites for the sale.</p> <p>An election not having been held in the .township, the return of the election not being sustained at all, the adjudication made was null.</p> <p>The 16th section offered for sale should bring its appraised value, which can not be less than $1.25 per acre.</p>

<p>A devolutive appeal lies from an interlocutory decree consolidating-the proceedings in a surrender made by a commercial partner, individually to his individual creditors, with those of the surrender made by him and his co-partner, as commercial partners and as a firm, to the partnership creditors, even though a suspensive appeal does not lie from the decree, because its execution could cause no irreparable injury.</p> <p>A decree consolidating the two proceedings is proper. Far from causing any injury to either class of creditors, or to any party concerned, the decree enures to the benefit of all such parties, by securing to them a speedy and uniform administration of their respective rights.</p>

Montgomery, J, Under the law, married women are not sui juris. In their case incapacity is the rule; capacity the exception. Their incapacity to contract is specially declared by law. C. C. 17S2. Where the law provides certain formalities to be observed, and certain things to be done, in order to bind a married woman, these formalities must be complied with, and those things done, else she is not bound.

Brame, ./. A minor’s immovable property can be sold only on the advice ol a family meeting, by order of the judge, at public auction, after thirty days’ advertisement. R. C. 339-341. A sale made without the formalities prescribed by law, by a tutor, of the immovables of a minor, is an absolute nullity. Vaughan vs. Christine, 3 An; 328. An action for the revendication of property so sold is prescribed only by ten years from the minor’s majority. Ib.

<p>APPEAL from the Fifteenth District Court for the Parish of Pointe Coupée. Semple, J.</p> <p>1. The property of non-residents can not be divested by the contrivance of opening the succession of the person from whom they derive title by inheritance, and selling the property at succession sale. Where a succession owes no debt, and the heirs have accepted purely and simply, and are in possession through an agent, an administration is unnecessary and illegal; and asale made in the e#ourse of it is an absolute nullity. 38 An. 716.</p> <p>2. Where at such succession sale the agent himself becomes the purchaser, he is guilty of constructive fraud, which will furnish good grounds to annul liis title "in a suit instituted against him, by his principals, for that purpose. Vi’An. 160.</p> <p>3. His having instigated the null and void succession proceedings is proof conclusive of actual fraud.</p> <p>4. Where a man undertakes, of his own accord, to manage the property of another, he incurs all the obligations that would result from an express agency. C. O. 2295.</p> <p>5. It is now the settled jurisprudence that as against a non-resident, substituted service can be effectual as “ due process of law,” under the 14th amendment of the Constitntion of the United States, only where, in connection therewith, property in the State is brought under the control of the court, and is subjected to its disposition by process adapted for that purpose. Laughlin vs. Ice Co., 35 An. 1184., Duruty vs. Duruty, 42 An.</p> <p>6. The records of the District Courts of this State must speak for themslves, and can neither be contradicted nor eked out by parol evidence. 12 It. 531; 4 M. N- . 8.176; 6 An. 700; 10 An.700; 12 An. 349.</p> <p>¶, Citation, or that appearance of the defendant which will do away with the necessity of citation, can not be shown by parol after judgment, and so as to give validity to the judgment, but must appear from the record. 21. An. 27, 682 ;1 Itob. 30. It is only in process posterior to judgment that corrections by parol are permissible. Same authorities, also 35 An. 101.</p> <p>■U. Where an agent is unfaithful to his trust, and abuses the confidence reposed in him by his principal, or where he misconducts himself in the business of the agency, he may be deprived of commission or compensation. Am. and 15ng. Kncy. of Law, Vo. Agency, Vol. 1, p. 397.</p> <p>U. While mandate is not in its essence gratuitous, yet it is so in its nature; hence, in order to recover on a quantum meruit, the agent must repel this presumption of gratuity by proof of specific services, such as can not be supposed to have been rendered gratuitously. 36 An. 211; 21 An. 558.</p> <p>10. A mandatary acting for himself, as well as for others, can not recover on a quantum meruit. 16 An. 155.</p> <p>11. The action of an agent for the value of his services and his expenses incurred in the agency is prescribed by ten years; and the continuity of services does not interrupt the prescription where the duties of the agency have consisted in making an annual voyage to see about paying taxes, collecting rents and procuring tenants for one or more plantations. 35 An. 1012; 7 An. 222; 5 La. 15; 6 M. N. S. 228.</p>

<p>Montgomery, J. PPBAL from the Eighth District Court, Parish of Madison.</p> <p>Minor heirs become vested with all rights of possession, etc., upon the death of their parents, the law accepting the succession for them. C. O. 910 to 917-977; 12 R. 266; 23 An. 117.</p> <p>The plea of ten years’ prescription must have for its basis a title translative of property, at least ten years old. C. C. 3179.</p> <p>To support the plea of thirty years’ prescription, the party claiming under it must show with legal certainty an uninterrupted, continuous possession as owner for the time necessary to prescribe. O. O. 3500 ; 39 An. 1033; 1R. 556.</p> <p>Where one purchases an undivided interest in lands from the administrator of a succession or from an heir, he thereby recognizes the title of the succession from which he purchases and of the other heirs to the remaining interests, and. he can not prescribe against the heirs with whom he holds as co-proprietor. Joint owners can not acquire title against each other by prescription.” Simon et al. vs. Richard et al., 12 An. 812.</p> <p>Prescription of ten years or of thirty years does not run against minors; and if running against the ancestor at his death becomes suspended in favor of the minor during minority. C. C. 3522, 3551; 38 An. 216; 39 An. 105; 10 An. 576; 6 An. 109; 13 An. 310; 11 An.601; 10 An.575 ; 7An,116; 12 An. 97; 23 An. 117; 11 La. 61; 10 M. 287; 9 La. 379; 11 R. 529.</p>

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

<p>The administrator of the succession of a deceased administrator filed his final account. It was opposed on theground that the deceased administrator’s succession was liable for the loss of certain real estate belonging to the former succession, which he had allowed, through his negligence, to be sold for taxes. The value of the property was $1276.</p> <p>Held, that the opposition was a separate cause of action, an unliquidated claim pre-. sented against the last succession, which could have been urged in a direct action, and the jurisdiction of the Supreme Court must be determined by the amount involved, and not by the amount to be distributed in the succession account offered.</p> <p>There was no amount to be distributed which was involved in the opposition to the account.</p>

_ The holder of a certificate of location, or land scrip, issued in favor of “E. B or her legal representatives,” holds it subject to inquiry, in a court of justice as to the person to whom it should inure. Hogan vs. Page, 2 Wall. 605. 2.

<p>APPEAL from the Sixteenth District Court for the Parish of East Feliciana. Brame, J.</p> <p>To revoke a sale on the ground of fraudulent preference, plaintiff must prove three things, viz.: Fraud in the vendor, knowledge of insolvency in the vendee, and injury to plaintiffs. 3S An. 422.</p> <p>The law forbids an insolvent debtor to give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due. C. C., Art. 2658.</p> <p>To revoke a sale on the ground of a fraudulent preference, plaintiff must establish three things, viz.: Fraud in the vendor, knowledge in the vendee, and injury to plaintiffs. Seixas vs. Citizens Bank, 38 An. 424.</p> <p>Plaintiff must prove that the purchaser knew of the insolvency of the vendor, and bought with the intent to assist him in defrauding his creditors. Bastían vs. Christian, 34 An. 883.</p> <p>A sale made in good faith by a vendee can not be annulled, although it prove injurious to creditors. R. C. C. 1978.</p> <p>When parties agree upon a price in money and the buyer afterward gives something else in payment, and does not in fact pay any money, the contract is one of sale, and not a dation enpaiement. Poth., Sales, Secs. 30, 601, 603.</p> <p>Parties can not shift their grounds of action, and are bound by their judici alallegations.</p>

<p>An appeal may be dismissed proprio mota, in a proper ease, in which the claim is inflated, to give jurisdiction to the Supreme Court.</p> <p>The matter here involved is one of fact and relates to damages sustained by the illegal removal of a fence. The jury seems to have done justice by making a reasonable allowance, and their verdict, not having been shown to be erroneous either way, is not disturbed.</p>

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

Brame, J. _ Every agreement between tutor and minor, after majority, not preceded by am account accompanied by vouchers, delivered ten days previous, is null and. void. R. C. C. 361;16 An. 325; 15 An. 479; 18 An. 587;2L. 513; 12 An. 401.

Eightor, J. 1. The public administrator has no right to provoke the removal of an administrator. 34 An. 728. Nor to annul a decree so that he may administer. 26 An. 162. 2. The State can not bastardize the offspring of a married woman.

Bightor, J. 1. Title by purchase. — May never parted with his title to the property involved in this suit. The sale of a railroad and appurtenances does not pass any corporeal property, but only incorporeal easements or rights and privileges. Bouvier’s Dictionary, “Appurtenances,”, and authorities there cited. Besides, in this case, the language of the act of sale excluded this property. 2.

King, J. 1. A debtor can arrest the executory process of his creditor whose act of mortgage contains the non-alienation clause by surrendering his property to his creditors, when the executory proceedings must be cumulated with the proceedings in insolvency. Wheeler vs. Stewart, 18 An. 673; 11 An. 482. 2. When a debtor cedes his goods to his creditors, and a stay of proceedings is granted, the cession operates the civil death of the debtor.

<p>APPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>cited: 20 An. 327; 2 La. 161; 10 N. Y. 489; 15 Pick. 351; Marcadé, Yol. VI, p. 176; 15 How. 304.</p> <p>1. The price of a sale must be fixed by the parties. There is no sale where the fixing of the price is left to one of the parties; or where it is left to a third person, who either will not, or can not, fix the price. C. C. 2034, 1764, 2439, 2464,2465; Troplong, vente No. 151, 156, 157; Laurent, Vol. 24, Nos. 73-6; Marcadé, Vol. 6, p. 179; Aubry & Rau,4Vol., p. 338, No. 349; Mourlon, Vol. 3, No. 490; Duranton, Vol. 1G, Nos. 105-117; Pothier, vente No. 29; C. Accarias, Précis de Droit Romain, Vol. 2, p. 453, No.604; Fort vs. Union Bank, 11 An. 708; 14 Ves., Jr., 405; 4 Drewry, 140; 26 Beavan, 426; 4 Pick. 189; 2 Sumner, 539.</p> <p>2. The sale to the association of business and good will transferred to it the right to use the name of the Louisiana Company. 10 Ch., Div. 437 ; 43 Oh., Div. 220; 14 Id. 598; 45 Id. 577; 113 Mass. 175; 36 Fed. R. 724.</p> <p>3. Plaintiff sitting as proxy at a board of directors is as much bound as if he were not clothed with such proxy, but sat on his own account. 35 An. 744; 2 An. 211.</p> <p>4. A party to a contract must endeavor to minimize his loss; failure of this duty will diminish his claim for damages to the extent to which he could have avoided the loss. 6 Wall. 99; 115 U. S. 229.</p> <p>.5, If a party assigns at the time a reason for his conduct, he can not afterward change his mind and assign a different reason. Railway Co. vs. McCarty, 96 U. S.267.</p> <p>6.Damages for loss of profits in a sub-sale can not be recovered unless'the existence of the contract for resale was at the time of making the original contract communicated to the vendor. Thol vs. Henderson, 8 Q. B., Div. 458.</p>

<p>APPEAL from the Eighth District Oourt, Parish of East Oarroll., Montgomery, J.</p> <p>1. If a succession owes no debts and the heirs are present, there is no law requiring the administrator to sell the succession property.</p> <p>2. The administrator can not sell the work stock and farming implements of cultivated lands belonging to a succession separate and apart from the lands. Sue. of Myrick, 88 An. 611; Sue. Sparrow, 89 An. 703; O. O. 468; C. I\ 660.</p> <p>cited: O. O., Art. 350; 39 An. 706; 42 An., 506; O. 0., Arts. 1051, 1163; 2 An. 538; 38 An. 611; 38 An. 303; 39 An. 696; 40 An. 484; 42 An. 500; 40 An. 494; 25 An. 221; 32 An. 321; 33 An. 1107; 35 An. 675.</p>

Rightor, J. 1. Under the Constitution of 1879, private property can not be taken or damaged for any public use until full compensation is made. Act 110, Constitution 1868; Constitution 1879, Article 156; Griffen vs. R. R. Co., 41 An. 808; Cooley Const.' Lim. 680, 681 (note); Chicago vs. Taylor, 125 U. S. 161, 170; Railroad vs. Ayers 2.

King, J. 1. A defendant pleading, his acts were rightfully done, as owner, will be held bound by the plea and can not deny ownership to avoid the responsibilities of an owner. 2. Where defendant’s acts were such as an owne2* only could do, his plea they were done as owner is reinforced and he will not be permitted to ask a court to hold him as a trespasser. The defendant used the wall as a side for his house and in lieu of weatherboarding. He nailed his studdings to it.

<p>Collation is founded on the equality which should prevail among children, and the purpose is to restore the property or its value to the succession, so that the heir will receive his portion as if no donation had been made.</p> <p>If, as to immovables, the donee elect to collate in kind, the property belongs to the succession as of the date of the donor’s death.</p> <p>He will be charged rent for the property from the time of the opening of the succession.</p> <p>He is entitled during that time to the taxes paid by him, and the insurance.</p> <p>He also has the right to repairs made at his expense covered by the provisions of Articles 1256 and 1257 of the O. O.</p> <p>The donee of movable must collate by taking less. 1283 O. O.</p> <p>The waiver of all rights by the usufructuary in favor of one of the heirs in so far as concerns her portion does not giveTvalid cause to object.to a partition. The usufructuáis has the right to waive the entire right. She, therefore, can waive apart on a property falling to one of the heirs.</p> <p>A defendant who has not appealed can not avail himself of the appeal of his co-defendants. A judgment can not be amended as between co*appellees.</p> <p>Immovable property in another State belonging to heirs must be administered under its laws.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>1. Di-vers of street cars in cities should be more than ordinarily careful at street crossings.</p> <p>2. When a lady places herself in a position of danger, and is subsequently through the negligence of the driver, run over by a car at a street crossing, the defendant company can not rely upon the negligence of plaintiff as a protection, to exonerate it from all damages resulting from the injury. Weeks Case, 42 An. 615; 23 An. 182; Cooley on Torts, pp. 810, 811, citing 50 Mo. 161; 18 Ga. 670; ■52 N. II. 528; Ilia. Ill; 3 Ohio (N. S.) 172; 33 Md. 512,541; 56 Mo. 338; 5Bxch. 243;68 Me. 552; 85 N. C. 310.</p> <p>■On approaching a street crossing- of a railway track, it is the duty of a traveler to exercise his senses of sight and hearing and to look and listen for an approaching- train; his failure so to do is negligence, which in any ease of collision will prevent his recovery of damages for injuries sustained. Herman Herlisli vs. New Orleans & Texas Railway Company.</p>

Young, J. 1. To authorize a judgment against one for the debt of another by reason of the fraudulent disposition of the debtors, the insolvency of the debtor must be alleged and shown, and it must be alleged and proved that the debt can not be made out of the debtor. 2. Such an action is for damages for a quasi offence, and must be clearly and conclusively established. 12 R. 25, 26; 16 An. 151; 1 Hen., p. 521, No. 1. 3.

PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. The existence or scope of one’s authority to act as agent for another can not be proyed by the declarations or admissions of the alleged agent. Abbott’s Trial * Evidence, p. 43. The connection between the parties, which renders the declaration of one competent against the other, can never be proved by the declaration itself, but must be separately proved as the foundation for admitting the declaration.

Buckner, J. A. Proceedings in attachment, and ex parte affidavit made to obtain such attachment, not admissible on behalf of an intervenor, in a suit between other parties except to prove rein ipsam. 2.An exceptor who goes to trial on the merits, on answer filed, without requiring the court to pass upon his exception, will be held to have waived such exception.

<p>1. Under Act 183 of 188S mandamus is provided as a special statutory remedy applicable to tbe enforcement of such obligations as those involved in this case in a contract between the city and a street railway corporation.</p> <p>2. The case involves a construction of. the provisions of the contract, and the ;judge below properly interpreted the meaning of the language used.</p> <p>3. The intent of the parties being plainly expressed, no foundation existed for resort to evidence of prior conversations to vary or explain it.</p>

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

• Hall, J. Mortgages and privileges are extinguished when the creditor acquires the thing subject to the mortgage and privilege. O. C. 3411, 3277; 4 An. 416; 15 An. 407; 19 An. 260 ; 25 An. 559, 560 ; 34 An. 1032. Parties acquiring title to real estate are bound by the recitals to their act. 34 An. 962.

<p>APPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>1. When an opponent to the account of an administratrix opposes no item on the account, hut only claims to be placed on the account with first privilege, and the account is homologated so far as not opposed, the judgment of homologation is res judicata in favor of every creditor on the account, as to his claim and rank, and the opponent can only be heard as to his alleged privilege. Girod vs. Creditors,2 An. 548; Uee vs. Creditors, 2 An. 994; New Orleans 1m-provementand Banking Company, 4 An. 471; Succession Mouton, 23 An. 528.</p> <p>2. When an alleged privileged creditor has Successfully resisted a demand to cancel the inscriptions and refer his claims to the proceeds of the property, they can not afterward follow those proceeds. A litigant can not assume contradictory positions, and by turns blow hot and cold. He is estopped by conduct, pleading and judgment.</p> <p>3. Taxes assessed against one person can not be personal claims against another person.</p> <p>4. The privileges for taxes on immovable property rest only on the specific property in respect of which it is assessed, and</p> <p>5. Is prescribed by three years. Act 96,1877, See. 36, p. 142; Act 77, 1880, Sec. 24, p. 95; Act 98, 1886, Sec. 34, p. 145; Act 85,1888, See. 33, p. 124; Act 88,1888, p. 148.</p> <p>Note. — 13th November, 1891. To this date we have no brief of appellant.</p> <p>1. The testimony of witnesses in causes before the courts of probate shall he taken in writing and annexed to the record. O. P., Art. 1042.</p> <p>2. A non-compliance with this article on the part of a court, can be taken advantage of by assignment of error on the appeal. Succession of Reeves, 3 An. 554; Tompkins vs.-Benjamin, 16 La. 200; Graham vs. Graham, 16 La. 203; Lesormes vs. Lesormes, 17 La. 115; Pargoud vs. Breard, 4 An. 517; Succession of Ross, 21 An. 511; Succession of Lorville, 27 An. 131; Succession of Bellocq, 28 An. 155; Succession of Oloney, 29 An. 328.</p> <p>3. Contracts or agreements above $500 in value must be .proved at least by one credible witness, and other corroborating circumstances. C. C., Art. 2277.</p> <p>6. Copies of taxbills certified to be correct by the comptroller «íímíerww are properly authenticated, and should be received in evidence. Sec. 39, Act 20 of 1882 p. 31; Sec. 21, Act 20 of-1882, p.24; Sec. 3, Act 85 of 1888,p. 114; Mullan vs. Creditors, 39 An. 398.</p> <p>7. All oppositions to the account of an administrator must be taken up together and tried at one time, as one case. Succession of Planchet, 29 An. 521.</p> <p>8. Any item on an account which has been opposed is not covered by the decree of court homologating that account in so far as not opposed. And an heir or creditor who is in court may be heard in opposition to those items which have not been finally disposed of by judgment, and which have been specifically opposed by a co-creditor or co-opponent. Succession of Shafer, 13 An. 113.</p> <p>9. An actof acknowledgment by ahusband in favor of his wife, setting forth that he had received certain money belonging to her, can “in no manner be evidence of the validity of the debt or claim.” Sec. 10, Act 95 of 1869, p. 116; Burns vs.Thompson, 39 An. 386.</p> <p>10. The legal mortgage in favor of a wife against her husband, lilce other mortgages, is extinguished in the same manner as are other mortgages. C. 0., Art. 3411.</p> <p>11. When the wife acquires property, as her separate estate, which property is paid for by the husband, in an amount far exceeding the original indebtedness of the husband to the wife, that debt is discharged, and the legal mortgage-falls, as well as the privilege.</p>

A PEAL from the Civil District Court for the Parish of Orleans. King, J. An absentee is properly cited through a curator ad hoc. C. P. 116, 961; C. C. 56. 'Curator ad hoc need not be sworn. Thayer vs. Tudor, 2 An. 1010. Until a person is interdicted he is considered to be sane and treated as sane; if notoriously insane, he occupies precisely the same position, and is treated precisely in the same manner as if he had been interdicted. C. C. 1788,102.

PPEAL from the Civil District Court for the Parish of Orleans. King, J. Movable property is not followed into the hands of the purchaser by a lien for taxes assessed in the name of the vendor.

King, J. 1. Property employed in the manufacture of*machinery and agricultural implements, wherenot less thanfive hands are employed, is exempt from all taxation for a period of ten years from the adoption of the Constitution (December, 1879), say 1st January, 1880, to 31st December, 1889. Constitution, Art. 207. 2.

<p>Appeal dismissed; both appellant and appellee moving (or dismissal.</p>

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

<p>The law fixes no standard for the amount of the bond to be given by a party who wishes to take a suspensive appeal from a judgment refusing him a participation in funds in the hands of the court. A bond for costs is sufficient. The appellant can be condemned to pay nothing elte. A bond for more would be oppressive and an idle ceremony.</p> <p>The ruling in 22 An. 115, State ex rel. AVasscll vs. Judge, lias no bearing. The case is not analogous, as there was no fund in court for distribution.</p>

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

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

<p>An appeal by a third person not a party but who appears in the capacity of receiver of the defendant corporation will be dismissed, when the order appointing him such receiver attached to his petition of appeal shows upon its face that it was made exparte and without notice to the corporation.</p> <p>Section 688 of the Revised Statutes does not authorize the forfeiture of the charter of a corporation and the appointment of a receiver by expm'te order without notice. The statute discussed and construed.</p>

Coco, J. When conspiracy is charged, several defendants may be made parties in the same suit, and the petition may allege separate acts of malfeasance in each. Clements vs. Wafer, 12 An. 599. So when fraud and conspiracy are charged against several defendants. Williams, vs. Hathorn, 14 An. 625. Plaintiff may join in the same petitory action all parties who pretend to own any portion of the tract sought to be recovered. Derbes vs. Romoro,-28 An. 644.

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

<p>APPEAL from the Third Magistrate’s Court for the Parish of Avoyelles. Durand, J.</p>

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

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

Blackman, J, PPEAL from the Twelfth District Court, Parish of Grant. On Estoppel. — An action for the revendication of succession property can not bo grafted on an opposition to an account of an administrator. One can not bo estopped by not doing what he is forbidden to do. E. W. Carthy vs. J. D. Kerr, Administrator, 15 An. 228; Succession Amelia Sanchez, 41 An. 504; Succession Susan A. Scott, 41 An. 668.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.</p> <p>1. In all dispositions, inter vivos or Mortis causa, impossible conditions and those contrary to law, or morals, are reputed not written. C.C., Art. 1519; McDonough Will Case, 8 An. 249, 259; Young & Kgan, 10 An. 415; Beaulieu vs. Ternoir, 5 An. 480; Duplcssis vs. Kennedy, 6 La. 246, 247; Fink vs. Fink, 12 An. 320.</p> <p>2.' The essence of the prohibited substitution is that the donee, heir or legatee is charged to preserve for and return thefthing donated to a third person. C. C., Art. 1520; Marshall vs. Pearce, 84 An. 558; Anderson vs. Pike, 29 An. 120; Succession of Theurer, 89 An. 510; Barrow vs. Barrow, 88 An. 648; Succession of Ducloslange, 4 Rob, 409; Succession of Yancey, 20 An. 164; Duperris vs. Kennedy, 6 La. 246.</p> <p>3. The existence of the prohibited condition — i. e., the substitution of fidei commission — is never presumed. Unless the will can not be understood otherwise, it will be maintained. McCluskey vs. Webb, 4 Rob. 204; Hasley vs. Ilasley, 25 An. 603; Succession of Cochrane, 29 An. 234.</p> <p>4. The penalty of nullity leveled against all dispositions “ conditioned ” on substitutions differs from the penalty leveled against dispositions “ conditioned” -on fidei commissa, in this: that as to the former, the disposition is null with regard to the donee, the heir and the legatee; and that, as to the latter, the fidei commissum, unless of the essence of the dispositions, is reputed not written. O. »C., Arts. 1520, 1519; Beaulieu vs. Ternoir, 5 An. 480, 461; Succession of Foucher, 30 An. 1017; Clague vs. Clague, 13An.l; Succession of Stevens, 36 An. 754; Succession of Yancey, 20 An. 164,</p> <p>5. The usufructuary possesses, “ holds,” and<c holds in trust,” under the law, the thing subject to the usufruct. Such a “ holding ” is not the fidei commissum prohibited by law. C. O., Arts. 554, .556, 557, 567, 625; Succession of Law, 31 An. 456; Fisk vs. Fisk, 8 An. 494; Hallen vs. Faure, 15 An. 622.</p> <p>6. A will is none the less a valid will because it disposes of the usufruct, and not the body of the property.</p> <p>7. In determining whether and how thebody of the property is disposed of by the will, the court will consider all the circumstances lending to show the intention of the testatrix, C. C., Art. 1715.</p> <p>S. In interpreting a will, the construction in case of doubt will be adopted which will save, rather than that which will kill. C. 0 , Art. 1713; Succession of Vance, 39 An. 372; Cecile vs. Lacoste, 8 An. 144.</p> <p>L A penal condition to protect a prohibited disposition in a will is of no effect. 3 Larombiere Oblig., No. 3, p. 3; 23 Merlin Rep., Verb. Peine Test., No. 5, pp. 117-18; 18 Demolombe, Nos. 187 and 285.</p> <p>2. Where a joint usufruct is established in favor of two or more persons during their lives, and after their death to a third person, such third person can not take until after the death of all the[joint usufructuaries. O. O. 1707; 6 N. S. 247; 10 An. 165; 10 La. 248.</p> <p>•3. The second beneficiary can not take at all unless in being or conceived at the time of the death of the testator. 3 Marcado, p. 474; 1 Baudy Laeanciniere, No. 130 7, p. 784.</p> <p>4. The legacy of revenues is a sort of usufruct. Baltimore vs. New Orleans, 13 An. 162.</p> <p>.5. When it is clear the testator intended to provide for a class of persons not in beingrat his death, and to create a trust for that purpose, the disposition is illegal. Partington’s Tru9t, 3 Giffard, 378; Rachal vs. Radial, 1 Rob. 115; Succession of Cochrane, 29 An. 235; Succession of Stevens, 36 An. 755.</p> <p>6. A trust to sell personal property in tliis State to invest in real estate in a State where such trust is valid is void. Wood vs. Wood, 5 Paige, G02; 1 Redfield on Wills, 409.</p>

<p>It is only parol evidence that is inadmissible, under the provisions of the code, to prove agency to sell real estate. It permits a power of attorney bo be conceived in any kind of private writing, even by letter.</p> <p>Notwithstanding the admissibility of such documents they must make clear and sufficient proof of the authorization to sell, without resort to any parol evidence to supply an ellipsis.</p>

<p>Continuances are largely within the discretion of the trial judge and his rulings in matters of this kind will not be disturbed unless manifestly erroneous.</p> <p>It is error for a district judge to grant an order in chambers, out of the presence of the accused, for the sheriff to take him to another parish, to be present at •the taking of the deposition to be used in the trial against him of a witness who is physically unable to attend the session of the court. Such an order violates Article S of the Constitution, which contemplates a public trial, in the course oí which the accused has the right to be confronted with witnesses against him.</p>

Young, J, The disposition by which the life estate, or usufruct, is given to one, and the fee or naked ownership to another, is not a substitution. A double disposition of heirs, depending upon a suspensive condition, does not present the features of a prohibited substitution. Succession Strauss, 38 An. 59. When the donation depends on the fulfilment of a condition, it is sufficient if the donee is capable of receiving at the moment the condition is accomplished.

<p>Simpson & Vizard were the officers, the latter president of a corporation. They owned bonds of the corporation, which were issued while they were officers of said corporation. They foreclosed the mortgage on the property of the company securing the bonds and purchased it.</p> <p>Tax liens and privileges were recorded for taxes due when they were officers. They took a rule to cancel them. Held that they were not estopped from disputing the existence of the tax, because they liad not as officers of said corporation paid them. The corporation was a distinct entity from them as individuals, or as a commercial firm of Simpson & Vizard.</p>

Young, ./. 1. The power is vested in the police juries of the respective parishes over drainage, and to remove obstructions to natural drainage of the lands along-water courses of the State and the Mississippi river. R. S., See. 2748; 13 La. 114; 5 An. 424; G An. 97; 12 An. 554; 40 An. 425. 2.

Ellis, J. It is the duty of the counsel, appointed by the judge of the place where the succession is opened, to represent the absent heirs, not only ip the inventory, but in ali the acts required by law to be done. R. C C. 1211. “The code makes it imperative on curators of absent heirs, when one of the heirs is present, to sue for a partition, and makes the curators competent parties, in asuit for partition, to represent, in every respect, the absent heirs.

Bilis, J. 1. When a man contracts a second marriage while his first wife is living and uudivorced, and dies leaving property acquired during second marriage, if the second wife married in good faith, the estate shall be shared equally by the two wives. 89 An. 1021; Inkstein vs. Hubbel, 7 An. 252. 2.

<p>1. A delinquent tax debtor, whose property has been validly sold for taxes, and wlio has not redeemed or offered to redeem within the delay allowed by law, can notclaim the benefit of a sale made by the tax purchaser to a third person, as operating a redemption, merely because such person falsely represented that he was a creditor of the tax debtor, and as such was entitled and ready to redeem, and thus induced the purchaser to sell.</p> <p>2. A party can not assail a transaction on the ground of a fraud which was not practised on him and did not injure him.</p> <p>3. Nor can he claim the benefit of acts^of a third person having no authority, and under no obligation to represent him, and not done in his name or for his account, but in his own right and for his own benefit.</p>

Ellis, J. 1. Under Art. 248 of the Constitution and the charter of the city of New Orleans. Act of 1882, the council has the power to regulate the slaughtering of animals-within the limits of the city, but not to establish any particular slaughterhouse. The power to i egulate is distinct from the power to establish or create. Dillon, Munic. Corp., Secs. 362 and 380, et seq.; First Municipality vs. Cutting, 4An. 836; Chicago vs. Rumpfi, 45 Ill. 90. 2.

Barbin, Judge ad hoe. A tax sale o£ property assessed in the name o£ anotherperson than the true owner, preceded by notices given to tlie party assessed and not to the true owner, is absolutely null and void. Prescription o£ two and throe years, under the statutes in such eases, does not bar the claim o£ the owner lor the recovery ol the property. 15 An. 15, 26 An. 730;. Leticia Laque vs. Vincent Boagni etal., 31 An. 912; Eischel vs. Mercier,32 An. 705.

' King, J. Masonic societies are charitable (eleemosynary) institutions within the meaning of Art. 207 of the Constitution. 34 An. 574. The exemption of Act No. 225 of 1855 is a contract for a valid consideration between the State and the Grand Lodge E. and A. Masons, and that any attempt to tax the property so long as the conditions exist impairs the obligation of the- contract.

A PEAL from the Civil District Court for the Parish of Orleans. King, J. 1. The proces verbal of meetingof creditors need not be homologated, but unless opposed in ten days stands approved. Revised Statutes, Secs. 1801 and 1802. 2. After a cession no suits can be brought against an insolvent. R. S , Secs. 1790 1800, 1801 and 1818; O, O. 2176; O. O. 2150; Laurence vs. (xnice, 9 R. 219; Fabrc vs McRae, 14 An. 648. 8.

<p>APPEAL from the Civil District Court for the Parish of Orleans* Ellis, J.</p> <p>1. Minors unprovided with tutois may be represented in a partition suit by curators ad hoc or by special tutors. The difference is merely in the terms. C. 1' 116,195 and 946; C C. 313; Code oí Practico oí 1S26-; 2» An. 55; 2S.An. 163.</p> <p>2. a clerical error or omission in the name of a defendant in the judgment does not affect the val .¡ity of said judgment, which should he read hy the light of the pleadings. 42 An. 66</p> <p>3. Difference between want of process and defective or irregular process. Jn the hitter case the judgment is valid if defendant did not complain in time. Freeman on Judgments, See. 126, and notes; Black on Judgments, Vol. 3, Secs. 228, 245,263; 2 How. 340; 4 Peters, 477; 110 U. S. 188; 4 Rob. 258; 2 Woods, 37.</p> <p>4. A judgment can not be attacked collaterally unless it is void on its face. Black on Judgments, Vol. 1, .Sec. 246; 42 An. 369; 38 An. 812; 30 An. 947; 25 An. 125; 10 Wall. 283; 16 Wall. 366; 20 Wall. 249.</p> <p>5. Degree of insanity at which interdiction can be obtained. Same test to annul the acts or contracts of parties as to provoke their interdiction. 38 An. 547; 35 An. 441; 31 An. 757; 29 An. 302.</p> <p>6. Article 402, C. C., under which the acts anterior to interdiction arc annulled in cases of notorious insanity, only applies when there has been a subsequent interdiction. Laurent, Vol. 5, p. 374; 32 An. 93; 32 An. 171; 29 An. 302; 26 An. 464.</p> <p>7. Same Art. 402 applies only to voluntary acts of the insane, not to judicial acts, such as citations and notices. Demolombc, Vol. 8, p 425; Laurent, Vol.5, p. 378; Baudry Lacantiniere, Vol 1, Sec. 1181; Fuzder-Hermann, O. O., Vol. 1, Art. 508 No. 6.</p> <p>All men arc presumed to be sane until the contrary is shown. 32 An. 1056; 39 N. H. 163; 27 Ill. 395; 12Minn. 538; 108 Pa. 305; 63 Ala. 307.</p> <p>9,A judgment against an insane person not interdicted is perfectly valid, in the absence of fraud. Freeman on Judgments, Sec. 152; Black on Judgments, Secs. 205 and 265; 48 Pa. 70; 48 Mich. 234; 15 Neb. 295; 50 Md. 214; 21 Ala. 797; 31 Ohio, 247; 14 Mass. 207; 33 Me. 114; 29 N. II. 299; 81 Mo. 610.</p> <p>10. An insane person in Louisiana must be cited through himself, and not through a curator ad hoc, even for the purpose of interdiction. 28 An. 27; 16 La. 67; 1 Martin, N. S., 551.</p> <p>11. Insanity'can not be pleaded by a defendant unless a suit for interdiction has been previously instituted. C. C., 1788, No. 4.</p> <p>12. Irregularities in the proceedings are cured by tlio judgment, which protect» the purchaser. 38 An. 518; 25 An. 55; 2 How. 319: 2 Wall, 216: 3 Wall. 406; 16 Wall. 366; 101 r. S. 417.</p> <p>1. A notary public who is himself a defendant in a partition suit, either in liis own behalf or as agent for one of the co-owners of the property, can not hold family meetings on behalf of minor co-owners of the property sought to be partitioned. •</p> <p>2. Non-resident minors must be represented by curators ad hoc, and not by special tutors. Code, of Practice, Art. 116.</p> <p>Any legislation contained in the Civil Code contradicting this article of the Code of Practice must yield to the Code of Practice under Sec. 514 of the Revised Statutes.</p> <p>?, a citation which does not state the number of days allowed to defendant to file his answer is null. Kendrick’s Case, 19 La. 36; Dupuy vs. Arceneaux, 21 An. 629.' Such a citation can not form the basis of a valid judgment.</p> <p>4. The Louisiana law, differing from the French law, allows any one to provokv the interdiction of an insane person, and further allows the appointment of an administrator pro tempore as soon as the interdiction proceedings are filed. O. O. 391, 394.</p> <p>Under this state of the law, which differs .entirely from the French law, a person having a c.laim against another notoriously insane must provoke his interdiction and the appointment of an administrator pro tempore, against whom h«? can proceed conti'adietoi-ily to assert his rights. Any other theory of the lav would lead to inhuman and appalling consequences.</p> <p>5. The provision of Art. 17S8 of the Civil Code, that no contract of an insaue man can be annulled unless his interdiction has been decreed, and that no exception of insanity can be set up unless interdiction lias been applied for, applies solely to the heirs or other representatives of the insane man, and not to third persons, whose exception is based upon the proposition that interdiction pro* eeedings may at any moment be filed and the validity of the acts of the interdict thus put at issue to their prejudice.</p> <p>■fi. The title tendered to an adjudicatce at public sale in order to compel his acceptance must be a full, clear and unencumbered title in fee simple, and not a clouded title, even if it be one which will bo pronounced valid by a court of justice after a trial. Bachino vs. Coste," 35 An. 572, and authorities there cite d</p>

<p>The violation of a duty specified by law is negligence; therefore, when a city ordinance under which an electric lighting company is'operated requires it to have the “ splices ” on its wi.res perfectly insulated, the failure to do so is negligence.</p> <p>A person whose occupation brings him in proximity to the company’s wires has a right to believe that the wires have been insulated and the ordinance complied with. I-Ie is required to look for patent defects in the insulation only. If not aware of a latent defect he comes in contact with the wire and is injured without fault on his part, the company is responsible.</p> <p>When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence.</p> <p>This proof need not be direct, but may be inferred from the circumstances of the case.</p> <p>Whore an electric Wire is stretched over a roof and a party goes on the roof to repair it, and the wire is of that height above the roof that the chances are that he will come in contact with it by going under it or stepping over it, it is not negligence to pursue either mode of crossing if he exercises all necessary and prudent care to protect himself in proportion to the danger.</p> <p>When a person is employed in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to the danger.</p>

<p>This court will consider the written evidence of settlement; and payment of the judgment appealed from, when the genuineness of the receipt showing payment is not questioned by the appellee.</p> <p>The amount paid in the settlement of its tax, made by defendant with the City Council, having been placed in the treasury of the corporation; no action having been taken toward sotting aside the settlement, and no tender having been made of the [amount received in settlement, the plaintiff is without right to prosecute its suit for taxes settled, for an amount less than claimed as shown by the receipt produced,.</p>

<p>The doctrine announced in Pugh vs. Moore, Hymns & Go., ii An. 209, affirmed.</p>

Ellis, J. If the total loss insured does not equal the value of the thing insured, the owner is his own insurer for the difference, and is entitled to a pro rata share of the proceeds of the wreck. 11 An. 459; 6 O. St. 200; 9 Cushing (Mass.), 802; 4 Peters, U. S., 144; 2 Woods, U. S. C, C., 490.

. King, J. 1. The marital portion is but a right to be exercised or not,- at the option of the husband or wife entitled to same. 14. C. O. 2382. 2. It is not an inheritance, because not given in all cases. 3 An. 713. 3. It is an option to be exercised or not, as desired by the party entitled thereto. . 39 An. 568. ■' ■ • • 1. The marital fourth is an inheritance. O. C. 2882; Dunbar Heirs, 5 An. 159; Con-nor vs. Connor, 10 An. 451; Gee vs. Thompson, 11 An. 657. 2.

King, J. Where an agent has rendered important services to his principal, although there was no contract for compensation, and the principal has died- intestate and without final settlement with the agent, the latter is entitled to compensation from the succession. Succession of Fowler, 7 An. 207. It is not of the essence of mandate that it be gratuitous. The right to compensation may be inferred or implied from the nature of the services.

<p>APPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.</p> <p>1. Franchises to construct and maintain street railways, when acquired for value, constitute property in the highest sense of the term, and can not be impaired or taken away except under the exercise of the power of eminent domain. 32 An., p. 915; People vs. O’Brien, ill N. Y., p. 1; Pierce on Railroads; Elliott on Streets and Roads; Dillon on Municipal Corporations; 73 Iowa 502 ;*33 Northwest. Reporter, 610. References and authorities cited in the brief.</p> <p>2. A stipulation in a contract of sale of right of way, based upon ordinances passed by the municipal corporation, to the effect that “The City of New Orleans binds herself not to grant during the period for which said franchises are sold a right of way to any other railroad company upon the streets upon which said right of way is hereby sold, unless by mutual agreement between the city and the purchaser or purchasers of this franchise,” is not a grant of an exclusive privilege or monopoly, in the sense in which these terms are usually understood in the laws and constitutions of this State; but even if so, in the absence of a constitutional provision prohibiting the granting of monopolies or exclusive privileges, the Legislature of the State could validly make such a grant.</p> <p>Where such a grant is made by the city of New Orleans, exercising the power vested in her by the State, the only question that can arise is a question of-del egation of the necessary power.</p> <p>3. When the contract in question, dated October 2, 1879, was entered into, there was no prohibition in the laws or in the Constitution of the State against such a grant; the Legislature could, therefore, have legally made it, or delegated the power to do so to the municipal corporation.</p> <p>i. Under the Charter of 1870, Act 7, extra session of that year, and in other legis • lative acts, the State had delegated “ full power,” meaning all her power in the premises, to the city of New Orleans. (References in brief.)</p> <p>5. The subsequent legislation of the State confirms the interpretation placed by this court and the city, authorities in the premises on the power exercised by the city, and authorizes 'expressly the sale of street railway franchises for price and on “ terms and specifications” prescribed by the city and published to the world. Acts cited in brief.</p> <p>The charter of the city of New Orleans, Act No. 7 of 1870, does not confer power upon the corporation to grant the exclusive privilege of the use of a street. The powe,r conferred was restricted to the regulation and management of the streets. New Orleans, Oity and Lake R. R. Co, vs. Oity of New Orleans, 43 An.— (decided April 18, 1892); Canal & Claiborne St. R. R. Co. vs. Orescent Oity R. R. Oo., 43 An. — (decided April 4,1892); Oanal & Claiborne St. R. R. Oo. vs. Orleans R. R. Oo., 43 An. — ; Canal & Claiborne St. R. K. Co vs. Crescent City R.R. Co., 41 An. 561; New Orleans City R. R. Co. vs. Orescent City R. R. Co., 12 Red. R. 308; Brown vs. Duplessis, 14 An. 854; Elliott on Roads and Streets, pp. 566, 567, 568 and 573; Minturn vs. Larue, 23 How. 436.</p>

Oogo, J. The doctrine ot tender as a prerequisite to a suit to annul a sale made under the tax laws of this State is not sustained by authority; even where such condition has been imposed by statute, grave doubts have been expressed as to its validity, and it has been construed with great strictness. 33 An. 528.

Monroe, J. 1. Where proof is made that an original notarial act containing a transfer of immovable property has boon mutilated, and a portion of it lost or destroyed, the contemporary registry in the register of conveyances is admissible to prove the contents of said act, and that it was properly registered, and to prove thoreby-the sale of the immovable. 2.

<p>APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J. '</p> <p>cited: 36 An. 785; 38 An. 164; 39 An. 119; 40 An. 609.-</p> <p>1. Defendant’s residence or place where he lives must be mentioned in petition. C. P. 172, No. 3.</p> <p>2. Court having no jurisdiction can render no valid order but of dismissal. 32 An. 48; 37 An. 586, 605 ; 39 An. 853, 854, 806; O; P. 92; 39 An. 310.</p> <p>3. An owner in common is not entitled to a sequestration of the half of any particular thing. 3 L. 136.</p> <p>4. Neither the supplemental petition nor the affidavit discloses any right or cause for a sequestration. C. P. 275, No. 2.</p> <p>5. Such writs will not be granted unless specially provided for by law. 19 An. 195; 9 An. 535; 2 An. 96.</p> <p>■6. That the matters and things alleged in the second supplemental petition can not be cumulated with and brought into a suit for a partition.</p> <p>7. An administrator can not represent either the heirs or succession in a suit for partition. 30 An. 182; 14 An. 182; 26 An. 606, 607; 21 An. 712.</p> <p>S. An administrator has no authority to institute such a suit, nor to carry it on after brought, and no authority to stand in judgment. 26 An. 606; 30 An. 182.</p> <p>9. That the appointment of a curator and tutor ad hoc to the minors herein is unauthorized and illegal. 25 An. 466, 467; 31 An. 574.</p> <p>10. The major heirs, or minors represented by a tutor appointed, if they hayo none, upon the recommendation of a family meeting duly convened, are the parties in such cases to institute and carry on partition suits. C. O. 270, 271; C. P. 937, 958, 959; 26 An. 704; O. C. 1307 (1230), 1329 (1252), 1312 (1235).</p> <p>11. When necessary to appoint special tutors-, one must bo appointed to each' minor. 5 An. 211; 9 An. 56; 30 An. 182.</p> <p>12. This is not a case against a minor. C. C. 313; C. P. 116,194.</p> <p>13. The experts were illegally appointed. C. P. 446, 448.</p> <p>14. Tire report of the experts furnished none of the legal requisites of proof that the property is indivisible. 18 An. 282; 15 An. 697, 698 ; 0 . O. 1339 (1261), 1340 (1262); 40 An. 572.</p> <p>15. A family meeting must be convened and fix the terms of sale of immovable property in which minors are interested; this ts imperative. O. 0.1341 (1263); 12 An. 153, 154; 15 An. 250, 697, 698 ; 30'An. 974; 40 An. 574; 35 An. 572.</p>

King, J. 1 1. Franchises to construct and maintain street railways, when acquired for value, constitute property in the highest sense of the term, and can not be impaired or taken away except under the exercise of the power of eminent domain. 82 An., p. 915; People vs. O’Brien, 111 N. Y.,p. 1; Pierce on Railroads; JElliott on Streets and Roads; Dillon on Municipal Corporations; 7SIowa, 502; 88 Northwest Reporter, 610. References and authorities cited in tlie brief, 2.

PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. 1. The only body that has the power to increase the amount of assessments in the parish of Orleans is the Assessment Committee of the City Council. Act of 1838, Sec. 26. The Board of Assessors has power to assess on supplemental [rolls, omitted property, property improperly described or assessed in the wrong name. Id., Sec. 11. 3.

A PPEAL from the Oivil District Oourt for the Parish of Orleans. A King, J. 1. The situs of a debt as property is at the domicil of the creditor. Burroughs on Tax., p. 186; Cooley on Tax., ch, 1, pp. 14-15; 15 Wall. 319; 100 U. S. 496; 41 An. 646-1015. 2. A foreign company does not cease to be a foreign corporation by having an authorized agent or place of business in this State. Art. 286, Const. 1879; 41 An. 1015. 3.

<p>The Legislature has the power to separate the situs of corporeal movables from the domicil.'of the owner for the purpose of taxation.</p> <p>If a right be incorporeal and intangible, such as a debt, which is not the property of the debtor in any sense, being his obligation and having value only in the hands of .the creditor, its situs is necessarily where it is owned and not where it is due.</p> <p>A foreign insurance company domiciled out of the State and collecting premiums here is not liableforatax levied on the saidpremiums, being “credits” having its situs at the domicil of the company.</p> <p>The agencies of foreign companies, established in compliance with Act of 1877, requiring them to have business residences in the State, are not an election of domicil changing the situs of the said incorporeal rights.</p>

<p>y^PPLIGATION for Prohibition and Certiorari.</p> <p>The case of Pardee, 19 Central Law Journal, 330; the case of Gaylord, decided by the Supreme Court of Kentucky, 26 American Law Register, pp. 320, 359 and 312; the case of Tracy, decided by the City Court of New York, 67 Howard Practice Reports 154; the case of Steam, E. & A. Railroad Cases, Yol. 21, p. 443; the case of Carpenter, 3 R. R. Corp. Law Journal, 32; the case of Handy, 63 Mississippi, 609; the case of Whitney, 143 Massachusetts, 243 (also reported in N. E. Reports 619); the case of Searles, 45 Federal Reporter, 330; the case of Hills, 72 Iowa, 223; the case of Roy, 102 U. S. 451; and others too numerous to mention.</p> <p>1. Penal statutes, like all others, are to be construed as not to work an absurdity or defeat their own purpose, or to be eluded. The Carolina, 9 Wheaton, 381; Malone’s Criminal Briefs, p. 160,</p> <p>2. The police power of the States is always held to be within their control, not subject to interference from the national government. This power extends to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals. Beer Company vs. Mass., 97 U. S. 25-33.</p> <p>3. For the purpose of carrying out a contract in carrying passengers by a railroad company, the conductor and porter of a sleeping car company whose car is attached to a railway train are, in law, servants and employes of the railroad company. Williams vs. Palace Car Company, 40 An. 417.</p> <p>4. Equality of accommodations does not mean identity of accommodations. Log-wood and Wife vs. Memphis & Charleston Railroad Company, 23 Federal Reporter, 318.</p> <p>The case of Hall vs. Decuir (5 Otto, 95 U. S. 490) does not decide that the States have no power to make regulations for separate accommodations for white and colored travelers, but does hold that carriers must furnish accommodations equal in quality and convenience.</p> <p>5. The Interstate Commerce Act provides the giving of any undue or unreasonable preference as between persons or localities or kinds of traffic, or the subjecting of any one of them to undue or unreasonable prejudice or disadvantage is declared to be unlawful. See First Annual Report of Interstate Commerce Commission, 1887, p. 10.</p> <p>6. Colored people may properly be assigned separate cars on equal terms. Sueli a separation of the races does not create undue prejudices or unjust preference. Council! vs. Western & Atlantic Railroad Company; Heard vs. Georgia Railroad Company; See points decided, Fifth Annual Report of Interstate Commerce Commission, p. 155.</p> <p>7. Act B of the Acts of the General Assembly of Louisiana, 1890, is an act to promote the comfort of passengers on railway trains. It is a police reguiation and does not discriminate, neither subjects any person to undue or unreasonable prejudice.</p> <p>8. Classification upon color docs not abridge any of the privileges or immunities of a colored man as a citizen of the United States, nor deny him the equal protection of the law of the State. Ward vs. Flood (1874), 48 Cal, 36; Roberts vs. The City of Boston (1850), 5 Cush. (Mass.) 198; State ex rel. etc., vs. Cincinnati et ais. (1850), 19 Ohio 178; Van Camp vs. Board of Education of the Incorporated Village of Logan (1859), 9 Ohio St. 406; People vs. Board, etc., of Detroit fl869), 18 Mich. 400; State ex rel. Stoutmeyer vs. Duffy et als. (1872), 7 Nev. 342; United States vs. Buntin (1882), ü S. C. Ct. S. D. Ohio, 10 Fed. Rep. 730.</p>

Marr, J. Where the motion for a new trial presents mixed questions of law and fact, and a bill of exception has been retained to the overruling of the motion, and the evidence offered on the trial is embodied in the bill or annexed thereto, the Supreme Court will consider and determine it. State vs. Green Red, alias Green Redding, 32 An. 819; State vs. Nelson, 32 An. 842; State vs. Cyrus Hudson, 32 An. 1052; State vs. Sylvester Miller, 36 An. 158.

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

<p>A company having purchased the materials, and having paid the expense of putting up, at its risk, a patented device or machine, has no claim against the patentee for its costs, it not being established that he assumed any responsibility, or made any promise to the company.</p> <p>An employe who continues under a contract which stipulated that he was to receive 10 per cent, of the net profits of the defendant company as a salary for his services at the end of each year, can not recover on a quantum meruit (for if it was for the year) there was reconduotion of the contract on the same terms and at the same salary.</p>

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

<p>A foundry in ‘which “railing posts and bridges and such other things ” hre manufactured, and iron, brass and other metals are cast, is not exempt from taxation under the article of the Constitution exempting capital, machinery and other property employed in the manufacture of machinery or agricultural implements, unless they areusedinthe said manufacture of machinery or implements.</p> <p>It is not proven that one of the articles enumerated was employed in the manufacture of machinery or agricultural implements. They are, therefore, not exempt. A foundry consists of works for the casting of metals; they are not necessarily employed in the manufacture of machinery or agricultural implements, as when railings, posts and bridges are made.</p> <p>The surrender of the power of taxation is never presumed.</p> <p>It will not be presumed, in the absence of evidence, 'that the foundry was usect for casting and moulding any other articles than those proven.</p>

1. All the names of persons voted for shall be printed on one ticket of white paper of uniform size and quality. Sec. 4, Act 101 of 1882. 2. Although the right of franchise is a sacred one, yet it is a right derived only from the Constitution and laws. The State has the legislative power to prescribe the mode of its exercise; and when a specific mode is so prescribed, the-right must be exercised pursuant to that mode, and not otherwise.

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

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

<p>Where the question is of the acceptance vel non of title, by a purchaser of real property, at succession sale, the proof disclosing that the alleged undivided interest of a minor was transferred to the deceased by its parent, during her lifetime, and that, consequently, no title by inheritance passed ¡jat her death9 rule on the adjudicatee must be made absolute, as the tendered title is unquestionably clear.</p>

<p>■A PPEAL from the Fourth Recorder’s Court for the Parish of Orleans. Smith, J.</p>

<p>1. Courts and text writers are divided as to where lies the burden of proof on the question of contributory negligence, but all agree that, if plaintiff’s own evidence establishes or strongly suggests his own contributory negligence, that bars recovery, no matter where the burden rests, unless he shall remove or explain away'the adverse presumption thus created.</p> <p>2. In this case the evidence of plaintiff’s own witnesses fully establishes that the injury sued for was caused by the carelessness and negligence of the party injured, without proof of even concurring fault in defendant.</p>

<p>A city, under the power to regulate markets, may adopt such regulations as are necessary for the preservation of public health and conducive to the public interest.</p> <p>But one who complies with all the requirements of the ordinances of the council of a police and sanitary character can not be required to produce the written consent of a majority of the property owners within 600 feet of the place selected to open a private market.</p> <p>The State government may delegate to a municipal corporation part of its own powers. These ¡powers can not be delegated or vicariously exercised unless the authority to delegate is specially granted by the Legislature, nor can the municipal corporation divest itself of the discretion vested by the statute.</p>

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

Thompson, J. The highest standard of damages will be adopted to punish the wrong-doer, when the proof shows a wanton and malicious trespass. 1R. 140; 13 An. 102; 13 An. 116; 29 An. 214; 30 An. 926; 34 An. 1158. The actual damages proved by plaintiff is correctly found by the District Judge, and amounts to about $800. But his award of only $200 punitory damages is wholly inadequate, and should be increased, under plaintiff's prayer *to amend the judgment.

<p>y^PPLICATIOhF for Mandamus*</p> <p>1. The Supreme Court of Louisiana has not, and therefore the Court of Appeals for the Parish of Orleans has jurisdiction of an appeal from a judgment of an executor’s account when the fund remaining to be distributed is less than $2000, and the oppositions are for less than that amount. Sue. Duran, 84 An. 585; Sue. McDowell, 35 An. 1025; Sue. Gobs, 37 An. 438.</p> <p>2. The foregoing is so, especially when the ease is one of a perfectly solvent estate in which no one has interest to oppose more than enough to meet his claim; and also when there are judgments unappealed from ordering the distribution of all the estate except enough to meet oppositions amounting to a capital of less than $2000. Sue. Gohs, 87 An. 428.</p> <p>The Supreme Court alone has jurisdiction of an appeal from a judgment disposing of oppositions to an executor’s account when the total of the estate or the fund to be distributed in the case exceeds $2000 exclusive of interest. Art. 81, Constitution of 1879; Brierre vs. Creditors, 43 An. 423.</p>

Baird, J. A creditor has a right to sue his debtor and to seize his property, notwithstanding an order staying proceedings. 42 An. 71; 1 O. M. 641; 1 M. (N. S.) 438, 240; 2 M. (N. S.) 329; 12 An. 182. “ The law considers as bankrupts those who have obtained a respite.” 2 N. S. 329; 3 R. 403, 410. “ A respite is a privilege granted to a debtor and always derogatory to the rights of creditors who are in the minority, by changing their contracts without consent on their part.

Williams, J. Where a contractor is to build a certain levee according to certain plans and specifications, etc., to be furnished by a levee board, and the latter negligently delays furnishing said specifications, etc., and loss results, the levee board is liable therefor. Philadelphia, etc., Railroad Co. vs. Howai-d; 13 How. 307.

<p>1, In case the description of land in a sheriff’s proces verbal and deed of sale is by legal subdivisions and also by the ancient name of the plantation, its situation with reference to a natural water course, its contiguity to other properties of adjacent proprietors and the aggregate quantity of land conveyed, the quantity will not be alone determined by the legal subdivisions, but by the entire description, as indicating the true intention of the parties.</p> <p>2, If the description given of a tract of land taken as a whole informs the public what property is covered by it without stating the township or other legal subdivisions, it will be sufficient — as, for instance, where it is described as being on a particular stream in a designated parish adjoining certain named properties, or upon the stream upon which it is situated within the parish designated, with the number of acres it contains and reference made to the conveyance by which the vendor acquired it.</p> <p>8. If a portion of the description would mislead, it must be read with and eon trolled by other parts, which explain it; and an error in a description by legal subdivisions’may be cured by other descriptive designations of the property in the conveyance, which leave no doubt of the particular tract that was intended to be sold.</p>

<p>Any person not designated in Art. 2247 C. C. may purchase a litigious right.</p> <p>The penalty ot nullity resulting from t.-.e purchase of a litigious right does not destroy the original obligation. Therefore only those whose rights are violated can demand the nullity of the purchase.</p> <p>Intervenors will not be permitted to urge defences personal to the defendant The formality and regularity of the attachment proceedings, the rightful issuing of the attachment', in the absence of fraud and collusion between plaintiff and defendant, are matters pertaining exclusively to the defendant. The intervenor is limited to the assertion of his own right, to show that the property attached is his; that he has a superior privilege on it, or that the plaintiff and defendant perpetrated fraud in combining to have the attachment issued to defeat intervenor’s pursuit of the property.</p> <p>On questions of fact found by the district judge, the judgment will not be disturbed, except for urgent reasons.</p>

<p>The defendants do not set forth in their answer any right to a call in warranty. It is not a case of personal warranty within the meaning of Art. 379 of the Code of Practice.</p> <p>There were measurements and estimates to be made. The court did not exceed its discretion by appointing experts to obtain further information.</p> <p>The plaintiff and the defendants having agreed, in case of disputes or differences as to the construction of their contract, or the sufficiency of the performance of any of the work to be done under it, or the price to be paid, to submit them to the civil engineer in charge, who was to consider and finally decide them, are bound by the measurements made, and by the decision of the selected arbiter.</p> <p>The hasty utterances of the arbitrator, without knowledge of all the facts, can not be construed as modifying or changing the terms and conditions of a contract, one of the clauses of which reads:</p> <p>No extension of time or alteration of this contract is in any way to be considered or allowed, unless the same be in writing, properly signed by the parties and attached to this agreement.</p>

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

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

<p>1. A possessor in bad faith is one who possesses as master, but who assumes that quality when he well knows that he has no title to the thing or that his title is vicious and defective.</p> <p>3. He is a bona fide possessor who possesses as owner, by virtue of an act sufficient in terms to transfer the property the defects of which he is ignorant.</p> <p>The bad faith possessor is entitled, upon being dispossessed, to the reimbursement of necessary expenses for the preservation of the property and to an adjustment of his claims for constructions and improvements.</p>

<p>Where a party holds a mortgage note on certain property, and lives with the mortgagor for a number of years, she can not make a remunerative donation of the mortgaged property, to the prejudice of her heirs, to said mortgagor. If anything is due for maintenance it should be credited on the mortgage note.</p> <p>If the mortgage note is prescribed there is still a moral obligation to pay, and the amount due for board should be compensated by the mortgagor. When a person makes a donation of ah his property, without reserving enough in the act of donation for his support, the act is null and void.</p> <p>In a suit to cancel a donation the test of jurisdiction is the value of the property in controversy.</p>

<p>A tax of five mills, voted a number of years since, to aid in the construction of a railroad, which afterward allowed the time to lapse within which to commence the work, and has never taken any steps toward complying with the condition of the contemplated contract, will not be considered in determining whether defendants exceeded their power in having a special five-mill tax levied and collected.</p> <p>It is manifest that the taxes voted in favor of the first company can not be collected and never will be collected.</p> <p>An agreement relieving a corporation from the payment of the five-mill special tax for a consideration, is not in contravention of Art. 203 of the Constitution so long as no injury arises therefrom. The police jury is without authority to question the validity of the special tax on the ground that a corporation has been by it released from its payment,</p> <p>Thecontesting of votes is a judicial function only in so far as made such by special statutes.</p> <p>A party having complied with the conditions of his contract, the other parties to the obligation must be held to a compliance with their obligation.</p> <p>A corporation is not bound by the unauthorized acts of its officers.</p>

<p>There was no property in slaves in 1870, and had Articles 1861 and 1362 of the Code of 1825 been inserted in that of 1870 there would have been nothing upon which in the future their provisions could operate. Their oiuission from the last Code is duo to that fact and not to any intention to control or affect obligations resulting from transactions in the past based upon them</p> <p>Liability to collate in a succession by taking loss, resulting from a donation of slaves made in 1852 by a mother to her son, remained unaffected by the subsequent abolition of slavery.</p> <p>This obligation to collate in tlie succession of his mother by taking less is binding-upon the children of the son, who come into the succession of their grandmother concurrently with their uncles and aunts, although their father died before his mother.</p> <p>There is a distinction between “gifts” and “debts” in the law of collation, and in the present case the grandchildren are not sought to be made [liable for a “debt” of their father by way of collation.</p> <p>The entire commissions of an administrator are not properly exigible before the administration is terminated. Prior to this, his commissions on sums received and distributed should be paid, and his rights to the residue reserved for his lhial account. The decision in the Succession of Sparrow, 40 An. 484, affirmed, and its principles applied.</p>

<p>A PPEAL from the Twenty-fifth District Court, Parish óf Vermillion. Mouton, J.</p>

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

<p>PPEAL from the Eleventh District Court, Parish of Acadia. Lewis, J.</p>

Landry. Perratolt, J. 1. Interlocutory judgments are appealable where they procrastinate the suit to an indefinite period. 3 R. 103; 11 R. 452, 10 An. 508. 2. Parties are bound by evidence received without objection. 6 N. S. 86; 1 La. 301; • IS La. 321; 9 An. 254. 3. As against a non-resident plaintiff the defendant can reconvene for any cause of action. O. 3?. 375. 4.

<p>APPEAL from the Eleventh District Court, Parish of Acadia. Perrault, J.</p>

<p>Article 12(i ol the Constitution, so enlarges the powers ol justices ol tlie peace that, they are empowered to bail or discharge persons accused ol crimes and of-fences, in eases not capital or necessarily punishable at hard labor.</p>

Mouton, J. The court, in remanding this ease, did not limit the further proceedings to the question of interruption of prescription. Unconditional heirs of an estate may, in tlieir own names, institute an action to annul a tax sale of the property of a debtor of the estate, especially if the administrator be made a party. 42 An. 857. Only the administrator of an estate under administration can sue to recovera money debt due it.

Martin. Mouton, J 1. Trusts are unknown to our laws, and are reprobated by law, under Art. 1520 B. C. 0., prohibiting fidei commission and substitutions. 2. A disposition leaving property intrust, in express terms to one for others, to be divided between them after the greve’s or first legatee’s death, comes within the prohibition of Art. 1520, and is both a fidei commission and substitution, and therefore null. 5.

<p>Opposition to Final Account.</p> <p>1. A wife who at the death of her husband receives (as the beneficiary named therein) the amount of certain policies on his life, which the husband had taken out, and on which he had paid the premiums, can not be made by special opposition of a creditor to charge herself on the account filed by her as administratrix of her husband’s succession with the amount of those premiums as an asset of that succession, and as resulting from a debt due by her to it.</p> <p>2. In entering into those contracts the husband did not claim nor intend to act either as negoiiommi gestor or as agent of his wife; he was not dealing with reference to nor upon any property of hers. The obligations of the assured created by the policies were his own obligations, and when extinguished by payment of the premiums the debts paid were his debts, and not those of his wife.</p> <p>3. Even were there a situation, resulting from community relations, such that a wife would be as between herself and her husband liable for the premiums, she could not be held for that particular special item of indebtedness upon an opposition made to her tableau ol administration, especially where the opposing creditor does not allege that he is a creditor of the community; that it has been accepted by the wife, or that she has made herself liable as widow in community; that the community is insolvent, or that it has been liquidated, and that, as a result thereof, the wife lias been found to be a debtor thereto. A wife would be entitled to a general settlement: non constat, but that on such settlement she would not be found its creditor.</p> <p>1. Whore services have been rendered a succession upon the advice and with the consent of a particular creditor, he is estopped from contesting payment of the same when he concedes they have been properly performed and reasonably charged for.</p>

<p>Taylor, J, PPEAL from the First District Oourt, Parish of Oaddo.</p>

Watkins, J. 1. Fifteen clear days is a sufficient citation for a person living fifty miles from the court house. O. P. ISO. 2. If a person moves from a parish, he can be sued in the parish from which he moved within one year. 15 An. 538; 0.1\ 167. 3. Silence and acquiescence in accounts constitute an approval of them. 35 An. 778. 1. Contracts cannot be avoided for error, unless it is caused by fraud, force or improper influence. 22 An. 14; 30 An. 19á, et seq. 5.

Taylor, J. 1. The owner of land within the corporate limits o£ a town or city has the legal' right to make it a suburb or subdivision of the town or city, and the right to have it surveyed into lots, blocks, streets and alleys, and to sell the lots separate from the streets at x>rivate or xmblic sale. O. 0., Art. 491 (483). 2. A sale of lots bounded by streets is a dedication of the streets to public use. Dillon on Municipal Corjiorations, Vol. 2, p. 638, Hoc. 640. 3.

<p>In this action for defamation and malicious prosecution the evidence fails to establish the facts that the defendant acted with malice and without probable cause.</p> <p>Having-pleaded justification the burden of proof is upon the defendant that he acted upon probable cause, without malice and upon reasonable grounds of belief.</p>

<p>The first trial haying resulted in a verdict for defendant,</p> <p>Plaintiff moved for a new trial on the ground that the verdict was contrary to the law and the, evidence.</p> <p>It was not error in the judge to grant the motion.</p> <p>The written reason containing statement of the court that its charge was not sufficient and explicit on one of the issues of the case did not preclude the court from exercising its discretion to grant a new trial.</p> <p>The dissatisfied party could not malte the incompleteness of the charge a ground of application for a new trial, not having excepted, but the judge could not he thereby prevented from having a verdict corrected which was contrary to the law and evidence.</p> <p>The creditor who tabes an attachment on a debt not due must tafee oath to the existence of the debt and to one of the requisites contained in the C. P. 210, hut need not swear that “said debtor is about to remove his property out of the State before said debt becomes due, for to the conjunctive phrase “ and moreover swears,” of Section 7 of the Act of 1826, “ or swears,” was substituted in the Revised Code of Practice of 1870.</p> <p>The case of Seligman vs. Rigmaiden, 37 An. 722, is authority in so far as it is held that a mortgage granted by a debtor in good faith, to one of his creditors, is not a ground for attachment.</p> <p>A charge of the court|being correct as a whole, is not construed as having operated to the pi’ejudice of the party cast, and as vitiating a verdict, because the judge, in instructing the jury in reference to one of the issues of the case, suggested» hypothetically, an unavoidable inference.</p>

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

Wear, J. 1. The regular mode of examining into the general reputation for truth and veracity is to inquire of the witness whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. But it can not be inquired whether, from such knowledge, the witness would believe that person upon his oath. Greenleaf, Vol. 1, Sec. 461. 2.

<p>On atrial iorstealing ahorse under an indictment wherein ownership of the animal was laid in Ned Dansby, the evidence going to show that at the time of the commission of 'the crime there existed a contract between Dansby and one Brooks, whereby it was left in doubt whether its legal title still remained in Dansby or had passed to Brooks, the district attorney, with leave of the court, and without objection from the accused, amended the indictment so as to make it aver that if the horse alleged to have been stolen was not the property of Ned Dansby, then it was the property of Newt. Brooks.</p> <p>On the second'trial of the accused (the first having resulted in a mistrial), as the State was about to introduce evidence as to ownership, the accused objected to any evidence on that subject on the ground that the indictment, as amended, alleged no ownership in any particular person. The court overruled the objection. Held, the objection was not well taken and the ruling was correct.</p> <p>The amendment was authorized to be made by See. 1047 of the Revised Statutes, and the State had the right to support the indictment as amended by evidence.</p> <p>A verdict and judgment upon the amended indictment would bar a future prosecution for stoalingthe particular horse mentioned in the original indictment; its identity was not affected by the amendment.</p> <p>Ownership in a particular person is not an essential ingredient in larceny. If the particular hoi'se mentioned in the indictment could be shown to have been taken by the accused under the circumstances mentioned therein, he would be guilty of tile crime charged, and it would be immaterial to him whether, as between Dansby and 'brooks, it belonged to the one rather than to the other; it would be sufficient, so far as he was concerned, to show that it did not belong to him, but to a third person.</p> <p>For the same reasons held, that the district judge acted correctly in overruling a motion in arrest of judgment, based upon the ground that the verdict of the jury on the amended indictment, and the judgment of the court thereon, were void for uncertainty.</p>

Barksdale, J. 1. In order to constitute res gestee the facts and declarations must be such as are connected with and tend to explain the principal transactions. 38 An. 459, 949. 2. Testimony to impeach a State witness is no ground for a new trial. 34 An. 346; 35 An. 9. The statement of a witness to a collateral matter is conclusivo and can not be contradicted. Grreenleaf on Evidence, Vol. 1, p. 449. 3.

<p>PPEAL from the Tenth District Court, Parish of Natchitoches. Andrews, J.</p>

Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne. 1. To constitute the offence of forgery, it is sufficient if there be a bare possibility . of imposing on another with the forged instrument. Nor is it necessary that the forged order be intelligently written. 38 An. 797; 35 An. 1042; Wharton’s Criminal Law, Sec. 695; Bishop's Criminal Law, Vol. 2, Sec. 592. 2.

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

<p>It is sufficient for an indictment charging an attempt to bribe a witness in a criminal prosecution to be couched in the words of the statute denouncing- it.</p>

<p>Proper showing being made to this court that the accused has broken jail and become a fugitive from justice, since the order of appeal was granted, the appeal will be dismissed.</p>

<p>Whore a witness is asked to designate a period of rime between certain events, it is a fact sought by the questioner and not the opinion of the witness.</p> <p>Hypothetical questions propounded toa juror, such as his opinion on the race problem, his belief in the superiority of the white race, that negroes ought to be tried by white jurors, are irrelevant, and the answer of the witness can not affect his qualification as a juror. The test of his qualification in this particular is whether or not he has any prejudice against the defendant, and not whether he is prejudiced against his race on account of the belief he entertains of the superiority of his own race.</p> <p>The‘defendant can not complain because a list of jurors for another week is served on him with the list of jurors who are to pass on his case.</p> <p>There is no law in the State requiring that the accused shall be tried by jurors selected from among his own race.</p> <p>Where there is no defect on the face of the record a motion to arrest judgment will not be sustained. *</p> <p>It is not necessary for a juror’s competency that he should be a scholar. It is sufficient if he can understand the witnesses and the argument of counsel. The intelligence of the juror is a matter to be determined in the sound discretion of the trial judge.</p> <p>It is no ground for a new trial because a witness was intoxicated and in no condition to be placed upon the stand.</p> <p>When the statement of facts, prepared by request of ^defendant’s counsel, by the trial judge, shows that the newly discovered evidence is unimportant and could not affect the result, his ruling in refusing a new trial will be sustained</p>

<p>A PPEAL from the Ninth District Court, Hall, J. Parish of DeSoto.</p>

<p>PPEAL from the Twelfth District Court, Parish of Calcasieu. Fournet, J.</p>

<p>1. Where an appeal is taken from a judgment forfeiting a bond, after the final adjournment of the court which rendered the judgment, the appeal will be dismissed.</p> <p>2. Where the appellant suggests an improper return day and place for the appeal, the error is imputable to him and the appeal will be dismissed.</p>

<p>APPEAL from the Second District Court, Parish of Bienville. Watkins, J.</p>

<p>Tlie judge’s narrative of facts, incorporated in a bill of exceptions, to his ruling refusing a new trial, is received as correct.</p> <p>It is shown by the narrative that the alleged newly discovered evidence was known to the accused before the trial and he failed, though within liis power, to have it procured on the trial.</p> <p>In order to obtain a new trial the newly discovered evidence must have been dis covered since the trial and must be srcli as could not have been discovered by reasonable diligence.</p>

Biehardson, J. PPEAL from the Fifth District Court, Parish of Ouachita. X. The act of June 8, 1856, was in legal effect a deed in trust to the State of Louisiana for the purposes and on the conditions therein expressed, 2. The Legislature of the State, by act approved March 11,1857, accepted the trust on the terms and conditions imposed. 3. By the terms of the trust the State could dispose of the property only on con ditionsprecedent, 21 Wall. 59; 92XT. S. 57. 4.

King, J. 1. Every act whatever of man that causes damage to another obliges him by whose fault it happened^ repair it. R. C. C., Art. 2315. 2. Every person is responsible for the damago he occasions, not merely by his own act, but by his negligence, his .imprudence or his want of skill. R. O. C., Art. 2816. 8.

Batyer, J. 1. vSupreme Court having no jurisdiction in criminal cases to review questions of fact, the evidence, though reduced to writing and made part of the record, will not be examined for the purpose of determining whether it authorized a conviction, or the refusal of a new trial asked for on the ground that it did not. 30 An. 401; 82 An. 526; 38 An. 497. 2.

<p>At the time tlie petition was filed, thp relator was in the custody o£ the sheriff of Jefferson parish, awaiting- a hearing and preliminary examination before the judge of the district, who was absent.</p> <p>Alleging the absence of the district judge the accused applies to the Supreme Court for a writ of habeas corpus, that he may obtain either his release unconditionally, or under bond.</p> <p>The writ of habeas corims' is one of right, but not one of course.</p> <p>A party seeking to avail himself of it, is not at liberty to select for, himself absolutely the time or place for relief, or the tribunals through which it is to be obtained.</p> <p>The court will not entertain and grant the -writ where a hearing may be had before a competent lower court, unless there should be special circumstances in the ease making- immediate, direct action or intervention necessary or expedient.</p> <p>The application is not maintainable, either as a matter of pleading or as a matter of fact.</p> <p>As a matter of pleading the averment of absence is defective in not declaring- that there was good ground'for believing that it would be protracted a length of time as would work an unreasonable delay in the administration of justice and in obtaining, in a legal sense, speedy relief., 35 An. 609 ; 40 An. 5.</p> <p>As a matter of fact, in argument of the case it was announced, and it was not denied, that the district judge has returned, and is now in the district.</p> <p>In the exercise of the discretionary powers of the court to take or not to take action, it being evident that there has not as yet be/in any unreasonable delay in the matter of a prelimin ary trial, the writ is refused without prejud ice.</p>

<p>In an action upon a policy of life insurance, although the application is made part of the policy, and the truth of the answers therein made is expressly warranted, breach of such warranty is matter of special plea, and evidence of such breach is not admissible under the general issue, applying the rule frefluently recognized by this court that “ in relation to the contract of insurance, all matters which goto show the transaction to be void or voidable, on the ground of fraud or othenoise, must be specially pleaded.”</p>

1. A suit by the pastor ol a religions corporation., dissolved in 1853, to vindicate a right of property formerly owned by that corporation, can not be maintained forty years after said dissolution, in the name of the corporation. 2. Such a suit can only be brought in the name of the individual members then composing said corporation, or in the names of their legal representatives. 3.

Ellis, J. 1. Act 133 of 1888 is in derogation of common rights, and should be strictly construed. It should be applied to no case not embraced in the very wording of the statute. 42 An. 138. 2. Where the contract points out the method in which the company shall be put in default, that method is alone to be used, and so essential a stipulation of the contract can not be dispensed with. 3.

<p>1. A married man intending to purchase property with his separate funds, and to hold it for his individual account, must make that intention manifest at the time of purchase. The property would otherwise be held under an uncertain floating title, neither advisable nor permissible.</p> <p>2. A person who has come under an engagement to purchase has the right to insist upon the tender.to him of a good title prior to the institution of a suit against him for a specific performance.</p>

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

Rightor, J. A sale of property not fronting on tlio river, or the levee, but on Water street, does not convey title to the Mississippi river. When a deed mentions as the front boundary a certain street, or gives the depth from a fixed rear line, or the levee, the batture and right of accretion do not pass, but remain in the vendor. 85 An. 161,209 ; 26 An. 810. When an act is free from ambiguity parol evidence is not admissible to vary explain or contradict it. ál An. 18.

<p>The Board of Assessors were bound to give effect to the words of the statute.</p> <p>The earning capacity shall form a basis of estimating the values. Sec. 28 of Revenue Act of 1890.</p> <p>This requirement was observed, and a proper assessment was made.</p>

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

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

King7 J. It is not, under all circumstances, negligence as matter of law for a person to get upon or leap from a street car, while in motion; ordinarily, it is a proper case for a jury. Boone on Corporations, Sec. 266, and cases there cited. It is well settled that it is not negligence per se for a person to get on or off a street car drawn by horses,-while it is in motion. It depends upon the circumstances surrounding eac,h case.

<p>APPEAL from the Seventeenth District Oourt, Parish of East Baton Ronge. Buchner, J.</p> <p>cited: 38 Ohio 603; 32 An. 584; 32 An. 177; Amer. and Eng. Enc. Law, Yol. 6, pp. 311, 312; 20 Pick. 495; 10 Pick. 244; 65 Mo. 480; High Ex. Remedies, p. 60, 2d ed., Sec. 56; McCreary on Elections, 3d ed-, p. 251 Sec. 377; Wait’s Actions and Defences, Vol 4, p. 369.</p> <p>1. Each oí the three departments of government are distinct, co-ordinate and of equal dignity; and the executive department, of -which the Secretary of State is a part, is independent of the control of the judiciary. Constitution, Arts. 14, 15 and 58; State ex rel., etc., vs. Doherty, 25 An. 120.</p> <p>3. The Secretary of State has the discretion to determine what constitutes a valid return; or, at least, whether a return is in due form and made by the proper officer, and whether the same is entitled to full faith and credit. Act No. 58 of 1877, Sec. 39, amended by Act No. 101 of 1882, Sec. 6; State ex rel., etc., Water Works Co. vs. Deslonde, 27 An. 73; State ex rel. Blackman vs. Strong, 32 An. 177; State ex rel. Barbin vs. Strong, 32 An. 585.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.</p> <p>1. Under the Constitution of 1879, private property can not be taken or damaged for any public use until full compensation is made. Constitution 1879, Article 156; Griffin vs. R. R. Co., 41 An. 808; Cooley, Const. lam. 680, 681 (note); Chicago vs. Taylor; 125 U. S. 161,170; Railroad Co. vs. Ayers, 106 Oll. 518.</p> <p>2. When any individual or corporation is to be divested of property for any public use, against the will of the party to be divested, a strict compliance with the law providing for expropriation, and the conditions precedent to taking the property, must be strictly complied with, or title and rights are not divested, and the party claiming to have divested any one of property and right must affirmatively show full compliance. Cooley on Const. Lim., 528; Gillen vs. R. R. Co., 113111.1; Stanford vs. Warn, 27 Cal. 171; Nicholls vs. Bridgeport, 23 Conn. 189; Judson vs. Bridgeport, 25 Conn. 428; People vs. Brighton, 20 Mich. 57; Canal & Claiborne R. R. Co. vs. The Orleans R. R. Co., 44 An. 54.</p> <p>3. The grant of street railway franchise under which the plaintiff, the Canal & Claiborne Railroad Company, is now operating its road on Canal street, contains no condition or limitation of the grant, by which the city of New Orleans can grant other railway companies lawful right to run their cars on that company’s track on Canal street, without the consent of the Canal and Claiborne Railway Company first given and. obtained.</p> <p>1. A contract made by its express provisions to endure during the term of the charters of the contracting parties ends with the expiration of one of said charters.</p> <p>2. Where one company uses the line of another company, made a trunk line by municipal Older and its contract with the city, and this use is ordered by the city, and where, under a contract to pay wheelage, the company thus authorized used said trunk line, upon the termination of its contract it does not become a trespasser, but may continue the use of said trank line upon paying the compensation provided by the franchises of the original occupant. 41 An. 563.</p>

<p>APPEAL from the CíyíI District Court for the Parish of Orleans. King, J,</p> <p>A minor, whose parents had their last place of domicil in this State, retains his domicil here after their death, notwithstanding the removal of the minor to another State. 19 An. 499.</p> <p>Only the court of the domicil of the minor can appoint a tutor to the minor. 13 An. 265; B. C. O. 307; 19 An. 499</p> <p>A minor can not, of his own accord, change his domicil. Story on Conflict of Laws, Sec. 46; American and English Encyc. of Law, Yol. 5, p. 866, and authorities; B. C. C. 38, etseq.</p> <p>Courts of this State will not recognizethe appointment of a guardian, by thé courts of another State, to a minor who has his domicile in this State, but will treat such an appointment as a nullity. 19 An. 499; 13 An. 265.</p> <p>The appointment of a tutor to a minor, both of whose parents are dead, wili be made by the judge of probate of their last place of domicil, if they had one, or if they had no domicil, of that of the minor’s nearest relations. C. P. 944 and 945; 19 An. 499; 13 An. 265.</p> <p>1. Under Art. 130 of the Constitution of 1879 the division seized of jurisdiction by allotment has sole and exclusive jurisdiction to the final ending of the case.</p> <p>2. When a succession involving a'tutorship is allotted to a division, no other division has any right or jurisdiction to appoint a dative tutor. 19 An. 499.</p>

y^PPLICATION for Mandamus. A writ issued by the late Twenty-second Judicial District Court for the seizure and sale of property in the parish of St. James, the execution of the writ having been suspended for years by an injunction dissolved by the final judgment of this court in February, 1892, is, under the mandate of this court dissolving the injunction,tobe executed by the Twentieth Judicial District Court the jurisdiction of which, under the changes of the judicial…

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

<p>1. Prohibition is an order rendered to forbid further proceedings in a cause on the ground of a want of jurisdiction. When the proceedings in a particular-case have terminated, it would be quite futile to issue that writ.</p> <p>2. The jurisdiction of a committing magistrate is not affected by the fact that in affidavits taken before him, wherein facts are charged to have been committed which constitute a crime, an error has been made in the statement as to the ■ particular statute violated, the statement can be stricken out as surplusage, and the error disregarded.</p> <p>3. The Supreme Court will not consider an application for a writ of prohibition unless it be shown that relief on the ground of a [want of jurisdiction was unsuccessfully sought below.</p> <p>PPLIOATION for Prohibition.</p>

<p>1. Recorders in New Orleans are vested with power and jurisdiction to try and sentence violators of legal and valid city ordinances.</p> <p>2. The defence that a city ordinance is illegal and unconstitutional does not impugn the power and jurisdiction of the recorder to hear and determine that and all other issues involved in the case. Art. 81 of the Constitution clearly recognizes the authority of the proper inferior tribunal to hear and determine cases in which “the constitutionality or legality of any fine, forfeiture or penalty by a municipal corporation shall be in contestation,” and to decide all questions of “ the law and the fact” arising therein, and provides an appropriate and sufficient remedy for errors in such decision by an appeal to this court.</p> <p>8. In such cases the overruling of pleas arraigning the constitutionality and legality of the [ordinance proceeded under affords no ground for invoking our supervisory jurisdiction through the writ of prohibition. The proceeding must complete its course, and errors committed in that or any other respect must be corrected by the constitutional remedy of appeal.</p>

<p>1. Parties, by mutual consent, can abrogate or modify legal agreements having the effect of law.</p> <p>2. Realty donated originally, to which other values are substituted in good faith, and with the consent of all concerned, is not subject to an eventual right of reduction at the instance of the forced heirs.</p> <p>8. Elementary principles depend in their applications upon a similitude of facts.</p> <p>4. The circumstances of a'particular case should never be applied to eases not strictly parallel.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J. An agreement.in advance that a building shall bebuilt by the lowest bidder under sealed proposals is a valid agreement, rt is a contract with a suspensive condition and becomes perfect and complete with the lowest bidder when the lowest bid is received.

<p>1. Refusal of the judge to postpone a trial on the ground of absence of witnesses will not be disturbed in this court unless a motion for continuance has been made in writing and accompanied by proper affidavit, showing diligence, materiality and ability to produce witness if continuance is granted.</p> <p>2. When the verdict returned by the jury is defective and invalid, the court is authorized to instruct them again as to the form in which their verdict should be made, and to remand them for further deliberation.</p>

<p>The trade oí barber is a “mechanical pursuit” exempted from license taxation by Art. 206 of the Constitution.</p>

Whitaker, J. 1. Ordinance 6600, O. S., is constitutional. 2. Municipal corporations have the power to regulate markets and to pass such ordinances as are necessary for the preservation of public health and conduce to the public interest. State vs. Garibaldi, 44 An. —. 3. Stare decisis. 1.

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

<p>APPEAL from the Twenty-first District Oourt, Parish of St. Charles. Rost, J.</p>

* Moise, J. 1. The requirements of Act No. 138 (E. S.) of 1877, that the judge shall enter an order upon the minutes directing the criminal sheriff, whenever in the opinion of the judge, in a case fixed for trial, talesmen will be required to draw such number of jurors as in the opinion of the court may be necessary to complete the jury, is fully satisfied when the order is entered on the minutes, under the direction of the presiding judge, by the minute clerk, and the…

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