Volume 45 — Louisiana Annual Reports

1. Evidence can not be heard which is offered for the purpose of contradicting the testimony which it is anticipated will be given by a witness who has not yet been sworn. 36 An. 83; 42 An. 186. 2. Where the witness whom it is sought to impeach has not testified, no foundation could be laid to justify such attempted contradiction and the evidence of the impeaching witnesses should be excluded. 2 Tayl. Ev., p. 1235, Sec. 1445; Whart. Or. Ev., Sec. 488; 1 Greenl.

Caillouet, J. 1. This court will not interfere when there is nothing in the record showing that the judge of the District Court acted contrary to the law in fixing terms of court. 2. Evidence of what happened at the arrest and killing of A is not admissible on the trial of B when no connection is shown by defence between these two-events. 3.

<p>Refusal of continuance on ground of absent witness will not be interfered with when the judge’s statement on the bill shows want of due diligence.</p>

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

Moulin, J. 1. In a criminal prosecution on appeal the accused furnishes no bond of appeal; but, pending the appeal, remains a prisoner in the custody of the court a qua, or in the custody of his surety on a bail bond. Con., Art. 9; State vs. Gutierrez, 15 An. 190. •2. The Code of Practico does not apply to criminal proceedings on appeal. Besides, motion to dismiss comes too late after case fixed for trial on merits. 3.

<p>1. The provisions of Act 139 of 1890, require that an accused, when on final trial, shall not be allowed more than six witnesses for his defence to be summoned, unless he or his counsel shall mate oath that same is necessary; and, the record disclosing that six witnesses had been already summoned, he is disentitled to delay to summon additional witnesses, without such prerequisite condition has been observed.</p> <p>2. A continuance may be properly refused, if application is based upon the necessity for the presence of me ft witnesses, on the state of facts herein recited. 3. It is not good ground for admitting hearsay testimony, as part of the affirmative evidence for the prosecution, that it is in supposed corroboration of the statement of another witness, which might be the subject of attach: or impeachment.</p>

<p>The ordinances of the city of New Orleans, where no power is conferred for that purpose, can not enlarge the statutes of the State.</p> <p>A city ordinance inconsistent with and in conflict with the general policy of the State is illegal, null and void.</p> <p>That part of See. 1, Ordinance No. 504G, which authorizes the imposition of a fine upon the husband or wife for neglecting to aid and support the family, the party not being charged with habitual drunkenness, is illegal, null and void.</p>

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

<p>APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost, J.</p> <p>1. The judge is not bound to give a charge although correct when in his belief there is no fact proved to which it is pertinent. A charge not objected to when it is given and properly presented by bills of exception wili not be considered on appeal, nor will the verdict of the jury be disturbed even in capital cases, when no opportunity is given the judge to explain or correct his charge. 38 An. 497 ; 37 An. 543, 773 ; 34 An. 106,1513.</p> <p>2. Motions for new trials as to questions of fact can not be reviewed by the Supreme Court. 38 An. 871; 30 An. 1323.</p> <p>3. It is not the duty of the judge to appoint counsel forjthe accused unless request is made by him. 38 An. 19; 36 An. 91.</p> <p>Motion in Ajrkest.</p> <p>. In an information for shooting with intent to murder, it is not necessary to charge both the act and intent as malicious. It is sufficient to charge malice in the intent. 33 An. 921; 36 An. 336; 38 An. 451.</p> <p>cited: 30 An. 1173; 28 An. 434; 35 An. 53; 40 An. 729; 41 An. 410; 33 An. 310; 36 An. 87, 159; 30 An. 536; 34 An. 100.</p>

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

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

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

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

<p>APPEAL from, the Sixth District Court, Parish of Richmond. Ellis, J.</p>

Richardson, Judge ad hoc. 1. The Code of Practice provides for the attachment of property when the debtor has or is about to commit some of the fraudulent acts laid in the statute. C. P. 241, 242, 246, et seq. The attachment does not divest the debtor of his property or the right to mortgage or dispose of it subject to the attachment and the privilege arising , therefrom. Drake on Attachments, See'.222, Sixth Edition; see also authorities, Sec. 2 of Syllabus. 2.

Monroe, J. 1. All transfers of shares of stock of the Citizens Bank of Louisiana must be registered on the bank’s books. Charter filed and made part of record, p. 122, Rule XI and See. 18, p. 17. 2. Complete and perfect transfer must be recorded on the corporate books. Cook on Stocks and Stockholders, Sec. 375. 3.

1. The pledgee of a note secured by mortgage has a right to take measures, that is, to sue for payment in his own name, to satisfy the debt to secure which the pledge was made, subject to the obligation of accounting to his debtor. R. C. C. 3170 (3137); 33 An. 626; 30 An. 714; 28 An. 419; 21 An. 3; Insurance Company vs. Lozano, 39 An. 321. 2.

<p>APPLICATION for Certiorari and Prohibition.</p>

Martin. Mouton, J. An executor’s account that has had due public advertisement of its filing and has been duly homologated, by final judgment, for more than ten years, is binding upon an heir not legally notified of such filing when that heir is a legatee. C C. Such judgment is res adjvdicaia as to him. 29 An. 378; Sue. Bougere, 10 R. 118; Sue. Feytavm, 6 L. 223; C. C. 1064 (1067); 16 An. 678; 18 An. 263.

A APPEAL from the Oivil District Court for the Parish of Orleans. King, J. 1. A contract of sale of real estate situated in the State of Mississippi is regulated in point of form, substance and validity by laws of that State. Succession of Larendon, 29 An. 952. 2. The description of the land is amply sufficient under the laws of Mississippi Bingaman vs. Hyatt, 1 Smedes and Marshall’s Ohan. R. 437. 3.

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

Monroe, J. (а) Any disorder of the husband’s affairs, which may endanger the wife’s actual or eventual estate, warrants, always and under all circumstances possible, a judgment of separation of property. II. C. O 2425; 6 R. 3ii; 10 An.273; 5 Marcade, 569. (б) The husband’s schedule and cession of property are competent and sufficient proof of this disorder. 16 An. 369.

<p>A party, who leases property upon which there is a registered mortgage, does so with full knowledge of the mortgage. Its registry is notice to him. When the lessee gives his notes in advance for the rent, and the proceedings are instituted for the foreclosure of the mortgage, he can, to prevent them from falling into the hands of a bona fide holder, arrest their negotiation in the hands of the lessor and demand security against payment of the rent note.</p> <p>The lease is dissolved by the sale of the property, not by the suit to foreclose. Therefore, the lessee owes rent to the lessor until the seizure of the same by the sheriff, and if not seized until the sale of the property by judicial process.</p> <p>If before the seizure, or the sale of the property, the lessee refuses to pay the rent, the lessor has the right to provisonally seize the property subject to the lessor’s privilege.</p> <p>A case like the instant one will be remanded to await the result of the suit to foreclose the mortgage, or the expiration of the lease.</p>

Rightor, J. 1. It is the prayer of the petition that fixes the character of the action. If plaintiff does not ask to have his title recognized, but only that defendant should surrender possession, the action is the possessory one. 41 An. 704 ; 3S An. 8.16; 37 An. 240. 2.' One who his never been in possession is not entitled to the possessory action. 24 An. 176; C. P. 46, et seq.; O. C. 35.36. 3.

<p>A partner sold his interest in a partnership of which he was a member, to a new firm.</p> <p>Prior to the sale the said partnership had consented to a payment of a claim against it, to the amount entered on the books.</p> <p>The new firm, purchasers and successors of the old firm, assumed, in the act of transfer to them, the liabilities of their vendor, the old firm.</p> <p>The new firm is bound for the payment of the claim assumed.</p>

Taylor, J. Tutor’s account, of his administration of minors’ affairs for fifteen years, filed all at one time, must ho construed as a whole — not year by year, as contended for hy opponents, though for convenience made out by the year. A knowledge of a tutor’s entire administration is necessary to a correct decision on his account.

<p>APPEAL from the Twenty-second District Court, Parish of Plaque-mines. Livaudais, J.</p>

<p>“When the record clearly exhibits a “ matter in dispute ” exceeding $2000, a motion .to dismiss on the ground that the “fund to be distributed” has been reduced ibelow that sum will be denied.</p> <p>A fee of $5000 in a succession whose effects amount to $62,000 is not excessive, when important and valuable services have been rendered by the attorney in litigation and in the general management of the succession, which devolved exclusively upon him in consequence of the continued illness of the executor.</p> <p>ÍTh« junior mortgage, the “ least ancient,” whether there are one or several immovables mortgaged, is subject to contribute to the payment of privilege debts in case of deficiency in proceeds of sale of movable property.</p> <p>In determining the fees of attorneys for services rendered in settling a succession, we must consider the amounts involved as shown by the inventories, and also the care and responsibility placed on the shoulders of these attorneys and the professional slrill and attention shown by them in avoiding litigation.</p> <p>Where fees charged by attorneys in a succession are allowed by a judge below, not withstanding opposition filed thereto, this court will presume that the lower judge can best determine the value of those services and will not reduce the .amounts. Succession Brady, 43 An. 166.</p> <p>Where the proceeds of property subjected to several successive mortgages are insufficient to pay all the debts and the charges, the loss which may result must be borne by the creditor whose mortgage is the least ancient. R. O. C., Arts. 8269, 8270; cases cited.</p> <p>An opponent will not be permitted to join inconsequential objections with a demand for reduction of attorney’s fees in this court.</p>

<p>The execution of competent orders and decrees of courts is not to be preven ted by the death of the oflicer appointed to execute them. When an auctioneer who has been appointed to make a judicial sale has made the adjudication and executed liis proces verbal of sale.and has died before passing the act of sale, the court may appoint a new auctioneer to complete the execution of its decree. Such power is conferred by Art. 130 O. 1\ and Art. 21 O. C., independently of any special statute.</p>

<p>1. Notwithstanding a district attorney declines to prosecute an appeal from an adverse judgment, in an intrusion-into-office suit, the Attorney General may, without being justly chargeable with the performance of an act ultra vires.</p> <p>The former didnot thereby cease to be relator, nor the latter become a party to the suit.</p> <p>The objection urged does not appertain to the status of the appeal, but to the status of the cause.</p> <p>Under the law the Attorney General has undoubted authority to appear before this court, sitting in New Orleans, and prosecute and defend all appeals in cases, criminal or civil, in which the State may be a party, or interested; and this authority necessarily draws to it authority to apply for and obtain an order of appeal.</p> <p>2! An averment made in a suit brought against a sheriff for his removal from office, under the provisions of Arts. 196 and 200 of the Constitution, to the effect that he was duly elected, commissioned and qualified as sheriff, though subsequently filed, can not operate, or be given effect as an estoppel against the further prosecution of a pending suit previously filed against same respondent for his removal from office, on the score of constitutional ineligibility to hold office.</p> <p>In such second suit, such averment is not a germinal or controlling one, but merely descriptive of the respondent’s capacity, preparatory to the further allegation that he had, during his incumbency of the office, been guilty of repeated acts of malfeasance and nonfeasance in office, on account of which he should be removed from office.</p> <p>3. Under the intrusion-into-office statutes the police jury of a country parish being a party interested in the question may be joined as relator; and they clearly contemplate such party as may have complaint to urge of the respond ent’s ineligibility, and do not exclusively to rival claimants to office.</p> <p>But inasmuch as the district attorney was fully capacitated to institute and prosecute such suit independent of any other party being joined as relator, that was a sufficient reason for the disallowance of respondent’s exception on that score.</p> <p>4. The admissibility vel non of testimony at the tidal does not exclusively depend upon the then existing attitude the case is in, in point of fact, but, in part, upon the pleadings; for, notwithstanding plaintiff has not offered affirmative proof of some of his allegations on the opening of his case, the respondent may be constrained to put in evidence, lest advantage be taken of its absence. It is, at all events, better practice to rule evidence in than out of a case.</p> <p>:5. In case the proof discloses proper and sufficient settlements to have beenmade during preceding years between a tax collector and a police jury, a subsequent settlement between the same tax collector and a succeeding police jury can not be made to depend on such collector undertaking to reopen such preceding settlements and re-establish their correctness, contradictorily with such police jury, under compulsion of the latter. Such settlements must stand until they are annulled and sot aside in due course of law.</p> <p>In such suit as this no advantage can be taken of the respondent for declining to tender and make settlement on such terms.</p> <p>>6. In the constitutional disqualification to hold office is the idea not only of debt, but of default with dishonor — not only that the collector owes, but that he owes money collected and in his hands — not only that he is debtor, but defaulter. The denunciation of the organic law is that no person who has been a collector of taxes shall be eligible to any office of honor, trust or profit, until he shall have obtained a discharge for all moneys he has collected, or which have been entrusted to him.</p> <p>The penalty of ineligibility can attach only in the particular event pointed out, the failure of a tax collector to obtain a discharge for moneys actually eollected. It can not attach to a failure of a tax collector to make collection of taxes remaining uncollected.</p> <p>The evident object and dominant idea of the framers of the Constitution was to exclude from office defaulting tax collectors and other public functionaries; they had no purpose or intention of making the eligibility of the citizen to hold office depend upon mere pecuniary liability to the State.</p> <p>'7. The statutes governing the duties and defining the responsibilities of tax collectors must be examined and construed in order to ascertain what is the true definition and purport of the constitutional phrase obtain a discharge for the amount of such collections.” And, as an aid to the determination of the question, adjudicated cases on questions inpari materia may be examined and considered also.</p> <p>8. Having thus examined and compared the revenue laws applicable, as well as pertinent decisions interpreting similar provisions of a prior Constitution, it > appears that a parish treasurer’s receipt for moneys collected and paid over by a tax collector furnishes the primary and best evidence of a discharge for such collections as he has made. •</p>

<p>'The Oit ¡sens Bank, which has accepted a proposal to compromise a mortgage debt under Act 79 of 1880, has a right to disregard the proposal and acceptance when the debtor abandons the proposition made and to sue out executory process on the original debt. The abandonment will be presumed when the debtor delays for an unreasonable length of time to pay the amount agreed upon; neglects to redeem the property which had been sold for taxes; collects rents to a large amount and fails to appropriate them to the payment of the amount agreed upon; when the only effort made to secure and pay the amount is an effort to negotiate a loan on the identical property mortgaged to the bank. In such a case the proposal to compromise was speculative and not made with the bonafide intention of relieving the property of the bank mortgaged, as contemplated by Act 79 of 1880. ,</p> <p>A universal legatee, where there are no heirs entitled to a portion of the property reserved to them by law, is by the death of the testator seized of right of the succession property, and a notice of demand of payment under executory process can be made on his duly authorized agent in possession of the property, appointed after the death of the testator, although the succession has not been formally opened and an executor appointed.</p> <p>Mortgaged property sold for taxes must be redeemed by the mortgagor before he can bring an action to annul the sale made under executory process.</p>

King, J. 1. Where the will directs the executors to sell all the property, that direction must be carried out. Revised Civil Code, 1669, 1683. 2. A judgment of possession rendered in a succession is entitled;to full effect until set aside. 33 An. 827. 3. Possession under a title for ten years, even though the title be not good, cures all defects by prescription. 38 An. 889. 4. He who alleges interruption of prescription must prove it. 20 An. 565; 21 An. 293; 26 An. 215. 5.

<p>A PPEAL from the Civil District Court for the Parish of Orleans. .(1 King, J.</p>

Voorhies, J. 1. The active mass of a partition account must include all the assets of the common estate, from whatever source derived. E. C. 0.1349,1350,1355 to 1358 and 1398. 2. Ordinary creditors of a sharer, their debtor’s privies, have no greater right than he in the partition of the common estate, 4 Toullier, No. 411; 1 Larombiere, p. 676 ; 4 Marcade, p. 398, and 5 Mareade, p. 181. 3.

1. The violation of a municipal police ordinance is not a crime; hence a proceeding to impose the penalty assigned is not criminal, 4 An. 337; 2 La. 427; 43 An. 836; 41 An. 1112; 42 An. 272 ; 35 An. 1193. 2. The Constitution of 1879 did not abrogate pre-existing legislation not in conflict with said Constitution. 3.

<p>The terms o£ the document presented for probate establish that the party intended to make a donation of the property not inter vivos, but mortis causa.</p> <p>The will, olographic in form, was proven by two witnesses, who had seen the testator write and sign his name.</p> <p>The other testimony supplements that of these two witnesses.</p> <p>The declarations of the testator are admissible to prove that the document is in his handwriting, but not to prove his intentions.</p>

<p>Under Act 96 of 1888, where a party has been cited to deliver up leased premises and he appears and pleads a general denial, and judgment is rendered against him, it is too»late to urge matters for the writ of prohibition that ought to hare been pleaded in the court below.</p>

<p>If he who proposes should, before consent is given by the promisee, change his intention, the concurrence of the two wills is wanting and there is no contract.</p> <p>A mere proposal to sell may be revoked at any time before acceptance.</p> <p>A condltiou dependent upon the will of the party to whom an offer to sell immovable property is made should be reduced to writing to secure its binding effect.</p>

<p>APPEAL from the First City Court. J.</p>

Watkins, J. PPEAL from the Second District Court, Parish of Bossier. 1. Act 89 of 1892 was not enacted as a statute of the State, because the House Bill was amended by the Senate, and one of the amendments was not concurred in by the House by a yea and nay vote spread on the journal, as required by Article 38 of the Constitution of 1879.

<p>1. Where an order of court directing a forced surrender and under which the district judge has appointed a provisional syndic has been revoked by consent of the parties at whose instance it was rendered, the provisional syndic has no legal interest or standing in court to contest the action of the judge in revoking the order.</p> <p>2. The order appointing him provisional syndic was not a judgment. It was a mere ancillary conservatory order which shared the fate and fell with that to which it was incidental.</p> <p>B. A definitive syndic is in a sense the agent of the creditors, but a provisional syndic is at best an officer of the court. He has no vested right to his position entitling him to hold it until divested from the same by direct action.</p>

<p>The proceedings in the lower court being regular, legal and within the jurisdiction of the judge thereof, the writs applied for are refused.</p>

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

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

<p>y^PPLIOÁTION for Mandamus.</p>

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

James. Guión, J. On Motion to Dismiss. 1. The decision of the district judge decreeing the sufficiency of the sureties on the bonds of relator as sheriff and tax collector is final so far as the defendant is concerned, and no appeal lies therefrom. R. S., Sec. 352. Defendant is without interest. 2. Section 352, Revised Statutes of Louisiana, has not been repealed by any subsequent legislation, either expressly or by implication.

A PPEAL from fche Civil District Court for the Parish of Orleans. H Monroe, J, A clause in a will which says: “I desire, shou'd any money or aught of value accrue to my estate from any claim exhibited in the papers which I leave or otherwise, that the same be paid severally and proportionally to the persons named and stated in this paper, to whom I leave cash in gold,” is a universal legacy. C. 0.1606; Marc. Vol. IV, O. N., 1003; Toullier,Vol. V, 505; Duranfcon, Vol.

<p>The motion to quash has not the slightest merit, and the motion in arrest is overruled for the reasons given in State vs. Bennett, No. 11,151.</p>

King, J. 1.A general denial is not permissible in a return to an alternative writ of mandamus. Merrill on Mandamus, Sec. 274; 68 Tex. 488. The defendant must “ state the reason to justify his conduct ” in his answer.

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

Duffel, J. ■ The only case of divorce in which constructive service of citation is permitted in this State is that wherein the absentee spouse has committed an iufamous crime and fled from justice. 2 An. 563; 3 An. 101; 5 An. 674; 6 An. 648, 218; 9 An. 239; 29 An. 817; 30 An. 878 ; 37 An. 669; 38 An. 764 ; 35 An. 1184; 41 An. 657; 42 An. 357, 363; 95 U. S. 733; 98 U. S. 714; 99 U. S. 362; C. P., Arts. 3, 26 to 29; 9 An. 35; 40 An. 29.

Guión, J. 1. By virtue of the pact de non alienando in the sheriff’s deed and Lanaux’s conventional assumption, in the act of sale to him from the adjudicatee at thesheriff’s sale, of the debt of $2487.50 mentioned in said sheriff’s deed as being due to Dodds, then a minor, the latter, after emancipation, was entitled to an order of seizure and sale against Lanaux. 33 An. 759; 19 An. 125; 1 Rob. 135; 8 An. 267;• 15 La. 184; 16 La. 223; 1 La. 39; 44 An. 206, and cases cited.…

<p>In case an appeal lias been taken for tbepurpose of delay, no relief can be granted.</p>

<p>This court has repeatedly held that it will not interfere in the matter of continuances with the discretion vested in the trial judge unless his rulings are manifestly unjust and arbitrary.</p> <p>The same rule is applicable to his rulings on applications for attachment against witnesses.</p> <p>Where twenty-four witnesses have been summoned to prove an alibi and two do not attend, and the judge refuses to grant a continuance because of their absence, the evidence being cumulative oniy, his rulings were the exercise of a sound legal discretion in the interest of public justice in a manner that could in no way injuriously affect the defendants.</p>

<p>APPEAL from the Civil District Oourt, Parish of Orleans. Ellis, J.</p> <p>Hughes vs. United States, 4 Wall. 232; 14 Peters R. 156; Greanleaí Ev., Sees. 329, 530; City Bank vs. Walden, 1 An. 46 ¡Louisiana State Bank vs. Orleans Manufacturing Co., 3 An. 294; Opinion of District Judge, p. 22; Pratt vs. Peters, 49 N. W. R., p. 766; Millbank vs. Jones, 28 N. E. R., p. 31; Winn vs. Gilmer, 16 S. W. It., p, 1058 ; 6 La. Ill; 17 La. S2, 259, 371; 49 La. 542; Gas Co. vs. Hudson, 5 Rob. 486; Bludwortli vs. Hunter, 9 Rob. 263; 9 La. An. 119.</p> <p>The regular practice is to object to the evidence. 21 An. 271; 20 An. 193.</p> <p>1. A judgment maintaining an exception of no cause of action may serve as a basis for the plea of res acljudicata. 35 An. 553.</p> <p>2. The hypothecary action docs not lie except against a possessor under title. 26 An. 608.</p> <p>3. A creditor holding a mortgage with tne pact do.non alienando is not bound by any sale of the property to -which he is not a party. 33 An. 758; 113 U. S. 293.</p> <p>4. Proceedings in bankruptcy do not affect seizures of property pending at the ■ time the proceedings were filed. 14 Wall. 419; 16 Wall. 501; 20 Wall. 414; 21 Wall 642; 91U. S. 521; 3 Woods, 569.</p> <p>5. Where notice of demand was signed by the sheriff instead of the clerk, the irregularity does not affect the sale. 29 An. 262-206; 9 Robinson, 423; 80 An. 86; 33 An. 126.</p> <p>8. Proceedings pending in the courts of the parish of Orleans were not affected by the adoption of the Constitution of 1879. See Art. 257.</p>

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

<p>An information presented, which the court orders to be filed, is not of itself ground for writs of habeas corpus and certiorari, for she can only have the benefit of autre fois acquit by special plea entered in the court in which the information is pending,</p> <p>After the court will have ruled, the defendant will not be without remedy, if error be committed.</p> <p>The accused can not interpose the plea of autre fois acquit in an application for writs of habeas corpus and certiorcm'L</p> <p>The rule nisi is discharged and the application is denied.</p>

<p>Where the notary before whom a marriage contract is alleged to have been executed, and which contract is averred to have been destroyed by fire, deposes that he remembers perfectly the act and its execution — that it declared that the parties thereto were about to be married, and that in view of the con templated marriage had agreed there should be no community between them; that the act was passed by him, duly signed by the parties and duly witnessed and recorded, proof of the fact that the parties were not married when the act was passed rests upon the recitals of the act of which the notary testifies he has a distinct recollection. These recitals bind both the parties and their heirs to tlieir verity. The force of this testimony is not weakened because at another point in his testimony he stated that he knew the parties were not then, married, because they came together to his office before the act was passed and told him they were about to be married, and the character of the act they desired passed. This fact, together with others specified, were simply explanatory of the vivid recollection of the witness of this particular act.</p> <p>If a marriage contract be proved to have been executed before the celebration of the marriage, the precise day of its execution is immaterial. Time is of the essence of the contract only with reference to its being prior to the marriage.</p> <p>In a contest between the heirs of a wife and those of a husband, where the plaintiffs and defendants are all children of the same mother, though by different husbands, the issue being whether or not the second marriage was contracted under a marriage contract, the declarations of the wife during the second marriage that such was the fact are admissible in corroboration of the testimony of the notary before whom the contract is alleged to have been passed, to tlie effect that such a contract was executed before him. A proper foundation for the introduction of secondary evidence, as in case of a destroyed instrument, having been laid, the testimony of the notary and the declarations of the wife were both admissible.</p> <p>4. The husband of one of the heirs of a succession can testify for or against a co-heir touching the latter’s interest in. the succession. Boisse vs. Diehson, 31 An. 741.</p> <p>5. Although the judge may have charged improperly, yet, if the evidence would not have authorized a different verdict, it will be upheld. 7 An. 678; 10 An. 150.</p> <p>6. As an act bad for one purpose may be good for another, the judgment rendered in a case may be pronounced an absolute nullity for want of jurisdiction, and yet the record therein may be legally admissible in another suit. The pleadings may contain admissions, or the rights of parties may otherwise be legally affected.</p> <p>7. A court can not assume, for the purpose of excluding from being admitted in evidence, the record of a suit in which a wife appears as a plaintiff, acting in her own interest and adversely to her husband, that the suit is really one in the interest of her husband; that the allegations of the petition are admissions in favor of her husband and really his own allegations. Charges to that effect can not be brought to bear by way of objection to evidence. The court was not called on to stop the trial of the ease and try separately issues raised by such objections.</p>

. J. Suffrage is not a natural, but a political right, and the registration — according to law — is in this State a mandatory prerequisite to its exercise; and in a contest, where defendant impeaches by his pleadings and evidence the election returns, and the evidence fails to' show with legal certainty his election, he must be ousted from the office — whether the plaintiff succeeds in proving his own right to the office or not, and in such case the burden of proof is on…

<p>APPEAL from the Oivil District Court for the Parish of Orleans. King, J.</p> <p>1. Where an acknowledgment without a date appears, the burthen is upon the party pleading prescription, to establish the date. 31 An. 89; lo An. 332; 12 An. 151; 10 An. 673; 10 R. 53; 30 An. 207.</p> <p>2. In default of such proof of date, the acknowledgment will be held good to interrupt. Same authorities.</p> <p>3. The stamping, by the State of Louisiana, on certificates in favor of claims against the School Board of New Orleans, of payment of the State’s pro rata, interrupts prescription.</p> <p>4. Where an annual tax is levied to pay certain claims, and the creditor can be paid only out of the proceeds of such tax; until it is made to appear that there was a fund to pay the claim, prescription can not run. King Bridge Company vs. Otoe Company, 124 U. S. 459.</p>

<p>A building contraetoi is not exempted from license under Article 206 of the Constitution, because, in connection with Ills business as contractor, he does some mechanical labor. Affirming City vs. X^ohlman and City vs. McNally, is An.</p>

<p>1. The prei’eguisites prescribed by law in attachment proceedings must be strictly construed and rigidly enforced.</p> <p>2. It is well settled that an attachment bond for less than the amount prescribed by law is fatal to the attachment, and a fortiori must be a bond for no amount whatever.</p> <p>3. The principle that judicial bonds are to be construed by the law under which they are given, rejecting surplusage and supplying omissions, does not apply to such a case where the question is not as to the eventual liability of parties to such bonds after they have accomplished tlieir purpose, but whether the conditions precedent prescribed by law and essential to the maintenance of the attachment have been strictly complied with. Such compliance cannot be eked out by presumptions and implications, or by collateral evidence.</p> <p>4. Legal service of citation and order of attachment on defendant is a necessary condition precedent to the seizure, without which the attachment can not stand.</p> <p>5. The return of a domiciliary service which does not state the name of the person on whom made, nor whether he knew or how he ascertained the name, nor that he was living at the domicil, is fatally defective.</p> <p>6. So a domiciliary service made at a store of defendant, without stating that the store was kept at his domicil, can not stand.</p> <p>7. When the husband has been sued and cited jointly with the wife, and has appeared with her in any manner in the case, his authorization of her defence is implied. ^</p>

Monroe, J. When a promissory note has been delivered in pledge to a third innocent party for value, and before maturity, and without notice, the pledgee is entitled to retain the pledge notes until payment and to proceed by suit and foreclosure of the mortgage securing them to enforce payment.

<p>A citizen of the State of Louisiana, having made a voluntary cession of his property, including real estate in Mississippi, and obtained the judge’s order of acceptance for the benefit of his creditors; and, subsequently thereto, one of the creditors enumerated on his schedule, and domiciled in Louisiana, having instituted an attachment suit in a Mississippi couit and caused the insolvent’s Mississippi property to be seized and advertised for sale under a judgment therein procured; and said creditor having thereafter transferred and assigned his judgment to citizens of the State of Mississippi, with full subrogation; Held, that a court of the State of Louisiana has jurisdiction and authority over its citizens inpersonam to compel them to do justice; and the court of first instance to prevent the aforesaid creditor from defeating the operation and effect of the said assignment and thereby obtaining a preference over domestic creditors, notwithstanding his proceedings were directed against real property situated in Mississippi. Such creditor is within the territorial limits of the jurisdiction of the court and amenable to its process,</p> <p>2. Equity acts in personam primarily, and when a person against whom relief is sought is within its jurisdiction, the court may make a decree upon the ground of an act, or contract, or an equity subsisting between the parties, respecting property situated beyond its jurisdiction, or to prevent anything being done abroad, whether the thing forbidden be a conveyance, or other act, in pais, or the institution or prosecution of an action in a foreign tribunal. And, as a necessary corollary of that power, such court may order the person violating the principles of equity to restore the proceeds and avails of the reprobated transaction as justice may require, and in accordance with the principles of the lex loci rei sitos.</p> <p>It is the accepted jurisprudence of the States of the Union that, in case of voluntary assignment, a surrender, if valid where made, is valid everywhere, unless repugnant to the policy of the lex loci rei sitas, and in detriment to rights of domestic creditors within that jurisdiction; because such cession or assignment is the exercise of a personal right of the owner to dispose of his property as he chooses.</p>

<p>APPEAL from the Eighteenth District Court, Parish of Lafourche. Cailluuet, J.</p> <p>1. A married woman revendicating her paraphernal property wrongfully sold can resort to every species of evidence; the doctrine of estoppel does hot apply to her. 33 An. 1099; 34 An. 632.</p> <p>2. In contracts injurious to the wife’s property interests, the marital influence is presumed. 2 An. 756; 12 An. 852; 14 An. 169.</p> <p>3. This presumption, when supported by the wife’s own evidence, is conclusive where there is nothing to rebut it. 23 An. 240.</p> <p>4. An absolute nullity can not be the basis of title, and when patent on the public records, can not avail to give a possessor the character of a possessor in good faith. 2Í An. 253; 41 An. 494.</p>

Brame, J. 1. Vague and uncertain allegations of damages, without specification or detail, do not authorize proof. 42 An. 890; 37 An. 492. 2. If one demand less than is due him, and do not amend his petition in order to augment his demand, he shall lose the overplus. C. P. 156; 14 La. 140; 25 An 223. 3. Stipulations in a contract of lease must be construed with reference to the laws which govern the main contract and. the subject matter. 36 An. 893; 84 IT. S. 58, 68. 4.

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

<p>The condition of the contract was that the contractor would be paid from a special fund, if voted on favorably by the voters at a special election.</p> <p>The contractor can not recover judgment against the defendant parish and ignore the means agreed upon to secure his payment.</p> <p>The special election was ordered and held in contravention of a prohibitory law, and was null and void.</p> <p>A municipal corporation can not be estopped from pleading and showing that certain acts were not within the scope of its authority.</p> <p>The doctrine of estoppel in its application to municipal corporations is subject to restrictions and qualifications.</p> <p>The question being one of original power to hold a special election, and not one relating to the compilation of the votes and declaring the result, is not one exclusively within the discretion of the police jury. It is subject to judicial inquiry and decision.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. King¡ J.</p> <p>J.. The vendor of iand is estopped by his warranty of peaceable possession from doing any act in disturbance of the vendee’s possession, and hence can not plead against his vendee the prescription of thirty years acquirendi causa. R. C. C., Arts. 2479, 247G, 2504; Sedgwick & Waite on Trial of Title to Land, 543; 13 An. 13; 34 An. 648 ; 43 An. 849 ; 9 R. 3.</p> <p>2. The vendor’s warranty of peaceable possession m a deed is a continuing acknowledgment of his vendee’s possession and a perpetual interruption of the prescription of thirty years pleaded by the vendor arid based upon a hostile entry and adverse possession. it. C. C., Art. 3520.</p> <p>3. The possession on which this prescription is founded must be continuous, unequivocal and uninterrupted, and must be brought home to the knowledge of . the owner in order that the presumption of his acquiescence may bo created. R. C. C., Art. 3500; 11 An. 148; Sedgwick & Waite on Trial of Title to Land, 519, et seq.</p> <p>4. A possession which begins as permissive can only be changed into a hostile one as a basis of prescription by notice to the-owner of the occupant’s intention; such notice constitutes the owner’s cause of action and is the starting point of prescription, and the burden of proving such notice is upon him who claims the benefit of the prescription grounded upon it. 82 Mo. 317; 50 Mich. 115; 33 Ohio, 395.</p>

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

<p>APPEAL from the Ninth District Court, Parish of De Soto. Hall, J.</p>

<p>1. The facts being established: (1) That, at the date of the marriage between plaintiff and defendant, the latter was already lawfully married to another; and (2) that plaintiff was fully cognizant of that fact, the legal conclusions follow: (1) That plaintiff is entitled to the decree prayed for by her in this suit, declaring the nullity of the marriage; and (2) that the marriage produced no civil effects either as to the parties or their offspring.</p> <p>2. A judgment rejecting plaintiff’s demand of nullity, and granting a decree of nullity in favor of the husband on his reconventionai demand, must be reversed and rendered in favor of the plaintiff.</p>

<p>1. Repeated decisions have settled the law of Louisiana to the following effect: that under Art. 665 of the Civil Code, riparian property on navigable rivers is subject to a servitude or easement imposed by law for the public utility, authorizing the State, under proper laws, to appropriate the space required for the making of levees and roads; that, in locating and building levees, the State does not expropriate property, but lawfully appropriates it to a use to which it is subject under the title itself; that in so doing she acts, not under the power of eminent domain, but in the exercise of her police power; that laws, constitutional or statutory, concerning expropriation of property and requiring compensation therefor, have no application to property legitimately taken for levee purposes; and that private injury resulting therefrom is damnum absque injuria.</p> <p>2. The statute constituting the defendant levee district expressly dedicates all its funds exclusively to drainage and levee construction; authorizes it to construct only such levees as arc approved by the State Board of Engineers, devolves on the State Engineers the exclusive authority and duty to locate levees, and ehai'ges them with all the responsibility for such location.</p> <p>3. The defendant commissioners, having built its levee on the lino located by the State Engineers, have only performed the plain duty imposed on them by law, and can not be held in damages by a citizen claiming to be injured thereby. If there has been fault it was committed by the State Engineers. The corporate funds could, in no event, bo diverted from the public purposes to which they are exclusively dedicated by law. The commissioners, if desirous to do so, could not appropriate them to payment of such damages without violating the law, and judicial power cannot be invoked to compel them to violate the law.</p> <p>1. The law being valid, no acts of officers within the authority conferred can give rise to any legal damage; and if they have acted without and beyond such authority, their acts are not binding on their principal, which is a mere functionary of the State, and any liability incurred must be personal.</p> <p>5. Whatever remedy the plaintiff may have had to prevent unlawful action by these officers it can not take the shape of an action for damages against this corporation, which is the only question here involved.</p>

A PPEAL fro'm the Seventeenth District Court, Parish of St. Mary. iY Allen, J. 1. The title to the soil of public roads vests in the proprietors of the lands over which they run. The public owns nothing but a servitude o£ way. O. O. 638; 3 An. 382. 2. A use of a road different from that originally intended at the time of the dedication to the public service, or inconsistent with it, is not permissible. Cooley on Con. Him., Sec. 556; 33 An. 624. 3.

Ellis, J. 1. An action brought by parties claiming to own an undivided interest in an immovable against parties possessing and claiming to own the whole Immovable, and asking judgment decreeing their ownership and for partition, combines the double character of a petitory action and an action for partition. 2. To the petitory action defendants are entitled to plead the prescription of ten years, although an action fpr partition is only barred by thirty years.

<p>In case the entire charge of an information is set out in one continuous, unbroken sentence, two seemingly antagonistic parts thereof not being separated by a semicolon, can not be fairly construed as charging two separate and distinct offences, rendering it liable to the objection of duplicity. It is more consonant with reason and the spirit of our jurisprudence that the subordinate or charging portion of the information be treated and considered as explanatory of the character of the offence that is denounced.</p> <p>If defendant fails to retain a bill of exceptions to the refusal of the trial judge to grant a motion for anew trial, the ruling is not examinable.</p>

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

Pierson, J. On motion to dismiss. 1. An appeal bond which does not bind the appellant to prosecute the appeal is void for want of compliance with the law. 0.1\ 579; RawiO vs. Feltus, 33 An 422; Caldwell vs. Ballow, 7 ¡3. W. Rep. 677; Succession Calhoun, 35 An. 363. 2. The court will not depart from the letter of the law, when it is plain, under pretext of pursuing its spirit. C. C. 13. 3.

Thompson, J. A power to sell is not a power to exchange. 15 An. 560; Story on Agency, par. 78. It must be express to sell or to buy. C. O. 2997. The action, of the agent beyond his authority does not bind his principal. 4 H. S. 502; 2 Rob. 274; 3 An. 468. One who deais with a special agent must, at 2iis peril, see tliat lie does not exeeed liis authority. 6 La. 47; Story on Agency, par. 72.

<p>APPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J. _</p>

<p>Shingles, laths, matched ceiling, dressed flooring, sidings, palings dressed and headed, fencing laths, mouldings, car sidings cut to lengths, dressed finished mouldings, easing moulding-base boards, are articles of wood, ready for immediate, convenient and general use, and exempt from taxation under Article 207 of the Constitution.</p>

<p>“ Articles of wood,” in Article 207 of the Constitution, refers to a particular substance or commodity manufactured from lumber, by hand, by art, or machinery, ready for immediate, convenient and general use, complete in themselves without further manipulation, or work on them.</p> <p>Shingles, lathes, cross-ties, dressed lumber, planed, tongued and grooved; weatherboards planed, dressed and ready for general use; mouldings, sashes, doors and blinds, boxes, pickets, turned stair work are such articles of wood, complete in themselves, ready for immediate, convenient and general use without further manipulation or work on them.</p> <p>“ Articles of wood,” such as planks, joists, sills, etc., which are intended for parts of a particular structure are not such articles as are intended for general, immediate and convenient use, each complete in itself.</p>

<p>Same as in case oí Cypress Lumber and Shingle Company vs. Bruslé, Sheriff.</p>

Talbot, J. All rights and property belonging to the insolvent may be recovered by the syndic, whether on the schedule or not. 11L. 531, Muse vs. Yarborough; 12 L. 109, Levy vs. Jacobs; 2R. 123, West vs. Creditors; 9 K. 32, Dwight vs. Smith; 4 An. 490, Dwight vs. Simon. No heir of a father, major or minor, can dispute a bona fide mortgage on community property executed by him during the life of the mother. 31 An. 450, Dupre vs. Soye et ai.

Talbot, J. 1. The sale of property carries with it all actions appurtenant to the property necessary for its enjoyment, but actions for damages suffered by the vendor before the sale are personal to him, and can not be recovered by the purchaser without express subrogation. Clark vs. Warner, 6 An. 408, cited with approval in Payne vs. James, 42 An. 230. 2.

<p>Tlie insolvency of the partnership and that of the individual partner having' by an order of court been consolidated in one case to be decided in one judgment, form but one suit.</p> <p>The separate creditors having been compelled by the consolidation to prove their claims in these consolidated proceedings, have the right to vote for the discharge or against the discharge of the debtor.</p> <p>The separate ereditors of one of the partners have an interest in his estate in the partnership, for, if there is any balance of the estate of the partnership after-payment of its debts, such balance must be divided and appropriated to and among the separate estates of the several partners according- to their respective rights and interest therein, and the sum so appropriated to the separate estate of each partner must be applied to the payment of the separate debts.</p>

<p>APPEAL from the Eighth District Oourt, Parish of Concordia. Young, J.</p> <p>1. The seizure by the mortgage creditor under a mortgage act containing a pact de non alienando carries with it the seizure of all the rents and revenues of the mortgage property, due and exigible, subsequent to the seizure; any alienation thereof by the mortgage debtor being without effect against the seizing mortgage creditor with the mortgage act containing the pact de non alienando.</p> <p>2. The assignment of rentals was not accepted, and notice of the assignment was not sufficient. 17 La. 472 ; 4 An. 358; 17 An. 258 ; 40 An. 276.</p> <p>3. The contract for the sale of mules hawing been made in Mississippi, the question whether the intervenors have the privilege upon, the mules sold for the unpaid purchase price thereof is regulated by the laws of Mississippi.</p> <p>4. Under the laws of Mississippi, the vendor has no privilege or lien as against the seizing creditor. 65 Miss. 171.</p>

<p>APPEAL from the Tenth District Court for the Parish of Natchitoches. Andrews, J.</p> <p>1. Plaintiffs petition does not set forth a cause of action against defendant company, as he does not allege defendant to be in possession of the property sued for.</p> <p>2. The document annexed to and madepartof thelpetition shows that the defendant is not in possession of it and has no control over it, wherefore it is clear that he has no cause against defendant company.</p> <p>3. The exception of no cause of action being- well founded, the suit was properly dismissed. Jt can not be circumvented and its efficiency destroyed in any case by offering an amended petition. 34 An. 823 ; 35 An. 281; 41 An. 228; 41 An. 282.</p> <p>4. If such an amendment could be allowed, .where the plaintiff had a cause of action and simply failed originally to set it forth, yet it surely can not be done in this case where plaintiff s original petition showed affirmatively that lie-had no cause of action against defendant. Same authorities.</p> <p>5. The law holds parties to their allegations of record. They can not play fast and loose, and deny what they have solemnly averred to be the truth. C. O. 2291; 31 An. 158; 40 An. 186; 42 An. 522; 37 An. 106; 42 An. 496.</p> <p>6. The amendment besides being inconsistent with the original petition altered the substance of the demand, or rather created a demand where none existed before, and hence was properly disallowed. 41 An. 22S; 41 An. 282; 35 An. 694.</p> <p>7. Besides, the original petition was sworn to and the amendment did not allege error and was not sworn to. The suit being a sequestration suit must stand or fall on the state of facts existing and alleged to exist at the time the suit was filed.</p>

A PPEAL from the Thirteenth District Court, Parish of West' L\ _ ,. . _ , 1 JL Feliciana. Brame, J. 1. Defendant can fcalce nothing by his motion because it is too vague. The court can not notice any grounds beyond those clearly and distinctly stated. 1 An. ill; 29 An. 829 ; 36 An. 516; 37 An. 701. Wo can only guess what may being objections to the bond. 2.

<p>Same as in Russ & Hollingsworth vs. Their Creditors, this day decided.</p>

<p>APPEAL from the Ninth District Court, Parish of Red River. J.</p> <p>1. The assessment is the foundation of all that follows in a tax sale.</p> <p>2. As the assessment stands in lieu of a judgment, and as if there be no assessment or judgment against the true owner, there can be no valid sale. 29 An. 509.</p> <p>3. An assessment in the name of one not the true owner is not only an irregularity and informality, but is absolutely null and void. 32 An. 912; 15 An. 15; 19 An. 185; 26 An. 730; 28 An. 537; 8 An. 19.</p> <p>4. The assessment is the very basis or foundation of tlie proceedings relating to tax sales, and has been very properly likened to a judgment, which must precede a sheriff’s sale; and a proper and legal assessment is just as essential to the validity of the one as the existence of the judgment is to the validity of the other. 32 An. 925; 30 An. 176; 38 An. 400; 40 An. 455.</p> <p>5. Where a vendor sells only his right or interest, shows what it is, and declines to warrant generally, this brings home to the vendee a knowledge of his title. 3 R. 220; 10 L. 284.</p> <p>6. “A sale without warranty,” says Marcado, “ is not properly the sale of the thing itself,but merely the pretensions and claims which the vendor may have upon the thing.” 34 An. 651.</p> <p>7. So, if the plaintiff could recover as against Lee, it is clear that he could recover as against the defendant.</p> <p>8. The pleas of prescription of three and five years do not apply as a bar to an action to annul a tax sale, where the gravest irregularities and absolute nullities are propounded. 32 An. 912; 34 An. 409-707; 35 An. 1087; 29 An. 510; 43 An. 441; 38 An. 400; 40 An. 455; 4 So. Rep. 50G.</p> <p>9.A judge who should render a judgment without citation or hearing could hardly be permitted to hold property acquired in execution of said judgment. The same rule applies with greater force to an assessor.</p> <p>10. “The general rule,” says the Supreme Court of the United States, “stands upon the great moral obligation to refrain from placing ourselves in situations which ordinarily excite a conflict between seif-interest and integrity.” 4 How. 555.</p> <p>11. A title absolutely null can not be the basis of prescription. 10 U. 552; 7 At. 379-406; 3 R. 223; 4R. 201; 4 N. S. 224.</p> <p>1. The only grounds o£ nullity and irregularity specially alleged in the petition, and which can be passed upon by this court under the pleadings, are want of advertisement for the time required by law and irregular assessment. 14 An. 778-9.</p> <p>2. Want of advertisement for thirty clear days of property advertised to be sold for taxes is a relative nullity and sueli defect is cured by prescription of three and five years. HR. 537; 10 R. 398; 1 An. 777; Act of 1834 (re-enaeted in 1855); . 2 So. Rep. 809; O. C. 3543 ; 39 An. 1005; 3 So. Rep. 273.</p> <p>3. The Constitution divides property into known and unknown owners. Advertisement is the mode of notice provided for unknown owners. There is no contention that this notice was not given in this way. But plaintiff contends the advertisement under which the sale was made was insufficient because the property was not advertised for thirty clear days.</p> <p>4. An assessment containing a description sufficient to identify the property and not mislead the owner is all that the law requires. Cooley on Taxation, pp. 282-3; Blackwell on Tax Titles, p. 150, Sec. 136; 41 An. 769.]</p> <p>5. It was the assessor’s duty to assess the land to an unknown owner when he could not And out by an examination of the records and by inquiry to whom the land belonged. Act No. 77 of 1882, See. 17.</p> <p>6. A sworn oAicer is always presumed to have done his duty. 1 Hen., p. 490, See. 17. *</p> <p>7. When one by his silence, acts and conduct induces another to believe in a state of facts and to act thereon, he is estopped from enforcing any advantage thereby acquired. tcQui tacit consentiré videtwr, qui potest et debit veetnr jubet, si nonvetat." Story Bquity Jurisprudence, Sec. 389; Cross on Pleadings, p. 76; 5 An. 108, 367.</p> <p>8. A possessor in good faith is entitled to be reimbursed for the enhanced value of the property resulting from the improvements made by him and is not accountable for .fruits. C. 0 . 508; 1 N. S. 408 ; 8N. S. 609; 2L. 104; 3 L. 534; 6R. 192; 2 An. 259, 376; C. N. 555; 16 An. 85, 91, 243; 23 An. 138.</p> <p>9. Good faith is always presumed in matters of prescription, and he who alleges bad faith in the possessor must prove it. O. C. 3481.</p>

<p>APPEAL from the Eighth District Court, Parish of Concordia. Thompson, Judge ad hoc.</p>

PPEAL from the Ninth District Court, Parish of DeSoto. fíctíí, J> 1. To enable the Court of Errors and Appeal to review the decision of the court below upon matters resting in its sound discretion, a case must be presented by a bill of exceptions, as to disclose ali that is necessary to manifest the supposed error, unless it be apparent on the face of the records.

<p>The object in applying for a new trial, on the ground of newly discovered evidence, was to impeach the credit o£ a witness.</p> <p>The newly discovered evidence is cumulative, and if the new trial were granted, it would not lilcely produce a different result.</p>

<p>APPEAL from the Sixteenth District Oourfc, Parish of Livingston, Reid, J.</p>

<p>The items which figure on the credit side of an account furnished by an agenc at the instance of the heirs of his principal are not barred by the prescription of either three or five years.</p> <p>Where a principal in a written instrument dated in I88d acknowledging himself to be then indebted to his agent for his services authorizes him to pay the debt and interest from the net profits of a plantation of which he continues him the management and the possession, the heirs of theprincipal can not successfully plead against such claim either the prescription of throe or five years, when at their instance and being still in possession lie renders thorn an account and net profits to cover his claims are not shown.</p>

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

y^PPLIOATION for Certiorari and Prohibition. The docketing- of a cause according to law is an essential prerequisite to all judicial proceedings; unless waived or ratified by parties who are capable of acquiescing in, and assenting to, an Irregularity of that kind. 41 An. 1108, James vs« Meyer.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.</p> <p>A person who applying for the administration of an estate alleges the necessity of an administration, but who subsequently fails to qualify, can not be heard, when opposing the claim of the public administrator for appointment as dative testamentary executor, to allege a different state of facts and deny that any necessity for such an administration exists; lie is estopped from so doing, 22 An. 252; 6 U. 280; 1 R. 546; 6 R. 142; 4 An. 416; 11 An. 710; 5 An. 18.</p> <p>A foreign executor who wishes to qualify in the State as such executor must furnish bond; he can not be dispensed from so doing. R. S., Sec. 460; 21 An. 894 ; 35 An. 404,1035; 30 An. 4; 47 An. 346; 31 An. 727; C. C. 1678,1679.</p> <p>A foreign executor failing to furnish the bond required by law, within the delays provided by law, forfeits his trust and his appointment, ipso facto, is vacated. C. C., Arts. 1132,1127.</p> <p>The giving of bond alone“qualifies the foreign executor. He can not qualify without complying with the law in that respect. 35 An. 1035.</p> <p>Whenever a foreign executor fails to qualify, his oflicc becomes vacant, and if the-succession is one in which the heirs are absent and not represented, the public-administrator is entitled to the appointment of dative testamentary executor of such vacant estate, Acts 1877, Extra Session, p. 111.</p> <p>betters issued to a person residing in New York by the Surrogate Court of that State have no extra-territorial force. Xu order to have any force or effect in this-State, the .letters issued by the New York court have to be registered in this State according to the law of Louisiana. Story on Conflict of Laws, Secs. 512, 550, 511, 515,523, 524; Schouler's Executors and Administrators, Secs. 164, 173, 190, 187,91, and particularly Sec. 24.</p> <p>The executor qualified in New York has and can exercise no power under that qualification in Louisiana. Our code provides for the manner in which he can acquire recognition, and until then, any act done by him under the New York letters is ultra vires in this State.</p> <p>The situs of shares of stock of corporación, organized and doing business in Louisiana, is, after the death of the owner, quoad the foreign executor in Louisiana. The title of the foreign executor can not, de jure, extend as a matter of right beyond the territory of the government which granted it, and the movable property therein. Story on Conflict of Laws, Sec. 512.</p> <p>The personal property of the deceased testator, whether of goods or of debts, situated at the time of his death in this State, can not be lawfully disposed of, except under an administration granted in this State. Story on Conflict of Laws, See. 520,</p> <p>Act 109 of the session of the Legislature of 1388 in no manner changed the laws of this State requiring foreign executors to qualify in this State and to furnish bond, as required by law. It provides for an easier and loss costly manner of selling the shares of incorporated companies.</p> <p>Repeals by implication are not admitted.</p> <p>The act of incorporation of the New Orleans Gas Light Company, among other things, provides that its shares of stock can be transferred on the books of the company alone; the transfer of the certificates of shares, which under the act-of incorporation are but evidences of the ownership of the stock, is not a transfer of the shares of stock. By its act of incorporation the sitfws of the stock, quoad Withers, was in New Orleans. The heirs and executor of Withers can not acquire any greater right than Withers himself had.</p> <p>The law authorizes the non-resident executor to administer on presentation of his letters from the court of another State, the domicil of the testator, and merely to make room for the public administrator, the law will not tolerate the displacement of the executor for not filing a bond or making an inventory; no creditor, there being none demanding either, and the heirs waiving both, the bond and inventory being required only for the interest of creditors and heirs. Oivii Code, Arts. 1688, 2689; Revised Statutes, Sec. 1460; Code of Practice, Art. 1018. ,</p> <p>Nor can the non-resident executor duly recognized by our courts’be removed from his office for any cause, by rule or motion. No executor can be removed, except by suit begun by petition, citation and judgment in regular course. Code of Practice, Art. 1018; Succession of White, 9 Robinson 353; Succession of Boyd, 12 An. 611; Succession of Williams, 22 An. 96, passi/ni.</p> <p>The legislation creating the office of public administrator does not require, without any necessity, the judicial administration of the property of the deceased. That legislation is subordinated and controlled by the well settled jurisprudence of the State, that forbids the appointment of any administrator, with the attendant expenses of administration, when there is no necessity whatever for such appointment or administration. Crocker, 14 An. 94; Bryan vs. Atchison, 2 An. 154; Succession of Story, 3 An. 502; Broussard vs. Deitsli, 30 An. 1109; Succession of Hebert, 33 An. 1109.</p> <p>Hence, there is no warrant in our law for the appointment of a public administrator when there are no debts of the deceased to pay, nor difference of any kind among the heirs to adjust, all of age and maintaining the right of the executor, also the trustee for them, under the will of the deceased, and repelling rlie interference of the public administrator; to require an administration of the property of the deceased under such circumstances, without the semblance of;neeessity for it, would be merely to make costs and fees for the public administrator, and.ourdaw would not allow the heirs of the deceased to be burdened with an utterly useless and expensive administration; least of all, on the application of the public administrator representing no party in interest, but coming forward on liis own motion to insist on his appointment. See above authorities. Son act creating the office of public administrator. Acts of 1890, Regular Session, p, 120. Amendatory Act of 1877, p.’lll.</p> <p>Again, the administration of the public administrator is utterly excluded when the entire property of the deceased consists in stock in corporations, authorized by our law to be transferred and sold by the non-resident executor on the simple exhibition of his letters from the proper court of the domicil of the testator, without any appointment of an administrator or succession proceedings here of any kind whatever; still less is the appointment of the public administrator authorized when, at the time he claims the appointment, the non-resident executor is in actual possession of the stock under transfers directed by the law. See Revised Statutes, Sec. 313, enlarged by the Act No. 47. Regular Session of 1877, p. 60, and Act 109 of 1888.</p> <p>Nor is the pretension of the public administrator to be appointed at all aided by the circumstance that the executor, under the erroneous impression that the deceased owned property here besides the stock, applied to our court for recognition of his letters, but never qualified under the order of the court. It is enough that in point of fact there was no property of the deceased, save and except the stock confided by our law to the exclusive administration of the non-resident executor without bond, oath or any succession proceedings here. Hence, that the non-resident executor did not give bond or take any other steps under an unnecessary order for liis recognition gives no warrant for the appointment of the public administrator.</p> <p>Finally, the public administrator is absolutely without right to provoke the removal of sin executor. His dismissal can be demanded, when the cause exists, only by an heir or creditor. Act ST of 1870, Regular Session, p. 120; Amendatory Act of 1877, Xo. 74, p. Ill, Extra Session. Succession of ’Burnside, 34 An. 728.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.</p> <p>1. All public property and property belonging to the State shall be exempt from taxation. Constitution, Article 207; Revised Statutes, See. 3233.</p> <p>2. The purchase by the State of property sold on account of unpaid taxes extinguishes the debt and all liens arising from taxes. Lands belonging to the State are exempt from taxation, and hence one who purchases land from the State takes it free from all liens and obligations springing from taxation. Bradford vs. Lafargue, 30 An. 432.</p> <p>3. When the privileges by which taxes are secured are prescribed, such taxes become mere personal claims against the tax debtor. They cease to be “ taxes due on property” within the meaning of Section 3616 of the Revised Statutes, which must be construed in connection with other laws in pari materia. Scholefield, Goodman & Co. vs. West, 44 An. 277.</p> <p>•#. That an assumption of a debt may be judicially enforced, it must be clear, explicit and certain. The plaintiffs not having assumed the debt and not having acknowledged the lien and privilege are not estopped. Leeds & Co. vs. Hardy crt al.,44 An. 556.</p> <p>5. After property has been adjudicated to the State, in default of a bidder, the ‘•'sime shall bo continued to be assessed in the name of the person to whom it belonged at the date of the sale, for the lapse of one year thereafter only. Sec. w» of Act 96 of 1888.</p> <p>o. The liens lor city taxes from 1877 to 1884, inclusive, are prescribed by three years. See Secs. 36 and 102 of Act 96 of 1877 and Succession Stewart, 41 An. 127.</p> <p>7. Tax liens for city taxes for the years 18S5 and 1886 arc prescribed by three years uinder Sees. 36 and 102 of Act 96 of 1877; or by five years under Sec. 34 of Act n of 1882.</p> <p>8. Tax liens for city taxes for 18S7 and 1888 are prescribed by three years under ^ec. 1 of Act 26 of 1886.</p> <p>9. Section 2 of Act 80 of 1888 provides: That the property shall be adjudicated to ihe Iasi and the highest bidder for cash, payable in current money of the FniUul States, at the time of the adjudication; provided, no bid shall be Accepted or sale made for a less amount than the total amount for which the ■property was adjudicated to the State, together with 20 per cent, thereon and all costs of enforcing this act. All money realized from the enforcement of this act shall he included in the first return of the Tax Collector to the Auditor <n£ Public Accounts made after receiving the same, and paid into the State treasury, to the credit of the general fund. See Sec. 2 of Act 80 of 1888.</p> <p>2.0. Action 3 of Act 80 of 1888 provides: That when any property sold to the State for unpaid taxes has been once advertised and offered for sale in accordance with the provisions of this act, and has failed to sell, then the Auditor of Fublic Accounts shall be authorized to receive bids for all such unsold property and sell the same and execute a deed thereto; provided, no sale shall be made for a less amount than is provided for in the foregoing section. See Sec. 3 of 1887.</p> <p>31. Section 5 ot Act 80 of 1888 pi*ovides: That all the sales made under this act «hall vest in the purchaser “an absolute and perfect *' title to the property conveyed in the deed of sale, without any claim thereto by any former owner, and free of all mortgages, liens, privileges and encumbrances whatsoever, except all city and municipal taxes. See Sec. 5 of Act 80 of 1888.</p> <p>12. Section 6 of Act 80 of 1888 provides: That the price bid and paid for said property shall be in full and final payment and satisfaction of all State taxes, together with all costs thereon due and exigible at the time the property was adjudicated to the State, and the purchaser shall take said property subject to all subsequent taxes, State, parish and municipal. See Sec. 6 of Act 80 of 1888.</p> <p>£3. Selling land as subject to a mortgage or privilege does not make the purchaser personally liable. Balfour vs. Chew, 4 N. S. 154; Massey vs. tfineh, 24 An. 29.</p> <p>£4. A third possessor is he who has acquired property subject to a mortgage or privilege without having assumed payment thereof. O. I\ 41, 68, 69, 71.</p> <p>35. A third person to a contract or obligation is a person who was not a party to ,«txch contract or obligation. O. O. 8556, No. .32; YanLoau vs. Heffner, 30 An. 1213.</p> <p>30. The promise to pay the debt of a third person is in the nature of an obligation of suretyship. Itcan be enforced only by written evidence signed by theparty; and is to be restrained within the limits intended by the contract. O. O. 2278 and 3039.</p> <p>17. Privileges become extinct: 1. By the destruction of the thing subject to the privilege. 2. By the creditor acquiring the thing subject to it. 3. By the extinction of the debt which gave birth to it. 4. By prescription. C. O. 3277.</p> <p>18. Prescription runs against all persons, unless they are included in some exeej)tion established by law. C. O. 3521.</p> <p>19. There are two modes of interrupting prescription — that is, by a natural interruption or by a legal interruption. C. O. 3516.</p> <p>20. A legal interruption takes place when, the possessor has been cited to appear before a court of justice, on account either of the ownersnip or of the possession. C. C. 3518.</p> <p>21. Prescription ceases likewise to run whenever the debtor or possessor makes acknowledgment of the right or claim. O. C. 3520.</p> <p>22. All taxes, tax'privileges and tax mortgages are prescribed by three or live years, and this prescription is suspended or interrupted only by an injunction which prevents the collection. See Act 96 of 1877, Secs. 36 and 102; Act 77 of 1880, Sec. 24; Act 96 of 1882, Sec. 24; Act 98 of 1886, Sec. 34: Act 26 of 1886, Sec. 1; Act 85 of 1368, Sec. 33.</p>

Gaillouet, J. Notice by publication to a tax debtor, who is known, who resides in the State, hut whose postoffice is unknown, is no notice at all. Const. 1879, Art. 210. The tax collector or assessor in this case should have ascertained the name and address of the tax debtor at Baton Rouge. R. S. of 1870, Art. 2922; 43 An. 987-.

Monroe, J. 1. Parol evidence is not admissible for the purpose of proving that a third person was interposed to receive or to be invested with the title to the real estate, for the use of and instead of the intended vendee. C. C. 2440, 2275; 42 An. 449 ; 32 An. 166; 30 An. 898; 4 La. 166; 2 La. 598; 15 An. 540; 5 An. 132; 12 An. 213; 44 An. 600.

<p>Tbe defendants are not carrying on business, nor are they engaged in trade, within the meaning of the statutes.</p> <p>The statutes requiring licenses from those who “ sell, give or otherwise dispose ” of alcoholic drinks are within constitutional limitations.</p> <p>Without regard to trade or business, or to the fact that the proceeds are not realized with a view to profit or for a livelihood, incorporated institutions engaged in selling intoxicating liquors to their members owe a license under the paragraph of Sec. 11, of the license tax law, designating “ sales, gifts or other disposition ” as subject to a license.</p>

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

Mary. Allen, J. Any person advancing money,‘or furnishing supplies, to enable another to deaden, cut, haul, float or raft any logs or forest timber, shall have privilege upon such logs or timber. Acts 1882, No. 33, p. 47. Privileges on movable property shall exist without registration. Constitution 1879, Art. 177.

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

<p>1.The effect oí a decree approving and homologating the deliberations of ameeting of creditors granting their debtor a respite, is to create a judicial contract between the debtor and his creditors, by which the debtor is allowed a delay for the payment of the sums which lie owes them, and as the debtor’s property is the common pledge of his creditors, and the contract is binding) on all the creditors, the law did not and could not contemplate conferring on any one creditor the right of annulling the contract without judicial process, on the ground of its alleged violation by the debtor, and applying the property to the satisfaction of his individual claims. 35 An. 917; 44 An. 823.</p> <p>2. The vote of a single creditor is not a mere offer to make a new contract between the particular creditor and the debtor, but a quasi judicial act by which the rights of the other creditors are to he affected; the other creditors should therefore be made parties to any proceeding to annnl or modify the order granting the respite. The court will exproprio motu notice the want of proper parties where the judgment asked for will unavoidably land vitally affect the rights of third parties not before it. 14 An. 30; 7 La. 62.</p> <p>3. A plaintiff who closes his case on insufficient evidence, relying upon supplementing it by letters then in his possession, to be offered in rebuttal to testimony which he assumes will he introduced by the defendant, can not claim as a right to reopen the case for the purpose of placing as he states all the facts before the court when the defendant is content to rest his own case on the testimony offered hv the plaintiff. The action of the court onjsuch a request rests upon the discretion of the trial judge, who properly exercised that discretion in the present instance in refusing the application.</p>

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

<p>1. In Louisiana all crimes are statutory, and the determination and definition of * the acts which are punishable as crimes are purely legislative functions which can not be delegated to or exercised by the judiciary without violating Arts. 14 and 15 of the Constitution.</p> <p>2. Section 869 of the Revised Statutes, which denounces and punishes as a crime, any civil officer guilty of “ any misdemeanor in the execution of his office,” does not, on its face, define what acts shall constitute such misdemeanors, and unless there is some other law which defines them, it remits the definition thereof to judicial discretion, which is unconstitutional.</p> <p>3. The 33d section of the Act of 1805 authorized a reference to the common law of England for the definition of the particular crimes therein enumerated; but neither that nor any law of the State has authorized reference to that system in order to ascertain the definition of any other crime not therein enumerated.</p> <p>4. The omission in Sec. 976, of the Revised Statutes (which otherwise reproduces .the 33d section of 1805), of the words “ hereinbefore named ” was not intended to extend or alter the meaning thereof so as to embrace all crimes and misdemeanors, however obscure or obsolete, known to the common law of England. The omission of those words without embodying an equivalent restriction was ■only a careless oversight, which was fortunately made clear by the final Sec, ;3990, in. which the 33d section of the Act of 1805 was expressly reserved from repeal, showing, beyond controversy, the legislative intent to maintain the law just as it was established by that section and had thereafter remained.</p> <p>5. Held, therefore, that Sec. 869, Revised Statutes, which punishes “misdemean ors in office,” without defining it or referring to any other law defining it, imposes on the judiciary the legislative duty of declaring what acts constitute the crime denounced, and thus violates Arts. 14 and 15 of the Constitution.</p> <p>6. Whether logically or illogieally, the judicial exposition of the 33d section of the Act of 1805 is to the effect that the first clause of the section only adopted the common law definitions of the particular crimes named in the act; while the second clause, relating to forms of indictment, method of trial, rules of evidence and proceedings, has been held to apply to crimes and offences generally. Our original opinion has simply followed this jurisprudence on the first point and has not disturbed it on the second.</p> <p>7. The 33d section of the Act of 1805 was held not to be within the constitutional prohibition against the adoption of any foreign system or code of laws by reference, on the express grounds that this act was passed prior to the adoption of our constitutions, and that this provision should not be given a retrospective operation. If the contention of the State, that the Act of 1855 and Sec. 976, Revised Statutes, are new statutes extending the adoption of the common law beyond the 33d section and malting it applicable to all crimes, were well founded, very grave questions would arise as to their validity under the Constitution.</p> <p>8. No technical rules of precision in the definition of acts punished as crimes have been laid down. When the language used in the statute sufficiently and clearly indicates the legislative meaning and intent, these will be given liberal effect. Rut language of such wide and indefinite import as to leave absolutely uncertain what acts are within and what without the statutory prohibition can not operate as a valid criminal statute.</p>

<p>1. The English statutes on the subject, followed generally by the statutes of the American States, do not denounce embezzlement as a distinct and independent crime eo nomine, but make it a statutory larceny, and it is, therefore, well held that an indictment or information under such statutes must allege the ownership of the thing embezzled and contain the other ayerments essential in larceny.</p> <p>2. Tile Louisiana statute differs in this respect, and contains no language referring embezzlement to the class of larcenies, but denounces it as a substantive and independent crime eo nomine, and there is no reason for applying the foreign rule requiring the averments essential in larceny.</p> <p>3. The statute describes the acts constituting the crime with such precision and certainty as fully to inform the defendant of tile nature of the charge, and an information following the words of the statute is sufficient.</p>

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

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

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

<p>In * judicial district in whieli there are three parishes, three weeks should intervene between the opening days of the court’s sessions.</p> <p>No: i - c omp 1 i an c e with the law' in this respect, in so far as relates to another parish Df the district than that in which the defendant was indicted, is not an irregularity of which he can avail himself.</p> <p>There was no irregularity in the terms of the court in the parish in which he was * tried and condemned.</p>

<p>The appointment of triors is not ajmatter of right.</p> <p>The refusal of a motion to appoint triors does not vitiate the verdict of a jury.</p> <p>There are eases, under an exception, settled in jurisprudence, in which evidence is admissible of another offence than that charged, to prove the intent of the defendant.</p>

Domicil is acquired by tile combination o£ residence and tlie intention to reside in a certain locality. If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicil. If thewife wilfully and maliciously decline to accompany her husband to a new home without any just or reasonable cause, it is an act of desertion on her part.

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

<p>The petition shows that the act sought to be enjoined had already been committed. If so, it could not be corrected by injunction, as the purpose of an injunction, in the matter of the discharge of functions or the performance of duties in a a public position, is to prevent and not to correct wrongs.</p>

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

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

<p>The original Jurisdiction of inferior courts must be construed with reference to Art. 11 of the Constitution, which ordains adequate remedy in the courts for all legal rights.</p> <p>The plaintiff in this action, the importance of the issues involved, and the character of the suit are within the jurisdiction of this court.</p> <p>It is made the duty of the custodian of notarial records to collect and safely keep in his possession the records of notaries who have ceased to be such.</p> <p>An acknowledgment can not be invoked to maintain the custody of public records which the statute provides shall be delivered to the custodian of notarial records.</p> <p>A notary’s records, after his term of office, are a part of the notarial records and should he delivered to the State to be safely kept for the convenience of the public.</p>

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

<p>An assignment of error presents points of objection arising on tlie face of the papers, which must be examined and considered as a whole.</p> <p>Minute entries kept of the proceedings are intended to preserve a faithful and exaeth'ecord.of what happened at the trial, as well as of the facts and occurrences antecedent to the trial, and same will be accepted as the correct and proper evidence of what did happen in the lower court.</p>

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

<p>1. Where the terms ol court in a parish in which an accused has been indicted and tried are conformable to law he has no legal concern in. those in the other parishes of the judicial district, which in no way affect his rights.</p> <p>2. The action of a district judge in fixing the terms of his court under legal authority so to do can not be collaterally drawn in question after verdict on a motion in arrest of judgment. That action should have been made the subject of a direct attach at an earlier stage of the proceedings.</p>

<p>1. Where subsequently to verdict and prior to sentence doubts arise as to the sanity of the person convicted the court has the right, upon the suggestion of the district attorney, to cause an investigation to bo made on that subject.</p> <p>2. Authority to that effect can be found in Sec. 1768 of the Revised Statutes, if direct authority for that purpose be necessary.</p> <p>3. The judge is authorized to engraft upon the criminal proceedings in his court, not yet closed, the proceeding provided for in that section, and in the absence of a direct mode of procedure being exacted, to mould it to correspond with the analogous methods of proceeding resorted to for the purpose of the trial of special issues.</p>

<p>APPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.</p> <p>1. A party to a judicial record is precluded from disproving' a tiling’s value attested or acquiesced in by him. 33 An. 352; 40 An. 189, 763.</p> <p>2. This value is shown by evidence aliunde not to be incorrect in fact. /</p> <p>3. The trial judge erred in not allowing appellant $500 as a claim of hers against the parties’ community.</p> <p>4. The rent of community property accrued between the date of a suit for separation from bed and board and the day of the sale thereof, made to effect a partition, is a necessary asset of the community. R. O. 0,150,155,2432 ; 2 Duranton, No. 622.</p> <p>5. So-called debts of the community, not legally proved, should be disallowed on. appeal, though the lower court has not passed upon them. 8 N. S. 63; 11 An. 404; 13 An. 448 ; 24 An. 223; R. C. C. 2248; 15 An. 457; 19 An. 326.</p> <p>6. A debt contracted by the husband, since the date of the judgment of separation, is legally presumed to be his own personal obligation. R. C. C. 150,155 2432 ; 2 Duranton, No. 622.</p> <p>7. A wife separated from bed and board may, in proceedings tending to a settlement of the community, call for her husband’s boolts, papers and documents relative to his business. 16 L. 28; 34 An. 375,1176; 1 Marcade, p. 603 ; 2 Toullior No. 759.</p> <p>8. The destitute wife, suffered to starve by her husband, may legally sell community movables, to obtain the necessaries of life for herself and child, bo she plaintiff or defendant, and should be allowed to retain the proceeds thereof on account of that alimony to which she was entitled pendente lite, whether the final judgment be rendered for or against her. lOToullier, No. 95; 13 Duranton No. 454 ; 5 Larombiere, p. 212; R. C. C. 147, 148; 14 An. 731; 2 Duranton, Nos. 595j 596, 597; 3 Zacharite, p. 369; 19 L. 581; 15 An. 593.</p> <p>9. A provision for alimoné inserted in a final judgment of separation is strictly legal, and constitutes res judicata between the parties thereto, be the alimony decreed without or with their consent. 6 An. 196; 20 An. 277; 30 An. 522; 2 Duranton, Nos. 617, 633; 1 Marcade, p. 611; Pothier, Marriage, No. 522.</p>

Whitaker, J. 1. Act 82 of 1882, regulating adulteration of food, is a general statute, not impairing the force of Act 20 of 1882, in so far as the latter empowers the city of New Orleans, within its own limits, to deal with the same matter. 39 An. 513; also State vs. Callac, recently decided. 2.

<p>1. In a purely personal notion by a creditor against bis debtor, another ordinary. ■ creditor has no right to intervene and oppose the demand, at least when, fraud and collusion botween the parties is not charged.</p> <p>2. The stock of corporations can not be increased except by compliance with requirements of Act 26 of 1882, and until those requirements have been fulfilled the increased stock has no existence.</p> <p>8. A sale by a corporation of such non-existent stock, and the delivery of a certificate therefor to an innocent third person who pays cash therefor, violates the vendor’s warranty of the existence and validity of the thing sold, and entitles the vendee to recover the price.</p>

<p>An order granting an appeal “ on giving' bond to according law,” and without fixing any amount, can only operate as granting a suspensivo appeal,</p> <p>A.bond filed “ in the sum o£-hundred dollars ” without filling in the blank might, perhaps, he considered as no bond at all; but even ii it were considered as a bond for one hundred dollars, the court retained the power to pass on its 'sufficiency for a suspensive appeal, and on finding it insufficient, to set aside the suspensive appeal, and then, on application within the delay allowed by law, to grant a devolutive appeal, and appellant, having obtained and complied with such order, is protected in his appeal.</p> <p>When the husband administers the movable paraphernal property of the wife, and sells it to one who purchases in good faith, the latter will be protected from the claims of the wife on said property. She must look to her husband for reimbursement.</p> <p>When a person takes property on deposit, and sets up title to the property when it is demanded, and when sued for the property alleges that it had been destroyed by fire, his unsupported declaration may be disregarded.</p>

<p>1. A tutor of minor heirs appointed in Louisiana, whose father was domiciled and died in Kentucky, has no powers of administration over property not located in this State.</p> <p>2. A debt due by a New York debtor to a Kentucky creditor does not acquire a situs in thisState because the non-negotiable evidence of thedebt is found here.</p> <p>8. A Louisiana court has no valid authority to appoint an administrator to a person who was domiciled and died in Kentucky, and who left no property in this State.</p> <p>i.' When, a policy of insurance expressly stipulates that no assignment shall be valid without the consent of the company, an assignment without such consent is without effect.</p>

King, J. It is no part of a syndic’s right or duty to represent a Louisiana creditor of the insolvent, claiming under a mortgage note granted by the insolvent, in a contest-in a foreign jurisdiction over the proceeds of the sale of the mortgaged property between Louisiana and foreign creditors. 14 An. 475, and cases cited below.

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

Livaudais, J. 1. Oysters, “when taken from their natural beds by the industry of man and reduced to possession, unquestionably belong to the captor, and are protected alike by criminal as well as civil law.” State vs. Oasselar (not reported), No. 9468; 14 Wendell, p. 42; 4Barb. 592 ; 27 N. J. Eq. 389. 2. Even when planted on public lands they are protected by law.

<p>APPEAL from the Civil District Courb for the Parish of Orleans. King, J.</p> <p>An insolvent can not surrender to his creditors property which belonged to a succession of which he was co-executor. 9 B. 372.</p> <p>A surviving partner can not surrender in insolvency the individual property of his deceased partner, and on the application of the executors of the deceased partner this property should be struck from the schedule. Bird vs. Jones, 5 An. 645.</p> <p>A surviving partner can not surrender the property belonging to the firm dissolved by the death of his copartner.</p> <p>If he could, he can not do so for debts created since the dissolution. 15 An. 19; C. 0 2174, 2180, 2183; 39 An. 362.</p> <p>A partner, after the death of his copartner, can not lawfully continue business in the name of the dissolved firm, and if he does so he will only be individually liable for the debts, whether created by him individually or in the firm name, and in case of his insolvency he can not surrender his deceased partner’s property, and the deceased’s interest in the assets.of the late firm. Harris vs. Walker, 9 11 151; McGavan vs. Gwin, 15 An. 637; McKee vs. Griffin, 23 An. 419; 4 M. N. S. 207.</p> <p>A petition setting forth these facts and praying that this property so illegally attempted to be surrendered discloses a cause of action. Weymouth vs. Roselius, 36 An. 527.</p> <p>On the trial of an exception of no cause of action, it is only the allegations of the petition that should be considered, not records of other proceedings which could not have been and were not offered in evidence. Jeffries vs. Iron Works, 15 An. 91.</p> <p>Real estate can not form an asset of a commercial business. 44 An. 53; 35 An. 846.</p> <p>1. A surviving partner, bound by the articles to liquidate the concern within six months after the dissolution of the partnership by death, and who- has no rights after the expiration of that term to prolong the liquidation, is liable for the value of all the assets at the termination of the delay, when they can not be returned in integrum.</p> <p>The succession of a deceased partner is entitled to recover, after deducting the liabilities from the assets, the share to which the deceased is, by the articles of partnership, authorized to claim in the residue, with legal interest from the expiration of the delay Allowed for the liquidation of the concern. Klotz vs.</p> <p>Macready et als., 39 An. 538.</p> <p>'2. The surviving partner of a commercial firm is not liable, as liquidator, to account to the succession of his deceased partner for any single item of indebtedness to the succession, but to pay over the entire sum found to be due the succession on the settiement of the partnership.</p> <p>A suit against the surviving and liquidating partner, by the succession of the deceased partner, for a settlement or apartition, must be brought in a court of ordinary jurisdiction. Walmsley & Patterson vs. Mendelsohn & Newman, 31 An. 152, and authorities cited.</p> <p>3. The assumption that the representative of the deceased partner can, at his pleasure, take the ownership and possession of the partnership property from the survivor, or, as in the instant case, from the possession of the syndics, is unsustained by reason or authority. Matherson, Executor, vs. Field, 3 Rob. 47.</p> <p>4. One partner can sell all the movable property of the firm to pay debts, or to get money to use for the common business of the concern. This being true, we see no strong reason why he can not make a cession of goods belonging to it, for the purpose of discharging the same debts. The Civil Code treats of the cession of property in the chapter relating to the mode of extinguishing obligations, and Article 2166 (Old Code) says that it is the relinquishment that the debtor makes of all his property to his creditors, when he finds himself unable to pay his debis; and a subsequent article provides that the syndics shall sell the property surrendered. One creditor can not permitted, through the sheriff, to sell the common pledge of all, and indirectly avoid the effect of an existing decree of the court, to-wit, an order staying all legal proceedings against the person and property of the individual debtor, and of the firm, and of the surrender accepted by the court for the benefit of the creditors. Tyler and another vs. Their Creditors, 9 Rob. 376-77 ; 2 La. 188. <</p> <p>5. The purchase of immovables by the members of a commercial firm made with the partnership funds, for the account and use of the partnership, as shown by the books of the latter, though the title be taken in the names of the individual</p> <p>' members, has precisely the same effect as if the title had been taken in the name of the partnership. In either case the partners become joint owners, but, as between themselves, they hold for the benefit of the firm. May et als. vs. N. O. C. R. R. Co., 44 An. 444; Allen vs. Whetstone, 35 An. 849; Thomas vs. Scott, 3 Rob. 256; Skillman vs. Purnell, 3 La. 486; Hall vs. Twigg, 7 Mart. 243.</p> <p>6. The rights of tile creditors of the individual partners must be subordinated to those of the creditors of the partnership. Their only recourse is on the residuum which may accrue to their debtor, after the full liquidation of the partnership ; and it is immaterial whether the partner be one in commendam or a full or active partner. Sherwood vs. His Creditors, 42 An. 103, 107.</p> <p>7. Partners own only the residuum after the debts of the partnership have been satisfied. Partnership property, whether ordinary or commercial, is liable to the creditors of the partnership, in preference to those of the individual members. The fact that some of the copartners had retired from the firm, and that one alone asked for a respite and made a surrender, does not alter the principle. Succession of Pilcher, 39 An. 362,.and authorities cited; Gueringer vs. His Creditors, 33 An. 1279, and authorities cited.</p>

the Civil District Court for the Parish of Orleans. A marriage contract executed abroad, by non-residents, and never recorded here, is o£ no effect whatever as to third persons, with regard to immovable property situated in this parish. Const, of 1868, Art. 123; Act. No. 95 of 1869; Const, of 1879, Art. 176; Lafarge vs. Morgan, 11 Martin, 527; De Armas and Wife vs. Hampton, 11 Martin, 534; Cambre vs. Grabert, 33 An. 246; Skipwith vs. Glathary, 34 An 33.

<p>Where an ice dealer agrees with another to furnish him ice at certain prices until a pool is formed to advance prices, in which the latter is also to be a member, and the pool is formed, the contract is ended.</p> <p>In the formation of the pool if acts are done, and resolutions offered, with which the party to whom the ice was to be sold does not agree and refuses to become a member, he can not hold the other party to the contract and make him responsible for the acts of the members of the pool.</p> <p>In case the facts of the case are disputed, and leave the existence of the contract in doubt, we will not disturb, without urgent reasons, the judgment appealed from, as the district judge was in a favorable position, from seeing and hearing the witnesses testify, to ascertain the truth.</p>

Voorhies, J. 1. Every means of defence, such as payment, release, novation, etc., which goes to show the extinguishment of an obligation admitted orproved to have onoe existed,must be pleaded specially, and can not be urged under the general issue. New Orleans Gas Co. vs. Hudson et al,, 5 R. 4S6; 9 R. 256; 6 L. 457; 6 An, 778; 30 An 1210; 33 An. 748. 2.

<p>The lessors’ rights are not affected.</p> <p>The lessees of plaintiffs organized a corporation, limited.</p> <p>They transferred their stock in trade and their business establishment, on the premises leased, to the company, limited.</p> <p>Upon the change from a partnership to a corporation, of which the partners were the owners of seven-eighths of the shares, they gave no notice to their lessors.</p> <p>It is not proven that the lessors knew that the corporation was the snb-tenant.</p> <p>The corporation is not entitled to the rights of sub-tenants.</p> <p>They were third persons and their goods were covered by the lessors’ privilege.</p> <p>The corporation, while occupying the property leased, alleging their financial exhbarrassment, applied to liquidate its affairs.</p> <p>Liquidators were appointed and an order was granted by the court authorizing liquidation.</p> <p>Immediately after, plaintiffs obtained a writ of provisional seizure. The corpora - tion intervened.</p> <p>The provisional seizure legally issued and is maintained.</p> <p>Plaintiffs were not bound to intervene in the liquidation proceedings, to prevent the removal of the goods and to assert their rights as lessors.</p> <p>Before defendants had answered plaintiffs’ suit the corporation discontinued its liquidation proceedings and resumed business under its charter.</p> <p>The corporation, as intervenors in 'plaintiffs’ suit and provisional seizure, furnished a forthcoming bond to the sheriff, and received possession of the goods from-that officer.</p> <p>The bond represents the goods.</p> <p>The judgment is amended by allowing execution for the amount due at the time will issue, and for the balance payable from month to month, in accordance with the terms of the lease.</p> <p>The fee of attorney stipulated in the contract of lease is due, also interest as allowed in the judgment of the lower court on the amount actually due and unpaid.</p>

Parish of Tangipahoa Thompson, J. 1. Stock mortgages in favor of the Clinton & Tort Hudson E. R. Co. did not mature until demand for their enforcement, and prescription began to run only from that date. Clinton & Port Hudson R. R. Co. vs. Bason, 11 An. 816; Acts of 1831, pp. 116,119, Charter.

Montgomery, J. af maturity and enforced the obligation against his principal. 28 An. (N. R.), Case vs. Sarpy; 29 An. 844, Hill & Co. vs. Bourcier et al. 1. Forbearance to sue does'nofc release the surety, who might have paid the debt 2. Mere inaction on the part of the creditor does not discharge the surety. 32 An. 1280, Pharr vs. McHugh & Vinson.

King, J. As to title to property purchased by a wife and deeded to her, the fact of ownership, of record and of public information being unquestioned and undisputed by the husband for more than nine years preceding his decease, or by any creditor or heir for seventeen (17) years, is sufficient, even in view of Arts. 2405. and 2402, Civil Code, to overcome any presumption as to any claim of the community or of the husband’s estate against the same.

<p>The “business of slaughter houses,” as used in the license law of 1890, means the business of slaughtering animals for sale. It does not matter whether it is carried on in a house or in a shed, on his own property or on rented property; whether he slaughters his own animals or those of others — if the slaughtering is followed as a business, and is for public sale of the animals slaughtered, it is subject to the license.</p>

<p>APPEAL from the Fourth District Court, Parish of Grant. Ware J.</p>

<p>The overt act or hostile demonstration of the deceased against the accused must be proved before the introduction in evidence of communicated threats.</p> <p>The trial judge is clothed with discretion to determine whether a hostile demonstration had been made by deceased against accused.</p> <p>The tendency of recent adjudications is to extend, rather than to narrow, the scope of the introduction of evidence as part of the res gestee. As ageneral rule, when it is necessary to inquire into the general nature of the act committed, or the intention of tlie party who did the act, proof of ^hat the person, said at the time of doing it is admissible evidence as part of the res gesta, for the purpose of showing its true character. The general rule is that the declaration, sought to be proved must be contemporaneous with the event sought to be proved as the principal fact; but when there are connecting circumstances they may, even when made some time afterward, form a part of the whole res gesta.</p> <p>An act can not be varied, qualified, or explained by a declaration which amounts to no more than a mere narative of a past transaction, nor by an isolated conversation, nor by an isolated act done at a later period.</p> <p>On a difficulty which resulted in a homicide and in the conflict the ear of the deceased was bitten or torn off by the accused, it is admissible evidence to prove the finding of the severed ear on the ground where the conflict took place fifteen or twenty minutes thereafter, and the acts and declarations of the accused in relation thereto, when the severed ear was pointed out to him on the ground, are also admissible.</p>

<p>The principal’s acts will be liberally construed in-favor of a ratification.</p> <p>A principal notified of the acts of his agent must disapprove them, within a reasonable time, or he will, by his silence, ratify them.</p> <p>A judgment carried on a final tableau of distribution and partly paid in the final settlement of the succession, and duly homologated, after notification, binds the heirs, who will not be heard to plead its nullity on the ground of defective citation served upon their ancestor, the judgment debtor.</p> <p>The authority of an agent can not be contested, more than twenty years having elapsed since the agency was alleged and the judgment obtained.</p> <p>More than ten years have elapsed since the property was purchased by plaintiff’s author in good faith, and a title acquired which was legal and sufficient to transfer the property.</p>

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

<p>The possessor of real estate under an unrecorded lease is thereunder invested with no right whatsoever as against a seizing attachment creditor.</p>

<p>A family meeting when convoked has the right to select others than those named in the order, when the latter do not attend, They can select those who are not relatives, when no relatives are present.</p> <p>If the proceedings and deliberations refer to the petition which prayed for the order and which was based on the averments therein and the deliberations are responsive, although briefly stated, to the objects for which the meeting was convoked, a purchaser of minor’s property, ordered sold by said meeting, which was homologated, will be protected. A purchaser of minor’s property, ordered sold by the advice of a family meéting, is not required to inquire into the personal qualifications of the members of the meeting, He has only to look to the regularity of the proceedings and the order homologating the same.</p> <p>The sale of minor’s property without the advice of a family meeting and order of court is null and void, and the'purcliaser is in bad faith.</p> <p>Section 3 of Act 43 of 1882 is not in conflict with Articles 92 and 122 of the Constitution, The duties imposed upon the clerk in said section of said act are ministerial and mandatory,</p>

<p>l. Under the law of Louisiana libel is a quasi offence, actionable under the broad provision of the code, “Every act whatever of man that causes damage to another obliges him by whose fault it happens to repair it.” Spotorno vs. Fourichon, 40 An. 424.</p> <p>2. Our courts are not bound by the technical distinctions of the common law as to words actionable^er se and not actionable perse. Miller vs. Holstein, 16 La. 389; Feraz vs Foote, 12 An. 894; Spotorno vs. Fourichon, 40 An. 424.</p> <p>3. The extent of damage to credit is an inferential fact arrived at only by an examination of all the circumstances in a case and can not be the subject of direct proof. Damages or injury may be inferred from the nature of the words written and from the circumstances under which they were written without the necessity of special proof. Miller vs. Holstein, 16 La. 889; Daley vs. Yan Benthuysen, 3 An. 69; Tresca vs. Maddock, 11 An. 206; Cass vs. BT. O. Times, 27 An. 214; Spotorno vs. Fourichon, 40 An. 424,</p> <p>4. The rule that parties raising objections in the lower court must, at the trial, state their particular grounds of objection — the materiality of the action complained of and the reasons of the judge for his rulings, has not been superseded by the statute authorizing objections to be noted in .lieu of a bill of exceptions. Parties must still disclose everything necessary to enable the appellate court to say that the court below erred.</p> <p>A plaintiff may, for the purpose of proving the allegation of his petition that he has suffered special and general damage as the result of certain letters written and sent out by the defendants, question the parties who received theletters or heard their contents discussed, as to the effect produced upon them by the letters, such evidence not being offered to prove the meaning of the words used nor the innuendo charged, but the substantive fact of damage sustained.</p>

<p>PPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>1. The minor’s legal mortgage on the property of his tutor arises under the ancient law of Louisiana, contained in Art. 3282 of the Code of 1825, now Art. 3314 of the Code of 1870. Skipwith vs. Glathary, 34 An. 28.</p> <p>2. The provisions of law contained in Act 95 of 1869 and Arts. 321 and 322, C. C. of 1870, simply restrict the legal mortgage to the sum named in the clerk’s certificate, and provide for its registry so as to affect third parties, in view of Art. 123, Const. 1868, and Art. 175, Const. 1879.</p> <p>3. During the minority of the pupil, the legal mortgage can only be canceled by a special mortgage on particular property by the advice of a family meeting. 33 An. 49; 19 An. 55; 12 An. 78; 12 An. 361; 5 An. 497.</p>

<p>y^PPLIOÁTION for writs of Certiorari and Prohibition.</p>

<p>1. The facts of the case are fully discussed and the finding of the district judge approved.</p> <p>2. The defence that plaintiff acquired the lottery ticket involved under a contract of sale reprobated by the law of Massachusetts, was not alleged in the pleadings and is not sustained by any proof of Massachusetts law; and, moreover, even if originating in a reprobated transaction, the transaction is completed and the results fully accomplished, and the defendant is such aparticeps crmwnis as can not avail himself of such a defence under the doctrine of Brooks vs. Martin, 2 Wall. 80, and Antoine vs. Smith, 40 An. 567.</p>

<p>1. The facts shown in this case justify and sustain the writs of sequestration and attachment as against the defendant.</p> <p>2. Under the present Constitution, privileges on movables do not require to be recorded, but have the same validity and effect with or without registry.</p> <p>3. Act 89 of 1886 establishing the rank and order of privileges on crops can not be given a retrospective operation so as to give to a pledge of the crop under Act 66 of 1874 preference over an antecedent privilege valid and subsisting at the date of the pledge. The latter takes effect on the property at its date and subjeet to valid antecedent privileges, and the law only refers to privileges arising subsequent to the pledge.</p> <p>4. When a plantation is held by a party under a conditional agreement of sale, with authority from the owner to possess, use and cultivate the same, and under no contract of lease or rent, a merchant who advances and acquires a privilege on the crop under such conditions can not be affected by a subsequent change of arrangements and the execution of a lease creating a lessor’s privilege. The lessor’s privilege only arose after date of lease and took effect on the crop only as it then stood subject to the antecedent privilege.</p> <p>6. Plaintiffs’ right to arraign the transactions between defendant and intervenor are, under the facts of this case, limited to the extent necessary to protect his privilege — they are valid against ordinary creditors.</p>

<p>PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.</p>

<p>1. Notwithstanding the proof shows that the general venire from which both the grand and petit juries were drawn was exclusively composed of persons of the white race, or of Caucasian descent, and did not contain a single colored person, or one of African descent, it does not furnish conclusive evidence of discrimination against the latter, on account of race or color, within the intendment to the Fourteenth Amendment of the Constitution of the United States, it being shown that only eighty names had been added at the term by the jury commissioners to the general venire for the purpose of keeping the general venire box up to the required maximum of 300.</p> <p>2. When the requested special charge to the jury is, that “if from all the facts and circumstances the prisoner honestly believed his life was in imminent danger,” same is fully responded to, and covered by the general charge, which declares that “ if from the acts, declarations and conduct of the deceased, at the time, the deceased had reasonable ground to believe that his life was in immediate danger,” and that “if he had apparent reason to believe, and did believe, that the deceased was about to make a violent attack upon him.”</p> <p>3. It is not sufficient proof of misconduct of a juror to justify the setting aside of the verdict of the jury, that he had taken, during the progress of the trial, a memorandum of parts of the testimony of some of the State’s witnesses, it fully appearing that same was not exhibited to other members of the jury, and was destroyed by him without making use of it himself.</p> <p>4. Neither precept of law or precedent in our own reports justifies the request of the defendant that the State’s counsel shall make written answer to a motion to quash an indictment, either admitting or denying the allegations thereof.</p> <p>5. Under exceptional circumstances it is permissible for the trial judge to correct a statement of fact in a bill of exceptions after same has been signed and filed.</p>

<p>APPEAL from tlie Civil District Court for the Parish of Orleans, King, J.</p> <p>1, Of every municipal corporation, the charter or statute by which it is created is its organic act. Neither the corporation nor its officers cando any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance and lie at the foundation of the law of municipal corporations Dillon on Municipal Corporations, Sec. 89, and cases there cited; See. 457, and cases there cited; Siebrecht vs. New Orleans, 12 An. 496.</p> <p>2, Where the charter of a municipal corporation requires that all contracts for public works shall be let to tbe lowest bidder, after advertisement, the corporation must act in strict conformity to the charter and statutes, and coniine itself to the mode pointed out by law, which mode is the measure of its powers, otherwise the action of the corporation will be void. Dillon on Municipal Corporations, Secs. 446, 467, 468; Peoplc^s. Gleason, 121 N. Y. (Court of Appeals), 6B4, 635.</p> <p>3. When contracts for public works are prohibited by the charter of a municipal corporation to he let, except to the lowest bidder, after full and free competition, no practical competition is possible where there can be but one bidder, because of a monopoly possessed by that bidder. To hold otherwise would be a farce on justice, and will not, therefore, be tolerated by the law. Nicholson Pavement Company vs. J. B. Painter, 65 Cal. 699; Nicholson Pavement Company vs. John Fay, 65 Cal. 695; Dean vs. Charlton, 23 Wis. 590; Burgess vs. Jefferson, 21 An. 143; Barber Asphalt Company vs. Gogreve, 41 An. 251; Buckner vs. Hart, Circuit Court of Appeals, Fifth Circuit, not yet reported; Sherlock vs. Village, etc,, 68 111. 530.</p> <p>4. -An injunction will issue to prevent the carrying into effect of an ordinance passed by a municipal corporation which is beyond the scope of its powers or prohibited by statute, whether passed under the pretence of observing the forms of law or not. Also, to prevent an illegal diverson of public funds. Kerr’s Injunction, ch. xxiv, 5, pp. 572 et seq.t also Note 1 to same; People vs. Mayor, etc., of New York, 32 Barb. 35; High on Injunctions, Secs, 1241, 1275 and 1287.</p>

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

King, J. ' The law requires that contracts should be carried out in good faith. Custom can not be pleaded against an express contract. The contract is the law between the parties — their rights aiuVobligations are to be determined by it. 29 An. 156; 21 An, 679; 15 An. Í36. An agent to whom is given the power of administration can not abandon or renounce a right of his principal, for the renunciation of a right is the exercise of a right of ownership.

<p>APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.</p>

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

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

<p>APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.</p>

<p>1. Although plaintiff and defendant were both residents of the same parish at the inception of the suit, yet if plaintiff subsequently removes to a different parish the defendant having a cause of action against him is not compelled to follow him at his new domicil, but under Art. 375, C. P., may bring his demand by way of reconvention in the original suit, provided, at least, he. does not thereby retard or delay the progress of plaintiff’s action.</p> <p>2. The object of the proviso to C. P. 375 is to secure a common forum for the setflement of controversies between the same parties, and to dispense a defendant who has been impleaded in the court of his domicil from the necessity of seeking his adversary in a ¡different forum in order to propound an action against him.</p> <p>3. The question as to the forum in which the reconventional demand may be urged depends on the conditions existing at the time when it is filed.</p>

<p>1. Prohibition is not a writ of right, and in cases where the jurisdiction is even doubtful, it is not readily granted when there exists an adequate remedy by appeal.</p> <p>The nature of a cause of action is not to he confounded with its sufficiency. The nature of the action determines jurisdiction and when that sustains the jurisdiction the latter can not be defeated by mere insufficiency of the allegations or of the proofs.</p> <p>3. The petition in this case alleges acts committed under the present as well as under the former terms of relator in office; and even if the latter were open to relator’s exception (on which we express no opinion), that would only eliminate them from the petition, without abating or defeating the action.</p> <p>If the respondent judge has committed error in overruling relator’s exception , that error does not lie in maintaining jurisdiction, but in sustaining a partially insufficient cause of action; and for such error the only appropriate relief would be by appeal.</p>

<p>A party confined in jail under a decree o£ a competent court is not entitled to an absolute and immediate release from confinement upon making a surrender of bis property and upon obtaining the judge’s order of acceptance thereof. He must await the action of the meeting of his creditors.</p> <p>Non constat that his cession and discharge may not be successfully opposed.</p>

<p>It is no longer an open question that certiorari can only be resorted to when proceedings are absolutely null.</p> <p>It can not be made use of as a substitute for a motion to dismiss an appeal antecedent to the return day thereof.</p>

<p>Under tlie general welfare clause to be found in all municipal charters, which is often implied from the other powers granted, the city or municipality can not enlarge these powers further than necessary to carry into effect the specific power granted.</p> <p>All that the city of New Orleans can do in relation to boilers and steam machinery, under its charter, is to locate them, so that in case of explosion they will do the least injury.</p> <p>Ordinance No. 6647, “ an ordinance providing for the inspection of steam boilers, tanks, pipes, apparatus, etc., and to create a board of examiners and inspectors of engineers in charge of same, and to provide for penalties,” is illegal, null and void.</p>

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

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

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

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

<p>There having been no note of the evidence taken at the trial, except that which counsel has summarized and incorporated in a bill of exceptions, we feel bound, under repeated decisions, to accept the judge’s statement in case of any variance between them. And the statement o£ the judge being that the confession of the accused was free and voluntary, it was admissible in evidence.</p>

<p>Act 35 of 1880 authorizes the district attorney to file information in the office of the clerk of the District Court, when not in session, in all eases where the penalty is not imprisonment at hard labor or death. His duty in filing such information is not limited to those held in custody by the sheriff.</p>

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

<p>A juror who states that he has formed an opinion as to the guilt o£ the accused from talking with a witness for the State, but that he can disregard that opinion and render a verdict in accordance with the law and the testimony adduced on the trial, is a competent juror. State vs. Dugay, 35 An. 327, affirmed.</p> <p>In a motion for a new trial the unsworn statement of the accused as to newly discovered evidence is not sufficient. It must be corroborated. The granting of new trials is largely within the discretion of the trial judge, which will not be disturbed unless manifestly erroneous. State vs. Washington, 3G An. 311, affirmed.</p>

<p>Where a party has been prosecuted by the municipal authority of the city for fighting and disturbing the peace; this is no bar to a prosecution for the same offence by the State.</p> <p>The statement of the judge copied in the bill of exceptions is not questioned; if it were it would not avail the defendant in his defence, for this court will not review the evidence in the record to determine whether the venue of the crime was proved.</p>

<p>While we have recognized the practice, in cases of ambiguous jurisdiction, of taking appeals at the same time from District Courts to the Circuit Courts of Appeal and to this court, parties availing themselves of this privilege subject themselves to the risk that if the first appeal shall not be determined by the court in which it is lodged prior to the return of the second appeal, the latter necessarily lapses.</p> <p>It is a legal impossibility that there can be two appeals, by the same party, from the same judgment, pending at the same time in two different courts.</p> <p>The Circuit Court to which the first appeal was returned had exclusive authority to determine primarily its jurisdiction over the appeal, and. until it has declined jurisdiction or has been denied jurisdiction under an appeal to the supervisory jurisdiction of this court the pendency of the appeal is a bar to the prosecution of an appeal, involving the same subject matter, to this court.</p> <p>Appellees who are held in the Circuit Court under the appeal still pending there, can not be, at the same time, impleaded in this court under the second appeal.</p> <p>Appeal dismissed without prejudice to right of new appeal in case the Circuit Court shall decline or be denied jurisdiction.</p>

Ellis, J. The administratrix represents both the creditors and the heirs. 85 An. 1010. A real sale can not be attacked by creditors except by a direct action. 39 An. 488 and authorities cited. Parties and their heirs and assigns can only assail the validity of an authentic act by a counter-letter or answers to interrogatories on facts and articles. 42 An. 735 and authorities cited.

Richardson, J. In an opposition by a third person claiming property seized, the only issue raised by him is the fact of ownership. 12 An. 341; 15 An. 136. The only question that can be raised by a party when enjoined, who has caused a direct seizure of certain property in the hands of a third person, is simulation of the title by which it is held. A real title, however fraudulent, can not be thus collaterally attacked.

<p>APPEAL from the Sixth District Court, Parish of West Carroll. Ellis, J.</p> <p>1. Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it. O. 0.2815,</p> <p>2. In an action of slander the only possible defences are: either a denial or a justification, or a confession under mitigating circumstances. R, S. 3640; 14 An 406; 15 An. 166; 86 An. 469; 38 An. 162.</p> <p>3. There is no such thing in law as a half-way justification. Townsend, Libel and Slander, Par. 212, and note.</p> <p>4. Charging plaintiff with being a rogue is slanderous, and actionable, as tending to his infamy, discredit and disgrace. Starke on Slander,Yol. 1, Pars. 12,13,14,15, 16,«17; O. O. 2316, 2315; 14 La. 3S9; Miller vs. Halstein, 12 An. 894; 23 An. 280; 36 An. 469; 38 An. 162; 6 An. 779.</p> <p>5. The us'e of opprobious epithets implies malice, where they are slanderous per se, which reflect upon and bring into contempt and disrepute the honor of a female of good social standing, and suffices to maintain an action in damages without proving special damage. Starke on Slander, Vol. 1, Preliminary Discourse, Pars. 13, 14,15, 16,17; 11 An. 206; 33 An. 914; 38 An. 162; 43 An. 967.</p> <p>6. Malice implied in the use of opprobrious charges do not mean a spite against the individual, but mains animus, a wanton disposition grossly negligent of the rights of others. 11 An. 206; 86 An; 469.</p> <p>7. Malice is an imputation of the law from the false and slanderous nature of the charge. Legal malice need not be proved. 3 La. 207; 2 R. 365; 5 R. 116; 8 R. 51; 25 An. 170; 36 An. 467.</p> <p>8. The maliciously calling a woman a damned whore is actionable. Starke, Yol. 1, Pars. 12 to 17; 6 An. 779; 16 La. 389. Where the law implies malice — i. e.,.where thewords are slanderous perse, damages arerecoverable without proof of special injury. 14 La. 198; 16 La. 389; 12An. 894; 23 An. 280; 25 An. 175; 27 An. 219; 29 An. 172; 36 An. 469; 3S An. 162; Sedgwick, Measure of Damages, Par. 39; 34 An. 914; C. C. 1934.</p> <p>9. Malice is implied from the circumstances of the case; from the conduct of defendant; from the nature and falsity of the charges; from the injury necessarily consequent thereon. Both malice and injury may be inferred from the nature and falsity of wrongful act without lawful justification or excuse and from want of probable cause. Starke, Pars. 212, 213, 215, and cases cited; 40 An. 423; 27 . An. 214; 11 An. 206; 16 La. 389; 3 An. 69.</p> <p>10. Intemperance, or drunkenness, is not a defence to an action of slander, Townsend, Libel and Slander, 249; Ogden on Libel and Slander, 169; 5 111. 30; 25 Iowa, 87; 38 An. 163.</p> <p>11. Where a party circulates defamatory charges onmererumor, he can not screen himself by proof of such rumors. 15 An. 492.</p> <p>12. Every person has a right to enjoy that degree of respect, good will and social and business distinction to which his own acts and his social and business habits entitle him, and any one who unlawfully interferes with his right, by circulating scandalous reports, renders himself liable for consequent damage. Starke on Slander, 99, No 2.</p> <p>13. Injuries to the feelings and to one's social standing are not susceptible of precise adjustment, but such injuries are recognized as a legitimate ground of action for reasonable indemnity. 17 An. 64; 19 An. 322; 23 An. 280; 38 An. 162; 43 An. 967.</p> <p>14. This court has granted the following sums as reasonable compensation, in the following cases of slander and libel, viz.: In Green vs. Harvey (14La. 204) the compensation allowed plaintiff for,slanderous charges of forgery was $450; that award to the plaintiff (in 16 La. 198) for the charge of being a rascaí and of false swearing was $500; that allowed the plaintiff in Cook vs. Tardos (6 An. 679) for being called a thief was $400; the amount awarded to theplaintiff in Williams vs. McManus (38 An. 161) for being called a damned whore was $500; the amount allowed the plaintiff in Sportorno vs. Bourehian (40 An. 423) for the circulation of the slanderous report that he was a negro was $500; the amount awarded plaintiff in Morhenan vs. Ohse(17 An. 64) iorhavingbeen denounced as a damned thief was $1000; the amount allowed plaintiff inBaunm vs. Elliott (19 An. 322) for slanderous-and defamatory words was $1000; the amount allowed plaintiff in Savoie vs. Seanlan (43 An. 967) for being called a rogue was $300.</p> <p>15. Under the law and jurisprudence of this court appertaining to libeJ, and slander, these are mixed questions, of law and fact, of which courts are better judges than jurors are. 43 An. 967</p> <p>1. Malice in eases like the present is an essential ingredient; for if it appear* that the words, though slanderous, were spoken wholly without malice (and of this the jury are to judge) the defendant will be entitled to a verdict. Starke on Ev., Part 4, p. 867, also 2 B, 365.</p> <p>2. Where the declarations of the defendant concerning the plaintiff appear to have been uttered without malice, and under circumstances from which no malice is in law implied, they carry with them no pecuniary responsibility. 8 An. 130.</p> <p>3. In an action in damages for slander the burden falls on the plaintiff of showing that the language complained of ivas used by tne defendant, and with malicious intent. 21 An. 308.</p> <p>4. If the circumstances oí the speaking were such as to repeí the inference that the words were uttered with malicious intent, and exclude any liability of the defendant unless upon proof of actual malice, the plaintiff must furnish such proof. Greenleaf on Ev., Vol. 2, p. 337.</p> <p>5. If the charges arq false, injv/i'ious and made maliciously (or malo animo) they combine'all the elements essential to support the action. 40 An. 424.</p>

<p>Same as in case cited in opinion.</p>

<p>APPEAL from the Fifth District Court, Parish' of Morehouse. Richardson, J.</p>

<p>APPEAL from the Fourth District Court, Parish of Caldwell. Wear, J.</p>

Richardson, J. Exemption from taxation of persons or property is not in contravention of Arts. 203, 205 and 207 of the Constitution, so long as no injury flows therefrom. 44 An, 863, The provisions of said Arts. 203, 205 and 207 apply to general taxation only, and not to special assessments or taxes voted for local improvements. 3 Wash. 84; 27 Pac. 1077.

<p>APPEAL from the Eighteenth District Oourt, Parish of Terrebonne. Caillouet, J.</p>

<p>1. The decisions in cases ol State vs. Onmaclit, 10 An. 198, and State vs. Mason, 32 An. 1218, affirmed and applied.</p> <p>2. A special charge to the effect “ that to And the accused guilty of murder, it is necessary that a malicious intent to kill existed at least Ave minutes before the killing,” was correctly refused. There is no human gauge by which the duration of intent can be measured. If the killing was with the malicious intent to kill, the case was one of murder, although that malicious intention was formed at the moment of striking the fatal blow.</p> <p>3. A charge which assumes that drunkenness is so inconsistent with malice that when shown to exist at the time of the killing, it becomes the duty of the State to seek for it at a period anterior to the drunkenness and to show affirmatively that the drinking was for the purpose of committing the deed, is palpably false.</p> <p>4. It does not necessarily follow that a homicide was not murder because done in sudden passion. There are many cases where that fact would entitle an accused neither to an acquittal nor to a verdict of manslaughter.</p>

<p>There is no occasion for the postponement of the trial of a motion for a change of venue, to enable an accused to obtain the attendance of an absent witness, and cause his testimony to be reduced to writing for the purpose of having same annexed to a bill of exceptions, when the trial judge concedes the statement as made, and actually incorporates same into defendant’s bill of exceptions. Had there been a difference of opinion as to the facts such witness could swear to if present, the accused would have had the right he claimed.</p> <p>■2. In ease the accused desires a witness to he called and sworn on the trial of such-a motion, and it appears that he is, at the time, on a jury having under consideration an important criminal case, the judge exercises proper discretion in refusing such application, the testimony being of like character as that of numerous other witnesses residing in the same ward of the parish who had been already sworn, and, therefore, only cumulative.</p> <p>3. An immaterial and trifling variance between the copy of the venire that is served on the accused and the original jury list will not vitiate the service.</p> <p>i. The allowance vel non of a continuance of a criminal cause is matter for the sound judicial discretion of the trial judge, upon the case made on the defendant’s motion, and its exercise will not be disturbed except for .cogent and manifest error.</p> <p>5. An offer of compromise of a crime, unaccepted by the prosecutor, may be proven by the Slate as an admission of guilt, or as disclosing possession of the property which is the subject of the burglary and larceny charged in the indictment.</p> <p>‘6. The ruling of the trial judge, disallowing a new trial, will not be examined and passed upon, unless a bill of exceptions is reserved to its refusal.</p>

<p>APPEAL from the Seventeenth District Conrt, Parish of Lafayette. Allen, J.</p>

<p>PPEAL from the Nineteenth District Court, Parish of Iberia. VoorhieSy J.</p> <p>Iso one can be compelled to hold property with another, unless the contrary has been agreed upon, and any one has aright to demand the division of a thing held in common by the action of partition. O. 0.1289; 43 An. 1118.</p> <p>All rules established in Chapter 1, Sec. 1 of C. C., except such as relate to collations, are applicable to partitions between co-owners. C. 0.1290 ; 36 An. 318.</p> <p>A partition may be sued for by any heirs, testamentary or ab intestato, by any universal legatee under a universal title. C. C. 1307.</p> <p>.The action of partition can be instituted by any co-owner holding property in common from whatever cause he may hold, and even by a possessor when his possession is lawful and proceeds from a just title; yet among co-heirs or co-proprietors it is not actual possession of the thing to be divided, but the •ownership which forms the basis of the action. C. C. 1308, 1309 and 1320.</p> <p>After the death of the mother the surviving father is of right the tutor of his minor children. C. C. 250.</p> <p>When the father of the minor becomes the natural tutor, his oath of office is a sufficient compliance with the law and the only precedent condition in order that he may exercise the function of that office. C. B- 949; 10 La. 98; 2 An. 71; 3 An. 362; 20 An. 64; 12 R. 636.</p> <p>When the petition for appointment sets forth that all the requirements of the law have been complied with, and on the allegations thus made the judge of the court competent to appoint the tutor makes the appointment, it is regular upon its face and can not be collaterally attacked. 5 An. 598; 36 *An. 533.</p> <p>Tlie appointment of a tutor made by a court of competent jurisdiction can not be regarded as absolutely null and void. 5 An. 182; 25 An. 51; 35 An. 591.</p> <p>Art. 321, C. 0., must be construed with Art. 301, O C., which last article provides for the removal of a tutor upon his neglect to record the minor’s legal mortgage. As the non-reeordafcion of a mortgage is a ground for the removal of a tutor, and as the tutor can not be removed unless he be first appointed, the non-recordation being a ground for removal precludes the idea that the order appointing him was wholly inoperative and void. 36 An. 533.</p> <p>To institute partition suit on behalf of a minor his tutor must be authorized by the judge on the recommendation of a family meeting. O. C. 1312.</p> <p>The proceedings of a family meeting recommending the suit and the authorization of the judge based on their recommendation are not void, because the petition for the family meeting was filed one day in advance of the date on which the natural tutor qualified when the order for said meeting was granted on the same day that said tutor qualified, and when said meeting was held on the same day, April 30, 1892, and the proceedings homologated two days later, to-wit: on the second day of May, 1892, and the order of the judge is granted on May 3, 1892.</p> <p>When the property is indivisible by its nature, or when It can not be conveniently divided, the judge shall order it sold. O. 0.1339, 1310.</p> <p>In a suit for partition all co-owners must be represented or the. action will fail. H. I>. 1076, No. 7;B. D 501.</p> <p>The appointment of a natural tutor before the registry of the abstract of inventory and the exhibition of a certificate,showing this,to the judge,is an absolute nullity. Acts 1869, No. 95, Sec. 2; O C. 321; Succession of Arlaud, 12 An. 518.</p> <p>The tutor is forbidden to enter upon his duties until lie shall have taken the oath. B. O. C. 331 and 335; 11 K. 503; 12 B. 636; 3 An. 562; 20 An. 61.</p> <p>lie is equally forbidden to interfere with the property of the minor until letters of tutorship have been delivered to him. B 0.0 331 and 335.</p> <p>In cases involving the alienation of the property of minors an adjudicatee will not be coerced to accept a title suggestive of future litigation. 10 An. 571; 10 An. 817.</p> <p>In such cases the adjudicatee is not confined to the mere superficial aspect of the succession record, but may inquire into the regularity and propriety of the appointment of the tutor. James vs. Meyer, 11 An. 1100</p> <p>One who has taken possession of an estate as a succession representative under orders of court provoked by himself can not change the nature and character of his possession by any act purely his own, but must invoke proper authorization of the court under whose appointment lie is acting to so change his title and possession. Succession of Townsend, 37 An. 105; 38 An. 861; Webb vs. 3Cel-ler, 39 An. 65; Succession of Frazier, 35 An. 382; li. C. C. 3116, 3511 and 3111.</p> <p>Tutorship is a personal trust. 3 An. 318; It. C. O. 315.</p> <p>The tutor, who is at the sametimeasuccession representative, does not entorupon his functions as tutor quoad the property of the estate, nor does the property pass to him as tutor until he has, under proper judicial authorization, terminated his functions as succession representative. Succession of Scarborough, 13 An. 315; same, 11 An. 293.</p> <p>An executor’s first duty is to administer the estate and to reduce it to the residuum, that belongs to the heirs and legatees; until then, ho can not, if tutor, sue for a partition. 19 An. 291; 22 An, 309; 1 B. 111.</p>

<p>Same as that in suit of same title, No. —■.</p>

<p>In directing proceedings against the tutor for his removal from the tutorship, the under-tutor is the proper person to commence the action. The judge, on information furnished him as to the necessity of the tutor’s removal, can only appoint a curator ad hoc when there is no under-tutor.</p> <p>When it is brought to the judge’s attention that the funds of the minor have been sent beyond the State, he should at once direct the under-tutor to take necessary steps to protect the interest of the minor.</p>

<p>APPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J. ■ ■</p>

<p>The verdict of the jury in insolvency proceedings characterized the cession made as fraudulent.</p> <p>The property o£ the insolvent did not thereby again become liable to seizure under execution or by attachment of individual creditors.</p> <p>The interest of the mass of the creditors is not dependent upon the opinion of the majority in number and amount of the creditors, not legally expressed. The restraining order remains. Other proceedings must be taken and meeting of creditors held.</p> <p>The surrender is made to the creditors, who have the right to sell the property for their benefit; that right can not be defeated by the fraudulent acts of the debtor.</p>

<p>APPEAL from the Eleventh District Court, Parish of St. Landry. North Oullom, Judge ad hoe.</p>

<p>APPEAL from the Eleventh District Court, Parish of St. Landry. North Gullom, J.</p>

<p>1. Whatever the secret equities between a vendor and vendee, and whatever their rights as between themselves, the former, who has placed on the public records a title valid on its face, can not urge such equities against a bona fide purchaser for value from the vendee, who acted on the faith of such recorded title.</p> <p>2. This principle applies to married women who, in the exercise of powers conferred by law, have executed apparently valid sales of their paraphernal property.</p> <p>3. The fact that the vendor has retained possession of the property sold might, in some cases, suffice to put the subsequent purchaser on his guard and impugn his good faith, but such fact loses all significance when his purchase has been made with the full knowledge and approval of the vendor and under her assurance that the vendee had the full right to dispose of the property.</p> <p>4. The protection accorded by the law to married women can not be distorted into a means of defrauding innocent persons_who have acted upon the faith of titles passed by them, apparently valid and fully warranted by law, and of their own representations to the same effect.</p>

<p>1. Tlie Constitution defines the jurisdiction of justices of the peace and confines it to action as committing magistrates, having power to bail and discharge in certain cases.</p> <p>2. Justices of the peace have no jurisdiction to enforce penalties of fine and imprisonment imposed for violation of* parochial ordinances by criminal proceedings inaugurated by ordinary civil process and citation.</p> <p>8. An ordinance conferring such jurisdiction on justices of the peace is illegal and unconstitutional, and proceedings in exercise thereof are null and void.</p>

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

PPEAL from the Eleventh District Court, Parish of St. Landry. l Perrault, J. 1. A plea of discussion in a hypothecary action is a dilatory plea and comes too late after default or answer filed. 34 An. 962. 2. A dilatory plea is waived by referring it to the merits without objection. 39 An. 624; 35 An. 284; 34 An. 966; 26 An. 312. 3.

<p>A plaintiff in a petitory action against a party in possession of the property, exhibiting title, must recover on the strength of his title. Resting his title on a tax deed, he must not only show a prima facie title, but one absolutely good. The recital in a tax deed that all the requisites of law were complied with will not excuse the production of proof aliunde that the essentials prerequisite to the sale were complied with.</p> <p>The effort of plaintiff in a petitory action to sustain his title by a plea of prescription against an attack thereon by defendant can not be countenanced.</p> <p>Where two parties claim the same property, under different conveyances, and one of them leases the property from the other, he abandons his title and can not afterward set up the same title against the party from whom he leased the property.</p> <p>In tax sales under the Revenue laws as they formerly existed, notice to the taxpayer was an essential prerequisite to the seizure and sale. Where thelawproyided that a curator ad hoc must be appointed to the non-resident tax-payer, upon whom notice was to be served, the failure to have such curator ad hoc appointed renders the sale absolutely null and void.</p>

<p>APPEAL from the Seventeenth District Court, Parish of Vermilion. Allen, J.</p>

<p>Plaintiffs’ judgment is for an amount less than two thousand, dollars.</p> <p>The judgment prayed for, to rescind and annul the conveyance of their debtor, was revocatory and not en declaration de simiclation.</p> <p>In a revocatory action the test of jurisdiction, is the amount claimed by the creditor, and not the value of the property, the sale of which the plaintiffs seek to have revoked.</p>

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

<p>1. An appeal bond which is executed by the defendant, in his individual and personal capacity, does not respond to an order of appeal granted in favor of the same person in his fiduciary capacity of administrator of a succession.</p> <p>2. An appeal bond in the recitals of which no mention is made of the suit in which the judgment appealed from was rendered, either by number, title, amount, character or court, specifically, or in substance, does not conform to the requirements of the law.</p> <p>3. Were an adverse judgment rendered against the appellant by this court, there would be nothing discoverable on the face of the bond which could connect such decree with the one appealed from, or which would enable the lower court to fix the liability of the sureties of the appellant.</p>

<p>The value of the right involved is within the jurisdiction of this court, as alleged and supported by the inventories taken of the assets of the succession.</p> <p>If heirship be specially denied it must be proved in order that the heir may maintain his action.</p> <p>A notary public before whom a will was executed may be examined as a witness in opposition to testimony admitted to impeach the verity of his act.</p>

<p>1. Injunction to restrain the execution of an order of seizure and sale by the debtor, only lies in cases prescribed by Art. 739, C. P.</p> <p>2. The legal representative of the deceased debtor stands in the latter’s shoes and has no other or greater rights than his.</p> <p>3. Insufficiency of the authentic evidence on which the order issued is no ground for injunction; the remedy is by appeal.</p> <p>4. Inability to furnish a suspensive appeal bond furnishes no title to relief by injunction.</p>

<p>Where a wife who has made a donation inter vivos of all her property to her husband without reserving anything in the act for her subsistence, dies without having either revoked or attacked the donation as being violative of Art. 1497 of the Civil Code, the right of attack does not pass to her collateral heirs cut dies with her.</p>

<p>1. It is settled law in this State that rulings of the trial judge on questions not submitted to the jury, but to the judge alone, and involving blended issues of law and fact, are reviewable in this court, on the facts as well as on the law provided the testimony has been reduced to writing and embodied in, or attached to, the bill of exceptions taken to the ruling.</p> <p>2. To entitle an accused, as matter of right, to new trial, on the ground of nonage of a juror, he must prove affirmatively three facts, viz.: (1) the fact of nonage; f2) that this fact was unknown to accused or his counsel until after verdict;'(3) that the juror was questioned as to his age on his voir dire, and falsely answered that he was of the age required by law.</p> <p>3. The accused have the constitutional right to a trial by jury, by a jury of twelve men possessing the qualifications required by law, and when they show, by proof of the above facts, that they have been deprived of this right, notwithstanding the exercise of all due diligence to secure it, and by deception, they are entitled to relief, even after verdict.</p> <p>í. The evidence in this case was reduced to writing, and is regularly brought up as part of the bill of exceptions taken to the judge’s ruling refusing the new trial. There is no dispute as to actual nonage of the juror and as to its discovery only after verdict, and the evidence of ten unimpeached witnesses who swear that they heard the juror questioned as to his age and his answer that he was twenty-two years old, can not be overcome or even shaken by the negative testimony of five witnesses who say they did not hear the question or answer though admitting the possibility that it might have been asked and answered and not heard, or, if heard, forgotten by then!.</p>

<p>APPEAL from the Seventeenth District Oourt, Parish of St. Mary. Allen, J.</p>

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

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

<p>A jury commissioner having been sworn, and the oath having been lost, parol testimony as to the fact of the commissioner’s having taken the oath is admissible in evidence.</p> <p>The failure of the’clerk of court to record the oath can not disqualify the commissioner. The fact of qualification is the test of thecapacity of the commissioner to serve, and the failure of the clerk to reduce the oath to writing and to record the same can not defeat public justice by interimpting judicial proceedings.</p> <p>The fact whether or not an overt act of hostility of deceased against defendant has been proved, preparatory to the introduction of evidence as to communicated threats or the dangerous character of deceased, is within the discretion of the trial judge.</p> <p>Parties visiting the grand jury on business before them, when nothing is said or done in relation to defendant’s case, can not prejudice the defendant, and he has no cause of complaint.</p> <p>A person having knowledge of the commission of a crime has the right, without being summoned, to go before the grand jury and disclose his knowledge of the commission of said crime.</p> <p>A juror who on his voir dire states that he would qualify his verdict in all capital cases is an incompetent juror to serve on a jury in a case where the defendant is charged with murder.</p>

<p>A list of additional jurors drawn by the order of court by the jury commissioners to supply deficiency of regular panel, to serve on defendant’s case, must be served on him in accordance with Section 992, Revised Statutes.</p>

<p>APPEAL from fche Tenth District Oourt, Parish of Natchitoches. Andrews, J.</p>

<p>APPEAL from the Fourth District Court, Parish of Jackson. Wear, J.</p>

<p>In capital cases, where the jurors have separated and the sheriff, or his deputy has failed to properly keep them in charge, abuse and misconduct will be presumed and the verdict will be set aside.</p>

<p>APPEAL from the Fourth District Court, Parish of Grant. Wear, J.</p>

<p>APPEAL from the Fifth District Court, Parish of Morehouse. Richardson, J.</p>

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

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

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

<p>1. On cross-examination of an accused, upon matters not legitimately to be asked in rebuttal, but which it is claimed might properly be asked by way o£ impeachment or attack upon the credibility of the witness, prosecuting attorneys should announce the object and purpose of their questions, and oiler to restrict the effect of the testimony.</p> <p>2. Not only error but injury must be alleged and shown to justify the reversal of a judgment.</p>

<p>APPEAL from the Ninth District Court, Parish of DeSoto. Ball, J.</p>

<p>APPEAL from the Ninth District Court, Parish of DeSoto. Sail, J.</p>

<p>^PPLIOATIONfor writ of Prohibition.</p>

Taylor, J. 1. The sureties on the bond of an officer can not avail themselves of laches or omissions of other officers in the performance of duties imposed by law as a ground of discharge of their own liability. The ineligibility or disqualification of their principal is no defence. State vs. Powell, 40 An., p. 237, and authorities there cited. 2.

<p>Mortgages can be executed to secure an amount to become due.</p> <p>The authority of an officer to bind a corporation in the management of its ordinary business, may be fairly implied.</p> <p>There being no proof nor allegation of fraud or unfair dealing, the plaintiff, a third person, can not require an imputation of payment between creditor and debtor to be changed.</p>

<p>The trial judge will not be ordered to sign a bill ot exception which contains a statement that witnesses ior the defence testified exonerating the accused, the judge averring in his return to the writ of mandamus that the statement does not comport with the facts proven on the trial, and that he is willing to sign a proper bill.</p>

<p>Under Art. 898, Code of Practice, relief will be granted only from the effects of such mistakes, omissions and similar irregularities as arise without fault on part of appellant.</p> <p>Where the transcript is grossly defective the appeal will be dismissed.</p>

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

<p>Same syllabus as in Odom vs. Railroad, decided this term.</p>

Taylor, J. 1. The specific acreage and produce taxes authorized by Act No. 74 of 1892 are not taxes in the strict legal sense, but “local assessments” or “forced contributions,” requiring no constitutional warrant, but rest for their validity on an inherent function of government, are enfranchised from the restraints of the Constitution, but are subjected to the limitation of commensurate benefit to the particularized property on which said assessment or contribution is…

APPEAL fi’om the Civil Distinct Court for the Parish of Orleans. King, J. 1. Personal property has no situs but that of the owner, and its transmission by contract, inheritance or will is controlled by the law of the domicil of said owner.

<p>1- The Civil District Court for the parish of Orleans is a court of record of original general jurisdiction, and is not an “inferior court,” in the technical sénse of that term. It has the power and authority to punish for contempt of court, and though theproceedings in casos of constructive, differ from those in cases of actual contempt, the power of that court, under proper proceedings, extends to both.</p> <p>2. The general rule is that where a publication in a newspaper being read by jurors and attendants on the courts would have a tendency to interfere with the proper and unbiased administration of the laws in pending cases, it may be adjudged a contempt and accordingly punished.</p> <p>3. Where an article of that character has been published, the resulting liability or responsibility is not limited to a civil action for damages by the individuals who might he injured thereby. Irreparable injury not to he compensated in money would make such a limited remedy totally inadequate to meet the requirements of the situation and would ignore a consideration of the question as affecting public morals and public interests.</p> <p>L Where the Civil District Court has pending before it a matter within its jurisdiction and it is charged that a certain publication is of such a character as to render the publication a contempt of court, the article complained of is, on trial of the charge, presented to it as a piece of evidence in support of the charge, in connection with other testimony, and on the evidence, as a whole, the court acts. The subject matter being within the jurisdiction of the court, some publications being liable to be adjudged an abuse of the liberty of the press and some not, and the conclusions to be reached being dependent upon the evidence submitted, the Supreme Court will not go behind those conclusions and inquire into their correctness on that evidence, under writs of prohibition and certiorari.</p>

Voorhies, J. 1. Revised Statutes of 1870, Sec. 818; Blass vs. Gregor & Wilson, 15 An. 421; 9 R. 387, 418; 9 An, 219; 1 Hennen, p. 823, No. 7; 824, No. 20. 2. The use of criminal process to enforce a civil claim is an intolerable abuse, even where the claim exists. But if the claim be unfounded it shows a recklessness of the rights and character of others which amounts to malice.

Théard, J. A private sale within the meaning of Acts 184 of 1869 and 25 of 1878 is one which is not preceded nor governed by the articles of the Civil Code and the formalities in relation to judicial partitions. The order to sell at private sale is not violated if, by consent of all parties, and in order to obtain the best price possible, the property is advertised for sale and cried at auction and adjudicated for a price and on terms fixed by the family meeting.

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

<p>So far us the right of the State to pursue and punish a criminal is involved, the subsequent ratification of the act by the party injured will not bar a prosecution by the State.</p>

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

<p>1. Private property can not be taken unless for purposes of public utility. Wbat constitutes public utility and public purposes is for the courts to determine.</p> <p>2. Under Act 132 of 1890, expropriation suits may be tried in vacation.</p> <p>3. Where the proceedings are not void on their face, and show no arbitrary action on the part of the respondent judge, the writ of certiorari will be refused.</p>

<p>1. A judge who refuses to grant an appeal in an appealable case, on the ground that the issues raised had been repeatedly determined by the Supreme Court adversely to the contention of the parly moving for the appeal, and that the applicant was through his motion seeking to abuse the right of appeal acts unjustifiably. He has nothing to do with the motives prompting the exercise of the legal right nor the final result of the controversy.</p> <p>2. Though the rulings of a judge in a cause be erroneous he is protected in that cause from liability for resulting costs, from motives of public policy.</p>

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

<p>A mandamus proceeding to compel the erasure of tax inscriptions from the mortgage records on the ground that same were improperly assessed involves the tax and not the property; and in ease the amount of the taxes is less than $2000 this court has no jurisdiction ratione material.</p>

<p>1. The mortgagor is not an essential party to a third opposition by a mortgagee contesting the validity and rank of other mortgages, and an answer on his part is in the nature of an intervention — he having not been cited.</p> <p>2. In case the same person is sued by same plaintiff in two different courts at one and the same time, for the same cause of action, and without tendering the declinatory exception of litts pendens, answers both demands, the first judgment rendered by either court would be valid and executory against the party cast in the action.</p> <p>5. The Federal jurisprudence on this question is the same as our own.</p> <p>4. The judgment of the court a qua having decreed the cancellation of one of the mortgages contested by third opponent, and this mortgagee not having appealed or filed an answer to the appeal, the is without interest this court without jurisdiction to alter it.</p> <p>6. The same is true of the purchaser who has appealed.</p> <p>6. The judge having directed the sheriff to retain the proceeds of sale subject to the further order of court, and he having acknowledged service and waived citation, the purchaser agreeing to become the stakeholder in his stead and consenting to pay such judgment as may be rendered against him for the proceeds, becomes thereby a party to the suit, and such an agreement is tantamount to a confession of judgment, and no further citation is required.</p>

<p>y^PPLICATION for Oertiorari, Mandamus and Prohibition.</p>

<p>y^PPLICATION for Writs of Certiorari and Mandamus.</p>

<p>The remedy is by appeal, and not by writs of certiorari and prohibition.</p> <p>If the plaintiff does not choose to furnish a bond of release, after ten days have elapsed, subsequent to the sequestration of the property, the defendant is not precluded from the right to bond.</p> <p>The right to bond property sequestered is not suspended by a suspensive appeal from a judgment in which that right is not involved.</p>

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

Martin. Voorlvies, J. 1. In an action against a common carrier for personal injuries received in an accident charged to have been the result of defendant’s negligence, the burden of proof is upon the plaintiff to show the negligence of the defendant, and the want of contributory negligence in himself. 40 An. 786; 31 An. 49; 30 An. 15; Rorer on Railroads, 531; 30 Md. 47; 46 Barbour, 529. 2.

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

<p>In case a party makes application for a respite in the court of one parish, and subsequently to same being granted he permanently changes his domicil to another parish, it is competent for a creditor, complaining of his failure to comply with the award, to proceed, by rule taken in the court of first instance, to compel him to make a surrender under the insolvent law. Act 134 of 1888 amending R. C. C. 3093 is ample warrant for thus proceeding.</p>

<p>1 Acts denounced by Art. 196 o£ the Constitution in a prior term of office, by any officer who is bis own successor, may form the foundation for a suit for removal from office, under Art. 201 of the Constitution.</p> <p>Acts committed by an officer in no way connected with his official condu.et can. not form the foundation for a suit under Art. 201 of the Constitution.</p>

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

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

<p>When a husband appeals from a judgment rendered against him in favor of his wife for a separation from bed and board, and for $1600 for paraphernal funds belonging to her, converted to his own use, the wife is not entitled to have the appeal dismissed quoad the moneyed judgment as being below the constitutional jurisdiction of the Supreme Court.</p> <p>A separation from bed and board carries with it a separation of property. A moneyed demand accompanying an action for such separation is an incident of the main action, and becomes inseparably connected with it as so brought. Repeated acts of drunkenness, followed by occasional spells of sobriety and moderate drinking, with the habit of drinking so fixed that temptation to drink can not be resisted, will constitute habitual drunkenness within the meaning of Art. 128 of the Civil Code. And if it is of such nature as to render the living together oí the spouses insupportable, the complaining party is entitled to a decree of separation from bed and board.</p> <p>Notes given by the husband to the wile for her paraphernal funds used by him are-admissible to prove the indebtedness of the husband to the wife.</p> <p>The husband is bound to support the marriage charges, and the wife can only be called to contribute one-half of the income of herparaphernal effects, of which she retains the administration.</p>

<p>An ordinance of the city of New Orleans stipulating in the-grant or franchise of a street railway company to be operated on St. Charles avenue, between Canal street and Carrollton, as the termini! of its track, that it may charge to persons residing below Napoleon avenue a double far© from Canal street to Carroll-ton, while permitting persons who reside above Napoleon avenue to travel the whole distance for a single fare, is not subject to attack as an unreasonable discrimination prohibited by the law governing the obligations of common car riers.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. King3 J.</p>

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

<p>Where a man keeps house with a woman whom he calls his wife, introduces her into the community in which he lives as his wife, receives friends and relatives at his house asa married man and he and his wife visit them asman and wife, and he is generally known and respected as a married man and has children who are christened as the offspring of this cohabitation, taking his name and are reasonably looked upon as legitimate children, this cohabitation and relationship is presumptive evidence of marriage when there are no facts and no general or partial reputation in the community to show that the cohabitation is illicit. The abandonment of the reputed wife by the husband when such relationship exists is not proof of illicit cohabitation. His declarations that the children are illegitimate, made after the abandonment, and his last will, in which he ignores the reputed marriage, are not sufficient proof to rebut the presumption of marriage resulting from the oral testimony establishing such presumption.</p>

Rightor, J. 1. No liability for libel for words pertinent to the issue contained in a petition filed in a suit. 48 An. 455. 2. No liability for damages resulting from the detention of property under an order of a court of justice. 108 33. O. L. 622, 628; 97 New York, 576. .3.

<p>APPEAL from the Oivil District Court for the Parish of Orleans. J.</p> <p>1. Previous to 1879 there was no constitutional limitation of the rate of municipal taxation, and the city could be compelled to levy a tax and budget funds for the payment of judgments.</p> <p>2. Since 1879 the rate of municipal taxation is limited, and can not be increased except to secure the obligations of antecedent contracts protected by the Federal'Constitution. 32 An. 709, 884; 36 An. 56; 33 An. 79; 37 An. 18; 31 Fed. Rep. 537.</p> <p>3. Courts will not interfere with the legislative discretion of the council in framing the budget of municipal expenses so long as constitutional or legal provisions and limitations are observed. Id.</p> <p>4. Misappropriation of revenues or abuse of legislative discretion on the part of the council not having be.en alleged, can not be urged.</p> <p>5. Under Act 30, extra session of 1877, intended to chect municipal extravagance, the expenditures of each year can not exceed the revenues for that year, and payment of claims must be made exclusively out of the revenues of the year for which they are due. They do not constitute a debt due by the city, but by a particular fund. United States ex rel. Seigel vs. City, U. S. C. C.; Creole Company vs City, 39 An. 981; Paving Company vs. City, 43 An. 471.</p> <p>6. Relator’s judgments are by their terms and by law restricted exclusively for payment to the revenues of 1880,1882,1883, 1884, 1885, 1886 and 1889, and can not under any construction be paid out of the revenues of 1893,</p>

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

<p>1. Where a bail bond is forfeited under Section 1082, It S., and an appeal is taken from the forfeiture to this court, it is settled that this court has jurisdiction regardless of the amount of the bail bond, if the same was given in a criminal prosecution within the jurisdictional power of this court; the doctrine being that in such a case the matter of the forfeiture is attracted to the criminal prosecution.</p> <p>% But the doctrine does not apply to a bail bond given before a recorder of the parish of Orleans for appearance at a preliminary examination before him; such a bail bond not being within the purview of Section 1082, R. S., which applies to the forfeiture of bail bonds for appearances before District Courts having criminal jurisdiction</p> <p>8. A'bail bond for the appearance of an accused ata preliminary examination before a recorder of the parish of Orleans creates a lawful and binding obligation and such a bail bond may be sued upon by a civil action in the Civil District Court for the parish of Orleans. But where the amount of such a bail bond is only $500, this court has no jurisdiction on appeal.</p>

<p>Where the judge ol the lover court fails to pass upon the issue actually before him, and passes upon one not raised by the pleadings and evidence, the judgment will be annulled and the case will be remanded.</p>

<p>Where the judge of the lower oourt fails to pass upon the issue actually before him and passes upon one not raised by the pleadings and evidence, the judgment will be annulled and the case remanded.</p>

<p>Claim being made for damages resting upon an alleged tort, and tlie proof disclosing that they grew out of an illegal provisional seizure of the plaintiff’s property, as that oí a corporation of which he was a shareholder, director and vice president, and of which corporation he had previously become a sub-tenant of the defendant’s property — held, that the purposes of justice will be best sub-served by the affirmance of a judgment for nominal damages in favor of the plaintiff.</p>

<p>1. A municipal corporation, which is a creation of the law and a State functionary,, can exercise only those powers which have been expressly delegated to it, and those which are necessarily implied as inherent to its existence and thus absolutely indispensable for administration and maintenance in the accomplishment of the functions for which it was put in being and given life.</p> <p>2. A municipal corporation has no right to enforce ordinances which it has the power to pass, byline and imprisonment, or other penalty, unless that right has been unquestionably conferred by the law-giver.</p> <p>8. The words oi the city charter, which provide for the punishment of any violations of city ordinances by fine or imprisonment, refer to ordinances which the common council is authorized, in terms, to pass and have executed in reference to the preservation of the peace and good order of the city, and the maintenance of its cleanliness and health; and they also extend to and embrace the ordinances and regulations the common council is authorized to pass with reference to obstructions in the public streets or alleys of the city — same being a necessary police regulation.</p> <p>L Natchez alley, though not a street eonomine, is a locus publicits dedicated to public use, and comes within the terms of the statute and the ordinance.</p> <p>5. A proceeding of this hind is of a quasi criminal character, and in no sense a civil suit involving title to property.</p>

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

<p>The City Council o£ New Orleans has no power to enact an ordinance requiring parties conducting a legitimate business to give bond for the faithful discharge of duties connected with said business, and to answer in damages to any one who may be injured in dealing with persons conducting such business.</p> <p>Ordinance 6609, Council Series, is null and void, being illegal and unconstitutional.</p>

<p>Property in the hands o£ a receiver, acting under the orders o£ the court, can not be seized by a creditor.</p> <p>The office o£ an attachment or sequestration is to seize and hold property until the further orders of the court. Being already in the hands of an officer of the court, for distribution among creditors, the object to be accomplished by a seizure is attained. &. creditor basing his rights on property in the hands of a receiver appointed by the State court, on writs issued from a Federal court, which are referred to the State court having jurisdiction of the property, he has no cause to complain of an order of the State court ordering the property to be sold when his debt is recognized and referred to the proceeds of sale. He can not appeal from the order to sell the property, as it can not irreparably injure him.</p> <p>A party can not obtain a suspensive appeal from a judgment on a rule which carries into execution a judgment already rendered The judgment can be arrested only by a suspensive appeal or by injunction.</p>

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

<p>A demand against a succession, unsupported by written proof, for services alleged to have been rendered the decedent more than ten years before malting the demand, in pressing a certain claim before the Common Council of New Orleans will be rejected.</p>

<p>1. To stay tbe execution o£ an order of seizure and sale by a suspensive appeal, an appeal bond must be furnished, ivithin the delays allowed by law, in a sum exceeding by one-half the sum for which the order of seizure and sale issued. An appeal bond in such a case is governed by Art. 575, C. P.</p> <p>2. Where in such a ease, an appeal bond has been furnished which is insufficient in amount under Art. 575, O. P., to sustain a suspensive appeal, and where the appellee moved in the lower court for a dismissal of said appeal on the ground of such insufficiency, and the judge of the lower court refuses to pass on the question under the erroneous belief that the matter is not before him, relief will be granted to the appellee on an application to this court for writs of certiorari and mandamus.</p>

<p>1. Section 790 R. S., as amended by Act 24 of 1882; Section 791 R. S., as amended by Act 43 of 1890, and Act 44 of 1890, are harmonious parts of one subject of criminal punishment.</p> <p>2. The offences denounced by Act 44 of 1890 are contained in Act 43 of 1890, and the offences denounced by the latter are contained in Sec. 790 R. S.</p> <p>3. An information properly drawn under Sec. 790 R. S. contains accusations under all three of said statutes, to wit: See, 790 R. S., Sec. 791 R. S. and Act 44 of 1890.</p> <p>4. A verdict under See. 793, R. S. is not responsive to an accusation under any one of said three statutes.</p>

<p>1. The State has the right to have rejected as jurors parties who declare that under no circumstances would they render a verdict of guilty based solely upon circumstantial evidence, and to propound to jurors on their voir dire questions directed to the ascertainment of that fact. State vs. Shelor, 3i An. 994.</p> <p>2. The overruling by the court of a challenge to the competency of a juror, who, on his vow- dire declared “that he had formed an opinion from rumor, and that it would take strong evidence to remove this opinion; that he had no bias or prejudice, like or dislike, for or against the accused; that he could render a fair ■and impartial verdict between the State and the accused, according to the law and the evidence on the trial without being in any way influenced by what he had heard, or the opinion lie had formed, sustained.” State vs. Ganz, 43An. 367,</p> <p>3. The refusal by the court to submit to the jury a special charge “ that in cases depending upon circumstantial evidence it is but reasonable, in case of doubt, to expect that some motive, and that a strong one, should be assigned as inducement to commit an act from which our nature is abhorrent, and the consequences of which is usually so fatal to the criminal,” sustained.</p>

<p>In case an exception of no cause of action,is sustained in the'District Court, the suit dismissed and an appeal is prosecuted to the Circuit Court of Appeals, the latter is without authority or jurisdiction to dispose of the case Anally upon its merits on the theory that such an exception admits the truth of plaintiff’s allegations for all the purposes of the case.</p> <p>Such question does not involve the regularity and correctness of the judgment of said court, hut their right to render any judgment in that attitude of the case.</p>

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

<p>^PPEAL from the First Justice’s Court, Parish of St. Bernard.</p>

<p>The preparation of a petition in its mechanical arrangement is left to the taste of the attorney.</p> <p>The only requisite for it is that it be a written or printed document, prepared in accordance with Arts. 171,172, Code of Practice.</p> <p>If for convenienee3 and as a matter of taste, the attorney uses a green blank form of a petition as a part of it, on which is printed the address to the court, and typewriting on white sheets for the other part, both fastened or pasted together so that the green blank form is the last sheet, but so arranged that the printed address appears above the typewriting, and the whole thus arranged is a logical statement of the cause of action, it is a compliance with Arts. 171,172, Code of Practice.</p> <p>The caption Or address to the court is an essential part of the petition, und it can not be omitted in the copy served on the defendant.</p> <p>The service of citation will not cure this defect.</p>

<p>. One o£ the general rules of criminal pleading is that a count should contain but one substantive charge. An exception to the rule is where one offence includes another, and the former could not be charged without also charging the latter. In such a case the defendant may be convicted of either offence, provided always the allegations are sufficient.</p> <p>2. If a pleader, in drawing up a charge under a statute, so enlarges upon it as to unnecessarily bring within the allegations, in one count, an adequate technical charge for another offence under another statute, the count is bad for duplicity.</p> <p>3. The offence of cutting and stabbing under Act 44 of 1890 is contained in the similar offence under Act 43 of 1890.</p> <p>4. The offence of inflicting a wound less than mayhem, under Sec. 794 R, S., amended by Act 17 of 1S88, is not contained in the offences under Act 43 of 1890.</p> <p>. The permissible joinder of cognate offences in different counts of the same indictment affords all the scope needful to present a change under its different aspects.</p>

<p>PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.</p>

<p>APPEAL from the Nineteenth Judicial District Court, Parish of St. Mary. Beattie, J., acting in place of judge recused.</p>

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

Théard, J. 1. Under Act No. 63 o£ 1888 tile police board created thereby is vested with all “the powers and dirties connected with and incident to the police department and police discipline of the city of New Orleans. Sec. 1. 2.

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

<p>Entries on the note of evidence made in the performance of his duty by a public officer in the performance of a duty are prima facie evidence of the facts stated.</p> <p>A claim for taxes was decreed due and ordered carried on the executor’s account as a debt of the succession.</p> <p>The evidence upon which the District Court rendered judgment, in so far as relates to this claim, was not transcribed in the record of appeal.</p> <p>In the incomplete state of the record, the opposition, in so far as relates to this claim, is dismissed and the rights of opponents reserved.</p> <p>Where the patient being feeble and in a nervous and delirious state required attention entirely unusual, and the services were skilfully and faithfully rendered.</p> <p>Where surgical operations were performed and extra time was devoted by the physician in endeavoring to relieve the patient from his sufferings, which were intense- — held, that the performance of the operations and the time, in addition to the regular visits were within the scope of the physician’s authority.</p> <p>The testimony of honorable physicians sustain the correctness of the judgment appealed from, in respect to this claim, and the court agrees with the District Court in the reduction made, and that in all other respects the proof fully sustains the charges made.</p>

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