Volume 46 — Louisiana Annual Reports

<p>Moneys standing to the credit of a non-resident firm on the books of a New Orleans bank are not taxable. The relations between a bank and its customers are those of creditor and debtor. The moneys are not specially deposited to be identically restored. They go into the mass of the bank’s money with the understanding that they might be used and should be the basis of items of a debit and credit account. Such a debt is not distinguishable from those due to the foreign firm from any other cause.</p>

<p>The finding by the jury of the guilt of an accused must be direct and positive.</p> <p>The court is not justified to “ reason ” to an inferred verdict of guilty. A verdict consisting of the simple word “manslaughter” written on the indictment, not prefixed by the words “guilty of,” is fatally defective, and it is not cured by a polling of the jury when “Is ‘manslaughter’ your verdict?” was the only question asked of its members.</p>

<p>1. Act 8 of 1874; Act 58 of 1877, regular session, and Act 77 of 1877, extra session, were not repealed by the adoption of tbe Constitution of 1879, and the Debt Ordinance thereto appended'.</p> <p>2. The constitutional amendment of 1874 embodies the purport and substance of the legislative enactment of that year, and declares that the tax required for the payment of the principal and interest of the bonds shali be assessed and collected every year, until the bonds shall be paid, principal and interest; and the debt ordinance declares that there shall be levied an annual tax sufficient for the full payment of the interest on the bonds.</p> <p>8. There is no essential difference in the phraseology of the two constitutional enactments.</p> <p>4. The legislative enactments of 1877 provide that any surplus that may remain after the payment of interest coupons shall be deposited with the fiscal agent at credit of a specific and distinct fund, to be called and known as the Redemption of the Public Debt Fund, and shall be used exclusively, under directions of the board of liquidation, for the retirement and sinking of the consolidated bonds and past due coupons.</p> <p>5. The act of 1877, extra session, makes it the duty of the treasurer to keep separate accounts of the income and expenditures of each year; and, after setting apart or paying out an amount thereof equal to the appropriations and warrants lawfully made against each of said funds, the surplus, if any remain, shall be immediately deposited by the treasurer at the credit of the Redemption of the Public Debt Fund.</p> <p>3. The debt ordinance deals exclusively with the interest and not the principal of the bonds, leaving the latter in statu quo; and the fact that the bondholders were given an option to surrender their holdings and recover other bonds in exchange, on the terms proposed therein, did not impair their force or validity.</p> <p>7. All statutes enacted since the adoption of the debt ordinance of 1879 must be construed in conformity therewith.</p> <p>In point of fact all subsequent statutes deal with an existing fund — an interest tax surplus — already collected under existing laws, and, at most, same could only lead to the supposition that the laws of 1871 and 1877 were not operative; and had it been intended by the Legislature to repeal any of said laws, same would have been nugatory and void.</p>

<p>1. The trial judge declined to give to the jury the following requested special charge, viz.:</p> <p>“ If'the jury has a reasonable doubt whether the defendant was intoxicated to such a degree as to create a state of mental confusion, excluding the possibility of a specific intent to take life, or positive premeditation, then the verdict should be guilty of manslaughter.”</p> <p>2. Intoxication of the accused to such a degree as to render him incapable of malice in the perpetration of a homicide is a special defence, like a plea of insanity, and puts the burden of proving it upon the party urging it, and its truth must be established by a fair preponderance of evidence.</p> <p>-3. While it is the duty of the prosecution to make out the malicious intent of the accused in the perpetration of a homicide beyond a reasonable doubt, yet it is not its duty to prove a negative by showing that the accused was not intoxicated to such a degree as to render him incapable of entertaining malice at the time of the homicide beyond a reasonable doubt; and the trial judge was guilty of no error in refusing to so charge the jury.</p>

<p>When a legal proceeding is commenced against a person, whether resident within the jurisdiction of the court in which it is begun or not, the defendant must be brought in court, in some one of the forms provided by law, or a voluntary appearance must be made on his behalf that jurisdiction may attach.</p> <p>When the proceedings are on a bond for the appearance of an accused, the call on the principal and the ¡surety, by the sheriff under the order of court, must be made in order that the judgment pronounced may be valid. This formality is jurisdictional.</p> <p>The plaintiff in injunction, having alleged that there was no process whatever, and having complied with prerequisites by taking- the oath required and furnishing bond to obtain an injunction, the court of her domicil has jurisdiction to hear the cause on the merits.</p> <p>Writs of certiorari and prohibition will not issue restraining the District Court from hearing the case on the merits; it being appealable to this court.</p>

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

<p>Under the general issue in a suit for damages for injury to feeling and humiliation caused by an assault by the defendant on the plaintiff, and by the use of opprobrious epithets by the former, evidence of irritation and provocation was admissible in mitigation of damages, but was not admissible to defeat the action. ' /</p> <p>When the clear right of a person is invaded, he must be entitled to an action against the party who inflicted the injury.</p> <p>.Assaulting a person and denouncing him in the presence of bystanders in a court building, in the presence of officers of the court as a thief, and as having robbed the party denouncing him, and his threats to cowhide the person, are indignities and insults actionable in themselves, without reference to character or reputation.</p> <p>Even if a person has abad character he has a right to be let alone, and to immunity from personal attacks.</p> <p>Even if he has no reputation, he should not be denounced as a thief if he is not a thief.</p>

King, J. The State may not be sued in reconvention without her consent. Forged instruments convey no title. State bonds are not negotiable instruments in the sense of the law merchant. To so denominate them is an abuse of their true character and purpose. The government does not undertake to guarantee to any person the fidelity of the officers and agents it employs.

King, J. The State is not responsible for bonds fraudulently issued and put into circulation. The defendant having received into his possession the trust funds of the State, when he had no right or claim to them, and covered them into liis own funds and returned them to the despoiler, must restore the same — a like condition results when he so receives the State funds and applies them to his personal use. 1.

<p>The adjudication of property at a judicial sale is itself a complete title, which can not be divested, unless the purchaser refuses to comply with the terms.</p> <p>The purchaser having complied with his bid by paying the price, the delay to execute an act of sale did not have' the effect of annulling the adjudication, nor did it in any respect affect the rights of the owner.</p> <p>The person interdicted is like the minor, who is under a tutor. The administration, of his estate is governed by similar rules.</p> <p>The curator paid debts of the interdict; incurred for'him.</p> <p>They were paid after the death of the interdict and after the curator’s functions-* had expired. , (</p> <p>The payment of debts manifestly due remains unaffected, for it would serve no useful purpose to cancel them and require payment of these amounts by the curator, to the executor of the interdict’s succession, in order that he, the executor, may pay them to the creditors.</p> <p>The amounts being due, the only difference would be payment by the executor instead of payment by the curator.</p> <p>When payments exonerate the estate from legal charges the executor must show that they are unfounded and excessive, or they will be allowed as a credit on the curator’s account.</p> <p>The executor opposes certain items of the curator’s 'account that are not proven.</p>

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

<p>Exemptions from taxation are strictly construed. A corporation claiming to own a secret non-patented process by wbicli, without the use of any chemical, it is. enabled to mate selections of green coffees which, through careful and cleanly roasting and a secret process of cooling, produce “brands” of unground roasted coffees, each one of which is claimed to have a recognizable taste — is not a “ manufacturer ” within the meaning of Art. 206 of the Constitution, and is not exempt under that article from the payment of a license.</p>

Bightor, J. All claims to the proceeds of a judicial sale must be referred to the court under whose authority the money was realized to class the mortgages and privileges according to their rank, in a summary manner. R. S. 1942; C. P. 126. The proceeding is a sort of concursus, where every creditor is plaintiff and defendant, the several claims being open to every objection of law and fact, such as minority, fraud, simulation, etc. 11 An. 386, 671; 40 An. 149.

y^PPLICATION for Mandamus and Prohibition. 1. On this application the only issue is whether the relator is entitled to a suspensive appeal from the ex pw'te order appointing a receiver — the correctness of the judgment will be passed upon when the record is brought up regularly for review. Ex pcvrte Emanuel, 4 An. 424; Street’s Case, 85 An. 516; Ingram’s Case, 20 An'. 530; Cain’s Case, 20 An. 574; Geddes’ Case, 36 An. 302, 210. 2.

<p>The courts have power to appoint receivers of corporations whenever necessary to preserve the interest of all concerned, and those who have ratified the appointment can not recall their consent, and in e® paA'te, proceeding prosecute a suspensive appeal from the order appointing the receiver.</p> <p>The order appointing the receiver in effect sustains the status quo of the corporation, and was issued to prevent instead of to cause injury.</p> <p>Should it become apparent that the injury is actual or threatening, the appeal will be allowed upon proper application.</p> <p>The writ prayed for to compel the district judge to grant a suspensive appeal is refused.</p>

<p>The same issues are presented in State ex rel. Gaiser vs. Judge, No. 11,380, slightly varying in statement, and as the reasons and authorities therein given are directly applicable, a conclusion similar is followed.</p> <p>The only question is one of authority vel non to appoint a receiver, and the legality of a resolution of the company approving the appointment.</p> <p>The issues must come up on appeal, if at all, after proof heard before the court of first instance.</p>

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

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

<p>The judge refused to permit the district attorney to move for the forfeiture of the bail bond of the accused on the second day ®f the criminal term, and based his ruling, in thus ruling, upon proof that the accused was prevented from attending court by physical disability.</p> <p>The Attorney General and the district attorney of the district admit that the ruling was correct, and consent to the dismissal of the appeal.</p>

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

J. When a testator directs his exeeutor in his will to sell all his property, an order of sale obtained by the executor in order to carry out the wishes of the testator is valid. C. C. 1669. “ When the highest price offered has been cried long enough to make it probable that no higher will be offered, he who has made the offer is publicly declared to be the purchaser, and the thing sold is adjudicated to him.” 0.

<p>A person engaged In the trade, business or calling of baking bread, in which he'jjg exclusively deals, is not a manufacturer in the sense of Art. 206 of the Consti- — tution, and is not entitled to constitutional immunity from the payment of a license tax.</p>

<p>y^PPLIOATION for Certiorari.</p> <p>Relators voluntarily submitted to the jurisdiction, of the Court of Appeals and made no exception thereto; this court will refuse to inquire into the question of jurisdiction of the Court of Appeals, where relators have not first excepted thereto without avail. State ex rel. Steele, 38 An. 669; C. P. 847; 10 Rob. 169; 29 An. 806 ; 37 An. 845; O. P. 846, 849; State ex rel. vs. Shakespeare, 40 An. 608, in which the court held: “ The eases in which this has been held are so numerous that it would be cumbersome to enumerate them all.” Citing 29 An. 306; 37 An. 845 ; 38 An. 569, 920.</p> <p>In a suit where the plaintiff claims a certain amount or a thing of a certain yalue, and the defendant in his answer admits owing or confesses judgment for a part of the thing or amount claimed the amount in dispute will be the difference between the sum or value claimed, and, the sum or value admitted or confessed, or disclaimed. 32 An. 930; 33 An. 1089; 35 An. 346; 26 An. 291.</p>

<p>In this case, whether the appeal be considered as returnable in Opelousas at the term held in July, 1893, or in New Orleans at the term beginning in November, 1892, the appeal should be dismissed.</p>

King, J. Imported foreign goods in unbroken original packages in the hands of the importers, upon which import duties have been paid to the United States, are not liable to State taxation. 12 Wh. 419; 18 Wall 29; Saunders on Taxation, 35; Desty on Taxation, vol. 1, p. 232; 24 How. 169; 8 Wall. 123; 8 Wall. 148; 13 Wall. 34; 12 Wh. 447 ; 5 How 504; 13 Wall. 129; 15 Wall. 284; 96 U. S. 447; Desty, vol. 1, 233; 12 Wh. 419; 13 Wall. 29; 103 U. S.' 460; 91 U. S. 275; 97 U. S.…

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

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

Livaudais, J. In May, 1892, it was the legal duty of the defendant to keep the levee fronting his Happy Point plantation in proper order, preservation and repair. Ordinances Police Jury Parish of Plaquemines; Act 84 of 1881; Barrow vs. Ilepler, 31 An. 362; Bass vs. State, 31 An., p. 503; Act 88 of 1880; Act 101 of 1882; Slidell vs. Grand-jean, 111 U. S. 321; 8th Howard, 66; Rev. C. C., Articles 665, 616.

<p>1. The contention is not well founded that a judge of the Civil District Court who grants prior to allotment an order of injunction, in so doing, exhausts his power over the order and is without authority, subsequently and prior to allotment, to modify or rescind the same. Until allotment he, for legal purposes retains control of his own order.</p> <p>2. Where such a second order has been granted and it is sought to have the same reviewed under writ of certiorari, the judge of the particular division of the court who has at the time of the application for the writ, control of the ease by allotment is the proper judge with whom to test contradictorily the order complained of.</p> <p>8. It is a general but not an inflexible rule that prior to the modification or rescission of an order of injunction, notice should be given to tlie party who obtained the writ. Where the rule is departed from, it is proport hat such notice should be subsequently given, to the end that parties may guard their interests and rights.</p> <p>i. The powers of the Supreme Court, under Arc. 90 of the Constitution, are not confined to writs of certiorari, prohibition, mandamus and quo warranto, but extend to other remedial writs.</p> <p>■6. Parties complaining of an order “ suspending until after hearing” a prior order of injunction must, before invoking the supervisory powers of the Supreme Court, have unsuccessfully sought to have the “suspending” order rescinded. Where a restraining order is sought pending an examination of issues submitted for examination, the whole case should as far as practicable be placed before the court.</p> <p>6. Where the United States Marshal (under writs of fi fa from the Circuit Court of the United States, directed against a lessee), having seized the “right of occupancy” of certain, premises, has(withthe consent of the lessor and the receiver of the lessee appointed by the Civil District Court) granted to a third person the right of occupying the premises on paying rent, until a sale under the writs, a creditor of the lessee subsequently attaching the “right of occupancy” of the same premises, in the Civil District Court, can not oust such person from his occupancy by exparte injunction proceedings directed against him alone, nor is he entitled to a suspensive appeal from an order suspending until hearing, an ex parte prior order of injunction which would have accomplished that result</p>

<p>Where a widow sues for the death of her husband, caused by negligence of defendants, there is no misjoinder of parties plaintiff, if she sues individually and as tutrix of her minor child, issue of her marriage with deceased.</p> <p>Where the parties are liable in solido, and each is cited, they are all before the court, and the fact that the petition alleges that the injury was inflicted by a commercial firm, composed of the individuals who are liable, is not sufficient for the dismissal of the suit, although the firm had been dissolved at the time of the institution of the suit. The petition -discloses a cause of action when it set out the manner in which the deceased was killed and charges negligence on part of defendants, and the absence of contributory negligence on part of deceased.</p> <p>A servant, an “ all-around workman,” subject to the orders and directions of the master, whenever he is called upon to work in pursuance of conditions created by the master, has the right to assume superior knowledge, judgment and skill in the master, under whose orders he is immediately acting, and to believe that he will be protected from danger.</p>

<p>Third opponents, before the sale, inconsistently asked for the nullity of the sale on the ground of simulation, etc., and also asked for the proceeds; after the sale to one who declares himself the owner of the mortgage notes under which the sale was made and who, having bid less than his debt, paid no price, third •opponents filed amended petitions in which they allege that the adjudicatee ■was aware of the simulation, and they restrict their prayer to the annulment •of the sale and mortgage, asking for the citation of all parties to the sale. Held, .that under the circumstances of this case and the pleadings therein, third opponents are not estopped from attacking, by a direct action, the sale and mort.gage as being simulated. Held further, that in this case the action set forth in the amended petitions contains all the elements of a direct action, affords all •the opportunities for exceptions and answer, and affords also the same delays and mode of trial which could be claimed in a direct action.</p>

Taylor, J. 1. The two defendants, jointly indicted for murder, obtained a severance in their trials. It was in the power of the prosecuting attorney to determine in what order he would try them. Bish. on Cr. Pr., Sec. 1018. 2. It was not error in the trial judge to refuse to instruct the sheriff to summon tales jurors from a designated portion of the parish. Act No. 94 of Acts 1873; 14 An. 461; 23 An. 148; 26 An. 46; 32 An. 1003; 34 An. 1084; 35 An. 303. 3.

J. 1. Courts of justice will properly exclude testimony from the record, to which no force will be given if admitted. Bender vs. Belknap, 23 An. 765. 2. As between the parties and their heirs, authentic acts make full proof, unless attacked for forgery. C, C. 2236; Boone vs. Carroll, 35 An. 283; McKenzie vs. Bacon, 40 An. 162.'’ 3.

<p>l. In a suit for damages for the death of a person alleged to have been caused by the negligence of the employes of a railroad company, where the plaintiffs allege themselves to be the widow and children of the deceased (the widow suing for herself individually and for the minors as their mother and tutrix), defendant is not entitled under an unrestricted offer or tender of evidence to introduce generally and against all the plaintiffs an extra-judicial admission made by the mother since the institution of the suit, that she was not married to the deceased, when prior to this admission she had testified as a witness in the case that she was his widow. Had she sued alone and in her own behalf, such an admission, if legally proved, was admissible against'her. Quoad admissions made by her as affecting herself, her status as a party was not merged into that of a witness.</p> <p>2. Where, in such a ease, the Supreme Court lias grave doubts as to the fact of the marriage of the plaintiff with the deceased, it will remand the case for a new trial, notwithstanding the verdict of a jury and the judgment thereon rendered.</p>

<p>APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost, J. ■ ,</p> <p>1. No affidavit is necessary for the arrest of afraudulent debtor under our insolvent laws; it is mere surplusage, and hence no defect in it can affect the validity of the proceedings. R. S. 1805; 18 La. 475; 11 An. 557.</p> <p>X In a suit by a corporation the use of its corporate name is sufficient, without r naming any of its.officers; authority to sue is matter of proof when called for, ; . and not of pleading. Act 3fi of 1888; R. S. 684; C. P. 112; C. C. 432 ; 33 An. 946; 2 An. 1017.</p>

J. 1. Where a partnership styled “ John Klein.& Co.” was dissolved by the death of one of its members in 1888, and shortly afterwards a new firm was formed under the same firm name, composed of different individuals, the firms are not the same, nor are the assets and liabilities of the firstfirmthe assets and liabilities of the second firm. 19 An. 289; Abat, Generes et als. vs. Mrs. Emeline J. Penny | et als. 2.

John the Baptist. Rost, J. 1. The removal of this case to the United States Court was properly refused by the lower court, the statute and Constitution of this State specially vesting State courts with jurisdiction in such cases.' Act 89,1877, Sec. 3; Constitution of 1879, Art. 246. 2. The fact that plaintiff’s son was a deaf mute can not militate against him, because the gross negligence and carelessness of defendants were the immediate and direct cause of his death. 3.

<p>The power of courts to order the remission of funds belonging to a foreign succession to the representatives of the succession authorized to receive them, by the courts of the domicil of the deceased, we consider undoubted. Its exercise is necessarily a matter of discretion, depending on the circumstances of each case, and is a consequence of that comity which prevails between nations in amity witlveach other.</p> <p>The interests of commerce and civilization require that this comity should be carried into effect by our tribunals.</p> <p>It is done in England and in other States of the Union, in analagous and similar • cases; and whenever the rights of our citizens are not affected by the act to be done, it is the duty of this court to act on a principle which is impressed on us equally by an enlightened policy and a certainty that it will tend to the great purposes of justice.</p> <p>The court having recognized the validity of the judgment probating the will of Myra Clark Gaines, pronounced in New York, in which was the domicil of the testator;</p> <p>The legatees and creditors being before the court and applying to be paid here;</p> <p>The assets of the succession are ordered to be distributed here, and legacies, creditors and all charges are ordered paid from the funds on hand.</p> <p>The case is remanded for the disposition of the property, and for the passing upon questions at issue in accordance with views expressed.</p>

J. 2. The mother of three children bequeathed her entire estate to two, with the exception of the following bequest to the third, viz.: “ I give and bequeath to my son Emile the sum of $200, in addition to the sum of $2B00, which he owes me.” The son attacked the will, contending that no debjb ever existed between him* self and his mother; that this is a disguised attempt to disinherit him, or to trespass upon the legitime. The legatees and executor were joined as defendants.

Caillouet, J. Where a railroad carries'a passenger beyond his point of destination, not stopping at that point, but stopping beyond, a mile or more, and then ejects him from the train, in the night, in the rain and in an uninhabited place, this is sucli a trespass or wrongful act as gives jurisdiction to the court of the parish where the act is committed. C. P., Art. 165, Sec. 9; 33 An. 955.

^PPLICATION for Certiorari and Prohibition. The District Court was without jurisdiction rations waterice to issue a mandamus to the sheriff and ex-officio tax collector, on an application by a president and two members of a police jury who had been appointed a committee with specified power simply to employ an expert and to examiue the books, records and accounts of the said oillcer.

Guión, J. 1. The defendant, by authentic act, passed on the |18th of February, 1891, purchased: All and singular that certain tract or parcel of land, together with the improvements thereon * * * situate in the parish of Ascension * * * known or designated as the “ Waterloo plantation,” having a front of about three-fourths of a mile on the Mississippi river, containing about 1800 superficial acres, more or less, and being bounded above and in the rear by the Riverside…

Boatner, J. ad hoc. 1.A common law mortgage, executed in a common law State, between parties residing therein, will not be given the effect of a Louisiana mortgage against third persons. C. C. 3278, 3283, 3287, 3288, 3290; 34 An. 796, 38 An. 890; 40 An. 323. 2.A common law deed will likewise not be given such effect. Same authorities. 3.A seizure under an attachment having been made prior to the recordation of the alleged common law deed, prevails against the deed. ■4.

1. The evidence shows the defendant was an unusually intelligent negro; that his brother had employed counsel to defend him. 2. The law does not require service of the venire on an accused who elects to be tried by the judge. 8. An objection of failure to serve such venire made after trial and conviction, comes too late. State vs. Price, 6 An. 691; State vs. Benjamin, 7 An. 47; State vs. Shay, 30 An. 114; 1 Bishop Or. Pr., 126. 1.

Guión, J., in place of Caillouet, J., recused. 1. The judgment of the lower court should be amended so as to restore fees of counsel and executor’s commission as fixed in the account of executorship; that the land shall be given to Frank Reese in usufruct, during life, on his furnishing security required by law. 2. A legacy of certain specific and designated objects is a special legacy and not a universal legacy, or legacy under a universal title. 3.

* J. In a future contract relating to the sale of flour, if the party seeking to enforce the contract was ready to make an actual delivery of the flour, and if as to such party the contract so contemplated, it can be enforced at law, and is not reprobated as a wagering contract. Conner & Hare vs. Robinson, 37 An. 8H; Gruner & Co. vs. Stucken, 39 An. 1076.

Montgomery;, J. 1. An illegal assessment is insufficient description of property and want of notice on radical defects. A tax sale under such conditions will be invaded and not protected by the prescription of either three or five years. 82 An. 228; 34 An. 123; 29 An. 510; 35 An; 1086; 37 An. 356. , . 2. Description in tax deed must be the same as that on assessment roll, which is the warrant to collect. Rougelot vs. Quick, 34 An. 126; Blackwell, pp. 123, 278. 8.

Buelmer, J. 1. The rule that the decree protects the purchaser is subject to two conditions: (1) That the court is competent, in the subject matter, to render the decree. 14 L. 273; 13 An. 476; 25 An. 164; 2 L. 328; 11 L. 156; 20 A n. 233; 29 An. 523; 30 \ n. 139, 727; 23 An. 310; 30 An. 482, 1111; 40 An. 571; James vs. Meyer, 41 An. 1100. (3) The purchaser must be an innocent third party.

Dagg, J. A person in no manner related, not an heir and not even a creditor, is not entitied to the administration o£ an estate. 0. 0., Arts. 1046;1049. A curator or administrator must take an oath before the judge (or before some officer legally authorized to administer oaths), who has appointed him, before he enters on the performance of his duties. 0. C., Art. 1126.

of Terrebonne.. Caillouet, J. A married woman can not bind herself for her husband’s debt. O. O. 2398. Courts will look through all disguises to protect the property of married women, and will find out the real nature of the contract. 12 An. 852; 33 An. 1008; 34 An. 822. The law prohibiting a wife from binding herself for her husband’s debts is a law of public order, and whatever is done in contravention thereof is tainted with absolute nullity.

Theard, J. These proceedings come before this Honorable Court on an {appeal from a judgment, of a mixed character, rendered herein on a rule to compel a father and natural tutor to send his children to visit their grandmother, at such a time as the court might determine, at her residence and domicile.

Ellis, J. The holder of a judgment or claim against the husband can not claim the amount of same from, and is not by virtue thereof a creditor of, the succession of the deceased wife. R. ó. C. 2398; Succession Clark, 27 An. 269, 270; Reihl vs. Martin 29 An. 16; Succession of Bofenschem, 29 An. 714. A person who is not a creditor of a succession, and has no interest therein, can not cause the appointment of an administrator to the same.

Boatner, J. ad hoe. Police juries are authorized to employ counsel other than the district attorney. 24 An. 145; 28 An. 455. Parishes have power to purchase apd own real estate. O. C. 433. Parishes have the inherent and incidental powers to carry out the powers expressly granted. 2 Dillon’s Municipal Corporation, Secs. 661 562; Parish vs. Eager, 15 Wis. 590.

Talbot, J. The evidence shows full compliance with the contract. Defendant can not claim more than specified in resolution of May 21,1891, which was carried out. Defendant having operated plant for eighteen months, burden of proof is upon it to show defective character of machinery and fair usage in its hands. 40AH.112 Whitney Iron Works vs. Reuss.

<p>A mandamus to compel the inferior court to hear witnesses to confirm a default will not issue when, since the application of plaintiff to confirm the default, the defendant in the lower court has filed his answer.</p> <p>In proceedings before the City Courts no default preliminary to judgment against defendant is required. Code of Practice, Arts. 582, 583.</p> <p>Nor can these courts by their rules require such default.</p> <p>The writs under Art. 90 of the Constitution will not issue when it is apparent they can serve no purpose.</p>

Talbot, J. 1. The under-tutor, and not the tutor, has the mandate from the law to represent the minors at the meeting of creditors held to elect a syndic for the insolvency of the tutor. 2.

. Coco, J. Ho principle is better established than that he who is to blame and has caused the slanderous words is not entitled to the favorable consideration of the court. 1. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Revised Civil Code, Art. 2315. 2. There is no such thing in law as a half-ivay justification. Williams vs. McManus, 38 An. 161. 3.

PPEAL from the Oivil District Oourt for the Parish of Orleans. King, J. The landlord’s lien extends only to the contents of leased premises, and as to such contents, primes the vendor’s privilege. Both are outranked by law charges, as to the particular effects upon which they apply. Law charges include all costs and expenses that are necessary f or the distribution of the effects of an insolvent estate, and enure to the benefit of creditors in general.

Buckner, J. An affidavit clearly setting forth the character of a debt, to which the law grants a privilege, is an affidavit to the privilege, and is in this respect sufficient to warrant an order for sequestration. C. P. 276. The court may order the sheriff to sell sequestered property pendente lite, if it he perishable. C. P. 288; Oalder vs. Creditors, 44 An. 455; 15 La. 481; 12 An. 552; 11 La. 444; 41 An. 742.

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

<p>.It is not established that the person interdicted in 1893, whose curator sues to set aside a deed o£ sale, was non compos mentis in 1879, at the date of the sale; nor is it established that he was at the time, because of the weakness of his mind, unable to give his consent intelligently as a vendor of his property.</p> <p>Generally, an executed contract, fairly made with one who was apparently of sound mind and not known to be otherwise, and of which he had received the benefit, can not be avoided by his legal representative more than fourteen years after the date of the contract.</p>

<p>Montgomery, J. PPEAL from the Seventh District Court, Parish of Madison.</p> <p>Whore, in an action under R. 0. 0. 3517 to revive a judgment, the defence is that the attorney who represented the defendant and waived service of the petition, upon which judgment by default was confirmed, was unauthorized, such allegations must be supported by the oath of the defendant, as a condition precedent to setting up such want of authority in the attorney. “ No contrary doctrine has ever been held.” Doekham vs. Potter, 27 An. 71; citing and affirming, 9 M. 88; 10 M. 639; 8 N. S. 232-5; 114.23; 12R.95-7; lAn.39S; a An. 558; 5 An. 118; 10 A11. 67; 21 An. 238; 20 An. 201.</p> <p>A defendant in such a suit, who thus failed to verify such allegations by a previous oath as to their verity, should not be permitted to testify in his own behalf.</p> <p>Evidence going to show the motive or inducement upon which a phrty acted, and what was said and done at the time, is not hearsay, but original evidence; so where the attorney of the plaintiff in the original suit offers to prove what the attorney of the defendant said and did in regard to his waiver of service of the suit sought to be revived, such testimony is not only in rebuttal, but is párt of there»gesta; and unqualifiedly so, when the attorney who acted for the defendant is dead, and can not testify in his own behalf.</p> <p>An attorney can “ waive the service of the plaintiff’s petition.” C. P.177; 8 N. S. 31-5; 1 An. 398; 6 An. 709. . *;• ’ -</p> <p>Waiver of service is a legal notice to tlie defendant of the pending suit, and “ such waiver has the same effect as if citation had been served by the sheriff.” Sexton vs. Brooks, 12 La. 596 * So in the defence here, it is on a parity with a case in which a defendant sues to annul a judgment, on the ground that the return of the sheriff on the citation is false. 24 An. 832.</p> <p>The burden of proof is on the defendant, for he must show “good cause why the judgment should not be revived.” R. C. C. 3547; Levy vs. Calhoun, 34 An. 415.</p> <p>The uncorroborated testimony of the defendant in his own behalf, against the acts of a dead man, is of the weakest kind, and not entitled to sufficient weight to warrant a judgment. Such testimony should be “ strengthened by strong, or at least reasonable, additional independent proofs.” 37 An. 97; R. 0. C. 2283.</p> <p>It can not be for a moment doubted that a party condemned without citation or hearing could sue to have the fact judicially determined, and yet more evidently that he may use the same fact as an exception to preserve his rights if sued. This he may do at any time the judgment so obtained is sought to be enforced against him for any purpose or in any manner, and even could it be held that he must bring such a suit within a fixed time, as it can not, by the express terms of Art. 612, C. P., nowhere and to no class of cases is more applicable the maxim, jg\uce Umporalia^ta. Oonery vs. Rotchford, Brown & Co., 30 An. 692.</p> <p>In au action to revive a judgment defendant is permitted to show want of citation or the nullity of the judsrmentresulting from any cause. And defendant, setting up the defence that counsel in the original suit had no authority to represent him, need not file an affidavit of want of authority in the attorney as a prerequisite to establishing that fact on trial. 80 An. 363; 27 An. 74.</p>

John the Baptist. Rost. J. In a suit to partition lands, when there are no issues between the parties thereto save as to mode of partition, and the judgment orders a sale to effect partition, it is irregular to allow a suspensive appeal to a stranger, who comes in by protest and informs the court that, as a defendant in another suit pending in the same court, he has an interest in the land which will be prejudiced by the judgment and sale. R. 0.

Montgomery, J. An assessment oí real estate which does not describe on its face or by reference to accessible public documents the property intended to be assessed is null and void. Held: a correct description of the property and the postoffice address of the tax-payer.

<p>\ PPEAL from the Fourteenth District Court, Parish of Iberville, i l Talbot, J.</p> <p>Interest must be computed from the date of the claim to the time of filing the final account of the syndic, and not simply from the date of the claim to the day of the sale of the effects of the insolvent. 9 La. 2G8; 3 An. 337; 30 An. 716.</p> <p>Interest ceases to run against an insolvent estate upon a special privilege, from the date of sale of property subject to the privilege. 12 Robinson, 404, Collier vs. Creditors.</p> <p>A syndic, who is himself a creditor with first-special privilege, can not, by failing to provisionally distribute the estate so as to extinguish his privilege* compel the estate to pay interest on his claim up to the final distribution-</p> <p>On Motion to Dismiss the Appeal.</p>

<p>The State appeals from a judgment sustaining a motion, to quash an indictment charging the accused with having committed forgery.</p> <p>The statute under which the indictment was framed does not comprehend the act of altering an account independently of, and without reference to, any receipt, or intent to use it as part of a receipt or acquittance.</p> <p>When in a ease oí forgery the instrument forged does not, on its face, appear to be valuable or adapted to work a fraud, extrinsic matter must be averred to enable the court to see its fraudulent tendency in matter of law.</p>

y^PPLICATION for Certiorari and Mandamus. Where there is a judgment for money against one defendant who does not appeal the other cannot appeal suspensively without giving bond as required by C. P. 575, exceeding by one-half the amount ofjthe judgment.

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

<p>APPEAL from the Twentieth District Court, Parish of Ascension. Guión, J*.</p> <p>1. Possession of immovable,property, botli under the common and civil law, is highly favored, and the rights of the possessor are strictly safeguarded. Even a trespasser is protected in his possession until his trespass is established at the demand of one who shows some better right in himself in a suit regularly brought. To all others, “Possideo quia possideo” is a sufficient answer. 37 An. 117; C. P. 46, 47, 49, 50, 52, 55; C. 0. 3419, 3454, 3455; 16 La. 414; 41 An. 952; 7 N. S. 488; 7 La. 415; 32 An. 701; 11 An. 512; 44 An. 819, 517; 34 An. 1158; 119 TJ. S. 608; 142 TJ. S, 280, 449; 14 An. 34, 733.</p> <p>2. The requirements of the law justifying plaintiffs suit are judicially admitted by defendant to be fulfilled. No inquiry into title or other matters is admissible, and the allegation of plaintiff that he is owner does not change the cause of action, which is determined by the prayer of the petition. (a) 7 N. S. 488; 10 La. 140; 34 An. 386, 1055; 7 La. 415; 32 An. 701; 119 TJ. S.; 13 La. 237; 10 An. 518; 6 La. 559; 2 An. 225; 14 An. 733. (5) 16 La. 44; 37 An. 241; 1 R. 109; 10 An. 160; 20 An. 69; 21 An. 356; 25 An. 166; 41 An. 705.</p> <p>3. Plaintiff was in possession. Defendant went upon the land and destroyed the railroad bed — he ignored the existence of the courts, which were open to him to assert his rights, and took the law into his own hands. “The law jealously protects the possession of property against invasion and violence. It punishes with severity the trespasser, although he may believe he has some right which he can enforce by violence. Public order and the highest interest of society require that no violence shall be done to one in peaceful possession of property. As against the lawful owner the possession of immovable property must be protected against the unlawful disturbance of his possession.” 44 An. 819, 516; 119 U. S. 608; 142U. S. 280, 449; 34 An. 1158,386; IR. 140.</p> <p>4. Contracts subject to resolutory condition are in full force and effect until set aside by law or by mutual consent — neither party can predicate his acts upon the theory that he is entirely right in his interpretation of the obligations arising from a contract, and that the defendant or the other party is entirely wrong. In this case there is a dispute as to whether or not the contract has been violated. C.C.2046; 27 An. 113; 3L An. 237, 169; 44 An. 516.</p> <p>5. Plaintiff’s domicile is New Orleans. Defendant, by his illegal acts, can not force plaintiff to litigate in Ascension, before defendant’s court, issues which could only regularly be tried at plaintiff’s domicile. Wrongful and illegal acts can not vest the court with jurisdiction, and the manner and form which defendant elects to present their issues can not change the result. The accidental fact that their issues came up by way of reconvention can have no influence or bearing in depriving plaintiff of the right of being sued at his own domicile. Defendant can not do indirectly what he could not do directly, and reap an advantage from his illegal acts. O.'P.162; 7 N. S. 488; 34 An. 1055; 32 An. 74; 6 An. 241; Black on Jurisdiction 43, p. 117; 124 U. S. 146.</p> <p>1. In a suit for the judicial recognition of an alleged conventional right of servitude of way, coupled with an injunction to prevent the defendant from obstructing the use or enjoyment of said right of way pending the suit, the defendant — on proper allegations to that effect and on showing by a counter letter or writing executed and signed by the plaintiffs, annexed to and made part of his answer, that plaintiff’s position does not set forth correctly or truly the nature of their title to the servitude claimed but that said alleged right of way over defendant’s land was the subject of a commutative contract between the parties with a resolutory condition expressly attached thereto — is entitled to set up as a defence to the action plaintiffs’ failure to comply with their ob~ * ligations and to pray for the annulment of the contract on that issue. C. 0. 2046 2047; C. P. 20; 14 An. 427; 12 Rob. 472.</p> <p>2. The injunction obtained by plaintiffs does not constitute the suit, but is a mere incident to the main action. The object or purpose of that action is to have plaintiffs’alleged right to exercise and enjoy the servitude claimed in perpetuity judicially recognized. If that judicial recognition be withheld, the in*junction necessarily fails. The nature and scope of plaintiffs’ action is no, limited by the verbiage of the prayer of the petition. All of the allegations must be considered, together with the prayer for general relief. 38 An. 912; 3 An. 268; 10 An. 719; 15 An. 426.</p> <p>3. The contention of plaintiffs that this is apossessory action and that the question of possession is the only possible issue in the case is not well founded. The rule invoked is inapplicable to plaintiffs’ pleadings. * * * “ where a plaintiff himself puts at issue his right of possession, exhibiting his title in his petition, he does so at his own risk and peril.” "39 An. 970; 4Martin, 626; 34 An. 1054. “ The issues in a possessory action maybe twofold: (1) The fact of possession; (2> the nature of the possession.” Concurring opinion of Fenner, Judge, in 34 An. 1054; see also 41 An. 1108; 40 An. 248.</p> <p>4. On plaintiffs’ motion to strike out the allegations of defendant’s answer and his reconventional demand, all of defendant’s allegations of fact must be taken as true. The motion is in the nature of an exception of no cause of action by plaintiffs to defendant’s answer and reconventional demand. Therefore, for the purposes of the motion to strike out, it is true that plaintiffs suppressed in their pleadings the real nature of their title, that the contract exhibited by them is subject to an express resolutory condition, which condition has been, accomplished by plaintiffs’ flagrant violation of their obligation under the contract.</p> <p>“The contract is entire, and by its very terms must stand or fall Jas a whole. Neither party has any advantage as to any rights acquired under it.” 2 An. 478. In all cases the dissolution of a contract may be demanded by suit or by exception. C. C. 2047; 6 N. S. 224.</p> <p>When a remedy may be sought by action, the party entitled thereto may avail himself of it by way of exception. C. P., Art 20; 14 An. 427; 12 Rob. 472.</p> <p>5. The plaintiff having its domicile in a parish different from that in which the defendant resides, a fortiori has the right to set up his defences in this suit and enforce his demand therein for a dissolution of the contract, and for damages by way of reconvention, as he has done. C. P., Art. 375; Smith vs. Atlas Cordage Company, 41 An. 1.</p> <p>Reconventional demand may be pleaded either ás an exception in the answer or by distinct and separate suit before same court. C. P., Art. 877.</p> <p>Article 375, as amended by Act No. 164 of 1839, provides that, under the circumstances above stated, the defendant may reconvene for any cause. The proviso in that article makes no distinction or discrimination whatever, and the courts ought not to recognize any. Ita lex scripta est.</p>

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

PPEAL from the CJivil District Court for the Parish of Orleans. Rightor, J. The transcript does not contain all the evidence on the trial of the case below.

A PPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J. Appellant claims that the judgment rendered in the court a qua is erroneous in so far as it dissolves the sequestration. We are utterly at a loss to conceive the reason which induced the learned judge a quo to so decide.

<p>APPEAL from the Justice’s Court, Alexandria Ward, Parish of' Rapides. Raehal, J.</p> <p>This suit was brought to recover from defendant, an attorney, five ($5) dollars amount of his license for practising law in the limits of the town of Alexandria,, during the year 1893. He contends that the town has no right, under its charter, to collect the license, and that the license is illegal and unconstitutional. The magistrate gave judgment in favor of the town, and defendant prosecutes this-appeal.</p> <p>Plaintiffs contend the power is given and conferred by the License Act of 1890, No. 150, by Sec. 14, p. 207, which reads; “Be it further enacted, etc., that any municipal or parochial corporation in the State shall have the right to impose a fair and equitable license tax on any business, occupation or profession herein provided for; provided, that all such license tax shall be graded.”</p> <p>The Legislature had the power to amend the charter of the municipalities in this-way. Dillon on Municipal Corporations, 4th Ed., pp. 140,385, reads: “The powers conferred upon municipal corporations may at any time be altered or repealed by the Legislatures, either by a general law operating upon the whole State, or in absence of constitutional restriction by a special act.”</p> <p>A statute will not repeal a prior statute merely because it repeals some and admits others, or adds new provisions. 124 TJ. S. 406.</p> <p>The provisions of a special act, or special authority derived from the Legislature are not affected by general legislation on the subject. 17 Wall. 425; 100 U. Sr 585; Cooley Const. Lim., p. 337; 1 An. 49.</p> <p>The general rule that a latter statute which is general does not repeal a former one which is particular, and that where there is a difference in the whole purview of two statutes apparently relating to the same matter the former statute remains in force, is applied.to the charters of municipal corporations. The law does not favor repeals by implication. American and English Encyclopedia of Law, Vol. 15, p. 974.</p> <p>The charters or acts of incorporation of municipal corporations within the State are the measure as well as the source of their powers. Mayor vs. Both, 29 An. 261.</p> <p>The general rule that the powers of a municipal corporation are to be construed with strictness is peculiarly applicable to the case of taxes on occupations. It is presumed the Legislature has granted in plain terms all it has intended to grant at all. If it is not manifest that there has been a purpose by the Legislature to give authority for collecting a revenue by taxes on specified occupations any exaction for that purpose will be illegal. Cooley Const. Lim., p. 387; Act No. Ill, 1868, Sec. 12; Act. No. 150,1890, Sec. 14; Act No. 138, 1880; New Iberia vs. Migues, 32 An. 923; Act 107, 1868.</p>

<p>1. An exception of prematurity is not waived nor merged in the answer by a consent to have the same referred to be tried with the merits, particularly where the answer filed is under reservation of the exception.</p> <p>2. Robert ÍI. Short died leaving two wills, both of which were probated. By the first or Christy will plaintiffs, as his heirs-at-law, were entirely cut off. By the second or Zengel will they were also cut off save for a small special legacy. In proceedings in the Civil District Court these parties prayed that both wills be set aside — that Short be decreed to have died intestate, and that they be recognized as his legal heirs, assigning as grounds that the notaries who drew up the wills bad not complied with legal forms and requirements. On trial the Zengel will was set aside, but the Christy will was upheld. They then instituted suit against the notary who had .drawn up the Zengel will for damages, claiming that through his negligence and want of care he had caused that will to be a nullity, carrying with it as a result the loss of their legacy.</p> <p>Held: That having adopted the errors of the notary and sought to utilize the same for their benefit to get into position as heirs they should not be permitted» because unsuccessful in their ultimate object, to turn back upon the notary for damages.</p>

Guión, J. Acquiescence by appellant in the judgment appealed from defeats the right of appeal. 40 An. 201. On motion to dismiss, on the ground that appellant has acquiesced in the judgment, evidence of this fact can not be introduced before the Supreme Court; the case must be remanded to try that issue. 28 An. 572; 3 An. 115; 23 An. 37; 20 Am 574; 29 An. 576; 39 An. 225.

APPLICATION from the Sixteenth District District Court, Parish of Tangipahoa. Reid, J. .Injunction to restrain the executipn of an order of seizure and sale by the debtor only lies in cases prescribed by Article 739, Code of Practice. Dupré vs. Anderson, 45 An. 1114. Attorney’s fees form part of the' capital, so that when the face amount of the note only is paid, it can not be said that the claim is satisfied.

<p>PPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.</p> <p>Objections to a writ of sequestration must be specially pleaded anda defendant can not advance new objections on appeal. Wells vs. St. Dizier, 9 An. 119.</p> <p>One having a special mortgage or privilege upon property can, for-proper cause, sequester same before the maturity of his.debt. 14 La. 581; 17 La. 209; 4 An. 184; 23 An. 578; 23 An. 612.</p> <p>Where a creditor has a special privilege upon particular property he-is entitled to sequester same upon merely swearing that he fears the removal, etc., of same. O. P. 275; 40 An. 825. This rule applies whether the debt be due or not.</p> <p>Conservatory writs are strioti juris, but the courts can not impose conditions other than those established by the Legislature. Creditors entitled to sequestrations are not required by the Code of Practice, Art. 275, to do more than to swear to their-own fears. 40 An. 825.</p> <p>Where a creditor has sequestered before the maturity of his debt, he may, upon the arrival of the date of maturity, file a supplemental petition demanding judgment in personam. 17 La. 209; 23 An. 612.</p> <p>The sale of the property affected by the privilege, in whole or substantial part, without paying or securing the debt, warrants the-issuance of the writ of sequestration. 35 An. 488; 39 An. 761.</p> <p>Non-payment of the debt, at maturity, justifies the sequestration. 40 An. 825.</p> <p>While a writ must stand or fall according to the conditions at the time of its issuance, yet where the intentions of the debtor are matters of inquiry, his conduct immediately subsequent may be looked to with a view to ascertainment of such intent.</p> <p>Sequestration must depend upon the state of facts existing at the inception of suit.</p> <p>Suit brought upon an obligation not due must be dismissed.</p> <p>An amendment setting up facts, arising since the inception of suit, and changing the substance of the demand, will not be allowed.</p> <p>•Sequestrations like attachments are strictissimi juris, and every detail must be complied with, otherwise proceedings will be stricken with nullity.</p> <p>Petition being dismissed for prematurity, the supplemental petition not being allowable, there is no suit, and the sequestration must be dissolved.</p>

<p>APPEAL from the Ninth District Court, Parish of Red River. J.</p> <p>'This is a suit under Art. 2561 of the 0. O. to enforce there solutory condition in a contract of sale and have its dissolution decreed for the non-payment of the purchase price. To have the sale dissolved for the failure on the part of the vendee to comply with her obligation to pay the purchase price, and to have the vendor restored to the title and possession of the property.</p> <p>•The vendor claims the fruits or revenues, at eight hundred dollars per annum, its rental value for three years, the time he will necessarily he out of the use of his property, before he can obtain a judgment of this court restoring him to the ownership and possession. He claims one thousand dollars for loss, consumption and deterioration of personal property, and asks that these amounts be allowed as a credit upon a liquidation and settlement between himself and his vendee. To compensate and offset the amount paid by Mrs. B. R. Stothart (one thousand seven hundred and eighty dollars) and that he have judgment against her for such amount, if any, as may be found due, after allowing her this credit of whatever may be shown due her for improvements.</p> <p>A clear and concise statement of the object of the demand and nature of the title or cause of action on which it is founded is all that the law requires. 0. P., Art. 172. Where facts are wholly within the knowledge of the defendant, she can not require them to be set forth in plaintiff’s petition. The law requires impossibilities of no one. Gross on Pleading, Sec. 17, p. 95, and authorities there cited.</p> <p>‘The action for a dissolution where a suit is necessary to enforce the resolutory condition is a putting in mora, as it may be met by paying the price, and the judge may even grant time for that purpose. This is not an action of rescission and is not in the cases provided for as contemplated by Art. 1912 of R. O. 0. 28 An. 740; 15 An. 518; 40 An. 157: 23 An. 335.</p> <p>■Plaintiff is entitled to fruits from day of sale. 0. O. 2045, 2041; 31 An. 635 ; 38 An. 766; 31 An. 67; 35 An. 112.</p> <p>.‘The stipulation.jpowr autre in order to have.any binding effect, must be accepted by the party in whose favor it is made. 5' R. 514; 3 N. S-. 211; 22 An. 362. ....</p> <p>.No tender is necessary where plaintiff does not owe defendant. The payments can be offset against the rents. 41 An. 6; 43 An. 534.</p> <p>•0. 0. 2565 (2543) contemplates a real diminution of value in the thing sold in consequence of waste or deterioration caused by the acts or-neglect of the buyer during the time of his possession. It is inapplicable to a general fall or depreciation of property. Bourgeat vs. Smith, Syndic, 16 La. 470.</p> <p>The resolutory condition can be enforced only by the person or persons representing the whole price. One representing only a portion of the purchase price due can not restore the status quo, or resolve the sale. Swan vs. Gayle, 24 An. 501; Oastle vs. Eloyd, 38 An. 589, 593; Leflore vs. Carmors, 7 An. 67.</p> <p>The resolutory condition implied in the contract of sale can not be enforced without restoring to the buyer the purchase notes outstanding and such portions of the purchase price as the buyer has paid on the property. This is a condition precedent. Walden vs. Bank, 2 Rob. 179; Lee vs. Taylor, 21 An. 514; George vs. Knox, 23 An. 355; Heirs of Oastle vs. Eloyd, 38 An. 587; Wilmot & Oo. vs. Steamer Ouachita Belle, 32 An. 610; Heirs of Burney vs. Ludeling, 41 An. 632.</p> <p>Where this exception is not specially pleaded in the lower court, or where it is so pleaded in the lower court but waived on appeal in the Supreme Court, the exception will not be made or sustained by the Supreme Oourt on the appeal. McKenzie vs. Bacon, 40 An. 167; Ware vs. Berlin, 43 An. 534.</p> <p>The law is well settled, not i'only by the textual provisions of the code, but by repeated decisions of the Supreme Oourt, that in all cases of rescission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract. McDonald vs. Vaughan, 14 An. 728.</p> <p>It is necessary to put defendant in default in order to render the resolutory condition available. Poydras vs. Turgeau, 14 La. 37.</p> <p>‘ The restoration or offer by the seller to restore the portion of the price paid by the buyer is a condition precedent to the seller’s rights to claim damages, fruits or revenues from the buyer on account of the property, and this obligation by the seller can not be offset by claims for damages, fruits or revenues from-the buyer. Until the seller returns the price paid he can not claim the property back nor any damages, fruits or revenues from the buyer on account of the property.</p>

/y^PPLICATION for Writs of Mandamus, Prohibition and Certiorari., Two bonds can not be exacted of an applicant for an appeal. The conditions of an appeal bond being fixed by law the court has no power or authority to add other and more onerous conditions. A fortiori it can not require a special bond to cover damages not covered by the appeal bond.

PPEAL from the Tenth District Oourt, Parish of Rapides. Andrews, J. Plaintiff sues to annul and set aside a certain act of conveyance and for damages.

<p>APPEAL from the Ninth District Court, Parish of Red River. J.</p> <p>To entitle a creditor to intervene in the suit of another creditor of the- ■ common debtor it is necessary that such intervenor have a direct interest in the result of the suit by such other creditor, and the intervenor must be confined to his own interest therein.</p> <p>Such a creditor can not intervene in the suit of another creditor-against the common debtor for the purpose of obtaining in his-own favor a separate judgment against the common debtor. Lincoln vs. New Orleans Express Oompany, 45 An. 729; 44 An. 843.</p> <p>Where such a creditor, prior to his intervention in the suit of another-creditor, has brought a separate suit against the common debtor, he will not be permitted, on intervening in the suit of another creditor against the common debtor, to disintegrate the issues involved in his own suit, and try such issues piecemeal in his-intervention.</p> <p>Where the cause of action is not stated in the petition with sufficient precision, and the effect has been to surprise the defendant and prevent him from setting up the proper defence, the case will be remanded with leave to amend. Gremillion vs. Bonaventure, 4 An. 60.</p> <p>The decision of questions which turn on the construction of the petition, on which the rights of a litigant depend, ought not to irrevocably conclude such litigant in cases where the party and his counsel may well be misled. Barrett vs. Zacharie, 2 An. 656-</p> <p>Where plaintiff demanded a jury trial, without putting up the jury fee, the case was placed on the jury docket, but not stricken from the non-jury docket; the defendant- attended court till the judge announced there would be no jury the following week. The defendant failed to attend that week, and the plaintiff took judgment against him on the non-jury docket, when defendant-had material testimony in his favor to offer. Held: The defendant is entitled to a new trial, though the case should not have been placed on the jury docket. Lanier vs. Shuler, 13 S. W. 614; 77 Tex. 24.</p> <p>From the adoption of our O. P. it has been the settled construction of Arts. 389, 390 that the interest required to authorize an intervention must be direct and closely connected with the object in dispute, founded on some right, claim or lien either conventional or legal, and that ordinary personal creditors of a defendant have no right to interfere with the administration of justice between him'and other individual creditors who are pursuing their claim in the ordinary mode of legal procedure. Brown vs. Saul, 4 N. S. 434; Pierre vs. Marr, 7 N. S. 196.</p>

<p>APPEAL from the Ninth District Court, Parish of Red River. Hall, J.</p> <p>'The objection to citation in a suit commenced by conservatory pro- / cess is waived by bonding the property. Cross on Pleadings, p. 165, Sec. 170; Bush vs. Dewing, 24 An. 272.</p> <p>The bonding of property attached was giving an effect at least equal to an appearance curing a defective citation or absolute want of citation. Williams et al. vs. Gilkerson-Schloss Commission Company, 45 An. 1013.</p> <p>The map of a surveyor made from an ex parte survey may be received in evidence as a memorandum from which he can testify.</p> <p>The unsworn interpretation of a written transfer, made several years previous, which interpretation was made, written and signed several years after the transfer, is not admissible in evidence, when the party who signed it is present and sworn as a witness.</p> <p>Commercial partners are bound in solido for the debts of the partnership. O. C. 2873.</p> <p>They (particular partners), in order to entitle them to the protection, of this rule of law (that is, not to be bound by the acts of particular partners), must not do, or consent to nor suffer anything to be done, which may hold them out to the world as general . partners; and it would always be prudent and proper to give public notice to the community that the partnership is special and of the particular species or traffic to which it is confined. Smith on Mercantile Law, p. 73.</p> <p>If the partners are privy and silent and permit him to go on dealing in this way without giving notice, the question will be whether-subsequent approbation is not equivalent to previous consent. Story on Partnership, note p. 212.</p> <p>A debtor can not repudiate a contract of which he retains the fruits. 36 An. 259.</p> <p>Though a partnership engaged strictly and solely in the business of farming by raising the products of the farm has no occasion to draw bills of exchange, and one partner can not bind the rest by such bills, it is otherwise when the firm is engaged in conducting a saw-mill and buying and selling lumber. In such cases the firm is properly a trading partnership, and can bind each other by drawing bills of exchange. 22 Howard U. S. Rep. 265.</p> <p>Damages for the wrongful issuance of a writ of provisional seizure will not be allowed when the seizing creditors acted without, malice and when the circumstances are such as to give probable cause for the seizure. 6 An. 402.</p> <p>The substitution of the new lessee to the old one and the discharge of the latter is a novation. 14 An. 344; 0. 0. 2185, 2189.</p> <p>The tenant of a predial estate can not claim an abatement of the rent under the plea that during the lease either the whole or a part of-the crop has been destroyed by accident unless these accidents be of such an extraordinary nature that they could not be foreseen by either of the parties at the time of the contract, such as the ravages of war extending over a country then at peace and when no one entertained any apprehension of being exposed to invasion or the like. But in these cases the loss suffered must be equal to one-half the value of the crop at least to entitle the tenant to an abatement of the rent. C. C. 2743.</p> <p>An overflow on the Mississippi river is not an unforeseen event, and does not entitle the tenant to an abatement of the rent.</p> <p>The periodical overflow of a river is not an extraordinary accident, and if a party seeks to give to an inundation that character he must show that it was unusual, unforeseen, and one to which the country is not ordinarily subjected. Vinson vs. Graves, 16 An. 162.</p> <p>21 An. 535, in which it was decided where a plantation on Red river was overflowed that it was not an unforeseen accident, and affirms Vinson vs. Graves; also Jackson vs. Michael & Murdock, 33 An. 728.</p> <p>■Overflows in the past history of this State have been frequent occurrences, and they are therefore not- of such an extraordinary nature that they could not have been foreseen. J. N. Payne, Jr., vs. James & Trager; 45 An. 381.</p> <p>Citation is necessary to each member of an ordinary partnership. Process served on one member will not bring the partnership into court, and the judgment against the partner not cited is an absolute nullity. LeBlane et al. vs. Marsoudet, 25 An. 464.</p> <p>In a purchase of real estate by a commercial partnership, the same becomes the joint property of the partners, and, by parity of reasoning, in a lease of real estate by a commercial partnership, the same becomes the joint property of the partnership. Thomas vs. Scott, 3 R. 356; May ef al. vs. Railroad Co., 44 An. 444.</p> <p>When one member of an ordinary partnership appears and bonds the property provisionally seized, such does not cure the want of citation on the other partner not cited. Love vs. Dickson, 7 N. S. 161.</p> <p>A contract of lease for a term of five years is an entity, and any over-payment for one year inures to the benefit of subsequent years.</p> <p>If in the lease of a predial estate the premises have been stated to be of a greater extent than they in reality are, the lessee may claim an abatement of rent. C. 0., Art. 2701.</p> <p>When a loss deed is made the basis of a defence, its loss need not be-advertised before it is admissible to introduce parol proof of its contents. The same is true of an administrator’s bond, and for-the same reason the notes of a surveyor, shown to be Correct, need not be advertised as lost before introducing parol evidence-of contents. Gordon vs. Penn et al., 26 An. 367; Oox vs.. Bradley, 15 An. 529.</p> <p>On a plantation that had not overflowed as late as June since 1866,. an overflow at that season of the year must be considered as-unusual, unforeseen, and one to which the country was not ordinarily subjected. It is only the periodical overflow of the waters-of a river that is not an extraordinary event. C. 0., Art. 2743;. Vinson vs. Graves, 16 An. 162.</p> <p>Repairs and reconstructions rendered necessary by an overflow must, be borne by the lessor. 0.0. 2716-17-18, 2693-94; Payne vs. James et al., 45 An. 381.</p> <p>One who secures a reduction of his taxes on leased property of fifty per cent., on the condition that he will grant a reduction of rent-to his lessee to the same extent, can not, after obtaining and enjoying the reduction of his taxes, refuse to comply with the-condition on which it was granted. Kenner vs. Holliday, 19 La.. 154; O. P. 35; O. O. 1890, 1902.</p> <p>Attorney’s fees are allowable on the dissolution of a writ of provisional seizure, as well as other actual damages. Fernandez & Co. vs. Miller, 26 An. 120; Barrimon vs. McFeely, 32 An. 1179..</p>

Ellis, J. The city of biew Orleans had ample legislative authority to grant the plaintiff the right of way in question. Section 8 of Act No. 20 of 1882, paragraph 13; Art. 243, Constitution of 1879; Sec. 689, Revised Statutes; Duplessis vs. Brown, 14 An. 842. The plaintiff does not operate a street railroad, and the grant does not cover such a franchise; hence, the Act 135 of 1888, requiring street railway franchises to be sold at auction, does not apply.

PPEAL from the Civil District Court for the Parish of Orleans. Théard, J. Any person who pays the taxes levied on an assessment in a given name is estopped from afterward alleging that such assessment is invalid. Read vs. Creditors, 39 An. 125; Factors and Traders Insurance Company vs. Levi, 42 An. 435.

<p>The plaintiff claimed one-ninth in his grandfather’s succession after having settled his interest in the property of his grandmother.</p> <p>The title to the property was in the name of the grandmother, though it belonged to the community between the grandmother and grandfather. But it was inventoried as her property and in the compromise the whole of it was treated as property belonging to her succession.</p> <p>Having-compromised on the basis that the property belonged to her succession; the heir is without right to recover a second time part of the sameproperty as coming to him from his grandfather’s estate.</p> <p>The defendant had made reasonable search for the lost document.</p> <p>The foundation required had been laid. Secondary evidence to prove its contents was admissible.</p>

<p>Itl the assessing of the shares of stock under Sec. 27 of Act. 106 of 1890, it is no ground for annulling the assessment when the list of shareholders appear in a different part of the assessment book from that in which the assessment is first noted, if there has been a substantial compliance with the law in assessing the shares to each stockholder.</p> <p>The assessment book may not be conveniently and artistically arranged, but this does not injure the bank, as it is only the agent of the shareholders for paying the tax.</p>

J. Prescription can not be accepted as intended to perfect titles in cases in which the gravest irregularities and absolute nullities.. have been propounded. 32 An. 914. When the widow and heir of the dead defendant acquiesce in the execution of a judgment affirmed against him on appeal, after-his death, they are estopped to contest the validity of that. execution.

PPEAL from the Civil District Court, Parish of Orleans. . Ellis, J. cite Sec. 31, Act 106 of 1890; lee Company vs. Tax Collector, 42 An. 669; Sec. 20, Act No. 7,of 1870.; Mullan vs. Creditors, 3.9 An. 3,97; See. 22, Act.20 of 1882.

<p>In an association like the Iron Hall where all the members, although residing in different jurisdictions, are bound by a common contract to the Supreme Rep - resentative of the order, which manages a trust fund for the benefit of the entire membership, if a court at the domicile of the association appoint to it a receiver, on account of its insolvency, it is competent for a court in another jurisdiction to order trust funds, forming a part of the trust funds held by a local branch, to be paid into the hands of the receiver.</p> <p>It is no objection to such an order that the central authority has made a regulation that only a certain portion of the trust fund shall be forwarded to it at stated times. The insolvency of the association makes the whole fund demandable for the purposes of distribution among those who have acquired rights on it.</p>

<p>The attorney appointed to assist the tax collector is not an assistant to that official in his capacity as tax collector, but is appointed as a necessity for the purpose of bringing suits, which is an employment separate from and independent of the duties of the tax collector’s office. Sec. 5á of the Act 55 of 1818 is not in conflict with Arts. 52,208,210 of the Constitution.</p>

King, J. In an action for slander of title, defendant who answers, setting np title, assumes the position of plaintiff in a petitory action, and must recover on the strength of his own title. The State, having acquired nothing from the sales absolutely null, could transfer no rights. Breaux vs. Negrotto, 43 An. 433. ' The sales to the State were null— (a) Because notice was not given the delinquent tax-payers. La. Const., Art. 210; Breaux vs. Negrotto, 43 An. 433.

King, J. PPEAL from the Civil District Court, Parish of Orleans, The words “colleges or other school purposes,” as used in the Art. 207 of the Constitution, include in their scope and meaning all places where a mental training in arts, sciences, or letters is given, and a place where stenography is taught is therefore a school within the meaning of the words. 35 N. W. Rep. 222.

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

De La Bretonne, J. The Federal Oonstitation is primarily a check upon Federal power; it exercises no restraint upon the sovereign powers of the States, except in so far as this latter effect is clearly provided for, iu the instrument itself. United States vs. Cruikshanks, 92 U. S. 550, 551, 552; Morgan vs. Louisiana Board of Health, 118 U. S. 467; State vs. Brennan, 50 N. W. Rep. 625; Ex parte MeNeely, 36 W. Ya. 881, 32 Am. St. Rep. 831.

Theard, J The question is res nova in this State and this court is at liberty tO' settle it on principle. There is a profound and logical reason for excepting blood relations, and not husbands, from the provisions of Art. 1489, C. C. The policy of the civil law is that property shall follow blood and not affinity. The husband is not the heir of the wife nor the wife of the husband, except by irregular succession. The wife excludes only the State.

Hall, J. When two persons are killed, whether by the same or different acts, the two killings constitute different crimes which can only be prosecuted separately. Wh. Or. PI. andPr., Sec. 468: Wh. Or. Ev., Sec. 587; 34 An. 1079. A judge can be lawfully recused only for one of the causes fixed by law. C. P. 338; Act 40 of 1880, p. 38, and Act 35 of 1882, p 48 ; Const. 109 and 112.

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

J. The banks of a navigable stream are public property; any one may freely land their boats, tie to the trees growing there; drag nets, deposits goods, etc. Civil Code, Art. 453; 15 An. 544-577; 33 An. 371; 40 An. 253. There is a servitude of way in favor of the public along the banks of navigable streams for levees and a public road.

Ellis, J. This appeal presents no question of law which would justify this court in reversing the sentence and judgment appealed from. Applications for new trials in criminal cases are addressed to the judicial discretion of the presiding judge, whose action will not be reviewed unless that discretion is clearly abused, to the injury of appellant.

Monroe, J. Declinatory exception is a dilatory exception. Code of Practice, 331. Declinatory exception declines “the jurisdiction of the judge before whom it is brought.” All dilatory exceptions must be pleaded before issue joined.

PPEAL from the Second District Court, Parish of Bienville. Watkins, J. A vote may be illegal, because the person casting it may not be qualified to vote at the election, or because it is given at the wrong place, or the wrong time, by a qualified elector, or because it is east without a compliance with the requisite preliminaries, or because given in an improper manner. Am. and Eng.

A' PPEAL from the Civil District Court, Parish of Orleans. ■C*- King, J. This case is entirely one of fact. The claim of the executor and executrix of last will of Mills is based upon the proposition that Mrs. Gaines collected for his account, and for his use and benefit, the sum of three thousand five hundred doll -rs, which had been decreed to him as costs in the suits of Gaines vs. Agnelly and Gaines vs. Monseaux.

Aucoin, J. The city asks no tax, but simply, under the powers granted it by the Legislature, in order to maintain, not a monopoly, but to maintain public markets, has provided that neither fish, meat nor vegetables shall be sold within prescribed limits. Evidence tending to show the alleged unconstitutionality or illegality of any fine or penalty imposed by a municipal corporation must be admitted by the police magistrate. Const. 81.

Voorhies, J. There was nothing in the ease at bar, under the statement of facts as given, upon which the court could have been called upon to charge upon the law of manslaughter, to make his failure to do so ground of reversible error. There was no evidence in. the case tending to reduce the crime below the grade of murder. State vs. Jackson, 45 An. 975.

PPEAL from the Civil District Court for the Parish of Orleans. King, J. This court is without jurisdiction ratione materise; the interest of all the appellants united amounts only to thirty-two dollars, as formally admitted by them. It is true there are two thousand three hundred dollars deposited in the registry of the court; but there are one hundred and eighty members of the Branch Lodge, so that the appellants’ respective interests are infinitesimal.

<p>The mere fact of going to the place where the accused lived and seeking an ex-, planation from him does not in itself constitute such an act of hostility as would justify the taking of human life. In order-to constitute the overt act or hostile demonstration that would justify the taking of, human life there must be some demonstration made by deceased against accused as to impress upon the latter that he was in imminent, danger, of. his life, or some great bodily-harm.</p> <p>In. some instances the extent of the overt act which would induce the accused to act in his self-defence is measured by the character of the deceased for a violent, quarrelsome, dangerous and turbulent disposition, notorious in the community or known to the accused.</p>

. Theard, J. The right to a specific performance of a contract rests in the option of the obligee. C. C. 1926, 1927. An advantage stipulated for a third person is a sufficient considera-tion for a contract. 1 An. 280; 0. C. of 1884; 0. P. 85. An action does not lie to enforce a specific performance of an agree-ment to lend money, or to make a gift.

<p>Holders o£ claims against the city of "New Orleans by .the laws and ordinances under which the claims were created, entitled to payment only, from and out. of the;funds appropriated to payment of such claims, are not entitled to an absolute judgment against the city. City Charter, Acts of 1882, Sec. 64, Session ■Acts,p. 35; Aet.No. -38 of 1879, Session .Acts, p. 57. Nor to interest on such claims, at least,- unless there are funds in the treasury applicable to payment of such claims. 39-An. 981; -42 '.An. pp. .3, -164.</p>

PPEAL from the Civil District Court, Parish of Orleans. . Monroe, J. ■‘'After' pleading a compromise in bar of a suit one can not be per- ’ '' 'mitted to repudiate the compromise because the- suit was 1' ‘ ' brought. QUi sentlt cominodum, sentire debet et onus. . 'An agreement relating to certain lawsuits can not be repudiated and - • violated by-its- intended beneficiary, .and thereafter recovered • ■ ' upon. i.......'

King, J. In a question’of law not argued, the decision is not stare decisis as to another, not a party to the case decided.

Rightor, J. PPEAL from the Civil District Court, Parish of Orleans. Plaintiffs agreed to furnish defendant with certain machinery for seven thousand three hundred and thirty dollars, of which amount nine hundred and seventy-five dollars was to be paid for a bagasse burner.

Ellis, J. A de facto officer is entitled to an injunction to prevent interference with him in the discharge of the duties of his office, by a rival claimant, until such time as the title de jure to the office shall have been judicially determined in a proper proceeding.

Landry. Perrault, J. Value need not be alleged in an indictment for horse stealing. Although not alleged, it may be proved when it tends to show guilty knowledge. A juror may be set aside after being sworn when it is discovered that he is incompetent.

Charles. Rost, J. On Motion to Dismiss. The judgment appealed from was rendered by the judge of the Twenty-first Judicial District… Held: the error is fatal. 6 N. S. 417, Watson vs. Tiera; 1 R. 96, Wadsworth vs. Harris. 0. P. 575: “Appeal bonds in all cases of appeal shall be made payable to the clerk of the court which rendered the judgment appealed from.” 22 An. 133, Jaffray vs. Bruff. The judgment appealed from is rendered by the Twenty-first Judicial District Court.

Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne. Held: and forced the collation of the same, in a proceeding like this. Vide 19 L. 263, Gillespie vs. Day. 40 An. 334, Succession of R. H. and Sarah J. Hallie — the question here being almost identical to the one at bar, the question of the collation of slaves in which there was no written act of donation.

<p>The holder of a concurrent mortgage note has the right to assert his preference for payment on theiprocecds of the sale of the mortgaged property over the transferrer, the payee of the note, by third opposition.</p> <p>While it may not be necessary to make the mortgagor a party, it is not fatal to the proceedings if he is made a party defendant, and a personal judgment prayed for as against him. These matters concern the mortgagor and in no way affect the mortgagee, who is interested only so far as the opposition is concerned with contesting the iDreference claim of the third opponent.</p> <p>If the agent of the maker of a mortgage noto has no funds of the principal in his possession there is no reason why, on the request of the principal, ho can not buy for his own account the mortgage note and hold it as security for the amount advanced for the principal.</p> <p>If the agent has money of the principal in his possession and purchases the note, and makes a payment thereon with the funds of the principal, this payment will be considered as having been made by the principal, and the mortgage will be extinguished by confusion to the amount of the payment.</p> <p>A mere indorsement of the note carries with it the mortgage security.</p> <p>The offer of testimony to show in what manner the agent acquired the note is not a contradiction of the indorsement when it is restricted as to whether the agent purchased the note for his own account with his funds, or for his principal with the latter’s funds.</p>

PPEAL from the Tenth District Court, Parish of Avoyelles. Coco, J. Fieri facias, unsupported by judgment, will be enjoined at suit of any person whose rights or interests in or upon the property seized may be injuriously affected. C. P. 296; 19 An. 189; 31 An. 134; 30 An. 800; 33 An. 222; 34 An. 89. One who claims only preference on the proceeds of a legal sale of the property seized is without interest to oppose such injunction.

Ellis, J. The trial court is vested with discretion to continue a case if it thinks justice requires it, and it is also a matter resting within its discretion whether, pending the trial, it will delay the proceedings for the purpose of enabling the State or the defendant to bring in additional testimony. State vs. Vigoreux, 3 An. 309.

<p>1. "When a will is established to have been made by the testator himself, or by a notary at his instance and dictation, in the presence and hearing of the subscribing witnesses, unaided by others, and its provisions and expressions are sage and judicious, containing nothing sounding to folly, these facts establish a presumption, even in the case of a person habitually insane, that it was made during the existence of a lucid intervai, and impose on those who attack the will the burden of proving insanity at the moment when it was made.</p> <p>2. Death of tlie testatrix by suicide does not raise a presumption of insanity at date the will was executed. Even when the suicidal act is unquestionably the effect of insanity, it does not necessarily follow that a will prepared within a short time previous is invalid.</p>

<p>If the propositions of law be as they are stated in the plaintiff’s petition, and the facts are to be treated and considered as they are alleged therein, the defendant’s exception of no cause of action ought not to be maintained — the authority of the appointed receiver who contests the plaintiff’s seizure, both in law and fact, being repudiated and disavowed; and also alleged to have been obtained by collusion, for the purpose of defrauding creditors.</p>

Landry. Per mult, J. Where there is no proof of any overt act or hostile demonstration of the deceased upon the slayer at the time of the killing, evidence of prior threats is irrelevant and inadmissible. 45 An. 846; 44' An. 950; 43 An. 840; 42 An. 753; 39 An. 817; 38 An, 22; 37 An. 443, 489, 644, 782, 896; 33 An. 1087; 30 An. 340; 6 An. 422; Bishop’s Orim. Procedure, 1st Ed., Vol. 2, Sec. 617; Bishop’s Orim. Procedure, 3d Ed., Vol. 2, Sees. 619 and 620; Wharton’s Orim.

Theard, J. PPEAL from the Civil District Court, Parish of Orleans. On Motion to File Transcript op Appeal Without Deposit eor Costs. This Honorable Court has time and again declared that the State of Louisiana, as the sovereign, and as matter of privilege, is entitled to litigate in her own courts without payment of costs. Succession of Townsend, 40 An. 66; State vs. Taylor, 84 An. 978; State vs. Taylor, 83 An. 1270.

<p>The property was owned jointly by the husband and the wife. The latter held under a daiion en paiement made to her by her husband in satisfaction of her paraphernal rights.</p> <p>The attack upon the title on the ground that it was a donation in disguise was without foundation in fact.</p> <p>The consideration is proved, and shows that the declarations of the wife that she was the husband’s creditor are true.</p> <p>The forced heir of the husband under no contingency would have the right to annul the title placed on record in good faith and supported by ample testimony.</p>

<p>Donations between the spouses are revocable by mutual consent, and wlien revolted, the property returns to the estate of the donor freed from any claim of his heirs for their legitime, which might have attached to the property if the donation had not been revolted. Civil Code, Articles 1493, 1559; Seudder vs. Howe, 44 An. 1103.</p>

A PPRAL from the Civil District Court, Parish of Orleans. Monroe, J. Bryant & Mather refused to carry out in good faith the contract-into which they had entered, and because of the violation of said contract by them, Fabacher, in consequence thereof, sustained-damages which are fully and specifically set out in the petition,, and are as amply sustained by the evidence.

<p>1. Section 1010 of tlie lievised Statutes makes it the duty oí a justice of the peace to order arrests for alleged crime uron the oath of one or more “credible” witnesses. It is not the statement or even the affidavit of every person upon which he is called to act or which furnishes tho “knowledge conveyed to a public officer” which opens the running of prescription against a prosecution for crime.</p> <p>2. The law contemplates that an officer shall bring a sound legal discretion to bear in ascertaining whether a charge, if made, should be seriously considered, and where, under tlie special facts of a particular case, an officer was warranted in not taking action upon what is afterward set up in a plea of prescription as his knowledge of the commission of a crime by a particular person the plea is properly overruled.</p>

Rightor, J. When a Constitution provides for the qualification of certain officers, for their removal for certain causes, by certain authorities, and in a certain way, a Legislature is incompetent to prescribe, as to those same officers, for different qualifications, different causes of removal, different authorities or different ways. It can neither add nor take from the constitutional provisions on those subjects. State ea; rel. Downes vs. Towne, 21 An. 490; State ea; rel.

Moise, J. Evidence of other crimes of similar nature to that on trial is admissible to prove system, intent and guilty knowledge on part of accused in acts proved against him in a ease on trial. Citing Knobloch Orim. Dig. 173, et seq.-, Wh. Or. Ev., pars. 32, 33, 34 (note 2), 35, 36 (note 6), 37-40 (note 4), 43-44 (note 1), 45 (note 2), et seq.; Bish. Or.

Reid J. cite: 35 An. 764; 43 An. 365, 995; 44 An. 976; 30 An. 889; 19 An. 395; 38 An. 480; 33 An. 1410; 34 An. 392, 489; 39 An. 868; 37 An. 165, 576; 34 An. 919, 991; 41 An. 1067; 44 An. 160. Bad character may be proved against a witness for the purpose of impeaching his credibility, though the witness who testifies as to his character fail to state that his character or reputation is such that he would not be believed when testifying on his oath.

PPEAL from the Oivil District Oourb, Parish of Orleans. Monroe, J. Under Art. 207 the property employed in the manufacture of machinery is exempt from taxation, even when leased by the owner to a manufacturer. The relator employs his property for a renting purpose, not for a manufacturing purpose. The manufacturer may claim exemption because of the meritorious employment he makes of his property, to-wit, its use in manufacture.

Rightor, J. PPEAL from the Civil District Court, Parish of Orleans. A contract entered into under the laws by the Oity Council can not be in any way modified or impaired by any officer of the council. To be appointed annually means to appoint each year. A party can not enjoy the fruits of a compromise and at the same time repudiate the corresponding obligation imposed on him by it. Stewart vs. Haas, 23 An. 784.

Monroe, J. PPBAL from the Civil District Court, Parish of Orleans. Separate assessments of the naked real estate, and of the improvements upon it, áre violative of Sec. 16 of Act No. 106 of 1890, and are absolutely null and void. Under See. 32 of Act No. 106 of 1890, the delivery of the tax roll to the recorder of mortgages does riot operate a lien or mortgage upon the property until the 31st day of December of the current year.

PPEAL from the Civil District Court, Parish of Orleans. King, J. Up to and including the year 1886, the jurisprudence of the United States Supreme Court was that a judgment of condemnation and a sale under the confiscation act divested the confiscates of a life estate or usufruct in the property sold, and deprived him of the exercise of any right of ownership over the naked ownership of the same; and that, at his death, both elements of ownership were united in his heirs.

King, J. A gratuitous donation is never presumed; the presumption of law is against any such donation. The donor must reserve enough from his possession for a subsistence, and unless he does so, any donation made by him is a nullity. C. C. 1497; 11 Rob. 302. Plaintiff claiming on a loan can not recover by proving a deposit. 10 R. 92, Bouehé vs. Michell.

King, J. No amendment can be admitted after the case has been tried, argued and submitted. 11 K,. 418; 12 An. 116. A supplemental and amended answer alleging insanity filed under these circumstances was properly stricken from the record on motion of the plaintiffs, although it was styled a peremptory exception.

<p>APPEAL from the Civil District Court, Parish of Orleans,. Ellis, J.</p> <p>cite: High on Injunction, Secs. 1138-9, 1175; Bird vs. Lake, 1 Hun. and Miller, 111; McCaull vs. Braham, 21 Blatch. 278; Hardy vs. Martin, , 1 Cox’ Eq. Cases, 26; Diamond Match Oo. vs. Roeber, 106 N. Y. 486; 39 An. 904.</p> <p>The precise question submitted by defendant in the instant case was ■ tendered to and received decision from the Supreme Oourt of this State in Levine vs. Michel, 35 An. 1121, and ought to be,. as we have no doubt it will be, determinative of this case.</p> <p>cite: O. C., Art. 1934, 2125; 38 An. 869; 23 An. 397; Field’s Law of-Damages, pp. 142-3.</p>

<p>A paper in the nature of a counter letter to the effect that the person executing it has no interest in certain property apparently conveyed to her by authentic act is effective as a renunciation of title, and protects the purchaser acquiring ' ■ the property from-the party in whose favor the renunciation is made. Civil, . ' Code, Arts. 2239, 2240, 2242; 7 La. 151; 10 La. 411.</p> <p>The appellant, in good faith, seeking in this court the determination of a question, affecting liis rights will not be made to pay damages, merely because the supposed questions admitted of easy solution without appeal. •</p>

PPEAL from the First Recorder’s Oourt, City of New Orleans. Adams, J. Ordinance No. 92, O. S., of the City of New Orleans, making it unlawful for any one to sell, barter, exchange, or otherwise dispose of any lottery ticket or- token of any kind, is a legal and constitutional ordinance.

<p>APPEAL from the Civil District Court, Parish of Orleans. Bightor, J.</p> <p>An heir can not require that property given as a particular legacy be applied to pay debts, when there is more than enough of other property.</p> <p>When a widow in community and executrix and an heir file a schedule of debts, and show there are debts to be paid and, excluding the legacy, no money to pay them, and demand an •order of sale of enough property to pay the debts, and at ■the same time demand that the residue of the property be sold to effect a partition, and the only other heir admits that the property can not be divided in kind, and prays for a partition by lieitation, a judgment ordering a sale of all the property,not included in the particular legacy and reserving all other issues is an interlocutory order from which no injury follows, and, being in accord with appellant’s prayer, she can not appeal. At all events on the pleadings and admissions the judgment should be affirmed.</p> <p>When there is no prayer to reduce a donation to the disposable portion, and no such issue is made, a defendant in a petition to sell property to pay debts and to effect a partition has no right to demand that her right to bring action to reduce the donation be reserved to her. .,</p> <p>When a ease has been tiled on evidence freely admitted and-' decided, the reservation of rights of action set up, but not formally decided, would be a matter in the sound discretion of the trial judge, and his failure to make a reservation not-asked is no error in law.</p> <p>It would be error in such a case for a judge by such a reservation to-make a suggestion of an action in disregard of filial duty, which, had never been biought.</p> <p>Where an issue is distinctly raised, looking to the reduction of' a will as in excess of the disposable portion, it is an error-for the court to reserve said objection to be urged against the-executor’s account. Such a claim must be made by direct action. 10 An. 28; 0 . O. 1504 et seq.</p>

A PPEAU from the. Oivil District Oonrt, Parish of Orleans. ^ Rightor, J. An “open policy” of marine insurance, entered into between defendants and certain foreign insurance companies in New York (not located in this State, as required by Act No. 76 of 1886) contains the following provision: “ No risk is to be insured by this policy until a letter is signed by A. B. and addressed to the president of the company, detailing the name of vessel, particulars of shipment, with…

^I^PPLICATION for Mandamus. It is submitted that the question of a suspensive appeal from a judgment ordering a cession of property,' etc., pursuant to Act 134 of 1888 is res nova. 'The appointment of a provisional syndic is but an incident or sequence of the decree, and to say that because a suspensive appeal will not lie from such an appointment, ergo, such an appeal will not lie from the decree of cession, is a non-sequitur. 'That a suspensive appeal does not lie from a…

Rightor, J. It is the duty of the Attorney General to institute proceedings against all corporations to obtain the forfeiture of their charter in case of the violation of the law. Held: that the State can not be estopped in demanding the dissolution of the corporation for misuser and non-user. See People vs. Phoenix Bank, 24 Wend., {Ijí. Y.) '451; People ys. Kingston, 23 Wend. (N. Y.) 195; R. S, 131; 16 An. 98, 190: 38 An. 8.15; Bigelow on Estop. -485-6.

King, J. ' Joseph Hernandez died testate April 17, 1893. He left a widow by second marriage, Augusta L. Hernandez, three children, majors, and the minor children of a deceased child, all issue of his first marriage. He had been divorced from his first wife by a decree of the District Court of St. Bernard rendered in October, 1881. He had made bequests to the wife by second marriage.

Bernard. Livaudais, J, The Third National Bank of New York is in this cause as a third opponent, claiming to be a creditor of the defendant for a large amount, asserting a chattel mortgage on the dredge Kinta, executed in February, 1890, to secure the indebtedness, and alleging that it, the opponent, was in possession of the dredge as pledgee.

Caillouel, J. In a criminal case a juryman examined on his voir dire by the State, and tendered to and accepted by the accused as a competent juror, should not be further questioned by the State with a view to challenge him for cause. 5 An. 820.

Rightor, J. The proceedings for the sale of the property at private sale to effect the partition, were strictly in accordance with law, as approved by this Court, in the cases of Durruty vs. Musacchia, 42 An. 357; and Bruhn vs. Firemen’s Building Association, 42 An. 481. The administrator has no right to provoke a sale for the mere purpose of effecting a partition between heirs where there is no necessity thereof for the payment of ,the debts.

King, J. When a person, against whose future property judicial mortgages are recorded, acquires, as forced heir, an undivided one-third… Held: that the judgment against one of the heirs did not give him a judicial mortgage on the heir’s share in the immovables of the succession. 'u The widow in community can not, while the succession is still under administration, and before its debts are paid, and her residuary interest thus definitely ascertained, execute a valid mortgage…

Monroe, J. Act No. 87 of 1888 is a valid inspection law. The Slaughterhouse Charter was based on the police power ofj the State, and, being an exercise of the police power, it was not a contract, and the Legislature could at any time repeal or amend any part of the charter. The fact that part of a title is unconstitutional does not make the whole law unconstitutional. State vs. Exinicious, 33 An. 253; State vs. Crowley, 33 An. 782; Williams vs. Lodge of Masons, 38 An. 620.

King, J. This is a contest over an account of distribution presented by the executor of this succession. Held: the delivery of the keys of a warehouse is a delivery of the goods that are in it. The common law also recognizes the principle that possession may be held by a third person for the pledgee. 43 N. H. 430, Bruns vs. Warren; 18 N. H. 285, Tibbetts vs. Flanders; 3 Tenn. Oh. 13, McOready vs. Haslock; Jones on Pledges, Secs. 34, 35.

Monroe, J. PPEAL from the Civil District Court, Parish of Orleans. Subscribers to the capital stock of the Citizens Bank are personally liable for the amount subscribed. Charter of the bank and laws amendatory thereof; Angelí and Ames on Corporations, 10th Ed., p. 528; Morawetz Priv.

<p>APPEAL from the Fourth Judicial District Oourt, Parish of Grant. Ware, J.</p> <p>ON MOTION TO DISMISS APPEAL.</p> <p>Unless the allegations of the petition show affirmatively that the amount in dispute exceeds two thousand dollars the appeal will be dismissed. 39 An. 113, Hite vs. Hinsel; 35 An. 311.</p> <p>When the allegations of neither party show that the amount in dispute exceeds the lower limit of the appellate jurisdiction the appeal will be dismissed ex proprio motu. 35 An. 496.</p> <p>ON PLEA OP RES JUDICATA.</p> <p>The title to property having been once passed upon is res judicata between the parties to the suit and their privies. 22 An. 81, M. A. Leatts vs. Heirs of Williams; 30 An. 838, Compton vs. Sanford.</p> <p>The plea of res judicata prevails as to all parties and their privies in the suit where the judgment was rendered, notwithstanding there may have been other parties to the suit. 30 An. 576, Ledieux vs. Barton.</p> <p>A vendee acquires no better rights than his vendor had. 10 An. 570, Dusson vs. Beller; 1 Rob. 87, Oliver vs. Stephens.</p> <p>Matters once determined between parties and privies can never be passed upon between them again. 43 An. 941, Broussard vs. Broussard; 34 An. 805.</p> <p>The verdict of a jury in a civil case has the force of the thing adjudged on the issue passed upon. 38 An. 570; 19 La. 318.</p> <p>This plea is to be determined by the issues raised by the pleadings and the judgment rendered. 35 An. 554; 17 La. 92; 7 N. S. 430.</p> <p>The plea of res judicata may be presented in any form of pleading, and whenever the same question recurs between the same parties or their privies it estops. 44 An. 289; 35 An. 553.</p> <p>PRESCRIPTION OE THIRTY YEARS.</p> <p>A title acquired at a sheriff’s sale prevails until set aside by a direct action. 41 An. 1135; 24 An. 445.</p> <p>Prescription based on title is coextensive with limits of title. R. C. C., Arts. 3498, 3437; 11 An. 471; 1 Rob. 159.</p> <p>Possession once commenced continues by intention. 9 An. 155; R. C. 0., Arts. 3442, 3443, 3444.</p> <p>' A possessor who proves that he has formerly been in possession shall be presumed to have been in possession in the intermediate time. 24 An. 453; 16 La. 10.</p> <p>Possession of cleared land is possession of woodland adjoining on the tract. 37 An. 751.</p> <p>A confirmation by Congress of a Spanish grant is a prescriptible title. 40 An. 710; 5 An. 647.</p> <p>ON CONFIRMATION OF SPANISH GRANT.</p> <p>Lands which passed into private ownership previous to the treaty of cession between the two governments are not subject to control of tlfe United States. 40 An. 710; 15 An. 673; 5 An. 647.</p> <p>One having no title to the lands when confirmed can not contest the confirmation. It is conclusive. , 14 An. 98.</p> <p>Possession under a requete conferred title in a Spanish subject, a fortiori would possession under an order of survey. 3 An. 59.</p> <p>A confirmation dates back to the time claimant filed his claim, and is not defeated by an entry of the United States government, even before the confirmation. 9 An. 157.</p> <p>A government map returned by the surveyor general without notice of private claim does not defeat the rights of the confirmee. 9 An. 102-3.</p> <p>A confirmation by Congress for a certain number of acres on a particular stream, founded upon an order of survey, is a complete title. 4 An. 482, Pay vs. Chambers.</p> <p>A survey by the government is not necessary to complete a title to a confirmation, unless the claim is confirmed as a floating claim. 9 An. 103.</p> <p>Parol evidence is admissible to prove contents of deed when the original is shown to be lost or destroyed.</p> <p>The recitals of an authentic act estop the parties thereto. 28 An. 107; 15 An. 684.</p> <p>Where United States patents are issued for land prior to the definite location and survey of a Spanish grant, the patents are the superior title and must prevail. 11 La. Rep. 323, 587; 3 Rob. 293; 6 Rob. 139; 96U.S.530; 2 Wallace, 525; 7An.546; llAn.561; Act of Congress to same effect.</p> <p>Parol evidence will not be received to prove title, unless the loss of the original and the non-existence of a copy is first shown. 39 An. 94; 45 An. 451.</p> <p>By offering titles and asking a judicial investigation of them, the plea of res adjudicata, based on a part of the same titles, is waived and renounced. The offerings and the plea are inconsistent and can not stand together.</p> <p>In a petitory action it is sufficient to defeat the action for the defendant to show a valid outstanding title in any one but plaintiff.</p> <p>To support the plea of res adjudicata it must be shown that the two suits are between the same parties, in the same capacities; that the cause of action is the same, and that the thing adjudged is the same. All doubts are to be construed against the plea. 43 An. 216.</p> <p>Where, in sales and • mortgages, the property sold and mortgaged is described so vaguely and indefinitely that it is impossible to locate the land by the description given, such sales and mortgages are null and void for want of description of the property.</p> <p>A Spanish grant described as “ a tract of land of twenty arpents front by forty arpents in depth, equal to six hundred and seventy American acres, situate on the Rigolet du Bon Dieu, in the parish of Natchitoches,” could not be validly sold or mortgaged by this description, prior to its definite survey and location. Particularly where it is shown that the Rigolet du Bor^ieu in Natchitoches parish was then sixty or seventy miles in length.</p> <p>The plea of res adjudicata is stricti juris, and must be established beyond question, and all doubts enure to the benefit of the party against whom it is pleaded. 43 An. 214.</p> <p>The mere confirmation of a claim without location is not good against land sold by the United States and patented. 18 Howard, 473; 11 La. 587; 11 An. 561; 7 An. 546.</p> <p>A judgment of the Supreme Court is often the reverse of the judgment of the District Court, and therefore the pleading of a judgment of the Supreme Court as res judicata is not pleading the judgment of the District Court.</p> <p>Evidence is not admissible to prove what is not alleged, nor will the judgment of the District Court, as evidence, sustain the pleadings of res judicata of the Supreme Court.</p> <p>A record made up of extracts from a record in the Supreme Court is a mutilated record and not admissible in evidence.</p> <p>The defendants in Hickman vs. T. J. Wells et al. are not legally the same as the plaintiff in this suit. She does not allege or prove that she derived the title she sets up from or through them.</p> <p>On the contrary, the title by which she alleges herself to be owner is antagonistic to and inconsistent with the title adjudged to the defendants in the suit of Hickman.</p> <p>A judgment sustaining a title can not be invoked as res judicata to sustain a title to which it is antagonistic and destructive.</p> <p>The identity of the land in controversy with the land adjudged to T. J. Wells, Hughes and Bailey in the suit of Hickman is not shown.</p> <p>In questions of res judicata every doubt is construed against the plea. Toul. 10, Sec. 157; 43 An. 216.</p> <p>A possessor in good faith, if evicted, owes rent only from the time the thing is claimed by the owner. C. O. 3416.</p> <p>A possessory action is not a claim of the thing by the owner.</p> <p>A fortiori, a possessory action in which the plaintiff fails does not make the possessor in good faith a possessor in bad faith or responsible for rent until the thing is claimed in a petitory action by the owner.</p>

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

Buchner, J. Cite 44 An. 295; 2 L. 299; 15 L. 527; 7 R. 183; 12 R. 258; 2 An. 339; 4 L. 571; 5 An. 113; -35 An. 355; 30 An. 861; 33 An. 605, 1321; 32 An. 1218; 35 An. 359, 419. The appellant must bring up a complete transcript of the record and trial of the case below, othei'wise his appeal will be dismissed.

Montgomery, J. Articles 1986 and 1988 of the Civil Code are to be construed together, and do not apply in the case of an insolvent debtor who has obtained a respite, as the law does not contemplate that such debtor can pay his favored creditors in violation of the terms of the respite, or that the only consequence of such fraudulent payment shall be that the creditor so preferred shall be compelled to share the loss ratably with the complaining creditors. “'The law gives to…

King, J. Property owner bound to repair paved banquette. Sec. 36, Act 20 of 1882 (City Charter). ( Responsibility for malfeasance. C. O. 2315. Responsibility for non-feasance. O. C. 2316. Louisiana sidewalk cases, damages allowed. O’Neill vs. City, 30 An. 220; McCloughry vs. Einney, 37 An. 27. Obstructions in highways nuisances.

<p>In. the absence of fraud or demonstrable error a party recognizing the existence of a corporation by subscribing for its stock can not defend an action on his subscription by impeaching the existence and capacity of the corporation.</p> <p>The defendant having taken a loan as a stockholder, can not sustain the plea of the want of capacity of plaintiff to sue for the recovery of the amount loaned.</p> <p>After issue joined, the filing of an exception of no cause of action will not be heard to defeat the admissions of the answer.</p> <p>The exception must be decided with reference to the issues at the time it is filed.</p> <p>The answer and the testimony, that had been admitted without objection, at the time the exception was filed, showed an issue of indebtedness and precluded the possibility of returning to the allegations alone of the petition, to determine whether they were sufficient to maintain the suit.</p> <p>On the Hekits.</p> <p>The defendant has a right to the amount paid by her to the association, and to her annual dividends to the date of default, and they are credited on her indebtedness.</p> <p>The attempt to forfeit these amounts fails.</p> <p>The association provided that every member should pay weekly instalments on each of his shares; that, as often as the funds of the association should warrant it, the same should be put up to competition among the members, and the member offering the highest premium should be entitled to them, and should secure the payment by satisfactory security and pledge of shares, and should pay from the time of purchase interest at the rate of six (6) per cent, per annum in weekly instalments on the loan and premium capitalized, as a redemption fee; that whenever any stock which had been pledged should become equal in value to the indebtedness for which the same was pledged, the stock should cancel the indebtedness and it, the indebtedness, should be considered satisfied and be discharged.</p> <p>The defendant purchased shares according to the articles of the association, received the amount of these shares, deducting the premium or discount, and gave security to secure both the loan and the discount.</p> <p>Held: That the note and mortgage given as security are valid, and the sums secured are not usurious.</p>

<p>Plaintiff, holder o£ evidences o£ indebtedness sues for judgment against the defendant.</p> <p>There are no funds in the treasury for the years the debts are due.</p> <p>The ordinance under which the defendant became indebted provides, that the claims shall be warrantable and payable whenever there shall be money in'the treasury to the credit of the apppropriate funds.</p> <p>It is the law of the contract binding the original claimants and their transferee.</p> <p>The creditor has a right to a warrant on the treasurer, payable out of the appropriate fund.</p> <p>Prescription. That plea docs not attach to a right for which judgment can not be obtained.</p> <p>There is a suspension of prescription on those rights for which plaintiff has no cause of action.</p> <p>The principle contra non valcntem applies.</p>

Bightor, J. An executrix who is directed to retain in her hands and administer a legacy left to a minor is a “ quasi tutrix.” 45 An. 962, Succession of Stephens. If such an executrix has herself discharged from her office and takes, possession of the entire estate of the decedent as universal legatee, the dative tutrix can claim the amount of the legacy from her.

<p>Where, under the advice of a family meeting, duly held and homologated, certain immovable property of the minor, alleged to belong to him by the tutor, is exchanged for other property of the same kind, the judgment of the court author - • izing and approving the exchange is conclusive between the tutor and the minor. The property exchanged for the minor’s property becomes their property irrevocably as against the tutor and those claiming through or by him, and including creditors whose claims originated after the judgment.</p> <p>In a settlement with the minor, personal property which has become old and worn out, and with the proceeds of the sale of the property it is replaced by other property, the latter belongs to the minor.</p> <p>When the tutor inflates his credits and pays no money to the minor, and on the settlement turns over property only which belongs to the minor, the creditor of the tutor, for the debt due by the tutor to the minor, has no right to subjec.t the minor’s property thus turned over to the satisfaction of his debt. The creditor, therefore, has no interest in insisting upon an exact statement of the tutor’s accounts in such a case.</p> <p>When the tutor has had the use of the minor’s plantation for along period of years, and pays no rent, but charges himself with it, the property, upon which the minor has a lessor’s privilege, will be subjected to the payment of said rent.</p> <p>On Application por Rehearing.</p> <p>1. The separate creditor of either spouse has the right, after the dissolution of the community, to have the community liquidated, and to subject according to law to the satisfaction of his claim the interest of his debtor thus ascertained.</p> <p>2. The separate creditor of the husband can not, after the community has terminated by the death of the wife and the rights of the parties have become fixed by that fact, deal with an undivided interest in any specific piece of property, if it belonged to the community,*as if the husband had the absolute ownership of one undivided half thereof. He has not the right to seize directly an undivided interest in a specific piece of property, sell it, and apply the proceeds of the sale to the payment of his debt.</p>

Monroe, J. Revenue laws having for their object forced levies upon the property of the citizens are subject to strict construction. Every provision of such laws which is intended for the protection of the tax-payer to insure justice and equality of taxation, is mandatory, and failure to comply with them imposes the penalty of nullity.

Brame, J. ‘ ‘ Shares or interests in banks and other companies of commerce or industry are considered as movables.” O. O. 466. Title is acquired by prescription in three years when possession has been in good faith, except where the thing be lost or stolen; in ten years without title or good faith. O. O. 3472, 3475; 31 An. 228; 35 An. 779, 781; 42 An. 729. In executory process “ improper service or lack of service ” is prescribed by five years.

<p>APPEAL from the Civil District Court, Parish of Orleans. King, J.</p> <p>cite C. C., Arts. 2692, 2695, 2698, 1934; 43 An. 817; 6 An. 487; 14 An. 564.</p> <p>cite C. C. 2700, 2697; 9 An. 527; 33 An. 1343; 12 An. 823; 6 An. 279; 17 An. 321; 11 An. 695; 37 An. 532.</p>

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

PPEAL from the Civil District Court, Parish of Orleans. . Monroe, J. Fraud must be specially alleged and proved beyond doubt. The . onus is upon the opponent who alleges that certain claims are fictitious. On opposition to insolvent’s discharge; when evidence is admitted, under objections, for the purpose of showing fraud, a judge is incompetent, ratione materise, to consider such evidence.

Theard, J. In the exercise of a franchise to lay tracks upon a public street or highway, a railroad company owes to the inhabitants thereon the duty to lay them in such a manner as to interfere as little as possible with their equal right to the enjoyment of the street or highway, and so as to make the use of the highway as little more dangerous or inconvenient as possible.

<p>APPEAL from the Oivil District Court, Parish of Orleans. Ellis, J.</p> <p>Where the dead body of an insured is found under such circumstances and with such injuries, that death may have resulted from negligence, accident, homicide or suicide, the presumption is against suicide as contrary to the general conduct of mankind and a gross moral turpitude. May on Insurance, p. 459, Sec. 325; 47 N. Y. 52; Guardian Ins. Co. vs. Hogan, 50 111. 35; 127 U. S. 667.</p> <p>The burden of proof is on an insurance company when it alleges that deceased committed suicide, and the evidence must exclude all other reasonable hypotheses. Circumstantial evidence which does not exclude all other reasonable hypotheses proves nothing. 26 An. 405, Philipps vs. La. Eq. Co.; 142 U. S. 691, Home Benefit Ass’n vs. Sai'gent; 85 N. Y. 317, Penfold vs. Universal Life Insurance Co ; 20 E. R. 662, Edwards vs. Travelers’ Insnranee Co.; 47 N. Y. 52, Mallory vs. Insurance Co.; 30 Hun. N. Y. 535, Germain vs. Brooklyn Life Ins. Co.; 9 S. W. R. 812, Mutual Life Ins. Co. vs. Davies; 16 S. W. R. 723, Accident Ins. Co. vs. Bennett; Am. Digest 1890, p. 2046, No. 497; Am. Digest 1891, p. 2399, No. 451; 29 E. R. 198, Keels vs. Mutual Res. Fund Life Ass’n; 47 F. R. 272, Ingersoll vs. K. G. C.; 127 U. S. 667, Travelers’ Ins. Co. vs. McOonkey.</p> <p>Inquests are not admissible as evidence of causes of death. May on Insurance, p. 705, Note 4; Goldschmidt vs. Mutual Life Ins. Co., 7 N. E. R., 407; U. S. Life Ins. Co. vs. Kielgast, 26 111. App. 567; Am. Digest 1889, p. 2033, No. 406; Neblock Mutual Benefit Societies, p. 210, Sec. 175; Mut. Life Ins. Co. vs. Schmidt, Ohio, 8 Am. Law R. 629; Cook vs. Stand. Life and Acc. Ins. Oo.,47N. W. R. 568.</p> <p>Plaintiff is not estopped by the statements made in “proofs of claim.” She may show, and has shown, that such statements were erro - neous. Home Benefit Ass’n vs. Sargent, 142 U. S. 698-9; 35 F. R. 35, Am. and Eng. Ency. Law, Vol. 13, p. 657; Note4, “Statement of Physician; ” 94 U. S. 495; 26 Til. App. 567; 47 F. R. 272, Am. Digest 1889, p. 2033, No. 406.</p> <p>Where, under a policy of insurance, which is a conditional contract of indemnity, proofs of loss must set up specifically and categorically the date, circumstances, and cause of death, etc., and proofs of loss are made in conformity with said contract, no suit will be allowed to be instituted, much less legally prosecuted, by attempting to show facts at the time the case is tried, and for the first time, which are substantially at variance with the proofs of loss furnished to the insurer. Oook on Life Insurance and authorities there cited; Mrs. Campbell vs. Charter Oak Fire and Marine Insurance Company, 10 Allen, pp. 112, 113 et seq.</p> <p>A -policy of insurance with a clause in the contract to the effect that if the assured die by his own hand, sane or insane, and in case of death by suicide the company agrees to pay the net reserve of the amount due on said policy is reasonable and legal; the courts will maintain said contracts. Bigelow vs. Berkshire Life Ins. Co., 93 U. S. 284; Pierce vs. Travelers Life Ins. Co., 34 Wis. 389; Gogorzo vs. Knicker ocker Life Ins. Co., 65 N. Y. 237; Chapman vs. Republic ILife Ins. Co., 6 Bissell, 238; Mrs. Anna Bois vs. Mass. Life Ins. Co., Court of Appeals for the Parish of Orleans, Opinion No. 284.</p>

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

PPEAL from the Civil District Court, Parish of Orleans. Bightor, J. On Motion to Dismiss. The judgment allowing this proceeding in forma pauperis was rendered contradictorily with the defendant in the District Court, and he having neither appealed nor excepted thereto can not urge objections thereto by a motion to dismiss the appeal. The granting of an application 1 o proceed in forma pauperis lies with the District Judge. 38 An. 423.

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

<p>PPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.</p> <p>Marriage in Louisiana is only a civil contract under which each of the contracting parties have their rights and obligations well defined by the law. R. O. C. 86; 25 An. 428; 32 An. 1140.</p> <p>The wife is not only a creditor of her husband for the value of her paraphernal property, alienated by him, but is a privileged creditor. R. O. O. 2390, 3215, 3319; 34 An. 788; 45 An. 774, 877.</p> <p>“ The wife may during the marriage petition for a separation of prop - erty,” etc., “when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims.” R. C. O. 2425; 23 An. 277.</p> <p>She may also obtain a judgment of separation if there is such derangement of the husband’s affairs as to render a separation necessary to preserve her future acquisitions and earnings for the uáe of herself and family. 10 An. 272; 2 Rob. 342; 24 An. 25; 3 L An. 672; 37 An. 326.</p> <p>All property owned by the wife at the time of the marriage, in absence of a marriage contract, and all the property inherited by or donated to her during the marriage, is paraphernal. O. O. 2383, 2402.</p> <p>The proceeds of insurance policies taken out in favor of or transferred to the wife are also paraphernal. 23 An. 455; 26 An. 326; 27 An. 269; 29 An. 714; 33 An. 322; 42 An. 739; 46 An. 240, Stuart vs. Sutcliffe.</p> <p>The husband can sell or transfer to the wife property sufficient to replace her paraphernal property alienated. O. C. 2446; 34 An. 995; 33 An. 536; 30 An. .745; 8 An. 485.</p> <p>The creditors of the husband have.no interest to contest the dissolution of the community vel non between Mrs. Bransford and her husband. 39 An. 385, Burns vs. Thompson.</p> <p>The interventions themselves are conclusive proof of the disorder of the husband’s affairs. 39 An. 385.</p> <p>When he who alleges insolvency shows the amount of the debts, it is incumbent upon the other party to show property in an equal or greater amount. O. O. 1985.</p> <p>A wife can not sue for a separation of property without showing that her husband is insolvent.</p> <p>Where it is manifest from all the facts that the husband and wife are acting in collusion to defeat his creditors, her demands should be rejected.</p> <p>Where the wife’s father’s succession has never been settled, she can not sue her husband as an heir thereof for claims which the husband has settled with her brother, who is practically the administrator of the succession.</p> <p>Where there is no proof that the piece of property sold by the wife was received by the husband, he is not liable on a mere pre - sumption that he received such funds. The sale by the wife is an act of administration which implies that she received the price.</p> <p>Where a life insurance policy is assigned to one of the spouses and before the death of the insured the policy is compromised and the money received from it is used by the husband and the insured in their mercantile business, the wife can not claim that the husband owes her for such policy. It was not her paraphernal property.</p>

<p>A stockholder having sued the corporation, for the annulment and revocation, of a sale of property to a director and stockholder, charging fraud and want of consideration; and the corporation having sought to justify its action by a ratification of the stockholders at a general meeting, the plaintiff will be estopped from proving that the shares of stock which were voted at the meeting were fraudulently issued without consideration, the evidence being stamped on the face of the certificates that same were certified by him as the secretary of the corporation and issued to the stockholders.</p> <p>This case is not that of a witness whose testimony is objedcteo? on the ground that he can not be heard to impeach the truthfulness of a certificate he had previously made as an officer, but that of a party who sues the corporation tion of which lie is a shareholder for the annulment of a sale which the corporation has made, and charges, as a badge of nullity, that the shares of stock which were voted at a general meeting, approving and ratifying the sale, were fraudulently issued, when in fact the certificates signed by the plaintiff as secretary of the^eorporation^show on their face that they were fully paid up at the date of their issuance.</p>

<p>PPEAL from the Fifth District Oourt, Parish of Ouachita. . R. W. Richardson, J.</p>

<p>APPEAL from the Recorder’s Court of Monroe. Endom, J.</p>

<p>In case a petition contains two distinct demands, one o£ which discloses a cause of action and the other does not, the latter may, on exception, be disregarded and the cause permitted to go to judgment on the remaining issue in the District Court.</p> <p>If in such case the exception be improperly overruled by the judge a quo, and the ruling reversed in this court, and tlieremaining issue ascertained to be one not within the jurisdiction of this court ratione material, in consequence of said ruling, the appeal should be dismissed exproprio motu.</p>

<p>Parties without titles, occupying lands, may be joined as defendants in a suit for the lands by plaintiff asserting ownership. 2 Howard, 644; 1 Woods, 624; 28 An. 644.</p> <p>Purchasers, under foreclosures of mortgages of railroad franchises and property, may organize a corporation under such name as they may adopt, which, by the organization, succeeds to such franchises and property and takes the corporate capacity of the corporation against which the foreclosure proceedings were conducted. Act 38, 1877; 148 U. S. 397.</p> <p>The grant of lands by the United States in aid of a railroad, the State named as trustee for the road, the lands to revert to the United States if the road is not completed in ten years, the lands being identified by the grant and the listing approved, as directed by the act of Congress, vests title in the railroad company, although the road is not built within the limited time specified in the act, the grantor not insisting on the reversion, but accepting the subsequent completion of the road as compliance with the grant. Act of Congress 3d June, 1856; 11th Statute at Large 18; 21 Wall.4 4; 41 An 896; 42 An. 1019.</p> <p>The State, a mere trustee, can not declare a forfeiture of thellands granted. Act 39 of 1879; 44 An., 984.</p> <p>Those who settle on such lands in the face of the grant can not hold against the railroad company, and are possessors in bad faith, though the settlements are in contemplation of homestead entries and are made after the ten year limit in the grant and the non-completion of the road within that period; for all gave notice that the grant by its terms takes effect from its date, and that conditions subsequent, i. e. the non-completion of the road, may be W'ai ved and can be insisted on only by the United States by declaring the lands open for entry or equivalent act revoking the grant. O. C., Arts. 50,3, 3450, 3453; 42 An. 1019; 41 An. 896.</p> <p>The claim of a possessor in bad faith for alleged improvements is, at best, sparingly admitted; on the other hand he is liable for fruits during the entire period of his possession, and this court, without clear proof of same, will not disturb a verdict which compensates a claim for such improvements by the liability o£ the possessor for fruits, the verdict not being complained of by the plaintiff. C. C. 503, 508, 2314; 16 La. 422; 12 An. 546; 33 An. 744; 41 An. 896; 42 An. 1007; 7N. S. 112; 6 Rob. 192; 6 An. 356.</p> <p>The verdict of the jury responds to the issues when the plaintiff suing for the land and its revenues, the defendant claiming the value of the improvements, the verdict determines that the demand for improvements is compensated by that for revenue, and the judgment following such verdict is unobjectionable. C. P. 519, 526; 5 M.j456; ¿ R. 84.</p> <p>Nor will such verdict and judgment be set aside merely because, after being charged, the jury were permitted to leave the court and separate before giving their verdict.</p>

<p>Robbery in one Count and Shooting iviti-i intent to Murder in another Count. — Tlie accused was charged in an information with robbery in one count, and shooting with intent to murder in another count.</p> <p>A general verdict of guilty was found against him.</p> <p>After conviction he interposed a motion in arrest of judgment.</p> <p>After hearing upon this motion the prosecutor entered a nolle prosequi as to the first count, and the court sentenced the accused under the second count.</p> <p>A Defective Count. — The verdict embraced the two counts of the information, and although the first count was vicious the verdict is not disturbed as to the count that is good.</p> <p>The effect is the same as if the vicious count had been quashed as defective. The accused was sentenced under the good count.</p> <p>Surplusage. — The defendant was charged in the second and good count with shooting with intent to murder, under circumstances other than those mentioned in Sec. 790 of the Revised Code.</p> <p>The “robbery” charged in the first count was surplusage in so far as related to the second and good count.</p> <p>THE Section under which the Information was Framed. — The accused was not prosecuted under Sec. 790 of the Revised Statutes.</p> <p>The information was framed under Sec. 791 of the Revised Statutes, and complies with the requirements of that section.</p>

<p>Newton, J., ad hoc. PPEAL from the Fifth District Court, Parish of Ouachita.</p>

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

<p>PPEAL from the Twentieth District Court, Parish of Ascension. Guión, J.</p>

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

<p>Tlie venire of jurors will not be set aside and tbe indictment quashed merely because one of the commissioners wrote the names of the jurors on a portion of the ballots in the jury box, or because there is a number on the ballots manifestly intended to designate the ward of the residence of the juror, it appearing the names were so written by one of the commissioners in the presence of his co-commissioners and clerk; and although the clerk is required by the act to write the names, and although the act requires the ballot should express the residence as well as the names of the jurors; the irregularities indicated being within the provisions of the act maintaining the venire and indictment, unless it is shown the irregularities caused great wrong to the accused. Act No. 44 of 1877.</p> <p>No foundation for the introduction of the testimony on the preliminary examination of the accused is required, other than that afforded by the certificate of the committing magistrate, save when it is claimed the witnesses are within reach of process and should be produced, then diligence to obtain their pres - ence is an issue. R. S., See. 1010.</p> <p>It is presumable that ballots in the jury box bear names of jurors written by clerks of the District Court who have passed out of office, and the testimony of the incumbent clerk, on the motion to quash the venire, that he did not recognize the handwriting on three of the ballots drawn from the box, does not authorize the conclusion that others than the clerk wrote the names on the ballots so drawn, but the inference is the names were written by the predecessors, or some of them, of the incumbent clerk, and of whose handwriting he had no knowledge. Acts 1877, No. U.</p>

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

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

<p>The refusal by a District Judge to grant an order applied for by one of three joint owners of movable property who, pending his suit for a partition of the same, had caused it to be sequestered, for a sale of the property as perishable, was within his sound legal discretion.</p> <p>The order sought being interlocutory was not subject to appeal, unless shown to work irreparable injury.</p>

<p>1. It is the duty of the appellant, not that of the clerk of the District Court, to file the transcript of appeal.</p> <p>2. An appellant has the right immediately after the perfection of an appeal to demand a transcript of the case from the clerk, and the clerk must lurnish i? within a reasonable time after demand, otherwise he can be compelled to do so by mandamus. If, however, being in default, he, before a mandamus is taken out, tenders to the appellant a transcript duly certified, the appellant can not decline to receive it and mandamus the clerk as if he had refused absolutely to furnish it, on the ground tliat the transcript tendered was so defective that appellant’s appeal might be dismissed on account of its imperfections. It is the duty of the appellant to receive and file the certified record and protect his appeal by easy and familiar methods. Appellant can not collaterally raise and have determined on a mandamus the correctness of the transcript so-tendered. Questions of that character must be raised and determined under different circumstances and conditions. When the clerk, under the circumstances stated, being ordered to file a transcript on the first day of the term of this court, or show cause to the contrary, does so on the day named, an application for a mandamus based upon the contingency of a refusal must be dismissed at relator’s costs.</p>

<p>Assessments or taxes to build and maintain levees under acts organizing and pro-Tiding for Boards of Commissioners of levee districts, though treated as local assessments not subject to the rule of conformity, or the limitation applicable to general taxation, still are taxes within the purview of Art. 81 of the Constitution, giving to this court appellate jurisdiction in all cases involving the constitutionality or legality of any toll, impost or tax whatever. Constitution, Art. 81; Acts No. 44 of 1886, No. 79 of 1890; Burroughs on Taxation, Chapter XXII; 11 An. 338, 222 ; 28 An. 323; 29 An. 460; 43 An. 339.</p>

Four net, J. Cites Johnson vs. Barnet, 36 An. 320. “ One who is himself in fault can not recover damages from another who has retaliated in kind, although the latter was not justifiable in law, and this holds good in spite of the truism that one'wrong does not justify another.” 36 An. 38; 15 An. 48.

<p>APPEAL from the Eleventh Judicial District Court, Parish of St.. Landry. Perrault, J.</p> <p>The record shows that in October, 1890, James M. Dowlingwas qualified as administrator of the succession of Mary T. Hardy,. wife of Thomas O. Anderson. That, for the purpose of qualifying as such, he furnished a bond for four hundred and sixty-four dollars, the only known property at that time being a small piece of land near the town of Opelousas, valued in the inventory at one hundred and twenty-seven dollars. That this tract, together with another-small tract in Acadia parish, which seems to have been overlooked, when the inventory was made, was sold at public auction, the price-of both amounting to two hundred and fifty dollars. Mrs. Anderson-left as her heirs a number of children and grandchildren. Prior to her death she had advanced against the United States a claim for-stores and supplies taken by or furnished to the government during the late war, which, after her death, was prosecuted in the name of her administrator, the appointment of Dowling having doubtless been made for that very purpose. The claim referred to has been recently approved by the Court of Claims to the amount of. ten. thousand six hundred and ten dollars, and although Congress has as yet taken no action in the matter, there is every reason to suppose that ultimately an appropriation will be made to pay the same and that it will be paid either to the succession representative or to the heirs.</p> <p>Matters being in this situation, E. K. Anderson, one of the sons of the deceased, and the minor'children of another son, William F. An■derson, represented by their mother and tutrix, served a rule upon the ■administrator to show cause why he should not furnish bond with ■security for one fourth over and above the said sum of ten thousand six hundred and forty dollars, conditioned as the law directs, in view of this newly obtained asset of the succession, and why, in the event ■of his neglecting, failing or refusing to furnish said additional bond, he should not be destituted of his office as administrator and Henry L. Garland, senior, should not be appointed and qualified in his place. 'The administrator excepted to the rule: (1) That it was premature in this, that there has been as yet no appropriation made to pay the claim; (2) that it is premature for all the demands therein contained; (3) that the only party in the rule is Mrs. Virginia Garland, who claims but one-fifth of the succession, the other four heirs objecting to said increase of bond, and she consequently has no right to ask a bond on the whole estate; (4) that the court can at the present only pass ■on the application for increase of bond, and can not, in anticipation of the failure to furnish a new bond for increased amount remove the present administrator, should he fail to comply; (5) that no one else can be appointed ex officio by the court; that no appointment can be made without previous publication required by law.</p> <p>Mrs. Virginia Garland subsequently intervened in the rule as administratrix of the succession of her first husband, William F. Anderson, making the same allegations and prayers in that capacity as she had previously made in her capacity as tutrix.</p> <p>This intervention was filed by reason of an exception taken to the application of the tutrix for an increase of bond on the ground that the succession of William F. Anderson had been placed under administration, with his widow as the administratrix thereof, and the ■administratrix was alone authorized to require an increase of the ■bond. The intervention was never served, and its consideration by the court was opposed on that ground.</p> <p>In the judgment pronounced by the court this opposition was held to be well founded, and all evidence taken under it stricken out.</p> <p>The District Judge sustained the fourth and fifth exceptions of the administrator, but overruled the first three. He ordered that an inventory be taken of the claim awarded to the estate by the Court of Claims, and ordered James M. Dowling, the administrator, “ to give additional bond, as required by Art. 1048 of the Civil Code, within ten days from the date of the judgment, upon the basis of the inventory and appraisement of said claim ordered to be made.</p> <p>The administrator appealed.</p>

<p>APPEAL from the Seventeenth Judicial District Court, Parish of Calcasieu. Fournet, J.</p> <p>The present suit was instituted against the commercial firm of L. Viterbo & Bros., doing business in Calcasieu parish, upon their promissory note for five thousand dollars, dated November 2, 1893, payable to the order of John A. Hubbard, endorsed by Hubbard in blank and discounted by the plaintiff. With the main demand was coupled a prayer for a writ of attachment of defendants’ property, the application for which was based upon ¿negations that plaintiffs verily believed that defendants were about leaving the State permanently without there being a possibility, in the ordinary course of ordinary proceedings, of obtaining or executing judgment against them previous to departure, or that they have left the State permanently, or that they concealed themselves to avoid being cited or forced to answer in this suit, or that they have mortgaged, assigned or disposed of, or are about to mortgage, assign or dispose of their property, rights or credits with intent to defraud their creditors, or to give an unfair preference to some of them, or they have converted or are about to convert their property into money or evidences of debt with intent to place it beyond the reach of their creditors.</p> <p>The order was granted, and acting under it the sheriff seized a stock of goods in a store in the town of Jennings: certain mules, horses, agricultural implements and seed rice on a farm which had been leased and cultivated by defendants. The merchandise attached was appraised at three thousand two hundred and sixty-two dollars, and the farming implements, mules, etc., at six thousand four hundred and seventy-eight dollars. The writ was executed on February 3, 1894. On February 19, U. R. Gassin and W. D. Reeves intervened in the suit, the former claiming ownership by purchase from defendants of the stock of goods, and the latter of the property seized upon the farm, also by purchase from defendants. Defendants moved to dissolve the attachment on various grounds. The motion was overruled and the defendants answered, praying for trial by jury, and the prayer being granted the issues raised in the ease were subsequently so tried. The property claimed by intervention was delivered to the claimants on forthcoming bonds.</p> <p>Plaintiffs answered the interventions, charging simulation and fraud in the alleged purchases of the property. On the trial the jury rendered a verdict in favor of the plaintiffs against the defendants and in favor of the plaintiffs against the intervenor Gassin, but in favor of the intervenor Reeves against the plaintiffs. The plaintiffs appealed from the judgment in favor of Reeves. Gassin appealed from the judgment against him on his intervention. The defendants did not appeal.</p>

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

<p>1. An order oí appeal may be taken at any time within one year, to be computed from the day on which final judgment is rendered, but the appellant muslfile the transcript in the court of appeal on the return day of tlie appeal.</p> <p>2. The surviving widow in necessitous circumstances may urge her preference claim for one thousand dollars by way of third opposition to executory proceedings by one of her deceased husband’s special mortgage creditors — the death having supervened pending the sale of the property.</p> <p>8. The court having granted an order directing the sheriff to withhold from the proceeds of sale a sufficient amount to cover opponent’s demand, her privilege may be executed against same after the sale is made — her privilege being transferredito the proceeds of sale.</p> <p>4. A mere paper assignment by third opponent of her homestead claim to her husband’s seizing creditor, without any consideration, is a nullity, and can not found any rights in his favor, and can not exclude the assertion of her rights afterward.</p> <p>5. The waiver or renunciation o£ a homestead claim, it being a provision of law in favor of the destitute, is against public policy.</p>

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

<p>A PPEAL from the Thirteenth Judicial District Court, Parish of St. *1 Landry. Perrault, J.</p>

Perrault, J. Where a witness has been impeached by showing that he made statements out of court contradictory or inconsistent with those made by him under oath at the trial, the party calling him can not sustain him by showing that he made statements in harmony with his sworn testimony. Oonrad vs. Griffey, 11 Howard, 480; 1 Greenleaf on Evidence, Sec. 469; 1 Wharton, Law of Evidence, Sec. 570 and note 3; Rapalje Or.

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

<p>The plaintiff and intervenors claimed a quarter section of land, and through mesne conveyances traced his title to the government.</p> <p>The defendant traced his title to a sale of succession property in 1879.</p> <p>His deed was destroyed by fire. Under a special act of the Legislature he instituted suit against the heirs of his vendor and reinstated the title he claimed.</p> <p>The weight of the evidence shows that an error was committed in the judgment of revival, and that the defendant was not the oivner of the land claimed by plaintiff and intervenors.</p> <p>The defendant’s plea of prescription of ten years is not sustained by the evidence, nor the claim of plaintiff for rent.</p>

<p>The defendant appeals from a sentence condemning him to pay a penalty of eight dollars to the municipality for having violated an ordinance prohibiting the carrying of concealed weapons.</p> <p>An act may be an offence under the laws of the State and subject to a penalty for violating municipal authority.</p> <p>The power vested by legislation in a city corporation to make by-laws for its own government and the regulation of its police includes the power of punishing violations of its ordinances, though the offence be also denounced by State laws.</p> <p>The violators of the ordinances of a corporation are sentenced to pay a fine without a jury. The offences being of minor importance and petty, they can not claim immunity from the penalty imposed by the ordinance by claiming the right to trial by jury before the District Court.</p> <p>Carrying concealed weapons is an offence against the ordinances of the municipality, and as such is punishable by sentence of the Mayor’s Court.</p> <p>The corporate authority did not exceed their power by adopting a reasonable minimum penalty within the delegated power. The Legislature fixed the maximum penalty at one hundred dollars. The corporation observed that limit and added not less than five dollars. The minimum adopted by the ordinance does not make it illegal, being within the delegated power.</p>

Voorhies, J. A slander is an oral publication which exposes any person to hatred^ contempt, ridicule, or obloquy, or which causes him to be shunned, or which has a tendency to injure him in his occupa- . tion. 42 An. 955; 40 An. 423; 36 An. 467; 25 An. 170; Newell on Defamation, Slander and Libel, p. 84; Cooley on Torts, 193. “If the charges are false, injurious and made maliciously or malo animo, they combine all the elements necessary to support the action.” 40 An. 424; 45…

^PPEAL from the Eleventh Judicial District Court, Parish of St. Landry. Perrault, J. There are three kinds of dinations: 1. Gratuitous; 2. Onerous; 3. Remunerative. O. O. 1523. The onerous donation is not a real donation, if the value of the object does not manifestly exceed that of the charges imposed on the donee'. O. O. 1524.

<p>An opposition without bond to a seizure and sale presents the issue only whether the notes on which the writ issues have been paid, or obtained by fraud, or otlier defences' specified in Arts.'738, 739 of the Civil Code of 'Practice, exist; hence, when the notes are-for an-amount less, than required -to give this court jurisdiction the appeal will be dismissed, although the opposition claims judgment for a larger amount against one not before the court and against whom no'judgment can be given.- 15 La. 353; i Rob. ’190; 29 An.'121; 30 An. 1163; 31 An. 112.</p>

<p>The court again recognizes that in the petitory action the plaintiff must recover on the strength of his title, not on the supposed weakness of that of the defendant. 9 Martin, 267 ; 5 La. 78; 2 An. 216.</p> <p>The surrender in bankruptcy under the act of Congress of 1867 carries all the property of the bankrupt to the assignee, and no action upon the property or any specific part of it can thereafter be maintained by the bankrupt or by apy one claiming by purchase from them, unless by a new title acquired since the bankruptcy. Bankrupt Act, Sec. 11; Bump, on Bankruptcy, 10th Ed. 217; 44 An. 444.</p> <p>Hence, when the petitory action by the bankrupts or their transferees is avowedly for property thus surrendered in bankruptcy, and asserting title existing at and before the bankruptcy and which necessarily passed to' the assignees, the action can not be maintained. Ibid.</p> <p>No court can enforce the demand of the bankrupt for property belonging to him at the date of his bankruptcy, which, by the law and his oath to a full surrender, passed to his assignees, unless the property is claimed by a new title from the assignee. 2Hennen’sDigest, veibo Illegality of Contract,'p. 1007; 31 An. 577.</p>

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

<p>APPEAL from the Tenth Judicial District Court, Parish of Avoyelles. Cogo, J.</p>

<p>1. The principle attempted to be announced by a party indicted for murder in a requested special charge to the jury that “ even if the killing be proved and that the prisoner at the bar did it, that does not permit the law or the jury to presume malice ” is stated entirely too broadly and, as stated, was correctly refused.</p> <p>2. After a general charge to the jury, in which the court had fully instructed it as to what constituted the crime of murder, including a full definition of express and implied malice, and the manner of proving it, and that it was incumbent on the State to prove all the necessary elements going to constitute-the crime of murder, as defined beyond a reasonable doubt, a special charge ' was given to the effect that “ from the mere proof of the hilling by the accused, malice is not to be presumed as a matter of law or by the jury, but where the facts and circumstances of the hilling are placed in evidence before the jury, and there was no accompanying palliating or extenuating circumstances, the jury may infer malice.” Meld: That through the general and special charge the jury was fully and properly advised as to the law, and as to its duty in the ease.</p>

<p>y^PPLIOATION for a Writ of Mandamus.</p>

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

The will is the repository of the deliberate intentions of the testator. The cardinal rule for the interpretation of wills is to ascertain the intention of the testator and to give effect to it when ascertained. Succession of Burnside, 35 An. 708, 715. It is the identity of thought and not of words that the law requires. Starr vs. Mason, 32 An. 9; Gidden vs. Ex. Burke, 35 An. 179.

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

<p>A PPEAL from the Fifth Judicial District Court, Parish of ,Ouachita. Potts, J.</p>

<p>y^PPLICATION for a Writ of Mandamus.</p>

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

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

<p>Ihaintiff’s wife was not at fault in leaving the oar.</p> <p>The evidence proves that she was injured by the negligence of defendant’s employe.</p> <p>The conductor put the car in motion before the passenger had time to step off, and as a consequence she was thrown, from the step, fell to the ground and was injured; it is negligence for which the defendant company is liable for damages.</p> <p>Inability by the principal arises when the servant is acting within the scope of his-employment.</p> <p>Plaintiff is entitled to compensatory damages.</p>

<p>PPEAL from the Fifth District Court, Parish of Ouachita. Potts, J.</p>

<p>The State moved for a change of venue.</p> <p>The motion was filed and taken under advisement.</p> <p>The minutes show that the prisoner was present.</p> <p>The motion was not served and no action was taken upon it by the accused or his counsel.'</p> <p>On the day following the motion was granted.</p> <p>The minutes do not show that the accused was present.</p> <p>Although for the purpose of the decision on the motion, his presence was not necessary to establish that he had consented to the change of venue by his silence or by not taking a bill of exceptions at the time to the ruling of the court.</p> <p>There was no contradictory hearing on the application to remove the cause.</p> <p>The signature of the accused, to the bond to obtain his release is not a waiver of notice of the motion filed for a change of venue nor can it have the effect of a consent to the granting of the motion without evidence and contradictory hearing.</p> <p>Xt is not a case of insufficiency of notice of the ,motion for a new trial and insufficiency of evidence on the trial of the motion, but of absolute want of either, and of the absence of contradictory hearing and all note of evidence.</p>

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

<p>The occupation of the barber is mechanical exempted from a license tax by the Constitution, nor is the exemption denied because he employs other barbers in conducting his business. Constitution, Art. 206; ii An. 1116.</p>

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

Riehardson, J. Aaron A. Armstrong, J. Van Harper, Isaac J. Brooks, Martin H. Hunnicutt and A. J. Bush join in a petition, in which they pray for a judgment of ten thousand dollars against the defendant company, as damages for a malicious prosecution.

<p>APPEAL from the Twelfth District Oourt, Parish of Oalcasieu. Fournet, J.</p> <p>Marie Victoria Verret, wife of Alphonse Amédé Oorbelle, to whom he was married in the parish of Oalcasieu in 1867, died on the 4th October, 1888, leaving as her heirs nine minor children, issue of this marriage.</p> <p>Two of these children, one a son the other a daughter, died after their mother without descendants and intestate,</p> <p>The succession of the wife was only opened in 1888, at which time the father was appointed and qualified as natural tutor of his children after an inventory had been taken of the property of the community between Oorbelle and his wife. This inventory ‘Showed assets real and personal to the amount of one thousand and five dollars.</p> <p>Upon the application of the father the minors’ interest in this property was adjudicated to him at the price of estimation, and upon his petition he was permitted, upon the recommendation of a family meeting, duly homologated, to secure the interest of his wards by giving a special mortgage upon the N. % of the ¡3. W. 1-4 of Sec. 25, T. 9 S., R. 8 W., and east part of lot 4 of same section, containing twenty acres, said two tracts of land containing in all one hundred acres, with the buildings and improvements thereon, in lieu of the general mortgage resting on his property to secure the faithful administration of his duty as tutor.</p> <p>In his petition praying to be allowed to give this special mortgage, he declared that the succession owed no debts.</p> <p>The tutor filed an account of his tutorship, in which he set down as the assets of the community the price of the same property which figured in the inventory.</p> <p>This amount he divided by two, placing one-half, orjfive hundred and two dollars and fifty cents, as the wife’s share in this community property. He then charged the minors with twenty-two dollars and fifty cents as their share of cost of inventory and other items of law charges, and declared four hundred and eighty dollars to be the net amount of the wife’s succession. Stating that the heirs of the wife were nine in number- — eight minors, and one minor (Marie Alvina) emancipated by marriage to Zepherin LeBleu, he fixed the share of each heir at fifty-three dollars and thirty-three cents.</p> <p>This account was homologated contradictorily with the under-tutor of the minors, and Mrs. Marie Alvina LeBleu, the married heir.</p> <p>The latter gave a receipt thereafter to her tutor in full of her share in the succession of her mother, as set forth in the account filed. Declaring therein that her right of mortgage on the property of her father as natural tutor was entirely satisfied, she authorized him to use the receipt as authority for demanding the cancellation and erasure of any mortgage which might be on record, springing from her rights of inheritance from her mother (fixed in said tutor’s account at fifty-three dollars and thirty-three cents).</p> <p>The four plaintiffs in the present suit, three of whom claim as heirs of their mother, Marie Victoria Gorbelle, and of their deceased brother and sister, and the fourth as the vendee of Ophelia Corbelle (one of the nine children aforementioned, issue of the marriage of Amédé Corbelle and wife) of a one-seventh interest in the property which forms the subject of the present litigation, claim that'during the existence of the community of acquets and gains, between Amédé Gorbelle and his wife, Corbelle purchased from the State of Louisiana (obtaining a patent for the same at the time) the north half of section six, township ten south, range seven west, Louisiana meridian. That this property fell into the community. That after the death of his wife, and before the succession was opened in court, Amédé Corbelle, ignoring entirely any interest of the heirs of Mrs. Corbelle in that property, sold the same- by three private acts to the defendant company, and that it has now and has always had possession thereof illegally and in bad faith; and that it is accountable for rent therefor; that the action of their father in disposing of the property in its entirety was without right or authority, and that the rights of the heirs of his wife therein have not been divested. They ayer that their father is an absentee living in the State of Texás.</p> <p>The prayer is that judgment be decreed in favor of petitioners, annulling said sales in part, and decreeing petitioners to be the owners of seventeen sixty-thirds of said lands, and for further judgment for seventeen sixty-thirds of four hundred dollars, improvements destroyed or removed from the land, and judgment against said defendant company for seventeen sixty-thirds of fifty-four hundred dollars rent for the use and benefit of said land during nine years from 1885, also for seventeen sixty-thirds of six hundred dollars per year for rent from judicial demand.</p> <p>The defendant company excepted that, as shown by the petition, all the parties having an interest in the subject matter, and result of this suit had not been made parties to it. The exception was overruled and defendant then filed an answer containing in itself several exceptions which it declares it pleaded in bar of the action. These were: (1) That Amédé Oorbelle, executed August 25, 1888, by notarial act of record, in the office of the clerk of court, ex officio recorder, etc., in the book of mortgages, the special mortgage referred to in plaintiff’s petitions, for the purpose of securing the payment of any rights or claims plaintiffs may have had or might have against said succession, and the said special mortgage being still in force, and none of the plaintiffs having ever sought to foreclose' said special mortgage, the plaintiffs herein have no right of action against respondent.</p> <p>2. In bar of the demand of Marie Oorbelle, wife of Zepherin LeBleu, it is pleaded that on or about August 21, 1888, she was paid by Amédé Oorbelle fifty-three dollars and thirty-three cents, in full of her alleged share in said succession, and, being thereby authorized by her husband, receipted therefor in full as aforesaid, and, therefore, she and her husband are estopped from asserting or prosecuting their demand herein, and have no right of action against respondent.</p> <p>The company in separate answer pleaded first the general issue. Further it denied specially, that the property ever belonged to the community named in plaintiff ’s petition, or that its own agent knew that it was claimed to belong to said alleged community, and averred that it bought the property in good faith by titles fully warranted in form, and translative of said property, and of the defect thereof, if any existed, or continued to exist, it and its trustees and agent and general manager, Watkins, were ignorant. That when it purchased said property it was of very little value, being very low, wet and swampy lands, but that since its purchase the company had, at great labor and expense, and in absolute good faith, placed improvements thereon to the value, at the institution of the present suit, and at the date of the answer, of not less than twenty-five thousand eight hundred and sixty-nine dollars and seventy cents, the items as to which it specially set up. That it had in good faith paid the taxes on it from 1886 to 1898, and would have to pay the taxes of 1894 thereon when they become due, which taxes as to amounts and dates it specially set out.</p> <p>The company averred that it purchased the property from Amédé Corbelle with full warranty of title, and that it was entitled to call its said vendor in warranty to defend respondent’s titles to said property in controversy, and to defend it in this suit.</p> <p>The District Court rendered judgment in favor of the plaintiffs, and against the North American Land and Timber Company, setting aside partially as prayed for by the plaintiffs the three sales made by Amédé Corbelle to the company referred to in plaintiff’s pleadings, and recognizing and decreeing each of the plaintiffs to own an undivided ninth of one undivided half, and of one-seventh of three-fourths of two-ninths of one-half of the property in litigation herein, making each of the plaintiffs undivided owner of seventeen two hundred and fifty-two parts of the property in litigation herein, the court recognizing and decreeing the property to have belonged to the community between Amédé Corbelle and wife. The court further decreed that all claims on the part of the plaintiffs in this suit for rent, revenues and values of improvements originally on said land, and all reconventional demands on the part of defendant — the North American Land and Timber Company — for improvements, fruit trees and other ameliorations to said property are rejected as of non-suit, reserving to the respective parties the right to present said demands in suit for partition, or other proper proceedings. It further rendered judgment in favor of the North American Land and Timber Company against each of the plaintiff’s proportionally for repayment to it of the taxes which it had paid on the property from 1885 to 1894. It further decreed and ordered that the demand in warranty by the North American Land and Timber Company be rejected.</p>

<p>1. In a petitory action., where plaintiff alleges the absolute nullity of certain tax sales under which it is assumed defendant will attempt to set up title, it is not necessary to make all the parties to those sales parties to the action. Belard & Johnson vs. Gebelin, 46 An. 326; Heirs of Ford vs. Mills & Phillips, 46 An. 331; Dauterive vs. Opera House Association, 46 An. 1317.</p> <p>2. A tax sale made under the provisions of Act No. 47 of 1873 not preceded by the seizure of the property then required through the recording of a description of the property with the amount of taxes due in the mortgage books of the parish where the land is situated is fatally defective. The prior seizure was by the law a condition precedent to a right or authority in the tax collector to soil.</p> <p>3. Though a defendant without title be authorized in a petitory action to set up an outstanding title in a third person against plaintiff’s demand, such title must be a valid legal subsisting one. He can not eke out the defective title of a third person by invoking prescription in its favor. That plea belongs to the party acquiring by that title and those holding under him, not by a person not in privity with him.</p> <p>4. A joint heir or joint proprietor can sue and maintain a petitory action against a mere possessor without title for the whole undivided succession or property.</p>

<p>As this record presenta a simple question of fact, and the amount involved is below the lower limit of this court’s jurisdiction, the appeal must be dismissed.</p>

<p>I. At the dissolution of the matrimonial community by the death of one of its members, the title to community assets is vested jointly in the survivor and the heirs of the decea'sed, subject to the payment of community debts; and, as a consequenee of the dissolution, the survivor can exercise no further control over the half that has vested in the heirs of the deceased, and can not lawfully encumber it with a mortgage in favor of his individual creditor, whose debt was contracted since the dissolution.</p> <p>2, The theory of our law is, that a community of acquets and gains has, after the death of one of its members, only a fictitious existence, for the purpose of liquidation and settlement of community debts; consequently, when the surviving husband is the debtor of his wife at the time of her death, her heirs* become eo instantz creditors of the community; and such survivor can not mortgage his half of the community property to secure his individual debts* otherwise than subject to the liquidation and settlement of the community and the payment of its debts out of its proceeds by preference.</p> <p>8. The community creditors whose claims are unsecured by mortgage are entitled to be paid from the assets of the community by preference over the individual creditors, though the latter are secured by special or judicial mortgage.</p> <p>Such mortgage of the share of the survivor is not null, but its enforceability is restricted to the residuum after community debts have been discharged.</p> <p>That the community must be liquidated and settlement effected in the course of proper judicial proceedings in order that the amount’of such residuum be ascertained, and in such case the mortgagee of the husband will not be permitted to proceed in the foreclosure of his mortgage until this residuum has been ascertained.</p>

<p>1. In case the hoicler of a negotiable promissory note, in pursuance of an agreement between the maker and the assignee, makes atransfer thereof by written assignment without recourse, this assignment must he interpreted by the precepts of the Chil Code, and not by those of the law merchant.</p> <p>2. If in place of this formal assignment the holder had. placed his simple endorsement on the paper, the assignees could, in all likelihood, have availed themselves of the benefit of the rule that one who assigns to another one of a series of concurrent mortgage notes can not come in competition with the assignee, if the security be insufficient to pay both.</p> <p>3. The legal effect of the transaction under consideration is a payment by third opponents with subrogation, which does not give the assignees any right of preference over the assignor, for the balance remaining due him.</p>

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

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

<p>APPEAL from the Fourteenth Judicial District Court, Parish of Pointe Coupee. Talbot, J.</p>

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

<p>An officer wbo acts strictly within tbe duties imposed upon him by law is not responsible individually for acts committed in the discharge of official duties.</p> <p>When it is alleged 'that a municipal corporation has executed a lawful power in an injurious and malicious manner, the presumption will be in favor of the propriety and good faith of the act of the corporation, and the plaintiff must make out a clear case of wilful oppression to obtain relief. •</p> <p>A municipal corporation is not liable for damages done to private property, unless tbe act was done without authority of law, or, being authorized by law, was-improperly and wantonly executed.</p>

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

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

<p>In an action for damages against a railroad company by the surviving parents for the loss of their son run over and killed by the locomotive, the defence of contributory negligence will not avail, if by reasonable care on the part of those in charge of the train the accident could have been avoided. 2 Thompson on Negligence, 1105, 1108; Patterson’s Railway Accident Law, 51, 55; 144 U. S. Reports, 429.</p> <p>The obligation of reasonable care to avoid accidents on railroads tracks running through cities rests on the railroad companies, although the tracks are laid on, an embankment the property of the company. Pierce on Railroads, 330; 1. Thompson on Negligence, 449.</p>

<p>The jurisdiction of this court of casos involving the constitutionality or legality of taxes, fines, penalties or forfeitures imposed by a municipal corporation does not extend to a case presenting the question of the validity of the payment by a dog owner of a so-called clog tax, under the town ordinance authorizing the Rilling of dogs running at large, without a collar obtained from the town and to be paid for byithe owner of the animal. Constitution, Art. 81.</p>

<p>The tax of five mills imposed by the Levee Board o£ the Red River, Atchafalaya and Bayou Bceuf Levee District under the act creating said board is authorized by the Constitution. Constitution, Art. 214, Act No. 79 of 1890; No. 46 of 1892, Sees. 6 and 10.</p> <p>The oo.urt again affirms that the acreage assessment for levee and drainage purposes, authorized by the acts creating the Levee Boards, is not within the scope of the limitations in the Constitution on general taxation. Oharnock vs. Levee Company, 38 An. 327; 39 An. 455; 43 An. 15; 45 An. 1232.</p> <p>Under those Levee Board Acts of 1890 and 1892 all alluvial lands within the districts subject to overflow are subject to this acreage assessment, except those reported by the engineers to be incapable of protection by the system of levees and drainage proposed by the acts. Secs. 1,6,10,15.</p> <p>The acreage assessment of five mills per acre is imposed on the theory that the expense of levees and drainage should he borne by all the lands, each acre bearing its proportionate share, the act supposing that it cost as much to drain one as it does another acre, and that each aere is benefited to the extent of its proportionate share of the expense; this acreage assessment without reference to the value of the land is approximative equality, perfect equality of taxation being unattainable; finds recognition in our past levee and drainage legislation and has had the sanction of our courts.</p> <p>It is a legislative question to determine whether the alluvial lands of the State subject to overflow can be reclaimed by drainage and levees, and it is also the legislative function to prescribe the rule and objects of taxation to effect this reclamation. No court can set aside the legislative determination in this respect unless the legislation violates the organic law. Cooley on Taxation Chapter 20, p. 428, 429; Levee cases already cited.</p> <p>It must be a clear caseto authorize the court to set aside an assessment for local improvement imposed by legislative authority and hold in opposition, to the legislative judgment that lands assessed for the expense ol improvement can never be benefited by the proposed improvement; this is not such a case-Ibid.; also 8 An. 472; 12 An. 517; 2 An. 186.</p>

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

<p>On tile issue oí ownership defendant, relying on titles which, it is claimed, inadvertently omit one of the lots of tile plantation, the subject of the sales, the error may he alleged in an amendment to the general issue contained in the original answer, the amendment not changing the issue. Code of Practice, Arts. 419, 420; 2 Hennen’s Digest, 1183, No. 9; Payne vs. Railroad, 38 An. 164.</p> <p>Parol is admissible to show that the undivided half of one of the lots, part of a plantation, was omitted by error, in a sheriff’s deed. The proof of the alleged error must be clear; and in this ease is deemed to be furnished in the act of mortgage under wliieh the order of sale was obtained, describing the plantation by name, enumerating the lot in dispute as part of it; the order of sale directing the sale of the mortgaged property and all other property of the de-' ceased mortgagee, and the adjudication presumably following that order, this evidence being supplemented by the closing of the succession of the deceased and the conduct of the parties manifesting, in the view of the court, their appreciation the sheriff’s sale carried the property in dispute, all leading to the conclusion the omission in the sheriff’s deed of the lot in dispute was an inadvertence. 1 Story’s Equity Jurisprudence, Sec. 153; 15 La. Rep. 311; 9 An. 29;. 35 An. 560; 37 An. 203; 44 An. 352.</p>