Volume 47 — Louisiana Annual Reports

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

Plaintiff alleging himself to be the owner of lots Nos. 1, 2, 3, 4, 5 and 6 of section 24, in township No. thirteen (13), south of range No. 12 East, west of the Mississippi river on the western shore of Lake Verrett, in the parish of Assumption, said lots constituting all that there is of said section, and averring that Valere Landry had illegally entered as a trespasser upon the same, claiming it as his property under a tax adjudication made to him on July 17, 1886, for…

On January 12, 1878, by public act before L. U. Folse, notary, C. Numa Folse and Honoré Folse, purchased each an undivided half of the Pothier plantation from the heirs of Edward Pugh. A part of the price was paid cash, and a part on credit.

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

<p>The averment of the petition being that a municipal corporation had annually levied and collected a tax for school purposes, and thereafter budgeted and appropriated same for those purposes; and during a long series of years made disbursements therefrom for such purposes; but subsequently declined to make further disbursements therefor on the ground that the municipality had no power under its charter to levy such a tax, and the further averment being that the Parish Board of School Directors are entitled to demand-of and to receive from the municipality the funds thus actually levied, collected and deposited in the treasury — such petition discloses a cause of action.</p>

<p>APPEAL from the Third District Oourt, Parish of Claiborne. Barksdale, J.</p>

<p>^^PPLIOATION for a Writ of Certiorari.</p>

<p>Evidence o£ previous threats is inadmissible in evidence when no overt act of the deceased against the accused has been established.</p> <p>Threats alone do not constitute an overt act.</p>

<p>The trial judge had authority to excuse a juror, before he had been sworn, on account of the condition of his health.</p> <p>The court acts upon the statement of the judge, whose signature imparts .force to the bill.</p> <p>Proof that the defendant had been admitted to bail was irrelevant and properly excluded.</p> <p>The question was not necessarily leading, and therefore not ground sufficient to annul the verdict.</p> <p>The testimony sought to be elicited by the question was in rebuttal, and therefore permissible.</p> <p>Although the witness did not remember all that was said by defendant in his confession, his testimony was admissible.</p> <p>When no objection was interposed to the admissibility of the evidence, proof of the fact that no improper influence was brought to bear on the accused is not an essential prior to the proof of the confession.</p>

Madison, J. ad hoc. PPEAL from the Fifth District Court, Parish of Ouachita. The use of criminal process to enforce a civil claim is an intolerable abuse even when the claim exists. Malice may be inferred from want of probable cause. The wanton and causeless injury of an individual is in itself a malicious act. Connell vs. Michel, 6 An. 578; American Digest (1893), p. 3103, Nos. 35, 37, 38.

<p>Family Meeting. — A family meeting authorized the tutor to borrow an amount for the use and benefit of his minors. »</p> <p>Amount Loaned. — I-Ie delivered the note, secured by mortgage on property of his wards, to the defendant, from whom ho borrowed the money, for an amount considerably less than he was authorized to borrow.</p> <p>Foreclosure oe Mortgage. — The defendant in injunction, who was plaintiff in executory proceedings, sued to foreclose his mortgage.</p> <p>‘ Injunction. — The under-tutor enjoined, and defends on the ground that the family meeting was not lawfully constituted.</p> <p>Third Person. — The court finds that the illegalities alleged can not affect-the holder of the note.</p> <p>Application oe Funds Borrowed. — The under-tutor defends on the further ground that the lender of the amount borrowed by the tutor and holder of the note knew, that the borrowed money was to be applied to the payment of the tutor’s individual debts.</p> <p>The court holds that proof of that knowledge fails, and the lender is not bound to see to the judicious application of the money borrowed for the minors.</p> <p>Pate oe Interest. — The last defence is, excessive charge of interest. The court deducted the amount which was not within the limits of legal sanction, and affirmed the judgment for the remaining principal, with eightper cent, interest from the date of the note, the interest being* separate from the amount deducted on the face of the note.</p>

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

<p>A Tutor’s Agent. — A tutor of an interdict, residing in a foreign country and regularly appointed by the law of his domicile, may exercise his office by an agent, or attorney in fact in relation to the defence of a suit for a partition.</p> <p>.Under the civil law at the foreign domicile of the interdict, the administration of* his interest is confided to a tutor. A curator ad hoc appointed to represent an. absentee does not necessarily waive citation by filing an answer. In the absence of an issue in the lower court, this court will not assume that the answer, was not preceded by service of citation and petition.</p> <p>In the suit for a partition the interdict was represented by the agent of his foreign tutor. The interdict was therefore before the court in those proceedings- and contradictorily with him judgment was pronounced.</p> <p>The judgment referred the parties to a notary to complete the partition.</p> <p>A curator ad hoc, then qualified, represented the interdict.</p> <p>Domicile.- — The domicile of the curator is the domicile of the interdict. Civil Code,. Art. 37.</p> <p>The laws applying to tutors apply also to curators of interdicts. Id., Art. 415.</p> <p>The court of the minor’s domicile has jurisdiction to order a family meeting in his interest.</p> <p>The same rule applies to the interest of an interdicted person.</p>

<p>Tlic motion in arrest on the ground that the subject o£ the larceny is immovable property will not be sustained when the indictment by which the motion is to be tested charges the larceny oí personal property: bee hives.</p> <p>'Tlie verdict in. a criminal ease will not be set aside because one of the witnesses remained in «ourfc after the order for the separation of witnesses, the witness, it appears, not understanding English, nor intended, as the trial judge states, to be embraced in the order, and there being no possible prejudice to the prisoner from the witness not leaving the court room.</p>

<p>A PPEAL from the Fifth District Court, Parish of Ouachita. IT H. H. Russell, J. ad hoe.</p>

<p>The plaintiff in the petitory action alleging* title under a sheriff’s deed, and referring to the suit under the execution in which the sale was made, is entitled to offer in evidence the mortgage act, the basis of the judgment in such suit, and the sheriff’s return on the execution, the testimony tending to maintain the title pleaded, and admissible on the further ground that plaintiff averring ownership is not to anticipate by his pleadings the title defendant may allege, and is entitled to offer testimony to repel such title as defendant may advance. 4 N. S. 277; 10 An. 528; 12 An. 795; 12 Kob. 648; 11 An. 546; 2 Hennen’s Digest, 1145, No. 1.</p> <p>Mortgages executed by one who stands on the records as owner can not be disputed by the real owner as against mortgagees for value in good faith, acquiring their rights on the good faith of the recorded title. 1 An. 286; 4 An. 84; 45 An. 1085; 2 Hennen’s Digest, 1373, No. 1.</p> <p>Even the married woman who makes a simulated sale of her property, to serve the purposes of her husband, the title of the vendee being recorded, is bound by his sale or mortgage to one acquiring in good faith and for value on the faith of the recorded title. Ibid., 45 An. 1045.</p> <p>The suit and judgment of the married woman against her vendee annulling the sale is ineffective to disturb the right of one who before such suithas acquired for value and in good faith a mortgage on the property, granted by the wife’s vendee recorded as owner; hence, under the non-alienation clause, such mortgagee may foreclose in proceedings against the mortgagor, notwithstanding the judgment annulling the sale to him by the wife and putting her in possession. See effect non-alienation clause, 1 Hennen’s Digest, 955, Ho. 1.</p>

PPLIOATION for Writ of Prohibition. On October 6, 1894, the Governor of the State appointed and commissioned B. J. Kuhlman police juror, Ward 5, parish of St. Oharles, vice L. A. Oambre, removed. Kuhlman took his oath of office on October 10 following, on which day he attended a meeting of the police jury of the parish. The jury was composed of H. L. Young, T. 0.

<p>y^PPLICATION for a writ of Prohibition.</p>

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

<p>State ex rel. Kuhlman vs. Judge, ante, p. 53, affirmed.</p>

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

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

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

<p>1. The defendants allege that the proceedings were null because the petition for partition does not refer to an inventory.</p> <p>Held: An inventory had been made, and such a reference is not required.</p> <p>2. That a family meeting should have been held out of the State at the minor’s home.</p> <p>neld: The appointment of his guardian was recognized by a court in this State having jurisdiction. That court had jurisdiction to direct the holding of the family meeting.</p> <p>3. The succession was opened in Division “B;” the petition for partition was allotted to Division “ E.”</p> <p>neld: The Civil District Court had jurisdiction, and the judgment rendered in the latter division without objection to the allotment is valid.</p> <p>4. There is no order of court directing the price to be paid to the auctioneer. Held: The auctioneer who makes a partition sale may execute the act and receive the price.</p>

PPEAL from Civil District Court, Parish of Orleans. ■ Monroe, J. To render a dedication to public use binding, it is necessary not only that there be some act'of dedication on the part of the owner, but there must also be something equivalent to an acceptance on the patt of the public. The concurrence of two parties is necessary to pass the right. 14 La. 173; 19 La. 62; 10 R. 357; 11 R. 294; 3 An. 282; 7 An. 233; 10 An. 81.

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

<p>An ordinance of the council prohibiting the stabling of more than two horses, except by those obtaining permission ol the council, is unequal in its operation,, and lienee void, because repugnant to the Fourteenth Amendment of the Constitution of the United States. 118U. S. 356; 43 An. 496.</p>

<p>The plaintiff in the revocatory action joining several defendant, alleged to have combined with their debtor to obtain an unlawful preference, may file their petition in the Civil District Court, and are not obliged to file the petition in each of the divisions in which the defendants are seeking, by means of at-taehments claimed to be collusive, to obtain the preference.</p> <p>But the debtors must be made defendants if the debt of the plaintiffs is not liquidated by a judgment, and the judgment must be alleged.</p> <p>The Civil District Court, comprised otfive divisions, is still one court.</p>

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

<p>Assuming that in a capital case, counsel for accused would he authorized to admit the fact of death, he could not control the course of the prosecuting attorney nor the evidence the State should introduce.</p> <p>‘Relief through motion in arrest of judgment is confined to matters appearing on the face of the record.</p>

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

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

Voorhies, J. Bernard Milmo died April 1, 1891, leaving as issue with his predeceased wife four minor children, Baxter Milmo, Walter Milmo, Gertrude Milmo and Bernard Milmo. He made a last will and testament, appointing John P. Baxter, of Manistee, Michigan, a maternal uncle of the minors, testamentary executor and tutor of the minors. Baxter accepted the trusts and at once came to Louisiana to qualiiy and perform the duties thereof.

Mary. Allen, J. The District Oourt homologated and slightly amended the provisional account of T. D. Hine, syndic of the insolvent estate of Reed McLane.

A PPEAL from the Civil District Court for the Parish of Orleans.

<p>The question is exclusively one of fact. The evidence and the amount claimed by plaintiff prior to suit as damages concur in sustaining the claim allowed in. the decree on rehearing.</p>

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

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

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

<p>Ail indictment under Act 44 of 1S90 which alleges a club as the dangerous weapon used, proof that a pistol was so employed will not sustain a conviction.</p>

<p>A person or corporation engaged in the manufacture of new articles of commerce, such as crackers, fancy soup and Italian paste, from flour, is exempt, under Art. 206 of the Constitution, from a license tax.</p>

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

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

<p>Under a contract to work tlie penitentiary on joint account, bearing date in 1868, the officers oí that institution were paid by the grantees.</p> <p>On renewing the contract in 1870 a rental was substituted to hall the proceeds, provided under the act oí 1868, and the lessees again bound themse.ves to pay the officers, including the members of the Board of Control, the chaplains and the clerk.</p> <p>At the second and last renewal of the contract lin 1890 the lessees bound themselves to pay the rental stipulated each year of the lease.</p> <p>The whole question is as to the meaning of the word “ net,” whether “ net ” to the lessee orto the State.</p> <p>The court decides that it gives emphasis to the condition, that the lessor is to receive the amount stipulated “ net,” and not after deducting amounts paid to the members of the Board of Control, chaplains and clerk, officers whose services were needful to all parties in carrying out the terms and conditions of the contract.</p>

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

<p>PPLICATION tor a, Mandamus.</p>

<p>The admissions of the accused will not be excluded merely because tlie witness testifying to it states lie can not recollect all that was said by the accused, there having been no interruption of the admission and nothing to indicate it was subject to any qualification.</p> <p>The statement of the accused that he would shoot the deceased, quickly followed by the killing, is admissible as part of the res gestee. Greenleaf on Evidence, Sec. 308.</p> <p>The court again affirms that threats of the deceased, or his dangerous character, can not be proved by the accused indicted for murder unless in aid of self-de-fence, after an attack or demonstration by the deceased, menacing the life of the accused, is first proved; and whether such overt act was proved the court must determine from the bill and the qualifying statement of the trial judge. Constitution, Art. 81; 36 An. 158; 37 An. 862, 443.</p> <p>Applications for new trials in criminal cases must rest largely in the discretion of the trial judge, and unless the bill shows clearly the requisite basis for the application the ruling of the trial judge will not be disturbed.</p>

<p>The prescription of two and three years, applicable to acts of misfeasance and non-feasance of sheriffs (Revised Statutes, Sec. 2816), has no application to proceedings of his removal under Arts. 196 and 201 of the Constitution.</p> <p>Specifications and proof of failure to make arrests and execute process, nor exhibiting corruption, gross neglect or inefficiency, will not authorize the removal of a sheriff under Arts. 196 and 201 of the Constitution.</p> <p>Nor will a return and sheriff’s deed, agreed by the attorneys to be nominal, authorize the removal of the sheriff because they contain a recital that the price of an adjudication was paid, inserted to show compliance with the adjudication, the deed being intended merely to be a prelude to a subsequent act to a purchaser, who by agreement is to furnish notes to be delivered to the seizing creditor.</p> <p>But the record showing that the attorney of the seizing creditor believed that a part of .the adjudication was to be paid to the sheriff, it was negligence in the sheriff in not requiring or seeking instructions from the attorney of the seizing creditor before reciting in his return that the full amount of the adjudication was paid, and the court, on admonition in this respect, holds that, under the peculiar circumstances of this case, the sheriff should not be punished with deprivation of his office.</p> <p>On Application fob Remaking.</p> <p>Though a sheriff be guilty of a technical disregard of the precepts of law governing his official conduct, he can not be removed from office if his acts were done in pursuance of advice of counsel in good faith, intending no wrong.</p>

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

Ellis, J. . Action of syndic of an insolvent to recover: 1. Nine hundred and fifty-four dollars and eighty-five cents, the' net proceeds of twenty-four hogsheads of sugar and twenty-one barrels of molasses, surrendered by Lacaze for the benefit of his creditors, and consigned in execution of an order of court by the provisional syndic of an insolvent to defendants for sale on the market of New Orleans, 2.

Ellis, J. On February 4, 1890, the Oity Council of the city of New Orleans adopted an ordinance, known as Ordinance No. 4265, Council Series, by which it was resolved that the city surveyor be ordered to draw up plans and specifications for the alteration of one-half of the St. Mary’s Market, nearest the river, and extension of same to be used as a wholesale fruit and vegetable market, the said alteration and extension not to cost less than twenty thousand dollars, and the…

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

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

<p>Tlie.proof disclosing that a small boy had approached a train, just at the moment it was about to come to a halt, and was standing so close to one of the steps of the car that a forward movement of the train brought it in contact with a basket on his arm, pulled him down, and caused his leg to be run over and broken, a case of negligence is not made out against the railroad company.</p> <p>There being no contractual, or even tpiasi-contraetual relations between the parties, and the operatives and employes of the company being unaware of the presence of the boy, the occurrence must be regarded as an unfortunate accident for which the defendant is not liable in damages.</p>

<p>Defendants presenting, in executory proceedings, a sworn answer, alleging a previous settlement of tbe mortgage indebtedness, and demanding an injunction restraining sale proceedings without bond, will not be entitled to that relief if there are exhibits accompanying same which make an exactly contrary showing.</p>

Bernard. Livaudais, J. Statement of Facts. This is a petitory action in which plaintiff claims to be declared the owner of certain property described in her petition. The facts are: The plaintiff, when she married her husband, received from her parents the sum of twenty thousand dollars, by virtue of the marriage contract. Her legal mortgage was placed on record in the parish of St. Bernard.

<p>The city of New Orleans having, during the existence of the New Basin and Shell Boad Corporation, drained from the Melpomene Canal into the New Basin, at a designated point, and this drainage having been continued by the Legislature on the State’s acquiring said canal, the Board of Control of said canal has no authority to close the culvert through which the drainage entered the canal. Having closed the culvert the Board of Control must offer equal facilities for drainage into the canal. The State has the power to prevent any drainage into the canal, and the Board of Control can restore the old culvert. Until it does so, it can not interfere ■with the tUainage into the canal through other practical channels, particularly ■where the board has, to a certain extent, designated: this other practical channel.</p>

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

<p>In an action, ex contractu, for the violation of a contract no punitory damages can be assessed in the absence of bad faith. When there has been no proof of actual damages, but loss of time and inconvenience has been shown for the technical violation of the contract, compensatory damages of a nominal amount will be allowed.</p>

<p>APPEAL from the Eighth Judicial District Court, Parish of Con-cordia. Dagg, J.</p>

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

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

<p>One who prints bill heads, orders and other forms for commercial purposes on paper bought by him, and who cuts and folds the paper into shapes for such purposes, as well as to serve for ledgers and commercial books, is not a manufacturer of stationery, entitled to exemption from taxation. Constitution, Art. 207.</p>

<p>PPEAL from the Fourth City Court of New Orleans. Labatt, J.</p>

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

PPEAL from the Civil District Court, Parish of Orleans. Monroe, J. Action that an act of marriage passed on the 16th March, 1893, before the judge of the Second City Court, between Honoré Lacoste .and Therese Guidroz, be declared null and void ab initio. Judgment was rendered in the District Court in favor of the defendants, rejecting the demands- of plaintiffs and dismissing their .suit.

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

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

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

<p>The nineteenth paragraph of the eighth section of Act 150 of 1890, which imposes a license tax upon every person who shall engage in the business or avocation of operating one or more towboats, to be graduated according to the gross annualreceipts of said business, is illegal, unconstitutional, null and void, because it is in conflict with and contrary to tlic provisions of the third clause of the eighth section of Art. 1 of the United States Constitution, familiarly known as the commerce clause; it appearing that the defendant was operating his boats under alicense or permit from the United States Government, and that his towboats were engaged in traversing the waters of the Bayou Teche, and the Atcbafalaya and Mississippi rivers and their tributaries, and in operating between different States.</p>

<p>Under Arfc. 1691, C. C., as explained by subsequent articles, there are only two modes of revoking a valid testament — the one by a -written instrument, clothed with the formalities of a last will and testament, and the other by donation inter vivos or a sule in whole or in part of the thing bequeathed.</p> <p>The defacement, obliteration or destruction of the will leaves no will in existence and the Code, probably for this reason, has not named the destruct on of the ' will as one of the evidences of revocation.</p> <p>The finding of a will in an unusual place, and its apparent abandonment among waste papers, if it is a valid will, does not raise a presumption that the testator intended to revoke it.</p> <p>After the placing of the will among waste paper, and it is offered to the testator, and ho refuses to receive it, saying he wanted it destroyed, his actions toward the’legatee, treating him as one he does not like, and his unsuccessful efforts to make another will, do not amount to arevocation. The fact that the testator had it m his power to destroy or obliterate the will, and failing to do so, and leaving it in existence, is a presumption that he intended it to be his last will and testament.</p>

<p>APPLICATION for Writs of Habeas Corpus, Certiorari and Prohibition.</p>

<p>Defendant, whose occupation was that of a merchant, borrowed money from hi& clerk.</p> <p>The latter brought suit on the note evidencing the debt and on the acts of privilege- and pledge given for its security.</p> <p>The books of the defendant contain entries contemporaneous with dates of amounts charged as loans.</p> <p>The defendant signed acknowledgments of indebtedness to plaintiff.</p> <p>The defendant for relief alleged and attempted to prove that the books were “ cooked;” that the dates of entries are incorrect; that he was not a borrower; that the note, books and acknowledgments were untrue.</p> <p>He produced two receipts; the plaintiff denies the signature to them.</p> <p>The evidence of two witnesses as to whether it is the signature of the plaintiff is conflicting.</p> <p>It was expert testimony to prove signature by comparison.</p> <p>The note and the deed import consideration.</p> <p>The maker can not escape by alleging and attempting to prove that they were-fictitious, and executed to guard against claims of creditors.</p>

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

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

<p>Motion to Dismiss tiie Appeal.</p> <p>The grounds are:</p> <p>Defectiveness and insufficiency of the clerk’s certificate.</p> <p>Diminution of the record of appeal.</p> <p>CLERK’S CERTIFICATE.</p> <p>An agreement had been made to bring up books in the original.</p> <p>The clerk’s certificate regarding these books was controlled by the agreement.</p> <p>DIMINUTION OF RECORD.</p> <p>Original documents not stamped were brought up by the clerk of a court in answer to the writ of certiorari issued to him to complete the record. They were brought up by him in the original and not stamped.</p> <p>As it occasions no delay and the law may be complied with (the case has not been called), time is allowed to affix needful stamps to the instruments of evidence. Motion to dismiss not allowed.</p> <p>On the Merits.</p> <p>¿Entries in partnership books bind the partners, and on the issue whether immovable property has been acquired for the partnership, such entries are admissible. 2 Lindsley on Partnership, 537; Armistead and another vs. Spring, X Rob. 567.</p> <p>Whether the immovable is bought in the partnership name, or for it by one of the partners, they become joint owners, as the partnership can not own immovable property. C. C., Arts. 2825, 2836; 1 N. S. 295; 3 La. 496; 10 La. 420; 3 Rob. 256; 1 An. 434; 5 An. 532.</p> <p>Hence, being joint owners, one partner cannot dispose of the shares of his co-partner in such immovable; all must concur to make title, and hence a cession by one partner does not pass to the syndic the shares of his copartner in immovable property. Ibid.; 1 An. 484; 4 An. 56; 9 Rob. 372.</p> <p>But if the immovable is acquired for the partnership, each partner has the right in the appropriate proceeding to insist the property shall be applied to pay partnership debts, and, in the event of a cession by one of the partners, that right •passes to the syndic. Story on Partnership, Secs. 97, 98,360, 361; Civil Code, Art. .2823. Case vs. Beauregard, 99 U. S. 128.</p>

<p>An attorney at law with whom a deposit has been made for costs of suit is responsible in damages to his client if he permits the claim placed in his hands for suit to prescribe.</p>

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

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

<p>The District Judge having, in a criminal case, rendered judgments upon the ap pearance bonds of the accused, which by their terms were not final, but provisional judgments, subject to re-examination and recall, and having subsequently set these judgmen s aside on rule, the orders of the court, setting them aside, and setting at large for future examination and determination ad questions touching the rights of parties upon and under the bonds, are not such judgments or orders as are appealable to the Supreme Court.</p>

<p>Where, after a commercial partnership (created jby ■written articles of parfcner-sh'p for a fixed time) has expired by limitation, the business is continued for years orecisely as before, such conduct evidences reciprocal consent to the creation and the creation of a “partnership” between the parties, and the partners are bound interse and to third persons as if articles had been executed, and the rules governing “ partnership at will” control as to the dissolution of the partnership. The partnership is not one resting for its existence from day to day by force of reiterated affirmative daily consent, but is a continuing partnership, subject to termination only after notice, and under the rules of law governing the dissolution of partnerships. Until formally or legally dissolved it continues.</p> <p>A partnership, even at will, does not, by the weakening of the mental faculties of one of its members, become ipso facto, and, prior to interdiction, dissolved even between the partners, and still less as to the-customers of the firm. Some affirmative step has to be taken to bring about a dissolution, and the customers of the firm are entitled tonotice.</p> <p>It is no more the duty of the customers of a partnership at will to keep advised at their peril as to the mental condition of all the members of a firm than it is for those of a partpership with a fixed period of life. They have the same right . in one case as in the other, to assume, until notified to the contrary-by the parties in interest, that the partnership continues.</p> <p>There is no necessity for the consent of all the members of a firm to partnership contracts. The partnership being distinct from the individuals who compose it, the consent of any one of the partners is the consent of the firm. A partnership contract, made by one of thepartnersof sound mind, is not affected by weakness of mind of the other partner, especially where the other contracting party is ignorant of the latter fact.</p> <p>If the interest of one of two partners is jeopardized by the gradual impairment of his mental faculties, his presumptive heirs have sufficient legal interest to take the steps necessary for his protection.</p>

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

<p>The defendant complained (X) of the want of time to prepare his defence, (2) and to summon his witnesses, (3) and that the twenty-four in number, from among whom the grand jury was selected were not qualified electors, (4) and that the terms of court were not fixed as required by law.</p> <p>The case was reassigned by consent and tried two days prior to the day at first set by the court.</p> <p>No bill of exception was taken to the refusal to grant time to summon three absent witnesses.</p> <p>The prosecuting officer, as authorized by Act 84 of 1894, admitted that if two of the absent witnesses had been present they would have testified as stated in the affidavit for a continuance.</p> <p>After the admission had been made the case was proceeded with and tried without objection, thereby rendering it impossible to sustain the objection made on appeal.</p> <p>The grand jury was composed of qualified electors.</p> <p>Objection was urged to one of the twenty-four men from which the grand jury was drawn. He was not one of the grand jurors. Those who constituted the grand inquest were electors.</p> <p>The evidence regarding the term of court does not show that the required three weeks had not elapsed since the beginning of a term of court in the district preceding that at which the defendant was found guilty.</p>

<p>Allegations in a suit, it is charged, were libelous and caused damage for which the defendant should pay.</p> <p>The suit in which the allegations were made was not terminated in favor of plaintiff in the court in which it was brought.</p> <p>The funds set aside for the payment of debts of a succession were transferred to another tribunal to abide the result of a judgment.</p> <p>At the time of the transfer plaintiff (who could have objected to the transfer) was not a party to the suit in the court to which the funds were transferred.</p> <p>The plaintiff abandoned the first suit (that in which the allegations complained of were made) and sought payment by rule in the tribunal to which the funds had been transferred and left the issue in the first suit untried.</p> <p>A plaintiff can not maintain an action for the malicious prosecution of a civil suit until after the legal termination in his favor of the suit complained of.</p> <p>The rule supra may be said to be subject to exception. Plaintiff’s cause does not fall within the exception.</p> <p>In addition, the allegations complained of, even if the suit had been finally decided in plaintiff’s favor, do not recommend themselves as having given cause for action in damage's.</p>

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

<p>APPEAL from the Seventh Judicial District Court, Parish of Tensas.' Montgomery, J.</p>

<p>Any service which would be sufficient, as against a domestic corporation, may be authorized by the statute of a State to commence an action against a foreign or non-resident corporation It may, accordingly, be made upon the president of a foreign corporation during the time he may be temporarily abiding within the jurisdiction of the court when the suit is brought.</p> <p>A judgment rendered in an action thus commenced against a foreign corporation will be valid and can be enforced against any property at any time found within the State.</p> <p>A party having undertaken, on behalf of a foreign corporation, to effect sale of an ice machine and accompanying p trap hern alia to persons domiciled in this State, for a designated and fixed commission on the amount of the sale effected, payable when the plant is turned over to the purchaser and settled for at a given date, Is entitled to payment of such commissions at that date, notwithstanding litigation arises between the contracting parties with reference to the vendor’s fulfilment of its contract, which operates a delay in settlement betwi en them.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.</p> <p>Plaintiff alleged that the defendant company took wilful, forcible and illegal possession of his square of ground (No. 679) in the city of New Orleans, bounded by Short, Seventeenth, Washington and Dixon streets; that he had been in the undisturbed and peaceful possession, as owner of said property, through tenants and otherwise, for more than thirty years; that the same had been assessed in his name; that it contained twenty lots; that he had placed the property in the hands of Shepard & Hunter for sale at one hundred dollars a lot, and advertised the same, when he discovered that defendant, well knowing plaintiff’s right, had converted said square into a lumber yard, by erecting extensive tramways and wooden constructions, so as to render the delivery of any of said lots through Shepard & Hunter impossible; that he had suffered ñve hundred dollars actual damages, and two thousand dollars exemplary damages, and that defendant was liable to him at the rate of twenty-five dollars per month until the delivery of the property; that he urged as specific grounds of actual damages, the wrongful withholding of the possession of said property, two hundred dollars; the absolute suspension and prevention of plaintiff’s operations for the sale of any of said lots, two hundred and fifty dollars, and the trouble, annoyance and expense of proceedings to regain possession, fifty dollars — he prayed that he have judgment for the delivery of possession of said land and quieting him in bis possession, and that he have, also, judgment against defendant company for damages for twenty-five hundred dollars and for twenty-five dollars per month from the date of judgment until possession should be given him of the square of ground.</p> <p>Defendant excepted that plaintiff could not maintain the action in its present form as a possessory action; that it was not true as the plaintiff alleged that he had the real and actual possession of the property described in his petition (in the possession of defendant) as owner for one year prior to the commencement of the action, much less had he had real and actual possession of the same continuously down to the commencement of the suit, but on the contrary the plaintiff not having had the real and actual possession required by law for the maintenance of the possessory action, had mistaken his remedy, which is only a petitory action. The court having referred this exception to the merits, the defendant answered, pleading first the general issue, and specially denying that plaintiff has had the real and actual possession of the property within a year, and that he is entitled to bring a possessory action. It admitted that it was then in possession of the property.</p> <p>The District Oourt rendered judgment in favor of the plaintiff against defendant, decreeing that plaintiff be put in possession of the property, and condemning defendant to pay to plaintiff the sum of one hundred and twenty-five dollars damages, and the further sum of twelve dollars per year for the use of said property from March 3, 1894, till final delivery thereof.</p> <p>Defendant appealed. Plaintiff has moved for an amendment of the judgment, praying that he be allowed five hundred dollars actual damages and such further damages as this court might think fit, and damages for a frivolous appeal.</p>

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

<p>A PPEAL from the Tenth Judicial District Court, Parish of Natchi-toches. Coco, J.</p>

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

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

Moise, J. The jury in all criminal cases shall be judges of the law and of the facts on the question of the guilt or innocence, having been charged as to the law applicable to the case by the presiding judge. Const., Art. 168; State vs. Spencer, 45 An. 1. To prohibit counsel arguing the law to the jury is a denial of these rights. Cooley Const. Lim.,Ed. 1868, p. 3p6; Hannah vs. State, Tenn.

Rightor, J. As regards the point made of the defendants’ right to demand the division of this alleged debt, we do not desire to conceal from the court the fact that there is a conflict among the authorities as to whether a binding.of the surety in solido is a waiver of the right of division or not. The question is res nova in Louisiana, and it ought to be examined and discussed, and then decided one way or the other.

Bernard. Livaudais, J. The property of the defendant was attached in the District Court for St. Bernard, in suits of Guichard, Ousachs and Janin, each of the said parties claiming privileges upon the property under registered claims of privilege.

<p>A PPEAL from the Eleventh Judicial District Court, Parish of Acadia. Perrault, ‘J.</p>

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

<p>Motion Seasonably Made. — The production oí' a merchant’s books may be ordered on motion after the trial has begun, if no delay in the trial is thereby occasioned.</p> <p>Question Not Ikiielbyant. — The defendant could be interrogated regarding the part taken by alleged preferred creditors for the purpose of showing that they participated in the fraudulent concealflient of his books. If true, it would not be an irrelevant circumstance in sustaining the charge that there was collusion on the p.art of those thus participating.</p>

<p>Both parties are before the court.</p> <p>By this conclusion there remains no question to determine regarding citation or waiver of service by plaintiffs of defendants’ injunction.</p> <p>Legislative Act 100, in so far as it relates to the Citizens Bank, has not the effect of a contract, and does not secure the shareholders from future “ calls.”</p> <p>The remedy of the plaintiff bank is not limited to the seizure and sale of the bank shares.</p> <p>The mortgage stockholders of the Citizens Bank are not (in person) sureties for the bonds issued by the State of Louisiana in aid of the bank. The secwHtie& held by the bank were given in pledge by the bank as security for the debt.</p> <p>The ownership of these securities was retained by the bank.</p> <p>If an extension of time has been given to the bank or the State, or a discharge, it does not have the effect of discharging the shareholders who are indebted to the bank, and who are securities on values deposited as security.</p> <p>Whether the Legislature created two corporations or one has no bearing upon the issues so far as relates to the shareholders who have bound themselves to pay the amount of their subscription.</p> <p>Under the circumstances it will not be assumed that the cash stockholders who are not parties to the suit should also pay the call, despite the fact that they have paid their shares in full.</p> <p>The hearing as to them must be contradictory.</p> <p>The “ calls ” made on the shareholders are personal obligations, and not subject to a prescription of less than ten years.</p> <p>The plaintiffs, by their answer to the injunction, in which they did not pray for a judgment, or seek in any manner to release the seizure of the property, did not change the proceedings from the via executiva to the via ordinaria.</p>

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

<p>The repealing effect of Act 95 of 1ÍÍ90 has withdrawn from the Register of the Land Office the ministerial duty of selling the land claimed by relator.</p> <p>The act is not void; if voidable, it can not be annulled in mandamus proceedings not conducted contradictorily with all parties concerned.</p> <p>It does seem that the Legislature had the authority to vest title to land in the Rontehartrain Levee District to avoid to some extent the burdensome taxation required to defray the expenses in malting needful improvements.</p>

<p>Tlie plaintiff was injured by the fall of defendant’s wall.</p> <p>The defendant denies negligence and alleges if the plaintiff suffered damages, the property was in possession of an insurance company for repairs.</p> <p>Held: That there was negligence, and that whatever may have been the responsibility of the company during the time that repairs were made to a portion of the wall, the owner, aware of the defect and danger, who takes no part to prevent the accident, is liable for the damage occasioned by the fall.</p> <p>The safety of wads in a populous city is a public interest, and the interest of plaintiff is blended with the public right that can not be subordinated to indefinite agreements between the insured and insurer. It is not shown that the pro iertythat caused the accident was included within the terms of the election to repair.</p> <p>On Application vor Rehearing. — The settlement made and the loss adjusted on the p diey of insurance harmonize with the views heretofore expressed.</p> <p>Unexplained, there is difference between estimate of repairs and the amount of settlement, giving rise to tlie positive infereiee that the repairs tvere to be limited, as heretofore decided.</p>

<p>The passenger on the railroad train is entitled to-be carried to his destination; if carried beyond and made to leave the train, under the compulsion o£ the orders ot the train officials, he is entitled to damages.</p>

<p>The charge o£ the court on a trial for murder that the killing is proved; that there is but little question of manslaughter and none of justifiable homicide, and implying that the prisoner was present; whose actions and conduct the jury are instructed they may consider, clearly express conclusions of the court on the facts, in violation of the law, prohibiting such expression. The departure from the law is made more distinct, when it appears from the bill the defence claimed the prisoner was not present when the crime was committed. Rev. Statutes, See. 991; Constitution, Art. 168,</p>

<p>A PPEAL from the Twelfth Judicial District Court, Parish of Oalca-sieu. Fournet, J.</p>

A BPBAL from the Twelfth Judicial District Court, Parish of Cal'-‘L casieu. Schwing, J., ad hoc. Plaintiffs sued the defendant for two thousand dollars.

Allen, J. Plaintiffs allege that under the laws and Constitution of the State, the power of taxation has been delegated to the parish, and through its police jury it has levied, according to law, a graduated license tax, on occupations and business enterprises, for the year 1893.

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

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

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

Richardson, J. The fact that a juror thinks the Caucasian race superior to the A-friean does not disqualify him, nor does the fact that he thinks that on account of superior moral and intellectual development, the former as a class are more likely to tell the truth than the latter, as a class. Such hypothetical questions are confusing and misleading as well as irrelevant, and are discountenanced by the courts.

<p>The fact of a recordation, of a special mortgage executed by the surviving member of the community, on community property, to secure his separate debt, can not have the effect of preventing the sale of the property, to satisfy a judgment against the community, because the price bid for it is not sufficient to pay the special mortgage. In such a case the judgment has priority, not by the fact of prior recordation, but because of the nature of the debt.</p>

<p>Act 121 o£ 1871 does not repeal See. 812, R. S. Hence, -when fchejudge sentences the defendant, convicted o£ petty larceny, to hard labor for one year, the sentence is supported by Sec. 812, R, S.</p>

<p>The holder of pledged stock under a contract to sell the same either at public or private sale, on default of the payment of the note for which the stock is pledged, who, by judicial proceedings, compel- the transfer of the stock to himself, and who afterward received dividends on the shares, sells a part of the same, and does not credit the debtor with the proceeds; who votes for a reduction of capital stock in the corporation issuing the shares, and receives a new certificate of stock on surrendering the old one, will be deemed, in the absence of complaint of the debtor, as having aerxuired the stock as owner, under the power to sell as stipulated in the contract of pledge. The primary debt should be credited with the market value of the shares, placed upon them by the creditor, when he appropriated them.</p>

<p>The ordinance of the city was directed against a railroad company.</p> <p>Affidavit for the alleged violation of its terms was made against the general superintendent of the road.</p> <p>The judgment of the lower court was pronounced against him personally, condemning him to pay a fine, or to be imprisoned.</p> <p>The penalty is not within the jurisdiction of this court, save when the legality or unconstitutionality of the law is at issue.</p> <p>The question is not as to the unconstitutionality or illegality of the fine imposed, but as to whether the defendant can be punished under the ordinance.</p> <p>The ordinance may be in all respects legal, and yet not apply to the defendant personally.</p> <p>The question involved is one of fact not within the appellate jurisdiction of this court.</p>

<p>Damages will not be awarded for an arrest on a charge of libel based on a newspaper publication embracing the substance of an answer of a defendant in a lawsuit conveying a serious charge against the plaintiff in the suit, the publication appearing a day previous to the filing of the answer, and the arrest caused by the plaintiff malting the affidavit under the evident impression that the defendant prompted the publication of this answer, the arrest subjecting the defendantonly to the inconvenience of appearing for examination, followed by his prompt discharge.</p> <p>For the breach of a contract of sale of a physician’s practice, damages for the amount the purchaser claims he would have made from professional practice given up, relying on the contract, do not arise from the breach complained of, and are not within the measure of damages fixed by the law in such cases. Civil Code, Arts. 1930, 1934. Pothier on Obligations, Vol. 1, p. 161; 13 La. 410.</p>

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

<p>APPEAL from the Fifth Judicial District Court, Parish of More-house. Potts, J.</p>

<p>A PPEAL from the Twentieth Judicial District Court, Parish of St. 1 James. Guión, J.</p>

Relator alleges that on the 25th January, 1894, he was indicted by the grand jury of De Soto parish, charged with the murder of one Oherose; that on the 17th of February, 1894, he was tried by a jury, which was unable to agree, and a mistrial was ordered by the trial judge. That on February 11, 1895, he, through his counsel, demanded a trial, when, on motion and affidavit of the District Attorney, his case was continued to the August term of court.

A PPEAL from the Twenty-first Judicial District Oourt for the Parish of St. John the Baptist.

Caillouet, J. Victoria Vicknair, wife of Felix Lasseigne, was one of eight heirs of Valery Vicknair and his wife Adele. Felix Lasseigne, her husband, at various dates, bought from the seven other heirs their interest in a certain plantation in Lafourche. Lasseigne and wife were separated in property, and through this purchase her husband became the owner of seven-eighths and she of one-eighth of ■ the property known as the “ Vicknair” Place.

<p>APPEAL from the Third Judicial^District Court for the Parish of Lincoln. Barksdale, J",</p>

<p>APPEAL from Fifth Judicial District Court for the Parish of More-house. Potts, J.</p>

<p>Same as in Gilkerson-Sloss Commission Company vs. Yale & Bowling, in Liquidation, ante, p. 690.</p>

<p>An order of injunction haying been subsequently modified, contemptproceedings will not lie against the defendant in injunction on a charge of haying violated the order of injunction as it was, originally y granted; and prohibition will lie to restrain the further progress of such proceedings.</p>

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

<p>This court has jurisdiction ratione materice to try a case involving the constitutionality and legality of a local assessment for levee purposes, though the amount involved is less than two thousand dollars.</p> <p>A judgment of non-suit is appealable as a final judgment.</p> <p>Physical inability to be present and manage the trial of a cause is good ground for continuance; and same being refused, and the suit of plaintiff being dismissed, it is good reason why the cause should be reinstated for trial.</p>

<p>APPEAL from the Seventh Judicial District Court, Parish of East Carroll. Montgomery, J.</p>

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

<p>The intrinsic value of the land at the time of sale, and the nature of the title, should be examined and inquired into, as matters put expressly at issue in an action for rescission on account of lesion. 16 La. 380.</p> <p>In a sale of a precarious title to land, without warranty, it is a proper subject on inquiry what were the vendor’s pretensions worth, rather than what was the intrinsic value of the land. In a sale of land acquired at tax title and again sold by the purchaser, the vendee assuming all taxes due, and some of which were not paid by the vendor, if the amount of the taxes assumed, added to the price, exceed the limit that would justify the action for leáion, the plaintiff can not recover. The value of the land must be fixed at the time of the sale, and within fixed limits. If the witnesses state the land was worth from one thousand to twelve hundred or fifteen hundred dollars, the fixed amount of one thousand dollars will be taken as its true value. The amounts above this are conjectural and speculative.</p>

<p>Railway companies owe 210 duties to a person on a private switch, who crosses from one platform to another on a car that is coupled to a locomotive about to start, or actually moving. If he remains on the freight train, without the knowledge of the employes of the defendant, and is injured by an accident caused by a defective track, the railway company is not liable for damages.</p> <p>The risk of passing through the cars, likely to get on the way at any moment, or in the act of moving, was apparent, and should not have been taken.</p> <p>It not appearing that the switch, on the day of the accident, was impassably blocked by standing cars, the railway company is not liable.</p> <p>If it was usual to pass from one platform to another through the standing cars (without any objection on the part of the. defendant’s employes), it does not follow that one hasremedy for injuries suffered by the starting of the train after warning by the bell of the locomotive. The imprudence of the lad is the proximate cause of the fatal injury, and not the defective track, which is remote.</p>

All donations made between married persons, during the marriage, though termed inter vivos, shall always be revocable. Civil Code, 1749. The sale of property by the husband revokes the donation thereof made by him to his wife, during marriage, by donation inter vivos.

<p>APPEAL from the Fourth Judicial District Court, for the Parish of Grant. Wear, J.</p> <p>ON THE LIABILITY OF DEFENDANT.</p> <p>C. C., Art. 2315 et seq.; 45 An. 1201; 41 An. 795; Abbott’s Law of Corporations, Vol. 2, p. 598; 37 An. 705; Sedgwick on Damages, Vol. 2, p. 359; Am. and Eng. Ency. of Law, Vol. 4, Tit. Contributory Neg., p. 15 et seq.; 38 An. 111-185; 40 An. 661.</p> <p>“ If a passenger directs his course, whether entering or leaving a train, by the direction, or express or implied invitation of the corporation * * * he is injured, the corporation will be responsible for such injury.” Buswell on Personal Injuries, Secs. 124, 136, 137.</p> <p>“ It is apprehended that in the United States the stopping of a train and the announcement of a trainman of the name of a station will be taken to be an invitation to the passenger to alight.” 31 Indiana, 408.</p> <p>WEIGHT ATTACHED TO THE VERDICT OF A JURY.</p> <p>20 An. 455, 458; 22 An. 31; 6 La. 31, 492; 31 An. 430; 45 An. 381.</p> <p>CONTRIBUTORY NEGLIGENCE.</p> <p>23 An. 462; 38 An. 116; 44 An. 806; 40 An. 420; 82 U. S. 401; 95 U. S. 161; 100 U. S. 213; 59 Penn. St. 374; 15 Atl. Rep. 624; 34 Cal. 153; 134 Ill. 57; 28 Mo. 657; 89 Mo. 650.</p> <p>QUANTUM OF DAMAGES.</p> <p>37 An. 705; 38 An. 111; 40 An. 661; C. C. 1928; 17 An. 19.</p> <p>A railroad company is not liable to a passenger for an accident which he might have prevented by ordinary attention to his safety. Even though the agents in charge of the train are also remiss in their duty. 34 An. 1087, 1088.</p> <p>Although the defendant’s negligence may have been the primary cause of the injury, yet an action for such injury can not be maintained, if the proximate and immediate cause can be traced to the want of ordinary care and caution of the person injured. 144 U. S. 429; 139 U. S. 551, 558, and cases cited. Thompson on Negligence, 115, 117; Cooley on Torts (1st Ed.) 675; 4th Am. and Eng. Eric, of Law, Tit. lt Contributory Negligence,” 30, and authorities cited in Note 1; Patterson’s Railway Accident Law, pp. 51, 55 and 61.</p> <p>While it is the duty of a railroad company to stop its train at the station to which it has contracted to carry a passenger, and to • land him safely and conveniently, yet the fact that the company neglects this duty, and the train passes the station without stopping, does not justify a passenger in jumping from the moving train, unless expressly or impliedly invited to do so by the employés of the company. Voluntarily jumping from a moving train, uninfluenced by any invitation expressed or intended by the employés of the company, was imprudent and dangerous.</p> <p>In such a case no action for resultant injury can be sustained on account of the contributory negligence of the person injured. 41 An. 796, and authorities there cited.</p> <p>Persons injured while attempting to board a moving train, if injured in so doing, can not recover damages from the railroad company therefor, on account of their own contributory negligence, even though it be shown that employés of the company were in fault.. 9 An. 441; 26 An. 462.</p> <p>In order to enable tbe plaintiff to recover, it must appear that there was no want of care, and no imprudence on the part of the plaintiff, by which the injury was in any manner directly brought about. Hill vs. R. R. Co., 11 An. 292.</p> <p>To recover, plaintiff must show affirmatively that he was guilty of no negligence which resulted in the injury complained of. He alleges in his petition that he was in no manner guilty of negli-' gence — the onus is upon him to establish such fact affirmatively. 11 An. 292; Cooley on Torts, 659, 661; Pierce on Railroads, 320; Whar. on Neg., See. 427; 4 Am. and Eng. Ency. Law, p. 92; 23 An. 264; 40 An. 787; 44 An. 692, 806; see also Woods’ Railway Law, p. 1262.</p>

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

Hall, J. Movables have no sequel by a mortgage. When the movable is neither in the custody of the creditor nor of the debtor, nor of am1 other in his name, the creditor then has no longer any right to it. Domat, Civil Law, Part I, Book III, Tit.

<p>Suit for a partition was brought against the executor of an estate.</p> <p>The action for a partition of immovable prope ty being a real action, the heirs should be made parties defendant to the suit. As the partition has not yet been made, compliance with Art. 123, C. P., and Arts. 1308 and 1322 is required.</p> <p>An attorney for absent heirs cannot stuid in judgment in such a suit.</p>

PPE AL from the Civil District Oourt for the Parish of Orleans. King, J. No one can be compelled to accept title to property which was purchased in the name of the wife during the marriage, without the husband’s sanction, and subsequently sold by her, alleging the husband to be dead and the property to be her separate estate, unless there be conclusive proof, both of the death and of the fact that the property was really separate property.

PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. On the 10th of January, 1894, the plaintiff sold to the defendant five hundred barrels of prime crude cotton-seed oil at the price of twenty-eight cents per gallon.

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

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

King, J. The terms, the language, or the form, used by the parties, and even the name which they may choose to give to a contract, can not change the real character of the contract. The pledgee may be said to be the owner of the thing pledged, although not owner in the absolute sense of the word. To the extent of the debt, he is for all practical purposes the owner of the thing pledged.

<p>On the motion to dismiss.</p> <p>Where a testamentary executor files his fiual account and tableau of distribution, and asks that the funds be distributed and the instituted heirs be placed in possession of the property bequeathed to them, an appeal from a judgment thereon, which only orders the funds distributed, will be sustained. Where subsequently a petition is filed by the testamentary executor alleging the succession to be still under administration and praying for a judgment putting the heirs in possession, which is rendered, an appeal from such a judgment by same parties who took the first appeal will be sustained. The judgments are distinct and on separate matters.</p> <p>On the Mbkits.</p> <p>When the heirs take from the succession of their mother as legatees, the co-heirs are entitled to citation to establish or oppose the executor’s account in which lie, the executor, applies to deliver the husband’s property in satisfaction of the legacies left by the mother, before making any proof that there was a translation of the property to the latter.</p> <p>The account could not be made binding upon the heirs on a judgment of homolo-gation made without citation.</p>

<p>APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J.</p> <p>Every wall which is a separation between adjoining buildings of the same height, which buildings are supported by the entire wall, in which the beams, joists, etc., are placed on each side, is, in absence of proof, presumed to be a common partition or boundary wall, and belongs jointly in indivisión to the adjoining owners of the buildings without reference to the dividing line of the lots. C. C., Art. 677; Weil vs. Baker, 89 An. 1102, 1108; 44 An. 499, Oldstein vs. Building Association; 6 An. 566, Dorville vs. Amat; 9 An. 50, Duncan vs. Labouisse.</p> <p>But when the adjoining buildings are not of the same height, one being lower, a two-story building, supported by two-thirds of said wall; the other, a three-story building, built entirely against said wall to support the building, the said wall will be presumed to be a common or partition wall only as high as the upper or highest part of the two-story building; that portion of said wall enclosing and supporting the third story of the three-story building, is presumed to belong to the owner of the highest building, and can not be used or built upon by the owner of the adjoining two-story building in erecting a higher and heavier building without the express consent of the owner of the three-story building, or without paying one-half the value of same, so as to make it a wall entirely in common. If he fails so to do and uses the wall, he commits a tort. Toullier, Ed. 1833, Vol. 2, p. 52, Sec. 186; Com. on Art. 677, Civil Code; Pardessus on Servitudes, Vol. 1, p. 376, Sec. 160; C. C. 676-684; 27 An. 199, Chism vs. Boyd; Oldstein vs. Building Association, 44 An. 502.</p> <p>Where defendant, an adjoining owner, formerly owned a two-story building, supported by an old wall, whether a wall owned entirely in common or partly in common, which old wall was sufficient to sustain the weight it was built to bear — a three and two-story building — defendant can not demolish the two-story building and erect in its place a heavy, massive five-story building, annex the side wall of same on the side of said adjoining old wall, place an offset on top of said old wall, or interfere with said wall or its foundation, without obtaining the express consent (written consent, the authorities say) of the co-owner of the common wall (the plaintiff), or on his refusal, to resort to law to cause the necessary inspections to be made and precautions to be used, to avoid injury to the adjoining building belonging to plaintiff, and not having done so, defendant uses the old wall so as to overload it, causes it to sink, thus damaging plaintiff’s building, he, defendant, commits a trespass and will be liable for all the damages to plaintiff’s adjoining property supported by said old wall. Rev. C. C., Arts. 579-679-685; Par-dessus, Vol. 1, p. 406, See. 178; Peirce vs. Musson, 17 La. Rep. 396 (and authorities therein) ; 9 An. 49, Duncan vs. Labouisse; Heine vs. Merrick, 41 An. 202; interpreting Art. 685, C. C. (and authorities therein'Cited).</p> <p>A co-proprietor is at liberty to increase the height of the partition wall or wall held in common, at his own expense, provided it is sufficient or strong enough to support the additional weight; if it is not, he is bound to rebuild it anew, at his expense, taking the additional thickness from his own property; this right imposes upon him the corresponding duty of having the wall examined by experts appointed by tbe court to examine whether it could stand the additional weight; where the co-proprietor fails so to-do, he is clearly liable for damage to the wall in common, and the building of the adjacent owner, supported by it, having an equal or greater interest in said common wall. 18 La. 271, and Pierce vs. Musson, 17 La. 890; Rev. C. C., Art. 681-682; Sirey, Commentary on Art. 659, C. N., similar to Art. 681, Domat’s Civ. Law, Edit. 1850, p. 447, Sec. 1064.</p> <p>But an adjacent owner (defendant) whose old building was supported on one side by an old party or common wall, had no-right to weaken said old party wall without plaintiff’s express consent, undermine it, and cut or remove a course of brick from its foundation, to build a heavy five-story wall close up against it, and to erect an offset or heavy water table on top of it, and thus damage the party wall and plaintiff’s adjoining building supported by said wall; in so doing, defendant is responsible for-all damages to plaintiff’s building, and can not shield himself against the consequences of the error committed by his architect or builder. Same decision; Peirce vs. Musson, 17 La. Rep. 390.</p> <p>It was a great mistake for defendant to have had the side wall of his-heavy five-story building built on the boundary line between his said building and that of plaintiff without taking out the foundation of the old common party wall, piling the new foundation and extending the offset of the foundation of the new wall on each side partly on plaintiff’s property, which defendant had the right to do, so that the centre of gravity of the two walls would fall on the centre of a common foundation properly constructed to sustain both walls; that a heavy high wall built upon the boundary line without the offsets extending over the boundary line into the adjacent lot is defective and can not stand, is clearly recognized by our jurisprudence. 8 An. 166; Murrell vs. Fowler, and Heine case, 41 An. 205.</p> <p>Where defendant, an adjoining owner of a two-story building supported by a wall in common, demolishes his building and erects a heavier five-story building, builds his side wall on the old wall in common instead of following the law requiring him to take out the .old wall and foundation and build a stronger wall and foundation, and the old wall proves insufficient, sinks and damages the adjoining building of plaintiff resting against said wall, rendering same untenantable, defendant is a wrong-doer, and is responsible for all profits and rents lost by the adjoining proprietor, plaintiff. 80 An. 84, Gettworth vs. Hedden; Heine vs. Merrick, 41 An. 208; Peirce vs. Musson, 16 La. O. S. 894, 396.</p> <p>In a suit for damages occasioned by a wrongful act, prescription runs, not from the time the act was done, but from the time when the damage was sustained in consequence of it. 36 An. 450, Hotard vs. Railway Co., and 37 An. 728, Heath vs. Texas Pacific Railway.</p> <p>Where the chimneys of an adjoining proprietor, built in a wall in common, become useless and fail to draw any longer, caused by the co-owner of said wall erecting a high building adjoining, it is the duty of said co-owner, in erecting the higher building, to ccarry up said chimneys on his high building at his expense, and where through error the party whose chimneys are carried up pays the cost of raising same he is entitled to recover the amount back. Toullier Droit Civil, Vol. 2, Paris Ed. 1833, Sec. 208; Perrin and Rendu, No. 2997; C. P., Art. 18; C. C. 2301; 10 An. 74 and 75, Catholic Society vs. New Orleans.</p> <p>The action to recover what was paid without being due is one arising out of a quasi-contract and is prescribed in ten years. C.C. 2294; 15 An. 143, Garland vs. Scott; 36 An. 408; 35 An. 858, Succession of Richmond.</p>

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

PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. The meeting of the committee on charities was called for the sole purpose of investigating charges of mismanagement of the Leper Hospital by Dr. Beard. It was not for the purpose of ascertaining whether there were lepers in the city of New Orleans other than those under the .care of Dr. Beard.

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

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

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

Bightor, ./. The present suit is the sequence of one brought by the plaintiff against the same defendant, which terminated in a judgment of this court rendered in May, 1890, which will be found reported in 42 An. 737.

PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. The defendant company issued to Dr. Samuel Logan two policies of insurance, one for the sum of five thousand dollars, and the other for sixty-seven dollars; the terms of both being substantially alike.

<p>Where an attachment on a just debt has been obtained against a debtor, which is maintained and a final judgment rendered lor the amount demanded, creditors who were not parties to the litigation, on discovering that the attachment was fraudulently and collusively obtained by an agreement between the creditor and debtor, can not have the final judgment set aside solely on the ground of collusion in obtaining the attachment, as this assertion cou d only serve to dissolve the attachment, which could not prevent the final judgment on the amount demanded.</p>

Voorhies, J. No one shall be deprived of life, liberty or property, without due process of law. Art 14, Section 1, Constitution of United States; Art. 6, Constitution of Louisiana, 1879. The charters of municipal corporations within the State are the measure as well as the source of their powers. Major vs. Roth, 29 An. 261.

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

PPEAL from the Civil District Court for the Parish of Orleans.

<p>The father during the marriage is clothed with the functions of the tutor in respect to the property of his child, and may petition for the family meeting to consider the expediency of selling such property at private sale. Civil Code, Art-22; Revised Statutes, 2359; Act. No. 25 of 1878.</p> <p>The under-tutor is properly appointed on such petition and is entitled to ask for the homologation of the proceedings. Civil Code, Art. 225.</p> <p>Nor will it make the least difference that the order of the court designates the father in such case tutor, when in fact he is competent to exert the functions of tutor.</p> <p>The parish courts, under the Constitution ofj!868, were competent to grant orders for family meetings and homologate their proceedings in such cases, and a sale made in accordance with the judgment of homologation passed the title to the minors’ property. Const. 1868, Arts. 87, 68; Act No. 25 of 1878; Duruty vs. Musacchia, 42 An. 359; Bruhn vs. Building Association, Ibid., 482.</p> <p>The decree of homologation in such case protects the purchaser especially when the objection suggested to the title is that the family meeting gave no reasons for their recommendation of the sale. Lalanne’s Heirs vs. Moreau, 13 La. 431; Succession of Hawkins, 35 An. 593.</p>

PPEAL from the Civil District Court for the Parish of Orleans. Bightor. J. No one can be compelled to hold property in common. C. C., Arts. 1289, 1290, 1308.

<p>A PPEAL from the Seventh Judicial District Court for the Parish of Madison. Montgomery, J.</p>

A PPEAL from the Oivil District Court for the Parish of Orleans. Theard, J. Any writing which bears on its face a charge, or tends to vilify another, or implies a want of honesty in another, is a libel. 94 Am. Dec. 456; 6 Ohio, 532; 9 Wis. 540; 13 R. I. 324; 3 Johns. 384; 7 C. and P. 680; 3 Salk, 236; 4 Mason, 115; 3 How. 266. An action may be maintained for written words, which, if spoken only, would not be actionable. Am. and Eng. Ency., Vol. 13, pp. 294, 296, 298.

<p>Jury commissioners may be appointed by the judge out o£ term time, and the fact of the appointment and the evidence of the same may be recorded by the clerk in. the minute book at that time.</p> <p>In all eases where correct copies of indictment and service have not been served on the accused, he must malre his objections before trial, otherwise he will be considered as having waived them.</p>

A PPEAL from the Civil District Court for the Parish of Orleans, t l Monroe, J. The record shows that defendant bought from. Perkins, who held without warranty from Orloff Lake, the original tax adjudicatee. That he was represented by the same agent and attorney that represented Perkins.

EUis, J. The plaintiff held three mortgage notes. The first was the joint and several note of John Klein and George H. Shotwell as joint purchasers of twenty-four lots of ground in square No. 26, by special mortgage and vendor’s privilege on the property in its entirety. 2.

<p>An insurance company can not i*esist tlie payment of a policy obtained in good faith, and without misrepresentation, issued to a firm, when there is only one person, in said firm; particularly when the agent issuing the policy knows that only one person composes said firm.</p> <p>It is no defence to the payment of the loss, that the policy was signed by officers who had ceased to be such when the policy issued.</p> <p>A party who obtains a policy from a former agent of the company with whom he had done business, and who has in hispossession blank applications and policies, will be protected in the absence or actual knowledge on hispart that the party acting as agent, was, in fact, not the agent of the company.</p> <p>Section 2GGS R. S. was intended to prevent the use of the name of a person not evidently interested in the firm, thus inducing a false credit which the law designed to prohibit. It does not forbid the giving of credit. 45 An. 1100.</p>

<p>A party selling a tract of land and reserving the right to construct on his own land a connection or switch railroad with a road to be constructed over the land sold, a subsequent vendee of the party making the reservation can exercise no greater right than that reserved. Where the immediate vendee of the party constructs the road and builds it, there being nothing said as to its location, or the kind and character of the road, or when this is doubtful, the location of the road by said vendee, and the kind of road he builds, will conclude a purchaser from him, and he can demand no greater rights than those exercised by the purchaser under the original reservation.</p>

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

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

<p>A reasonable doubt as to the jurisdiction of the appellate court should be resolved in favor of an appeal; so when the petition avers a money demand within the appellate jurisdiction, the appeal should be maintained, unless the demand be manifestly fictitious. 16 La. 182; 3 Kob. 143; 4 An. 213; 6 Rob. 151.</p>

ThéarcL, J. Plaintiff by notarial act passed before Woulfe, notary public, on the 18th of July, 1890, acquired from the succession of Thomson the ownership of a lot of ground with all the buildings and improvements thereon, situated in the First District of New Orleans, in the square bounded by St. Joseph, Peters (late New Levee), Julia and Commerce streets, and among other lots one designated as lot No. Ill on said square No. 54, which lot measured seventeen feet three…

King, J. There must be two attesting witnesses to an authentic act; otherwise its execution must be proven as an act under private signature. C. C. 2234. The same rule applies to acts executed by a commissioner. Nor can the act be admitted even to prove rem ipsam, without proof of its execution. Leibe vs. Haversmith, 39 An. 1050; Miller vs. Werner, 22 An. 457; and Langley & Kinkead vs. Burrows & Co., 15 An. 392.

Rightor, J. The burden of proof is upon the wife to establish affirmatively and clearly that she bought with her own separate funds, under her own own separate administration. 17 La. 300; 12 R. 582; 2 An. 763; 5 An. 811; 8 An. 286; 17 An. 598; 15 An.- 119; 16 An. 214; 20 An. 532; 21 An. 344; & An. 521; 30 An. 170; 35 An. 570.

<p>APPEAL from the Tenth Judicial District Court for the Parish of Avoyeiles. Lafargue, J., ad hoc.</p>

A PPEAL from the Twentieth Judicial District Court for the Parish ■i* of St. James.

Ferguson, J. I. The only question properly put in issue by the first bill is whether the corroboration of an apparent or feigned accomplice must be limited to evidence which tends to confirm the… Held: in this State, that it is the duty of counsel to show by his bill of exceptions that he asked for instructions to the jury that were material, and that he did not require the judge to charge an abstract proposition of law.

<p>It is alleged by the defendant in reconvention that a sale of shares in the Carroll' ton Railroad Company was effected for plaintiff’s account on the floor of the Cotton Exchange. The plaintiff denies that such a sale was made with his-authority. The defendant, upon whom rests the burden of proof, affirms. This being the only evidence upon that point, the alleged sale must be considered as-not having been made. The plaintiff and the defendants, as an accommodation to the latter, exchanged checks. The latter plead, that on the day they were to pay and return the amount of the check they made to the plaintiff’s order, they applied the amount to the payment of margins called for by the broker to whom they had sold shares, as above stated, for account of plaintiff.</p> <p>The check due by the defendants remained in plaintiff’s possession.</p> <p>In account furnished plaintiff, some time afterward, among the several debits, one is mentioned corresponding with the amount of defendants’ check. It is not identified in any respect, further than that there are several similar amounts charged at different times.</p> <p>The defendants conducted many business transactions for the plaintiff during a number of years.</p> <p>The total margins called fordo notcorrespsnd with total loss on sales short.</p> <p>The charge of an amount for margin is not proof of payment of amount due in a separate and independent matter not at all connected with the usual business between the plaintiff and defendants. Shares in bank and other stock, which the broker fails to show he can control, and which he fails to offer to deliver at the time of the trial, can not be charged to the principal as so much due by him, nor can he be charged with amounts and commissions the brokers testify are due to them for advances made for their purchase.</p> <p>As it may be that a settlement can be arrived at, just to all parties, and tender made o£ their shares, the plea in reeonvention is dismissed as in case oí non-suit.</p>

<p>APPLICATION for a Writ of Certiorari.</p>

<p>A conviction resting exclusively upon the testimony of two accomplices, by a jury in part composed of persons who participated with a voluntary posse in chasing after and running down the defendant, and which jury was drawn from- a venire selected by only three of six jury commissioners, one of whom had, before and after the trial, taken a most active and conspicuous part in securing the defendant’s arrest.and conviction, can not be sustained as the result of the fair trial‘‘by an impartial jury ” which is guaranteed by the Constitution to one who is accused of crime.</p>

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

Sehwing, J., ad hoe. A creditor may bring petitory action -to recover his debtor’s property alienated to his prejudice, and for which the debtor fails or refuses to sue. 30 An. 733; 33 An. 898. The • prescription to this action is ten years and not one year. Idem. No one can convey a better title than he himself has. 4 R. 118; 2 An. 143; 4'An. 52, 104; 5 An. 10, 66; Hennen’s Digest, 1835, No. 9.

Allen, J. Where the legality of a transaction depends, not on the nature of the transaction but on the capacity of the party to contract, the rule as to innocent third persons has no application. 5 N. S., 55; 5 An. 495.

<p>Where the State adds territory to a political subdivision, it is not within the power oí the latter to so fix the boundary as to exclude from its limits a part of the territory intended to be added to th i municipality.</p> <p>When the State directs the extension of a street to a certain point, to embrace the added territory, the street must be continued in its length in the direction to which itpoints and to its destination designated by the legislation. It can not be deflected, unless there are physical obstructions which make it necessary, so as to reach the point in the most direct line.</p> <p>Local self-government is guaranteed under our political system, in or out of a municipality, and the municipal organization as such has no significance as an organization for the preservation of vested political rights. In European countries franchises and privileges to a municipality are secured by contract between lord and dependant; with us it is acreation of positive law, and in furtherance of the general administration of the State, it is subject to legislative will. No vested right can be acquired by a municipal organization by its own act, by the consent of another to said act, or by opposition thereto, as against the paramount authority of the State.</p>

<p>Notwithstanding the stipulation in a building contract, that builders shall not be entitled to demand and receive the final balance due them on the contract price until they shall first procure from the architects in charge of the work a certificate that the edifice has been completed according to contract and accepted by said architects, the builders may sue the owners for the balance due, after having put the architects in default by demanding certificates from them, after the completion of the work — their only ojection being that the full amount due the sub-contractors and material men had not been paid, although same had been provided for by the builders, to be paid out of the amount due.</p> <p>When the building contract provides that in case of delay in the completion of the structure by a certain fixed date, the builder shall pay a forfeit of a certain sum daily during the period of default, other provisions of the contract must be examined and compared, in order to determine upon whom — from the gen eral tenor and provisions of the contract — the fault is imposed in causing the delay in the completion of the building.</p> <p>When those other provisions disclose that the builders are to furnish the materials and perform the work, and the architects are to furnish the plans and specifications and superintend the work, it is an easy matter to show by evidence whether the delay in the completion of the work was caused by the fault of the builders or the architects, and judgment will go accordingly.</p>

A PPEAL from the Ninth District Court for the Parish of DeSoto. Fournet, J., in place of Hall, J., reeused. Pleas involving facts on the merits of an issue are not exceptions, but an answer. 29 An. 398; 25 An. 339; 21 An. 131. Defendants who plead corporate exemption from personal liability for their acts, imprudence or negligence, must, to escape liability, clearly establish the corporate existence and exemption which they plead.

<p>y^PPLOATION for a Writ of Certiorari.</p>

<p>An accused has the burden on him of establishing a plea of insanity to the satisfaction of the jury beyond a reasonable doubt. The State is not bound to affirmatively prove the sanity of the accused.</p>

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

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

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

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

<p>A letter is not admissible in evidence against a party by whom it purports to have-been written unless proof is first made that he wrote the letter, either by positive proof or by proof of hand writing.</p> <p>The fact alone that sucha letter bears the postmark of an office at which the party sometimes received liis mail does not make it admissible.</p> <p>A verdict by which the jury declare, that they find the accused guilty, has reference exclusively to the party or parties on trial, and is sufficiently certain to* identify the accused, against whom the verdict i3 directed.</p>

Monroe, J. Where the offence is of an indictable nature, the corporation can not expel, unless there has been a previous conviction before a jury. Leech vs. Harris, 2 Brewst.' Pa. 571; Com. vs. St. Patrick’s Society, 2 Bun. Pa. 448; Society for Visitation of Sick vs. Meyer, 52 Pa. St. 125. The right claimed by the corporation should not be against public policy. People vs. Medical Society, 24 Bart. N. Y. 570; People vs. New York Ben. Society, 3 Hun. N. Y.; Am. and Eng. Ency.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.</p> <p>A railway is liable to persons whom it accepts for transportation over its line, and from whom it. demands no fare, to the same extent that it is liable to passengers who pay fare. Thus, in P. & R. R. R. vs. Derby, 14 Howard, 468, the plaintiff, the president of another line, and a shareholder of the corporation defendant, having been injured while being carried over the defendant’s line at the invitation of its president, judgment upon a verdict for the plaintiff was affirmed in error, Grier, J., saying the duty of the defendant to carry carefully “does not result alone from the consideration paid for the service. It is imposed by the law, even where the service is gratuitous. 16 How. 469; Wood’s Railway Law, Yol. 2, pp. 1040, 1041; Patterson on Railway Accident Law, p. 207, Sec. 213; Buswellon Personal Injuries, pp.167, 168, Sec. 115; Milton vs. Middlesex R. R. Co., 107 Mass. 108; Flint & Pere Marquette R. R. vs. Weir, 37 Michigan, 111, 114, 115; Austin vs. Great Western Railway, L. R. Q,. B. 444, 545; Head vs. Georgia Pacific Railway, 79 Ga. 358.</p> <p>Where carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of “gross.” Philadelphia R. R. Co. vs. Derby, 14How-, ard, 468; 16 How. (U. S.) 469.</p> <p>Gratuitous passengers are entitled to safe carriage, and can recover damages for injuries sustained by the negligence of those operating the train of a railway. Wood on Railway Law, 1040, 1041; Patterson on Railway Ace. Law, p. 207, Sec. 213; Ibid., p. 209, Sec. 215; Ibid., p. 212, Secs. 218,505; Buswell on Personal Injuries, 167, 168; Am. and Eng. Encyclopaedia of Law, Vol. 2, p. 744, Secs. 9, 10; Hutchinson on Carriers, Secs. 500, 563, 564, 590; Austin vs. Great Western Ry. Go., 2 Q. B. Oases, 442; Jacobus vs. St. Paul & Chicago Ry. Oo., 20 Minnesota, 125; Buffalo Ry. Oo. vs. O’Hara, 9 Am. and Eng. Ry. Oases, (Pa.) 317 (1882) ; Railway Oo. vs. Stevens, 95 U. S. 655; Ohio & Miss. Ry. Oo. vs. Niekless, 71 Indiana, 271; Godin vs. St. Paul & Duluth Ry. Oo., 30 Minnesota, 217 (1883) ; Lemon vs. Chausler, 68 Mo. 340; Ohio & Miss. Ry. Oo. vs. Selby, 47 Indiana, 471; Waterbury vs. New York Central Ry. Oo., 17 Federal Reporter, 671; Grand Trunk Ry. Oo. vs. Vogel, (Can.) 27, 18; Gulf, etc., Ry. Oo. vs. McGowan, 65 Texas, 640; 5 Otto, U. S. 655-660; 84 U. S. 627; Kimball vs. Boston, etc., Ry. Oo., 13 Vermont, 55; Wilton vs. Middlesex Ry. Oo. 107 Mass. 108; Head vs. Ga. Pacific Ry. Co., 79 Ga. 358; Nolton vs. Western Ry. Oo., 15 N. Y. 444; Old Colony & Fall River R. R. Oo., 3 Allen, 18; Littlejohn vs. Fitchburg Ry. Oo., 148 Mass. 478; Rose vs. Railway Co., 39 Iowa, 246; Railway Oo. vs. Hopkins, 41 Ala. 486.</p> <p>In dealing with matters of litigation growing out of railway law, in connection with railway accidents, the Supreme Court of Louisiana will endeavor to place its rulings in line and harmony with the adjudications of the Supreme Court of the United States, and of the courts of last resort of the States of the American Union, iu all cases in which they do not conflict with the special and exceptional system of laws prevailing in Louisiana.” Henry E. Williams vs. Pullman Palace Oar Company ef als., 40 An. 417.</p> <p>“ Contributory negligence is a defence which confesses and avoids the plaintiff’s ease, and must be made out by showing affirmatively, not only that the plaintiff was guilty of negligence, but that such negligence co-operated with the negligence of the defendant to produce the injury.” Kentucky Ry. Oo. vs. Thomas, 79 Ky. 160; Am. and Eng. R. R. Oases, 81.</p> <p>“ Mere negligence or want of ordinary care or caution will not dis-entitle the plaintiff to recover, unless it be such that but for that negligence, or want of ordinary care and caution, the misfortune could not have happened.” Tuff vs. Warman, 5 O. B. N. S. 573, 585; Washington vs. B. & O. Ry. Co., 17 West Va. 190; 10 Am. and Eng. R. R. Cases, 749, 755; Am. and Eng. Ency. of Law, Vol. 4, p. 18; Thompson on Negligence, 1148 F. 3; Beach on Contributory Negligence, 19; Railroad Company vs. Jones, 95 U. S. 430; Woods vs. Jones, 34 An. 1086; Woods Railway Law, 1225; Pierce Railway Law. 326; Patterson’s Ry. Acc. Law, 45.</p> <p>The necessary elements in contributory negligence are want of ordinary care on the part of plaintiff, and a proximate connection between that and defendant’s negligence. Beach on Contributory Negligence, Sec. 7; Little vs. Hackett, 116 U. S.; R. R. Co. vs. Haspell, 23 Penn. St. 147.</p> <p>The well established doctrine in England, in Canada and in New York, is that the stipulation in a so-called free pass, exempting the carrier from the negligence of his servants, is an absolute bar to recovery, whether the pass be a so-called “drover’s pass”ornot. Alexander vs. R. R., 33U. C. (Q,. B.) 474; Peck vs. R. R., 10 H. L. Cases, 473; Haigh vs. Packet Co., 52 L. J. (Q.B.) 640; McCawley vs. Furness Railway, L. R. (Q. B.) 57; Hall vs. N. Eastern Railway, Ibid. 437; Duff vs. Great Northern Railway Co., L. R. (Ireland), 4 Com. Law, 178; Gallin vs. Railway, L. R. 10 (Q. B.) 212.</p> <p>The weight of authority in the courts of the United States, and of most of the States probably, is that drovers’ passes and such like passes, given for valuable consideration, make the carrier a carrier for hire. R. R. Co. vs. Lockwood, 17 Wall. 357; Railway Co. vs. Stevens, 95 U. S. 655; Railway Co. vs. Rose, 39 Iowa, 246.</p> <p>The best considered cases and the vast weight of authority are in favor of the binding effect of the stipulation in a free pass in the hands of a gratuitous passenger. Higgins vs. R. R. Co., 28 An. 133; Quimby vs. R. R. Co., 150 Mass. 365; Muldoon vs. Railway, 7 Wash. 528; Rogers vs. Kennebec Steamboat Co., 29 Atl. Rep. 1069.</p>

Monroe, J. The law imposes upon the grandfather the duty of taking charge of the tutorship, under the penalty of responsibility of losses, if he refuses.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.</p> <p>O. C. 1430, 1431, 1642, 1440, 1434, 1634, 1636; 5 An. 199; 12 An. 5; 8 An. 142; Marcadé, Yol. 4, Donations et Testaments, pp. 97, 102, 103; Marcadé, Vol. 3, des Successions, pp. 259, 270, 271 and 94; Code Napoleon, Arts. 871, 874, 1020, 1024, 1018; Art. 226 Code of 1808; Art. 1383 Code of 1825.</p> <p>R. C. C. 1638, 1440, 1441, 1442, 1443, 1642, 1430, 1434, 2161, 3410; C. N. 871, 873, 874, 1020; Succession of Sinnott, 3 An. 175; Succession of Coste, 43 An. 144; Eskridge vs. Farrar, 34 An. 709; 3 Chabot Successions, 274,242; Rogron Code Annoté, pp. 211, 213,249; Paillet, pp. 341, 425; 2 Lacantinerie, pp. 425,430; 1 Boileux, 659, 660; Favard-Langlade, 406, 274; 2 Troplong Testaments, 556, 178; 16 Merlin Réportoire, 816, 512; 1 Grenier Testament, 177, 561; Ooin-Delisle Testaments, 477; Code Cvili Annoté par Lahaye, 376, 459.</p> <p>At the trial His Honor the Chief Justice propounded to counsel whether the work and report of the jurists who framed the Code of 1825 had been consulted, and how .far it threw light on the apparent inconsistency between Art. 1434 R. C. C. and the four articles 1440-1443 R. O. C. They have been fortunate in finding a copy in the French language of the “ Additions and Amendments to the Civil Code of Louisiana” proposed by the commissioners in 1824, the greater part of which were incorporated in the Code of 1825.</p> <p>It has been said in argument that onr present Articles 1434 and 1638 correspond to Articles 874 and 1020 respectively of the Oode Napoleon. They are also found in our Oode of 1808, being Art. 226, at page 200, under the heading “ Payment of Debts,” and Art. 146, at page 240, under the heading “Legacies” — the phraseology not differing to any great extent. It is well known that Arts. 1440, 1441, 1442,1443 are new articles inserted in the Oode of 1825, and not existing in either the Oode of 1808 or in the Oode Napoleon. The idea readily suggests itself that the framers of the Code intended to inject into our legislation, in emphatic and clear language, the principle that the particular legatee should take the legacy cumonere and without recourse against the heirs. They were led to this course because they had found the French commentators puzzled as to the proper mode of reconciling Arts. 874 and 1020 of the Oode Napoleon. They thought that they had set the matter at rest. But the doomed Art. 1434, like Banquo’s ghost, now rises again from its unsealed grave to disturb our 'councils.</p> <p>What is the language used by these eminent jurists in their report to the Legislature? After suggesting that Art. 228 of the Oóde of 1808 (which is our Art. 1436 R. O. O.) be followed by seven new articles (our present Arts. 1437, 1438, 1439, 1440, 1441, 1442, 1443), they add by way of note or remark as follows:</p> <p>“The dispositions contained in these articles are amendments to Art. 226 of the Oode, which we have suppressed above. Such article in granting to the particular legatee, who pays by reason of the hypothecary action, recourse against the heirs of the testator, is in contradiction with Art. 146 of Donations and Testaments, which says that the heirs are not bound to discharge the thing bequeathed of the incumbrance placed upon it by the testator. We have thought proper to correct this disposition, in conformity with the opinion of the best authors, who would have it that in such cases the legatee has no recourse against the heirs, but on the contrary, the latter may have recourse against him, whenever they would discharge the mortgage subject to which was the bequeathed immovable.” (Translation by the counsel.)</p> <p>Amendments to Oode of Louisiana, pp. 196, 197.</p> <p>If thus appears from the lips of these compilers or framers of our laws that they had suppressed Art. 226 of the Oode of 1808 (R. C. C. 1434.) Yet it found its way again in our Code of 1825— alongside of its new neighbors and opponents — as if it had not been abrogated. Was this an oversight and a clerical error? Or will it be said that the Legislature disregarded and repudiated the proposed innovation suggested by the jurists? How then could' the Legislature have agreed to adopt their recommendations in regard to the four new articles to be inserted in our Code. Then comes the codification of 1870 with all these articles re-enacted totidem verbis.</p> <p>An explanation which is plausible would limit the application of Arts. 1440, 1443, to particular legatees who are not heirs of the deceased testator; and so of Art. 1638. And on the other hand, Art. 1434 and the one preceding it, as well as the five succeeding it, would have reference to particular legatees who are also heirs of the testator. The reason of this distinction is to be found in the equality which must exist between co-heirs. It should be here remarked that Art. 1440 — the first of the four articles treating of legatees who are not also heirs — says: ‘ ‘ If a property which is bequeathed to any one has been mortgaged,” etc. How different is the language of R. C. C. 1433, which renders the heir bound to pay the whole debt by the hypothecary action, but reserves to him “ recourse against his co-heirs, or the other successors standing in their place, for the amount which he has been bound to pay for the discharge of the mortgage debt.”</p> <p>In our former brief we have adverted to the difference in the phraseology of Art. 1434 and of Arts. 1441 et seg. — the former of which speaks of subrogation, while the latter use the word recourse. If subrogation carries with it recourse, how could one article give to the particular legatee what the other articles refuse him? What the motive of the Legislator was in not using the same expressions, if they were synonymous, remains a mystery to us.</p> <p>In regard to the weight to be given to Art. 1642 and to the principle that particular legatees are not liable for succession debts, why should it be contended that the provisions of Arts. 1441, 1442 can not be reconciled therewith? Does not Art. 1642 prescribe that the particular legatee shall be liable to the action of mortgage on the part of the creditors of the succession? Why should he not, in such a case, be refused all recourse against the heirs, as Art. 1441 ordains?</p> <p>This is not a matter of paying succession debts; it is more properly the receiving of a particular legacy cum onere, as would be the case of a usufruct. Indeed, the article itself furnishes the explanation; because by receiving the legacy he is considered as having received it with the incumbrances with which it was charged. R. O. O. 1441.</p> <p>And to the same effect are the words contained in the following article: “To be reimbursed (the heirs) for having discharged and disengaged the object bequeathed, which they were not obliged to do. R. O. O. 1442.</p>

Theard, J. I. In view of the opinion of this court in Remick vs. Lang, we do not discuss the character of this action. II. The want of notice, pleaded as a ground of nullity of the tax title herein, is notice of the sale under Act 82 of 1884. No want of notice of the sale to the State is either alleged or proved. Plaintiff has no interest in attacking the sale under Act 82 of 1884. Breaux vs. Negrotto, 43 An. 432.

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

Monroe, J. In an action in jactitation, defendant who answers, setting up title in himself, assumes the onus probandi and must make out his case; defendant, under such circumstances, occupies the position of plaintiff in a petitory action. 9 M. 914; 18 La. 102; 2 R. 331; 11 An. 174; 12 Ap. 873; 27 An. 307; 35 An. 356; 33 An. 249; 32 An. 613; 40 An. 558; Remick vs. Lang, 47 An. 914.

Ellis, J. On the bieach of any obligation to do or not to do, the obligee may require the dissolution of the contract. C. C. 1926.

<p>A night inspector of the defendant company undertook to repair a lamp out of orcler, the cut-off screw of which had been burnt out.</p> <p>It was highly dangerous (the volts on the wires were 3000) to handle the lamp while standing on the ground, and equally dangerous to handle it while standing on a wet insulating hoard or stool.</p> <p>After the accident the deceased was found lying on the ground in the gutter, north from the lamp. The lamp had been lowered to about three feetfrom the ground.</p> <p>The hood of the lamp had been taken off and placed a short distance from the lamp. The insulating board was south of the lamp, so that the lamp was between the insulating board and the body. The cut-off screw, out of repair, was»on the side of the lamp the body was found.</p> <p>A fall backward from the instating board would have been in a direction opposite from that his body was found.</p> <p>A fall forward would have been obstructed by the lamp in his front, and would have thrown him obliquely to the right or to his left.</p> <p>The position of his body gives rise to the inference that he was standing on the ground on the side of the lamp, opposite to the insulating stool; that he was standing on the ground the side the hood was and the cut-off screw.</p> <p>Tf this be not correct, and he was at the time standing on the insulating stool; it was not shown that there was any electrical defect in the insulating stool. It was incumbent upon him not to use a wet insulating board, if it was wet.</p> <p>It is the obligation of the servant to use ordinary care to prevent and avoid injuries. It is his duty to go about his work with his eyes open. He must take ordinary care to learn the dangers which are likely to beset him in the service. He was warned of the danger. The action against the employer is barred by the imprudent acts of the victim of the accident.</p>

<p>APPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.</p> <p>Prescription does not run as long as the creditor, with the consent of the debtor, holds the latter’s valuables as collateral security, in pledge or otherwise. And the same is true of anteehresis, and generally of all agreements by which a debtor confers possession of his property to his creditor with the stipulation that the rents and revenues are to be applied to the extinguishment of the debt.</p> <p>The transfer of a policy of insurance and its delivery- to a creditor as collateral security is a continuous acknowledgment of the debt.</p> <p>The stipulation in a policy of insurance “loss, if any, payable to the creditor,” is a formal acknowledgment of the debt.</p> <p>Partial payments made by the husband as agent of his wife is an interruption of prescription.</p> <p>As long as the policy is operative between the mortgagor and the insurance company, the pledge in the hands of the mortgage creditor remains in full force; and as long as the latter holds the pledge “there is a standing acknowledgment of the debt,” and as a consequence prescription does not run. O. O., Art. 3520 (3486).</p> <p>Elliott vs. Brown, Executor, 13 An. 579, is an able exposition of the law of admission. The court observes: “There must be an acknowledgment of the creditor’s right. O. O. 3486. An admission by the alleged debtor that a third person holds a note against him is not, of itself, an admission that he justly owes to such pei'son the amount of the note.”</p> <p>The distinction is an obvious one. In the preceding paragraph the witness, it appears, said “that he has heard George Elliott say, within the last five years, that Bryce Elliott held a note against him, but did not acknowledge that he owed the note, or state the amount; but, on the contrary, stated that Bryce Elliott was largely indebted to him.”</p> <p>Civil Code, Art. 3520 (3486) : “Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgmeixt of the right of the person whose title he prescribes.” It is the right that must be acknowledged. That is what is decided in the case, Schultz vs. Houghton, 36 An. 407. Said the court: “It is perfectly clear that defexxdant in this case has never-acknowledged the right of the creditor — i. e., the. debt claimed by the creditor; but, on the contrary, declined to acknowledge it, and left it a matter of free and open discussion.”</p> <p>The assignment of a policy of insurance to a mortgagee as interest may appear, does not suspend prescription as does a pledge for a debt. 115 Mass. 590; 75 New York, 10; 13 An. 579; 36 An. 407.</p> <p>The policy in this case was made in 1880, and the assignment to the mortgagee was contemporaneous with the mortgage, 6th August, 1884. It was kept in force antil 1893 by payment of premiums —who made those payments is not known — that is, whether they were made by the husband or the wife; but whether made by one or the other, they were not payments on account of the debt secured by mortgage, and therefore are not annual interruptions of prescription. Those payments were made on account of a contract collateral to tne debt and the mortgage securing it, but not on account of the debt or the mortgage, for they in no manner diminished the debt or reduced the mortgage.</p> <p>The object of those payments was to maintain intact the thing which had been mortgaged to secure the debt. If that thing were destroyed the debt secured by it would remain in full and undiminished vigor, but the thing pledged to secure its payment would disappear. It is therefore plain that the object of the collateral contract is, not to secure the payment of the debt, but to preserve the thing which is pledged to secure the payment of the debt. The thing may be a house mortgaged or a chattel pledged — the collateral agreement is to secure the rebuilding of the house or the replacement of the chattel in case of destruction or loss — and that agreement to rebuild or replace is made with a third person, who contracts with the debtor to rebuild the house if destroyed, or replace the chattel if it perish. Does it not follow that the assignee of such a contract is not in possession of the thing pledged to secure the debt, though he may be in possession of an agreement on the part of a third person to replace the thing pledged.</p> <p>It is plain, therefore, that the possession of the agreement to replace the thing pledged is not the possession of the thing pledged, but of another thing, which is not the object of the contract of pledge, but the object of a contract collateral thereto. .</p> <p>It is the possession of the thing pledged which prevents the running of prescription, the creditor being in possession has no interest to sue; the pledge is his guarantee, and the debtor by leaving the pledge in his hands recognizes the existence of his debt.</p> <p>Such is not the case with a mortgage, because the mortgagee has no possession; but such is the case with antichresis, because the antichresis creditor has possession of the immovable, which is the object of the antichresis contract.</p> <p>In its origin the pignus conferred on the creditor the right of retention only, and for that reason to-day possession is essential to a pledge.</p> <p>The Supreme Court of Massachusetts say, in the case of Gordon vs. Savings Bank, 115 Mass. 591: “The issuance was for indemnity, to the mortgagee as well as to the mortgagor. To the mortgagee it was protection of the security, not for the payment of the debt.”</p> <p>Now, what is the essence of a pledge? The Code, in Art. 8133, defines a pledge to be “ a contract by which one gives something to his creditor as a security for his debt; ” not a security that the thing pledged shall not perish.</p> <p>An independent contract by a third person that the thing shall not perish, or if it does it shall be replaced, is certainly no part of of the contract of pledge; it is a distinct and independent agreement, not made by the debtor, but by a third person no party to the contract of pledge, and having no interest whatever in the debt, nor in the thing given to secure its payment.</p> <p>The contract of insurance might have been made with the mortgagee only, to indemnify him against loss in case the mortgaged prop - erty should be destroyed.</p> <p>Does it make any difference in the nature of the transaction that the insurance is effected in the name and at the expense of the mortgagor? In both cases the nature of the contract is the same; it is an agreement for the preservation of the security, not for the payment of the debt. In the one case the mortgagee insures his qualified right in the property; in the other the mortgagor insures as absolute owner, but, as said, the nature of the contract, for the preservation of the thing, is the same in both cases.</p> <p>What is the reason that the possession of the pledgee is considered a continual tacit admission of the debt due to him?</p> <p>The possession of the creditor is precarious; by no lapse of time can he acquire title to the thing pledged. The possession being precarious, its continuance is an admission by the owner that the possessor has some right that entitles him to possession, otherwise he would resume the enjoyment of his property. This has no application to a collateral agreement having for its object the preservation of the thing which is in the possession of another, and which in no manner relates to the title or possession of the thing possessed.</p> <p>Plaintiff is the holder of a promissory note.</p> <p>Against the maker's plea of prescription he invokes the payments made by defendant’s husband, endorsed on the note and signed by him. He represented himself at the time as his wife’s agent.</p> <p>The following is the testimony upon the subject:</p> <p>Q. Please state in what capacity Mr. Ferrandou appeared and made these payments and signed those documents.</p> <p>To which question Mr. Philips in behalf of Mrs. Ferrandou objected unless counsel can show written authority from Mrs. Ferrandou to endorse these papers.</p> <p>The court rules that the objection goes to the effect, but that the plaintiff must prove express authority either by parol or in writing. The defendant in rebuttal, on this point, testified that her husband was not authorized to make the payments of interest he had made, nor to sign endorsement on the note showing payments.</p> <p>Regarding the policy of insurance invoked by plaintiff against the plea, of prescription, being plaintiff urged an acknowledgment of the debt; the transfer by defendant to plaintiff reads:</p> <p>“ New Orleans, La., August 6, 1884.</p> <p>“For value received I hereby transfer, assign and set over all my rights, title and interest in and to the within policy of insurance unto and in favor of Jean Marie Begue as his interest may appear.</p> <p>(Singed) “ E. A. Ferrandou.</p> <p>“To authorize my wife.</p> <p>A. Ferrandou.”</p> <p>The policy was in force at all times, and plaintiff’s claim referred to as insured.</p> <p>Mrs. E. A. Ferrandou annually paid the premiums to the insurance company, to the lfth June, 1893, at which time, desiring to increase the amount of the insurance, she ordered and obtained another policy in which the following was inserted as it had been in the first policy.</p> <p>“ Loss, if any, payable to Jean Marie Begue as interest may appear.”</p> <p>This new policy in plaintiff’s possession was by him introduced in evidence.</p> <p>With reference to the policies the defendant, Mrs. Ferrandou, testified:</p> <p>Q. That is your signature to the transfer of the insurance policy to Mr. Begue?</p> <p>A. Yes; that is my signature.</p> <p>Q. And you were insured in the Home Insurance Company?</p> <p>A. Yes.</p> <p>Q. That renewal was made by you afterward, in 1893?</p> <p>A. No. I went and got another policy, because I wanted to have the policy for more and pay less premium.</p> <p>Q,. That is the reason why you increased the policy from $5000 to $5500?</p> <p>A. Yes</p> <p>Q. But that is your policy of insurance?</p> <p>A. Yes; they told me they would send it to me.</p> <p>Q. But they never sent it to you?</p> <p>A. No; I never received it.</p> <p>Q. But you paid for it?</p> <p>A. Yes, I paid for it, but they never sent it.</p> <p>It is. in proof that she paid for the first and second policies, each carrying plaintiff’s claims as an interest insured.</p> <p>As to the second or new policy, although paid for by her it was not delivered to her.</p> <p>Plaintiff urges that she could not thus annually retain her policy in torce and order in event of loss by fire, payments to him without acknowledging the validity and binding effect of her indebtedness to him.</p>

<p>On the charge of attempting, by persuasion, to prevent a witness from testifying on an investigation by a grand jury, it is not error that the State witness, in proving the persuasion, was permitted to testify over the objection of the accused, that in the conversation in which the persuasion was used the character of the grand jury proceeding was introduced by the accused, and, to some extent, discussed; that discussion being linked with the persuasion, so that the testimony objected to was requisite to show the nature of the persuasion and the motive of the accused in using it. 1 Greenleaf on Evidence, Secs. 51,52.</p> <p>On such charge the proof was relevant that when the persuasion was used the grand jury investigation in contemplation, was known to the accused; that he also knew the p^rty sought to be persuaded not to testify was a material witness in that investigation, and the proof that the investigation resulted in indictments is also pertinent.</p> <p>If, to make the persuasion effective, the accused made a false statement, as, for instance, he had been sent to request the witness not to testify, testimony of the falsehood part of the persuasion is admissible.</p> <p>The instruction to the jury that under the State Constitution they are judges of the law and fact; they must ascertain the facts from the testimony, apply the law as given by the court, and that they can not rightfully disregard the instructions of the court on the law, affirms the weight due to the instruction; the moral obligation o¡ the jury to respect the charge, and although “must’ is used, the charge, as a whole, is in substantial accord with our jurisprudence. Constitution, Art. 168; State vs. Johnson, 30 An. 905; State vs. Cord, 37 An. 465; State vs. Cole, 38 An. 846.</p> <p>The section of the Revised Statutes under which the accused was indicted punishes the attempt by persuasion, to prevent a witness in a criminal case, in any stage of the prosecution, from appearing or testifying. Revised Statutes, Sec. 880.</p> <p>T'o constitute the offence under such section it is not essential there should be pending a criminal case in the technical sense, nor that the witness on whom the persuasion is attempted should be under a summons to appear; it suffices there is in contemplation an investigation on appropriate indictments by the grand jury, of which the accused has knowledge, it being known to him also that the party sought to be persuaded not to testify is a material witness in aid of such indictments, and that with such knowledge such persuasion is attempted by the accused. Ibid., 41 An. 341.</p> <p>McJinery,on Application for a ¡Rehearing. — Courts can not, on the theory of mischief intended to be prohibited, enlarge statutes beyond the fair significance of the language employed, but a statute must have a construction commensurate with its manifest object.</p> <p>The “stages” of the prosecution include the investigation by the grand jury, which results in finding the bill; hence, if the persuasion is used to prevent the witness from going before the grand jury, the investigation before that body is a stage of the prosecution in the sense of the statute.</p> <p>If the attempt is to prevent the witness from testifying in a contemplated investigation before the grand jury, resulting in the finding of the indictment, the offence is accomplished, though the case, in its technical sense, does not exist until the indictment is found. When that occurs the case may be deemed to relate back to the initial step, thofindingof the grand jury.</p>

<p>The parties to the suit in the lower court are parties to the appeal, and, therefore, the motion to dismiss the appeal, in so far as relates to that ground, is dismissed.</p> <p>The case itself is not dismissed, but remanded, in order that the third person, who has petitioned for an appeal, may prove the amount of the indebtedness of the defendant, and whether the succession, represented by the defendant, is solvent or insolvent.</p>

A PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J. A child under three years of age can not be guilty of contributory negligence. 42 An. 831; 43 An. 68; Harris, Damages by Corporations, Yol. 1, p. 544. Nor can the negligence of the parent be imputed to the child in a suit by the child. Id. Parents are not obliged to restrain their children within doors at their peril.

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

<p>Where there is an acknowledged inability on the part of the defendant to execute the contract, the putting of him in default is not necessary as a prerequisite to a suit for damages for a violation of the contract.</p> <p>Under a clainffor damages under Art. 1934, O. C„ the damage must be the natural and proximate result of the wrong. It must not be remote or consequential, but the natural consequence. Vague and indefinite results, remote and consequential, etc., and thus uncertain, are not embraced in the compensation given by damages.</p>

<p>A PPEAL from the Fourteenth Judicial District Court for the Parish of Pointe Coupée. Talbot, J.</p> <p>Argued and submitted on briefs.</p> <p>On Motion to Dismiss the Appeal.</p>

Hall, J. The title of Act No. 165 of 1894, in all respects covers the body of the act, and neither the title nor the body of the act embrace more than one general object, viz.: that of “ giving to incorporated cities and towns the right to demand and receive from the police juries of their respective parishes the licenses collected annually by the parishes from said cities and towns, less the criminal, public school and other expenses paid out on account of said cities and…

<p>APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, ./.</p> <p>Cites 34 An. 632; 30 An. 1157; 33 An. 1010; 45 An. 377; 40 An. 695; 36 An. 824, and quotes authorities to sustain the following propositions:</p> <p>A married woman can not, by any act of hers during the marriage, ratify a contract which is originally null.</p> <p>She is not bound by her confession of judgment.</p> <p>She can not be held for constructive fraud, but it must be actual fraud or deceit, otherwise it would be nothing more than an estoppel, which does not apply. Bisland vs. Provosty, 14 An. 173; McIntosh vs. Smith, 2 An. 556.</p> <p>Married women are of limited capacity to contract and.are forbidden to contract in certain cases. They are classed with minors. R. O. C. 1782, 1790.</p> <p>Whoever deals with a married woman is put on his guard and contracts at his own risk, and it is incumbent upon him to ascertain that her proper estate can be charged with the debt.</p> <p>A compromise with a married woman, induced by threats of a criminal prosecution against the husband is void. It is only when the husband is actually incarcerated that a married woman may bind herself to secure his release. Gibson vs. Hitchcock, 37 An. 213.</p> <p>The doctrine of estoppel and res judicata applicable to married women. 26 An. 289; 34 An. 1171; 37 An. 324, 684; 44 An. 584.</p> <p>The cases suggesting that a married woman is not estopped by her judicial admissions and confessions are based entirely upon the supposition that such confessions and admissions may have been induced by marital influence and coercion. 26 An. 289; 2 An. 343; 2 An. 440; 6 An. 121; 39 An. 705.</p> <p>Mere advice and request by the husband do not constitute the marital influence which impairs a married woman’s obligation. 15 An. 615; 37 An. 679; 44 An. 1103; C. C. 1749, 1559.</p>

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

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

<p>Before invoking tile supervisory jurisdiction of the Supreme Court, the party applying for relief must exhaust his remedies in the lower court. When it is alleged the lower court was without jurisdiction, it must appear that a plea to the jurisdiction was filed in the lower court.</p>

<p>APPEAL from the Oivil District Oourt for the Parish of Orleans. Ellis, J.</p> <p>46 An. 410; 42 An. 877.</p> <p>Oooley on Taxation, pp. 263-266; 32 An. 1006; 15 An. 15; 25 An. 504; 37 An. 60; 19 An. 185; 33 An. 520.</p>

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

<p>The appeal was from a judgment maintaining the plea of res judicata.</p> <p>The attack made by the plaintiff on the judgment was collateral.</p> <p>The proceedings and the judgment were apparently regular before a court of eomp.etent jurisdiction.</p> <p>It was in proof that a third person, who was an intervenor, had acquired an interest.</p> <p>The judgment could not be considered absolutely void.</p> <p>In so far as it may be voidable, the action to annul it must be direct.</p> <p>Without sustaining the plea of res judicata the judgment dismissing plaintiffs’'action is maintained as in case of non-suit.</p>

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

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

<p>State and city business licenses furnish no defence against a suit to abate nuisances arising from the unauthorized uses made of the licenses. Wood on Nuisances, Secs. 748, 746, 751.</p> <p>The uses of such licenses that congregate crowds of disreputable people; lead to drunkenness, debauchery, noises and midnight arrests, preventing sleep, and presents to the view of neighbors and to the public lewd women, indecently attired and lascivious behavior of men and women, create nuisances of the most serious character, affecting the residents of the neighborhood. Wood on Nuisances, Secs. 1,15, 38, 39,542, 801.</p> <p>Such nuisances disturbing individuals in the enjoyment of their property, injurious to their rights and interfering with their peace and comfort, may be abated at the suit of the parties affected, although the nuisances prohibited by law and the ordinance are within the police power to suppress. Wood on Nuisances, Secs. 541, 542, 618,507; 36 An. 162.</p> <p>The writ of injunction in such eases, prohibiting the evils complained of, is authorized to be enforced by the penalty for disobedience imposed on the defendant, whenever and as often as the nuisances are produced arising from the unauthorized uses he chooses to make of his licenses. Wood on Nuisances, Secs. 619, 621, 645, 647; Code of Practice, Arts. 296, 308; Schoenhausen Applying for Certiorari, 47 An. Ante, 696.</p>

<p>The husband is presumed to be the father of the child born of the wife during the marriage, and as separation from bed and board does not dissolve the marriage, it follows that the child, to which the mother not divorced gives birth after the separation, is within this presumption of paternity the law fixes on the husband; as one of the leading commentators puts it: “ Comme la separation du corps ne dissout pas Ie marriage, il suit de la, que la presumption de paternitie etablie par Particle 312 subsiste encore.” Civil Code, Arts. 184-155, 159-136; Code Napoleon, Arts. 312, 306, 310; i Duranton, p. 3C6, par. 632: Le jugmentdeseparation.de corps laisse qui subsister le marriage ne peut faire cessa Ie presumption de paternitie de l’enfant concu depuis la separation. 2 Toullier, p. 124, par. 811; 2 Boilleux, commenting on Art. 313, C. N., p. 72.</p> <p>This presumption of the paternity of the child of the wife, born since the separation from bed and board, is not conclusive; the husband is permitted to dispute it by suit; but if the paternity of the child is not thus disavowed by the husband or his heir, the presumption that the husband is the father becomes absolute, and the legitimacy of the child placed beyond question. Civil Code, Arts. 188,191; Napoleon Code, Art. 313, as amended by the law of 1850, Art. 318; lDalloz, Code Annote, Art. 313; 2 Boilleux, 79, 73; 3 Laurent, p. 480, par. 376 ; 2 Marcade, commenting on Art. 318, as to form action on desaveu; 2 Boilleux, 87, 88; 1 Rob. 585; 44 An. 441.</p> <p>The Code, in declaring the legitimacy of the child, born three hundred days after the separation from bed and board, may be contested by the husband, de.fines the extreme duration recognized by law of the period of gestation which, with certain exceptions, must elapse to permit of the dispute by the husband of the legitimacy of the child, but the period beyond the three hundred days to the birth of the child of the mother separated from bed and board, not divorced, is unimportant on the question of legitimacy; the requirement of the law on that issue is that the husband, or his heir, shall disavow the paternity of such child by suit, .and maintain the disavowal by proof. Civil Code, Arts. 188,191, and authorities cited above.</p>

<p>A PPEAL from the Eighteenth Judicial District Court for the i V Parish of Lafourche. Oaillouet, J. ■</p>

Monroe, J. In any public statute where power is given to public officers to do any public act in permissive language, as that they “ may ” do the duty, or act, or thing, the language will be regarded as peremptory whenev.r the public interests or individual rights call for its exercise; in all such eases, the language, though permissive in form, is, in fact, peremptory.

<p>Where the mortuaria in a succession show the confirmation of a natural tutrix and under-tutor to the minor children of a deceased person, an inventory signed by them, proceedings of a family meeting, homologated by the court upon a proces verbal regular in every respect, approved by the under-tutor, an order of sale, based on those proceedings, followed by a sale on the terms fixed, a final account and tableau of distribution signed by the tutrix, approved by the under-tutor, and homologated by the court, carrying the proceeds of the sale to the credit of the succession and the balance to the payment cf privileged debts of the succession and the balance to the payment of a debt declared to be due the purchaser at the sale, and an order finally made by the court, upon the application of the tutrix, after a hearing contradictorily had with the under-tutor, canceling the mortgage \ipon the property of the tutrix, on the allegation that the property of the succession had all been disposed of, had proved insufficient to pay its debts and left nothing for the minors, it can scarcely be asserted that the administration of the succession was a “fictitious ” one, or claimed that the purchaser at the public succession sale could be proceeded against by a petitory action, ignoring the succession proceedings To reach the purchaser and the property sold, actions of nullity were essentially necessary.</p> <p>Though the tutrix may not have known the “name” of the particular attorney who conducted the succession proceedings in her name, and may not have employed that particular attorney, or authorized any one to employ him, it does not follow that the proceedings taken through the attorney were null and void; they must stand, if, with her consent, “ am,” attorney had been employed and she had acted upon proceedings taken out in her name by him.</p> <p>If the property of a succession is sent to sale to pay debts by reason of the administration having no funds wherewith to pay the same, the sale will stand if the debts actually due were such as to call for the sale, although the application for the sale may have set forth a larger amount as being due than really existed.</p> <p>If a purchaser of succession property, at a succession sale, pays a portion of the price to meet privileged claims, receives a deed in which it is declared that he retains the balance in his own hands, secured by special mortgage and vendor’s privilege in favor of the succession, conditioned to meet all claims which might be adjudged prior to his own, and si bsequently an account is filed and regularly homologated, in which he is recognized as acreditor for the retained balance, the adjudication to him can not be treated as an absolute nullity on. a claim that he was not a creditor of the succession, or a creditor to the amount he asserted himself to be.</p> <p>The fact of the homologation of a final account without the production of vouchers in support of the claims therein set forth loses in an “action of nullity” the force which it would have on an “ appeal.”</p>

<p>APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.</p> <p>On Motion to Dismiss Appeal.</p>

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

<p>The account filed is not final.</p> <p>The account of the proceeds of the crop of 1890 was apparently correct. If not correct, and other amounts, it should be hereafter ascertained, are due, it may be charged on the final account.</p> <p>Without an order of court the executor, although an order had been issued to sell the property to pay debts,rduring the year 1891 cuitivated the place, although held under a lease (without attempting to dispose of the lease or obtaining order of court to continue it).</p> <p>He was properly charged with the rental value of the place, as fixed in the contract of lease. The admitted value of the use of the agricultural implements was properly charged to the executor. The price at which they sold by public auction must be added to his indebtedness, and not the inventoried value.</p> <p>The judgment properly charged for the use of the mules and the price; from this is deducted the small item for forage fed to the mules. The executor who fails to prove why he did not collect a twelve months’ bond is responsible for the amount of the bond. An executor who does not compel an adjudicatee to comply with his bid (without good reason) is properly charged with the amount of the bid.</p> <p>The executor can not question the correctness of his own approval of a claim against a succession, unless there was manifest error.</p> <p>Payments made by an executor without an order of court are subject to the closest scrutiny and should not be allowed unless manifestly correct.</p>

<p>Tlie plaintiffs, executors, seek to collect a judgment obtained by the testator when be was the head and master of the community.</p> <p>After the death of the wife and the dissolution of the community an inventory was made and ho became the administrator of her succession.</p> <p>Subsequently he sold his interest in the judgment.</p> <p>The two successions were solvent and the heirs of age.</p> <p>There is no question of legitime.</p> <p>The executors seek to enforce a judgment in its entirety, although the head and master of the community, after the dissolution of the community, transferred his interest.</p> <p>The executors attack the transfer.</p> <p>Under the circumstances of the case it was not the duty of the executors to sue to change the character of the transfer; from a transfer of the judgment, to the payment of the judgment by the judgment debtor.</p> <p>If there are rights as to that interest it must be asserted by the heirs.</p> <p>With reference to the remaining interest undisposed of by the husband and which by acceptance of the community by the heirs in their property—</p> <p>It was m possession of the executors, and it was their duty to collect the remaining interest.</p> <p>It would serve no useful purpose to stop the execution of the judgment and order that it be sold by Imitation to effect a partition.</p>

<p>The plaintiff sued to recover rent claimed by him.</p> <p>The remedy to eject lessees is summary.</p> <p>A rule of court designating certain days to try civil jury cases does not necessarily exclude all possibility of hearing a summary case, particularly if it does no* interfere with the trial of the civil jury eases, and the defendant’s cause is not thereby prejudiced by being compelled to go into trial unprepared.</p> <p>The delay to be expressed in the citation to vacate leased premises (or the notice) consists of three days, to be counted from the date the citation or notice has been served.</p> <p>The lessee is bound to pay the rent at the terms agreed on.</p> <p>The want or failure of the plaintiff to put in mora is a ground of exception.</p> <p>The taxes (part consideration of the lease) not having been paid, and the time for the payment, without penalty having passed, the lessee, from that fact, was in default.</p>

<p>The “calls ” for contribution are legal.</p> <p>The act 246 of 1858, authorizing the directors of the Citizens Bank to transfer or set apart ajstated number of shares of stock as cash shares, did not have the effect pro tanto of discharging the mortgage indebtedness.</p> <p>That act declares that the contribution due on the cash shares, comprising the capital stock, shall remain as heretofore, payable by each of the mortgage stockholders respectively.</p> <p>The shareholder had not paid anything upon the shares; heveas on the contrary in- . debted for them. The statute authorized the reduction of the number of shares of the mortgage shareholders, by converting certain shares to cash shares.</p> <p>The indebtedness of the mortgage shareholders remained the same, and he was required to pay the same “ calls ” as he would have had to pay if his shares had not been thus converted into cash shares.</p> <p>The rule would not apply if the shareholder had paid his stock in full or in part.</p>

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

<p>When a space which is indicuted on the plot of a town site as a public street is used, occupied and enjoyed as such for a series of years for the uses and purposes of ti affic and commerce, and private rights have been acquired with reference thereto, the dedication to public use has thereby become so effectual as to preclude the owner of the soil from retaking the property froe from the servitude of way.</p> <p>When a dedication to public use of certain spaces as streets is made by a public act duly recorded, the map or plot thereto annexed and made a part thereof becomes part of the authentic evidence of the dedication, and the spaces, measurements and distances may be examined and used in connection with the act in determining the completeness and sufficiency of the dedication.</p> <p>The acts and conduct of a person who is a party to an authentic act of dedication are bound by the contemporaneous interpretation such acts and conduct have placed upon it, and on the faith of which the public has acted during a series of years, and with reference to which property rights have been acquired.</p>

<p>The driver oí a tally-ho, laden with passengers to whom the proprietors had hired the vehicle to go to a specified destination and return, in attempting to cross a railroad track comes in collision with a rapidly approaching train, whereby the vehicle is demolished and one o£ the passengers killed, is guilty oí gross carelessness which subjects the proprietors to damages in favor of the deceased passenger’s parents.</p> <p>Unless the passenger undertakes the management and direction of the driver of such public conveyance in some manner, outside of indicating the route he is to travel, and the destination to which he is to take him,he incurs no responsibility to the proprietor for the happening of an accident through the driver’s acts; and the passenger’s failure to advise the driver does not subject him to the charge of contributory negligence.</p>

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

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

<p>Notwithstanding all the names which are drawn from the jury wheel were those of white persons, if proof be not administered that all the names therein were of white people, the theory of the defendant, a colored person, that discrimination against his race was resorted to on account of race, color, or previous condition of servitude, can not be of avail. And proof being made of the fact that persons of African descent were not excluded from the general veuire, but, on the contrary, that some colored people were included therein, the charge that the accused has been deprived of due protection of the law is unfounded.</p> <p>Act 170 of 18S4, being an amendment of Sec. 2 of Act 98 of 1880, is not a local or spe cial law, in the sense of Art. 48 of the Constitution — the constitutionality of the original act having been affirmed by this court.</p> <p>Other bills of exception taken to rulings of the trial judge already affirmed and approved need not be again analyzed.</p> <p>That a motion to transfer a cause to the Circuit Court of the United States has been made and overruled does not divest the court of first instance of jurisdiction ; nor can a petition to same effect, subsequently filed in the Circuit Court of the United States, have fhat effect.</p>

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

<p>It is not a good ground for dismissing an appeal, that the transcript has been filed before the expiration of the delay for answering the appeal. The appellee is only entitled to the delay in order to answer. •</p> <p>A bond that is good for a suspensive appeal is sufficient for a devolutive appeal.</p> <p>It is the duty of the appellant to furnish a complete transcript. If a part of the record is not in the transcript, and such part is essential to decide the case, and the applicant makes no effort by certiorari to complete the transcript, after his attention has been called to the omission by a motion to dismiss, the appeal will be dismissed,</p>

<p>The party in possession is the only one liable for rents, fruits and revenues.</p> <p>The true owner of property can avail himself of the judgment against the warrantor.</p>

<p>APPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.</p> <p>The creditor of the husband can not question the form or validity of a donation to the wife. 2 La. 40; 3 An. 610; 22 An. 487; 36 An. 219, 748.</p> <p>A donation of immovable property may be made and stand good against creditors, when the father deeded the property to the husband and gave the price to the daughter. 2 La. 40; 17 An. 230; 22 An. 487; 26 An. 594; 32 An. 432.</p> <p>Parol evidence admissible to show that money advanced to the husband was really intended as a donation to the wife. 22 An. 97; 27 An. 465; 10 R. 198; 13 An. 197; 10 La. 254; C.C. 1539, 1541, 1550; 34 An. 511; 36 An. 551, 565; 30 An. 966; 37 An. 209.</p>

King, J. Where a railroad company permits another company to exercise the franchise by running cars drawn by steam over its road, the company owning the road and to which the law has entrusted the franchise is liable for injury done. Macon, etc., Ry. vs. Mayes, 49 Ga. 355; 5 Wallace, 105.

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

<p>APPEAL from the First Judicial District Oourt for the Parish of Caddo. Taylor, J.</p> <p>The opinion of your Honors holds that a sale of property attached made pendente lite may be made for two-thirds of its appraised value, under provisions of Art. 680, O. P. We respectfully submit this is error.</p> <p>Property which has been attached, and which is perishable in its nature, may be sold under Art. 261, O. P., but such sale is not an execution sale and is not governed by Art. 680 O. P., which relates to sales made under execntion. This court so held in 26 An. 271.</p>

<p>The attorney of the heir seeking to he appointed administrator is not to be paid by the succession, when the deceased has left a will appointing executors to whom, notwithstanding the opposition of the heir, letters issue. 10 Rob. 541; 27 An. 412; 36 An. 304.</p>

Ellis, J. Adolphe Auguste Rabasse, commonly known as Dr. Eugene Rabasse, a native of France, died February 26, 1895, in the city of New Orleans.

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

<p>APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Benton, J., ad hoc.</p>

<p>A PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.</p>

<p>The limitation of ten mills of parish or municipal taxation permits the levy up to that limit by the parish, and the levy up to the same limit by the municipal corporation. Constitution, Art. 209; 36 An. 328; 31 An. 362; 38 An. 230.</p>

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

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

<p>APPEAL from the Fifth Judicial Court for the Parish of Ouachita. Munholland, J. ad hoc.</p>

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

<p>\ PPBAL from the Oivil District Ooart for the Parish of Orleans, ii Monroe, J.</p>

y^ PPEAL from the Oivil District Court for the Parish of Orleans. Bightor J. The authority to sell real estate and immovables by destination attached thereto can only be established by written evidence. Arts. 2275, 2276 and 2461, Civil Code. Machinery set in bricks and mortar, and constituting a cotton-seed oil mill, at the date of the sale of the real estate to which it is attached, is immovable by destination and part of the realty.

<p>The uncollected premiums of an insurance company are not exempt from taxation as income.</p> <p>The shares of the capital stools: of a manufacturing corporation, when held and owned by an insurance company, are taxable as being part o£ its assets, notwithstanding the capital, machinery and other property of said manufacturing corporation are exempt from taxation by constitutional provision.</p>

<p>y^PPLICATION for Writ of Certiorari.</p> <p>On Application for a Writ of Certiorari.</p>

<p>In a capital case where the jury separate, and some are out oí sight and out of hearing of the remainder, unattended by an officer, a verdict of guilty will be set aside and new trial granted.</p>

<p>^PPLICATION for a Writ of Mandamus. .</p> <p>Petition por a Writ op Mandamus.</p>

<p>It is not permissible for a trial judge to require the testimony intended to establish the basis for the introduction of dying declarations in evidence to be reduced to writing, in case there is no disagreement between him and defendant’s counsel as to what that testimony is.</p> <p>To render dying declarations admissible in evidence it is only necessary to show, preliminarily, that they were made under a sense of impending dissolution, which soon thereafter occurred.</p> <p>A declaration of a party accused, made previous to the homicidal assault, does not come under the operation of the rule that requires a basis to be laid for its introduction. It Is alone applicable to proof offered by an accused of communicated threats made by the deceased. Such previous declarations of the party accused are admissible for the purpose of showing animus, or malicious intent.</p> <p>The fact of a confession having been made under excitement, and while in a state of great nervousness, does not deprive it of the character of a voluntary statement. Nor is it deprived of that ch iracter solely for the reason that it was made to the jailor while he was in close confinement.</p> <p>It is not competent for an accused to show, upon cross-examination of the jailor as a State witness, that he had, at different times, several days subsequent to the making of the confession, made contrary statements. They are self-serving declarations, and do not fall within the category of res gestee.</p> <p>Notwithstanding all witnesses pro and con are placed under rule and removed from the court room during the introduction of the testimony, it may be permissible for the judge to allow a person who was present and heard the testimony of others, to testify in case he is satisfied that the evidence of such person was made known, on the spur of the moment, to the party offering him, provided no fraud is intended, and no injury is suffered by the adverse party.</p>

<p>In the exercise of the supervisory jurisdiction of the Supreme Court, when the proceedings in the lower court have been regular, the judgment will not be disturbed or reviewed because of the want of or the insufficiency of the evidence to sustain it.</p>

<p>A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Richardson, J.</p> <p>On the Motion to Dismiss.</p>

<p>Secondary Evidence. — The forged and altered instrument of writing was lost; the fact of loss was established to the satisfaction of the trial judge. The evidence noted in the bill of exception shows that the ruling was correct.</p> <p>Duplicity. — The charge of duplicity in the indictment must be timely urged and the ground correctly stated.</p> <p>Bill of Exceptions Signed. — A bill signed will receive the consideration of the court, although the trial judge adds as part of his note in the bill that it was not presented indue time and contradictorily with plaintiff’s counsel in compliance with the court’s rule.</p> <p>Insufficiency of the Indictment. — The forgery charged, and altering, were not alleged with the required certainty. The extent and character of the altering were not shown; whether the figures (it is alleged) were forged were of a material character, or merely marginal; whether the writing expressed was forged or only the figures.</p>

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

Ferguson, J. Defendant was indicted and tried on the charge of having killed and murdered one Ella Speed, and having been convicted of manslaughter and sentenced to the penitentiary, he has appealed. The questions submitted to the court are set out in the bills of exception.

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

<p>In suits by lessors for possession of tbe leased premises the law authorizes the citation of defendant to answer after the delay of three days. R. 8., Sees. 2155, 2156; 37 An. 843; 44 An. 256.</p> <p>Wh en the monthly or yearly rent exceeds one hundred, dollars the District Court has jurisdiction of such suits. Rev. Stat., Secs. 2155, 2156.</p> <p>Dam ages for alleged wrongful conduct of the lessor, in seeking to obtain possession of the leased premises, can not be claimed by reconvention in a suit by the lessor for possession brought under the above cited sections of the Revised Statutes.</p>

<p>The liability arising from negligence constituting the offence or quasi offence is to the injured party, but creates no liability one to the other of those to whom the negligence is imputed, hence if one of the wrongdoers pays the resulting damage, he thereby acquires no right of action against the other, least of all if he has settled with the injured party and been discharged from all liability. Civil Code, Arts. 2315, 2316.</p> <p>Such payment simply discharges the debt of the party who pays, fixed on him by the judgment, hence gives rise to no contribution from the other alleged wrongdoer, as contribution is on the theory that payment by one has discharged an. other from whom the contribution is due.</p> <p>The builder erecting a staging for his workmen will not be liable to a subcontractor— i. e., to do the painting of a building, for the damages he is made to pay arising from the fall of the staging which the workmen of the subcontractor choose to use, there being no contract of the builder to furnish them such staging.</p> <p>Nor will the builder be responsible for such damages to the subcontractor under the articles of the Code that fix on the master or employer, liability for the acts of his servant. Civil Code, Arts. 2317, 2320.</p>

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

<p>When an apparently valid and regular adjudication to the State has been suffered to remain on the public records for several years, unchallenged by any party in interest, it will constitute a sufficient basis for a proceeding under the act of 1880, enacted in pursuance of the provisiens of the delinquent debt ordinance, notwithstanding said tax deed is shown by proof at the trial not to have been actually signed by the tax collector.</p> <p>A purchaser at said subsequent tax sale will be protected by the showing on the • conveyance records exhibiting a title to the State; and such record is sufficient to authorize the proceedings and sale by the tax collector.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. Held: it was not alone the material of which the house was built that was insured, but it was that material existing in the shape of a house, habitable, susceptible of being used and occupied as a house.” Hamburg-Bremen Fire Ins.

<p>It is a general rule that a party can not impeach the testimony of his own witness.</p> <p>When a party is bona fide surprised at the unexpected testimony of his witness, he may be permitted to interrogate as to previous declarations made by him inconsistent with his testimony, the object being to prove the witness’ recollection, and to lead him, if mistaken, to review what he has said.</p> <p>If the sole effect of such interrogation is to discredit the witness, apart from statutory regulations, such evidence is not admissible. But if the purpose be to show that the witness is in error, it is admissible.</p> <p>Though the answer of the witness may involve him in contradictions, calculated to impair his credibility, that is not a sufficient reason for excluding the inquiry, as proof by other witnesses that his statements are incorrect would have the same effect.</p> <p>When a witness for the State, on the trial states an important and material fact on cross-examination which he failed to state as a witness on a former trial, this omission of the fact from his former statement can not be used as a means of impeaching his testimony directly by the State.</p> <p>The State can not impeach its own witness by asking irrelevant questions, the object of which is to discredit his testimony.</p> <p>It is too late on a motion for a new trial to urge objection to the judge’s charge, when no instructions on that point were asked and no exception made.</p>

<p>Congress appropriated five thousand dollars to the heirs and legal representatives of one of the victims of the Ford Theatre disaster.</p> <p>It does not go to the administrator, as assets of his succession, and is not imputable to the payment of his debts.</p> <p>The government having thoughtproper to make a grant of an amount to the heirs of one of the victims, they receive it as a gift, a bounty.</p>

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

<p>An information which charges the defendant with having robbed a' other of a designated sum of lawful money, the enrreucy of the United States, charges a statutory offence •within the intendment of the Revised Statutes, Sec. 810, and the consequence is, that it, being in the "words of the statute, or those certain and equivalent having been employed, is valid and sufficient.</p>

<p>^PPLICATION for a Writ of Prohibition.</p> <p>Application por a Writ op Prohibition.</p>

<p>A PPEAL from the Third Justice’s Court for the Parish of St. Tammany. Jack Strain, J.</p>

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

<p>APPLICATION for Writs of Certiorari, Prohibition and Habeas Corpus.</p> <p>Application por Writs op Certiorari and Prohibition.</p>

<p>y^PPLICATION for Writs of Mandamus and Prohibition.</p> <p>On Application for Writs of Mandamus and Prohibition.</p>

y^PPLICATION for a Writ of Prohibition. On July 18, 1895, a petition and notice of demand were served on relator, in the case of George Montgomery vs. John T. Shaw, No. 46,475, Division “A,” of the docket of the Civil District Court for the parish of Orleans, being a proceeding by executory process.

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

<p>There is no law in. this State requiring the service of a copy upon an accused of a proces verbal of the action of the jury commissioners in drawing the jury. Rev. Stat., Sec. 992.</p> <p>The endorsement on an indictment “ a thru bill,” evidently intended for “ a true bill,” will be. considered as so intended by the grand jury and to have resulted either from a slip of the pen or mistake by the foreman, whose mother tongue' was probably not English, as to the spelling of the word, or as to the word itself.</p> <p>The objection raised by the accused to the finding of the grand jury went only to form, and not to the chm'ge presented against him. Under Sec. 106á, Rev Stat., an amendment was properly ordered by the court.</p>

Rightor, J. Plaintiff, together with Jos. Menge and Wm. A. Reese, were the-(Scaly stockholders of the Edna Rice Mill Company, a corporation organized under the laws of this State; Jos.

<p>A PPEAL from the Nineteenth Judicial District Oourt for the Parish ■*> of Iberia. Voorhies, J.</p>

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

Bightor, J. Russmann & Galland, creditors of the Lafargue Bros. Co., Limited, obtained a judgment against that corporation in the Circuit Court of the United States, upon which they caused execution to issue, and under this execution seizures by garnishment were made.

Ellis, J. Various attachments were taken against the defendant, Theodore Lehman, under which his stock of merchandise, liquor, etc., were seized by the civil sheriff. The attachments of Erman & Oahn and A. Erman were prosecuted to judgment and the privilege resulting from their attachment was recognized. The stock was sold, and out of the proceeds the first attaching creditor was paid the amount of his judgment.

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

<p>APPEAL from the Sixth Recorder’s Court for the Parish of Orleans. Laresche, Acting J.</p>

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

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

<p>It is negligence to go from one ear to another while the train is in motion. If a passenger on a train in motion attempts to go from one car to another, and Is thrown from the platform by the sudden jerk of the train, the defendant corporation is not responsible. In such a case the defective coupling of the train will not justify a verdict in favor of plaintiff, as the passing from one car to another is the proximate cause of the injury.</p>

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

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