Volume 48 — Louisiana Annual Reports

A PPEAL from the Oivi] Monroe, J. District Court for the Parish of Orleans. Plaintiff demands a judgment for fifty thousand dollars damages, for an injury received by the wheels of one of the cars belonging to and operated by the defendants running over and crushing his foot, thereby necessitating the amputation of his leg. The plaintiff had been for many years a plumber and gas fitter in the city of New Orleans.

<p>Prematurity — A breach of contract being alleged, the suit -was not premature.</p> <p>No cause of actions — It there ivas a contract as alleged plaintiff had no cause of action to compel the defendant to sign a deed of lease and accompanying notes.</p> <p>The remedy ivas on the contract for rental or for damages and not for specific-performance to coerce the obligor to sign notes and act.</p>

<p>A party wlio permits another to buy property in his name and for his benefit at a tax sale, and takes a counter letter, and afterward for a consideration, instructs the party, in whose name the title is vested, to retrocede the property to the tax debtor, and is present when the deed is made, will be estopped from asserting claim to the property.</p> <p>A judgment creditor of the heir of the deceased can not, under such a state of facts, subject the property to the payment of his debt, on the ground that no title ever passed from the purchaser at tax sale, as evidenced by the counter letter.</p>

Ellis, J. There is error to the prejudice of plaintiff bank in the opinion heretofore herein rendered. Because said opinion wrongfully holds that the discharge of the insolvent debtors, H. Kern & Sons, in their oessio bonorum, discharged defendant endorser, J. G. Grant, from his liability on their notes, whereas said discharge was and is merely personal to their debtors. Const.

<p>While it is held that it is the duty of those in charge of a car, at crossings particularly, to he careful and watchful, those who use street crossings must exercise a reasonable degree of care and watchfulness.</p> <p>The motorman had a right to suppose that plaintiff’s son would not, after warning, attempt to cross immediately in front of the car at a distance too near to prevent the accident.</p> <p>While no one should be held to a degree of care and caution beyond his years, a boy of eleven years and four months of age can not be relieved from the exercise of all care and prudence. ’ I</p>

<p>II errors be committed in setting cases for trial, or irregularities arise in fixing the cases to be heard before the District Court, the question not being one over which the court has no jurisdiction, the writ of prohibition is not the proper remedy»</p> <p>The case being appealable, the relators have an adequate remedy by appeal.</p>

Potts, J. In Reynolds & Henry Construction Company vs. the Mayor and Council of the city of Monroe, reported in 47 An. 1289, this court affirmed the judgment of the lower court, which had decreed that relators (the Reynolds & Henry Construction Company) were entitled to a tax upon all the taxable property situated within the corporate limits of the city of Monroe, to be levied on the assessment roll of 1889, with the following amendment: * * * u £fje judgment appealed from…

<p>When the Citizens Bank subjects property to its ownership,which was mortgaged to secure stock subscriptions, the property is not exempt from taxation as part of the capital stock of the bank.</p>

<p>until there has been a sale, or something that is equivalent o£ real property of a community, the interest of the heirs of the deceased remains, and the survivor is without power, by any convention of his own, to make a full title to another ■</p> <p>Probate proceedings, contradictorily taken between the heirs of the deceased wife and the surviving- husband, to ascertain the value of the heir’s net interest in the community property, and to fix the basis of the usufructuary’s bond, can not operate as a substitute for a sale of their interest therein.</p>

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

Allen, J. The defendant, as administratrix of the succession of Maximillien Landry, Jr., filed a final account of her administration; plaintiffs opposed the same; by judgment of court in August, 1898, the opposition was rejected, the account approved and homologated, the ad-ministratrix discharged and her bond canceled. The present suit in the District Court is to annul this judgment.

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

<p>On Motion to Dismiss.</p> <p>The party against whom judgment has been rendered can not appeal if he has acquiesced in the judgment.</p> <p>This does not apply to the party in whose favor an obligation is admitted in a suit</p> <p>The defendant made admissions without plaintiff’s consent.</p> <p>If there was a confession of judgment it was m*de without plaintiff’s consent and they, therefore, have the right to appeal from the judgment.</p> <p>On the Merits.</p> <p>Even when the contract for compensation for the professional services of the attorney is not enforced, he will be entitled to recover from his client sums expended for his benefit by the attorney.</p>

<p>When the defendant’s property has been sold under a judgment reversed afterward on a devolutive appeal, the defendant entitled to restitution of his property may seek relief by an action for damages in which the judgment will be based on the value of the property, the costs of suit, counsel fees and other expenses incident to the sale, deducting the amount of the debt of the plaintiff satisfied by the execution sale. 15 La. 46; 15 An. 97; 38 An. 474.</p> <p>The judgment pending the devolutive appeal decreeing that plaintiff in such execution must credit his debt with the amount derived from such sheriff’s sale will not be res judicata as to the value of the property, against the defendant in execution in the suit brought by him for damages after the reversal of the judgment under which his property has been sold. Civil Code, Art. 2286; 3 M. 483; 3 N. S. 409; 7N. S.28,</p> <p>As held in previous decisions, plaintiff seeking damages for seizure of his property under conservatory writs illegally issued will be restricted as to counsel fees, to the fee for dissolving the writ. 2 La. 620; 5 An. 714; 13 An. 40.</p> <p>The respite proceedings will not prevent suit and seizure by the privileged creditor. Civil Code, Art. 3095.</p> <p>Public policy favors the resort to the courts for the redress of grievances the liti gant conceives to exist, and hence the law will not amerce him in damages unless his suit is m'alicious/as it is not readily imputed when one acts under the advice of counsel. Const., Art. 11; 13 La. 440; 28 An. 592; 46 An. 1342,</p>

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

<p>A PPEAL from the Criminal District Court for the Parish of d- Orleans. Moise, J.</p>

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

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

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

<p>The right in matter of jurisdiction of one charged -with a crime is not as restricted on application for habeas corpus as it is on appeal.</p> <p>Habeas corpus may issue although the fine, exceeding three hundred dollars, has not heen actually imposed; it being a possibility under the law, and that possibility being the test of jurisdiction as relates to that writ.</p> <p>This court is competent to issue the writ of habeas corpus in any case that might be brought up on appeal. The fine imposed or the imprisonment fixes the right of appeal velnon. All persons before conviction shall be bailable save those charged with crimes especialiy excepted.</p>

<p>Tile question arising in regard to the allleged violation of a prior bond in another criminal ease can more properly be determined in a separate suit, after the District Judge Trill have passed upon the issue.</p>

<p>The petition of taxpayers charging substantially that the proposed tax in aid of a railroad -was defeated at the election held to authorize the tax; that votes cast against the tax were not counted; that the promulgated result was not in accordance with the facts, but is based upon the illegal rejection by the returning officer of such votes against the tax, and praying that the promulgation of such result be adjudged void, and the returns of the returning officer be set aside with the prayer for general relief, will be deemed a petition of taxpayers, authorized by law, contesting such elections. Constitution, Art. 242; Act No. 106 of 1892.</p> <p>The taxpayers, plaintiffs in such suit, contesting the election, may join the demands that the election be set aside and that the ordinance of the police jury be annulled — levying the tax — for if the tax is defeated, there is no warrant for the tax. Ibid.</p> <p>Our jurisprudence affirms the jurisdiction of the courts in a class of cases without reference to the money demand of the litigant, and this case falls within that class. 19 La. 567; 45 An. 637, 681; 46 An. 278; Constitution, Art. 11.</p> <p>In the suit of the taxpayers contesting the election to authorize a tax under Art. 242 of the Constitution, the amount in dispute is the tax on the property of the parish; an amount undoubtedly sufficient to give jurisdiction to the District Court, as well as this court on appeal, and the suit substantially involving the legality of the tax, this court on that ground besides, has jurisdiction of the appeal. 39 An. 107; 45 An, 682; 43 An. 95; 45 An. 681; Constitution, Arts. 11 and 81; 36 An. 328, 812; 39 An. 946; 37 An. 507.</p> <p>Taxpayers, non-residents and residents in the parish,may join in such suit. Constitution, Art. 242; Act No. 35 of 1886, Sec. 5; 39 An. 107; Cooley on Taxation, - 765; 101 IT. S. 601.</p> <p>In a petition to contest an election to authorize a tax the prayer that the returns be set aside, the promulgated result be decreed a nullity, that the returning officer be directed to make a correct compilation of votes, and that the ordinance levying the tax based on such return be decreed a nullity, all tend to the same relief and are not cumulative of distinct demands.</p> <p>Such suit is required to be directed -against the police jury, and the allegation that the returning officer rejected or changed returns of commissioners, in violation of law, furnishesno ground for the exception on non-joinder, because the returning officer is not made a defendant. Act No. 106'of 1892.</p>

<p>The ruling of the District Judge declining to grant a continuance when associate counsel is present, on account of the absence of leading counsel engaged in professional business elsewhere, will not be disturbed.</p>

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

<p>APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.</p> <p>cite: 18 Gratt (Va.), 767; 69 Fed. R. 458; 139 Pa. Stat. 609; 106 Ill. 11; 143 U. S. 449; 49 Fed. R. 861;. 155 U. S. 648.</p> <p>125 Mass. 374 ; 7 Bis sell C. O. 315.</p>

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

<p>The powers oí the District Attorney to enter a nolle prosequi are subject to certain, limitations.</p> <p>1. After the jury has been empaneled and the charge read,-he can not discontinue if the defendant insists upon a verdict.</p> <p>2. After verdict and refusal to grant a motion for a new trial, he is without authority to dismiss the prosecution without the authority of the court.</p> <p>After verdict and conviction a pardon may be granted.</p>

A PPEAL from the Civil District Court for the Parish, of Orleans. Theard, J. I. There are some questions of law, the final settlement of which is vastly more important to society than how they are settled; and among these are rules of property long recognized and acted upon, and under which rights have vested. Misera est servitus ubi jus est vagum aut incertum.

Monroe, J. Where there is no privity there can be no joinder of parties. 14 An. .177; 15 An. 503; 29 An. 105; 30 An. 606. Streets are divided into public and private. What is a private street or road? C. 0., Art. 706. What is a public street or road? 0. 0., Art. 705. No form is necessary to dedicate property to the public use.

<p>Sections 78i and 785 of the .Revised Statutes declares that whoever shall commit the crime of wilful murder on conviction thereof shall suffer death. There shall be no crime known under the name of murder in the second degree, but on trial for murder the jury may find the person guilty of manslaughter. In the consideration of a homicide the Grand Jury is not forced to enter into the particulars of the killing and primarily charge manslaughter, but is authorized to charge murder under Sec. 1038 of the Revised Statutes, leaving the result of the charge to be determined by the facts elicited by the testimony.</p> <p>The request of accused to have the court charge the jury as 'to the logical character of the indictment found against him was properly overruled as a matter not to be submitted to it.</p> <p>If a party with intent to kill or murder a particular person illegally and feloniously shoots at him (his will being directed exclusively to that end), but he fails to-accomplish his purpose and unintentionally kills another person he has no reason to complain if under an indictment for murder he is found guilty of manslaughter, because he may not have had reason to expect that his shot, would strike a third person.</p> <p>The Supreme Court can not be asked to reverse the verdict of a jury, because the court below failed to charge the jury on the law of self-defence when it has nothing before it to show that under the evidence in the case such a charge would have been relevant and the court was not asked to charge on that subject.</p> <p>Oounsei who fails to ask the court to charge the jury on the subject of self-defence, because, in an unofficial conversation with the judge the latter had stated to him that the plea of self-defence admitted the killing, can not, after the trial, seek a reversal on the ground that he had been forced by this statement to waive his right of going before the jury on that issue. He should not have acquiesced in the matter, but have insisted upon his legal right to a special charge and availed himself by exception and bill of any error made by the court in modifying or qualifying his requested charge.</p> <p>The Supreme Court is not authorized, in criminal cases, to pass upon the issues involved on a. mere statement as to occurrences which took place on the trial when the statement was made after the occurrences took place and without exceptions having been taken and bills reserved, even though the District Judge-may sign the same.</p>

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

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

<p>The ruling of the trial judge in' allowing certain questions to be answered which are objected to as leading will not be disturbed, unless it is shown that under the circumstances under which they were asked they were leading.</p> <p>A witness, who is asked a single question, niRybe, on cross-examination, asked all such questions which are legitimately calculated to test his memory, accuracy and veracity, with reference to the single fact sworn to.</p> <p>The recommendation of the jury who tried the case for a new trial is no legal reason why it should be granted.</p>

PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J. A paper containing particular statements relating to the subject matter of insurance attached to the policy at the time of its execution is no part of the policy. May on Insurance, p. 182, 2d edition. A warranty will in no case be extended by construction, nor will it be made to include anything not clearly within its terms.

<p>PPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Caillouet, J.</p>

<p>It appearing from the evidence dehors two or more conflicting patenta, which were issued by the Register of the State Land Office, for the same land, to different parties, at different dates, that those last issued were predicated upon prior locations made under internal improvement certificates in due form of law, and those first issued were not founded upon sufficient proofs, the last in date of issuance will reflect the paramount title.</p>

<p>It is not required for the validity of the mystic will that it be closed with wax; mucilage or other adhesive substances may be used adequate to the firm closing of the envelope, and the law does not exact that any seal be impressed on the envelope. Civil Code, Article 158á; 15 La. Rep., p. 88; 8 Troplong Donations et Testaments, p. 156; 2 Vazeille, 477.</p>

<p>APPEAL from the Tenth Judicial Court for the Parish of Natchi-toches. Coco, J.</p>

<p>In the dation enpaiement as in the contract of sale, when the vendor acknowledges whether expressly or by implication the purchaser’s title and holds under and for the purchaser, the delivery by the vendor to the purchaser is to be deemed accomplished. Civil Code, Arts. 2439, 2455, 2566.</p>

<p>When there are two statements of facts by the judge of the lower court filed in this court, and there is a dispute between the parties to the appeal in reference to the statement on which the decision is to be based, the case, under the circumstances shown by the record, will be remanded to enable the appellant to obtain a statement in the mode pointed out by the Code. Code of Practice, Arts. 602, 603.</p>

<p>A member of the grand jury can not be permitted to impeach its finding, by testifying he, as a -witness before that body to support the indictment, was not. sworn. 1 Bishop Sec. 874,873; 1 Wharton’s Criminal Law Sec. 509; 38 An. 680.</p>

Brame, J. Ohas. A. Decker was elected treasurer of the Board of Trustees of the Insane Asylum, on September 6, 1892, for the period of one year from that date; he was chosen as his own successor on November 6, 1898, and did not execute any new bond.

<p>The proviso to Art. 209 of the Constitution gives no authority to municipal corporations to levy a tax for school purposes.</p> <p>The General Assembly, under the Art. 46 of the Constitution, is prohibited from conferring upon any one corporation the privilege to assess a local tax for school purposes.</p> <p>Act 110 of 1880 confers no power upon municipal corporations to amend their charters, so as to incorporate in it any right or privilege not previously granted by the Legislature.</p>

<p>APPEA.L from the Second Judicial District Court for the Parish of Iberville. Watkins, J,</p> <p>cite: ■82 An. 348, 840, 344; 36 An. 285, 399; 41 An. 227; 46 An. 518; 37 An. 722; 43 An. 1062; 46 An. 1337; 47 An. 17; O. P. 240; 22 An. 531; '24 An. 82, 586; 26 An. 258; 28 An. 258, 309; 30 An. 396.</p>

Monroe, J. Plaintiffs claim two thousand two hundred and thirty-four dollars •and fifteen cents, due for work, labor and material, for extras beyond a contract and specifications between him and the defendant. Erom a judgment against him plaintiff appeals.

<p>The objection of an accused that the property he was convicted of stealing waff imperfectly and incompletely described in the indictment should be taken by demurrer or a motion to quash the indictment before the jury is sworn. It is too late to urge such an objection, as being one apparent on the face of the indictment, on a motion in arrest of judgment. State vs. Thomas, 30 An. 600. Rev. Stat., Sec. 1064.</p>

PPEAL from the Sixteenth Judicial District Court for the Parish of Tangipahoa.

PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J. cites 4 [An. 441, 33 An. 679,. 1344.

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

<p>A PPEAL from the Eleventh Judicial District Court for the Parish ■i"* of St. Landry. Perrault, J.</p>

<p>A will provided for the payment of debts, and the residue of the property to go to legal heirs, who were made executors:. Held, that they were not legatees in the sense employed in Art. 1683, 0. 0., and were entitled to receive commission allowed by law.</p> <p>Where the deceased was in ordinary partnership, which wa* dissolved by his death, the final account of the executor ought to show the condition of the partnership as to its solvency, and the eventual interest, if any, of the succession in it. All property, of whatever kind and description, must be placed on the inventory.</p> <p>The final account of an administrator or executor should be a full and complete exhibit of all the affairs of the deceased, leaving nothing for inference, and there should be nothing omitted which might possibly provoke further litigation, such as the leaving off the inventory and final account, a claim which may be collected after the discharge of the executors by the heirs.</p>

<p>Where an inferior court acts within thebounds of its jurisdiction, and. there are no • marked defects or irregularitie- in its proceedings, the Supreme Court, under its supervisory jurisdiction, will not annul the judgment rendered in the ease, though it may be contrary to the law and the evidence.</p>

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

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

<p>In a suit by minors for tbe recovery of property Illegally sold, an antecedent tender of tbe purchase price is not required. Tbe defendant -will be allowed to set up his claim inreeonvention.</p> <p>Where the tutor purchases property at a sale of succession property, provoked by him, in which the minors may have an eventual interest, the final account showing the insolvency of the succession will not estop the minors from bringing suit for the revendication of the property, on the ground that the succession being insolvent, they have no interest in the same. The minors being placed on the account by the tutor for the homestead benefit, will not operate as a confession on their part as to absolute insolvency of the succession.</p>

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

<p>That a jury was ordered and summoned to attend at a civil term of the District Court in one of the parishes of the State, whereat the grand jury who found the indictment against the defendant, and the petit-juty who tried and convicted him, were selected and organized, is not ground for new trial or arrest of judgment.</p>

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

<p>An application for a new trial of the accused, convicted of murder, supported by his affidavit that he has learned, since the conviction, of witnesses who will testify to his innocence; that the offence was committed by another, and that if allowed until the succeeding day he will produce the witnesses or their affidavit, affords a basis for the allowance of the brief delay asked and should have been afforded the accused. State vs. Hyland, 36 An. 87.</p>

<p>Without resorting to the revocatory action the judgment creditor may contest the judgment of another against the common debtor, ■when the contested judgment is assailed as a simulation, based on no consideration. C. 0;, Art. 1970; 2 An. 484; 11 An. 267; 2 Hennen’s Digest, p. 1031, No. 1.</p> <p>Hence the prescription of one year applicable to the revocatory action furnishes no protection to the contested judgment. Civil Code, Art. 1994.</p> <p>The judgment for an alleged loan, and the judicial mortgage, arising from registry of the judgment, will not avail against other judgment creditors, when there was no such loan at the date the judgment for the loan and of thejudi-cial mortgage, although the loan had been promised, and part furnished subsequent to such judgment; the article of the Code (3292) authorizing conventional mortgages to secure future engagements having no application to such a ease.</p>

<p>An injunction by an alleged judgment creditor against the execution o£ ’judgments of other creditors can not be sustained, if the judgment on -which the injunction is based is shown to be without basis, a simulation and void.</p> <p>In dissolving such injunction, a reasonable attorney’s fee should be allowed defendants, as damages. Code of Practice, Art. 304; Amendment R. S. S. 1755.</p>

Mary. Allen, J. Plaintiffs claim damages for the death of their son, who was, they allege, in the quiet discharge of his duties at the Caffery Central Refinery, owned and operated by the Oaffery Central Refinery and Railroad Company, Limited, a corporation organized under the laws of the State of Louisiana and domiciled in the city of New Orleans, and which corporation owned and operated the said refinery, in the parish of St. Mary, at the time of the death of their son, its…

<p>A contract made by the police jury, in -which payments for a court house are provided for in instalments, is not a bond, promissory note, warrant, for the issuance of which Act 30 of 1877 and the organic law prohibit. A police jury has the authority to appropriate the excess of the current expenses of the parish, within the ten mills limit, for the purpose of building a court house, and can set apart the excess in advance, for future collection, to pay the instalments due, as expressed in the contract.</p>

<p>A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.</p> <p>Defendants can not justify their acts by a mere belief- in the guilt of the accusedsimply belief in his guilt will not shield them. If they act on information received they take the risk of the truthfulness of the information on themselves. 33 An. 392; 36 An. 378, 103; 41 An. 303, 51; 47 An., p. 254; 15 An. 492, 166, and Amer. and Eng. Ency. of Law, Yol. 13, pp. 402, 303; Vol. 14, pp. 26, 75.</p> <p>Acting on the advice of counsel can not protect the defendant in every case, and how far this protection is a shield, see 47 An. 264; 33 An. 392; 47 An. p. 36, and the advice of a justice of the peace is no shield at all. Amer. and Eng. Ency. of Law, Yol. 14, p. 57. The advice given must be by a licensed attorney learned in the law.</p> <p>Bad character, where proved, is only in mitigation of damages and does not go to the defeat of the action entirely. 46 An. 36.</p> <p>The libel, slander and defamation charged in plaintiff’s petition, is manifestly merged in the cause of action for malicious proseeu-cution, and if it is not actionable, neither is the alleged slander or libel. 40 An. 274; 44 An. 978.</p> <p>It is not only the lawful right but the civil duty of every citizen to set on foot criminal proceedings whenever he believes honestly and on reasonable grounds that a crime has been committed. 40 An. 376; 44 An. 936; 41 An. 513; 46 An. 1464; 47 An. 34.</p> <p>The social interests require, and the law invites him, to aid the State in the discovery and punishment of crime, and it would be equally unjust andjmpolitic to make him guarantor for the sue* cess of the prosecution, or to make its failure an actionable wrong. The law holds him harmless unless his conduct be tainted with “ malicious motive and want of probable cause.’ 40 An. 375; 44 An. 938; 41 An. 513; 15-An. 422.</p>

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

The demand of plaintiffs is for judgment quieting them in the possession of one undivided half of the property in controversy, prohibiting and enjoining defendant from asserting or claiming as owner their undivided half of said property, and decreeing the inscription of said sale of the whole of said property to the defendant Stream,, of May 18, 1893, to be null and void, and that it be ordered canceled and erased in so far as the one undivided half of petitioners-is…

<p>APPEAL from the Fourteenth Judicial District Oourt for the Parish of Pointe Coupée. Talbott J.</p>

<p>One who is not a creditor of a succession has no right to demand that the administrator of the same shall file an account of his administration.</p> <p>When the community is dissolved by the death of one of the spouses, the survivors and the heirs are each seized of one undivided half interest in the community property, subject to the rights and privileges of the community creditors. This interest can be mortgaged or sold, and is therefore subject to seizure bya judgment creditor of the heir or of the surviving spouse.</p>

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

A PPEAL from the Civil District Court for the 'Parish of Orleans, i l Ring, J. Plaintiff, while at work in the employ of the Gulf Bag Company, doing business at Nos. 82, 84'and 86 South Peters street, was hurled down and buried beneath the ruins or debris of a falling wall. By the fall of the wall upon her she was bruised severely — three of her ribs were crushed in and broken; her left leg was sprained, and her right leg badly broken in two places.

<p>Ia case the City Council grants to any person a lease of a market stall or stand, in the vicinity of a market of the city, revocable at its pleasure, the tenure of the lessee, or of any sub-lessee, is necessarily precarious.</p> <p>And, in case any stall or stand shall remain unoccupied during three days consecutively, the lessee of the'market shall hold the same abandoned and subject to the demand of any other applicant.</p>

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

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

King, J. Article 2751, Oivil Code, subjects watermen and carriers to the same obligations and duties with respect to the safe keeping and preservation of the things entrusted to them as tavern keepers, whose obligations are defined in Arts. 2964 to 2971 inclusive, C. 0.; Bailey vs. Stewart, 1 Rob. 410. Art. 2754 0 . 0., is an almost exact reproduction of Art. 1784, 0.

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

<p>. A PPEAL from the Thirteenth Judicial District Court for the Parish of West Feliciana. Brame, J.</p>

<p>APPEAL from the Second Judicial District Court for the Parish of Iberville. 'Watkins, J.</p> <p>cite: 15 An., 636; 31 An. 116; 32 An. 249; 34 An. 873; 42 An. 118.</p>

<p>A petitory action admits defendant's possession.</p> <p>In a suit of trespass title is only considered incidentally, as fixing tlie character of the possession. 2 Hennen, Offences and Quasi-offences, II (e31, No. 4, p. 1057; 4 N. S. 136; 6L. 559 ; 2 An. 223; 14 An. 34; 14 An. 732.</p> <p>A right of action against one as a trespasser is in him who is in possession as owner.</p>

Potts, J. Mrs. Joan Rose, alleging herself to be. the widow of one William Rose, applied to be appointed administratrix of his succession, and that she be allowed one thousand dollars as his widow in necessitous circumstances.

<p>The tutor’s declaration, in liis affidavit, in regard to the date liis indebtedness began, does not conclude the minor.</p> <p>The evidence shows that the debt of the tutor was a debt of the community.</p> <p>Although the distinct interest of the wife attaches at the dissolution of the marriage, subject to the right to renounce, she call claim nothing until the debts are paid.</p> <p>She can not sue to cancel a mortgage due by the community.</p> <p>The property of the community is the common pledge of the creditors.</p>

<p>A PPEAL frem the Twenty-first Judicial District Court for the Parish of St. John the Baptist. Rost, J.</p>

Landry. Perrault, J. Statement. Plaintiff, as the holder and owner of a certain promissory note, dated July 10, 1890, for the sum of three thousand dollars, bearing eight per cent, per annum interest from date until paid, and made payable on demand, asks judgment against the maker (the defendant), subject to a credit of seven hundred and fifty-nine and 15-100 dollars, partial payment of interest on the note.

<p>If before the jury has been completely impaneled, one of the jurors, -svho has been accepted and sworn, is taken ill and can not serve, it is no ground of complaint that the court should have excused him, called an additional juror and sent the cuse to trial.</p> <p>The State has the right on cross-examination of defendant’s witnesses to cross-examine them in respect to their relations with the accused in order to affect the weight and credibility of their evidence, and this, though the examination may cover matters not touched on by the witnesses in their direct examination. 33 An. 538, State vs. Willingham; Ibid., page 737, State vs. Gregory.</p>

<p>The plaintiffs claim a balance, under a contract, for the erection of an ice machine complete.</p> <p>The defendants deny that plaintiffs have complied with the contract, and deny that they made timely delivery of the ice machine.</p> <p>The gravamen of defendants* complaint was against the absorber; that it was too small when the machine was operating with water at 90 deg. F, (the agreed temperature, for testing maximum capacity); that the absorbing apparatus was designed for a northern latitude.</p> <p>The plaintiffs, on the other hand, urged that the boiler capacity was insufficient; thatthe steam was not dry enough, and that in consequence there were frequent stoppages; that this accounted for the deficiency in the daily output of the ice.</p> <p>A few months after the machine had been erected the defendants sold it to a corporation in which they were the principal stockholders, and plaintiffs urge that in consequence of the sale the defendants are not entitled to' damages and to a diminution of the price, for causes arising after the sale.</p> <p>They claim more interest on the judgment, from which the plaintiffs appeal.</p> <p>With reference to the delivery of the machine the court decides: There was delay on the partof each, the defendants in erecting the boilers and furnishing steam and* water; the plaintiffs in not promptly having the machine ready to make ice at the agreed date. Both were at fault and neither was entitled to damages.</p> <p>Regarding the absorber: Held, that the defendants not having incurred the expense of a new one, audit not having been shown that it was out of proportion with the remaining parts of the machine, and it not having been proved thatthe absorber was too small to achieve the stipulated output of ice, they were hot entitled to a diminution of the price.</p> <p>The boilers: At first the boiler capacity was insufficient, and when another boiler was added the test as made did not determine that the absorbing apparatus of the ice machine was defective and too small.</p> <p>Reduction of the price and loss of profits: There was no such defect in the machine as would sustain a judgment for a reduction of the price.</p> <p>As a general rule subject to some qualification, anticipated profits, prevented by breach of contract, are not recoverable as damages.</p> <p>Damages for excess in the quantity of coal used prior to the sale of January 30, 1892, of the icc machine are not separately computed and proved. The repairs made on the ice machine, subsequent to the day of sale, were made for account of the purchasers, and not for account of the defendants.</p> <p>Interest: The unsettled state of the claim sustains the judgment of the District Court allowing interest only from judicial demand.</p>

<p>Losses of an insurance company are necessary incidents of its business; are constantly occurring and are provided againstintherisks undertaken; and premi urns are collected for .the purpose of reimbursement.</p> <p>The reimbursement of reinsurances which are involved in pending litigation between the insurance company and its correspondents and customers does not constitute a proper object of reduction in assessment.</p> <p>Nor is an over-estimate, made of unearned premiums collected and returned to its policy-holders, on account of cancellation of policies, a proper object of reduction. It is natural and to be expected that such estimates will fluctuate, and hence an assessment which is predicated upon an estimate can not be absolutely certain.</p>

<p>The plaintiff may, in every stage of the suit previous to judgment being rendered discontinue his suit on paying the costs. This rule is subject, however, to some exceptions, as, for instance, after the case has gone to trial and evidence has been adduced, the judge can exercise his discretion as to the hind of judgment he shall enter; when an intervenor prays for the dissolution of the plaintiff’s injunction and damages; when a defendant has set up in his answer a reconventional demand; when the rights of the plaintiff in suit shall have been seized on execution by a third party.</p> <p>Aside from such exceptions as the foregoing, the rule is absolute.</p>

<p>•A simple remark, made by the judge to defendant’s counsel, during tlie progress of the trial, that he seemed “to want no testimony except what suits his side of the case;” and that he propounded to him the question: “Are you afraid of your own witness?” do not amount to a comment upon the testimony, nor the intimation of an opinion in reference to the testimony.</p> <p>The trial judge is not in duty hound to give any special instruction to a jury which is not applicable to the proven facts in the case; and, in the absence of proof disclosing that two defendants are husband and wife, it would have been improper and misleading to the jury for the judge to have given them instructions with regard to the exercise of coercion and marital influence.</p> <p>Motions for new trials should contain all the grounds -which defendants rely upon to have verdiets set aside. The filing and overruling of one exhausts the right.</p> <p>On Rehearing.</p> <p>REFUSAL TO INSTRUCT JURY AS REQUESTED.</p> <p>Breaux, J.: Had the requested instruction been given the trial judge would have assumed that the defendants were husband and wife.</p> <p>The trial judge denies that there was any evidence of that fact.</p> <p>Itwasa question of fact for the jury, and the trial judge properly declined to assume that there was a marriage.</p> <p>MARITAL COERCION.</p> <p>If it be granted that the accused were husband and wife, the doctrine of presumed coercion does not apply in cases of murder.</p>

<p>APPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Caillouet, J. ad hoc.</p>

<p>Interest accrued when the suit is brought is to be computed in the amount required to give this court jurisdiction of the appeal. Constitution, Art. 81; 12 La. 156; 2 An. 793.</p> <p>The remedy against judgments obtained by fraudulent practices is the action of nullity; the grounds for such an action can not be urged as a defence in the suit to revive the judgment. Code of Practice, Arts. 604, 607 et seq.; 28 An. 173; 30 An. 130; 33 An. 342; 34 An. 520.</p>

<p>The writs of certiorari and prohibition to correct the error of an order of the District Judge will not issue when, since the application to this court, the order has become inoperative.</p>

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

<p>It is the duty of the master to keep his premises in a safe condition, so as not to endanger the life and limbs of the servant. Hence, the master will be responsible in damages for the injury to the servant, who, without knowledge ©r warning to guard against the accident, falls into a ditch of scalding water permitted by the master on the premises, the servant’s duties requiring him to approach or pass the ditch, left uncovered, with no railing or other means provided to guard against accidents. Wharton on Negligence, Secs. 206, 208, 211, 212; 17 Wallace, 553; 100 U. S. 215.</p> <p>Such a risk is not incident to the servant’s duties, and, unless he had knowledge of the danger and assumed the risk or by his own negligence fell into the ditch, his action against the master for the damages will not be affected. Ibid,.</p> <p>Nor in such case will the master’s responsibility be affected by the fact that when the accident occurs the servant is not in the actual employof the master, but is being conducted by the master’s manager to that portion of the premises where the danger exists and the master proposes to employ the injured party.</p>

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

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

<p>The court applies the rule excluding proof of contradictory statements of a witness, unless his attention has been first directed to the statements and the opportunity for explanation thus afforded him, 1 Greenleaf on By , Sec. 462.</p> <p>Such statements, the required basis forthe proof of them previously supplied, are admissible to impeach the credit of the witness; if the statements are sought to be put in evidence for any other purpose they are inadmissible because hearsay.</p>

<p>QN APPLICATION' for a writ of Mandamus.</p>

<p>N APPLICATION for Writs of Certiorari and Prohibition.</p>

<p>An attack upon a da¿/on cnpaiement from a husband to his wife, made by a plaintiff on the ground that it was in fraud of his rights as a forced heir of the vendor and an absolute nullity, because a disguised donation fails where the price paid was actually due by the husband to the wife, and" it was not out of all proportion to the value of the thing sold, saving to the heirs of the contracting parties their rights, if there existed any indirect advantage. 0. 0.2446, 2464.</p> <p>Though an acknowledgment of indebtedness to his wife, made by a husband in an act of dationen paiement to her, is not conclusive upon one of his forced heirs, attacking as such the act as a disguised donation, executed in fraud of his legitime, yet some effect must be given to it in connection with the other evidence in the case in determining the reality of the indebtedness when plaintiff in the suit declares that lie accepts unconditionally the succession of his father.</p>

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

<p>\ PPEAL from the Twenty-first Judicial District Court for the Parish of Jefferson. Rost, J.</p>

<p>The record of respondent’s court disclosing that relators had been committed to the parish prison for a period of two thousand one hundred and sixty days, in default of their making payment of fines aggregating seven hundred and twenty dollars in amount for each and costs of prosecution, for violation of a city ordinance in committing a trespass upon one of the public parks of the city of New Orleans; and it further appearing therefrom that, upon, essentially, one complaint, the respondent has found them guilty of seventy-two distinct violations of one ordinance within one hour and forty minutes, each one of said offences succeeding the other, only one and one-half minutes intervening between the commencement of any two of them. Held: That such a penalty is an unusual and unreasonable punishment in the sense of the Constitution.</p>

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

<p>A PPEAL from the Second Judicial District Oourt for the Parish of Bossier. Watkins, J.</p>

<p>In case an insurer and insured agrhe tliat the latter may give and the former will accept notes for the first annual premium on a policy of life insurance, payable in. instalments, and that the default of the maker in paying any one of them at maturity should operate as a revocation of the policy, default on the part of the insured makes the contract void ipso facto, both as to the insured and the beneficiary.</p> <p>The rights of a beneficiary in a life insurance policy are purely derivative, and altogether dependent upon the terms and conditions of the contract. He can insist upon the integrity of the contract being preserved and maintained in statu quo. Nothing more. He can not claim the right to be placed in a better position than the insured has placed himself.</p>

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

<p>A citizen and subject of Italy is exemptfrom the payment of the ten per centum tax levied againt foreign heirs, on property situated in this State, under Act 180 of 1894, the title to which is derived by testamentary disposition of his mother’s will, she having likewise been a citizen of Italy at the date of her death.</p> <p>The “most favored nation clause ” of the treaty between Italy and the United States entitles citizens and subjects of the former to the same tax exemptions as the citizens and subjects of the latter are; and the same right to acquire and dispose of.personal and real property within the territory of the latter, by donation, testament or otherwise, from or to aliens and subjects of the former.</p> <p>It is both wise and conservative for courts to adhere to what has been repeatedly adjudged; and when the intent and meaning of a law has been settled by the uniform and consistent course of judicial construction, the construction becomes, in so far as contract and treaty rights acquired thereunder are concerned, as much a part of the law as the text itself. *</p>

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

<p>The respondent having acquired from the city of New Orleans a franchise entitling it to construct, operate and maintain a line of street railway through certain designated streets of the city, the adjudication of which contained the stipulation that all the-streets through which its tracts are laid shall be maintained in first-class order between the tracts and two feet on each of side of said tracts, Held that this eonvenant does not impose the additional duty of elevating the entire surface of the street on either side of its tract to the height of its roadbed.</p>

<p>Transiera of property by the father to his daughter designed to provide for the indebtedness arising from his tutorship or other causes, and intended also as an advance on the eventual rights of the daughter in the succession of the father, can not be deemed sales, though in that form, because there is no price paid and no sales intended. Civil Code, Art. 2439; 12 An. 529; 5 Martin. 698.</p> <p>In the elation enpaiement the amount of the debt must be fixed; the transfers in this ease are not dations, because there was no such intention nor adjustment of the debt. Civil Code, Art. 2656; 10 La. 161.</p> <p>Transfers of such character are, in legal effect, donations, though dictated in part by the desire to provide for some indebtedness, and the acts will avail for the real object, i. e. as donations. Civil Code, Arts. 1636, 1586, 1900 et seq.; 5 Martin, 693; 12 An. 629.</p>

<p>A PPEAL from the of St. Landry. Eleventh Judicial District Court for the Parish Perrault, J.</p>

<p>The widow who takes possession of movables of the community, exercises her legal usufruct, and such property being consumable by use. and actually used by her, her liability to heir of the husband is for one-half the value of the property, subject to the reduction of the community debts. R. S., Sec. 629; 0. 0. 534, 549.</p> <p>The law does not recognize the fiction that the community movables, in this case groceries long since consumed, are to be deemed still in existence, represented by other groceries bought by the widow in the course of her business, and inventoried at her death as property applicable to pay her debts.</p> <p>A claim against the administrator of a succession for property, of which he is claimed to be in possession, belonging to another succession, should be urged in a suit for such property, not by opposition to the administrators account. 6 Martin, 27; 15 An. 228; 41 An. 504.</p>

<p>The offences of assaulting by shooting, or with intent to commit the crime enumerated in the statute when embraced in one act, may be charged con-junctively in one count. Wharton’s Criminal Law, Sec. 890; 34 An. 529 ; 35 An. 458; 37 An, 768.</p>

<p>In a quasi contract where the original contract is not at issue, to return the price of the sale of a thing which the seller has not delivered', Art. 2276 of the Civil Code does not apply. One witness is sufficient to establish the non-delivery of the thing sold.</p>

<p>Motion for an appeal must be filed in due time and an order of appeal entered by the court.</p>

<p>The payment of taxes on property is not by itself evidence of corporeal possession, of the property, and without some act showing corporeal possession, will not support the plea of ten years’ prescription.</p> <p>Possession animo domini forms the basis of the ten and thirty years’ prescription, and it must be, at least in its commencement, a corporeal possession.</p> <p>The corporeal possession is regulated to a great extent by the uses for which the immovable property is destined, and its nature.</p>

<p>Notwithstanding the proceedings of a family meeting recommending a sale of succession property to pay debts is approved and homologated by the judge,, same does not, in any manner, impair the validity of a contemporaneous order for the sale of same property, which is made by the same judge.</p> <p>It is a well settled principle of jurisprudence, as well as a well recognized rule of property, that a purchaser at a sale made at public auction, in pursuance of an order of court, is not bound to look beyond the decree in order to ascertain its necessity.</p> <p>He is bound to ascertain that the court had jurisdiction to grant the order; but finding that it has, the truth of the record, in other respects, may be assumed.</p>

<p>Section 8381, .Revised Statutes, which requires a prosecution in the name of the State against a delinquent road overseer, contains the essential description of . a crime or an offence, and a road overseer, indicted under said section, is an incompetent grand juror.</p> <p>The qualifications of both grand and petit jurors are fixed in Sec. 1 of Act 89 of 1894.</p> <p>Where the defendants do an unlawful act, such as the wrecking of a train, with felonious intent, and death ensues, in order'to convict the defendants of murder it is not required that they should be primarily convicted of train wrecking. It is competent to prove the wrecking of the train by the defendants, not only as the means which occasioned the death, but to establish the degree of defendants’ guilt.</p> <p>Statements of one of two defendants, charged with the commission of the same offence, are admissible evidence, although they implicate the other, in whose presence they were not made, if such statements are restricted to the party making them, and the part relating to the other defendant is stricken out.</p> <p>Where a defendant breaks jail and is a fugitive from justice pending the appeal, the appeal will be dismissed.</p> <p>On application por Rehearing.</p> <p>when an accused, pr or to the filing of his application for a rehearing on a judgment dismissing his appeal, returns to the custody of the sheriffl, and when such an accused has been sentenced to suffer death, the decree of court in doubtful cases should favor the liberty of the citizen and right of appeal and an appeal dismissed will under the circumstances be reinstated*</p>

A PPEAL from the Twenty-second Judicial District Court for the Parish of St. Bernard. Livaudais, J. Statement oe the Case.

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

<p>Sales made in succession proceedings by orders o£ court are judicial sales; adjudicatees at such sales can not be made to occupy the position of parties purchasing through conventional sales.</p> <p>Mere concurrence of opinion among heirs as to some of the details to be followed in the making of judicial sales has not the far-reaehmg consequence of altering the legal character of the proceedings. Sales made in the course of proceedings for a partition do not constitute the partition. .They are incidents of the partition, means leading to the ultimate judicial adjustment of rights.</p> <p>Under Sec. 18, Act No. áO of 1877, there is but one single “first insertion ” in a judicial advertisement, all others following the “first” are “ subsequent insertions.” The doctrine of “ alternate first insertions,” by malting the advertisement non-con-seeutive, and charging each first insertion of a renewed advertisement as .an “ alternate first insertion” is not sustained bylaw.</p> <p>The fees of an auctioneer are regulated by R. S., Sec. 160, when property is sold by order of court to effect a partition the fee of one per cent, on all sums under twenty-five hundred dollars, and one-half of one per cent, on all sums over that amount.</p>

<p>It is not the opinion of the witness solicited, when he is ashed to state a fact,, which is a conclusion, from other facts which had come under his observation and were within his knowledge.</p> <p>Where a witness is recalled and examined, the cross-examination is limited to the matter on which he has been re-examined.</p> <p>In the discipline of his court the trial judge is vested with a sound discretion to-stop the prolonged and unnecessary examination of a witness, and when there has been no injustice done the defendant, this court will not interfere with, this discretion.</p> <p>In an indictment for larceny from unknown owners it is competent for the prosecution to prove that the property found in possession of the defendant did not belong to him.</p> <p>On the trial for stealing hogs from unknown owners it is proper to show that the ear marks on the ears found in defendant’s possession was not defendant’s mark.</p> <p>It is competent to ask the defendant, who is a witness in his own behalf, if he is charged with other offences, and whether there are other bills pending against him. The inquiry into a witness’ credibility is always permitted. State vs, Murphy, 45 An. 958.</p>

Théard, J. “ It is alleged that on the seventh day of February, 1895, the •defendants did compose and publish a certain false, malicious, ■defamatory and libelous matter concerning the plaintiff and its business, the said publication being in the form of a letter directed to Dr, Samuel R. Olliphant, President of the Board of Health, and being in the words and figures, to wit : •“ ‘B. J. Wolf & Sons, 26, 28, 80, 32 and 34 Bienville Street. “ ‘New Obleans, February 7, 1895. •“…

<p>A plaintiff whose demand for a separation from bed and board from his wife fails for want of evidence is not authorized to pass into the discontinued reconven - tional demand of the wife herself for a. separation and make an allegation therein that she would never return to or be reconciled to her husband, the basis for a judgment in his favor.</p>

Bightor, J. Relator alleges that it was engaged in the business of paving streets — that it was a duly qualified bidder and had complied with all laws and ordinances relative to its said business.

<p>The court is not bound to assign counsel to an accused unless upon his own request, and if he fails to make the request or to apply for a continuance on the ground of absence of counsel of record, but is ready for trial, the mere fact that the trial proceeded without the aid of counsel does not constitute error nor a ground upon which to base a demand for a new trial. 25 An. 381; 33 An 979; 37 An. 606; 39 An. 19.</p> <p>Declarations made by a defendant’s counsel iu a motion for a new. trial that accused had a good defence is a mere conclusion. Facts should be set out by which the court could determine the correctness of the conclusion that the accused could have been relieved from the disadvantages referred to by the assistance of counsel,</p>

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

<p>The debtor who has failed to comply with the conditions of a contracted voluntary respite (to which the consent of all the creditors was not obtained) can not be driven to a forced surrender.</p>

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

<p>When a plaintiff has been, successful in a possessory action and the defendant appeals therefrom, the appeal will not be dismissed because the defendant since his appeal has resorted to the petitory (action — the bringing of such a suit does not amount to a voluntary execution of the judgment appealed from, nor abandonment thereof.</p> <p>The judgment in a petitory action carries with it both the instant right to the possession of the property and the title to the same.</p> <p>If the plaintiff in such action permits a party, a stranger to the litigation who purchased the property during the pendency of the suit, to remain inpossession for more than a a year, peaceably and uninterruptedly his possession must be protected.</p>

<p>This coart has power to inquire into the proper execution of its decrees, and if the court to which the decree has been sent for execution improperly interprets it, and causes an execution to issue not in accordance with the recitals of the decree, the appellate court can, on proper proceedings being invoked, restrain the improper execution of the decree. When property in the hands of third persons is seized as the property of defendant in execution he can not interpose the adverse possession as a means of defeating the seizure.</p>

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

<p>In the exercise of the supervisory jurisdiction of the Supreme Court a mandamus will lie to compel the Circuit Court of Appeals to take jurisdiction of a cause when the amount involved does not exceed the upper limit of its jurisdiction.</p> <p>In a suit when the defendant acknowledges a part of the indebtedness, the test of the jurisdiction of the appellate court is the difference between the amount claimed and the amount acknowledged, as judgment can only be rendered for the balance due. But when the defendant denies liability on the entire demand, and pleads in reconvention an amount exceeding the acknowledged indebtedness, the test of jurisdiction is the amount of the judgment which could be rendered in the ease.</p> <p>when plaintiff prays for a judgment decreeing him absolutely and unconditionally entitled to a certain percentage of all crops to be raised by the defendant, who is a tobacco grower by occupation, for a period of nine years to come, an .estimate of the amount or value of this claim must necessarily be made by the court in passing upon the question of jurisdiction vel non, and this estimate must necessarily be based upon past crops, independently of possible future contingencies, which it is impossible to anticipate.</p>

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

<p>In the agreement between partners for the purchase in the West and sale in-Europe of grain, the stipulation for the delivery here by the purchasing partner of the grain free on board, the other binding himself to provide the ships for the transportation of the grain is not inconsistent with the collateral-agreement that the terminal charges here — i. e., storage with the incidental necessary inspection, insurance and interest while the grain is stored in elevators, shall be divided equally between the partners, all such charges having been foreseen as apt to arise and incurred owing to the inability^ to provide ships to take the grain as it arrived, of the partner assuming that obligation.</p> <p>Interest charges in an account rendered and acquiesced in become part of the amount shown to be due on which subsequent interest may be charged. 12 An. 20; 4 An. 210; 39 An. 791.</p> <p>The account rendered and acquiesced in is proof of the indebtedness it exhibits.. 1 G-reenleaf, Sec. 212; 3 Rob. 361; 12 An. 20; 39 An. 971.</p>

<p>THE PLEA 01? NO CAUSE 01? ACTION.</p> <p>The personal liability arising out of the act of converting another’s property (or property on which he has a lien) can not be avoided and frustrated by the fact itself of the conversion.</p> <p>KBS JUDICATA.</p> <p>The judgment pleaded as res judicata declared that the dation could not take effect to the prejudice of the plaintiff’s debt before the court for adjudication; that is, the matured debt. The judgment could not deal -with the notes not matured and the privilege by which they were secured. A judgment on a plea of prematurity is no support for the plea of res judicata.</p> <p>NOT A THIRD PERSON WITHOUT NOTICE.</p> <p>The intervenor was informed of plaintiff’s privilege on the two notes sued on in the first suit and in the present suit, and therefore must have known of the existence of this claim before the proceeds of the cotton came into her hands. The intervenor was bound to discharge the debt out of the funds in her possession; failing to thus discharge it, she became personally responsible.</p>

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

<p>The administrator of the succession of a deceased wife is without right or authority to take possession, or assume control of property held in community between the deceased and the surviving .husband and usufructuary, or to sell the same for the purpose of paying debts of the community, notwithstanding they are debts which the community owes to the separate paraphernal estate of the wife.</p>

<p>wiiere a demand is made upon an agent to account for the rents and revenues of property under liis administration, the judgment prayed for being only for the amount as shown by the account, the proper course to pursue when the answer of the defendant denies that he owes an accounting to plaintiff is to ascertain the fact whether an account is due, and if so to order the defendant to file an account within a fixed time, to which the plaintiff may, if he chooses to do so, file an opposition.</p>

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

<p>An ordinance of the city of New Orleans which provides that no one shall open or establish a drinking house or establishment for the retail of spirituous liquors without first obtaining a license or permit from the City Council is not illegal nor unconstitutional, as it comes within the police power of the city.</p>

<p>There is no legal presumption of indebtedness of a certain sum raised against a tutor in favor of his ward, on the clerk’s certified abstract of inventory of the . latter’s property being duly registered in the mortgage office, which is sufficiently cogent to justify a court of justice to base a judgment upon in a partition suit amongst the heirs.</p> <p>At most it is the commencement of proof.</p>

<p>Act 50 oí 1894, amending Revised Statutes, See. 968, declares that prescription shall not apply to any conviction of .a lesser crime or offence under an indictment for wilful murder, arson, robbery, forgery or counterfeiting; but, on the contrary, said prescription or exception shall not be pleadable against such an offence.</p> <p>It was the evident intention of the Legislature that this statute should go into (operation and have effect at once, and that thereafter such exception should not be pleadable at all.</p>

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

<p>The interest of an heir in the immovables of a succession, as soon as he accepts it, is subject to the right of a creditor whose claim is secured by judicial mortgage, subject to the right of priority of the creditors of the succession. 21 An. 255; 3 An. 34, 36.</p> <p>The heir having in a compromise fixed the value of the residuum, and rendered it Impossible to settle the succession on the basis of the inventory and other proceedings subsequent, that value is adopted and payment according ordered.</p>

<p>PPEAL from the Civil District Court for the Parish of Orleans. King, J.</p> <p>cites: 104 U. S. 775-779; 15 Wallace, 643; 101 Mass. 564; 10 S. E. Rep. 241; 142 U. S. 664; 11 Fed. Rep. 573-577; 11 Atl. Rep. 780; C. N., Art. 160; 'Marcade, Vol. 3, p. 253; 21 Wallace, 448; 7 Wallace, 558; 11 Wheeler, 258; 1 An. 178; C. C. 1779, 1893, 1894.</p>

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

<p>A PPBAL from the Twenty-first; Judicial District Court for the Parish of St. Charles. Host, J.</p>

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

<p>The rule that statements of the witness out of court contradictory to his testimony cannot be proved unless he is first afforded the opportunity of denial, admission or explanation, is enforced whether the imputed contradictions are offered to impeach the credit of the witness or to show his malice to the accused. 1 Greenleaf on Evidence, Secs. 475,476,477; Sfcarlrie on Evidence, S.P 289, 210; notes at foot.</p> <p>If the witness admits the contradictory statements the accused can offer no proof of the contradictions thus admitted, although such proof is proposed to be given to show .the falsity of the explanations of the witness why he made the statements contradictory to his testimony. Wharton’s Criminal Evidence, Sec. 488; Rapalge,Law of Witnesses, Sec. 204.</p> <p>Although a defence witness has been cross-examined and dismissed without being questioned as to contradictory statements out of court imputed to him, and although other defence witnesses have been cross-examined and dismissed, yet the State, not having commenced rebutting, may be permitted to recall and examine the defence witness to lay the basis for contradicting him and to prove such contradictory statements; it appearing by the bill that the District Attorney learned of the statements after the cross-examination of the witness, the recall operating no delay and causing no denial of any right of the accused. 8 Bob. 562; 29 An. 716; 88 An. 982; 47 An. 886.</p>

<p>A PPEAL from the Oivil District Court for the Parish of Orleans, -t*- Monroe, J. '</p>

<p>4PPEAL from the Eighth Judicial District Court for the Parish of Catahoula. Dagg, J.</p> <p>Justices of the Peace have power to bail or discharge in criminal cases not capital or necessarily punishable at hard labor. Const. 1879, Art. 126; 44 An. 906.</p> <p>Where a Justice of the Peace takes a bond in a case in which he is authorized to act, there is no necessity that an order should have been made fixing the amount of the bond and authorizing its acceptance. 44 An. 906.</p> <p>The sureties on a bond which was given for and procured the release of a prisoner charged with a criminal offence can not gainsay its regularity, or the regularity of the proceedings in which it was allowed. 81 An. 628; 16 An. 141; 13 An. 298; 40 An. 719.</p> <p>There is not required in a bail bond the same accurate verbal statement of an offence that is required in an indictment. SO An. 852.</p> <p>Where the accused is bound not only to appear at court to answer a specific charge, but also not to depart thence without leave of the court, the bond, if violated, can be forfeited and the securities held to its payment. 12 An. '471; 21 An. 599; 30 An. 852; 13 An. 298.</p> <p>The obligations of sureties on a bail bond are not affected by the fact that the indictment was found for an offence of a higher grade than t hat expressed in the bond, and which higher grade includes the lower. 80 An. 852.</p> <p>An appearance bond taken by a person without authority is null. 6 An. 700; 12 An. 224; 10 An. 582; State vs. Bloize, 38 An. 542.</p> <p>An appearance bond taken by a Justice of the Peace for one when there is no criminal charge pending in his court against the party is a bond taken without authority, and is also null. State vs. Williams, 37 An. 200.</p> <p>A bond given to release the accused can not be forfeited, if it defines no crime known to law, of which the accused stands charged. State vs. Gibson, 23 An. 698; State vs. Sypher, 19 An. 71; State vs. Wooton, 4 An. 515; State vs. Smith, 8 An. 471; State vs. Ridgley, 10 An. 302.</p> <p>A bond which binds an accused to appear and answer to the charge of “ having in' the said parish between September 1, 1895, and January 1, 1896, did take and conceal, or did take, carry away and conceal from J. I. Holmes, merchandise and money of the value of $75,” etc., describes no offence known to the laws of Louisiana.</p>

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

<p>When a bill o£ exception leaves this court uninformed as to the grounds upon which the motion complained of was overruled, matters are left just where the ruling of the judge left them.</p> <p>On an indictment (Act No. 8, 1870, Ex. Sess., Sec. 8) for “ shooting at any dwelling house, school house, church house or outhouse, any person or persons being lawfully therein,” it is not necessary to set out in the indictment the names of the person or persons alleged to have been lawfully in the house.</p>

<p>The presumption is that property bought during the community belongs to the community, and is the common property of the husband and wife.</p> <p>The declaration in a deed of purchase that the property was bought with the separate paraphernal funds of the wife is not sufficient in itself to prove title.</p> <p>This presumption, the court holds, may be rebutted, the truth of the declaration shown, and the title of the wife established.</p> <p>An absentee may be brought into court through a curator ad hoc in an action to quiet title.</p> <p>Costs are due to the one who recovers judgment.</p>

<p>QN APPLICATION for Writs of Mandamus and Certiorari.</p>

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

<p>The Supreme Court will not disturb the verdict of a jury on a question of fact in acquitting an insolvent debtor of fraud. To remand the case because the appellate court might differ from the jury on a question of fact would be, as stated in 7 An. 25$, trenching too far upon the humane principle that no man should be tried twice for the same offence. 44 An. 11.</p>

<p>APPEAL from the Ninth Judicial District Court for the Parish of' Red River. Sail, J.</p>

<p>where a plaintiff in reconvention sets up title and claims possession, and the defendant in the reeonventional demand answers the intervention, denying ownership and possession, these latter demands are eliminated from the suit, and the only matter in dispute is the amount of rent claimed from the defendant while in possession.</p>

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

Ellis, J. It is now settled jurisprudence in this State that actions to annul judgments are not confined to the causes specified in the Code of Practice, but extend to all cases which would be a ground for such relief, under the practice of the courts of equity in other States. 1 Rob. 528; 3 An. 646; 6 An. 799; 31 An. 288.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.</p> <p>cite: ■C. O., Arts. 271, 321, 333; 16 An. 370; 24 An. 603; 35 An. 829 ; 47 An. 895; 46 An. 1267; 25 An. 53; 33 An. 305, 1213.</p> <p>cite: Arts. 316, 317, 322, C. C.</p>

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

<p>A judgment of separation a mensa et thoro does not warrant a judgment of divorce-a vinculo, on the petition of the one against whom it was obtained, if the spouse in whose favor the judgment of separation from bed and board was pronounced pleads in defence of the suit willingness to become reconciled.</p>

<p>While the courts can have no right to pronounce an abstract opinion upon questions entirely political, to compel officers to perform specific duties imposed upon them by law, whether relating to elections orto any other duty devolving upon them, writ of mandamus issues to compel a proper execution of a purely ministerial duty.</p>

<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. Théard, J.</p>

<p>QN APPLICATION for Writs of Certiorari and Prohibition.</p> <p>cites: 69 Fed. Rep. 862-3; 6 Wall. 50; 13 An. 90; 78 111. 261, et seq.; Merrill on Mandamus, par. 61; 25 An. 264; 82 Ill. 119; 28 An. 705.</p>

Monroe, J. On the Motion to Dismiss. 'The Supreme Court has jurisdiction of all cases in which the legality or constitutionality of a local assessment is at issue, whatever may be the amount. State ex rel. Hill, 46 An. 1292. 'The charge imposed upon a property holder for the paving of a street opposite his property is a local assessment.' 36 An. 549; Burroughs on Taxation, Chap. XXII; Cooley on Taxation, Chap. XX; Dillon on Taxation, Vol. 2, p. 1211.

<p>A reconciliation between husband and wife, after the facts which might have authorized a suit for separation, is a bar to such action.</p>

<p>A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrawlt, J.</p> <p>cite 34 Ark. 610; 6-Tex. App. 188; 3 Bush. (Ky.) 22; United States vs. Reese, 4 Sawyer, 629.</p>

<p>In order to authorize one street railway company to occupy the tracks of another there must he legislative permission for the same, or it must result from such necessary implication from the grant that the abandonment of the grant would necessarily result from the non-occupancy of the roadbed of the street railway first occupying the street.</p>

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

<p>Morel, J. PPEAL from the Second City Court of New Orleans.</p>

<p>Notes secured by a mortgage ancl vendor’s privilege pass to third persons, with mortgage and privilege by which they are secured, unaffected by the unreality of the transaction (at the origin), of which the holder by transferhad no notice.</p> <p>If one of the two debtors in solido- be solvent, the creditor is without a right of action to have annulled a transaction of the insolvent debtor.</p>

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

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

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

<p>An adjudication of real estate at a public judicial sate, made under and in pursuance of the provisions of Act 82 of 1884, is bound to pay all the taxes due thereon at the time of sale, and which were theretofore assessed under current revenue laws since 1880, and which he had assumed and was legally bound to assume as a part of the purchase price thereof.</p> <p>But in the absence of any pertinent decision of this court to the contrary at the time such adjudication was made, it was competent for the Circuit Court of the United States, holding sessions in the State of Louisiana and having jurisdiction inpersonam of one of the parties to a litigation involving such an adjudication, to place such interpretation upon the provisions of said legislative act as in its judgment was thought to be legal and just.</p> <p>And such judgment will be held binding by this court between the parties thereto .and their vendees and assigns, notwithstanding it has, in other cases since, put & somewhat different interpretation upon that statute.</p>

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

<p>Motions for new trials are universally conceded to rest within the exercise oí the sound judicial discretion of trial judges; and same will not be disturbed by an appellate court except in clear cases of abuse or misdiscretion.</p>

<p>QN APPLICATION for Writs of Certiorari and Prohibition.</p>

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

<p>'There is only a question o£ fact at issue in this case, whether or not the property could he divided in kind.</p>

<p>Two agreements o£ contemporaneous date, one of which is signed by creditor and debtor, and the other by the debtor and surety, and each malting reference to the other, must be construed together, and thus construed, what is doubtful in one may be made clear by what is found in the other.</p> <p>An agreement to extend a line of credit for a certain amount, coupled with a stipulation for the payment of all goods purchased, binds a surety for a general balance of account.</p>

<p>The effect oí a failure by a purchaser at a tax sale to pay ail taxes due at the time of purchase would be to leave such purchaser without title; but the State would still remain the owner under a prior adjudication to it which legally vested title in itself. So when the original owner of property adjudicated to the Stale proceeds by a petitory action against the purchaser at tax sale, in possession under a tax collector’s deed, his suit will be successfully met by the fact that his title has passed to the State and he can not recover, because of the weakness of title in the tax purchaser.</p> <p>Plaintiff in a petitory action, who declares upon a particularly specified title is confined to that title on the trial.</p>

QN APPLICATION for Writ of Mandamus. Relatrix, the administratrix of the succession of Mrs. Kate Clark Steers, alleges that Mrs. Steers, who was the wife of Schuyler B. Steers, died on the 1st of June, 1888; that her husband died on the 13th December, 1889.

Voorhies,. J. Action by the plaintiff in his capacity as natural tutor of the minor, issue of his marriage with his deceased wife, Rose Olivier, who was killed by one of defendant’s trains. The jury returned a verdict in favor of plaintiff for ten thousand dollars. Defendant appealed.

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

Rightor, J. In December, 1885, the plaintiff filed a suit in the District Court for the parish of Orleans, in which he alleged that he was the owner of twelve certain lots of ground in the city of New Orleans, which he described, together with all the buildings, improvements, rights, ways, privileges and appurtenances thereunto belonging, especially all right of alluvion or accretions of batture appertaining thereto; that he and the authors of his title, through whom he…

<p>The plaintiff having by injunction sought to restrain the parochial authorities from so altering the route of a public road as to cross its tráete and right of way against its will, without making any demand for damages or other compensation, this court is without jurisdiction ratione material, and the appeal must be dismissed on the motion of the appellees.</p>

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

Monroe, J. Plaintiffs, the father and mother of George E. Henry, deceased, claim frorn the defendant corporation, and its officers and agents, Edward F. Braekenridge, its president; Charles E. Brack - enridge, its' treasurer; V. A. Longacre and James J. Green, its foreman and superintendent, the sum of twenty-five thousand dollars.

Mrs. Charlotte L. Bendy, wife of Daniel R. Carroll, died in April, 1892, leaving an estate in community with her husband. The latter was appointed administrator of her succession. . He himself died in February, 1894. The heirs of the husband and wife are the same persons.

<p>On Motion to Dismiss.</p> <p>when the subjects oí a judgment are distinct acquiescence in one will not defeat the appeal as to the judgment on other and distinct demand.</p> <p>On the Merits.</p> <p>where executors have the administration of a succession composed entirely of stocks which have a market value, hut fluctuate, and they sell the same at private sale in small lots for the interest of the succession, when a public sale would have had the effect of depreciating the value of the stock, by putting on the market large amounts at one time, they will not be held responsible for the loss in value estimated at the highest market quotations, when no demand has been made upon them by particular legatees, or the universal legatees, to pay the legacies, and for this purpose demand a public sale of the stocks by an order of court.</p>

<p>while it is the duty of the master to keep his premises in a safe condition so as not to endanger the life or limbs of the servant, yet the servant will be denied relief agninst the master for injuries arising out of the unsafe condition of his-premises, if with ordinary prudence the servant could have avoided the injuries. 2 Thompson on Negligence, pp. 9i6 et seq., 1008, sec. 15 et seq.</p>

<p>The supplemental assessment roll, provided by law to supply omissions or correct errors in the original roll, must be accompanied with notice to the property owner proposed to be bound by the supplemental assessment, but payment of the State taxes based on such assessment, will preclude the owner from urging the want of such notice when called on to pay the city taxes levied on the same assessment. Acts 1888, No. 85, Sec. 11; Acts 1890, No. 106, Sec. 11.</p> <p>The court again affirms that notice to the owner of the tax sale for taxes assessed since 1879, is indispensible to pass title, and a paper purporting to give such notice, left with one not the agent of the owners, is no notice. Constitution article 210; Act No. 85 of 1888, Sec. 40, et seq.; 44 An. 912; 45 An. 1109; 46 An. 403.</p>

<p>APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.</p> <p>Plaintiffs were the heirs of Michael Walsh, who died in New Orleans on the 7th of December, 1866, bring suit to recover certain property acquired by Negrotto from the State Tax Collector of the upper district of New Orleans, under a sale passed in June, 1885, purporting to be under authority of Act No. 82 of 1884, for taxes charged against said property. That said sale was null and void for this: There was no assessment against said property, and if any pretended assessment should be shown by defendant, it was not in the name of any owner during the years of said assessment. Second, there was no notice of said sale to petitioners, the owners, and should any law have authorized the sale of petitioner’s property, without notice, said law was invalid and violative of Art. 210 of the Constitution and the Fifth Amendment of the Constitution of the United States.</p> <p>Negrotto had made a sale of said property to Mrs. Josephine Lamarque, wife of Joseph Harang, and who being then in possession of said property under said sale, was made defendant. Judgment was asked, decreeing the title of the defendant to be null and void, and condemning her to pay rent at the rate of twenty dollars per month from the date of possession. Negrotto was called in warranty by Mrs. Harang.</p> <p>The district court rendered judgment; in favor of the plaintiffs; against the defendants, Mrt. Joseph Harang and husband, decreed, plaintiffs to be the owners of the property claimed and as such owners entitled to the possession thereof, decreeing the titles of saidl defendants to be null and void and condemning her to pay rents to. plaintiff at the rate of twenty dollars per month from January 24, 1894, until paid and costs; further decreed that plaintiff pay defendant the sum of six hundred and sixty-eight dollars value of useful improvements, with legal interest from date of judgment, and that no writ of possession issue until said sum be paid defendant, and that there be judgment in favor of defendant against Negrotto, called in warranty for the sum of eight hundred dollars, the purchase price, with legal interest from March 10, 1894, and for one hundred dollars attorneys fees, incurred in defending the suit and for the costs recovered by plaintiffs and defendants, and all costs incurred in the call in warranty.</p> <p>All the defendants appealed.</p>

<p>Testaments are revocable at the will of the testator until his decease.</p> <p>When a prior will has been made the testator has a right up to his death to formally announce that he has changed his mind.</p> <p>Art. 1692, O. 0., does not require that this act of revocation should itself be a testament; it only requires that it should be "an act” in “one of the forms prescribed for testaments arid clothed with the same formalities.”</p>

A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. Action for fifteen thousand dollars for damages for death of minor child caused by the alleged gross negligence of defendant’s company. There was judgment for defendant and plaintiff appealed.

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

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

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

<p>An accused can be tried for an offence and sentenced, if found guilty, notwithstanding he has been convicted of another offence and is awaiting sentence.</p> <p>Under an indictment charging on one count burglary and larceny, it is error for the trial judge to instruct the jury that they can find the accused guilty of larceny.</p>

<p>Relator having been sued in the Second City Court of the city of New Orleans for the sum of twenty-five dollars, as the amount of a call of 10 per cent, upon five shares of the capital stock of a corporation, and having answered that he was not the holder of said shares of stock, and consequently did not owe the amount demanded of him, and upon that ground excepted to the original jurisdiction of the respondent’s court: Held, that if relator shall makegood this defence, it would be a good reason why judgment on the merits should go in his favor, but not that the jurisdiction of respondent should be defeated.</p>

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

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

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

<p>APPEAL from the Eighteenth Judicial Disrict Court for the Parish of Lafourche. Gaillouet, J.</p>

<p>when property has been seized and sold in a . suit to which the owner was not a party, and the purchaser sells the same to another, and it is assessed in the name of the latter and sold at tax sale, the .assessment and sale are null and void.</p> <p>It is not essential that property should be assessed in the name of one possessing both the equitable and legal title in order that the assessment may be legal and valid. But there must be aprima facie title to serve as the foundation of a valid tax sale. The evidence must be on record to show that the owner was divested apparently of title by proceedings against him.</p>

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

<p>The order of court, recognizing plaintiffs as heirs of the deceased, and placing them in possession of his property, is not evidence of his title in a suit by the heirs asserting the ownership of their ancestor brought against the party claiming title.</p>

<p>The lineman of the defendant company in the discharge of his duty was ordered to take down a guy wire from an electric pole and guy tree. The pole had not been securely planted. It fell on the lineman, inflicting injuries of which he died. The vice of construction was latent and concealed. The officers of a preceding board of management had been notified of the defect. The company is not relieved under the plea of want of notice, although the present general manager had not been notified, but the preceding manager or superintendent.</p> <p>The lineman did not voluntarily place himself in a dangerous position.</p> <p>The employee is not bound to know latent, büt only patent defects.</p> <p>The master must provide suitable appliances.</p>

<p>A deduction may be drawn from the statement oí a witness, (such as the amount of a fee or charge on a vessel of itself shows the tonnage of the vessel) without any statement by the witness in regard to the number of the tonnage.</p> <p>The evidence was brought out in chief and no attempt was made to show that it was erroneous.</p> <p>Accounts must be proven by reference to the respective items and not by average of other items of debts of another date and for different fees or charges.</p> <p>A verified copy of a report is admissible in evidence and makes proof on the testimony of a witness wlio knew that it was duly verified.</p> <p>The claims, sustained by sufficient evidence, are allowed. A non-suit is entered as to those not thus sustained.</p>

<p>On an indictment for shooting at with intent to kill and murder, a request that the court instruct the jury that it could, under the indictment, find the defendant “ guilty of assault and battery,” or “guilty of an assault,” was properly refuse d.</p>

<p>When a party sells the homestead for an existing debt as the price, and immediately the purchaser transfers it back to the vendor and takes a mortgage and vendor’s lien on the property, the transaction will be viewed as one of mortgage to secure the debt, and in violation of Art. 222 of the Constitution.</p>

<p>QN APPLICATION for Writs of Mandamus and Prohibition.</p>

<p>Paragraph 4, Sec. 1 of Act No. 186,1894, is null and void, being in conflict with constitutional amendment proposed by joint resolution 110 of 1890, and Act 86 of same session, enacted to carry out the provisions of the amendment.</p> <p>The amendment gave the Legislature authority to dispose of the surplus of the one per cent, tax allowed by said amendment, and Act 86 having disposed of a part of it for the support and maintenance of the public schools of New Orleans, it became a vested right in the Board of School Directors, which can not be disturbed by subsequent legislation.</p>

<p>QN APPLICATION for a Writ of Mandamus.</p>

<p>If a conveyance of immovable property, under a resolution of tbe board of directors of tbe corporation, tbe vendor, accepting' tbe offer to buy, is assailed by parties claiming they were the purchasers intended by the resolution, and were deprived of the property by the fraudulent substitution- of those to’’whom the conveyance was made, it is competent for such parties holding the title by competent deed to show by testimony that the conveyance was in pursuance of their offer to buy, accepted by the board, and thus the conveyance accorded with the resolution; such testimony not infringing on the prohibition of parol to create or destroy title to immovable property. a</p> <p>The principle that to avoid the sale for lesion the inadequacy of price must be clearly proved, is applied in this ease. Civil Code, Art. 2589; 12 Martin, 421; 5 La. 382.</p>

<p>The requirement of the Code that the olographic will shall be dated, requires that the day of the month shall be stated; the day is part of the date, and the month and year, without the day of the month, avoids the olographic will. Civil Code, Art. 1588; Napoleon Code, Art. 970; 4 Boilleux, 91; 3 Troplong, par. 1479; Coin Delisle, pp. 151-542; Lagrave vs. Merle, 5 An. 278; Fuentes, vs. Gaines» 25 An. pp. 85-107.</p>

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

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

<p>Ordinarily the entries in registers duly made, kept by one bound to record the fact in a foreign country, makes proof when authenticated by the consular officer at the place.</p> <p>The certificates were of birth, marriage and death, and as such were admissible in evidence.</p>

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

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

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

<p>When a District Judge is a party to a contested election suit, and his recusation is suggested on the ground of personal interest, it is his duty to enter in said cause an order, in open court at term time, recusing himself, and for the trial thereof, appoint some judge of an adjoining district to go into his court and try and determine the cause.</p> <p>In case said recused case has not been tried within nine months from the date of the judge’s recusation, it shall then be the duty of the judge to order the transfer of the case into the court of an adjoining district for trial.</p> <p>There is no law in force which provides for the order of recusation to be entered in chambers, and mandamus will not go to respondent coercing him to do so.</p>

<p>The marriage decreed null produces civil effects when contracted in good faith.</p> <p>The wife, who in good faith, marries a divorced man believing that the divorce was legally obtained; if the divorce be subsequently declared a nullity is protected by those laws enacted for the protection of the weak and innocent.</p> <p>The effects which the husband and wife, at the time of the dissolution of the marriage, own are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage.</p> <p>The same rule applies to. a putative marriage in so far as the spouse, in good faith, is concerned.</p> <p>The costs of settlement of community interests are charged to each in proportion to the interest of the respective parties.</p>

<p>The plaintiffs are creditors of the defendants for goods sold them by the latter.</p> <p>Burden of Proof — As to whether the store was exclusively kept to supply the employees and was not to sell to all comers, the onus was shifted .by evidence strong enough to establish a prima facie case against the defendants. After the burden had changed to the defendants they did not sustain their defence by proof of particular facts which were more particularly within their knowledge.</p> <p>Act Relative to Corporations prior to 1888. — A corporation may, as to its legal existence, be entirely legal and protect its shareholders fully to construct and operate a railroad and to engage in planting, under laws preceding the act of 1888; and yet the shareholders are responsible personally/or carrying on a commercial partnership in addition.</p> <p>Corporation Limited. — Where a corporation is created under a general statute which requires that it shall be incorporated as a corporation limited, the limitation must so appear in the act of incorporation, otherwise the private interests of those who signed the act, and were its directors, will become responsible under the terms of the statute.</p> <p>Estoppel. — Merchants who sell goods for merchandising to a corporation do not thereby preclude themselves from holding the shareholders personally bound after ascertaining that, as to their mercantile transactions, they are responsible as commercial partners.</p> <p>A motion to vacate the appointment of a receiver was not an estoppel of record.</p> <p>Not a New Question. — There are general statutes in a number of States, also in England, giving authority to create joint stock companies “limited,” and importance, in these jurisdictions, is given to the use of the word limited, as in Louisiana.</p>

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

<p>The debtors’ note given for an open account does not necessarily novate the debt.</p>

<p>A PPEAL from the Seventeenth Judicial District Court for the Parish of Vermilion. Allen, J.</p>

<p>Writs of prohibition and certiorari will not issue when the proceedings of the lower court sought to be reviewed and arrested are ended.</p>

<p>A particular legatee who was indebted to the testator when the will was executed and when the testator died, is not entitled to have the debt remitted because of the particular legacy to him.</p>

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

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

<p>Railroads using appliances in common use which have been used for a long time and found sufficient to protect their own and other property from danger, would be protected against the charge of negligence, because of its use. If such appliances are used the burden of proof is on plaintiff to show they were defective or improperly and negligently used.</p>

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

<p>When the tax eolleetor sells property for taxes which have been paid, the sale is null and void, and the purchaser at said sale acquires no title to the property and can transfer no title to a third party.</p>

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

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

<p>The utterances of a wife to a confidential friend while seeking sympathy and advice and when smarting under what she rea onably considered to be wrongs received at the hands of her husband by neglect of herself and indiscreet, injudicious and excessive, if not criminal, attentions to some other woman will not be held to be “ public defamation.”</p> <p>The husband alleging “ public defamation” demauds separation from bed and board; the wife reconvenes and claims a separation on the grounds of abandonmeut. Held: When the husband fails, the demand of the wife in reconvention will also be dismissed; it would be against the policy of the law that the husband should find himself confronted by a judgment of separation from bed and board in favor of his wife on account of abandonment, based upon neglect or refusal to return upon summons made,when the propriety of his own course and the conduct of his wife was at the time being made the subject of judicial investigation.</p> <p>The letters of the husband to the wife are admissible in evidence in a suit between the parties for a separation from bed and board. The husband is not, through such letters, made to be either a witness for himself or against his wife. The letters are used in evidence as containing matters emanating from the husband to break down his cause of action.</p> <p>Any act of the plaintiff husband or admission made by him which would estop him, throw his demand out of court or show his demand not well founded, the defendant wife is entitled to prove, and she is not cut off from doing so by the circumstance that the fact is shown through a letter written by the plaintiff husband.</p>

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

<p>The court again affirms that community creditors are entitled to be paid from the community property, and that this right can not be impaired by the mortgage on such property executed by the husband after the death of his wife. Civil Code, Arts. 2402, 2406, 2409; Newman vs. Cooper, 46 An. 1485; Germain vs. Gay, 9 La. 584; Ware et al. vs. Jones, Sr., 19 An. 430; Palmer Dickson et al. vs. H. P. Dickson et als., 37 An. 915, and authorities there cited.</p> <p>The court indicates the mode of enforcing such mortgage.</p> <p>If in a contest between the father’s creditors and his children, claiming also to be his creditors, he can be required in the adjustment of his account with them to charge for their board, maintenance and education, no such charge can be admitted if the children had revenues derived by the father or under his control applicable to their support. Mercier vs. Canonge, 12 Rob. 385.</p> <p>The father, except under exceptional conditions not existing in this case, can not bind his minor children for debts arising for his individual contracts. C. C., Art. 350; Urquhart vs. Scott, 12 An. 67i; Payne vs. Scott, 11 An. 773; A. Miltenberger vs. J. P. Elam, Tutor, et als., 11 An 667.</p>

<p>On a trial for murder tlie court had given a general charge in writing, to which no exception was taken.</p> <p>Counsel for accused asked from the judge a special charge, which was refused, the judge stating there was no evidence to show that the deceased drew his revolver to frighten the accused, and if there had been, accused was fully protected by the general charge, since, if he had apparent reason to believe his life was in danger, the law of self-defence would be applicable according to the general charge. Held — The Supreme Court will only examine the general charge in connection with the special charges asked, to see how far the complaint made of their rejection may have been ill or well founded in view of its terms.</p> <p>The general charge in a case is directed to the evidence given in the case, and to what would appear to have been conceded as to unquestioned facts which had been elicited on the trial; viewed from a different standpoint, it would be open to serious objection.</p> <p>An instruction which, enumerating a certain evidential state of facts, closes by instructing the jury that if they found such a state of facts to have been established beyond a reasonable doubt, the jury must find the accused “guilty,” if allowable, is exceedingly dangerous.</p>

<p>The managing partner o£ a commercial partnership has no authority, without the consent of the other members of the partnership, to assume the debt of a third party, and bind the partnership to its payment.</p>

<p>The tomb owner is without right to cause the removal of the remains of the dead transferred from, tlié places of sepulture first selected by the surviving relatives and deposited by him in the tomb under his assurance, accepted by such relatives and on the faith of which they permitted the transfer, that the remains should rest forever in tne tomb.</p>

<p>A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.</p>

<p>A PPEAL from the Twentieth Judicial District Oourt for the Parish of Assumption. Guión, J.</p>

<p>jpETITION for Writs of Prohibition and Certiorari.</p>

PPEAL from the Civil District Court for the Parish of Orleans. King, J. Action for the annulment of a sale of certain property situated in the city of New Orleans made by the State Tax Collector, and adjudicated to the State of Louisiana, on the 14th of August, 1875; and also conveyed by said Tax Collector to one N. Antonio De Monasterio on the 17th of August, 1875, by an authentic act.

<p>In case of sale being made of a minor’s property during tbe lifetime of both father and mother, the father may occupy the place of tutor pro hac vice, and in such event the law clothes him with the power of a tutor in point of fact and consequently he is dispensed from furnishing security, taking and subscribing an oath, having an inventory taken, or causing a mortgage to be inscribed against himself, and the like.</p> <p>When immovable property situated within the jurisdiction of one of the parishes of this State territorially forms the subject of a partition amongst co*proprietors, some of whom are minors domiciled in other States of the Union, the court possessing jurisdiction of the partition suit and proceedings is fully authorized to direct the proceedings of a family meeting to deliberate and advise touching the interest of minors interested who reside abroad.</p>

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

<p>The writ oí certiorari, issued' under the supervisory jurisdiction of the Supreme Court, can not be employed for the purpose of inquiring into the correctness of a judgment, when the forms of law have been followed.</p> <p>Its only province is to pronounce upon the validity of a judicial proceeding.</p>

Monroe, J. On Motion to Dismiss. Plaintiff alleged that Alexander W. Weems was the owner of a certain body of land in St. Tammany parish; that on the 28th of'August, 1890, he sold the same to William L. Wooten for six thousand dollars, the price evidenced by ten notes of the purchaser to his own order, and by him endorsed in blank, each for six hundred dollars, maturing at different dates, which notes were secured by special mortgage and vendor’s privilege on the property…

<p>When the plaintiff in an expropriation suit avails itself of the permission of the statute and deposits the amount of the verdict in the hands of the sheriff, subject to the owner’s order, it becomes entitled at once to the right, title and estate of the owner in and to the land described, in the same manner as a voluntary conveyance could do; and in this manner it can deprive an appeal by it prosecuted of a suspensive effect. And in the event of any alteration being made in the judgment on appeal the plaintiff is bound only to pay the increased allowance, or it will be entitled to recover back the surplus paid, as the ease may be.</p> <p>More than usual credit is attributable to the verdict of a jury in an expropriation suit, and it will not be set aside unless manifestly erroneous.</p>

<p>The intervenor in a suit in which the plaintiff claims less than two thousand dollars, the intervenor’s demand also being under our appellate jurisdiction, has no appeal to this court.</p>

<p>A PPEAL from the Nineteenth Judicial District Court for the Par' 1A. ish of Iberia. Voorhies, J.</p>

<p>The Supreme Court will not consider bills of exception unless signed by the judge before whom the case was tried.</p> <p>When counsel for defendant present bills of exception to the judge for his signature and the judge refuses, it is the duty of counsel to except to such refusal. Unless this is done, this court will decline to review tbé action of the judge in refusing his signature.</p>

King, J. Action is brought against the Northeastern Railroad Company, the Alabama Great Southern Railroad Company, the Cincinnati, New Orleans & Pacific Railway, the Baltimore & Ohio Railroad Company, and the Baltimore, Ohio & Southwestern Railroad Company for the sum of five thousand two hundred and forty-two dollars and sixty cents, with legal interest.

<p>Thu reasoning of the court is no part of the decree, and when the decree is ambiguous or conflicting in its terms, consistently with the authority the law attributes to res judicata, the court may construe the decree so as to reconcilerepugnancy in its expressions and m the it effective.</p>

<p>‘The executor and tutor of the minor heirs of the testator who takes charge of property of a partnership of which the deceased was a member, the other partners giving the property no attention, is not to be deemed an inter-meddler, but however his control of the property may be regarded, he acquits himself of all responsibility by proper care of the property and its faithful application in discharging the partnership liabilities. Civil Code, Arts. 2295, 2299.</p> <p>While the exercise of the right of suffrage in this State has its influence in solving the question of domicile of a party, it is not conclusive, and in the determination of such question the nature of the domicile the party is supposed to have here, the purpose that brought him to the State, the time he spends here and elsewhere, where his wife and family are, his declarations and conduct, must all be considered in ascertaining his domicile. Succession of Franklin, 7 An. 395.</p>

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

<p>Ship agents and fruit dealers having contracted for the lease of a vessel for use in their business, at a fixed price and for a definite term, deliverable about the 30th of July, 1891, are not at liberty to recede from their engagement at will, and decline to accept delivery, if tendered seasonably; and, having declined to accept delivery of the vessel when formally tendered to them on the 29th of July, 1891, they have become bound to the plaintiff as lessors in the full amount of the price stipulated in the contract.</p> <p>An effort on the part of the lessors, subsequently to the defendants’ default, to use the vessel so as to reduce their damages to a minimum, can not be viewed as an acquiescence in their abandonment of their contract, which defeats plaintiffs’ recovery.</p>

<p>A party having entered into a contract to furnish to another, at stated periods within a specified time, a given sum of money for the purpose of enabling the latter to purchase for the former cotton seed, the former has a right to look to them for the reimbursement of his outlay, as well as to rely upon them to recruit and operate his business.</p> <p>In case the latter shall decline to carry his contract to completion, and threaten to dispose of the seed he has purchased in pursuance of his agreement, because the former declines to pay his drafts after he has already overdrawn his contract, this act comes within the purview of the law applicable to fraudulent intent as justifying an attachment.</p>

<p>A charge of fraud preferred against an insolvent, under See. 1804 of the Revised Statutes, is prescribed by the lapse of twelve months antecedent to the filing of his schedules under order of court.</p> <p>The insolvent laws of this State provide a purely domestic remedy, which can be availed of only by resident creditors, and those domiciled outside of the State who come into our courts and submit themselves to their jurisdiction, by accepting the surrender by proving their debts at a general meeting of the creditors.</p> <p>It is of the essence of a charge of fraud under the aforesaid section of the statutes that the opposition should allege and the evidence prove an intention on the part of the insolvent to defraud, and injury resulting therefrom to the complaining creditor.</p>

<p>The court, under Art. 308 of the Code of Practice, is entrusted with discretion in the matter of granting or refusing an injunction, and it therefore does not follow from the fact that an injunction was granted that the court was without authority to grant a motion allowing dissolution on bond.</p> <p>Possession was not sufficiently shown on the face of the papers, and it in consequence is not evident that the court’s ruling, permitting the bonding of the injunction, was erroneous.</p> <p>The allegation that the injunction will cause irreparable injury will not take away from the judge all discretion to dissolve it on bond.</p> <p>The damages are not irreparable.</p> <p>The dissolution of an injunction, upon defendant giving bond, is a matter largely resting in the sound discretion of the court of the first instance, having power of compelling parties to reasonably speed the canse and to prevent losses sometimes occasioned by delay, in quieting the possession on the merits of one entitled to possession.</p>

<p>In an appealable case the writ of prohibition is not the remedy.</p> <p>The writ of certiorari (not in aid of appellate jurisdiction) is not the remedy to have reviewed appealable issues.</p> <p>The functions of the two writs are not enlarged when combined in one application for their issuance.</p>

<p>A PPEAL from the Eighth Judicial District Court for the Parish of ***■ Concordia. Dagg, J.</p>

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

<p>QN APPLICATION for a Writ of Habeas Corpus.</p>

<p>Tlae defendant having been indicted for the larceny of a skiff, and the proof showing that he was found in possession of the property apparently stolen recently it was competent for him, as a witness in his own behalf,tonegative the existence of felonious intent by stating that he had taken the skiff for the purpose of evading arrest under a warrant for robbery, and had carried with him a friend by whom it was to be returned to the owner.</p> <p>Such testimony is perfectly competent and admissible. It is for the jury to determine what weight such evidence is entitled to, as well as the credibility of the witness.</p>

<p>QN APPLICATION for Writs of Mandamus and Oertiorari.</p>

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

<p>y^PPLIC ATI ON for Writs of Certiorari, Mandamus and Prohibition.</p>

<p>The contention that the judge oí the lower court does not possess the qualification of citizenship can not be considered on an application for a certiorari to review the sentence or judgment of such judge. Constitution, Art. 90; C. P., Arts. 855, 857.</p>

<p>The fact that a child may not be capable oí contributory negligence, does not always render the defendant liable upon the mere proof of the act causing injury.</p> <p>No liability for sudden act of a child.</p> <p>If the defendant’s employee was not careless or negligent, it can not be rendered liable.</p>

<p>The writ of certiorari, authorized to afford relief against “ void ” proceedings of the lower court to the prejudice of the suitor, will be refused to restrain, the alleged Illegal action of the constable in executing the writ of fieri facias, the Code pointing out the methods of relief by application to the lower court and there having been no such application by relator. Code of Practice, Arts. 85T ct seq., 653,1141, Ilf 5.</p>

<p>A PPEAL from the Third Judicial District Court for the Parish oi Lincoln. Barksdale, J.</p>

<p>A suspensive appeal will lie from a judgment appointing a receiver to a corporation.</p>

The Legislature has authority to change, at any time, the number and territorial jurisdiction of the Recorders’ Courts of the city of New Orleans. Crook vs. People, 106 111. 244; People vs. Brown, 83 111. 96; Mechem on Public Officers, Sees. 465-466; Dillon on Municipal Corporations, Yol. 1, p. 140, Sec. 85; Reynolds vs. Baldwin, 1 An. 163; Art. 254, Constitution of 1879; Art. 136, Constitution of 1879.

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

<p>A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.</p>

<p>(1) In demolishing the old and building the new party wall, under the conditions fully proved in this case, the plaintiffs exercised an absolute right conferred upon them by the law. Under the maxim, “Neminzm lozdit quijure suo utitur” they were not bound to indemnify their neighbor for any inconvenience or injury necessarily occasioned by the exercise of the right. Such a work must necessarily incommode the neighbor. It can not be prosecuted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of his tenants. It may give ground for the annulment of his leases or for a diminution of rents. It may prevent the renting of his property. It may injure him in many ways. But so long and in so far as these injuries are inseparable from the exercise of ;the right, the neighbor is bound to submit to them and can claim no indemnity therefor.</p> <p>(2) But, on the other hand, plaintiffs are responsible for any exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound by every means in their power to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of their right, and to hasten by all practical means the completion of the wall and the restoration of the neighbor to the full enjoyment of his property. They were, moreover, bound, at their peril, to replace the neighbor at tho end of the work in a position equal in every respect to that which he occupied in the beginning, and to furnish him with a wall fit and adequate to support his building without injury.</p>

<p>QN APPLICATION for Writ of Habeas Corpus.</p>

<p>A PPEAL from the Third Judicial District- Oourt for the Parish of Olaiborne. Barksdale, J.</p>

<p>Confession. — The hbpe of immunity (no promise of immunity having been made) is not such inducement as to make the confession inadmissible.</p> <p>Conspiracy. — The proper foundation having been laid and the conspiracy sufficiently established, the act done by one in furtherance of the unlawful design, is, in law, the act of all, and the declaration of one of the accused, at the time of doing such act, is evidence against the others.</p> <p>Charge of the Com-t. — Although it is made the duty of the court to instruct the jury not to hase any presumption against the accused upon the ground that he has not chosen to testify; the defendant, may, in effect, waive the instruction.</p> <p>Jm-ors on Voir Dire. — The information furnished to the District Attorney about the fairness and responsibility of certain jurors was not attended with circumstances of impropriety.</p> <p>2fame of the Deceased. — The proceedings were regular and the rulings correct, except in one particular — the principal was not informed by the indictment for the murder of what person he is accused, and the accessories before the fact are charged with having feloniously counseled and procured the homicide of a person not named or identified.</p>

<p>The relator, a debtor, against whom a judgment for money had been rendered, had a hey of an iron safe in his possession containing property, the judgment creditor had pointed out for seizure. The former was ordered to produce the Key and open the safe. After he had refused to comply with the order he was committed to jail for contempt.</p> <p>Held — There was a method for enforcing the writ of fi.fa. (0. P. 762) other than by process for contempt.</p> <p>The order committing relator to prison for contempt is declared void.</p>

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

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

<p>APPLICaTION for Writs of Certiorari and Prohibition.</p>

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

<p>On the trial of a rule taken to test title on the ground that same depends upon an act of donation inter vivos which is subject to revocation by forced heirs, it should be made to appear from the pleadings that there are heirs in esse or in posse whose legitime would be affected; otherwise there would be no such real and substantial issue as this court could conclude by its decree.</p>

<p>In an action for damages the plaintiff was absolutely without a right of action for' exemplary damages on the grounds stated.</p> <p>As to the demand remaining the Supreme Court was without jurisdiction, ration# m aterida.</p>

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

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

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

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

<p>APPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J.</p>

<p>The civil district courts in this State have no authority to restrain the execution of a criminal statute.</p> <p>A court which has no jurisdiction of a cause, exceeds the bounds of its authority when it issues therein an injunction. It has no power to entertain a rule for contempt for the violation of such an injunction.</p>

<p>Tlie Oity Council o£ New Orleans lias tlie right to designate the number o£ hours in which laborers and mechanics shall work on the public works of the city; but the Oity Council has not got the power to make the violation of an ordinance, regulating the number of hours in which laborers and mechanics shall be employed in the public works belonging to the city, a misdemeanor, as this is an indictabie offence, one which the General Assembly alone can create.</p>

<p>A manufactory not operating five hands usually and customarily is not exempt Irom taxation under Art. 207 of the Constitution.</p>

<p>A motion to quash a venire must he filed on the first day of the term at which the indictment is found, or exceptional circumstances shown which rendered compliance with the" rule of law impracticable.</p> <p>The object of this rule is to speed the administration of justice, and it must be rigidly enforced, except in cases of great urgency, and when enforcement would operate injuriously to the defendant.</p>

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

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

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

<p>A PPBAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J.</p>

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

<p>It is sufficient that an indictment framed under the provisions of a statute denouncing a statutory offence should charge a violation thereof in the identical language of the statute, or that of similar import.</p> <p>An indictment charging in one count the malicious altering of the mark or brand of one hog, and in another count the lai’ceny of one hog, issuffieient in law.</p> <p>An indictment charging in one count the malicious altering of the mark or brand of a hog, the property of a certain person named, and in another count the larceny of a hog, the property of the same person named, does not necessarily denounce two contemporaneous acts forming parts of the same transaction, só as to render two distinct and separate sentences thereunder null and void. Being two distinct offences of the same generic characters same were pleadable in one and the same indictment in two separate counts.</p>

<p>The appointment of a jury commission and the drawing of a jury by it under a law which has not been promulgated are illegal, null and void.</p>

<p>While to sustain a conviction for larceny it should be proven that the goods and chattels alleged to have been stolen were feloniously stolen, taken and carried away, the indictment is not fatally defective if the word “ away ” is omitted and the meaning is supplied by other words.</p> <p>The words “feloniously steal, take and carry,” mean the felonious taking and carrying away the personal goods of another.</p>

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

<p>A PPEAL from the Tenth Judicial District Oourt for the Parish of Avoyelles. Cullom, Jr., J.</p>

<p>The Act No. 113 of 1896 which provides “ for the maimer in which bills of exception shall be taken in the trial of criminal cases” requires that the “ statement of facts ” which in case of appeal is to be attached to the “bill of exception” is to be made under orders of court and is not to be made out by the clerk of his own motion or simply at the instance of counsel.</p> <p>A bill of exception taken by a defendant to the ruling of the judge should be written up and submitted to the District Attorney and to the judge for examination and signature, the opportunity should be afforded the court of ascertaining whether the statements of the bill presented for signature are correct and for such statement and explanation by the court as to it may seem necessary.</p> <p>It is the duty of the court to give its charge in writing, if retiuested. It would be a practice not to be tolerated, that counsel failing 10 make such reques should be permitted to make through the clerk an ex parte statement as to what the judge charged and as to what objection he urged to the same as it was so declared to have been given..</p>

<p>Where a lessor claims a specific amount in damages by reason of his property having been fraudulently sold by his lessee to a fraudulent purchaser, the action is one ex delicto. O. C. 2824.</p> <p>Whether possession o£ the property he still with the defendant fraudulent purchaser or not, such purchaser having frustrated plaintiff in the legal exercise of his rights, will not be permitted to turn the plaintiff round to a tedious and possibly fruitless pursuit and search for the property, and to litigation with persons who may have acquired it from the defendant (Thornton vs. Mansker, 10 La. 127).</p>

r\N APPLICATION for Writs of Certiorari and ' Prohibition and ^ Rules for Contempt. Statement oe Case.

<p>A PPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J.</p>

<p>A PPEAL from the Twentieth Judicial District Court for the Parish * of Assumption. Guión, J.</p>

<p>Tlie discharge by the court of a grand juror not qualified to serve, affords the accused no cause of complaint, the disqualified juror not participating in finding the indictment against the accused. Wharton’s Criminal Law; Staters. Causey, 43 An. 897.</p>

Landry. Perrault, J. This case was before the court upon the following agreed statement of facts: “ Alphonse Levy died in St. Landry where he resided in February, 1896. “ He had business relations as partner, with several persons, as joint owner with others, as member of stock companies, etc. “ His partners Julius Meyers of J. Meyers & Co., and Mentor Andrus of Sunset Mercantile Company, Limited; Lazare Levy of Lazare Levy &Bros., have obtained by orders of court possession…

<p>A PPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J</p>

<p>Under the Code of Practice the justice of the peace is not required to assign and try separately from the answer, the exception on which the defendant relies. Arts. 1032 at saq., 1036.</p> <p>This Court has no po wer, under the writ of aartiorwri, to review the judgment of the lower court sustaining the plea of domicile; the writ can not be substituted for an appeal. Constitution, Art. 90; G. P,, Arts. 855 at saq.; 41 An. 180; 42 An.1090; 43 An. 177.</p>

<p>Of a suit having for its object to reduce an excessive donation mortis causa, so that plaintiff may realize out of the fund obtained, a judgment for less than one hundred dollars he o-wns against one of the heirs of the testator, this court has no appellate jurisdiction. Such a suit is revocatory in character, and the amount sought to be realized from the res, or sought to be subjected thereto, governs the jurisdiction, and not the legitime of the heir.</p>

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

<p>QN APPLICATION for Writs of Certiorari and Mandamus.</p>

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

<p>REPLICATION for Writs of Mandamus and Prohibition.</p>

A PPEAL from the Civil District Court for the Parish of Orleans. ^ King, J. Statement of the Case. Plaintiffs gave to W. P. Curtis, an auctioneer, a written authorization to sell their church property on Prytania near Conery street for the sum of forty-five hundred dollars. The defendant, Campbell, agreed to purchase the property at the price stated, and to bind the agreement made the usual deposit of ten per cent, of the price with the auctioneer.

Théard, J. Statement of the Case. On the 5th of March, 1895, the Common Council of the city of New Orleans adopted Ordinance No. 10,392, Council Series, by which “it granted to W. H. Watkins and his associates, successors or assigns, the right to construct, maintaiu and operate a single or double track railroad upon the routes and lines therein described and to use steam locomotives or other appropriate motive power; Provided, that within sixty days from the promulgation of…

Reid, J. Defendant was found guilty of murder and sentenced to death. From that verdict and sentence he appeals. The questions presented for review are embodied in three bills of exception.

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

<p>The repeal of statutes by implication is not favored.</p> <p>The two statutes are not in irreconcilable conflict. Hence, the new law does not repeal the old law.</p>

<p>The plaintiffs, owners of a Mergentlialer Linotype Machine, with which they manufacture linotypes in publishing the New Orleans Picayune, are not manufacturers of machinery within the intendment of Art. 207 of the Constitution.</p> <p>Further, they do not supply dealers and consumers; a requisite for exemption. 34 An. 597; 35 An. 747; 36 An. 347.</p>

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

<p>A purchaser at a judicial sale who, before paying the price, or entering into the possession of the thing sold, discusses illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title, may refuse to execute the purchase. 9 An. 560.</p> <p>The presumption omnia rite aota fuisse, created by the law fbr his protection, can not be invoked against him, as an estoppel, although available to throw the burden of proof upon him of the illegalities of which he complains. Id.</p> <p>The decree recognizing the widow as heir of the husband, and placing her in possession, did not, at the end of three years (C. 0., Arts. 931, 932), definitively fix her status as such, and bar the rights of the real heirs of the husband to a recovery of his succession as against the wife and her succession.</p> <p>When property inventoried as belonging to the deceased wife, held by her under such a decree, is offered on proceedings invoked by her executor at public auction and adjudicated, the purchaser at such sale may object to accept title, and show that the deceased husband left collateral heirs surviving him, and then living; in such a proceeding the question at issue is the ownership of the property sought to be forced upon the purchaser, an objection more formidable than mere regularity of proceedings.</p>

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