Volume 49 — Louisiana Annual Reports

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

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

<p>This case involves a question of fact. The defendants' car injured a child of tender years on its track, and there was an entire absence of negligence on the part of defendants’ employees. The accident was unavoidable.</p>

<p>A party who advances money to a tutor is not bound to go behind the deliberations of a family meeting, and the judgment thereon to inquire into the truth of the facts recited. Nor is he required to follow the destination of the money advanced.</p> <p>A broker acting for one party in a particular transaction and who induces another party to accept a proposal made by his principal, the partyjaeeepting the proposal can not be charged with constructive notice of facts, which if known would make the acceptance a nullity if attacked by the principal making the proposal through the agent.</p> <p>Where a tutor cultivates for minors their property and petitions for the convening of a family meeting to deliberate upon the borrowing of money for the education and maintenance of the minors, and the meeting advises the borrowing of money which is approved by the judge, the papers on their face, by such recitals, do not disclose the fact that the money to be borrowed is beyond the revenues of the minors. The tutor has tbe right to cultivate the plantation, and the net proceeds constitute the revenue. It is essential Jto cultivate the place to create this revenue.</p> <p>Where the family meeting authorizes the making of ten notes for the money borrowed payable in instalments, and twenty are made, ten being for the Interest calculated to maturity with eight per cent, interest from maturity, there is no excess of authority exercised by the tutor, when the transaction shows only the amount authorized to be borrowed was evidenced by the-sales, and the separation o£ interest from principal was, in reality, beneficial to the minors.</p> <p>The interest notes so drawn, with eight per cent, interest from maturity, do not bear usurious interest. The interest was capitalized.</p> <p>The family meeting had the authority to provide for brokerage for the negotiation of the loan.</p> <p>Tutors when they contract in pursuance of the advice of a family meeting and the judgment thereon, must confine themselves within clear and distinct instructions given. The contract gets its binding force from the family meeting. Therefore, in the act of mortgage, when the family meeting did not recommend the waiving of appraisemont, the tutor in the mortgage can not waive it.</p> <p>A foreign corporation lending money to a resident of this State, through brokers domiciled in Mississippi, do not como within the meaning of Art. 236 of the Constitution.</p>

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

<p>A railroad company having had transient cars of other companies in its use or employment regularly inspected, condemned and ordered to be sent to its shops for repairs, and had them properly tagged so as to warn its employees of that fact, has not fully discharged its obligation of due care toward one engaged in the performance of night service as a car coupler unless the tags are of such a size and character as to bring the condemnation of the cars to his attention, or he is otherwise informed of the fact.</p>

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

<p>A tax title executed in conformity with law carries the presumption of its validity. Constitution, Article 210.</p>

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

<p>Evidence, sucli as to drainage of a plantation, the location of ditches and fences, which go to show the character of a plantation as to its divisibility in kind, is receivable.</p> <p>The other matters are of fact, whether the plantation could he divided in kind.</p>

A PEAL from the Civil District Court for the Parish of Orleans _ Monroe, J. Plaintiff alleges itself to be a corporation incorporated under the laws of the State of Texas, and domiciled therein in the city of Galveston. It represents that in the month of January or February, 1894, or thereabouts, and also in January or February, 1895, or thereabouts, the Board of Assessors for the parish of Orleans assessed it for the sum of five thousand dollars as cash in bank.

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

<p>One single cause of action can not be split up ana divided into a multiplicity of suits for the purpose of defeating the jurisdiction of the court to which the action jurisdictionally belongs; and that, if it be thus divided and the multi* plicity of suits be consecutively filed in a court not constitutionally endowed with jurisdiction of the whole sum, or entire cause of action, same will be treated as one single suit, and our writ of prohibition will go to the judge of the court entertaining the suits and arrest their further progress.</p>

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

<p>‘To quash a venire on the ground of irregularity in the proceedings of the jury commissioners, in drawing a jury panel, the defendant must make his point ‘dear and certain. It will not do to make it probable merely.</p> <p>The refusal of a trial judge to grant a new trial on tlie ground of newly discovered testimony will be sustained when it appears that it was only cumulative.</p>

<p>It is the duty of the carrier to convey the passenger safely to his destination, any want of care on the part of the street car conductor resulting in injury to the passenger will make his principal responsible, but to calla boy passenger to the platform of the car about to reach his destination, the signal to stop the car given and the boy called at the i*ight time, will not be deemed negligence of the conductor charging the carrier with responsibility for injuries to the boy by falling from the platform or car steps, the fall being due to his own imprudence. Hutchison on Carriers, Sec. 558 ei seq., 665, 666 et seq.; 102 U. S. 451.</p> <p>The court distinguishes this case from that of negligence implied from allowing boys of tender age to ride on platforms of street cars. 72 Wis., p. 72; 27 Mich. 510; 75 Pa. 86.</p> <p>The carrier of passengers will not be held responsible for injury to a boy passenger caused by his own imprudence, merely because of his age, nearly ten years. Hutchison, Sec. 666 etseq.y and authorities there citéd.</p>

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

<p>It appearing from the evideuce that the president of a going corporation disposed of a portion, ©f his surplus stock of mules to a creditor, with the consent and approval of its board of directors, under the impression that the company was solvent, and with the object of tiding over a temporary financial embarrassment and without interrupting the operations of its plant, it is not liable to an attachment on the ground that the evident intent of the president and board of directors was to fraudulently dispose of the ¿property of the corporation, or to give to some of its creditors an unfair preference.</p>

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

<p>It is negligence on the part of an electric street car company in the construction and establishment of its plantío so place one of its guy wires over the track of a steam railway company as not to afford sufficient space for the latter’s trains to easily and conveniently pass without risk of danger and injury to its servants and employees.</p> <p>It is negligence on the part of the steam railway company to permit an electric street car company to so construct and maintain over its tracks a guy wire that will endanger the lives of its servants and employees.</p> <p>If an employee of the steam railway company knew or ought reasonably to have known the precise danger to him of the guy wire of the electric street car company in the course of his employment, and saw fit, notwithstanding, to continue in it, he might be held to have assumed the extraordinary risk as well as the ordinary risks of his service. But this consequence must rest upon positive knowledge, or reasonable means of positive knowledge of the precise danger assumed.</p>

<p>The recorder’s court in the city of New Orleans, in enforcing Ordinance 12,755, can not impose a greater term of imprisonment than thirty days. The irapris onment for non-payment of the line imposed, added to for violation of the ordinance, can not exceed thirty days.</p> <p>Act 47 of 1890 limits imprisonment for the violation of each offence to thirty days.</p>

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

<p>The amount of a legacy in an 'olographic testament being expressed in figures does not invalidate the donation.</p>

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

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

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

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

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

<p>A PPEALfrom the Second Judicial District Coart for the Parish o'f Bossier. Wathins, J.</p>

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

<p>When an appellee exercises'the privilege of filing a plea of prescription the party against whom it is opposed has the privilege of demanding that the cause shall be remanded for the trial of that plea.</p> <p>This court is without discretion to refuse such [application if made prior to the submission of the cause.</p>

<p>The heir who purchases at the sale, to effect the partition to complete his title . must pay the surplus of the price over the portion coming- to him when the amount due by him is fixed by the partition. Civil Code, Art. 1343.</p> <p>When such heir mortgages the property, theproces verbal of adjudication or act of sale to him showing non-payment of the price, the mortgagee will be deemed apprised that the title of the co-heirs entitled to the payment of the price so that they may get their shares, is not divested, and the mortgage will be treated as operative only to the extent of the mortgagor’s ownership of the property as heirs, not enlarged by the incomplete partition.</p> <p>The court distinguishes this case from the line of decisions that uphold mortgages acquired in good faith upon the faith of complete titles spread on the records. 1 An. 208; 4 An. 84; 45 An. 1085; 48 An. 1160.</p> <p>Nicholls, O. J., and Breaux, J., concur in decree.</p>

Taylor, J. On October 24, 1892, S. J. Zeigler applied for a respite to the District Court of Caddo, where he resided. The respite was granted, but the debtor, failing to comply with its terms, was forced to make a cession of his property.

King, J. This is a petitory action brought by the heirs of Julia Scott Ogden, deceased wife of Judge Abner Nash Ogden, for the recovery of certain property in the parish of Orleans.

<p>When a party was entrusted by another with property in one parish oí the State to be there returned, but instead of so returning the property so received in . trust, the party conceived in that parish the intention of fraudulently appropriating the same to his own use, and in furtherance of that intention took the property to another parish in the State for the purpose of there unlawfully and fraudulently selling or disposing of the same, and did there and then fraudulently dispose of the property and appropriate same to his own use, such party is legally subject to indictment for embezzlement in the parish where he receives and was entrusted with the property.</p>

A PPEAL from the Seventeenth Judicial District Court for the Parish of St. Mary. Allen, J. One who takes a mortgage from a married woman, knowing that the money loaned will enure to the benefit of the husband, or with good ground to believe that it will, has no valid claim against the wife, even though the mortgage was granted under the judicial authorization provided for in Arts. 126, 127 and 128 of the Civil Code.

QN APPLICATION for Writs of Certiorari and Prohibition. On the 17th of August, 1896, the District Attorney for the parish of Orleans filed in the Criminal District Court for the parish of ■Orleans, an information against the defendant. On the 4th of December defendant filed a motion to quash the information. He complains that the judge illegally overruled said objection.

<p>A person who raises grapes and manufactures them into wines and sells the same at his place of business, in either barroom or grocery, is liable to pay a license tax therefor. ^</p> <p>The Legislature can confer by general law on all municipal corporations in the State, an authority to collect licenses. Mayor vs. White, 46 An. 49.</p>

<p>Where there is an order for the advertisement of the application for the appointment of an administrator, and the order recites that the applicant shall be appointed if no opposition is made, if no appointment is made after this order and the administrator gives bond and makes affidavit, the bond and the affidavit will not authorize him to act as administrator. An order for the sale of property of the succession, by such administrator, is null and void, and if a party purchase succession property under the order, and has been instrumental in provoking the order with full knowledge of the irregularities in the administration, the sale will be set aside and the property returned to the succession for administration.</p>

<p>The issue is principally of fact.</p> <p>'The plaintiff complained of the violent treatment of the defendant toward her.</p> <p>She alleged one of the causes of divorce set forth in Art. 138 of the Civil Code.</p> <p>The proof sustains the averments.</p> <p>There was no alternative save tó affirm the judgment.</p>

<p>Exemplary damages will be allowed against a party wlio makes a violent assault on another and strikes and wounds him. S4 A-n. 1107.</p>

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

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

<p>The law presuming sanity, the burden is on the accused urging his insanity as defence, to prove it. Archbold Criminal Law, p. 549 et seq.; 2 Bishop Criminal Procedure, Sec. 672 et seq.</p> <p>That proof must satisfy the jury the accused was not of sane mind at the time of the act charged; they should consider all the testimony before them, whether produced by the accused or the State, and give due weight to the presumption of sanity; if on the whole testimony, and giving 10 the presumption of sanity its full operation, they are satisfied the accused was insane when the act was committed they should acquit, but if not thus satisfied they should deem the accused sane and responsible. Archbold Crim. Law, p. 549 et seq.; 2 Greenleaf on Evidence, See. 173; 2 Bishop Criminal Procedure, Sec. 675 et'seq.; Wharton’s Criminal Law, Sec. 62 et seq.; Davis vs. United States, 160 XL S., p.'469.</p>

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

<p>Intervenors in„an action of slander of title, having joined the plaintiff for the purpose of making common cause in resisting the claims of the defendant, and its attempt to sell the property in controversy pendente hte, but at the same time setting up title in. themselves adverse to that of the plaintiff, can not be said to have adopted the allegations of the plaintiff’s petition, and bound themselves by a judicial estoppel precluding them from bringing a new suit adversely thereto.</p>

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

Landry. Dupré, J. Statement of Case. Defendant was indicted for murder, found guilty of manslaughter and sentenced to fifteen years’ imprisonment in the State penitentiary. Prom this verdict and sentence he has appealed, presenting a number of bills of exception for review.

<p>A corporation organized for the exclusive pecuniary benefit of its members may be wound up by a majority of its members in their discretion whenever they deem this step to be in the interest of the whole association; provided, this is done in good faith, and not for the purpose of speculation and the intention of starting the company’s business anew at a subsequent time.</p> <p>The articles of association form a contract between the members, and when it provides for the manner of winding up the business, and no reason is shown why the mode and manner provided can not be executed, a receiver can not be appointed to the corporation on the demand of one of the members of the corporation, wlio is dissatisfied with the action of the majority.</p>

<p>^"^N APPLICATION for Writs of Certiorari and Mandamus.</p>

Monroe, J. Statement of Case. Plaintiff alleged that he had entered into a contract with the defendant Berry to build several buildings for him for the sum of eighteen thousand two hundred and forty dollars, to be paid in seven instalments, payable as the work progressed; that the final instalment of twenty-six hundred and forty dollars was payable fifteen days after the completion of the buildings, and provided no liens should then have been recorded against the buildings;…

<p>An objection o£ insufficiency of the description of the article stolen in an indictment urged for the first time in arrest of judgment will not prevail.</p> <p>UnderSec. 1017, Revised Statutes, upon objection properly made the description of the thing charged to have been stolen could, by the court, have been made to conform to the defendant’s requirements.</p>

Martin. Voorhies, J. Plaintiff alleged that on April 17, 1893, he purchased from the defendants, Broussard and Martin, certain property described in his petition (declared in the act of sale to be in the parish of St. Martin) for the price of four hundred dollars, of which two hundred dollars were paid in cash, and the balance was represented by the purchaser’s note secured by mortgage and vendor’s privilege, due February 16, 1894, with eight per cent, interest per annum…

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

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

<p>The readiness for immediate use of an article of wood which is manufactured has heen uniformly held the test of constitutional exemption from taxation.</p>

<p>A verdict of “ guilty of breaking” does not respond to tire terms and essential ingredients of any statute of this State denouncing burglary as a crime.</p>

<p>In Matter of the Exception. — The demand gave notice, definite enough, to the defendant of the grounds of action. No motion was made for a bill of particulars. Nothing indicated, during the trial, that the petition did not sufficiently set forth the cause of action.</p> <p>On the Merits. — The verdict of the jury and the judgment of the court are affirmed to the extent that the testimony shows they are correct.</p> <p>In those particulars that plaintiff’s testimony is not corroborated, the demand is dismissed as in case of non-snit.</p>

<p>ON APPLICATION for Writs of Certiorari, Prohibition and Mandamus</p>

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

<p>This decision affirms that given in Peoples Bank vs. David et als., 49 An., ante, p. 136.</p>

<p>Under the limited jurisdiction of this court in reference to appeals from the courts of city recorders, the question of the guilt or innocence of a party prosecuted under a city ordinance can not be determined on appeal from such a court; but the evidence adduced on the trial in such court may be examined for the purpose of determining the constitutionality or legality of the fine or forfeiture imposed in the ordinance, but not that imposed under it.</p>

<p>A PPEAL from the Eighth Judicial District Court for the Parish of i Concordia. Philip Hough, J. ad hoe.</p>

<p>A controversy involving the title to nine mules valued at one hundred and forty dollars each is not within our jurisdiction.</p> <p>The court exproprio motu takes notice of the want of jurisdiction, and dismisses the appeal.</p>

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

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

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

<p>A PPEAL from the First Recorder’s Court of the city of New Orleans. Finnegan, J.</p>

<p>1. It is not sufficient ground to authorize the continuance of a cause that a material witness is absent on the day set for the trial, if the statement in the defendant’s affidavit discloses that the testimony of such witness would be open to the objection of inadmissibility as hearsay.</p> <p>2. Surprise at the statement of a witness is not ground for a new trial, in case the trial judge informs tlieparty surprised that he may introduce any other witness or evidence he may have for the purpose of supplying the ellipsis of proof, notwithstanding it may tend to contradict the statement of the witness giving the surprise, and such party has failed to avail himself ol the opportunity.</p> <p>8. An application for a new trial, predicated upon newly discovered testimony, will not be regarded as having been improperly refused in case the proposed testimony is cumulative or corroborative, and the affidavit is not sworn to by the witnesses upon whom the affiant relies.</p>

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

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

<p>A foreign corporation lending money to a resident of this State, through brokers domiciled out of the State, does not come within the meaning of Art. 236 of the Constitution of the State. Mortgage Co. vs. Ogden, ante, p. 8.</p> <p>If the seized debtor obtains credit for the amount of his debt he can not object to any arrangement made by the plaintiff with the purchaser. All the debtor could require would be that the debt should be declared discharged. Bandin vs. Uoliff, 1 N. S. 166; 8 N. S. 100.</p> <p>A sale of minor’s property, through executory process, taken contradictorily with their father as their tutor, is valid, though no certificate of the amount of the inventory of the property of the minors has been recorded as required bylaw, when the father having been appointed as their natural tutor by the court, he has taken an oath as such, and letters of tutorship have issued to him. The father has the right under such circumstances to stand in judgment defensively for the minors as a tutor ad hoc, under Art. 313 of the Civil Code, even though he be not authorized to administer generally as tutor.</p>

Théard, J. Statement of the Case. The plaintiffs alleged that in making up the assessment rolls for the year 1895 the Board of Assessors for the parish of Orleans assessed them, under the head of “money in possession,” etc., in the sum of ninety-five thousand nine hundred and thirty dollars, claiming to base said assessment upon their annual statement for the year 1894.

A PPEAL from the First Judicial District Oourt for the Parish of Caddo, Land, J. Statement of the Case. William Heffner died in the parish of Caddo on the 20th day of February, 1895, having disposed of his property by what purported to be a last will and testament. The instrument was probated as such, and James Heffner, who was named therein as executor, qualified thereunder.

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

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

<p>City Ordinance. — While it is true that ordinances making certain acts the evidence of an offence committed should be strictly construed, it does not follow that they should be pronounced null.</p> <p>Act and “intent ” essentials.- — One accused of violating an ordinance to abate con- ducting lotteries as being a nuisance, is not guilty, unless there was “ intent.” To constitute crime there must be joint operation of act and criminal intent.</p> <p>The offence. — Knowingly having tickets in one’s possession in matter of conducting a lottery, or knowingly giving information of a drawing or a pretended drawing, is made the offence in the matter of conducting a lottery. The defendant by the sentence was not deprived of his property or liberty without due process of law.</p> <p>Fine of §25, or 30 days’ imprisonment is the statutory limit. — The ordinance interpreted, in its entirety, does not exceed in extent of punishment the limit imposed by the legislative act.</p>

A BPEAL from the Third Recorder’s Court of the City of New il Orleans. Thompson, J. Statement oe the Case.

<p>A partition by licitation can not be ordered against the prayer oí one of the co-proprietors, when it is shown that a division in kind is not practical, or that loss and inconvenience would b'e suffered by one of the co-proprietors by a division in kind. Where all the co-owners would fare alike a division in kind must be ordered.</p>

<p>-Courts have no power to enjoin the creditor from suing his debtor, merely because the suit is brought in another State to subject to the creditor’s demand the debt contracted here by the corporation domiciled in that State with an agent here to represent it, and because this is the domicile of the debtor.</p>

<p>A provisional account was filed by the executor.</p> <p>It was opposed by a renouncing co-heir, who was a creditor.</p> <p>The account was homologated so far as not opposed, leaving for future determination the issues raised by the opposition, carrying with it the renunciation. •</p> <p>The judgment of homologation made evident the acceptance of the succession by those heirs who had not renounced.</p> <p>On trial of the opposition the claim of opponent, as a creditor, was rejected and effect was given to the renunciation.</p> <p>•On appeal the judgment was affirmed, save as to the renunciation.</p> <p>The near kinship of the.heirs, and the fact that there was possibility of an intended waiver of the advantage and benefit resulting from the renunciation, owing to the further fact that the renunciation was hastily made, without cause (although it was not made in ignorance), the court remanded the case for further evidence upon this point.</p> <p>On this appeal, it is manifest, that the accepting heirs had aecepteti the succession before the renouncing heir had attempted to revoke her renunciation and claimed all the advantages and benefits resulting from the renunciation.</p> <p>Heirs duly cited, who do not object, but, on the contrary, practically accept the account as correct, the account being approved and homologated, inherit the rights (and charges) of the estate, including the accretion, for the benefit of the heirs who have accepted.</p> <p>One who renounces can not revoke her renunciation after her co-heirs and co-legatees have accepted the succession.</p>

Théard, J. The estate of Marx being insolvent the Public Administrator represents the creditors,’ and was a third person quoad the State National Bank. No valid pledge has been provedas against the Public Administrator, who is a third person, he representing the creditors of S. E. Marx, his estate being insolvent. 14 An. 375; 15 An. 165; 32 An. 586; 31 An. 865; Art. 3158, Revised Civil Code.

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

<p>The passenger alighting from the train, stopping at the meal station, attempting, under circumstances fully apprising him of the risk, to reach the eating house by passing so close to the baggage ear while the baggage is being unloaded as to be injured by a trunk falling on his foot, has no claim for damages, though the passage he chooses to select is used by passengers, there being another path to the eating house as convenient and direct, free from all risk or obstruction, and provided by the company for passeng-ers-to reach the eating house.</p>

<p>An injunction 'will not issue to restrain the execution of a criminal statute.</p>

<p>The blank iu the authentic act in which the amount of the debt is repeated will not vitiate the act, there being the explicit statement of the debt in the previous part of the act with the usual confession of judgment.</p> <p>When the plaintiff is the holder of all the obligations, matured and unmatured, of the mortgage debt, and under the stipulations in the act sues for the entire debt, the five per cent, attorney’s fees stipulated in the act, may be included in the writ as part of the costs to be paid from the proceeds of the mortgaged property.</p> <p>Insurance premiums may also be included in the order, when the amount is not in excess of the amount allowed in the act.</p>

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

Rightor, J. On Application por a Rehearing. Plaintiffs, a citizens and taxpayers, are utterly without interest in the subject matter of this suit; there being no showing in the petition that the ordinance complained of increases, directly or indirectly, the burden of taxation.

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

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

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

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

<p>L Title, springing from acts of sale sufficient in form to transfer immovable property, acquired ingood faith, accompanied by possession as owner, suffices-for tbe prescription of ten years.</p> <p>2. Such title held sufficient, and defendant, who bad agreed to purchase, but who refused to receive the property on the ground that title was not good, compelled to accept it.</p>

<p>The remedy through the medium of the folie enchere has been properly characterized as summary and severe, and consequently it ought to be confined to cases clearly coming within the provisions of the law.</p> <p>It is not applicable to sheriff’s sales made under writs of fieri facias.</p> <p>An order of court dissolving an injunction on bond is of that class contemplated by O. P. 566, which may cause the plaintiff an irreparable injury, in case it would operate a change of the possession of immovable property, or alter the statics of the property so as to defeat any substantial object to be attained thereby.</p> <p>Breaux, J., concurring: The injunction having been bonded, on appeal from the interlocutory order permitting the seizing creditor to bond, which the appellant and plaintiff in injunction pleads may cause him irreparable injury, he, appellant, may justly ask a hearing in support of his injunction.</p>

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

<p>The offence was prescriptible.</p> <p>An indictment which has been declared a nullity does not interrupt prescription.</p> <p>A year had elapsed from the date of the alleged crime to the day the information was filed.</p>

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

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

King, J. I. This suit is brought by plaintiffs to recover for professional services rendered in the succession of D. C. and H. C. McCan. 48 An. 145. II. The court a qua had no jurisdiction over a New York guardian to makes the estates of her wards responsible for the attorney’s fees claimed after she was authorized to remove the property out of this State.

<p>The court again affirms that the statement of the judge in signing the bill must prevail when there is a conflict between the statement and. the recitals of counsel.</p> <p>When no subpoena for a witness not 'served, and no attachment for the absent witness who has been served, are asked by the accused when his case is called for trial, a continuance is properly refused, when at a later period, (in this ease the day following that when the case was first called) the continuance is sought on account of the absence of the witnesses.</p>

<p>The city charter restricts the compensation o£ the city attorney to his salary and excludes the charge by him for services in a suit brought against the city to revoke a legacy for the benefit of the poor. Charter, Act No. 20 of 1882, Sec. 27.</p>

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

<p>A vendee, seeking practically the annulment of a contract of sale, cannot ask restoration of the price without proposing restitution of, or accounting for, the property bought.</p> <p>An agreement entered into, with a third person, by members of a firm, on its. dissolution, whereby each binds himself individually to the obligations set forth, and one of the members subsequently violates the agreement, the others, formerly his copartners, are not liable.</p>

<p>The principle resting on national comity that gives to the law of the domicile of the owner extra-territorial effect with respect to his movable property, does not exact that our courts should give effect to the foreign law creating a title to movables suhjeat.to .the administration of a succession in our courts, when that title is repugnant to the text and spirit of our law of inheritance, placing as the foreign law does the natural child as au heir on the same footing as the brothers and sisters of the deceased, and when the court is called on to enforce such foreign law to the prejudice of the Louisiana heirs. Story’s Conflict of Laws, Sees. 18, 23,25, 550, 388, 362; 2An. 599, 603; 11 An. 239; 10 An. 772; 5N.S.596;. 2 N. S. 93.</p>

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

<p>APPEAL from the Oivil District Court for the Parish of Orleans. King, J.</p> <p>Cited: Kentzlervs. American Mutual Accident Association, 60N. W. 1002; Anoka Lumber Co. vs. Fidelity and Casualty Co., 65 N. W. 354; Leman vs. Manhattan Life Ins. Co., 46 An. 1189; May on Insurance, Vol. 1, par. 325; Malory vs. Travellers Ins. Co., 47 N. Y. 410; 7 An. Rep. 410; 133 111. 556.</p> <p>Cited: Sherwood vs. Ins. Co., 10 Hun. (N. Y.) 593; Railway Ass. Oo. vs. Burwell, 44 Ind. 464; 127 U. S. 661; Merritt vs. Preferred Accident Ins. Co., 98 Mich. 338; Tennant vs. Travellers Ins. Co., 31-Fed. Rep., p. 322. .</p>

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

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

<p>The articles of the Code relative to the payment with subrogation have no reference to the purchase of promissory notes secured by mortgage. C. C., Arts, 2160, 2161; 9 Bob. 476; 13 An. 273.</p> <p>The sale of the note secured by mortgage and privilege carries as accessories the privilege and mortgage. O. C., Art. 2615, and 2 La. 576; 13 An. 273.</p>

<p>The specific performance of a contract will not be ordered when compensation can be made in damages. Nor will it be decreed when the contract requires the doing of an act solely within the volition of the obligor, such as the signing of a lease, or the appointing of an arbitrator, or the exercising of the option to purchase property.</p>

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

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

<p>An application for time to file a rule for new trial is properly refused when based on an affidavit of newly discovered testimony only contradictory, in its character, and on other testimony when no diligence is shown to have been used for obtaining the testimony on the trial.</p>

<p>A party who is proceeded against in a State court by a receiver in a Federal court for the payment of rents due, may plead in compensation and extinguishment thereof, a sum said receiver has previously collected in excess of what he was entitled to have received.</p>

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

<p>The District Court had jurisdiction over the case. This court, upon an application for a writ of habeas corpus, declined to oust the District Court of jurisdiction.</p> <p>The court is without authority in these proceedings to determine whether the jury was discharged with cause sufficient, or without cause. The law presumes that there was sufficient cause until the contrary appears. The writ of habeas corpus is not the proper remedy to bring up the questions involved for review. It was within the power and duty of the District Court to discharge the jury for gross irregularities which would have vitiated the verdict. The irregularities charged can not be reviewed on habeas corpus. For the purpose of discharging the applicant, the court will not on habeas corpus consider the sufficiency of facts relied on as evidencing former jeopardy.</p> <p>This court may inquire, under a writ of habeas corpus, into the jurisdiction of the court over the one condemned, but cannot correct errors in proceedings and vacate an order under which the accused is held for trial. *</p> <p>In a ease presenting similar issues, this court discharged the rule nisi and denied the application. 45 An. 816; Church on Habeas Corpus, Sec. 254; 60 H. Y. Court of Appeals, 570.</p> <p>Our statutes have not enlarged the functions of the writ as interpreted under the common law. The assignment of errors does not add to the functions of the writ of habeas corpus.</p>

<p>A PPEAL from the Second Judicial District Coart for the Parish of Bienville. Watkins, J.</p> <p>Statement of the Case.</p> <p>E. C. Drew presented to the District Court for Bienville parish a petition to which was annexed a sworn list of his assets and liabilities, with names of his creditors, praying that a meeting of his creditors be called for a day fixed, and that after due proceedings there be judgment granting him a respite for one, two and three years from date. Upon this petition an order was granted for a meeting of creditors to be held on the 28th of February, 1896, before the clerk of the District Court, ex-officio notary public. The clerk was directed to give all legal notices. J. A. Dorman was appointed attorney for absent creditors, and judicial proceedings against the person and property of petitioner were ordered to be stayed.</p> <p>The meeting of creditors ordered was held and the proces verbal thereof returned on the 8th of May, 1896. The notary closes the proces verbal with the statement that the total amount of liabilities as shown by list of liabilities on file was twelve thousand four hundred and eighty-five dollars. That the number of creditors was one hundred and nine; that out of this number eighty-four appeared either in person or by proxy; appeared and voted, representing in amount twelve thousand five hundred and seventy-one dollars.</p> <p>That fifty-four of said votes, representing in amount seven thousand five hundred and eighty-one dollars, voted for “granting the respite,” and the balance, or remaining votes, thirty in number, representing the amount of four thousand nine hundred and ninety dollars, voted “ against granting the respite.”</p> <p>That the majority of votes cast in number and amount was in favor of the respite as prayed for.</p> <p>On the 15th of May, 1896, twenty-eight of the creditors who had voted against the respite united in a petition to the District Oourt opposing the homologation of the proceeding, assigning as reasons:</p> <p>1. That there was no legal order, for the same. That the one granted was inadvertently granted by the court without requiring the plaintiff, Drew, to make a proper legal showing.</p> <p>2. That the schedule presented was not sworn to and there was no legal affidavit to procure the order of court.</p> <p>8. There was no legal and proper schedule presented, and fictitious values were placed thereon. All in fraud of the rights of opponents.</p> <p>4. The parties named as creditors were not all creditors, and a great many of them were not creditors for the amount placed on the list. That there were names placed on the list in order to procure them to vote for the respite.</p> <p>5. The showing made by the debtor was false and fraudulent, giving fictitious values to his property to make a showing of solvency to procure votes in favor of the respite.</p> <p>6. The debtor is hopelesly insolvent and not entitled to a respite under the law.</p> <p>7. He has made false and fraudulent offers of payment to some of, his creditors to procure their votes in favor of the respite, and has induced them to do so by promising to pay their debts in preference to the others, or to pay fifty cents on the dollar in cash as soon as the respite was granted, thereby purchasing votes in favor of the respite, all in fraud of the rights of opponents.</p> <p>8. Applicant, shortly prior to the filing of his pretended schedule, fraudulently disposed of a great portion of his property and converted the same into money or evidences of debt, with the view of placing same beyond the reach of his creditors, and has not accounted for samé in his pretended schedule — all in fraud of the rights of opponents.</p> <p>9.' Applicant has voted arid caused to be voted for his respite fictitious claims through which false and fictitious votes the notary returned his prooes verbal with a majority in number and amount of creditors as being in favor of the respite to the fraud and injury of opponent.</p> <p>10. That just prior to the filing of the schedule Drew colluded with and procured attachments to be run on his property, based on fictitious claims and claims secured by mortgage and personal securities, collaterals, pledges, etc., for the purpose of forcing his honest creditors into a compromise of their claims at a large discount, and seeing that said attachments would be set aside and dissolved as in fraud of his real creditors filed this petition for a respite for the purpose of getting his property out of the jurisdiction of the court and the reach of his creditors, and especially of opponents.</p> <p>11. That Drew fraudulently procured votes for his respite by promise of cash settlement in case his respite, was granted by paying the expenses of getting up the affidavits and powers of attorney of the creditors to vote for the respite and by giving security to the creditors voting for the respite and by statements made on circulars and private letters sent out by himself and his attorney, giving a false and fraudulent statement of his financial condition.</p> <p>12. That Drew obtained credit from opponents Preston & Stauffer to the amount of his indebtedness to them, by making personal statement to them of his assets and liabilities, showing him worth, net, twenty-seven 'thousand three hundred and fifty dollars, said statement having been dated October 10, 1895, which statement was false and fraudulent, Drew being at that time in an embarrassed condition, if not insolvent.</p> <p>13. That he obtained credit from all of the opponents by means of statements made by him to the commercial agencies (Bradstreet and Dun), showing his assets above all liabilities to be about twenty-three thousand three hundred dollars, which was false, said statement being made during the month of October, 1893.</p> <p>14. That it would be against good morals and public policy to permit him to obtain their goods in the fraudulent manner set forth, and then force them to submit to his respite of one, two and three years voted .by friendly creditors.</p> <p>15. That a majority of the'bona fide creditors in number and amount voting in said meeting was against the granting of the respite — that the Bank of North Louisiana was not a creditor of Drew at the time of the filing of his schedule, or if a creditor for only a small amount. That the claims voted by Mrs. Hobbs, Tooke and Atkins and Windman were not just debts; that they had been extinguished by payment or prescription, if they ever existed. They prayed that the opposition be sustained and the orders granted be set aside. That the meeting of the creditors and proceedings thereon be annulled and set aside. That the debtor be debarred from claiming a respite and he be adjudged insolvent and the respite proceedings be converted into insolvency», proceedings, a cession of property ordered and a meeting of creditors be called to elect a syndic.</p> <p>Plaintiff moved to dismiss the opposition on the ground (1) that opponents were different firms and individuals located in the different States, having no business in common, and their opposition could not be joined or consolidated in one action; (2) because it was filed at Chambers without any order; (3) because the allegations were too vague to give proper notice; (4) it showed no cause of action.</p> <p>After trial the court rendered judgment sustaining the opposition filed and disallowing the respite asked for; the court further decreed that the applicant, E. C. Drew, was insolvent and ordered him to make a surrender of his property within ten days. It ordered that a meeting of his creditors be held for the purpose of electing a syndic and attending to such other matters as might be necessary in the premises, such as providing for the sale of property, fixing terms of sale, etc. Attorney for absent creditors was appointed and B. M. Manning, sheriff of the parish of Bienville, was appointed provisional syndic. The applicant, Drew, appealed devolutively from the judgment.</p>

<p>APPLIOATION for Writ of Mandamus.</p> <p>Article 246, C. P., provides: “ The party thus made a party to the suit is termed a garnishee.”</p> <p>Article 245, G. P., provides: “A creditor may also annex to his petition interrogatories on facts and articles to be answered categorically under oath by such garnishee.”</p> <p>Article 851, O. P., provides: “The party propounding the interrogatories may require' the party interrogated to answer in open court, and in his presence on the day appointed to that effect by the judge, if the party interrogated reside in thp parish where the court holds its sittings.”</p> <p>It is plain that as the garnishee under Art. 246 of the O. of P. is a party to the suit, and as interrogatories on facts and articles, under Art. 247 of the C. of P., may be propounded to the garnishee, and as under Art. 851 of the C. of P., the party interrogated on upon interrogatories on facts and articles may be required to answer in open court that the garnishee made a party may be likewise required to answer in open court.</p> <p>The ease of Petway vs. Goodin, 12 R. 445, the court decides expressly “ that a garnishee can b.: required to answer in open court, both in case of attachment and in case of garnishment upon fi. fa.</p> <p>In the case of Petei’s vs. Gibson, 11 An. 97, the x’eason of the law is given, to-wit: That the party has a right to interrogate a garnishee as a witness in open court in the presence of the parties and the judge, the right to compel him to answer in his own language.</p> <p>In the case of Derbes vs. Deeuir, 5 R. 491, the court held: “That the answers of the garnishees were properly required to be in open court, if the plaintiff so desired it.”</p>

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

<p>A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.</p> <p>Succession of Hossa, 37 An. 841.</p> <p>Succession of Yollmer, 40 An. 594.</p> <p>■“ Succession of Forstall,” 25 An. 430, and “ The matter of the Tutorship of Ellen Wilson Upton,” 16 An. 175; to Art. 256 (274) of the Civil Code; to Succession of Gorrison, 15 An. 27; Succession of Hawkins, 35 An. 591; Nugent vs. Stark, 34 An. 631, and “In re Fazende & Seixas praying for a monition,” 35 An. 1145.</p>

<p>'The owner who ships under a bill of lading and hands the bill to his factor may be said to have more or less connection with that instrument when it is subsequently advanced by a third party as the basis of rights predicated by him upon possession of the bill by the factor, particularly if the delivery of the property is directed to be made to the factor or his order. If after.the cotton has been received and the bill of lading therefor has fully carried out its purpose of delivery, the factor stores the cotton, takes a receipt for the same in his own name from the warehouse and makes use of the receipts as a basis for -credit, the warehouse receipts evidence a contract with which the owner is disconnected; it is an original transaction between the factor in liis own name and the proprietors of the warehouse to which the owner is not“ a party” though he has an interest in the subject matter. It is clear that any contract by which one person attempts to diyest another of his property, without the owner’s consent, express or implied, or through due process of law, is without force. C. C., Art. 1889. The doctrine which prevails in France that the possession and title of movable property go together (C. N.,.Art. 2279) has never prevailed in this State, and it certainly was not the intention of the lawmaker in enacting Act No. 156 of 1S88 to introduce it now. It was never contemplated by the lawmaker that the mere fact that a factor should be the holder of a warehouse receipt, taken out by himself in his own name, should confer upon parties the right to deal with a factor, and to absolutely ignore, under full protection, the relations which he has to the property and to its owner.</p> <p>Where the payee of a note after having discounted it in bank wider his endorsement, takes it up on the first day of grace, the effect of the payment is to replace in the endorser the title to the note which had passed to the bank under the endorsement and enable him to reissue the note as a collateral as far as third persons are concerned as if it had been transferred by him to them for the first time. A note is not overdue as to the equities until the days of grace have expired and the equities (in the absence of special circumstances) are cut off until then.</p> <p>Ok Api’licatiok fok a Reheaking.</p> <p>In this case there was no entrusting by the owner of the factor with the indicia of title.</p> <p>From an early period the courts of this btate have enforced the principle that the factor could not, for his own debts, pledge the property of his principal, and that such pledge was no impediment to a recovery by the owner.</p>

<p>In an action between an executor and persons who held in their hands succession funds which they had collected, for abalance which the former claimed for the succession, defendants set up in defence an indebtedness as due them by the succession for the amount of certain notes subscribed by the deceased. Deducting the full amount of said notes from the amount in their hands, they prayed that the court order the plaintiff to accept the resulting balance, in full settlement and liquidation of all claims of the deceased or his succession against respondents, and for a judgment in their favor rejecting piaintiff’s demand. The executor had, by anticipation, attacked the notes, claiming that they evidenced no personal indebtedness whatever by the deceased, and were good against the fund only up to an amount specified. Judgment was rendered in favor of the succession for the balance as claimed by the executor, and the judgment was satisfied. Defendants subsequently opposed the executor’s account, claiming that the judgment had determined simply the extent to which the funds in their hands stood secured by pledge and right of detention, and not the extent of the liability of the succession on the notes. The court sustained an exception of res judicata, pleaded by the executor, based on the judgment.</p> <p>Held, the liability of all parties on ail claims between them was fixed and determined by the judgment.</p>

<p>APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. G. L. Dupré, J.</p>

Helena. Reid, J. The object of a recognizance is not to enrich the treasury, but to combine the administration of justice with the convenience of a party accused but not convicted. 6 An. 257; 6 An. 282; 14 An. 446; 10 An. 285. Where the recognizance has ripened into a judgment the principal is fairly and truly tried and acquitted, the sureties on enjoining the execution against them will be relieved. 8 An. 489; 10 An. 235.

<p>APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.</p> <p>Statement of the Case.</p> <p>The plaintiffs in this suit are Edmond H. Chadwick and Mrs. Elizabeth Johnson (widow of William S. Gilman) ; the defendants are the Gulf States Land and Improvement Company, and Domingo Negrotto, Jr.</p> <p>The petition alleged on behalf of Mrs. Gilman that she was, on and after the 21st of March, 1879, and up to the 3d of November, 1891, the owner of certain described property; that she sold said property on the 3d of November, 1891, to Edmond H. Chadwick, and transferred to him all her right, title and interest in and to the rents and revenues of five houses in said property, from July 27, 1889, to November 3, 1891, and she represented in the act of sale that she was seized of said premises in fee simple and had a right to convey the same, and promised and obligated herself to deliver possession thereof to her vendee; that since the 21st of October, 1891, and until the present time, Domingo Negrotto, Jr., and the Gulf States Land and Improvement Company had illegally and wrongfully taksn possession of said property and had deprived the plaintiffs of the possession, use and benefit of the same and continued to keep said possession and claimed to be the owners of the same; that they had collected the rents of said property, which had been and were still of the value of twenty dollars per month; the rents they so collected from 27th July, 1889, to November 3, 1891 (between the date they took possession and the date when Mrs. Elizabeth Johnson transferred the property to Chadwick), being five hundred and sixty-four dollars and sixty-two cents, and those from November 3, 1891, to September 6, 1896, being one thousand one hundred and sixty dollars. The petition alleged, in behalf of Chadwick, that by the act of sale from Mrs. Elizabeth Johnson (Mrs. Gilman) to him she obligated herself to deliver said property to him and to put him in possession thereof; that he acquired the property as stated in the petition and acquired also the right, title and interest in and to the rents and revenues of the five houses on the property from July 27, 1889, to November 3, 1891, the day of his purchase, which rents then amounted to five hundred and sixty-four dollars and sixty-two cents; that Domingo Negrotto, Jr., and the Gulf State Land and Improvement Company were further indebted to him for the fruits, rents and revenues of said property from the day he purchased it (3d November, .1891) until they should deliver possession to him at the rate of twenty dollars per month, the sum due up to 3d September, 1896, amounting to one thousand one hundred and sixty dollars; that he had been damaged by the wilful, wrongful, illegal deprivation of his property and the violation of his legal rights in the sum of one thousand dollars.</p> <p>The allegations made by Mrs. Elizabeth Johnson were adopted and reiterated. In view of the premises, plaintiffs prayed that there be judgment, recognizing that Mrs. Elizabeth Johnson (Mrs. Gilman) was the owner of the property on the 21st of March, 1879, when she purchased it from Thomas Pickles, up to November 3, 1891, when she sold it to Chadwick; that Chadwick isvnow the owner of the same; that judgment be rendered in solido, decreeing that the defendants have no right, title or interest in said property, and ordering them to deliver possession thereof to petitioners and pay them the sum of five hundred ond sixty-four dollars and sixty cents, with legal interest thereon from November 3, 1891, and the further sum of one thousand one hundred and sixty dollars, with legal interest from September 3, 1896 (date of judicial demand), and the further sum of twenty dollars per month, until they deliver possession of said property, and the further sum of one thousand dollars with legal interest from judicial demand.</p> <p>The defendants excepted to plaintiff’s demand.</p> <p>1. There was a misjoinder of parties, plaintiff and defendant, in the suit.</p> <p>2. Plaintiffs’ petition disclosed no cause of action.</p> <p>3. Plaintiffs were estopped from prosecuting the suit for the reason that in the case entitled “ Gulf States Land and Improvement Company vs. E. H. Chadwick, No. 34,819 of the docket of the Civil District Court, Division ‘ C,’ ” subsequently appealed and affirmed by the Court of Appeals for the parish of Orleans, all the matters and things herein involved were finally decided and the judgment rendered in said cause constitutes the authority of the thing adjudged and operates as a perpetual bar to plaintiffs’ demand.</p> <p>4. That in the case of E. H. Chadwick vs. Gulf States Land and Improvement Company, No. 12,103 of the United States Circuit Court for the Eastern District of Louisiana, and No. 405 of the United States Circuit Court of Appeals for the Fifth Circuit and Eastern District of Louisiana, all the matters and things herein involved were finally adjudged against said plaintiff, and defendants pleaded said judgment so rendered in said cause as res judicata to plaintiff’s demand; that the court was bound to give effect to said judgment so rendered by the United States Circuit Court of Appeals and recognize the validity of the same under the Constitution and laws of the United States. The District Court sustained the plea of “ res judicata” and rejected the demand of the plaintiffs. They appealed.</p>

<p>Attorneys at law are subject to the license tax lor practising their professions imposea by municipal authorities and by the State. The license authorizing them in the first instance to pursue their profession, is an evidence of character and capacity, and carries with it no exemption from taxation by license tax. The profession has no special privilege from that of other occupations.</p> <p>Act No. 119 of 1882 authorizes municipal corporations to avail themselves of the remedies provided by the State for the collection of State taxes. Act 150 of 1892 authorizes any court having jurisdiction of the amount to issue a rule against the person owing a license tax, accompanied by an injunctionrestraining the carrying on the occupation until the license tax is paid, and to punish for contempt a violation of the restraining order.</p> <p>The Second City Court, therefore, had jurisdiction of the amount and was empowered to issue the rule, give judgment for the amount, issue the restraining order, and to punish as in contempt its violation.</p>

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

<p>Parol evidence shall not be received to prove any acknowledgment or promise to pay any debt or liability, in order to take snch debt or liability out of prescription or to reverse the same after prescription has run or been completed. Art. 2278, C. C.</p> <p>The prescription of three years, formerly applicable to all open accounts, could not, under a law suchas now exists (in respect to the kind of evidence needed to establish an interruption or suspension of prescription), have been avoided by showing a verbal acknowledgment of the account by the deceased debtor and then converting the open account into an account stated. Thepres.ent case fully comes under the decision in Succession of Gaines, 45 An. 1424.</p>

<p>Transcript of appeal filed after the expiration of return day will be dismissed.</p>

<p>APPEAL from the Oivil District Oourt- for the Parish of Orleans-King, J.</p> <p>On Motion to Dismiss.</p>

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

<p>An adjudication, by a tax collector at public auction in pursuance of Act S2 of 1881, in the enforcement of taxes for years prior to 1879, against the assessment of which the absence of no jurisdictional prerequisite has been urged, passes to the adjudicatee an irredeemable and unencumbered title.</p>

<p>Local Option.</p> <p>The towns and cities may call an election within their respective limits to decide as to local option, one year alter an election has been held under police jury ordinance as to the same matter.</p> <p>Scope op Paeish Action.</p> <p>The parish action controls the lesser political division within the parish, as if the election had been held by authority of the town or city, but it can have no more effect than if the election had been held under the authority of the city or town.</p>

<p>In case one’s methods of teaching has been unduly criticised by a rival pretending to superiority, color is given to the excuse of making a reply; and such erimnations and recriminations, if kept within reasonable bounds, are not libellous. At least, the participants are inpari delictu.</p> <p>An anonymous publication, made in the form of a printed pamphlet, which purports to be a reply to another communication, the authorship of which is not furnished, can not be said to ba libellous per sc, as allegation and proof are required to connect such pamphlet with the complainant.</p>

<p>The creditor of the city, whether by contract or otherwise, can not, because he is left off the budget, enjoin an appropriation on the budget for a legitimate municipal purpose, to which appropriation he conceives he is entitled under his contract, but the city treating the contract as void. 2 High on Injunctions, Sec. 1402 et seq,</p> <p>HítijidaiíiMs is the remedy to compel the performance of simple ministerial duties imposed by law, but the writ can not be used to enforce disputed claims alieged to arise under contract, the validity and performance of which are denied and controverted in a litigation when the mandamus Issues. C. P., Art. 829 et seq.; High on Extra Hems., Secs. 25, 321, 339; 16 S, and R.,p. 17.</p> <p>Appropriations on the budget of the city of New Orleans, proposing payments out of the revenues of the year of debts and liabilities of previous years, are illegal, and payments under such appropriations may be enjoined by any party in. interest. City Charter, Act 20 of 1882, Sec. 64; Act No. 45 of 1894, Sec. 93; 43 An. 464; 39 An. 938.</p> <p>Breaux, J., concurring: Weighing the extent of the injury which the relator will suffer if the order be withheld, and. the consequence to the opposite party if the order be granted, in my mind, within its discretionary power, the court can grant or withhold the relief sought, according to the exigencies in the case, particularly for the reason that the writ of injunction applied for must serve, as far as possible under the circumstances, to safeguard whatever right the relator may have.</p> <p>A court may grant a writ of injunction to preserve a right in statu quo for a limited time, in order that it may be litigated.</p> <p>The city should not be enjoined from paying a needful amount to perform a task of greatest importance, nor should the city be compelled by writ of mandamus to withhold the whole amount budgeted for to meet the expenses of removing the garbage.</p> <p>Watkins, J., dissenting — Blanchard, J., concurring in the dissent: The controversy is one for the control of an existing appropriation in the annual budget for the removai of garbage during the current year 1897, the relator claiming under a contract, the city disavowing the contract, claiming for itself.</p> <p>If the mandamus is not peremptory the city, through the Department of Public Works, will [be necessarily excluded from the use of the garbage fund when collected; if denied, the garbage company will be forced to discontinue its collection.</p> <p>The city has not the right, summarily, to displace a contractor in the manner proposed, and it is equally evident that it can be coerced to perform a plain ministerial duty of budgeting relator’s claims as provided in the ordinance.</p>

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

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

<p>A PPEAL from the Ninth Judicial District Coart for the Parish of ft De Soto. Hall, J.</p>

<p>A contractor is responsible for the damages resulting from his failure to complete the work.in time.</p> <p>The price was due, less the damages.</p> <p>There was no negligence or failure of the defendant to take reasonable precautions to reduce the damages.</p> <p>The operations usual in saving a crop of cane were those adopted in matter of grinding defendant’s cane.</p> <p>The evidence is indefinite; the amount and value of the unfinished work was not shown. We are not satisfied that justice requires a disturbance of the judgment of the lower court.</p>

<p>The will in controversy was written on a printed heading.</p> <p>An olographic will must be entirely written, dated and signed by the testator.</p> <p>However conclusive the evidence that it contains the dispositions of the testator, it is none the iess null, unless the essential formalities are complied with.</p> <p>The date includes the year, month and day, any one of which being missing is fatal to the yalidity of the will.</p> <p>"The document attests the “ printed heading” and shows conclusively that the date was not written by the testator; the testimony of witnesses (whose attention, it appears, was not called to the printed headlines) “• that the will was written by the testator” will not overcome thefaetmademanifest by the testament itself, that it was not entirely written by the testator.</p>

<p>The occupation of carrying clocks in a one-horse vehicle and selling them to those disposed to buy, subjects the party pursuing the occupation to the peddler’s tax prescribed by the eleventh section of the Act No. 38 of 1894, not to the tax of traveling vendors imposed by the Act No. 150 of 1890.</p>

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

<p>1, When mortgage creditors with a common interest,whose aggregate claims exceed two thousand dollars, unite in a suit to have canceled, on the ground of simulation, a mortgage exceeding two thousand dollars, the Judgment ia their suit is appealable. 2 An. 984.-; 43 An. 1041; 2An. 908; 35 An. 206.</p> <p>2. The sheriff’s act of sale stating compliance by the purchaser with the terms of of sale, spread on the public records, will protect the bona fide mortgagee who acquires his mortgage for value from the recorded owner on the faith of his title. This case is distinguished from that of the People’s Bank vs. David, recently decided.</p> <p>3. The members of a planting firm acquiring immovable property become joint owners, and a mortgage by one, though using the firm name, will bind only his half of the property. O. C., Art. 2870, par. 5; 3 La. 497; 10 La. 420; 17 La. 596; 47 An. 346.</p> <p>4. A mortgage can not be established by parol, nor will a ratification in writing relate backso as to give that validity to the prejudiceof other creditors to the alleged mortgage it did not possess when executed. Civil Code, Art. 3365; 2 La. 572.</p> <p>5. The clerk of the District Court, ex-officio parish recorder, is liable for the loss arising from his omission to record in the book of mortgages and privileges an. act of sale placed in his hands, giving rise to the vendor’s privilege and reserving a mortgage for the unpaid portion of the price. Constitution, Art. 121; Revised Statutes, Secs. 3550, 3580, 3066, 3091; C. C. 2231.</p>

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

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

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

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

<p>The vendees, while consummating the sale and affecting payment of the price* stipulated, as a condition, that they should be held harmless in ease an attachment was sustained.</p> <p>The agreement between the vendors and vendees covered all expenses incurred by the vendees in protecting their purchase, including attorney’s fees.</p>

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

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

<p>The legal and moral duty due hy the parent to his daughter, and the solicitude hy which he should always be prompted for -her future, give rise to a “ qualified privilege,” on occasions, he thinks, his advice and admonition are required.</p> <p>The tie between father and daughter, and the usual sympathy among the friends of both (to whom the report against the plaintiff who sought her hand was repeated) is such that the truth of the report was not the issue, hut whether the father honestly believed it to be true.</p> <p>The utterances of the father on such an occasion are not actionable merely because not true, hut express_malice must be shown.</p>

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

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

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

King, J. McBnery, J. The judgment of the lower court was reversed on .appeal on the ground that the plaintiff in rule was without interest .in the matter. On the Rehearing.

<p>A statute addressed, to “ persons, firms or corporations acting under any parish or city ordinance or State law,” will not readily be presumed to include the city of New Orleans, which, if intended to be embraced, it is reasonable to suppose, would have been specified, and not introduced under the general words, “ acting under any State law.”</p> <p>While the city is subjected to legal restraint and the supervision of the Board of Health in respect to the use of the Mississippi river, the court holds that the Act No. 14 of 1877, extra session, prohibiting the casting of offal in the river, was designed to apply to “ persons, firms and private corporations.”</p>

<p>The constitutionality of the Act No. 49 of 1882, providing the method of creating municipal corporations, and the organization of the municipal corporation under the act, can not be attacked collaterally by the defendant, resisting a tax claimed by the corporation. R. S., Sec. 2595; 46 Ill. 9; 15 American and Eng lish Eney. of Law, p. 198.</p> <p>Under the jurisdiction of this court of eases involving the constitutionality or legality of taxes levied by municipal corporations, the questionof the constitutionality of this act of 1882, or whether its statutory requirements were fulfilled in organizing the defendant corporation, are not within our jurisdiction.</p> <p>The court again affirms the competency of legislation conferring on municipal corporations the power of taxation. 1 Dillon on Municipal Corporations, Ch. 19, Sec. 590; 46 An. 449 ; 49 An. 236 (Town of Mandeville vs. Baudot).</p>

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

JKing, J. STATEMENT OP THE CASE. Relator alleged that he had obtained an absolute judgment against the city of New Orleans (affirmed by the Oourt of Appeals), in the sum of sixteen hundred and fifty-eight dollars, with five per cent, interest thereon from April 14, 1894, and costs of suit.

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

Théard and Ellis, J. J. These appeals, from different divisions of the Oivil District Court of the parish of Orleans, were submitted upon the same oral argument and the same briefs filed, and considered consolidated in the Supreme Court for determination. David C. McOan died in the city of New Orleans in 1898, leaving a last will and testament. This will was probated, and Harry H. Hall qualified thereunder as testamentary executor.

Bightor, J. On the 11th of January, 1897, Mrs. Louise Dumoulin, wife of Dr. ■Gaudet, suggested to the court that she was separate from bed and board from her husband by judgment of court; that on the 18th of February, 1896, an order was issued by the court, decreeing the sale of certain real estate described therein; that the sale was made after due advertisement pursuant to the order; that the property was adjudicated to T. Gaudet, acting for Dr. O. A. Gaudet (her husband)…

<p>This suit was brought to compel the defendant to take the title tendered.</p> <p>Many years prior to the adjudication of the property the tax deed pleaded by the defendant as having the effect of invalidating the title tendered, had been canceled and erased from the record.</p> <p>A rule on an administrator to cancel a tax title is as effective as any other process, if those in interest remain acquiescent for years after the judgment was rendered on the rule.</p> <p>It not appearing of record that there was an adverse title, the title tendered was legal.</p>

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

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

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

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

<p>1. Under the indictment for shooting with intent to murder, the jury may convict of shooting with intentto hill, wharton’s Crim. Law, See. 3S4; Acts Nos. 43 and 44 of 1890 ; 6 An. 289; 28 An. 434; 30 An. 1170.</p> <p>2. Under such an indictment the verdict “guilty with intent to hill” will be understoood as referring to that offence, though the indictment charges the crime of higher grade.</p>

<p>In prosecutions for having committed the offence of ‘"wounding less than mayhem,” the statute has dispensed with the common law “ feloniously,” and has substituted the words “wilfully and maliciously.” State vs. Watson, 41 An. 598.</p> <p>The minutes were properly corrected and made to conform to facts.</p> <p>By the correction made, it was shown that proper leave had been given to file the information offered.</p>

<p>Tlie power given to tlie District Courts bythe Act No. 129 of 1896, to disbar attor neys for professional misconduct, is not dependent upon or affected by the test of the pecuniary amount involved.</p> <p>The disbarment of the attorney for misconduct in his profession is of the class of inherent powers of courts, recognized by this act of 1896, and the penalty for such misconduct prescribed.</p> <p>If See. 120 of the Revised Statutes is to be deemed in force, and to require a criminal proceeding to disbar the attorney for misconduct, the Act No. 129 of 1896 is to be accepted as furnishing besides a civil proceeding in the District Courts for the disbarment of the attorney.</p> <p>It follows that the Civil District Court has jurisdiction under the act of 1896 of the proceeding against relator to disbar him for the alleged professional misconduct.</p>

<p>1. The dissolution of the sale for non-payment of the price will not affect the mortgages created hy the purchaser; except to subordinate the mortgages to the right of the unpaid vendor to dissolve the sale. Civil Code, Arts. 2012, 3301.</p> <p>2. Hence, if in dissolving the sale the vendor is condemned to restore the value of the improvements on the property, the fund arising from the improvements in excess of the price and revenues to which the vendor is entitled w'ill be subjected to the mortgage created by the purchaser during his ownership.</p> <p>3. The issue by the maker of the mortgage note carries the mortgage, although the note has been previously issued by him as a collateral and returned. 39 An. 712; 11 An. 881.</p>

<p>A PPEAL from the Ninth Judicial District Oourt for the Parish of •i*- De Soto. Land, J. First District, presiding, vice Hall, J., recused.</p>

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

<p>Prior to the statute ot 1892, tile courts were without jurisdiction to entertain the case oí a contested election; the contesting of votes is a judicial function only so far as authorized by statute.</p> <p>After the statute of 1892, more than three months, the time allowed to contest after an election, had elapsed, and, in consequence the contest was not seasonably filed.</p>

<p>The privilege of the unpaid vendor on the movable is not lost because the purchaser places it on his plantation for its improvement. O. C., Art. 3227; Trop-long 1, No. 113; 1 Rob. 373; 28 An. 719; 32 An. 1285.</p> <p>TJnder the judgment for his debt, with recognition of his privilege, the privilege creditor may seize, remove and sell such movable for satisfaction of the debt, at least, when the movable can be detached without injury to the immovable. 28 An. 749 ; 32 An. 1285.</p>

<p>The mortgage creditor can not object to the order on the third opposition of a creditor asserting a privilege on the machinery part of the plantation mortgaged, and directing the separate appraisement and sale of the machinery, ■when the mortgage creditor, by bidding at the judicial sale on the land and buildings separately, has precluded the sale of the plantation in its entirety, with the right of a separate appraisement and proportionate payment from the proceeds to which, without a separate sale of the machinery, the privilege creditor was entitled. Civil Code, Arts. 3267, 3268; 16 La. 491; 1 Kob. 373; 28 An. 749; 32 An. 1285; 49 An. p.</p> <p>The court again affirms that payment of the mortgage debt by-the ordinary creditor subrogates him to the rights of the mortgage creditor, O. C., Art. 2161.. par. 1; 49 An , p.</p>

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

<p>This court will not, on an application lor certiorari, review the decision of a question of fact, on which the jurisdiction depends, at least, when the error alleged is not made clearly to appear.</p>

<p>1. Mere impressions and hastily formed opinion -which -will, the juror swears, yield to the testimony to he offered are no objection to a juror.</p> <p>2. The jurors are the judges of the weight of the testimony. It was manifest that evidence relating to the corpus delicti was admitted. It was found by the jury sufficient to convict.</p> <p>Ordinarily that question of fact, when decided by the jury, is not subject to review.</p> <p>Nevertheless the court examined the testimony of record and found that the statement of the trial judge regarding the corpus delicti as proven was sustained by the facts. ‘</p>

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

<p>The maker and payee of a note, secured by mortgage, consenting and agreeing to the surrender of the one and the cancellation of the other, and the execution of a new note and mortgage in their place, can not be affected by the seizure of the old note in the hands of a pledgee or depository thereof as the property of such payee and mortgagor, such seizure having taken place long subsequent to said transaction, and said pledgee having asserted no right of his own thereto.</p>

<p>The Supreme Court is without power, in tile exercise of its supervisory jurisdic tlon, to coerce the Circuit Court of Appeals by mandamus to reinstate a case it lias dismissed for want of appellate jurisdiction, and to try and decide tile case on its merits.</p>

<p>PPBAL from the Ninth Judicial District Court for the Parish of Avoyelles. Gullom, J.</p>

<p>In case tlie record discloses no motion or order ol appeal made in the lower court this court is not authorized to take jurisdiction oí an appeal, and same will be accordingly dismissed.</p>

<p>Tlie trial judge having selected and appointed competent physicians as exports to make an examination of the mental condition of the defendant, with the object in view, that they as witnesses should be better prepared to intelligently state his situation to the jury at the trial, it was not a condition precedent to the trial being proceeded with, that the physicians should make a written and detailed report of such an examination to the court.</p>

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

<p>The estimation of the value of professional services of an attorney at law is only a question of law, and one that comes peculiarly within the province of the judge a quo who superintended the making up of the record upon which same must necessarily depend, giving him a very intimate acquaintance with all of its details, as well as knowledge of the kind and value of what services were performed.</p> <p>In such a case this court will accept his estimation as a correct and proper one, in. the absence of any manifest error of judgment on his part.</p>

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

Voorhies, J. Statement op the Case. On the 9th of December, 1889, the defendant, Tiburce Norres, qualified in the parish of Iberia as administrator of the succession of John Hays, on furnishing a bond often thousand dollars, signed by ten persons as sureties. The present suit was instituted upon the joint petition of six of the said sureties, and of six out of a very large number of heirs left by Hays.

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

A PPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Guión, J. Statement. On September 23, 1898, Montgomery Williams, the accused in this case, was indicted by the grand jurors oE the parish of Assumption, charged with having murdered one Severin Frank on the 4th day of July, 1896. On September 80, 1896, he was duly tried and found guilty of manslaughter.

<p>APPEAL from the Seventeenth Judicial District Court for the Parish of Lafayette. DeBaillon, J.</p>

<p>An Information charging llie defendant with-having committed the crime of petit larceny must be died or presented to the court'within one year nest after the offeneo shall have been made known to a public officer having the power to direct the investigation or prosecution; and if It appears from the rt cord that this provision of law has not been complied with, and the information fails to negative prescription cn its face, the plea of the. defendant urging the bur of the slatute will prevail.</p> <p>After a decision by this court on a case as presented, the prosecution, no moro than the accused, can be heard to set up as grounds for rehearing the incompleteness of the record.</p>

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

<p>/» PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Benton, J., ad hoe.</p>

<p>Tlie prohibition oí the erection or reconstruction in wood of buildings within what are termed the fire limits is within the scope of municipal government and recognized by the charter of New Orleans. Dillon on Municipal Corporations, See. 388, Act No. 20, of I8S2; Sec. 8, Act No. 45, of 1896; 42 An. 52.</p> <p>The city is authorized to impose fines for the violation of its ordinances. 1 Dillon on Municipal Corporations, See. 272; Acts 1877, Extra Session, Sec. 12; Act No. 45 of 1896, Sec. 93; 42 &n. 1113; 4 An. 278.</p>

<p>1. The suit for State taxes met by the defence that defendant has no property liable to taxation under the law, substantially puts at issue the legality of the tax, a question within our jurisdiction irrespective of the amount involved. Constitution, Art. 81.</p> <p>2. Our revenue statute taxes the personal property within the State owned by the non-resident. Act No. 106 of 1890, See. 1.</p> <p>3. Nor is such property consisting of cash exempted from taxation merely and only because deposited in bank by which it is claimed; the property is to be deemed a debt due by the bank to the non-resident, and hence not taxable here.</p>

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

<p>when loss to the plaintiff has been occasioned- by accident and uncontrollable events (Art, 2754, O. 0.) the defendants being without fault are absolved from liability.</p> <p>In order to render a person chargeable in damages for an act of commission or omission on his part it must have been the proximate cause of the damage.</p> <p>A mere failure to guard against a certain result is not actionable negligence unless under all the circumstances it might have been reasonably foreseen by a man of ordinary intelligence and prudence.</p>

<p>In a prosecution for larceny the proof of value of the stolen property may be inferred from the fact that a sum of money was put to the credit of the accused by the firm to whom he sent the property to be sold.</p>

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

<p>A PPEAL from the Twenty-second Judicial District Court for the Parish of Plaquemines. Hingle, J.</p>

<p>when the court the proceedings of which are sought to be reviewed has juris--diction of the controversy and there is a remedy by appeal from its judgment," there is no basis for the writ of certiorari or prohibition. Article 90 of the Constitution; C. P., Arts. S45, 855, 857 ; 82 An. 1092; 39 An. 776; 34 An. 782.</p>

<p>The object of this and similar suits is not to obtain judgment against the State for the amount of the bonds.</p> <p>But to ascertain or find certain facts, t. e., do the bonds possess the requisites enumerated i.n the act of 1875, -without which they can not be funded.</p> <p>The State can be sued only by its own consent, and may, therefore, impose such limitations and restrictions on the right of suit as it pleases.</p> <p>The court, in determining its powers and duties in suits against the State, must look to the act authorizing the same to determine the scope and limitation of its power and jurisdiction.</p> <p>without regard to the question of ownership, whether in hands of original payee orthose of innocent holders, the bonds can not be funded, under the ftct of 1875, until this court shall have investigated and decreed that they are legal and valid obligations of the State, were not issued in violation of the Constitution, were issued in strict conformity to law and for a valid consideration.</p>

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

<p>After having considered all the issues raised by the objection to the information and after having considered the scope of the information charging the defendant with extortion in office, the court remanded the ease for trial in order that the questions may be decided on appeal; if under the sentence and judgment the ease is appealable, and if not appealable under the penalty imposed that the questions may be decided under its supervisory jurisdiction.</p>

<p>The fact that a party had transferred certain notes held hy him to another person as collateral did not withdraw entirely from him the power of protecting his interests hy proceeding against the maker of the notes.</p> <p>Notwithstanding the pledge plaintiffs were the owners of the notes as expressly declared in Art. 3166, C. 0.</p> <p>The language of Art. 3170, C. C., is permissive, not mandatory; the pledgee is not declared to be charged with the active duty of watching the movements of the debtor, with a view of forestalling or frustrating any attempt at fraud on his part.</p> <p>Certain duties do devolve upon the pledgee hy reason of the pledge (C. C., Art. 3167); but in testing, in any particular case, whether he has been in fault, the degree of care necessary to be used (when a credit is pledged), in protecting the very thing itself which was pledged, must not he confounded with that exacted from him in guarding the obligations themselves of the debtor under this credit.</p> <p>The lessor has a double right, a right of pledge, with its right of detention and included and resultant right of preference, and a right of privilege proper; and, though he may have lost his right of pledge by permitting with his consent the object subject to it to escape from his grasp of detention, he can still fall back for security upon his privilege unless that right be also from some cause extinguished.</p> <p>The lessor’s privilege as a substantive right does not extend beyond the crop of the year for which the rent was due, and while the abandonment by the lessee of theleased premises may have the effect of advancing the maturity of the Instalments of rent or to hasten his lessor’s remedy, that fact does not have the effect of broadening his rights of privilege against third persons.</p>

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

<p>when there is neither brief or assignment of errors, and error the court can perceive ini the record, the .iudgment of the lover court will be affirmed.</p>

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

<p>It is rare that abstract principles of law are so fixed and absolute as not to be modified or controlled by the special facts of the case to which they are sought to be applied.</p> <p>While defendant’s proposition that “ it is not negligence in a railroad company t° construct or permit to be constructed overhead hanging bridges, etc., over its tracks so low as not to permit a brakeman to stand upright on the top of a box car,” might be true, in some special case, under exceptional circumstances, it is certainly not true as a general proposition. On the other hand were it true,* that if a brakeman knew or was presumed to know of the existence of such a construction he would be held as a general rule to have assumed the risk of injury therefrom; it is not true that the mere fact of such knowledge carries with it necessarily and on all occasions, and under all circumstances, the cutting off of the remedy for injuries received by him from such constructions.</p>

DeBwillon, J. . Act No. 124, regular session of 1880, amending Sec. No. 696 of the Revised Statutes, gives the right to erect telegraph lines along and over the lands, privileges and servitudes of all persons and corporations within this State, that right to be exercised by an expropriation suit fixing the extent of ground privileges and servitudes to be taken by the plaintiff, and the amount of compensation to be made to the defendant company for the land taken and the…

<p>When the State court has acquired jurisdiction in a case, entered judgment, and is proceeding to its enforcement, the appointment of a receiver by United States Court to the defendant corporation can not divest the jurisdiction of the State court and stay the execution issued to enforce the judgment.</p> <p>Nicholls, C. J., 07i Rehearing. — It is too clear for argument that the seizing creditors under this seizure can not be forcedly referred to the Circuit Court of the United States for the adjudication of their rights by reason of the fact that subsequently to the seizure, plaintiffs in injunction already in the State court went into the hands of receivers appointed by the United States Court.</p> <p>“ Appellants -wlio successfully resisted a motion made by tlie appellees in the lower court for a new trial based on the ground that the judgment was contrary to the law and the evidence, can not, when they themselves appeal from the judgment and succeed in having the judgment reversed and the cause remanded for a new trial, throw the costs of appeal on the appellees.” (Oteri vs. Oteri, 37 An. 76.)</p>

<p>The issues of this ease ■were disposed of in case between same parties, Ante p. 1283.</p>

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

<p>A pedestrian in the night-time, who suddenly leaves the path on grounds, identi- ' fled as the neutral grounds, and crosses or attempts to cross, immediately in front of a street car moved by electricity, is imprudent.</p> <p>‘The rule that one before attempting to cross the track should “stop, look and listen,” applies to a street railway moved by electricity.</p> <p>The approaching car must have been visible, and the noise heard by any one near, looking or listening.</p> <p>The attempted crossing was the matter of a moment, rendering it impossible to stop the car in time to prevent the accident.</p> <p>Held: Whenever the plaintiff's case shows any want of ordinary care, his right to recover is thereby destroyed,</p>

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

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

<p>A day laborer on a working train of a railroad company who has sustained an injury by the derailment of one of its cars, occasioned by a small stick of wood lying on its track, can not recover damages of his master without showing that the piece of wood was there through the direct and immediate fault of his servants.</p>

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

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

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

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

<p>1. An attachment justified against one who has mortgaged or is about to mortgage his property, or some part thereof, with intent to give an unfair preference to one or more of his creditors.</p> <p>2. This mortgaging or about to mortgage takes place, in the sense of the Code, where an insolvent debtor gives confessions of judgment to certain favored creditors and denies it to others who apply to be placed upon the same footing, and whose claims are undisputed.</p> <p>8. These confessions proved in court, judgment signed and recorded, become judicial mortgages.</p> <p>4. The effect of granting same to some creditors and refusing it to others is to give an unfair preference.</p>

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

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

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

<p>A PPEAL from the Twenty-fourth Judicial District Oourt for the Parish of St. Mary. Allen, J.</p>

<p>Question presented is -whether a sheriff, holding a plantation under a seizure by attachment, can, without consent of plaintiff proceed with its cultivation at the expense and risk of the latter, and the planting venture proving a failure and loss ensuing, recover the amount of the loss from plaintiff as costs of suit to be taxed. Held, he can not.</p> <p>A sheriff’s tenure of property under the. writ of attachment, and its resulting duties and responsibilities, are differentiated by the law from his tenure of property under the writs of sequestration and fieri facias and his duties and responsibilities growing out of same.</p> <p>under the writ of attachment, his possession imposes no duty of administration, and he was under no legal obligation to cultivate the plantation attached.</p>

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

A PPEAL from the Civil District Court for the Parish of Orleans, Rightor, J. Defects of form in the execution of a will, however trifling, are fatal. C. O. J595; Shannon vs. Shannon, 16 An. 9; Succession of Carroll, 28 An, 891; Succession of Yollmer, 40 An. 598. Nuncupative testaments must make full proof of themselves, on their face, and no evidence aliunde can be introduced to support them.

<p>The lawmaker has, in Art. 129 of the Civil Code, provided ametliod by which married women are enabled to waive their rank of mortgage in favor of subsequent mortgages granted by their husbands. Parties can not be permitted to accom* pltsli the same result and to withdraw from a wife the protection which the provisions of that article afford her by having recourse for that purpose to the expedient of causing her to make in a notarial act an unfounded acknowledgment that she had received payment from her husband of paraphernal funds of hers received by him and converted to his*own use, and coupled with said acknowledgment an authorization to the recorder to erase, on the strength of the same, the evidence of her mortgage from the records. The wife is not estopped by such acknowledgment from contesting the truthfulness of the same, and from contesting the erasure of mortgage bond thereon, and she is authorized to introduce parol evidence in support of her contest.</p> <p>Action taken by a third person, based upon an acknowledgment by a wife of payment from her husband of paraphernal funds of hers received by him and converted to his own use, and upon an authorization (still unexecuted) of the wife to the ^Recorder, on the strength of that acknowledgment, to erase from the records the ev'denceof the mortgage securing payment to her of said funds contained in an unrecorded notarial act, does not fall under the protection accorded to action taken on the faith of the condition of the public records.</p> <p>The transferee of negotiable notes secured by mortgage acquires by the transfer no greater rights through the mortgage than his^transferrer had. A mortgage is not negotiable in the same sense as negotiable notes are negotiable, and the rules governing the equities in matters of negotiable notes have no bearing.</p> <p>A wife holding a second mortgage on her husband’s property is not made to yield her rank of mortgage In favor of a third mortgage creditor simply from the fact that with the money borrowed from the latter the husband paid and discharged the first mortgage on the property. Fontenot vs. Soileau, 2 An. 774, and Gate vs. Matta, 7 An. 140.</p>

<p>It is claimed that although an executor had filed an answer to the appeal from a judgment on bis account, his answer presents no issue to the court to be tried,, for the reason that the executor and the succession he represents are without any interest -in the result of the opposition; that the succession was fully solvent; that the heirs had made themselves parties to the proceedings in the lower court and opposed the claims, and the only persons to be affected by the judgments would be the heirs themselves, and it was for them to ask an amendment of the judgment and not the executor.</p> <p>Held: The intervention of the heirs and their joining the executor did not have-the effect of dismissing the latter from the suit. The oppositions were directed to his account, and he is necessarily a party until all the issues raised by opponents are foially disposed of contradictorily with him.</p> <p>While the Legislature of this State may have the right of prohibiting Frenchmen from possessing personal or real property by the same title and in the same manner as citizens of the United States, it has not as yet thought proper to exercise that right. On the contrary, it has permitted them up to the present time, in that respect, to stand on the same plane with our own citizens. Occupying that station, the provisions of the treaty with France declare that in no case shall they he subjected to taxes on transfer, inheritance or any other, different from those paid by our own citizens themselves, or to taxes which shall not be equally imposed. Succession of Bixner, 48 An. 558.</p> <p>An instrument by which the maker engages to pay a certain sum of money on the order of the maker, which has never received the endorsement, upon the fact of which endorsement alone a promise of payment had been made, is incomplete, and in that condition could not, on a note, be enforced against the maker. 0. 0., Arts. 1905,1906.</p> <p>Delivery by the maicbr to a particular person, even though accompanied by words indicative of a gift or donation of the same, does not stand in lieu of, is not a substitution for, nor is it equivalent of an endorsement. The situation does not correspond at ail -with that of delivery by the iioldek of a note to whose order it was made payable to a third* person, accompanied by-words of assignment. In the one ease there would be a verbal assignment of a perfected ■ thing; in the other, of a thing which would pass into the hands of the party who had received it with something requiring stiil to be done to give it existence Such an instrument can not be made available as a note. Neithe r is it enforce able as a donation or a gift.</p> <p>A party contemplating making a donation must see to it, whatever be the act or instrumentality he proposes to employ as the medium of carrying out his intention, that it fulfils, itself, all the conditions of regularity required to give efficacy to that particular act.</p> <p>An instrument such as has been described is fatally defective, viewed either as a note or a donation.</p> <p>It can not be made use of to sustain a claim made for remuneration for services rendered as a recognition of liability for remuneration, and as fixing the value of the same when the evidence establishes that the services were not of a character such as would imply or give rise toan expectation on the part of those who rendered them that they should be remunerated, nor on the part of those who received them that they would be called upon to do so, but were merely the customary and almost necessary acts of kindness incident to and resulting from close intimate relations between the parties; services leading up to friendship, affection and the rendering of reciprocal services, but not to payment in money. There are services which do not give rise to debt nor to remunerative donations, but may very naturally and legitimately give rise to and be sustained as donations proper when properly evidenced. C. C. 1773; Adams vs. Succession of Mills, 49 An. 795.</p>

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

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

<p>It was irregular and unauthorized to assess property in 1887 in the name of a dead man whose succession was opened in 1876, and to undertake to sell the property in his name to the State, without notice to the legal representative of his succession.</p> <p>A deed prima facie valid relates to the conduct of the sale and not to antecedent omissions rendering the sale void. 9SU. S. 522.</p>

QN APPLICATION for Writs of Certiorari and Prohibition. On Application op the State Board op Agriculture and J. G. Lee, CommissioneR op Agriculture, to Intervene and Interplead Herein. * An application having been filed by relator for a writ of prohibition, a rule nisi issued, to which the respondent judge made answer.

<p>In case the only opposition to a receiver’s account is for the sum of forty-three dollars and eighty-six cents, this court is without jurbdiction, as the case presents no conmrsns, and there is no fund to be distributed among the several contestants in the sense of the Constitution, Art. 81.</p>

<p>On Motion to Dismiss. — This court had jurisdiction of the amount to be distributed; it followed that it had jurisdiction to pass upon the respective claims to the amount.</p> <p>On the Merits, — 'By agreement the plaintiff held the mortgage first in rank.</p> <p>Another creditor had waived its right and consented not to enter any claim for the fund (proceeds of the mortgaged property).</p> <p>Another, a third creditor, had aprivilege prior in rank to plaintiff’s mortgage.</p> <p>This priority also primed the rank of the secopd creditor, but who, by its waiver, placed itself in a position not to compete with the third creditor as to rank, who, by the effect of the agreement, became second as to rank of claim. Second, the creditor had supplied to the owner material for the construction of the building, which could not be removed without impairing the building.</p> <p>He had a privilege for his claim.</p> <p>The appraisement made of this material, separate from the construction, was not a waiver; having been made in compliance with an alternative demand.</p>

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

<p>On Motion to Dismiss the Appeal.</p> <p>Not a Judicial Function.— The power granted to the Secretary of State to receive the bonds of certain corporations and issue certificates based thereon, is ministerial.</p> <p>Not Violative of Constitution. — The right granted to these corporations to become sureties on appeal bonds is not a privilege. It was granted to a class, and there is nothing “ special ” in the statute.</p> <p>Principal's Signature. — The signature of the principal to the appeal bond need not be proven.</p> <p>Proof of Signature of Surety. — The certificate of the Secretary of State, admitted without objection, proved the signature of the surety on the bond; moreover, the objection was not timely made.</p> <p>On the Merits.</p> <p>The employee was an ordinary employee, a servant and n an independent contractor.</p> <p>Damages of the Servant. — De spite the hard treatment possible in certain cases, the court must, in accordance with law, hold that employers and masters are answerable for damages of their servants, committed while in the exercise of the functions in which they are employed and incidental thereto.</p> <p>Negligence. — It was an act of negligence to throw a large heavy board from the top of the car In the open space, where the one wounded by the blow of the falling board was passing.</p> <p>Amount — The damages awarded will not be increased unless manifestly insufficient.</p>

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

<p>A wife separate in property from her husband died leaving minor heirs and real and personal property. The husband as natural tutor administered her succession. At sale provoked by tutor to pay debts, the tutor, individually, purchased the real property. Held: This purchase, in direct violation of a prohibitory law, is an absolute nullity; there was no contract of sale, no price, no acquisition of property: the title of the tutorship was never divested. It was nota sale merely voidable; it was void ab initio; it never existed.</p> <p>In such case the heirs have an interest in pursuing the property wherever found, and it is no barrier to this pursuit lo say that the wife’s succession is insolvent.</p> <p>Subsequent sales of this property by the tutor are likewise absolute nullities, conveying no title. The under-tutor, one of these vendees, can not claim to be possessor in good faith, but must be held to be a buyer aware of the danger of eviction, who purchased at his peril and risk, and therefore without standing to demand restitution of the price.</p>

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

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

<p>The trial judge did not err in refusing to grant the application £or an inquisition oí lunacy involving, if granted, a consideration of question of insanity of a date prior to the trial by the jury of the plea of insanity, and not involving a question of insanity arising after conviction.</p>

<p>The State had not tiled the record of appeal within the time provided by law.</p> <p>The failure to file the record was fatal to the appeal. 36 An. 863; 38 An. 83; 43 An. 610.</p>

QN APPLICATION for Writs of Habeas Corpus and Certiorari. In the petition filed, in this case on behalf of the relator, it is alleged that the latter is illegally and unwarrantably imprisoned and deprived of his liberty by the civil sheriff of the parish of Orleans and the keeper of the parish prison of said parish, under and by virtue of a pretended commitment issued in the matter entitled Emily Weyman vs. Louis J. Huber (her husband) for divorce (No. 54,033 of the docket…

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

<p>The defendant -was tried on an indictment for murder and found guilty of manslaughter. On amotion for a new trial the verdict of the jury was set asi-de.</p> <p>At a subsequent term of the court the defendant pleaded his former acquittal of murder as a bar to further proceedings against him for that crime. His plea was sustained.</p> <p>He was called for trial on the same indictment and protested that he could not be tried again on the same indictment, which charged him with murder, and insisted that he should only be tried on a new indictment found, or information filed, charging him specifically with the crime of manslaughter,</p> <p>The District Court held that he could be tried on the same indictment, but only for manslaughter.</p> <p>Held — Where, upon atrial of a person indicted for murder, accused is convicted of manslaughter, and the conviction is set aside, he may be tried for manslaughter on the samd indictment. Neither law nor jurisprudence require that he could only and legally be tried on a new indictment charging manslaughter. State vs. Dunn, 41 An. 612; State vs. West, 45 An. 938.</p> <p>It is clear that upon the second trial on the original indictment the District Attorney and the court would necessarily have to explain to the jury the modification in the situation resulting from the effect of the verdict upon the first trial. State vs. Evans, 48 An. 218; McQueen vs. State (Ala.) 15 So. Rep. 825.</p> <p>The indictment did not fall as the result of the court’s decree — the charge against the defendant under the existing circumstances was simply reduced to manslaughter.</p>

<p>A PPEAL from the Sixth Judicial District Oourt for the Parish of Franklin. Ellis J.</p>

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

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

<p>The Supreme Court, pending injunction suit in the District Court against officers of a parish in which attorneys specially employed by them have been recognized by the District Judge as in charge of the case, will not, on application of the District Attorney compel such judge to recognize him as the representative of the parish entitled to direct the defence.</p>

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

<p>The attorney holding relations besides toward his client, fairly implying he will charge himself with her business interests, can not acquire the client’s property to her prejudice, the purchase of the property by the attorney being the result of the advice he gives the client. Such purchase will enure to the client, subject to the obligation to reimburse the attorney his expenses incident to the purchase and management of the property. 1 Story’s Equity Jurisprudence, Secs. 310, 311, 312.</p>

<p>1. The partial destruction of leased premises does not of itself dissolve the lease. If the demand of the lessee for the cancellation of the lease is resisted, the-fact of partial destruction must he necessarily decided by the court according, to the circumstances.</p> <p>2. The abrogation of leases is not favored except in extreme eases. But where the-partial destruction has been of such nature as to menace discomfort to the tenant during the entire term; to cause the tenant to abandon the premises in order that repairs may be made; when the premises are no longer suitable to the purposes for which they were leased — in such cases the contract of lease, should be annulled.</p>

<p>Artioie 245 ol the Constitution secures to shareholders of the capital stock of corporations the right to inspect the books of such companies.</p> <p>when the right of inspection is denied the writ of mandamus will lie to enforce it.</p> <p>By “ public inspection,” as used in the article of the Constitution, is meant, not the inspection of the idle, the impertinent or the curious — those without an interest to subserve or proteci^-but the inspection by those with a laudable object to accomplish, or a real and actual interest upon which is predicated the request for information disclosed by the books.</p>

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

^~yN APPLICATION for Writs of Certiorari and Mandamus. On APPLICATION FOR A WRIT OF CERTIORARI AND MANDAMUS. Held: had issued a notice of appeal unaccompanied by the citation prescribed, and that it was necessary that the transcript be returned to his court to allow the making of the proper citation and service thereof, and that all necessary time therefor should be granted, moved the court for the return of said transcript to said justice’s…

<p>The forfeiture of a bond by judgment has always been regarded as a criminal proceeding.</p> <p>The amount of the bond forfeited being an amount less than two thousand • dollars, and no appeal from the judgment of forfeiture having been applied for ■within the delay prescribed for an appeal in criminal cases, this court wa$ without authority to entertain jurisdiction.</p> <p>The appeal was dismissed.</p> <p>On Application to Reinstate the Case: Tile facts are not before the court on which the defendant rested his case, and nothing authorizes us to send for the evidence.</p> <p>'The proceedings to fix surety’s liability on an appearance bond are in their nature as in a criminal case.</p> <p>The court adheres to the original decision. 46 An. 551; 38 An. 363.</p>

<p>A PPEAL from the Sixth Recorder’s Court for the City of New Orleans Arnauld, J.</p>

<p>When the panel o£ jurors drawn for the term is set aside for irregularities in the drawing, the court has the power in term time to direct another venire for immediate service, and, necessarily, the requisite of thirty days’ publication required before the beginning of the term of the names of the jurors composing the first or regular panel, has no application to the second venire drawn during the term because the first is set aside. Jury Aet No. 89 of 1896, Secs. 5, 6 and 1; 41 An. 600.</p>

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

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

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

<p>APPEAL from the Twenty-second Judicial District Court for the Parish of Plaquemines. Hingle, 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. Baker, J.</p>

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

<p>A PPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.</p>

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

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

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

<p>In cases appealable to another court writs of certiorari and prohibition from the Supreme Court are not the proper remedies for relief obtainable on appeal. This applies to cases appealable from the city courts of New Orleans to the District Court. Ex rel Kepllnger et al. vs. Justice of the Peace, 48 An. 1348, and Ex rel. Purdy vs. Justice, 49 An. 1165. Affirmed.</p>

<p>Municipal Ordinance. — The fir3t section of a municipal ordinance declaring it unlawful for any person to keep a lottery office being plain and legal, the defendant condemned under this section is without right to sustain an objection of illegality of the whole ordinance on the ground that the second section is unconstitutional.</p> <p>Separable, Sections of an Ordinance. — An ordinance may he unconstitutional in part and legal in part.</p> <p>Construction of Ordinance. — The second section of the ordinance interpreted with the first section is not unconstitutional.</p>

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

<p>On the question whether the accused or another inflicted the wound resulting in the killing for which the accused is indicted, the charge that the jury must acquit, if satisfied the other, and not the accused, gave the fatal stab, accompanied with the refusal to instruct that to convict there must be proof beyond a reasonable doubt that the accused inflicted the wound is error, especially when the refusal is accompanied with the statement by the trial judge that the charge requested is not the law.</p>

<p>PPEAL 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>

A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J. Statement of Facts. E. 0. Drew having applied for the bene.fit of a respite, certain of his creditors made opposition to the same.

A PPEAL from the First Justice Court for the Parish of Bienville. Barksdale, J. Statement op Facts.

<p>In case a contention arises between two patentees claiming title to sea marsh or swamp lands from the State, their patents being of different dates, one calling for unsurveyed sea marsh and the other for sections, or other legal subdivisions, the decision must turn upon the determination of the area of the sea marsh which was really conveyed — the patent for the sea marsh being the older of the two.</p> <p>Under the jurisprudence and statutes of Louisiana governing the entry and sale of swamp and marsh land, all the recitals of patents issued therefor are to be considered in determining the measure or quantity of land conveyed.</p> <p>The words of a patent specifying the quantity as “all the unsurveyed sea marsh west of lots fronting on the Mississippi river ” are limited and explained by the words “containing 3840 acres;” and reference made in the patent “to the official plat of the survey of said land in the State land office ” was doubtless for the purpose of verifying and confirming the statement as to the character and extent of the area of land which was sold.</p>

<p>The subscriber for telephone serrice in. default of payment stipulated for the service, notified by the telephone company that the telephonic instruments will be removed from his premises unless he pays the amount due and replies that the company can do as it pleases, has no claim for damages because the instruments are thereafter removed by the company, the written notice of the removal specified in the contract being wholly unnecessary and is to be deemed waived.</p>

<p>The refusal of a .continuance, involving chiefly a question of fact within the trial court’s discretion, is not reviewable in the appellate court.</p> <p>The indictment need not contain the tenor or copy of the instrument upon which the forgery was based, but may designate the instrument by name. State vs. Maas, 37 An.;292; State vs. Boasso, 38 An. 202.</p> <p>The indictment need not set forth the name of the person on whom the order was passed, or the name of the person whom the accused intended to defraud* State vs. Adams, 89 An. 288.</p> <p>It is not necessary in the indictment to set out the value of the instrument or the amount for which the forgery was committed. Ib., Rev. Stats. 1049.</p> <p>Additional evidence maybe heard before argument is begun. It is amatter largely within the court’s discretion. 29 An. 716.</p>

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

<p>A commission was issued to a notary to take the deposition of witnesses residing in another State; there was no oath of the materiality of the evidence sought. The commission was returned and a rule was taken on the adverse party to show cause why all irregularities should not be considered cured. It was made absolute; no objection was offered. The irregularities were cured.</p> <p>The evidence made the basis of a motion for new trial does not appear to have been newly discovered and diligence required was not shown.</p> <p>Ill treatment of the child to give the mother grief, pain, and resulting in aggravating her illness, is cause enough for separation from bed and board.</p> <p>Offensive and unendurable epithets, calculated to degrade the wife, in the presence of members of her family, are .also the cause for separation from bed and board.</p> <p>The decree as relates to the partition o£ the property-worth less than two thousand dollars, presenting in this ease an independent issue, was left undisturbed.</p>

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

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

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

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

QN APPLICATION for Writs of Certiorari and Prohibition. Application fob Wbits of Oebtiobabi and Pbohibition. The relator is a justice of the peace in the parish of Iberia, in whose court R. F. and J. 0. Broussard instituted a suit against and obtained judgment against Adrien Gonsoulin for the sum of seventy-six dollars.

<p>The agreement as to payment o£ the tees of the attorney of the mortgage creditor-may be gathered from the act of mortgage and the mortgage note.</p> <p>The stipulation that the fees of the attorneys of the mortgage creditors shall be-due in ease the note after maturity is put into the hands of the attorney, is valid.</p>

<p>A PPBAL from the Seventeenth Judicial District Court for the Par--L* ish of Lafayette. Ii. W. Elliott, J. ad hoc.</p> <p>Dr. Romain J. Francez, a resident of the parish of Lafayette, died in said parish on the 28th of October, 1892, leaving a widow, Athenais Bernard, and nine heirs:</p> <p>1. J. P. Francez (a son by a first marriage).</p> <p>2. Romain Francez.</p> <p>3. ■ Aloysia Francez, wife of Lucien Cayret.</p> <p>4. Maurice Francez.</p> <p>5. Cecile Francez, wife of Galbert H. Guilbeau.</p> <p>6. Agnes Francez, wife of M. Lazaro.</p> <p>7. Ernest Francez.</p> <p>8. Gaston Francez, and</p> <p>9. Aristide Francez.</p> <p>In December, 1892, an inventory was made in the matter of the succession, and J. P. Francez was appointed and qualified as administrator.</p> <p>The inventory showed, under numbers from one to eight therein (both inclusive), different tracts of land, amounting in value, in the aggregate, to the sum of fourteen thousand two hundred and seventy-four dollars; corporeal movables to the value of five thousand four hundred and sixtyefive dollars; notes and accounts to the value of one thousand and ninety-five dollars and seventeen cents, or a total active mass of twenty thousand eight hundred and thirty-four" dollars and seventeen cents, and a passive mass or debts due by the succession to the amount of seven hundred and forty-four dollars.</p> <p>On October 6, 1893, the administrator filed what he termed a final account.</p> <p>In this account he describes the entire mass of the succession as being:</p> <p>1. The property described in the inventory.</p> <p>2. Two thousand one hundred and seventyreight dollars and forty ■cents, proceeds of the crop of 1892; and</p> <p>3. Seven hundred and seventy-two 'dollars and fifty-six cents, an •amount of separate funds of the deceased received from Prance.</p> <p>The date of his death is taken from the brief of appellant’s counsel. The debts of the estate are declared by him to amount to sixteen hundred and eighty-seven dollars. He states that the seven hundred .and seventy-two dollars and fifty-six cents received from Prance had been distributed between the nine heirs each receiving eighty - ■five dollars and eighty-four cents, and that the residue of the community property, consisting of the property as inventoried and the balance of cash, had been placed in the possession of the widow as usufructuary.</p> <p>Accompanying this account was a petition in which the administrator prayed that due notice be given by publication of the filing of the •same; that the heirs be cited, and that after due proceedings the account be homologated and the administrator discharged. No prayer was made for the citation of the widow in community, and neither she nor the heirs were in point of fact cited.</p> <p>On the 29th of December, 1893, the heirs of the deceased transferred and delivered to his widow, Athenais Bernard, property described as a tract of land, situated in Lafayette parish, containing two hundred and fifty superficial arpents, bounded north by public road, leading to Arneauville from Carenero; south by Ro Simon Mouton and Romain Prancez; east by land of estate of R. J. Prancez, and west by public road and land of Romain Francez, together with all the buildings and improvements thereon and all the movables as ■ shown by inventory of succession of R. J. Prancez.”</p> <p>The sale and transfer is declared to have been made “ for and in consideration of the price and sum of six thousand one hundred and seven dollars, being her full share as coming to her from the community rights between her and her deceased husband, Dr. R. J. Prancez,” and it being further declared “ that in consequence of having received said amount in property she did then and there renounce and relinquish all her rights that she had or might have ■against the sucession of her late husband in favor of the heirs; this 'being a full settlement on the one band and a quit-claim on the •other.”</p> <p>On the same day J. P. Francez, for himself and as agent of the other heirs of Dr. R. J. Francez, sold and transferred to Maurice Francez (one of the heirs) property which in the act of sale was described as “ ñve hundred and thirty arpents of prairie land situated in Lafayette parish, being lots Nos. 2 and 3 and part of No. 1 of the i iventory of said succession of their deceased father; also two hundred and seventy arpents of wood land situated in Lafayette parish, and being parts of lots Nos. 4, 5, 6 and 7, of the said inventory; also seventy-two acres of wood land situated in St. Martin parish, being all their interest in said succession.”</p> <p>The consideration was declared to be “thirteen thousand dollars ■cash in hand paid, for which due acquittance was granted.” Maurice Francez, holding the legal title of all the property so transferred to him, proceeded at once to sell and transfer different portions of the same to each of the different Jieirs, retaining a portion himself; the portion so retained by himself, when added to that sold by him to his co-heirs, making up the whole of the real estate inventoried other than that conveyed to the widow. These transfers were evidently based on the interest or proportion which each of the ven-dees held at the time in the suceession'.of Dr. Francez, as the price mentioned and declared to have been received by the vendor in each act was fifteen hundred and fourteen dollars, except in that to J. P. Francez, where'it was declared to be three thousand and twenty-eight dollars. This difference in price is accounted for by the fact that J. P. Francez had in th.e meantime acquired, in addition to his own interest, that of Romain Francez, in his father’s succession. In each of these acts of transfer the vendee accepted the property as “being his full share in succession of R. J. Francez,” with the exception of the acts to J. P. Francez and to Agnes Francez, wife of Mark Lazaro.</p> <p>In the former of these the property was declared to be accepted as the share of the purchaser and Romain Francez in the succession, and in the latter as “ the share of Agnes, wife of Lazaro, in the lands partitioned between the heirs of Dr. R. J. Francez on the 29th December, 1893, it being understood and agreed that this sale was to be construed simply as so much received by the purchaser on account of her share as an heir of her father.”</p> <p>On April 11, 1894, Agnes Praneez, wife of Mark Lazaro; Ceeile, wife of Galbert H. Gilbean, and Aloysia, wife of Luden Cayret, filed an opposition to the administrator’s account, but subsequently Oecile Francez and her husband withdrew their opposition.</p> <p>In this opposition it was charged that the account was incorrect in many particulars; that the administrator had failed'to account for the crops of the years 1892 and 1893 received by him. That in the year 1892 the cotton crop amounted to sixty-eight bales of cotton, five hundred barrels of corn net, one hundred barrels of potatoes, thirty loads of pea vine hay and nine barrels of peas.</p> <p>That in the year 1893 one hundred and three bales of cotton were made; five hundred barrels of corn, besides potatoes, peas and hay, and a large quantity of hay was sold. That the administrator failed to account for the ginning fees for the years 1892 and 1893; that he failed to account for the claims due by the laborers on the plantation of deceased due for the years 1892 and 1893, and he failed to account for claims, accounts and notes due the deceased and carried on the inventory, and the administrator should be charged with the value of property sold by him, to-wit: one old saw-mill rigging, one circular saw and one double barrel shotgun. They especially opposed the claims of L.' Querouze for $474.97 as not being due by the estate and they reserved all their rights to the property in Prance.</p> <p>To this the administrator filed an exception that opponents had no standing in court nor any right of action by reason of having executed and signed in notarial form a full and final partition of the property of the succession situated in the parish of Lafayette as inventoried, and in the same act accorded and gave to the administrator a full and final discharge of all responsibility for all matters conceiving the said succession and prayed for a dismissal of the opposition.</p> <p>The administrator filed another exception by way of estoppel, alleging:</p> <p>1. That said succession had been finally settled by an understanding and agreement by all the heirs in this, that all the property and effects were partitioned among said heirs by notarial act passed before Cochrane, notary.</p> <p>2. That said heirs signed an acquittance to all and any amounts coming to them from said succession, as would appear by reference to the acts passed and signed by each and all of them before the said Cochrane, notary.</p> <p>On the day the last exception was filed the opponents filed a plea to the effect that the acts referred to by the administrator as an estoppel and settlement of their rights in said estate were only intended to effect a partition of the property included therein for the purpose of effecting a partition thereof. That if considered as proof of a settlement same was signed by Aloysia Francez (wife of Lucien Cayret) and by Agnes Francez (wife of Mark Lazaro) in error, and they pleaded error. They prayed that said acts, in so far as they showed a settlement, be declared null and void and having been signed by error — that the plea of estoppel be overruled and set aside and the cause be tried on its merits.</p> <p>The administrator objected to the filing of this plea on the ground that it was in the nature of a replication, or an answer to an answer, and that it came too late. The objection was overruled, the court assigning as the reason for its ruling “ that it was a rule of law that all agreements and obligations could be attacked for fraud or error.”</p> <p>A bill of exceptions was reserved to this ruling.</p> <p>On the trial of the exception or plea of estoppel the administrator, over the objection of the opponents, was permitted to have the testimony of a number of witnesses taken as to the conversations between the parties to the acts passed between the widow and heirs of the deceased, on which the administrator based his claim of estoppel, before and at the time those acts were passed, in order to show the conclusion reached between the parties, and whether those acts were or were not intended as a final settlement of the succession and a compromise of all the differences of the parties in the settlement of the succession, and whether same did not include also an abandonment in favor of the widow of all notes, accounts and crops on the plantation up to that time, in consideration of her assuming the payment of the debts.</p> <p>The introduction of this testimony was resisted on the ground that no parol evidence was admissible against or beyond what was contained in the acts pleaded as an estoppel, nor as to what may have been said before or at the time of making them or since. The reason assigned for overruling the objection was that under the allegations of error parol evidence was admissible to show the true nature of the transaction. Bills of exception were reserved by opponents to this ruling.</p> <p>On the trial opponents themselves asked to have G. H. Gilbeau and Lucien Cayret, two witnesses sworn on their behalf, and answer the following questions:</p> <p>“Was there any understanding or agreement between the heirs, during their discussion and conversation preceding or at the time the acts of the 29th of December were being signed, that what was being done that day was to be a final and complete settlement of the rights of the heirs in said estate?</p> <p>State if G. H. Gilbeau, one of the parties to those acts, did not categorically refuse to Mr. Campbell the request to sign a discharge in favor of the administrator on that day?”</p> <p>Opponents in propounding said questions stated that their object was through the answers thereto to contradict the parol evidence offered by the administrator in his evidence in chief.</p> <p>The administrator objected to the questions on the ground that no parol evidence was admissible against or beyond what was con-, tained in the acts pleaded to alter, vary or contradict the statements contained in said acts.</p> <p>The objections- were sustained by the court on the ground that parol evidence was not admissible to contradict one’s own statements contained in a notarial act.</p> <p>Opponents reserved a bill of exceptions to this ruling.</p> <p>Opponents offered in evidence a certified copy of a notarial act signed by Maurice Francez, on the 13th February, 1894, in which he declared that on December 29, 1893, by act before D. A. Oochrane, notary public, the heirs of Dr. R. J. Francez sold to him (the said Maurice Francez) certain tracts of land fully described in said act; that said sale was made to him in order to effect a partition of said lands, and was not intended to convey and sell to him anything more than the lands therein described, and that said sale did not include any other rights his co-heirs might have in the succession of Dr. R. J. Francez, and that thereafter he sold to each of his coheirs his proportion of said lands which was not in full of each of said co-heirs in said succession of Dr. R. J. Francez.</p> <p>The administrator objected to the introduction in evidence of said act, on the ground that a voluntary party to an executed contract, who has reaped and retained the benefit of it, is estopped from assailing said contract. That a party would not be permitted to deny in his own interest a state of facts which he had caused others to believe, and on the faith of which t*hey had acted.</p> <p>The objections were sustained and the act excluded, the court -assigning for further reason that it was in the nature of an ex parte statement, and offered for the purpose of doing indirectly what the law forbids, the contradiction by a party of a solemn statement made by him-in a notarial act. Opponents reserved a bill of exception to this ruling.</p> <p>The District Court rendered judgment sustaining the plea of •estoppel and dismissing the opposition, and reserving to the administrator the right to file a proper account for his discharge. Opponents appealed.</p>

<p>when parties have been jointly indicted for an offence, and only one is put upon trial, the others indicted are, under Act 29 of 1886, competent "witnesses against the accused on trial; this, whether they have been convicted or have pleaded guilty. State vs. Mach, 41 An. 1079; State vs. McManus, 42 An. 1194.</p>

<p>where a defendant in a justice’s court admits all the facts going to establish his liability for a license under the exact terms of a municipal ordinance fixed at seventy-five dollars, an appeal taken to the District Court from a judgment based on such admission, having simply in view a decision of that court as to the legality of the ordinance, was properly dismissed.</p>

<p>\ PPEAL from the Seventeenth Judicial District Oourt for the Parish of Lafayette. DeBaillon, J.</p>

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