Volume 50 — Louisiana Annual Reports

<p>A party can not be arrested and kept in prison five days merely on an afiivavit that he is dangerous and suspicious, or that he has violated an ordinance embrac- * ing numerous offences with no specification of the offence intended to be charged. Horr & Bemiss Municipal Ordinances, Secs. 165, 172, 173.</p> <p>This court, by its writs of certiorari and prohibition directed to the committing magistrate, has the power to order the release of the party from such imprisonment. Const,, Art. 90.</p>

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

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

<p>Act 84 of 1891 is constitutional and valid to the extent that it provides that the State may coerce the trial of the cause by making the admissionithat if the witness named in the affidavit for a continuance were present he would testify to the truth of the statement contained therein.</p>

A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia.

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

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

<p>"Where a party proceeded against by information filed in open court has pleaded to the said information and gone to trial and is convicted, and on his appeal the verdict of the jury and judgment are set aside and the case remanded for further proceedings, it is too late for him to urge for the first time in arrest of judgment ofter a second conviction, that the information had been filed without the consent of the court first obtained.</p> <p>•The defendant by pleading to an information waives the objection that the said information was filed without leave of court first obtained.</p>

<p>On Application Por a Writ op Certiorari.</p> <p>iQN APPLICATION for Writ of Certiorari*</p>

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

<p>The law of 1874 decreeing the prescription of three years against actions to invalidate tax titles held to be in force and applicable to facts of this case.</p> <p>Purpose of this statute is to obviate necessity on part of purchasers at tax sales, after lapse of three years, of substantiating validity of the tax titles under which they hold</p> <p>Wliere the purchaser has actual and open possession, this fact puts original owner under notice of necessity of bringing his action within the time fixed, in default of which the bar of the statute applies.</p> <p>Defendant has the right to stand on his possession. Plaintiffs cannot force him. in defence, to assume the attitude of plaintiff in a petitory action.</p> <p>Instant case distinguished from Remiclt vs. Lang, 47 An. 922; Blood vs. Negrotto, 47 An. 1132; Johnson vs. Martinez, 48 An. 52; Hoyle vs. Athletic Club, 48 An. 879; Breaux vs. Negrotto, 43 An. 428.</p> <p>The law relative to the assessment of;property for taxation, its description, proper use of name of owner, how to be listed when held in indivisión, etc., stated.</p>

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

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

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

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

<p>'The right of action which survives in favor of certain designated persons as beneficiaries, for the recovery of damages for personal injuries to a deceased, perishes with the deceased claimant, notwithstanding suit has been filed and put at issue by an answér.</p> <p>An action for damages for personal injuries arising ax delicto does not survive the death of the claimant, in case in results from the injury inflicted.</p> <p>The general rule is, as established by the Civil Code, and Code of Practice, that an action does not abate by the death of the plaintiff after answer filed; but the right of action for the recovery of damages to an injured person who dies from the effect of the injuries received survives only upon the express terms of the act of 1894, and in favor of the beneficiaries therein designated, and its provisions must be construed strictly.</p>

<p>A PPEAD from the Civil District Court for the ^Parish of Orleans. King, *7.</p>

A PPEAL from the Sixteenth Judicial District Court for the Parish of St. Tammany.

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

<p>The duty of retreat of one assaulted with intent to take his life or do him bodily harm is not unqualified. There is no obligation of such retreat when, from the suddenness or violence of the attack, retreat would endanger the life of the person assaulted. lArbhbold Criminal Law, p. 791; State vs. Chandler, 5 An. " 490; State vs. Spears, 46 An. 1524.</p>

<p>Where a deceased person, at the time of his being, wounded, states to a witness- . that be could not live much longer and that he was bound to die, his declarations made under such circumstances are admissible in favor of an accused as a dying declaration. ■ ' ■ '</p> <p>■ There is no rule of practice or of law requiring that a dying declaration should be made all at one time, without interruption or turning aside to other matters.</p> <p>A failure on the part of the witness to whom the statement was made to have heard, or to have remembered all the conversation which may have taken place at the time between the deceased and other parties, does not do away with the fact that the witness heard everything and remembered everything that was said to him or in reference to that particular subject when he was present. *</p> <p>Rules of evidence relative to the admissibility of dying declarations are not to be as rigorously applied when the fact itself of their having been made has been satisfactorily established, and they are in favor of the accused as when they are sought to be urged against him.</p> <p>The fact that the declaration was elicited by questions asked the deceased by the witness, instead of being a volunteered statement, does not render it inadmissible.</p>

<p>An action by heirs for the recovery from the succession of their father the amount of their interests in the succession of their predeceased mother is not a personal action prescriptible by ten years, but one for an entire succession, which is prescriptible by thirty years.</p> <p>Contracts made during the late war in one of the Confederate States, payable in Confederate money, will be enforced in the Supreme Court, when the value of same, as compared with lawful money of the United States at the time aud place of contract is ascertained by proof.</p> <p>An executory contract, made in 1862 in Louisiana, for the future delivery of cotton to the Confederate States government, for and in consideration of Confederate States bonds, to be furnished thereafter, does not evidence a complete sale; only a promise of sale which entitled the promissee to sue for a specific performance, or damages for the non-fulfilment of the contract.</p>

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

<p>QN Application for Writs of Mandamus and Certiorari.</p> <p>On Application por Writs op Certiorari and Mandamus.</p>

<p>Charges of adultery, under the circumstances of this ease, set forth by the wife against her husband, as a ground for a judgment of divorce, do not, of them* selves, constitute a defamation.</p> <p>The charges had been abandoned by the wife, and her suit dismissed without prejudice to the husband’s reconventional demand for a separation from bed and board.</p> <p>In that condition, the defendant having failed to sustain his demand in reconven* tion by other than plaintiff’s allegations, they were not alone grounds or cause for a judgment of separation.</p> <p>Excesses, cruel treatment and outrages of the wife form a legal ground for separation, but no acts of ill treatment occurring after suit has been brought are alone and of themselves cause for a judgment of separation.</p> <p>Statements of the wife (made to a committee appointed by a secret order, of which the husband was a member, w ith the purpose of re-establishing pleasant relations between spouses) can not be taken of themselves as a manifestation on her part (notified as she was to appear and make a statement) of deliberate intention to wantonly injure her husband and publicly defame his character.</p>

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

<p>Under the Act No. 105 of 1892, providing for the annexation of adjacent lands to the; area of incorporated towns or cities, the council of the city has no power to-order the election preliminary to any proposed enlargement of the city limits, unless the petition for annexation is before the council from one-third in number and value of the property owners residing within the territory proposed to-be added to the city or town.</p> <p>The owner of property within the area to be added to the town or city has the-right to enjoin the execution of the ordinance of the council directing the elec-. tion prescribed by the statute, when the ordinance is adopted without the ful-, filinent of the conditions exacted by the Act No. 105 of 1892 as requisite to authorize the ordinance and election.</p>

<p>The action was revocatory. When plaintiff’s claim does not exceed two thousand dollars, and the valueof the property involved in the contract sought to be annulled is greater than that amount, inasmuch as in such action the judgment can only affect the complaining creditor and the debtor to the amount of the former’s claim, the appellate jurisdiction is tested by reference to the amount of plaintiff’s claim.</p> <p>But when plaintiff’s claim exceeds two thousand dollars, and the value of the property, the sale of which is sought to be annulled as fraudulent, is less than two thousand dollars, the creditor can not recover an amount larger than the value of the property; that is the only amount at issue, and by it the court’s jurisdiction, is determined.</p>

<p>The intervenor’s action, did not raise foreign issues; it did not change the character of plaintiff’s action, and was not revocatory; therefore, the motion to dismiss was overruled.</p> <p>Separate, independent agreements of which no one knows anything save the creditor and the debtor cannot affect third persons, and can not be taken as an absolute basis for prescription.</p> <p>An imputation of payment, made at the time that the insolvent debtor paid, in part, his indebtedness to a senior mortgage creditor can not subsequently be recalled and changed to the prejudice o£ the junior mortgage.</p> <p>To the extent that payment is made a mortgage is annulled.</p> <p>it is not possible to give new life to the part annulled and thereby lessen the chances of recovery on the junior mortgage. .</p>

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

<p>"When the accused does not choose to testify it is not error on the part of the judge to charge the jury that he is not bound to testify, and that his not having testified must not be construed against him.</p> <p>The admonition by the judge to the jury was not a comment on the fact.</p> <p>•It was a compliance with the language of the statute, and, although not requested by the accused, it was not reversible error to instruct them not to interpret his silence against himself.</p>

<p>As Relates to the Utterances oe the Attorney During the Trial, one oe Plaintiee’s Grounds.</p> <p>Tlie attorney, not his client, is responsible for (alleged) defamatory utterances of the former in the course of the trial of the latter’s cause. R. S. 123.</p> <p>As Relates to Proceedings Complained oe.</p> <p>The burden of proof to show a want of probable cause was upon the plaintiffs. In other words, the want of probable cause will not be inferred from the mere fact of the prosecution.</p> <p>The evidence for plaintiff did not prove that defendants instituted suit against him, and made the damaging allegations complained of, without cause for such action.</p> <p>Verdict of jury, and judgment of court affirmed.</p>

<p>A venire drawn in the absence of two members of the jury commission will notbeset aside, it appearing that the absent members had notice of the lime and place for the drawing.</p> <p>The¿roces verbal of the drawing of a venire may be supplemented by the certificate. of the clerk, made as required by the statute, showing that the absent commissioners had been duly notified. It need not be incorporated in the ¿roces verbal of the drawing of the venire.</p> <p>The suggestions of the District Judge in matter of the clerk’s certificate were proper, and offer no ground for objection.</p> <p>The¿roces verbal written by the deputy clerk, under the control and direction of the clerk, is not an irregularity for which a venire should be quashed.</p> <p>The date for the drawing of the venire was sufficiently shown, and in time to notify all concerned.</p> <p>The requested instruction to the jury was sufficiently clear to make it proper to instruct the jury that «* concealment after the act, without previous preparation, is not necessarily proof of intent.”</p> <p>The trial judge should, in all trials for murder, instruct the jury under Art. 785 of the Revised Statutes that they may find the prisoner guilty of manslaughter, State vs. Brown, 41 An. 411, and State vs. Jones, 46 An. 1395.</p> <p>It was a misdirection in matter relating exclusively to a murder trial, in which the court is specially required to inform the jury that four verdicts might be-found.</p>

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

<p>Jurisdiction sustained — right of possession of certain premises being at issue,, with oath of plaintiff that this right is worth more than two thousand dollars, and that he would be damaged exceeding that sum if defendant is not restrained from invading same.</p> <p>Proportionate area or acreage system for division of alluvion between adjoining riparian proprietors excluded.</p> <p>Each proprietor of original tracts takes between the lines oí his new frontage on the water-course measured back to the old frontage.</p> <p>Course or direction of side lines of no consequence. Extent of old frontage on the water-course determines extent of the new frontage on the water-course.</p>

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

<p>An invitation from the master or proprietor to come upon dangerous premises -w'thout apprising him of the danger is just as culpable, and an injury resulting from it is just as deserving of compensation in the case of a servant as in any other.</p> <p>A man can not be understood as contracting to take upon liimself risks which he neither knows nor suspects, nor has reason to look for; and it would be more reasonable to imply a contract on the part of the master, not to invite the servant into unknown dangers, than one on the part of the servant to run the risk of them.</p> <p>Whether invited upon the premises by the contract of service or by the calls of business, or by direct request, is immaterial; the party extending the invitation owes a duty to the party accepting it to see that at least ordinary care and prudence are exercised to protect him against dangers not within his knowledge and not open to observation.</p> <p>The servant assumes the risk of such hazards as are apparently incidental to an employment intelligently undertaken, and those only.</p> <p>A superior is presumed to know whatever may endanger the person or life of an employee, in the discharge of the duties of his employment, and is bound to specially warn him of the nature of the danger, unless said employee well knew of the existence and extent of the hazard or risk, or willingly exposed himself to it.</p> <p>If the negligence of the master caused or contributed to the injury of his servant, the former is liable to* the latter, notwithstanding the negligence of a fellow-servant likewise contributed thereto.</p> <p>When an injury is caused partly by the negligence of a fellow-servant and partly by the failure of the master to provide the servant a reasonably safe place at which to work, the negligence of the fellow-servant will not exonerate the master,</p> <p>When the service to be rendered requires for its performance the employment of several persons, there is necessarily incident to the service of each the risk that the others may fail in the exercise of the caution that is essential to their mutual safety.</p> <p>Consequently, there is implied in the contract of service in such case that each servant takes upon himself the risk arising from the negligence of the other, while in the common employment; always provided that the master is not negligent in the selection or retention of the fellow-servant of either, or in providing him a reasonably safe and suitable place at which to work, and reasonably suitable tools and materials with which to work.</p> <p>It is necessary in order to constitute a fellow-servant within this rule of jurisprudence, that the servants should be fellow-laborers in the same work, or the same department of a common employment.</p>

<p>1. Attempted seizure by garnishment process of rights of judgment debtor under an existing contract. Unsatisfactory answers of garnishees and rule to traverse.</p> <p>2. Because the interest of judgment debtor could not be definitely determined at trial below, non constat that there may not be an eventual right or interest in or flowing from the contract, which is still in force and operation, accruing, or to accrue, to the debtor at the time of termination thereof and then ascertainable, which may be made available under the seizure.</p> <p>3. Instead, therefore, of decreeing against plaintiff and releasing garnishees, final disposition of case should have been postponed until termination of contract, with reservation of plaintiff’s rights under the seizure.</p>

<p>j\ PPEAL from the Eleventh Judicial District Court for the Parish of Acadia. Dupré, J.</p>

<p>While parol evidence is admissible to correct an error in the description of property mortgaged; yet a special demand to correct should be made, and a correct description of the property should be set forth as part of the demand to correct.</p> <p>*The prayer for general relief does not supply failure to ask for an amendment of the mortgage of property incorrectly described.</p> <p>Judgment was annulled and case remanded for proper amendment.</p>

<p>The separate creditor o£ either spouse can not, after dissolution of the community, deal with an undivided interest of his debtor iu any specific piece of property belonging to the community, proceed against it by direct seizure, sell it and. apply its proceeds to payment of his debt.</p> <p>His proper course is to force by appropriate proceedings a final settlement and liquidation of the community, and then to subject, by process of law, the interest of his debtor thus found to the satisfaction of his claim.</p> <p>A wife, owning by inheritance an undivided half of a plantation, purchases during the marriage from her co-heirs their interest. The interest so purchased fell into the community of acquets and gains, unless declared and shown to be purchased for her separate account with paraphernal funds.</p> <p>A husband, who, after dissolution of the community by death of the wife, pays out of his own funds debts of the community,-becomes subrogated to the rights of the creditors so paid.</p> <p>Against his claim for reimbursement of the debts thus paid — he having the.administration of the property — prescription does not run until a liquidation and settlement of the community.</p> <p>Where the separate property of the wife during her lifetime is administered by the husband, the debts incurred in such administration, such as expenses of cultivating a plantation, are community debts, and the revenues assets of the community.</p>

<p>Our Code declares that a partnership may be dissolved for the breach of one of its obligations.</p> <p>It declares that it may be dissolved for just cause without furnishing any interpretation of that term. Hence it is a question for the courts to determine.</p> <p>partnership is essentially a relation of mutual trust and confidence, and when they cease the engagement is virtually at an end.</p> <p>One of the members of an ordinary planting partnership having failed or refused to comply with the terms of his engagement to furnish his proportionate share of the funds necessary to carry the planting operations to completion, violates one of the essential obligations of the contract and gives to the other partner just ground for annulling it.</p>

<p>Suit having been commenced against several non-resident defendants by attachment and the garnishment of resident commission merchants, as stakeholders, a judgment pronounced against them upon traverse of their answers will be reversed if the evidence substantially shows that they have paid and satisfied the plaintiff’s demand.</p>

<p>In case, by the term of a criminal or a ^«aj/'-criminal statute, it is made the mandatory duty of the Attorney General to enjoin persons from violating its provisions, such injunction can not be suspended upon the defendant furnishing bond. That would be, in effect, granting to the defendant leave to continue its violation pendente lite.</p>

<p>ft PPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Beid, J.</p>

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

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

<p>Tlie power to grant a change of venue is, in great part, confided to the District Court. His refusal to' change the venire will not be reversed unless it is clearly shown that it was erroneous.</p> <p>An objection to the manner of drawing a ventre can not be successfully made by one under accusation, unless made on the first day of the weels for which the venire was drawn.</p> <p>-A motion to annul and set aside the venire made by a defendant in one ease can not be made available by another defendant in another case. State vs. Courtney, 28 An. 79á; State vs. McCoy, 29 An. 593; State vs. Washington, 33 An, 897.</p>

<p>The jurisprudence of the State has recognized the right of a plaintiff in injunction when the injunction taken out at his instance has been permitted to be bonded by the defendant, and he has been refused a suspensive appeal from such order to bond, to test the correctness of the District Judge’s ruling on the character and results of the act enjoined by calling into exercise in his behalf the supervisory powers of the Supreme Court, under an application for a mandamus to the judge to grant the appeal asked for. The position of the parties, and the scope of the issues presented to the court for decision under such circumstances, are discussed in Puckette vs. Hicks, 39 An. 901; State cx rel. Violett vs. Judge, 46 An. 81, 82; State ex rel. Lehrman vs. Judge, 46 An. 163, ei seq.</p> <p>For the purposes of a decision, as to whether the act prohibited was one such as would work plaintiff an irreparable injury, the allegations of the petition for injunction are to be taken as true, with the limitation that this extends to and covers only allegations well pleaded, not to conclusions of law. nor matters of mere evidence pleaded therein. An allegation that the act restrained, if permitted, would occasion irreparable injury, is a mere inference and deduction from the acts and facts charged, the verity and soundness of which the Supreme Court can review. Orescent City Stock, etc., vs. Police, 32 An. 1194, 1195,1196,</p> <p>The issue presented to the court (though in a different form) is substantially the same as that which it would have to pass on, had the suspensive appeal asked for been granted, and had the appellee moved to dismiss the appeal on the face of the papers, on the ground that it should not have been granted, as it was from an interlocutory decree working no irreparable injury. Villavaso vs. JEJarthet, 30 An. 417.</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>A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.</p>

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

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

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

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

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

<p>A bill of indictment Raving been returned against the accused, two days later he was arraigned thereunder, and, without any reservation, pleaded not guilty and elected to be tried by jury. Subsequently, on day fixed for trial, he files a motion to quash on the ground of error and irregularity in the organization of the Grand Jury.</p> <p>Held: The motion to quash can not be entertained after a plea to the indictment has been entered.</p>

<p>A PPEAL from the Second Judicial District Court for the Parish of 1 Bienville. Watkins, J.</p>

<p>Not a fatal irregularity to wait until panel is completed before administering oath to jurors, even though there be an adjournment over night, where those accepted as jurors on the incomplete panel are kept in the custody of the sheriff and properly instructed not to speak of case, etc.</p> <p>Signature of witness to his deposition, taken at preliminary examination before the judge, not required; nor that the testimony at such examination betaken down by the judge himself, if done under his supervision; nor is it necessary that it be formally certified to by the judge, or clerk of court.</p> <p>A witness can not be cross-examined as to a fact collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence if he should deny it, thereby to discredit his testimony,</p> <p>A witness can not be contradicted without first laying a foundation therefor by calling his attention to the time, place and circumstances, as well as to the parties to whom the alleged statement was made, and thus giving him the opportunity of denying or explaining. And the doctrine holds good though the witness be absent or dead, and his previously taken deposition is offered. And it makes no difference that the contradictory statement was made afier the deposition was taken, or, if made before, was not known to the accused or his counsel.</p> <p>It is for the court, not the jury, to decide what is and is not admissible as evidence, and to pass upon the sufiiciency and effect of testimony offered to lay the foundation for the production and admission of testimony relating to the merits of the case, taken at a previous trial, by a witness absent at the subsequent trial.</p> <p>Before evidence of threats on part of deceased can be introduced, there must be a showing of an overt act, or hostile demonstration.</p> <p>An accused person not going on the stand as a witness is entitled to have the jury instructed that his declination of the privilege gives rise to no inference against him And if he goes on the stand, the jury may properly be charged that in weighing his testimony they may take into account the fact of interest in the result of the trial.</p>

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

<p>A PPEAL from the Seventeenth Judicial District Court for the ■C* Parish of Vermilion. De Baillon, J.</p>

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

<p>The police jury in the exercise ol the power oí taxation with which it is clothed under the Constitution and laws, met by the claim of a municipal corporation that part of the parish has been detached and added to the municipal corporation, is not suspended in the exercise of the power of taxation by such claim of the city, hut may levy the parochial taxation and thus present for judicial determination the conflicting pretensions of the city. Constitution, Arts. 249, 250 et seq.; Act 1892, No. 105; 47 An. 589.</p> <p>The prescription of personal actions can not be applied to deprive a political corporation of the function of taxation vested in it by the Constitution, and which the corporation can not surrender.</p>

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

<p>The citizen sued for taxes by a municipal corporation claiming power to levy taxes on tlie territory embracing his property under the proceedings by •which the territory is alleged to have been annexed to such city may resist the collection of the taxes by injunction when there is no law to authorize the asserted proceeding or when at a later period the requisite law is enacted, bu the record shows no substantial compliance with the statute in the proceedings on which the corporation relies. Act No. 110 of 18S0; 47 An. 589;*Act No. 105 o£ 1892. *</p>

<p>Ox Motion to Dismiss Appeal.</p> <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, Théard, J.</p>

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

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

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

<p>"One of the buildings leased (not both) was rendered temporarily uninhabitable by the fire. To restore the building temporarily uninhabitable, repairs were necessary, and not reconstruction.</p> <p>The building could have been put in condition for use in seventeen days. The •defendants after the fire remained in possession more than that number of days. Those who held the premises under the defendants and for their benefit, objected to the work of repairing, and prevented the possibility of repairing the building within the time stated.</p> <p>While the lessor ought to make, during the eontinuauee of the lease, all the repairs which may accidentally become necessary, the tenant should not interpose obstacles to the work of repairing,</p> <p>Partial destruction remediable by repairs and which do not require reconstruction, will not give good grounds to dissolve the lease.</p> <p>The judgment of those who are skilled in matter of building and the repair of building as to what constitutes reconstruction, and what constitutes repairs of a building, is entitled to great weight.</p> <p>Where the lessee has property to store immediately after a fire the offer to him by the lessor of a store room as an accommodation is not grouDd to rescind; nor does it necessarily manifest a desire to put an end to the lease. The annulment of leases is not favored, where the lessor is not at fault. 21 An. 23; 6 An. 379.</p> <p>Where lessees abandon the premises, the lessor may, for the purpose of minimizing the loss, offer " to let ” the property. Such acts will not cancel the lease. 6 An. 74.</p> <p>The petition and the document annexed are construed together, and error in the petition as to interest was amended by reference to the contract of lease annexed. 15 L. 116; 5 An. 575.</p>

<p>A mortgagee takes out executory process. Tlie mortgagor enjoins on the ground of outstanding title to part of the property in a third person. The third person appears And by authentic act disclaims title, and the act is duly recorded.</p> <p>This act is held not to be a.donation and not subject to the provisions of law relating to such dispositions, nor to the implied conditions the law attaches to the same.</p> <p>It is what it purports to be, a disclaimer of apparent title, and estops the maker and those claiming under and through him.</p> <p>The cause of complaint being removed the injunction falls.</p>

<p>A sentence imposing a fine for violation of a municipal ordinance was sought to be appealed from, alleging the illegality and unconstitutionality of the fine.</p> <p>It appearing that the judgment in question has been acquiesced in and the fine imposed paid without qualification or protest, the writ of mandamus to compel the granting of the appeal is denied.</p>

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

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

<p>1. The testimony of the husband that his wife’s father gave her the.rents of his lands cultivated by the husband, and his testimony of the value of the rents will not suffice to establish as against his creditors the debt of the husband for paraphernal funds; the proof must be clear that the husband received: the money or property of the wife. 0. O., Arts. 2383, 2390; 11 La. 45S; 6 Robinson, p. 36; 2II. D.,p. 508, No. 4.</p> <p>2. The surviving spouse in his settlement with the heirs of the deceased wife for her share of the community property, is entitled to a credit for the community debt paid by him. C. 0., Arts. 584, 585; 3 An. 497, Succession of Bringier; 4 An. 389.</p>

<p>A motion to quash an indictment on the ground that the grand jury who presented it was illegal, because they were not drawn and organized, on the first day of the term as fixed by law, comes too late if not filed on the first day of the term; and same will he overruled, unless exceptional circumstances are stated showing clearly that a compliance with the law in this respect was impracticable.</p>

<p>Reiterated that it is the amount of the fund to be distributed, and not that of the claim of the complaining creditor, that determines the jurisdiction of this court. Motion to dismiss appeal denied.</p> <p>Where creditors, recognized on a receiver's account, are opposed, it is incumbent on such creditors to adduce the proof necessary to substantiate their claims, and failing in this they will be stricken from the account.</p> <p>After the judgment amending and homologating the account has become final andthefUDds have been disbursed by the receiver pursuant to its mandate, this court, under the facts here presented, will not reverse and remand in order to permit opportunity to complaining creditors to appear and prove their claims.</p>

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

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

<p>Tlie powers and obligations of municipal corporations are twofold in character, (1) those that are of a public nature, and (2) those that are of a private nature.</p> <p>As to the first, the municipal corporation acts as the agent of the State — discharging duties incumbent upon the State — and as the representative of sovereignty is not answerable for the non-feasance or malfeasance of its officials.</p> <p>As to the second, the corporation represents the pecuniary and proprietary inter- • ests of individuals, and the rules which govern the responsibility of individuals are properly applicable.</p> <p>While, in a general sense, not liable for the non-feasance of its officers, the city of New Orleans is responsible for damages arising ex contractu^ having as their source the breach of a contract duly executed by its corporate agents acting within the scope of their authority and in the line of their duty.</p>

<p>A provocation which would not naturally cause instant resentment, but which would have to be thought or brooded over after its commission in order to produce rage or anger is not in contemplation of law a provocation sufficient to reduce an intentional killing from murder to manslaughter.</p> <p>The use of the words “ ordinary man ” for “ reasonable man ” in the charge given by the judge is in no sense prejudicial to the accused.</p> <p>It frequently happens that a witness contradicts himself for want of a proper application of- the questions asked him. Where there is a difference between counsel as to what the answers made were the court is authorized to give the witness an opportunity to set himself right. State vs. Wiggins, 45 An. 416.</p> <p>The District Attorney having propounded to the defendant then on the stand a certain question, his counsel objected that it had been several times asked and answered in the negative and should not be asked anew. The District Attorney contended that it had been answered in the affirmative. The court overruled the objection, stating “it seemed that this witness has answered this question both ■ways, and the court will permit the attorney to ask the question again so as to finally determine this matter.” Counsel of defendant objected to this statement and reserved a bill on the ground that “it was a comment on the evidence.” The court stated to the jury that it.was not intended as a comment on the evidence, but merely as a reason for permitting the question to be asked and that they should pay no attention to the statement.</p> <p>The object oí tbe question propounded by the State was through an affirmative answer given by the defendant to hold the ease down, to one of “ murder.” The effort was unsuccessful, the jury having returned a verdict of “ manslaughter.” Held, that while it is the duty of district judges to carefully abstain from any expression of opinion or comment upon the facts of a criminal ease not only in their charge to the jury, but in their rulings in the presence of the jury upon the admissibility of evidence, and to avoid, as far as possible, at all times, both in their language and in their conduct and actions, saying or doing anything from which the jury might draw any conclusion as to their view of the case before, them the statement of the judge in this particular case furnished no legal ground for reversal.</p>

<p>A statement made by sureties of an accused person who failed to make an appearance as required by his bond, and whose bond had in conseqence of said default been forfeited, that “ they weve prepared to produce their principal,” is not the formal surrender of a principal required by Sec. 1038 of the Revised Statutes. The court affirms State vs. Martin, 49 An. 752.</p> <p>Where the crime with which a person stands charged is a felony his attorney is without authority to waive his arraignment in his absence. State vs. Meek-ins, 41 An. 543; State vs. Jones, 70 Iowa, 505; Younger vs. State, 2 West Ya. 579; 98 Am. D. 791; Bishop’s New Criminal Procedure, Yol. 1, par. 268; People vs. Redinger, 55 Cal. 298; American and English Encyclopedia of Law, title, “ Criminal Procedure,” page 762.</p>

<p>Where the legality or constitutionality of a municipal ordinance imposing a fine js not attacked, this court can not, through an appeal, inquire into the legality OÍ tlle proceedings taken or the correctness of the judgment rendered.</p>

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

<p>A final judgment should be read in open court.</p> <p>While it is not necessary that the judgment shall recite that it was read in open court, if the judgment does not so recite, it should affirmatively appear by proper entry in the minutes.</p> <p>i’or the purpose of the trial of the rule to dissolve tho injunction, the averments of the petition were talren as confessed. By them it appears that the judgment was not read in open court. In the absence of any evidence of record, showing compliance with Art. 543, C. P., in regard to reading the judgment in open court, the court holds that the question is jurisdictional, and that there can be no valid judgment without reading it as required, and entry in minutes also showing that it has been signed. It must appear that the act of reading and signing the judgment was in open court and not at chambers.</p>

<p>An owner is responsible for personal injuries inflicted by his wagon when engaged on his business, ,and which are occasioned by the want of care or negligence of the driver, his employee.</p> <p>The law of the road is to keep to the right, and city ordinances in New Orleans require it. But where the right or lower side of the street was not in proper condition for the safe and easy passage of vehicles and the upper side was, and it appearing that it was usual for vehicles to use the upper side whether going toward or from the river: Held — -the fact that plaintiffs vehicle (going from the river) was on the left or upper side of the street at the time of the collision does not militate against his case.</p>

<p>There is no legislative authority to try appeal cases in the District Court before juries. The right to trial by jury is given in civil eases before courts exer cising original and not appellate jurisdiction.</p> <p>The issue regarding the improper division of tile amount into three different suits was not before the Supreme Court, it not having been raised before the District Court.</p>

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

<p>The constitutional guarantee that the defendant in a criminal prosecution shall enjoy the right to defend himself and to have the assistance of counsel is not an empty formality, Tbut an inestimable priy ilege; and counsel should be allowed reasonable time to prepare the defence.</p>

<p>1. This court has no jurisdiction to review the facts on which the verdict in criminal cause rests.</p> <p>2. A juror can not be heard to impeach his own verdict. Nor can this be do indirectly through a third person testifying to remarks made by a juror after the verdict.</p> <p>3. The law and motives of public policy alike exclude such testimony.</p>

<p>1. A General Averment not Sufficient. — The allegation that tile verdict was contrary to the law, and the evidence does not present of itself question for review or appeal.</p> <p>2. Not Improperly Influenced. — Where there was no ground to suspect (though alleged) that the jury had been improperly influenced, the verdict and sentence must remain as returned.</p> <p>3. Sheriff in Charge of fury. — Communications between the jurors and the officer in whose charge they were affords no ground for á new trial, where it does not appear that prejudice resulted.</p> <p>4. Indictment Contained all Essential Allegations. — The terms of tile indictment technically charged the offence and brought the case within the provisions of the statute.</p> <p>5. The omission of the words “ in the peace of the State” did not vitiate the indictment.</p>

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

<p>The State is entitled to an appeal from a ruling of the trial judge on a motion in arrest of judgment, sustaining the motion and setting aside the verdict. The order 'annulling the verdict was in character final, and if erroneous, caused injury.</p> <p>On the Merits.</p> <p>The verdict was not responsive to the charge. It was a special verdict. If the jury chooses to designate the crime found by name, it should be defined by name having a meaning in criminal law, or defined in plain words covering all the essential ingredients of the crime.</p> <p>No judgment can be pronounced on a partial verdict which fails to find the criminal intent, where intent is an essential ingredient of the crime.</p> <p>In a special or partial verdict of the jury’s selection, all the facts necessary to constitute the crime must be clearly stated. 1'f the jury determines to leave out part of the language charged in the information, they should be particular not to omit essentials to constitute the crime.</p> <p>A verdict “ Guilty of wounding less than mayhem,” is not responsive to an information charging that the accused has “ feloniously, wilfully and maliciously inflicted a wound less than mayhem,” and is not legal.</p> <p>The court adheres to the decisions in State vs. Bellard, 50 An. —; and State vs, Hearsey, 50 An. —, overruling contrary views.</p>

<p>1. The switching of cars in the night-time on the main tracks of a railroad, with no lights displayed, or other precautions used to warn approaching trains of the obstructed track, resulting in the collision with the obstructing cars of a freight train dispatched with no notice or warning of the obstruction, will be deemed negligence in the railroad company, subjecting it to dam ages caused by the collision.</p> <p>2. Nor is the liability of the company at all lessened because the main track obstructed is within what are termed yard limits, extending eight hundred feet and over which all trains must pass, and such obstructions menacing such trains unless proper precautions are employed.</p>

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

<p>In an action for damages received from a collision between a cart and a street car,moving side by side in the same course, with a short space between them (one can not strike the other if each remains in its direction). It being evident that the car did not turn, but that the cart was turned so that it struck the side of the car, the presumption of negligence was not against the street car.</p> <p>To recover it was incumbent- upon the plaintiff to prove that the collision was caused by the negligent acts of the defendant. On the contrary, ifappears that it proceeded from the incautious act of the driver in pulling his horse to the left.</p> <p>Held: That the injury was not caused by defendant’s negligence and that there is no ground for deciding that the unanimous verdict of the jury and the judgment of the court pronounced thereon were erroneous.</p>

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

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

<p>Plaintiff, holder of certain judgments against the city of New Orleans, attacks certain items of expenditure found on the city budget for 189S as being illegal, demands that' same be stricken therefrom and that his own judgment be placed thereon in their stead, to be paid by preference in full. Exception of no cause of action disclosed, filed to his petition, sustained.</p>

<p>1. Tlie rule of law requires that the confession of an accused person, sought to be admitted to the jury, shall have been made voluntary without the appliances of hope, menace, or fear by any other person.</p> <p>2. And whether it was so made or not is to be determined upon consideration among other things, of the circumstances under which it was made.</p> <p>3. The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that it was voluntarily made; but it is that it must be sufficient to establish that the malting of the statement was voluntary.</p>

<p>A district judge having granted and made a writ o£ mandamus against a justice of the peace peremptory, commanding him to grant a writ of injunction against the consummation of an execution sale, because the defendant had no? been notified of the proceedings antecedent to trial and judgment, same will not be disturbed or inquired into by means of certiorari and prohibition, if same appear to have been regular and jurisdictional.</p>

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

<p>It is usual to have a motormau and conductor on a train consisting of a car and trailer carrying passengers.</p> <p>Approaching a railroad crossing on a steep grade the train of defendant company was not stopped owing to the fact that it was not controlled by the motorm an.</p> <p>The result was that it rail into the passing train of the Texas & Pacific Railway. At the moment of the collision plaintiff, a passenger on defendant’s train leaped off and was injured.</p> <p>The duty was, by the ordinances of the municipality and rules of safety, imposed upon the defendant train to stop at the crossing. It was not stopped.</p> <p>The ordinary care due passengers was wanting. There was only a motorman and no conductor on the train to properly apply back brakes. There was actionable negligence.</p>

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

<p>It is proper practice to test by rule to show cause whether or not the preliminary orders in proceedings for respite were providently issued, and if found not to be so, for the judge to seasonably revoke the same.</p> <p>An agreement under which one party advances all the capital needed by another to conduct a certain business, and which stipulates that in the event he disapproves of the management of the business, he may take possession of the same, assuming all liabilities, is not a nudum pactum.</p> <p>Agreements and covenants which parties make between themselves must control in all things not contrary to law and goodmorals.</p>

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

<p>The amount realized from a sale of the property under foreclosure proceedings had been paid out to creditors ■with the consent of all concerned. There remained in the hands of the sheriff for distribution an amount less than the lower limit of the court’s jurisdiction» and the claim of the opponent was also less than that limit. The court had no jurisdiction.</p>

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

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

<p>A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.</p> <p>Plaintiff alleged that on or about the 8th of March, 1897, it received from the Metropolitan Bank of New Orleans a certificate of deposit issued by the St. Landry State Bank, in word's and figures following, to-wit:</p> <p>“ St. Landry State Bank, No. 31. “ Opelousas, La., March 12, 1896.</p> <p>“ Certificate of Deposit.</p> <p>“ Julius Meyers has deposited in this bank five thousand dollars, payable subject to conditions (see agreement) in current funds on the return of this certificate properly endorsed.</p> <p>“ (Signed) Fritz Dietlein.</p> <p>“ Cashier.”</p> <p>That said certificate has the following endorsements, to-wit:</p> <p>“ Julius Meyers,</p> <p>“ Henry Roos.</p> <p>"Pay to the order of Peoples State Bank,</p> <p>"Metropolitan Bank of New Orleans.</p> <p>"Endorsement guaranteed. A. 0. WUERPEL,</p> <p>``Cashier"</p> <p>"Pay to yourselves or order.</p> <p>"The Peonies State Bank of Ooelousas. La.</p> <p>"J. J. PERRODIN,</p> <p>`` Cashier."</p> <p>That said certificate was sent to petitioner to present to the said St. Landry State Bank in order to collect the amount called for thereby and said certificate under the agreement annexed thereto was due and exigible on the 11th of March, 1897. That petitioner sent said certificate through its runner together with other items which it had that day before collected to the office of the said St. Landry State Bank in Opelousas, Louisiana, and handed the same to the cashier of said bank for collection. That the said cashier, instead of paying the said certificate, illegally and wrongfully kept and detained the same and refused to give it up, but addressed to petitioner a letter, a copy of which is annexed to its petition. That thereupon the cashier of the plaintiff bank addressed to the defendant bank a letter and received an answer thereto, which letter, with its reply thereto, it also annexed to its petition.</p> <p>That the action of the St. Landry State Bank was illegal, wrongful and in violation of the custom prevailing between banks in the town of Opelousas and elsewhere; that it had no right to retain said certificate, but was bound either to pay or to return it to petitioner. That plaintiff was bound to obtain the return of the same in order to remit it to the Metropolitan Bank, or else to collect the money therefor. That the said bank having illegally and wrongfully taken possession of said certificate, was bound for the value thereof.</p> <p>The premises considered, plaintiff prays for judgment in its favor, condemning the defendant bank either to return the certificate and agreement thereto annexed, or else to pay it the amount of said certificate, to-wit: the sum of five thousand dollars, with legal interest from 11th March, 1895, until paid.</p> <p>In the letter of the plaintiff to the defendant bank (the letter was referred to in its pleadings), its cashier mentioned a certain telegram as having been received by it from the Metropolitan Bank, and which he stated accompanied his letter, and declared that the defendant bank would from it see the necessity under which plaintiff was to return the certificate of deposit which had been sent it for collection, and which had been handed to defendant in plaintiff’s regular clearings, but which it forcibly withheld. He made a formal demand on defendant for the immediate return of the certificate, or the payment of the amount thereof, announcing and warning it that his own bank would hold it responsible for the consequences of not doing so. Defendant replied that it was perfectly responsible for both the certificate and the deposit which it represented. That it claimed the ownership of both and would hold the same against the world until legally dispossessed. Defendant refused to return the certificate on the ground that it had become its property by virtue of an agreement bearing date Opelousas, July 31, 1896. Defendant excepted that plaintiff had no right of action, reserving its right to answer should the exception be overruled. The court ordered that the trial of the exception be postponed until the day of the trial o^ the case upon its merits, at which time it was to be taken up and disposed of before trial on the merits. That defendant should answer in the meanwhile without prejudice. Defendant answered, pleading, first, a general denial. Further answering, defendant averred, that it was the owner of the certificate declared upon and of the sum of money mentioned therein; that it became the owner thereof several months after said deposit was made, to-wit: July 31,1896, and by transfer and assignment made by Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathan F. Roos and Henry Roos, Jr., all residents of St. Landry, except Henry Roos, Jr., who was a resident of the parish of Orleans, said transfer and assignment being evidenced by a written contract executed and signed by defendant and by Issac Roos, who acted as agent for his said associates therein; that by the same the said Isaac Roos and his associates purchased from the defendant bank its claim of fifty-four thousand three hundred and thirty-seven dollars against the late firm of J. Meyers & Co.; the said Roos and his associates agreeing and promising, as part of the consideration of the transfer, that the defendant should not be held to account for the sum of money deposited in the defendant bank by Julius Meyers, and for which the said certificate was issued, and the said Roos . and his associates had authority from Julius Meyers to transfer said assets to defendant. That the possession of said certificate by the Metropolitan Bank was, in reality, possession of the said Roos and his associates and Julius Meyers, and the deposit of the said certificate with! said Metropolitan Bank was made by the said parties, directly or indirectly, and that they did so to protect themselves against the fulfilment of their contract with defendant, and with the intent thereby to deprive respondent, if possible, of its rights under the said contract.</p> <p>That it had the right as against the plaintiff to all the defences which it could make as against the aforesaid parties, because the certificate sued on was not negotiable paper and the plaintiff was not a third innocent holder thereof; all of the aforesaid parties being in collusion to defeat respondent’s said contractual rights-. That should the plaintiff bank be given possession of said certificate by-judgment of court, then, in that event, it had the right to have a judgment rendered in the present suit against the said Isaac Roos and his associates for the sum of five thousand dollars, and defendant had the right also to call them in warranty to defend this suit. Defendant prayed that plaintiff’s demand be disallowed and rejected and its suit dismissed, but in the event the court should hold that plaintiff was entitled to the possession of the certificate, it prayed for judgment jointly and severally against Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathan F. Roos, Henry Roos, Jr., and Julius Meyers for the sum of five thousand dollars, and that they be cited in warranty to defend this suit. Plaintiff moved the court to strike out of the defendant’s answer all of the defences thereon set up and pleaded, saving and excepting the general issue, for the following reasons:</p> <p>1. Because they are legally irrelevant and inadmissible, and are-not legally pleadable against the demands of the plaintiff.</p> <p>2. If not irrelevant and inadmissible and not pleadable, same were inconsistent with the general issue.</p> <p>3. If same were relevant, admissible, pleadable and consistent-with the general issue and be so held, then plaintiff specially declares that there was then pending in the same court another suit between defendants and the parties sought to be made warrantors in the-present suit for the same object as that set forth in the answer filed, and growing out of the same cause of action, to-wit, the suit of the St. Landry State Bank vs. Julius Meyers et al., and the plea of lis pendens was specially pleaded as to said issues and for the purposes, of this motion.</p> <p>4. That the issues setup in defendant’s answer, saving the general-issue, were issues which could not be litigated in this suit, as the necessary parties to such issues were not before the court, viz.: the Metropolitan State Bank and Isaac Roos and his associates named in the answer and Julius Meyers, nor could said issues or parties be brought into this suit as was sought to be done.</p> <p>5. That as to the demand to call in warranty it should not be granted, as there was no privity alleged to exist between said parties and the plaintiff.</p> <p>The District Court sustained the exception of no right of action- and dismissed the suit and plaintiff appealed.</p>

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

<p>‘The testimony of the dangerous character of the deceased when admissible in. support of self-defence urged by the accused must be restricted to the general reputation of the deceased for peace and quietness; hence, testimony of particular acts of violence of the deceased are properly excluded. 3 Rice on Evidence, Secs. 482, 476.</p> <p>Nor can the State be deemed to have opened the door for the admission of testimony of such particular acts of violence, merely because on re-examination the witness who has testified to such acts on cross-examination is asked by the prosecuting officer 1“ if he had ever heard the decased had hurt anybody.” 1 Greenleaf, Sec. 468.</p> <p>Instructions requested which by implication assume that the accused had established his defence are properly refused.</p> <p>The opinion of a witness whether the cuts in the clothing of the deceased indicated he had been stabbed while erect confronting the accused, or when ¿e had fallen in the ;arms of the testifying witness, can not be deemed expert testimony.</p> <p>'When the charge is full as to the law of self-defence ‘instructing as to the danger to life or limb that will justify killing; the obligation of the party assailed tore-treat; when retreat is not required and as to the other phases of the law deemed pertinent, the verdict of the jury will not be set aside because of the refusal of special charges covered by the general charge. 10 An. 264; 37 An. 77; 35 An. 970; 38 An 206.</p>

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

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

<p>1. To authorize the fines under the ordinance against the keeping of houses of prostitution or assignation there must be proof of the notice to the occupant given by the Mayor provided by the ordinance, and proof of the use of the house for the prohibited purposes. Flynn’s Digest of the Ordinances, See. 1081; 36 An., 913; 41 An. 1081.</p> <p>2. Hence, when such fines have been imposed with no proof of the prohibited use, and only on proof of the notice, and the relator has been denied the right to offer witnesses she claims would disprove the charge against her, the sentence of the recorder imposing the fines must be set aside. Constitution, Art 90; Code of Practice, Art. 857.</p> <p>3. The court again affirms that charges before the Recorders for violations of the laws or ordinances do not require the precision of indictments, but reasonable notice of the charge is all that is required. Horr & Bemiss on Municipal Ordinances, p. 45, Sec. 172; 43 An. 8B6; 44 An. 79.</p>

<p>Two questions are presented: First, will the writ of mandamus lie in the ease as presented — that is to say, if issued would it operate as an invasion of the judicial discretion vested in respondent judge? Second, is this executor, after paying a small fine and serving a sentence of ten days in jail for contempt of the authority of this court and of the lower court, in refusing to deliver up the property of the succession, which he holds as an officer of the court, to be permitted to go free, and is the power of the court as for contempt exhausted?</p> <p>Held: First, that the mandamus will lie.</p> <p>Second, that the power of the court as for contempt is not exhausted.</p>

<p>The wife obtained a judgment of separation from bed and board, but did not apply for alimony prior to the judgment.</p> <p>After judgment of separation from bed and board, proceeding by rule for alimony, being an accessory to the principal demand is permissible.</p> <p>Pension is due during the marriage. The marriage ties are not dissolved by the decree of separation from bed and board.</p>

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

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

<p>1. After being put in mora by written demand, followed by the filing of a suit to rescind, the ofter to execute by the obligor of a contract comes too late.</p> <p>2'. Charges in defendant’s answer of violation of the terms of the contract by plaintiff, and basing thereon reconventional demand for rescission and for damages, is inconsistent with offer to perform made previously.</p> <p>3. One seeking relief through rescission of a contract must first offer to restore his adversary to the situation he was in at the time the contract was entered into.</p>

<p>1. A commercial drummer, or canvasser, who goes out on the road soliciting orders for his house, whether it be located in or out of the State, and who takes with him samples of the goods or wares his house deals in, is not a “ traveling vendor ” with in the meaning of Sec. 13 of Act No. 150 of 1890.</p> <p>2. A business house, located in one of the towus or cities of the State, taking out the necessary licenses there, may send its drummers or canvassers out, with samples, to take orders in other towns and parishes without becoming subject to the payment oE a State, parish or municipal license in such other towns and parishes.</p> <p>3. The negotiation here of sales of goods which are in another State for the purpose of their introduction in this State is interstate commerce.</p>

<p>Enjoining a Member of a Partnership. — The injunction against a partner of a commercial firm had the effect of enjoining the partnership.</p> <p>The partnership, though not made a party defendant, save to the extent that the partner enjoined may have represented the firm, had a right of action to recover damages occasioned by the injunction.</p> <p>Prescription. — The date the injunction was sued out is not the date from, which prescription of claims for damages caused by continuing acts begins to run. The prescription begins to run from the time the damage was committed by the continuing acts, and not from the date of the injunction.</p> <p>On the Merits — Costs of “Float” of Saw-logs and Cost of “Pull-boating.” — The difference in the costs of floating “ saw-logs” in the swamp in shallow water and “pull-boating” them was inconsiderable. The amount was not shown with any degree of certainty.</p> <p>Trees Deadened — Damages therefor. — The sap-wood of a tree circled and deadened loses value after a time. The injunction prevented their removal after they had been deadened, and in consequence, after years, caused loss in value. The sap rot is deducted in commerce.</p> <p>After having considered the items of damages, the court reduced by one-half the amount allowed by the judgment of the District Court.</p>

<p>When there is no written, contract for the wages of laborers or with those who repair or furnish materials, claiming privileges on immovables for such'wages, repairs or materials, the registry of such privileges must be made within the period fixed for registry computed from the dates when the wages become due, the repairs completed, or when the materials are furnished. Constitution > Art. 176; Civil Code, Arts. 3186, 3249, 3272; R. S., Sec. 3093; 27 An. 243.</p> <p>Mortgages, in the usual course for cash advanced the debtor, are not within the scope of our law, presuming the fraudulent preference from the mortgage granted within three months preceding the debtor’s insolvency. C. C. 1981; Revised Statutes, 1808; 37 An. 595.</p> <p>The director claiming under a mortgage in his favor by the corporation, can not compete in the distribution of the proceeds of the mortgaged property with the corporate creditor to whom on the same date the mortgage note is delivered to the director the directors authorize the mortgage on which the corporate creditor advances his money to the corporation. 47 An. 1487; Taylor on Corporations, See. 759.</p> <p>If the director can not enforce to the prejudice of the corporate creditors the mortgage in his favor cy corporation, neither can the transferee.</p>

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

<p>The exclamation o£ by-stamlers at the time of the commission of an offence claimed in the bill of exceptions “ to characterize the act” under investigation are not, at least as a general rule, admissible as “ res gestee,” and in this ease were properly excluded. Roscoe on Criminal Evidence, p. 22; 39 An. 470; 48 An. 1407.</p> <p>The verdict of “striking with intent to kill” will not support the sentence for strikingwith a dangerous weapon with intent to kill. R. S., Secs. 790, 791, etc.; Act No. 44 of 1890.</p> <p>Under the charge for striking with a dangerous weapon with intent to kill and murder, the jury can not convict of assault. Acts Nos. 43 and 44 of 1890; R. S., 790, 791 ital.; 48 An. 1061.</p> <p>In an Indictment for striking with a dangerous weapon with intent to kill, it suffices that the intent is qualified by the words “ wilfully, maliciously and of his malice aforethought.” 33 An. 921; 36 An. 336.</p>

<p>With testimony before the jury tending to show the accused, charged with larceny, was found in possession of the property recently stolen and failed to account for that possession, it would be erroneous to charge the general rule that to convict on circumstantial evidence alone, the' evidence must consist with guilt, and exclude any reasonable theory of innocence, without eh irging also that the law presumes guilt from one circumstance, /. e., the possession of property recently stolen and no account by the accused for that possession. Roscoe, Criminal Evidence, p. 18; 1 Greenleaf on Evidence, See. 31.</p> <p>The court again affirms that requested instructions not a full exposition of the law applicable to the case, but requiring explanation and qualification, are properly refused. 85 An. 769, 775; 36 An. 81; Thompson on Juries, Sec. 28.</p> <p>The charge will not be deemed to trench on the facts which announcing to the jury a legal presumption on which they can act, is qualified by the caution, If the fact is proved, giving rise to the presumption. Const., Art. 168; Revised Statutes, Sec. 991.</p>

<p>The court again aflirms that testimony of threats of violence by the deceased against the accused, without proof of overt acts to carry the threats into execution, is inadmissible. Wharton’s Criminal Evidence, Sec. 757, notes; 35 An. 71; 37 An. 443, 489.</p>

<p>A judgment or order probating a will can be attacked on the final homologation of an account, all parties in interest and the issues involved being before the court.</p> <p>The writings on two sides of a broken envelope did not form a continuous connected will. On one side is a written list of claims, which list is not signed or dated; on the other, the words: These notes go to my wife,” without designating the notes intended. Not sufficiently certain to give it effect.</p> <p>The legacy of notes does not lapse when the only purpose, in accepting new notes-instead of the old, was to make them more secure as to their payment, and they were substantially the same as the canceled notes.</p> <p>A legacy from a designated fund is not extinguished if the fund is replenished and. is a continuous existing fund.</p> <p>Particular legacies may speak with reference to the future, if it be evident that the-testator expected amounts given to be deducted from sums to be realized, in. the future.</p> <p>A legacy in one will is not revoked by a subseqent will in which the testator substantially disclaims any intention to revoke.</p> <p>A clause in a will giving the usufruct to one person and the ownership to another,, at the death of the usufructuary, is not a prohibited substitution. There wa-s. no trust created and no property taken out of commerce.</p> <p>Words of recommendation to a legatee is not a bequest, and is not an illegal condition.</p> <p>Oh Reheabihg.</p> <p>When the testamentary disposition in favor of two or more legatees to be paid from the fund specified deemed by the testator to pay all legatees, but which, -when he dies, proves insufficient, the rule of proportional distribution between the legatees will not apply when the terms of the disposition plainly manifest the testator’s intention that his wife, named first, shall be paid by preference from the fund. Civil Code, Arts. 1712,1635.</p>

<p>The asserted error o£ an act of mortgage in describing the property may be inquired into and corrected on the intervention of the mortgage creditor in. the suit of an alleged owner enjoining the execution of the mortgage creditor, the petition of intervention containing the requisite allegations to show and admit proof of the error.</p>

<p>The cession by the debtor to his creditors, operating on all his property, that subject to privileges and mortgages as on that not encumbered, vests in the creditors the right of possession of. all such property, to be held, sold, and proceeds applied by the syndic oí the creditors to the payment of the debts of the ceding debtor, all rights of the mortgage and privileged creditors' being preserved in the proceeds. Revised Statutes, Secs. 1790, 1791, 1816; Civil Code, Arts. 2170, 2176 et seq.; 1 Hennen’s Digest, p. 68y, Nos. 11,13,15.</p> <p>Hence, the possession by the sheriff of the debtor’s property, under writs in suits pending, is divested by the cession, the property transferred to the syndic, the suit is arrested in its further progress, and the right to release on bond in sequestration suits given to plaintiff ceases, when, prior to his application to bond, the defendant makes a cession to his creditors. Ibid.; 1 Martin, 207; i Martin, 26f; 12 Martin, 666; 11 An. 618; 12 Martin, 32; S Rob. 172.</p>

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

<p>y^PPEAL from the Municipal Court of Amite Oity. Sowell, J.</p>

<p>Persons manning and operating, street cars are expected to be careful at the crossings. The company must exercise reasonable care to provide men enough to properly control a train consisting of a motor car and a trailer. At deep grades leading to railroad crossings there should be a motorman and conductor aboard the train and in charge. There was only a motorman. The injuries, occasioned by the collision between the street cars and the passing train at the crossing, were injuries for which the defendant company must be held responsible in damages.</p>

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

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

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

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

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

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

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

<p>A letter written by a prisoner while in jail, and without being closed or sealed and handed to another prisoner to be sealed and mailed to a witness of the writer, is competent evidence against the accused, notwithstanding same may have been surreptitiously read by the person to whom it had been entrusted, and thereafter handed to a deputy sheriff, instead of being mailed.</p> <p>That proceeding can not be classed as an unreasonable search and seizure in a constitutional sense.</p> <p>A single declaration uttered during the progress of the trial by the father of the deceased,, apparently hostile to the accused,".and which was at once repressed by the judge, can not be view:ed as having unduly influenced the verdict of the jury against the accused,</p>

<p>Accused were indicted by a grand jury composed of twelve, under the provisions of Art. 117 of new Constitution, and convicted by a petit jury of twelve, of whom /ess than the whole number concurred, under the provisions of Art. 116. The crime was burglary committed before adoption of Constitution of 1898. The defence was made that these provisions of the Constitution were ex post facto as applied to past offences, and that accused could be indicted only by a grand jury composed of sixteen, and convicted only by a concurrence of all twelve of the petit jury: Held, the provisions referred to operate changes in the method of procedure only, relate to the remedy and are in no sense ex post facto in character, and that Arts. 116 and 117 of the Constitution are self-operative.</p>

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

<p>A 1ST APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.</p>

<p>If a witness resides in the State of Mississippi, and personal service of a summons-can not, after due diligence has been exercised, he made upon him, the depositions taken before the committing magistrate may be introduced in evidepce on the part of the State.</p>

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

<p>A contract which contains a stipulation to the effect that the obligor guarantees the trade of his laborers and lessees to the tenant of his storehouse, so far as he is able to control the same, is not an agreement to coerce the laborers and lessees to purchase goods from the proprietor of the store. Hence, such a contract is not contra bonos mores.</p>

<p>A demand on the part o£ the defendant’s counsel that the prosecuting witness be qualified touching her competency comes too late after she has been sworn in chief and her interrogation actually commenced.</p> <p>It is not the right of counsel for an accused to require the testimony of a witness upon cross-examination to be reduced to writing. The law limits that right to testimony which appertains to some question of law raised on a bill of exceptions and to be decided by the Supreme Court.</p>

<p>A tax assessed against money in possession of the liquidators of an insolvent bank is neither illegal nor unconstitutional, as it comes within the designation of both the Constitution and revenue law as property which is subject to taxation.</p>

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

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

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

<p>1. Suits relating to taxes or licenses are preference suits, triable without a jury . and at Chambers if court be not in session. Sec. 56 of Act 106 of 1890.</p> <p>2. Where there is doubt, an appeal will not be dismissed. It a bond be not sufficient for the suspensive appeal taken, it yet remains good for the devolutive appeal.</p> <p>8. A distinction is to be drawn between suits to correct an assessment, and suits which go to the inherent validity of an assessment and to the legality of the tax based thereon.</p> <p>4. Those of the first class must be instituted within the time fixed by the statute; those of the latter class are not subject to such time limit.</p>

<p>Any party in interest may obtain the judgment homologating the account of the</p> <p>executor. The affidavit of the executor to the correctness of the account suffices for the judgment of homologation. O. C. 1172, 1173; 29 An. 521, 327; 21 An. 511.</p> <p>Thejudgmentof homologation, whenfinal, precludes subsequent oppositions, and entitles the parties placed on the account to the distribution fixed by the account and judgment. 0. 0., Art. 1065; 12 La. 121; 4 An. 450; 1 Hennen’s Digest, p. 759, No. 2.</p> <p>Reserving enough to cover oppositions, the executor may be required, when the account is homologated, to pay the amounts to the parties placed on the account as entitled to such amounts.</p>

<p>Discretionary with this court, on the case as presented, to grant or withhold the writ of certiorari, or review, contemplated by the latter clause of Art. 101 of Constitution o£ 1898.</p> <p>Not intended by the power there granted to make of the Supreme Court a sort of superior court of appeals over the Circuit Courts, to take jurisdiction of, and hear and determine any and all eases decided by the latter courts.</p> <p>Nor that the Courts of Appeal should be made merely a stopping place for causes on theirway from the District Courts to the Supreme Court.</p> <p>It was, rather, the intention that the power thus lodged in the Supreme Court should be exercised only in special or extreme eases, whose peculiar circuni stances, as to facts or law, justify, in the opinion of this court, a resort to it.</p>

<p>Plaintiff claimed a special mortgage prior in date on property adjudicated to defendant.</p> <p>He claimed also that by the adjudication and the fact that by operation of law he, defendant and adjudicatee. was authorized to retain the price, he thereby became personally indebted for the amount of the special mortgage.</p> <p>Held: that the special mortgagee holding the first mortgage on property has no cause of action to hold the purchaser personally responsible for the amount of the first mortgage.</p> <p>The purchaser not having assumed the first mortgage is responsible as a third possessor and the property was transferred to him cum onere.</p> <p>The question was passed upon in Bacas vs. Hernandez, 3L An. 86; Trondle vs. DeBouchel, 88 An. 759. It was decided in these cases that the special mortgagee had no personal claims. The fact that a purchaser, who, for purposes of his own, delays payment, may be held personally for interest accruing from date of the sale, as in 29 An. 88á, on the special mortgage, first in rank, is not ground upon which it can be held that he is liable personally on the mortgage with interest to the day of sale.</p>

<p>The truth of plaintiff’s averments being admitted by the exception of no cause of action, to warrant a dismissal of the action it must appear that the allegations admitted true are all disposed of by the effect of the plea.</p> <p>He, defendant, for the hearing having admitted certain alleged rights (without passing upon the question of their validity at this 'time) the court holds, that the trial of the asserted rights of plaintiff, as against defendants’ title, may be had under the pleadings.</p> <p>The deed annexed by plaintiff to its petition, setting forth defendants’ rights of servitude (disputed by plaintiff), gives rise to question which may be determined in this litigation. If defendants have a servitude, it is to the interest of all concerned that it be localized; its character determined and limit fixed. This can be as well done now under the pleading, as at another time under other pleading,</p> <p>The multiplicity of actions are not favored. It is even a maxim that interest reipublicos nt sit finis litium.</p>

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

<p>Act44 of 1890 is not unconstitutional on the ground that under its terms, one not guilty of an offence might be convicted.</p> <p>It would be the duty of the court to see that no judgmentbe rendered which would convict an innocent person whose act of carrying arms for legitimate purposes the statute never intended to denounce.</p> <p>The word “ wilful ” contained in the title of the act, but not contained in the body of the statute, was not an illegality rendering it proper or lawful to annul and avoid the statute. The court may refuse to receive a verdict not responsive to the charge.</p> <p>A verdict finding the accused guilty, following the language of the statute is not defective.</p> <p>The information charged the defendant with shooting with a dangerous weapon to kill and murder.</p> <p>The verdict returned, that the accused was guilty of shooting “ with intent to kill.” Under Art. 44 of 1890, an offence of the same generic class is the offence with which he was charged.</p> <p>“ Whatever conveys the idea to the common understanding will suffice and all fair intendment of the verdict will be made to support it.” Bishop, Sec. 1005; 4th Edition.</p>

<p>\ PPEAL from the .Sixteenth Judicial District Oourt for the Parish of Tangipahoa. Reid, J.</p>

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

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

<p>Where an.exj>arte order is granted appointing a receiver, it is not the proper practice for a complaining creditor to appeal directly from such order.</p> <p>The correct course to pursue is for such creditor to appear in the cause and move that the order be vacated and set aside, or take a rule to set aside and vacate, aud if the motion he refused, or the rule denied, to appeal from the decision and such appeal, if suspensive, would stay further proceedings in the receivership and hold matters in statu quo pending the appeal.</p> <p>On Rwheaking.</p> <p>Appeal by creditor, whose claim exceeds two thousand dollars, from order appointing receiver and staying proceedings against insolvent corporation. Motion to dismiss appeal on ground that assets of corporation do not equal two thousand dollars in value — Held: That the question of jurisdiction is determined by amount of creditor’s claim on which the right of action is suspended rather than by the sum of the assets as shown by the scheduls.</p> <p>Further motion to dismiss, on ground that the appeal will not lie from order appointing receiver as herein made — Held: The appeal does lie, differentiating the case from Brewing Company vs. Judge, 46 An. 100, and Harrod vs. Sewerage Company, 49 An. 1595.</p> <p>There is no direct authority of law for appointment of receiver as herein made and for the order staying proceeding against the corporation, and the facts and exigencies of the casé do not bring it within the category of cases where, under their inherent powers, such appointments have been made by the courts in aid of their jurisdiction or as as a conservatory process incidental to a main demand.</p>

<p>APPEAL 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 telephone company, through its employees, had been placed in possession of a line of way, and of telephone posts upon the property of another, which it would have had really the legal right to possess under expropriation proceedings properly conducted. It had obtained the same, however, without the consent of the owner or any order of court. A prayer by the owner for the removal of the posts will not be granted when the evidence establishes the fact that the company would be entitled to have the same line re-established as its right of way, and the posts immediately replaced in the same position. The company, however, will be compelled to pay the value of the right of wav and damages forthe illegal invasion of the owner’s right of property.</p>

<p>The authority ol a judge ad hoc over the judgment which he had rendered does not end with his signature to the judgment. So long as lie has not resigned nor vacated the position in some legal way, and the case is before the court which made the appointment, he retains control over it. The cause in a limited senso may be considered terminated, but for many purposes it remains a pending suit until Anally disposed of (Brown vs. Pontehartrain Land Company, 19 An. 1779; State exrel. Ludeling vs. Judge, 39 An. 79Í).</p> <p>He is the proper person to take cognizance of an application to have defendant in injunction, who has violated the injunction, ruled into court for and punished for contempt.</p>

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

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

A PPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J. Statement oe the Case.

<p>Infixing the value of fees clubby a succession for professional services of physicians, the court is justified in taking into consideration the value of the succession.</p> <p>The claim that from the moment more than one physician is called in and attends regularly upon a case, every visit made by every physician employed takes rank as a “consultation,” can not be listened to. Succession of Duelos, 11 An. 407.</p> <p>Prescription pleaded against a privilege or mortgage should not be permitted to be urged against the debt which the privilege or mortgage secures. The court should not extend the pleabeyond its terms. O. C. 8468.</p> <p>Upon an application by a natural mother residing in New York to be appointed tutrix of her minor child living here, it is the duty of the court to look after the good of the child rather than consider the feelings of the mother. Where it is convinced that it is for the interest and good of the latter that the child and its property should not be taken from the jurisdiction of the Louisiana courts and beyond their supervision, the application should not be granted.</p>

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

<p>Defendant indicted for the murder of his wife asked the following charge:</p> <p>If the jury find from the evidence that the accused discovered his wife in a position with Delatte as to convince any reasonable man that they were in the act of adultery, and that he was so incensed and outraged by the sight that he lost all control of his reason, and actinguncler the overpowering influence produced by the sight of his shame and humiliation, he.then and there* drew his pistol and fired, and after his pistol was empty, he immediately drew a razor and inflicted a wound upon his wife, from which she died, the accused is not responsible for his acts, and the jury must acquit ”</p> <p>The court correctly refused this charge, which asked, under the facts stated, not a reduction of the crime from murder to manslaughter, but a “justification” of the husband’s acts entitling him to an “ acquittal.” A husband who, detecting his wife at his own home, in the act of adultery, kills her on the spot, provoked by the wrong, though not guilty of “ murder,” does not stand “ justified” in his act. The homicide is manslaughter.”</p> <p>Where a husband, on entering his home and finding his wife in the act of adultery, shoots at the wife’s paramour, or at her, or at both indiscriminately, where-^ upon, the wife, under the evidence, seizes and holds her husband by the arm, informing the paramour that she had done so, andcalliugon him to come and they would kill him, the court should permit the husband to introduce testimony as to tbe relative strength of his wife and himself in order to lay the foundation for a reasonable belief on his part that his life was placed in danger by her act, and for the purpose of justifying as in “ self-defence” his cutting her to detach her hold. The fact that the husband did not stand “ justified” in his origiual act of shooting at the wife and her paramour, did not cut him off under the circumstances stated from invoking the doctrine of “ self-defence,” when in one of the after phases of the difficulty his life became endangered by th« act of the wife. The doctrine of “ aggressorship” in respect generally to that of “ self-defence” should be relaxed in a case of this character.</p> <p>When a party seeks to have a principle of law applied in a special charge to the' jury, he must present such a statement of facts, as a predicate, as would make the principle of law invoked legally applicable under the evidence to the particular case.</p>

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

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

<p>Mortgages are not (as cutting off equities) negotiable in the sense of the law merchant.</p> <p>A father who being tutor of his minor children receives into his possession as such as part of their inheritage from their grandmother, negotiable notes made by him to his own order and by himself endorsed, which notes repre-sented the purchase price of property purchased by him, and were secured by special mortgage and vendor’s privilege on the property purchased, became ipso facto the debtor of his children for the amount of the notes, the said debt being secured in their favor by special mortgage and vendor’s privilege. The notes in the tutor’s hands were the mere evidences of his debt to them.</p> <p>The tutor being so indebted to his children, could not alter the situation to their prejudice by illegally tranferring these notes before maturity to a third person. The rights oí the transferee' quoad the mortgage and privilege are subordinated to those of the minors.</p>

<p>When the statement of facts recited in a bill of excention by counsel differs from that asserted by the court, that of the court is controlling.</p> <p>Where a District Judge after a full trial is satisfied that the testimony sought to-be made the basis of a new trial would not alter the result at a second trial, even if admitted, either because the testimony was otherwise so strong against the accused as would make such particular testimony clearly unavailing, or because he knew the witnesses who were proposed to be put upon the stand, and was convinced they would not be believed, or because of similar reasons hi3 opportunities for acting advisedly, justly and properly are so superior to those of the Supreme Court that it would not be warranted in substituting its udgment for his in the premises, except in very clear cases.</p>

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

<p>Though the law has not imposed upon courts the duty of informing accused parties, that they are entitled to counsel, and asking them whether they desire that counsel should be assigned to them — it has become almost universally the practice for them to do so ex profirió motu.</p> <p>While the fact that a prisoner does not ask the court to assign counsel to him, and he chooses to appear by himself,and he is convicted, does not entitle him to anew trial because of his wantot counsel (State vs.Kelly, 25 An. 382), it is none the less a fact to bs considered in connection with others for the purpose of ascertaining whether in any particular case he has been accorded the full opportunities for defence which it is the duty of the State to extend to its people, even those who may be ultimately and deservedly found guilty of crime.</p> <p>The right to move for a new trial is guaranteed to the defendant in the smallest civil cases. In criminal cases, the same right exists, as also the additional right of moving in arrest of judgment for defects apparent on the face of the record. These rights may be waived by theparties, but they can not be denied by the courts. The law contemplates the giving of reasonable opportunity for preparation and examination. To refuse a reasonable time for the exercise of a right is tantamount to a denial of the right itself. State vs. Gardner, 10 An. 25.</p>

<p>The writ of sequestration is intended as a protective and preventive, not a compulsory, remedy. Parties using it for coercive purposes to effect payment of claims due them, by threats of injury and annoyance, must be prepared if they do so, to be in the exact position necessary to enable them to claim the benefit of the legal proposition, that a person is not liable for damages if he merely exercises a legal right, even though his motives may be bad.</p> <p>Where the question before the court is, whether on the face of the papers the District Court was justified on the pleadings and affidavit in directing a writ of sequestration to issue — the appellate court will give full weight to the affidavit and take its averments to be true; but, where the question comes up on a motion to dissolve the sequestration on a direct charge that the allegations of the petition and affidavit were false, plaintiff will be required to do more than rest upon the pleadings and affidavit.^ On the trial of the sequestration as to issues of fact, plaintiff must show and sustain the grounds and facts upon which his alleged fear was made to rest.</p> <p>Where a person engaged in selling goods, wares and merchandise, to parties in a retail business, sells them on credit, there is an implied consent on his part that the latter should dispose of the goods purchased in the usual and regular course of business. If the price be not paid at maturity, the vendor may withdraw this consent and resort to legal proceedings (if called for) to enforce this withdrawal. Should he resort to writs of sequestration for that purpose he must be careful not to convey to the general public in his pleadings and affidavit (unless warranted by the facts) that he had reason to believe that defendants had concealed or were about concealing the goods. That allegation carries with it the idea of dishonesty or want of fairness, and is calculated to alarm all parties dealing with the vendees.</p>

<p>Plaintiff in a petitory action asserting his own title, attacked defendant’s title as being based upon an absolutely null tax sale, and prayed for rent and also for damages. Defendant answered, averring that being a creditor of the plaintiff, the latter had suggested to him that the property he permitted to be sold for taxes, and that defendant should purchase it, and that plaintiff’s indebtedness to defendant be then canceled; that this was accordingly done, and plaintiff was estopped from attacking the tax sale. He set up no demands in reconven - tion or compensation. The District Court set aside the tax sale, rejected plaintiff’s demand for damages, and was silent as to the demand for rent. Plaintiff appealed. Defendant made no demand for an amendment.</p> <p>The Supreme Court decreed that the judgment of the District Court in so far only as it dismissed and rejected plaintiff’s demand for fruits and revenues be annulled; that in so far as it decreed plaintiff the ownership of the property and dismissed defendant’s reconventional demand, it be left in full force; that the right be reserved to plaintiff to claim the fruits and revenues of said property, and the cause be remanded to the lower court for further proceedings according to law. On the return of the cause to the District Court, defendant filed a supplemental answer setting up, by way of defence through compensation, a number of claims against the plaintiffs. Plaintiff resisted proof of these claims on a plea of res judicata under the decree of the Supreme Court. The plea was overruled, the District Court stating it understood the decree of the Supreme Court to have remanded the cause to enable plaintiff to claim fruits, and revenues, the fruits and revenues of the property. That this included, also, the right of defendant to plead de novo whatever she might have compensation. Held: That the District Court in holding that the judgment of the Supreme Court did not cut off defendant’s right of resisting demands, though a plea of “compensation” was correct. The purpose and intention of the judgment was to force defendants, by reason of their having acquiesced in the judgment of the District Court, to occupy on the return of the cause a purely defensive position, cutting them off from setting up reeonventional demands, but not pleas in compensation.</p> <p>When by the consent of the owner of property, the legal title thereto has been placed in the name of one of his creditors, under an agreement, that he should hold the same until the amount due him should be paid, the owner has no right to ignore the latter’s right of detention until a balancing of accounts had been had, and by and through a petitory action recover both the property and the rents, leaving her own debts unpaid.</p>

<p>The appellate jurisdiction of the Supreme Court in cases in which the constitutionality or legality of the fine, forfeiture or penalty imposed by a municipality was in contestation, is limited to a determination of the constitutionality ■ of the fine, forfeiture or penalty and to an examination of the particular facts necessary to be considered, in order to reach a conclusion on that subject.</p> <p>Proceedings directed against parties for violations of city ordinances should be in the name of the city, not that of the State.</p>

<p>A perfectly correct assessment by no means carries with it as a necessary result-the validity of subsequent proceedings made in the enforcement of the tax assessed in the name of the party assessed. Hood vs. City of New Orleans, 49 An. 1461; Hodding vs. City, 48 An. 982; Hoyle vs. Southern Athletic Club, 48 An. 879.</p> <p>Notice of assessments as having been made is something other than notice of delinquency, and of an intention of selling the property assessed on failure to pay the taxes within a specified Etime. They are distinct matters touching different steps in the enforcement of taxes.</p> <p>Article 210 of the Constitution requiring that notice should be given to the taxpayer contemplated that reasonably diligent steps should be taken to make the notice effectual.</p> <p>Notice of delinquency and notices of a proposed intention to sell the assessed property should the taxes be not paid within a specified time placed in a letter mailed at New Orleans, the place of assessment, and directed to the party assessed as living at New Orleans is insufficient, where the party assessed had been living in Europe and had died there many years before the assessment— when her succession had also been opened in the District Court for Orleans, and her heir had been recognized and ordered to be placed in possession, and when the property had all the time been in possession of a tenant who could have given information of the facts of the case.</p> <p>Where a defendant in a petitory action is evicted from land which he has purchased at a tax sale he should recover from the owner evicting him, the taxes-which he has paid on the land. Walsh vs. Harang, 48 An. 984.</p>

A PPEAL from the Tenth Judicial District Court for the Parish of *- Avoyelles. Oullom, J. This suit involves the settlement of the tutorship of Anna Billing-ton, now wife of Charles L. Younger by her mother, Ella Simms, now wife of William H. Jackson, the said Jackson acting as co-tutor with; his wife. Incidentally connected with this suit is the settlement of the community of acquets and gains which existed between Ella Sims and her first husband, George W. Billington.

<p>The rules of the Supreme Oourt direct to omit (in the absence of special instructions from appellant) copying in the transcript of appeal all ordinary process and return thereon, such as citation and writs.</p> <p>Statute 101 of 189Í, relating to shorthand reporters, their fee and the transcript of testimony, is not repealed by statute 203 of 1898 relating to eleik’s costs.</p>

<p>The provision in Art. 117 of the Constitution that the District Court shall hold continuous sessioiis of ten months, the Judge sitting alternately in each parish of the district as the public interest may require, is operative of its own force without legislation.</p>

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

<p>Evidence showing that deceased and the accused lived alternately in concubinage with the same woman in whose presence the hilling occurred; was received over objection o£ defendant that same was irrelevant. Held: Competent for prosecution to prove a motive for the crime.</p> <p>The fact that a witness for the State was once himself under suspicion, and oven arrest, in connection with the homicide, is no ground for the exclusion of his testimony. Even though an accompliee, he would still be competent as a witness, that fact affecting the credibility, notthe admissibility, of his evidence.</p> <p>The charge of the trial judge, or portions thereof deemed prejudicial, should he objected to at the time given, or before the jury retires for deliberation, and a bill of exceptions seasonably reserved. If this be not done, subsequent objections will not be noticed, except in the clearest instances of gross and palpable error patent upon the face of a written charge coming up in the record, and of undoubted prejudice to the accused.</p>

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

<p>1. The power to review by writ of certiorari tbe decisions of the Court of Appeals was conferred on. this court mainly to secure uniformity of jurisprudence, and to authorize sueli review when the question decided by the Court of Appeals was one of law and public importance. The provision in the Constitution of 1898, conferring on this court this power to issue writs of certiorari, is given in the terms of the acts of Congress of March 3,1891, authorizing the Supreme Court of the United States to review by certiorari the decisions of the Circuit Courts ef Appeals, and the jurisprudence of the Supreme Court of the United States, under the act of 1891, furnishes a guide for us in the exercise of this new jurisdiction. Constitution of 1898, Art. 101; Act of March 3,1891; 26 Statutes, p. 828, See. 6; 141 U. S., p. 083; 144 U. S., p. 47; 162 U. S..p. 435; 165U.S., p. 443.</p> <p>2. The writ will not issue to review decisions of mere questions of fact.</p>

<p>The writ of certiorari under Art. 101 of the Constitution of 1898 •will not n,ot issue to review decisions of the courts of appeal of mere questions of fact. See In r e A. J. Murff praying for the writ. 50 An., not yet reported.</p>

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

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

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

<p>An ordinance o£ the City Council declaring a penalty for non-compliance with an order given by an officer of the Board of Health to repair any vault found ■ leaky, which fails to cast upon any particular person or persons the duty of making the repairs, is too vague and uncertain to be made the basis of a penal or criminal action. . ,</p>

<p>1. A policy of life insurance, taken out by a husband in favor of his wife, can not subsequently be assigned by him to her prejudice. The doctrine announced ini the Pilcher case, 33 An., and the Putnam case, 42 An., sustained as the jurisprudence of the State. .</p> <p>2. And it makes no difference that he secured from her what purports to be an assignment, without consideration, of the policy to him before he assigned it to his creditor.</p> <p>3. A donation made in the form, of an onerous contract (without^consideration and really intended as a donation in disguise) to have effect as such must be passed before a notary public and two witnesses.</p> <p>4. An ipnocent stakeholder, without interest in a pending litigation, depositing in court, by consent of the judge thereof, the full amount he owes, or in his hands, and which is the object of dispute between contesting claimants, the rightfulness of whose claims is the subject of the litigation, should be relieved from further liability, and not held for interest and costs subsequently accruing.</p>

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

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

<p>Once an assessment has been completed and the roll has been deposited in the clerk’s olRee and a copy thereof delivered to the tax collector for the col" lection of taxes, neither the correctness of the levy nor the assessment can he tested in a proceeding contradictorily with the tax collector alone.</p>

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

<p>The adjudication carries to the purchaser at' the sheriff’s sale the immovale and all its appurtenances, ineluding its fruits pending the seizure in. the control or possession of the sheriff at the date of the adjudication.</p> <p>But the adjudication does not pass to the purchaser an action of damages to the land for trespasses committed or for value of trees converted by the trespasser prior to the acquisition of title by .the purchaser, and in this connection the analogies of the law in reference to the rights of the execution creditor have pertinence. C. P., Art. 656; 30 An. 524, 98á; 32 An. 1045.</p> <p>The contract by which the owner confers on another the privilege of cutting wood on the owner’s land does not permit creditors of the owner from seizing the land — least of all, when the creditor seizes under the equivalent of a mortgage with the “pact denon alienando” duly recorded and the seizure terminates the right to cut wood under such contracts. B. S. S. 851, 35é; 31 An. 278,</p>

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

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

<p>No appeal lies to the Supreme Court from a verdict and sentence condemning the . defendant to pay a fine of ten dollars, or in the alternative suffer imprisonment in the parish jail for a period of ten days.</p>

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

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

A PPEAL from the Fourth Judicial District Oourt for the Parish of Jackson. M. F. Machen, J. A regular term of the District Oourt for the parish of Jackson was begun on Monday, the 15th of February, 1897, on which day a grand jury was empaneled and sworn, and after being charged by the judge, entered upon the discharge of its duties. On Wednesday, the 17th of February, the grand jury returned an indictment, against Frank M. Robertson for manslaughter.

the Oivil District Oourt for the Parish of Orleans. Théard, J. On the 31st of July, 1890, the Firemen’s Building Association sold to Henry Hyams for six thousand dollars certain property described- in the act of sale. Hyams was at that time a stockholder in the association, owning thirty of its shares.

<p>1. Where the true object oí a sale with the right of redemption was to secure an existing indebtedness, the court called upon to interpret and give effect to the agreement, properly held the parties to their intention by decreeing the title asserted not one from which ownership resulted, but as a kind of security for the debt due.</p> <p>2. But to effectuate this security the sale was, for this purpose, a ceding away — a transfer, a conveyance — of the fee of the estate by the vendor to the vendee to-that extent that, after the appropriate registry thereof, the vendor could neither sell normortgage to another the same property, to the prejudice of his vendee. And, if this be so, it follows that neither could rights attach there on by operation of law, like a legal or judicial mortgage, to his prejudice.</p>

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

<p>Certiorari, under Constitution, Art. 101, will not issue to review decisions of Court of Appeals as to questions of fact. {In re Ingersoll, 50 An., recently decided; In re McLain, 50 An., recently decided; Tn re Murff, 50 An., recently decided).</p> <p>Applicants to Supreme Court for certiorari under Art. 101 of the Constitution from decisions of Courts of Appeal, should assigntheir particular grounds of complaint, and specify wherein, in their view, the decisions sought to he reviewed depart from the jurisprudence of the State.</p>

<p>The overruling by the District Court of a challenge for cause of a juror tendered to the accused for acceptance floes not furnish ground for reversal of verdict and sentence, when the acctised has not, at the time when the jury has been completed, exhausted his peremptory challenges.</p> <p>• A witness, ISenoit, was permitted by the court, over defendant’s objection, to testify that he was engaged by the accused to assist him in driving cattle, and started with him under such employment; that while so engaged, the latter made a proposition to him that they should steal a drove; that on witness declaring he could not do so, accused replied that that was nothing; that they could buy a few head and pick up some along the road; that he (the accused) had been carrying on that business for the last six years; that he had once cleared four thousand dollars in four months in that way; that witness at once left the service of the accused, and both returned to witness’ house, where the two parted; that on parting with witness, accused said, he would go and meet one Bell, and they would gather a drove. Defendant’s ground of objection was that the conversation in question was not made at the time of the taking of the cattle for which he stood charged with larceny, and for which he was then on trial, and it did not form part of the resge$t<c having been made prior to the date of the alleged offence, and that said satements attributed to him were not admissions on his part of guilt of the offence with which he was charged. The court admitted the testimony, not to show a distinct crime, but to show intent, knowledge and system, and to show the admissions and statements made by accused as to the character of the business in which he was engaged. The court declared that the evidence showed a great similarity in the way the cattle alleged to have been stolen were taken, with that detailed in Benoit’s testimony.</p> <p>The ruling* of* the District Court was correct.</p> <p>The testimony detailed a proposition made by the accused to the witness, then in his employ driving cattle, to join him in stealing cattle in a certain way, which proposition was followed very shortly afterward by accused being charged with having stolen cattle in his possession taken in the way which theproposition suggested they should be taken. The evidence was pertinent, relevant and admissible to show intent, and to give character to the nature of the defendant’s possession of the cattle held by him. It showed an admitted pre- - meditated plan to steal cattle generally, followed almost immediately hy his having stolen cattle in his possession.</p> <p>The sheriff who arrested the accused testified, that the accused when arrested “looked like a man who had been up all night as if he had no sleep; his leggings were all wet and muddy.”</p> <p>Defendant objected to the answer, but the court permitted it to stand. The court stated the answer was elicited by the defence in the cross-examination of the i sheriff, and was not in reply to a question of the District Attorney,</p> <p>That it was pertinent for the State to show as a corroborative link in the State’s evidence the condition and general appearance of the accused on that morning. Defendant objected that “the witness was submitting his opinion, not facts to the jury.” The general rule is, that witnesses must state facts and uot opinion, but the rule is subject to many exceptions, and under the facts of this particular case the answer was properly permitted to stand.</p> <p>A District Attorney is not justified in his argument to the jury in calling attention to the fact that the accused had not testified in his own behalf. His doing so is reversible error, which is not cured by the court’s telling the jury “ that the right of an accused to testify was a privilege accorded to him which he had a right to exercise or not, as he saw fit; and that ii he testified, lie subjected himself to all the rules which applied to other witnesses, and that his failure not to testify if he choose not to do so, was not to be construed for or against him;” and by the District Attorney’s stating to the jury, that the instruction . given them by the court was the law.</p>

<p>The wall built by plaintiff was made a common wall by the owners of the lot adjacent, who used it as one of the sides of their building.</p> <p>The trespass and encroachment charged, in that plaintiff had exceeded by about two inches, the niue inches allowed to one who builds a wall on a dividing line, was not sustained.</p> <p>The defendants having made use of the wall as a support for their own building-are indebted for one-half of the cost of construction.</p> <p>The intervenors, an insurance company, were subrogated to the right of plaintiff, when it paid plaintiff the value of one-half of the old party wall, which had not heen insured.</p> <p>An amount equal to the value of the old wall was allowed to the intervenor in accordance with decree in Monteleon vs. Insurance Company, <W An. 156. The remainder due by the defendants to plaintiff is an amount to which plaintiff has a right, it being for oosts of construction to which intervenors had not been suborgated, as it was additional cost of the new wall.</p>

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

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

<p>On Rule to Set Aside Judgment of Forfeiture.</p> <p>ON APPEAL from the Sixteenth Judicial District Court, Parish of St. Helena. — Reid, J.</p>

<p>APPEAL from thé Civil District Court, Parish of Orleans. mus j.</p>

<p>Thewx'itof sequestration which issued in the case covered property the value of which the judge of the District Court, after hearing evidence, fixed at less than two thousand dollars.</p> <p>All parties interested acquiesced in the value as fixed. An appeal will not lie to this eoux’t for want of jurisdiction from an order permitting the defendant to bond property when its value is less than two thousand dollars.</p> <p>A writ of certiorari issued in aid of the application for a writ of mandamus does not present other issues than those raised in the application for the mandamus.</p>

<p>The only point presented on appeal related to evidence of a fact that did. not afford ground to reverse the verdict.</p>

<p>Plaintiff’s witnesses sustained his claim, under the contract for services rendered.: during three months on Washington street. The report of one of defendant’s officers, and a certificate issued thereon, showed that all needful repairs had been made up to within a few days prior to the end of those three months.</p> <p>Held: That this claim was properly allowed by the District Court.</p> <p>Plaintiff failed to show full compliance with the contract for two of the months-claimed, and the preponderance of proof sustain'defendant’s claim of failure of plaintiff to comply with his contract as to these months.</p> <p>Held: That plaintiff’s claim for these months was properly rejected.</p> <p>Interest is due, from the time the'debt became due and exigible as against a .municipal corporation; if it have in its treasury the amount provided for its-payment.</p>

<p>The validity ve/xonot tile ordinance under -which the defendant was fined, gave rise to the issues involved.</p> <p>The ordinary use of property can not be interfered yvith by assuming that it is a nuisance per se.</p>

<p>There are few uses of proporty that are nuisances per se.</p> <p>A use which is not necessarily a nuisance is not to be treated as a nuisance.</p> <p>A municipality is without power to suppress that which it may regulate..</p>

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

<p>On the trial of an accused upon a charge of 1-og stealing, testimony tending to snow that the hog had been killed by tbe accused and its carcass secreted, and that he subsequently sent another person to cut it in pieces and carry them to his house, is admissible because it indicates a felonious asportation of the property after the theft had been first begun, by the taking of the living hog and the concealment of its carcass after it had been killed.</p>

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

<p>r\N APPEAL from the Sixth Recorder’s Court of New Orleans. a-* Arnauld, J.</p> <p>Taken to Supreme Court of the United States by Writ of Error.</p>

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

<p>C\N APPEAL from the Third Judicial District Court for the Pariste '■' of Lincoln. Barksdale, J.</p>

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

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

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

<p>Tlie policy sufficiently identified the property of the mortgagee (named) as the property insured. And, in this respect, the claim that mortgagee’s right to recover was not sustained by proof, was rejected.</p> <p>On the second ground urged by relator in defence, against mortgagee’s claim— Held: That the insured continued as party to the contract after the mortgagee was made payee of the policy, and the relation between the insurer and insured remained unchanged.</p> <p>The insurer, by violating the contract, vitiated the policy.</p> <p>Failure to observe substantial conditions precedent will discharge the insurer.</p>

<p>The right of trial by jury is a substantial right which is not tobe denied as to offences which had been committed at the date that the law was adopted. The provision in the Constitution of 1898 providing for the trial of criminal cases, not necessarily punishable at hard labor by the court, without a jury, is ex post facto in its application to offences committed before the Constitution, was adopted.</p>

<p>r~\N APPEAL from the Civil District Court 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>1. The constable -who -without any -writ, takes into bis possession property against the -will and protest of the owner, makes himself and his bondsmen liable in damages, nor will it make any difference that the constable acted on the strength of the note of the owner the constable supposed erroneously authorized the taking of the property.</p> <p>2- While this courtis not inclined to sanction damages for wrongful conduct out of proportion to the injury of which plaintiff complains, yet, in a suit of this character the court will, in the assessment of the damages, give an amount calculated to mark the judicial condemnation of wrongful conduct for which redress is sought.</p>

<p>The power of the owner to dispose of his property by donations inter vivos or mortis causa is limited by the number of his children living when he dies, hence called forced heirs, and the disposable portion when he leaves a daughter and the children of two deceased daughters, grandchildren being counted in place of their deceased parent, is one-third; the other two-thirds is the legitime of the forced heirs. O, C., Arts. 1493, 1495.</p> <p>This disposable portion is ascertained by adding to the property tlic deceased leaves at his death the value of all property he has disposed of by donations infer vivos, deducting his debts, and the residue determining the disposable portion according to the number of his children, Axes also their legitime as his forced heirs. C. C.. Arts. 1505, 1506</p> <p>Whether forced heirship is ownership in its full sense, of which the heir is seized of right, as applied to property embracing the legitime in the hands of third persons holding under alienations by the donors to whom the property has passed by the donations, nominal sales or similar acts of the deceased donor to the prejudice of his forced heirs, it is clear that by his death the right of action is vested in them to reduce or set aside such acts that impair their legitime, and to recover it from third persons holding under transfers from the donees. C. C., Arts. 1493, 1495, 1504, 1517: Code Napoleon, Arts. 930, 2444; 2d Troploñg, p. 127, Secs. 736, 741; p. 287, Sec. 903; p. 292 et seq.; 2d Mburlon, p. 292, Sec. 593; p. 311, Secs. 620, 621; 3d Boilleux, commenting on Art. 920, Code Napoleon.</p> <p>This right of action of the forced heir passes to his lieirS and assigns. C. C., Art. 1504; Code Napoleon, Art. 930; 12th Baurent, p. 185, Sec. 139; 3d Boilleux Comentaire sur Article 920, Napoleon Code; 2d Mourlon, pp. 311,313, 623; 12 An. 465.</p> <p>This suit of the heir of the forced heir is not the revocatory action, but one of “reduction” or “ revendication, to preserve or recover the legitime, of which he can not be deprived by the donation or similar acts of the deceased donor, and to which no alienation by the donees can convey title. C. 0., Art. 1517; O. N., Art. 930; 6 Martin, 529; 12 An. 401; 32 An. 357.</p>

<p>When the promissory note to tlie maker’s order is transferred by him to his creditor with the names of parties placed on che back of the note while in the maker’s hands, the holder acquiring with full knowledge that the names of such parties were thus placed on the note for the accommodation of the maker, they will be regarded as sureties for the maker, and not as endorsers in the sense of the law merchant. Story on Promissory Notes, Secs. 133, 13d, 188; 1 Randolph Negotiable Paper, 829, 831, 832 and 83d; d Rob. 161; 10 La. 87d; d An. 273; 95 U. S, 90, and line of decisions in the Digest; 1 Hennen, p. 172, No. 1.</p> <p>2- As sureties of several for the samedebt, defendautsprimarily liable in solido are entitled to a division of the debt so as each shall respond for his share or part of the debt, unless they have renounced the benefit of division, and on being sued demand such division. C. C., Arts. 3049, 3050; 4 Au. 273; 9 An. 423; 12 An. 630.</p>

<p>All the stockholders of a corporation haying executed a full, complete and per-fact act of ratification of an adjudication at public auction, same relieves the-sale of any and all the alleged illegalities in the proceedings leading up to> same, such as want of authority in the board of directors to direct a sale to be made, and that the adjudication was ata price less than a stockholders’ meeting had previously authorized to be accepted therefor.</p>

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

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

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

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

<p>0 N APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.</p>

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

<p>Questions o£ fact occurring in the course of the trial in the court below, and which are therein assigned as error by counsel for the accused, are not examinable in the Supreme Court.</p>

<p>It is not error of the trial judge to refuse permission to counsel for the accused, to address liis argument to the jury in the Freucb languge on the ground that it was their mother tongue, the jurors having been examined on their voir dire and cross-examined in the English language and without objection on the part of the accused, and all the witnesses for the State and for the defence having been interrogated and cross-interrrogated in English.</p> <p>It is not error of the trial judge to exercise control of counsel for the accused with regard to the extent of his cross-examination of a juror on his voir direy if same be reasonably exercised.</p> <p>If in point of fact the discretion of the trial judge has been erroneously exercised in this regard, the accused has no ground of complaint if the record discloses that lie was not thereby compelled to take on the panel an obnoxious juror who voted in favor of his conviction during the deliberations of the jury.</p>

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

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

<p>ON APPEAL from the Sixteenth Judicial District Oourt for the Parish of St. Tammany. Reid, J.</p>

<p>A juror who stated on his voir dire that he had formed an opinion of the ease, was asked by the court if he could lay it aside and decide the case according to the evidence adduced and the law as charged. He answered: “Yes, sir; 1 think I can do that.” Pressed further as to whether he felt satisfied he could do so, replied: “ I believe I could, but then I have got a fear on my mind; I have never felt I would make a competent juror.” Held: The challenge for cause should have been sustained, differentiating previous decisions.</p>

<p>In an action claiming immunity from taxation under the article of the Oonstitutitution exempting property and capital employed in manufacturing industries, it is essential the petition should allege that the factory employs not less than five hands. Otherwise the suit is subject to dismissal on exception of no cause of action.</p>

<p>1. Where the book containing the entry o£ the minutes oí the court is signed by the presiding judge at the end of the term, it suffices. Not necessary that the same should be paraphed “ ne ■varietur."</p> <p>2. The-indictment charged the murder to have been committed in 1890. Before arraignment the District Attorney moved to amend by substituting 1893 for 1890. This being allowed, it is assigned as error in this court. Meld, the amendment was not necessary, as time is not of the essence of the offence.as here charged; and if it were necessary it was permissible.</p> <p>3. After trial and conviction, what is called á motion to quash the verdict and al proceedings had in th*e ease was filed, heard and overruled. It is assigned as error here that the minutes must show presence of accused at the hearing of this motion. Meld, presence of accused only required to be shown during arraignment, trial, charge, verdict and sentence.</p>

<p>1. Grouuds restated upon-which this court will grant its writ to review decisions of the Courts of Appeal. Art. 101 of the Constitution does not invest this court with appellate jurisdiction over the Courts of Appeal, or grant to litigants a further and additional right of appeal. The writ of review will issue only in exceptional cases, mainly to secure uniformity of jurisprudence.</p> <p>2. The material or substantial variatiou, to the disadvantage of the wife, from the terms of the authorization of the judge pursuant to C. C. 128, does not annul the mortgage which followed, but does destroy the efficacy of the certificate of authorization, and the creditor must prove aliunde that the debt enured to her separate benefit.</p> <p>3. Cotton purchased by husband, though the wife’s name was used and she was induced to sign drafts given for the purchase price, and though the cotton was shipped in her name, held to be no part of her separate planting business, and the loss resulting can not be fastened upon her.</p>

<p>1. Parties contesting the constitutionality of a law should tender that issue in the trial court, and can not raise it as a matter of right for the first time on appeal. When so raised below new special grounds can not be urged for the first time on appeal, particularly when an examination of evidence would be needed for their decision.</p> <p>2. A bill having the same title as Act No. 49 of 1894 was introduced in the Senate as Senate Bill No. 28; it was read by its title and placed upon the calendar for second reading. It was subsequently, under a suspension of the rules, taken up on second reading, read by title and referred to a committee. The committee reported its action on Senate Bill No. 23, giving the exact title of the same. The committee reported the bill favorably by substitute. The bill was read by title. On motion the substitute was adopted in lieu of the original bill, and became Senate Bill No. 90. The title of the bill reported by the committee as a substitute was identical with that of the oi’iginal bill. The bill as reported was read by title. Subsequently Senate Bill No. 90, reported by the committee, was put upon its third reading. The bill was read in full. It was then taken up for final passage; the roll was called and the bill finally passed. A motion to reconsider was made, and the motion to reconsider was laid upon the table. Held, that a contention that Senate Bill No. 90 should be taken and considered as an original bill, and it should have been read in the Senate three times, and on three different days, once in full, was not well founded.</p> <p>8. Act No. 49 of 1894 does not violate Act 29 of the Constitution, which requires that any law enacted by the General Assembly should embrace but one object} and that shall be expressed in the title, nor does it violate the Constitution as being a special law prohibited by Art. 46 of the Constitution.</p> <p>The law is a general one, though bearing upon a special subject.</p> <p>4. Whenever the pursuit of any particular occupation or profession requires for the protection of the lives or health of the general public, skill, knowledge and other personal attributes or characteristics in the person pursuing it, the General Assembly has the power and authority to have recourse to proper measures to ensure that none but persons possessing these qualifications should pursue it. A statute to that effect is not open to attack as depriving citizens of their right to earn a living. The right to practice medicine is not an absolute natural right, but a right or privilege to be exercised under conditions and limitations regulated by legislative authority.</p> <p>5. The General Assembly, having the authority to require as a condition precedent to the right or privilege of anyone to practise medicine in Louisiana, that ho should be subjected before doing so to a prior examination as to his qualifications, and found and declared worthy and qualified, it has the right to select the particular agency to whom should be delegated that duty. Courts cannot control that selection. A statute creating a Board of Medicai Examiners, to be composed of physicians recommended for appointment from lists to be furnished by the Louisiana Medical Society and the Hahneman State Medical Society, to be appointed* by the Governor on such recommendation, is not open to attack as discriminating in favor of tlio allopathic and homeopathic schools against the eclectic school of medicine. No constitutional right is given to particular individuals entertaining peculiar tlieuries of medicine to group themselves together, and, calling themselves a special school of medicine, under a selected name, to insist that they be recognized and dealt with as such.</p> <p>6. The action of the Medical Board of Examiners is not conclusive, but is subject to correction in case of abuse.</p> <p>7. The recognition by the constituted authorities of another State that a person was properly qualified to practise medicine, and that the medical college whose diploma he presented as evidence of that fact was a medical college in good standing, does not carry with it a vested right in the party to practise medicine in Louisiana. Each State acts independently of the other in this matter.</p> <p>8. A person who has been practising medicine as a physician for a number of years without objection is not exempt from complying with legislation of a later date, making it a condition precedent to anyone’s practising medicine that he should have been examined by a medical examining board and found to have the qualifications required by iaw for so doing.</p>

<p>Property was sold ata tax sale.</p> <p>A vendor had sold the property with full warranty for a stipulated sum.</p> <p>Subsequently the property was sold for taxes assessed against the vender.</p> <p>The vendees brought an action in warranty against his vendor on the ground that he had been evicted from the property, demanding the restitution of the purchase price.</p> <p>The Court of Appeal rendered judgment awarding him the amount claimed.</p> <p>The defence of the vendor was that no eviction had taken place. In his application for writ of certiorari the vendor alleged “that while alleging eviction he (the vendee) fails to prove that he had ever been evicted by any alleged purohaser of the property.”</p> <p>Held — Not a case for granting the writ.</p>