Volume 51 — Louisiana Annual Reports

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

<p>ON appeal from the Civil District Court for the parish of Orleans-King, J., acting for Rightor, J., absent on leave.</p>

<p>Syllabus.</p> <p>-A certain sanctity attaches to a judicial sale which has been made after the due performance of all legal formalities and requirements; and, in the absence of clear proof of fraud or unfairness, it is but a reasonable presumption that the public officers and other functionaries have performed their duties in that regard.</p> <p>And when the positive evidence of several competent witnesses supports the ap praisement, it is but just, in the interest of an orderly administration of the law, that the validity of such sale be maintained, notwithstanding a number of credible witnesses were produced at the trial to testify that the property was really worth much more.</p>

<p>ON APPEAL from the Civil District Court for the Parish off Orleans. Them'd, J.</p>

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

<p>Syllabus.</p> <p>Fee of Attorney.</p> <p>The value of the services involves only a question of fact within the exclusive appellate jurisdiction of the Court of Appeals.</p> <p>Good Wild.</p> <p>A partnership carrying on business of an insurance agency which has been dissolved, as relates to “good will” leaves nothing in the nature of property right.</p> <p>The partnership bad terminated by death of one of the partners. The other had the right to continue the business of an insurance agency in his own name and he was free to take the agency offered him in his own name.</p> <p>Compensation Not Allowed Partner for Services.</p> <p>No allowance under the rule of interpretation of the courts is to be made for services rendered by a partner in the absence of an agreement.</p>

<p>ON appeal from the Fifth Judicial District Court for the parish of Ouachita. Stubbs, judge ad hoc.</p>

<p>Syllabus.</p> <p>On Motion to dismiss.</p> <p>The Supreme Court in a prior case, between the same parties decided, that ai Question of law was involved of which the District Court did not have jurisdiction as an appellate tribunal from judgments rendered by a justice of the peace. It followed that this court has jurisdiction, and that the finding of the court that there was a question of law involved is binding on all-parties who are concluded from reversing the point that no question of law-regarding the license tax claimed -was involved.</p> <p>On tub Mbbits.</p> <p>The farmer who sells his crop in a small wagon (retailing it) is not a peddler,, and he is not liable under a license law, requiring peddlers to pay a license.</p>

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

<p>Syllabus.</p> <p>Tile city of New Orleans has the power to assign the limits beyond which houses-of prostitution shall not be permitted; an ordinance of that character merely asserts the municipal functions to secure public order, decency and morals, and violates none of the guarantees of the rights of person and property contained in the federal and State Constitutions. City Charter, Act No. 45-of 1896, S. 15; the similar provision in previous charters: Black’s Constitutional Law, p. 301; 3 st Dillon Municipal Corporation. S. 310.</p>

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

<p>Syllabus.</p> <p>1. After a case, as to the introduction of evidence, is closed, the question of re* opening it for further evidence is one left largely to the. discretion of the trial judge and his ruling thereon will not be disturbed unless a clear case is shown of the abuse of such discretion.</p> <p>2. Counsel in argument should not indulge in statements of fact beyond and’ outride of the facts brought out in evidence, and whore a prosecuting attorney abuses the privilege of argument to the manifest prejudice of the accused, it is the duty of the trial judge to interfere, and if he fails to do so. and the impropriety is gross, it is good ground for reversal. Held, however, that the transgression in the instance complained of not to be of that grave-character warranting the setting aside of the verdict.</p> <p>3. Error, alleged in an assignment of errors filed in this court, .to be patent outlie face of the record, must appear from the record with certainty, else nothing is presented for the court to act upon.</p>

<p>Syllabus.</p> <p>a. A plaintiff's act or omission when only a remote cause, or a mere antecedent occasion or condition of the injury inflicted, is considered not to be contributory negligence.</p> <p>.2. A child oí three and a half years is, of itself, incapable of contributory negligence.</p> <p>3. No man should be in charge of an electric car as motorneer, running along populous thoroughfares of a city, who has not the full and complete use and sight of both eyes.</p> <p>4. No doctrine or rule exists here that the negligence or imprudence of a plaintiff, while not of the proximate character to defeat his recovery, may yet be looked to by the jury or court in mitigation of damages.</p> <p>•5. Nevertheless, this court has constantly exercised its reasonable discretion of increasing or diminishing the sums awarded for damages, according as its judgment, operating on the facts, prompted in given cases.</p> <p>■6. It has never been the intention to fix by rule specific sums for different classes of injuries, nor for varying grades and duration of anguish and suffering. ,</p> <p>'7. In this respect, each case is considered independently on its merits and on the state of facts peculiar to it, a due regard, however, being always had to the proper observance of a reasonable uniformity of jurisprudence on general lines.</p>

<p>Syllabus.</p> <p>"1. An action of boundary, pure and simple, is not open to a plea of prescription. (Civil Code, Article 825.) The action may be repelled by showing that the boundary line between the two properties has been settled by judicial decree or by a survey made by a surveyor in conformity with the requirements of the Civil Code. A line, however, even when established between the parties by such a survey- yields to a demand for the rectification of the same under an allegation of error unless the party resisting the rectification should allege and show an adverse possession of ten years under the erroneous line.</p> <p>2. Tbg mere fact that parties owning adjoining properties have cultivated land up to a certain line or up to a certain fence built either by one or both, or built by one and repaired by the other does not per so evidence an adverse possession or an acquiescence in, knowledge of or recognition of an adverse ownership or adverse possession. Neighbors constantly run up fences within or beyond the boundary lines or join fences, doing so with the knowledge and understanding that suen acts are merely temporary and done subsidiarily to and with reference to the right of both to ultimacelj ascertain and ftx rights by an action of boundary, or through a formal, legal survey. Until this happens such land is held in "occupancy," and not in "adverse possession" — certainly in the absence of a clear and direct claim ad vancod of adverse ownership and possession.</p>

<p>Syllabus.</p> <p>It is the duty of executors and administrators to act for the protection of the heirs and legatees of a succession, and the mass of creditors, not in that of special creditors. When an administrator or executor has placed certain ' parties upon his account as unpaid creditors, and the claims on opposition made, have teen either reduced or rejected, the executor or administrator is not, as such, authorized to appeal on their behalf and champion their rights. The parties aggrieved must appeal themselves. If the administrator or executor has placed himself on the account as a creditor, and his claim is reduced or rejected, he must appeal as an individual, not as executor to obtain relief. (Ferguson & Hall vs. Their Creditors, 19th La. Ann. 278; Girod vs. Creditors, 2nd Ann. 548 ; Beer vs. Creditors, 12th Ann. 774 ; Payne & Co. vs. Dejean, 32nd Ann. 889 ; Chapoton vs. Creditors, 46th Ann. 414; Andrus vs. Creditors, 46th Ann. 1351.)</p> <p>On Rehearing.</p> <p>The executor has no interest or right to appeal from the judgment which rejects items on the account filed by him alleged to be due creditors, and rejects also amounts placed on the account claimed to be due the executor. The appeal allowed by law is by the aggrieved creditor and by the .executor personally.</p>

<p>Syllabus.</p> <p>1. The effect of the Registry laws is not so potent as to necessarily vest in a minor a legal mortgage on certain property standing on the records in the name of his natural tutor, when, in point of fact it had never belonged to him; he had not assumed ownership over it, but had, ab initio¡, in the only Instrument connecting him with the title, recognized the property to belong to another person.</p> <p>■2. The mortgage in favor of minors upon the property of their natural tutors to secure the fidelity of the tutors’ administration, is created by the law and not the. convention of parties. It is declared by the law to attach to the property of the tutors not that apparently belonging to them. There may be cases where the mortgage would attach to property so circumstanced, but there are others where the mortgage should not be made to extend beyond the exact terms of the law.</p>

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

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

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

<p>The property upon which there was already a vendor’s privilege, was sold to the creditor whose right was secured, as to its payment, by that privilege.</p> <p>The creditor immediately sold it back to the debtor; his vendee surrendered his note and took new notes, (identified with the act of sale) for the amount due, secured by a vendor’s privilege.</p> <p>The amount was the same from the first, and was secured by a vendor’s privilege.</p> <p>There was no intention on the part of anyone to novate the obligation, and it ’ was not novated.</p> <p>In order to hold a privilege for amount due a physician for services during the last illness, it must be shown that such services were actually rendered during the last illness.</p>

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

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

<p>QN APPLICATION for a writ of mandamus.</p>

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

<p>Syllabus.</p> <p>■ (1.) Tile Article 116 of the Constitution of 1898, substituting the concurrence of nine of the jury for the unanimity of the jury of twelve, required prior to the adoption of our Constitution to convict for crime, is ex post facto legislation in so far as it applies to offences committed prior to the Constitution of 1898, and in conflict with the provisions in the Constitution of the United States securing the trial by jury to all prosecuted for crime, and prohibiting ex post facto legislation by the States. Constitution U. S., Art. 1st, S. 10 : 170 U. S. 343.</p> <p>>(2.) "Stare decisis" based on the decisions of this court of the question federal in its nature presented in this case, must yield to the determination of such a question by the United States Supreme Court vested with the power by the writ of error to compel conformance of the decisions of this court, with the jurisprudence settled by the higher tribunal. Constitution U. S., Art. 3rd Rev. Statutes, S. 709.</p>

<p>Syllabus.</p> <p>(1.) The action of the heirs to set aside the sale by the executor, if the grounds exist, is not suspended because of the will of the deceased, the heirs attack as void.</p> <p>(2.) The judicial sale is within the principle that avoids auction sales, for fraudulent (.ombinations to prevent bidding or other fraudulent practices ot the executor or administrator and the purchaser, but consistently with, tlie protection the law gives the dona fldo purchaser at the sale made by the competent court for the payment of the succession debts, the allegations directed against the title of the adjudicatee should be distinct of the fraudulent practices claimed to annul the sale.</p>

<p>Syllabus.</p> <p>1. It is the duty oí factory owners to keep the flights of stairs in their establishments in good condition for the easy and safe passage up and clown of their employees, whose duties require them to use the staircases.</p> <p>2. Not doing so and accidents occurring in consequence thereof, they are responsible for injuries received.</p> <p>cS. If men, regularly employed to make repairs where and when needed, neglect such duty, their fault is imputable to the master and he is held accountable i therefor.</p>

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

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

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

<p>Syllabus.</p> <p>The expiration of the period *'or which a respite has peen granted, authorizes-parties whom; right of action has been stayed by the order of respite, and whose claims have not been paid, to proceed separately in their individual behalf against their debtor. There is no obligation- or duty on their part to foiee him to a oessio honor um.</p>

<p>Syllabus.</p> <p>.Motions to quash and rulings thereon in the court below are reviewable only on appeal. Cases are not to be tried piece-meal, and issues ol that character are to be determined and passed on under the appellate jurisdiction, and not under the supervisory jurisdiction of the Supreme Court. State ex rel. Crozier vs. Host, 49 An. 1451.</p> <p>Prescription is a plea to be presented to the court of first instance and passed on by it in criminal cases. The ruling of the court on the plea comes up for review, on appeal from final judgment in the cause. The Supreme Court is not authorized under its supervisory jurisdiction to take up the question of prescription as an original proposition, and deal with it as such.</p>

<p>Syllabus.</p> <p>A railroad company can not be forced by mandamus to establish a depot at a particular place in the absence of a duty having been imposed upon it so to do, either by general laws or by special requirement in their charter.</p>

<p>Syllabus.</p> <p>*(1.) It is not necessary in an act creating- a servitude that the accessory rights required to carry it into effect, and without which it would be of no value on service, nor the obligations resulting- from these rights should be mentioned. '.They accompany and pass with the contract as incidents thereof.</p> <p>(2.) Á person consenting to a servitude upon his land thereby consents to a right of access to and from, and a right of passage to and from the land subjected to the servitude in order to give effect to the servitude to the exi tent, and in the manner known to and contemplated by the parties. I-Ieto whom a conventional servitude is due has the right to make all the works necessary to use and preserve the same. He has the right to place a gate in the boundary fence, if one be necessary to reach the grounds, and insist that it be not removed and access to the lands barred.</p> <p><3.) It is the duty of the owner of the estate which owes the servitude to fix the place where lie wishes it to be exercised when the manner in which the servitude is to be used is uncertain, and the place which is proper for the exercise of the right is not precisely fixed in the title.</p> <p>(4.) When the right of building and operating a tramway and switch has been granted, and the owner of the land has consented to the use of the land at the end of the switch for the purpose of dumping cane to be thence loaded on cars, and the tramway and switch have been constructed and a dumping ground has been used at a certain place and in a certain manner for several .•years to the knowledge of all parties — the owner of the land cannot ignoro ;the fixed condition of affairs in which he has acquiesced, and to which he has ;by his conduct consented, and take down and remove the gate giving access : to the grounds, and bar entrance to the latter under a claim that the switch •and dumping ground were improperly located and rights to the servitude had been forfeited for non-performance of conditions attached thereto.</p> <p>i<5.) The owner of the land has the right when the servitude is not being exercised to strengthen for his own protection the gate giving access to the land subjected to the servitude and the fence upon his boundary line, but he must do it in a manner not tending to diminish the use of the servitude or to make it more onerous. He cannot change the condition of the premises.</p> <p>(6.) The owner of the estate to whom the servitude is due has the right when the owner of the estate owing the servitude has barred entrance to the lands subjected to it to remove the obstructions placed in the way of the exercise of his rights without having recourse therefor to judicial proceedings when lie can do so without a breach of the peace. When it has been, established on the trial of a particular case that he could validly have exercised such right he cannot be subjected to damages for having applied for and obtained and had executed an em parte order of court directing the sheriff to remove the obstructions, even though the order should not have been given.</p> <p>(7.) When the owner of the land to whom a servitude is due finds the exercise of his right prevented by the removal by the owner of the land owing the servitucle of the gate giving entrance to the ground, and the latter refuses on demand to replace matters as they stood, he is warranted in fearing should he open the way to the grounds that entrance thereto would be again barred by the owner unless he should be enjoined from so doing.</p>

<p>Syi.t ABUS.</p> <p>Plaintiffs alleging themselves to be owners of certain described movables, averring that they are in the possession of defendants and praying to be put in possession of the articles enumerated as their property, show a cause of action</p> <p>It does not follow, because no money actually passed between the parties at the time of the sale, that therefore the sale was unreal. (C. C. 1900 ; Weld vs. Peters, 1 Ann. 432.) A pre-existing debt due by the transferrer of property to his transforree, supports the transfer.</p>

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

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

<p>Syllabus.</p> <p>The authorities are numerous, and uniform to the effect that a person whose-business or pleasure occasions him to use the streets of a city which are-traversed by electric cars, and particularly at street crossings, is guilty of-negligence if he fails to employ proper precautions for his safety.</p> <p>He is bound to look and listen for the approach of cars, and to exercise ordinary care and caution to avoid possible danger of a collision; and should he see-an approaching car in close proximity, it would be his plain duty to halt until same could pass by, rather than run the risk of an accident by attempting to cross the track in front of it.</p> <p>Failing to take such necessary precautions for his safety, the injured party is guilty of that negligence which deprives him of the right to reimbursement for injury received.</p>

<p>Syllabus.</p> <p>.A lessee made defendant In ejectment proceedings can not legally change the character of the action from a summary to an ordinary one, and by neither answer nor intervention engraft new and foreign issues thereupon, nor in troduce new parties litigant for the purpose of trying questions which are only legally determinable in an ordinary action.</p>

<p>Syllabus.</p> <p>Relying upon custom and usage in the matter oí levee building, to the effect that the contractor is entitled to claim extra compensation for stumpage and clearing, outside of, and in addition to the calls of the written agreement, plaintiff has no cause of action on that score, if the agreement stipulates that no such claim shall be allowed or paid.</p> <p>Having accepted such a contract, and acted on it and performed the work and received the stipulated compensation therefor, he can not plead duress in avoidance of such stipulation, in order to make way to recover such extra compensation by virtue of a parol agreement with the president of the levee board.</p>

<p>Syllabus.</p> <p>The salary of the clerk of the Sixth Recorder’s Court is exempt from seizure.</p>

<p>Syllabus.</p> <p>A railroad company is liable if a conductor ejects a person from a ear inr properly while the train is in motion.</p> <p>A trespasser on a railroad train must be ejected at a place not perilous for one alighting in the night time.</p> <p>To a crippled person, though unlawfully on a train, greater care and attention should be shown than to the one who may better protect himself in an unsafe place.</p>

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

<p>Syllabus.</p> <p>On Application to Remand.</p> <p>Affidavits of witnesses for defendants and counter affidavits of witnesses for plaintiff regarding the extent of injury suffered in a case of assault and battery, do not present grounds to set aside the verdict and remand the case.</p> <p>On the Merits.</p> <p>The principal defendant sought reparation from plaintiff and in this he was joined by his co-defendant.</p> <p>An asserted insulting letter was received a few hours before the difficulty occurred.</p> <p>There was not in the letter under the law, cause for an assault and battery, such as the jury found was committed.</p> <p>Words written or spoken some time prior will not justify a physical attack upon the one by whom they were written or spoken.</p> <p>The law has never gone further than to permit mere provocation to be shown as a palliation for the acts and result of anger.</p> <p>The legal phrase is; in mitigation, not in justification.</p> <p>The jury must have found ground to mitigate damages, but not enough to justify the act. A conclusion affirmed by the court.</p> <p>Woids written from one or spoken by him will not justify a physical attack.</p> <p>As words never constitute an assault, says Mr. Cooley in his work on Torts, p. 07, neither will they justify the employment of force in protection against them, however gross or abusive they may be.</p> <p>The preponderance of the testimony sustains the verdict of the jury on this point, fixing the assault and battery upon the defendants.</p> <p>The jury saw and heard the witnesses.</p> <p>To the decision of that body as relates to mere facts, weight is always given.</p> <p>It being a fact, established as we think by the testimony that defendants were ■ the aggressors in the difficulty at plaintiff's office, the rule to whien we have just referred, applies.</p> <p>The next matter in hand for our determination, is the amount of the damages.</p> <p>it is a general rule, that great provocation may be shown when it immediately precedes the act and the aggressor is smarting under the provocation.</p> <p>The jury must have concluded that there were some mitigating circumstances which justified them in assessing the damages.</p> <p>Under the rules of law app'ying, in our judgment, the defendants were liable for some damages. The jury have fixed them at fifteen hundred dollars. We have not found error that would justify us in reducing the amount; nor are we induced under the circumstances to increase the amount.</p>

<p>ON APPEAL from the Seventeenth Judicial District Court for the parish of Lafayette. Chas. J). Cajfery, J., ad hoc.</p>

<p>ON APPEAL from the Twenty-Fourth Judicial District Court for the parish of St. Mary. A. 0. Allen, J.</p>

<p>ON APPEAL from the Fifteenth Judicial .District Court for the parish of East Baton Rouge. Brunoi, J.</p>

<p>Syllabus.</p> <p>The Circuit Court of Appeals was competent and had jurisdiction to finally determine whether the attachments were concurrent.</p> <p>■The court decided that they were concurrent, and that the creditors were entitled to a pro rata division of the proceeds.</p> <p>The Supreme Court declined to disturb the decree and to issue an order nisi as it is manifest on the face of the papers that the conclusion would be the same on the merits.</p>

<p>ON APPEAL from the Third Judicial District Court for the parish of Lincoln. Barksdale, J.</p>

<p>IN RE Frank B. Williams applying for certiorari or writ of error to the Court of Appeal, Third Circuit, State of Louisiana.</p>

(Three suits consolidated for purpose of trial and adjudication, and brought up in one transcript.) ON APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

<p>CERTIFIED from the Court of Appeals, Fifth Circuit, by theJudses thereof, applying for instructions.</p>

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

<p>S vllabus.</p> <p>(1.) A lad, at the instance of the engineer in charge of a company’s engine, gave a helping hand to two of the company’s employees in loading eight or ten ties upon the engine to be by it taken to a break in the company’s road about a mile distant, and having done so, rode down in the engineer’s cab to the break for amusement, and from curiosity. While so riding he threw a few sticks of wood into the furnace connected with the locomotive at the request of the engineer.</p> <p>Held : These facts did not place him in the company’s employment, particularly as the engineer was without authority to employ persons under him. He was substantially a volunteer.</p> <p>(2.) A company is not responsible for injuries received by a person who holding no contractual relations with it, either as a passenger or an employe, and with no invitation from it attempts to board one of its moving engines by steps leading up to the engineer's cab, even though the injury should have been due to the defective condition of the steps.</p>

<p>Syllabus.</p> <p>1. Xhe taxing power referred to in Article 202 of the Constitution of 1879, as to-be exercised by parishes and mnnicipal corporations under legislative authority, but solely for “parish” and .“municipal” purposes has no reference" i to the special taxes authorized to be levied in aid of works of public imjprovement and railway enterprises under the provisions of Art. 242 of the -Constitution. Taxes of that character were made the subject of separate ■consideration by the framers of the Constitution, They were affirmatively .taken beyond and withdrawn from within the scope of legislative, parish, -corporate action by Article 242 of the Constitution, and made to be gov-> ■erned and dealt with as independently provided for therein.</p> <p>■2. A tax consented to under the provisions of Art. 242 of the Constitution by the owners of taxable property, is not a “parish” tax, and does not bind the parish as such, but is levied upon the theory of local and special benefits undet the actual or presumed direct, individual consent of the parties concerned. The taxes collected, though in the custody of and disbursed by the parish authorities, are not parish monies.</p> <p>3. The parish authorities in ordering the elections provided for in Acts No. 35 of 1886 and No. 159 of 1896 — announcing the results thereof, and levying taxes consented to at such elections, do not act as representatives of the respective parishes. They are selected merely as ministerial, public agencies resorted to for the purpose of ascertaining and making effective the wili of the people of particular localities, in respect to special taxes of the character referred to in Art. 242 of the Constitution. When taxes are levied under such elections, the taxing power is exercised by the owners of the property to be taxed under the constitutional authority of Art. 242 of the Constitution, and not by the parishes, or under legislative authority.</p> <p>A tax levied by the parochial authorities of a parish upon all the taxable property of one of the wards of the parish, upon the petition of property tax payers of the ward as provided for in Act No. 153 of 1894, is legal and constitutional..</p> <p>Acts No. 35 of 1896 and No. 103 of 1894 are not unconstitutional as not fully and fairly expressing their objects in their title. The former act clearly expresses that it is an enforcement of the provisions of Art. 242 of the Constitution of 1879, and the second act amendatory of the first merely widens the .extent of the enforcement.</p>

<p>Syllabus.</p> <p>Two country merchants engaged In business in the same vicinity, having both furnished plantation supplies to a customer who made an insufficiency o£ cotton to pay their accounts, and one of them, having obtained possession thereof by purchase, in an honest competition, was caused to be arrested by the other on a charge of robbery, and to be incarcerated in jail, and there detained for several days, being fully aware of all the circumstances. I-XnLD: That the proceeding was taken without probable cause, and with malice inferable from the act, and the affiant is liable in damages to tne party thus arrested, as having been guilty of a malicious prosecution.</p>

<p>ON APPEAL from the Thirteenth Judicial District Court for the Parish of East Feliciana. Golsan, J.</p>

<p>ON APPEAL from the Eleventh Judicial District Court for the-Parish of St. Landry. DuBuisson, J., ad hoc.</p>

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

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

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

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

<p>Oft APPEAL from tbe Nineteenth Judicial District Cornt for the-Parish of Iberia. Voorhies, J.</p>

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

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

<p>Syllabus.</p> <p>\.To suspend the execution of a decree obtained by the State annulling the charter of a corporation or enjoining persons claiming to be incorporated •from acting as corporators, and appointing a receiver, a bond sufficient iu .amount to cover costs will suffice.</p>

<p>IN RE E. Fulton applying for certiorari or writ of review to the Court of Appeals, Parish of Orleans, State of Louisiana.</p>

<p>Syllabus.</p> <p>(1) When the injunction has ceased to be operative before the suit is tried and the party enjoined has by third opposition obtained the proceeds of the property he sought to subject to his execution when it was enjoined, the court in dissolving the injunction is not warranted in imposing on plaintiff in injunction the maximum of twenty per cent, damages under Article 304 of tho Code of Practice.</p> <p>(2) The unpaid vendor of machinery has the right to seize and sell the machinery, although it may have been attached to and has become part of the immovable that is mortgaged. 32nd Ann. 1285 : 40th Ann. 1044.</p>

<p>Syllabus.</p> <p>■On the face of the papers there was an attempt made to give an undue preference to some of the creditors of the vendor.</p> <p>A sale in which the vendor leaves it to the vendee to make a pro rata division of the price among the former’s creditors (especially as the vendor sold all his property and in other sales did not stipulate for a pro rata division among the creditors) is not binding upon creditors, so as to preclude them from suing out a writ of attachment.</p> <p>The sales of record evidence an intention to prevent and hinder the creditor from collecting, and to place thé property beyond the reach of his creditors, in violation of Article 240 of the Code of Practice.</p> <p>"The law forbids to give in payment to one creditor to the prejudice of the other, any other thing than the sum of money due.”</p> <p>A dation en paicment of all the debtor’s property is null even though in one of the sales between him and his vendee there is a stipulation for a pro rata division of the price among the creditors, the amount being much less than the sum of his debts.</p>

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

<p>Syllabus.</p> <p>The claim of the third opponent was not liquidated, and he was prevented by its amount from going before a justice of the peace court to assert the claim and the privilege by which it was secured against another creditor, who was having judgment rendered in his favor by a justice of the peace court, executed to satisfy the privilege recognized by the judgment on the property to which oppenent also claimed a privilege.</p> <p>.Held : That the third opponent can compel his adversary to come into the District Court to litigate his right to a privilege.</p>

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

<p>Syllabus.</p> <p>1. An order for an appeal suspensive or devolutive, returnable according to law, is returnable at tlie first return day for the parish after the order. The appeal under that particular order is abandoned if not perfected by that time. (Mortee vs. Edwards, 20th Ann. 236.)</p> <p>2. The filing of a transcript after an appeal has been abandoned is without effect, and appellee is entitled at any time to have the lapsing of the appeal declared.</p>

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

<p>Syllabus.</p> <p>Article 126 oí the Constitution of 1898 only confers appellate jurisdiction on-District Courts from judgments of justices of the peace in criminal matters.</p> <p>Possessing no appellate jurisdiction over judgments of a justice of the peace for the amount of one dollar or less, a district judge is without constitutional warrant to place an interpretation thereon inconsistent with the-plain terms and tenor thereof.</p> <p>On Rehearing.</p> <p>1. Article 111 of the Constitution of 1898 provides that judgments in civil causes are appealable from Magistrate’s Courts to the District Courts without regard to the amount in dispute.</p> <p>2. Bnt judgments rendered by justices of the peace more than twelve months prior to the adoption of that Constitution are not affected by the provisions of that article, not even where such judgments are involved, or sought to be-affected, -in proceedings for prohibition and certiorari applied for in the District Court since the adoption of the Constitution of 1898.</p> <p>3. A district judge may issue writs of certiorm-i to justices of the peace only in aid of his appellate jurisdiction, and he transcends his authority when in a case in which he has no appellate jurisdiction he interprets the judgment therein rendered to mean that a certain one of the defendants is not liable-under the judgment.</p>

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

<p>Syllabus.</p> <p>'Since the adoption of tie Constitution of 1898, persons holding from theii’ debtors waivers of citation and confessions of judgment of the character referred to in Article 91 of that instrument, are not entitled upon simple production and proof of the waivers, and proof of the confession to obtain judgments, though the waivers and confessions may antedate the Constitution.</p> <p>'They must proceed independently of the waivers of citation, as if the same had not been written, and follow the rules governing ordinary proceedings.</p>

<p>Syllabus.</p> <p>1. Where plaintiff sues for a certain amount for injury done to his property by defendant, and the latter has, after an answer filed by them, pleading the general issue, restored the property to its original condition, he is entitled to set up that fact by supplemental answer. The issues in a case of that character are not changed by such answer.</p> <p>The whole tendency of later jurisprudence is towards extending the privilege of amendment as far as is consistent with substantial justice and not in; opposition to express statutes.</p> <p>Multiplicity of suits and creation of oppressive costs are thus avoided.</p> <p>,2. Ordinarily private property should be taken for public use only by regular judicial proceedings, but there are occasions when the public safety requires and justifies the taking by the State of such property under the exercise of its police powers. It Is the duty of the State to save the owner thoroughly harmless under such circumstances.</p> <p>.3.' The Board of Levee Commissioners of the Orleans Levee Board is a “body politic” with corporate powers, with the right granted to it to sue and be sued. It was created as a governmental public agency to represent the State in dealing with the matters and things placed under its control by the statutes referring to it.</p> <p>'The object of the Board was to protect the property within the district from overflow as rapidly and effectually as possible by the construction and repair of all levees, whether on river, lake, canal or elsewhere, necessary for that purpose.</p> <p>'To that end it was granted the franchise and power to do and perform ail things needful to carry out the purposes of the act and vested with discretionary power of action in cases of emergency.</p> <p>•4. The right and power of the Board to act in emergency cases was not made by law conditional upon having obtained prior thereto the approval and consent of the State Board of Engineers.</p> <p>The provisions of the law relating to such approval bear not upon the exercise of the power of ordering emergency work, but upon the method by which the contract for the work should be made. The validity of the contract might be affected by departure from the terms of the law in this regard, and yet the work itself might have been legally ordered and executed.</p> <p>.'5. It was not necessary to warrant action by the Board as being taken under an emergency that it should wait until there was an actual break in the levee or it was in face of an absolute certainty that there would be such a break.</p> <p>'To require this would make the exercise of the power practically useless.</p> <p>'6. When the work ordered by the Board to be made is authorized to be made in the exercise of the police power of the State, the contractor for the work is authorized to enter upon the owner’s property to execute the same and the latter is not justified in resisting his doing so. When such insistence is made he is authorized to put an end to the same, provided he do so in a legal manner not passing beyond the exigencies of the case. He Is authorized to invoke the aid and assistance of a policeman present in arresting the parties, instead of attempting to enforce legal rights himself, as thereby there would be less danger of a breach of the peace.</p>

<p>Syllabus.</p> <p>(1) A clause in a will by which the testatrix, after making a number of legacies, declared: “After these bequests have been made, the remainder of my estate I desire my executors to use for any charitable institution they may select or think of benefiting to perpetuate my memory,” does not fall under the provisions of Act 124 of 1882, and has, as to its validity, to be tested by the general rules of the Civil Code touching testamentary dispositions. So tested it cannot stand.</p> <p>(2) The testatrix did not designate who should be her residuary legatee, but intended that the residuum of her estate should remain in her “Succession” until her executors should select some existing charitable institution (not one to be formed) who on such choice being made, would become her residuary legatee, entitled to demand at once the whole of the residuum, and thereafter to administer in right of ownership, not trusteeship. The testatrix did not intend to confer upon the executors a continuing power of administration of the residuum, either before or after they should have made a choice of the object of the testatrix’s bounty, but intended that they should make a selection, and on making the same their power should be exhausted. The power and duty of selection was personal to the three particular persons appointed as executors, and could not be delegated by them to others, nor exercised by others to be substituted in their place. There would be no legal means of forcing the executors to make the selection in the event they should be unwilling to make a choice or unable to agree upon one. The bequest was not broad enough to cause it to be classed as a bequest for general charitable purposes ,and at the same time it was not specific enough to make it to be made to apply to any particular person or corporation.</p>

<p>Syllabus.</p> <p>1. To plaintiff’s petitory action defendant answered he held the land under lease from the heirs of Bogart, but did not disclose their names or domicile. The heirs were not made parties. There was judgment awarding plaintiff, on his showing of title, possession as against the lessee, but rejecting his demand “in all other respects.” Having prayed to be declared the owner this judgment disallowed his demand of ownership.</p> <p>Held : As he sued for the ownership of the land and for possession thereof as an accessory to such ownership, there is error in the judgment which while awarding him possession, rejects his claim of ownership.</p> <p>2. The rejection of his plea of ownership left nothing to predicate the decree-of possession upon.</p> <p>3. The court will, in the exercise of a sound discretion, remand a case, when, in its judgment, the ends of justice require it.</p>

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

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

<p>_Syllabus.</p> <p>The owner of a liquor saloon on board a steamer, running on navigable streams, between the city of New Orleans and Madisonville, Old Landing and other points, cannot be compelled by the local authorities, other than those of the home port, to pay p license tax for selling spirituous liquors.</p> <p>The license payer, for the business of retailing liquors, owes one license to the State and license taxes to the local authorities of the home port of the steamer, and not a license at every other landing in the course of the voyage.</p>

<p>Syllabus.</p> <p>The contest was among creditors over the proceeds of the sale.</p> <p>The mortgage creditor whose mortgage was foreclosed was not a director of the corporation debtor, and was not concerned in so far as related to the payment by the latter of !ts indebtedness.</p> <p>The mortgage creditor, holder of notes deposited as collateral security, had the right to foreclose and to have the property sold. The testimony does not disclose as between the two corporations that the property was sold In the proceedings of foreclosure for the purpose of defrauding creditors by change of title. There was no collusive agreement between the two.</p>

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

<p>Syllabus.</p> <p>1. Defense sought to exclude certain testimony on the ground that it involved a confession of guilt by accused. Exclusion was claimed on the ground that the confession was brought about by threat of prosecution if settlement of moneys embezzled was not made. Held : Not a case of confession of guilt admitted to the jury without proof of.its voluntary character.</p> <p>2. There is a broad distinction between the mere admission of inculpatory facts and a confession of guilt.</p> <p>3. ’ Acknowledgement of facts tending to establish guilt differentiated from confession. A damaging fact may be admitted without any intention 1o confess guilt.</p> <p>4. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession.</p>

<p>Syllabus.</p> <p>1. Wife sues for separation from bed and board on tbe ground of barsb and! cruel treatment and conspiracy against her life. Husband denies her averments, and reconvenes asking judgment against her for separation, averring the game grounds, and in addition her public defamation of him.</p> <p>S. Case is one of fact. Evidence not sustaining judgment below in favor of wife, same is reversed and the decree here awards husband the separation with custody of the children.</p> <p>3. Even with the judgment as here pronounced the case has not gone so far as to destroy the belief and hope that a reconciliation may yet be effected, and" the spouses brought together upon a basis of mutual forgiveness, forgetfulness and forbearance, and of common interest in their children of tender1 years.</p> <p>4. The law wisely and humanely holds the door still ajar for them.</p>

<p>ON. APPEAL from the Eighth Judicial District Gourt for the' Parish of Concordia, transferred from the Parish of Catahoula. Dagg, J.</p>

<p>Syllabus.</p> <p>The General Assembly of this State, in enacting Act No. 192 of 1898, creating a State Board of Health and defining its powers and duties, was not acting or claiming to act under “a power to regulate commerce,” as the source from which it derived the right to pass the act. Its source was the police power of the State, exercised for the protection and preservation of the public health.</p> <p>Section 8 of the act, authorizing the State Board of Health, at its discretion, to prohibit the introduction into any infected portions of the State of persons, acclimated, unacelimated, or said to be immune, when in its judgment the introduction 'of such persons would add to or increase the prevalence of the disease, is not unconstitutional as infringing upon the right and power of Congress to regulate commerce, or in contravention of treaties with Prance and Italy, or of the immigration laws of the General Government, or of any rights secured by the fourteenth amendment of the Constitution of the United States. (In re Rahrer, 140 U. S., 554 ; Gibbons vs. Ogden, 9 Wh. 203.)</p> <p>■Nor is the Act No. 192 of 1898, unconstitutional as violative of Article 31 of the State Constitution of 1898, which declares that “every law enacted by the General Assembly shall embrace but one object, and that shall be expressed by its title.” The authority to the Board of Health to prohibit the introduction into any infected portion of the State of persons acclimated, unacclimated, or said to be immune, from coming on shipboard from any foreign countries and ports whether infected or not, when in the Judgment of said Board the introduction of such persons would add to or increase the prevalence of the disease, could very legitimately be referred to several clauses of the title of the Act. It would be very properly covered by its declared object of “carrying into effect Article 296 of the Constitution of the State, providing for the establishment and organization of a State Board of Health, and defining the power, duty and authority of said Board”; or its object “of protecting and preserving the public health,” or “of authorizing the regulation of the isolation of infectious and contagious diseases.” (Allopathic State Board vs. Fowler, 50 Ann., 1358; 23 Am. & Eng. Encye. of Law, p. 229 et seq.; Cooley’s Const. Lim., 175; State vs. Crowley et als., 38 Ann., 783 ; State vs. Dalon, 35 Ann., 1141; American Printing. House Co. vs. Dupuy, 37 Ann., 188.)</p>

<p>Syllabus.</p> <p>(1) This case Is controlled by the principles announced in J. I. Kirk et al vs. Kansas City. Shreveport & Gulf Railway Co., No. 13,042, decided at the same time.</p> <p>72) A railroad company must construct at Its own cost necessary crossings over Its road bed, so as to enable owners whose lands have been separated by the same to have access from one part to the other. The failure of the land owner in granting the right-of-way to stipulate that such crossings should be constructed does not Impair his right to have the same made. (Heath vs. Texas & Pacific Railway Co., 37th Ann., 728.)</p>

<p>Syllabus.</p> <p>(1) An act by which land owners granted a right of way over their land to a corporation for the construction of a railroad, wherein the consideration stated was one dollar, and the advantages, benefits and conveniences resulting from the building of the road and the enhancement in value of their adjacent property, evidences, not a donation pure and simple, but a commutative contract.</p> <p>(2) While such a contract does not relieve the corporation from the affirmative continuing obligations devolving upon it from the building of the road, nor from responsibility for damages to the land owner subsequently actually accruing from its faulty construction, yet claims which would have been within and gone to make up the .original damages or compensation that wouid have been assessed against and paid by the company as the condition precedent to the right of way in an expropriation proceeding — matter which must have been known, foreseen and anticipated — must be held to-have been considered and included by the parties as being within the consideration agreed upon when they balanced advantages and disadvantages.</p> <p>(3; It is the duty of a railroad company where its road crosses a water course, or would interfere with its flow of water or interfere with the drainage of adjacent lands, to construct the road so as not to impair its usefulness or do-injury to the owners of the lands along the route — this duty is a continuing one, and where the road is not properly constructed each overflow incurs-new cause of action for damages.</p> <p>(4) A railroad company cannot on the ground of its being a quasi public corporation build its road so as to serve its own interest and be permitted to do so to the injury of those who are as much entitled to the full benefit of their own property as the company is of its. If the exigencies of the situation should be such as to require absolutely and necessarily the building of the road in a manner which carries with it Injury to other parties, the company is bound to hold them harmless from such damages for usurpations and wrongs to private rights of property, and cannot be justified by considerations of benefit to commerce.</p> <p>(5) If the mill and mill site of the land owners have been injured by the acts of the railroad company, they would be entitled to require that it replace the property in thoroughly safe condition. It has no right to expect that the owners should advance money out of their own pockets to relieve themselves from an injurious situation brought about by it to which they, in noway, contributed.</p>

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

<p>ON APPEAL from the Seventeenth Judicial District Court for the-Parish of Lafayette. JDe Baillon, J.</p>

<p>Syllabus.</p> <p>The transcript containing neither bill of exceptions, motion in arrest of judgment, nor assignment of errors, and there being no error apparent from an inspection of the transcript, the judgment appealed from will be affirmed.</p>

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

<p>Syllabus.</p> <p>City improvement certificates issued to contractors for street paving, block by block, as ike work progresses, are payable in cask upon appropriatlonswken made by tke city; and their payment does not, in any manner, depend' upon tke contractor’s fulfillment of tke maintenance clause of kis contract" In bekalf of tke city.</p>

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

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

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

<p>Syllabus.</p> <p>1. Plaintiff sold land to defendant. The price went to make np the amount of her paraphernal rights set forth in the act of restitution by her husband to her. The property conveyed by her husband to her in the act of restitution was received by the wife in part satisfaction of her paraphernal rights.</p> <p>Held : The wife was without right to recover judgment for the land she sold to defendant.</p> <p>Rile was precluded from recovering by the fact that the act of restitution covered the price at least in part. She could not hold the property sold to her by her husband and recover property she transferred to defendant. She did not show error or frand in matter of the restitution to her.</p> <p>The averments in the act of restitution were prima, facie true and correct.</p> <p>2. The Supreme Court, at the stage of the proceedings the question is presented, declined to make a decree enabling plaintiff to amend, in order that plaintiff may show error or marital coercion in matter of the restitution.</p>

<p>.Syllabus.</p> <p>The act o£ incorporation of a manufacturing company was erroneously-drafted under Act 36 of the Acts of 188S, Instead of, as it should have been, under Section 681, et seq. of the Revised Statutes.</p> <p>The promoter and organizer of the company changed his position and sought to attack his own acts as a charter member and president of the company.</p> <p>Held - That he was estopped, that the incorporators, as relates to those with whom they have contracted, can not question the incorporation of a company it was possible to incorporate (though it may be a nullity as to third persons). A company, which the charter members attempted to incorporate and which has acted as a corporation, having in appearance, at least, full power and authority to act — a power and authority which induced others to enter into contract with it and invest money for the benefit of the company — is binding upon its promoters and organizers.</p>

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

<p>ON APPEAL from the Mayor’s Court of the Town of Opelousas, 8. L. Eelrard, J.</p>

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

<p>Syllabus.</p> <p>1. Under Use powers granted to it by law, the Police Board of the City of New Orleans is vested with authority to grant new trials to parties convicted by it of infractions of its rules and regulations — the power being-exercised at its discretion if rules on that subject have not been adopted, and if rules have been adopted then to be exercised under the terms thereof.</p> <p>2. The order of the Board granting a new trial is generally final, and can not be set aside unless inadvertently given; certainly not in the absence of' legal cause, made ordinarily to appear contradictorily with the party interested.</p> <p>3. An order granting a new trial, as a general rule, vacates a former judgment without any special order to set it aside, and leaves the case as though no trial had been had.</p> <p>4. Where the Board, outside of its proper powers, revokes an order for a new trial which it had legally granted, mandamus will lie to it, commanding it to proceed to a new trial of the case. State ex rel. Klotter vs. Police Board, 747.</p>

<p>Syllabus.</p> <p>Wnore the alleged error o£ the Court of Appeals Involves but a small amount, the complaining party should endeavor to have it rectified by motion for a new trial, or amendment of judgment, before applying to this court for a writ of review.</p>

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

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

<p>Syllabus.</p> <p>T. A contract by a vendor of a' mercantile business and good will not to engage in a similar business in a specified place for three years, and stipulating for the payment by the obligor of a certain sum to the obligee, in the event of a violation of the agreement, provides for “liquidated damages” and not for a penalty.</p> <p>2. It will not do to apply to the results of a violation of an agreement “not to do” the rules applicable to a violation of an obligation “to do.” There is an entire breach of an obligation “not to do” the moment the obligor does what he has covenanted “not to do,” and the obligee is entitled to sue the obligor at once for the breach; he is not forced to wait until the end of the term fixed as that during which the obligor had covenanted not to engage in business, in order to ascertain (even if he could do so) the actual damage to result from the obligor's action.</p> <p>3. An amount stipulated to be paid by way of “liquidated damages” is sub ject to reduction, under certain circumstances, no less than is that stipulated to be paid as a “penalty.”</p> <p>In either class of eases when reduction is permissible, and the obligee sues for the whole amount upon the instrument evidencing the agreement, the onus is upon the party claiming a reduction to establish the extent of the same.</p> <p>The obligee is entitled to rest upon the amount primarily agreed upon as that due, and is not called on to make extrinsic affirmative proof of his damages.</p> <p>In the absence of counter proof, he is entitled to judgment upon establishing the contract and showing its violation.</p> <p>4. The mere length of time during which defendant may have observed, or may have violated his obligation not to engage in business for a certain period, furnishes no basis upon which to estimate a reduction either of a' penalty or of liquidated damages.</p> <p>On Rehearing.</p> <p>1. Questions open. Issues between parties in another suit had not been settled and were not a bar to review.</p> <p>2. Ruling heretofore. This ruling was not binding upon the Supreme Court.</p> <p>-3. Law and facts. Issues involved interpretation of a penal clause of contract.</p>

<p>Syllabus.</p> <p>'The purchaser of property sold at sheriff’s sale, In foreclosure of a mortgage, does not acquire under his purchase the chandeliers and brackets placed In the dwelling house thereon by the owner. They are movables, not immobilized by destination.</p>

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

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

<p>Syllabus.</p> <p>1. A nuncupative will, by public act, tbe validity of which was called In-question for defects of form, is tested herein and found valid.</p> <p>2. The placing by the notary of a word omitted from the will upon the margin thereof, is an immaterial circumstance when the word can be ignored and the will stand.</p>

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

<p>Syllabus.</p> <p>The real property of a succession having been sold for the purpose of paying 'debts of the deceased, a single legatee is without interest to institute suit for the revocation of the sale on the ground that same was made to a ■person interposed for the administrator of the (state, if Hie purchase price has been paid in cash, the amount of the appraisement in the inven, tory bid. and the proceeds yielded are insufficient to pay the indebtedness of the deceased.</p>

<p>Syllabus.</p> <p>A railroad corporation having secured a franchise and right of way for the purpose of constructing its tracks upon a locus pubUous of a city, has the right to expropriate from another railroad corporation sufficient clearance space to enable if to pass its trains free of obstructions and hindrances from the latter, i£ the use thereof be not of such a character as to be indispensable to the movement and operation of its own trains or its other business.</p> <p>On Rehearing.</p> <p>The use of a team track and delivery space of a railroad company was not shown so esential as that it would result in impairing defendant’s franchise and use, in case another railroad is permitted to use three feet for clearance space, which clearance does not interfere with the running of defendant’s train, nor to an irremediable extent with the use of defendant’s team track and delivery space.</p>

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

<p>Syllabus.</p> <p>1. A mortgagee in good faitli, accepting his mortgage on the faith of a recorded title, based on a conveyance made by a husband as head and master of the community, is not affected by the fraud imputed to the husband with respect to his wife.</p> <p>2. Such a mortgage is not within the prohibition of alienation of property, prescribed by the Code, pending suit for recovery of the property — the mortgagee being no party to such suit.</p> <p>3. A mortgage is, in the purview of the law, a quasi-alienation; the seizure and sale of the property under it the exercise of the remedy and the consequence of the mortgage.</p>

<p>Syllabus.</p> <p>'The provision of the city charter that the council shall not grant any privilege for the opening of a barroom except upon the written consent of a majority of the bona fide house holders, or property holders, within three hundred feet of the place proposed for its establishment, means either one or the other, indifferently, and without distinction.</p> <p>A house holder is a person who occupies a house as a place of residence or business, without any relation to the character of the title by which the property is held.</p>

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

<p>Syllabus.</p> <p>1. A fact not reviewable on appeal. — The amount involved was less than two thousand dollars; questions regarding facts were not considered, as they were not within the court’s jurisdiction on an appeal.</p> <p>■2. Budget. — As a question of law, the court finds that there was no forming of the budget as required by statute, and it follows, no advertisement. The statute requires the publicity of the finances of the parish, and one of the first steps towards publicity is the forming of a budget and its advertisement.</p> <p>3. Admission. — Giving effect to an admission on record, the court amends-the judgment by reducing the amount of the license from one hundred dollars to fifty dollars.</p> <p>On Reheabing.</p> <p>1.. Essential that the estimate of parish expenditures, required by R. S., 2745, should be published at least thirty days before the tax predicated upon it is levied.</p> <p>2. Requisites of the estimate or budget pointed out, and the same held deficient in instant case because not naming the year for which made.</p> <p>3. Not necessary this estimate should be more than a statement of probable expenses. Not required to embrace anything relating to parish resources or revenues.</p>

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

<p>Syllabus.</p> <p>1. This was a suit for the amount realized on property pledged, brought ots. the grounds that the pledgor had pledged his property without consideration, and within ninety days preceding his insolvency. The act of pledge contained the declaration that the pledge was made to avoid the sale and sacrifice of securities already pledged and for further security. The declaration was sustained by the facts, and there was, in consequence, sufficient consideration for the pledge.</p> <p>2. A note payable on demand is a negotiable instrument which becomes past due after demand, and is not subject to equities prior to demand.</p> <p>3. An amount given or a pledge made to obtain a creditor’s forbearance not to-sell the property pledged by which the note payable on demand was secured,, was not a gratuity, as time for payment was granted (in effect), although-the note secured by pledge was made payable on demand.</p> <p>4. Failure, growing out of sudden unforseen events, does not affect the1 validity of a transaction made in good faith for a full consideration, entered into within three months preceding failure.</p>

<p>Syllabus.</p> <p>The law presumes against fraud. Where acts are susceptible of two construe- . tions, one consistent with honesty and fair dealing, and the other odious and' criminal, the burden of proof is on the one who charges the latter and wishes the court to think that the odious and criminal is true.</p> <p>In a suit to have an olographic will decreed null, on the ground that it is not in the handwriting of the deceased and is a forgery, the weight of the testimony to justify a judgment annulling the will should make it appear, with some certainty, that the will is a forged paper.</p> <p>The presumption of regularity and honesty is sustained by the weight of the testimony.</p> <p>This was the conclusion arrived at by a jury of the vicinage who saw and heard the witnesses, and had special opportunity to judge of their credibility and' character. It was adopted by the Supreme Court as the basis of the judg- : ment.</p>

<p>Syllabus.</p> <p>As relates to the parish:</p> <p>1. A juror met with an accident which resulted in his death, while he was, with the other members of the jury, in charge of the sheriff’s deputy.</p> <p>2. Complaining of the negligence of the police jury and of the deputy, this suit was brought by plaintiff, his father and mother, for damages.</p> <p>3. The parishes, like the town or country, indicating the political divisions in-certain States of this Union, are not responsible for damages caused by the negligence of police juries in matters in which they have some discretion. They represent the sovereign power and not the tax-payer by whom the damages, if allowed, must be paid.</p> <p> As relates to the claim made against the sheriff, a co-defendant: </p> <p>1. The action against the parish not being sustained under the state of facts, there was no right of action against the sheriff.</p> <p>2. It does not appear that the order of the officer was the proximate cause of death. lie directed the members of the Jury, in the darlr, to move further from the courthouse. There were other causes of the accident which precluded plaintiff from recovering, and to which the officer did not contribute.</p>

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

<p>Syllabus.</p> <p>■Originally, the action was possessory. In subsequent proceedings, the action, without objection on the part of plaintiff in the possessory action was changed into an action of boundary, wherein the rights of the parties were considered and decided.</p> <p>'The plaintiff having waived his right, as set forth in the possessory action, could not ignore the suit to. fix the boundary line and return to the possessory action.</p> <p>While the Supreme Court expresses its views on certain issues, taken as a whole, the questions presented are not reviewable under Article 101 of the Constitution. The article was not intended to give a right of review, as if on appeal in all cases.</p>

<p>IN BE A. Monteleone applying for certiorari> or writ of review, to-the Court of Appeals, Parish of Orleans, State of Louisiana.</p>

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

<p>Syllabus.</p> <p>1. Two partners, in disagreement over tlie affairs of a partnership, appointed-a third person as arbitrator, custodian, receiver and depositary, with authority to dispose of the partnership assets, pay debts of the partnership, and also individual debts of the partners, and settle with them for balance-left over.</p> <p>2. This third person, acting within the scope of the mandate thus accepted' by him, will be protected against the suit of one of the partners seeking to hold him responsible on the theory of a change, by subsequent agreement of the partners, as to disposition of part of the assets. Such subsequent agreement, to control, must appear with as much certainty and definiteness as did , the first conferring the mandate.</p>

<p>Syllabus.</p> <p>1. Action by mandamus to compel delivery of certificates of stock to alleged: owner.</p> <p>2. Resisted because former certificate by predecessor company, in lieu of which the certificate claimed was issued, is not produced and surrendered for cancellation.</p> <p>3. Willingness expressed, however, to deliver if security is given to indemnify against appearance of old certificate.</p> <p>4. Held : Not a case for the application of that part of C. C. 2279 which authorizes the court, “in case circumstances render it necessary,” to order security.</p> <p>5. Held, further, That respondent company may with safety deliver up the-certificate without security.</p>

<p>Syllabus.</p> <p>The proviso of Art. 186 of the Constitution of 1898 again held not to be retrospective in its operation. The doctrine announced in Succession of William Parham, 51 La., Ann., -, reaffirmed.</p>

<p>Syllabus.</p> <p>1. As parties choose to bind themselves in their business agreements so must .they be heid bound.</p> <p>2. Where, in a contract of sale of certain boiler furnaces, a guaranty as to results is stipulated, and a particular test is provided for to demonstrate these results, and the test fails in the particuiár guaranteed, the vendee may, in the absence of proof showing the test was conducted under conditions, accidental or otherwise, rendering it unfair, decline acceptance.</p>

<p>IN RE The Brown Shoe Company Applying for Certiorari or Writ of Review to the Court of Appeals, Second Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. Where the nullity charged against a marriage is relative and not absolute,, the contracting parties retain their status, as married persons, until such1 nullity is ascertained and declared by a competent court.</p> <p>2. In such case the father of the minor, emancipated by marriage, has no-right of action, in himself, to sue for the nullity of such marriage, ana his minor son does not need his aid in bringing the suit.</p> <p>3. Nor does the female minor, emancipated by such marriage, need a tutor or curator, nor the authorization of her husband, nor of the court, in order to enable her to defend such suit.</p> <p>4. An appellee who flies an answer to the appeal praying that the judgment appealed from be affirmed, will not be heard, through the argument of counsel, complaining of the basis upon which such judgment rests.</p> <p>5. The words “mistake in the person,” as used in Articles SU and 110 of the Civil Code .which prescribe the cause for which marriages may be annulled, do not mean, mistake in the character of the person, or in his, or her, attributes, condition in life, or previous habits.</p>

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

<p>Syllabus.</p> <p>The election of a syndic at a meeting of the creditors of an insolvent and the discharge of the insolvent, will be sustained, when the same are sought to be set aside on objections urged for the first time in an opposition to the proces verbal of the Notary filed in the District Court, when the grounds urged are that the notary received votes without proper evidence, and it is shown on the trial of the opposition that the votes so received were legal and cast in conformity to the wishes of the owners of the claims. (TPandely vs. Creditors, 9th La., 387; Gwartney vs. Creditors, 13th Ann., 189; Conant vs. Millaudon, 5th Ann., 542; 26 N. E. Rep., 667.)</p>

<p>Syllabus.</p> <p>If the action of the rolice Board of the city of New Orleans in removing a police officer from the force had been of a character such as to be an absolute nullity, the officer so rempved being still legally on the force, would have been entitled to be so recognized; and mamHamns could properly issue to the Board directing it to do so, but the action taken in this case was not null and void, and the District Court properly refused to Issue the writ.</p>

<p>Syllabus.</p> <p>It appearing from the evidence that an heir was owner of one-half interest, notwithstanding the fact that the property, when assessed, was, technically, that of the succession of an ancestor, a sale will be upheld with respect to that Interest under an .assessment against the heir, as owner of the whole.</p>

<p>Syllabus.</p> <p>The provisions oí Act 159 of 1898, authorize the judges of the District Court throughout the State, and of the Civil District Court for the Parish of Orleans, to appoint receivers to take charge of the property and Business of corporations, at the instance of any stockholder, or creditor, when the directors, or other officers of the corporation are jeopardizing the rights of stockholders or creditors, by grossly mismanaging the business, or by committing acts ultra, vires, or by wasting, misusing, or misapplying the prop- ," erty or funds of the corporation.</p> <p>As that statute is the most recent and pertinent expression of legislative will upon the subject, it is necessarily controlling.</p>

<p>Syllabus.</p> <p>An employer who, suddenly, upon the spur of tRe moment, and In .a spirit o£ anger, denounces an employee as a thief, and attributes to him other vile epithets, In a public place, and in the presence of many persons, is liable In damages for slander — notwithstanding the employer had been justly annoyed by a quarrel that had arisen between the employee and his manager.</p> <p>Their quarrel constituted no just ground for the employer’s slanderous utter»' anees.</p>

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

<p>Syllabus.</p> <p>When an assessment made of real estate with certain name and description is valid, either of itself or rendered so by reason of confirmatory action of the ' owner, publication and sale of same in the same name and with the same description will convey a title to the purchaser that will be upheld as against the delinquent tax-payer and his heirs and assigns.</p> <p>Notice of proceedings for the sale of properly for delinquent taxes, is sufficient if it conform to the requirements of the State revenue law — same not being analogous to the citation which is prescribed by tho Code of Practice.</p>

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

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

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

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

<p>Syllabus.</p> <p>Taxes imposed on a non-resident, whose property is not in the State, are null, as tax laws can have no extra-territorial effect.</p> <p>Debts due to a non-resident (still in non-concrete form) have their situs at the domicile of the creditor and not at the domicile of the debtor.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss.</p> <p>1. Where a devolutive appeal was tafeen from a judgment approving a syndic’s account, and sometime afterward a judgment was rendered by the court of the first instance, discharging the syndic; Held : On a motion to dismiss the appeal — whatever effect the judgment may have on the proceedings hereafter, it does not offer good ground to dismiss the appear</p> <p>2. A motion to dismiss an appeal having been denied, can not be renewed or thereafter treated as a pending motion, but this court, in considering » ease upon its merits, may deal with such denial as an interlocutory order, which may, then, be reviewed.</p> <p>5. The distribution of the fund and the discharge, by the lower court, of the syndic, pending devolutive appeals from a judgment on oppositions to account, do not justify the dismissal of such appeals.</p> <p>4. The test of the appellate jurisdiction of this court where creditors have litigated "in concurso ,” is the amount of the fund to be distributed.</p> <p>G. Where a motion to dismiss an appeal, made when a case is called for trial on its merits, on the ground of acquiescence, involves a question of fact, which would necessitate the remanding of the case; and when, the case being heard on the merits, it appears that the appellant would not be entitled to a reversal of the judgment, the motion to dismiss will be denied and the case decided on its merits.</p> <p>On the Meeits.</p> <p>6. Creditors in insolvency proceedings claiming privileges to the prejudice oí others, must establish their claims by satisfactory evidence. And a foreign-creditor, claiming a vendor’s privilege, must prove a contract entitling him to it, and identify the goods.</p> <p>7. An assessment on "Merchandise and Stock in Trade” gives the city of New Orleans no privilege on the proceeds of the “counters, fixtures, and wooden partitions” in a barroom.</p>

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

<p>APPEAL from the Thirteenth Judicial District Court for the Parish of West Feliciana. Stone, <7., ad.hoc.</p>

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

<p>Syllabus.</p> <p>Evidently, defendant in two suits, in which she sued out provisional seizures-before one of the City Courts, was in error as to the amount due her, and was absolutely without right to the rental claimed.</p> <p>The writs were dissolved.</p> <p>Damages growing out of a provisional seizure made on a claim which had already been paid, are due by defendant.</p>

<p>Syllabus.</p> <p>Goóds Imported and remaining in the original boxes, or cases, or wrappings, In which shipped, are held to be, until sold by the importer, not subject to assessment and taxation for State and municipal purposes, being exempt under Art. t, Sec. 10, par. 2 of ’federal Constitution. a.</p> <p>But goods taken from the original cases, or boxes, or wrappings, in which shipped and received by the importer, even though still remaining in the manufacturers’ packages, become incorporated into the general mass of property of the State and subject to its tax laws.</p>

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

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

<p>Syllabus.</p> <p>1. The finding of a jury of free-hoiders in an expropriation case, as to the compensation to he paid the owner for property taken in the exercise of the right of eminent domain, is entitled to the greatest weight.</p> <p>2. While in a case showing unreasonable disproportion, one way or the other, of the amount of the award of such jury with what the evidence shows the true value of the property to be, this court will interfere and increase oi reduce such award according as the facts and real condition of things may warrant, it is only a clear case of error or mistake, fraud, prejudice or misconduct on the part of the jury that would justify the disturbance of their verdict.</p>

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

<p>APPEAL from the 18th Juditial District Court for theParish of Lafourche. — Caillhonet, J.</p>

<p>Syllabus. '</p> <p>'The city of New Orleans is authorized by Act No. 143 of 1898, to enforce obedience to, and to punish the violation of what is known as the “Building Ordinance” (being Ordinance 6533, C. S.), through the Recorders, by fine and imprisonment, or both, or by imprisonment in default of the payment of the fine, and legitimately exercised that authority In the adoption of Ordinance 14,804, C. S.</p>

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

<p>Syllabus.</p> <p>1. The Civil District ‘Court has Jurisdiction in a suit between the State and a: "Recorder,” to test the title of the latter to the office held by him.</p> <p>2. The State, through the Attorney General, may bring suit, under the '‘Intrusion Act, " against a dc facto officer, without joining as plaintiff any claimant to the office in question, and without there having been any appointment made to fill the vacant office into which such officer is charged with having intruded.</p> <p>3. Art. 157 of the Constitution, authorizing the Governor to fill, by appointment, vacancies in the judicial offices of the parish of Orleans and city of New Orleans, applies to vacancies in the office of Recorder, which, as now constituted, is a judicial office within the meaning of the article.</p>

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

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

<p>Syllabus.</p> <p>1. The joint nature ol the principal obligation does not necessarily negative the indivisibility of the mortgage by which the obligation is secured. An indi visible mortgage frequently secures a divisible debt.</p> <p>2. Where two persons joining in a joint personal obligation secure the whole indebtedness by a mortgage on certain property in its entirety .which belongs to them in indivisión, each owner stands as surety for the other for the portion of the debt beyond that owed personally by herself.</p> <p>3. If two debtors bound only jointly have mortgaged their common property in its entirety for the whole debt, each of the debtors is bound “with the other,” the mortgage being indivisible. If one pays the whole debt, subrogation takes place in his favor.</p> <p>4. The subrogation acquired under Art. 2161 of the Civil Code by a purchaser who employs the price of his purchase in paying the creditors to whom the property is mortgaged is a special one. It is an equitable defensive subrogation intended to consolidate the property in the hands of the purchaser and protect him from eviction therefrom at the instance of other creditors. When the amount paid by the purchaser to the mortgage creditors does not exceed the purchase price, the subrogation acquired by him is limited to the-property purchased and does not confer rights upon him to be actively exercised against third parties.</p>

<p>Syllabus.</p> <p>Original judgment amended as to amount to $1,000 : otherwise re-Affirmed.</p> <p>1. It is the duty of the party controlling a railroad train to advise himself be fore it starts not only as to one part of the existing situation, but of the-whole, and govern himself accordingly.</p> <p>2. Though a train be a “repair train” and the employees thereon may have as sumed in accepting employment thereon that they may be in greater danger of accident than they might be under other circumstances, they have the right to assume that this very fact of increased danger being known to the-conductor, he will guide his conduct so as to minimize the danger by the increased care and precautions which the occasion calls for.</p> <p>Á railroad company which permits its tracks to become unsafe should be held, to an increased responsibility for the manner in which its trains are run on. such a track.</p>

<p>Syllabus.</p> <p>1. A judgment against the city oí New Orleans rendered in 1879 for damages-for eviction under th'e city’s warranty obligations tracing back to and re suiting from a contract of sale made a great many years before, is not <r “floating debt” of such a character as to fall under the exceptional provi sions of Act No. 67 of 1884 touching the funding of the city’s indebtedness.</p> <p>2. A judgment of that character rendered in 1879 and registered under the provisions of Act No. 5, Extra Session of 1870, not being prescribed at the date of the passage of Act No. 67 of 1884, it was not the duty of the Board ot Liquidation so finding it, to go behind that fact and examine and ascertain whether prescription might or might no’t have run against the judgment later.</p>

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

<p>Syllabus.</p> <p>1. A minor on reaching majority is required to have recourse to an action foi an account to have recognized and enforced a claim against his father oí monies of his received by the father during tutorship, but not for a claim for a debt due to his mother transmitted to the minor by inheritance from her for paraphernal funds received by the husband and converted to his own use during the marriage. The prescription of four years provided for by Art. 362 of the Civil Code applies to claims of the former but not of the latter character.</p> <p>2. No fixed rule can be formulated for the ascertainment of the existence and the extent of the liability of the community to the succession of the husband for his separate funds expended for its use. The circumstances and surroundings of each ease have to be considered to determine whether the community could and would have been in the situation in which it was at the date of the husband’s death in the absence of having had outside assistance called in for its benefit.</p> <p>If such outside assistance would have been necessary it would be fair to presume that it had been furnished by the husband himself if he had at the time the necessary means to have done so.</p> <p>3. A written receipt given by a ward to his tutor for a certain amount paid to the former on his reaching majority would only show the fact of an indebtedness to that extent and of the payment thereof, and serve as a voucher on an account when filed, and not acknowledge the existence of a further indebtedness nor disclose, fix, nor recognize the ultimate balance due.</p>

<p>Syllabus.</p> <p>Ordinance No. 14,807, C. S., which provides a meat inspection service, and a' precedent observance thereof as a condition of the right to either expose same for sale, or to sell the same in the city of New Orleans, is legal, valid and constitutional; and same evidences a proper and legal exercise of police power, for the protection and preservation of the public Health and sanitation of the municipality.</p> <p>In this regard, the city has ampie warrant of law to pass ordinances requiring ante-mortem inspection of animals intended to be slaughtered for use as human food, as well as those requiring post mortem inspection of the meat of such animals before same is placed upon the market for sale.</p>

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

<p>Syllabus.</p> <p>This court being without jurisdiction, the appeal is dismissed.</p>

<p>1. Broken Contract. — Damages actually shown, growing out of the breach ot contract, were allowed.</p> <p>2. Claim for Interest on Money Borrowed. — Claim for interest on money; borrowed by plaintiff to carry out the contract was not allowed, for the reason, that it was not made clear that plaintiff borrowed the amount for the' purpose alleged. If it was borrowed for that purpose, it was never tend, ered to defendant; on the contrary, a large part of the money referred to. was used by plaintiff in his own business.</p> <p>3. Prospective profits. — Future profits are generally too remote to furnish at basis for .damages. Amount claimed for probable and speculative profits was-not allowed.</p>

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

<p>ON APPLICATION for writs of certiorari, mandamus and prohibition.</p>

<p>Syllabus.</p> <p>1. The rule that the finding oí the trial Judge on a question of fact will be reasonably followed unless clearly shown erroneous, reaffirmed and given application herein.</p> <p>2. The mere filing of a suit seeking dissolution and settlement of a partnership does not ipso facto operate its dissolution.</p> <p>3. It is the duty of a partner in charge of a valuable partnership asset, when dissolution is sued for, to preserve it, to prevent its deterioration or destruction, and in this behalf he may make reasonable expenditures on behalf of the partnership.</p>

<p>ON APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Thornton, J. ad hoc.</p>

<p>Syllabus.</p> <p>1. Act No. 94 of 1890 does not embrace more than one object, within the meaning of Aitiele 29 of the Constitution of 1879.</p> <p>2. An information will not be held insufficient for omitting to state the time at which the offence was committed, or for stating a time impossible, when time is not of the essence of the offence; nor, in such case, for omitting to state the time of the doing of anantecedent act upon which the offence is made to depend: nor, for omitting to state the place of the doing of such antecedent act where proof as to the place is unnecessary.</p> <p>R. But the fact of the doing of such antecedent act must be set forth, and where a reference to averments contained in a preceding count, is relied on for that purpose, such averments must be sufficient, and" the reference must be so full and distinct as. in effect, to incorporate the matter going before with that in the count wherein it is made — otherwise, such count cannot be held to be good.</p>

<p>Syllabus.</p> <p>i. Act No. 94 of 1896 does not embrace more than one object, within the meaning of Article 29 of the Constitution of 1879.</p> <p>2. An information will not be held insufficient "for omitting to state the time at which the offence was committed, or for stating a time impossible, when time is not of the essence of the offence; nor, in such case, for omitting to state the time of the doing of an antecedent act, upon which the offence is ■ made to depend; nor, for omitting to state the place of the doing of such-antecedent act, where proof as to the place is unnecessary.</p>

<p>I AN APPEAL from the Fourteenth Judicial District Court for the va Parish of Iberville, Talboi, J. . ■</p>

<p>ON APPEAL from the Thirteenth Judicial District Court for the' Parish of East Feliciana. Golsan, J.</p>

<p>Syllabus.</p> <p>Under the Constitution, tile Criminal District Court is without jurisdiction to entertain and pass upon an application for naturalization, notwithstanding it is, in a certain sense, a court of record, which is possessed of common law jurisdiction.</p>

<p>Syllabus.</p> <p>It is not sufficient ¡or a plaintiff, seeking damages o¡ a railroad company for personal injuries, to show that a particular appliance of the company was in bad condition; he must establish the fact that the injuries were occasioned by the same.</p>

<p>Syllabus.</p> <p>1. Though a tract of land be subject te the legal servitudes of receiving tlie Waters running naturally from another adjoining It, the proprietor of the latter is not entitled to enter, at pleasure, on the contiguous property without the eonsent of the owner and dig thereon a ditch to increase the drain.</p> <p>2. A tresspass can not be justified, nor continued, upon the ground that it is beneficial to the person whose property is tresspassed upon. Even benefits «an not be forced npon a person without his consent.</p>

<p>Syllabus.</p> <p>1, On the showing made, it is held that the Civil District Court could legally order the liquidation of the dissolved corporation, and, to this end, appoint liquidators, and further as incidental to the liquidation, it had authority to enter a restraining order staying proceedings against the corporation and its property.</p> <p>2. The principal and essential action on part of the court was to order the-liquidation. The particular form of words used is of no consequence. When the matter was brought into court and the judge concluded on the showing made that the liquidation ought to be ordered and acted accordingly, a proceeding at once became pending for the liquidation of the affairs of the corporation, and, in aid of these proceedings, the court could appoint liquidators and stay proceedings independently by the creditors.</p> <p>Nicnoixs, C. J., dissents.</p>

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

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

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

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

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

Baber, J. Statement op tiie Case. Defendant was convicted of robbery and sentenced to imprisonment in the State penitentiary at hard labbor, for seven years, and to pay the costs of the prosecution, and he has appealed. .Iliscounsel relies, here, upon a motion, to quash the information, filed in the lower court, upon the grounds, that “the information is not sufficient in law-, and (hat he is not bound by the law' of the land to answer-same. * * * That the said information…

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

<p>0 ST APPEAL from the Seventh Judicial District Court for the Parish of Madison. Montgomery, J.</p>

<p>Syllabus.</p> <p>An accused can not assign as newly discovered testimony, the statements of persons whom he had summoned and who were present at the trial, but whom he had not interrogated on the trial.</p> <p>This is particularly true where it appears that he offered no testimony in his defense — relying upon the weakness of that offered by the State.</p>

<p>Syllabus.</p> <p>Tlie suit was brought by plaintiff to recover possessiou of land and rents in • amount more than $2000. . '</p> <p>The suit was brought against heirs of age, as representatives of their mother’s succession, the debtor.</p> <p>The judge of the District Court decided that the defendants must be considered heirs as long as they have not renounced the succession, and condemned them to give up the property, and non suited the plaintiffs as to rental.</p> <p>The heirs appealed to the Court of Appeals and urged that they made no claim to the property, and therefore should not have been condemned to pay the i-ost.</p> <p>The view of the District Court regarding the facts, was different from defendants’ averments on appeal.</p> <p>The Court of Appeal properly held that it did not have jurisdiction and dismissed the case, that if any error had been committed, the appeal should have been taken to the Supreme Court, as the issues are not within the formers jurisdiction.</p>

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

<p>Syllabus.</p> <p>i. Juey Commissioner. — An officer who accepts an appointment of jury commissioner is presumed to have resigned his former office, and therefore his acts as commissioner are not null.</p> <p>2. Inquietes phou the Juey. — Instructions or any information given to the Jury, if the case has been submitted to it for its verdict, not objected to at the time given, are. not grounds for reversal. The information asked for and given had no bearing on the case/</p> <p>S. (.'ounce's Dikceetion. — The trial court in its discretion judges of the necessity val non of discharging a jury.</p> <p>4. Jueies Not Unkeasonabi.y Detained. — The situation and restraint in which jurors are placed is exacted in the public interest, and do not afford grounds of themselves to set aside their verdict.</p>

<p>Syllabus.</p> <p>T. Jurisdiction. — The District Court had jurisdiction to decree that a judgment pronounced on appeal was an absolute nullity.</p> <p>■2. Not Res Adjudicata. — The judgment did not have the authority of a thing adjudged, if it was rendered by a court without jurisdiction.</p> <p>3. Court a qua. — After a case has been remanded for execution, in so far as relates to the question of its absolute nullity vel non, the court to which it is remanded has jurisdiction.</p>

<p>ON APPEAL from the Seventh Judicial District Court fcr the Parish of Madison. Montgomery, J.</p>

<p>ON APPEAL from tho Eleventh Judicial District Court for the Parish of St. Laudry. I)vpre} J.</p>

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

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

<p>Syllabus.</p> <p>The proof disclosing tha.t the plaintiff and defendant had lived in open, public concubinage for more than twenty years, and a family of eleven children have been born of their illicit intercourse; and, it further appearing that this illicit intercourse was admitted by the plaintiff under oath in her answers to interrogatories on faots and articles — any claim she may make for services as house-servant and laborer are so interwoven and blended with her remuneration as a concubine, that they-are, practically, indistinguishable.</p> <p>When the taint exists, it affects fatally, in all its parts, the entire body of,the claim.</p> <p>Where there is turpitude, the law will help neither party to the transection.</p> <p>On Rehearing.</p> <p>When the interests of justice require it, a ease will be remanded for further evidence.</p>

<p>Syllabus.</p> <p>An attachment having been obtained on the sole ground that the defendant had caused a reputed act of mortgage in favor of his wife to be recorded against his property with intent to defraud his creditors, and an averment to that effect in the plaintiff’s petition having been withdrawn on proof of its validity being offered, the same must, as a necessity, be dissolved.</p> <p>In such a case the question of motive has no relation to the Issues.</p>

<p>Syllabus.</p> <p>A contractor having engaged to construct a courthouse, and pledged his contract to a bank with full subrogation of his lien and privilege In order to obtain» advances of money to carry same to completion, and subsequently bought materials for the construction of the edifice, upon terms of credit, in other States than Louisiana, which were actually used therein, the furnishers of materials are entitled to preference in receiving, payment over the bank as assignee, irrespective of the place where the contract for materials was en tered into — they having made out and served attested accounts upon the proper parochial authorities in pursuance of Revised Civil Code, 2772.</p>

<p>Syllabus.</p> <p>In fase llie president and cashier of a bank unite and co-operate together in abstracting and misapplying its funds, and in order to accomplish their purpose and secrete their transactions from the board of directors, the note of a friend with fictitious collaterals attached, is obtained and placed in the portfolio of the bank, the bank is not bound thereby, as said officers acted for themselves, personally, and not for the bank; but the maker of such a note is bound to the bank, notwithstanding it was without consideration a3 to him.</p>

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

<p>Syllabus.</p> <p>A cotton transaction under the rules of the New Orleans Cotton Exchange, between parties who are members of same, is governed by the provisions thereof; and by an agreement of contracting parties they Become an incident of such transaction and modify the principles of law applicable thereto.</p> <p>Under said rules, a contract for the sale of cotton is deemed final, when the price has been agreed npon between the seller and the buyer; and the delivery of same is considered to have been completed when it passes the scales. Tha buyer is bound to receive the cotton purchased within seven working days' from the day of sale; but, after demand has been made npon the press for de- : livery without avail, same remains at the risk of the seller, who is liable for the loss or deterioration sustained thereto By any fault of his, or by the happening of a fortuitous event.</p>

<p>Syllabus.</p> <p>An objection for the first time urged in argument, that a building contract and the specifications likewise contain a stipulation to the effect that no new or extra work shall be allowed, unless same is evidenced by the written consent of the owners accompanied with a detailed statement, can not be considered as a legitimate defense, in case it is alleged in the contractor's petition that all of the extra work was ordered by the owner and done at his special request with the distinct understanding and agreement between the parties, that the clause referred to should be waived, and said averment is not denied or disavowed in defendants’ answer.</p>

<p>Syllabus.</p> <p>From a judgment rendered by the Criminal District Court of the parish of Or leans, in the exercise of its supervisory jurisdiction over an inferior criminal court of the same parish, there can be no appeal prosecuted to the Supreme Court, as such a right of appeal has not been accorded by the Constitution.</p>

<p>Syllabus.</p> <p>Au instrument of writing which recites that “we hereby guarantee that the town of Homer will furnish a free right of way to the La. & N. W. R. R. Co. to the Arkansas line — is in terms and in legal effect, an ordinary contract of commercial guaranty, and the parties signing same bind themselves jointly.</p> <p>It is in its nature an independent undertaking, and did not require any action on the part of the town of Ilomer as a condition precedent to its perfection; and, being absolute in terms, no formal notification of acceptance on the part of the railroad company to the obligors was necessary to make it binding on them.</p> <p>Its terms are equivalent to a guaranty that the municipality would vote a special tax in aid of the construction of the railroad, and that was a good consideration.</p>

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

<p>ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. V'oorhies, J.</p>

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

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

<p>Syllabus.</p> <p>1st. Writ or Certiorari or Review. — The Court of Appeals held that the case came to it on appeal under the Constitution of 3879, and could not be reviewed by it save on the issues presented by a statement of facts, bill of exceptions or assignment of errors. The Supreme Court held that the question not reviewed by that court, had not been noted in the manner required by statute No. 102 of 3877; and, further, that it would not, on an applies tion for certiorari or review, disturb the court’s decision, in which it held properly, that a bill of exception should have been taken reserving the questions of law of which that court had jurisdiction.</p> <p>2nd. The Ruling of the District Court. — ®r industria the court reviewed the action of the District Court excluding evidence offered by defendant and concluded that it afforded no ground for issuing the writ of certiorari and review.</p> <p>Srd. Prescription. — The prescription invoked is prescription favorable to the city, and not one for the benefit of abutting proprietors. The plea was properly overruled.</p>

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

<p>Syllabus.</p> <p>On Motion to Dismiss.</p> <p>When by order of court a suspensive appeal has been allowed on appellant’s fur-’ nishing bond in an amount fixed by the judge, and bond has been furnished' accordingly, the appeal will not be dismissed because it cannot be sustained as a suspensive appeal.</p> <p>Though not good as a suspensive appeal, it would still stand as a devolutive appeal. 1 Rob., 324; 3rd Rob., 63 ; 9th Rob., 185; 5th Ann., 360; 2nd Ann., 462; 755 ; 10th Ann., 316; 11th Ann., 687; Succession of Armat, 20th Ann., 320; Succession of Keller, 39th Ann., 223 ; Succession of Bey, 49th Ann., 219 ; Michenor vs. Reinach, 49th Ann., 360; Bank of Minden vs. Lake Bisteneau Lumber Co., 47th Ann., 1432; Colomb & Gondolfo vs. McQuaid, 36th-Ann., 371; Montan & Brothers vs. Whitley, 12th Ann., 175 ; Chaffe vs. Carroll, 34th Ann., 122.</p> <p>On the Merits.</p> <p>1st. Collateral Attacks. — The tribunal had jurisdiction over the subject matter and over the persons, and the proceedings were not void. Held : The title was not subject to collateral attack against a Tbona fide purchaser.</p> <p>2nd. Third Persons in Good Faith.- — The purchaser at a, sale made under the order of the court, is not bound to look beyond the decree recognizing its necessity.</p> <p>3rd. No Conflicting Interest. — The mother, survivor in community and tutrix of her minor children, in matter of the sale, had a common interest and not a conflicting interest; properly she represented the children.</p> <p>4th. Payment of a Debt. — The interests of the survivor in community and of the tutrix in the payment of a debt resting on the latter’s property, are not adverse interests.</p> <p>5th. Under Tutor.- — The court presumes that the under tutor who was present and signed the inventory, had resigned on account of his interest being opposed to the minors’, as another person appears as undertutor in subsequent proceedings.</p>

<p>Syllabus.</p> <p>The opening of the letter containing the olographic will.</p> <p>1. Sealed Letter. — The opening by the lawyer of the envelope containing an olographic will, gave no good grounds for complaint, and was not Insisted upon as an objection.</p> <p>2. Family Differences.- — -There was no marked sympathy by the testatrix for the members of her family or those of her husband’s family, and the only difference between the two was that the testatrix may, at the last moment, have had a decided preference in matter of disposing of her property in favor of her blood relative.</p> <p>8. Probate of the Will. — The evidence identified the will and showed that It was in the hand-writing of the testatrix.</p> <p>4. Date of the Will. — The evidence of witnesses and experts sustained the date claimed by the proponent of the will.</p> <p>5. Legibility of the Will. — The meaning of the will was Interpreted as the whole context made evident it was the intention of the testatrix it should be interpreted.</p> <p>6. Suggestion.- — There was no evidence that suggestion was brought to bear upon the testatrix to influence her in the construction of the will.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss.</p> <p>1. Whether a particular record presents sufficient data upon which an Appellate - Court would be justified in avoiding or amending a judgment below, can only be known after it shall have heard the contention of the parties and made 311 examination of the transcript filed.</p> <p>Insufficiency of the- transcript may furnish ground for dismissal of an appeal after hearing on the merits, but not on a motion to dismiss in limine. (Brown vs. Land Co., 49th Ann., 1786.)</p> <p>2. The improper insertion in the transcript of appeal of documents and proceedings not filed in evidence on the trial of the cause, or of proceedings which occurred after judgment, furnishes ground for ignoring or rejecting the same, but not for dismissing the appeal.</p> <p>3. An appeal from a judgment by a third person legally entitled to an appeal therefrom as aggrieved thereby, is not a collateral attack upon it. It is a-direct method of reviewing the judgment authorized by law. (Succession - of Haley, 49th Ann., 1718.)</p> <p>4. The appropriate time for the Supreme Court to examine into and pass upon: the effect of a third person’s having in his motion for an appeal made admissions as to the status of the appellee which go to sustain the judgment of the District Court or upon the effect of such third person’s having applied for and obtained a devolutive instead of a suspensive appeal, as to his having, a right of appeal, at all, will be after the hearing of the cause.</p> <p>The Supreme Court is reluctant to dispose of the rights of parties upon questions-of law, raised in limine upon motions to dismiss appeals.</p> <p>On the Merits.</p> <p>The State of Louisiana acting through the attorney general as a third person-having an interest in the matter in dispute, occupies exactly the same position in the Appellate Court as any other litigant quoad hoe and must take the record as she finds it.</p> <p>Notwithstanding the question in controversy is that of personal status, it is appealable by any person alleging an interest therein, either devolutively or suspensiveiy. As such an appellant, the State does not occupy the attitude of attacking the status of an heir.</p> <p>An acknowledged or legitimated natural child, entitled, as niece of a natural aunt, to inherit the latter’s estate, being a descendant of a natural brother' who previously died.</p> <p>There was no prohibition in the Civil Code of 1825, against a male of mixed1 blood being united in marriage to a free woman of color.</p>

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

<p>ON APPEAL from the Twenty-First Judicial District Court for the Parish of Jefferson. Bost, J.</p>

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

<p>Syllabus.</p> <p>On Motion to Dismiss.</p> <p>■When the pleadings of a plaintiff, verified by affidavit, show as to the amount in dispute, a prima fade right to an appeal to the Supreme Court — the appeal will not be dismissed on a motion in limine, based upon testimony in the record taken on the trial of the cause in the District Court. Testimony so taken can only reach the Supreme Court when the cause goes before it on the merits, at which time the appeal will be dismissed if the Appellate Court is without jurisdiction ratione materiae. '</p> <p>On the Meeits.</p> <p>1. Action Petitoey. — Plaintiff in a petitory action based his claim on a’complete legal title.</p> <p>2. Tax Title.. — The defendant has no title at all.</p> <p>3. Thbeb Yeaes’ Pbesceiption. — The plea of prescription (3 years) did not give vitality to an adjudication at tax sale which in law never had force or effect.</p> <p>4. Ten Yeaes’ Pbesceiption.. — The purchaser, knowingly, not having compiled with his bid as required by repeated decisions of this court, was not in good faith, and, therefore, his asserted title was not cured by the prescription of ten years.</p> <p>5. Rent and Impeovements. — Plaintiffs’ claim for rent was not sustained by proof and was not allowed and defendants’ reconventional demand was rejected.</p>

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

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

<p>Syllabus.</p> <p>1. Assignment of Heroes. — The defendant filed an assignment of errors as required by Article 897, C. P. There was Therein a question presented for the decision of the Supreme Court and which tile court, under repeated decisions, was not at liberty to decline taking into consideration and deciding.</p> <p>2. Want op Averment. — In an information for shooting with intent to kill and murder, the offense must be set forth in words ample, in case death had resulted, to cover essential averments of an indictment for murder. 38th Ann., 3S7.</p>

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

<p>Syllabus.</p> <p>1st. Wife a Creditor. — A wile, donee of her husband’s creditor, may by the effects of the donation, become the creditor of her husband.</p> <p>2nd. A Sale of Husband to Wife. — The wife had no mortgage, and could havo no preference over her husbands creditors. The sale to her in satisfaction of her claim as a creditor, was not void, bnt voidable.</p> <p>.3rd. Prescription. — Being voidable, it was subject to prescription.</p> <p>4th. Minor.. — Prescription runs in favor of a minor, though he is not represented by a tutor.</p> <p>The rule is that an interruption begins only when brought home to the parties affected by it.</p> <p>.5th. Owner’s Title by Prescription. — The time having elapsed, the owners acquired by prescription.</p>

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

<p>Syllabus.</p> <p>The plaintiff in a suit for damages against a railroad company for injuries caused by defendant’s car running over him, shown to have been alongside , or in a position close to the track, with his legs across the nearest rail, and in that condition receiving his injuries, must, in order to recover, show with reasonable certainty that notwithstanding his gross imprudence in thus exposing himself to peril, the defendant’s motorman could, by the exercise of ordinary care, have averted the accident. 2nd Thompson on Negligence, 1105, §1, pp. 1157, 1158; Pierce on R. R., p. 330; Patterson’s R. R. Accident Law, pp. 51, 55, 61; 144th U. S., 439 and line of authorities there cited; McGuire vs. R. R., 46th Ann., 1543.</p>

<p>Syllabus.</p> <p>In a suit by the father of a minor child on two causes of action, one residing in-himself and occasioned by expenses incurred on account of the Illness brought upon the child by the alleged tort of the defendant, and by reason •f the anxiety and mental suffering endured by himself and his wife in consequence of the child’s danger; the other residing in the child and arising in consequence of the suffering inflicted on her — the father suing on this latter for the use and benefit of the child — separate amounts being alleged as to each cause of action, the wife of the plaintiff and mother of the child Is competent to testify in substantiation, of the claim asserted on behalf of the child, but not as to that asserted on behalf of the husband, or the community.</p>

<p>Syllabus.</p> <p>Ok Motion to Dismiss Aitkai.</p> <p>A claim .for improvements on land, arising after a succession is opened and in consequence of action taken to recover the land as the property of the succession, and as to which reservation of all right* is made in the Judgment of rovendi cation, is not to be likened to an ordinary debt against the succession incurred by the deceased during his lifetime.</p> <p>2 The latter, when denied recognition by the legal representative, must be established by direct action; the former, as to which a privilege is asserted, may be set up by way of opposition to the tableau of debts which omits it, and the test of jurisdiction on appeal is the amount of the fund sought to be distributed by the tableau.</p> <p>On the Merits.</p> <p>1 A son holding land by donation from his father, but as to which the act of donation is void for want of form, owes no rent for the land to the succession of the father except from the day judicial demand is made for its return.</p> <p>2 Such a title, not being one within the prohibitions of the law, is merely voidable, and until avoided he held under it as owner. ’While voidable it was such a title as the heirs of the deceased might have confirmed.</p> <p>3 Having gone upon the land in pursuance of the donation and believing himself the owner, the son erected improvements thereon. He is entitled to compensation therefor.</p>

<p>Syllabus.</p> <p>1. While the interest of a partner in an existing partnership may not be seizeu under garnishment proceedings, the interest as creditor oí one in a contract oí letting and hiring, as herein explained, may be so seized, and the ultimate indebtedness ascertained by adjustment of accounts and settlement of rights under the contract.</p> <p>2. Contract in this instance interpreted, its true meaning pointed out and certain credits claimed by garnishees rejected.</p>

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

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

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

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

<p>Ryltabus.</p> <p>Where it appears that the matters at issue iu a cause pending before this court are involved in litigation arising in another State between, practically, the same persons, and such litigation so originating in the other State has been decided finally by the Supreme Court of that State and thence carried, by writ of error, to the Supreme Court of the United States, the decision of the cause here will be postponed to await the determination of the controversy by the Supreme Court of the United States, or its action on the writ of error.</p>

<p>Syllabus.</p> <p>' 1. A notarial act by which a father sells to his (laughter certain real estate for four thousand dollars , three thousand dollars cash and the balance represented by two notes of the vendee to her own order and by her endorsed, and secured by mortgage on the property sold, can not be set aside by the father on the ground of ingratitude and cruel treatment to him by his daughter, and that the act evidenced really a donation to her when the father has received and discounted the notes of the vendee with a third person. and the property itself has anterior to the demand for revocation passed into the hands of a purchaser in good faith. Civil Code, Article 3 562.</p> <p>2. A notarial act between father and daughter purporting on its face to be an act of sale to the daughter on terms partly cash and partly credit, represented by notes of the vendee secured' by mortgage on the property sold, can not be set aside by the father on the ground that the act evidenced in reality a donation to his daughter by which he had divested himself of everything he had, leaving himself nothing for subsistence, when the father has discounted the notes of his daughter to' a third person, and the property has passed to a third purchaser in good faith before the suit for annulment of ■.the act was instituted.</p> <p>On Reheakino.</p> <p>•One who sells property and declares in the deed that he has received ample consideration, is bound (in so far as relates to third persons) by his declaration ■ until he shows, in the manner required, and by proper .testimony, that the-asserted sale was without consideration and the declaration not in conformity -with the facts.</p> <p>A counter letter must be produced, or other'evidence duly filed, showing the unreality of the asserted sale.</p>

<p>Syllabus.</p> <p>1. The writ of injunction is not wholly a writ oí right — a legal discretion as to the granting or withholding of same being vested in the court of the first instance. The doctrine in Bank vs. Webre, 44 La. Ann., 1083, and Cheatard vs. City, .10 La. Ann., 752, re-affirmed.</p> <p>2. In a case where a political corporation, clothed with extensive powers of government, is sought to be restrained by writ of injunction demanded on an cm parte showing, and it being probable that matters of public health, or safety, or convenience are involved, the judge to whom the application is made exercises but a wise discretion when, instead of granting the order inslam-ter, he directs the opposite party to be notified and cause shown, if any, why the writ should'not issue.</p> <p>Z. The mere declaration by a town council that a certain street exists and directing its officers to open same, cannot operate to give the right of entry to its agents, for that purpose, as against private rights asserted on the basis of ownership and actual physical possession.</p>

<p>IN BE Monroe Mercantile Company, Limited, applying for certiorari or writ of review, to the Court of Appeals, Second Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. In an action in damages against a railroad company for loss of life by a brakeman, it must be alleged and proved that the Injury was the result of the failure of the defendant to exercise that degree of care and diligence, for the protection of such brakeman, that their relations required.</p> <p>■2. The allegation that the death resulted from the derailing of the cars by reason of bad condition of track, consequent upon rotten crossties and missing spikes, is sufficient averment of negligence, but the failure to establish the truth thereof does not throw upon the defendant the burden of accounting for the accident.</p>

<p>Syllabus.</p> <p>1. Where merchandise is shipped in apparent good order and is claimed to have been damaged, whilst in the possession of the carrier, under circumstances which render the carrier liable, the burden of proof rests upon the party seeking to recover to show, at least, that damage has been sustained.</p> <p>2. The measure of damages in such a case is the difference between the value of the goods in their damaged state, and their value at the place of destination had they been delivered in good order.</p> <p>3. Where the shipment consists of a number of boxes of assorted merchandise, damage to some of the boxes does not entitle the consignee to reject the entire" lot, and recover, as for total loss. The doctrine of abandonment as for total loss does not apply to contracts of affreightment.</p> <p>4. When the consignee refuses to receive any part of the shipment, or to cooperate in examining the goods, and claims reimbursement as for total loss, the carrier will not be held guilty of “converting" the goods, by reason of calling in disinterested and competent persons and having broken packages re-packed, and unbroken packages opened and examined in order to ascertain the character and condition of their contents.</p>

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

<p>/\ -¡^ APPEAL from the Civil District. Court for the Parish of Or-\J leans. King, -/.</p>

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

<p>^N APPLICATION for writ of certiorari.</p>

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

<p>QN APPLICATION for writs of certiorari and prohibition. _</p>

<p>Q N APPLICATION for writs of certiorari and prohibition-</p>

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

<p>Syllabus.</p> <p>1. Allegations not Inconsistent. — The State may allege that a corporation has no valid existence and yet have a standing in court to prove that it should be enjoined and prohibited from continuing the business in which it is engaged.</p> <p>2. The Shares Issued. — The Constitution contains the provision, that no corporation shall issue stock nor bonds, except for labor done or money or property actually received.</p> <p>The charter of the defendant company reads. “No stock shall be issued or certificate given therefor, until tile amount subscribed for shall be fully paid.”</p> <p>The article of the Constitution and the clause of the charter were not complied with, and for that reason the organization was not perfected as required.</p> <p>Where a corporation is organized under a general statute, the organizers must observe the mode required by the statute.</p> <p>.2. Sale op Debentures. — Looking only to the interest on one-fourth of the debentures upon which the company rests its hope to pay its remaining Indebtedness. this interest is not enough to pay ail of the remaining indebtedness of the corporation. Failure on that theory is inevitable. When the State seeks to enjoin a corporation, the latter must be prepared to defend and show that its business does not expose the public, with whom it deals, to inevitable loss.</p> <p>а. Lapses and Surrenders. — The large amount required to meet the deficit, after having credited the interest on the one-fourth, cannot be acquired by a plan wherein the rights of a number of the debenture holders are declared' off, owing to their inability to keep up their contracts. In that ease, the element of chance would predominate, and a certainty of loss arise which the laws authorizing the organization of corporations do not sustain. A franchise imports a restriction greater than those imposed upon business not carried on in the name of a corporation.</p> <p>б. Not an Estoppel. — The statute regarding licenses cannot be pleaded as an estoppel if the business is not conducted in accordance with the policy of tiie State.</p>

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

<p>Syllabus.</p> <p>3. It by no means follows that a Board which owes its existence to statute authority and lias its powers and duties defined thereby, should he uuder a continuing liability to hare its future conduct and duties controlled by the same authority. This question lias to he determined in each case by the nature and character of the duties cast upon the Board, the rights of third parties which may have resulted from an acceptance of the trust and the duty and liability of the Board itself and its members as resulting from tlie same fact. The Board of Liquidation of the City Debt and the Drainage Commissioners of the City of New Orleans are legally justified in testing‘tlie Constitutionality of Articles 313, 31G and 317 of the Constitution oí 1S9S as impairing the obligation of contracts.</p> <p>The surplus of the one per cent, tax in New Orleans set aside for permanent public improvements by Act 130 of 1800, and the Constitutional amendment of 1S92, is the surplus which may remain after applying the tax collected to the satisfaction of the debts and claims therein specially enumerated as those which were to be provided for through the tax.</p> <p>3- Tlie unpaid salaries for the years 1880, 1881, 1882, 1883 and 188-1 of teachers in the public schools in New Orleans under contracts with the City School Board of that city, were not debts of that city, and were not intended to fall under the provisions of the funding law of 1S90, and the Constitutional amendment of 1802. They only became obligations of the city by the latter's assumption of them under the Constitutional amendment.</p> <p>The Constitutional Convention liad the power to have those claims paid through the one per cent, tax, hut only subordinately to the rights upon the tax in favor of creditors holding contract rights at tlie date of the adoption of the Constitution.</p> <p>These rights could not constitutionally he impaired.</p>

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

<p>Syllabus.</p> <p>Where the District Court grants plaintiff an appeal from its order setting aside the sequestration taken out by him on his furnishing bond for one hundred dollars if devolutive, or ou bond according to law, “based on the value of the property set out in his petition" if suspensive, plaintiff’s remedy, if he conceives the case to be one entitling him to a suspensive appeal on the bond for costs, is, .to have the order of appeal modified by some direct proceeding resorted to for that purpose.</p> <p>He can not furnish a bond for the hundred dollars, and upon the sheriff’s informing him he proposed to release the seizure, ask the District Court for an injunction to restrain the sheriff from doing so, and on the court’s refusal so to do, mandamus the district judge to grant the injunction.</p> <p>The correctness of the order of appeal can not be tested in this collateral manner.</p>

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

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

<p>Syllabus.</p> <p>A judgment having been pondered against several defendants, from which some of them appeal, suspensively, and others instituted au action of nullity-— Held, that the judgment annulling the decree having been rendered by this court, it should postpone action on the appeal from the judgment, until further proceedings are deemed necessary and appropriate.</p> <p>Notwithstanding a sub-contract for the transportation of the United States mail stipulates a fixed sum as liquidated damages for failure to perform the service required, same must be sued upon specifically and in terms, otherwise It can not be made the basis of a judgment in damages.</p> <p>Goldman vs. Goldman, 25 So. Rep., 558.</p> <p>In 'ease a sub-contractor abandons his engagement and gives notice to the postal department of his discontinuance of the service, and the original contractor resumes service under his original contract with the government, same can not be considered ás a' renewal of the sub-contract in any sense.</p> <p>In- the sub-contract the original contractor was a mere intermediary without any power or control. All that the contractor can claim of the defaulting subcontractor is that he shall protect him from actual loss and replace him la his original situation.</p>

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

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