Volume 52 — Louisiana Annual Reports

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

<p>Syllabus.</p> <p>The merits of criminal cases in which defendants have been convicted cannot be considered on an application for a writ of habeas corpus.</p> <p>where defendants in a criminal prosecution raise in their defense questions of title to immovable property, the trial court may decide those questions, but such decision would be Anal only for the purposes of the prosecution and ■ would not bo res judicata in any civil cause between different claimants.</p>

<p>Syllabus.</p> <p>while It has been repeatedly held to be sufficient allegation, when supported by plaintiff’s oath, to authorise the granting of the order and the issuance of a writ of sequestration, that the affiant fears that the defendant will conceal, part with or dispose of the property on which he asserts a privilege, during the pendency of the suit; yet it is permissible for the defendant to c.narge the untruthfulness of the affidavit, and upon sufficient proof to obtain the dissolution of the writ.</p> <p>This is the sense of all the adjudged cases in this court.</p> <p>In a settlement of accounts between landlord and tenant, and the mutual claims of the parties for and against each other, the party relying upon a contract either as supporting his own demand or disproving that of the other, carries the burden of establishing same by a preponderance of proof..</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. King, J.</p>

<p>Syllabus.</p> <p>1. Tins was am Action to Reform a Deed. — Two of the defendants are third persons.</p> <p>To affect third persons the property must be sufficiently described to give reasonable notice of the property sold.</p> <p>If the property is described by name and boundaries, both shonld be given with sufficient accuracy to designate the person named and the boundary of the property. If described by sections and quarter sections, the numbers should be correctly given. A third person cannot be held to know that section 27 or any part of section 27 has been sold when the number of another section is given, there being nothing positive in the deed to show that the first was the number intended.</p> <p>2. Mortgagor. — As to the remainder of the land : “to render a conventional mortgage valid it is necessary that the act establishing it shall state precisely the nature and situation of each of the immovables on which the mortgage is granted.”</p> <p>The sil nation of the immovable was not stated as required, and the court did not find with certainty that the land claimed was the land mortgaged.</p> <p>whatever error there was committed appears to have been the error of both the , contracting parties in the absence of evidence of the parties, or of evidence of such a nature as to render it certain that the land claimed was the land the mortgagor intended to mortgage in 1884.</p>

<p>IN RE John Rollo applying for certiorari or writ of review to the Court of Appeals, Third Circuit, State of Louisiana.</p>

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

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

<p>Syllabus.</p> <p>On Moi'iON to Dismiss Aepeap.</p> <p>X. Tlie Judgment appealed from annulled the will and the probate thereof, and ■recognized plaintiffs -as heirs of the deceased. Bat It did not in terms send them into possession, nor was there any award against the executors, specifically, for a sum as representing the net proceeds of the estate in their hands. Held : A case where the trial judge could fix the amount of the suspensive appeal bond.</p> <p>2. One of the executors, acting in his individual capacity, was competent as surety on such appeal bond for the legatee who had appealed.</p> <p>3. Objection that the appeal was taken in the name of the agent and attorney in fact of the legatee, instead of in the name of the legatee, held under the facts and pleadings of the case, not tenable.</p> <p>On the Merits.</p> <p>1. Donations and bequests are permissible to trustees for educational, charitable, or literary purposes, or for the benefit of institutions, existing or to be founded, the object of which is to promote education, literature, or charity. Act No. 124 of 1882.</p> <p>2. But this permission is restricted to educational, charitable, and literary objects within the State of Louisiana, and to institutions founded and to be founded under the laws of the State for such purposes.</p> <p>3. To avoid the dispositions of wills and testaments it must plainly appear they come within the prohibitions of the law.</p> <p>4. Where a bequest in a will, in one view, is illegal; in another view, lawful, the latter will be adopted and the will sustained.</p> <p>5. A legacy to the Commune of Carouge, Canton of Geneva, Switzerland, which is directed to be placed at interest and with the interest to endow annually two poor girls and to give a pension to ten old persons of the two sexes, is held to be a legacy to pious and charitable uses, and sustainable.'</p>

<p>Syllabus.</p> <p>1. 'At the time of the adoption of the Constitution of 1898 the salary of the City Attorney of New Orleans was, under the Constitution and laws then in force, $3300 per annum. The present- Constitution,. in superseding that of 1879, declared that all officials then in office should hold their respective offices until their terms expired and should receive the compensation as fixed by tire Constitution and laws in force at the date of the supersession, except as otherwise provided in the new organic law.</p> <p>2. This can be given no other meaning than that the officials holding under the ' old Constitution should continue in office under the new during their respective terms and receive the salaries thereto attaching, and none other, to the end of their terms. This, of course, not applying to those officials coming within the exception “as herein otherwise provided” (Art. 323, 5th Clause.) whose salaries are established by the Constitution itself.</p> <p>3. One claiming an official salary greater than that which he has been receiving must point to the provision of law which, with certainty and beyond doubt, authorizes it. Otherwise the courts cannot sustain his demand.</p>

<p>Syllabus.</p> <p>1. The Statute (Act 185 of 1898) floes not require that to be competent as a petit juror a person must be able to understand the English language. It Is, however, required that a grand juror must be able to read and write the English language.</p> <p>2. The Statute vests discretion in the trial judge to decide upon the competency of jurors in particular cases, and he may accept or excuse' a juror according as he may or may not find him competent to sit upon the trial of a case by reason of inability to understand the English tongue when read or spoken.</p> <p>3. Such discretion will not be disturbed except in a very clear ease of abuse.</p> <p>4. Objection that a juror does not believe in circumstantial evidence as having the force to justify either a conviction or acquittal, is properly overruled when it is not made to appear to the judge in some way that circumstantial evidence will have a material bearing on the case.</p>

<p>Syllabus.</p> <p>1. An owner in indivisión of timber lands has no right to cut and take timber therefrom without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, and such injunction is not one which may be dissolved on bond.</p> <p>2. where the trial court grants an order permitting such an injunction to be dissolved on bond, a suspensive appeal will lie, and in such case the amount of the suspensive appeal bond should be fixed by the judge.</p> <p>3. Ordinarily, a bond for a sum large enough to cover costs suffices in such case for a suspensive appeal bond, but a reasonable discretion as to this is vested in the trial court, subject to correction here, through the proper remedial writ, in case of abuse of such discretion.</p> <p>4. where, in such case, a devolutive and suspensive appeal is granted and the devolutive appeal bond is fixed at $100, the suspensive appeal bond “according to law”, it is considered that the suspensive appeal is perfected on the giving of a bond for an amount one-half over and above the sum named as sufficient to cover costs, or for $150.</p>

<p>Syllabus.</p> <p>1. The change effected by Act No. 135 of 1808, whereby petit juries are selected from thirty jurors drawn from the general venire box, instead of being selected from thirty-four jurors so drawn, is a change in the mode of procedure which does not alter the situation to the disadvantage of a person tried under the Act of 1808 for a crime committed while the Act of 1800 was in force, and the operation of the Act of 1S98 is not, therefore, e® post facto.</p> <p>2. Ruling of the judge a quo refusing a continuance in- order to enable a defendant charged with murder to obtain the attendance of a witness to prove threats by the deceased, will not be reversed when it appears that there had been a mistrial from which the judge was in a position to know that the defendant would not, probably, be able to lay the foundation for the introduction of such evidence; when as a matter of fact such evidence was actually offered on the second trial and excluded because no foundation had been laid, and when in defendant’s motion for new trial it-is not claimed that the evidence of the absent witness could have been offered if he had been present.</p> <p>3. whether remarks made by a juror in the presence of other jurors and of the deputy sheriffs in charge whilst a case is being tried amount to such misconduct as would justify the setting aside of the verdict, depends upon whether the remarks, considering all the circumstances, were of a character to justify the conclusion that the juror was an unfit person to discharge the duty imposed on him.</p>

<p>Syllabus.</p> <p>The succession of Fannie Minerva Seymour, widow of William Heed Mills, was opened by lier death in New Orleans, on the 6th of January, 1896; and the public administrator having petitioned for the issuance of letters of administration as for a vacant succession, Charles Clinton Brown, of Sacramento, California, and Mary Brown, widow of James L. McVey, of the city of Huntington, AVest Virginia, filed an opposition thereto — alleging themselves to be the brother and sister of the deceased, and her sole and exclusive heirs at law, and praying judgment recognizing them to be such, and placing them in possession of her estate.</p> <p>In the controversy thus raised, the Attorney General filed an appearance for the State, joining the public administrator, and claimed, that as the deceased died intestate and without heirs, she was irregular heir — alleging that the true name of the deceased was Fanny Minerva Seymour, and that she was born in London, England.</p> <p>Consequently this litigation involves only the question of the identity of the deceased, and whether she was really Rachel Fanny Brown, issue of the mar- ' riage of John Jacob Brown and Rebecca Smallwood, and the sister of the opponents.</p> <p>The judge of the District Court reached the conclusion that the deceased was identical with Fanny Brown, and recognized the opponents as her heirs at law and adjudged them to be placed in possession of her estate.</p> <p>This court has reached the same conclusion and affirms his judgment, solved or bend.</p>

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

<p>ÍN RE -Charles R. Corbett et als. applying for, certiorari or writ of review to the Court of Appeals, Parish of Orleans. . a .•</p>

<p>ERTIEIED from the Court of Appeals, Third' Circuit,'by the Judges thereof applying' for .instructions. .. ,</p>

<p>IN RE Vicksburg-, Shreveport and Pacific Railway Company applying- for certiorari or writ of review to the Court of Appeals, First Circuit, Parish of Caddo, State of Louisiana.</p>

<p>IN RE Fidelity and Deposit Company, of Maryland, applying for certiorari or writ of review to the Court of Appeals, for the Parish of Orleans, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. The leaving of the Jury box by a Juryman during a recess of court to take a drink of water, from a bucket on the opposite side of the court room, is not such a separation of the jury during the trial, as to furnish cause for reversal when the juryman was constantly in the view of a part of the jury and of the deputy sheriff in charge of the jury, and he held communication with no one after leaving and while returning to his seat.</p> <p>2. The presence of the accused either at the refixing of his case for trial or at the trial of a motion for a new trial is not essential, though testimony be taken on behalf of defendant at the last mentioned trial.</p> <p>3. Where the minutes of the court of the day of the trial of a criminal case commence with an entry opposite the title of the cause and in its recital of the first proceeding in the action discloses the presence of the accused in court at the time and continuing without break recites all the various steps of the trial on that day and closes with the bringing in of the verdict by the jury and ends with the words “the accused being present in court”, his continuous presence in court during the proceedings referred to, and covered by the minutes, will be presumed.</p> <p>4. Where the complaint urged by an accused on appeal is, not that he was in fact not present, but that the record does not disclose the fact of such presence, the Supreme Court, if in doubt as to the fact, will not upon the strength of that doubt, set aside the verdict of the jury and reverse the judgment, but will hold the case open, until by proper proceedings, the actual facts can be ascertained.</p> <p>5.The fact that one of the jury commissioners who assisted in drawing the jury had not at that time taken an oath of office, is not properly brought’ before the Supreme Court on a motion in arrest. The oaths of the jury commissioners and the proces verbal of their deliberations do not form part of the record of each individual criminal cause and do not come up on appeal unless formally introduced in- evidence. To establish the fact stated evidence has to be introduced, and the motion in arrest covers only objections apparent on the face of the record. Matters not properly the subject of a motion in arrest do not become such by the introduction of evidence without objection. The matter complained of should have been urged in a timely challenge to the array or motion to guash and cannot be postponed until after verdict and then presented in a motion in arrest.</p>

<p>Syllabus.</p> <p>1. Kindred offenses, generic in kind, growing out ot tlie same transaction, may ■ be charged in the' same indictment when incorporated in different counts. (State vs. wren, 48 Ann., S03.)</p> <p>2. \\ here in an ind!ctment so found, the offense charged in the first count is broader and covers and includes that charged in the second, and the jury renders a general verdict of “Guilty as charged’’, the district attorney was legally authorized to enter, and properly entered a nolle-proseequi upon this second count. (State vs. Louis, 46th Ann., 1249 ; State vs. Cook, 42nd Ann., 91.)</p> <p>3. The fact that the talesmen summoned after the regular panel was exhausted, were called and presented for acceptance from a list prepared by the sheriff, and in the order in which their names were written on the list, furnishes no legal ground for reversal, when the accused did not insist that the names of the talesmen should be placed in a box as required by law, and drawn therefrom; but permitted the jury to be empanelled in that manner without objection and challenged none of the talesmen.</p>

<p>Svllabus.</p> <p>1. An averment in a petition of the solidarity of an obligation which is joint in fact, and a prayer for a judgment in solido against several defendants, does not constitute an estoppel against the plaintiff's recovery against some of the deferdants because he made a compromise with another defendant after issue joined.</p> <p>2. The obligation oí two or more persons who intervene in an act of sale to a corporation, and give their personal guarantee that for a period of years its shares of preferred stock shall annually earn and pay a dividend of ten per cent., is joint as to the obligors and not in solido.</p> <p>3. Such a covenant evidences an independent stipulation pour antrui and not a contract of suretyship ; and the obligation of the intervenor is different and distinct from that of the corporation. Consequently, the insolvency of the corporation, judicially declared, did not have the effect of precipitating the maturity of the installments of the intervenor’s indebtedness not yet run to maturity on the face of the contract, notwithstanding- it had that effect as to its own debts not yet due. The principles announced in Ilawkes vs. Bright, 51st Ann., 79, are affirmed.</p>

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

<p>Syllabus.</p> <p>Two defendants having been adjudged, in solido, to pay a note, one as principal and the other as surety, and both having prosecuted appeals to the Court of Appeals from said judgment, and the principal having prosecuted an appeal to the Supreme Court from a judgment dismissing his reconventional demand, a change of the jurisdiction of the former court pendente lite so as to empower it to decide all the issues in the case, necessarily resulted in a complete consolidation of the two appeals, so as to make one cause, as when it was at first decided in the District Court. The moment of time when the constitutional provision went into effect, the jurisdiction of the Supreme Court in said cause ceased, and it became fully vested in the Court of Appeals and gave it the power to decide all the issues therein raised just as though they had not been separated ; except in so far as the Supreme Court should have adjudged the matters at issue while it had appellate jurisdiction thereof.</p>

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

<p>Syllabus.</p> <p>1. Possessors m bail faith. Persons are in bad faith who impose upon the courts and, under false averments, have themselves put in posseession of property of which they are only part owners.</p> <p>2. Bents and Revenues. Possessors in bad faith must pay all the rents due up to the judgment and its execution against them.</p> <p>3. The heirs estopped and therefore affected by the. had faith. One who holds lands under a testamentary inheritance is bound by the estoppel that would stop the de cujus himself.</p> <p>4. Obligations not in solido. The testamentary heir is charged with rents and revenues due by the succession of the testator, but not with rents and rev-eenues due by one who was a joint possessor with the testator of an interest of which they were not owners, for as to him, they are not bound in, solido. Being part owners of the property, they were not trespassers bound im solido, though in bad faith.</p> <p>5. Taxes, Insurance, Mortgage. The possessors, though in bad faith, are entitled to taxes, insurance, and mortgages on the property paid by them. •</p>

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

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

<p>Syllabus.</p> <p>The district court has Jurisdiction.</p> <p>The court of the first instance lias some discretion in determining whether or not the cause of plaintiff in ejectment proceedings, was one based on a lease. The district court lias jurisdiction to correct any error in this respect.</p> <p>The writs of certiorari and prohibition are to be issued only in cases of manifest necessity, and after a fruitless application for relief to the court to which the ease is appealable.</p>

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

<p>IN RE Mrs. Irene Davenport, Tutrix, Applying for Oertirorari, or Writ of Review, to the Court of Appeals, Parish of Orleans, State of Louisiana.</p>

<p>^^PPLICATION for a writ of certiorari.</p>

<p>IN RE The Vicksburg', Shreveport & Pacific Rail Road Company, , Applying for Geriiorari, or Writ of Review, to the Oourt of Appeals, First Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. Where an appeal is perfected, and the jurisdiction of this court has attached, it cannot be withdrawn by the appellant, without the consent of all the appellees, and of the court, nor will the court permit the withdrawal of a brief, properly filed, in support of such appeal, without the consent of all parties interested.</p> <p>2. Where a document, purporting to be an answer to an appeal, and a brief, filed in support thereof, do not deal with matters acted upon by the court «. quabut undertake to inject into the case, new issues of fact, which can not be met in this court by the appellants, and which this court can neither deal with as original matter, nor as matter included in the pending appeal, such document and brief may be ordered withdrawn from the files.</p> <p>3. An opponent, who, in a motion for a new trial, “acquiesces” in the judgment rendered, save as to certain particulars, is bound by such judicial admission and acquiescence, and will be heard in this court, only with respect to the particulars not included therein.</p> <p>4. The written acknowledgment of the decedent made shortly before her death, of a debt due to a particular opponent, is admissible in evidence as against , the succession and its creditors, and may be supported by the commercial books of the decedent and by oral evidence.</p> <p>5. As between appellees, the judgment appealed from must remain undisturbed in this court.</p> <p>6. The “delivery” of movable property, sold by an auctioneer in a succession proceeding, and the “collection” of the proceeds of the sale, is not “expert” work, for which the auctioneer is entitled to make a charge in excess of the commission allowed him by law, for making the sale.</p> <p>7. Nor, where the property consists of the contents of a store,, which is kept open, at the expense of the succession, and in which persons familiar with the stock are employed and paid up to the date of the sale, will an extra allowance be made to the auctioneer for “lotting” the goods.</p> <p>8. where the head of the community dies, leaving an estate consisting of a stock of goods in a going store, and his widow takes possession, as widow in community and usufructuary, and continues the business for a number of years, and the value of the community property, at the date of the death of the master, is shown, and it does not appear that there were any debts at that time, the children of the marriage are creditors of the succession of the surviving parent for the amounts inherited by them from their father.</p> <p>9. An executrix has no capacity to appeal on account of creditors, whose claims have been opposed and rejected, and if such creditors fail to appeal, the judgment will not be disturbed for their benefit, by this court, at the instance of the executrix.</p>

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

<p>Syllabus.</p> <p>1. when it appears that several persons have similar, or identical, grounds of complaint, and entertain like feelings of resentment, against another, and when, for the gratification of such feelings, they by their acts and utterances, endeavor to destroy his business, each being aware of the feelings and doings of the other and approving the results accomplished, there is sufficient evidence of a combination, or common purpose, and such persons are properly joined as defendants in an action in damages, and are liable in solido for punitory and exemplary, as well as actual, damages.</p> <p>2. When it becomes currently reported that a boycott has been established by the merchants of a town against a hotel, and that they will not buy from drummers who patronize such hotel, and such report is the natural conse-Quenoe of the acts and utterances of the defendants, in an action in damages brought by the hotel keeper, the existence of the report may be proved.</p>

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

<p>Syllabus.</p> <p>Mandamus will not issue from the Supreme Court to compel a district judge to grant injunction which is not presently necessary for the protection of relator’s rights.</p>

<p>Syllabus.</p> <p>Tie purport and effect of confiscation proceedings and sale of property on tlie ultimate title of the confiscatee after his pardon and subsequent death, find their best expression in the jurisprudence of the Supreme Court of the united States, which is, necessarily, binding on this court, as they are the final arbiters of all questions founded on laws of Congress.</p> <p>As by that court it has been decided that the effect of such proceedings was to leave in the confiscatee no estate or interest of any description, which he could convey by deed, and no power which he could exercise in favor of another; and that it' was the intention of Congress in enacting such laws that their benefit should enure to his heirs exclusively, and to enable them to take the inheritance after his death, we must, necessarily, hold, that such was the effect of the confiscation after the death of Hyams, and that the title to the property in question vested in his heirs.</p> <p>As it has been decided, also, that after confiscations the fee simple title was withheld, exclusively for the benefit of the heirs, and that they alone could take it at the termination of the life estate which was conveyed to the purchaser at confiscation sale, it is the duty of this court to give a like effect to the title of the heirs at the death of I-Xyams.</p> <p>The motive and object of the constitutional ordinance declaring that confiscation should not work the corruption of blood in the confiscatee, was evidently to save the rights of his heirs, while df vesting absolutely and entirely all his beneficial interest in the property confiscated. It was the manifest purpose of Congress, as an incident of the war power of the government, to deprive him of ail control over his property, and that amnesty, while the property remained in the possession of the purchaser at confiscation sale, should only invest the confiscatee with the more perfect means of transmitting title to his heirs at his death.</p> <p>The question of the effect of pardon and amnesty upon the destination of the remaining estate of the offender, still outstanding after a confiscation of the property, and during his natural life, has never been settled by that court, but It remains a doubtful proposition as to what became of the fee or ultimate estate in that condition. It has been suggested that the fee remained ' in the person whose estate was confiscated, but without any power in him to dispose of, or have control over it. After amnesty, it has been held by that court, that the remnant of the estate, whatever its nature, and wherever it went, was never beneficially disposed of, but remained in a state of suspended animation, until the time of his death, when the legal title passed to his heirs.</p> <p>But, if this be considered a doubtful proposition, it seems perfectly clear that the creditors of the confiscatee having acquiesced in the possession of the heirs, through a long series of years without question or complaint, are equitably barred and estopped from disturbing the titles derived from them.</p> <p>On IIeheaking.</p> <p>1. A person who has knowledge of his rights and ample opportunity to establish them, but culpably, or negligently, and for many years, allows others to believe that they are worthless, or that he has abandoned them, thereby superinducing such changes of position,. and so affecting the rights of third persons, that relief cannot be afforded without injustice to those who have been less culpable, or negligent, must himself bear the consequences of his own laches.</p> <p>2. Where a person acquiesces in the construction placed by the trial court upon a judgment rendered by it, and provokes, or participates in, a proceeding, itself resulting in a judgment, the effect of which is to construe a judgment previously rendered, and such person makes no complaint thereof, at the time, he will not be heard, after the lapse of many years, and after others have acquired rights with respect to the construction so arrived at and. acquiesced in, to complain that it was unauthorized or incorrect.</p> <p>3. where heirs enter into the possession of property inherited by them, and effect a judicial partition thereof, they are considered as accepting the succession of him from whom they inherit, and, whilst they thus make themselves personally liable for the debts of the succession, creditors who are without mortgages, liens, or privileges, on such property, who have not demanded a separation of patrimony, or security from the heirs, or who have not demanded that such property should be administered, or, in case such demand has been denied by the court, have acquiesced in such denial, have no special rights with regard to the property thus made the subject of partition, and if the title of the ilo cujus was good, the title of the heirs, “declared” by a partition in kind, or resulting from a sale, and of those who may acquire from them, if otherwise unobjectionable, is a “just title”, for the purposes of the prescription'of ten years, acquirendi causa. They need no new title.</p>

<p>Syllabus.</p> <p>1. So much oí Section 11, oí Act 171, of 1898, 'as undertakes to reqhirfe tie ■payment of license for tlie business of manufacturing cotton seed oil cake, and cotton seed meal, is repugnant to the provisions of Article 229 of tlie Constitution, and is therefore void. These products are not to be regarded, for the purpose of the license law, as mere incidental resultants in the manufacture of cotton seed oil.</p> <p>2. Where a manufacturer is also engaged in business as a wholesale dealer, and buys and sells products other than those manufactured by himself, he is within the law, requiring a wholesale dealer’s license, as well ,with respect to the products -manufactured by him, 'and sold in the course of that business, as with respect to products bought by him on the market and so sold, and he owes the license upon the basis of his gross receipts from all sales.</p> <p>3. The business of refining crude cotton seed oil is not a manufacturing business within the meaning of the provisions of Article 229 of the Constitution, or within the meaning of the Statute law imposing a license tax on the business of “manufacturing cotton seed oil.”</p>

<p>Syllabus.</p> <p>The heirs accepting a succession unconditionally may be compelled to give security for the debts of the succession or submit to an administration of the succession. C. C., 1011-1012. •</p> <p>The creditors’ right in this respect is not defeated by an ex parte order of court given within 'three months after the unconditional acceptance of the succession by the heirs, whieli, recognizing them as such, places them in possession thereof.</p> <p>The mere reference to themselves as “children and heirs” of a deceased person made in a petition by his children asking for the probate of his will and the placing of his succession under administration of executors selected by him, is not an unconditional acceptance of his succession.</p> <p>An unconditional acceptance of a succession by heirs does not date back by relation to the date either of the death of the author, or to the date of a prior acceptance under benefit of inventory, in computing the three months after unconditional acceptance during which the right of creditors exists under the law to exact security from heirs.</p> <p>Creditors of a succession are not estopped from demanding security from the heirs during the three months following their unconditional acceptance of the succession, because after an order of court recognizing them as heirs and placing them in possession they have sued them as such m their petition and referred to the order placing them in possession.</p>

<p>Syllabus.</p> <p>1. If an assessor, upon an examination of title deeds, ascertains that certain property is that designated by a certain municipal numerical number in a certain square fixed also by number bounded by four named streets with measurements to the lot substantially correct, and makes his assessment thereof according to such numbers and description, he as fully and much more conveniently fixes the identity of the property, as he would by following the description thereof given in the act by which It was purchased.</p> <p>The latter description is frequently long and involved and fixes the identity of the property, by reference to numbers of plans and maps, difficult to be found and frequently lost.</p> <p>The assessor is not bound to describe the lot as No. 12 of a certain plan, made by Pil e, when in point of fact it is Municipal Lot No. 6, of Square No. 494, bounded by Elysian Fields, Marais, Marginy and Urquhart streets.</p>

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

<p>Syllabus.</p> <p>1. An averment in a petition of the solidarity of an obligation which is joint in fact, and a prayer for a judgment in solido against several defendants, does not constitute an estoppel against the plaintiff’s recovery against some of the defendants because she made a compromise with another defendant after'issue joined.</p> <p>2. The obligation of two or more persons who intervene in an act of sale to a corporation, and give their personal guarantee that for a period of years its shares of preferred stock shall annually earn and pay a dividend of ten per cent., is joint as to the obligors and not in solido.</p> <p>3. Such a covenant evidences an independent stipulation potw aulrui and not a contract of suretyship; and the obligation of the intervenor is different and distinct from that of the corporation. Consequently, the insolvency of the corporation judicially declared, did not have the effect of precipitating the maturity of the instruments of the intervenors’ indebtedness not yet'run to maturity on the face of the contract, notwithstanding it had that effect as to its own debts not yet due. The principles announced in Hawkes vs. . Bright, 51st Ann., 79, are affirmed.</p>

<p>Syllabus.</p> <p>1. An averment in a petition oí the solidarity of an obligation which is joint in fact, and a prayer for a judgment in solido against several defendants, does not constitute an estoppel against the plaintiff’s recovery against some of the defendants because she made a compromise with another defendant after issue joined.</p> <p>2. The obligation of two or more persons who intervene in an act of sale to a corporation, and give their personal guarantee that for a period of years its shares of preferred stock shall annually earn and pay a dividend of ten per cent., is joint as to the obligors and not in solido.</p> <p>3. Such a covenant evidences an independent stipulation pour autrwi and not a contract of suretyship ; and the obligation of the intervenor is different and distinct from that of the corporation. Consequently, the insolvency of the corporation judicially declared, did not have the effect of precipitating the maturity of the instalments of the intervenors indebtedness not yet run to maturity on the face of the contract, notwithstanding it had that effect-as to its own debts not yet due. The principles announced in Ilawkes vs. Bright, 31st Ann., 70, are affirmed.</p>

<p>Syllabus.</p> <p>Where the plaintiff heedlessly steps in front of a coming car without at all “looking” and “listening,” and then stopping in case of danger, he omits observing one of the rules laid down in a number of decisions, which should be complied with by a pedestrian when he is about to cross a track, i. e., to “look” and “listen.”</p> <p>While the failure to observe the rule does not relieve those in charge of the car from the necessity of.being careful at all times, none the less, in order that a plaintiff may recover damages it must appear that the danger was not seen by the motorneer at a time when he should have seen it, and that he did not make every exertion fo avoid the accident.</p> <p>The plaintiff enjoyed the faculties of sight and hearing unimpaired at an. advanced age. His steps were slow but the evidence does not show that his steps were so slow and1 feeble that he could not cross before the coming car, or that plaintiff would fail properly to use his senses of “hearing” and, “seeing” and undertake to make the crossing despite the danger to which it was attempted to call his attention by ringing the gong and loudly hallooing to him.</p> <p>The motorneer, while manning his car, had a right, to some extent, at least, to be governed by the belief that plaintiff would not seek to cross unless his strength was sufficient to enable him to cross before the arrival of the car.</p>

<p>Syllabus.</p> <p>1. A verbal contract of lease, complete in itself independent of any writing; and unaccompanied by an intention to bave the same reduced to writing as perfecting it, is an enforceable contract.</p> <p>2. And if such a verbal contract be made and subsequently the parties agree that the same shall be reduced to writing and be signed, and afterwards there is a failure to so reduce it to writing and to signature — one of the parties refusing — it is still enforceable as a binding contract.</p> <p>3. But if when a verbal contract of lease is agreed on, it is understood, contemplated and intended, that it should be reduced to writing; that there should.be a written lease; that the written lease should take the place of, and stand for what had been agreed on verbally in respect to the leasing of the property, then until the writing is drawn up and signed, the contract is Inchoate, and either party -may, before signing, recede.</p>

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

<p>Syllabus.</p> <p>,1. where a non-resident litigant invokes the jurisdiction of one of the courts of this State, and obtains an order of seizure and sale, he will not lie heard to deny the authority of the same court to enjoin the seizure so ordered, on the ground that it was without jurisdiction rations personae. And when, in such a cause, a ewrator act lioe is appointed to represent the plaintiff in executory process, as defendant in injunction, and a default is properly entered as against such curator, the plea to jurisdiction, thereafter filed, comes too late.</p> <p>2. There is no conflict between the plea of “failure of consideration,” and the plea of “compensation,” in the alternative, as against the claim sued on, to the extent that it may be found that the consideration has not failed.</p> <p>3. Failure of consideration may extinguish an obligation and is a ground for-enjoining executory process under Article 739 of the Code of Practice.</p> <p>4. Where the failure of consideration is partial, the seizure should be enjoined only to the extent thereof, but not to cover an unliquidated claim for consequential damages.</p>

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

<p>Syllabus.</p> <p>1. This not being a suit for the return of a note which had peen' pledged, the prescription applicable to the acquisition of movables (acctnirenOA omisa) (C. C., 3509) does not obtain.</p> <p>2. Being an action for the recovery of moneys had and realized by the pledgees for and on account of the note pledged, over and above the sum needed to satisfy their claim against the pledgors, the prescription which operates a release from debts (liberandi causa) of ten years only applies.</p> <p>3. And those collections only are barred which were made at dates ten years before service of the citation herein.</p> <p>4. The presumption of payment resulting from the lapse of the time necessary for prescription is juris et de jure.</p>

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

<p>APPEAL from the Eleventh Judicial District, Parish of St. T,a.n-dry — -Dupre, J-.</p>

<p>Syllabus.</p> <p>1. An action contesting an election held to determine whether a subscription shall be made to a railway is not prescribed in three months from the date of the' promulgation of the election, and the prescription does not apply independently of the election so as to cure any illegality in the petition to the Police Jury for an election, although the action, as relates to the election itself, is not prescribed.</p> <p>2. The right of contest, under Act 106 of 1892, gives the right to examine into the acts of the Police Jury in ordering the ' election. The contest sanctioned .by the statute, is not limited to inquiring into the mere contesting of the votes at the election.</p> <p>8. Plaintiffs are not all estopped from calling in question the action of the Police Jury in ordering the election. A number of the plaintiffs did not participate or acquiesce in the election proceedings. •</p> <p>4. Voting at the election would not give grounds to sustain the plea of estoppel.</p> <p>5. Despite the benefits to the community a railroad makes sure, a taxpayer is given the right to contest the election.</p> <p>6. Article 242 of the Constitution of 1879, relating to railways and public improvements, was not self-acting.</p> <p>7. Act 135 of 1886 gave it effect, and carried out the intention of the framers of the Constitution.</p> <p>8. This statute is conditional, and its taking effect is made to depend upon a petition of one-third of the taxpayers of the parish.. Without a petition signed by one-third of the taxpayers requesting, the Police Jury to call an election, the Police Jury has no power to call an election, and submit the question of taxation to a vote.</p> <p>It is jurisdictional.</p>

<p>Syllabus.</p> <p>The ruling of a trial judge, upon the admissibility of evidence to prove a confession by the accused, based upon his conclusion that confession was not obtained by threats or promises, will not be disturbed in this court, unless clearly erroneous. ^</p>

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

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

<p>Syllabus.</p> <p>It is permissible for the trial Judge, on the trial of an accused for larceny, to permit the Jury to separate, under proper instructions, and in the exercise of sound Judicial discretion.</p>

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

<p>Syllabus.</p> <p>An exception oí no cause of action Raving been sustained and s at dismissed, a judgment should have been written and signed by me Juáge, as the decree is in the'nature of a final judgment.</p>

<p>Syllabus.</p> <p>1. .Vome of Owner. There was no valid ground oí objection to the amendment of the indictment by inserting the name oí Jules Birotte for that of Claiborne Birotte as the owner of the property charged to have been burglarized. The crime charged was not affected by the question whether the property was owned by -another person. State vs. Dominique, 39th Ann., 323; State vs. Christian, 30th Ann., 367.</p> <p>2. Description of Property. A change in the description of property stolen may also be made.</p>

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

<p>APPEAL from tlic Sixth Judicial District, Parish of Richland— Ellis, J.</p>

<p>Syllabus.</p> <p>1. A municipality which has voluntarily passed under the dominion of Act No. 13 G of 1898, can not, under any general or implied authority, suppress or “locate,” at pleasure, a lawful business, which is not a nuisance per ae, where the act confers authority, in specific terms, merely to prescribe regulations whereby the establishment in which such business is conducted shall be kept clean and in good order.</p> <p>2. A fortiori is it incompetent for such municipality to enforce an ordinance, whether adopted before or after its acceptance of the act of 1898, the effect of which is to permit four livery stables to be maintained in its business centre, whilst the fifth stable and all others which may be hereafter established, are to be regulated and confined to a designated locality, remote from such centre.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of West Baton Bouge — Talbot, J.</p>

<p>APPEAL .from the Eighteenth Judicial District, Parish of Terre-bonne. Oaillouei, J.</p>

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

<p>APPEAL, from the Civil District Court, Parish of Orleans. King, 7., acting, for Theavd, J., absent.</p>

<p>Syllabus.</p> <p>When the holder of five negotiable mortgage notes, two matured and three unmatured, takes out executory process, and a sale is made of the property, for fifty-four hundred dollars, eighteen hundred dollars cash, and the balance on credit, to correspond with the maturities of the notes, a judgment rejecting a third opposition, claiming priority of payment upon a claim of twenty-eight hundred dollars, is not appealable to the Supreme Court.</p>

<p>APPEAL from the Eighteenth Judicial District, Parish of Lafourche. Gaillouei, J. •</p>

<p>Syllabus.</p> <p>1. Citation of Appellee, when an appeal has been taken, and security given as required by the court, the appellee shall be cited to appear before the Court of Appeals to answer at the next term of the appellate court, if there be sufficient time for doing so after allowing the same delay which is granted to defendants in ordinary suits.</p> <p>2. Appeal Returnable at the Next Term, After Bond, Filed, if Delap be Not Obtained. The order of appeal was granted and the required bond fur-. nished, but the transcript of appeal was not filed at the next term of the appellate court after the bond had been furnished and no delay was applied for within which to bring up the appeal.</p> <p>On the grounds urged by appellee, the appeal was dismissed in the case of Coudroy vs. Peeot, 51st Ann., 495.</p>

<p>PPIJOATION for Writs of Certiorari,, Mandamus and Prohibition.</p>

<p>Syllabus.</p> <p>1. where several persons are jointly indicted for an offense which'might have been committed by several, the question of severance, is a matter within the discretion of the trial judge, which will not be interfered with by this court.</p>

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

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

<p>APPEAL from the Tenth Judicial District, Parish of Avoyelles — - Lojargue, J.</p>

<p>APPEAL from the Fifteenth Judicial District, Parish of East Baton Rouge — Brurioi, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — King, J., Acting for Thearcl, J., Absent on Leave.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of West Baton Rouge — Talbot, J.</p>

<p>Syllabus.</p> <p>3. An order, extending the time for the return day of an appeal, based up^n the application of appellant and his averment that the return day of his appeal would expire on a certain day, is held to mean that the additional time begins to run from the date named in the application as the original return day, and not from the day the court reassembled after vacation.</p> <p>2. A transcript filed after the expiration of the delay named in the extension order comes too late and the appeal will be dismissed.</p> <p>3. Failure to .file a transcript in time is not a mere informality, and a motion to dismiss on this ground not one of those which must be presented within three judicial days of the filing of the appeal.</p>

<p>APPEAL from the 'Tenth .Judicial District, Parish of Avoyelles — • Lafargue, J.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of West Baton Rouge- — Talbot, J.</p>

<p>Syllabus.</p> <p>If, in a trial for felonious homicide, evidence of the dangerous and violent character of deceased, whether or not shown to have been known by defendant, be admissible to enable the jury to form its own conclusion as to which party to the difficulty was the aggressor-, a bill of exceptions taken to its exclusion by the court should show affirmatively the existence of the conditions necessary to warrant its admission.</p> <p>When two or more persons are jointly indicted for the commission of one and the same offense the confession of one made in the absence of the other implicating himself and others may be properly admitted in evidence, but it is to be received in evidence only against the party making it, and the jury should be so instructed.</p> <p>51. Though in a criminal case, where the prosecution calls a witness who proves hostile, the District Attorney may, in a proper case and in a proper manner, prove a contradictory statement made by him on a former occasion, it should not be received as substantive, independent and criminative evidence of the fact stated therein against the accused, but only as rem vpsam and to affect the credibility of the witness himself.</p> <p>4. The simple fact of itself that a witness on the stand (as a witness placed there by the District Attorney for the State) may have stated on the trial something additional to what he had stated in his testimony given before the coroner’s inquest, but not inconsistent therewith or contradictory thereto. does not warrant the prosecuting officer in seeking to discredit him. The witness may not have been questioned relatively to the point and may be perfectly trustworthy and truthful.</p> <p>5. Where the accused in his bill of exceptions makes a minute recital of the evidence claimed to have been received and of the facts claimed to have been established, the court should not dispose of the matter by simply declaring that the statements made were only the prisoner’s version of the testimony. It should make its own recital of the testimony or make specific denials. State vs. Wright, 48th Ann., 1531-1532.</p> <p>6. An instruction by the judge to a witness to “tell all you heard and said,” may be the means of injecting inadmissible testimony, the effects of which can not be entirely cured by directing the jury to disregard what was. improper.</p> <p>7. The declaration by a judge in his addendum to a bill of exceptions, that there was nothing to which any exceptions or objections could be levelled, is a mere conclusion by him as to matters which it is the object of the bill to have the appellate court itself determine.</p> <p>8. It is a dangerous thing for 'a judge, in charging a jury, to assume broad premises, and upon the assumption of the existence of such premises to announce a fixed consequence of law to flow and, result therefrom. It is of the utmost importance when a judge declares to a jury in terms that, under a given assumed state of facts to be found by it, the defendant in a criminal action would be the aggressor and would be cut off from the rights of urging self-defense; that the state of facts assumed as the predicate for such a conclusion should be of such precise character as to lead up in' no uncertain way to the result announced.</p>

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

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

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

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

<p>Syllabus.</p> <p>1.Adjudications of property to the State based upon assessments and proceedings in the name of a dead man are void.</p> <p>2. -An adjudication of property to a tax purchaser, under Act 82 of 1884, predicated upon prior adjudications to the State, or upon assessments, in the name of a dead man, is void.</p> <p>3. A tax purchaser, under Act 82 of 1884, who fails to pay the taxes due upon the property for 1880, and subsequent years, assumed by him, acquires no title.</p> <p>4. An adjudication of property to a tax purchaser, under Act 80 of 1888, predicated upon prior adjudications, assessments, or proceedings, in the name of a dead man, and without the notice to the owner required by Article 210 of the Constitution of 1879, is void.</p> <p>5. A purchaser of property acquiring from one who acquired and held in bad faith, does not add the time of his author’s possession to his own, for the purposes of prescription.</p> <p>6. The prescription of three yea.rs, under Act No. 105 of 1874, does not apply to cases in which there appear radical defects of title such as those indicated above.</p>

<p>Syllabus.</p> <p>1. Where the evidence shows that an election takes place each year for membership in the Board of Trustees of a church; that there are no fees or emoluments attached to the office; that the value of the entire property of which the Board of Trustees would have the administration for one year would not exceed twenty-five hundred dollars, a contest as to who constitutes the members of the Board of Trustees, does not present a “matter in dispute” such as falls for its settlement within the appellate jurisdiction of the Supreme Court.</p> <p>2. Where the issue between parties to a suit is not as to the rights of ownership but that “of possession”, and the value of the latter right is below the amount of the Supreme Court’s limit of appellate jurisdiction, an appeal taken to that court must be dismissed.</p>

<p>PPEAL from the Civil-District Court, Parish of Orleans — King</p>

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

<p>Syllabus.</p> <p>The duties assigned to a sheriff are delicate and difficult, and his responsibilities are great; and in the absence of proof having a tendency to show a wanton abuse of authority, it is right that a court should hold an action for damages not maintainable against him, on the ground that he had probable cause to make the plaintiff’s arrest — notwithstanding it be shown to have been a clear case of mistaken identity.</p> <p>On REHEABIN0.</p> <p>1. False imprisonment is in its nature closely allied to malicious prosecution. ' Two things are essential in order to constitute the offense. First, detention of the person: Second, the unlawfulness of the detention.</p> <p>It is not necessary that the unlawful act should be committed with malice or ill-will; consequently, the question of malice is immaterial, except as it may affect the question of damages.</p> <p>2. The circumstances and conditions under which a citizen of Louisiana, can be arrested and imprisoned, on a claim that he has committed a crime in another State and has fled from justice, are defined by Act of Congress' and Section 103S of the Revised Statutes of Louisiana, and a sheriff of Louisiana who proceeds to make arrests and an imprisonment without a warrant as provided for therein is liable in damages for the same; want of malice on his part is no justification — it simply mitigates the act.</p>

<p>Syllabus.</p> <p>where tlio res gestae in an action for damages for personal injuries are the facts and circumstances under which the plaintiff-left a car of the defendant company, his declarations relative thereto, not made spontaneously and instinctively under the immediate pressure of the occurrence, but deliberately in answer to questions as to how the accident occurred, propounded to him, out of the presence of any one who was an, actor in the transaction and a considerable time after it had become an accomplished fact, and the conductor and his train were miles away, are not admissible in evidence as part of such res gestae.</p> <p>Such declarations are not rendered admissible neither by the fact that they were made under a sense* of impending death or by the fact that they may have been made to the physician called in to minister to him.</p>

<p>Syllabus.</p> <p>Ad attack made upon a will on the ground of incapacity of the legatees to receive the benefit of bequests therein made because they are the wife and children of the doctor who professionally attended the testatrix during the sickness of which she died and are therefore reputed to have been interposed for him, can not be sustained in the absence of satisfactory evidence being administered that the same was made during that sickness.</p>

<p>Syllabus.</p> <p>1. Where a debtor takes up one of a series of notes in the course of commercial business between the parties, by credits appearing in his favor on account of consignments made to the creditor and without reference to the indebtedness as a whole and without intention of affecting his previously reserved right to the correction of errors in the account, to close which the notes were given, it cannot be successfully urged against him that this is such an acknowledgement of the entire indebtedness as represented by the notes as precludes later inquiry into the correctness of items on the original account.</p> <p>2. A party who, with the intention of buying for himself, negotiates and effects a purchase of timber, but causes the bill of sale therefor to be executed to another from whom he obtains the funds with which to pay for the timber, can not afterwards be heard to shift his position, assert the timber to be that of the creditor and to claim that he (the debtor) owes only for as much thereof as he has actually used.</p>

<p>Syllabus.</p> <p>Parol testimony is admissible for the purpose of showing whether undeclared dividends passed to the purchaser of shares of stock in a corporation; but its effect must be restricted to tire parties to the transaction.</p>

<p>Syllabus.</p> <p>1. Whilst this court, exercising the jurisdiction conferred by Article 101 of the Constitution, will not undertake to review, either as to law or fact, all cases which may be decided by other courts of the State (since, if that had been the intention of the framers of the Constitution, all eases would have been placed upon the basis of those in which appeals to the Supreme Court are allowed), nevertheless, the jurisdiction thus conferred will be exercised in any proper case, whether presenting issues of law or fact, or both; the question as to what constitutes a “proper case” depending upon varying circumstances and requiring the exercise of a sound legal discretion.</p> <p>2. An insurance company, like an individual, may limit the authority of its agents, and where direct notice of such limitation, or any notice which a prudent man is bound to regard, is brought home to the assured, he is bound by it, and relies upon any act in excess of such limited authority at his peril.</p> <p>3. where, in a case in which neither fraud, nor error, nor subsequent knowledge and ratification by the company, is alleged or proved, the assured signs a contract in which is embodied the “iron safe clause”, and accepts 'vd retains, until a loss occurs, a policy in which said clause is embodied, and which has printed upon its face, a condition to the effect that no. officer, agent, or representative of the company shall have power to waive, or be deemed to have waived any condition of the policy, unless such waiver shall be written upon, or attached thereto, the assured is bound by such clause, as by a promissory warranty, and by such limitation upon the authority of the agent. And the knowledge being thus brought home to him that the agent with whom he was dealing was without authority, verbally to waive such clause and such condition,- a verbal waiver alleged to have been agreed on by such agent, contemporaneously With the execution of the written contract, even though proved, without objection, by parol evidence, does not bind the company.</p> <p>4. The evidence in this case, admitted without objection, was insufficient to establish the alleged waiver.</p>

<p>Syllabus.</p> <p>1. Waiver of jurisdiction by filing answer. A debtor may file an answer in a suit in which he is defendant in another jurisdiction than that in which he has his domicile, provided the waiver forms no part of a contract entered into looking to a waiver of jurisdiction for its enforcement.</p> <p>2. No exception m case of a suit by a married woman. In the absence of fraud or any intended wrong, the husband may file an answer to his wife’s suit for a separation of property in another court than that of the parish in which he resides. The judgment, if voidable, is not void, and the debtor, of a date subsequent, can not, many years after the judgment, has been rendered, treat it as an absolute nullity. To this extent the judgment appealed from is annulled, the judgment of separation of property is not decreed void. The writ of injunction is sustained.</p> <p>3. Though voidable, not void. As relates to the other issues presented, for the reason that revocatory action is the remedy under our law for creditors seeking relief against alleged fraudulent disposition of the debtor’s property and not a direct seizure, the suit is dismissed as in case of non-suit.</p>

<p>Syllabus.</p> <p>Where a pedestrian is standing near a car track, at night, upon a frequented MiorougMare, giving no indication of an intention to cross, and attempts to-cross only when a rapidly moving car is so near him as to render it practically impossible for the motorneer to prevent striking him, there can be no recovery of damages for the injuries sustained.</p>

<p>Syllabus.</p> <p>.!• Before the State taxes for a given year became due and demandable, the lot of ground upon which the same had been assessed passel out of the hands of private ownership into tne hands of public ownership — Held : The moment public ownership attached developing liability to taxation was arrested.</p> <p>Ü. The tax law of a State applies to persons only, and not to political bodies like municipal corporations, which exercise in different degrees the sovereignty of the State.</p> <p>Hence it is, that when property upon which State taxes are assessed is subsequently acquired by a political subdivision of the State, like the city of New Orleans, to which certain powers of sovereignty and government have been delegated by the State, which property is acquired for purposes of public utility coming within the scope of the powers so delegated, and is immediately applied to such purposes of public utilty, the taxes so assessed in favor of the State upon the same cease to be exigible.</p> <p>4. It pertains' to the public policy of the State not to exact taxation on property so held and used.</p> <p>5. within the scope of the powers delegated ’to it, the city of New Orleans stands for the State, and property acquired by it in the due execution of its mandate from the State, stands in consimiK casu with property owned by the State itself, and taxes antecedently assessed in favor of the State upon such property must be held abated. It is a commingling of the qualities of debtor and creditor in such way that there arises a confusion of right extinguishing the obligation.</p>

<p>Syllabus.</p> <p>under Act No. 3 of 1894, it is the duty of the clerk to embody in the transcript of appeal the original, transcribed, stenographic report of the testimony, whether the duplicate required by said act is on file or not; the failure to file the duplicate being another question.</p>

<p>Syllabus.</p> <p>In a rule taken by tbe sheriff upon the parties to an executory proceeding for the sale of mortgaged property, to show cause why a title should not be executed to the purchaser, no guestion relating to the respective rights of mortgage creditors on the proceeds of sale can be determined.</p>

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

<p>Syllabus.</p> <p>Ox Motion to Dismiss Appeal.</p> <p>j. where the real issue raised is the legality or constitutionality of a tax, this court has jurisdiction.</p> <p>•J. And this jurisdiction is not to be defeated by skilfully obscuring the issue by. means of technical pleadings, or the want of them.</p> <p>3. whether or not, directly or indirectly, immediately or remotely, the legality of a tax in any form or manner is at issue, is the province of this court, and it alone to determine.</p> <p>i. It is as much an issue to be passed upon here as is that of the legality of the tax itself.</p> <p>On the Mebits.</p> <p>1 Where plaintiff avers payment of taxes assessed against him for a certain year as ground for injunction to stay the sale of his property, producing the tax receipts relied on, under the general issue pleaded by defendant evidence may be introduced to show that all of plaintiff’s taxes for the year had not been paid, and that the tax receipts did not include the particular taxes for non-payment of which the property was proceeded against.</p> <p>On Reheabing.</p> <p>This court will not exercise appellate jurisdiction upon the ground that the question of the constitutionality or legality of a tax is in contestation, unless such question is disclosed by the pleadings upon which the case was tried in the lower court.</p>

<p>IN BE. Wm. E. Tracy and E. O. Zacharie applying for certiorari or writ of review to the Court of Appeal, Parish of Orleans, State of Louisiana.</p>

<p>Syllabus.</p> <p>In a rule taken by the sheriff upon the parties to an executory proceeding for the sale of mortgaged property, to show cause why a title should not be executed to the purchaser, no question relating to the respective rights of mortgage creditors on the proceeds of sale can be determined.'</p>

<p>APPEAL from the Third Justice Court, Parish of East Feliciana— , Austin, J.</p>

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

<p>APPEAL from the Fourteenth Judicial District, Parish of Iber-ville — Talbot, J.</p>

<p>Syllabus.</p> <p>1. where property, which must be held to have been the separate property of the husband, was carried by him into the community formed by the marriage, became merged into it, and enured to its benefit, its value becomes an indebtedness due the husband by the community.</p> <p>2. No fixed rule or standard as to the extent or sufficiency of evidence necessary to establish a claim of that character can be formulated. Each case must rest on its own peculiar state of facts.</p> <p>ii. The prescriptions which would otherwise bar such a claim are suspended as against the husband during the time he fills the positions of tutor to the children of the marriage and administrator of the deceased wife’s succession.</p> <p>4. There is no reason why the father, who is both tutor of the children and administrator of their mother’s succession, should not account in his settlement of the mother’s succession to her heirs of age for moneys received by him from their grand-father as their inheritance by right of representation of their mother.</p>

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

<p>Syllabus.</p> <p>(1) A survey of swamp and overflowed lands granted to the State by Congress, is a sufficient selection and identification of same to segregate them from the public domain, and render them liable to sale or entry as property of the State.</p> <p>(2) On the 28th of October, 18(54, Gorlinsld was the regularly appointed, qualified and commissioned register of the State land office, under the civil government which was established under the Constitution of 1864, and which had supplanted and taken the place of the military government which the President had inaugurated in 1862.</p> <p>(3) Act 267 of 1861 did not repeal Act 290 of 1855 establishing a State land office, but left same in full force in so far as the office, of register of the land office was concerned.</p> <p>(4) That joint resolution No. 25 of 1863 which purported to suspend the sale, or entry of all public lands until one year after the close of the war, operated no restraint upon the land officers of the civil government which had been established under the Constitution of 1864.</p> <p>(5) Title to public lands dates from the issuance of the certificate, and not from that of the patent; and the party holding a patent of date later than that of a certificate or warrant, carries the burden of proving illegalities in the certificate necessary to make it prevail over the latter.</p>

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

<p>Syllabus.</p> <p>where the third person enjoining a sale of real estate holds under a conveyance, valid on its face, accompanied by delivery and continuous possession as owner to the cíate of seizure, he is entitled to have his injunction sustained and perpetuated; and the creditor in such ease must resort to a direct action to set the sale aside.</p>

<p>APPEAL from the Fifteenth Judicial District Court, Parish of East Bation Rouge. — Brunot, J.</p>

<p>Syllabus.</p> <p>To warrant the Supreme Court in entertaining jurisdiction of an appeal ‘from a judgment in a justice court taken upon the ground that the legality or constitutionality of an ordinance imposing a fine or tax was in contestation therein, it must not only appear that pleadings in the case raised that issue, but the facts therein called for that issue and for a decision thereon.</p>

<p>Syllabus.</p> <p>Where a natural tutrix has been destituted of the administration of the minors’ estate and, thereafter, files a final account of her tutorship, which she asks to have homologated contradictorily with a dative tutor, appointed to the minors, who opposes the account, the amount in dispute is the difference between that admitted to be due to the minors and that claimed in their, behalf.</p>

<p>APPEAL from the Second Recorder’s Court, City of New Orleans. —Grand] ean, J.</p>

<p>Syllabus.</p> <p>1. The order placing the surviving wife in possession as an heir of the property of her husband, is null and void. It appears that there are debts due by the succession, and that it is such a succession as should be settled by an administrator. This court holds that an administrator must be appointed.</p> <p>2. One of the two parties asking for the administration of the succession being the surviving wife who is an heir and the other being one who asserts that he is a creditor of said succession, the court, as held in repeated decisions, appoints the surviving wife and heir administratrix, as she has preference over any creditor.</p>

<p>APPEAL from the Fourth Judicial District, Parish of Morehouse —Potts, J.</p>

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

<p>Syllabus.</p> <p>On Motion to Dismiss the Appeal.</p> <p>A devolutive appeal bond containing the condition “to satisfy the judgment which may be rendered” secures the costs and is not invalid. The appeal will not be dismissed on the ground that it is defective because it does not, in terms, refer to costs.</p> <p>On the Mebits.</p> <p>when notes are extinguished by payment in accordance with an understanding with the parties to the payment, a third person is bound by the agreement made to have the payment taken in extinguishment of the claim. The foregoing rule of law governs as relates to notes “A” and “B”.</p> <p>The noto “C”, transferable by mere delivery, was transferred by plaintiff to third opponent who secured the amount and delivered the note without receipting it or stipulating that the amount was received for its extinguishment. He was a transferror of the note and of the mortgage with which it was identified. (Perkins vs. Liquidator, 40th Ann., G53.) The vendor must explain the extent of his obligation. (Heirs of Delogny vs. Mercer, 43rd Ann., 213.) The third opponent is entitled to preference over the proceeds of the sale as relates to note “C”. (Salzman vs. Creditors, 2 R.., 241.)</p>

<p>Syllabus.</p> <p>1. A demurrer attacking the constitutionality of an ordinance as a whole, is properly overruled where any part of the ordinance is constitutional.</p> <p>2. The ordinance of the city of New Orleans making it unlawful for any person to engage in the operation of a slot machine, either as keeper, or owner, or player thereof, where the prize or reward given or to be given is money, merchandise, or checks redeemable in money, or an order to any third person for money or merchandise, and punishing the violator of the ordinance by fine or imprisonment, or both, is not in excess of the powers delegated to the city of New Orleans by the General Assembly, nor is it inconsistent with or repugnant to the fourth section of Act No. 57 of 189S.</p> <p>3. The fourth section of Act 57 of 1898, does not authorize or legalize the operation of such machines in any manner or form, or for any purpose.</p> <p>It leaves the question of the legality of the operation of such machines where the prizes are stock in trade in licensed establishments to be tested and determined by the courts.</p> <p>4. If the subject matter of an ordinance falls within the scope of the powers delegated to the municipality, it is not necessary to give validity to the exercise of the power by the city, that the State itself should have acted upon the identical matter which is covered by the ordinance.</p> <p>5. If the general powers delegated to a city cover several distinct subjects, an ordinance legally referable to any one of them for its source will stand.</p> <p>6. An authority to the city to imprison certain designated classes of persons, carries with it a delegated power to pass the necessary prohibitory and penal ordinances on the subject matter, for the violation of which the imprisonment is to follow.</p> <p>7. The use of a slot machine, where an element of chance determines whether the prizes are to be given, brings such operation under the definition of a lottery, whether the prizes given are stock in trade of licensed establishments or not.</p> <p>The ordinance attacked is legal.</p>

<p>Syllabus.</p> <p>While the court re-examined the issues and found no ground upon which to' grant a rehearing, it directed attention to the rule that rehearings are not to be granted in this class of cases.</p>

<p>Syllabus.</p> <p>1. A district court has jurisdiction on an appeal to it from a judgment of a justice of the peace to pass upon the nullity of the judgment appealed from when the nullity is apparent on the face of the record where the subject matter of the suit itself falls within the appellate jurisdiction of the district court. (C. r., 609.)</p> <p>The mere correctness of the conclusions of that court as to the nullity of the judgment can not be tested in the Supreme Court under its supervisory powers and a writ of certiorari. Certiorari is not a substitute for an appeal. (State ex rel. Breckenridge Lumber Co. vs. Tully, 48th Ann., 1533, and authorities cited.)</p> <p>2. where, under a writ of certiorari it is sought to have a judgment of a district court set aside for alleged nullities in the proceedings, there is reason to believe that the minutes of that court as made up are incomplete or erroneous, the Supreme Court will suspend action until the parties shall, by proper proceedings in the district court, have had opportunity to amend or reform the minutes.</p> <p>Where the minutes of the district court in the matter of an appeal to that court from a judgment of a justice court in favor of a plaintiff, shows an affirmance of the judgment below, but fails to show that any evidence was taken on the trial of the cause, the judgment of the district court will be set aside bn certiorari.</p>

<p>APPEAL from the Seventeenth Judicial District Court, Parish of Lafayette. — -DeBaillon, J.</p> <p>STATEMENT OF THE CASE.</p>

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

<p>SYLLABUp.</p> <p>An act of jurors indicating a disregard of the solemn duty imposed upon them, . - and a disregard of the solemnity of their oaths, will justify the setting aside of the verdict and the granting of a new tria!. (State vs. White, 48th Ann., 1445.)</p>

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

<p>Syllabus.</p> <p>Under the provisions of the present Constitution, it is only in pursuance of the authority of a vote of a majority in number and amount of the property taxpayers of a municipality that it may incur debt and issue negotiable bonds therefor; and which indebtedness and issuance of bonds must be specially restricted to the extent of one-tenth of the assessed valuation of the property within said municipal corporation, and shall not exceed five mills on the dollar of the assessed valuation of the property in any one year.</p> <p>It is not admissible for a municipal corporation to issue bonds for any other purpose than that stated in the submission; and it must be restricted and rest upon the special tax authorized by a vote of the property tax-payers as directed in the Constitution.</p> <p>Municipal authorities are not authorized to predicate the issuance of bonds for any other indebtedness than that which is contracted subsequent to the election ; and it can not be rested upon an appropriation of any portion of the general fund tax.</p> <p>The law does not require that the ordinances of municipal corporations should be preceded by titles such as are required for legislative enactments.</p>

<p>Syllabus.</p> <p>If afliant makes oath against a party charging him with the commission of a crime for which he is thereunder arrested, he will not be mulcted in damages, notwithstanding his subsequent discharge, if there was probable cause for the charge being preferred.</p>

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

<p>Syllabus.</p> <p>The proof disclosing that g person having no contractual relations with a street railroad corporation, goes upon Its track at a late hour of the night, in an obscure and unfrequented locality, and has a collision with its engine, by means of which he suffers an injury, he is without right to recover damages because of his contributory negligence, even if it be conceded that the company’s employees were not without fault.</p> <p>But if the proof shows that the head-light of the engine was burning, that the bell was ringing, and the speed of the engine in accordance with regulations, a mere trespasser is without any ground of complaint. (Snyder vs. Railroad Company, 42 Ann., 302.)</p>

<p>Syllabus.</p> <p>1. If errors be committed in setting cases for trial, or if irregularities arise in the assignment of causes for hearing in the trial court, the same is.no ground for applying to this court for its writ of certiorari, or of prohibition. The remedy is by appeal to the appropriate appellate tribunal, upon proper objection and reservation made.</p> <p>2. Directing the ejectment of a plaintiff, claiming a lease, from the premises, and ordering the defendant owner to be put into possession thereof, is only a necessary sequence of the judgment rejecting the plaintiff’s demand to be recognized as holding under a lease.</p> <p>3. The suit itself involved the right of possession of the property; this was tendered as an issue by plaintiff’s petition; and if the trial court had juris: diction to decree its possession to the plaintiff, it had jurisdiction to decree its possession to the defendant.</p>

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

<p>APPEAL from the Third Judicial District, Parish of Lincoln.— Barksdale, J.</p>

<p>Syllabus.</p> <p>íVhere a passenger, by reason of the mistake of the conductor, in giving him a cheek, is ejected from a train before reaching his destination, he should not increase the damage and can not recover for loss or injury which is not the consequence of the wrong done him, but of his own wilful acts of omission or commission.</p>

<p>Syllabus.</p> <p>1. If it be true that under the guise of an ordinance to rearrange the street railway tracks on Canal street, New Orleans, the better to subserve the public safety and convenience, an attempt is made to donate valuable additional franchises to one of the companies maintaining a track on part of said street, and that what is thus sought to be done is in excess of the powers of the municipal Council, any citizen and tax-payer has a standing in court to contest that part of the ordinance in which' is included the alleged disguised franchise grant.</p> <p>2. whether it has a new grant, and, if so, whether the same is valid, are matters of defense more particularly to be urged by the street railway company asserting the same, and, accordingly, the bringing of the suit against it alone suffices.</p> <p>3. A petition, duly verified by oath, containing averments of the unauthorized grant of a public franchise and the ultra vires character of the ordinance under which the franchise is claimed, and alleging interest as tax-payer and injury to the rights and holdings of the petitioner, presents a sufficiently good prima fade case to warrant the injunction pendente lite asked for.</p>

<p>Syllabus.</p> <p>The fees of an attorney who represents a married woman as defendant, in a suit for the nullity of a marriage, are not costs, and can not be taxed as such against the plaintiffs, against whom judgment has been rendered.</p>

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

<p>Syllabus.</p> <p>When the Recorder of the Sixth Recorder’s Court, city of New Orleans, Imposed upon the relator a fine of $25 and five days’ imprisonment, and then added that in case of default of payment of the fine he should suffer 25 days’ additional incarceration in the Parish Prison, he was within the pale both of the statutory law and the ordinance of the city relator was charged with violating.</p>

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

— Ellis, J. The opinion of. the court, on the original hearing, was delivered by Nicholls, C. J. On the rehearing by Monroe, J. (Removed to the Supreme Court of the United States by writ of error).

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

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

<p>Syllabus.</p> <p>1. A rifle club is liable for injury to outside persons resulting from target practice on its premises.</p> <p>2. Where the evidence excludes every other reasonable hypothesis than that the ball which struck the person injured was fired from the club grounds, by members or guests engaged in target practice, such person Is entitled to recover from the club.</p>

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

<p>PPEAL from the Civil District Court, Parish of Orleans — Ellis,</p>

<p>Syllabus.</p> <p>In ease it is established by the evidence that the plaintiff was the foreman of a gang of laborers who were engaged in hauling dirt with a train-of-flat cars, and sustained injury by a collision of the train with a cow on the track in the night time, and which accident was caused or contributed to by the conductor’s abandonment of the train, the defendant will not be relieved from liability on the ground that the plaintiff and conductor were fellow-servants.</p>

Paul, J. The opinion of the court on the motion to dismiss was delivered by Blanchard; J. On the merits by Watkins, J. On application for rehearing by Blanchard, J. On Motion to Dismiss Appeal.

<p>Syllabus.</p> <p>1. The curator ad hoc appointed to represent an absentee in a partition proceeding, is not required to take an oath. (Thayer vs. Tudor, 2nd Annual, 1010; Killealea vs. Barret, 37th Annual, 868; Hansell vs. Hansell, 44th Ann., 549.) ,</p> <p>2. Where property has been sold to effect a partition by licitation and gone into, the hands of third parties, the partition will not be rescinded by reason of the discovery made, since the same, of the omission froih the partition of property of Insignificant value.</p> <p>3. Where property owned in indivisión by a mother and son is conveyed by them to a creditor of the mother, in consideration of the extinguishment of the mother’s note, the act does not evidence a donation to the mother by the son, of his interest in the property conveyed; if there was a donation it was of the son’s portion of the price, to the mother.</p> <p>To warrant the refusal by adjudieatees at a judicial sale to take title they must show, not a remote and possible, but a substantial and threatening danger The fact that one of the former links of title was a donation, presents’no such danger, when it is not shown that the donor was at the time a married man, nor that he has since married and had children.</p>

<p>AN RE Catherine Richardson applying for certiorari or writ of review to the Court of 'Appeal, Parish of Orleans, State of Louisiana.</p>

<p>APPEAL from the Tenth Judicial District, Parish of Avoyelles— Oappel, J.. ad hoc.</p> <p>Opinion on original hearing by Watkins, J.</p> <p>On Rehearing by Blanchard, J.</p>

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

<p>Syllabus.</p> <p>On Motion to Dismiss Appeal.</p> <p>An application to dismiss appeal on the ground that the defendant corporation has made an assignment of its property and franchises, and is no longer a party to the suit, will not be favorably considered when the record discloses that such assignment ivas made several months prior in date to the judgment appealed from, and of whihc appellee made no complaint by appeal, or answer filed in this court.</p> <p>On the Merits.</p> <p>When a stop Is made to permit a passenger to alight, ordinarily, the conductor should be on the platform of the car. The passenger who testified that he was injured in a fail from the car said, in substance, that his fall was occasioned by the brief stop and the abrupt starting of the car. The conductor, seeking to account for his being away from the platform during a stop, was flatly contradicted in several particulars by another employe of the railroad company.</p> <p>The proper manning of the car was not satisfactorily shown in the matter of permitting the passenger to alight. The passenger is, in some respects, corroborated in his account of the fall.</p> <p>The judge of the District Court who saw and heard the witnesses sustained his demand in part. There is always a presumption sustaining a judgment, and as the testimony does not rebut that presumption, and does not indicate wherein there was error, the judgment is affirmed.</p>

<p>Syllabus.</p> <p>1. Though a railroad be a “highway” it is not a “public road” In the sense that the general public have the legal right to pass at will along its right of way. A bridge built by a railroad corporation on its line of way, over a navigable stream, is not open to travel over it by the general public, though it may have been constructed in such a manner as to admit of the same.</p> <p>2. Where the common council of a city and the police jury of a parish authorized to establish ferries, regulate tolls and divide revenues, entered into an agreement with a railroad corporation, whereby, in consideration of the former paying the increased cost of construction, and binding themselves to • pay a certain fixed proportion of cost of police maintenance and reconstruction in the future of a bridge which the railroad company proposed to build over a navigable river, the latter would construct the same in such a manner as to adapt it as a roadway for vehicles and passengers, and the former should have the right of using the roadway as a bridge ferry over the river, the parties to such an agreement did not thereby become Joint-owners of the bridge. The railroad corporation remained the owner of the bridge in ’entirety, subject to a partial use of the bridge under the terms and conditions of the contract.</p> <p>3. Where in such a contract the railroad company consented to receive payment of the amounts due to it from tolls to be collected by the city and parish for-crossing the bridge, the right of the latter to collect such tolls is not held under a derivative right under the contract from the railroad company, but by virtue of their grant of right to establish ferries and regulate tolls.</p> <p>4. Á contract of the character stated is subject to be ended by a judicial decree for non-compliance with its terms and conditions, or by the common consent of the city, the parish and the railroad company. The bridge is not under such a contract dedicated to public use in the legal sense of that word, but is held and occupied under special, contractual relations between the parties.</p> <p>5. There is inconsistency in a claim of right on the part of citizens to cross a bridge held under such circumstances by a city and parish, and a denial by them of the authority of the latter to enter into the contract by virtue of which alone the right to cross was obtained. They can -not claim benefits under a contract and repudiate the authority of the person under whom they claim to have made it.</p> <p>6. A clause in the contract that the city and parish would reduce the toils yearly to the extent of one-tenth does not confer upon the general public a vested right to insist that such reduction should be made.</p> <p>The clause evidences a reserved right by the city and parish to reduce the tolls and not a self-assumed obligation as a stipulation pour autrni in favor of the public. So far as the public was concerned it was expressive of mere intent. Civil Code, 1814.</p> <p>The matter being dealt with under general administrative powers was subject to such action as the public authorities would deem judicious and best.</p> <p>7. Where a city and a parish are authorized by the General Assembly to establish ferries -and regulate tolls, courts will not undertake,' at the instance of private individuals, to fix any limit to the amount which the authorities may exact for that purpose.</p> <p>The question of the extent to which this right may be exercised is purely administrative. First Municipality vs. Pease, 2nd Ann., 538; Transportation Co. vs. Parkersburg, 107 U. S„ 691.</p> <p>Particularly is this the case when pending an action for this purpose, the General .Assembly has referred that question for decision to a vote of the people of the localities.</p>

<p>Syllabus.</p> <p>When ¡t appears that a municipal corporation, acting through its proper officers has, in good faith, entered into a contract, with an individual, equally in good faith; that such contract has been wholly executed by such individual, and that the corporation- and its citizens at large .are in the receipt and enjoyment of the benefits" resulting therefrom, which are more than an equivalent for the consideration for which the corporation bound itself; and it also appeal's that the corporation is ready and willing to comply with its obligations under such contract, an individual citizen, who makes no 'charge of fraud, and who shows no injury to himself, or to the community, but who, on the contrary, appears to be equally benefited with his fellow-citizens, and who brings this suit only after the execution of the contract by the individual, and after the benefits of such execution have accrued and are being enjoyed, has no, standing in court to enjoin the corporation from discharging its obligations under such contract, by paying for what it has received.</p>

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

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

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

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

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

<p>Syllabus.</p> <p>Under a genera! appropriation act entitled “An Act making appropriations to defray tlie ordinary expenses of the Government * * * for the year commencing July 1st, 1899, and ending July 1st, 1900”, a special appropriation reading “five thousand.dollars armnalVy or so much thereof as may be necessary to afford relief by the State Board of Health, etc.,” carries an appropriation of five thousand dollars for each of the years 1899 and 1900.</p> <p>It is not necessary that there should have been made an appropriation of the amount for each year specifically. ,</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — King. J.</p> <p>On rehearing by Nicholls, C. J. ■</p> <p>On Motion to Dismiss.</p>

<p>Syllabus.</p> <p>1. The Board of Health of the city of New Orleans Is a part of the city government. The General Assembly has not conferred upon It an unrestricted power of determining for itself how much money should be appropriated for its purposes by the common council in any given year.</p> <p>There is no more ground for independent action on its part in this matter, than there would be for the Department of Police, or any other department of the city. The intention of the General Assembly was that the Board of Health and the council should act together for the attainment of any object in which they have a common interest.</p> <p>2. The fact that since the adoption of the city’s budget several of the items budgeted for therein have been adjudged illegal, and the amounts appropriated therefor have been liberated to be applied to other purposes, does not authorize a particular person to mandamus the council to appropriate the liberated amount for his benefit.</p> <p>This is a matter for the council to pass upon.</p> <p>3. Courts are not vested with power to frame a budget for the city, of New Orleans ; to assume the administration of its affairs, to constitute themselves, in effect, the mayor and common council, for the purpose of determining what are, or are not, reasonable allowances for the performance of particular duties.</p> <p>Those matters are confided by the law to the discretion and control of the corporate authorities. (Moore vs. The City of New Orleans, 32nd Annual, 726.)</p>

<p>Q N APPLICATION for a Writ of Mandamus.</p>

<p>Syllabus.</p> <p>1. A vendor can not maintain a suit in reconvention without having first tendered the return of the price. He can not retain the price and claim the restoration of the property. A party demanding the rescission of a contract must return or offer to return the consideration received by him.</p> <p>2. Where the Board of Directors of a corporation, after full knowledge of the facts of the sale having been communicated to it, agreed to receive payment of interest on the note it held representing part of the purchase price, and extended the note, it ratified the sale as made. Thereafter it was estopped to seek avoidance of the sale because the President of the corporation, in the terms thereof, exceeded his authority. *</p>

<p>APPEAL from the Twenty-Second Judicial District, Parish of Plaquemines. — Single, J.</p>

<p>Syllabus.</p> <p>1. The Supreme Court of the United States having affirmed the judgment of the Supreme Court of Wisconsin, effect must be given thereto.</p> <p>2. A person whose domicile was in Wisconsin died, leaving property there and here. There was a will in Wisconsin, which was probated and an executor appointed. Among his personal effects found in Wisconsin were two promissory notes executed by a party living in Louisiana and secured by mortgage on property here. The Wisconsin executor collected the notes, the maker thereof voluntarily paying same to him. But before their collection, a Louisiana administratrix of the dead man’s succession, appointed here where the succession had also been opened, brought suit on the notes though never in possession of the same. Held : The court of the testator’s domicile being seized of jurisdiction of his estate, real and personal, found there, the Wisconsin executor had the legal right to collect the notes and his acquittance therefor protects the debtor against the demand of the Louisiana administratrix.</p>

<p>Syllabus.</p> <p>1. Mere reference to a prior act in matter of description in a deed conveying property is. not necessarily notice of want of authority of the vendor, or of the vendor’s vendor, by whom the original deed was signed.</p> <p>2. Third persons are not bound by recitals in deeds which are not material to the matter in hand, and which are of no importance in passing a sale. The defect was not apparent, and could not have been ascertained by careful examination of the act under which the owner claimed ownership.</p> <p>3. The nullity was at best a relative nullity which was susceptible of ratification. A presumption of ratification results from silence and inaction during the time fixed for prescription. The rights of third persons can not be undone long after they have been acquired in good faith. The third person's have gone into possession of and improved the property, and have paid the taxes without objection from any one. Original owners wno, in the face of regularly recorded titles, some of them showing inventories made of the property and sales at public auction could not, after the lapse of nineteen years, set aside conveyance under which the property is now held in good faith.</p>

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

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

<p>^PPEAL from the Civil. District Court, Parish of Orleans — King,</p> <p>Statement of the Case.</p>

<p>Syllabus.</p> <p>Non-negotiable notes representing loans in Louisiana, made by the agent of a corporation, doing business therein, when kept within the State by the agent, may be subjected to taxation by the law of the State in which they are held. City of New Orleans vs. Stempel. (175 U. S. Reports, 309.; Blue-fields Banana Company vs. Board of Assessors, 49th Ann., 43.</p>

<p>Syllabus.</p> <p>1. The legal right of a stockholder of a corporation to examine the corporate books is a right which gives him a cause of action at law for damages against the corporate, officers if they refuse to allow the inspection.</p> <p>2. Por every invasion of right there is a remedy, and that remedy is compensation for logs sustained. There was an invasion of plaintiff’s right when defendant denied him access to the books.</p> <p>3. Where the impossibility of the administration of proof to sustain allegations legally sufficient does not appear with certainty, the cause snould be sent to trial on its merits and not dismissed on exception of no cause of action.</p> <p>4. Where the legal sufficiency of allegations to support a judgment is put at issue by an exception of no cause of action, it were safer practice in case of doubt to let the ease go to trial on its merits.</p>

<p>Syllabus.</p> <p>1 Creditors, who stand by and make no objection whilst the property of their debtor, a corporation in the hands of receivers, is sold by the sheriff under order of the court, and who acquiesce in the manner in which such sale is conducted, will not be heard upon an opposition to the receivers’ final account, filed long afterwards, to complain that the sheriff did not conform to the terms of the order, and sold in lots when he snould have sold in block.</p> <p>2. A receiver who buys property of the estate under his administration, when sold under order of court, will be held liable for at least the appraised value of such property when the sale is not attacked for nullity.</p> <p>3. A receiver, who is a creditor, is not permitted to obtain an advantage by appropriating the assets in his hands to the payment of the debt due him. He must account to the court for such assets and take his chances, as to the payment of his debt, with other creditors similarly situated.</p> <p>4. The privilege accorded by Act 145, of 1888, in favor of saw and planing mill, etc., employes, is barred by the prescription of thirty days from the maturity of the debt. Where persons are employed at a certain amount per month, it will be presumed, in the absence of proof to the contrary, that their salaries become due at the end of each month. But, where receivers are appointed, the salary pro tanto for the current month becomes due at once.</p> <p>5. Receivers are not permitted to expend money which comes Into their hands at discretion, and where such expenditures are not authorized by the court, and do not appear to have been of benefit to the creditors, they will not be allowed as credits.</p> <p>6. Where a receiver shows want of capacity in the management of property entrusted to him, and a lack of appreciation of his obligations as receiver, his claim for compensation may be. rejected or reduced.</p> <p>7. The amount to be allowed as fees to counsel employed by the receiver is to be determined by the circumstances of the case. But, where tne same counsel represents the receivers, and also a mortgage creditor, fees- will not be allowed both ways.</p>

<p>Syllabus.</p> <p>An order extending the return day of an appeal, based on error and want of knowledge of the true facts, will be rescinded, and the appeal dismissed, when it appears that the appellant, or his counsel, is responsible for the misinformation upon which the court acted.</p>

<p>Syllabus.</p> <p>Where, following a sheriff’s sale of property under execution, a rule is taken by the purchaser on the sheriff and the occupant of the premises to show cause why the latter should not be ejected therefrom and the purchaser placed in possession, nothing is at issue, or can be put at issue, save the right of possession, and to vest this court with jurisdiction of an appeal from the judgment making the rule absolute the record must affirmatively show by allegation or proof that the value of the possession exceeds $2000.</p>

<p>Syllabus.</p> <p>1. Where an affidavit for a continuance shows that witnesses for whom subpoenas have issued are employed on a railway,'and fails to show that they reside within the jurisdiction of the court, or that there is, any certainty that their presence can ever be secured, this court will not interfere with the ruling of the trial judge refusing the continuance.</p> <p>2. A verdict and judgment will not be reversed, upon account of an alleged error in the ruling of the trial judge, when it is made apparent that the defendant could have sustained no injury therefrom.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans,— J. -</p> <p>Statement op the Case.</p>

<p>Syllabus.</p> <p>1. Where a defendant is charged with having slandered the plaintiff, and liles a general denial, he is entitled to offer proof as to the language which he claims to have been actually used by him, and to show, if he can, that, as used, it imported no sinister meaning. And so, if the language imputed to the defendant is susceptible of an interpretation which would render it harmless, the defendant is entitled to offer proof, under the general denial, which would justify that interpretation.</p> <p>2. Where a person is charged with having passed a counterfeit bill upon another, and it appears, from other language, shown to have been used at the time, and from the surrounding circumstances, that it was meant to charge him with having passed such bill knowingly, and with intent to injure or defraud the person upon whom it was said to have been passed, and the charge, made and repeated in the presence of others, is shown to have been utterly without foundation, malice, upon the one hand, and injury, upon the other, will be presumed.</p> <p>3. In such a case, the plaintiff, being a boy of good character, past eighteen years of age, a verdict, in his favor, of one dollar, is worse than inadequate; it is equivocal, and will be increased.</p>

<p>APPEAL from the Seventeenth Judicial District, Parish of Ver'million — DeBaillon, J.</p> <p>On Motion to Dismiss Appeal.</p>

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

<p>Syllabus.</p> <p>1. There Is no necessity for the appointment of a special receiver to institute actions to recover from the officers and directors of a corporation, who hold a majority of its stock, property of the corporation which a stockholder charges them with having illegally diverted and appropriated to themselves, as salaries. The individual shareholder may himself bring such actions by making the corporation and the directors, against whom relief is sought, parties.</p> <p>2. Where a single shareholder charges that the directors of a corporation have, in the past, in bad faith, unjustifiably, and to the prejudice of the small holders, devoted its surplus earnings to the extension of its plant, and its business, instead of declaring dividends, and that they will continue to do so, there is no necessity for the appointment of a special receiver to obtain relief — the individual stockholder has full and adequate remedy through action in his own name.</p>

<p>Syllabus.</p> <p>1. Where an attachment is levied on the property of a corporation which is in an insolvent condition, and whose stockholders have been publicly -notiflec to meet for the purpose of considering the question of lta liquidation, ant such attachment is dissolved on bond, and, afterwards, by Judgment, and it does not appear that it was issued through malice, or that the property has been injured by reason thereof, or would have sold, in tne course, and for the purposes, of the liquidation of the company, to greater advantage if such attachment had not been levied, and no specific damages with respect to such property are proved, none will be allowed. ,</p> <p>2. Two. hundred dollar's, in the instant case, is held to bo a reasonable and sufficient amount to be allowed as attorneys fees for dissolving an attachment issued upon insufficient grounds, the amount claimed by the attaching creditor having been $2,224.70, and the matter having been appealed, to, and tried in, this court.</p>

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

<p>APPEAL from the Civil District Court, Parish of Orleans — Theard,</p>

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

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

<p>Syllabus.</p> <p>1. The heirs who sue their father for an amount received by nim from the succession of their late mother, and converted to his own use, are not bound to look first to the settlement of the succession of their grandfather, in another parish, the fact being that this succession was opened about twenty years ago, and had been, in effect, settled when plaintiffs brougnt suit to recover from their said debtor.</p> <p>2. While it is true that a court can not travel outside of the four corners of a deed to add new words by parol, relevant evidence explaining or placing the court in the situation of the parties themselves, at the confection of the deed, will be received if it does not vary or contradict its essential declarations. The evidence regarding “cash” was properly. received, to show the dispo'sition made of the amount, and to show that it was retained by the father, who, thereby, became indebted, in the first place, to his wife, and afterwards to her children.</p> <p>3. The testimony of witnesses was corroborated and its verity confirmed by the proceedings in matter of the settlement of the succession, and the circumstances confirming the right claimed. The evidence admitted was neither insufficient, nor was it illegally admitted.</p> <p>On Reheaking.</p> <p>Wé have heretofore passed upon every issue decided in the District Court.</p> <p>The decree of our former decision is modified so as to leave the question of the mortgage, and the vendor’s privilege claimed (on part of the property), open to be settled contradictorily between the heirs of Levy, Jr., and the heirs of Zeigler, in a suit over the proceeds of the said property, which is to be sold, or in such other action, under the law, as the parties may bi’ing.</p>

<p>Syllabus.</p> <p>An indictment which fails to aver that a person charged with perjury had been sworn as a witness in some judicial proceeding in a court possessing jurisdiction of the matter then pending, and testified falsely, is illegal and can pot sustain a conviction.</p>

<p>Syllabus.</p> <p>A canal company having contracted to furnish rice farmers a sufficient supply of water to irrigate their lands during the planting season, can not be held liable for damages which resulted from an insufficient supply, if the same is attributable to the inadequacy of the fall of rain from which source its canal was to be supplied.</p> <p>In such case the rice farmers are not responsible to the canal company for rent, inasmuch as the shortage of water caused them nearly a total loss of their crop; and the intervention of the act of God which released the latter from liability should not be so construed as to inflict punishment on the former.</p>

<p>Syllabus.</p> <p>1. When his case was called for trial, the defendant made a showing for a continuance, alleging in his affidavit that by an absent witness he could prove that he bought from him the property he was charged with having stolen.</p> <p>2. After the continuance had been refused, the District Attorney refused to admit that if the absent witness were present, he would testify as stated in the affidavit.</p> <p>3. The trial judge refused to grant a continuance, or to allow the affidavit to be 1-ead for the reason that he was satisfled from the return of the sheriff that witness was not and had never been in esse; and that the name was given by the accused only for the purpose of a continuance. The facts do not show that the trial judge was in error. It has been repeatedly held that the granting or refusing of a continuance is necessarily left, in great part, to the discretion of the nisi prius court.</p>

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

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

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

<p>Syllabus.</p> <p>1. In an action based on the abandonment of the -wife, a decree of separation from bed and board must precede the application for a divorce. 16 La., 26.</p> <p>2. Pretermitting this ground the court holds that while it is true that a wife’s refusal to follow her husband to a new abode is an abandonment, this is subordinate to another rule of law under which it has been repeatedly held that a marriage contracted in another State is not to be dissolved on grounds antedating the domicile in Louisiana. The wife never having been domiciled here, the question is one of jurisdiction. It has always been held that a husband or wife who acquires a domicile in this State can not maintain an action here against the absent spouse who never acquired a domicile in this State. 0 Ann., 317; 13 Ann., 1; 40 Ann., 28 ; 40 Ann., 457.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.</p> <p>On rehearing by Nicholls, O. J.</p>

<p>Q N APPLICATION for Writs of Certiorari and Mandamus,</p>

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

<p>Syllabus.</p> <p>A contractor having engaged to construct a church edifice for a religious corporation, and to furnish the necessary materials therefor, is without right to demand of the latter an alleged balance due, after the property has been conveyed to a loan and building company with his consent, and it has been again reconveyed to the church organization — said arrangement having been rendered necessary through the mutual fault of the church corporation and the contractor, and their rights and obligations having been adjusted by a compromise.</p> <p>On Application pop Rehearing.</p> <p>When there is no room to sustain the plea of res judicata> a right to sue is reserved as to claims, if one may have any against others than the defendants in so far as not covered by the prior decree.</p>

<p>Syllabus.</p> <p>Issues properly triable on appeal are not reviewable on habeas corpus.</p>

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

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

<p>Syllabus.</p> <p>1. A wife, separated in property from her husband by a Judgment, can invest her money in a corporation and become the owner of some of its shares and receive dividends free from claims on the part of her husband or of any of his creditors. The fact that the husband assisted in the management of the company, without charging therefor, does not have the effect of changing her title to her shares in the corporation or her rights to the dividend from bier ‘to him, nor does it reinstate the dissolved community.</p> <p>2. A wife separate in property should contribute to the extent of her ability to the expenses of the family and to the education of the children.</p> <p>S. It follows that the same rule should control the husband; that he may, though absolutely insolvent, work so as to contribute to the expenses of the family and to the education of the children. If this work should result in increasing the wife’s revenue to a moderate extent, this would not render her liable for the debts of her husband. The property and the business were hers. The husband chose to work for nothing so that she might get some return from the business. It all being hers, it is not subject to seizure for his liabilities. The management of the property was her management and not his, and the property and business of the wife served her interest and not his.</p> <p>4. The testimony of the wife, as to the loan she invested in the company or firm in which the husband is employed, is supported by corroborating circumstances sufficient to sustain the loan as having been made by her and not by her husband. Tim latter had limited means, but it does not appear that the wife’s loan to the company or Arm was taken therefrom.</p>

<p>Syllabus.</p> <p>Tlxe mortgage creditor who had undertaken to foreclose his mortgage filed a rule to set aside the probate order obtained by the administratrix to have the mortgaged property sold to pay the debts of the succession. The administratrix joined issue. The rule was decided on the day the property was offered for sale under the order of the Probate Court.</p> <p>The mortgage creditor did not move for an appeal, take out an injunction or do anything to have Ills right recognized as a seizing creditor. On the contrary, he bid in the property offered under the probate order, and, thereby, abandoned his rights under his order of foreclosure.</p> <p>Held : That the property mortgaged was properly assessed for the costs, including the commission of the administratrix and the fee of her counsel as fixed by the court on appeal.</p>

<p>Syllabus.</p> <p>1. One who remains silent, while bis property is sold in another State, will not be estopped from disputing a title so acquired, if -the adjudicatee is not an innocent third person, but is one who is seeking an undue advantage, in disregard of an instrument in writing signed by him acknowledging the property as belonging to the one against whom he claims an estoppel. Plaintiff’s silence, under the eircumstdnces, did not have the effect of’eon- ■ cealing any act or of abandoning his title of which defendant was fully aware, as he, defendant, had, in effect, acknowledged this title by deed.</p> <p>2. The testimony of plaintiff’s witnesses is contradicted by that of defendant’s witnesses, and, as a result, defendant’s title is not sustained. This defendant having withdrawn a prior suit and having entered inro an agreement to share the winnings of the races of the horse claimed, the court holds that he could not acquire title by having the horse sold as belonging to another than plaintiff, with whom defendant had entered into an agreement regarding the winnings, and, in effect, had admitted him, plaintiff, to be the owner.</p> <p>3. An amount is allowed as rental for tlie use of the horse while in defendant’s possession.</p> <p>4. The fee of plaintiff’s attorney is not allowed.</p>

<p>Syllabus.</p> <p>1. A widow in community who is perfectly able to insist upon a prompt liquidation and partition of a succession which is under administration, who does not do so, but permits repeated annual aeconnts of administration to be homologated without opposition, can not hold the administrator personally responsible on the ground that the prolonged administration had resulted in injury instead of benefit to the succession. She can not speculate on the results.</p> <p>2. An administrator making a number of partial payments on interest bearing debts due by the succession should apply the rule of partial payments to the debts, and not allow interest to run to the date of final payment, and then deduct the total amount of partial payments.</p>

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

<p>APPEAL from the Civil District Court, Parish of Orleans.— Sí. Paul J.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish.of Iberia— Yoorhies, J.</p>

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

<p>APPEAL from the Civil District Court, Parish of Orleans — Theard,</p>

<p>Syllabus.</p> <p>1. Act xt>3 of 188S gives to municipal corporations an additional, and more summary, remedy than had previously been afforded for the enforcement of the obligations of contracts to which private corporations are parties, and which relate to the paving, repairing, reconstructing, or care of any street, highway, bridge, culvert, levee, canal, ditch, or crossing belonging to, or under the control of, such municipal corporations.</p> <p>2. Whether the obligation sought to be enforced is made sufficiently definite by the contract, or can be made so by the evidence, to be susceptible of enforcement by mandamus, as provided by said act, is a matter to be determined by the court, in each case, as presented.</p> <p>3. The defendant corporation, having bound itself, by contract, to keep a street, upon which it operates its railroad, in good order, the city, thereafter, made a contract with a paving company, to which the defendant was a party, whereby the paving company assumed the same obligation, for a limited period, and no call was made, during said period, on the defendant, but the street was neglected and allowed to fall into a condition of abnormal disorder, requiring an unusual expenditure to put It in good order. Upon the case as presented, it is held that the city should restore the street to a condition of good order before the defendant can be required to keep it so, though the defendant, in another action, may, perhaps, be liable to contribute an amount equal to the expenditure which it might have been obliged to make under its contract.</p> <p>4. The obligation to keep a street in good order, necessarily involves repairs, and repairs may involve the use of new material, and this may be called reconstruction, but it is, nevertheless, included in the obligation to keep the street in good order.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans. — ■ Theard, J.</p> <p>On the rehearing by Breaux, J.</p>

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

<p>APPEAL from the Civil District Court, Parish of Orleans — Theard,</p>

<p>Syllabus.</p> <p>1. Mandamus will not lie against a public officer, where there is no law requiring him to act.</p> <p>2. Police juries are required to adopt estimates of expenses for one year at a time, and each ordinance fixing licenses must be based upon the estimate for the year for which the license is fixed.</p>

<p>IN RE Jean Miramon Applying for Certiorari, or Writ of Review, to the Court of Appeals, Parish of Orleans,! State of Louisiana.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish of Iberia— Yoorhies, J.</p>

<p>APPEAL from the Seventeenth Judicial District, Parish of Vermilion.— DeBaillon, J.</p> <p>On Motion to Dismiss Appeal.</p>

<p>Syllabus.</p> <p>1. The right of appointment of clerks by the recorders of New Orleans in August, 1809, has to be tested by neither Act No. 154, nor 174 of 1894. Those acts were superceded by later acts. (Peters vs. Bell, 51st Ann., 1625).</p> <p>2. Where two parties join in a petition for a mandamus to tile Finance Committee of the City Council to certify to the City Comptroller their claims for salaries as clerlis in the recorder’s court, and to the Comptroller to issue warrants for the same to the City Treasurer, the application must be refused when, assuming that the writ should properly issue as to one of the relators, the evidence does not disclose which of the two relators is the one entitled to it.</p> <p>3. The clause in the schedule of the charter of New Orleans, of 1896, continuing in office the various municipal officers and eouneilmen elected at the general election in April, 1886, until the expiration of the term for which they were elected, and their successors were duly qualified, does not refer to the clerks in the recorder’s courts; they were not elected in April, 1896, but were appointed by the recorders, subject to removal at any time by them.</p>

<p>Syllabus.</p> <p>1. The action of the Board of Arbitrators, of which plaintiffs complain, presents nothing seriously objectionable. After the date of the irregularities charged by plaintiffs, of which they had complete knowledge at the time, they concluded themselves by not raising any objection, also by prolonging the time agreed upon originally within which the Board was to come to a conclusion regarding the issues and make a return.</p> <p>I’laintiffs are also bound by the fact that they entered into a compromise with the defendants regarding certain issues, and had the result entered as part of the findings of the Board of Arbitrators. Having sanctioned the Board’s proceedings, by silence and conduct, it is too late to raise objections to the finding on the grounds set forth.</p> <p>2. When fear enough is brought to bear, as to operate on a person of ordinary 'firmness regarding his reputation or fortune, it will vitiate and invalidate a contract on account of it, and this although the party in whose favor the contract is made did not bring the fear to bear and even though he was ignorant of it. Contracts made voidable through error or violence may be avoided by exception to suits brought for their enforcement.</p> <p>3. Acts pleaded as constituting a ratification, in order to be of any avail, must either directly, or by legitimate implication, show that ratification was the intention.</p> <p>4. The fees of arbitrators are to be considered to some extent, at least, with reference to the amounts found to be due by them. While the services rendered by the Board required time, patience and diligence, and knowledge of business methods, they were not of greater value, when considered on the basis before stated, than that fixed by the judgment appealed from.</p>

<p>APPEAL from the Fifteenth Judicial District, Parish of East Baton Rouge — Brunot, J.</p> <p>On the rehearing by Monroe, J.</p>

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

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

<p>APPEAL from the Twenty-Second Judicial District, Parish of St. Bernard — Single, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — • King, J.</p> <p>On the rehearing by Blanchard, J.</p>

<p>Syllabus.</p> <p>1. There is a privity oí interest between the insured and the one to whom h«> assigned the policy sufficient to enable them to join in a suit to have their rights recognized.</p> <p>2. When a corporation, by its action, leads a policy holder to believe that it will issue notices of the maturity of its premiums, it is without right to invoke a waiver made by the insured at the time he was insured to the prejudice of the one to whom he assigned the policy.</p> <p>3. This assignee had always received notice through the agency of persons connected with the company, and as to one of their agents, though no longer in the company’s employ, he continued to see that the assignee received notice. The evidence does not show that the assignee was aware that he, this agent, had been discharged. Held : That notice is the rule, and that the company will not be held relieved from the necessity of giving notice unless it clearly appears that it was jus tided in not doing so.</p> <p>4. With reference to time. The company had not been exact in computing it, and received premiums after maturity ; besides, thirty full days had not elapsed when the forfeiture was declared. Held : That assignee Is entitled to have his policy reinstated upon his payment of all the premiums due, immediately after the judgment of the court becomes final.</p>

<p>Syllabus.</p> <p>1. When lands granted to a railway company within “indemnity limits,” are required by law to be selected by the grantee “under the direction of the Secretary of the Interior,” and the selection has been made, according to law, the lands so selected became subject to State taxation, without further aclion by the Secretary of the Interior, and without being patented, and may be sold for the recovery of taxes properly assessed in the name of the grantee, subject to such liens and claims as the United States government may have, as contemplated by the act oí Congress, approved July 10, 1886.</p> <p>2. When lands are legally assessed, and payment of taxes is demanded of the apparent owner, who disclaims title, and refuses to pay; and said lands are thereafter sold, for the recovery of the taxes due, the fact that the officer, by whom the assessment was made, is a member of a Arm to whom such property is adjudicated will not, of itself, invalidate the sale. Nor will such sale be annulled, because it appears upon the trial that five years after it was made, the officer by whom it was made acquired an Interest in such property, from the adjudicatees, there being neither allegation nor proof of fraud as against sucn officer.</p>

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

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

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

<p>Syllabus.</p> <p>Tlie judgment is affirmed at appellee’s costs (for reasons given in the principal decision) except as to the two amendments made in the judgment in the principal suit.</p>

<p>Syllabus.</p> <p>1. Unless error, fraud or latent ambiguity be averred, parol testimony is inadmissible against or beyond what is recited in a written act, or as to what may have been said before, or at the time of making it, or since.</p> <p>2. Application is made of the principle upon which rests the maxim: “Expréselo imius personae, rel rei, est exchislo alterms.”</p> <p>3. Nor can a party be permitted to accept and enjoy the benefits of a contract and at the same time repudiate Its obligations.</p> <p>On Reheaking.</p> <p>1. Where a contract is made between persons professing to act for themselves and not as representatives of others, and one of the contracting parties seeks to fix a liability arising therefrom upon an alleged principal of the other, the burden of proof rests upon the party, so seeking, to show that the contract was made by the other on behalf of such principal and inured to the benefit of the latter.</p> <p>2. The meaning of a word, used in a contract, is to be ascertained by considering it in its relation to the context, -and -to the immediate subject matter of such contract, and not by attributing to it an absolute signification, irrespective of the connection in which it is used.</p> <p>3. Where a provision inserted in a written contract by one of the contracting parties, is susceptible of two interpretations, the other contracting party is entitled to the interpretation most favorable to him, but parol evidence maybe admitted without special plea, to explain the ambiguity.</p>

<p>APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.</p> <p>Statement of ti-ie Case.</p>

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

<p>Syllabus.</p> <p>1. Article 85 of the Constitution of 1898 vests this court with jurisdiction of all cases wherein a law of the State, or an ordinance of a municipal corporation, has been declared unconstitutional, and this without regal'd to the moneyed demand of the action.</p> <p>2. But in a case where the amount involved is $2,000.00 or less, with other defenses raised this court has naught to do. It can concern itself only with the single question: Is the decision appealed from declaring the law or ordinance unconstitutional correct?</p> <p>3. As to other issues raised and determined in a ease involving $500.00 the appropriate appellate tribunal is the Court of Appeals.</p> <p>4. At the request of counsel for one charged with crime, another signs his appearance bond as security. The principal puts up a sufficient sum of money in his counsel’s hands to protect the surety from loss and then absconds. Suit against the surety is brought on the forfeited bond. Citation on the principal could not be had because his domicile is out of the State and his whereabouts unknown. The surety pleads the unconstitutionality of the statute giving the plaintiff a right of action on the bond. Held: The surety thus protected has no real interest in the result of the case; he is nominally only the defendant; the real defendant is the principal on the bond, and the real security of the bond the money on deposit. Held, further, that the defense of unconstitutionality is really that of the principal on the bond and in his interest only, and that the principal, a fugitive and at large, can not set up the unconstitutionality of the law under which he is being proceeded against on a-bond which secured his release from custody.</p>

<p>Syllabus.</p> <p>In an action to compel the defendant to accept a title tendered, the property, though in the name of plaintiff by title on the face, conveying it to her as dotal, was really not dotal, but paraphernal; and in consequence she had the right to sell it with the authorization of her husband. C. C. 2300.</p> <p>Although it was conveyed to her, plaintiff, by the father of her husband just prior to her marriage, the transfer was really that of her husband to her, because he was the creditor of his father, who sold him the property, but placed it in the name of his wife a day or two prior to the son’s marriage.</p> <p>It being a donation by the son to the plaintiff, who was about to become his wife, the property was paraphernal. C. C. 2338.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.</p> <p>On application for rehearing by Monroe, J.</p> <p>Statement op the Case.</p>

<p>Syllabus.</p> <p>A preliminary injunction is properly refused to a railroad corporation which has brought a suit against the city of New Orleans to have adjudged to belong to it a certain railroad franchise which the Council has advertised for sale— the plaintiff alleging that it had been and was still in possession of, and enjoying the franchise. (Seymour vs. Bourgeat, 12 La. 123; Morrison vs. Larkin, 26th Annual, 700.)</p>

<p>Syllabus.</p> <p>1. A contract containing several clauses, evidencing a business agreement between the contracting parties, is to be viewed as a whole and the intentions of the parties gathered from all the parts thereof, to the end of giving practical effect to the instrument in the way in which such contracts are ordinarily understood.</p> <p>2. Under the terms of this contract, Held: That no completed transaction as to the sale and purchase of the growing sugar cane took place when the contract was signed; that the cane grower did not become the mere agent of the factory to cut the cane and deliver it at the place agreed upon; that the cane remained his property and was at his risk and expense until delivered, at the place named, in the condition stipulated for in the contract.</p> <p>3. But the factory was charged with the responsibility of providing at the place of delivery (the tram switch) sufficient cars, between specified dates, in which to load the cane. Failure in this particular, the cane grower being ready to deliver and offering to deliver, makes the factory liable for resulting losses.</p> <p>4. Where one party offers to perform a condition precedent, and is prevented by the other, the offer, under proper circumstances, will be treated as performance, and the conduct or omission of the other as excusing a useless effort to perform.</p>

<p>Syllabus.</p> <p>1. If the suit could not originally have been brought in the United States Circuit Court for want of jurisdiction, a fortiori, it could not be transferred to that court from the District Court.</p> <p>2. Where a complainant seeks to force a railroad company to afford it facilities equal to those given to a favored rival, the court may issue a mandamus to compel it to serve both alike.</p> <p>3. A decree made peremptory, which requires a common carrier to serve conflicting interests without preference, does not have the effect of denying the equal protection of the laws to the defendant railway company.</p> <p>4. Where it appears that more of a tender than made of cars for transportation would have been a mere waste of time and money, a useless expenditure of either is not required.</p> <p>5. While it is true that the court has no legal right to manage the railroad or direct the details of its operation or make contracts for the railroad company, it may Issue a writ of mandamus to compel it to perform a duty clearly defined under the law.</p>

<p>JP PPEAL from the Civil District Court, Parish of Orleans — Ellis,</p>

<p>APPEAL from the Civil District Court, Parish of Orleans.— Ellis, J.</p> <p>The opinion of the court, on the motion to dismiss, was delivered by Watkins, J.</p> <p>On the merits by Nicholls, O. J.</p> <p>On Motion to Dismiss Appeal.</p>

<p>Syllabus.</p> <p>Where property taxpayers lile a suit, under Act 10G of 1892, and fail to cause the Police Jury to be cited, and the Police Jury takes no notice of such suit, and it is dismissed, at the instance of the plaintiffs, and of a defendant, who was cited and who answered, the Police Jury cannot, thereafter, merely by filing an answer, reinstate and reopen the case; and a writ will issue, at the instance of the defendant who was cited,' prohibiting further proceedings in such case upon the theory of its being a matter still pending and undetermined.</p>

<p>Syllabus.</p> <p>No personal liability attaches, in New Orleans, to the owner ol property for the paving of the sidewalks in front of the same, by the city authorities.</p> <p>The property itself is liable only for its proportion of the total cost of the work, -and not for the cost according to its frontage of the paving along the front of the square on which it is situated. (Barber Asphalt Paving Co. vs. Watt, 51 Ann., 1346).</p>

<p>Syllabus.</p> <p>1. It is not sufficient for a person about to cross or walk along a railroad track, or into or upon a railroad bridge, or trestle to stop, look and listen at any time prior to doing so. The stopping, looking and listening must be done at such a time and place as to make it effective and sufficient to save the situation. When the law requires steps of diligence and caution it will not be satisfied by the substitution therefor of vain and useless acts. (Snider vs. Railroad, 48th Ann., 12.!</p> <p>2. A person selecting for his own convenience a dangerous route to a city instead of a safer one, and in passing into a bridge or trestle (a place of danger according to his own theory) with full knowledge of the dangers he might encounter from doing so, voluntarily takes upon himself risks, the results of which he can hot shift at will upon other parties.</p> <p>8. It is not enough that a person voluntarily placing himself in a position requiring steadiness of nerve should entertain the hope or belief that he has the necessary firmness. The belief must be justified by the fact. I-Ie can-hot speculate on the subject.</p> <p>4. Parties claiming damages for personal injuries are sometimes relieved from the charge of contributory negligence by reason of having in a case of sudden danger had recourse to injudicious methods for escape, but those are cases where the first act upon which the charge is made to rest is this erroneous selection of a way to safety, not where the party is already chargeable with acts of contributory negligence of which this particular act is the mere supplement.</p>

<p>Syllabus.</p> <p>When a foreign insurance company is charged by the authorities of the city of New Orleans, the place of the domicil of the company and of its State agency, with a city license equal in amount to the license charged by the State authorities, for a State license, and it seeks to reduce the license on the'ground that part of its policies were issued in localities other than New Orleans, it assumes the obligation of showing by the facts and circumstances under which they were issued, that it came under a liability to a-license to the other political corporations by reason of the issuing of the policies there, and that it had paid the same.</p> <p>On Application foe Reheaeino.</p> <p>Where an insurance company is sued for a license tax by the city of New Orleans and it is made to appeal- that it has paid a municipal tax license elsewhere in the State on business done and premiums collected outside of the city of New Orleans, and that the claim of the latter is predicated in part upon such business done and premiums collected outside of its limits, the company is entitled to claim a credit for the license tax so paid on premiums collected outside of the city.</p>

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

<p>Syllabus.</p> <p>Where an order is made granting “a devolutive or suspensive appeal, in the alternative,” the appellant is authorized to perfect one appeal, and if he fails to file the transcript in this court within the legal delay, and no extension of time is applied for, or granted, such appeal will be dismissed. What his rights may be with regard to the taking of another appeal is a question which is not presented.</p>

<p>APPEAL from the Eighteenth Judicial District, Parish of Lafourche. — Oaillouet, J.</p>

<p>Syllabus</p> <p>Article 230 of the Constitution offers exemption from taxation to certain railroad companies on condition that they relinquish aid previously voted them by the parishes, wards, or municipalities, or that they consent to the resubmission o£ the question of granting such aid, if petitioned for by onetln'rd of the property taxpayers. But the property taxpayers are under no obligation to present such a petition, nor are the companies under any obligation to consent to the re-submission; and a failure as to either the petition or consent, within the time prescribed, leaves only the alternative of the exemption or the aid, and the companies, in such ease, can not enjoy both.</p>

<p>Syllabus.</p> <p>Ox Motion to Remand.</p> <p>1. Where the record of a cause, or material part of the same, is lost and the appellant, through no fault or negligence on his part, is unable to bring up the case so that the merits thereof on appeal may be examined, the cause 'will be remanded for a new trial.</p> <p>2. But an order is made directing the clerk of the District Court to continue his search ior the missing papers for a period of thirty days, and only in the event of not finding same in that time is the decree avoiding the judgment and ordering a new trial to be effective.</p> <p>3. District judges admonished as to the necessity for adopting and enforcing stringent rules relative to the safe and orderly keeping of records, and suggestions on this line made.</p> <p>On the Merits.</p> <p>Where the sheriff issues notice that he has seized a certain parcel of land, which he describes, together with the improvements thereon, and advertises the property, as thus described, for sale, an injunction will lie at the instance of any third person, claiming ownership and possession, to prevent the sale oí another and distinct parcel of land, not included in the description, although the improvements on the latter may correspond to such description.</p>

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

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

<p>Syllabus.</p> <p>Tie plaintiff carries the burden of establishing by a fair preponderance of proof the certainty of his cause of action; and in case the issue of fact is left in doubt in any material .respect, the verdict of the jury in favor of the defendant will not be set aside and a judgment rendered in plaintiff’s favor.</p>

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

<p>IN RE II. B. Jones et als. Applying for Certiorari, or Writ of Review, to the Court of Appeals, Eirst Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss the Appeal.</p> <p>The value ,of the property as shown by the preponderance ot proof brought the case within the limits of the appellate of the Supreme Court jurisdiction.</p> <p>On the Merits.</p> <p>3 sale without a price fixed and determined by the parties, not binding as a sale, may yet be binding as a donation, if it does not contain anything contrary to public order and no injury results to others.</p> <p>■.TRe act was not simulated, and, therefore, did not fall witlilu the grasp of Statute 5 of 1884. The contract was a gratuitous donation which the owner had the right to make if it did not trench on the right of the forced heir. The undue influence charged to have been exercised by the donee over the donor is not sustained by preponderance of testimony, and, therefore, the suit falls on that score also.</p>

<p>APPEAL from the First Judicial District, • Parish of Caddc— Land, J.</p>

<p>APPEAL from the Oivil 'District Court, Parish of Orleans— Theard, J.</p> <p>On the application for rehearing by Breaux, J.</p>

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

<p>Syllabus.</p> <p>1. It is the fluty of the tax collectors to proceed to the enforcement of delinquent taxes by sale of the real estate affected by the same when the time fixed by law for doing so is reached. The fact that it may be at that time in the possession of the sheriff under a seizure is no obstacle to this being done.</p> <p>2. Where, pending an injunction against the sale of property which is under seizure by the sheriff, it is sold in enforcement of taxes and the adjudieatee has been placed in possession under a recorded title, and the time for redemption has expired, the sheriff cannot be forced upon the dissolution of the injunction to proceed with the sale of the property under the seizure.</p> <p>The rights of the adjudieatee at tax sale can not be thus ignored.</p> <p>The principle lying behind Articles 2149 and 2453 of the Civil Code does not apply to such a case.</p>

<p>Syllabus.</p> <p>1. In reference to severance, the orders granted were not prejudicial to the* appellant, as the severance applied was granted, though not on his motion, before the opening of the trial.</p> <p>2. On an appeal from the verdict of a jury and the sentence of Criminai District Court, the Supreme Court is not vested with authority to review the facts-by Article 94 of the Constitution of 1898.</p> <p>3. The court declined to review questions of facts and examine the testimony reduced to writing, and made part of the transcript, for the purpose of determining whether the testimony authorized a conviction or the refusal of a new trial.</p> <p>4. Jurors may separate for a few minutes in cases of necessity, when placed in charge of an officer who has them under his eye, and does not suffer them, to speak to any one.</p>

<p>IN RE C. Harrison Parker, Applying for Oertiorari, or Writ of Review to the Court of Appeals, Parish of Orleans, State of' Louisiana.</p>

<p>Syllabus.</p> <p>The architect who prepared the plans and specifications of a building, and after-wards became tho contractor, and agreed with the owner to put up the building according to plans and specifications, is responsible for any defect or insufficiency in the specifications. He can not escape responsibility for</p> <p>' ' defectiveness of the work by taking the ground that the'defect was in the specifications, and not in the work. He is responsible for both. The Surety Company which signs his bond to guarantee the safe execution of his contract as an “architect and contractor” is equally as responsible as the architect and builder for the defectiveness of the specifications, or the work, where the “architect and builder” are one and the same person.</p> <p>The agreement was between all the parties (the oivDer and the contractor, and of which agreement the Surety Company was aware when it signed the bond), that payment would be made each month on the certificate of the superintendent showing the proportion of the work done. Effect is given to this certificate issued without fraud or intention of partiality, especially as the Surety Company itself agreed to some of the payments as made. Estimates can not be expected to be absolutely correct.</p> <p>Plaintiff tendered the amount it owed and offered its bond in payment of the . . claims of material men. This proceeding was in concurso and precludes . prescription.</p> <p>A tender must include interest, principal and costs incurred to the date of the tender. It must appear that the tender declined included the whole amount, or that the one tendering was ready to deliver principal, interest and costs.</p> <p>As to one of the claims, the judgment was not sustained by the evidence, and as to that claim the judgment is amended at the creditor’s costs on appeal.</p> <p>For reasons assigned in the original case of the Louisiana Molasses Company, Limited, vs. Louis LeSassier et als., the judgment as therein amended is affirmed.</p> <p>On Application of Louisiana Molasses Company foe Reconsideeation and Amendment of Deceee as Relates to Costs.</p> <p>In forming the ooncurso, plaintiff should deposit the amount it, at the time, acknowledges was due. Otherwise the costs and interest will be due by tbe debtor, although the amount he failed to deposit was small as compared with the amount deposited.</p>

<p>Syllabus.</p> <p>1. The property owned by two persons, but assessed exclusively in the name of one was considered as to its value, and it was found that the taxes paid thereon were charged properly, in proportion to the interest of each of the owners.</p> <p>•2. The value of rental was not larger than fixed in the judgment of the District Court.</p> <p>3. The “bridge fund” was properly expended and sufficiently accounted for.</p> <p>4. The fee of attorney was properly charged to the interest safeguarded by the services; and the costs of the settlement of the succession, in which the minor was concerned, were also correctly passed upon in the court below.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.</p>

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

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

<p>Syllabus.</p> <p>1. Whether or not a Sunday advertisement of a judicial sale is legally sufficient must be determined by tlie codal and statutory provisions of the law of Louisiana.</p> <p>2. As to immovable property, the only requirement is that the advertisement must appear once a week for the full term of thirty days. The law does not say thirty judicial days. If it did, then Sundays and legal holidays would have to be excluded. Where the law has made no exception it is not the province of the court to supply one.</p> <p>3. The law is' fulfilled when the advertisement appears “once a week” during the publication period. Sunday is a day of the week — the first day of the week. Its' appearance, then, on Sunday is an appearance during the week of which "Sunday is the first day.</p>

<p>IN RE B. A. Madden Applying for Certiorari, or Writ of Review, to the Court of Appeals, First Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>The Mississippi river in 1897 menaced the city of New Orleans with inundation. The protection levee at the upper line of the city, running from the river bank to the swamp, required strengthening and raising. The fast rising waters created an emergency and to meet it prompt action by the Levee Board was necessary. There was no time to take out regular expropriation proceedings and so the officials entered upon plaintiffs’ vacant lots bordering the levee and excavated from the same earth needed to raise and strengthen the levee at and near that point. A suit for damages followed and pending it the Levee Board caused the lots to be refilled. Held, the circumstances warranted the entry upon the property and the takifig of the earth for the purpose named; but the Board owed it to plaintiffs to refill the lots plus rather than minus. The refilling is found to be scant, and for this deficiency plaintiff is entitled to recover, as also for damage to the property by reason of restricted ingress to and egress from it, occasioned by works of defendant Board.</p>

<p>APPEAL from the Third Judicial District, Parish of Lincoln— Barlssdale, J.</p>

<p>APPEAL from the Twenty-Fourth Judicial District, Parish of East Feliciana — Kilbourne, J.</p>

<p>Syllabus.</p> <p>1. Where judicial interpretation oí a tax statute is necessary to determine whether or not the tax as demanded is imposed by law, the question of legality vel non of the tax is raised, and the appeal taken may be to this court only.</p> <p>2. It is competent for this court, acting on a case brought before it by its writ of review from the Court of Appeals, to pronounce void the judgment of the latter court lor want of jurisdiction. But this court declines to pass upon the merits of the case, coming before it in this irregular and roundabout way, when by proper action taken to bring it here on appeal from the court of the first instance, its adjudication upon the merits could have been had in the way provided by law.</p>

<p>Syllabus.</p> <p>1. Masters and employers are answerable for the damage occasioned by their servants and employees in the exercise of the functions in which they are employed.</p> <p>2. It is negligence to drive into a vehicle while standing still on the side of the roadway, when there is ample room to pass without colliding with it.</p> <p>3. If there is not room to pass, it is the duty of the driver of the approaching vehicle to stop and call out to the driver of the other vehicle to move out of the way.</p>

<p>Syllabus.</p> <p>1. One not ready himself to contract in. reference to a matter as to which proposals had been invited, is not in a position to enforce a penalty against the. other party submitting the proposal, for not contracting.</p> <p>2. A penal clause in a contract is considered by the law in the nature of compensation for the damages which the creditor sustains by the non-execution of the principal obligation.</p> <p>3. But the penalty being stipulated merely to enforce the performance of the-principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance.</p>

<p>Syllabus.</p> <p>1. The privilege granted by Article 3217 of the Civil Code to secure the pay-merit of debts due for necessary supplies furnished to any farm or plantation, and debts due for money actually advanced and used for the purchase* ol necessary supplies and the payment oí necessary expenses for any farm or plantation on the crops of the year, and the proceeds thereof, is a privilege upon a movable, is so declared to be by the law granting it, and does not need to .be registered to make it effective. (Flower & King vs.v Skipwith, 45th Ann., 895 ; I-Iewitt vs. Williams, 47th Ann., 752.)</p> <p>3. The seizure and sale of a plantation with a crop thereon standing by the roots, at the instance of a creditor holding a special mortgage antedating a debt due for supplies furnished to cultivate the crop, does not cut off the privilege upon the crop.</p> <p>'The crop passes to the purchaser as part of the realty without personal liability on his part to the furnisher of supplies, but he takes it cam onere.</p> <p>He stands quoad the privilege in the shoes of the original owner, and as if the sale had not taken place.</p> <p>3. A suit brought via ordinaria by the furnisher of supplies, while the crop is still standing by the roots, against the parties to whom the supplies were furnished and the purchaser of the property, at the judicial sale, seeking contradictorily with those parties a personal judgment against the former, a recognition of his privilege on the crop, and the enforcement of the privilege, should not be dismissed on an exception of no cause of action by the purchaser of the property, on the ground that the crop should have been sequestered or attached.</p>

<p>Syllabus.</p> <p>1. Whore the evidence discloses that the electric street car which struck plaintiff was running at a moderate and safe rate of speed, was under the control of the motorneer, that he was sounding his warning gong, that he stopped the car in a brief space óf time and distance, and from the circumstances attending the accident, it is evident she ran into‘the car without paying any heed whatsoever to its approach, she can not recover.</p> <p>2. It is the duty of a person approaching a railway track to pause and look and listen and govern himself with prudence according as the situation demands.</p>

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