Volume 6 — Teissier's Louisiana Reports

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from Civil District Court, Division "D."</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>1. A defendant may move to set aside an attachment, though no property be actually attached; the mere fact that an attachment has issued gives the defendant the right to ask for its dissolution.</p> <p>2. The articles authori: ing the writ of attachment were not intended to afford a conservatory remedy in all cases in which a creditor had suspicions which are not afterwards sustained by sufficient affirmative evidence of intention to defraud. The fraudulent intent must be shown.</p> <p>8. In a case involving charges of fraud, great weight will be given to the-conclusions of fact of the district judge who heard and saw the witnesses.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>1. Where, under Act 134 of 1900, the owner in a building contract fails to exact a bond from the contractor, or, having exacted a bond fails to record the same in the manner and within the time provided by the Act, he shall be deemed in default and shall be liable to sub-contractors, workmen, laborers, mechanics and furnishers of materials to the same extent as the surety on the contractor’s bond would have been.</p> <p>2. Paragraph 3 of Sec. 1 of the Act supra which requires those who have claims -against the contractor growing out of the building contract, to file with the owner and to record a sworn statement of their claims within forty-five days after the completion of the work, refers only to cases where the owner has complied with the law by taking and recording a bond. Where no bond, however, has been taken and recorded the owner’s liability is absolute.</p>

<p>Under paragraph 3 of Section 9 of Act 04 of 1904, known as the Negotiable Instrument Act, a check is payable to hearer when the name of the payee does not purport to be the name of any person.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Certain real property was adjudicated at a judicial sale to one who had never consented to be the owner of it or to incur the liability of his part which would have resulted had he become the adjudicatee. He had never signed the deed of sale and had never assumed ownership of the property. He never had the least right, title or interest in or to the property or the proceedings which provoked the sale. The property belonged to another who had not authorized the adjudication to be made in the other's name. The latter had no connection with the transaction from beginning to end except that subsequent to the adjudication he executed a counter-letter disclaiming that he had not then or ever had any interest in the property and that it was really and truly the property named in the counter-letter. Subsequently and before the registry of the counter-let ler the wife of the ostensible owner died, leaving a minor child, the issue of her marriage with the apparent owner. This minor asserts title ,as owner, to that portion of the property falling to him as the heir of his deceased mother and claims a legal mortgage on so much of the property as goes to the father, the apparent owner.</p> <p>HELD: That under the exceptional state of facts and exceptional conditions exhibited by the record and freed as they are from all •questions of fraud or wrong-doing, the good faith of all parties being conceded, the minor, may assert no greater rights on or to the property than culd his father, the apparent owner.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Issues of fact only are involved herein.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Question of fact only is involved in this suit which is one sounding in damages for personal injury. The damages awarded are reduced.</p>

<p>1. All the clauses of a written contract should be interpreted with reference to one another, giving to each the sense resulting from the whole, and effect must be given, if possible, to all clauses.</p> <p>Ü. If an employer, in discharging an employee, assigns a particular cause of complaint, he will be held to it, but, when no cause was assigned, he will be thereafter allowed to urge his ground of complaint which, . if sufficient in law and under the terms of the contract of employment, will protect him.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>When in a suit attacking the genuineness of the signature of the maker of a note it is shown that such person had no uniform way or method of signing, sometimes writing out in full his Christian name, «nd at other times writing only his initials, and reputable witnesses beside, testify that they hav'e often seen the party sign his name and believe the contested signature to be his, and the comparison of the contested signature with the admitted ones, satisfying the Court of the genuineness of said contested signature, judgment must be given accordingly.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>1. Where a thing .whereof there is an owner passes into a situation antagonistic to the law, he may lose his ownership in it simply because the thing has offended. The punishment, if such it be called, falls on the thing even though the owner be not personally guilty of the crime.</p> <p>2. Things are condemned as guilty for their active or passive contraventions, by a fiction of laiv, is deemed the fault of the things them-ventiors, by a friction of law, is deemed the fault of the things themselves; they are held responsible for offenses of omission or commission, imputed to them a& though they were conscious and accountable; they are arrested and proceeded against as defendants; they are acquitted or condemned as though they were competent to stand in judgment for their violation of statutes.</p> <p>3. The guilt of a thing is entirely without reference to its ownership. It does not matter whether there is an owner at all, for an abandoned thing might become guilty by the violation of a statute. There may be an offending owner behind an offending thing, or there may not; it is not essential that there should be. The owner may be perfectly innocent of any offense, yet his property be guilty. He may have entrusted it to an agent without authorizing the latter to use it in contravention of law; yet, if thus used, it might become forfeit.</p> <p>Hence, a judgment of forfeiture pronounced against an offending thing — a thing found guilty of contravening a statute which has forfeiture as its sanction, is not a taking of “private property for public use wtihout compensation.</p> <p>4 Section 26 of Act No. 52 of 1904, which prescribes the forfeiture of all vessels with their cargoes violating the provisions of said act, and which act is in relation to the encouragement, protection, regulation and development of the oyster industry of the State, is not in violaion of Art. 167 of the Constitution of the Stae of Louisiana, and of Art. V of the Amendments to the Constitution of the United States, which inhibit the taking of private propery for public use wihout just compensation.</p> <p>5. 1\ here the owner of a vessel which has been seized and is being proceeded against ,by an action supra, for forfeiture under the statute, in rem appears in the proceedings by bonding the vessel, and subsequently files an answer, appears by counsel and offers evidence and is otherwise heard, it may not be said, though the owner may not have been formally cited, that he has been denied due process of law.</p>

<p>Questions of fact only are involved herein.</p>

<p>1. If an insurer with full knowledge of facts which would avoid the policy, nevertheless executes and delivers it, or if, after its delivery, he acquires knowledge of such facts and subsequently treats it as valid and binding, by any acts, words or conduct which might reasonably lead the insured to suppose himself to be still insured, the insurer will have waived the defect and be estopped to assert it.</p> <p>2. Notice to a general agent is notice to the company. And this comprehends knowledge acquired of facts after the execution of a policy, which, unless waived, would avoid it, as well as of inaccuracies of statements by the applicant and of the existence of other facts priot to the execution of the policy, the omission to state which would otherwise vitiate it.</p> <p>3. Where a policy of insurance as issued does not conform with the contract which it purports to evidence a court of equity may reform the instrument.</p> <p>4. Where a Court exercises the functions of both law and equity a reformation may be had at the same trial where a recovery is sought under the contract in an action at law.</p> <p>.5. As the purpose of the action for reformation is not to vary or eon-tradict the contract of the parties, but to preclude the party who had framed it from relying upon incorrect recitals to defeat it when he himself had drafted these recitals and was morally responsible for their truthfulness, parol evidence is admissible to show that the contract really made had not been correctly incorporated into the instrument by accident or mistake in framing it.</p> <p>G. Where the insurer denies all liability on tbe ground that no valid contract exists and refuses to pay, it is useless and unnecessary to make the preliminary proof of loss.</p> <p>7. The defense of fraud and false swearing in a statement of loss requires that the swearing must not only be false, but knowingly and wilfully done with intent to cheat the company. So a discrepancy, even if it be material, between the statements of the assured under oath in his proof of loss, and those made at the trial, do not constitute the false swearing that works a forfeiture of all claim under the policy; nor does an overstatement of the value of the property work such a forfeiture for a great difference of opinion upon values may well exist with perfect honesty of all the parties differing.</p>

<p>Appeal from 28th Judicial District Court, Parish of Jefferson.</p>

<p>1. The owner of the soil, as a general rule, is liable to a possessor in bad faith only for those improvements of which he may order the removal and, in the case of improvements inseparable from the soil, the principle by which one man is not permitted to enrich himself at the expense of another has no application.</p> <p>2. But this rule can not be strictly enforced in a city, where such matters are in part governed by police regulations in the interest of the public health compelling the filling of lots which are below’ grade and covered wuth stagnant water, and where the owner would have himself been legally bound to do the filling.</p> <p>1. The Court adheres to the dictrine upon which it conclusion was originally based, but remands the cause to afford opportunity to present further proof.</p> <p>2. This Court does not take judicial cognizance of the ordinances of the City of New Orleans.</p>

<p>1. The mandate of prohibition issues to Courts which exceed the bounds of their jurisdiction and never, in civil matters at least, for the purpose of reviewing the rules, or orders, decrees or judgments- — - whether interlocutory or final — and however erroneous they may be, made by a Court in a cause pending before it and of which it has jurisdiction. '</p> <p>2. If there be error ip the Court’s action in these particulars and the cause be appealable, the acts complained of may be reviewed and the-error corrected on appeal.</p>

<p>Where the mortgagor sells property against which a mortgage stands inscribed in the Mortgage Office, said mortgage being to secure a demand note drawn by him to his own order and by him indorsed, said note being more than five years old, and he deposits with his vendee a sum sufficient to cover said mortgage, the vendee obligating himself to return the same when the vendor has located the note and cancelled the mortgage;</p> <p>xj.eld, that the declaration to this effect in the act does not constitute a renunciation of prescription since the mortgagor could comply with the obligation assumed by him to cancel the mortgage only after locating the holder of the note, when he would then be in a position to take proceedings to establish the status of said note.</p>

<p>1. Where the claim sued upon in both suits is identical, neither error as to form of action nor the final rejection of the demand in tlie first suit will avoid the interruption of prescription, which recommences to run only from the cessation of the interruption.</p> <p>2. The other issues involved are of fact only.</p>

<p>1. When the doDor divests himself during his life time of all his property, reserving none at all for his subsistence, the donation is not reducible, but is null for the whole.</p> <p>2. The judgment creditor of the forced heir to whose prejudice a donation omnium bonorum is made, can legally sue for the recovery of his. debtor’s property in the hands of another in order to make it liable for his debt, and for the purposes of his suit he can legally assert all rights of his debtor in and to the property.</p>

<p>Appeal from Civil District Court, Division “ C. ”</p>

<p>1. All debt': bear interest at tlie rate of five per cent per annum from tlie time they become due unless otherwise stipulated in writing.</p> <p>2. Testimonial proof of it is not admitted in any case.</p> <p>3. Where t’’e evidence does not show the date when the debt became due, interest from judicial demand only will be allowed.</p> <p>4. A debtor cannot repudiate a contract of which he retains the fruit.</p>

<p>1. 'Ji'he claijn of constructive possession resulting from the registry of a tax deed cannot prevail when it appears that some other person had physical possession of the property.</p> <p>2. Although, since 1890, an assessment in the name of one not the owner is sufficient to support a valid tax sale, yet, the notice of sale must be served on the owner of record in the manner required by law.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Questions of fact only are involved herein.</p>

<p>1. A lessor sued for rent, and in undisturted possession of the premises, under the lease, cannot contest the lessor’s title.</p> <p>2. Where a married woman leases to another property of her own, and the lessee deals with her as such owner, the very fact of the married woman leasing the property herself, shows that she retained the control and administration of the property so far, at least, as the lease is concerned.</p> <p>3. Thus, as the owner of the property and with this indicia of separate control and administration of the property, she may maintain an action in her own name, her husband authorizing her to stand in judgment, for the recovery of the rent due.</p> <p>4. On the merits it is shown that a valid binding agreement, amounting to a complete contract, verbally made beween the parties to lease the property, existed.</p> <p>5. It is not shown that up to the time when the verbal contract became complete in itself and independent of any writing, any written lease was contemplated or agreed on.</p>

<p>Appeal from Civil District Court Division “C.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. Where a person, though he contributes neither labor nor money to the enterprise nor partakes in the profits thereof, loans his name to be used in carrying' on the business for the benefit of another, both he and the other will be deemed partners, quoad third persons, and, as such, held responsible for the debts.</p> <p>2. Where such partnership is of a general commercial nature either partner may draw, make, sign, indorse, accept, transfer, negotiate and procure to be discounted promissory notes, bills of exchange, checks and other negotiable paper in the name and on account of the partnership.</p>

<p>This record presents a case not of credibility but of sufficiency of evidence, and, if defendant’s testimony be disregarded the plaintiff's is not sufficient to make out the case.</p>

<p>Appeal from First City Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. The right of the “Louisiana Soldiers” to become an inmate of the Soldeirs’ Home of Louisiana, known as (lamp Nicholls, is not absolute, but relative only. It is conditioned upon the applicant qualifying under such rules and regulations, not inconsistent with the law creating the institution, as may be adopted by the Board of Directors.</p> <p>'2. Under its legislative grant of authority to “make all necessary rules and regulations to govern said institution,” the Board of Directors of the Soldiers’ Home may adopt any reasonable regulation necessary for the good order, discipline, morals or health of the institut'on, and may enforce same by trial and expulsion of the inmate who refuses obedience to and compliance with such regulations.</p> <p>'3. An inmate of the Soldiers’ Home who has been tried and expelled by the Board of Directors may not have the regularity of his trial reviewed by the writ of mandamus, when it does not appear that he has exhausted his legal remedy before the Board of Directors by applying for a new trial.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Questions of facts only are involved herein.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>1. Where in a suit on an account, defendant pleads certain payments it is competent for the plaintiff to disprove the plea by showing that the payments were made on an anterior account.</p> <p>2. The burden of proving payment was on the defendant, and rebutting proof is admissible under his pleadings, even if it might not otherwise have been competent evidence under the allegations and exhibits of the petition.</p> <p>3. In the absence of agreement and instructions to the contrary, payment must be imputed to the oldest of the debts of like nature.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson.</p>

<p>Issues of fact only are involved herein.</p>

<p>Issues of fact only are involved herein.</p> <p>1. When the husband administers the movable paraphernal property of his wife in his possession and sells it to one who purchases in good faith, the latter wil be protected from the claim of the wife on the property.</p> <p>2. Her recourse is against her husband for restitution or reimbursement, whether he administers with her consent or notwithstanding her formal opposition.</p>

<p>Appeal from Civil District Court, Division —.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>ON MOTION TO DISMISS.</p> <p>When a motion to dismiss fails to comply with the rules of this Court, it will not be taken up in limine but consideration of it will bei postponed until the cause is submitted on its merits.</p>

<p>1. Where goods were sold on sample at a stipulated price, said sale to be finally consummated upon comparing the goods with the sample at destination, where the purchaser upon receipt of the goods and comparison with sample complains to the seller that they are not up to sample, and that he will not accept them unless a reduction is made in the price, and the seller immediately replies, agreeing, without reservation, to the reduction asked by the purchaser, he will not thereafter be heard to complain in an action to recover the allowance on the ground that the demand of the purchaser amounted to^ a threat and coercion, and that his acceptance was given to avoid serious financial loss.</p> <p>2. The seller had his action against the purchaser for strict compliance with the contract, and if he choose to settle on the basis of compromise, making no timely reservation, he must abide by such compromise.</p>

<p>The clause in a contract of lease which expressly prohibits the subletting of the premises, gives rise to a right of action in favor of the lessor to cancel such lease; the property of the sub-tenant in good faith, cannot be levied upon by the lessor in an action for rental against his lessee.</p>

<p>Appeal from Civil District Court, Division “BN</p>

<p>Appeal from Civil District Court, Division “ A."</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division ‘“C.”</p>

<p>1. Under Ad 134 of 1906 the owner in a building contract who fails to give bond becomes liable to the workmen, material men, etc., in the same manner as the surety on a contractor’s bond would have been.</p> <p>2. Paragraph 4 of Section 1 of the Act contemplates a coneursus only when a bond has been given and there is hence no statutory warrant for such interpleader, where no bond has been given and the owner’s liability under the law has become absolute.</p> <p>3. Equity does not sanction the view that a claimant, to whom the law gives a direct recourse on the owner, -who is at fault, should be relegated for 'relief to a fund and be made to bear the expense and possible loss resulting from litigation with numerous other claimants.</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>T. Contentions originating in unlawful purposes are not to be brought into courts of justice, in such cases the courts will leave the parties where they stand and dismiss the suit.</p> <p>.2. This rule applies not only to the principal contract, but also to any collateral one connected with or growing out of it.</p> <p>.. :-8. Art. 313S, K. ■ C. G., to the effect that “if the obligation is null, so, also, is the pledge,’ ’is intended to apply to the lawful private transactions of individuals, and cannot be invoked to sustain or defeat a contract reprobated by law as violative of public policy.</p>

<p>ON MOTION TO DISMISS.</p> <p>When a motion to dismiss fails to comply with the rules of this Court, it will not be taken up in limine, but the motion will be considered when the case is heard on the merits.</p> <p>'1. “The Court of the first instance, after an appeal has been taken, still has jurisdiction to pass upon the question of the illegality of the bond, and no appeal lies from an order of a District Judge decreeing the amount of a suspensive appeal bond to be too small, dismissing the appeal and ordering an execution to issue.”</p> <p>2. The questions of fact involved in this case are resolved in favor of the plaintiff.</p> <p>Issues of fact alone are involved herein, and upon reconsideration of the case our previous opinion and decree is adhered to.</p>

<p>1. The fact that the property claimed'by plaintiff as owner may have been occupied by a third person with the alleged consent of the plaintiff, will not prevent the running of the prescription against proceedings to set aside tax sales, where it appears that for three years prior to the instiution of such proceedings plaintiff had not been in possession by corporeal detention, and had paid no taxes on the property.</p> <p>2. The law does not require tax assessors to go beyond the recorded title to property or to investigate legal conditions as to the true ownership. Though the property here continued to be assessed in the name of a person long dead, a sale for taxes predicated on such assessment, falls, nevertheless within the meaning and operation of Article 233 of the Constitution, and will not be set aside, save in the cases specially provided, unless the proceeding to annul be instituted within the time prescribed by the Article.</p> <p>3. It is too late for the husband to now attack the validity of the assessment and the tax sale under it, when it appears that after his wife’s death, the recorded title deed being in her name, he made no effort to have the assessment changed or to pay the taxes on the property.</p>

<p>Questions of fact only are involved herein.</p>

<p>1. In a petition for a writ of provisional seizure the averment “that the rent is clue,” is sufficient to justify the issuance of and tO' sustain the writ, and it will not he dissolved, when on the trial of the rule to dissolve, the further allegation, ‘Sthat the lessee is about to dispose of and remove his property, etc., etc.,” is disproved. The rent being due, the lessor had probable cause for resort to the writ.</p> <p>2. An affidavit is a declaration on oath, reduced to writing and sworn to by affiant before some person who has authority to administer oaths. The affidavit includes the oath but is not complete when the person making it signs the affidavit outside the presence of the officer, and is not 'sworn.</p> <p>3. The dissolution of the writ for want of proper affidavit will not carry the infliction of damages when it is shown that the averments are true, and another writ could immediately have been obtained.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. Creditors who have not assented to the debtor’ respite may require that the debtor shall furnish security that the property of which the debtor is left in possession shall not be alienated, or in case it is, that the money arising* from the sale or mortgage shall be employed in paying ratably the debts existing at the time of the respite.</p> <p>2. The bond as given is authorized by a particular law and is hence a judicial bond.</p> <p>The effect of judicial bonds and the extent of the surety’s obligation must be tested by and interpreted in accordance with the law authorizing or directing them to be taken. That which is super-added must be rejected and that which is omitted, supplied.</p> <p>4. The creditor who has a privilege resulting from the nature of his debt is exempt from the operation of the respite proceedings and under the law can not be deprived by the respite of the right of seizing the property on which he has a privilege.</p> <p>5. The legal seizure of the property of a respited debtor to satisfy a privilege debt and the application by a court of the funds arising from the sale of the seized property to satisfy such debt, is not such an "alienation” of his property and diversion of the proceeds of sale as is contemplated by Article 3093 C. C., as constituting a breach of the obligation of the bond.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>ON RULE TO TAX COSTS.</p> <p>Question of fact only is involved herein.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from tbe Civil District Court, Division “D.”</p>

<p>1. The prescription of three years under Art. 233 of the Constitution of 1898' protects a tax purchaser from attack on the ground that he propery was erroneously assessed.</p> <p>2. Equitable considerations cannot be allowed to mitigate the strictness of the provisions of a statute of repose.</p> <p>3. When the State’s title has been quieted by accrued prescription, a subsequent physical possession by a claimant for less than ten years is without effect.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>There is no fixed rule affording a safe guide for the ascertainment of the value of a lawyer’s professional services, and every case must be judged according to the circumstances surrounding it.</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>1. Repeal by implication is not favored and, unless they are irreconcilable the two statutes should, if possible, be construed together and their differences harmonized. '</p> <p>'■2. Oct 138 of 1894 is repealed and superseded by Section 22 of Act 184 of 1908 on the same subject matter, and the latter statute remains the only muniment of authority for parochial action in reference to the subject of public printing.</p>

<p>1. On the trial of the rule to dissolve the writ of sequestration 'on the ground of falsity of the alii davit, plaintiff is required to do more than rest upon the pleadings and affidavit. He must show and sustain the grounds and facts upon which his alleged fear, that defendant would remove or dispose of the property, was made to rest. 50 A. page 931.</p> <p>A ffhe evidence in this case fails to show any intention on the part of the defendant to conceal or dispose of the property on which plaintiff claims a vendor’s privilege during pendency of this suit, and the sequestration must be dissolved. 52 A. 11; 115 La. 230.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “D,”</p>

<p>This case is similar to William Frantz & Co. vs. Jacob Fink, et ah. this day decided by ns. For the reasons therein assigned the judgment appealed from, which in this case was in favor of plaintiff, is reversed and plaintiffs’ suit dismissed as to J. S. Winehill & Co., the appellant herein.</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division E.</p>

<p>Appeal from 28th Judicial District Court, Parish of Jefferson.</p>

<p>1. The creditor cannot, in case of failure of payment, dispose of the pledge, by sale or otherwise, before having' obtained a judgment in the ordinary course of law, though it shall be lawful for the pledger to authorize the sale or other disposition of the property pledged in such manner as may be agreed upon by the parties, without the intervention of courts. 31G5 O. C.</p> <p>2. Where the pledger has not given his cousent to the sale or transfer or other disposition of' the property pledged, the pledgee who has so disposed of the pledged property will be held liable for the property or its value.</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from Civil District Court, Division "B.”</p>

<p>The lessee defaulted in the payment of rent and was sued by the landlord and his property found in the leased premises prov sionally seized as well as the property of his sub-tenant who, at the time of the seizure was not indebted to the lessee, held:</p> <p>When the under-tenant is not indebted to Ms lessee at the time the provisional seizure was levied on his property,' the landlord had no right of pledge thereon.</p>

<p>1. The irregular allotment of a cause filed in the Civil District Court for the Parish of Orleans cannot divest the court of jurisdiction or strike with absolute nullity subsequent proceedings.</p> <p>2. Whatever right the law may accord a tutor of a resident minor to provoke, under circumstances rendering it necessary and on compliance with the formalities of the law, a sale of minor’s property, that same right under similar circumstances and upon like compliance with the legal formalities, may be employed and exercised by the tutor or guardian of a minor residing out of the State, who has been qualified as such in conformity with the laws of the state or country where the appointment was made.</p> <p>3. An error of the pen in writing the name Frin.chard when. Trinchará was intended as the person named as under-tutor of minors, especially when Trinchará qualified under the appointment and had for years, and repeatedly, been recognized by the court which appointed him as the person intended to be appointed, may not be urged as a valid ground for invalidating the proceedings of a family meeting at which Trinchará appeared and acted as the under-tutor.</p> <p>4. The propriety of the appointment of a person by a court of competent jurisdiction of a sister State, as guardian of minors residing in that State, and who has qualified as such guardian in conformity with the laws of the State where the appointment was made, may not be questioned in our courts.</p> <p>5. With regard to the sale of property of non-resident minors, the “residence” of such minors, for the purpose of partition and for the family meeting, is the situs of the property.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. The alleged defects in the proceedings anterior to and leading t<¿ tiie sale are cured .by the constitutional prescription of three years.</p> <p>2. There is no claim' herein of dual assessment or prior payment of taxes; hence, the judgment of confirmation is correct.</p>

<p>Issues of fact only are involved. herein.</p>

<p>Appeal from the Civil District Court, Division E.</p>

<p>1. Issues of fact only are involved herein.</p> <p>2. The clerical error in entering the judgment below compels a recasting of such judgment.</p>

<p>Apeal from the Civil District Court, Division “B.”</p>

<p>Where the proof is that persons forming themselves into a corporation under Act 36 of 1888, (Limited Liability Act), having deposited for registry with the Clerk of Court both the chartetr and the list of subscribers, but that the Clerk not deeming it incumbent upon him to record the list of subscribers only recorded the charter; that the charter and stock list were both published during thirty days in a newspaper published at the domicile of the corporation; that 'most of the stock was subscribed to and paid for, the stockholders •doing so with the conviction that they wer* subscribing and paying for stock in a limited liability corporation, that the charter had been filed with the Secretary of State, and that the word “Limited” was conspicuously used on the stationery of the corporation, it will be deemed a sufficient and substantial compliance with the Limited Liability Act (No. 30 of. 1888).</p>

<p>Appeal from 28th Judicial District Court, Parish of, Jefferson.</p>

<p>Appeal from the Civil District Court, Division “B. ”</p>

<p>ON MOTION TO DISMISS!</p> <p>1. An appeal is timely, if filed within three judicial days after, the return day.</p> <p>.2. Where .the appeal is not from a money judgment but from one vacating an appointment, the judge fixes the amount of the bond in such sum as he deems sufficient.</p> <p>3. The suggestion that the appeal is frivolous appertains to the merits and will not be considered on a motion to dismiss.</p> <p>A ease will be' remanded when it shall appear that the circumstances of the application are extraordinary and exceptional, and the ends. of justice require remanding.</p>

<p>1. The vendor must furnish at his cost, certificates in his own name from the Registrar of Conveyances. The vendee will not be permitted arbitrarily to demand extra certificates in the name of previous owners unless he assigns some substantial reasons.</p> <p>2. When the research shows that certificates are attached to every conveyance of the property heretofore made, the demand for extra certificates is clearly unreasonable.</p>

<p>1. A bank depositor owes to the bank the duty fo exercsiing reasonable care to verify returned vouchers by the record kept by him of the checks he has issued, for the purpose of detecting forgeries or alterations.</p> <p>■2. A deposit in court by a defendant, which plaintiff is not free to take except upon proving his case, does not relieve the defendant oE interest and costs.</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>Questions of fact only are involved herein. Case remanded for further evidence.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from the Twenty-ninth Judicial District, Parish of ^Plaquemines.</p>

<p>Appeal from the Civil District Court, Division “E.”</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>Appeal from the Civil Eistiiet Court, Division “E.“</p>

<p>Appeal from the Civil District Court, Division “A."</p>

<p>Appeal from the Civil District Court, Division “G.”</p>

<p>One who purchases a machine and proceeds to treat it as his own by.changing the'construction thereof must pay the price thereof even though the machine may not come up to the guarantee. His only claim against the vendor is for the cost of necessary changes made by him.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>Appeal from the Civil District Court, Division “E.”</p>

<p>The facts of this case bring it within the scope'of the doctrine an-nouneed in Mitchell vs. Illinois Central R. R. Co., 110 La. C8U.</p>

<p>Where, a person petitions the Court to be sent into possession of her mother’s estate, alleging that the estate is free from debt, and to which allegations she makes affidavit, she is estopped from thereafter urging a claim against the estate. One will not be permitted to deny what he has solemnly acknoweldged in a judicial proceeding.</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>Issues of fact only are involved herein.</p>

<p>On Rule Against Globe Coffee and Molasses Company.</p> <p>Appeal from Civil District Conrt, Division “E.”</p>

<p>Costs follow the judgment.</p>

<p>1. The term of an office is distinct from the tenure of the incumbent. The one has reference to the time during which an officer may claim and hold the office of right; the other means simply the time during which he actually remains in office.</p> <p>-2. Terms of office are fixed periods and succeed eacli other at regular intervals without intermission. They are not dependent upon the aficident of .tenures.</p> <p>•3. Title to public office cannot be assailed collaterally.</p> <p>4 Surplusage in a judgment which does not affect the substance and result will not be noticed on appeal.</p>

<p>Issues of fact only are involved herein.</p>

<p>ON MOTION TO DISMISS.</p> <p>The judge should fix the day on which the appeal is returnable (O. p. 574), hut where this is not done, the appeal is returnable on the next return day after the appeal is taken.</p> <p>Appeal dismissed.</p>

<p>1. All the issues presented by the pleadings of a case and on which evidence is introduced on the trial will be considered-as disposed of by a final judgment, un less a special reservation is made thereon.</p> <p>2, But the failure of a judgment to reserve rights mentioned in the jprayer, though not put at issue in the petition' or answer, cannot be the basis of a plea of roa adjndicata to a subsequent suit for such rights.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>The ¡átate of Louisiana having in 1898 parted with its ownership, assessed, to and collected taxes from its vendee, waived all its rights to tile property and was without interest when it sold it to another party in 1906.</p>

<p>Appeal from the Civil District Court, Division “B.”</p>

<p>Appeal from the Civil District Court, Division “C.”</p>

<p>Appeal from the Civil District Court, Division “A.”</p>

<p>Appeal from the First City Court.</p>

<p>“While the father may be liable for the wrongful act of his minor son under Article 231S of the Civil Code, it must be shown, in order ' to render him liable, that the one who had a difficulty with the son was not himself at fault in the trouble which resulted injuriously to the claimant for damages.” Ill La. 143.</p>

<p>An action by the owner of an immovable against the possessor for the recovery of the revenues thereof, is prescribed only by the lapse of ten years from the time when such revenues were received.</p> <p>Such an action is not ex dolicto, and does not grow out of O. C. 2315, but out of O. C. 502. Where several have possessed jointly they are not liable in solido, but each is liable only for what was received by himself.</p>

<p>One who in making a contract designates himself as Agent, or Agent for the Owner, but fails to disclose the name of his principal, is to be considered and treated as being himself the principal, and may sue as well as be sued as such.</p>

<p>Appeal from the Civil District Court, Division “D.”</p>

<p>1. When a person engages his services to another to make collections of accounts for the benefit of his employer, and receives compensation on a commission basis or upon other certain conditions, the relationship of Master and Servant is established between his employer and himself in the meaning of the Civil Code, Article 168.</p> <p>2.' If a servant goes outside of his employment, acting with malice and causing damage, the master is not liable, but when a collector at the direction of his employer calls upon the latter’s debtor, and, failing to collect money due by the debtor, forcibly enters the lattor-’s premises and removes the household goods upon which the debt is due, and the employer, though notified of the wrongful act of his servant or agent, takes no steps to repair the wrong, but permits the property so forcibly removed and detained by his agent to be sold, he will be deemed to. have ratified the acts of his agent and will be held liable for the damage resulting.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>Appeal from 28th Judicial District Court, Parish of Jefferson.</p>

<p>Appealfrom Civil District Court, Division “A.”</p>

<p>1. No particular form of deed, or deed at all, is necessary for the dedication of land for cemetery purposes. It suffices that th eowner permits the land to be used for burial purposes with the intention of making the dedication.</p> <p>2. Dedications to public use, and servitudes in favor of the public, are not governed by the strict rules which apply to private property and transactions between individuals. The visible signs of a dedication, and open use of the property by the public, supply the place of both title and registry.</p> <p>3. Those whose relatives lie buried in a graveyard have sufficient interest to maintain an action against one who seeks to disturb the graves therein and convert the land to other uses. , '</p>