of a part of the purchase price of a piece of land situated in the parish and state aforesaid, on the left descending bank of Bayou Beouf; the titles to said lands not yet being made. I hereby obligate myself, my heirs, and assignees, to make a title to said land to the said Thompson, when he shall call for the same; the terms and conditions of the sale being the same as those in the sale of Mrs. L. B. Waller unto the said Thompson for a portion of the same tract of land. [Signed] MARY W. KILPATRICK. "I authorize my wife to sign the foregoing instrument of writing. [Signed] "A. R. KILPATRICK." The plaintiff's petition avers that this "instrument of writing" was not intended by their mother to actually and really convey their interest in the property, but that same was only a promise of sale, which was never executed during their mother's life-time, or since. It is a noteworthy fact that there is no averment in the defendant's answer to the effect that it was a sale to Thompson, but, in lieu thereof, the allegations quoted were made-i. e., acquiescence and estoppel. In Broadwell v. Raines, 34 La. Ann. 677, this court had under consideration quite a similar instrument. Its concluding paragraph is as follows, viz.: "Titles to said property to be made at our own convenience, as per our private agreement." The court say: "Under this agreement Lane (the promisee) took possession of, and cultivated, the plantation for seven years, during which he paid nothing on the purchase price, and at the end of which he was heavily involved in debt." Then they proceed to discuss the question of Lane's ownership under this document, and say: "The mere wording of the instrument ** * is conclusive on our minds that this was not a sale, but a mere conditional promise to sell. The first part of the agreement seems to convey the idea of a sale, but the reference to the titles which are to be made at a future time shows clearly that the contract was not translative of property, and did not operate a mutation of title;" citing Knox v. Payne, 13 La. Ann. 361, and Garrett v. Crooks, 15 La. Ann. 483. The two instruments are so perfectly alike in respect to the reference to the execution of titles that we deem it unnecessary to cite further authority. In the one under present consideration, the condition is that the promisor agrees "to make a title * * * to the said Thompson when he shall call for the same;" while in that just referred to the titles were to be made at the mutual convenience of the parties.

The language employed in the promise of sale to Lane, viz.: "I have this day bargained, sold, and delivered," is wanting in that to Thompson; and if the former was correctly held not to be translative of property, the latter certainly cannot be. We regard the opinion in the case cited as perfectly correct, and hold the instrument under consideration to be only a promise on the part of Mrs. Kilpatrick to sell to Thompson, which did not operate a mutation of title, and which only entitled him, upon full compliance with the condition therein stipulated, to compel her to make title. The fact that Thompson entered into a joint possession of the property with others, and used the revenues, and afterwards made a conveyance to his wife, does not exercise any influence over the title, or alter the status. The proof does not satisfy us that plaintiff had been advised of the conveyance to Mary E. Glaze. They resided then, and reside now, in the state of Texas; and, while there are some circumstances pointing to their knowledge of it, they are altogether too inconsequential for a court of justice to act upon. The judgment of the court a quo does substantial justice between the parties. The demand of the plaintiff for damages was properly rejected. Judgment affirmed.

ON APPLICATION FOR REHEARING.

1. The fact that defendant's counsel did not specially aver that the instrument in question was a title, and operated a mutation of the ownership of Mrs. Kilpatrick in the land, was only cited arguendo, in support of the con

verse of that proposition. The opinion concedes that whether that instrument, was a title or not was a question in this case, and decides it.

2. Our opinion does not lay any particular stress on the question of consideration. The Code provides that "a promise to sell amounts to a sale when there exists a reciprocal consent of both parties as to the thing and the price thereof; but, to have its effect, either between the contracting parties, or with regard to other persons, the promise to sell must be vested with the same formalities as are prescribed in articles 2439 and 2440 concerning sales, in all cases where the law directs that the sale be committed, to writing." Rev. Civil Code, art. 2462. From these provisions we took it to be clear that "a reciprocal consent of both parties as to the thing, and the price thereof," is essential, and is of the essence of a promise of sale as well as of a sale. There was evidently such "a reciprocal consent" between Mrs. Kilpatrick and Thompson; but those provisions make the further requirement that the promise of sale must be clothed with the same formalities as a sale, in order that it shall have effect. One of the most important of these is an act which purports to transfer the property. Rev. Civil Code, art. 2440. Such we understand to be the true import of the word "aet" which is contained in the article. True it is that no set phrase or form of words is necessary to operate a translation of property; but the ones employed must, of themselves, clearly express that object. In the instrument we are considering there are no such words or phrase. On the contrary, the instrument is given the form of a receipt for a portion of the purchase price advanced upon a sale of certain property which was to be completed, and titles executed to Thompson, as vendee, when he "shall call for the same. This instrument is wanting in the essential formality that is necessary to give it effect, as to the creditors of Thompson, as a conveyance. of the property. It does not vest a title in him.

3. The defendant's counsel, in their application, propound this question, viz.: "Why not declare document 'A' to be a sale, and, at the same time, decree that the Kilpatrick heirs shall be paid, by preference, out of the proceeds of the sale, the balance due them on the purchase, before the seizing creditors." We are at a loss to see how this could be done. The creditors have dealt with. the land as the property of their debtor, and seized it. Plaintiffs enjoined the advertised sale, claiming ownership. Title rel non is the only issue. If the title did not pass for one purpose it could not have passed for another. If this promise of sale contains obligations which the defendants, as the creditors of Thompson, may acquire and enforce, this is not the proper proceeding for its ascertainment or determination. We feel bound to relegate them to some other proceeding for that purpose. Rehearing refused.

LOEBER et al. v. NEW ORLEANS & C. R. Co.1

(Supreme Court of Louisiana. May 25, 1888. 40 La. Ann.)

MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS-SPECIFIC PERFORMANCE-SUIT BY.

TAX-PAYERS.

In proper cases, and under appropriate averments, citizens and tax-payers may sue in the enforcement or restraint of municipal action, but they cannot in affirmance of its contracts which contain no stipulation pour autrui. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; N. H. RIGHTOR, Judge. H. L. Lazarus and Chas. Longue, for appellants. J. M. Bonner, for appellee.

WATKINS, J. The petitioners, Frederick R. Loeber, Henry Beer, and Henry Abraham, residents and tax-payers of the city of New Orleans, represent

1 Publication delayed, awaiting expiration of time for filing application for rehearing..

that the defendant company consented to a contract with the city on the 7th of August, 1882, wherein the following stipulation, agreement, and contract was entered into for and in consideration of the franchise granted in said act and in said city, viz.: "It is to be well understood that the purchasers of this franchise bind themselves to pave Jackson street between their tracks from St. Charles avenue to Water street, and Baronne street between their rails and tracks from Canal street to Delord street, with any improved pavement which shall hereafter be agreed upon by the property holders and the city council." That they are large owners of property facing on Baronne and Jackson streets, within the limits designated therein. That, upon proper application and after due observance of all legal requirements and formalities on the part of the property holders and the city, "it was determined, agreed, and contracted to pave said Baronne and Jackson streets with improved Barber asphalt pavement." That the defendant refuses to comply with its contract, and the city neglects and refuses to enforce it. That if it were not for the quoted clause in the contract they and other front proprietors may be called upon to pay large sums of money for the paving of the said streets; and therefore they, as citizens and tax-payers, beneficiaries thereunder, "are obliged to bring this suit to compel performance. The defendant filed several exceptions, and among them was that of no cause of action. These were sustained and the suit dismissed, and the plaintiffs have appealed. The question is whether the petition discloses a right or cause of action. Upon the declination or refusal of the city to institute suit against the defendant on their contract, have the citizens and tax-payers, on such averments as plaintiffs' petition contains, the right to sue in their own name and on their own account and that of the inhabitants of the city? We are of opinion that they have not. This is a contract with reference to the paving of certain streets of the city; and it is elementary that this is a matter exclusively within municipal control and administration. 1 Dill. Mun. Corp. (2d Ed.) § 66. In State v. Railroad Co., 37 La. Ann. 589, we held this to be "a formal contract of sale;" and in case the company should neglect or refuse to comply with any of its specifications, the city could have the violation rectified. But if the city fails to do so, the citizen is without right to compel performance by suit, as plaintiffs have attempted to do in this instance. Undoubtedly, the stipulation of the contract sought to be enforced was consented to in the interest and for the benefit of the inhabitants of the city, but it does not follow that if the corporation fails to enforce it the tax-payers may. There is no averment in the petition that the contract contains any stipulation pour autrui in favor of the plaintiffs. 2 Hen. Dig. 1030. This question does not come within the principle of the case of Handy v. New Orleans, 39 La. Ann. 107, 1 South. Rep. 593, in which we held "that tax-payers have a standing in court, upon proper charges, to contest the validity of a municipal ordinance, and contract under it, whenever its enforcement may increase the burden of taxation." Further, that they have a cause of action to assert "that a municipal corporation has in excess of its powers passed an ordinance," etc. In proper cases and proper averments, the citizen and tax-payer may sue to enforce or restrain municipal action, but he cannot sue in affirmance of its contracts which contain no stipulation pour autrui. Judgment affirmed.

JOHNSON . CAVANAC, Tax Collector.

(Supreme Court of Louisiana. November 19, 1888. 40 La. Ann.)

1. APPEAL-JURISDICTION OVER TAX SUITS.

The supreme court has no jurisdiction over tax suits, regardless of the amounts involved, unless the legality or constitutionality of the tax be in contestation. 2. SAME JURISDICTIONAL AMOUNT.

A case where the party resists the payment of a tax on the grounds of payment, of illegality in the assessment, or of the mode of levying the tax, and of other ir

regularities involving the validity of the tax, the amount of the tax claimed, and not the value of the property seized therefor, is the matter of dispute. In such cases, if the amount of the tax does not exceed $2,000 the supreme court has no jurisdiction.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; W. T. HOUSTON, Judge. Proceeding by Charles Andrew Johnson against Charles Cavanac, tax collector, to restrain the sale of plaintiff's property for taxes. Judgment for plaintiff, and defendant appeals.

W. H. Rogers and J. C. Moise, for appellant. Chas. F. Claiborn, for appellee.

POCHE, J. Appellee's suggestion that the matter in dispute in this case is in amount less than the lower limit of our jurisdiction, is well founded. The suit is an injunction to restrain the sale of plaintiff's property for state taxes amounting to $236.50, which are alleged to be not due on several grounds, one of which is that a portion of the taxes claimed have been paid, and on other grounds of alleged illegality in the mode of assessing the property, of levying the taxes, and in the want of proper registry. Nothing in the pleadings suggests an issue involving in any way the legality or constitutionality of the tax which plaintiff resists, the only feature which could vest jurisdiction in this court, irrespective of the amount involved. Const. art. 81. If instead of enjoining the sale, plaintiff had paid the sum of $236.50, with interests, penalties, and costs, for which his property was advertised, there would have been an end of the case. He is therefore in the attitude of a defendant in execution of a judgment in a sum less than $2,000, and the amount of that judgment, not the value of the property seized, would be the matter in dispute between the plaintiff in execution and himself. The matter in dispute in this case is the contested right of the state to enforce the payment of taxes amounting to $236.50 by levying on plaintiff's property; hence the value of his property is no factor in the jurisdictional feature of the controversy. To this purport have been the uniform rulings of this court. Aymar v. Bourgeois, 36 La. Ann. 392; Cobb v. McGuire, Id. 801; State v. Judges, 37 La. Ann. 898; Denis v. Houston, 38 La. Ann. 39; Minor v. Budd, Id. 99; Facrot v. City, Id. 230; New Orleans v. Schoenhausen, 39 La. Ann. 237, 1 South. Rep. 414. But counsel for appellant contend that the real issue in the case is the contested right of the state to offer for sale for unpaid taxes property exceeding $2,000 in value, which property was in truth owned by the state; the proceeding being carried on under the provisions act 82 of 1884. That contention is not borne out by the pleadings, and is effectually contradicted by the evidence in the record, which consists mainly of admissions made by counsel of both parties. The issues tendered by plaintiff are stated in the first part of this opinion, and, among other reliefs sought by him, plaintiff asked that the assessment of his property for the years 1871 and 1872 in the name of John Coleman be annulled, and that the property be stricken from the delinquent list for said years. He also prayed for the erasure of the inscription thereof in the mortgage office. The issues thus tendered were met by a general denial, and by a special denial of the alleged payment of the taxes claimed, and of the alleged cancellation of the inscriptions by the sheriff, who had sold said property in an executory process. We therefore repeat that the pleadings suggest no other issue but the contested right of the state to enforce the payment of the taxes resisted by plaintiff. The record contains an admission by appellant's counsel that the advertisement was for taxes amounting to $236.50, assessed for the years 1871 and 1872, in the name of John Coleman, the original owner of the property, of which C. A. Johnson is the present owner. It is too clear for argument that such an admission entirely does away with the present contention,-manifestly an after-thought,-that the

title of the property stood in the name of the state. Conceding that the proceeding was instituted under the provisions of act 82 of 1884, which the record does not show, a reference to the act discloses that it provides for the sale of two distinct classes of property,-(1) of property previously adjudicated to the state at a tax sale; (2) of property not thus bid in by the state, on which there remain unpaid taxes due to the state prior to December 31, 1879. And the law requires the advertisement in the first case to give the name of the party in whose name the property was assessed, and in the other instance the name of the present owner. The latter case is precisely the attitude of the advertisement row under consideration, showing conclusively that the property had never been adjudicated to the state, and that the title stood, and yet stands, in the name of C. A. Johnson, plaintiff herein. Hence appellant's contention cannot save the present appeal, over which this court is without jurisdiction. It is therefore ordered that this appeal be dismissed, with costs.

STATE ex rel. SOLARI v. ELLIS, Judge.

(Supreme Court of Louisiana. November 19, 1888. 40 La. Ann.) APPEAL FROM INFERIOR COURTS-TIME FOR FILING Bond-Stare DECISIS. Under the construction placed in jurisprudence on the provisions of article 318 of the Code of Practice, rule 29 of the civil district court of the parish of Orleans, which provides that appeals from city courts must be filed before the expiration of the tenth day after the bond of appeal has been filed in the city court, must be construed so as to exclude, in the computation of the time, the day on which the bond has been filed, as well as the day on which the transcript is required to be filed in the appellate court, under the rule. There is no perceptible or substantial difference between rule 29 of the civil district court and section 2093 of the Revised Statutes of 1870. In dealing with rules of practice the supreme court will follow judicial precedents, with a view to the uniformity of such rules. (Syllabus by the Court.)

Application for writs of certiorari and mandamus.

The relator J. B. Solari contends that T. C. W. Ellis, judge, erroneously dismissed an appeal brought to his court by relator, and asks that the judge be commanded to entertain and to pass upon the merits of the appeal. E. Howard McCalile, for relator. Henry P. Dart, for respondent.

POCHÉ, J. The complaint in this case is that the respondent judge erroneously dismissed an appeal brought to his court by relator from one of the city courts. The ground of the dismissal was that the appeal had not been completed in time, under rule 29 of the civil district court, which reads as follows: "In any case appealed from a city court the record must be filed in this court before the expiration of the tenth day after filing the bond in the court a quo, unless such tenth day should fall on a holiday, in which event the appellant shall be entitled to the whole of the next succeeding day upon which the clerk's office may be open for business within which to file such record." It appears from the record that the appeal-bond was filed in the city court on the 11th of June, and that the transcript was filed in the appellate court on the 22d of the same month. Relator's main contention is that under the provisions of article 318 of the Code of Practice, as construed in our jurisprudence, his appeal was seasonably brought up, because the day on which his bond was filed and the day on which the transcript was to be filed, under the rule, should not be counted. The article of the Code provides that “in all cases where delay is given either to do something or to answer, neither the day of serving the notice nor that on which the act is to be done or the answer filed are included." If that provision governs the case, the appeal is saved. The respondent concedes this conclusion if the question is to be controlled by section 2093 of the Revised Statutes of 1870, which was the law regulating appeals from justices' courts under the judiciary system which had