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is illegal, because it tends to discriminate favorably to the Louisiana Lottery Company, is equally without merit, because the city is powerless to control the action of the state in the premises. The object had in view by the framers of the ordinance doubtless was to guard the city against even the appearance of running counter to a statute law of the state on the subject of the sale of lottery tickets. That in such cases as those provided for in the ordinance the legislature has constitutional power to confer on the city council authority to vest in city, recorders jurisdiction of such offenses, we have no doubt. Judgment affirmed.

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1. When property is held under conservatory writs or final judgment, no damages can be claimed for the detention of the property under the writs.

2. Where a suit is instituted by an administrator in good faith, without malice, and with probable cause. for the protection of a succession interest, and the administrator fails, no damages can be claimed from the succession by the defendant for expenses incurred in defending the suit.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Nicholas H. Rightor, Judge.

Action by Carmelite Louque against the succession of Carmelite Carcagno, widow of Bertrand Saloy, and her heirs, to recover damages resulting from certain judicial proceedings. There was a verdict and judgment for defendants, and plaintiff appeals. Affirmed.

Charles Louque, for appellant. Thomas J. Semmes and Drolla & Augustin, for appellees.

MCENERY, J. Mrs. Saloy died in the city of New Orleans. Her succession was fully administered, and the effects turned over to the heirs. During her last illness, she had in her possession, a short time before her death, a box containing money, bonds, and jewelry. This box and contents were given to the plaintiff by Mrs. Saloy by manual gift, and she deposited the box in bank. The circumstances attending the gift induced the attorney for absent heirs to institute proceedings for the judicial sequestration of the box. The plaintiff in these proceedings refused to deliver the box and contents, and asserted her ownership and legal possession of the same, during the pendency of the conservatory writs procured by the attorney for absent heirs in a rule taken on him. This rule was dismissed by plaintiff. In the conservatory proceedings instituted by this attorney, the judge order

ed a judicial sequestration of the box and contents. From this order the plaintiff appealed. The judgment of the district court was affirmed by this court. Succession of Saloy, 43 La. Ann. 1158, 10 South. 251. After the judicial sequestration of the box and contents, the administrators of the succession filed a suit against the plaintiff, in behalf of the succession, for the ownership and possession of the same, on the ground that Mrs. Saloy had never parted with the ownership and possession of the box and contents, and had never made a manual gift of the same to the plaintiff. During the taking of the inventory, it is noted in the proces verbal that said box and contents had been given to plaintiff, and the statements of the witnesses in whose presence it was given are set out in said inventory. On the trial of the suit there was judgment for the plaintiff herein, Mrs. Louque, declaring the donation valid, and confirming her title to the box and contents. The succession representatives did not appeal from this judgment.

The plaintiff now brings this suit for damages on account of the proceedings instituted by the attorney for absent heirs, and the suit instituted against her by the administrators of the succession. The grounds of complaint are that the suits are libelous, and that the inference drawn from the institution of the same was that Mrs. Louque had unlawfully abstracted the box and contents; that she suffered pecuniary loss for attorney's fees in defending said suits; and that she lost the opportunity of investing her money by the long detention of said box and contents. The answer is a general denial. There was a trial by jury, and a verdict and judgment in behalf of defendants, from which plaintiff appealed.

There is no averment or statement in the petition filed in the suit of the administrators against plaintiff, and in the application of the attorney for absent heirs, that can, by any possible construction, be construed into a libel of plaintiff's character, nor is there any innuendo that can be inferred from the allegations that would asperse the character of plaintiff. The petition and application are respectful, and are in the usual forms. If the suit for the box and contents created unfavorable impressions against plaintiff, it was one of those unfortunate inferences that sometimes follow suits and accompany litigation, for which the plaintiff, in the honest pursuit of a right, is not responsible. The plaintiff in this suit was fully vindicated, and the alleged unfavorable impressions were dissipated by the judgment in her behalf. So far as damages are claimed for the institution of the proceedings by rule by the attorney for absent heirs, they are effectually barred by the judgment of this court, affirming the judg ment of the lower court, in the case of Succession of Saloy, 43 La. Ann. 1151, 10 South. 251. In fact, the issues presented in this

suit are mainly disposed of in the opinion rendered by this court in that case. In the opinion we said: "Under the terms of the order, its only effect was to hold the box where it was until its contents were ascertained, and, when the possessor prevented its opening, the box simply remained in the custody of the bank until further order of the court. The effect, in that case, would have been simply that of a judicial sequestration, which we think, in such a case, would have been authorized under article 273 of the Code of Practice, at least until the succession could be represented by the appointment of an administrator, who could invoke the proper conservatory process to protect the interest of the succession." The fact of the statement of witnesses to the donation appearing on the inventory did not determine the question of title or possession. It was still open to judicial inquiry and investigation. That the administrator's duty was to continue the investigation instituted by the attorney for absent heirs was intimated in that portion of the opinion quoted; and the plaintiff herein also invited the suit instituted by the administrators. The rule filed by Mrs. Louque, the plaintiff, on the attorney for absent heirs, tendered the issue of title to the box. To this rule the heirs of Saloy intervened, and denied the title of Mrs. Louque to the box, and prayed for an order that the box be turned over to the succession of Saloy. She hastily discontinued this rule. There was therefore no alternative for the succession representatives but to bring the action against which this complaint is made. They acted in good faith, without malice, and with probable cause, in the institution of a suit for the protection of a succession intrusted to their administration. Judgment affirmed.

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For prior report, see 44 La. Ann. 714, 11 South. 54.

Branch K. Miller and B. B. Howard, for appellant. J. R. Beckwith, amicus curiae.

BREAUX, J. Plaintiff sued the defendants, and in its petition alleged that on the 1st day of January, 1889, the steamer Natchez was destroyed by striking a hidden obstruction in the Mississippi river at or near Lake Providence; that the loss was within the terms of the policies of insurance held by it; that the defendant companies, through their agents and representatives, were duly notified by the superintendent of the company of the loss, and he afterwards abandoned the wreck to the defendant companies, through their agents who took charge of the wreck; that it was the duty of the agents, and their agreement, also, immediately to proceed to the salvage and relief of the wreck, for the benefit of the insurers and the insured; that in violation of their duty, and in collusion against petitioner, the agents delayed and neglected to take any steps towards the salvage of the wreck, for which they had ample time, until the river rose, and caused said wreck to go to pieces, and rendered the salvage impossible, without due notice to plaintiff; that, had the agents immediately proceeded to the salvage of the wreck, there could have been saved property of the value of at least $43,000, of which plaintiff's share, under the terms of the policies, would have been two-thirds. The defendants filed an exception of no cause of action. It was sustained by the district court. On appeal to this court the judgment of the district court was affirmed. That ended the case, and inIcludes all the issues heard.

As

The position of the plaintiff, as we interpreted it, was that the steamer was abandoned to the agents of the defendant companies, and owing to the negligence of these agents the wreck became a total loss. suming, for the trial of the exception of no cause of action, that there was negligence, we held, in the case 44 La. Ann. 714, 11 South. 54, that, within the terms of the policies, these agents acted for all parties concerned; that whether the agent was the master, the supercargo, or an appointed agent, within the policy, he acted for the insured to the extent of its interest, and represented the quasi partnership (insured and insurer) quoad the wreck, and his acts were for account of the partnership; that one of the partners (the insured) could not hold the other (the insurer) responsible for the acts of the common agent. The authorities upon the subject do not announce the principle that, under the terms of a policy, it is the duty of the insurer to proceed immediately to save the wreck, and account to the insured for his share, nor that it is incumbent upon the insurer to follow the vessel insured in order to be prepared to save the wreck for the

benefit of the insured, but that it is the duty of the master, after abandonment, to save the wreck for the benefit of the insured and the insurer. This was the theory of the decision, and controlled in affirming the decision of the court a qua. While examining the case, our attention was attracted by the allegation that it was the duty of the agents, and their agreement, also, (heretofore italicized by us;) also, by the statement in plaintiff's brief: "But superadded to the obligation of defendants under the policies, and the abandonment under it, plaintiff alleges that defendants, through their agent, agreed to undertake the salvage of the boat for the benefit of themselves and of petitioner." All of the issues arising under the policies were finally decided. But we determined, if there was a separate agreement, to reserve to plaintiff its right to sue on account of its violation, under sufficient allegations. This reservation was to enable it to sue in a separate and distinct suit. The action of the district court was correct, and must be affirmed. The judgment appealed from is affirmed, at appellant's costs.

McIVER v. CLARKE. (Supreme Court of Mississippi. Jan. 8, 1894.) PRIVILEGE TAX-DEFAULT-RELIEF FROM PENALTIES-STATUTE-CONSTRUCTION.

Act March 7, 1892, provides that, when any person required to pay a privilege tax has failed to do so, he may pay the amount unpaid for the three years next preceding the act, and shall then be relieved from the penalties for such nonpayment on contracts made by him. Held not to apply to persons in default for more than three years.

date of the passage of this act, according to the requirements of the laws in force during such three years, touching the taxes on privileges, twenty-five per centum additional, and the person or corporation making such payment of such three years taxes, or such balances remaining due and unpaid on account thereof, twenty-five per centum additional, shall thereby, and by virtue of this act, be relieved from all the pains and penalties imposed by section 589 of said Code of 1880, or any law of like import in respect of the effects of such non-payment of such privilege tax on contracts made by such persons or corporations; and all contracts made by such persons or corporations as shall avail themselves of the benefits of this act, shall be enforceable in all the courts, the same as if such privilege taxes had been paid when the same were required by law to be paid." The second section saves pending criminal prosecutions, and the third section continues in full force section 589, and laws amendatory thereof, where not inconsistent with the provisions of the act which we are considering. The proper construction of this act will solve the controlling question presented by the present appeal, namely: Did the payment of a lawyer's privilege tax by W. J. Lacey, or some one for him, for each of the three years next preceding the 7th day of March, 1892, with 25 per centum additional thereto, validate the contract made by his firm in the year 1884, when, unmistakably, he did not pay the lawyer's privilege tax, and procure the necessary license for practicing his profession? We find no support for the contention that the payment of the gross amount of three years' taxes, with the additional 25 per centum, ascertained by the laws

Appeal from chancery court, Lee county; in force during the three years next precedW. L. Clayton, Special Chancellor.

Suit by M. E. Clarke against Alice McIver. Decree for complainant. Defendant appeals. Reversed.

T. J. Buchanan, Jr., Houston & Reynolds, and W. R. Harper, for appellant. Clarke & Clarke and Calhoon & Green, for appellee.

WOODS, J. The act of March 7, 1892, entitled "An act granting relief from certain penalties and to render enforceable certain contracts under section 589 of the Code of 1880," is, in its first section, in these words, viz.: "When any person or corporation, required to pay a privilege tax under the laws of this state, upon any store, trade, bank, profession, business or calling, has from any cause failed, neglected or refused, in whole or in part, to make payment of such privilege tax and procure the proper licenses for the carrying on of such profession, business or calling, such person or corporation may, at any time within sixty days from and after the passage of this act, pay the true amount or the balance remaining unpaid by such person or corporation on account of such privilege for three years next preceding the v.14so.no.6-17

ing March 7, 1892, is the condition upon which the state offered relief to those who had subjected themselves to the penalty of nonenforcement of their contracts by reason of failure to pay their privilege taxes in any amount, and at any time. It is, by the words of the act, the payment of the true amount of the taxes which should have been paid, or the payment of the balance of such taxes which remain unpaid, where a smaller sum than was legally demandable had been paid, which, in certain cases, gives validity to an invalid contract, and opens the courts to its enforcement. If three years' taxes are due for the three years immediately preceding the date of the passage of the relief act, or if any balance on these three years' taxes is due, then the payment of the true amount of such taxes wholly unpaid, or the payment of the balance of such taxes remaining unpaid, vitalizes the invalid contract. It is the payment of three years' taxes, with damages at 25 per cent. on the whole sum due for the three years immediately preceding March 7, 1892, or the payment of the balance remaining unpaid on account of such privilege taxes for the three years next preceding March 7,

1892, which gives vitality. Three years' taxes must be paid, where these taxes constitute the true amount due, or the balance remaining unpaid of such taxes, with damages at the prescribed rate, where a part or parts of the taxes have been paid, but not the true amount; and these taxes or these balances are confined to the three years next preceding the passage of the relief act. To what class or classes of delinquents is grace extended on the terms prescribed? Is the offer universal? Does it embrace all who are in default, without regard to time? Or is it restricted to those who have not paid the true amount due by them, or the balances remaining unpaid by them, for the three years next preceding March 7, 1892? We are of opinion that the benefits of the act are to be confined to those delinquents whose failures are confined to a short recent period, to wit three years, and are not designed for those other delinquents whose failures are marked and persistent, and extend through a longer period than three years. We have seen that the terms of offered grace prescribe payment of the true amount due for the three years next before March 7, 1892, or payment of the balance of such taxes remaining unpaid. To extend the terms to those delinquent for all the years antedating the prescribed three years would be to release from the penalties of section 589 those who had failed and refused to pay their proper privilege taxes during all such antedating years, provided such persistent contemners of the law had only paid their privilege taxes for the three years next before the passage of the relief act. Under the view which we are combatting, the delinquents of six or eight or ten years have all their invalid contracts made enforceable, freely, unconditionally, if they shall be found to have paid what they were bound to do, and what all others are required to do, to obtain any relief, viz. their privilege taxes for the three years next preceding the date of the act of grace. It is difficult, perhaps impossible, to wring this interpretation out of the obscure and crudelyfashioned act; and we should not impute such an intention to the legislative department in the absence of some clear expression of the lawmaking power to that effect. If such had been the purpose of the act, how naturally and how easily could the legislature have declared it. It would have been so easy to say: "All persons delinquent, in whole or in part, for privilege taxes for the three years next before the date of the passage of this act, may relieve themselves of the civil disabilities imposed by section 589 of the Code of 1880, by paying the true amount due, or by paying the true balance due for such taxes for such period; and for all delinquencies more than three years old universal amnesty is proclaimed." But this is not what the legislature has said, and we cannot impute to its acts a purpose foreign to the language employed. We find the

limit of the operation of the act disclosed three several times in the section. The delinquent is to "pay the true amount or the balance remaining unpaid on account of such privilege for three years next preceding the passage of this act, according to the laws in force during such three years." Again: "The person making such payment of such three years' taxes, or such balances remaining due and unpaid on account thereof," shall be relieved from the penalties of section 589 "in respect of the effects of such nonpayment of such privilege tax on contracts made" by such delinquent. It was the legal effect of the nonpayment of such privilege taxes (taxes unpaid, in whole or in part, for the three years next preceding the passage of the act) which was to be obviated, on terms prescribed, and not the unconditional pardon of offenses antedating that three years' period, which the legislature contemplated. We do not think the act of March 7, 1892, applicable to the case at bar, and, agreeing with the court below on its finding that W. J. Lacey had not paid the privilege tax required for the year 1884, we reverse the decree and remand the cause.

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WOODS, J. The finding by the court below of the facts as to the filing of the assessment roll in the year 1879 is correct. It is manifest from all the evidence that the assessor of taxes did not complete and certify and deliver to the clerk of the board of supervisors the land assessment roll on or before the first Monday in July, 1879. By the settled course of decision in this state, sales made under this roll, by which the respondent claims title to the lands in controversy, are void, and conferred no title. The determination of this question, which lies on the threshold of the litigation, cuts the case up by the roots, and renders unnecessary any consideration of any of

the other questions pressed upon our attention save that only by which the appellant seeks reimbursement of the sums paid out by him in the purchase of the land from the state, and in payment of the taxes which have accrued since the date of said sales. If the respondent had asserted this demand for affirmative relief, his contention in this particular would be easily maintainable. But, as the appellant prayed no relief by any cross bill, contenting himself by stating in a paragraph in his answer to the original bill his desire for reimbursement if the sales should be held void, and his title invalid, the only relief which could possibly be afforded him, in any view which we might take of the powers of a court of equity, in the case as made, would be that partial and problematical relief which would be afforded by a decree in favor of the appellee canceling the appellant's tax title to the lands in controversy, on condition of the reimbursement of the sums expended by the appellant in his purchase from the state, and for the after-accrued taxes. We express no opinion as to the power of a court of equity to render such decree in the case as it stands; but, powerless to render that full relief to which the appellant is entitled, and by which a charge would be fixed upon the lands for his reimbursement if he had prayed for affirmative relief by a proper cross bill, justice to him will be more fully secured by affirming the decree on the case presented to us, and remitting him to an independent proceeding for that full relief which is his right. Affirmed.

LUKER v. STATE.

(Supreme Court of Mississippi. Jan. 1, 1894.)

ARSON-CIRCUMSTANTIAL EVIDENCE. Evidence that the owner of the cotton pen burned had prosecuted defendant as a defaulting road hand; that defendant had threatened to get even with him; that there was ill will between the two; and that tracks about the size of defendant's were found around the pen, and followed to, and some way along, the road leading to defendant's house,-is insufficient to convict.

Appeal from circuit court, Calhoun county; C. H. Campbell, Judge.

John Luker, convicted of arson of a cotton pen, appeals. Reversed.

Roane & Miller, for appellant. Frank Johnston, Atty. Gen., for the State.

COOPER, J. We find no error of law in this record, but are constrained to hold, notwithstanding the verdict of the jury, and its approval by the learned judge before whom the trial was had, that the evidence is not sufficiently strong to uphold the conviction. The evidence is wholly circumstantial, and consists of the facts that there was no good feeling existing between the appellant and the owner of the cotton pen burned, by

whom appellant had been prosecuted as a defaulting road hand; and that some threats had been made by appellant to "get even with him;" and also that tracks about the size of appellant's were found around the pen when it was burned, which tracks were followed to the public road leading towards appellant's house, and some distance along the road in that direction. But motive alone is not proof of crime, and we think it impossible to say that the evidence as a whole does more than raise a suspicion of appellant's guilt. Reversed.

JENNINGS v. WILSON.

(Supreme Court of Mississippi. Oct. 16, 1893.) FRAUDULENT CONVEYANCES CHANGE OF POSSESSION-CONDITIONAL SALE -FAILURE TO RECORD -CONSTRUCTION OF STATUTE.

1. The seller of a chattel on condition can not prevail against a creditor of the purchaser, where the purchaser has held possession of the chattel for over three years, and the seller has no record evidence of his right. Code 1892, $ 4227.

2. Code 1892, § 4226, provides that any conveyance of chattels without consideration, unless recorded, or unless possession remain in the donee, shall be void against creditors. Section 4227 provides that conditional sales of chattels shall be void as to creditors and purchasers of one remaining in possession for three years, unless recorded. Held, that section 4228, providing that these provisions shall not relate to purchasers or creditors subsequent to the fraudulent conveyance, does not affect sales under section 4227.

Appeal from circuit court, Holmes county; C. H. Campbell, Judge.

"Not to be officially reported."

Replevin by G. A. Wilson against W. J. Jennings for a printing press. Judgment for plaintiff. Defendant appeals. Reversed.

At the May, 1892, term of the circuit court of Holmes county, W. J. Jennings recovered a judgment against J. K. Almon, who was the editor and proprietor of the Durant Democrat. Jennings had execution issued on his judgment, and levied on the printing and job press then in the possession of said J. K. Almon. After the levy was made, G. A. Wilson filed a claimant's affidavit and bond, and replevied the property, claiming under a bill of sale made to him in 1887 by a Mr. Barron. On the trial in the claimant's issue, Mr. Wilson testified that he sold the property to Almon, taking his note for the purchase money. The bill of sale to Almon and the note were introduced in evidence, showing a conditional sale of the property to Almon with a reservation of title in Wilson until the purchase money was paid. The evidence shows that in 1887 Almon established a newspaper in the town of Durant; that at the heading of the paper it was printed that he was the editor and proprietor; that he rented the newspaper office in his own name, and carried on in his own name the newspaper and job press offices, and that he held himself out to the world as the owner of the

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