Gaines vs. Succession of Del Campo. The demand for rent and use of the furniture would be subject to the prescription of three years; and that for personal services, to the prescription of one year; so that neither was prescribed when the suit was brought. Plaintiff certainly rendered such services to Del Campo as entitled her to a liberal compensation; and although the whole of her furniture was not needed for the rooms and apartments occupied by Del Campo, his use of it was virtually exclusive, because he would not permit her to receive other boarders or lodgers, and she had but one, Davis. I attach no importance to the fact that plaintiff did not present her account, and have a settlement with Del Campo during his life. The testimony shows that she expected, not without reason, that she would be remembered, and compensated in the testamentary dispositions of Del Campo; and as her expectations were not realized, she is entitled to demand proper compensation. The amount allowed seems to me large; but it is not up to the estimation of plaintiff and her witnesses, and no contradictory proof was introduced or offered. I concur in the decree pronounced by Mr. Justice DeBlanc. No. 6469. MARTIN IVENS, JR., vs. E. M. IVENS & Co. C. S. JOHNSON, GARNISHEE. The validity of a garnishee's title to property in his possession, of which he claims the ownership, can not be passed on in a rule, faken to traverse the answers of the garnishee. Such an issue can only be passed on in a direct suit brought to test the sufficiency of the title. PPEAL from the Sixth District Court, parish of Orleans. Saucier, APP W. R. Mills for plaintiff and appellant. W. B. Lancaster and H. E. Lazarus for garnishee and appellee. The opinion of the court was delivered by EGAN, J. This is a proceeding in garnishment under fieri facius. Interrogatories were propounded to the garnishee who directly negatived the possession of any property or effects of the defendant, or any indebtedness to them. In answer to further interrogatories, the garnishee set up title by purchase and ownership of the only property of the character inquired about, and appended to his answers a written conveyance from H. S. Benham to him of the property the possession and ownership of which he thus claimed. He also excepted to the right of the plaintiff to proceed by garnishment process as attempted, to try the question of title, and asked to be excused from answering further. The 30 249 51 1303 30 249 52 178 Ivens vs. Ivens & Co. court sustained the exception and rendered judgment in favor of the garnishee on a rule taken by the plaintiff to traverse his answers. From that judgment the plaintiff has appealed and urges upon us his right to introduce evidence under his traverse to disprove the answers of the garnishee, and to show the title of the property in his possession to be in the defendants and not in the garnishee. In support of his pretensions, we are referred to the provision of article 262 of the Code of Practice that the garnishee must declare fairly and truly "what property belonging to the defendant he has in his possession by whatever title he may possess the same." It is manifest that the "title" referred to in this article is the right by which the garnishee holds for or under the defendant as bailee, lessee, or otherwise, and not to title to property the ownership of which is claimed by the garnishee to be in himself. The moment that character of title is interposed as a real, actual title, its validity and sufficiency can only be attacked by a direct action. See 2d R. 99; 1st R. 435; 17 L. 555; 3 A. 651 and 183; 12 A. 814; 19 A. 16; 25 A. 365; 26 A. 74. Nothing in the interrogatories or answers or otherwise in the record leads to the suggestion or belief that the matters proposed to be tried on the rule relate to any other property than that the ownership of which is claimed by the garnishee, with color of right, at least as set forth in his We can not in this form of proceeding try the question of the validity or sufficiency of that title or whether all the property claimed by virtue of it is covered by its terms. answers. It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed with costs of both courts. No. 6752. MRS. J. B. DUCOING, ADMINISTRATRIX, VS. JOSEPH BILLGERY. When the judgment appealed from only involves a claim for damages of four hundred and fifty dollars, and the possession of property, the value of which pos session is neither proved, nor alleged, this court is without jurisdiction. PPEAL from the Fourth District Court, parish of Orleans. Houston, APP. G. Schmidt and J. J. E. Planchard for plaintiff and appellant. ON MOTION TO DISMISS. The opinion of the court was delivered by EGAN, J. The appellee moves to dismiss this appeal upon two grounds. First: Because the amount in dispute is less than five hundred dollars. Ducoing vs. Billgery. Second: Because of the insufficiency in amount of the bond for appeal. It is only necessary to notice the first ground. This suit is by injunction to restrain the execution of a judgment of a justice of the peace under the landlord and tenants' act, and for four hundred and fifty dollars damages. The only issues presented are an amount of damages less than five hundred dollars, and the possession of real estate of the value of which possession there is no allegation, or other evidence, in the record. This appeal is from a judgment dissolving the injunction and nonsuiting the plaintiff. Taking the present record as a guide, this court is without jurisdiction. It is therefore ordered that this appeal be dismissed at the cost of the appellant. No. 5392. NICHOLAS CONNELL VS. ALEXANDER HILL. When one party submits a proposal for a contract to another, and the latter's acceptance of the proposal includes a material modification of the proposal, no contract will result until the modification has been acquiesced in by the party making the proposal. When a party who is sued in virtue of a contract made by a municipal corporation, denies, in general terms, that the corporation has complied with the law authorizing it to make such a contract, the burden of proof is on him to show that the law has not been complied with. The presumption is that the corporation has acted legally. When the work of constructing sidewalks on one of the streets in the city of New Orleans has been done under a contract made at the discretion of the Common Council, each owner of property fronting on such street can only be held for two thirds of the cost of the sidewalk in front of his property. A PPEAL from the Fourth District Court, parish of Orleans. Lynch, J. T. Gilmore & Sons for plaintiff and appellee. DEBLANC, J. On the 9th of July, 1872, the council of the city of New Orleans passed the resolution which follows: "The proposal of Nicholas Connell for making brick banquettes, with wooden curbing, on Second street, from Apollo to Claiborne-where not made, at $2.93 per lineal foot complete, and offering security satisfactory to the mayor and administrator of improvements in the sum of $2500, be and the same is hereby accepted-and the mayor directed to enter into contract in behalf of the city, per notarial act before the city notary for the faithful performance of said contract; provided that, in the notarial act, the contractor shall distinctly disclaim and relinquish any recourse upon the Connell vs. Hill. city, in case he shall fail to obtain from the property owners payment for said work." In obedience to that resolution, Benjamin F. Flanders appeared before the designated notary, on the 15th of July, 1872, and—in the words of the act attested by said officer, "granted, bargained, sold and confirmed unto Nicholas Connell, his heirs and assigns, the contract for the construction of brick sidewalks, with wooden curbs and gutters on both sides of Second street, from Carondelet to Claiborne, wherever the same have not already been made by the property owners, or in course of construction at the date of THIS Contract." That act also provides "that the entire breadth of the sidewalk shall be paved with lake bricks-that, after the pavement is completed, a coat of at least half an inch of sharp sand shall be spread over its surface. That the contractor shall commence the work ten days after the approval of the adjudication by the city council. That, upon reception and completion of the work, payment shall be made by the property owners upon bills made by the city surveyor, in conformity with section 24 OF THE NEW CITY CHARTER. That the contractor, in case the appropriation in the annual budget or estimate of the expenses for the year in which the surveyor's certificate may be issued, etc., shall be exhausted when said certificate is delivered to said contractor or contractors, shall not apply to the administrator of public accounts for a warrant therefor, until a fund for the payment thereof shall be provided in the budget for the following year." The last paragraph of the act is as follows: "And said Connell hereby releases and discharges the city from any and all liability connected with said work, and particularly for the payment of the same or any part thereof, in case said Connell should fail or be unable to collect from the property owners THEIR PROPORTION OR SHARE of said work." On the 9th of July, 1872, a proposal made by plaintiff was accepted by the city council. Their acceptance is before us, and-from its tenor -the proposal then accepted was, exclusively, to construct―at the rate of $2.93 per lineal foot-sidewalks and curbs on Second street. Connell's offer was conditionally accepted by the council. Its resolution is partly in these words : "In the notarial act, the contractor shall distinctly disclaim and relinquish any recourse upon the city, in case he shall fail to obtain from the property owners, payment for his work." This was more than one of those unimportant modifications of a contract, the assent to which is necessarily implied. With that modification, the contract which would have resulted from Connell's proposition, and its unconditional acceptance by the council, would have been .Connell vs. Hill. widely different from that which resulted from the conditional proposition of the council, and its unconditional acceptance by Connell. R. C. C. article The last proposition was not the same which had been submitted by Connell, and—until the 15th of July, when that last one was accepted by him, there was no contract between him and the council. Two days before his acceptance, Alexander Hill had contracted with one William Murray to do the whole of the work which-on the 15th-Connell had agreed to perform. To do that work, to do it, according to the council's specifications, Murray's price was $2.50 per lineal foot-forty-three cents less than that demanded by and allowed to Connell. That fact was immediately brought to the knowledge of the city surveyor, who testified that "he thought he told Mr. Hill that it was impossible for him to give permission to any one to make a banquette, after the contract was sold." It does not appear when the work was begun by Connell. He was to commence it, at the latest-in ten days after the council's approval of the adjudication. That approval was given on the 9th of July-the modified contract accepted on the 15th, and Connell's work on Second street was undoubtedly begun after defendant's contract with Murray and its notification to the city surveyor. It was completed on or before the 23d of November-for, at that date, the city surveyor delivered to Connell two certificates attesting that fact, and attesting too that, for work done in front of his property and the cost of publishing petitions, Alexander Hill was indebted to said Connell in the sum of $1674.10. To recover that amount, plaintiff has brought this suit and relies on the council's ordinance, the notarial act of the 15th of July and the surveyor's certificates. In his answer to plaintiff's demand, defendant denies the allegations on which it is based, and particularly that the city ever complied with the formalities prescribed by law to empower its authorities to improve the streets and make sidewalks, at the expense of the front proprietors. He also relies on the fact that he had employed Murray to do his work, and that said Murray was prevented by plaintiff from executing his agreement. In support of one of the branches of the defence, Hill's counsel argue that as they have denied a compliance by the city with the formalities prescribed by law to bind the front proprietors, it was incumbent on plaintiff—if those formalities were fulfilled, to have proven that fact, and that the council's resolution is not, by itself, sufficient to establish the legal existence of the denied authority of the council. We believe otherwise. In a kindred case, the Supreme Court of the United States said: "It is claimed that the contract is for the borrowing of money and that |