the interveners and third opponents ever pur chased said note from him, but paid the same for the mortgagor, thus extinguishing and destroying the mortgage. The third opponents objected to the filing of the amended answer, on the ground that it altered and changed the substance of the original answer. We do not perceive any alteration of the original answer. That denied that the opponents had any mortgage or privilege on the property, and the amended answer only set out the particular fact on which the general averment in the answer was based. Under these circumstances the amended answer was properly allowed to be filed.

The law applicable to the controversy herein is well settled. There is only a question of fact involved, and the sole question is whether Gumble & Co. acquired the note subject to a credit of $1,500.70, which was paid out of funds in their hands, belonging to Moreau, the maker of the note. The transfer of the note and the indorsement thereon do not prevent this inquiry, as the transfer and ownership of the note are not questioned. Testimony was improperly rejected to show the fact stated above, the judge ruling that the indorsement on the note could not be contradicted. Boyer sold the property to Moreau for $3,300, payable on demand, and on a credit for the balance of the price. The several payments were evidenced by promissory notes secured by vendor's privilege and special mortgage. The following letter was addressed to Gumble & Co. by Moreau: "Cottonport, La., Dec. 21, 1891. Messrs. F. Gumble & Co., New Orleans-Dear Sirs: I hate bought Mr. J. A. Boyer's plantation at Moreauville, with sawmill and cotton gin. He will call on you in a day or two with a mortgage note of $3,300; but I paid on said note $300. Please pay the $3,000 for me, and, should I not have that amount to my credit, hold the note against me until I ship all my cotton. I have 330 bales, and have shipped 300, and will ship the balance as soon as possible. *** Yours, truly, J. V. Moreau." To this letter Gumble & Co. replied as follows: "New Orleans, December 22, 1891. Mr. J. V. Moreau, Cottonport, Louisiana-Dear Sir: In reply to your favor of the 21st instant, we will say we must decline in complying with your request, for two reasons: First of all, we will not pay the mortgage note of J. A. Boyer, drawn by you in his favor; and, secondly, we cannot recognize your letter of above date, as it is neither written nor signed by you. Now, if you will write us to buy the note in question, and write and sign the letter yourself, all will be satisfactory. We will buy the note, and hold it until you ship enough cotton to cover. Mr. J. A. Boyer understands the situation. Awaiting your reply, we remain, truly yours, Ferdinand Gumble & Co. P. S. Write your own letter." Moreau answered this letter as follows: "Cottonport, December 29th, 1891. F. Gumble & Co., N. O., La.

-Dear Sir: Please find inclosed B/L for 4 B/C; also please go and buy my note of J. A. Boyer, which is in Mr. Charles Hernandez's hand, and keep the said note until paid, and send me a receipt for the note, as you hold it for security, and I will ship enough to pay all due you if the roads don't get bad. * Yours, respectfully, J. V. Moreau." These letters, which were introduced by the plaintiff in executory process, showed that Gumble & Co. declined to pay the note for Moreau as his factor and agent, but consented to purchase it on their own account, and hold it as security for the money advanced as an accommodation to Moreau. In the admitted testimony, and even in that rejected, there is nothing to contradict the meaning of these letters, which undoubtedly show that, at the request of Moreau, Gumble & Co. purchased the note, and positively declined to pay it for account of Moreau. The indorsement on the note is as follows: "For value received, I hereby transfer the within note to Ferdinand Gumble & Co., with all the rights and interests I have in said note, without recourse against me." This indorsement added nothing to a simple indorsement, which carries with it all the securities of the note. The testimony which was rejected was introduced to show that the mortgage debtor, the maker of the note, notwithstanding the agreement in the letters, had paid with his own means, through Gumble & Co., his agents, the $3,000, balance due on the note. This testimony would in no way contradict the indorsement, as its transfer to Gumble & Co. is not at issue. Their right to sue on the note is not questioned. They are, by the pleadings, recognized as the legal holders of the note. It is certain that if Gumble & Co. had no funds in their hands at the time they bought the note of the defendant Boyer, they had the right to purchase the same for their own account. And if they purchased the note, and paid the credit indorsed on it, out of the funds of their principal, he is to be considered as having made the payment, and the mortgage would be canceled to that amount. From the indorsement of payments on the note it appears that Moreau paid only $1,500.70 on it after the first payment of $300 before it went into the hands of Gumble & Co. Now if, in the check of Gumble & Co. to Hernandez, who held the note for collection for Boyer, this $1,500.70 credit was included, and was paid out of the funds of Moreau in their hands, they could only, of course, buy the note subject to this credit, and would be entitled to share in the proceeds concurrently for the balance due, provided the note was purchased for their own account, and not solely for Moreau, as his agent, for whom they advanced the money, and to whom they charged the same in their account. These facts the defendant Boyer should have had an opportunity of presenting, if they existed, as alleged by him. We have not discussed each exception to testimony noted in the rec

ord, as the objections all go to the same purpose, and under our ruling all of the rejected testimony should have been received in evidence.

Boyer, at the sale of the property, was the last and highest bidder. He tendered to the sheriff the costs and the balance on the second mortgage note. The sheriff declined to adjudicate the property to him because of his failure to comply with his bid by paying the entire amount demanded in the writ of seizure and sale, and also because he was ordered in the third opposition of Gumble & Co. to retain the entire proceeds in his hands for final distribution. The sheriff could not do otherwise than obey the mandate of the court, and the defendant Boyer's speediest remedy was for a rule against the sheriff to adjudicate the property to him, and to make him a deed to it. The relief prayed for by Boyer was denied, and he was ordered to comply with his bid, and, in default thereof, to again sell the mortgaged property. From this judgment Boyer took a devolutive appeal. The defendant Moreau has not appealed, and we cannot disturb the judgment as to him. It is therefore ordered, adjudged, and decreed that the judgment appealed from, so far as it involves the issues between third opponents and plaintiff Boyer in the executory process, be annulled, avoided, and reversed, and it is now ordered that the case be remanded, to be proceeded with according to law.

(46 La. Ann. 767)

BOYER v. CANNON, Sheriff (GUMBLE et al., Interveners. No. 11,530).

(Supreme Court of Louisiana. April 9, 1894.) JUDICIAL SALES FAILURE TO COMPLY WITH BID. A party who has been declared by a judgment of court, not suspensively appealed from, as having failed to comply with his bid, is without interest to enjoin the subsequent sale of the property under an order of court made in pursuance of said failure to comply with the terms of the sale.

(Syllabus by the Court.)

Appeal from district court, parish of Avoyelles; Adolphe V. Coco, Judge.

Bill by J. A. Boyer against Clifton Cannon, sheriff, to enjoin a judicial sale. Gumble & Co. intervene. From an order granting an injunction, the interveners appeal. Reversed.

G. H. Couvillon, for interveners and appellants. William H. Peterman and Clegg & Thorpe, for appellee.

MCENERY, J. Many of the facts to the proper understanding of this case are stated in the case No. 11,531, of Gumble v. Boyer (just decided) 15 South. 84. The defendant in that case took a devolutive appeal. The defendant Boyer refusing to comply with his bid, the sheriff, in pursuance of the decree, advertised the property for sale. In doing so he advertised the property as being sold under a fi. fa., instead of a writ of

seizure and sale issued in pursuance of an order of seizure and sale. For this reason the defendant Boyer enjoined the sale. Gumble & Co. intervened. Objections were made to their intervention. It was properly overruled, as they had an interest in the sale of the property, to realize the amount of the concurrent mortgage note which they held. There was no personal judgment rendered in this case under which a fi. fa. could issue. This is not denied, and it is admitted that the proceeding was irregular; but the defense is that it was the fault of the printer, and that the defendant has shown no irreparable injury, and was not the owner of the property, and had no interest in arresting the sale. The decree of the district court was that the defendant Boyer had not complied with his bid, and the property was ordered to be again offered for sale. This judgment was not suspensively appealed from, and there was nothing in the way of its execution. Boyer was therefore a stranger to the proceeding under the order of court, and was without interest to arrest the sale of the property. The said order to sell was, in effect, an interlocutory order, carrying into execution a judgment not arrested by a suspensive appeal. Whan v. Irwin, 27 La. Ann. 708; State v. Judge, 30 La. Ann. 229; Boutte v. Executors, etc., Id. 177; State v. Ellis, 45 La. Ann. 14 South. 308; Murphy v. Murphy, 46 La. Ann. - 14 South. 212. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and the injunc tion issued herein be dissolved, at costs of plaintiff in injunction.

case calling for a reversal. The application rests entirely upon defendant's affidavit. In State v. Washington, 36 La. Ann. 341, we said: "Applications for new trials, in criminal cases, on the ground of newly-discovered evidence, must always be received with caution. The inducements to false swearing on the part of the person convicted are obvious, and therefore the fule is well established that his affidavit, alone, will not suffice. It must be supported by the affidavits of others, and when possible by those of the newlydiscovered witnesses. The mere statement that the accused did not know of the testimony in time to have brought it forward is not sufficient." Expressions of similar import will be found in State v. Cotten, 36 La. Ann. 980, and in State v. Hyland, Id. 87. Judgment affirmed.

(46 La. Ann. 700)

STATE v. SARRADAT et al. (No. 11,391.) (Supreme Court of Louisiana. April 9, 1894.) ORDINANCES-REGULATION OF MARKETS - CONSTITUTIONAL LAW.

1. City Ordinance 4155, Council Series, is constitutional, legal, and valid.

2. The city council of New Orleans has the unquestioned authority to designate a place where perishable food may be sold, such as meats, fish, fruits, vegetables, etc., to regulate the police of the market places, to lease the same, not for the purpose of revenue solely, but in order to maintain the market buildings, and the police of the same; and for this purpose to authorize the lessee to charge a reasonable sum for stalls and space.

3. Because one raises his own produce, gives him no right to sell it in violation of a city ordinance.

4. The city ordinance regulating the mar kets must give free access to the markets, and afford proper facilities to persons who desire to sell goods which the ordinance requires to be exposed for sale there. The ordinance must be impartial, making no discriminations, and creating no monopolies, and offering no serious impediments to trade.

(Syllabus by the Court.)

Appeal from recorder's court of New Orleans; August M. Aucoin, Judge.

John L. Sarradat and others were convicted of violation of an ordinance, and appeal. Affirmed.

Sambola & Ducros, for appellants. E. A. O'Sullivan, City Atty., and George W. Flynn, Asst. City Atty., for the State.

MCENERY, J. The defendants were convicted and fined for violating sections 22, 26, 27, of City Ordinance 4155, Council Series, amended by Ordinance 4274, Council Series. They appealed, alleging the unconstitutionality and illegality of the ordinance. In detail the defense is that the provisions of said ordinance are oppressive, and contrary to the enlightened policy of the state, and, "inasmuch as section 27 aforesaid prohibits the sale of their vegetables in any other part of the market or vicinity, and during more than half the business portion of

the day,-i. e. between the hours of seven o'clock a. m. and two o'clock p. m., in violation of the first and the two hundred and sixth articles of the state constitution;" that the said sections of the ordinance are arbitrary, and in restraint of trade, and in contravention of common as well as private rights; that the provisions of section 22, if they apply to defendants' calling, exclude them from the markets, in violation of their constitutional rights to sell their produce; that the sale of the defendants' vegetables is not a nuisance, and injurious to the public health; that the police force of the city and the market lessees are convinced of the illegality of the ordinance, and have not heretofore attempted to enforce it, and permit the sale of vegetables from gardener's carts at the market on the payment of 25 cents per day. Article 206 of the constitution has no application to the case. Article 1 has reference to the origin of government from the people, and defines the legitimate objects of government, its legitimate end being "to protect the citizen in the enjoyment of life, liberty, and property." Its failure to protect the public health would be as great a violation of its "legitimate end" as to entirely depart from its object by the enactment of a law infringing upon the rights of the individual. We may assume, therefore, that the proper regulation of the market is a sanitary measure, being for the purpose of promoting the public health, and a legitimate exercise of the governmental power. In the exercise of this power the legislature has conferred ample and complete power on the city council to establish markets, and to provide for the cleanliness and salubrity of the city. In carrying out this conferred power, the city council has the power "to designate certain spots or places for the sale of certain articles of provisions. In doing so they facilitate the people in the purchase of provisions of first necessity by confining the sale of them to particular places and hours of the day, and they facilitate the inspection of provisions; and by the hire of stalls they raise money to defray the expenses of building market houses, and pay the salaries of officers they appoint to prevent the sale of unsound provisions; and they have an undoubted right to prevent the violation of ordinances they may pass in establishing markets." Morano v. Mayor, 2 La. 217. The doctrine enunciated in this case seems to be universal. Dill. Mun. Corp. § 313; Parker & W. Pub. Health & Safety, par. 305; State v. Gisch, 31 La. Ann. 544. The right to es tablish public markets is accompanied by the right to prevent the establishment of private markets within prescribed limits. Parker & W. Pub. Health & Safety, par. 307; State v. Gisch, 31 La. Ann. 544; City of New Orleans v. Stafford, 27 La. Ann. 417; State v. Schmidt, 41 La. Ann. 27, 6 South. 530; State v. Barthe, 41 La. Ann. 46, 6 South. 531; State v. Natal. 42 La. Ann. 612, 7 South.

781; State v. Deffes, 44 La. Ann. 164, 10 South. 597. And also to prohibit the peddling about the streets of the city of all perisnable food articles. The city council therefore has the unquestioned authority to designate a place where perishable articles of food, such as meat, fish, fruits, and vegetables, may be sold; the market limits; to regulate the police management of the market places; to lease the same, not for the purpose of revenue alone, but in order to maintain the proper police of the markets; the building of market houses, and the repairs of the same; and for this purpose to authorize the lessee to charge a reasonable sum for stall and market room. Morano v. Mayor, 2 La. 217. The establishment of market places is for public convenience, as well as for the promotion of the cleanliness and health of the city. It is not a permit or license to sell particular articles there, and therefore no special license for selling at that particular place can be exacted. But this does not prohibit the payment for the use of stalls and market room or space, which is exacted for the purpose of keeping up the market places. The market places having for their double purpose the preservation of the public health and the general convenience of the public, all persons who resort to them for the sale of such articles as are required to be sold there must have access to them. The market regulations must be impartial, affording the same rights to all, avoiding the creation of monopolies in one or several persons, and the prohibition of trade in any article, or an undue restraint of trade. Parker & W. Pub. Health & Safety, par. 308; Dill. Mun. Corp. § 380; City of Jacksonville v. Ledwith, 26 Fla. 163, 7 South. 885; State v. Mahner, 43 La. Ann. 497, 9 South. 480. Section 22 of the ordinance prohibits the peddling of meats, fish, game, fowls, vegetables, and fruits in any of the public markets, or within six blocks of same. Section 26 gives the right to market wagons to back up to the banquettes along the markets, to deliver goods previously sold to occupants of stalls. It prohibits the owners of the wagons from selling their produce from said wagons between the hours of 7 a. m. and 2 p. m. No fees or dues are to be collected from said wagons. Section 27 prohibits the sale of any article on the sidewalk or the public walks in front or in the rear or around any of the markets. The offense of defendants was selling from their wagons while they were backed to the market banquette for the purpose of delivering goods sold to owners of stalls.

Under the terms of the law referred to above, we are unable to see where any of the rights of defendants were infringed. They were dealers in vegetables, which the ordinance required should be sold, if within mar

ket limits, within market hours. They were not excluded from the sale of their produce in the markets. They could have rented stalls or space, and disposed of their goods within the market inclosure. There was no monopoly created in favor of one or more persons by the prohibition of the sale of certain articles immediately on the banquettes and approaches to the markets. This regulation did not prevent their sale elsewhere, either in the market or beyond the market limits. The market ordinance is not oppressive, as it interferes with no right of the defendants. It is not partial, and does not operate against them exclusively, but is applicable to the vendors of articles or goods required to be sold within certain limits and within certain hours. The conflict about the deficiency of room for the numerous carts or wagons at the market has nothing to do with the case. There is no prosecution for obstructing the approaches to the market by defendants' carts.

The testimony which was rejected also has no place in determining the question at issue. It is immaterial whether the defendants for a long time were permitted by the market lessees and the police to sell from their wagons while backed to the market sidewalks, or that they were required to pay 25 cents for selling from their wagons. The ordinance does not require the payment of such a fee, and the evidence was irrelevant.

Because the defendants raised the produce which they sold, in violation of the ordinance, gave them no special privilege of exemption from its operation. The case of State v. Blaser, 36 La. Ann. 363, relied upon by defendants, presents a different state of facts, and different issues were involved, and it therefore is inapplicable here. Judgment affirmed.

Same as the case of State v. Sarradat,

15 South. 87.
(Syllabus by the Court.)

Appeal from recorder's court of New Orleans; August M. Aucoin, Judge.

Henry Fried and others were convicted of a violation of a city ordinance, and appeal. Af. firmed.

Sambola & Ducros, for appellants. E. A. O'Sullivan, City Atty., and George W. Flynn, Asst. City Atty., for the State.

MCENERY, J. The defendants in this case were prosecuted for the same offense as that charged in the case of State v. Sarradat, 15 South. 87. The two cases, presenting the same issues, were by consent submitted together. For the reasons assigned in case No. 11,391, State v. Sarradat (just decided), the judgment appealed from is affirmed.

(46 La. Ann. 715)

WITTLOW v. SUAREZ. (No. 11,380.) (Supreme Court of Louisiana. April 9, 1894.)

RES JUDICATA.

Agreement of settlement or compromise of claims against a succession, pleaded and maintained as a bar against a suit on such claims, cannot be afterwards used as a defense against the suit on the agreement itself.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Francis A. Monroe, Judge.

Action by Mary Ann Wittlow against Mrs. Louisa Suarez. From a judgment for plaintiff, defendant appeals. Affirmed.

A. L. Tissot, for appellant. W. S. Benedict and H. C. Cage, for appellee.

MILLER, J. The plaintiff sues to enforce an agreement by which defendant, universal legatee of Joseph Llula, agreed, as soon as the litigation pending in the succession of the deceased was ended, to convey to plaintiff certain real estate. The defense was res judicata, based on the judgment in the suit between the same parties decided by this court in 44 La. Ann. 61, 10 South. 406, and estoppel arising, the answer alleges, from plaintiff's repudiation of the agreement sued on, and the repudiation is charged to consist in plaintiff's institution of the suit reported in 44 La. Ann. and 10 South. On these exceptions the suit was tried, and defendant appeals from the judgment in favor of plaintiff.

It appears that the plaintiff asserted the right to one-half of the property left by Llula; that with the view of averting litigation, and for other causes, as we gather from defendant's brief, plaintiff and defendant entered into the agreement on which plaintiff sues, for the conveyance to plaintiff of certain property. It is stated in defendant's brief this was not an agreement, but a compromise. Whether one or the other is, in our view, immaterial. Subsequent to the agreement the plaintiff brought the suit for one-half the property of the succession of Llula. The agreement now sued on was urged by defendant in the previous suit as an estoppel against plaintiff. The decision in 44 La. Ann. 61, 10 South. 406, maintained that estoppel. Plaintiff's present suit on the agreement is the sequel of her previous controversy. The decision in 44 La. Ann., 10 South., determined that plaintiff had no right to one-half the property of Llula; but, as to the agreement, the decision upheld it as an estoppel of plaintiff's demand in that suit. The expression of the court in that decision, it is said in defendant's brief, was obiter. But the agreement was part of the defense. It was therefore properly passed upon. an estoppel in the previous case, it was because of the obligation of defendant to convey the property for which plaintiff now sues. Therefore the previous decision, in

If

stead of forming res judicata against plaintiff, supports her present demand.

As to the exception that plaintiff is estopped from now suing on the agreement, because she repudiated it by bringing the previous suit, we think the decision in that suit in effect reserves her right under the agreement. The defendant affirmed the validity of the agreement when she pleaded it in that suit. If valid to conclude plaintiff's asserting a demand for half the property, it certainly ought to avail plaintiff to secure that which it stipulates she shall have. The defendant cannot, in our opinion, after successfully using the agreement as a shield against the demand of a different character in a previous suit, now deny the plaintiff's right to the property stipulated to be conveyed to her by the agreement. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.

1. Act No. 106 of 1892, entitled "An act to provide for contesting elections held under articles 209, 242, and 250 of the constitution of 1879 and the laws to carry the same into effect," is not unconstitutional as violative of articles 29 and 30 of that instrument.

2. The police jury of Bienville parish was properly made a party defendant in the contest of an election held under Act No. 88 of 1892 by citation upon its president.

3. Where the court, from all the circumstances in a particular case, and from all the evidence in the record, can reach a conclusion as to what the actual legal vote cast at a particular precinct was, it is its duty to give effect to the vote, notwithstanding the election officers may have been guilty of misconduct in some particular respect. The rejection of the entire returns and the entire vote at a poll for misconduct of the election officials is not by way of penalty or punishment upon the commissioner, or the particular persons or interests to be benefited by their illegal action, but only because in the special case the truth is not deducible from the returns and the evidence. The political rights of the legal voters must be saved if it be possible to do so.

4. Where parties contesting an election place one of the commissioners upon the stand, and through him prove a particular illegal act by the commissioners which is susceptible of separation from their general conduct, and susceptible of special correction, and the same commissioner affirmatively proves (if his testimony is to be taken as trustworthy) that the act shown was the only one of which complaint could be made, and that otherwise the Votes cast were legally cast, and the returns made otherwise correctly showed the vote as cast, the court should limit the remedy to throwing out the votes shown to have been illegally cast and returned. Whether or not the commissioner, under such circumstances, is to be believed, will depend upon all the facts and circumstances of the case and the whole evidence in the record. He is not necessarily to be disbelieved. Plaintiffs, in placing him upon the