Volume 104 — Louisiana Reports

<p>ON APPLICATION for Writs of Prohibition and Certiorari.</p>

<p>ON APPLICATION for Writs of Injunction, Prohibition and Certiorari.</p>

<p>Syllabus.</p> <p>1. By the terms of the Statute (Act 106 of 1892) an election held to take the sense of property tax-payers, on a proposition to grant a tax in aid of a railway enterprise, may be contested by tax-payers in interest on grounds of “fraud, illegality and irregularity.”</p> <p>2. But the suit must be brought within three months after the promulgation, of the result of the election.</p> <p>3. The words “illegality and irregularity” are broad in their scope and embrace all matters preceding the election and leading up to it, as well as matters affecting the election itself.</p> <p>4. Thus, a suit contesting a special tax election, and seeking to avoid the tax levy predicated thereon, on the ground that the petition of property tax-payers addressed to the Police Jury, asking that body to order the special election, contained less than one-third of all the property taxpayers of the Parish, must be brought within three months from the promulgation of the result of the election.</p> <p>5. Only' those persons who are named in the record as parties plaintiff or defendant, or who made themselves parties thereto by intervention, are within the meaning of the term “parties to a suit.”</p> <p>6. The timely institution of a contesting suit by certain of the tax-payers which suit is compromised and discontinued, cannot have the effect of suspending the perscription or peremption of the statute in favor of other tax-payers who did not sue in time but bethought themselves to sue after-wards.</p> <p>7. Substantial compliance on part of the grantee with the terms and conditions of the grant suffices.</p>

<p>APPEAL from the Fourth Judicial District, Parish' of Grant— Machen, J.</p>

<p>Syllabus.</p> <p>Where, in answer to a suit on a fire policy, it is charged that the claim made against the insurer is in furtherance of a systematic atttempt fraudulently to collect more than is due, and that, to that end, the plaintiffs have attempted, “both before and after the fire, to conceal the origin and prevent the discovery of said fire,” testimony tending to show that the connections of an automatic fire alarm, on the premises upon which the fire occurred, were cut, in order to prevent the existence of the fire from becoming known, and to bring home such cutting, or knowledge thereof, to the assured, who are the plaintiffs before the court, should not be excluded on the ground that neither incendiarism, nor a violation of the automatic fire alarm clause in the policy, are specifically charged in the answer.</p> <p>2. Where this court finds error in the ruling of a trial court excluding testimony upon a particular point, the case may be remanded, in order that testimony upon that point may be received,' without re-opening it to further evidence upon other issues.</p>

<p>APPEAL from the Eleventh Judicial District, Parish of Bed Eiver —Porter, J.</p>

<p>IN RE Menard Brothers Applying for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans, State of Louisiana,</p>

<p>Syllabus.</p> <p>1. In an indictment for shooting with a pistol with intent to kill, the trial court charged the jury that one of two verdicts only could be returned— “guilty” or “not guilty.” No objection was raised on behalf of the accused at the time, no bill of exception reserved, and no special charge as to other verdicts requested. A conviction followed, and then, in a motion for new trial, it is set up that the court erred in the charge referred to, and that besides a verdict of “guilty,” or one of “not guilty,” 5t was competent for the jury to have returned a verdict of “assault with a dangerous weapon,” or of “assault with intent to kill,” or of simple “assault.” To the ruling of the lower Judge, refusing the new trial, a bill of exceptions was taken and the case brought here.</p> <p>Held : The objection comes too late when raised for the first time on a motion for new trial. The time to have raised it was at the conclusion of .the .charge. •</p> <p>2. The accused cannot be permitted to take his chances of acquittal under the charge as delivered, and, afterwards, when fche chance goes against him, object to the charge and urge it as grounds for new trial.</p> <p>3. Capital cases an exception to the rule.</p> <p>4. Admonition to District Judges to carefully instruct jurors as to the several verdicts that may be responsive under the law to indictments.</p>

<p>Syllabus.</p> <p>1. To constitute an adjudication of property, owned in indivisión between a father and his minor children, to the former, something more is required than the recommendation of a family meeting that the adjudication be máde, than the appraisement of the property by experts, and than an order of court homologating and approving the proceedings of the family meeting.</p> <p>2. These are proper and necessary as far as they go, but in addition there must be a judgment or decree of court formally adjudicating the property to him, and this judgment, or an act of adjudication based upon the same, must be recorded in the mortgage records.</p>

<p>Syllabus.</p> <p>Courts will not construe contracts until actual issues have arisen from them.</p>

<p>Syllabus</p> <p>1. In a prosecution for assault to commit' rape, the one question propounded in general terms: “Has complaint been made'!” and the answer “yes” or “no,” do not indicate that any indignity has been offered, nor do they prove, or tend to prove, that defendant is guilty of having attempted to commit the crime charged. ,</p> <p>The following, from Greenleaf, sufficiently points out the character of the question to be propounded, which, while not sacramental as to form, sufficiently indicates that it must appear that a crime is referred to. “The practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her and to receive only a simple ‘yes’ or ‘no.’ ” Unless it appears that the question tends to the proof of a crime, and a complaint in that direction, it will not be held that the ruling was prejudicial and the finding of the jury erroneous.</p> <p>But, considered as a proposition of law, the mere fact of a complaint of a wrong attempted made by an asserted victim of an attempted crime upon her person to a third person, if contemporaneous, and part of the res gestae, may be testified to by a third person to whom the complaint was' made.</p> <p>2. A witness may testify as to the identity of the defendant as one whom she knows, without giving ground for the objection that the defendant in a case of rape, or attempted rape, should be identified by the one upon whom the outrage has been committed, or, upon whom the attempt was made.</p>

<p>' Syllabus.</p> <p>The rights of a wife in community cannot be advanced to the prejudice of the claims of community creditors. Movables sold to the community on a credit pass to the wife, under a nation en paiement from the husband, subject to the privilege of the vendor.</p>

<p>ON Application for Writ of Mandamus.</p>

<p>Syllabus.</p> <p>An indictment for obtaining money under- false pretences which in substance avers, that the accused did unlawfully, falsely and designedly pretend that he had certain monies deposited to his credit in bank, against which he could draw a check, and upon which he did draw a check on which he obtained money, is sufficient averment, notwithstanding it does not 'allege' that the check was presented and payment refused, it being averred that the accused had no money deposited, or to. his credit in bank, nor any monies therein upon which he could draw a check; and that same was a! false pretence, as the accused well knew at the time, and that by means of said false pretence he did then and* there feloniously and unlawfully obtain the sum of money named.</p>

<p>Syllabus.</p> <p>1. An injunction enjoining a person from talcing possession of another's property, prior to payment under expropriation proceedings, should not be dissolved on bond. Private property cannot be taken for public purposes without just and adequate compensation being first paid. (Constitution 1898, Article 167.)</p> <p>The owner’s right of retention of his property being guaranteed by the Constitution, the invasion of that right is per se an irreparable injury.</p> <p>2. An order dissolving an injunction on bond may work an irreparable injury and is appealable suspensively when the act, as alleged, amounts to a trespass; and the effect of dissolving the injuction would be to change the possession of immovable property. (State ex rel Sigur vs. Judge, 33 Annual, 133.)</p> <p>3. Usurpations and wrongs to rights of private properly cannot be justified by considerations of benefit to commerce, and the right of expropriation of private property can only be exercised according to the forms of the law. (Bruning vs. New Orleans Canal and Banking Co., 12 Annual, 541; Dudley vs. Tilton, 14th Annual, 286 ; Ivirk vs. Kansas City, Shreveport & Gulf Railway Co., 51st Annual, G82.)</p> <p>4. A deposit in money in the hands of the sheriff subject to the order of the owner of property sought to be expropriated does not authorize the plaintiff in expropriation proceedings to take possession of the property, , prior to the verdict of the jury and the judgment of the court therein, even though the amount of the deposit may be largely in excess of the value of the property.</p> <p>5. A district judge who has refused to grant a suspensive appeal from his order illegally dissolving, under Article 307 of the Code of Practice, an • injunction on bond should be ordered by mandamus to grant such an appeal. A plaintiff who has obtained an injunction restraining a person from taking possession of his property in expropriation proceedings prior to payment does not lose the right to have such an order issued for the reason that since the application for a mandamus the property has been expropriated by judgment and that under the judgment, plaintiff in the expropriation proceedings has made a deposit in the hands of the sheriff under Article 2634 of the Civil Code.</p>

<p>Syllabus.</p> <p>The east and west lines of the east 1-2 of Sec. 8, T. 14, S. R. 8 E., are correctly located.</p> <p>The land in dispute as relates to eastern and western boundaries is within the limits of the area just described.</p> <p>Plaintiff’s dwelling and that of her son, not long after her purchase in 1808, were built about or near the points indicated by letters X and Y and at that locality she was entitled to an area of 80 58-100 acres by deed dated in 1858. Defendant’s deed to same area dates from 1874. In matter i'of location, and area, he who is prior in time is stronger in right.</p> <p>There is controversy about the north and south boundary of the land. On the south, viz: the Borre!, and Scott lines, it does not satisfactorily appear that there ever was a Borrel and Scott line, and if there was It never joined the land in controversy.</p> <p>It does not appear satisfactorily who originally owned the lands north of and adjoining the land in controversy. The court holds that as plaintiff’s vendor was the owner of eighty 58-100 acres near the dwellings m question, plaintiff is entitled to the area claimed, and that the defendant being a purchaser subsequent in date is not entitled to judgment ousting the plaintiff from lands in that locality.</p> <p>Rental is allowed from judicial demand on lands actually in controversy.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.</p>

<p>Q N Application for Writs of Prohibition, Injunction and Certiorari.</p>

<p>Syllabus.</p> <p>A District Judge has the right to be heard and consulted in so far as relates .to the fixing of the terms of the Court of Appeals in the parish or parishes in which he is one of the judges of that court.</p>

<p>Q N APPLICATION for Writ of Mandamus.</p>

<p>APPEAL from the Fourth Judicial District, Parish of Caldwell— Machen, J.</p>

<p>Syllabus.</p> <p>Where an appellant obtains an extension from this court in which to bring up his appeal and yet neither flies the transcript within the extended period, nor obtains, on proper showing made, a further extension of time, the appeal will be dismissed.</p>

<p>APPEAL from the Second Judicial District, Parish of Bossier— Watkins, J.</p>

<p>APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans.^— Thea/rd, J.</p>

<p>APPEAL from the Fourth Judicial District, Parish of Grant— Machen, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans —- King, J.</p>

<p>Syllabus.</p> <p>The fact that a passenger upon a ferry boat may be thrown down and have his leg broken, by the striking of the boat at the approaches to the landing, is entirely consistent with the supposition that the boat may have been landed in a careful and prudent manner.</p> <p>When the evidence shows that it was so landed a plaintiff can not recover damages.</p>

<p>APPEAL from the Twenty-third Judicial District, Parish of St. Mary — Allen, J.</p>

<p>Syllabus.</p> <p>1. The general venire of jurors should not be set aside for defects or irregu-' larities in its selection unless it should appear that some fraud has been practiced, or some great injury committed therefrom which would work irreparable injury. (Selection 14, Act No. 135 of 1898.)</p> <p>2. Parties accused of crime necessarily punishable at hard labor have no legal right to waive trial by jury, and insist upon being tried by the District Judge. (Article 117, Constitution of 1898.)</p>

<p>IN RE Joseph Yochim Applying for Gertiorari, or Writ of Review, to the Court of Appeal, Parish of Orleans, State of Louisiana.</p>

<p>ON APPEAL from the Eour'th Judicial District, Parish of Lincoln. —Dawkins, J.</p>

<p>APPEAL from the First Judicial District, Parish of Caddo— Land, J.</p>

<p>Syllabus.</p> <p>1. An exception to tbe capacity of a mother suing as natural tutrix of a minor child to recover, on Ms behalf, damages for a personal injury can not be pleaded after answer filed. (Montford vs. Schmidt, 36th Annual, 750.)</p> <p>2. If an accident happens to a child by its running upon a track in front of an approaching electric car no liability attaches to the motorman or his employer, if the circumstances were such as were not calculated to cause the motorneer in the exercise of proper prudence and caution, to suspect that it would do so, and he takes immediate action to save the situation the moment its intended course is shown. (Gallaher vs. Railroad, 37th Annual, 288. Gannon vs. Railroad, 48th Annual, 1004.)</p>

<p>Syllabus.</p> <p>The assault by shooting at, or with intent to commit murder, admitted of indictment for either, but when constituting but a single act, such offenses may be charged in one count.</p> <p>The employment of the word feloniously in an indictment for wilfully shooting at, is surplusage.</p>

<p>ON APPLICATION for Writs of Gertiorari, Prohibition and Habeas Corpus.</p>

<p>Syllabus.'</p> <p>The gross profits of the business of borrowing anfl loaning money by an agent or intermediary, are the commissions or charges that are paid by the borrower over and above the amount that is expended in negotiating the loan.</p> <p>One engaged in procuring exchange on foreign banks for the use of local customers, and in so doing pays a discount and charges same to the customer, in addition to his commission, is not entitled to any share in the discount, and same constitutes no portion of his gross profits.</p>

<p>Syllabus.</p> <p>1. In this action by plaintiff against one of the defendants, to recover the price of slates, the latter, as a witness, admitted owing nearly the whole amount claimed and the remainder of plaintiff’s claim is sustained by the testimony.</p> <p>2. The debtor’s note for an open account does not, in the absence of an agreement, norate the debt. In obtaining an extension of time and giving a new note without obtaining a surrender of the old note, there was no novation. The obligation itself has never changed, only the evidence of the obligation has changed.</p> <p>3. There is no nation en paiement as relates to third persons unless the property donated in satisfaction of a debt is delivered.</p> <p>4. An attachment will be maintained in which the amount of the bond is equal to the amount sworn to, though not equal to the amount claimed.</p>

<p>Syllabus.</p> <p>1. Tie words “unlawfully, maliciously and feloniously,” used in an indictment for wounding less than maybem, are not the equivalent of “wilfully and maliciously” employed in the statute (Act 17 of 1888) relating to that offense.</p> <p>2. “Unlawfully” and “feloniously” were not necessary to .be used, and neither supplied the place of “wilfully.” ■</p>

<p>Syllabus.</p> <p>1. The fact that a juror has formed and expressed an opinion, from what he has been told or has read, does not disqualify him where he states on his voir dire that he can, nevertheless, try the ease fairly and impartially, upon the evidence presented in court and upon the law as given by the judge, and that he is free from bias and prejudice.</p> <p>2. Where a motion for new trial is made, upon the ground that the District Attorney, in his argument to the jury, misstated and, by gesture, 'misrepresented the facts, as established by the evidence, and no action by the trial judge is invoked at the time, and the testimony, taken in support of the motion and on behalf of the State, (which, however, fails to show that the District Attorney referred to any facts not proved) is not embodied in, or attached to, the bill of exceptions taken to the overruling of the motion this court will not interfere.</p> <p>3. A motion in arrest of judgment, upon the ground that a material admission, was made by the defendant’s counsel, out of his presence, is properly overruled when it appears that the defendant, himself, made the same admission, as a witness on the stand.</p>

<p>Syllabus.</p> <p>1. In an action on a note (not bearing interest), representing the purchase price of property, interest begin? to run from the maturity of the note. (C. P. 2554.)</p> <p>3. Imputation of payment remains as made between debtor and creditor, in the absence of any plea by a third person, objecting to the imputation as made.</p>

<p>APPEAL from the Second Judicial District, Parish of Bossier— WatTcin,s, J.</p>

<p>Q N APPLICATION for the Writ of Mandamus.</p>

<p>Syllabus.</p> <p>1. Justices of the Peace, after granting an appeal and receiving an appeal bond from an appellant, should issue a citation to the appellee, directing him to oppear before the appellate Court within three days after service of the citation, if he reside in the place, or allowing one day more for every ten miles between the place of renderind the judgment and that of the appellee’s residence. (C. P. 1134.)</p> <p>2. The record should be transmitted by the Justice in time to be filed, in the appellate court, not later than the time fixed for the appearance of the appellee therein, or at furthest within three judicial days thereafter. It not so filed, the appeal will be dismissed. (C. P. 1135.)</p>

<p>Syllabus.</p> <p>1. The rule is very well settled that all evidence needful to a decision should be brought up by bill of exceptions to the ruling or direction of the presiding judge during the trial of a cause.</p> <p>2. The court, nonetheless, in view of the importance of defendant’s cause, reviewed the lower court’s order setting aside the motion to quash, and finds in this action no ground upon which to disturb the verdict.</p> <p>(a) There was no irregularity prejudicial to the defendant in the drawing of the Grand Jury.</p>

<p>APPEAL from the Twefth Judicial District, Parish of Vernon— Lee, J.</p>

<p>Syllabus.</p> <p>1. Act No. 63 of 1884, is not violative of Article 31 of the Constitution of 1898, which is identical with Article 29 of 1879. Its constitutionality tested by the provisions of the latter article, was sustained in State vs. Rushing, 49th Ann. 1532.</p> <p>2. A verdict and judgment of conviction in a criminal case,' based upon an indictment on which are not endorsed the words “A true bill,” followed by the signature of the foreman of the Grand Jury evidencing a finding of the Grand Jury to that effect, cannot be sustained, since there is not a valid indictment; especially is this true in the absence of a minute entry disclosing that the indictment was read in open court in the presence of the Grand Jury.</p>

<p>PPEAL from the First Judicial District, Parish of Caddo — Land, J.</p>

<p>Syllabus.</p> <p>1. On an application for an injunction to be issued without bond, the judge of the first instance had refused the application, and the sale the proposed injunction sought to injoin, had been made, the deed recorded, and the return is that the purchaser is in possession.</p> <p>ílandamus issues to compel an officer to do an act, and will not issue after an act has been done and has become an accomplished fact. The power to set aside a sale and reinstate proceedings in order that an injunction may be issued is not one that can be exercised under that writ. To decide in the present situation of the case, that relator was entitled to an injunction without furnishing a bond would be to decide an abstract proposition, as the court would have no authority to grant any relief.</p> <p>2. With reference to prohibition, it lies when the court to which it is ad- , dressed has no jurisdiction. The court a qua had jurisdiction to issue the writ of seizure and sale and to grant the writ of injunction or refuse it. The irregularity complained of is not jurisdictional.</p> <p>3. As relates to certiorari, it was issued as ancillary to the writ of mandamus, and, moreover, this writ will not issue, after the proceedings are brought.to an end by a sale, to correct irregularities preceding the sale.</p> <p>Moreover, these writs will not issue when the law affords the party other specific and adequate remedy.</p>

<p>Syllabus.</p> <p>Where a defendant in injunction sets up a reconyentional demand which is disallowed by judgment of the District Court, he may, on an appeal of the plaintiff in injunction from a judgment against himself on the main demand, have the judgment upon the reconyentional demand altered without appealing therefrom by prayer for amendment, if it be connected with and incidental to the main demand, but not if it be properly the subject-matter of a separate and independent action.</p> <p>The two per cent, per month interest which is affixed by law as a penalty for delinquency in the payment of ordinary governmental State taxes is not affixed by law as a penalty for delinquency in the payment of the taxes levied in aid of a railroad enterprise under Article 242 of the Constitution of 1879 — the latter bear legal interest, however, from the dates they became due until payment.</p>

<p>Syllabus.</p> <p>1. If the books of a corporation, which is a party to pending litigation, ara at their' place of business in the parish where the suit is pending, and in the custody of one of their officials in such parish, the process of the court to reach these books and have them produced in court will lie, notwithstanding the nominal or legal domicil of the corporation may be in another parish.</p> <p>2. An order tor the pl-oduction of books in court should describe such books, papers and documents as are wanted, and where the order is general in terms, directing the production of “all the books,” timely objection on that ground should be made before the trial court to the execution of such an order and should, notwithstanding, the general order be persisted in, seasonable application to this court for its intervention to correct the proceedings would meet with ready response.</p> <p>3. But where the party complaining, raises no such objection in the trial court, but produces the books, and only after the same are in the custody of the court and under examination by the party calling for them, bethought himself to raise it and then seek the aid of this court through its remedial and supervisory writs to set aside the order of production, no case is presented entitling him to the relief sought.</p>

<p>IN EE Eliza Geddes et als. Applying for Gertiorari, or Writ o£ Eeview, to the Court of Appeal, Parish of Orleans, State of Lou- . isiana.</p>

<p>Syllabus.</p> <p>1. A district judge has authority during vacation, and before an appeal is completed, to modify an order of appeal granted on motion in open court, by reducing the amount of bond fixed therein for an appeal. Appellant could furnish the bond for a devolutive appeal at any time falling within the terms of the order of appeal.</p> <p>Z. The fact that the district judge may have fixed too low the amount for a bond for a devolutive appeal furnishes no ground for the dismissal of an appeal.</p> <p>The remedy is to have the amount for the bond increased by proper proceedings in the lower court.</p> <p>3. An appeal ought not to be dismissed as a general thing on a motion made in limne on account of an alleged defective condition of the transcript. It is possible it might, in its actúa! condition, properly contain enough data, properly certified, to enable the court to pass upon issues raised in the trial court sufficient in character to work either a final reversal of the judgment, or a remanding of the case. The court cannot anticipate what the issues involved are. (48 Ann. 715 ; 49 Ann. 1786 ; 50 Ann. 714; 51 Ann. 633.) If, upon examination, the record be found insufficient, the appeal will be either dismissed, or the judgment affirmed.</p> <p>4. The fact that the elerli on making out a transcript may have inserted therein matters which should not properly be there, or should, without authority, have pasted original documents to the record, should not cause the rejection of the appeal, but the ignoring and rejection of such documents or papers. (Succession of Kortier, 51 Ann.)</p> <p>5. The practice of omitting from the record documents filed in evidence and sending them up in the original, is without authority to rest upon. The district judge is without authority by an e® parte order, to vary the law touching what should be inserted in or sent up on appeal dehors the transcript.</p> <p>The law requires documents and evidence to be filed and on appeal to be transcribed and placed before the Supreme Court under the clerk’s certificate. (C. P. 585-586.)</p> <p>On the Meeits.</p> <p>The treasurer of the board of trustees of a religious corporation who is entrusted- with the safe-keeping and disbursement of a trust fund, can be held liable for same and adjudged to make restitution thereof, if same has been by him received and applied to the payment of his salary as pastor of the church congregation, notwithstanding the money was withdrawn upon formal resolutions of the board of trustees and subsequently paid to him.</p> <p>Such resolutions are ultra vires of the board of trustees, and the knowledge of the pastor is that of the treasurer, who is the incumbent of both offices at one and the same time.</p> <p>The treasurer is liable personally and independently of his responsibility as a member of the board of trustees.</p>

<p>Syllabus.</p> <p>Documents not annexed to a bill of exceptions and identified therewith in some legal way, will not be examined or considered on appeal.</p> <p>The province of the motion in arrest of judgment is to assign some error patent on the face of the record,. or some radical defect in it. The mere suggestion of an alleged incompatibility between the averments of the indictment and the testimony adduced on the trial is not good ground to be assigned in a motion in arrest.</p>

<p>Syllabus.</p> <p>1. In a suit for damages arising from an obstruction on a sidewalk, suit previously brought in the Circuit Court of the United States had the effect of interrupting prescription, although that court had no jurisdiction ratione personae, plaintiff being a resident of the State of Louisiana.</p> <p>2. Municipal corporations owe it to the public to keep the sidewalks in such a condition that pedestrians who are ordinarily careful will not be exposed to injury.</p> <p>3. When a municipality, vested with the power of maintaining uniform grades of sidewalks, permits one proprietor to raise his sidewalk and lets the grade of the sidewalk in front of the adjacent property remain out of grade for more than a year, and, owing to the abrupt rise of about five Inches at the dividing lines of the two sidewalks (where there was a long shed and no light), an accident happens, the city is liable for damages occasioned to a pedestrian who falls because of the obstruction and injures herself.</p> <p>4. Whatever rights the city may have against the owners of the lots on which the sidewalks are situated, are reserved.</p>

<p>Syllabus.</p> <p>1. A warrant in an open marine policy stipulated that all risks should be reported to insurer as soon as known to assured. It was the custom for assured to promptly notify insurer of the arrival of a cargo, and settlement would be made at the end of each month. Held that a failure to report -risks known to assured breached the policy as an entirety at the option of insurer, and not merely as to the risks not reported.</p> <p>2. Acceptance, after arrival of cargo, of premiums or risks not properly re ported was not a waiver of the warranty so as to estop insurer to take advantage of his right to deny his liability on a loss because of previous failure to report risks promptly.</p> <p>8. That an epidemic prevailed and assured failed to make prompt reports of risks on account of the sickness of his clerks, did not prevent the breach , of the warranty vacating the policy.</p> <p>4. That insurer retained notice of other risks after a loss does not estop it to insist on the breach, it not having received the premiums on them, or done any affirmative act in respect to them.</p>

<p>Syllabus.</p> <p>1. Applications for certiorari or the writ of review, under Article 101 of the Constitution, are not considered suits to be brought in the name of the State, on the relation of the applicant.</p> <p>2. The petition for this writ should be presented simply in the name of the plaintiff, or defendant, as the case may be, who is the applicant, preserving the original caption of the suit.</p> <p>3. The writ of review is differentiated, in this respect, from the remedial and supervisory writs of the law.</p>

<p>Syllabus.</p> <p>1. If the recitals made by counsel of an accused party in a bill of exceptions are incorrect, the judge should specifically contradict them' and make himself a statement of facts.</p> <p>2. The judge in overruling, in the presence of the jury, objections of counsel of accused to the admissibility of evidence, should not convey to the jury his opinion of the facts of the case.</p>

<p>Syllabus.</p> <p>An objection of immateriality is a weak one, and the testimony objected 'to will be considered if it is of the same general character as other testimony not objected to.</p>

<p>PPEAL from the Civil District Court, Parish of Orleans — Bilis, J.</p>

<p>PPEAL from the Eirst Judicial District, Parish of Caddo — Land,</p>

<p>Syllabus.</p> <p>1. where a mother and tutrix in anticipation of her second marriage has made through their und^rtulor a settlement, or dation cn pavement with her children, in the form of a donation, the parties have the right, on finding the form of the act an obstacle in the way of the sale of the property, to set aside the donation, sell the property and apply the price to the payment of the children. The children of the second marriage have no right under these circumstances to force a collation from those of the first by reason of this donation. (Howe vs. Scudder).</p> <p>2. The plaintiffs in a partition suit between heirs have the right when the defendants set up, in the District Court, a claim against the succession to urge their defense from such claim by pleadings, and, also, to advance claims of their own. The usual practice is to present such claims before the notary to whom the matters are referred for a partition, and for him to send the parties back to the court for settlement in the event of a contest. The action of the court in permitting matters to be determined before reference is not an error, particularly when, at the request of parties, the case has been continued for time to examine claims.</p> <p>3. Where a wife has separate property from which are derived revenues during marriage sufficient to pay a separate debt which she owes, payment of such debt during marriage will not be presumed to have been made out of community funds, by reason of the simple fact that the husband has occasionally received the rents from leases of her property not made by himself, particularly where the husband has gone into bankruptcy and has placed no claim against his wife upon his schedule nor referred to it.</p> <p>4. A statement by a husband on his schedule that he has furniture to the extent of one hundred and twenty-five dollars, which he claims is exempt, does not estop bis beirs from claiming that furniture shown to have been in the family residence during bis marriage, belonged to the community between himself and bis wife. The question in such case is one of the ownership, not value.</p>

<p>Syllabus.</p> <p>1. The City of New Orleans has the legal right, when in possession for public uses of a portion of a batture directly upon the river, in front of which the river was forming a shoaling bed, to fill up this shoaling space up to deep water with earth, to protect the same outwardly by a bulkhead, to advance the landing line to the bulkhead and use the space in the rear of the bulkhead as a quay or place of deposit for unloaded cargoes. This advancing of the landing line does not carry with it necessarily a right on the part of the owner of the batture just in the rear of this new work, to take absolute possession of the same as full owner.</p> <p>2. Where the city holding for public use batture property upon the Missis- . sippi river which has in front a shoaling bank, determines for the convenience of commerce to advance the landing line to reach deep water, it has the legal right to enter into an agreement with private individuals to do the work necessary for this purpose, and to receive as an equivalent for such work a right of reasonable temporary use of such extension, and the batture just behind. The naked owner of the batture cannot disregard the agreement and dispossess the parties holding possession under it, on tlie ground that such occupancy of the ground is a private occupancy.</p> <p>3. If the agreement should be illegally or improperly exclusive of public rights of others, the courts would be open for their redress.</p>

<p>Syllabus.</p> <p>1. Experiments made in the absence of parties interested in the results thereof, are, as evidence, in the nature of hearsay, and if received, the facts and condition under which they were made should be shown to have been identical with those of the case before the court.</p> <p>2\ The fact that a furnace erected on property in New Orleans should have been put up without prior submission to the city authorities as to tho safety of the plan of construction, and that the plan of construction may not have been in accordance with rules adopted by the council concerning such kind of work, does not do away with the necessity of proving that this construction was the cause of a fire on the property by which that of his neighbor was destroyed.</p>

<p>APPEAL from the Fifteenth Judicial District, Parish of Calcasieu —Miller, J.</p>

<p>Syllabus.</p> <p>I. There is no rule of law which obliges a person upon the highway to keep his eye. under all circumstances, constantly upon the road before him that he may avoid injury from any defect therein; he may, ordinarily, presume that the road is in fit condition to travel; in other words, he is not obliged to presume negligence on the part of those whose duty it is to keep the highway in repair.</p> <p>2. Railway companies, who as part consideration for the acquisition of the franchise of running ears through the streets of a city, have bound themselves by contract, to pave'and keep in repair the streets between their rails, are held by stricter rules to the performance of their duty than are the municipal corporations themselves in the performance of their own obligations in this respect, to the general public.</p>

<p>APPEATj from the Fifteenth Judicial District, Parish of Calcasieu —Miller, J.</p>

<p>Syllabus.</p> <p>1. An attorney-at-law as such has no authority to submit the issues involved in a law suit to arbitrators, nor has an attorney in fact such authority, unless specially authorized to that effect. The existence of such power must appear in the record of appeal, and the agent must not pass beyond his powers. Arbitrators are, by law, required to take an oath before acting under the submission. The agent cannot waive this requirement unless specially authorized by his principal.</p> <p>ü. Consent to submit one’s differences to arbitrators is not consent to acquiesce in everything done under the submission.</p>

<p>Syllabus.</p> <p>It appearing from tlie evidence that no fault is attributable to the proprietor of a building in the construction oí a passenger elevator, or in the operation thereof, he must be released from the payment of damages to a passenger who has suffered injury, not having been guilty of either fault or negligence.</p> <p>On Rehearing.</p> <p>It is the duty of the party operating an elevator to see that the passengers are on, and to give them sufficient time to adjust themselves before starting it. If the elevator be started at once with full speed before a passenger has had time to place himself securely on his feet and he is thereby thrown off his balance and injured, the carrier is responsible for the injury.</p>

<p>Syllabus.</p> <p>1. Whether a parent who inflicts corporal punishment on a child is acting in good faith, without passion, prompted by true parental love, is a matter which may be determined largely from the character of the injuries received by the child; and any instructions which would lead to the conclusion that it is incompetent for a jury to differ with the parent as to whether the latter has gone too far is misleading.</p> <p>2. The crime denounced by Act No. 17 of 1888 is the wilful and malicious infliction with a dangerous weapon, or with intent to kill, of a wound less than mayhem, and, although an indictment charging the infliction of such a wound with a dangerous weapon may specify the character of the weapon used, as for instance “a piece of iron,” it is not of the essence of the crime that it should have been committed with a weapon of that kind; hence, if it be proved without objection, that such a wound was wilfully and maliciously inflicted with a dangerous weapon of another kind, the defendant cannot thereafter insist upon the State proving that it was committed with the particular weapon specified in the indictment.</p> <p>3. The action of the trial court in refusing a new trial where no special error of law is pointed out, and where no bill of exceptions, with testimony attached, is taken to the overruling of the motion for new trial, will not be reviewed in this court.</p> <p>4. A complaint involving a matter of fact not patent on the face of the record, but which is made to appear only by the aid of testimony, cannot be the subject of a motion in arrest of judgment.</p>

<p>Syllabus.</p> <p>1. One cannot renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question. The acceptance or rejection made by an heir before the succession is opened, is absolutely null, and can pro duce no effect. (C. C. 984-1887, 37th Annual, 236).</p> <p>2. An estoppel cannot be invoiced to impair the force and effect of a prohibitory law. (37th Annual, 236).</p> <p>3. Where a testator, after making a particular legacy to a brother, leaves the “residue” of his property to his wife, and the donations are in excess of two-thirds of his property, the property which is the subject of the particular legacy is not to be reduced by the action of reduction of a forced heir, if the value of the residuum does not fall short of the legal reservation. (C. C. 1312).</p> <p>4. Where a person who dies leaving no children, but leaving a brother and sisters,'has made donations inter vivos or mortis causa of his property exceeding two-thirds, the mother is a forced heir to the extent not of one-fourth, but of one-third. (C. C. 1494, 35th Annual, 995).</p> <p>5. Where a person, who, dying without descendants, has left a mother, has disposed of more than two-thirds of his property by donations mortis causa. the donations being of particular property in its entirety to a brother, and the residue to his wife, the effect of a judgment recognizing the mother as a forced heir for one-third is not to vacate ipso facto the title of the particular legatee to the extent of the one undivided third as a conveyance by the testator to that extent of the property of another, and, therefore, nuil and void. (C. C. 2452).</p>

<p>APPEAL from the Twelfth Judicial District, Parish of'Sabine— Lae, J.</p>

<p>APPEAL from the Fifteenth J udicial District, Parish of Calcasieu--Milter, J.</p>

<p>APPEAL from the Civil District 'Court, Parish of Orleans— Ellis, J.'</p>

<p>Syllabus.</p> <p>Ill computing the ten days within which an appeal has to be perfected from an order of the District Court, appointing a receiver under Act No. 159 of 1898, Sundays are to be included.</p>

<p>Syllabus.</p> <p>Defendant appeals and asks for the review and reversal of a judgment condemning it to pay damages to the plaintiff who is the widow of the deceased.</p> <p>Defendant’s brakeman, instead of waiting a few moments to oust a trespasser after a stop of the train, chose to pelt him with rocks and clods to make him get off the rods where he was riding, stealing a ride, under the car.</p> <p>The trespasser, in endeavoring to escape from under the car while it was running, fell and was killed. It was within the course of the brakeman’s employment to compel him to stop trespassing and leave the car, and had he exercised the right in a proper and legal manner, there would have been no good cause to complain. The damage arose from the manner of the removal. It -was unnecessarily violent and illegal. The act of trespassing was not, of itself, contributory negligence justifying defendant's servant to resort to the acts he did, when there is not the least reason to infer that there was necessity to resort to any violence at all to remove the trespasser.</p>

<p>Syllabus.</p> <p>The engineer of a train running on schedule time, on its own right of way, in the open prairie away from any town or crossing, is not called upon to immediately slacken its speed, from the simple fact that a trespasser, sitting upon the ties, does not at once rise and change his position on receiving warning of the approach of the train by the ringing of the bell, and the blowing of the whistle, duly and properly given.</p> <p>The engineer has the right to assume that he will ultimately obey the signals and is not held to presume, in the absence of some special circumstance, that the inaction of the trespasser is due to some physical cause or infirmity which prevents his leaving the ties.</p>

<p>Syllabus.</p> <p>Primarily, all municipalities have charge and control of the banks of navigable streams withiD their limits. When a third person claims a right to those banks, growing out of the fact that he is owner of riparian property, or out of the fact that some one who acts under an authority granted by the municipal corporation infringes upon his rights as owner of property adjacent to the riparian property, he should bring suit against the municipal corporation and make it the principal defendant. The right which the public has, or may have, to the use of the property cannot be affected in any manner unless the representative of the public, the municipality, ismade a party to the suit and the issues decided contradictorily with it. To determine any question growing out of such issues against a private individual who disclaims any right and who, in reality, has none except those he has exercised as owner of a ferry boat and under a resolution of the corporation, would he doing a vain thing.</p>

<p>Syllabus.</p> <p>1. The authority to impose the burden of the construction and repair of sidewalks and curbings upon abutting property not being expressly conferred at the present time by the law and the charter of the corporation of New Iberia, nor derived from the terms of the same by necessary implication, a municipal ordinance directing such imposition is ultra vwes and void.</p> <p>On Rehearing.</p> <p>Consideration will be extended to municipal corporations with respect to the errors of omission and commission of their representatives, and particularly where a question, presented as to one citizen and property holder, exists as to all Oder holders of real estate within the corporate limits, and should, therefore, be determined upon the basis of a rule which will bear equally upon all.</p>

<p>APPEAL from the Eighteenth Judicial District, Parish of Calcasieu —Miller, J.</p>

<p>APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — A Hen, J.</p>

<p>PPEAL from the Civil District Court, Parish of Orleans — King,</p>

<p>Syllabus.</p> <p>The fee of the attorney of the wife who has successfully prosecuted to judgment a suit for separation from bed and board, and separation of property against licr husband, is a just and valid charge against the community, and may be recovered on a quantum, meruit.</p>

<p>Syllabus.</p> <p>Actions for damages resulting from offences or awasi-offences are prescribed by one year.</p>

<p>^ PPLICÁTION for Writs of Certiorari and Prohibition.</p>

<p>APPEAL from.the Eighteenth Judicial District, Parish of Acadia — DeBaillon, J.</p>

<p>Syllabus.</p> <p>The business of the corporation was going to ruin. Two of the stockholders petitioned for the appointment of a receiver, and asked, in accordance with a resolution of the board of directors, for the appointment of petitioner whose name was mentioned. He was appointed. Two of the creditors of the corporation attacked the appointment on various grounds.</p> <p>1st. — Because the receiver appointed is a stockholder and has an interest opposed to that of the creditors.</p> <p>(a) Interest of a stockholder is not necessarily an objection. In protecting his own interests in a proper manner, he must protect that of the creditors and other interested parties.</p> <p>2nd. — Because the receiver has been a negligent stockholder and has not, heretofore, protected his own interests as a stockholder.</p> <p>(a) Stockholders are not supposed to assume management and direction of the corporation. Bad management of the officers, with which they had nothing to do, is not to be charged to them.</p> <p>3rd. — Because the receiver resides in another parish and at some distance from the works of the corporation. ,</p> <p>(a) The law, in matter of the appointment of a receiver, does not seem to contemplate parish lines as an objection. That issue is not raised by the pleadings. ' As relates to distance (of the receiver’s domicil) the court will not assume beforehand that it will be a continuing interference with proper management. Under the law, the District Court is to have an eye to the proper operation of the defendant corporation. The court’s agent has been selected with that object in view. Without a, preponderance of proof of error in naming a receiver, the appointment will not be annulled.</p> <p>4th. — The opposing creditors have raised a number of issues regarding the irregularity of the proceedings.</p> <p>(c) They have admitted the necessity of appointing a receiver, and thereby cured all defects, if any existed, to the proceedings looking to the appointment.</p>

<p>Syllabus.</p> <p>When a person has done or said something with intent to influence the dealings of another, and that other has acted upon the faith of it, the former oughr not to be permitted to change it to the injury of the latter.</p>

<p>APPEAL from the Sixteenth Judicial District, Parish of St. Landry Lewis, J.</p>

<p>Syllabus.</p> <p>The constitutionality of a statute is to be presumed, and ii a reasonable doubt arise it must be solved in favor of the legislative action and the act sustained.</p> <p>A constitutional provision and an act of the Legislature, in their relation to each other, are to be so interpreted and applied as to give the legislative act validity and force rather than to avoid it, if it be found practicable to do so within the limits of a reasonable construction of the constitutional provision.</p> <p>3. The exception, as to the subjects embraced within its scope, of that part of Article 48 of the Constitution of 1898, placing an inhibition upon the passage of statutes creating corporations, or amending their charters, unfetters the General Assembly, and it has authority to enact laws relating to the charters of the cities and larger towns of the State without previous publication of notice of intention to apply for such legislation having been made.</p> <p>4. The Board of Civil Service Commissioners for the city of New Orleans, established under the Act of 1806, was protected in its official tenure by paragraph 5 of Article 325 of the Constitution only in so far as that its term of office could not be shortened prior to the general State election of 1900. After that date it is held that it was competent for the General Assembly to repeal the law which gave the Board its tenure, and after such repeal the Board ceases to exist.</p>

<p>APPEAL from the Sixteenth Judicial District, Parish of St. Landry —Lewis, J.</p>

<p>PPEAL from the Nineteenth Judicial District, Parish of Iberia-</p>

<p>Syllabus.</p> <p>1. Every court has the power necessary to the exercise of the jurisdiction conferred upon it, and, in the absence of specific provisions of law upon the subject, may adopt such means as may be necessary for the correction of irregularities in the drawing of juries and such like matters.</p> <p>2. No special method is provided by law for the setting aside of the proceedings of a “jury commission” acting under the authority of Act 135 of 1898, in drawing a general venire, and, so far as the method is concerned, it is competent for the judge to set it aside by means of an order, made either in open court or in chambers and entered upon the minutes.</p> <p>3. Act 135 of 1898 differs from Act 44 of 1877, in that the former contemplates that all the members required by law to constitute the jury commission shall, at least, have been qualified before any official action is taken by the body as a whole.</p> <p>4. In any event, as the law contemplates that the jury commission shall consist of six persons, for a less number to act before the body had ever been completed by the appointment and qualification of another member is an irregularity which it is competent for the district judge to correct by setting aside the proceedings.</p> <p>5. A complaint that a person accused of crime was entitled to be tried by a jury selected from a venire drawn by a majority of the jury commission before the other members had qualified, when no fraud or specific injury is charged, is without merit.</p> <p>O. It is competent 1'or the trial judge to order talesmen from portions of the parish remote from the scene of the homicide, and the mere recital, in a b'H of exceptions, that there is antagonism between the two sections of the parish will not affect the validity of such order, when it is not made to appear in what way such antagonism will be prejudicial to the defendant in the matter of his trial.</p> <p>7. A juror, who, upon .his voir dire, says “I have been thinking, since I was called up, whether I could entirely disregard them” (referring to rumors of the killing which he had heard), but who appears to have no bias, and who states that he finally concluded that he could try the case without reference to what he had heard, is a good juror.</p> <p>8. It is within the discretion of the district judge to sustain the State’s challenge, for cause, of a juror whose wife is an aunt of the wife of the accused. The accused has no just ground of complaint, since his right is to object, rather than to select.</p> <p>9. Same, as-to a juror, where it appears that the man whom the defendant is charged with having murdered had been tried for the murder of his brother</p> <p>10. Where a witness is able to state intelligible passages from a conversation between the accused and the deceased at the time of the killing, and where there are strong indications that such passages embody the substance of all that was said; and where the accused has testified as a witness in his own behalf and has had the opportunity to supply any omissions in or modifications to, the passages as testified to, but has suggested none, the objection that the passages are “fragmentary” is properly overruled.</p> <p>11. Threats and attempts upon one’s life and bad character of the threatener do not justify the threatened person in killing the threatener at sight and with no hostile demonstration from the latter.</p> <p>12. The aggressor upon the occasion of a homicide forfeits his right of self-defence, which he can recover only in case he withdraws in good faith from the attitude of aggression, distinctly informs his adversary that he desires peace, and is then pursued and led to believe, reasonably, that he is threat ened with death or great bodily harm.</p> <p>13. When the defendant on trial for murder admits that he began the attack which resulted in the killing, and offers no evidence tending to prove the facts necessary to revive his right of self-defence, it is competent for the judge, as a preliminary to ruling on the admissibility of evidence, to assume the non-existence of such facts, even though they bear upon the question of guilt or innocence, and his ruling that the evidence, the admissibility of which depended upon their existence, should .bo excluded, will be sustained.</p> <p>14. Equally is this the case where several facts are to be proved, and the evidence offered tends to prove one or more, but not all of them.</p> <p>15. But where, in such a case, the evidence offered relates to and tends to prove all the facts required, and those facts bear upon the question of the guilt or innocence of the accused, the question whether such facts are established should be submitted to the jury, together with the evidence, the admissibility of which was dependent upon the determination of such question.</p> <p>lü. The jurisdiction of the judge with respect to facts in criminal cases before juries extends only to collateral facts which are to be found in order to lay the foundation for rulings upon the admissibility of evidence. With respect to facts bearing upon the question of guilt or innocence, unless they are admitted, or unless there is no evidence tending to establish them, the question of their existence, ml non, should be submitted to the jury.</p>

<p>APPEAL from the First Recorder’s Court, City of New Orleans — • Hughes, J.</p>

<p>Syllabus.</p> <p>Where a party holds lands under a grant confirmed by Act of Congress, followed by surveys locating the lands of the grant in place and by possession extending back more than seventy years, he will be protected from a claim under a certificate from the receiver of the Land Office showing an entry of a date subsequent to the original claim, and the party in possession, under the confirmed grant, may plead prescription.</p>

<p>APPEAL from the Twenty-Second Judicial District, Parish of Plaquemine — Single, J.</p>

<p>Syllabus.</p> <p>Í. acl 72 of 1898 amends R. S. 832 and prescribes the punishment for receiving stolen goods, knowing the same to be stolen, to be imprisonment, with or without hard labor, not exceeding two years.</p> <p>2. A case, therefore, charging this offence is one of those that may, under Article 116 of the Constitution, be tried by a jury of five.</p>

<p>Q N APPLICATION for Writ of Certiorari.</p>

<p>Syllabus.</p> <p>1. it is a requirement of the Constitution that a person charged with crime shall have “the assistance of counsel.”</p> <p>2. To make this right effective, counsel appointed to defend the accused should be accorded a reasonable time to prepare for the defence.</p> <p>o. In a murder case, where the indictment was returned, the accused assigned counsel, arraigned and the case set for trial, all done on the first day of tho term, which was Monday, and the day fixed for trial was the Thursday-following and actually tried on Friday, a postponement applied for by the accused and his counsel on the ground that the latter, engrossed with other business before the court, had not had time to prepare the defence, should have been granted.</p> <p>4. “The law travels with a leaden heel, but strikes with an iron' hand,” is a maxim pregnant with obvious meaning.</p>

<p>Syllabus.</p> <p>1. Each case involving the allowance of damages for personal injuries has its own peculiar features, and an allowance in one ease is not necessarily a precedent which should control the allowance to be made in another.</p> <p>2. Where a young- girl is knocked prostrate and senseless' upon the public streets, unable to remove herself from public view, by the falling of a pole, and as a result of the gross negligence of two corporations, the one of which owned, and the other of which had excavated about, for the purpose of removing such pole ; and suffers great pain and nervous rigors during two weeks, and, thereafter, at the expiration of more than two months, is still a sufferer, the conclusion of the trial judge that $1000.00 is not an excessive amount to allow, even though the evidence does not show that her injuries are permanent, will not be disturbed.</p> <p>3. In such case, it is gross negligence for the company owning the pole to allow it to become so rotten as to threaten danger to the passers by, and it is equally gross negligence for a company, which in preparing to remove such pole, makes an excavation alongside of it, and so leaves it, thus increasing the danger of its breaking and falling. The two companies are, therefore, properly held liable in solido to the passer-by on the public street upon whom the pole falls.</p>

<p>Syllabus.</p> <p>District judge having refused application for writ of injunction to prevent paving of a street as ordered by the proper authorities, the applicants became relators in a proceeding taken here to obtain a writ of mcmdamus to compel granting of the order of injunction. Held: This court will direct the issuance of the writ, or deny it, in its discretion according to the exceptional features of each case submitted, and that no sufficient cause is herein shown justifying the mandamus sought.</p>

<p>Syllabus.</p> <p>Motion to Dismiss.</p> <p>In a suit for the possession of property, the value of the possession controls in matter of jurisdiction.</p> <p>The judgment was signed and appeal taken after the Constitution of 1898 had become the organic law of the State. The main demand was for less than the lower limit of the Supreme Court’s jurisdiction. The íeconventiona! demand was for an amount above that limit. The judgment rejected the main demand, and, in part, sustained the reconventional demand. The appeal was from the judgment allowing an amount on the reconventional demand. The Constitution of 1898 governs. The Court of Appeal has jurisdiction over the main demand and it follows that it also has of the reconventional demand. The appeal should have been taken to that court and not to the Supreme Court.</p> <p>A question of jurisdiction ratione matcriae may be considered at any time previous to judgment, and if the court is without jurisdiction, the case will be dismissed.</p>

<p>Syllabus.</p> <p>1. It is essentially necessary for the existence of an appeal that there should bo a judicial order granting it. The existence of such an order is a jurisdictional fact. Neither direct consent of parties nor waiver can dispense with it. Courts will, e® officio, notice the want of such an order, and of their own motion dismiss the appeal.</p> <p>2. A motion oí counsel to fix the amount of bond to be furnished in a particular ease for a suspensive appeal is not equivalent to a motion for an appeal, nor is the action of the court fixing the amount on such application equivalent to “an order of appeal.”</p>

<p>IN RE Joubert Bros, ei als., Applying for Certiorari or ’Writ of Review, to the Oourt of Appeals, Second Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. Under a contract by a party to furnish another with hulls and cotton seed meal for feeding cattle, wherein the quality of the articles to be furnished is not declared, the vendor’s obligation in respect thereto is governed by the provisions of Article 2156 of the Civil Code to the effect that “if the debt is of a thing which is determined only by its species, the debtor, in order to gain his discharge, is not bound to deliver it of the best kind, but he cannot tender it of the worst.”</p> <p>2. Complaints made on special occasions of the feed furnished on these dates, which objections were removed by the substitution immediately of other feed, did not rise to the seriousness of a putting in default. The fact that on all other occasions the feed furnished was not only received and used withouf objection, but paid for according to the terms of the contract without complaint, is evidence that there was no just cause for dissatisfac- . tion. (Giecke vs. Finlay & Brunswig, 45th Ann. 408.)</p> <p>3. The mere fact that a party who has contracted to furnish another with feed for his cattle, knows that the latter intends to ship them to market for sale when fattened, does not commit him to the fattening of the cattle by the feed, particularly when it is not pretended that the vendor was an expert in cattle feeding, or had any knowledge as to what particular quality of feed would bring about certain results, or had made any representations or stipulations on that subject. When it is shown that a number of contributing causes led up to the cattle’s not fattening as the purchaser had contemplated, the vendor of the feed would not be liable for loss to the purchaser, if the badness of the food had been one of such causes and the vendor was legally liable unless it could be shown what proportion of the loss was attributable to that fact.</p>

<p>Syllabus.</p> <p>In an action for damages, the evidence showed that the machinery of the defendant company had not been entirely completed. The defendant was pres ent while it was being erected and took part in the work of erecting it. While one of the machines of which he had charge as the assistant of the foreman, was being operated, he failed to exercise the care and prudence which, ordinarily, an operative should observe.</p> <p>Tiaintiff had been employed sufficiently long to know how to adjust a set-screw on the collar of an horizontal shaft and to know the precaution necessary to be taken in returning it to its proper place when it had dropped out. The evidence shows that with ordinary care and prudence he might have escaped injury.</p> <p>One who chooses to perform this duty without applying the clutch or hand lever, who also fails to stop with his work when the substitute for a belt shifter .falls and who holds on to the set-screw after the shaft begins to turn in obedience to the friction of a belt which shifts from a slack to a fast pulley, is not in a situation to render his employer legally liable for the injury received.</p> <p>The employe, who is eighteen years of age, has not, on that account alone, a greater right to recover damages for an injury than one of age. I-Ie was old . enough, and had had experience enough, to judge of the danger for himself.</p>

<p>IN RE. P. Pigot, Applying- for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Bilis, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Theard, J.</p>

<p>Syllabus.</p> <p>1. What the evicted vendee has a right to claim against the seller is the restitution of the price he paid, and, in addition, the value of the fruits and revenues which he has been compelled to return to the true owner, the costs of the eviction and warranty proceedings, and such other damages as he may have suffered.</p> <p>2. But the only effect of his claiming above and beyond these should be the reduction of his demand to what the law permits him to claim — not the dismissal of his entire demand.</p>

<p>APPEAL from the Twenty-third Judicial District, Parish of St. Mary — Allen, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans— Bightor, J.</p>

<p>APPEAL from the Civil District Court, Parish oí Orleans— Ellis, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans — ■ Si. Paul, J.</p>

<p>Syllabus.</p> <p>1. The City of New Orleans is acting within the scope of its administrative and police power in authorizing the laying of a third rail in connection with the re-arrangement of the tracks upon, and the paving of, one of its streets, though the question of the right of the particular company actually laying-such rail to make use of the same is involved in litigation. Whether it is advisable to lay the rail under such circumstances, in order to provide against the possible future breaking np of the pavement for that purpose, is a matter of legislative discretion.</p> <p>2. Street railway companies do not own the soil of the streets of New Orleans upon which their tracks are laid, and their ownership of the ties, rails, etc., constituting their tracks, is qualified by the fact that the City of New Orleans has the right to authorize other roads to use such tracks.</p> <p>3. In this case an injunction issued to restrain the laying of a third rail, the laying of which was authorized by the City of New Orleans. Held: That the injunction should have been dissolved, as on bond, upon the application of the city, and, on bond, upon the application of the company acting under such authority, and mandamus to that effect is made peremptory.</p>

<p>Syllabus.</p> <p>1. Plaintiff sewed in the capacity of general manager and secretary of defend ant corporation. A salary was fixed for him for the former position; none for the latter. During the nine years he filled the positions he drew monthly his ‘salary as general manager, but made no claim for compensation as secretary. Only after his retirement from the service of the company does ho assert his right to a salary as secretary independent of that be was receiving as general manager. Held: He cannot recover.</p> <p>2. The measure of power vested in the board of directors of defendant company is determined by its charter and by-laws, and the board’s action in excess thereof is not binding upon the corporation.</p> <p>.3. It is not found that plaintiff was ever employed specifically by the yewr as general manager, but if he were, there was no power in the board of directors to so employ him, since the by-laws distinctly declare that all officials shall hold office “during the pleasure of the board.”</p>

<p>APPEAL from the Twenty-Third Judicial District, Parish of St. Mary- — Allen, J„</p>

<p>APPEAL from the Third Judicial District, Parish of Claiborne— Edwards, <7.</p>

<p>APPEAL from the Twenty-First Judicial District, Parish of Iberville— Talbot, J.</p>

<p>Syllabus.</p> <p>On the Pkincipal Demand.</p> <p>X. When an employee, whose pay has not been fixed, has rendered services (evidently services rendered for remuneration), the employer is liable for their value. The court sustains plaintiff’s demand for services rendered in an amount shown to be due by the preponderance of the testimony, it being evident that each party (employer and employee) contemplated, at the time the services were rendered, that something would be due in compensation.</p> <p>2. Plaintiff was in charge of business for the defendant, as made evident by the testimony, and the services of the former were not those of a mere workman, laborer, or servant, for his wages, and are, therefore, not subject to the prescription of one year.</p> <p>On ti-ie Keconventional Demand.</p> <p>3. Plaintiff and defendant were in account, one with the other. Selecting the items of the account and allowing those that the evidence shows are due, the court holds that the defendant is entitled to the amount which is, therefore, credited on the judgment.</p> <p>4. There being a balance due after allowing the reconventional demand, a judgment is accordingly rendered.</p> <p>5. Judgment amended and, as amended, is affirmed at plaintiff’s and appellant’s costs.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss the Appeal on Ground op Want op Jurisdiction Rations Materias.</p> <p>1. Appellant sought to have the funds re-distributed in order to collect an amount less than the lower limit of this court’s jurisdiction. A re-distribution of the funds was the object, and, to that extent, brought the case within the court’s jurisdiction.</p> <p>On the Merits.</p> <p>1. A final account was homologated. The proceedings were en concurso and the judgment had the effect of res ju/Mcala.</p> <p>2. Creditors who have contested one another’s claims ere concurso, in proceedings arising on a receiver’s account, are bound by the decree.</p>

<p>Syllabus.</p> <p>Writs issued under the supervisory jurisdiction of the appellate court will not be made peremptory when the question involved is brought up for review on appeal after the rule nisi has been issued.</p> <p>In view of the facts, the restraining effect of the rule wisi, which was issued, remains in full force and effect until the issues shall have been decided ou appeal.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish of Iberia — ■ Hacker, Judge ad hoc.</p>

<p>Syllabus.</p> <p>1. One may sustain an action to set aside a hinderanee to the execution of his judgment (which hinderanee is in the shape of a mortgage averred to be without consideration), defendant having no other property liable to seizure.</p> <p>2. The action was en declaration de simulation and the allegations of the petl tion were not such as rendered it necessary for the court to order the plaintiff to elect whether he would proceed by way of a revocatory action, or en declaration dc simulation.</p> <p>3. Plaintiff, alleging that a mortgage is simulated, attacked all the asserted consideration of the mortgage, including the asserted consideration of an old mortgage which entered into and formed part of the new mortgage specially attacked. In effect, both mortgages were attacked.</p> <p>On the Merits.</p> <p>4. Plaintiff's claim had not been novated. It dated from a time anterior to the claim of defendants, and is not subject to the objection that plaintiff could not attack an act of a prior date to that of plaintiff’s claim. Besides, one not a creditor at the date of the execution of an act may yet show its simulation.</p> <p>5. The facts and circumstances were such as to shift the burden of proof from the plaintiff to the defendant. After the onus of proof had shifted because of the evidence of simulation, defendants failed to sustain then-position in the cause by proving that the mortgage had the consideration alleged.</p>

<p>J^PPEAL from the Civil District Court, Parish of Orleans — King,</p>

<p>Syllabus.</p> <p>1., By agreement between tbe parties, the defendant owes an account for board claimed by the plaintiff. •</p> <p>2. A manual gift of an amount in cash was complete and legal, but it was not n remunerative donation as alleged, and in consequence, it was subject to collation.</p> <p>3. The amount of a note identified as the Eaurens note was not received by plaintiff. The transactions between the mother-in-law and the son-in-law were not for account of Mrs. Barba, the plaintiff. In consequence, the resulting indebtedness of the son-in-law is not charged to Mrs. Barba, I be wife.</p> <p>4. Krror on the part of plaintiff and error on the part of the defendant regarding a particular fact afford no ground for the plea of estoppel on the part of the plaintiff.</p> <p>5. On Appellee’s Motion bo Amend Judgment. No amendment is made for the reason that plaintiff, the wife, is the creditor of her husband and is not the creditor of the defendant in the partition and cannot, in view of this fact, recover the amount claimed from her brother, the defendant.</p> <p>6. This being a suit for a partition and settlement, the costs in the District Court are due by the mass.</p>