Volume 106 — Louisiana Reports

<p>APPEAL from the Tenth Judicial District, Parish of Concordia— Dagg, J.</p>

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

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

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

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

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

<p>Syllabus.</p> <p>1. The rule of this court, requiring a litigant, who is cast in the Court of Appeal, to apply there for rehearing and have his application finally passed upon and refused before invoking at the hands of this court its writ of review, will be strictly enforced.</p> <p>2. In obeying the writ of this court and sending up the record of a cause for review, it is competent for the judges of the Courts of Appeal, if they see proper, in the interest of the orderly discharge of the public business pertaining to their courts, to submit a return in writing to the writ.</p> <p>3. For instance, if no application for rehearing in the Court of Appeal has been made, in a given cause decided by that court, prior to application here for the writ of review, it is proper for the Court of Appeal, in sending up the record of the case, to call attention to that fact.</p>

<p>Syllabus.</p> <p>1. The consignee is the owner of the goods until the contrary is shown, and he can sustain an action and sequestration against the'master of the carrier for the recovery of the goods.</p> <p>2. After the arrival of the steamboat at the landing at which the delivery was to be made, the goods not having been unloaded and the boat having left the landing, and the appearance being that it was on its way to another market with the goods, there was ground for a sequestration.</p> <p>3. The captain’s unwillingness to carry the goods to the place designated by the consignee at the landing, even if sustained by the contract between him and the consignee, did not afford good ground for not landing the goods and tendering them to the consignee to be delivered on payment of the freight.</p> <p>4. On refusal of the consignee to accept goods, it devolves on the master of the • carrier to have them placed, at the expense of the consignee, in a place where they will not be exposed to loss.</p> <p>5. The terms of a bill of lading as written, to the extent that it is a contract and not a mere receipt for goods, are not to be changed by verbal testimony except in case of error or fraud.</p> <p>6. If there was error in the clause by which the master bound himself to place the goods on the levee, the master, none the less had no right to retain the goods on board and leave the place of the goods’ destination.</p> <p>7. The tender made by the consignee to the master of the freight charges on the goods was sufficient, in view of the fact that the master’s conduct and utterances'plainly showed that he was unwilling to accept the charges, even if tendered in a strictly formal manner and though the tender included all . that was due.</p>

<p>Syllabus.</p> <p>Where there exists error of fact, proceeding either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none, and this error was the principal cause of, and bore upon the motive for, yielding consent to a certain business agreement, relief against it may be had.</p>

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

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

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

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

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

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

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

<p>Syllabus.</p> <p>Where a train upon a railroad has obtained the right of way over the crossing at the intersection of its own road with another, it is negligence on the part of an engineer in charge of an engine upon the other road to risk attempting to make the crossing in front of the approaching train.</p>

<p>Syllabus.</p> <p>1. This action as brought cannot be considered revocatory in character, to set aside acts and things done in fraud of creditors, or as giving an unfair preference, because the proper allegations are not made and because necessary parties are not cited.</p> <p>2. Viewed as an action en declwation de simulation the attach made on the sheriff’s sale of property must fail, for the evidence shows the sale a real one, and that a valid consideration was paid.</p> <p>3. Whatever presumption of simulation arose out of the circumstance of the debtor’s continued occupancy and possession of the plantation, was rebutted by satisfactory explanation.</p> <p>4. The vendor’s privilege on machinery put in a sugar house is lOBt if the cred- ■ itor permits the machinery to be sold confusedly with a mass of other things</p> <p>5. Haying lost their own privilege, plaintiffs have no interest to contest the rank of other mortgage and privilege creditors on the proceeds of the sale.</p>

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

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

<p>Syllabus.</p> <p>1 Defendant songlit to obtain his release from the payment of an asserted indebtedness by pleading the litigiousness of the claim. The claim is litigious. It is the basis of a suit pending in court. Plaintiff paid no consideration for the claim. It became his by the abandonment of the owners (who were the Independent Ice and Distilled Water Manufacturing Company, Limited,) by whom it was transferred to the present plaintiff without consideration.</p> <p>2. The law is that in order that a debtor owing a claim that is litigious may obtain his release, he shall pay to the transferree the real price of the transfer. The transferree did not pay anything for the claim. No price could be tendered, and, in consequence, no release could be obtained.</p> <p>3. Speculation in suits is sought to be restrained. The gratuitous transfer of a litigious claim, in good faith, is not considered, under the terms of the law. in the light of the purchase of a suit for speculative purposes.</p>

<p>Syllabus.</p> <p>A partition of property by legatees in disregard of an injunction of the testator, does not violate any prohibitory law of this State, or contravene public policy; it is a matter of private, not of public, concern.</p>

<p>Syllabus.</p> <p>1 A dative testamentary executor is authorized to bring an action to recover for the succession, real estate claimed to be owned by another under a tax title, when the heirs of the deceased are absentees. (C. P. 123.)</p> <p>2 Issues as to whether or not the property belongs to a community alleged to have existed between deceased and the plaintiff who sues individually, as well as testamentary executrix, cannot be determined in such action, though the defendant be one of the heirs of the deceased, if the other heirs be not parties.</p> <p>i!. Where title to certain property is a matter of contest between “A” and “B” it may be redeemed by parties representing the interests of either of the two when it is claimed, under a tax title, by a third person adversely to both “A” and “B,” leaving the effect of the redemption to be subsequently determined as between the other parties.</p> <p>4. A letter from the adjudicatee of property sold at a tax sale to an attorney at law, who has represented her, to accept on her behalf money tendered to redeem the' property, which letter was exhibited to the parties making the tender as evidence of his authority, cannot be excluded from being received in evidence, on the ground of its being a communication between client and counsel.</p> <p>5. When it has been shown that such letter has been mislaid or lost and could not be found after diligent search, secondary evidence of its contents can be received; it is not a condition precedent to such evidence being received that the loss of the letter should have been advertised.</p>

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

<p>Syllabus.</p> <p>1. A mortgagee has the right to executory process upon the property of an insolvent. Statute 15 of 1894.</p> <p>2. The substitution of a special to a general mortgage and a partition of the property left the minors without interest in the property and without right to a collateral attack upon the release of the mortgage, or upon the partition.</p> <p>3. The error of father and tutor, if any error has been committed, cannot equitably be corrected at the expense of innocent third persons.</p> <p>4. Minors, as well as majors, cannot claim a right upon the property disposed of in a partition which has not been reserved, as long as the proceedings are not attacked in a direct action. The record kept by competent authority has great force when innocent third persons are concerned.</p> <p>5. In establishing the residuum of the community, that is, its assets, after having deducted the debts from the active mass, only debts of the community are to be deducted, and not debts that have been secured by special mortgage in favor of minors in proceedings instituted to that end.</p>

<p>APPEAL from the Ninth Judicial District, Parish of Madison— Bansdellj J.</p>

<p>APPEAL from the Twenty-Eighth Judicial District, Parish of Jefferson — Qaudet, J.</p>

<p>Syllabus.</p> <p>1. Where suit is brought upon a policy of insurance which has a printed condition, or warranty, attached upon the face of it, and it is claimed by the plaintiff that such condition, or warranty, was eliminated when the contract was made, by reason of a verbal statement of the agent of the company to the effect that the company would give no trouble about ft; but the condition was, nevertheless, allowed to remain in the contract, to the knowledge of the assured, who fully understood its meaning and legitimate effect, testimony going to show such verbal statement should be excluded on the objection that it tends to vary and contradict a written instrument.</p> <p>2. It is not a question, in such a case, of the authority of the agent, but a question of the right of a party to a contract, which'has been reduced to writing, without attempting to reform such contract and without charging error or fraud, to substitute in place thereof a verbal agreement of which the written contract, with some of its provisions eliminated, is said to be a part.</p> <p>3. The secretary of an insurance company cannot bind the company for a loss which has occurred, but for which the company is not otherwise liable.</p>

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

<p>Syllabus.</p> <p>Servitude of drain is due the upper estate. It was located more than twenty years, in accordance with a written agreement.</p> <p>Proceedings res inter aUos acta, will not be lield to prejudice the rights of one not a party.</p> <p>A servitude of drain will not be considered abandoned unless it is manifest that its abandonment was intended by parties in interest.</p> <p>The time to ground prescription will not begin to run before it is made evident that from the time pleaded, the servitude was not exercised at all. Failure to sustain a drain properly, on the part of all concerned, is not considered as an abandonment of one’s rights if the right continues to be of soüie use, even though limited.</p> <p>Concerning plaintiff’s and appellee’s motion to amend the judgment, her right to damages is not made evident.</p> <p>With reference to the attorney’s fees, no attempt having been made to prove their value in the District Court, they are not considered on appeal.</p>

<p>Syllabus.</p> <p>1. One cannot be understood as contracting to take upon himself risks which are not apparent, and of which he has not been informed or warned against at the time of his employment.</p> <p>2. The warning required to be given is an unequivocal' one. It should not be left to inference. The situation should be explained, the danger pointed out, and the employee cautioned to be on his guard.</p> <p>3. When this is not done, and the danger develops, becomes real and actual and the servant is injured, the master is answerable in damages.</p>

<p>Syllabus.</p> <p>1. Defendants were employed by the plaintiff to obtain a cargo for the British ship Bombay. After part of the service had been performed, the employers failed. Although they had failed, defendants could not terminate their agency, put an end to the service partly performed, and become the employes of a third person to the contract between them and their principal.</p> <p>2. The question of reopening the testimony and admitting new evidence is largely left to the discretion of the nisi prius court.</p> <p>S. The accounting due by the agent to Ms principal does not fall within the prescription of three years.</p> <p>4. The facts do not sustain the charge that plaintiff’s claim is a litigious one.</p> <p>5. Defendants admit having received an amount (stated) from the owners of the vessel. This amount, by the terms of their agreement with the charterers of the vessel, is due to the charterers, less their charges and commissions. The total amount due of the ehafges and commissions having been fixed, they were deducted from the amount defendants collected from the owners of the ship.</p>

<p>Syllabus.</p> <p>1. A conspiracy Is a combination of two or more persons to do something unlawful, either as a means or as an ultimate end.</p> <p>2. Whilst the convenient and usual course is to prosecute all the conspirators, who are within reach, at the same time, it Is not legally incompetent to prosecute them separately, and, in such case, the charge that the particular defendant brought before the court has conspired with the others, whose names are given, is not open to the objection that it amounts to charging him with conspiring by himself, but means that there was a common agreement and a common purpose, without which there would be no conspiracy.</p> <p>3. In prosecutions under Section 5 of Act No. 8 of .1870 (extra session), it is sufficient to describe the crime of burglary by its name, where the offence charged is conspiracy to commit that crime; and the word “burglarize” may be used as the equivalent of the words “commit burglary,” as used in said statute.</p>

<p>Syllabus.</p> <p>1. What is meant by a “banking house,” in the sense of the statute denouncing a penalty against whoever shall keep such a house at which money or any other representative of value shall be bet or hazarded, is not left in doubt by the language used.</p> <p>2. There is no necessity for the judge, before whom a prosecution of this kind is being tried, to supply anything to eke out the meaning, purpose or intention of the law in order to make out the case.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish of St. Martin — Foster, J.</p>

<p>IN RE E. S. Teddlie and J. M. Nugent applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Grant, State of Louisiana.</p>

<p>Syllabus.</p> <p>A judge has the right on the presentation to him for signature of a bill of exceptions taken to his rulings to assign his grounds for the rulings. This right is not cut off by the provisions of Act No. 113 of 1896. If the judge in this assignment makes unauthorized recitals, the appellate court can disregard them. (State vs. Nash and Barnett, 46 Ann. 214; 48 Ann. 1491; 49 Ann. 283, 704; 50 Ann. 694; 51 Ann. 731; 52 Ann. 605, 2058 ; 104 La. 65, 164.)</p> <p>Counsel who decline to have filed a bill of exceptions signed by the judge, unless signed by him without an assignment of the grounds for his actions and such statements as he deems legal and necessary to sustain the same, cannot have the judge compelled to sign the bill as presented.</p>

<p>Syllabus.</p> <p>1. “ Probable cause ” does not depend upon the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party prosecuting.</p> <p>2. The question of “ probable cause,” as presented in an action for damages for alleged malicious prosecution, is a mixed one of fact and law, with which a jury, composed of men untrained in knowledge of law, is not unlikely to confuse the question of the guilt or innocence of the person, who, having been acquitted of the charge brought against him, seeks to recover damages for his prosecution.</p> <p>3. “ Where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could have ascertained by reasonable diligence and inquiry, and has acted upon the advice received, honestly and in good faith, the absence of malice is established, the want of probab’e cause is negatived, and the action for malicious prosecution will not lie.” And, a fortiori is this the case where, the counsel consulted is the public prosecutor.</p> <p>4. Actions of this sort have never been favored; a clear case must be made out of a perversion of the forms of justice to the satisfaction of private malice and the wilful oppression of the innocent, in order to sustain them.</p> <p>5. In this case, the evidence shows that the defendant, who is sued for damages for malicious prosecution, acted without malice and with probable cause, and upon the advice of the public prosecutor, before whom he had fairly laid the facts within his knowledge, and the verdict and judgment for the plaintiff are accordingly reversed.</p>

<p>Syllabus.</p> <p>The court reviewed the different grounds raised in opposition to the account filed of the insolvent’s estate and found no ground upon .which to set aside the judgment brought up for review under its supervisory jurisdiction, except in one particular.</p> <p>The fee of attorney Is allowed, to the extent, strictly, that the services of the attorney were rendered in having the property sold. The amount allowed does not cover all the services rendered in the insolvency proceedings (not immediately connected with the sale of the property).</p>

<p>Syllabus.</p> <p>1. Construing Article 12 of the Constitution of 1898 and Section 1007 of the Revised Statutes together, it is held it is only where persons convicted of crime shall have been sentenced to death, or to imprisonment at hard labor, that such persons are to be kept in confinement, notwithstanding an appeal taken in their case.</p> <p>2. Where the sentence pronounced is not that of death or Imprisonment at hard labor, the convict is entitled, upon application, to be released on bail pending the appeal.</p> <p>8. But where an accused party, has been convicted of an offense the sentence for which, yet to be pronounced, may be imprisonment at hard labor, he is not entitled to ball between the time of his conviction and that when sentence Is to be passed.</p> <p>4. The term, “ imprisonment at hard labor,” where used In Article 12 of the Constitution and in Section .1007 of the Revised Statutes, means Imprisonment at hard labor in the penitentiary. It does not mean the work on public roads, bridges and other public works authorized by Article 292 of the Constitution.</p>

<p>APPEAL from the Twenty-eighth Judicial District, Parish of Jefferson — Gaudet, J.</p>

<p>Syllabus.</p> <p>It appears in this ease that the tutor of the plaintiffs, having authority from a competent court, based on the advice of a family meeting, to sell the land in question, of which his wards were the owners, for cash, adjudicated the same to a third party, and recorded the proces verbal thereof, but, at the same time, took a counter-letter from the adjudicatee, showing that he made the purchase for the benefit of the minors and paid nothing. This counter-letter was not recorded; the adjudicatee died; and the land was assessed to his estate; sold for taxes, and purchased by the defendant, who acquired possession, paid taxes, subsequently assessed, and expended some money in improvements. Thereafter, the counter-letter mentioned was recorded, and, later still, this suit was brought, by and on behalf of the original owners, attacking the adjudication by their tutor, and also attacking the tax sale, and claiming from the defendant, as a possessor in bad faith, the rents and revenues of the property from the beginning of his possession.</p> <p>1. The adjudication by the tutor is held to be valid in so far as concerns the rights of the purchaser at the tax sale, who acquired without knowledge other than such as was disclosed by the proceedings in court and the public records. But as between the plaintiffs and the original adjudicatee, there having been no sale of the property, the plaintiffs are entitled to stand in the shoes of the latter, or his heirs, for the purposes of the attack upon the tax sale, with the same rights, no greater and no less, than such adjudicatee, or his heirs, would have had if he had purchased the property, in good faith for himself.</p> <p>2. The notice to the delinquent tax-payer (in this case, the estate of the adjudicatee, which appeared upon the public records as the owner to whom the property had been assessed) not having been given as required by Article 210 of the Constitution of 1879 and Act 85 of 1888, under which law the sale was made, the sale of the property for taxes and the title thereunder are null. And the action to recover the property is not barred by the prescription of five years, under C. C. 3542, nor by the prescription of three years, under Act No. 105 of 1874.</p> <p>3. The defendant was not a possessor in bad faith up to the judicial demand, and Is liable for rents and revenues only from that date. He is entitled to recover the amount paid for the property, with the penalty of twenty per cent., as in case of redemption, and with legal Interest on said amount from the date of payment. And he is also entitled to recover taxes paid prior to the beginning of his possession, with like interest. But taxes paid during his possession are compensated by the revenues which he received and retained. He is also entitled to recover, for Improvements, retained by the owners, to the extent of the enhanced value of the land, as admitted.</p>

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

<p>Syllabus.</p> <p>The property mortgaged had been sold and the writ oí seizure and sale executed. There remained no issues between the mortgagor and the mortgagee.</p> <p>The rule taken after the sale had been executed by the attorney for the absent mortgage debtor to fix the fee of attorney is not appealable, unless the amount came within the lower limit of the court’s jurisdiction. The minimum limit Is one hundred dollars. The amount involved had given rise to issues entirely independent of the main action. The only matter In dispute was th«. amount of the judgment of fifty dollars.</p> <p>Relator’s demand Is not allowed.</p>

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

<p>Syllabus.</p> <p>The relator and the respondent having entered Into a compromise after the former’s application for a writ of review had been filed and having no longer any interest In the litigation, the court is constrained to decline passing in an authoritative manner upon the question involved before the agreement of compromise.</p> <p>A certiorari will issue to set aside or affirm a judgment only In case it involves an issue between the parties.</p>

<p>Syllabus.</p> <p>1. Where there is no clause in its charter exempting from taxation, it may be the power resides in the Legislature to levy a tax on both the capital of a corporation and the shares of stock representing that capital.</p> <p>2. But where there is an exempting clause, the question becomes one of legislative intent as to the scope and extent of the exemption, rather than one of legislative power.</p> <p>3. When the Legislature In 1836 exempted the capital of the Citizens’ Bank of Louisiana from taxation, it meant to include in the exemption that which represented the capital — the shares in the hands of those who had subscribed to the capital stock.</p> <p>4. The effect of the decision of the Supreme Court of the United States in New Orleans vs. Citizens’ Bank, 167 U. S. 371, is to maintain and carry the exemption into the extended period of the bank’s charter.</p>

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

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

<p>Syllabus.</p> <p>1. To sustain an attachment the fraudulent intent of the debtor must appear, or facts and circumstances must be shown from which it may reasonably be inferred.</p> <p>2. It may well happen that an attachment itself is not authorized and yet there be justification on part of plaintiff in resorting to it.</p>

<p>APPEAL from Fifth Judicial District, Parish of Winn— Machen, J.</p>

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

<p>APPEAL from Seventh Judicial District, Parish of Richland.— Gray, J.</p>

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

<p>Syllabus.</p> <p>1. Although an under-tutor is appointed a few days prior to the appointment of a tutor, his appointment is legal.</p> <p>2. The debtor to the minors should not be appointed one of the members of a family meeting called to recommend some one to be appointed tutor. This rule of exclusion does not have the effect of excluding the brother of the minors, who is without interest, and who is not a debtor to them.</p> <p>3. There were relatives of the minors to compose the family meeting. They were not called, but friends were appointed. Friends are called upon to serve in default of relatives. C. C. 281.</p> <p>4. The judgment homologating the proceedings of the family meeting is annulled, and the case is remanded.</p>

<p>Syllabus.</p> <p>When an attorney at law chooses to occupy tow'ards an inexperienced woman and her minor children, whilst holding the property of the latter in his possession, the triple relation of attorney, agent, and lender of money, he is bound to keep an intelligible account of his transactions with his clients, and can be permitted to derive no advantage from his failure to do so.</p>

<p>Syllabus.</p> <p>The proceedings in matter of laying out a public road were regularly conducted. The committee of freeholders, duly appointed and duly qualified, designated the course of the road. Their report was approved by the Police Jury, and the amount of damages found was provided for by ordering warrants to issue for the same. The report and the approval of the Police Jury, and the facts bearing upon the point urged, do not show that the committee of freeholders had failed to lay out a road to the extent that this committee had been directed to act.</p> <p>The value fixed for damages incurred is sworn to as correct by a number of witnesses. This testimony, and the weight due to the report of the freeholders who reside in the neighborhood, sustain defendant’s position regarding the value of the property.</p> <p>Tile proposed route is the shortest and the most direct and, from the testimony, less expensive, and will cause less damage than the others indicated.</p>

<p>Syllabus.</p> <p>1. The administrator of the succession of a bailee is entitled to continue the possession of his decedent, and has an action to revendicate this possession as against a mere trespasser.</p> <p>2. While a pledgor may not contest the validity of a pledge for want of delivery, his administrator, in case the succession is insolvent, may; the administrator being the representative not of the decedent, but of the creditors of the succession, whose right to contest such pledge cannot be denied.</p> <p>3. Under the law of Louisiana a warehouse receipt is not the ordinary warehouse receipt of commerce, but is a technical instrument governed both as to its Issuance and as to the manner of its pledge by statute; and a material departure from the provisions of this statute, either in the form in which the warehouse receipt is issued, or in the manner in which it is given in pledge, is fatal to the validity of the pledge of such a warehouse receipt.</p> <p>4. A warehouse receipt in the form prescribed by Act 72 of 1876 may stand for the goods themselves, in such way that its delivery will operate a delivery of the goods ; but in order that this should be, the receipt must represent specific goods, or, at any rate, must represent a specific part of a uniform mass; a lot of cotton bales cannot be treated as a uniform mass, it being possible that there should be between the component bales a material dis parity.</p> <p>5. Delivery is essential to the validity of a pledge.</p> <p>6. ' In ascertaining the rank of creditors on the property of the decedent, the legal situation is to be taken as it was_ at the moment of the death.</p> <p>7. Considering that the cotton in controversy was being held to await better prices, and that the defendant took possession of said cotton and sold it without right, the defendant is made to account for the value of said cotton not at the price at which the cotton was sold, but at the market price which obtained a few months after the sale.</p> <p>8. A bank may attribute money on deposit to the payment of a debt to itself by its depositor where it holds from the depositor a special mandate to that effect.</p> <p>9. The cotton consigned to a commission merchant for sale may be demanded at any time from the commission merchant or from his administrator by the consignor upon payment of the indebtedness of the consignor to the commission merchant.</p>

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

<p>4 PPEAL from the Civil District Court, Parish of Orleans. — Si. \ Paul, J.</p>

<p>Syllabus.</p> <p>1. The agreement of parties that the contract shall be reduced to writing is a part of the contract; and, until fulfilled, the contract itself is incomplete.</p> <p>2. So that if a rice planter, on the one part, and a canal company whose business it is to furnish water to rice planters for the irrigation of their crops, on the other part, have an agreement, but contemplate that said agreement shall be reduced to writing, such company cannot recover against such rice planter on said agreement for water furnished, but can recover only on the implied contract to pay for water furnished and received — i. e. on a quantum meruit.</p> <p>3. In the absence of a contract the privilege provided for by Act 26 of 1898 cannot come into existence in the absence of an agreed price, and there can be no agreed price in the absence of a contract.</p>

<p>IN RE Eureka Homestead Society applying for certiorari, or writ of review, to the Court of Appeals, Parish of Orleans, State of Louisiana.</p>

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

<p>Syllabus.</p> <p>A seized debtor who becomes the adjudieatee at a sheriff’s sale made of his owa property, and pays the sheriff the amount of the bid, acquires no new title. (C. C. 495-2443.)</p>

<p>Syllabus.</p> <p>1. Advertisement is not a prerequisite to the admissibility of the contents of a lost document when loss is established.</p> <p>2. Parol testimony is admissible to prove the contents of a lost deed to land.</p> <p>8. A private deed of sale is binding on the heirs of the vendor and on those to whom notice is traced, even though it has not been recorded.</p> <p>4. A purchaser who seeks to oust those in possession of'property and owners of the title, who had knowledge of an unrecorded deed and who remained silent some thirty years, is without right to recover a judgment for the property.</p> <p>5. After the loss of the deed is shown, the question is one of weight of the testimony introduced in evidence to prove its contents. If the weight of testimony and all facts and circumstances sustain the claim to title, it will be held legal against one who does not show a better right to the property. The defendants are in possession and they and their ancestors in title have been in possession for a number of years under a recorded title. The hiatus in the chain of title is not one which can be of any avail to plaintiff.</p>

<p>APPEAL from the Tenth Judicial District, Parish of Tensas.— Dagg, J.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish of Iberia.— Foster, J..</p>

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

<p>APPEAL from, the Sixth Judicial District, Parish of Ouachita— Hall, J.</p>

<p>APPEAL from the Twentieth Judicial District, Parish of Terrebonne. — Caillouet, J.</p>

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

<p>Syllabus.</p> <p>This being an appeal, from a conviction of murder and sentence of death, in which it appears that the prosecuting officer, In his closing argument, referring to the widow of the deceased, who had been examined as a witness for the State, said: “I will say nothing to you of her six fatherless little childrenthat counsel for the accused objected and excepted, on the ground, sustained by the fact, that no evidence had been offered concerning such children; that the prosecuting officer, without disclaimer, proceeded with his argument, upon other grounds; that no action was taken by the trial judge, and that the jury was not instructed, either at the moment, or in the charge subsequently given, to disregard the unauthorized reference-complained of. And the matter being brought to the attention of this court by means of the bill of exceptions taken to the statement so made and of a bill taken to the refusal of the court a Qua to grant a new trial, the verdict and sentence are set aside, notwithstanding that the counsel for the accused made no demand that the jury be particularly instructed In the matter.</p>

<p>Syllabus.</p> <p>1. — The owner of a gentle animal which has always been of a kind temper, and has never attempted to bite anyone and has never given occasion to suspect that it would bite, is not liable in damages by the mere fact that the animal has bitten some one. Unless there be some fault, light as it may be, liability does not arise. In each, Montgomery vs. ICuerstner, 35 Ann. 1091; McGuire vs. Kingrose, 41 Ann. 1029; Delisle vs. Bouriaque, 105 La. p. 77, the owner was at fault. Laurent, Vol. 20, p. 675.</p> <p>2. — A slight wound greatly aggravated by imprudent treatment will not give rise to liability for damages where both the attending physicians trace the death to another cause than the bite of the animal.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss Appeal.</p> <p>Act 41 of 1894, authorizing certain corporations to become sureties on bonds, Is an amendment of the Code of Practice by implication, so far as it declares and defines the qualification of personal sureties.</p> <p>On the Merits.</p> <p>1. In determining whether the relations between parties are those of contractee and contractor, or employer and employe, “the simple test is, who has the general control over the work; who has the right to direct what shall be done, and how to do it? And, if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor; but, if it is reserved to the employer, or his agents, the relation is that of master and servant.”</p> <p>2. Where an employe is not placed by the employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he was engaged to do, and whose risks are obvious to any one, he assumes the risks of the employment, and no negligence can be imputed to the employer for an accident to him therefrom.</p> <p>On Rehearing.</p> <p>A separate appeal, taken by the plaintiff, after a final judgment on the merits in his favor, from an interlocutory ruling dismissing a supplemental petition which had been filed by him during the proceedings in the district court, injects into the case brought up by the appeal, previously taken on behalf of defendant, from such final judgment, no issues other than those presented in the transcript filed by the defendant. If the appeal so taken on behalf of the plaintiff is entitled to any consideration it must be as a separate matter and should have been so docketed.</p>

<p>Syllabus.</p> <p>1. Where the Supreme Court Is not advised of the facts of the case, It will not assume the action of the court refusing a severance In a criminal cause to have been erroneous. This is a matter resting largely In the discretion of trial courts.</p> <p>2. The District Court may, in anticipation of the exhaustion of the regular panel, direct the sheriff to summon talesmen (State vs. Monda, 39th An nual).. Authority so to do has not been withdrawn by the 11th section of Act No. 135 of 1898. Complaint on this score, where no injury Is alleged, when the talesmen selected have been accepted and sworn without objection, Is purely technical and entitled to little consideration. The matter would be, at the utmost, an irregularity, which the accused could — and under the statement of the district judge — did waive.</p> <p>3. Where special charges which counsel of an accused request the judge to give to the jury, are grouped, and any one of them is wrong, the court is warranted in refusing the whole.</p> <p>4. The maxim “falsus in uno, falsus in omnibus” is not a rule of law, and cannot ■ -be forced to be charged by the court to the jury as such. Juries in criminal cases in Louisiana are judges of the law and the evidence, and should not be tied down by peremptory instructions from the court as to what their course must be In respect to any particular testimony. The right of the court to inform a jury what it is authorized to do, is something different from telling It “what it must do.”</p> <p>5. The court correctly refused to charge the jury that "the doctrine of reasonable doubt applies not only to the whole ease, but to each and every incident connected with it.” That statement is entirely too broad.</p> <p>6. A declaration made by the judge In his charge to the jury that “one witness had sworn specifically to this crime” should not have been made, but It does not follow necessarily from the fact that it was made, that it was calculated to injure, and did, in fact, injure the accused. In the case at bar it occurred In a statement made for the benefit of and not adversely to the accused.</p>

<p>Syllabus.</p> <p>1. The administrator of a succession who has not rendered an account must render one on the demand of the heirs.</p> <p>2. There is no reason why the heirs of age should demand from their ex-tutor the account that they want to get from the administrator; especially in view of the presumption of their having already had an account from their tutor.</p> <p>3. A judgment closing the succession and sending the heirs into possession cannot be pleaded by the administrator in bar of the demand of the heirs for an account.</p> <p>4. Nor can a suit in partition among the heirs; especially where the suit went no further than citation, and is pleaded against those of the heirs who were the defendants in it.</p>

<p>IN RE Fidelity and Deposit Company of Maryland, applying for certiorari, or writ of review, to the Court of Appeal, Parish of Orleans, State of Louisiana.</p>

<p>^ PPLICATION for a writ of mandamus.</p>

<p>^ PPLICATION for writs of Certiorari and Prohibition.</p>

<p>Syllabus.</p> <p>1. The fact of being a constable, though good ground on whieh to claim exemption from jury service, does not disqualify from serving on the Grand Jury.</p> <p>2. The witness heard.shots ; and looking in the direction he heard them, saw the smoke and saw two men engaged in the conflict. He grabbed his shotgun and started towards the scene of the shooting. As he went, the deceased ran towards him, pursued by the accused, pistol in hand; when deceased got near enough to him he cried out to witness: “They’ve got me.” Witness asked “Who?” and deceased called out: “Will Carter shot me.” This statement of deceased was part of the res gestae.</p> <p>3. A written dying declaration is not inadmissible because sworn to; nor because some of its statements, of themselves and if standing alone, would not fall within the rule admitting dying declarations.</p> <p>4. Statements of the deceased to the effect that the accused had fired the first shot and had attempted to murder him without cause or excuse, were allowed to be repeated to the jury, over the objection of the accused because these statements had been made in the presence and hearing of the accused and had not been contradicted by him. The rule is that hearsay evidence is inadmissible ; the exception to this rule in favor of uncontradicted statements does not extend to cases where the accused was under arrest when the statements were made.</p>

<p>Syllabus.</p> <p>1. It is the duty of the master to furnish reasonably safe appliances required in the work he engages his servants to perform, and to keep them in good repair.</p> <p>2.- If a servant becomes aware of defects in the appliance, this knowledge alone, in case of injury, does not bar his recovery. Not only the defect, but the danger arising therefrom must be known to him, or be apparent to him.</p> <p>3.- The rule that an employee cannot recover where he chooses a dangerous method to perform a given work, after he has- been shown a safe way, is held to have no application to this case.</p> <p>4.- A plaintiff’s right to sue and stand in judgment must be challenged by formal plea tendered in Umine.</p>

<p>Syllabus.</p> <p>1. A former trial cannot be made the basis of a plea of once in jeopardy when it was had before the judge instead of before the jury, in a case in which, under the Constitution, the prisoner could not waive trial by jury.</p> <p>2. The affidavit on which the defendant was arrested on the charge on which he is being tried is inadmissible in evidence against Him; and since such affidavit is a sworn dclaration of the defendant’s having committed the crime for which he is on trial, and is therefore of a nature to make an impression on the minds of the jury, its admission in evidence is reversible error.</p> <p>3. Whether such affidavit is ever admissible, it is certainly not so to prove that a certain witness had not made it, when the fact of the said witness not having made the affidavit has already been established by the witness, and 1b, besides, not material to the issue.</p>

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

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

<p>APPEAL from the Twenty-ninth Judicial District, Parish of Plaquemines. — Hingle, J.</p>

<p>^ PPLICATION for writs of Mandamus, Prohibtion and Certiorari.</p>

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

<p>Syllabus.</p> <p>1. In a suit for settlement of partnership affairs, the prayer of the petition should be for judgment in favor of plaintiff for whatever sum the settlement might disclose as existing in his favor, and not for a judgment for a specific sum.</p> <p>2. But where judgment for a specific sum is asked for, the suit will not be dismissed outright, if, viewing the petition as a whole, it is made out to be a demand for a partnership settlement and It is found that the prayer for the specific sum may be eliminated, leaving the legitimate matter — the suit for settlement — intact.</p> <p>3.- In the settlement of partnership affairs, where material correction, amendments, or reductions are made in the account submitted, the latter should be recast in accordance with the view of the trial judge, to the end of facilitating the understanding of the case in the appellate court. There should, at least, be a showing made of how the figures and totals and conclusions embodied in the decree were arrived at, and where this is not done, and the same is not supplied by the briefs of counsel, and not easily ascertainable from the evidence, the case will be remanded.</p>

<p>Syllabus.</p> <p>It being made the duty of the district attorney to represent the State In all < rlm Inal and civil actions in his district, he has the right to represent the State in magistrate’s courts on the trial of cases for assault; and this right, if denied to him by the magistrate, may be enforced by mandamus.</p>

<p>Syllabus.</p> <p>1. To constitute an offense under the first part of Section 2 of Act No. 8 of the Extra Session of 1870, there must be a severing from the soil of the produce, or other crop growing there, or attached thereto, by the party charged.’</p> <p>2. The words “attached thereto” used in the statute are held to mean attached to the soil by roots — a growing, or standing, or ungathered crop of some kind.</p> <p>3. If the crop be already severed or detached from the soil by the owner, and be left on the ground, and there be a taking and carrying away of the same, or some part thereof, by another, there may be a case of larceny, but no offense under Section 2 of the Act of 1870.</p>

<p>Syllabus.</p> <p>1. Though a person execute a last will and testament during an attack of delirium tremens, it will be maintained, if executed during a lucid interval.</p> <p>2. Where a notary public in writing a last will, understanding the name as given to him by the testator to be “Grouzeilles,” instead of “Crouzeilles,” so writes the name by mistake throughout the instrument, and the testator merely affixes his mark as his signature, evidence is admissible to prove said mistake, and on proof of said mistake and of the fact that the party making the will was really Francois Crouzeilles, the will will be maintained. The mistake was, besides, evidently the result of idem sonans.</p> <p>3. When the recitals made in the will are of character such as to leave no doubt in the mind of the court that the testator did make to the notary, in presence of the witnesses, the declaration required to be by him made, by Article 1579 of the Civil Code, the will will be maintained. It is not the duty of courts to refuse carrying out the wishes of deceased parties by pushing the requirements of the law to extremes.</p> <p>4. Parties claiming to be heirs of a deceased person and to be placed in possession of his estate, must prove their heirship. (C. P. 1903; Solar! vs. Barras, 45 Ann. 1132.)</p>

<p>Syllabus.</p> <p>1 Only an issue of fact is involved, whether property bought during marriage, in the wife’s name, is in fact her paraphernal property, as stated in her title deed.</p> <p>2. The evidence adduced in support of that contention being satisfactory, the judgment appealed from, so holding, is affirmed.</p>

<p>APPEAL from the Ninth Judicial District, Parish of East Carroll. —Ransdell, J.</p>

<p>Syllabus.</p> <p>1. A confession in which one of the defendants owned that he had sold the property and said that he had disposed of it under the direction of his co-defendant, is admissible in so far as he is concerned, and not against his co-defendant, as to whom the jury was instructed that it should not have any effect. Confessions are to have effect only against the parties making them. State vs. Havelin, 6 Ann. 167 ; State vs. Fontaine, 26 Ann. 513 ; State vs. Harris and Nellum, 27 Ann. 573 ; State vs. Johnson, 47 Ann. 1230.</p> <p>2. A defendant may testify in his own behalf, although he may try to cast the guilt upon his associates. It may bear upon his credibility, but does not pre sent grounds to exclude his testimony. Underhill Crim. Ev., p. 77. The “ testimony is admissible for or against the other under instructions from the trial judge to the jury to restrict such testimony.” State vs. Adams, 40 Ann. 213; State vs. Wright, 41 Ann. 600.</p> <p>3. The defendants were indicted jointly and no objection was made to a joint trial.</p> <p>4. The court is entrusted with some discretion to permit the prosecution or the defense to bring in additional testimony after the close of the evidence and before the argument has begun. 31 Ann. 267; 39 Ann. 319.</p>

<p>Syllabus.</p> <p>Only an Issue of facts presented. Plaintiff was Injured by a fall In the night time from a higher level to a lower level of a side-walk. The evidence shows such a condition of the banquette, left for years unattended to, as to be dangerous to pedestrians at night, and to amount to negligence on part of the municipality rendering it liable.</p>

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

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

<p>APPEAL from the Twenty-fifth Judicial District, Parish of Tangipahoa — Reid, J.</p>

<p>Syllabus.</p> <p>Application for appointment of a receiver under Act 159 of 1898 — Held, taking the case as presented and the proof administered in support thereof, no sufficient showing for the order is made.</p>

<p>Syllabus.</p> <p>1. The receiver having been appointed at the Instance of the city of New Orleans for the stated purpose of closing this litigation, and having as yet taken no steps towards accomplishing that purpose, the city of New Orleans Is not III a position to say that the litigation Is terminated and that the receivership is not necessary.</p> <p>2. There being debts of the defunct corporation, and also assets, subject to be reduced to possession and distributed to the creditors, a receivership would seem to be necessary.</p> <p>3. The receiver of a defunct corporation that owes debts and has assets should be clothed with the power to'reduce to possession and to distribute to the creditors all the assets of the corporation of which he is receiver, to be found within the jurisdiction of the court that has appointed him.</p> <p>4. The taxes imposed in the years 1869 to 1876, both inclusive, for the use of the late corporation known as the Board of Metropolitan Police, constitute one fund, out of which the warrants and certificates issued by the said Board are entitled to be paid indiscriminately.</p> <p>C. The powers of a receiver may be enlarged on his own motion, or even on the court’s own motion.</p>

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

<p>Syllabus.</p> <p>An act done by a party prior to the petition for his or her interdiction cannot be annulled except upon proof that the cause of such interdiction notoriously existed at the time when the act was done, or that the person who dealt with the party of unsound mind could not have been deceived as to the state of his or her mind.</p>

<p>Syllabus.</p> <p>1. The rule Is that the testimony of a witness taken at the preliminary examination cannot be used on the final trial without a showing of either the death, or the permanent absence of the witness from the State; and Act 123 of 1898, organizing the Criminal City Courts for the Parish of Orleans, does not change this rule.</p> <p>2. An act will not be so interpreted as to give to Its provisions an operation beyond the scope of its title.</p> <p>3. A judicial record for the making of which the law provides, makes full proof of itself. Neither Its execution, nor Its contents, need be proved aliunde.</p>

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

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

<p>Syllabus.</p> <p>1. Where the conduct of the husband justifies the wife In leaving him, and furnishes grounds for divorce, she is necessarily authorized to acquire a separate domicile, and the law of the domicile so acquired will determine her marital status. Hence, a judgment of divorce, rendered by a court of a State in which such domicile is acquired, and valid where rendered, is valid in other jurisdictions, without regard to the place of marriage, the offense, or the domicile of the husband, and the latter may be brought into court by publication, or otherwise, as provided by the lex fori.</p> <p>2. It is settled jurisprudence in this State that a marriage will not be dissolved on grounds antedating the establishment here of the marital domicile, but it does not follow that this court will not recognize the validity of a divorce granted upon such grounds in another State.</p> <p>3. In such a ease, the decree of divorce is open to attack upon questions of jurisdiction, among which is good faith as to the acquisition of domicile. But where, in such decree, all necessary facts are found, it presents, upon its face, no intrinsic nullity, and will serve as a basis for a presumption of good faith with respect to a subsequent marriage.</p> <p>4. A dative executrix should deposit the funds coming into her hands in a bank, established in the parish where such succession is opened, which pays interest on deposits, if there is such a bank, and if there is no such bank, she should deposit such funds in a solvent bank in such parish which pays no interest. And if she fails so to do, and fails to file annual accounts, and pays out such funds without authority of the court, for matters in which the sue cession is not concerned, she should be destituted of her office.</p> <p>5. The fees and expenses of attorneys, and the expense of litigation between different heirs, or claimants, as to their respective rights, do not constitute general charges against the succession.</p> <p>6. It being shown that an opponent had originally been employed by decedent as ' housekeeper, but that, in the course of time, there had ceased to be any question of wages between them, and that she and her children and grandchildren were, equally with the decedent, the beneficiaries of the home which he provided and which she made comfortable; and that the decedent further provided for them all in his will, a claim for years of back wages and for nursing during last illness was properly rejected. •</p> <p>7. It appearing in this case that there are conflicting claims with respect to the ownership of land which derives its principal value from the timber on it; that the probability is that it will be denuded of such timber if allowed to remain, or to go, into the possession of either of the claimants; that the judge a quo has ordered the judicial sequestration of such land, and has refused an application to bond the same, this court finds no reason for Interfering with such ruling.</p> <p>8. Nor, where a will has been probated, whereby the testator disposes of his entire estate, does this court discover any reason for reversing the ruling of the judge a quo in refusing to probate an alleged will of older date, which gives nothing which is not given in the will already probated.</p> <p>On Rbhearinq.</p> <p>1. A marriage only putative produces civil effects as relates to the party In good faith and his or her children. Smith vs. Smith, 43 A. 1148.</p> <p>2. Without determining that the marriage is valid, it is entitled to weight in determining the good faith of the wife or of the husband.</p> <p>3. After the second marriage had been contracted, apparently in good faith, those who have for years recognized its validity are scarcely in a position to he heard to have it decreed void, and the children of the marriage illegitimate • and without the least rights.</p> <p>4. The marriage as relates to the daughter is entitled to complete legal effect.. As relates to the other parties concerned, the original opinion remains, as well as the decree.</p>

<p>Syllabus.</p> <p>1. A lease by one railroad company of the tangible property of another does not, of necessity, involve the franchises, or corporate existence, of the lessor; and a judgment against the lessee, in a suit to which the lessor Is not a party, with respect to the lessee’s use, under Its charter, of the leased property, is not conclusive'as to rights of the lessor which are not Included In the lease.</p> <p>2. There is nothing in the charter of the defendant company (Act No. 37 of 1877, Regular Session) that authorizes said company to carry on the business of public warehouseman, whether under said charter, or under Act No. 156 of 1888, or otherwise, or that authorizes it to carry on such business as Incidental to the business of a railroad operated by any other person or corporation than itself.</p>

<p>Syllabus.</p> <p>1. In a petitory action, the defendant is bound to plead all the titles under which he claims, and cannot evade the'Judgment rendered In such action by-setting up a title which he might have urged by way of defense thereto.</p> <p>2. The1'case is the same where, the defendant being the real party in interest, the title subsequently relied on stands in the name of another person who . holdq as his representative and for his accommodation arid account.</p> <p>3. In interpreting a petition, in order to determine whether it discloses a cause of action, all of the allegations are to be considered together and with reference to the prayer.</p>

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

<p>Syllabus.</p> <p>1. Articles 209 and 242 of the Constitution of 1879, being in pari materia are to be construed together, and, so construed, contemplate certain public improvements which aré to be confined within the limits of the taxing districts upon which the special tax is to be imposed and certain other public improvements and railway enterprises which are not to be so confined.</p> <p>2. Under those articles and the subsequent legislation upon the subject of special taxation (being Acts 84 of 1880, 35 of 1886, and 153 of 1894) it was competent, upon obtaining the assent of the property tax-payers, in the manner required, to impose a special tax in aid of a railroad which neither passed through, nor terminated in, the municipality taxed.</p> <p>3. The legislation referred to contemplates and provides for the imposition, at one time, and for the entire term specified in the petition of the tax-payers, of the tax to be levied and the levying, or collection, of such tax, annually, during such term.</p>

<p>Syllabus.</p> <p>1. In view of the special power expressly granted and the absence of legislative provision regarding enumeration required to enable a municipal corporation to enforce a grant of'power, it is competent for the municipal authorities, by regular methods, to ascertain and make public the number of persons residents of the municipalities.</p> <p>2. But the court will not assume that the statute has been complied with unless it be made to appear by sufficient and competent testimony obtained in some regular way that the number of the population was more than two thousand at the date that an ordinance was passed to enforce the power.</p> <p>3. While deciding that the municipality has the power to ascertain the number, the court holds that the methods required were only followed after the plaintiff’s Injunction had been issued and not in time to affect the injunction.</p> <p>4. The courts have the power to enjoin the enforcement of municipal ordinances relating to public order and health, even though penal in their nature. 50 A. 521..</p> <p>5. 'As relates “ to irreparable injury,” the allegations made the showing sufficient, and the objection on the ground that it was not, is not sustained.</p>

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

<p>Syllabus.</p> <p>Where a plaintiff in rule contemplates appealing from an adverse judgment, based upon an exception, or speda' defense, which has not been reduced to writing and is not specifically r<i erred to in the judgment, the onus is upon him to take suen steps as may be necessary to present his appeal intelligibly, and if, from the transcript, it is impossible for this court, by reasonable inference or otherwise, to determine what exception, or what special defense, was sustained by the judgment appealed from, the appeal will be dimissed.</p>

<p>Syllabus.</p> <p>1. An act to amend certain sections of a general law is limited in its scope to the subject-matter of the sections proposed to be amended. The amendment of a special section of an act implies merely a change of the provisions upon the same subject to which the section relates.</p> <p>2. The General Assembly is not authorized, under a title to a law purporting to amend a particular section of another law, to alter the subject-matter of a different section, to which no reference is made in the title, and to transfer and insert such altered matter as a “proviso” into the amended section (with which it has no logical connection), leaving the latter as it was originally, save as to the matter so thrown into it. Such insertion is an “addition" rather than an “amendment” to it.</p> <p>3. Though a particular section of a law may, by amendment, be broadened so as to bring within its provisions some particular matter which could logically and legally have been placed in it originally, this matter must be something which had not been already specially and differently provided for in another section of the same statute, and to which section no reference is made in the amendatory law.</p>

<p>Syllabus.</p> <p>Í. A clause In a contract evidencing the grant of aid to a railway company, which is to construct a line of road on the east side of Red River, that the company shall operate tow boats with convenient barges at points on the river so as to furnish transportation to freight and produce, and to operate the boats as low down stream as the lower boundary line of the parish granting the aid, is held to mean that the railway company should run a boat or boats, towing barges when necessary in seasons of law water, up and down the river front of the parish, making frequent connection with the railroad at the points in the parish where the railroad touched the river, to the end of giving the people of the .parish living on the river, especially those on the west bank, direct, easy and continuous connection with the railroad.</p> <p>2. It was altogether competent and legal for the railroad company to stipulate to do this. There is nothing of ultra vires character about it.</p> <p>3. Besides, if the stipulation was not intra vires, it does not lie in the mouth of the railway company, which received the aid, to set the same up as defense.</p> <p>4. Such a stipulation is a consideration of the grant; it is more — it is a material consideration; and the railway company fails to earn the tav whenever it fails to meet the condition.</p> <p>5. The obligation of the railway company in this regard is not fulfilled by a contract with a boat already in the river making fortnightly trips from New Orleans to Shreveport, to receive and transport such freight and produce as may be offered for shipment.</p> <p>6. Since the railway company could earn the tax only by running boats agreeably to the intent of the contract, a putting m mora was not required.</p>

<p>Syllabus.</p> <p>1. A prior suit in the same jurisdiction between the same parties, for the same cause of action, may be pleaded as Ms pendens.</p> <p>2. Plaintiff’s cause is pleadable in one suit, and it has no right to a second su't when its cause can be amply protected in the first. Multiplicity of suits is odious to the law.</p> <p>3. Parties cannot, by not pleading part of their defense, proceed in a second suit with the object of preventing further proceedings in the first suit.</p> <p>4. The fine imposed is in the nature of an interlocutory order, against which the preventive process by injunction will not lie, as there is ample remedy with out it.</p> <p>5. A writ of injunction will not be issued against officers representing the State, invested with discretion in the performance of duties imposed, particularly in view of the fact that the State has provided other adequate process against abuse of power.</p> <p>6. Injunction is not the proper remedy prior to judgment, provision having been made to render injunction unnecessary prior to final decree.</p>

<p>Syllabus.</p> <p>1. Pending action by the trial judge on an exception of no cause of action it is - within his discretion to permit the filing of an amended petition covering the defectiveness of allegation in the original petition.</p> <p>2. The book entries of deposits, made by a bank cashier who is dead (his handwriting and death being proven), accompanied by evidence corroborative of the contention of plaintiff that these entries exhibit all the deposits made hy _ defendant, who kept no pass-book, make a prima facie showing of the state and extent of defendant’s deposit account, and suffice ‘to shift the burden of proof on defendant to show other deposits.</p> <p>3. Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them.</p> <p>4. It is only when the truth is ascertained that the law can be applied in the just settlement of disputes.</p> <p>5. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.</p> <p>6. When a defendant in a civil case can, by his own testimony, throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge, and fails to go upon the witness’ stand, the presumption is raised, and will be given effect to, that the facts, as he would have them, do not exist.</p>

<p>Syllabus.</p> <p>Where the motorneer of a street car, in answer to a signal, is slowing down his car, in order to stop it uith the rear platform over the proper crossing, and a passenger has taken his position on the lower step of the platform, preparatory to getting off. the fact that the passenger loses his balance and falls to the ground, it being claimed that such fall resulted from the sudden jerking of the car, and from the passenger catching his shoe in a defective step, will not justify the conclusion that such fall should be attributed to the negligence of the carrier, when it appears that the irregularity of motion complained of was not greater than is usual in the stopping of street cars and that the step was of an approved pattern and without discoverable defects.</p>

<p>Syllabus.</p> <p>1. Tlii.i court will enleilam no application for the writ of review where it does not appear that a reheaiing of the cause was sought and denied in the Court of Appeals See amendment to Rule 12 of the Rules of the Supreme Court, 52 La Annual Reports.</p>

<p>Syllabus.</p> <p>1. The borrower deposited an amount to pay the price of the lot. The homestead company, with this money, paid for the lot and took a transfer in its name for the account of the borrower. After having purchased the lot, the company placed improvements thereon and sold lot and improvements to the borrower, who, as relates to the lot, only received that for which she had paid. It was not a transaction such as is contemplated by Act 115 of 1888 where the borrower sells property to the homestead company, and afterward it is sold back by it burdened by the terms of the act with vendor’s privilege. The company had a vendor’s privilege and the property burdened with a mortgage in favor of a third person is subject to the claims of this mortgagee.</p> <p>2. Under the circumstances, the right of the homestead company is recognized and the lot is to he appraised separately from the improvements thereon and the amount distributed between the mortgage creditor and the homestead company in proportion that the separate appraisement will bear to the whole appraisement.</p> <p>3. The clauses and sections of Act 115 of 1888 form part of one object. The Act embraces one object, also its title, and is not unconstitutional on the score that it contains many objects.</p> <p>4. The vendor’s privilege claimed not being recognized, the placing the title in the name of the borrower is not subject to successful attack on the ground that the Act 115 of 1888 contains peculiar and special privileges granted to homestead associations in derogation of the Constitution.</p>

<p>Syllabus.</p> <p>1. The fact that an owner, who had engaged an architect to design a building and prepare plans and specifications, afterwards changes his mind and does not erect the building, and that he has benefited nothing by what the architect did, while entitled to some weight in fixing the amount of compensation to be paid the architect, cannot, in the absence of an agreement to that effect, defeat the architect’s recovery.</p> <p>2. An intending builder, by calling upon an architect to prepare plans and speci fieations which he afterwards receives, renders himself liable to pay for them whether they are used or not.</p> <p>8. Courts will adopt with caution a rule which binds an owner to pay a percentage on a building such as the architect sees fit to figure out, and at a price which he, or the builders to whom he sends the plans put upon its probable cost.</p> <p>4. There is in such a rule too much inducement to architects to make the piano expensive for it to be readily accepted.</p> <p>5. An owner, who is not apprised of a schedule of charges obtaining among architects and had no knowledge of the same, is not to be held bound by such schedule.</p>

<p>Syllabus.</p> <p>1. An exception to the method by which an objection is saved must specify the particular finding objected to and further disclose all that is necessary to make the asseued error evident.</p> <p>2. The record should contain a transcript of so much of the testimony as to enable the court to determine whether an error has been committed. This may be done by annexing copy of the evidence to the bill of exceptions.</p> <p>3. Besides, the sentence does not fall within the minimum limit of the jurisdiction of this court.</p>

<p>Syllabus.</p> <p>1. Where persons hold themselves ont, and allow themselves to be held out, as partners, to the public at large and to particular individuals, who, accordingly, deal with them in the belief that they are partners, they should be held liable as partners for all the purposes of such dealings.</p> <p>2. The obligation of the clerks of the District Court, to issue subpoenas for witnesses upon the demands of the defendants in civil actions, is not ■ affected by Article 472 of the Code of Practice. The matter is controlled by Act No. 203, of 1898, under which the clerks must look to the plaintiffs in such actions for their costs, and must issue such subpoenas as the defendants may require without exacting payment or security.</p> <p>3. An irrigation company may be put in default, with respect to the water which it has contracted to furnish, by a verbal demand made by one member of a planting partnership in the presence of two other members; or, by a written demand, left at the camp of its “water boss,” in the hands of a responsible person, during the absence of such boss.</p> <p>4. Such company, in order to recover rental for water claimed to have been furnished under contract, must prove the contract, and the service in accordance therewith, and, where it is claimed that there was a partial performance, accepted by the lessees, any pro tanto recovery must be proportioned to definitely established benefits derived therefrom by the lessee, after deducting damages resulting from failure to perform in- full. If the benefit cannot be clearly so established there can be no recovery.</p>

<p>Syllabus</p> <p>1. A foreign corporation, not engaged in commerce, or in the service of the United States, can, lawfully, do business in Louisiana only upon the conditions imposed by the law of the State.</p> <p>3. Where such corporation has so far complied with the law as to establish an office in this State and designate an agent upon whom process may be served, service upon such agent vests the court issuing the same with jurisdiction to hear and determine the cause, irrespective of the citizenship of the plaintiff or the subject matter of the controversy.</p> <p>3. But, complete jurisdiction includes, not only the power to hear and determine, but the power to enforce the determination, and as courts are averse to the exercise of authority which they are unable to vindicate by process, they will, usually, decline to exercise a jurisdiction, intended to be complete, which falls short in the latter respect.</p> <p>4. Hence, the courts of a State will not, ordinarily, entertain suits involving the exercise of visitorial power over foreign corporations, nor will they, ordinarily, undertake to regulate the internal management of such corporations ; but, this rule is subject to the same exceptions as the necessity upon which it is founded, and where, in a particular case, a court acquires complete jurisdiction, and is able, not only to hear and determine, but to enforce the determination in such a manner as to do complete justice, the jurisdiction will be exercised, although the result may be the regulation o£ the internal affairs of a foreign corporation.</p> <p>5. Where a foreign corporation doing business here, fails to keep within this State the books required by the Constitution, and there is no officer of such corporation, having the custody or control of such books, within reach of the process of the State courts, mandamus will not issue commanding that inspection thereof ‘be allowed, but where there are other books, within the State, and in the custody of an agent of such corporation who is within reach of the process of the State courts, mandamus may issue commanding that such inspection be allowed, to a stockholder, whether resident or nonresident.</p> <p>6. Nor will, such relief be denied because of a provision, in the charter, or by laws, of the corporation, to the effect that differences, thereafter arising between the corporation and its members shall be submitted to arbitration, such stipulations whereby persons undertake to shut the doors of the courts with regard to matters to arise in the future, not being enforceable.</p>

<p>Syllabus</p> <p>1. A bill of exceptions to the overruling of a motion for a new trial merely reciting the motion, its overruling and the reserving of a bill, is of no practical value.</p> <p>2. If a court commits errors in the course of a trial, they must be excepted to at the time, and bills of exception taken. Complaint of the same cannot be set up for the first time in a motion for a new trial.</p> <p>3. Where one of three parties charged with conspiracy is on trial separately from the others, the latter are competent witnesses for the State.</p> <p>4. An objection that no evidence is receivable under and in support of an indictment by reason of its insufficiency, is disposed of by a judgment of the Supreme Court, overruling a motion in arrest of judgment based on that contention and sustaining the indictment.</p> <p>5. It was not necessary that the court in pronouncing sentence against appellant should have used the words “it Is hereby adjudged and decreed that, etc.” Appellant was found guilty by the jury, the judgment, or sentence of the court confirmed it and carried it into execution. The judgment contained the usual recitals and followed the customary form.</p>

<p>APPEAL from the Nineteenth Judicial District, Parish of St. Martin. — Foster, J.</p>

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

<p>Syllabus.</p> <p>1. Act No. 33 of 1900, being the latest expression of legislative will upon the subject of drainage within the corporate limits of the town of New Iberia, must be held to control prior legislation, and to vest in the Mayor and Tru*tees of the town exclusive authority upon that subject.</p> <p>2. The title of Act 114 of 1900 expresses but one object, but the last section of the act is broader than the title, and, therefore, unconstitutional, but in so far, only, as it undertakes to repeal Act No. 5 of 1899, as an entirety, and does not confine the repeal to so much of said act as is contrary to, or Inconsistent with, its own provisions.</p> <p>3. Article 281 of the Constitution, whilst contemplating that drainage districts shall be established as distinct entities, Imposes no restrictions upon the General Assembly in the matter of the selection of the officers by whom the affairs of such districts are to be administered, and the courts can Impose none.</p>

<p>Syllabus.</p> <p>1. It may not be legally necessary, in the proces verbal of a jury drawing, lo recite the names of those stricken from the jury list because of previous jury service, or because of death, removal from the parish, exemption from jury duty, or disqualification as jurors since their names were entered thereon, but it is the better and safer practice to do so.</p> <p>2. Where, from the proces verbal, it seems to appear that the jury commission, in drawing a regular venire, failed to supplement the list and the ballots in the box with the names of other persons competent as jurors equal in number to those stricken from the list and whose names were taken out of the box, thus leaving a depleted box from which they drew the jury, the array of which is challenged, a motion to quash will prevail.</p> <p>3. The drawing of a jury from a box containing less than three hundred names, is one of those irregularities so gross, so at variance with the strict mandate of the law, that it amounts to a wrong per se on those affected by it, and Is an Injury so apparent, and, to those who have reason to complain of it and do complain of it, so great, that they need, In the way of showing injury, do nothing more than allege injury.</p>

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

<p>Syllabus.</p> <p>1. With reference to the respondent’s objection that the writ was not preceded by a sufficient application for a rehearing, the court holds that the rehearing was refused, and by it the case was finally- disposed of, and the writ of certiorari or review is seasonably taken.</p> <p>2. Corporations, different from natural persons, are creatures of the law and have only such powers as the State may choose to grant or recognize.</p> <p>3. A State may enact that those who represent Insurance companies within her limits, shall be considered agents upon whom service of process may be made, without violating the Constitution of the United States. Pembina Con. Silver Mining, etc., Co. vs. Pennsylvania, 125 U. S. 189.</p>

<p>Syllabus</p> <p>1. The evidence, taken out of the presence of the jury and brought up with the bills of exception in this case, fully sustains the ruling of the trial judge, to the effect that the confessions attributed to the defendants were made freely and voluntarily and without the inducements of promises or threats, and such rulings will, in no case, be disturbed unless clearly erroneous.</p> <p>2. In the cross-examination of one of the defendants, who had taken the stand as a witness in his own behalf, his attention was directed to the time, place, and circumstance of a statement attributed to him and said to be at variance with his testimony, and he admitted the ijrobability of having made such statement. 'Thereafter, upon cross-examination of the person to whom the statement was said to have been made, and who had been introduced as a witness on behalf of the co-defendant, he was asked whether such statement had been made to him, to which he replied in the affirmative. The overruling of the objection that the question was not germane to the testimony elicited upon the direct examination of the witness and that it served to introduce an alleged confession by the defendant was not, under the circumstances, reversible error.</p> <p>3. Neither general allegations as to errors of law, nor special allegations as to errors concerning facts, submitted to and found by the jury, will be considered by this court as grounds for the reversal of the ruling of the district judge in denying an application for new trial.</p>

<p>Syllabus.</p> <p>1. Where the conducting of a liquor saloon is a legally legitimate business In the sense that it is permitted by license in a municipal corporation, It is not a nuisance per se, and not a thing or occupation that must necessarily become a nuisance.</p> <p>2. This being so, it is not within the power of the town authorities to single out a certain saloon, arbitrarily declare it a nuisance and order it closed, and. if the order be not obeyed flue the proprietor for not obeying.</p>

<p>Syllabus.</p> <p>A sale made by a married woman with the authorization of her husband for the recited consideration of a price paid cash by the vendee is prima faoie valid, and a subsequent sale of the property by the vendee to a third party acting in good faith on the faith of the public records is protected from a rescission by the wife of the original sale on the ground that it was not really a sale, but the taking up by her of a mortgage securing her husband’s debt which she had executed in favor of the apparent vendee and that she executed the act under marital influence, coercion and the fraudulent representations of her husband, and the fraud in the vendee.</p>

<p>Syllabus.</p> <p>The license tax as imposed is uniform, as required by the Articles of the Constitution, Nos. 225 and 229.</p> <p>The law-making power is not restricted in dividing trades and professions into classes and in assessing a license on the classes respectively, provided the classification be equal and uniform on all persons on the same class.</p> <p>Prior interpretation of the constitutional meaning is accepted as correct. 40th Ann. 463 ; 40th Ann. 466.</p>

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

<p>Syllabus.</p> <p>1. The “levying of taxes” and the “assessment of property” for the purposes of taxation are for each calendar year and are to be made on the basis of the condition of 'things existing on the first of January. (Southex'n Insurance Co. vs. Board of Assessors, 4Í) Ann. 401.)</p> <p>2. Trees standing by the roots -upon and forming part of a certain plantation on the fix'st of January of a given year are included in the taxation and assessment of the plantation for that year as a whole. Payment of the taxes upon the plantation carries with it payment of taxes for that year upon the ti'ees. They are not subject to taxation twice in the same year.</p>

<p>Syllabus.</p> <p>1. The defendant In a criminal ease who takes the stand as a witness in his own behalf may be cross-examined in the same manner as any other witness in such case, and where he testifies, in his direct examination, that he wrote to a person, and professes to state what he wrote, he may be interrogated, on cross-examination, as to the number, dates, and contents of the letters. Nor has he the right to demand, as a condition precedent to answering such questions, that the letters, themselves, in the possession of the prosecuting officer, shall be submited to the inspection of himself and his counsel.</p> <p>2. Construing Section 800, R. S., with Act No. 93 of 1898, the necessary, and only effect, is, that the penalty provided oy the act is substituted for that provided by the first paragraph of the section.</p> <p>3. If a statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it.</p> <p>4. What comes by way of proviso in a statute must be insisted on by way of defense by the party accused, though, where the exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fail within them.</p> <p>5. Where a defendant, prosecuted for bigamy, undertakes to defend by showing that he contracted the second marriage in the honest belief that the first had been dissolved by a decree of divorce, the burden of proof rests upon him to show that he had reasonable grounds (his' mental capacity and surroundings considered) for such belief and that he did, in fact, so believe. It is not enough that he should merely create a doubt upon that subject in the minds of the jury.</p>

<p>APPLICATION for writs of Certiorari and Prohibition.</p>

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

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

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

<p>(Syllabus.</p> <p>The action was one sounding in tort for the alleged unskillful and negligent manner the defendant, as a physician, performed the duty he had assumed.</p> <p>The rule is well settled that the oculist who treats a patient must exercise In that regard the care and skill usually exercised by oculists In good standing. He may be rendered liable for his gross mistakes.</p> <p>It was not shown by a preponderance of testimony that defendant through want of skill or negligence committed a mistake for which he can be held pecuniarily liable. Experts testified that he followed the established practice, and it Is not shown that he committed a gross error, the proximate cause of the injury of which plaintiff complains.</p>

<p>Syllabus.</p> <p>On the Exceptions.</p> <p>1. To disbar an attorney, in a civil suit, for acts for which, when committed, he could have been disbarred only after trial and conviction in a criminal court, Is to impose a punishment to which he was not liable when the acts were committed; and the legislation authorizing it Is subject.to the inhibition in the Federal Constitution against the passage of bills of attainder and ex post facto laws.</p> <p>2. It is competent for the Legislature to change the method of procedure, and the forum by, and in, which particular cases are pending, or are to be tried, and a party interested has no just cause for complaint merely because such change Is made after his right of action, or a right of action against him, arises.</p> <p>3. Actions to disbar attorneys are properly brought, since the adoption of the present Constitution, agreeably to the rule adopted by this court pursuant to the provisions of Article 85 of said Constitution and such actions are not to be tried by juries.</p> <p>4. The attorney as against whom charges are made with a view to his disbarment is not entitled to be present at the sittings of the commission, created under the rule above mentioned, at which such charges are being investigated. Nor is the commission obliged to notify him before reaching its conclusion and certifying the same to the Attorney General.</p> <p>5 The civil action to disbar as authorized by Act 129 of 1896, and as now authorized by the rule of this court adopted under the authority of the Constitution, is predicated upon the theory of the violation by an attorney of the special obligation assumed by him as a consideration for the issuance of his license. It is not, therefore, an action ex delicto, and not prescribed In one year.</p> <p>On the Merits.</p> <p>1. The “exclusive original jurisdiction in all maters touching professional misconduct of members of the bar,” conferred on this court by Article 85 of the Constitution, does not extend to non-professional misconduct, which is cognizable originally in the District Courts, agreeably to the provisions of Act No. 129 of 1896.</p> <p>2. Whilst the professional conduct of a member of the bar may be open to censure, it does not, of necessity, follow that the severe penalty of disbarment should be imposed.</p> <p>5. In the instant case, the charge, which has been considered upon its merits, that the defendant practiced a fraudulent deception, whilst acting in his professional capacity, is not sustained by the evidence.</p>

<p>Syllabus.</p> <p>The aspersions of the defendant upon the plaintiff’s character were neither just, nor well founded. In view of the fact, however, that he did not originate, nor volunteer the matters complained of, but made use of them in answer to enquiries made of him by interested parties, touching defamatory remarks made by other persons, the court holds him protected from an action tor damages under the rules which the court refers to governing privileged, confidential communications.</p>

<p>Syllabus.</p> <p>3. . All the heirs of a testate succession being sui juris and being, at once, heir* at law and testamentary heirs, may ignore the will and divide the estate as they please, and if, with their consent and acquiescence, such estate Is administered by an administrator, instead of an executor, they cannot be heard, to the prejudice of the rights of third persons, acquired as the result of such administration, to object that the proceedings and orders, In which they participated and of which they availed themselves, were irregular and Illegal.</p> <p>,2. Nor can such heirs, at whose'instance, or with whose consent, an administrator has been appointed,, for two successions, the-one testate and the other intestate, and who, by written instruments, have ratified, confirmed, and approved the acts of such administrator, including sales, made by order of •court, at his instance, and have, by such written’instruments, authorized him to proceed, and, with the money realized, pay and compromise certain claims pending against themselves, be heard, after the sales have been made, and the money received and disposed of as thus authorized, to attack the titles of - the purchasers, on the grounds that the successions had been closed and that , the appointment of the. administrator was illegal.,</p>

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