Volume 107 — Louisiana Reports

A PEAL from the civil district court, parish of Orleans — Theard, Jr. On the application for rehearing by Monroe, J. Removed to Supreme Court of the United States on writ of error.

<p>APPEAL from the Twenty-Fourth Judicial District, Parish of West Feliciana — Kilboume, J.</p>

<p>Syllabus.</p> <p>The statute clearly provides that no one shall be prosecuted for any fine unless the prosecution be instituted within six months of the time of incurring such fine, and does not admit of a delay within which to institute proceedings, as in case in which one is prosecuted for an offense barred by the prescription of twelve months from the time the crime is made known to an officer having authority to direct the prosecution.</p> <p>The recovery of the fine is absolutely prescribed in six months from the time the fine was iricurred and is not negatived by the averment in the information that it was filed within six months after the commission of the act was made known to an officer authorized to prosecute.</p>

<p>Syllabus.</p> <p>1. Where a person’s property is seized by the sheriff in execution of a fi. fa., the owner’s possession is broken and replaced by that of the sheriff. It is the sheriff who, thereafter, holds possession of the property for delivery to the purchaser at the subsequent judicial sale. The owner’s possession being broken after a judicial sale to another, he stands as a third person to the property.</p> <p>2. Where the same property is afterwards sold at a tax .sale under an assessment made in the name of the purchaser at the execution sale, there is no legal reason why the original owner should not hold possession under and for the tax purchaser, nor why he should not later purchase it from him and own and possess it for himself. Under such circumstances, his title would be a new title, and he could, for purposes of prescription, tack on his author’s possession to his own.</p> <p>3. ' Where, under the pleadings, the purchaser of property at a tax sale is admittedly in good faith up to citation upon him in a petitory action, prescription acquireM causa runds in his favor and those holding under him from the date of the tax sale.</p>

<p>Syllabus.</p> <p>1. A conviction for selling one drink of beer to Ben Barnes, is not a bar to n prosecution for selling on the same day one flask of whisky to Austin Montgomery, unless the two sales are proved to have been one and the same transaction, constituting one sale.</p> <p>2 The one word “Sunday” conveys all the meaning .that is conveyed by the phrase “the twenty-four hours immediately following 12 o’clock Saturday nighthence, under a statute forbidding stores to be kept open, or liquors to be sold during the twelve hours immediately following 12 o’clock Saturday night, it is sufllcient to charge that the unlawful acts were committed on Sunday : especially is this so where in the title of the statute the word “Sunday” is used to designate the same forbidden space of time.</p> <p>3. The hour at which the forbidden acts were committed need not be specified; it is sufficient to charge that they were committed on Sunday. •</p> <p>4. Whether the mere opening of a store on Sunday, without making any sales, violates Act J8 of 1886, commonly known as the Sunday law, quaere. But every separate act of selling from said store on Sunday, constitutes a separate violation of said act, subject to separate prosecution and punishment.</p>

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

<p>Syllabus.</p> <p>1. Appellate courts have jurisdiction of incidental demands, and, particularly, oyer-costs, such as depend on the event of a suit which are to be paid after its termination.</p> <p>2. The judgment is intended to embrace within its terms all questions regarding costs. If, for any reason, there remains an undecided question regard ing the costs, after the decision has been rendered, and a question of interpretation or construction arises, the court by which the judgment was rendered, is the court of competent jurisdiction.</p> <p>3. The Court of Appeal had not rendered the judgment on appeal in which the costs were incurred. The judgment was rendered by the Supreme Court, and this court is vested with jurisdiction of a rule to tax costs in its own judgments.</p>

<p>Syllabus.</p> <p>When the State Tax Collector proceeds to enforce the payment of additional licenses, for past years, exceptions and defenses to the effect that the licenses have been paid upon the basis of sworn statements, made by the party proceeded against and accepted by the then tax collector, and that such collector, or his successor, is without authority so to proceed, and is estopped; that the law providing for the collection of such licenses has been repealed; and that the law under which the proceeding is conducted confers no authority therefor; that the collector has failed to proceed promptly, with his collections, to keep a license register, and to furnish a list of delinquents ; and that he has no right to demand penalties, present questions which affect not the constitutionality or legality of the tax, but the remedy of the State and the alleged omissions, errors and unauthorized proceedings of her officers in the matter of enforcing payment of such tax, and, hence, confer no jurisdiction on this court.</p>

<p>Syllabus.</p> <p>1. Article 283 of the Constitution of 1898 declares that no sale of property for taxes made prior to the adoption of the Constitution shall be set aside for any cause, except on proof of dual assessment, or the antecedent payment of taxes, unless the proceeding to annul is instituted within three years from the adoption of the Constitution.</p> <p>2. That provision of the Constitution was intended to have the effect of a statute of repose.</p> <p>3. After the lapse of the three years from the adoption of the Constitution, the party in possession under his tax title, which has been duly recorded, cannot be disturbed except for the two causes mentioned.</p> <p>4. Certainly, the claimant owner out of possession cannot be heard to urge other causes for setting aside the adverse tax title, or preventing its confirmation.</p>

<p>Syllabus.</p> <p>Where judgment has been rendered in the District Court in a suit for separation from bed and hoard, from which no appeal has been taken, a separate appeal will not lie to the Supreme Court from the decree of the District Court which taxes costs simply by reason of the character of that suit.</p>

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

<p>Syllabus.</p> <p>An appeal is perfected by the ¿ling of the appeal bond. From an order appointing of refusing to appoint a receiver under Act 159 of 1898, the appeal must be perfected before the. expiration of ten days from the entering of such order appointing or refusing to appoint a receiver.</p>

<p>Syllabus.</p> <p>1. An heir who asks to be recognized as an heir and to be placed in possession of a’succession, to the . extent of his interest, has a right of action.</p> <p>2. As to this heir, the will of the de cujus not having been legally probated, he may be heard to have all the proceedings leading to the judgment probating the will, as well as the judgment itself, decreed null.</p> <p>3. The proceedings and judgment probating the will are null, and the judgment appealed from is affirmed.</p>

<p>APPEAL from the Twenty-Seventh Judicial District, Parish of Assumption — Leche, J.</p>

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

<p>Syllabus.</p> <p>1. In enacting Statute 44 of 1890, it must be presumed that the Legislature did not intend that the law should be construed without reference to established principles, and that in making it a crime to shoot a person with intent to kill it was intended to cut oil the right of self-defense or any other reasonable or lawful use of firearms.</p> <p>2. Shooting in self-defense is actuated and controlled by the desire to protect one’s life, and the desire to take life is not controlling and exclusive, it cannot be said to fall within the terms which denounce the act of shooting with intent to kill. In that view, the statute is not unreasonable nor absurd. United States vs. Kirby, 7 Wall. 482.</p> <p>3. Even if the statute be unreasonable, to decree it void its provisions must be found in conflict with the Constitution. L. K. A., Vol. 50, p. 56.</p> <p>4. The title of an act may assist in removing ambiguities when the intent is not plain. The title, as well as the statute, is adopted by the Legislature and shows the object of the statute. Fisher vs. Blight, 2 Cranch. 586; Burgett vs. Burgett, Vols. 1 and 2, p. 221 of the Ohio Reports.</p> <p>5. A title which serves to indicate the object of a statute cannot be held to have misled the Legislature when it was adopted.</p> <p>6. “We, the jury, find the accused guilty of shooting with intent to kill,” is a legal verdict under Statute 44 of 1890. State vs. Broussard, 106 La. (Not yet reported).</p>

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

<p>APPEAL fro-m the Twen!t.y-first' Judicial District, Parish of Pointe Coupee — Claiborne, J.</p>

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

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

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

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

<p>Syllabus.</p> <p>On Motion to Dismiss.</p> <p>1. In case of doubt, the doubt will revolve itself in favor of the appeal. The sufficiency and competency of the surety was a proper subject for inquiry in the District Court.</p> <p>2. The return of appeals in matter relating to the appointment of receivers, under Statute 1898, is governed by special provision of that statute.</p> <p>3. The_ lack of an affidavit to show interest of the appellant affords no ground to dismiss the appeal where the interest is admitted by all the parties to the appeal.</p> <p>ON the Merits.</p> <p>The management of the company brought it within the terms of the Statute 159 of 1898. A receiver was appointed by the District Court, and the court’s action in this respect is affirmed, subject to the rights of creditors under Section 10 of Statute 159 of 1898.</p> <p>On Application por Rehearing.</p> <p>1. It is good ground for the appointment of a receiver to a corporation wheri it appears that the directors or other officials are jeopardizing the rights of stockholders or creditors, by grossly mismanaging the business, or by committing acts ultra vires, or by wasting, misusing or misapplying the property or funds of the corporation; or, when it appears that a majority of the shareholders are violating the charter rights of the minority and putting their interests in imminent danger.</p> <p>2. ' It is for the court to determine whether or not the showing made justifies and makes advisable the appointment of a receiver.</p> <p>3. The appropriate place for officials in charge of the business of a corporation is the domicil of the company. If they live away from its domicil, they have no right to charge the company for traveling expenses to and fro between their homes and the domicil of the company.</p> <p>4. Officials and majority shareholders have no right to extend favors to certain of the shareholders at the expense of the corporation, or of the body of tne shareholders.</p> <p>5. The provision of the charter requiring thirty days’ previous notice to be given to stockholders of a meeting called to consider the question of the dissolution and liquidation of the corporation is held to be mandatory.</p> <p>6. It will not do to say that because a corporation may be insolvent and nothing be eventually coming to the stockholders, they are without interest to take action to prevent abuses.</p> <p>7. Where a case for a receivership is otherwise made put, it is no sufficient ground for denying the application that it will entail large costs and expenses. The courts of Louisiana will not permit the spoliation of estates and corporations in the way of the allowance of exhorbitant charges for commissions, fees, costs, etc.</p>

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

<p>IN EE A. W. Connely, et als, applying for certiorari, or writ of review, to the Court of Appeal, Fifth Circuit, State of Louisiana.</p>

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

<p>Syllabus.</p> <p>1. An order of court directing a party to the suit to set out his claim more specifically will not be reversed unless it is manifest that error has been committed.</p> <p>2. It is not unreasonable to require of the pleader, who sues on a contract, to disclose whether he sues on a written contract or on a verbal contract.</p> <p>3. Facts essential to sustain the suit should be stated.</p> <p>4. A plaintiff is not entitled, as a matter of right, to an examination of .defendant’s books and papers to an extent requisite to enable him to make sufficient allegations to sustain his actions. His ground of attack should be sufficiently explicit to enable him to compel his adversary to produce needful books and papers on the trial.</p> <p>5. Agreement of counsel, subject to different constructions, will not be taken in the presence of a disagreement as to the extent it was intended to include.</p>

<p>Syllabus..</p> <p>1. The judge may refuse to give a special charge the matter of which has been already substantially covered in the general charge.</p>

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

<p>PPEAL from the Eirst City Court, City of Shreveport.- — Hicks, J</p>

<p>Syllabus.</p> <p>1. where a juror is challenged for cause hy the State, and the challenge is sustained over the objection of the accused, the latter has no legal ground of complaint where his bill of exceptions does not show he had exhausted, or did exhaust, before the jury was made up, his peremptory challenges, and, in consequence, he had been compelled, later, by reason of the earlier aption of the court in sustaining the objection of the State to the juror in question, to accept an obnoxious juror.</p> <p>2. A ruling of the trial judge that certain testimony offered by the accused is irrelevant will not be disturbed where nothing appears in the bill of exceptions exposing or explaining the connection necessary to show its relevancy.</p> <p>3. Declarations made by a defendant in his own favor, unless part of the res gestae, are not admissible in his behalf.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of Avoyelles ■ —Gouvillon, J.</p>

<p>APPEAL from the Civil District Court, Parish of Orleans.— Sommenille, J.</p> <p>The Opinion, on Motion to Dismiss, was delivered by Monroe, J.</p> <p>On the Merits was delivered by Breaux, J.</p>

<p>Syllabus.</p> <p>1. The town of Crowley Is authorized to erect and maintain a public market-house, and has legal authority to enact reasonable ordinances requiring articles of food, intended for daily consumption, usually sold in town markets, to be vended at and in such market-house only, and to prescribe reasonable penalties in enforcement of such ordinances.</p> <p>2. That part of Section 33 of • Act 136 of 1898 providing for the inscription of ordinances adopted by municipalities in a book kept for the purpose, is held to be directory merely.</p>

<p>APPEAL from the Fourteenth Judicial District, Parish of Avoyelles —Gouvillon, J.</p>

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

<p>Syllabus.</p> <p>1. Art. 203 of the Civil Code is not prohibitive in terms, and must be taken and construed with another in pari materiae, viz.: 209 of the Civil Code, regarding the modes of acknowledgment of natural children. Succession of Fortier, 51 A. 1585 ; Lange vs. Richard, 6 La. 570.</p> <p>2. This view finds some support in 4 A. 305, cited with approval in 33 A. 1104. In the last cited case the court said of a decision holding views not entirely in accord with the first cited case, i. e., the case of Dugas vs. Caruthers, 6 A. 158, that it was the dictum of the organ, and not the opinion of tile three judges composing the majority, with which the court in 33 A. 1104 did not agree.</p> <p>3. In the 6th Annual case the natural brother and sister were acknowledged to some extent at least.</p> <p>4. Between heirs acknowledged as required by Art. 209 C. C. and collateral heirs not acknowledged at all, the court holds that the former are entitled to inherit.</p>

<p>Syllabus.</p> <p>1. where a license levied under a parish ordinance, which was passed without the observance o£ some legal requirements, has' been voluntarily paid, it can be recovered back on the ground o£ error only under exceptional circumstances. (Milita fieri prohibentur quae si facta fierrnt obtinent firmitatem.)</p> <p>2. The fact that the State has fixed State licenses for pursuing occupations for six months at one-half of that for pursuing them for one year, does not carry with it the obligation on the part of the Police Jury to follow the same rule in fixing the parish licenses to be paid by dealers in distilled, alcoholic or malt liquors.</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>Syllabus.</p> <p>On Motion to Dismiss Appeal.</p> <p>1. An appeal will not be dismissed .because of the absence from the transcript of evidence which could not, if present, influence the decision of this court.</p> <p>2. The fact that counsel representing a number of appellants describe themselves, at one place in the motion, and in signing the bond of appeal, as “attorneys for plaintiffs” is not sufficient reason for dismissing the appeal for uncertainty as to the party appealing, when it otherwise appears, in such motion-and bond, that it was the purpose to appeal for all the parties cast. , As to the bond, it would have been good, if it had been signed by none of the appellants.</p> <p>On the Mebits.</p> <p>1. Bayou LaChute has its source and runs its course in the Parish of Plaque-mines, and is not a navigable stream in any sense that places it beyond the dominion and control of the State of Louisiana.</p> <p>2. Hence, quoad a mere squatter, upon land owned by the State, and fronting on said Bayou, it is competent for the State to make a “cut-off,” connecting said Bayou with other waters; and it is equally competent for the State to recognize or tolerate such “cut-off” when made by other persons.</p> <p>3. And so, when a “cut-off” has been made and the State thereafter leases its lands upon the Bayou to persons, otherwise “squatters,” who have full knowledge of its existence, and the one lessee makes no stipulation concerning it, whilst the other takes a lease of the “cut-off” itself, for the planting' and cultivation of oysters, the one lessee has no right to close such “cut-off” to the injury of the other, even though he may find It prejudicial to the oyster beds upon the property leased by him.</p> <p>4. The damages to be allowed for an alleged trespass must be established with reasonable certainty, and will not include traveling expenses, loss of time or attorney’s fees incurred for the purposes of prosecutions instigated against the trespasser by the party claiming.</p> <p>5. And, where the punishment of the trespasser has been submitted to and acted on by or is pending in the Criminal Court, the Civil Courts will be slow to inflict punitory damages.</p>

<p>Syllabus.</p> <p>1. A purchser of standing timber, whose good faith Is otherwise established, will not be held to have been in bad faith' simply because the records showed that the seller did not have title to the land.</p> <p>2. In order to be in good faith, a purchaser of timber is not obliged to investigate the authority of the firm he deals with, where such firm is reputable and is engaged in the business of buying and selling lands and timber both • for itsélf and for others.</p> <p>3. A firm is liable for the tort of one of its members committed in the course of the partnership business and whereof the firm has had the benefit.</p> <p>4. The Individual members of a firm are liable for the tort of one of the members of the firm, although they had no knowledge thereof, where such tort was committed in the course of the partnership business and for the benefit of the partnership.</p> <p>5. Where a partnership advisedly sells the timber of a third person to an innocent purchaser, who cuts down the timber and takes it to market and sells it, both the partnership and the purchaser are trespassers, and are solidarily liable in damages to the owner of the timber; but in fixing the amount of damages decreed to be paid by the parties, a different basis will be adopted; as to the innocent purchaser, the basis will be the value of the timber at the stump; as to the firm, held as a trespasser In bad faith, the basis will be the value of the timber after reaching market.</p>

<p>Syllabus.</p> <p>1. The violation by a person of the legal rights of another renders the latter liable for some damages, without proof of actual damage.</p> <p>2. Damages claimed from the president of a corporation by a stockholder for having refused to allow him to inspect the corporation books, where the officer has not acted in bad faith, must be those of which the refusal is the legal proximate cause, and of these due proof must be made; remote, uncertain, collateral and speculative damages cannot be recovered.</p>

<p>IN RE Mutual National Bank, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, State of. Louisiana.</p>

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

<p>Syllabus.</p> <p>Act 171 does not authorize the levy or collection of a license from the owner of property for the carrying on of an occupation or business by bis lessees, in which the owner himself does not participate.</p>

<p>Syllabus.</p> <p>Plaintiffs, as heirs of their father, sue the defendant on a certificate of deposit-The defendant received a number of deposits; at the instance of the depositor, the account was changed from daughter to father at the latter’s request.</p> <p>.In the different transactions between the parties, a certificate remained uncalled for and was found among me father’s papers many years after his death.</p> <p>The testimony of the treasurers who kept the defendant’s books at different dates and the entries in the books to which they referred and swore, while testifying, as well as the utterances of at least one of the plaintiffs, before suit was brought, show that, owing to carelessness or oversight on the pact of defendant’s treasurer at the time, the receipt remained outstanding.</p> <p>The court holds that only one account was kept, and only one line of deposits, and not two, as contended by plaintiffs.</p> <p>xne sums carried on this account, as due to plaintiffs, have been paid, and the receipt they hold is without consideration.</p> <p>A bookkeeper may consult his books to refresh his memory and testify to fact» of which he has therein kept a record.</p> <p>The name of the depositor was not changed with the tiew of committing a wrong. The request of the one in whose name the deposits were credited, and the acquiescence of all concerned, leads the court to hold tha^ • change In name of the depositor was not made without the assent of ai? concerned.</p> <p>A witness is not absolutely discredited because he does not recall that he has signed a receipt representing a large balance. A witness’ testimony, if he is in good faith, may be unreliable as to a particular fact and not as to other facts.</p>

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

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

<p>Syllabus.</p> <p>1. The return of a Jury in a criminal case should, with some reasonable eer- ' tainty, Identify the act charged to have been committed by the defendant with the statute under which- he is found guilty. A verdict must accord with the terms of a violated statute. 10 A. 191: 35 A. 729; 36 A. 857; 40 A. 200. Courts should not go beyond words of the verdict. 50 A. 595: 34 A. 529; 38 A. 479. The essential facts must be found by the special or what is termed by commentators, a partial verdict. 48th Ann. 1071. In the decision upon which, not without ground, the defendants place relianee, it is said: "The special or partial verdict must contain the elements of the crime.’’ State vs. Vance, 49th Ann. 1011. Held, that the verdict, whether considered as a verdict known as partial or special, does not contain the elements of the crime.</p> <p>3.The charge was shooting with intent to kill or murder. The trial judge properly refused to instruct the jury that the accused could be found guilty of assault, or of assault and battery. State vs. Robertson, 48th Ann. 106.</p> <p>3. The maxim/'aZsííS m uno, falsus in omnibus is properly, in its application, left to the jury. Witnesses, Rapalje, p. 319, State vs. Banks, 40th Ann. 739.</p> <p>4. One indicted for having been present, aiding and abetting may, under special statute, be found guilty as principal. State vs. Littell, 45 Ann. 655.</p> <p>5. A new trial granted on defendants’ motion reopens the whole case, and has the effect of disposing of the plea of autrefois acquit.</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.— Sommerville, J.</p> <p>The opinion of the court was delivered by Provosty, J.</p> <p>On Application for Rehearing by Provosty, J.</p>

<p>Syllabus.</p> <p>•1. The prescription to be applied, in any given case, is that established by the law of the forum, and the prescription ordinarily applicable to judgments in this State is ten years, under C. C. 3544. An exception to this rule is established by R. S. 2808, which provides that, where a judgment has been rendered in another State, between parties there residing, and has become barred by the law of such State, and the judgment debtor has thereafter come to Louisiana, the prescription established by the law of the State a quo will be applied to such judgment in this State. But, where the judgment debtor comes to this State before the judgment against him is prescribed by the law of the State in which it was rendered, and is here sued on such judgment, the case is not within the exception, and the only prescription to be applied is that established by Article 3544 of the Civil Code. And where the action on the judgment is begun and citation is served wii — n ten years from the rendition of said judgment, the prescription so established is interrupted.</p> <p>2. Under the Revised Code of Mississippi of 1880, a writ of attachment commands the sheriff, not only to seize the effects of the defendant, but to summon the defendant, if he can be found; and, where the return shows that the defendant has been summoned, no further evidence to that effect is required to enable the plaintiff, who obtains a personal judgment upon such summon, to maintain an action in this State upon the judgment ro obtained.</p> <p>8. But where the writ commands the sheriff to summon the firm of A & B (which is composed of A and B), and the return shows that A & B have been summoned, such evidence is insufficient to justify the conclusion that C, a member of A, B & Co. (a firm which had succeeded the firm of A & B), has also been summoned; and hence, an action against “C” cannot be successfully maintained in the courts of this State upon a judgment against “C,” where the record contains no other evidence that “C’’ was summoned.</p> <p>On Reheaeing.</p> <p>1. Where one commercial firm is cited and another condemned, the judgment is null for want of citation ; it is null even as against those members of the condemned firm who happen to be members of the cited firm; and this, although both firms owe the debt.</p> <p>2. A partnership is a legal entity entirely separate from its members; and two firms are separate legal entities, though one has grown out of the other by the admission of a new member. r</p>

<p>Syllabus.</p> <p>1. The purchaser of a growing crop being charged with presumptive knowledge of the existence of the privilege of the furnisher of supplies resting upon it, allegations of his having had actual knowledge of such privilege are unnecessary and surplusage, and the disproof of such allegations does not affect the case one way or another. If the petition in the case contained a cause of action previous to such disproof, it still does so.</p> <p>2. A debt “for money and necessary supplies to. make the crop” is privileged on the crop.</p>

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

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

<p>Syllabus.</p> <p>1. A devolutive appeal lies to test the legality of the action of a judge in refusing to allow a defendant to bond an injunction.</p> <p>2. The refusal by the court of an application of the defendant to bond an In junction does not bar a second application later nor is an oppeal from the second refusal barred by a failure to appeal from the first.</p> <p>3. The District Court could have legally ordered, ece officio, a judicial sequestration of the property in litigation and have ordered the continuance of the same, until the rights of the parties should be decided. (C. P. 273.274.) It could, therefore, properly decline to allow the defendant to bond an injunction which plaintiff had had taken out which had the effect of maintaining the status quo during the suit. The court can still order a sequestration, or it can increase the injunction bond if the rights of parties can be better secured.</p>

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

<p>Syllabus.</p> <p>1. The right oí plaintiff to sustain an action must he made evident before defendant can be made to show title in himself.</p> <p>2. An act of donation, null and void, cannot serve as a basis for a petitory action.</p> <p>3. Estoppel does not affect those who did not acknowledge the right which one claims.</p> <p>4. The asserted donor not being estopped and being at liberty as relates to the act of asserted donation to claim the property, and return into its possession as owner, those who bought this property without notice by recital in any deed in which they were concerned that this particular property had been donated are not bound by an informal act of attempted donation.</p> <p>5. The act was never accepted by the transferree who died years ago.</p> <p>6. Irregularities in a tax deed and all errors of form not of such a character as to render a tax deed absolutely null and void, are cured by the prescription of three years.</p> <p>7. The tax deed attacked was not absolutely null and void.</p>

<p>APPEAL from the eighteenth judicial district, parish of Acadia— DeBaillon, J.</p>

<p>Syllabus.</p> <p>1. While common carriers are not absolute insurers of their passengers, It is an implied condition of railroad companies with each passenger, that the latter shall not he put in jeopardy of life or limb by any fault — even the slightest of the servants of the company. The negligence of a common carrier includes its negligence in all the departments of its 'undertaking.</p> <p>2. The passenger is not relieved of all obligation as to his own safety, but, unlike the carrier, He need not exercise the highest degree of care. He Is bound to exercise only ordinary care and prudence to preserve himself from injury.</p> <p>3. The standard by which to determine whether or not an adult passenger has failed to exercise the proper degree of care, is whether a person of ordinary prudence in the same situation, and having the knowledge possessed by the passenger would have done, or omitted to have done, the alleged negligent act. The passenger has the right to rely confidently on the care and watchfulness of the carrier to make all things safe for his transportation, with its incidents.</p> <p>4. A railroad company cannot be permitted to place a car on one of its tracks in the hands of parties who do not know or appreciate the danger of doing or not doing certain acts which it was the duty of the party having charge or control of the car, to know, and escape liability for his negligent acts on the ground that it was not under the control of its employees. It is responsible for the negligent acts of those in whose hands it permitted the car on its tracks to pass.</p> <p>5. It is negligence on the part of a railroad company to place a freight ear, with opening side doors, on a switch connecting with the main track, so near the junction that the door, when opened, would close the intervening space between the switch and the track. To leave open the door of a car so situated or to throw it open as a train is passing, is more than carelessness and passive negligence. It is an active violation of the company’s contract, against which the passengers would have a right to anticipate full protection.</p> <p>6. Where the arm of a passenger was projecting from * the sill of a car window, and was injured by being struck by. the open side door of a freight car of the defendant company, left at rest upon a switch connecting with the main track, and so near that the open door closed the interval between the switch and the track, it is a question to be determined from the evidence under all the circumstances of the case, whether this was negligence on the part of the passenger — barring recovery.</p>

<p>APPEAL from the Civil District Count, Parish of Orleans.— Sí. Pml, J.</p>

<p>Syllabus.</p> <p>1. Taxpayers of a parish have the right to implead the Police Jury and call iu Question the legality or constitutionality of any act or ordinance of that body.</p> <p>2. Act No. 24 of 1870, which prohibits Police Juries from making appropriations for, or authorizing expenditures upon, public roads until provision for meeting the same shall have been made by laying a special tax on all the real and personal property in the parish, and which declares that payment for work performed or material furnished for constructing or repairing roads shall not be made from any other fund or funds of the parish, is distinctly modified, if not repealed, by Art. 291 of the Constitution of 1898, which authorizes Police Juries to set aside at least one mill of the annual' parish tax for roads and bridges.</p>

<p>Syllabus.</p> <p>1. A contractor who has unadvisedly refused to perforin his contract may, while the situation of things is unchanged, retract the refusal, and go on with the contract; and is not cut off from so doing by the service upon him of a notice to the effect that, the contractee will hold such refusal to be a default and will sue to dissolve the contract.</p> <p>2. The facts being, as follows : that in March 1898 A and B entered into a contract by which A was' to furnish irrigation water and B to make a rice crop and pay water rent; that B denied owing any water rent for 1898, claiming that owing to the insufficiency of the water service the crop had suffered loss to an amount more than off-setting the water rent; that A did not press the payment of the rent, although B was well able to pay and could be made to pay ; that in March 1899 the parties entered into another contract materially amending the contract of 1898, but making no allusion to the water rent for 1898 ; that thereafter A did not renew the claim for this water rent, not even when in February 1900 written demand was made for the payment of rent due, and presumably of all rent due ; that the claim was renewed for the first time in defense to a suit by B to annul for non-performance of the contract in question, — held: this debt for rent of 1898 is presumed to have entered into the contract of 1899 as part of the consideration thereof, ai though not expressly mentioned in the instrument evidencing said contract. The modes of extinguishing obligations specified in Article 2130 of the Civil Code are not exclusive.</p>

<p>Syllabus.</p> <p>Where an act, purporting to be a sale of real estate, and a counter letter confirmatory of said act and according to the vendor the right to redeem the property within a time fixed, are annexed to, and made part of, a petition in which it is alleged that the transaction was intended merely to secure a loan, and it is not alleged that the money necessary to redeem the property was paid or tendered within the time allowed, or that the property was worth less at the date of the transaction than the amount received by the vendor, or that the vendor remained in possession, an exception of no cause of action is properly sustained to a demand that the vendor be decreed the owner of the property and restored to possession on payment of the amount received by him with interest.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss the Appeal on the Ground op Acquiescence in the Judgment op the Lower Court.</p> <p>Plaintiff and appellant reserved his right to prosecute his appeal in his receipt handed by him to the defendant for an amount received after judgment In part payment of his claim, in terms sufficiently plain.</p> <p>The court overruled the motion to dismiss.</p> <p>On the Merits.</p> <p>1. The acceptance of the lessee was not substantially different from the offer of the lessor.</p> <p>2. The parties disagreed about the amount of the rent, and when in the end the tenant agreed to pay the amount as he understood to have been asked by plaintiff, there was no question raised regarding the amount of the respective instalments, the total of which instalments is the same whether as claimed by plaintiff or as accepted by defendant.</p> <p>3. The evidence is conflicting, defendant swearing affirmatively and plaintiff stoutly denying. Between positive testimony regarding what was said or done at a particular time and negative testimony, the latter is generally con- . sidered of less weight, when it becomes merely a question of correctness ot things remembered to have occurred or been said, the tacts and circumstances of the case not being such as to prevent the unjust operation of the rule. Cuesnard vs. Executor, 33 Ann. 800 ; Law of Evidence, Jones, Vol. 3, p. 901.</p> <p>4. Where an issue was not raised in the District Court on appeal a correction of the judgment will not be made.</p> <p>5. The controversy is brought to an end by deciding in effect that plaintiff is the lessor of the defendant an'd that the latter owes rent as set forth in the decision.</p>

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

<p>Syllabus.</p> <p>The question of the legality and constitutionality of a municipal ordinance, in the nature of a police regulation cnforcible by fine and imprisonment, should be left to the court in, and to the occasion upon, which the attempt is made to enforce it, the remedy by appeal to this court being, in such case, open to the party as against whom the attempt is made. An injunction to restrain * the enforcement of such an ordinance will not lie.</p>

<p>APPEAL from the fifteenth judicial district, parish of Calcasieu. —.Miller, J. ...</p>

<p>APPEAL from the Third Judicial District, Parish' of Bienville— Bichardson, J. ad hoc.</p> <p>The opinion of the court was delivered by Nicholls, O. J.</p> <p>On reheairing by Breaux, J.</p>

<p>APPEAL from the Fourth Judicial Dislrict, Parish of Union — ■ Pearce, Special Judge.</p> <p>On application for a rehearing by Breaux, J</p>

<p>Syllabus.</p> <p>The main contentions of the widow, who opposes the final. account of the administrator, that a certain balance of indebtedness is due her and that certain property and credits are placed on the account as pertaining to the separate estate of the husband when the same is community in character, having been negatived by the evidence and denied by the court, the case will not be remanded because of inconsequential errors of debit and credit in the account when it appears certain that it would avail her "nothing to so remand and would only result in a useless accumulation of coats.</p>

<p>Syllabus.</p> <p>The provision of Article 285 of the Constitution, conferring upon this court jurisdiction of suits brought against the Railroad Commission to test the validity of whatever rule, regulation, etc., it may have adopted, cannot be made to apply to suits brought by the Railroad Commission to recover the amount of fines imposed by itself for violations of its ordinances. A suit of the latter hind is an ordinary suit falling within the general rule as to jurisdiction.</p>

<p>Syllabus.</p> <p>There is no error in a refusal to charge that “Where a man finds his wife committing adultery with a man, and, provoked by the wfiong, instantly kills the adulterer, the homicide is only manslaughter.” But, if it were otherwise, the accused, in this case, having been convicted only of manslaughter, could have sustained no injury</p>

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

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

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

<p>Syllabus.</p> <p>A street car, propelled by electricity and moving at a moderate speed, is run into at a corner by a covered beer wagon, the driver of which, occupying a seat from which his view upon either side is obstructed by the cover of the wagon, drives his mules at a brisk pace along the street which intersects the car tracks, and practically into the car, before looking up or down the track: held, upon the facts proven, the driver was at fault and the motorman is entitled to recover from the driver’s employer for personal injuries resulting from the collision.</p>

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

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

<p>Syllabus.</p> <p>1. Where three defendants are sued for damages for false imprisonment and malicious prosecution, and the suit is dismissed as to two of them, who are police officers, on exception of no cause of action, it is the case against them as presented by the petition which must be considered in determining the correctness vel non of the judgment of dismissal — not the case as developed by the evidence on the trial of the merits as to the other defendant.</p> <p>2. If, from the petition . it appears that the officers of the law acted on probable cause in arresting the plaintiff, then no cause of action as to them is disclosed, and the judgment of dismissal must be sustained, notwithstanding on the trial of the merits, as to the other defendant, it develops such defendant did not instigate the arrest and the officers acted without probable cause.</p> <p>3. Those who honestly seek the enforcement of law and the administration of justice, and who are supported by circumstances sufficiently strong to warrant a cautious man in the belief that the party suspected may be guilty of the offense charged, should not be .made unduly apprehensive that they will be held answerable in damages.</p>

<p>Syllabus.</p> <p>Where a trial .judge refuses to order that a commission issue to take the testimony of a witness for the purposes of the trial of a matter pending before him, on the ground that the interrogatories propounded show that such testimony would be irrelevant and impertinent, the remedy is by appeal from the final judgment thereafter to be rendered and not by mandamus directing the issuance of the commission.</p>

<p>Syllabus.</p> <p>City taxes are imprescriptible, but tbe privileges securing them are prescribed by three years. 1.</p> <p>2. When the privileges are prescribed, taxes become mere personal claims against the tax debtor and are of no effect against mortgage creditors.</p> <p>3. The character of tax debtor results from the operation of law and not from the convention of individuals, and the party assessed is, in law, the tax debtor.</p> <p>4. The assumption in an act of sale of a city tax is not a stipulation pour autrui for the benefit of the city, but is a matter purely personal to the contracting parties and forming part of the consideration of their contract,</p> <p>5. A claim asserted by the city, not by virtue of any inherent or statutory governmental power, but as one arising under the Code from the stipulation of a private contract, will be tested by the same law as would govern between Individuals.</p> <p>6. As the assumption neither impaired the city’s right to enforce its tax in tlfe manner and within the time provided by law, nor induced her to shift her position, there is no foundation for a plea of equitable estoppel</p>

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

<p>APPEAL from the Twenty-first Judicial District, Parish of Pointe Coupee — Claiborne, J.</p>

<p>Syllabus.</p> <p>Where it appears that a title set up to property by one who claims- possession under it is contested by the possessor of the property, who, fearing eviction, sues to annul the title and enjoins against eviction, the possession of the property is not alone at issue, and the value of the property being in excess of $2000 this court, and not the Court of Appeal, has jurisdiction to entertain an appeal involving the controversy.</p>

<p>Syllabus.</p> <p>Where “A” is the owner of real estate, by undisputed title, and sells the" same to “B,” who fails to record his title, the judgment creditors of “A” can acquire judicial mortgages on such property by recording their judgments after the date of such sale and before its registry.</p> <p>And, in such case, the judicial mortgages recorded against “A,” prior to the registry of the sale, prime all such mortgages recorded against “B,” whether the latter be recorded before or after the former.</p>

<p>Syllabus.</p> <p>On Motion to Dismiss Appeal.</p> <p>Where, in an action for the recovery of real estate, the defendant, by his answer, denies the asserted right of the plaintiff, and, in the course of the trial, exhibits a title in himself, and at the same time disclaims title in the land, but insists upon his ownership of the buildings situated thereon, and there is judgment rejecting plaintiff’s demand and recognizing defendant as the owner of the buildings, the value of the land is not thereby eliminated for the purposes of appeal, and a motion to dismiss, predicated upon that theory, will not prevail.</p> <p>On the Meeits.</p> <p>It is inadmissible that a political corporation exercising governmental functions should be dispossessed, by means of a tax suit against an individual, of a public work, not upon private property, constructed at the common expense, for the protection of the lives and property of its citizens. And it is a matter of no importance for the purposes of such a question whether, as between such corporation and other governmental authority, such work has, or has not, been properly located.</p>

<p>Syllabus.</p> <p>Query — where the principal and surety on a conventional bond are joined as defendants in a case in which judgment is asked against the principal in a sum exceeding $2000 and against the principal and surety in solido for a sum less than $2000 (the surety’s obligation under the terms of the bona being less than $2000) and in which case a judgment is rendered against the ■ principal and surety, in solido, for $390, to which appellate court — Supreme or Court of Appeal — must the appeal taken by the surety be carried?</p> <p>Held — To the Court of Appeal.</p>

<p>Syllabus.</p> <p>Defendant had written to a real estate agent informing him of his willingness to sell a tract of land at a stated price.</p> <p>Two years afterward, without communicating with defendant, and when it was apprehended by this agent, who informed plaintiff that there was reason to infer that he, defendant, would not accept the price offered, the agent undertook to sell the property and bind the defendant although he had not been specially authorized to sell the property.</p> <p>When defendant received the letter informing him of the action of the real estate agent, he did not approve or decline. Shortly afterward it became known from defendant that he was not willing to sell at the price offered.</p> <p>Plaintiff had not deposited the whole amount of the price. He withdrew the amount deposited, which was less than the price, and plaintiff afterward sought to buy other lands. Having failed in the second attempt at buying lands, he sought to hold the defendant in damages. This claim for damages is too speculative and uncertain to serve as a valid basis for a judgment. Plaintiff acquired no 'title to the land he claims to have bought from defendant.</p> <p>The fee of the curator, appointed to represent defendant in the attachment proceedings as fixed by the district judge, is not too large, and under a special statute the curator’s fee may be increased to an amount corresponding with the value of the services.</p>

<p>APPEAL from the sixteenth judicial district, parish of St. Landry— Lewis, J.</p>

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

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

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

<p>APPEAL from the Eighteenth Judicial District, Parish of Acadia— DeBaillon, J.</p> <p>'Eemoved by writ of error to the Supreme Court of the United States.</p>

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

<p>Syllabus.</p> <p>Where a boy of thirteen walks from one side of a street, on which there are double car tracks, towards the other side, at night, and, without stopping, collides with a car, blazing with light, loaded with passengers, and moving at the rate of six miles per hour, which there was nothing to prevent his seeing and hearing, there can be no recovery for injury resulting from such collision.</p>

<p>Syllabus.</p> <p>1.' The charge of the court in a criminal case must be assumed in the absence of proper recitals, to have been given under circumstances warranting it.</p> <p>2. Bills of exception should be submitted to the District Attorney for inspection prior to being iianded to the court for signature.</p>

<p>IN EE. Citizens Bank Applying for Certiorari, or Writ of Eeview, to the Court of Appeal, Third Circuit, State of Louisiana,</p>

<p>Syllabus.</p> <p>1. where immovable property in this State purports to have been sold by a husband to his wife for a certain sum of money, the title is invalid on its face, the apparent cons ¡deration’not being within the exceptions provided by C. C. 2446 as essential to the validity of a sale in such case, and the property is liable to seizure by the creditors of the husband.</p> <p>2. where property so situated is seized upon a claim against the husband, and the wife intervenes, setting up title, and the seizing creditor propounds to her interrogatories on facts and articles, her answers thereto are entitled to no greater effect, as against such creditor, than her testimony, or that of any other witness, given orally.</p> <p>3. Where the seizing creditor, in propounding such interrogatories, takes the initiative and attempts to show that the consideration of the putative sale was other than as stated, either in the intervenor’s title or in her intervention, and, thereafter, fails, in this court, to ask for any ruling upon his objection, made during the trial, to the introduction of parol evidence to show the real consideration of such sale, it will be presumed that the objection is abandoned.</p> <p>♦ , wnere the answers to such interrogatories show that property in another State had been conveyed by the husband to the wife for a particular consideration, arising under the laws of that State, this court will not assume, even though it should be made to appear that such consideration was inadequate, that a different consideration, testified to as moving in the matter of the conveyance of the Louisiana property, was, therefore, included and exhausted for the purposes of the conveyance in such other State.</p> <p>5. The validity of the conveyance of immovable property in Louisiana, and the capacity of a husband and wife to deal with each other with respect thereto is to be determined by the law of Louisiana.</p> <p>6. A sale of such property, between husband and wife, can be made only in the cases, and for the consideration, as provided in C. C. 2446, and if, apparently, made for some other consideration, is invalid on its face, and if a .acked, by a party showing sufficient interest, the burden of proof, if p-oof be admitted, rests upon the party seeking to maintain the validity of such sale to show that the real consideration was within the exceptions provided in said article.</p> <p>7. If, in such case, the claim be that the consideration was an indebtedness of the husband to the wife, for money said to have belonged to the wife and to have been received and used by the husband, it must be shown, where the parties are domiciled in another State, that, by reason of such receipt and use, the husband became the debtor of the wife, that the debt existed at the time of the conveyance, and that the property was conveyed in satisfaction, or in part satisfaction, of such debt.</p> <p>8. whether, in such case, the husband becomes the debtor of his wife depends upon the law of their domicile.</p> <p>d. The courts of Louisiana will take judicial cognizance of the prevalence of the Common Law in a sister State and of the rule of the Common Law, that a married woman cannot possess personal property independently of her husband, except where a trust has been created fbr her separate benefit. But statutory modifications of the Common Law, or the creation of such t”ust, must be proved, if either be relied on.</p>

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

<p>Syllabus.</p> <p>1. Where an association is carrying on business claiming corporate capacity and corporate protection, tlie State has tile right, by judicial action, to test its claims, both as to its organization and as to the business it is conduct il g, being such as falls within the permissive terms of statutes author-ii ,ng the creation of corporations.</p> <p>2. I) has the right to hold matters in abeyance by injunction, for the protec • t on of all parties in interest, until the termination of such a suit. Its duty e..ds when it lias caused to be set aside the association’s claim to corporate capacity and protection. It is not charged with the duty of protecting r ghts of parties placed in position to protect themselves.</p> <p>3. Tae mere fact that the affairs of such an association have been prematurely or irregularly settled by those having actual control of its assets, furnishes 1,0 ground for the appointment of a receiver at the instance of the State itself, when all debts have been paid and all parties in interest are satisfied and the business in the State has ende'd. The State is no longer concerned in the matter.</p>

<p>Syllabus.</p> <p>This case involves only questions of fact.</p>

<p>Syllabus.</p> <p>¡Vhere, in a suit for the cancellation of an assessment, the sole question at issue relates to the validity of the assessment, no question of the constitutionality or legality of the tax being involved, and tile amount of tax is le i han $2000 this court is without jurisdiction and the appeal will be d missed.</p>

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

Paul, J. The opinion of the court on the motion to dismiss was delivered by Breaux, J. The opinion on the second motion to dismiss was delivered by Breaux, J. On application for rehearing by Provosty, J. On rehearing by Nicholls, C. J.

<p>Syllabus.</p> <p>1. under article 210 of the constitution of 1879, and act 85 of 1888, it was not obligatory upon the tax collector to recite in his tax deed the fact that, before offering the property as a whole, he had offered the least quantity that any bidder would buy for the taxes, interest and costs due thereon, and, if it be a fact that such previous offering was made, the tax purchaser should be permitted to prove it by evidence aliunde unless to do so would be to contradict the positive recitals of the deed.</p> <p>2. where the tax deed, in such case, is susceptible of interpretation, the presumption established by the constitution in favor of its prima facie validity extends to the meaning of the language used, and It will be presumed, prima facie, that, of two possible meanings, that meaning was intended agreeably to which the deed may be valid rather than that which must render it void.</p> <p>8. where two or more vacant lots, of the same size and value, in a city or town, are assessed together, for a lump sum, the constitutional requirement, as to offering the “ least quantity,” may be complied with, either by offering one of the lots or by asking bidders to compete by stating ancl designating the least quantity that they may be willing to buy for the taxes, interest and costs due on the whole.</p> <p>4. The failure of the collector to offer the least quantity before selling the whole property affects the title with a vice for which it may be annulled in an action brought within the legal delay, but which is not so radical as to protect the owner against the prescription denounced by section 66 of act 85 of 1888, or section 5 of act 105 of 1874.</p>

<p>Syllabus.</p> <p>1. A man, called as a juryman, answered, on his voir dire, to counsel for defense, he thought the man who committed the homicidal deed ought to he punished and that as goon as he heard of the case he formed that opinion. Challenged for cause, he was questioned by the court and answered he had no prejudice against the accused; as a juror, would decide the case according to the evi dence as given by the witnesses and the law as expounded by the court; no outside impression or opinion would influence him in his verdict. Meld, competent as a juror.</p> <p>2. The mere expression by a citizen of a just indignation on hearing of the death by violence of another, does not disqualify him from jury service in the case.</p> <p>3. It is objectionable for the defense to ash of jurors, on their voir dire, questions like the following: — “In a criminal prosecution, as a juror sworn to try a case and when forming your verdict, to whom would you give the benefit of the doubt — the State or the accused?” “If accepted on this jury would you give the benefit of any doubt created in your mind by the evidence to the accused and acquit him?” “Would that doubt have to be a very great one, or a reasonable one?”</p> <p>4. It is for the trial Judge, at the end of the trial, to charge the jury relative to the law of “ reasonable doubt,” and it is not to be supposed in advance jurors will decline to heed the charge so to be given, or will refuse to be instructed by the court.</p> <p>5. But in order to test the animus of a juror towards the accused, it may be permissible for the defense, first explaining or having the Judge explain the meaning of “ reasonable doubt,” its application to the case, and his duty to acquit should it exist, to ask the juror whether he would give the accused the benefit of such doubt.</p> <p>6. Evidence of threats made by the deceased a short time prior to the killing is not admissible until foundation therefor is laid by proof of an overt act showing purpose to execute the threats.</p> <p>7. It is the province of the trial Judge to decide whether the evidence submitted pro and core of overt act makes sufficient proof thereof to lay the foundation for the admission of testimony as to antecedent threats.</p> <p>8. While his ruling in this regard is subject to 'review here, great reliance is placed upon his discretion and judgment in such matters — he having seen and heard the witnesses. /</p> <p>9. If evidence of a previous threat be not admissible because not accompanied then or afterwards by an overt, hostile act, it follows, logically, the statements constituting such threat cannot be admitted in evidence as part of the res gestae.</p> <p>10. If other witnesses than the accused could not legally testify to alleged antecedent threats because no foundation therefor had been laid' by proof of overt act, neither may the accused, himself, do so, when called to the stand as a witness in his own behalf.</p> <p>11. If the accused may not give such testimony under oath on the stand as a witness in his own behalf, neither is he permitted to do so when tendered by his counsel to make before the jury an unsworn statement in his capacity as the accused on trial.</p> <p>12. Jurors are not competent as witnesses to impeach their verdict. A court must draw its knowledge of the misconduct of jurors from some other source.</p>

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

<p>Syllabus.</p> <p>1. All property is liable to taxation unless shown to be within some exemption established by law. Hence, in a proceeding to annul an assessment, the exemption relied on must be affirmatively established.</p> <p>2. Property, liable to taxation, which is entered upon th.e assessment rolls as “exempt,” and which is not assessed, is “omitted” from the assessment as effectually as if it were not entered at all, and is, therefore, within the meaning of the law providing for the assessment of property which has been “omitted.”</p> <p>3. Taxes for the current year are not included in the term “back taxes,” as used in Section 12 of Act 170 of 1898, providing that “no back taxes for more than three years shall be assessed,” hence, taxes may be assessed for three years preceding that in which the assessment is made. Nor, does it affect the question that the supplemental tax roll is not recorded or the notices of assessment given until the following year.</p> <p>4. A i-.it, the purpose of which is to relieve property of the taxes assessed ag! mst it for one, or more, years, is a proceeding “for the reduction of assessments” within the meaning of the law providing that in such cases the attorney of the tax collector shall be compensated by receiving ten per ce«t. on the amount collected.</p>

<p>Syllabus.</p> <p>The minor’s marriage without the consent of her tutrix, .although in every respect legal, did not have the effect of emancipating her from the disabilities of minority. The mother’s kindness to her daughter and her son-in-law after the marriage, which has' no appearance of any Intention to condone the fact that her consent had not been sought or obtained, does not have the effect of supplying the want of consent of the mother and tutrix.</p> <p>Jurisprudence of this State, and of other States, of this country as well as for eign, has always attached importance to the consent which minors should obtain before their marriage.</p> <p>The court deals only with the question growing out of the failure of the minor to obtain the tutrix’s consent before marriage. Other issues are not brought before the court by the record so as to justify it to pass upon them.</p> <p>The min„r has not been emancipated and could not compel an accounting as asked by her.</p>

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

<p>Syllabus.</p> <p>1. where a bond for suspensive appeal is filed after the delay fixed by Act No. IBS of 1898 it is a matter of no interest to the party applying for the appeal whether the act is unconstitutional or not, since in such case, the delay fixed by Article 117 of the Constitution, .which article is self-operative, must have expired.</p> <p>2. where an execution is enjoined on a sworn allegation that timber worth a certain amount has been seized and an order is made dissolving such injunction on a bond for a like amount, the injury which may result from such dissolution sounds in dollars and cents is not irreparable, and no appeal lies.</p>

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

<p>1. The fact that the defendant, against whom a decree of separation from bed and board has been rendered, which is still subject to devolutive appeal, makes the objection that the judgment is Anal and that an action brought by the plaintiff for the partition of the community presents new matter and should be filed and docketed as a separate suit, does not amount to an acquiescence in the judgment of separation from bed and board and does not cut off the right of appeal therefrom.</p> <p>2. whilst it is true that a moneyed demand, coupled with a demand for separation from bed and board, may be incidental thereto, and may be carried with it for the purposes of jurisdiction, and whilst it is true that the appellate jurisdiction of this court extends to suits for separation from bed and board and for divorce “and to all matters arising therein,” it does not follow that such jurisdiction extends to a suit, brought after a judgment of separation from bed and board has become final, for the partition of community property valued at less than $2000, when it appears that there was no demand for such partition in the suit in which such judgment was rendered and that no question of partition was raised on the trial, or passed on in the said judgment. Non constat but that the parties might intend to pretermit the partition indefinitely and transmit it to their heirs.</p>

<p>Syllabus.</p> <p>1. In the absence of either express grant, or of express or implied limitation, of authority, a municipal corporation, as ordinarily constituted, possesses the incidental power, for cause, to remove corporate officers, whether elected by it or by the people. If an officer has no franchise in his office — that is to say, if the nature of his office is a mere employment, he may be removed without notice, subject to the liability of the corporation for damages for breach of contract, if, by such removal, a contract is violated. But, where there is a franchise in the office, resulting from an election, or appointment, for a term fixed by law, there must be a charge against the officer to be removed, stated with substantial certainty; notice must be given of the time and place fixed for the hearing; reasonable opportunity must be afforded to defend, in person or by. counsel; and, where the charge is insufficient, if proved, to justify the motion, or where, being sufficient, there is no evidence to sustain it, the officer is entitled to a mandamus to restore him.</p> <p>12. The rule as thus stated is subject to the exception, that notice may be dispensed with, (1) when the officer appears and answers, (2) when he has permanently left the municipality, (3) in certain cases where it is apparent thar the amotion was for good cause and that the order to restore would be without practical and useful effect.</p> <p>3. The power of amotion conferred upon the city of New Orleans by section 12 of its charter is neither greater nor less than the city would have had if that instrument had been silent upon the subject, the effect of the grant, as contained in the charter, being merely to set at rest any doubt which might.have existed if the matter had been left to implication.</p> <p>4. The authority conferred upon the council to “expel one of its members by a two-thirds vote of all the members elected to such council, five days’ notice and an opportunity of being heard in his defense having previously been given such member,” presupposes a charge sufficiently grave to justify expulsion, for the hearing of which time and place are fixed; for, if there be no such charge and no time and place fixed for the hearing there can be no defense and nothing of which to give notice.</p> <p>5. Whether the charge is sufficient, if proved, is for the ultimate determination of the courts; but, where the notice and the opportunity to defend have been given, and evidence has been adduced in support of the charge, the courts will not, ordinarily, go behind the judgment for the purpose of inquiring “ into the amount or the balance of evidence.”</p> <p>6. A statement, made in confidence by a member of the New Orleans city council to the mayor that he had heard rumors reflecting upon the official integrity of the other members of the council, is a privileged communication, and furnishes no ground for the expulsion of the member making it, even though the informants upon whom he relies fail to substantiate his statement.</p> <p>7. The courts are disinclined to hold the speaking of slanderous words a ground for amotion from a public office.</p> <p>8. Where it appears that a charge for which a member of the New Orleans city council was expelled was not formulated or made known to him with sub stantial certainty, and that he objected to being tried on that ground; that his demand to he allowed the assistance of an attorney was ignored, or denied, whilst able counsel conducted the prosecution; and that he was so expelled after a trial in which he was without witnesses, wholly unprepared, and wholly incompetent to cope with the professional ability arrayed against him, he will be restored to his office by mandamus, upon timely application.</p>

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

<p>APPEAL from the Nineteenth J udicial District, Parish of Iberia— Yoorhies, J.</p> <p>The Opinion of the Court, on Motion to Dismiss, was delivered by Watkins, J.</p> <p>On the Merits, by Blanchard, J.</p> <p>On Eehearing, by Provosty, J.</p>

<p>Syllabus.</p> <p>1. Drainage districts established under laws existing at the time of the passage of Act 12 of 1900 cannot take advantage of the act without first reorganizing under its provisions.</p> <p>2. Drainage districts established under laws in existence at the time of the adoption of Article 281 of the Constitution may take advantage of the provisions of this article without reorganizing under Act 12 of 1900.</p> <p>3. Drainage districts organized under Act 37 of 1894 may levy the tax and issue the bonds authorized by Article 281 of the Constitution without having recourse to the provision of Act 12 of 1900, passed for the purpose oT carrying said Article 281 into operation; that is to say, such districts may levy said tax and issue said bonds under the combined provisions of said Act 37 and said Article 281, and irrespective of the said enabling act.</p> <p>4. The limits of a taxing district must be fixed with certainty; especially where 'such district is authorized to impose a property tax, and still more especially where such tax must be voted for. Uncertainty in respect to the limits of such a district invalidates its organization, and as a consequence all taxes 5t may propose to levy and all bonds it may propose to issue. Any taxpayer of the district may urge such invalidity in resistance of the tax or in prevention of the issuance of the bonds.</p> <p>O. Drainage districts organized under Act 37 of 190'0 cannot cut or open new drains without consulting the taxpayers of the district.</p> <p>On Rehdaiuns.</p> <p>The police jury has the power to divide the parish into drainage districts.</p> <p>Boundaries g'ven by this body in its ordinance are set out with certainty enough to enable a surveyor properly to trace the lines.</p> <p>The southern boundary was not specially contested; it is sustained as sufficient as set out in the ordinance of the police jury and afterward by a map deposited at the courthouse, of which it is conceded the voters of the district had notice. The notice of election referred to this map and the ballots also.</p> <p>The canal which was to form part of the southern line was a canal proposed at the time that the ordinance was adopted and its course was well known, and it, as well as the limits of the arable land are indicia enough of the bounda rles, to prevent uncertainty as to the limits of the drainage district.</p>

<p>IN RE. Mary E. Plughes and husband applying for certiorari, or writ of Review, to the Court of Appeal, Second Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. The General Assembly has the constitutional right to fix a period beyond which actions attacking the legality and regularity of special elections held ' under the provisions of Articles 281 and 232 of the Constitution shall be barred.</p> <p>2. Section 17 of Act No. 5 of 1899 has not been repealed by either Act No. 12 or Act No. 114 of 1900.</p> <p>3. It is not necessary at a special election held under Articles Nos, 281 and 232 of the Constitution seeking to obtain from the property taxpayers of a town, authority in municipal authorities to incur a debt for designated purposes, and to secure payment of the same by the levy of a special tax, that the debt to be incurred for each particular purpose should be specially set out. Application of the tax funds in detail inside of the purposes for which they were authorized, is left ta be controlled by the discretion .of the authorities.</p> <p>4. Should the municipal authorities attempt to apply the special tax to the payment of debts created anterior to the authorization granted them, or for debts incurred for purposes not authorized by the Constitution, the same may be prevented by the remedy of injunction.</p> <p>5. Under authority granted by the taxpayers of a town, to incur debt, to the municipal authorities thereof, and to issue bonds to represent same, and to secure the debt and bonds by a special tax, the authorities may, without issuing bonds at all, create a debt for the purposes stated, and levy a special tax within the constitutional limit, if it be more advantageous and advisable to do so. The bond issue is authorized merely in aid of raising the money needed for the purposes stated.</p> <p>6. When the property taxpayers of a town at a special election have authorized the town authorities to incur a debt of ten thousand dollars, and interest, and authorized the levying of a special tax of five mills for ten years on the valuation and assessment fixed by the Constitution, the authorization is null and void in so far as the debt and interest authorized to be incurred exceeds the special tax which is authorized to be levied to pay the debt and interest. Each year’s instalment of debt and interest must correspond with that year’s special tax. The authorization granted is not void in its entirety, but debts and interest incurred under it must be scaled or pruned down.</p>

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

<p>Syllabus.</p> <p>1. Where all the essential elements and conditions for an absolute sale are pres ent, In a contract between parties, the effects flowing legally from that particular contract follow, whether the parties foresaw and intended them or not, and though they may refer to the contract as an agreement to sell or as a conditional sale.</p> <p>2. Where machinery has been sold to a planter which he has immobilized l>y attaching it to his plantation and the property to which the same was attached was permitted to be seized and sold without opposition of any kind In enforcement of a pre-existing mortgage, the seller cannot, after the sale as against the purchaser, recover the machinery under a claim of ownership.</p>

<p>Syllabus.</p> <p>Act 192 of 1898, in establishing the State Board of Health, and requiring it to see to the inspection of coa! oil, Throughout the state, by reasonable implication comers upon said board authority to provide the means of defraying the expense of such inspection in the usual manner, to-wit: by the exaction of an inspection fee from the dealer in the oil, and such fee is not a tax, but a charge for services rendered.</p>

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

<p>Syllabus.</p> <p>1. The administratrix had authority to employ an attorney to defend a suit brought against the succession she represented The amount of the fee is fixed and the privilege for its collection is recognized.</p> <p>2. All the parties admitted that the fee of the notary contested was due in such a manner as to lead to the unavoidable conclusion that it was admitted as carried on the account of the administratfix.</p> <p>3. “Provisions” to be secured by a privilege must consist of supplies made to the debtor or his family by retail dealers of provisions during the last six months.</p> <p>4. A receipt showing payment in full of a judgment against a succession and subrogating the one by whom it was paid creates a prima facie presumption of a right which was not rebutted.</p> <p>5. A claim for the reimbursement of amounts which were entirely in the nature of a personal obligation of the debtor is only subject to the prescription of ten years.</p> <p>6. Pacts and corroborating circumstances with the testimony of one witness sustain the claim of one of the creditors of the succession.</p> <p>7. An account, after the legal delays, may be homologated so far as not opposed, and the amounts claimed limited to the oppositions filed. Cross on Succes sions, p. 480.</p> <p>8. The administratrix having acknowledged the claim of a creditor carried on her account, to the correctness of which she swore, and other corroborating cir cumstances and the evidence of one witness, were sufficient to sustain a claim for more than $500.00.</p> <p>9. An annuity was originally rightly credited and the judgment is amended only to the extent necessary to reinstate the claim, as that is all that is claimed under the pleadings.</p> <p>10. Books of amounts received may be taken as proof against him who has written them.</p> <p>11. The administratrix, in settling with one of the creditors, under the circumstances of this case, may invoke compensation against his claim, in case it appears that he owes the succession.</p>

<p>Syllabus.</p> <p>J. 'The master is not bound, absolutely, to his servants for the competency of their fellow servants, engaged in the same common employment, and is guilty of a fault, and becomes liable to the servant injured, only when the fellow servant, through whose incompetency, or negligence, the injury is inflicted, has been employed, or retained, with knowledge of his unfitness, or when the master has failed to exercise reasonable diligence and care to inform himself, and keep himself informed, as to his qualifications. Hence, a mere allegation of injury, caused by the incompetency, or negligence, of a fellow servant, imputes no fault to the master, and discloses no cause of action against him, ahd an exception to that effect should be decided before trial, if a decision is requested, and not referred to the merits. Hence, also, it is error to charge the jury that the “general allegation that the damage was caused by the employe is sufficient notice to the defendant that he knew of the incompetency of the employe.”</p> <p>ü. Where, however, in such a case, the exception of “no cause of action” is referred to the merits, by the court, and, upon the trial on the merits, the defendant, without objection, permits evidence to be Introduced tending to establish facts which, if alleged, would have disclosed a cause of action, he allows the ground upon which his exception is based to be taken from under it and, thereby, in' effect, allows the petition to be amended and its defects cured.</p> <p>8. Whilst the doctrine of the non-liability of the master for injury sustained by a servant in his employ, through the incompetency or négligence of another servant employed by him, has not been recognized in this State as including certain classes of oases to which it has been applied by the English, and by, some, American, courts, the ordinary case of a brakeman injured through the incompetency or negligence of an engineer, when both are engaged in handling the same train, in the service of the same employer, is one to which, under our jurisprudence, as well as the jurisprudence elsewhere, that doctrine is properly applicable.</p> <p>4. Both reason and authority sustain the proposition that where the work for which the servant is employed Is such as to involve risk to the lives and persons of others the master is required, upon engaging such servant, to make reasonable investigation into his character, skill and habits of life. And, where a company, operating a railway, employs a person as engineer and assigns him to the duty of running a locomotive, without requiring him to produce credentials of any kind, without inquiry, except such as is made of the person, himself, as to his competency for the discharge of that' duty, and with no knowledge of him, save that derived from his having worked for it as a steam, and water, fitter, and machinist, such company Is guilty of negligence, and is liable for injury resulting to a fellow-servant from the incompetency or'negligence of such engineer.</p> <p>5. The general rule, no doubt, is, that, where a servant Is aware of the ineompetency of a fellow-servant and, nevertheless, accepts employment and works with him, without objection or notice to the common master, he thereby accepts the risk, so far as the master is concerned, of such incoinpeteney. In the instant case, however, whilst it appears that the plaintiff, a brakeman, by reason of a limited experience in switching cars, upon tne day of the accident, concluded that the engineer, who had been assigned to duty for the first time, did not know how to handle the engine, it also appears that, when the train was taken out, shortly after such switching, the superintendent of the road went on the engine, and the engineer, thereafter, acted under his orders, or in his immediate presence, or both. It is, therefore, held that, notwithstanding the opinion, or limited knowledge, of the brakeman, he had the right to assume that the company, itself, thus present, through its superintendent, would see that the duties of the engineer were properly discharged.</p> <p>6. Where a train is made up of skeleton (log) cars, the footing upon which is precarious, it is negligence for the engineer to reverse his engine without warning, since he thereby subjects the brakemen, taken unawares, to the danger of being thrown off.</p> <p>7. The plaintiff in this case lost a leg. He has been awarded, by the verdict and judgment appealed from, the sum of $10,000. This amount is reduced to $6000.</p>

<p>IN EE Jos. P. Martinez applying for Certiorari, or writ of review, to the Court oí Appeal, Parish of Orleans, State of Louisiana.</p>

<p>^ PPEAL from the civil district court, parish of Orleans — Ellis, J.</p>

<p>Syllabus.</p> <p>1. The timber was taken from one of two tracts of land. On the land oí plaintiff this timber was large, and corresponded in every particular with the timber it claims as having been taken from its land; on the other, from which the defendants claim the trees were removed, there was very little timber and it was small in size. The defendant admitted that he had taken timber from the plaintiff’s land, but failed to settle for as much as he had taken.</p> <p>2. The weight of the evidence is with plaintiff, and- for that reason defendants are held to pay an amount equal to the value of the trees at the time they were sold.</p> <p>3. Fifteen hundred logs were sequestered. Six hundred and forty-two logs had already been paid for, and the defendants owe for the remainder, viz, calculating three logs for each tree, which appears to be generally the number of logs usual to the tree.</p>

<p>^ PPEAL from the civil district court, parish of Orleans — Ellis, J.</p>

<p>APPEAL„from the First Recorder’s Court 'for the City bf New Orleans — Hughes, J. . '</p>

<p>Syllabus.</p> <p>1. The ease did not, as made to appear on the merits, come within the supervisory jurisdiction o£ this court to the extent of rendering it necessary to set aside the sentence and judgment. The affidavit or information under which defendant was prosecuted informed him of the nature of the accusation to enable him to properly defend himself against the charge brought.</p> <p>2. The statute was substantially complied with, also the ordinance of the corpo. ration the defendant was charged with having violated.</p> <p>3. The defendant was not taken by surprise and the judgment will be res judicata.</p>

<p>Syllabus.</p> <p>A suit brought by the seized debtor, or his assignee, against the purchaser at a judicial sale io annul the sale, is not a petitory action, though plaintiff prays, as a consequence of a judgment in his favor, that he be decreed to be the owner of the property and placed in possession. There is no necessity for the petition in such a suit to specifically describe the property purchased, when allegations as to the suit and. the sale fix, unmistakably, its identity. There is no necessity for such an assignment tc be by authentic act, nor as against the purchaser at the sale to have been recorded. In a suit brought upon an assignment of a right of action evidenced by a writing in which the assignment is declared to have been made for “value received,” defendant cannot urge, upon an exception of no cause of action, that the instrument should have specifically set forth what the actual consideration was, and set forth all the details of the transaction. It is prima facie valid. Defendant is without legal interest to inquire into the precise character of the transfer, unles he can allege and show Injury. All he can exact Is full defense and protection. ”</p>

<p>PPLICATION for writs of Mandamus, Certiorari and Prohibition.</p> <p>The opinion of the court was delivered hy Provosty, J.</p> <p>Mr. Justice Breaux and Mr. Justice Blanchard dissent, each handing down a separate opinion.</p>

<p>P PPLICATION for Writs of Mandamus and Habeas Corpus.</p>

<p>Syllabus.</p> <p>When by remittitur entered before Judgment in the lower court the amount in dispute is reduced to below the jurisdiction of the appellate court, the latter court has not jurisdiction.</p>

<p>Syllabus.</p> <p>1. The difference between plaintiff and defendant grows out of the measurement of defendant’s “ road-bed ” in order to fix proportion of cost of paving due by defendant to plaintiff.</p> <p>2. The statute looks only to the “ road-bed ” in fixing the amount. Plaintiff’s contention is that this “ road-bed ” is seven feet wide, the defendant’s that It is less. When ties are used, the rail rests on the inside and outside of the track the length of the ties. When girders or sleepers are used, the width of the “ road-bed ” is less. The “ road-bed ” consists of the foundation on which the superstructure rests. The rails are the superstructure and rest on the girders.</p> <p>3. The proportion of the space being limited to the “ road-bed,” the court holds that it is without authority to take the outside of the track into account on the ground that the road is benefited by the adjacent pavement. “ Road-bed ” owes the proportion of cost of paving. This does-not include part of the adjacent roadway on which rails do not rest.</p>

<p>Syllabus.</p> <p>1. • While the character of defendant had not been put at issue, yet he had been a witness in his own behalf. Comments of the prosecuting officer are not cause to set aside the verdict even though they may not have been directly suggested by the testimony. The closing remarks were immaterial, or at least were not prejudicial.</p> <p>2. The oversight of the district attorney in not signing the bill of Indictment was not fatal to the indictment.</p> <p>3. It is settled that an averment that the verdict is contrary to law and evidence brings up no ground for review.</p> <p>4. The statement of the trial judge embodied in the bill of exceptions that there was a case pending in which the defendant attempted to bribe a witness Is accepted as correct in the absence of testimony on the subject.</p>

<p>Syllabus.</p> <p>A dying declaration must go in as a whole, and is not rendered inadmissible because some of its statements of themselves and if standing alone would be inadmissible.</p>

<p>Syllabus.</p> <p>1. Act 44 of 1890, when reasonably interpreted, is not obnoxious to the objection that it denounces as a crime an act which might be consistent with innocence.</p> <p>2. It is a rule of universal application that when a statute creates an offense and sets out the facts which constitute it the offense may be sufficiently charged in the language of the stattite.</p> <p>3. In order to justify the courts in holding a statute to be void, it must be alleged and proved that it is unconstitutional.</p>

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

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