Volume 108 — Louisiana Reports

<p>Syllabus.</p> <p>Where, in an expropriation proceeding, it is manifest that the amount allowed is either insufficient or excessive, it will be increased or reduced as the case may be. But, as the questions of value and of damage are required by law to be submitted to a jury composed of citizens having peculiar knowledge of the subject, the conclusion reached by them ought not to be disturbed save in a perfectly plain case.</p>

Plaintiff alleged that on or about the 15th of May, 1900, he entered into a contract with the defendant company, by which the latter contracted to furnish plaintiff a sufficient amount of water ' through its canal and pumping plant, which, taken together with the natural rainfall, would properly flood and irrigate certain described land for the season of 1900.

<p>Syllabus.</p> <p>1. To constitute a valid adjudication of property at tax sale, there must have been an assessment sufficiently accurate, as to description, to identify it.</p> <p>2. The prescription of three years given by the Act of 1874 must have for its basis the actual possession of the tax purchaser.</p> <p>3. The vice in a tax sale arising from an assessment of property by a description which does not identify, is more than informality, and the prescription of five years is inapplicable.</p>

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

<p>APPEAL from the Seventh Justice of the Peace, Parish of Acadia —Bobira, J.</p>

<p>Syllabus.</p> <p>Where, in a suit for divorce, it appears that the evidence offered on behalf of the plaintiff, when considered in connection with that offered by the defendant, is insufficient to entitle the plaintiff to the relief prayed for, and would still be insufficient even though certain evidence, offered on the trial to impeach one of the witnesses who testified for the defendant, had not been excluded, it would serve no useful purpose to remand the case, and the judgment rejecting the plaintiff’s demands will be affirmed.</p>

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

<p>APPEAL from the Civil District Court, Parish of Orleans — * Mils, J.</p> <p>The plaintiff’s action is for damages for the loss of his hand while engaged in certain work upon the tug Corsair, of which the defendant Brown was the owner, and the defendant McNeely was the captain. The injury, it is alleged, was the result exclusively of the negligence of McNeely and his employer and the defective 'appliances upon the boat, and he, plaintiff, was nowise in fault. He himself was an employee of the Johnson Iron Works and was sent by his employers to do the work upon the boat which would be indicated to him by McNeely.</p> <p>His averments are that while acting “under the orders and direction of McNeely, he was directed to fit-a new bushing on the pintle of the rudder. That he calipered the pintle and bushing and found that a lump would have to be filed off the pintle before the bushing should be shrunk on to it. That the captain insisted that irt should he shrunk on without moving the lump; that after repeated efforts it was found it could not be done in that way; that thereupon the captain ordered him to try to force the bushing on by putting the weight of the rudder upon it. That in order to accomplish this it was necessary to remove the lower friction plate situated near the head of the rudder, whereupon McNeely ordered two negroes in his employ to jack the rudder up in order to prevent the same from falling while he (plaintiff) was at work; that he (McNeely) refused to allow blocks to be placed as an extra guard, or to remove the lower friction plate, and ordered him, plaintiff, to remove the friction balls from said friction plate. That by the raising of the rudder the upper friction plate was raised some inches above the deck, and to remove the balls he was required to place his hand in the rudder hold of the deck. That while he was thus engaged, and acting under the orders of the captain and removing the balls, and after he had removed eight of the same from the friction plate in which they were then resting, the jack holding the runder slipped or gave way, thereby causing the rudder to fall, bringing the upper friction plate in contact with his wrist and severing his hand. That McNeely, in declining to permit the blocking of the rudder, and the removal of the friction plate, and in compelling him to remove the balls while the rudder was insecurely jacked, was negligent, and he was relying upon the rudder’s being safely and securely jacked, and was acting under the guarantee and assurance of the captain that the jack screw would not fall. That all of the persons assisting in the work were the employees of the boat and he (plaintiff) was acting under the control and direction of the captain in connection with the work then in progress. That he had no control over the jacking of the rudder and relied upon this being safely done on the guarantee and assurance of McNeely that the jack would safely hold the rudder and that the boat was steady, and that the rudder would not fall.</p> <p>Brown, the owner of the boat, being a non-resident, could not be reached by personal citation and the case went to trial as against McNeely, resulting in a judgment in favor of the latter, from which the plaintiff appealed.</p>

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

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

<p>IN RE Ruddock Cypress Company, Limited, applying for Certiorari, or Writ of Review, to the Cour-t of Appeal, Parish of Orleans, State of Louisiana.</p>

The plaintiff alleged in his petition that he was the owner of two promissory notes dated January 10, 1887, payable respectively four and five years thereafter, each for the sum of five thousand dollars, with interest at eight per cent, per annum from date, made jointly, severally and in solido by Joseph Buhler (since deceased), Frederick G. Ernst and Felix Ernst, Jr., to their own order, and by them endorsed, on which notes the interest was paid by the makers up to the 10th…

<p>Syllabus.</p> <p>The demand of the wife for alimony finds no support in law or fact.</p> <p>After two years had elapsed and no reconciliation had taken place the defendant, husband, recovered a judgment for divorce, based upon the judgment of separation from bed and board obtained by the wife. Statute 25 of 1898. Beld— that the judgment is valid and legal.</p>

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

<p>Syllabus.</p> <p>Question at issue — amount of physician’s bill. Reduced from $803.00 to $300.00 by the trial judge, and his ruling is sustained. Judgment affirmed.</p>

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

Judicial District, Parish of Tangipahoa — Reid, J. Plaintiff, in his petition, alleged that the defendant company was indebted to him in the sum of one thousand dollars for this:— That in March, 1900, he made a contract with one H. E. Carroll and William Hart, stockholders and officers of said corporation, whereby the said corporation should cut, float out, and carry to the mills of said company .at Strader, La., all of the available timber on certain described land in the…

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

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

<p>IN RE Frank W. Braun, Intervenor, Applying for Certiorari, or Writ of Review, to the Court of Appeal, Parish of Orleans, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. A receiver, or legal representative of a succession, instead of placing on lila account a certain sum as reserved for future costs, should ask for an ordei that all costs incurred, as well as the costs of the then proceeding, and thoSe to be Incurred thereafter, up to the date of final settlement, be taxed and paid by privilege from the fund stated in the account.</p> <p>2. The receiver’s commission being allowed at five per cent, of the fund to be distributed, a greater percentage than ten per cent, upon the same fund la refused the attorneys of the receiver. It is held, on the showing made, thal on those accounts — receivers and attorneys — fifteen per cent, is all that should be allowed on a distributive' amount of but little more than ?9,000.</p> <p>3. In insolvent estates, there must be taken into consideration, in estimating fees, the practical results achieved in the way of moneys realized for credi tors, and care is always to be had not too greatly to deplete by charges the small store of funds constituting the common stock out of which all are to be paid.</p> <p>4. A stockholder, who was also director, made advances of money which were used for the purpose of the corporation, to meet its debts and tide over ite difficulties. Held — it being shown that this was done legitimately and In good faith — no fraud, no deception, no preference, no wrong-doing of any kind — his rank and standing as an ordinary creditor is the same as that oí any other ordinary creditor.</p>

<p>APPEAL from the civil district court, parish of Orleans — Thécvrd, J.</p>

<p>PPEAL from the civil district court, parish of Orleans — Théard,</p>

<p>APPEAL from the nineteenth judicial district, parish of St. Martin Foster, J.</p>

Paul. J. The plaintiff, on her own behalf and as tutrix of her child, Jacob W, Hausser, sues to recover the sum of fifty-one hundred and ten dollars from the defendants, in solido, for damages resulting from an injury received by the said child on August 8, 1899.

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

<p>Syllabus.</p> <p>Where a party is convicted and sentenced to a fine, on the ground that a certain seizure made by him was illegal and gave rise under a statute to a misdemeanor, and the seizure was subsequently decreed by the Supreme Court, in a civil cause before it, to have been legal, the conviction will, on certiorari, be set aside as null and void.</p>

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

<p>APPEAL from the Second Recorder’s Court, City of New Orleans— Marmougei, J.</p>

<p>APPEAL from the Seventeenth Judicial District, Parish of Vermilion — Gordy, Jr., J.</p>

<p>Syllabus.</p> <p>Á debt, carrying on its face no stipulation as to interest, payable out of a particular fund yet to be collected, like taxes, is not due (in the sense that it draws inerest under the provision of law that debts bear interest from the time when they are due) until the fund is collected.</p>

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

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

<p>APPEAL from the Seventeenth Judicial District, Parish of Vermilion — Qordy, Jr., J.</p>

<p>IN RE. A. Marx, 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 — 8om-merville, J.</p>

J. The plaintiff- alleged that in August, 1895, the defendant board entered into -a- contract for the building and construction of a levee' known as the Wilderness Levee, witEin the limits of their levee district,, on terms and conditions shown -by the contract, .a copy of which he-annexed to his petition.

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

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

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

<p>Syllabus.</p> <p>X A railroad company constructing a bridge across a navigable stream so negligently as to obstruct the navigation of the stream, is responsible for the damages caused by the obstruction.</p> <p>■2. A litigant who has himself violated a compromise is not in a position to plead such compromise in bar of his adversary’s action.</p> <p>.3. It is the duty of a party to protect himself from the injurious consequences of the wrongful act of another if he can do so by ordinary effort and care, or at a moderate expen'se; for which effort and expense he may charge the wrongdoer; and where, by the use of such means he may prevent loss, he can only recover for such loss as could not thus be prevented.</p> <p>•4. The duty of preventing, or minimizing, a loss about to occur rests primarily on the party by whose negligence or fault it is about to occur, and if such party voluntarily fails In this duty, having means ready to hand for the performance of it, he alone will be held responsible; and it will not avail him to say that the injured party might have lessened the damages by performing the duty for him.</p> <p>'5. The plaintiff chartered a boat to convey some cotton seed to his cotton seed oil mill. The defendant’s bridge obstructed the passage of the boat and deprived plaintiff of the profits he expected to realize from the milling of the seed. Held, plaintiff can recover for these profits.</p> <p>•6. On the same voyage plaintiff expected to realize profits from the selling of liquors and fruit; also he expected to procure other cotton seed and to realize' a profit from the milling of the same; all these profits are too uncertain and contingent to serve as a basis for a judgment.</p> <p>On Reheaeing.</p> <p>"1. The authorities agree that after a wrong has been committed, the damaged party shall not increase it, and that, if he does, he shall have no right to complain of loss or injury sustained by his willful acts of omission or commission. Beer vs. Board of Health, 35 Ann. 1132.</p> <p>2. In this case, a carrier having failed to take certain cotton seed, and to carry it from one point to another, according to a contract, and the other contracting party, being in possession of the Seed at the place of intended shipment, having abandoned it, so that it was lost, or destroyed, It is held that the measure of damages for which the carrier is liable Is the value of the seed, at the place of intended delivery, after deducting its value at the place of intended shipment and the freight, as agreed on, and adding to the remainder the expense which would have been incurred in preserving the seed. The carrier is not, however, liable for the loss resulting from the abandonment of the seed, nor for the prospective profits to arise from its conversion into manufactured products, at the point of delivery.</p>

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

<p>IN RE Charles Gordon, applying for Certiorari, or writ of review, to the Court of Appeal, Parish of Orleans, State of Louisiana.</p>

Paul, J. The defendants recovered a judgment in the Civil District Court decreeing them, in a petitory .action, to be owners and entitled to the possession of certain real estate in the City of New Orleans, with the buildings thereon and all alleys around the same, known as the Second Street Market, together wilpi rents and revenues. The City of New Orleans, defendant, appealed to the Supreme Court.

<p>APPEAL from the Fourteenth Judicial District, Parish of Avoyelles — Edwards, Judge ad hoc.</p>

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

<p>Syllabus.</p> <p>1. A special charge attracting the attention of the jury to the necessity of the identity of the prisoner being proved beyond a reasonable doubt, may be refused when the substance of such charge is contained in the general charge.</p> <p>2. Because the name of one of the jurors was by birth different from that by which he was selected as a juror, is not ground for setting aside the verdict where the community in which the juror has lived all his life, and the juror himself, have not known of this parental name.</p>

A PPEAL from tbe Twenty-first Judicial District, Parish -of Pointe-Coupeé — Olaiborne, J. Tbe defendant, sentenced to be banged under a conviction for murder, appealed.

<p>Syllabus.</p> <p>1. Service of the list of talesmen on an accused before the completion of the panel and before tbe drawing to complete the panel had commenced, Is compliance with the law requiring service.</p> <p>2. In general a new trial will not be granted to admit testimony to impeach a witness on the former trial, but as this case presents exceptional features and is entirely out of the ordinary, it is remanded for a new trial.</p>

<p>Syllabus.</p> <p>1. Even should error be committed by a judge on the trial of a criminal case, that fact will avail nothing to the accused, If the error be as to an immaterial matter, working no prejudice.</p> <p>2. The matter of continuance of cases is left very much to the discretion of the trial Judge, and his action will not be Interfered with, unless the discretion be plainly abused.</p>

<p>Syllabus.</p> <p>Restricted to showing the death and cause of death, the proces verbal of the coroner’s inquest is admissible in evidence on the trial of the person accused of the homicide.</p>

The present cause was before this court once before on an appeal taken by the plaintiff from a judgment of the District Court sustaining an exception of no cause of action which had been filed by the City of Monroe and also by the Monroe Waterworks and Light Company, the defendants therein.

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

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

<p>Syllabus.</p> <p>1. The charge in an indictment of shooting with a dangerous weapon, Include* the subordinate act of assault with a dangerous weapon.</p> <p>2. This court has no jurisdiction to review questions of fact in criminal cases.</p> <p>3. Error, to form the basis of a motion in arrest, must be patent on the face of the record.</p> <p>4. The court is not compelled to poll the jury unless requested.</p>

<p>Syllabus.</p> <p>1. Where, in the answer to a petitory action, a tax title is set up, such tax title is open to every objection of law or fact the plaintiff may have to urge against the same, just as if such objections had been specifically pleaded in the petition.</p> <p>2. In 1873 a justice of the peace had jurisdiction of a suit brought by the tax collector to recover an amount of less than $100.00 due for State taxes.</p> <p>3. In such a suit the tax collector did not need to be represented by the District Attorney. If it had been necessary that he should be thus represented, after the judgment and after the lapse of twenty-five years, the presumption would be, In the absence of proof to the contrary, that he was so represented.</p> <p>i. A sale made under the judgment in such a suit did not need to be approved by the Auditor; except as a matter affecting the right to pay costs out of State funds.</p> <p>5. In the case of a judgment rendered by a justice of the peace court more than twenty-five years ago, in the absence of proof that the defendant was dead at the time the suit was brought and prosecuted to judgment, the1 presumption will be ■ that the defendant was living; the justice of the peace court not being a court of record.</p> <p>6. Where the defendant has died after the rendition of judgment, and his heirs are unrepresented or unknown, the justice of the peace may appoint a cu/rator ad hoc on whom notice of seizure may be served.</p> <p>7. In a petitory action against a defendant claiming title by patent from 'the State, the plaintiff is without interest to urge that the officers of the State were without authority to dispose of the land by patent. The title, if still in the State, would defeat the suit of plaintiff-just as effectively a3 if vested in defendant.</p> <p>8. In the description of property, according to the maps of the United States surveys, an error in the number of the range is immaterial where the description is otherwise sufficient to identify the property.</p>

<p>Syllabus.</p> <p>1. Ordinarily, the only excuse for the existence of a receivership is that the property of the insolvent estate might be conserved and applied to the claims of creditors, and the expenses and charges of administration should be in proportion to the interests involved and the results achieved, always remembering that the property administered is the common pledge of the creditors, and that to realize the payment of their claims, as far as possible, in the order in which the statutes provide, is the first and paramount object of the law. It is this result that is to be aimed at, and' this court will sternly enforce it in every case coming before it.</p> <p>2. Unpaid subscriptions to the capital stock of a limited corporation are assets which the receiver must collect and apply to payment of debts, and his gestión is not complete until this is done, or a satisfactory showing made that it cannot be done.</p> <p>3. When it appears on the face of the record that assets of the estate are not accounted for in what is presented as a final account, the case will be remanded, and this, too, notwithstanding failure to specially mention and complain of, in the opposition filed, this omission of assets.</p> <p>4. And this Court will not undertake the task of delving into voluminous books and other records brought up in the original by consent of counsel, to eke out the showing or want of showing made in this respect by the final account.</p> <p>5. A former receiver, who in suit to destitute him, resigns, must settle with his successor for his gestión of the estate, and his bond should not have been permitted to be cancelled until such settlement is had.</p> <p>6. The necessity for provoking an account by a creditor who demands payment is not to be superseded by a mere application to be paid entered upon the receiver’s order book. Nor are creditors precluded in the matter of contesting claims set up against an estate except in the way the law provides, to-wit: — by the filing of an account and its homologation contradictorily with them after the notice and delays required to be given.</p> <p>7. Funds in the receiver’s hands subject to no special privilege must be first applied in paying the claims which are entitled to rank as general privileges priming the lessor’s privilege, and only for the balance that may be left over after exhausting the fund subject to no special privilege, can recourse be had against the fund which is subject to the lessor’s special privilege.</p> <p>8. If there be authority in law, in case of a receivership, for the appointment 'of an attorney for absent creditors, his compensation is a charge on the sums coining to such creditors, and not on the mass of the creditors.</p>

Paul, J. The plaintiff prayed for judgment for twenty-five hundred and seventy-five dollars with interest.

<p>Syllabus.</p> <p>Plaintiffs Rave a standing in court to compel a board of trustees to administer a fund in accordance with the will of the testator who left it to enable the Board to take care of their poor. Courts will interpose their authority as it may be needful to safeguard the fund.</p> <p>There IS higher authority in the church (than that of the trustee of the-church) whose privilege and whose duty it is to see that the fund left shall be used as intended by the - testator in taking care of the poor of the church. Until that authority chooses to act and establish a condition of things that will ensure a proper expenditure of the fund, it will remain-intact in custodia legis.</p>

<p>Syllabus.</p> <p>Assuming that a belated creditor, appearing and asserting his claim for the first time after the homologation of an administrator’s account, may arrest, in the hands of the latter, any unpaid balances which, by tha judgment of homologation, are to be distributed among the heirs of the deceased debtor, it is, nevertheless, incumbent upon such creditor to prove his claim contradictorily with the heirs, or their creditors. He is not entitled to proceed summarily, and by rule, befoi'e such homologation, or to a trial in the Civil District Court during vacation, for the purpose of making such proof, and the fact that he asserts his claim after the account Is homologated does not confer those rights upon him.</p>

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

<p>APPEAL from the Civil District Court, Parish of Orleans — 1 St. Paul, J.</p> <p>The plaintiff seeks a judgment against defendant for twenty-five thousand dollars as damages on the ground that—</p> <p>On the 21st of August, 1900, defendant wilfully entered plaintiff’s private premises and assaulted him with a pistol, then and there shooting at him with a loaded pistol, when a ball from said pistol, shot by defendant, entered petitioner’s body through the left side of his ¡breast, penetrated his left lung near his heart thereby causing aneurismal varis of the heart, a permanent and painful injury endangering his life.</p> <p>That ever since said shot he has suffered great pain and was, and is, and ever will be, prevented from transacting his ordinary business; he has also incurred expenses for physicians and medicines endeavoring to be cured of the wound.</p> <p>That he was laid up and was still laid up invalided and unable to walk, and enduring constant physical and mental suffering; that his strength was undermined and he was no longer able to work or earn a living in consequence of said wound ¡and its immediate consequence. , Thajt petitioner was without fault, and contributed in no way to the said injuries; that the wound was inflicted upon him by defendant wilfully and without provocation.</p> <p>The defendant, after pleading the general issue, -averred that all his acts in the premises were done to protect this own life and to save himself from serious bodily harm at the hands of plaintiff and his half brother, Rudolph Eishman.</p> <p>That if he fired and discharged any pistol and wounded plaintiff, it was after he had been assaulted by plaintiff, who was aided and assisted by his said half brother; that -they, acting together, assaulted him, both with their fists and a hoe, inflicting wounds of a serious and dangerous character upon his forehead and over his eye. That said wounds so inflicted were without cause or provocation, and plaintiff acted wilfully and maliciously and without any cause in assaulting him, and his acts and .those of his half brother, Rudolph Eishman, they acting together at the time, were malicious, wanton and without any reasonable excuse therefor. That after he was assaulted, if he used a pistol, it was done to protect his life and to protect himself from serious bodily harm at the hands of plaintiff and his half brother.</p> <p>Assuming the character of plaintiff in reconvention, he charged that plaintiff was indebted to him in a sum of money amounting to about twenty-four or five dollars, twenty dollars thereof being on a note which was then due and an open account that on the 21st -of August, 1900, he for the purpose of obtaining a settlement and liquidation of the plaintiff to him went to the place where he resided; that before reaching the house, and in an open field or square, he met the plaintiff and his half brother; that without any cause, reason or excuse and without any justification they then and there, acting together, wilfully and maliciously assaulted him; that he was struck over the eye, cut in the face and over the forehead with a hoe; that at the time he was struck there was nothing left for him to do but ¡to defend himself; that the cuts and blows received were of such a nature as to cause him to be sent to the Charity Hospital for treatment.</p> <p>That at the time of entering this field or lot he was assaulted by Rudolph Eishman, who struck him with his fist; that the plaintiff struck him with a hoe over his eye and forehead, thereby inflicting serious wounds upon his person; that he was knocked down, beaten and stamped upon; that from the effect of said cuts, bruises and beating he had been ever since unable and was still unable to attend to the ordinary business affairs of life and to his business; that he suffered both mentally and physically; at the time of answering he was under the treatment of a physician; that from the effects of the cuts, ¡hearting and bruises he had received at the hands of the plaintiff, aided and assisted by his half brother, his sight had become impaired; that he had suffered damages to an amount of five thousand dollars. He prayed judgment for that amount and for trial by jury.</p> <p>The case was tried before a jury which rendered a verdict for the plaintiff and against the defendant for the sum of ten thousand dollars and costs o'f court. Defendant moved for a new trial. Plaintiff entered a remittitur for five thousand dollars. The court refused a new trial and rendered a judgment against defendant in favor of plaintiff for five thousand dollars, and defendant appealed.</p>

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

<p>APPEAL from the Twenty-Seventh Judicial District, Parish of St. James — McGulloh, Judge ad hoc.</p>

<p>Syllabus.</p> <p>In a suit for damages for malicious prosecution, if defendant had probable cause to make the affidavits, that should end the case, for it is the rule that proof of want of probable cause and proof of malice, direct or implied, must result from the evidence adduced.</p>

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

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

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

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

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

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

<p>APPEAL from the Fifteenth Judicial District, Parish of Calcasieu —Miller, 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 — St. Paul, J.</p> <p>Joseph Oteri died on the 14th of December, 1897; on the 19th of April, 1898, an inventory of the property of his succession was made by Ered Zengel, notary public.</p> <p>It showed cash to the creditors of the deceased in the hands of Woodward, Wight & Co., three thousand two hundred and ninety-six and ninety-six hundredths dollars ($3296.96). Eeal estate, $4500. Community interest in said real estate, $2250. Total amount of effects inventoried, $5546.</p> <p>On the 13th of May, 1898, letters issued to Joseph St. Amant and his wife, Lucy Oteri, as joint administrators of the succession.</p> <p>On the 31st of October, 1899, an annual account of their administration was filed.</p> <p>They charged themselves with the amount which figured in the inventory as being in the hands of Woodward, Wight & Oo., $3296.96, and crediting themselves with various disbursements amounting i'j $397.40, struck a balance of $2899.56.</p> <p>Evariste Blanc and E. P. André opposed the account and claimed as privileged creditors, as appraisers, to be placed therein each for $10. The opposition was maintained and the account amended to that extent and as so amended it was approved and homologated.</p> <p>On the 19th of June, 1900, a second inventory was made under order of court at the instance of the administrators, on the allegation that the former inventory had inventoried only one-half of the property as belonging to the succession, whereas it should have been inventoried as a whole. In this inventory the real estate was inventoried at a valuation of four thousand dollars, no mention being made of movables or money. Blanc and André were appraisers.</p> <p>On June 25th, 1900, the plaintiff in a suit in the United States Circuit Court entitled V. Soalzo et al. vs. Joseph Oteri, suggesting that in that suit a final decree of that court had been rendered 'and signed June 14, 1900, by that court in favor of the plaintiff therein against the succession of Oteri, and that by an account filed and homologated in said succession it appeared there remained in the succession the sum of $2899.56, the same should be paid over to them in part payment of their judgment, and further suggesting that there w;as on hand in the succession certain real estate which they described, and further suggesting that there was other property belonging to the succession not yet inventoried or accounted for, the court, at their instance, ruled the administrators to show cause why an order of court should not issue directing them to pay over to plaintiffs in rule tbe said sum of $289.56 in part payment of their judgment and why the real estate should not be sold for said purpose, and'why, further, an inventory of the property not yet described should not be made and filed.</p> <p>On the same day on the suggestion of H. & O. Newman, that they were holders and owners of la promissory note for $6000 and interest, made and subscribed by Joseph Oteri and secured as to payment, prineipal, interest and attorney’s fees, by mortgage on tbe real estate inventoried, and tbat said note ws dne and unpaid, tbe court ordered tbe administrators of tlhe succession -to show cause why tbe property should not be sold for casb to pay tbe debts of tbe succession, and especially to pay tbe mortgage note. This last rule was made absolute, and tbe court ordered tbat for tbe purpose of paying -the debts of tbe succession among them tbat of tbe plaintiffs in rule, tbe real estate be sold at public auction, for casb.</p> <p>The court made tbe first rule absolute in so far as to order tbe administrators to file an account of tbeir administration of tibe succession. Tbe property was sold on tbe 16th day of August, 1900, to H. & C. Newman for twenty-eigbt hundred dollars.</p> <p>On the 1st of August, 1900, tbe administrators filed an account and tableau of distribution of tbe funds in tbeir bands, which they set down as being twenty-eigbt hundred and ninety-nine dollars and fifty-six cents. Tbe account filed was as follows:</p> <p>Casb on band as per last account..........................$2899 56</p> <p>We propose to pay first tbe following law charges:</p> <p>1. Costs paid the clerk of court.......................... 1 80</p> <p>2. Costs of crier........................................ 1 00</p> <p>3. Eees paid Blanc and André, first appraisement.......... 20 ’00</p> <p>4. Eees due civil sheriff................................. 50</p> <p>5. Costs due Blanc and André, second appraisement....... 20 00</p> <p>6. Costs due E. Zengel, notary, second inventory.......... 25 00 ■</p> <p>7. Costs paid advertising, first account, Bee...............■ 2 10</p> <p>8. Costs paid advertising, first account, Times-Demoerat.... 2 10</p> <p>9. Commissions of administrators on amount of inventory... 165 92</p> <p>10. Rouse & Grant, attorney for succession................ 250 00</p> <p>11. Rouse & Grant, attorneys for succession, defending suit of V. Soalzo vs. Succession in TJ. S. Circuit Court...... 500 00</p> <p>12. Amount retained for future costs...................... 2"5 00</p> <p>13. Insurance premium on bouse, Dec. 23, 1899............ 23 40</p> <p>14. Taxes of bouse for 1899, Jan. 25, 1900.................. 28 00</p> <p>Ordinary Creditors—</p> <p>1. United States judgment, U. S. Circuit Court..........$1125 40 and five per cent from Mia.y 23, 1896.</p> <p>2. Guy M. Hornor, attorney’s fees........................ 300 00</p> <p>3. Charles H. Schenck, on account...................... 577 85</p> <p>4. Salvali Soalzo and Sylvester Rocco Elorita, judgment of U. S. Circuit Court, No. 11,059, with five per cent, interest from June 11, 1885, less $1266.88 paid May 12, 1894. 3876 00</p> <p>5. Randazzo and Di Christini, judgment U. S. Circuit Court, No. 11,059, with five per cent, interest from June 11, 1885, less $1203.54 paid May 12, 1894................ 3497 82 Costs due complainants in said suit No. 11,059, clerk.... 82 15</p> <p>6. James D. Seguin, master’s fee in Soalzo vs. Succession of Joseph Oteri, No. 11,059, U. S. Circuit Court........ 900 00</p> <p>7. Rouse & Grant, attorneys for administrators defending suit of Soalzo vs. Succession of Oteri, No. 11,059, U. S. Circuit Court ....................................... 500 00</p> <p>(Signed) Jos. St. Amant,</p> <p>Lucy St. Amant,</p> <p> Joint Administrators of Succession of Joseph Oteri. </p> <p>Salvador Soalzo and Sylvester Rocco Florita (as representatives of the succession of Vincenzo Soalzo, and Ignacio Randazzo and Antonio Di Christini, the plaintiff in the suit of V. Soalzo et al. vs. Joseph Oteri) filed an opposition to the account as did James D. Seguin, Guy M. Hornor, the United States land the Fidelity and Deposit Company, of Maryland.</p> <p>The opponents first named (Soalzo et al.) alleged that they were creditors of the succession for over ten thousand dollars, fixed ¡by decree of the Circuit Court of the United States, which claim arose long prior to the death of Joseph Oteri, and that they were entitled to a right, privilege and preference in the assets of the deceased then in the hands of the administrators, or those which were disposed of by him with the intent to avoid pursuit of their claim, for which they will hereafter assert their rights in this their opposition to the account presented on the< 1st day of -August, 1900.</p> <p>They opposed the account filed as to the amount sought to be paid ' therefroift, first afid .second elaim of Blanc and André for $20 as appraisers, for the first appraisement, and $20 for the second appraisement —they were entitled to only $8 for each.</p> <p>3rd. The claim of Zengel, notary, for $25, making second inventory, as excessive.</p> <p>4th. Claim of Ronse & Grant for $500 for defending the suit of Soalzo vs. Oteri in the United States Circuit Court — said charge is not a privileged claim, and if the same is not excessive it should be ranked as an ordinary claim, to be paid in common with the ordinary creditors of the succession.</p> <p>5th. The judgment in favor of the United States for the sum of $1125, as not being entitled to a preference over opponents’ judgment.</p> <p>6th. Fee of Guy M. Hornor for $300, as not being a privileged claim, is subordinated to that of opponent.</p> <p>7th. Claim of Charles M. Schenek for $580 should be subordinated to that of opponent.</p> <p>8th. Claim of J. D. Seguin, master in chancery, for $900 should be placed among and paid as privileged claim.</p> <p>9th. Claim of Rouse & Grant, attorneys, for defending suit of Soalzo vs. Oteri in the United States Circuit Court, should be subordinated to the privileged charges and to the judgment of opponents.</p> <p>Having made opposition, as above, these opponents proceeded to set forth and aver that they were advised and believed and so charged that the assets of this estate had been diverted through the instrumentality of the administrators herein; that said administrators had taken possession of a large part of said assets and had detained the same for their own interest and for their own advantage, and for the advantage and benefit of the widow of the said deceased, Joseph Oteri, and that they had not had! the assets so diverted and detained inventoried in the succession of the said Joseph Oteri, and that so much of said assets as have been converted into cash or otherwise disposed of should be accounted for by said administrators, and that so much of said assets as remained in kind undisposed of, but in the possession of said administrators should be inventoried in the succession of said Joseph Oteri, and the said administrators made to account for the same.</p> <p>(1) The appearers and opponents averred that they were informed, advised and believed, that at the time of the death of said'Joseph Oteri he possessed a large amount of premium bonds of the City of New Orleans, and other valuable negotiable securities, which came into the possession of his wife after his death, and that she diverted the same to the detriment and prejudice of these appearers.</p> <p>Thát they were informed and believed, and so charged, that in addition to the securities above generally described, the said widow of Joseph Oteri came into possession of funds and credits of said Joseph Oteri, as well as valuable jewelry which were in the possession of said deceased at the time of his death, and which she had concealed from said estate and diverted therefrom to his own use and to the detriment and prejudice of appearers and opponents, and the other creditors of said deceased.</p> <p>That the steamship “Joseph Oteri, Jr.” is and was the property of Joseph Oteri, Jr., long prior to his death; and that during his lifetime and at the time of his death he managed and operated the same as owner thereof either personally or through charter.</p> <p>(2) That on or about the 13th day of October, 1890, during the existence of the indebtedness due the appearers and opponents, and with a view to defraud them, he caused a transfer of the said vessel to be made in the name of Mrs. Luella Oteri, his wife, as the owner thereof.</p> <p>That, thereafter, on the 30th day of April, 1898, the said Widow Oteri caused the transfer of the said title to he made from her to one William A. Powell, a British subject, to avoid the operation of the laws of the United States as ¡against said vessel.</p> <p>(3) That, subsequently, on or about the ninth day of September, 1898, the said William A. Powell made a re-transfer of the said vessel to the said Mrs. Luella Oteri, as sole owner, she paying nothing, therefor, ¡and nothing having been paid by the said William A. Powell, for said transfer previously made to him, and nothing paid for the original transfer in the name of Mrs. Luella Oteri, as the wife of Joseph Oteri, as heretofore recited, and all of which acts and doing in the original transfer from Joseph Oteri to his said wife and from his said wife to William A. Powell back to the said Widow Oteri were done to injure and defraud the creditors of said Joseph Oteri, deceased, and-partieularly the appearers and opponents.</p> <p>(4) And opponents further opposing said that they denied, as simulated and fraudulent, null and void in law, the pretended mortgage given by the said Mrs. Luella Oteri under date of February 7, 1900, in favor ¡of Mrs. Widow Dominic Cefalu,- for five thousand ($5,000.00) dollars, recorded in the customs department of the United .States Customs Department, Book 1, folio 93, on said date, they averred that said mortgage was effected, solely and purposely to place said lien upon said vessel to the detriment of the rights of opponents and to deprive them of their right to subject said vessel, the property of said ■decedent, Joseph Oteri, to the payment of opponents’ debt and judgment.</p> <p>That in the inventory herein, there appeared to be a piece of real ■estate, then under advertisement and sale, consisting of five (5) certain lots of ground situated in the square bounded by Chippewa, Market, St. James, Felicity and Annunciation streets, fully described in the nventory taken in this succession by Fred Zengel, notary public, under date of April 18th, 1898; .and in the supplemental inventory taken by said notary on the 13th day of June, 1900.</p> <p>That said property was acquired by Joseph Oteri, deceased, on the 14th day of February, 1884; that prior to that date the said Joseph ‘Oteri, Jr., was, and had been, divorced from Luella A. Oteri herein ■set forth as being the widow in community, as would more fully and at large appear in the suit of Oteri vs. Oteri, No.-of the docket of the Civil District Court, Division “D,” judgment therein rendered .granting final divorce on the 26th day of March, 1877.</p> <p>(6) Opponents further declared and said that said property is in ■full ownership was the property of the estate of the said Joseph Oteri; that if said Joseph Oteri remarried said Luella Oteri at any time it was subsequent to the acquisition of said property by said Joseph Oteri, and constituted part of the said estate; and that even if so, said property was acquired during the remarriage between Joseph Oteri and Luella Oteri, she had no right therein until after the payments of the debts due by the deceased and of the community of which she was a member, and the said property was amenable under the judgment of the United States Circuit Court, aforesaid, and opponents had a first lien and mortgage privilege thereon.</p> <p>(7) Opponents averred and said that said property was presently advertised under an order of this court to be sold at the instance of FI. & O. Newman Company, Limited, of New Orleans, who represent themselves to be creditors of said estate in the sum of six thousand ($6,000.00) dollars, under a mortgage dated the 21st day of August, 1896, passed before W. D. Fahey, notary public; that said sale had not yet been effected and the proceeds thereof cannot now be accounted for, but in the interest of justice it was right and proper to marshal the assets as far as may be and to determine the indebtedness of the estate upon the filing of the account and disbursements as applied for by the account herein opposed; that as to said indebtedness so claimed by the said H. & O. Newman Company, Lim., opponents said that they were not the bona fide owners and holders of said note; that they were interposed at the instance of said administrators and were used to enforce the payment of the same; that said note was among the papers and property of said Joseph Oteri at the time of his death; and that the action of said PI. & C. Newman Company, Limited, in lending themselves to a proceeding herein and asserting that they were creditors of said Joseph Oteri of the mortgage note nominally in their possession was fraudulent and collusive; that they were acting in concert and combination with said St. Amant and his wife, the widow of the latos Joseph Oteri.</p> <p>They prayed that the account herein be amended" in regard to the items hereinabove opposed; that the opponents be placed thereon in accordance with the judgment of the Circuit Court of the United States in said No. 11,059, for principal, interest and costs, and master’s fees, as therein detailed; that the claim of H. & O. Newman Company, Limited, be rejected and that the said mortgage operating upon the property of said deceased be cancelled; that the said administrators be ordered and directed to inventory the property of said Joseph Oteri, Jr., diverted from said estate; that they be further ordered and directed to inventory and hold subject to the. court’s order the steamship Joseph Oteri, Jr., and that in due course of proceedings a judgment be rendered herein directing the sale of all the property of said estate and filing of tableau and distribution with recognition of appearers judgment with interest and costs upon said tableau to be paid ¡by preference and priority.</p> <p>Appearers and opponents further prayed for all necessary orders in the premises and for general relief.</p> <p>Opposition to the fee of Seguin, as master in chancery, for $900.00 was withdrawn by all parties and payment of the same by privilege out of the funds in the hands of the administrators was consented to by all the opponents.</p> <p>Guy M. Horner was placed on the administrators account as an ordinary creditor for $300.00 for attorneys fees. He opposed the account claiming to be placed thereon as a privileged creditor.</p> <p>The United States was placed on the account as an ordinary creditor by judgment for $1,125.40, with legal interest from May 23, 1893. It opposed, claiming to be a privileged creditor for the amount of its judgment, interest and costs, and prayed that the aeepunt be amended by placing the government’s claim on it as such, in preference to all other debts in the account and tableau and to be ranked after the charges numbered 1 to 14 inclusive, and the charge in favor of Seguin as special master.</p> <p>The Fidelity and Deposit Company of Maryland opposed the account, claiming to be placed thereon as a privileged creditor fort premiums due to it for the past year ending May 11th, 1900, and tha;. ending May 11th, 1901, amounting together to $70.00 as being the surety in the official bond of the administrators.</p> <p>The District "Court rendered judgment maintaining the opposition of the Fidelity and Deposit Company of Maryland, and decreeing it to be a privileged creditor for $70.00 to be .taxed as costs, also that of James D. Seguin as a.privileged creditor to be taxed as costs. It maintained the opposition of the United States and recognized it as a privileged creditor for the amount, ranking all other claims save those-placed on the account and decreed to be privileged claims for costs and law charges. It rejected the demand of Guy Horner to be recognized-as a privileged creditor. It dismissed the opposition of Salvador Scalzo and Sylvester Rocco Fiorita, representatives of the estate of Vincenzo Scalzo and of Ignacio Randazzo and Antonio Di Ohristini at their costs, reserving to them, however, all rights they might have-against all parties charged with holding any property belonging to this estate, save H. & C. Newman, against whom their rights were reserved-only against any surplus which might be in their hands after payment of their claim against Joseph St. Amant, out of the proceeds of the note-of Joseph Oteri, given as collateral security for said claim. In all other respects it dismissed the several oppositions and it ordered the account of the administrators to be amended so as to conform to the-decree and that, as thus amended, it be approved and homologated, and-the funds distributed in -accordance therewith.</p> <p>Ignazio Randazzo et al., opponents, appealed.</p>

<p>Syllabus.</p> <p>£. policy of life insurance'issued to a married man during the existence of the community and made payable to his executors, administrators, and assigns, falls into the community and not his separate estate, on the dissolution of the former by his death.</p> <p>In answer to a rule taken by the undertutor against the tutrix to show that proper investment has been made, of minor’s funds, the tutrix should clearly show that the law has been complied with.</p>

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

<p>Syllabus.</p> <p>By Article 1289 of the Civil Code the general rule is announced that no one can be compelled to hold property with another unless the contrary has been agreed upon, that any one has the right to demand the division of a thing held in common. This being the case it behooves any one against whom an action of partition is directed by joint owners, to set up objections thereto, either by answer, or by some exception other than an exception of no cause of action.</p>

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

The fact that the defendant died two days prior to the rendition by this court, on March 17*, A. D. 1902, of the judgment in this case, ■having been formally called to the attention of the court, and it appearing by papers filed that the widow of the deceased has been duly recognized by the court below as natural tutrix of the minor heirs of the ■defendant and has qualified as such, and it appearing further that the widow in her own riglhit and as tutrix aforesaid, and…

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

<p>Syllabus.</p> <p>The fact that property taxpayers of a parish have authorized the levying of a five-mill tax on all the property in a parish, including that within the town therein in favor of a particular railroad enterprise is no constitutional obstacle to the imposition at the same time in favor of the same enterprise of a five-mill tar on all the property within the town, by the vote of the property taxpayers therein.</p>

<p>Syllabus.</p> <p>1. Whilst it is true that the power to impose taxes and local assessments can-only be exercised by municipal corporations when conferred in express terms, or by necessary implication, the power to compel the owners of urban property to construct banquettes in front of the same and to keep them in repair and free from obstruction is not the taxing, but the police power, and may be exercised under more general grants.</p> <p>2. Under provisions of its charter authorizing its board of trustees “to make and pass such resolutions and by-laws and ordinances as may be deemed necessary and proper,” and to “regulate and make improvements to the streets, alleys, sidewalks, public squares, wharves, and other public property and places,” etc., the town of New Iberia may legally require the owners of lots fronting on particular streets to construct and keep in repair the-sidewalks and curbings in front of such lots.</p>

<p>Syllabus.</p> <p>• -The accused was indicted for burglary and larceny. He fled from justice and was not apprehended for over three years later. He then filed a motion to quash the indictment on legal grounds, averring its absolute nullity. This motion prevailed. He was promptly indicted a second time for the same offense, the indictment containing the allegation of flight from Justice. Whereupon he filed the plea of prescription of one year in bar. Held — not good. Conviction sustained.</p>

The plaintiffs in this suit are the father and mother of Dan Lindsey, .a minor, who died from the effect of injuries received by him while in the employ of the defendant company.

<p>Syllabus.</p> <p>.A mortgage creditor purchasing at a succession sale the property on which hia mortgage bears is entitled to retain in his hands the amount of his bid up to the amount of his mortgage, but must give bond conditioned that he will pay to the representative of the succession the-amount thus retained, in case he is ordered to do so in the course of the settlement of the succession.</p>

<p>Syllabus.</p> <p>1. Though a criminal act may operate on more than one person, or thing, nevertheless, if it be but one act, consummated at one time, it may be charged asoné offense, and an indictment, charging, in one count, the murder of six persons, is not bad, for duplicity, unless it appears, upon its face, that the-deaths resulted from two or more distinct acts. But, if, upon the trial, it is shown that all the deaths did not result from the same act, the accused may, then, compel the State to elect upon which charge it will proceed.</p> <p>2. Under the statute of 1898 (No. 135), a venire is not to be quashed merely for irregularities, or for non-compliance with' the literal requirements of the law, in the matter of selecting and summoning the jurors, but only “where fraud has been practiced, or some great wrong committed, in the selection and summoning of the jury, that would work irreparable injury.” Hence, the constructive injury resulting to the accused in a criminal prosecution from the facts, that the names on the slips placed in the general venire box are written by the clerk and the jury commissioners, instead of being written by the clerk, alone, and that the name of one juror is, by accident, duplicated, so that the whole number in the box falls one short of that contemplated by the statute, does not justify the quashing of the venire, in the absence of proof of fraud or actual injury.</p> <p>3. The jury list and venire box are to be supplemented twice a year, or oftener, as the judge may require, so that the list shall contain 3C0 names of “competent, good and true” jurors ; from which 20 are to be selected for the grand' jury, leaving 280 to be put in the box. Save, however, upon the occasions' when the box is thus supplemented, it is not required that it should contain 280 names; but it should, at all times, barring accidents and oversights, contain that number, less the number previously and legally drawn since it' was last supplemented.</p> <p>4. The ruling of the trial judge that a question asked a State witness, on cross-examination, was intended to impeach the testimony of a witness previously-examined, and was'inadmissible because no foundation for such impeachment had been laid, will not be disturbed upon the claim that such question was-legitimate by way of cross-examination, when the testimony, given upon the examination in chief, is not brought up, and the question objected to has ail' the appearance of having been asked for the purpose attributed to it by the judge.</p> <p>5. Where it appears that the accused, on trial for murder, had, after the murder had been committed, left certain movables, in the hands of a citizen, at the parish seat, and had then disappeared from the p'arish, and that, amoDg the movables so left, some of which had belonged to the deceased, was a vest, supposed to be the property of the accused, in the pocket of which was a document purporting to have been written and signed by the accused, and indicating a purpose to take his own life, the vest and the document are properly admitted as relevant circumstantial evidence, without proof of the handwriting or signature of such document.</p> <p>.6. The rules of evidence to be applied in the prosecution, in this state, of crimes, offenses and misdemeanors, are those of the common law of England, save where it is otherwise provided by statute (R. S. 976). There has been no statutory modification of the common law rule, that, in prosecutions for murder, documents, otherwise irrelevant and which have not been admitted In evidence, are inadmissible when offered merely to prove handwriting by comparison. Articles 2245 C. C. and 325 C. P. establishing a different rule, are applicable only to civil proceedings.</p>

<p>Syllabus.</p> <p>1. Acknowledgment of a debt will interrupt the course of prescription, but a mere acknowledgment of the existence of the debt will not operate the-renunciation of an acquired prescription.</p> <p>2, An expression of ability on the part of the debtor to pay his debt followed by part payment, amounts to nothing more than to a mere acknowledgment of the existence of the debt, and does not operate the renunciation of an acquired prescription.</p>

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

<p>APPEAL from the Criminal District Court, Parish of Orleans— Baker, J.</p> <p>Defendant has appealed from a sentence to the penitentiary at hard labor for two years “for the crime of uttering and publishing as true a false, altered, forged and counterfeited bond.”</p> <p>In the indictment upon which he was tried and convicted it was charged that he “feloniously did utter, tender and publish as true a certain false, altered and counterfeited bond, the tenor -of wEch said bond is as follows, to-wit:</p> <p>“I, the undersigned, agree to stand .as security for Jos. M. Leo, to the amount of his contract, twenty-two hundred dollars ($2200).</p> <p>Respectfully,</p> <p>(Signed) Thos. J. Callaghan.”</p> <p>He, the said Leo, at the time he uttered, tendered and published as true the said false, altered and counterfeited bond, well knowing the same to be false, altered and counterfeited with the felonious intent to injure and defraud, contrary to the form of the statute .of the State of Louisiana in such case made-and provided and against the peace and dignity of the same.”</p> <p>We find in the record 'the following demurrer: “Defendant, Jos. M. Leo, demurs to all and any evidence on the part of the State under the indictment in this case and enters this general demurrer .on the following grounds:</p> <p>1st — That said indictment does not charge any offense under any statute of this State.</p> <p>2nd — The offering, or forging, or counterfeiting, or falsely making, or altering a bond, as well as the offense of publishing as true any such false, altered, forged or counterfeited bond, feloniously knowing the same to be false, altered, forged or counterfeited, bond, with intent io injure and defraud any person or body politic, are common law offenses, since the statute does not define what is forgery or counterfeiting.</p> <p>3rd — That in charging said offense against defendant, the indictment .■should have conformed with the practice at common law, with the modification, however, introduced by the statutes to the effect that “it •shall be sufficient to describe such instruments by any name, or designation by which the same may be usually known, or by the purport thereof, without setting nut any copy or facsimile thereof or otherwise-describing the same or the value thereof.”</p> <p>4th — That said indictment does not conform to the common law practice, with subjoined amendment in several respects.</p> <p>5th — That the indictment is defective in this, that it does not describe the instrument (charged to be f orged) by any name or designation whatever, but terms it in general as “a bond,” without stating in the least what sort >or species of a bond, so as to apprise the accused of the nature or class of instrument or bond, which he is charged to have-forged 'or to have uttered, tendered or published same.</p> <p>6th — That the indictment is defective in this, that when it alleges-•the contents of said bond, by videlict, it does not recite the whole-instrument, but leaves out the contract mentioned in said bond, by which said Thomas J. Callaghan is said “to stand as security for Jos.. M. Leo, to the amount of his contract, twenty-two hundred dollars.”' That the nature of said contract, its species or kind, are not made-apparent by reason of the omission to state in said indictment “any name or designation by which the said contrae- may be usually known,, by omitting to give even the purport thereof, and without in any wise describing the same, or the value thereof.”</p> <p>7th — That said indictment is defective in this, that the only description or designation of the obnoxious instrument is that it is “a bond”' generally, while under a videlict the security part of the contract is-singled out and copied in the indictment without explaining or specifying what the contract is in extenso, and without copying the said contract in the indictment. That 'the accused is not informed of the-nature, kind, or species of the contract referred to in the excerpt inserted in said indictment, and accused is entitled to be apprised of the-whole contract, principal as well as accessory.</p> <p>8th — That said indictment is defective in this, that it does not substantially state in what consists the alleged forgery, counterfeiting, or alteration, and does not substantially point out what part thereof is forged, counterfeited, or altered, nor what part is genuine, nor does it' aver the whole of the instrument aforesaid is forged, counterfeited or altered.</p> <p>Therefore defendant prays that this demurrer be sustained and that said act of indictment be quashed.</p> <p>Defendant filed also a second demurrer to the indictment preferred against him. He averred:</p> <p>1st — ¡That the allegation thereof do not charge any offense known to. the laws of Louisiana.</p> <p>2nd — That the allegations or charges are insufficient to characterize any offense or crime denounced and punishable by the laws of Louisiana.</p> <p>3rd — That the allegation “to injure and defraud” is too vague and is insufficient, there being no statement as to the party he injured and defrauded.</p> <p>Wherefore defendant prays that the said indictment be quashed and the prosecutor dismissed.</p> <p>These demurrers were overruled, defendant reserving a bill of exceptions. The defendant was arraigned and pleaded “not guilty,” and 'the case went to trial. Upon the trial the district attorney offered in evidence the bond and contract referred to in the indictment, which evidence was objected to by the defendant. The court overruled the objections and the evidence was admitted, defendant reserving bills of exception. The trial resulted in a verdict of “guilty” with recommendations to the mercy of the court. Defendant moved for a new trial which the court refused. He reserved a bill of exceptions to this ruling and filed a motion in arrest of judgment which, being overruled,, he, after sentence, appealed.</p> <p>The first of the bills of exception referred to as having been reserved to the introduction qf evidence, recites that when one Mrs. C.. MeCroslin, a witness ixi behalf of the State, after being sworn, was testifying on behalf of the State, a certain written paper of specifications of contract between defendant and the said Mrs. MeCroslin, was-handed to said witness for. examination and identification, and after having been examined by said witness, the State then offered the said written instrument of specifications in evidence, and counsel for the-defendant now makes part of this bill of exceptions 'the said written-, instrument of specifications so offered at the time, to which offer in-evidence of the same counsel for the defendant then and there objected! on the grounds, among others:</p> <p>First — That the “so-called bond” and written specifications are not known at law, nor in common parlance as “a bond,” and the same do not fall under the operation of Louisiana Act of 1894, No. 180, aforesaid (p. 223), since in them there is no stipulation whatever by budder, contractor, or undertaker, for the payment of workmen, mechanics and laborers, nor furnishers of material and supplies.</p> <p>Secondly — That the terms “his contract” in 'the videliet inserted in the act of indictment herein is a vague and loose term, pointing’ to no kind, species or nature of contract, for which the said Thomas J. Callaghan assumed to stand as security; that it might apply to any sort or species of obligations whatever, well as to date, contracting parties, nature and purport of obligations, so that in that respect the instrument does not sufficiently put defendant on his guard and indicate what evidence he had to meet.</p> <p>But said objections, as also the four objections in bill of exceptions No. 2, here reiterated and made a part hereof, as well as the various -•allegations of defendant’s demurrers overruled by the court and made .a part of the present bill of exceptions, were overruled by the court for •the reasons stated at the time by the court. Counsel for defendant ■then and there excepted, made the said written instrument of specifica.'tions a part of his objections together with the testimony of Mr3. MeOroslin, which counsel now also makes part of this bill of exceptions, and now the defendant tenders this his bill of exceptions for signatura and prays that the same be signed and made a part of this record.”</p> <p>The second hill recites that when Mrs. MeOroslin was testifying as a witness for the State, a certain written paper which are specifications of a contract between the defendant and Mrs. MeOroslin, was handed to the witness for examination and identification, and after having been examined by the witness the State then offered the said contract ánd specifications in evidence, to which evidence counsel objected on the ¡grounds:</p> <p>First — That the instrument sought to be offered and which pur■ported to be an agreement of specifications for a building to be erected 'by this defendant, was inadmissible in evidence inasmuch as no refer■•ence had been made to nor was there any allegation in the indictment -to put this defendant sufficiently upon his guard so as to know what ■ evidence he had to meet.</p> <p>Second — That the said instrument offered by the State were mere ¡specifications, and was not a bond which was alleged to have been forged and counterfeited; that the said instrument and specifications were separate and distinct from the so-called bond made the subject matter of the alleged uttering and publishing as true, and, furthermore, that the so-called bond as set out in the indictment does not in any way refer to the specifications then sought to be offered in evidence.</p> <p>Third — That the indictment herein charges the uttering and publishing as true -of a certain false, forged and counterfeited bond of twenty-two hundred dollars, without in any respect giving the name, appellation, species or kind of obligation by which any alleged contract might be ascertained or be known, nor does the said indictment give either literally or in any other way any allegation by which this-defendant could be apprised of the said specifications so intended to be-offered by the State on the trial hereof.</p> <p>Fourth — That if the document herein set out in the indictment is intended to be a bond to secure a contract and for the security of workmen and furnishers of materials, then, and in that case, the said' pretended bond -as set out in the indictment is not in compliance with the act approved July 12th, 1894, and known as Act No. 180 of 1894, but said objections so urged to the admission of the specifications-herein, were overruled by the court for the reasons stated by the court at the time. To which ruling of the court, counsel for the defendant-then and there excepted, made the specifications a part of his objection together with the testimony of Mrs. McCroslin, which counsel also-makes part of this bill of exceptions, and now this defendant tenders this bill of exceptions for signature and prays that the same be signed and made part of the record herein. The evidence objected to, but introduced, was annexed and made part of the bills as was also the testimony of Mrs. McCroslin taken down by the stenographer.</p> <p>The bill of exception to the refusal of the new trial recites that the-motion for a new trial which was annexed and made part -of the bill' having come up for trial, after -argument thereon, the court for oral' reasons assigned, overruled the motion, to which ruling counsel for' defendant excepted, and with leave of the court made thé contract of specifications, on file, part of the bill.</p> <p>The motion for a. new trial was based upon the following assigned grounds:</p> <p>First — Because the verdict herein rendered is clearly contrary to the law and the evidence.</p> <p>Second — ¿Because, on the trial hereof, the witnesses W. O’Brien, Joseph Woodhall, L. W. Shaw and S. W. Leo, witnesses on behalf A the defendant, testified in substance that they had worked on the building wherein this alleged bond is said to have been given, and that they had had conversations both with Mrs. MeOroslin and her husband, Mr. MeOroslin, and that they both had stated to the said witnesses whose names are herein given, that they never required a bond from this defendant on the building which was then Being put up.</p> <p>Third — Because, on the trial of this cause, the State offered in evidence, over the defendant’s objection, a certain instrument in writing, purporting to be an agreement of specifications for a building to be erected by this defendant; that over defendant’s objection the said specifications, although no part of the alleged indictment and having no reference thereto, was permitted to go to the jury; that by reason thereof this defendant was prejudiced by the admission of said testimony.</p> <p>Fourth — That the said admitted instrument termed “specifications” was not mentioned nor set forth in said indictment, nor was there any way by which this defendant could be apprised of the intended offer of said instrument of specifications, and that the admission thereof was prejudicial to his rights.</p> <p>Fifth — Because, if the alleged contract, which is made the basis of this indictment, was intended to be a contract as provided tor by Act No. 180 of 1894, then and in that case the same is not drawn up, nor is it in compliance with the said act, and is null; that the said pretended, bond has never been recorded in the mortgage office in compliance with the said act heretofore recited.</p> <p>Sixth — That the said document offered in evidence and described in the indictment as a bond is not known as such either in law or popular appellation, but is simply a stipulation of suretyship, vague and general in its terms, without setting forth with whom the contract was made, when made, by whom made, and what the species, kind or nature or object of the obligation was; that in order that the said surety stipulation should be valid that the principal obligation of which this was a suretyship should have been set forth, either by giving the name by which it is known in law or by giving its purport, neither of which has been done herein.</p> <p>Seventh — Act No. 180 of 1894 determines and classifies as a bond only the contract of suretyship on building contracts, which is required of contractors and builders to secure the payment of all the workmen, mechanics and laborers, and all who furnish materials and supplies actually used in the building; that there is no law or statute which classifies or terms as bonds stipulations or suretyship which the ■contractor or builders makes and furnishes to secure the owner with whom it is made, nor is the surety stipulation made in favol'of the owner himself.</p> <p>Defendant moved an arrest of judgment on the ground—</p> <p>First — Because the said indictment herein does not set forth the violation of any penal statute of this State.</p> <p>Second — Because the indictment fails to set out any one of the known obligations as set forth in the statute which can become the subject matter of forgery.</p> <p>Third — That the indictment sets out as follows: That the said</p> <p>defendant, Joseph M. Leo, did feloniously'utter, tender and publish as true a certain false, altered and counterfeited bond, the tenor of which is as follows, to-wit:</p> <p>“I, the undersigned, agree to stand as security for Joseph M. Leo, to the amount of his contract, twenty-two hundred dollars. Bespectfully (Signed) Thomas J. Callaghan.” That the said pretended bond, as herein set out, is not a bond in law, but is only an agreement which has never been perfected into a bond; that as the statute prescribes what species of documents shall become the subject matter of forgery, forgery cannot be committed by making an instrument in any form unless provided for by law, even though it be calculated to deceive most persons.</p> <p>Fourth — Because, if the pretended bond as set forth and described in the said indictment is intended to be known as a bond relative lo contracts for buildings and the security of workmen and furnishers of material, then this defendant says that the said document does not comply with, nor is it in accordance with Act 180 of 1894; that said act determines and classifies as a bond only the contract of suretyship on building contracts, which is required of contractors and builders lo secure payment of workmen, mechanics and laborers and all who furnish materials and supplies actually used on the building, and that there is no law which classifies or terms as bonds the stipulation of suretyship which the contractors or builders may make to secure the •owner with whom it made the building contract, nor does the act stipulate that the surety stipulation shall be made m favor of the owner himself; that nowhere is the document, as set forth in the indictment, known in law as a bond, and is therefore not the subject • matter, nor can it be the subject matter of the crime alleged against this defendant.</p> <p>In view of the premises, defendant prayed that judgment herein be arrested and for general relief.</p>

<p>Syllabus.</p> <p>The adjudicatee in this case is tendered a title, valid upon its face and translative of property, strengthened by judicial proceedings, and accompanied by undisturbed possession as owner for eighteen years. Held — That she Is bound to accept it.</p>

<p>Syllabus.</p> <p>'Mechanical engineers, electrical engineers, clerks, agents, cashiers of banks, book* keepers, and all that class of employes whose employment is associated with mental labor and skill, are not considered as laborers.</p> <p>'The exemption from seizure protects laborers on farms, plantations, factories and other places where workmen possess no particular skill. The skilled labor in trades is not exempt.</p>

<p>Syllabus.</p> <p>1. Plaintiff’s contention that because by judgment of court the assessment of the Ashton plantation, including movables thereon, was fixed at $67,000 for the year 1899, the assessor was without authority 'to increase it the next year, 1900, is directly negatived by the ruling in Liquidating Commissioners of the New Orleans Warehouse Company vs. Marrero, Tax Collector, 106 La. 130.</p> <p>2. Neither was it necessary for the assessor, in preparing his assessment rolls for 1900, to give previous notice to the owner that he intended to raise the assessment for that year over the amount at which it had been fixed the previous year.</p> <p>3. No sufficient grounds appear for disturbing the valuation of the property, for the purpose of taxation for the year 1900, as fixed by the district judge, and his judgment is sustained.</p>

<p>PPEAL from the Mayor’s Court, Town of Minden — Kent, J.</p>

<p>^ PPLICATIOH for Writs of Oertiorari and Prohibition.</p>

<p>FT EE Laure Bichard, Applying for Certiorari, or Writ of Beview, to the Court of Appeal, Fifth Circuit, State of Louisiana.</p>

<p>Syllabus.</p> <p>1. Where property is sold and transferred after the completion of the assessment, and continues to figure on the assessment roll in the name of the vendor, the notice of delinquency of taxes may be addressed to such vendor; and by serving on the purchaser or present owner a notice so addressed the tax officers comply with the law requiring notice to be served on the taxpayer.</p> <p>2. The official return of the officer showing the manner in which a tax notice was served, and even parol evidence, is admissible to correct an erroneous recital in the tax collector’s deed.</p> <p>3. Where property is acquired after the completion of the assessment roll, the person who then was president of the corporation acquiring the property, will be presumed, In the absence of proof to the contrary, to have continued to hold the same position down to the time of the serving of the notice of delinquency.</p>

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

<p>[N RE Thomas A. Pierce, applying for Certiorari, or Writ of Review, to the Court of Appeal, Second Circuit, State of Louisiana.</p>

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

<p>Syllabus.</p> <p>1. The validity of an amendment to the Constitution, proposed as the General Assembly has a right to propose it, and adopted as the electors throughout the State have the right to adopt it, is in no mariner affected by any petition which may, previously, have been presented to a municipal council or to the General Assemiy. ’</p> <p>2. By the terms of the amendment, proposed as Act No. 6 of the Extra Session of 1899, the Sewerage and Water Board is authorized to acquire, for the City of New Orleans, “the plant and franchise of any water or sewerage companies" in that city. There having been, when the amendment was proposed and adopted, but one water, and one sewerage company, in New Orleans, the word “ plant ” is held to apply to the physical means provided by those uaticular companies for the accomplishment of the ends for which they were established, though, in the case of the Sewerage Company, they do not constitute a completed plant.</p> <p>3. The Sewerage and Water Board, established by constitutional amendment, and authorized, subject to the ratification of the City Council, to acquire the plant of the Sewerage Company, made a contract to that effect which was ratified as required. Its consummation is enjoined by citizens, claiming as taxpayers, on the grounds that it is ultra vires of the Board, and that the price agreed on is excessive. Held, that the Board and the city are acting within the power conferred on them, and, there being no fraud imputed, or shown, no invasion of private rights, no manifest oppression; and no gross abuse, their action is not subject to judicial control.</p>

<p>Syllabus.</p> <p>1. An application for delay because of the absence of witnesses is properly refused where no showing is made that the presence of the witnesses can be secured at the future day.</p> <p>Ü. A ruling of the lower court will not be reviewed on facts not positively shown by the bill of exceptions to have been called to the attention of the judge at the time of the ruling.</p>

<p>Syllabus.</p> <p>TEe right: of action to recover damages for the death of a minor child survive* Indie father or mother or “either of ihenW’ If the wife has, previous to the-death of the child, obtained a divorce from her husband and has the care or the minor children, she can bring the action without his authorization.</p> <p>Her right to recover the amount of the damages is not affected by the fact that she remarried prior to the accident.</p> <p>WKere an employer returns his laborers to their homes by means of a hand-car a number of miles from work, after working hours, the employer is liable Id damages for an accident which happened while so returning home, due to the-negligence of the foreman in charge of the men, even though the accident happened after the day’s work had been completed.</p> <p>A water.boy is not a fellow servant of a section foreman within the meaning off the law governing the negligence of employes.</p>

> Relator demanded, before the District Court for Rapides Parish, that the Mayor and Treasurer of the town of Pollock bo mandamused to issue to him a license for the year 1902, to retail spiritous liquors .and intoxicating liquors within the boundaries of said town and to pay him twenty-five hundred dollars damages, which he alleged he had sustained by reason of their having refused illegally to issue the same.

<p>Syllabus.</p> <p>1. It being shown that by the laws of the State of Missouri, a wife, resident of that State and contracting in that State, is capable of binding herself for and with and as security for her husband, the obligation so resulting will be enforced in the State of Louisiana, whither the obligor had removed, in the same manner and to the same extent that it could or would be in the State of Missouri.</p> <p>2. To sustain res judicata the cause of action must be identical with that declared on in the former suit whose judgment is pleaded in bar.</p>

<p>APPEAL from the Seventeenth Judicial District, Parish of Vermilion — jGordy, Jr., J.</p>

<p>^ PPLIOATION for Writs of Mandamus.</p>

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

<p>APPEAL from the Twenty-second Judicial District, Parish, of Plaquemines — Hin'gle, J.</p>

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

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

<p>Syllabus.</p> <p>assessment concerns the means employed to enforce the payment of legal and constitutional taxes, but the fact that the assessment Is illegal, or that there is no assessment, does not affect the legality or constitutionality of the tax. Hence, where the assessment, alone, is attacked, and the amount In dispute is less than that required to give jurisdiction to this court, the appeal will be dismissed. An</p> <p>On Rehearing.</p> <p>■ This court has, heretofore, held that an attack on the assessment of property for taxation is not equivalent to an attack upon the tax based on the assessment.</p> <p>That an assessment may be irregular, and yet the tax legal.</p> <p>Where the tax Is illegal, because of the absolute want of power of the tax department to Impose a tax at all, thé attack upon the tax may be cornbined witb an attack upon the assessment; but, where the attack is made upon the assessment only, it will not suffice as relates to the jurisdiction on appeal. It does not appear in the attack, upon the assessment, that the attack is also especially directed against the tax Itself.</p> <p>The jurisdiction on appeal is limited to cases in which the constitutionality or illegality “of any tax is at issue, whatever may be the amount,” and it is not to be inferred that an attack upon the assessment carries with it an attack npon the tax.</p> <p>'There is, at least, doubt as to the extent of the attack, which resolves Itself against the appeal in a case requiring that it shall be made to appear that the attack is directed against the tax. The doubt was fatal to the appeal.</p>

<p>Syllabus.</p> <p>1. In an action brought by a foreign corporation to expropriate property In this State, under Act No. 124 of 1880, a denial, in general, and in specific, terras, of the right to the relief prayed for, is sufficient to put at Issue the capacity of the plaintiff to enter this State for the purpose of carrying: on its business; and, when it appears from its charter, offered by the plaintiff,. that no such right exists, the action will be dismissed.</p> <p>2. Where a corporation is established under the law of another State for the-purpose of constructing and maintaining telegraph and' telephone lines in. certain named counties in that State, such corporation is without authority to extend its operations beyond the limits of the counties designated, and does not come within the meaning of Act 124 of 188'0, which is intended, to apply to foreign corporations that are authorized, so far as they can ber by the States creating them, to carry on their business elsewhere.</p>

<p>Syllabus.</p> <p>An appeal will be dismissed where by eliminating a duplicated item of damages the demand is reduced to an amount below the lower limit of the jurisdiction of this court; or where the claim for damages is manifestly inflated, for the purpose of bringing the demand within the jurisdiction of this court.</p>

<p>Syllabus.</p> <p>Where the certificate of the clerk shows that the transcript has been made up under specific instructions from the appellant, and, notwithstanding the protest of the appellee, contains only such matter as the appellant has directed him to include, the appeal will be dismissed.</p>