Volume 109 — Louisiana Reports

<p>Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>In the matter of the succession of Thomas W. Bothiek. From the judgment of distribution William H. Bothiek and the widow of John Walters appeal.</p>

<p>Appeal from judicial district court, parish of Catahoula; D. N. Thompson, Judge.</p> <p>Bd. Winters was convicted of murder, and appeals.</p>

King, Judge. Action by James Royal against Frederick Leyland & Co., Limited. Judgment for plaintiff. Thereafter defendant brought an action of nullity. From a judgment dismissing the demand, plaintiff in the action of nullity appeals.

<p>CIVIL DISTRICT COURT — TERMS—POWERS IN VACATION — EXPROPRIATION CASES.</p> <p>1. The terms and vacations of the civil district court for the parish of Orleans, and the character of the litigation which may be conducted, otherwise than by consent, in vacation, are regulated by Act No. 4 of 1896, and by the rules of the court not in conflict therewith.</p> <p>2. As the act mentioned declares affirmatively what proceedings may be taken and conducted, and does not mention expropriation cases, such cases cannot be forced to trial under the authority of a clause in a rule of court authorizing the hearing during vacation of “such other proceedings as may, under existing laws, be tried during vacation,” and prohibition will lie at the instance of the complaining litigant.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the New Orleans & Northeastern Railroad Company against the Louisiana Construction & Improvement Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from judicial district court, parish of Acadia; Conrad De Baillon, Judge.</p> <p>Ambrose Miller was indicted for breaking and entering a store. On forfeiture of his bond, he and his surety appeal.</p>

<p>Appeal from civil district court, parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Alexander C. Hutchinson against Henry Rice. From a judgment dismissing a rule taken by George Fuchs, receiver of Henry Rice & Son, he appeals.</p>

<p>Appeal from judicial district court, parish of Vermilion; Minos T. Gordy, Jr., Judge.</p> <p>Action hy Eugene H. Gueydan and others against Mrs. Amelia A. Montagne and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>RAILROADS — ACCIDENT AT CROSSING.</p> <p>1.One who reaches a railway crossing on a public highway is under the duty to stop, look and listen,, and if a train be approaching it is his further duty to so act as to minimize the danger and insure his safety, if possible, under the circumstances and conditions then confronting him.</p> <p>2. The party who has the last clear opportunity of avoiding an • accident, must, notwithstanding the negligence of his opponent, avail himself of that opportunity.</p> <p>3. The greater the difficulty of seeing- and hearing the train as he approaches a crossing, the greater caution the law imposes upon the traveler.</p> <p>(Syllabus by the Court.)</p>

F. Blackman, Judge. Action by the city of Alexandria against Morgan’s Louisiana & Texas Railroad & Steamship Company, and by Morgan’s Louisiana & Texas Railroad & Steamship Company against the city of Alexandria. The cases were consolidated, and from the judgment the railroad and steamship company appeals.

<p>Appeal from civil district court, parish of Orleans; John St. Paul, Judge.</p> <p>Suit by the state of Louisiana against the New Orleans Warehouse Company and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from judicial district court, parish of Tensas; J. L. Dagg, Judge.</p> <p>Edgar Wilson was convicted of crime, and appeals.</p>

Suit by Carey & Co. and another against Cagney & Foley and by Cagney & Foley against Carey & Co. and another. From judgments in both actions in favor of plaintiffs in the first action, defendants in that action appeal.

<p>Appeal from judicial district court, parish of Ascension; Paul L6che, Judge.</p> <p>Leon Nicholas was indicted for murder. From a judgment sustaining a motion to quash the indictment, the state appeals.</p>

Action by Wash Williams against the St. Louis & Southwestern Railway Company. From a judgment for defendant, plaintiff appealed to the court of appeals for the First circuit, and the questions involved were certified to the supreme court.

Sommerville, Judge. Action by the Metropolitan Bank against Peter Blaise, in which judgment for plaintiff was assigned to F. X. Fitzpatrick. The Citizens’ Bank filed a petition in intervention and third opposition. From a judgment dismissing the intervention and third opposition, the Citizens’ Bank appeals.

<p>SALE — SETTING ASIDE — LESION BEYOND MOIETY.</p> <p>1. To support an action to set aside a sale for lesion beyond moiety, the proof of the value of the property must be strong and conclusive.</p> <p>(Syllabus by the Court.)</p>

ThSard, Judge. Proceeding by the state, on relation of A. Brittin, against the city of New Orleans. Prom a judgment making absolute a rule against the city for the payment of certain •funds, the city appeals.

<p>PARTY WALLS — EASEMENTS—LIGHT AND AIR-DESTINATION — NONAPPARENT SERVITUDES.</p> <p>1. Where a wall of a brick house rests partly upon urban lot B and partly upon urban lot A, as walls in common are usually constructed, but there is no evidence as to when or by whom the house was built, or by whom the wall was paid for, it will not be assumed that the owner of the lot adjoining that upon which the house stands has forfeited his right to make such wall a wall in common, or that the same is barred by prescription.</p> <p>2. In such case, where it appears that a former owner acquired the two lots at different times, and that his successors in title adjudicated lot B, at the same public offering, to one purchaser and lot A to another, there is no servitude of light or view established in favor of the opening in the wall of the house on lot B, but the purchaser of lot A acquires the rights of the original owner with respect to making such wall a wall in common, and to building to suit himself within the limits of his lot.</p> <p>3. Even assuming that the relation between the two lots had been established by the vendors, the destination made by the owner is equivalent to title with respect only to continuous apparent servitudes, whilst the prohibition of building on an estate is a nonapparent servitude, and, whether continuous or discontinuous, can be acquired only by title.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from civil district court, parish of Orleans; George H. Théard, Judge.</p> <p>Action hy Mary Muller against Emily P. Mazerat. Judgment for defendant, and plaintiff appeals.</p>

Sommerville, Judge. Suit by George T. Howat against Hughes Howat in which John R. Howat applied for an order for an injunction, and for damages for wrongful seizure of his property. From a dismissal of the claim for damages, John R. Howat appeals. Appeal dismissed. From a decree dismissing a suit for damages, complainant appeals.

<p>Appeal from judicial district court, parish of De Soto; John Bachman Lee, Judge.</p> <p>John Jones was convicted of embezzlement, and appeals.</p>

<p>CRIMINAL LAW — JURISDICTION—CHANGE OF VENUE — RESCINDING ORDER.</p> <p>1. A prisoner, under arrest for crime and in custody, who is removed for safe-keeping from the jail of the parish where the crime was committed to the jail of another parish, is constructively still in the former parish and under the jurisdiction and subject to the orders of the judge and sheriff of the former parish.</p> <p>2. An order granting a change of venue does not become operative so as to devest the court, making the order, of jurisdiction until the papers in the case and the prisoner are transferred to the new jurisdiction.</p> <p>3. This being so, until the transfer of the prisoner has been effected, it is competent for the court granting the change of venue to entertain motions relating to the order it has granted, such as new trial or reopening the proceedings for change of venue with the view of the modification or the rescinding of the first order, or substitution of another order for it.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of St. Landry; Edward T. Lewis, Judge.</p> <p>Mark Frank and others were convicted of an assault by willfully shooting at another, and appeal.</p>

<p>APPEAL — ABANDONMENT—DISMISSAL—CER-TIORARI — PROHIBITION.</p> <p>1. Writs of certiorari and prohibition, under the supervisory jurisdiction of the court, may be issued after an appeal has been abandoned.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the New Orleans Auxiliary Sanitary Association, in liquidation. From a judgment making absolute a rule for the sale of certain property in which the city of New Orleans claimed an interest, and directing the same to be sold, the city appeals.

<p>Appeal from civil district court, parish of Orleans; George H. ThSard, Judge.</p> <p>Action by William R. Taylor and others against Francis Martin. From a judgment for defendant, plaintiffs appeal.</p>

Action by Landry & Lanier against George Henderson, sheriff and ex officio tax collector. Judgment for plaintiff was certified from the court of appeals.

<p>Appeal from civil district court, parish of Orleans; George H. Théard, Judge.</p> <p>Suit by Mrs. Hannah Hedden Clark against David C. Hedden and others. From a judgment for plaintiff, defendants appeal.</p>

Mandamus by the state, on relation of Carl Hahn, against Fred D. King, as judge of the civil district court, to compel respondent to grant relator a suspensive appeal in habeas corpus by relator’s divorced wife to obtain possession of an infant child of the parties.

Action by David Bernhardt against Edward Curtis. A judgment for plaintiff was affirmed by the court of appeals of the parish of Orleans, and defendant brings certiorari.

<p>Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by George De Armas against A. O. Bell, city engineer, and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from civil district court, parish of Orleans: Fred D. King, Judge.</p> <p>Action by William R. Stringfellow, for the use and benefit of his wife, against Louis Grünewald and Theodore Grünewald. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from civil district court, parish of Orleans; Fred D. King, Judge.</p> <p>In the matter of the emancipation of Anna Elizabeth Wegmann. From a judgment granting the application, Peter Wegmann appeals.</p>

<p>MUNICIPAL CORPORATIONS — ESTOPPEL—APPEAL— INSUFFICIENCY OP EVIDENCE-REMAND.</p> <p>1. While the acts, doings and averments of municipal councils, and those of officers of municipalities, may, perhaps, not ordinarily operate as estoppel against such bodies, the doctrine cannot be carried to the extent of permitting a municipality, after judicially enforcing against a grantee of franchise rights the obligations such grantee had undertaken in consideration of the grant made, to single out and repudiate that part of the ordinance, evidencing the grant, which provides for an extension of the time limit of the franchise.</p> <p>2. Where only the petition, in a suit brought by the municipality to enforce the obligations of the grantee under the ordinance, is offered in evidence, and nothing appears in the record to show what issues were raised by the answer of the defendant in su'ch suit and what the result of the litigation was, it cannot be determined, in the instant case, whether the obligations assumed by the grantee w'ere judicially enforced or not, and this information being considered necessary to the proper determination of the case at bar, the court will, in the exercise of its discretion, remand the cause.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — NEW TRIAL — ABSENCE OE WITNESSES — NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.</p> <p>1.During the trial of a criminal case, on suggestion of the accused that, he had just discovered new witnesses, subpcenas were placed in the hands of the sheriff for service. They were not served, and the fact became known to the accused before his case was closed. It was his duty to have brought notice of the fact to the court, and asked for a temporary postponement to have service made. Having failed so to do, and permitted the case to go to the jury without opposition, he is not in position to claim a new trial in order to have the testimony of said witnesses taken.</p> <p>2. The court having ordered a hearing to be had upon the application of the defendant for a new trial, based upon the allegation of newly discovered evidence, it is his duty to cause those witnesses living in the immediate neighborhood to be present at the hearing, and subjected to examination and cross-examination. It is not the duty of the district attorney to summon them.</p> <p>3. Though it -be the rule that a new trial will not be granted in order to permit the introduction of evidence merely cumulative, the rule is not inflexible. The cumulative evidence, however, should be such as to impress the trial judge that, if added to the other evidence in the case, it would be likely to turn the scales in favor of the accused.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of James K. Boone, for writs of certiorari and prohibition to B. P. Edwards, judge Thirteenth judicial district court.

<p>STREET CARS — NEGLIGENCE OF PASSENGER-ASSUMPTION OF RISK.</p> <p>1. While it may now be considered settled that it is not negligence, as a matter of law, to step off from a moving street car, a person stepping off from such car takes upon himself, in the absence of negligence or fault on part of the carrier, the risk of injury.</p> <p>(Syllabus by the Court.)</p>

<p>SUCCESSION — ACCEPTANCE—WIDOW IN COMM UNITY — USUFRUCTUARY.</p> <p>1. The written declaration, or admission, of. the mere» capacity of heirship, made by the descendants of a dead man, does not of itself constitute an acceptance of his succession.</p> <p>2. A _ widow in community (not renouncing same) is, in the absence of action by creditors of the succession demanding formal administration of its affairs, entitled to be recognized as usufructuary of that portion of the estate devolving upon the legal heirs. But the mere written admission of this conclusion of law by those called by law to the succession does not suffice of itself to evidence an acceptance of the succession.</p> <p>3. Where there is no claiming of anything by those styling themselves heirs, no affirmative aetion_ by them in assertion of the rights of heirship or ownership, no obliging themselves as heirs, or contracting as heirs, acceptance of the succession cannot be inferred against them.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by A. H. Leonard against H. Eorbing. Judgment for defendant, and plaintiff appeals.</p>

<p>LANDLORD AND TENANT — ABANDONMENT OF PREMISES — STIPULATION FOR RENEWAL — DAMAGES — REPAIR OF LEASED PREMISES.</p> <p>1. Lessees who remove their stock in trade, surrender the keys of the building leased, and say that they are pleased at being released from their contract, can well be considered as persons laying no further claim to the premises. It was left to the tenant to exercise from the first his right to possession. This he failed to do. The acquiescence of plaintiffs leaves them without a claim for damages.</p> <p>2. The onus is with plaintiffs to establish their claim to damages. They are absolutely without right to damages on a lease, under stipulation of renewal, provided for, in the lease of which they may never avail themselves.</p> <p>(a) Allowing profit on a lease “to the period covered by the renewal privilege would be stretching the doctrine too far. It would be trenching too much upon damages of a character remote and speculative.” Henrichs v. Educational Fund, 22 South. 96, 49 La. Ann. 1038.</p> <p>3. A lessor can be compelled to repair the building he lets, but he cannot be compelled to reconstruct a building.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of J. C. Theus, district attorney of the Third judicial district, for writs of mandamus and certiorari.

<p>Application by the state, on the relation of George A. Perkins, for writs of certiorari and prohibition to E. D. Miller, Judge.</p>

<p>Appeal from judicial district court, parish of Richland; W. J. Gray, Judge.</p> <p>Action by Wilber Kline against William Eubanks. Judgment for defendant, and plaintiff appeals.</p>

F. Brunot, Judge. Action by Morgan’s Louisiana & Texas Railroad & Steamship Company and the Southern Pacific Company against the railroad commission of Louisiana. Judgment for defendant, and the plaintiffs appeal.

Application by the state, on tne relation of W. P. Cary and others, for a writ of mandamus to the police jury of Calcasieu parish. From a judgment denying the writ, relators appeal.

Application by the state, on the relation of Marie Grenier, wife of Alfred J. Mayer, and others, for writs of mandamus and. prohibition.

<p>COMPROMISE — RESCISSION—RETURN OF BENEFITS — APPEAL—REMAND.</p> <p>1. A demand for damages is properly rejected, upon a plea of compromise, where it appears that the compromise relied on relates to the claim sued on; that the plaintiff, who, though illiterate, is fairly intelligent, entered into it with the advice of his friends, repeatedly and at different times affirmed it, until he had been paid the full amount agreed on, repudiates it only when'there is nothing more due him, and demands its rescission without offering restitution of what he received.</p> <p>2. The interests of justice do not require that a case should be remanded where the plaintiff, appearing to be, and acting as though he were, sui juris, and without offering restitution, brings suit on a claim previously compromised, and where, judgment having been rendered sustaining such compromise and rejecting his demand, a suggestion of minority, brought to the attention of his counsel after the rendition of such judgment, and supported by ex parte affidavits, but denied by the defendant, is made in this court when the case is called up for hearing on the appeal.</p> <p>(Syllabus by the Court.)</p>

<p>INJURY TO EMPLOY® — CONTRIBUTORY NEGLIGENCE.</p> <p>l.-Action for personal injuries. Judgment for the plaintiff reversed, he being held guilty of contributory negligence.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — DISMISSAL—CITATION.</p> <p>On Motion to Dismiss.</p> <p>1. After a judgment has been rendered in favor of a minor in an action in which she was represented by a particular person as her tutor, his resignation was accepted, and another person appointed and qualified as her dative tutor. The defendant, after this, applied by petition for a devolutive appeal, and asked for citation, but did not name the person upon whom citation was to be made. Appellee moved to dismiss for want of citation. Appellant filed no pleadings in the supreme court after the motion to dismiss.</p> <p>Held, the appeal should be dismissed.</p> <p>2. The clerk of court is not a lawyer, and is not charged with the duty of keeping advised of the various changes which may take place, after judgment, in parties. Litigants cannot throw upon him the responsibility of making citation upon proper persons.</p> <p>(Syllabus by the Court.)</p>

<p>ADMINISTRATOR — DISCHARGE — HOMOLOGATED ACCOUNT — PRESCRIPTION—PAYMENT OF CLAIMS — HEIRS—POSSESSION OF PROPERTY-APPEAL — REMAND FOR FURTHER INQUIRY.</p> <p>1. An administrator will not be discharged when it is evident that his dismissal would be detrimental to the interest of the succession he represents; that it would only result in other costs and further delays.</p> <p>2. Prescription will not run against a provisional account that has been homologated.</p> <p>3. The administrator is. the agent of all the parties concerned, who must pay claims acknowledged which he has been ordered to pay from the succession funds.</p> <p>4. Heirs can only obtain possession of the property inherited by paying the debts or by furnishing security to the creditors.</p> <p>5. Other questions remitted to judicial inquiry in suits pending and on account to he filed.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of Pettigrew and others, for writs of certiorari and. prohibition to L. E. Hall, judge.

<p>Appeal from criminal district court, parish of Orleans; Frank D. Cfirétien, Judge.</p> <p>George Thompson was convicted of murder, and appeals.</p>

xlppeal from judicial district court, parish of Rapides; W. E. Blackman, Judge. Action by Morton D. .Sleet against Philip J. Sleet. Judgment for defendant, and plaintiff appeals.

<p>Action by the heirs of W. D. McCoy against Louis Derbonne and others. Judgement for defendants was affirmed by the court of appeals, and the heirs apply for a writ of review.</p>

Action by the Bradley-Ramsay Lumber Company, Limited, against John A. Perkins, tax collector, and others. The receiver of the Guardian Trust Company intervened. Judgment for defendants, and plaintiff appeals.

<p>BANKRUPTCY — TITLE TO ASSETS — PETITORY ACTION — DEFENSES — TAX SALE — PRESCRIPTION-TEN YEARS’ POSSESSION.</p> <p>1.Under the bankrupt act of 1867, the property of the bankrupt remained in him until an assignee had qualified, and the judge or register had assigned or conveyed or assigned the same by an instrument under his hand.</p> <p>2. Defendant in a petitory action cannot attack the title of the actual owner, which the plaintiff advances as his own, on grounds which concern the parties to that title alone, and which they themselves do not urge.</p> <p>3. A sale of property made at public auction by a tax collector as belonging to the state is not strictly a tax sale.</p> <p>4. The rules controlling questions of the acquisition of the ownership of property through the prescription of 10 years by possession as owner in good faith, under a title translative of property, differ from those which determine the rights and obligations as to fruits, revenues, and analogous claims.</p> <p>(Syllabus by the Court.l</p>

<p>Appeal from judicial district court, parish of Iberia; T. Don Foster, Judge.</p> <p>Action by Elie Germier against the Springfield Fire & Marine Insurance Company. Judginent for plaintiff, and defendant appeals.</p>

<p>CRIMINAL LAW — INSTRUCTIONS—SEPARATION OF JURY — CROSS-EXAMINATION OF DEFENDANT — BILL OF EXCEPTIONS — STATEMENT OF JUDGE — RECORD—NEW TRIAL.</p> <p>1. A request, in a criminal case, that the jury be charged that, “Where there is a conflict in the testimony, the preponderance oC testimony governs, when the witnesses are equally credible and unimpeached,” is properly refused; more particularly where it appears that the jury have already been charged that they are the exclusive judges of the law and the facts, and have been instructed upon the subject of “reasonable doubt.”</p> <p>2. It is not error to permit a juror, during a trial, under an indictment for murder, to separate himself from the jury for the purpose of going, in the custody of a deputy sheriff, into a closet, the door of which opens into the courtroom, and within which there is no other person.'</p> <p>3. A defendant in a criminal prosecution, who becomes a witness in his own behalf, may be asked on cross-examination, with a view of testing his credibility, how many times he has been before the court. But, if this were not so, nevertheless, if in answer to such a question he says, in substance, that he has never been before the court, and the answer remains undisputed, he has sustained no injury by the question.</p> <p>4. Where the trial judge has not been requested to reduce his charge to writing, and has not done so, his statement as to the charge given must be accepted in this court. So, also, where no testimony is brought up with respect to his statement, made in signing a bill of exceptions, to the effect that no testimony was given which called for a charge specially requested on behalf of the defendant.</p> <p>5. The ruling of the district court refusing a new trial applied for on the ground of newly discovered evidence will not be disturbed where the motion is supported by the affidavit of the accused alone; where neither the witnesses nor their affidavits are produced on the hearing of such motion; and where, from the statement of the judge, it appears that he was of opinion that due diligence had not been used, and that the evidence, if obtained, would have been merely cumulative.</p> <p>6. An affidavit by counsel for a defendant convicted -in a criminal prosecution, and before this court by appeal, questioning the correctness of a statement made by the trial judge in signing a bill of exceptions, but made after the appeal has been taken and forwarded to the clerk of this court with the transcript, forms no part of the record, and will not be considered by the court.</p> <p>(Syllabus by the Court.)</p>

Porter, Judge. In the matter of the probate of the will of Jonathan Sprowl. Prom an order refusing the same, the applicants appeal.

-Appeal from civil district court, parish of Orleans; John St. Paul, Judge. In the matter of the succession of Emma M. Emonot, wife of John Carney. On the accounting of the tutor the minor, as opponent, appeals.

King, Judge. Application by the state, on the relation of J. C. Aucoin, for a mandamus to the board of police commissioners. Writ denied, and plaintiff appeals.

<p>LIBEL — EVIDENCE — JUSTIFICATION — NEWSPAPERS — CRITICISM OP PUBLIC AFFAIRS - INSURANCE — DUTIES OF ADJUSTER.</p> <p>Exceptions to Ruling of District Court.</p> <p>1. The proof of proceedings of the legislature in reference to insurance legislation was not pertinent to the issue of libel vel non, for the plea of justification interposed by the defendant is -to be sustained by proof of facts charged, and not by proof of purpose in publishing the charge. The circumstances and facts do not show that this evidence was admissible in mitigation of damages.</p> <p>2. The charges of unfairness, arbitrariness, and oppressiveness should be sustained by special instances and incidents, and not by reputation and general conduct. Evidence of conduct in particular cases not set out in the answers was properly excluded, as was proof of general reputation of the adjuster.</p> <p>3. Evidence of losses adjusted, and the amounts found due in a given number of losses, was germane and pertinent to the case, and properly admitted.</p> <p>4. It is true that the justification need not go further than the charge, and that matter not specifically set out in the petition as libelous need not be justified in defense; but the defendant having offered evidence of other charges to support the general averments of misconduct, oppression, and injustice, it was not to be closely restricted, as applying exclusively to the general averment.</p> <p>5. It was shown that a clipping offered in evidence was from the newspaper sued, of which one of the defendants is the owner. It was admissible.</p> <p>6. Testimony admissible to prove that a clause in a policy is ■ not merely technical and arbitrary.</p> <p>On' the Merits.</p> <p>7. While a newspaper has the right to publish to the general public a fair comment and criticism on matters of public concern, it will not, as a rule, be protected if it goes farther than the occasion or conduct warrants.</p> <p>8. The adjuster does not discharge functions of a riuasi judicial nature, for he represents his employer, to whom he owes faithful and discreet work, and for whose acts and utterances in the employer’s interest he (the employer) is responsible as long as they are acts done and utterances made whilst the agent is acting within the scope of his employment.</p> <p>Breaux and Blanchard, JJ., dissenting in part.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from district court, parish of Madison; Frangís Xavier Ransdell, Judge.</p> <p>Action by Mike McGinn against J. H. McCormick, receiver of the Vicksburg, Shreveport & Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

ThSard, Judge. Application by the state, on the relation of the Illinois Central and Yazoo & Mississippi Valley Railroad Companies, for a writ of mandamus to the hoard of levee commissioners of the Orleans levee district. Judgment for defendant, and relators appeal. The city of New Orleans and certain other parties intervene, and from the judgment the-city of New Orleans also appeals.

<p>APPEAL — REMAND BY CONSENT.</p> <p>1. By reasons of consent of parties, this case is remanded.</p> <p>(Syllabus by the Court.)</p>

<p>SUPREME COURT — JURISDICTION—LOCAL ASSESSMENTS.</p> <p>1. In cases of local assessment this court has jurisdiction, regardless of. the amount in dispute, where assessment has been levied by the sole authority of the government, but not where the assessment has been levied at the instance of, or after consultation with, the taxpayers.</p> <p>(Syllabus by the Court.)</p>

<p>LIBEL — WHAT CONSTITUTES — LANDLORD AND TENANT — RELATIONSHIP.</p> <p>1. Letters written by a person to the attorney of another, giving his version of a business transaction with his client, with the view of setting himself right, and avoiding anticipated litigation, and not to injure the other party, gives rise to no damages where the facts stated are substantially correct, and the deductions to be drawn from them were fairly reasonable, though in point of fact they were incorrect.</p> <p>2. Plaintiff held to have been the tenant of the ■ defendant though it was in contemplation that, after the parties had completed the contract, a •written instrument should be signed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of St. Tammany; James M. Thompson, Judge.</p> <p>Action by Jacob Lloyd and Eliza Jane Lloyd against the East Louisiana Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

Appeal,from judicial district court, parish of Iberville; Edward B. Talbot, Judge. Action by William L. Bernard, trustee, against Froisin Guidry. Judgment for defendant, and plaintiff appeals.

<p>APPEAL — JURISDICTIONAL AMOUNT.</p> <p>1. In a petitory action, where the plaintiff, claiming ownership of a tract of land, alleges that several parties, who are made defendants, are trespassing, each upon a particular subdivision of such tract, which subdivision is described and designated, and the value of which appears upon the record, and prays judgment against each of said defendants with respect to the subdivision which he is alleged to be trespassing upon, and for the rents and revenues thereof, and where it is not alleged and does not appear that the defendants trace title to a common author, that there is any privity or common interest between them, or that either will be affected by a judgment against the other, the appellate jurisdiction of this court with respect to the demand against each defendant depends upon the amount or value demanded from him, and not upon the aggregate amount or value demanded from all of them.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from criminal district court, parish of Orleans; Joshua G. Baker, Judge.</p> <p>Harriet Frazier was convicted of manslaughter, and appeals.</p>

<p>Appeal from judicial district court, parish of St. Mary; A. C. Allen, Judge.</p> <p>Action by Ursules Gagneaux against L. C. Desonier. Judgment for plaintiff, and defendant appeals.</p>

<p>CONTINUANCE — REFUSAL—PARTNERSHIP— DISSOLUTION — POWER OP PARTNERS —ACCOUNTING—COSTS.</p> <p>1. Where courts of first instance refuse continuances or further hearings, it is sometimes found that the discretion vested in them has not been properly exercised; but where a further hearing has been granted, either before judgment or by new trial, afterwards, with a view to the obtentión of information needed for the purposes of a correct decision, there is no just cause for complaint.</p> <p>2. A member of a partnership who is authorized by his copartners to make all sales, receive all payments, handle and disburse all funds of the concern, and keep its accounts, owes it to them and to himself to keep such accounts correctly and intelligibly, and to render statements thereof when properly called on for the same. He should not mingle the funds of .the firm with his own, nor with those of another firm of which he is a member.</p> <p>3. After the dissolution of a commercial partnership, one of the members, not specially authorized to that effect, cannot bind the others for the costs of an expensive and fruitless lawsuit brought by him; and especially is this so when they have objected to it in advance.</p> <p>4. Where a partner who is authorized to make all sales and receive and disburse all money for his firm, and to keep its accounts, is called on, after its dissolution, for a settlement, it is not sufficient, to entitle him to a credit with respect to the price of property sold by him, that he should enter upon his account the name of the purchaser. He must show why he has not collected the money, or he will be charged with it. And in such a case, where it appears, after the dissolution of the firm, that he withholds the funds, denies to his co-partners an account of his gestión when requested to furnish the same, and, when sued, renders an account which is incorrect, he will be condemned to pay the costs of the litigation if the balance is eventually found to be against him.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of Lafayette; Edward Taylor Lewis, Judge ad hoc.</p> <p>Action by John R. Cooper and others against Benjamin Falk and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>BOUNDARIES — SECTION LINES — RE-ESTABLISHMENT.</p> <p>1. In re-establishing a section line the surveyor’s marks within the township are safer guides than the surveyor’s marks of an adjoining township, surveyed a year later.</p> <p>2. In re-establishing a boundary line, in case of discrepancy between the measurements of the original survey and a natural monument the latter controls.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — EVIDENCE AT PRELIMINARY EXAMINATION — VERIFICATION—ORDER OP PROOF — CONSPIRACY.</p> <p>1. A foundation is sufficiently laid for offering in' evidence on part of the state, at the final trial, the testimony of a witness given at the preliminary examination, where it is shown that the witness lives out of the’ state; that he was in the state at the time of the preliminary examination and testified then; that he after-wards left on a west-bound train, presumably going to Mexico where he resided; and that he has not been seen or heard of in the state since.</p> <p>2. And such testimony is sufficiently verified to justify its being read to the jury when it is shown that the witness could not speak the English language and was assisted in giving his 'testimony at the preliminary examination by an interpreter, who was duly sworn as such; that his evidence was taken down in shorthand by the court’s official stenographer from the lips of the interpreter in the presence of the court; that the stenographer certified to the testimony as a true and correct transcript from his notes; that the testimony so transcribed by him was given in open court by the witness in the presence and hearing of the accused, who was offered full opportunity for cross-examination; and that the whole was signed by the judge who officiated at the preliminary examination.</p> <p>3. While the general rule is that the existence of a conspiracy must be proved, at least prima facie, to the satisfaction of the judge before the declarations or acts of the co-eonspirators are admissible in evidence, an exception is recognized where establishing the conspiracy is dependent upon the proving of a number of facts and circumstances from which the conspiracy is to be inferred. In such case the order of proof is discretionary with the court and evidence of acts and declarations may be received at any time during the trial, dependent, finally, for effect as evidence, under the charge of the judge, on the conspiracy being established vel non to the satisfaction of the jury, and the accused’s connection therewith shown.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — JURISDICTIONAL AMOUNT — DISMISSAL.</p> <p>1. Where, in an action in damages for an alleged illegal seizure, it is apparent on the face of the record that the damages claimed are impossible in fact and in law, inflated and fictitious, and that, if any damages were sustained, the amount is far below that necessary to bring the case within the appellate jurisdiction of this court, the appeal of the plaintiff from a judgment rejecting' the demand will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>INTERVENTION — INJUNCTION—BOND.</p> <p>1. A plaintiff in intervention, who unites with the defendant in resisting the demand of the plaintiff in the suit, does not thereby become a defendant in the suit, nor can that status be conferred upon him by the court, since a person bringing suit in his individual capacity has the right to determine for himself whom he will sue, and cannot be compelled to sue another against his will.</p> <p>2. An order authorizing the filing of an intervention, and designating the intervener as a defendant, followed by a judgment on a rule nisi, directing a writ of injunction to issue upon the plaintiff’s furnishing bond in favor of the original defendant and of the intervener, is unauthorized in so far as it requires a bond in favor of the intervener, and the latter has no right of action on the bond so given.</p> <p>(►Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by Gustave Schutt and others against the Shreveport Belt Railway Company and others. Judgment for plaintiffs, and defendants appeal.</p>

Don Foster, Judge. In the matter of the Succession of Lucien Oubre. J. B. Oubre and others, third opponents. From the judgment, the administrator appeals.

<p>INSURANCE — APPRAISEMENT — APPEAL, — REVIEW — PREPONDERANCE OF EVIDENCE.</p> <p>1. Where a policy of insurance calls for appraisement, whereby the loss sustained may be easily ascertained while yet recent, and the insurer declines to submit thereto, it is hardlyJn a position to complain of the doubt and uncertainty which subsequently arise, and to which it contributed by the refusal of appraisement.</p> <p>2. The decision of the judge of the first instance, who saw and heard the witnesses, always of great advantage, and particularly so where conflict of testimony exists, is generally allowed to prevail upon questions of fact, unless manifestly erroneous.</p> <p>3. Where plaintiffs have substantially met the burden of proof, which was upon them to show the loss sustained, making their case fairly certain, they are not to be defeated simply because there remains room for doubt, even reasonable doubt. A preponderance of evidence determines issues of fact in civil causes.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of Morehouse; W. J. Gray, Judge.</p> <p>Action by Edmond Kird against the New Orleans & North Western Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>CRIMINAL LAW — TRIAL—APPOINTMENT OP ATTORNEY-WAIVER.</p> <p>1. An accused person, brought to trial, who is unable to employ counsel, is entitled to have the court appoint a member of the bar to defend him, and reasonable time for preparation by the counsel so appointed.</p> <p>2. But when he meets the inquiry of the trial judge, as to whether he has employed counsel to defend him, by announcing he had intrusted his defense to an ex-justice of the peace, who would appear by power of attorney, and who does so, conducting the defense to the end, he will not be listened to when, on motion for new trial, he sets up deprivation of the right to be represented by counsel learned in the law.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of Vermilion; Minos T. Gordy, Jr., Judge.</p> <p>Action by Levy Hargrave and others against Joseph Mouton. Judgment for defendant, and plaintiffs appeal.</p>

<p>TAXATION — EXEMPTIONS—CHARITABLE INSTITUTIONS.</p> <p>1. In so far as property leased out for revenue is concerned, an exemption from taxation granted by the legislature to a charitable institution prior to the adoption of the constitution of 1879,. and not embraced in the charter of such institution, nor in an act expressly amendatory thereof, is repealed by the following provision of the constitution of 1879: “The following property shall be exempt from taxation, and no other, viz.: * * * all charitable institutions * * * provided, the property so exempted he not used or leased for purposes of private or corporate income.”</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from civil district court, parish of Orleans; George H. ThSard, Judge.</p> <p>Action by William B. Leonard against Sparks Bros. & McGee. Judgment for defendants, and plaintiff appeals.</p>

Action by Marie Coralie Fuselier against the police jury of the parish of Iberia. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff applied for certiorari or writ of review.

<p>CRIMINAL LAW — CONFESSION—ADMISSIBILITY.</p> <p>1. Where a person in jail, charged with robbery, is visited by the chief of police, a police officer, and the jailer, and is told by the chief of police, “If you have anything to tell, you had better tell it now,” and in answer to his question as to whether another party, suspected of participation in the crime, has been apprehended, receives from that officer the reply, “No; [butj as soon as he is caught he is going to turn state’s evidence, and, if you have got anything to say, you had better say it now,” the confession which he is thus induced to make is hot voluntary, and should be excluded upon the objection of his counsel.</p> <p>2. Where, in such a case, it is shown that the accused made a statement to the effect that he was standing some distance away, and did not participate in the crime, but received from one of the participants, who was running away, some of the money, “which he took, and went home,” it is no answer to the objection to its admissibility to say that the testimony does not prove a confession.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — WHEN ALLOWED — JURISDICTION OE SUPREME COURT — SHEEP-KILLING DOGS —CONSTITUTIONAL LAW.</p> <p>1. An appeal is a remedy intended for a litigant who complains of error in the judgment of an inferior court which he desires to have corrected in a court of superior and appellate jurisdiction. If he complains of no error which can be so corrected, the appeal should not be allowed.</p> <p>. 2. In a civil case involving the constitutionally of a law or ordinance, where the matter in dispute or the fund to be distributed is less than $2,000, and where neither the constitutionality nor legality of any tax, toll, or impost whatever, or of any fine, forfeiture, or penalty imposed by a municipal corporation, is in contestation, the appellate jurisdiction of this court can be invoked only when the law or ordinance has been adjudged unconstitutional, and to the extent necessary for the review of the judgment so rendered, and a litigant in whose favor such judgment has been rendered, and who makes no complaint thereof upon the question of law, has no right to be heard in this court upon the facts.</p> <p>3. Where, however, an appeal has been granted in such case, and the adverse litigant, against whom the constitutional question has been decided, has answered thereto, complaining of error and asking for its correction, the appellate jurisdiction of the court will be maintained for the purposes of such answer.</p> <p>4. Section 6 of Act No. Ill of 1886, authorizing the recovery, by the owner of a sheep or lamb killed by a dog from the owner of the dog, of ten times the damages sustained, does not deprive the owner of the dog of the equal protection of the law, and is not unconstitutional.</p> <p>5. The judge a quo having found the statute mentioned constitutional in so far as it authorizes the recovery of the value of the sheep or lamb killed, with attorney’s fees and costs, and having determined the amount of the same, and condemned the defendant therefor, the case was, with respect to those matters, not appeal-able to this court; and, having held said statute to be unconstitutional only in so far as it authorizes the recovery of ten times the damages sustained, the appeal, with the answer-thereto, bring within the jurisdiction of this court only the question of constitutionality last mentioned, and the reversal of the judgment-on that question entitles the plaintiffs, as a. matter of law, to the damages authorized bylaw.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from judicial district court, parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Isaah De Hart was convicted of crime, and appeals.</p>

<p>Appeal from judicial district court, parish of Gaddo; Alfred Dillingham Land, Judge.</p> <p>Action by the Houston & Shreveport Railway Company against the Kansas City, Shreveport & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Application by the state, on the relation of Joseph Alcide Babin, justice of the peace, for writ of certiorari to T. Don Foster, judge.</p>

<p>Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by St. Anna’s Asylum against C, H. Parker, tax collector, and others. Judgment for plaintiff, and defendants appeal,</p>

<p>CRIMINAL LAW — OBJECTIONS TO JURISDICTION —VENUE OF CRIME — APPEAL — EVIDENCE-NONRESIDENT WITNESSES — ARREST OF JUDGMENT. '</p> <p>1. Whore the jurisdiction of the district court in a criminal case is denied upon the ground that the crime was not committed within its territorial limits or within the state, the issue is one of fact, which can only be passed upon when the entire evidence in the case has been adduced. The district court cannot be required to decide the question at an early stage upon the testimony of two or more witnesses, even if they be witnesses for the state, and testify favorably for the accused.</p> <p>2. The place of the commission of a crime is a matter of fact, which has to be submitted _1o and passed upon by the jury upon the entire ■evidence adduced under a charge from the judge. If the Supreme Court could pass upon that issue at all after a finding adverse to the accused (State v. Tanner, 38 La. Ann. 307), it could not do so upon fragmentary evidence.</p> <p>3. The accused cannot object to the reading of the testimony of state witnesses, taken before the judge of the First city criminal court of New Orleans, acting as a committing magistrate, when the witnesses are absent from this state at the time of the trial of the case, and are permanent nonresidents, simply because of alleged irregularity in the time and place of taking the testimony, when he at that time cross-examined the witnesses, and afterwards himself sought to utilize the testimony in support of a plea to the jurisdiction.</p> <p>4. The written testimony of witnesses permanently absent from this state, taken before the judge of the First city criminal court of New Orleans, acting as a committing magistrate, is receivable in evidence on the trial of the case itself, when the accused was present at the taking of the testimony, and cross-examined witnesses. This has been the jurisprudence for many years in Louisiana, and the situation has not been changed by the introduction into article 9 of the Constitution of 1898 of the words “in every instance.”</p> <p>5. Motions in arrest of judgment can be granted only for errors patent on the face of the record. A defect which appears only by the aid of testimony cannot be the subject of such a motion. State v. Green, 36 La. Ann. 185; State v. White, 37 La. Ann. 172; State v. Roland, 38 La. Ann. 18; State v. Pete, 3 South. 284, 39 La. Ann. 1095.</p> <p>(Syllabus by the Court.)</p>

Sommerville, Judge. In the matter of the succession of Robert Lee Hoyle. From an order refusing an application for tutorship, the applicant appeals.

<p>Appeal from judicial district court, parish of Bossier; John Thomas Watkins, Judge.</p> <p>Action by J. T. McDade and others against the Bossier levee board. Judgment for plaintiffs. Defendant appeals.</p>

<p>TAX TITLE—SUIT TO QUIET—PILING ANSWER — ASSESSMENT — HOLDERS OP TITLE — TAX SALE—SETTING ASIDE—PRESCRIPTION—CONSTITUTIONAL LAW.</p> <p>1.When suits are brought to quiet tax titles 'under the third section of Act No. 101 of 189S, the answer of defendant, contesting the title, is not too late if filed after the 10 days named but before default. Aliter, as to suits filed under the first section of the act. In such case the contest is required to be presented within six months of the time of service of the notice.</p> <p>2. An assessment of property predicated upon a tax title of record, prima facie valid, is not without legal effect, even though the title itself be void for latent defects. The law prescribes it to be the duty of tax assessor to examine the records in listing properly and to assess same in the name of the holders of the legal or record titles. Nor is the assessor made the judge of the validity of such titles.</p> <p>3. And if the property be sold for the payment of taxes predicated npon such assessment, a valid title may be acquired. It is certainly such a title as the second clause of article 233 of the Constitution intended to protect, after three years, from all assaults except as therein set forth.</p> <p>4. While constructive or civil possession, as contradistinguished from corporeal, may not suffice for the prescription by which the ownership of property is aided or acquired, it is, when there is no actual or corporeal possession by the tax debtor, considered a sufficient foundation to support the inhibition established ,by the Constitution, viz:—that no sale of property for taxes shall he set aside for any cause, except that of dual assessment, or the antecedent payment of taxes, unless the proceeding to annul is instituted within three years of the adoption of the Constitution.</p> <p>5. By article 233 the people of the state, acting through the convention which framed the Constitution, meant to provide a prescription or peremption which would operate to quiet tax titles and thereby settle the ownership of property acquired through them.</p> <p>6. As a statute .of limitation it was intended to have a more far-reaching effect than what Act No. 105 of 1874 has been allowed by the courts to have.</p> <p>7. Nor is it amenable to the charge of authorizing. the taking of property without due process of law.</p> <p>Nieholls, C. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>RECEIVER — APPOINTMENT—APPEAL—DISMISSAL — CORPORATIONS.</p> <p>1. By Act No. 159 of 1898 a party aggrieved by a judgment of court either granting or rejecting an application for the appointment of a receiver may appeal therefrom, provided the appeal 'be taken and perfected within 10 days from the entry of the order. The statute declares that such, appeal is made returnable in 10 days from the date of such order, and shall he tried by- preference in the appellate court. When such appeal has been taken and perfected, it will be sufficient for the appellant to file the record within three judicial days at the first session of the supreme court after the return day, should that court he not in session on the day fixed by the statute for the return day. Section 4, Act No. 45 of 18T0, Bx. Sess.; State v. Hampton, 33 La. Ann. 1257; State y. Butler, 35 La. Ann. 392; State v. Corcoran, 38 La. Ann. 950; State v. Joseph, 3 South. 405, 40 La. Ann. 5.</p> <p>2. When such would, in a particular case, have been the situation of the appeal, it will not be dismissed because in the order of appeal the district court has designated as the return day for the appeal the first day of the next session of the Supreme Court, instead of “ten days from the date of the order.” Appellee would not be misled nor injured by that fact.</p> <p>On the Merits.</p> <p>3. In reference to the application for the appointment of a receiver:</p> <p>A receiver may be appointed at the instance of a majority of the stockholders.</p> <p>Plaintiff does not represent a majority of the stockholders.</p> <p>A receiver may be appointed when the officers and directors are grossly mismanaging the affairs of the company.</p> <p>To the date suit was filed the officers and directors were not grossly mismanaging the affairs of the corporation.</p> <p>The firm is a successful firm. The charge of misapplication of funds is not sustained, an investment having been made in bonds, in which plaintiff acquiesced.</p> <p>4. In reference to the application made in the alternative to have surplus funds of the corporation distributed:</p> <p>The volume of the business annually renders some surplus necessary. Besides, to the date suit was instituted, plaintiff had not objected to the management in such a way as to enable him (as relates to prior act of management) to obtain a distribution of the funds.</p> <p>5. Courts are slow to interfere with the domestic affairs of a corporation, and will interfere only in case of downright wrong, injustice, and injury in the management of the business.</p> <p>(Syllabus by the Court.)</p>

<p>SLANDER — EVIDENCE.</p> <p>1. An action in damages for slander, insult and abuse will not be maintained where it appears to have been a case of mutual interchange of opprobrious epithets — a case of vituperation and abuse on both sides.</p> <p>(Syllabus by the Court.)</p>

<p>EXPROPRIATION OP RIGHT OP WAY — DAMAGES — REVIEW.</p> <p>1.In a case involving the expropriation of a right of way for a railroad, the verdict of the jury will not be disturbed when the only question is as to the value of the property and the amount of the damages, and the testimony is about evenly balanced, and it appears that the jury visited the premises in order to form an idea by their own observation of the locus.</p> <p>(Syllabus by the Court.)</p>

<p>SUSPENSIVE APPEAL — COMPROMISE AND SETTLEMENT-PAROL AGREEMENT — PA- . ROL EVIDENCE.</p> <p>On Motion to Dismiss.</p> <p>1. An order of court granting a suspensive appeal, without any step toward completing the appeal, does .not operate as a suspensive appeal.</p> <p>On the Merits.</p> <p>2. A person who agrees to settlements, and executes notes under circumstances which evidence relinquishment of antecedent claims against the payee, unless the waiver is explained as not including the prior claim, is concluded from recovering upon it.</p> <p>3. Two persons who are, respectively, creditor and debtor one of the other, may extinguish their claims without the necessity, in order to make the settlement and extinguishment binding, of reducing' the agreement to writing.</p> <p>4. There was no agreement to submit claims to arbitration. The parties settled between themselves. Parol evidence to show the settlement was admissible.</p> <p>5. Plaintiff some time after the agreement owned, by letter addressed to defendant, that an exchange had been made, by which he had abandoned or “exchanged” his claim for the claim defendant held against him.</p> <p>(Syllabus by the Court.)</p>

<p>MORTGAGE — PAYMENT—EXTINGUISHMENT.</p> <p>1. W’hen the mortgage is executed to secure a special debt represented by notes, payment of the debt thus represented extinguishes the mortgage, and the subsequent reissue of the note will not revive the mortgage thus extinguished.</p> <p>(Syllabus by the Court.) •</p>

Action by Francois Le Bleu against Frank Savoie. Judgment for defendant was affirmed by the court of appeals, and plaintiff applies for certiorari or writ of review.

<p>CRIMINAL LAW-DEPENDANT AS WITNESS-ATTACK ON CHARACTER — PRIVILEGED COMMUNICATIONS — RAPE — EVIDENCE — COMPLAINTS — CROSS-EXAMINATION — COMPETENCY OP JUROR — CHALLENGE POR CAUSE.</p> <p>1. Where a defendant in a criminal prosecution has taken the stand as a witness in his own behalf, and the prosecuting officer, by way of attacking his credibility, asks, “Have you ever been convicted and sent to the penitentiary from this parish?” the objection that it is incompetent for the state to attack the character of the accused until he has attempted to prove it good is properly overruled, since the question is intended as an attack upon the character of the witness, and not upon the character of the accused.</p> <p>2. Where, in a prosecution for rape, the accused has testified that he was suffering with a specific disease for some weeks before the date of the alleged crime, and the coroner, a physician, acting under the direction of the court, has examined him, as also the prosecutrix, for the purpose of ascertaining whether they were both affected by the same disease, an objection by the defendant to the physician’s testimony, as to the result of such examination, on the grounds that the matter is privileged, and that it is in effect compelling the defendant to give testimony against himself, is properly overruled.</p> <p>3. Where, in a prosecution for rape, the testimony of the prosecutrix and of the sheriff of the parish in which the crime is said to have been committed is offered to show that the former made complaint to the latter when he came to her house on the day following the alleged commission of the crime, that being the first opportunity which had presented itself, the objection that the testimony should be excluded because the complaint was not made sooner is properly overruled.</p> <p>4. Where, in a prosecution for rape, the prosecutrix has testified that she made complaint to persons, vdiom she names, and the persons so named have testified as state witnesses in corroboration, it is error to deny to the defendant the right to bring out, on cross-examination,' the details of the complaints so testified to in chief.</p> <p>5. Where, upon the whole examination, upon his voir dire, of a person summoned as a juror, the most that can be made of it is that he had formed and expressed an opinion upon the merits of the case that would require strong evidence to overcome; that his mind is not in such a condition as to be influenced solely by the evidence to be submitted on the trial, and that it would be influenced to a great extent by the opinion already formed, but that nevertheless he could go into the jury box, and, if the evidence should prove strong enough, disregard such opinion and decide the case upon such evidence — a challenge, for cause, should be sustained.</p> <p>6. Where, in a criminal prosecution, a challenge for cause is improperly overruled, and the defendant’s peremptory challenges are exhausted before the jury is obtained, the accused is prejudiced, and the verdict will be set aside,1 even though it be not shown that any juror objectionable to him was allowed to serve.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from civil district court, parish of Orleans; George H. Théard, Judge.</p> <p>Action by the Barber Asphalt Paving Company against Wm. H. Howcott and others. Judgment for plaintiff, and defendants appeal.</p>

, Appeal from civil district court, parish of Orleans; George H. Théard, Judge. Application by the state, on the relation of A. Brittin, for rule against the city of New Orleans to collect a claim. From a judgment for relator, the board of liquidation of the city appeals.

King, Judge. Action by Peter Johnson and E. J. Dare against the city of New Orleans and others. Rule by defendants requiring plaintiffs to show cause why certain costs should not be taxed. From an order taxing the same, plaintiffs appeal.

<p>Appeal from civil district court, parish •of Orleans; Fred D. King, Judge.</p> <p>Action by Helen Fat jo against Gustave Seidel. From the judgment rendered the plaintiff appeals.</p>

<p>CERTIORARI — WHEN GRANTED — APPEAL FROM MAYOR’S COURT — SUPREME COURT — SUPERVISORY JURISDICTION.</p> <p>1. Defendant was condemned before the may- or’s court to pay a fine. He appealed to the district court. On appeal before the district court, appellee, the town of Jennings, moved to dismiss on the ground that the appeal should have been taken directly to the Supreme Court. The court overruled the motion to dismiss.</p> <p>Appellee, the town of Jennings, seeks to have the preliminary order, overruling the motion to-dismiss, reversed, under the supervisory jurisdiction of the Supreme Court.</p> <p>Held: It will be time enough to invoke the supervisory jurisdiction of this court after the case will have been finally decided, the evidence admitted, and the issue covering the whole case presented.</p> <p>2. Appeals are tried de novo in the district court, i. e., as in a court of original jurisdiction.</p> <p>3. The case may be tried on its merits. It will then be time to decide whether it falls within the provision of article 85 of the Constitution.</p> <p>4. The writ of certiorari ordinarily goes to the inferior court after final action, where there is no appeal. There is a right of appeal. Article 111 of the Constitution.</p> <p>(Syllabus by the Court.)</p>

<p>CORPORATIONS — SERVICE -OF PROCESS.</p> <p>1. Where a corporation domiciled in Mississippi buys goods under a contract made in Mississippi with the representative of a commercial firm located at New Orleans — the goods so bought to be delivered “free on board cars or boat at New Orleans” — and a violation of the contract on part of the company is claimed, shortly after which the president of the company appears in New Orleans and personal service is had upon him there in a suit against the company on account of such violation, such service suffices to bring the corporation into court.</p> <p>(Syllabus by the Court.</p>

<p>CONSTITUTIONAL LAW — VESTED RIGHTS — IMPAIRMENT OF CONTRACTS.</p> <p>1. To give effect to a homestead law as against contractual debts or judicial mortgages already in existence at the time of its adoption, would be to impair the obligation of contracts, and to divest vested rights, within the meaning of the prohibition of the federal Constitution.</p> <p>(Syllabus by the Court.)</p>

Sommerville, Judge. Action by Anna Dale, wife of Anton Hauer, Jr., against Anton Hauer, Jr., for separation from bed and board. Judgment for plaintiff, and defendant appeals.

<p>Appeal from civil district court, parish of Orleans; John St. Paul, Judge.</p> <p>Action by L. K. B. Stork and others against the American Surety Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>PETITORY ACTION — PLEADING—EVIDENCE.</p> <p>1. Where a petitory action is brought by a person suing individually, as heir, and also as administrator of the succession of his mother! but not professing to be acting in the interest of the creditors of the succession, or by atL thority from his coheirs, who, so far as they are known, have accepted the succession, by making an extrajudicial partition of the movable property, and have either refused or failed to authorize the suit, and the action involves an attack upon a title to which the plaintiff’s father, then living in community with his mother, was a party, the plaintiff has no standing in court, save to the extent of his interest as an heir, to recover property as having belonged to such community.</p> <p>2. And where, in such case, the plaintiff alleges that the defendant is in possession, claiming as owner, but discloses no title in himself, he cannot recover.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — DISCRETION OF TRIAL COURT —MURDER—JUSTIFICATION—DELAY — INSTRUCTIONS.</p> <p>1. It is again reiterated that in matters pertaining to delays in criminal causes, such as applications for change of venue, continuances, etc., much reliance is placed upon the discretion of the trial judge, and unless the abuse of such discretion be clearly shown, the decision Will not be interfered with.</p> <p>■2. Here there was no charge of illicit relations actually subsisting between the wife of the accused and the man killed, which had been brought to the knowledge of the husband and on which he, in passion and before cooling time, acted. What was sought to be shown was an alleged indecent proposal to the wife, which, it was claimed, had come to the knowledge of the husband the evening before the homicide. Eeld — even if the charge of indecent proposal were true, to have waited a space of 15 or 18 hours and then sought the man supposed to be guilty and, without a chance to exculpate himself, slay him, is, in the eyes of the law, murder, and testimony tendered to show the alleged indecedent proposal was, under the circumstances, inadmissible.</p> <p>3. The trial judge properly refused to charge the jury that, being the sole judges of the law and the facts, they had the right to ignore the law given to them by the court, should they deem it proper to do so.</p> <p>4. Nor can a court be required to instruct the jury in matters of law upon a point which does not arise in the case.</p> <p>(Syllabus by the Court.)</p>

<p>STREET RAILROADS — COLLISION WITH WAGON —PETITION.</p> <p>1. A personal injury suit, in which an exception of no cause of action was sustained in the district court. The judgment is reversed as erroneous, and the cause remanded for trial on the merits.</p> <p>(Syllabus by the Court.)</p>

<p>TITLE BY PRESCRIPTION.</p> <p>1. Plaintiffs title confirmed under the operation of the prescription fixed in article 233 of the Constitution of 1898.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of I. L. Lyons & Co., for writs of certiorari and prohibition to the judges of the court of appeal.

Certiorari from court of appeals, parish of Orleans. Action by the Goss Printing Press Company against the Daily States Publishing Companj', Limited. Judgment for plaintiff was affirmed by the court of appeals, and defendant applies for certiorari or writ of review'.

Edwards, Judge. Action by J. H. McCormick, receiver, and others, against the Louisiana & Northwestern Eailroad Company and others. Judgment for defendants, and plaintiffs appeal.

Action by Jessie H. Massie against Charles Louque and by Robert M. White, Jessie H. Massie subrogated, against Charles Louque and others. Actions consolidated. Charles O. Buck intervenes. Judgment for plaintiff, and intervener appeals.

<p>Appeal from judicial district court, parish of Plaquemines; Robert Hing'Ie, Judge.</p> <p>Action by Charles C. Buck against Jessie H. Massie. Judgment for defendant, and plaintiff appeals.</p>

King, Judge. Action by Smith Bros. & Co., Limited, against the New Orleans & Northeastern Railroad Company and others. Judgment for plaintiff. Application for rule on the New Orleans & Northeastern Railroad Company by the other defendants to show cause why the subrogation claim of the rights of plaintiff against such company should not be recognized to the extent of one-half of such judgment. Rule granted, and defendant in the rule appeals.

Application by the state, on relation of Henry Knollman and others, against Fred D. King, judge of the civil district court, parish of Orleans, for writs of mandamus and prohibition.

<p>Appeal from judicial district court, parish of St. Helena; Robert R. Reid, Judge.</p> <p>Action by Nicholas J. George and others against Charles J. Cole and others. Judgment for defendants, and plaintiffs appeal.</p>

Application by the state, on the relation of the Item Company, Limited, for writs of mandamus and prohibition to Fred D. King, judge of the civil district court for the parish of Orleans.

Sommerville, Judge. Quo warranto by the state, on the relation of Eugene D. Saunders, against Quitman Kohnke and. others. Judgment for defendants, and relator appeals.

Don Poster, Judge. In the matter of the receivership of the New Iberia Cotton Mill Company, Limited., Rule by Walter M. Gates on the Receiver to file inventory and statement of liability. Rule dismissed, and petitioner Walter M. Gates appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Augusta L. Hernandez against Henry P. Dart and Henry Denis. Judgment for plaintiff, and defendant Dart appeals.</p>

<p>INSURANCE — ACTION ON POLICY — FRAUD OF1 PLAINTIFF.</p> <p>1. The deliberate and fraudulent attempt of the plaintiff to impose upon the defendant insurance company liability for a loss which he has not sustained defeats his right to recover according to the terms of the contract upon which he sues.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by the Southwestern Telephone Company against the Kansas City, Shreveport & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Porter, Judge. Petition by L. P. Sprowl and others against N. M. Lockett and others, for revendication of property under a lost will. Exception of no cause of action, maintaining plaintiffs’ appeal.

W. Ellis, Judge. Action by O. H. Simpson and others against the city of New Orleans and others. Judgment for plaintiffs, and certain defendants appeal.

<p>INTEREST — ACTION FOR TORT — ACCIDENT AT CROSSING — SIGNALS—NECESSARY PRECAUTIONS.</p> <p>1. Interest should ordinarily be allowed on a judgment liquidating the damages in an action for tort from its date, and not from judicial demand.</p> <p>2. Where obstructions (specially those placed there by the railroad company itself) near the lines of railroad tracks mask parties who are at or near or approaching them from the view of engineers or firemen upon trains, it is the duty of the company to see that special precautionary steps be taken to guard against increased danger arising therefrom. This is particularly required and exacted when approaching crossings (either public or private), when there are reasons to believe that there may be persons in exposed positions at or near the track.</p> <p>3. The fact that the happening of an accident could not be averted by the stopping of a train is no excuse why proper signals and warnings from the train to the parties in danger should not have been given.</p> <p>4. Parties in charge of a railroad train do not discharge their whole duty by pursuing the regulation methods of giving notice and warning at a particular time or place where special circumstances call for additional warnings and signals. The precautions to be adopted and the steps to be taken in aid of safety increase as the danger of accident and injury is increased.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by Lylie O. Harris against Judson Harris and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the Board of Control of the New Basin Canal & Shell Road against the H. Weston Lumber Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>INJURY TO EMPLOYS — CONTRIBUTORY NEGLIGENCE — FELLOW SERVANTS.</p> <p>3. Personal injury case, determined on facts. Judgment of district court in favor of plaintiff reversed, and his demand rejected.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mary Glennon and others against Frank Vatter. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Judicial District Court, Parish of Tangipahoa; Robert R. Reid, Judge.</p> <p>J. B. Callahan was indicted for selling liquor without a license, and appeals.</p>

<p>Appeal from Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by George Linkswiler against J. H. Hoffman. Judgment for defendant, and plaintiff appeals.</p>

<p>AGENT — MONEY HAD AND RECEIVED — ACCOUNTING — APPEAL-REMAND—SIMULATED SALE — EVIDENCE.</p> <p>1. The burden is on the agent to show wha t disposition he has made of money which he admits having received for his principal.</p> <p>2. Where the interests of justice seem to require it, cases will be remanded for further trial.</p> <p>3. A sale alleged to be simulated is set aside, the court being satisfied of its simulated character.</p> <p>(Syllabus by the Court.)</p>

<p>INJURY TO EMPL0YÉ — DEFECTIVE APPLIANCES.</p> <p>1. Plaintiff’s minor son, a day laborer, was instantly killed while engaged in the service' of defendant, assisting in the work of placing in position a heavy steam boiler. It is shown that with proper appliances, skill and care the work could have been done in safety. Because of the want of these defendant is held liable.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>. Action by Linus W. Brown against the city of Baton Rouge. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.</p> <p>Action by William G. Smart against Charles A. Bibbins. Judgment for plaintiff, and defendant appeals.</p>

Action by the Southern Development Company against A. V. Dubroca. The New Orleans Pacific Railroad Company was called in warranty. Judgment for plaintiff, and the warrantor appealed to the Court of Appeal, which dismissed the appeal, and it applies for certiorari or writ of review.

Paul, Judge. In the matter of the succession of Eugene May. From a judgment establishing the will, the proponents of nullity appeal.

<p>Appeal from Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by John P. Clausen against John B. Sanders, sheriff, and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Andrew J. Baham against Stewart Bros. & Co. and others. Judgment for defendants, and plaintiff appealed to the Court of Appeal, which modified the judgment, and defendants apply for certiorari or writ of review to the Court of Appeal.

Paul, Judge. In the matter of the succession of Pauline Jacobs. Action by the heirs for the annulment of the will. Judgment for defendants and interveners, and the heirs appeal.

<p>SALE — FAILURE TO DELIVER — DAMAGES.</p> <p>1. When there has been a violation of a contract to deliver lumber of specified grades and stipulated quantity within a time named, the party to whom the delivery was to be made is entitled to recover the- amount of the losses he has sustained and the profits of which he has been deprived.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Oivil District Oourt, Parish of Orleans; Thomas O. W. Ellis, Judge.</p> <p>Action by Anna M.- Lewis and others against D. H. I-Iolmes. Judgment for plaintiffs, and' defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>xlction by Emmanuel Johnson against Marx Levy & Bro. and. others. Judgment for plaintiff, and defendants appeal.</p>

Action by Laura J. Goodwin individually and as guardian against tbe Bodcaw Lumber Company and the Louisiana & Arkansas Railroad Company. Judgment for plaintiff against the lumber company and for defendant railroad. From the judgment the lumber company appeals, and from the judgment in. favor of the railroad company plaintiff appeals.

<p>MUNICIPAL IMPROVEMENTS — CONSTRUCTION OF SIDEWALKS — LIABILITY OF PROPERTY OWNER.</p> <p>1.The issues in this case are similar to those in Kelly v. Chadwick, 29 South. 295, 104 La. 719, and the views there expressed are adhered to.</p> <p>(Syllabus by the Court.)</p>

Action by John M. Graham against the Western Union Telegraph Company. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>SUCCESSION — PARTITION—SALE—PAYMENT OF DEBTS.</p> <p>1. The interests of all parties concerned require that the entire property held in indivisión by the succession of the mother and the heirs of the predeceased father — the same not being susceptible of division in kind — should be sold in order to effect a partition, and thereby enable the administrator of the succession to realize the funds necessary to enable him to pay its debts.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Benjamin Selber against Joseph T. Young, sheriff. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by Sophie Schwartz and others against John Lake. Judgment for defendant, and plaintiffs appeal.</p>

<p>CRIMINAL LAW — APPEAL—REVIEW—NEW TRIAL.</p> <p>1. When, in a criminal case, the district court overrules a motion for a new trial, based upon the allegation that the verdict was not justified by the evidence, its action cannot be reviewed in the Supreme Court.</p> <p>2. Complaints of the charge given by the judge in a criminal case, presented to him for the first time upon a motion for new trial, will not be considered in the Supreme Court.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Poster, Judge.</p> <p>Action by Dominique Miguez against Louis Delcambre and others. Judgment for defendants, and plaintiff appeals.</p>

<p>SUCCESSION — DOMICILE OP DECEDENT-CHANGE — EVIDENCE.</p> <p>1. A change of domicile from another State of the Union to this State is brought about by the act of residing here, combined with the intention of making one’s home here, of renouncing citizenship elsewhere.</p> <p>2. The party who contends for a change of domicile bears the burden of proving it. The domicile of origin continues until another is acquired, animo et faoio. So long as a reasonable doubt remains the presumption is it has not been changed.</p> <p>(Syllabus by the Court.)</p>