Volume 110 — Louisiana Reports

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by Birdie Potts against the Shreveport Belt Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Morgan’s Louisiana & Texas Railroad & Steamship Company against the J. M. Burguieres Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>John I-Ceziah was convicted of murder, and he appeals.</p>

<p>SUCCESSION — UNLAWFULLY TAKING POSSESSION-ACCOUNTING. .</p> <p>1. One who takes possession of the property of a succession without legal authority will bo held to account for the same or for its value.</p> <p>(Syllabus by the Court.)</p>

<p>CARRIERS — INJURY TO PASSENGER — EVIDENCE —CONTRIBUTORY NEGLIGENCE.</p> <p>1. Plaintiff sued for damages caused by her falling from the upper steps of one of defendant’s trains while she was alighting, in the nighttime, from the train.</p> <p>The preponderance of the testimony shows that the car was in motion. She was warned not to alight, and still persisted, although she was told of the danger.</p> <p>It is evident that she was nervous at the time, and acted with impulsiveness; and the court, with the facts shown, did not find it possible to allow damages.</p> <p>2. A lady passenger takes risks who attempts to alight in the nighttime, with a parcel in her hand, when the car is in motion.</p> <p>3. Physical facts of the nature of those pleaded by plaintiff, shown in part by testimony, will not, under the rules of evidence, outweigh the testimony of a number of witnesses to tire contrary of. the theory based upon these physical facts.</p> <p>(Syllabus by the Court.)</p>

<p>COMMUNITY CREDITORS — PRIORITY—DISSOLU TION OP COMMUNITY — TITLE ACQUIRED-MINOR HEIRS — TUTORSHIP—SALE BY SURVIVING SPOUSE — PARAPHERNAL CLAIM — REGISTRATION — TUTOR—DEBTS TO WARD.</p> <p>1. The principle, repeatedly announced, that community creditors are entitled to a priority on community property over separate creditors of the spouses; that no action of the surviving spouse, in his own name or as tutor, and no-act of the heirs, whether of age or not, can deprive the creditor of this right; that the rights of community creditors are paramount to the-right of ownership which the surviving spouse had in the property at the dissolution of the community; and that hence no creditor of the-spouses can acquire any right upon the property except being subordinated to the payment of the community debts — is again affirmed.</p> <p>2. When the community is dissolved by the death of one of the spouses, the survivor and the heirs of the deceased become seised of the-property. They take the title absolutely, and .the title so vested continues in them subject to 'be divested at any time by the creditors. But such title as they may have they may validly alienate, and the third person who acquires such title takes it to the full extent of thetransferror’s interest in it.</p> <p>3. Where minor heirs inherit from their deceased mother a paraphernal claim against the community, and their father qualifies as their tutor, the legal mortgage resulting therefrom in their favor does not absorb their claim as community creditors and alter the character of that claim from one due by the community to-one due by their tutor.</p> <p>4. The rights of community creditors, and the rights of minor heirs against their tutors arising from the tutorship, are absolutely separate, and totally distinct and independent. The former is in the nature of a property right; the-latter is a personal one re-enforced by the security of mortgage.</p> <p>5. The very tenure or character of the interest of the surviving spouse in property incumbered with community debts and charges is concerned in the one case; whereas, in the other, the impression on the property is simply that of mortgage.</p> <p>6. Where the surviving partner in community sells his interest in the community property, and, as natural tutor, subsequently and by authority of a family meeting, conveys by private sale to his vendee the interest of the minor heirs in the property, the latter, when seeking-to subject the portion of the community property coming to their father to the payment of the debt due them by the community, are not estopped from so doing because, in the proceed-tags looking to the sale of their interest in the property, they neither set up as a defense the defeasible character of their father’s interest in the portion of the community property coming 'to him, and which he had previously sold, nor urged their claim as community creditors.</p> <p>Í. As the minors’ rights as community creditors were not and could not be affected by the ■sale of their father’s interest in the property, 'there was hence no legal right vested in them, and therefore no legal duty imposed on them, to put at issue, at the time of the sale of their interest, either their father’s right to sell his interest, or the defeasible character of that interest, or their own claim as community creditors.</p> <p>8. Registry of a wife’s paraphernal claim is ■only necessary to preserve her legal mortgage quoad third persons. After the dissolution of the community by her death, her heirs, to whom the claim has descended, may enforce it against the community as an ordinary community debt.</p> <p>9. The right which a community creditor has to be preferred in the payment of his debt out of the proceeds of the sale of community property, being secured neither by privilege nor by .a mortgage, technically, registry of the claim is not necessary in order to enable the creditor to enforce it against third persons who have acquired rights on the property.’</p> <p>(Syllabus by the Court.)</p> <p>Breaux and Monroe, JJ., dissenting.</p>

<p>DESCENT — FORCED HEIRS — COLLATION — REDUCTION.</p> <p>1. A father, who had been the tutor of an only daughter, and had continued to transact her business after her majority, transferred to her certain properties, in the form of sales, after he had been a widower for nearly 40 years, and was over 70 years of age. He had, just prior to the sales, acknowledged he owed her $6,000. The property was worth about $13,000. He subsequently married, and of this second marriage there was issue, one child. At his death the tutrix of the younger child, alleging that there had been no consideration for the sales, sought to have the property brought into the succession and subjected to collation or to reduction to secure the legitime of the second daughter.</p> <p>Held, that the ownership of the property was vested in' the older child, but that even if, by reason of their form and the circumstances under which the acts of sale were executed, the property should not be subjected to collation, it was held subject to reduction, and to payment in money of the legitime of the younger sister; the older child being entitled, in fixing the amount of the legitime, to have $8,000 deducted as a debt of her father.</p> <p>(Syllabus by the Court.)</p>

<p>AND WIFE — SEPARATE AND COMMTJNITY PROPERTY — RENTS OF PARAPHER-NAL PROPERTY — APPLICATION.</p> <p>1. In order that property purchased by the husband during the community. should become his separate property, he must, in his act of purchase, have made the double declaration:</p> <p>First, that it is bought with the proceeds of a sale of property belonging to himself individually.</p> <p>Second, that the purchase is made for his individual account, for the purpose of replacing the individual property which he had sold (pour servir de remploi). The use of only one of these two declarations is insufficient.</p> <p>2. While it may not be necessary that the sale of the husband’s separate property should be contemporaneous with the purchase of other property to replace it; nor that the purchase should be made with the identical money which he had received from his sale of separate property, it should be made to appear that those funds had not, before being used for the purpose of separate reinvestment, been already used in the purchase of community property. When the use of those funds has once brought about, between the husband and the community, the relation of debtor and creditor, matters must remain in that situation during the community. He cannot, at will, sell property belonging to the community, pay the community debt to himself from its price, and reinvest the same in separate property.</p> <p>3. The community is not entitled to charge the husband with the amount of the civil rents of his paraphernal property which he had applied during his second marriage to the payment of an interest-bearing mortgage debt which existed on the property at the time of his marriage. Oiv. Code, art. 2402.</p> <p>(Syllabus by the Court.)</p>

King, Judge. In. the matter of the succession of Annie Ward. Application by the legal heirs to set aside the will as null. From an order denying the same, plaintiffs appeal.

<p>Appeal from Judicial District Court, Parish of Ascension; Paul Léche, Judge.</p> <p>Action by Pulton Rogers against S. H. St. Martin, sheriff, and others. Judgment for plaintiff, "and defendants appeal.</p>

<p>Appeal from Civil District Court, Barish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Jacob Fink against the city of New Orleans. Judgment for plaintiff, and defendant appeals.</p>

' Appeal from Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge. Action by J. B. Slattery and others against Heilperin & Leonard. The Caddo Levee Board was cited in warrant. Judgment for defendants, and plaintiffs appeal.

W. Ellis, Judge. Action by the state, on the relation of Jules Mqnnier, for a writ of' mandamus to the Board, of Pharmacy. Judgment for relator, and defendant appeals.

<p>ESTOPPEL — TITLE TO CONVEY — ASSUMPTION OP TAXES.</p> <p>1. A party who acquired by purchase from another is estopped to deny that other had a title to convey.</p> <p>2. Where certain parties, in the year 1887, buy at tax sale for the taxes of 1875 a piece of property, and assume payment of the taxes due thereon for 1880 and subsequent years, and several weeks later sell to another the same property, and that other in the act of purchase assumes payment of whatever taxes may be due on the property for 1880 and subsequent years, the party last assuming is in no position to raise the question that his vendors did not pay the assumed taxes and, hence, had no title to convey.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of Thomas W. Bothick. From two judgments rendered in proceedings taken in the succession, Caroline Louise Hodding appeals.

Sommerviile, Judge. In the matter of the succession of Eugene Lalmont and wife. Petition of .Peter C. Mahan, dative tutor, against J. M. Coos and Francis Martin. From a judgment, plaintiff appeals.

<p>HOMICIDE — EVIDENCE OP THREATS — APPEAL-RECORD — STATEMENT OP JUDGE.</p> <p>1. The defendant was charged with having committed a capital crime, tried, and was found guilty as charged.</p> <p>The defendant offered to prove “threats” by the deceased, and their communication to the defendant, and dangerous character of the deceased.</p> <p>The district judge recites as part of the bill of exceptions that there was no overt act proven, uor any effort of any kind shown to carry any threat into execution; that the deceased was standing at the time of the killing, and was not looking at defendant.</p> <p>It is settled by repeated decisions that proof of threats is not admissible, unless proper foundation is laid. No attempt was made to prove that the recital of the district judge incorporated in the bill of exceptions was erroneous.</p> <p>2. It is equally as well settled that the statement of the district judge will be accepted as correct when it is not questioned, and no attempt is made to prove its incorrectness.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mrs. J. Rene Sarrazin and others against Alfred A. Adams & Co. and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>LARCENY — INDICTMENT—APPEAL—REVIEW.</p> <p>1. It is not the province of this Court to determine whether the jury were right or wrong in their determination of the issue of fact presented in the matter of the ownership of the stolen property.</p> <p>2. It is rather as part of the description and to identify the stolen things, that an indictment is required to name the owner. Hence, to lay the title in the ostensible or apparent owner suffices.</p> <p>(Syllabus by the Court.)</p>

L. Dagg, Judge. Action by Adolph Meyer against Hartwig Moss for partition. Judgment for plaintiff. Rule by S. E. Bloch & Bro. on the sheriff to show cause why proceeds of the partition sale should not be paid to them. Action by the Citizens’ National Bank against Hartwig Moss to revive a judgment. The actions were consolidated, and from the judgment defendant in the rule and G. Marcus and husband, interveners, appeal.

<p>RAILROAD AID — SPECIAL ELECTION — OBJECTIONS — POLICE JURIES — PETITION FOR ELECTION-CONDITIONS IN ORDINANCE — TAX—DEFENSES — CONSTRUCTION OF ROAD.</p> <p>1.Parties who have objections to urge against the legality or validity of a special election held, under the provisions of article 270 of the •Constitution of 1898, to authorize the levying of a special tax in aid of the construction of a railroad, must advance the same within the •delay fixed by the law. The statute on that subject is one of repose — a legislative estoppel against objections of that particular character being urged later as grounds of complaint.</p> <p>2. Police juries occupy, in relation to special elections held under article 270 of the Constitution of 1898, a different position from what they do in relation to those held under article 232. In respect to the first, they are the mere instrumentality or agency designated by law to ascertain and enforce the will and consent of the taxpayers. They have nothing to do with the terms and conditions under which the tax is to be imposed.</p> <p>3. Section 2 of Act No. 35, p. 45, of 1886, requires that taxpayers seeking to have ordered a special election under article 270 of the Constitution of 1898 shall designate in their petition praying for the same the railway corporation in whose favor the tax is proposed to be voted, the percentage of the tax to be levied each year, and the number of years, not exceeding 10, during which it shall be levied; also the form of the ballots. The petition in this case did not set out the time at which the work of the construction of the railroad should commence or be completed, nor did the ballots voted upon contain any such stipulation or condition. The law did not require this to .have been done. The petition set out, as did the seventh section of the act, that no tax should be paid until the railroad should be completed and in operation to the point indicated in the petition. The stipulation or, condition in the ordinance of the police jury as to the time at which the work should be commenced and completed was the act of that body, and not that of the taxpayers. It was not voted upon.</p> <p>If the police jury had authority of its own motion to add such a stipulation as to the conditions under which the tax was to be earned, it had also authority, for good cause shown to it, to grant an extension of time. The section of the police jury ordinance on that subject did not make the completion of the road at a given time a condition precedent to the earning of the tax, but made noncompletion a cause for forfeiture or penalty. The tax was voted, not as a mere gratuity, but under an agreement in the nature of a contract. It was to the interest of all parties that the road should be built, and, had a limitation as to the time of completion formed part of the agreement, it might be waived by the parties in interest.</p> <p>4. Where the road in aid of whose construe tion a special tax has been voted is completed and in active operation, taxpayers cannot set up collaterally as a defense to paying their tax that there was a variance between the name of the corporation which constructed the road, as given in the petition of taxpayers, and its name as given in its charter; nor can they urge collaterally that the corporation was not legally constituted. The company was a de facto corporation, and completed the construction of the road — the object sought to be attained — through the tax. Such defenses can be urged only when legal injury would result from the same to the parties complaining. None is shown in this case.</p> <p>'5. Taxpayers complaining of such tardiness in the completion of the construction of the road as, in their judgment, would forfeit the tax, or contending that the police jury was without authority to grant an extension of time, should not haye reserved their objections until after the completion of the road. They should have interposed timely objections, and not waited until they had forcedly gained for all time the advantages of the road, and a restitutio in integrum had become impossible. They are es-topped by their laches. Good faith requires they shall pay.</p> <p>(Syllabus by the Court.)</p>

<p>TAX TITLE — ACTION TO ENFORCE — FRAUD IN PROCUREMENT.</p> <p>1. A tract of land situated partly in Calcasieu parish and partly in St. Landry, and belonging to the succession of Dare, was sold at succession sale in September of 1893 to John H. Haas. The taxes for 1893 were not then exigible. All prior taxes had been paid. In the early part of 1893 the tract was assessed as a whole, for a single valuation, in Calcasieu parish. It was in 1894 offered for sale as a whole at public auction for the taxes of 1893, and, there being no bidders, it was adjudicated to the state. The notices required by article 210 of the constitution of 1879 were not given. The tax sale was a nullity by reason of illegal assessments and adjudication and want of legal notices, but none the less a tax deed was made to the state, and it was recorded in Calcasieu in 1894. The state never took actual possession of the land, nor did it ever cause a writ of seizure of possession to issue, and notices thereof to be given. The returns of this adjudication and others in Calcasieu parish to the state were made to the State Auditor only in December, 1901. The property was not placed in Calcasieu on a separate roll and assessed in the name of the succession of Dare, but it was assessed at once in the name of Haas, and continued to be so assessed to 1902, and he paid regularly all the taxes on it for 1894 and subsequent years.</p> <p>Pitre, the party who took the returns to the Auditor, before doing so — without authority and illegally — made himself a separate valuation for the portion of the lands in Calcasieu, and placed it on the books of the tax collector’s office, and simultaneously procured a certificate from him that all taxes on the property after those of 1893 had been paid. On the faith of this separate valuation, and of the certificate of payment of subsequent taxes, the State Auditor sold him, at private sale, the portion of the property in Calcasieu; the price of the same being based upon a pro rata of the state taxes due in 1893. Pitre then brought suit against Haas, claiming the property, and invoking the three-years prescription provided for in article 233 of the Constitution of 1898. Held, he could not do so; he did not come into court with clean hands. His claim was rejected. Act No. 126, p. 181, of 1896 (Code Prac. art. 19).</p> <p>(Syllabus by the Court.)</p>

Sommerville, Judge. Action by the state and the state tax collector against the Hammond Packing Company. Judgment for defendant, and plaintiffs appeal.

Application by the state, on the relation of Theodore Cotonio, for writs of certiorari and prohibition to A. P. Marmouget, judge of the Second recorder’s court, and others.

<p>Appeal from Judicial District Court, Parish of Webster; John Thomas Watkins, Judge.</p> <p>Action by Mrs. Mary A. Nickerson and others against Allen Bros. & Wadley, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Seventh Justice’s Court, Parish of Sabine; John Graham, Judge.</p> <p>Action by L. V. Gibbs against W. B. Atkins, mayor, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>VENDOR AND PURCHASER — BREACH OP CONTRACT-AUTHORITY OP AGENT — DAMAGES.</p> <p>1. A person desirous of purchasing in entirety the interests of three joint owners of a plantation entered into a correspondence with the husband of one of the joint owners as to the terms upon which he could buy the place. Asserting that in this correspondence the party written to dealt as agent of the joint owners, under a claim of full authority to act in the premises, which was not justified by the fact, and that under this claim of authority and agency he entered into a promise of sale to him of the plantation, which the joint owners refused to carry out, he sued for damages. Held that, under the facts of the case, the demand was not well grounded.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish ■of Iberia; Andrew Thorpe, Judge ad hoc.</p> <p>Action by Mathilde Derouen and others against Octave P. Romero. Judgment for •defendant, and plaintiffs appeal.</p>

<p>Appeal from Judicial District Court, Parish of West Carroll; W. J. Gray, Judge.</p> <p>Action by S. Blum & Co. and others against A. J. Wyly and others. Judgment for defendants,' and plaintiffs appeal.</p>

<p>RAILROADS — DEFECTIVE CROSSING — NEGLIGENCE — EVIDENCE.</p> <p>1. In view of the facts which the court finds established by the evidence in the record, the defendant is in no wise responsible for the injury of which the plaintiff complains.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by L. N. Brunswig & Company against the William S. Merrell Chemical Company. Judgment for plaintiffs, arid defendant appeals.</p>

<p>Appeal from Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by Matilda R. Beasley against John Glassell, Jr. Judgment for defendant, and plaintiff appeals.</p>

<p>TAX SALE — PURCHASE BY STATE — PRESCRIPTION — ESTOPPEL—PAYMENTPRESUMPTION.</p> <p>1. The state, having continued to assess the property to the former owners after buying it at tax sale, and continued to collect taxes from these former owners, is estopped from pleading the prescription of article 233 of the Constitution against these foymer owners; and the same estoppel operates as against the vendee of the state relying for prescription upon the time that elapsed while the tax title was in the state, and the state was thus assessing the property and collecting taxes.</p> <p>2. The testimony of the tax debtor to the effect that he does not remember paying the tax, but that he is satisfied in his own mind he did, because his custom was to pay his taxes promptly, and he finds he paid his city tax of the same year, cannot outweigh the presumption of nonpayment arising from the fact of the property’s having been proceeded against for delinquency.</p> <p>3. Ashley & Co. v. David Bradford et al., S3 South. 6d4, 109 La. 641, distinguished.</p> <p>Breaux and Blanchard, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of Jefferson; Jerome Louis Gaudet, Judge.</p> <p>Action by Julian M. Swoop against C. St. Martin. George Sarpy, intervened. Judgment for defendant and intervener, and plaintiff appeals.</p>

<p>Appeal from Judicial District Court, Parish of Cameron; A. R. Mitchell, Judge ad hoc.</p> <p>Action by Marie L. Duhon against Julian Duhon. Judgment for defendant, and plaintiff appeals.</p>

Action by Urban ICoen against Reinhart Martin. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>DIVORCE — DECREE—EVIDENCE.</p> <p>1. -Where some of the charges contained in the petition are abandoned, and the evidence is insufficient to sustain the others, a decree of separation a mensa et thoro will be denied.</p> <p>(Syllabus by the Court.)</p>

<p>PETITORY ACTION — COMMUNITY PROPERTY-EVIDENCE.</p> <p>1. In a petitory action, plaintiff claimed that two of the titles forming part of her chain of titles were legal, viz., the title bearing date in 1885, under which her author of that date acquired, and the title of 1893, under which her' immediate ancestor in title acquired.</p> <p>The defendants claimed the benefit of the-first title — that of 1885 — and thereby estopped themselves from pleading its invalidity.</p> <p>2. Under the title of 1885, they remained with right to plead the absolute nullity of the-second deed — that of 1893.</p> <p>3. Even under the rule which obtains to some extent in petitory actions, briefly expressed by the words “possideo quia possideo,” a person may compel his adversary to produce another than a title radically null, before ouster can be decreed.</p> <p>4. The property was in the name of the community. In the name of the community the-defendants hold, and can continue to hold until contradictorily with the community (or its legal, representative) a superior right is shown.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Action by Charles H. Teal against George H. McKnight. Judgment for plaintiff, and defendant appeals.</p>

<p>WILLS — CONSTRUCTION—ESTATE DEVISED.</p> <p>1. The testatrix devised to her three grandnieces “my three (3) unimproved lots lying next to the corner of C. & M. streets in the city of Shreveport.” Afterwards she executed ■a document reciting; “To prevent any trouble in regard to my will I wish to state * * * that I do will and bequeath unto my three grandnieces three lots owned by me with all the improvements thereon. These same lots are located on the corner of C. & M. streets in the city of Shreveport.” The testatrix owned two lots, with insignificant improvements upon them, at the corner of the two streets in question, and also another lot at the middle of the block, and separated from the two lots at the corner by an intervening built-up lot. The lot at the middle of the block was an improved lot, which had been her home during the entire time of her married life of 20 years, and of her residence in Shreveport; and she was in the habit of referring to it, both before and after making the will, as her home place, whereas she would refer to her holding at the corner as the lots at the corner, and, after making the will, as the property given to her grandnieces. Under these circumstances, and others indicative of the intention of the testatrix, held that the home place was not meant to be included in the . bequest.</p> <p>2. In case of doubt, that interpretation is preferred which approximates closest the legal order of distribution.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mattie De Priest Weaver against Weaver, her husband. Judgment for plaintiff, and defendant appeals.</p>

<p>Application by the state, on the relation of Shreveport Cotton Oil Company, for writs of mandamus, prohibition, and certiorari to W. F. Blackman, judge.</p>

<p>RES JUDICATA — WHAT CONSTITUTES — SALE-WARRANTY OF TITLE-ESTOPPEL-PRESCRIPTION — PETITORY ACTION.</p> <p>1. The doctrine of the common law courts that res judicata includes not only everything pleaded in a cause, but even that which might have been pleaded, does not obtain generally under our system.</p> <p>2. In Louisiana the doctrine is much more restricted than in common law States. It is of statutory declaration and its scope and extent is defined and limited by the codal provisions of the law.</p> <p>3. The authority of the thing adjudged takes place only with respect to what was the objeet of the demand. The thing demanded must be the same and the demand must he founded on the same cause of action.</p> <p>4. A party who sells certain real property with warranty of title and with a guaranty against debts and claims is not estopped to claim from the vendee rents for the property growing out of his occupation of it prior to his purchase.</p> <p>' 5. A petitory action claiming ownership of property and rents therefor is a continuous interruption of prescription, as to the claim for rents, until the final determination of the cause.</p> <p>6. A possessor in good faith is accouutable for the fruits of the thing possessed from the time the true owner makes demand for restitution.</p> <p>Breaux, J., dissenting.</p> <p>(Syllabus by the Oourt.)</p>

<p>WILLS — DEVISE IN TRUST — BOND FROM USUFRUCTUARY-INTENT OF TESTATOR.</p> <p>1.Where a testament bequeaths the naked •ownership of property to one, and the life •usufruct to another, to relieve the usufructuary from the legal obligation to give bond and security, it must plainly appear from the terms of the will that bond is dispensed with.</p> <p>2. Where a testator institutes his wife as usufructuary and at the same time appoints her executrix without bond, she, as usufructuary, is not dispensed from giving bond.</p> <p>3. If he wished her to be relieved of bond as usufructuary, it was just as easy to say so as it was to say it when he named her executrix.</p> <p>4. While in the interpretation of wills the intention of the testator is to be the guide of courts, such intention must be gathered from the quod dixit. Construction must not be placed upon wills so as to put in the mouth of the testator that which he refrained from saying. We must take, the will as he has written it..</p> <p>(Syllabus by the Court.)</p>

King, Judge. In re Interstate Land Company, Limited. Application to be placed in possession of property sold for taxes. The People’s Homestead Association intervene, and John V. Harris brought injunction. From a judgment Harris appeals.

Action by Nancy Franklin against John A. Sewall. Judgment for defendant was reversed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from Judicial District Court, Parish of Iberia; T. Don Foster, Judge.</p> <p>Action by the Bank of Jeanerette against James H. Stansbury. Judgment for plaintiff. Defendant appeals.</p>

Porter, Judge. Action by the heirs of Rosa Rocques and others against the heirs of J. A. Levecque. Judgment for plaintiffs, and defendants appeal.

<p>CONSTITUTIONAL AMENDMENT — SUBMISSION-PROCEDURE — TITLE TO AMENDMENT.</p> <p>1. The word “read,” employed in articles 39 and 321 of the Constitution of 1898, is to be interpreted according to its received meaning and interpretation by legislative bodies. It has not its usual popular signification.</p> <p>2. It is not essentially necessary, under article 321 of the Constitution, that, prior to the submission of amendments to the Constitution to the people, the proposed amendments should have been read in full three times on three separate days in the respective houses of the General Assembly. The action of the General Assembly in respect to that matter is legislative in character.</p> <p>3. While it is not contemplated that proposed amendments to the Constitution should be preceded by a “title,” there is no legal reason why a title should not be given them for identification and verification for the purposes of legislative action.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; D. B. Gorham, Judge ad hoc.</p> <p>Action by J ames A. Blair and others against William Dwyer and others. From the judgment William Dwyer appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action hy Timothy Pomeroy and others against A. D. McEarlain and others. Judgment for plaintiffs, and certain defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Jeanne M. Dufour and others against Katharina Deresheid. From a judgment for defendant, plaintiffs appeal.</p>

<p>PRESCRIPTION — POSSESSION OF REALTY — SALE PENDENTE LITE — FORCED HEIRS— SIMULATED SALE — CANCELLATION.</p> <p>1.A person who has' been in possession of real-estate as owner, under a just title, translative of property, for 10 years, under the circumstances and conditions required by articles 3478 and 3479 of the Civil Code, is not barred from invoking in his favor the prescription provided for in those articles by the-fact that at the date of his purchase there stood registered on the books of conveyance of the parish where the land was situated the registry of a prior sale of the same property to another person. A fortiori, is he not barred by the registry of a mere “promise of sale.”</p> <p>2. The provisions of article 2453 of the Civil Code, to the effect that the thing claimed as the property of the claimant cannot be alienated pending- the action so as to prejudice his rights, and that, if the judgment be for plaintiff, the sale is considered as the sale of another’s property, and does not prevent him from being put in possession by virtue of such judgment, contemplates the carrying on of the suit to judgment. If the plaintiff, after having made his demand, abandons it, it is after abandonment as if the suit had not been brought. There needed no formal entry of abandonment or discontinuance.</p> <p>3. Act No. 5 of 1884, which grants to forced heirs the right of canceling absolutely and by parol evidence the simulated contracts of those, from whom they inherit, and declares they shall not be restricted to their legitime, establishes a rule of evidence, not a rule of property. It re-</p> <p>. lieves the forced heirs from the restriction which the law had placed upon their ancestor himself as to the character of the evidence which he should be permitted to adduce in support of a claim of simulation.</p> <p>4. Heirs, in claiming the ownership of an undivided half of certain property on the ground that though it was adjudicated in entirety to their mother’s sister, and title taken in her name, this was done under an agreement between the two sisters that each should own an undivided half of the property, do not proceed upon an original right of action opened in their favor upon the death of their mother, and adversely to her, but upon a cause of action derived from and through their mother, and in enforcement of her rights.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>C. Kalone and others were indicted for il-' legal voting at an election. Prom a judgment quashing the information, the state appeals.</p>

<p>CRIMINAL LAW — APPEAL BY STATE-DISMISSAL.</p> <p>1. Appeal by the state in a criminal case from a judgment quashing an information. Appeal dismissed for want of jurisdiction of the Supreme Court ratione materise. See State v. Kalone et al., 34 South. 475, ante, p. 360, decided simultaneously.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Sylvere Prejean against Wogan Bros. Judgment for plaintiff, and defendants appeal.</p>

<p>JURY COMMISSIONER — QUALIFICATIONS — ACCEPTANCE OF OFFICE — JURY — LEGALITY — CRIMINAL LAW — SUBPOENAS FOR DEFENSE-CONTINUANCE.</p> <p>1. The offices of drainage commissioner and jury commissioner are incompatible in the sense that the same man may not, under the law, be a jury commissioner and a drainage commissioner at the same, time.</p> <p>2. "When, therefore, a man, who, by previous appointment, was made a drainage commissioner, accepts a subsequent _ appointment as jury commissioner and qualifies thereunder, he ipso facto vacates the office of drainage commissioner, and having vacated the first office by taking the second, he was competent to serve as jury commissioner.</p> <p>3. Nor does the fact that after his acceptance of the office of jury commissioner he continues to act as drainage commissioner, at the same time performing the duties of jury commissioner, alter the case. He was both de jure and de facto jury commissioner, and that suffices to legalize the juries he participated in drawing.</p> <p>4. Where an accused person, under prosecution for a capital offense in one parish, causes subpoenas to issue to witnesses living, or alleged to be personally in another parish, a reasonable time should be allowed the sheriff of such other parish to make return on the subpoenas sent to him, before the case is called for trial.</p> <p>5. The court is not to take it for granted, or act upon the supposition, before the sheriff of the other parish is heard from, that no such persons as the witnesses asked to be subpoenaed existed, or were in the other parish.</p> <p>, 6. An accused person should not be required to make a showing for a continuance because of the absence of witnesses living or being in another parish until a reasonable timo, at least, had been given to hear from the sheriff of such other parish to whom subpoenas had been sent.</p> <p>7. He is entitled as' matter of strict right, under the law, to this reasonable time to hear from the sheriff of the other parish — due diligence in issuing_ the subpoenas being shown, and nothing appearing to impugn the good faith of the accused in connection with the issuing of subpoenas for the non-resident witnesses.</p> <p>8. Otherwise, the insertion in the fundamental law of the right to compulsory process for obtaining witnesses in his favor were idle.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; D. N. Thompson, Acting Judge.</p> <p>Action by Louisa Sauter and others against the town of Vidalia and others. Judgment for defendants, and plaintiffs appeal.</p>

Aucoin, Judge. H. H. Pearson, Jr., and others were charged with violating the laws relating to the separation of the white and colored races in street cars. A demurrer was sustained, and the state appeals.

<p>CARRIERS — INJURY TO PASSENGER — DEFECTIVE STATION — LIABILITIES.</p> <p>1. Partios embarking on or alighting from railway trains upon the invitation, express or implied, of its officials, are justified in acting upon the assumption that the officials have taken proper precautions to insure their safety.</p> <p>2. Where an accident happens to a passenger by the breaking of one of the railway company’s appliances, the burden is upon it to show affirmatively a condition of things which would exonerate it from liability. A railroad company is bound to know of the effect of time and weather upon its appliances. It should, by proper inspection, and timely changes and renewals, keep them safe.</p> <p>3. Even should a railway company be under no direct obligation to repair or keep in good condition the bridges or streets along its line of way, it should avoid stopping its cars at places where it is not safe for passengers to embark or alight. It should either stop its cars short, or pass them beyond the danger points.</p> <p>4. A railway company which uses as a station for embarking or disembarking its passengers a pavilion constructed upon a street, is liable to a passenger for injuries received from the breaking of a rotten plank in the steps leading to the cars, whether the station was constructed by it or not. It is liable as a licensee.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of John F. Lindner for writ of mandamus against the city of New Orleans. Judgment for relator was affirmed by the Court of Appeal, and defendant brings certiorari or writ of review.

<p>CARRIERS — EXPULSION OE PASSENGER— “SCALPING” ON TRAIN.</p> <p>1. Because a traveler on a railway train has no ticket, that, in itself, furnishes no warrant for putting him off the train. Though he have no ticket the right is his to pay the fare in cash. The demand upon him must be either for a ticket, or for payment of the fare in cash, and if he offer to pay, the railway company ejects him at its peril.</p> <p>2. If a person, who is in the employ of a connecting railway company, and because of such employment is permitted to ride free on the trains of the other company, is warned not to traffic in the excursion tickets of the company, and disregarding this warning is detected in “scalping” tickets wlUle on the train, it might possibly furnish justification to the conductor in stopping the train and putting him off, even though he offered to pay the fare.</p> <p>3. But, certainly, a person who “scalps” railway tickets other than on the train cannot be denied transportation over the lines of the railroads in whose tickets he traffics. He is a part of the general public and railway companies, as common carriers, must, ordinarily, permit all who pay the regular fare to travel on their trains.</p> <p>(Syllabus by the Court.)</p>

<p>BOUNDARIES — UNITED STATES SURVEYS — CONTIGUOUS LANDS — SALE PER AVERSIONEM.</p> <p>1. Contiguous lauds set apart as distinct bodies on the maps of the United States surveys may serve as boundaries in a sale per aversionem, though their limits have never been marked, and are ascertainable only by means of the field notes of the surveys. It makes no difference that they happen to belong to the vendor.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Agnes Freudenstein against William Freudenstein. Judgment for plaintiff,, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by B. J. Wolf & Sons against the New Orleans Tailor-Made Pants Company, Limited, and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>ATTACHMENT — INTERVENTION—AMENDMENT OP PLEADING — DISMISSAL.</p> <p>1. While, when the ownership of movable property is claimed at law, the same degree of fullness of pleading and description of property is not demanded as in case of a suit involving ownership of immovable property, yet the party against whom the claim for the movable property is set up is entitled to demand amendment of the pleading so as to give such information as will acquaint him precisely with the nature of the demand he has to meet.</p> <p>3. And when an order of amendment is twice made» by the trial judge, and each time the amendment offered fails 1 to meet the requirements of the order, abundant justification exists for dismissal of the intervention.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First City Court of New Orleans; Philip Joseph Patorno, Judge.</p> <p>Action by the state against N. Rombotis. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by C. B. Richard against O. E. Moore and others. Judgment for defendants, and plaintiff appeals.</p>

<p>STATUTES — RE-ENACTMENT—CONSTRUCTION —TAXATION—EXEMPTIONS.</p> <p>1. Under the rule that where a statute is reenacted in the same words the interpretation placed upon it must he considered as adopted along with it, the exemption from taxation granted by the Constitution to machinery and capita] employed in the manufacture of furniture, agricultural implements, and other articles of wood must be given the same interpretation it had received under the Constitution of 1879, since it was copied word for word from that Constitution; and that interpretation is that weather boarding, ceiling, flooring, molding, and other like lumber products needing to be further manipulated, cut, or trimmed to be fitted into place are not articles of wood within the meaning of the exemption.</p> <p>2. The statutory penalty of 10 per cent, attorney’s fees on the amount of the taxes involved in the suit is allowed.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — APPEAL—TRANSCRIPT — BILL OF EXCEPTIONS — SIGNING — FRAUDULENT PURCHASE — INDICTMENT.</p> <p>1. Where a transcript of appeal in a criminal case, containing unsigned bills of exception, has been filed in this court, the defendant cannot thereafter, in a proceeding to which the state is not made a party, obtain the signature of the judge, and present a new case, predicated upon the bills as thus signed, and as brought up in a supplemental transcript, but of which it does not appear that the prosecuting attorney has any knowledge.</p> <p>2. It is the duty of the counsel for defendant, and not of the clerk of court, to present bills of exception taken on behalf of defendant to the prosecuting officer and to the judge, and to obtain the signature of the latter, either at the time that they are taken, or promptly thereafter.</p> <p>3. An information, under section 2 of Act No. 94, p. 138, of 1890, for buying goods on credit, and selling them out of the usual course of business, with intent to cheat or defraud the seller, need not set forth the name or names of the buyer or buyers of the goods.</p> <p>(Syllabus by the Court.)</p>

<p>.APPEALABLE ORDER — DISSOLUTION OP INJUNCTION — TRESPASS—BOND.</p> <p>On Motion to Dismiss Appeal.</p> <p>1. It being unnecessary to determine whether the judgment dissolving the injunction sued out in the case is interlocutory in character or not, no decision on that point is made, but it is held that a judgment dissolving an injunction taken against acts of trespass on real property, even if interlocutory in character, is appealable. In contemplation of law the injury is irreparable.</p> <p>2. An owner of an undivided half interest in timber lands has no right to cut the timber on the land without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, for the act is in the nature of a trespass, and such injunction is not. one that may be dissolved on bond.</p> <p>3. Nor is this affected by the fact that in his petition for injunction the claimant part owner may, assert the land and the timber thereon to be of - such value — naming the amount. An allegation of value was necessary to determine the proper jurisdiction on appeal.</p> <p>On the Merits.</p> <p>4. Unless the defect in proceedings for injunction be radical (as for instance where the judge failed to fix any amount for the injunction bond) an injunction will not be dissolved if it appear from the record there exists good cause for-injunction. This is a well-settled rule.</p> <p>5. Where an injunction bond is made payable to the clerk of court instead of to the defendant in injunction, and a motion is made to dissolve on this ground, the trial court, satisfied that plaintiff would be immediately entitled to another order of injunction, should have regarded the defect in the bond rather as an informality than a radical defect, and made an order for a new bond to be given and new writs of injunction to be served, rather than have dissolved the injunction outright.</p> <p>(Syllabus by the Court.)</p>

Action by C. S. Heideman against Mrs. J. Sequin. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>CORPORATION — CHANGE OF CORPORATE NAME —SALE OF REALTY — VALIDITY.</p> <p>1. A corporation was organized in the year 1853 under the name of “Orphans’ Home,” for a stated number of years.</p> <p>2. Just prior to the expiration of the time for which it was organized it obtained, by amendment of its charter, another lease of life, and added the word “Prptestant,” so that it continued in the exercise of its functions as at first organized under the name of the “Protestant Orphans’ Home.”</p> <p>3. It bought land; afterward sold it to the plaintiff.</p> <p>4. In addition, all the members of the organization at the date of the sale signed the deed of sale to plaintiff. They transferred a complete title to him, which he accepted in good faith. The society had owned the property, at the date of the sale, more than 30 years.</p> <p>5. The members of the original association, which continued by amendment of its charter under the name of “Protestant Orphans’ Home,” sought to specially transfer the property from the “Orphans’ Home” to the “Protestant Orphans’ Home,” a useless formality, as it remained the property of the “Orphans’ Home,” known after the amendment of the charter as the “Protestant Orphans’ Home.”</p> <p>Held, the title is valid, and one which the plaintiff can be compelled to accept.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; E. B. Talbot, Judge.</p> <p>Action by Sitgreaves Adams and others against Gustave Drews and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>UNDERTUTOR — APPOINTMENT—TUTOR AD HOC —NATURAL TUTRIX — FORFEITURE OF OFFICE.</p> <p>1. An undertutor may be appointed, though there be a vacancy in the office of tutor, and, when so appointed, cannot be removed without cause, or upon charges which are not sustained.</p> <p>2. Where there is an undertutor competent to act, under the direction of the court, the appointment of a tutor ad hoc to take proceedings looking to the appointment of a tutor, upon the assumption that there is a vacancy in the tutorship, is unauthorized.</p> <p>3. The natural tutrix, who, in contemplation of a second marriage, causes a family meeting to be convened for the purpose of deciding whether she shall retain the tutorship, does not ipso facto forfeit her office by failing to have the proceedings of such family meeting homologated, or by failing to have the evidence of the minor’s mortgage recorded against the prospective co-tutor, before the celebration of the marriage.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by Lyon Bros. & Co. against Stern,. Kenney & B'oze, Limited, and others. From a judgment of the Court of Appeal affirming a judgment of the district court, plaintiffs apply for certiorari or writ of review.

<p>Application by the state, on the relation of M. L. Swords, sheriff and tax collector, and another, for writs of mandamus and certiorari to Henry E. Estorge, clerk of the Sixteenth Judicial District court, of St. Landry.</p>

<p>NOTE — PAYMENT—WHAT CONSTITUTES-CHECK —MISTAKE.</p> <p>1. A party holding the note of a corporation surrendered the same to its secretary and treasurer on receiving from him a check for a corresponding amount, payable to the creditor’s order, drawn by a stockholder in the corporation and one of its directors. The secretary and treasurer not mentioning that he was acting as the agent of the drawer of the check, and for the purpose oí buying the note, the creditor was justified in supposing the check was given in payment of the note, and not for its purchase. On the faith of such belief, he turned over later to the corporation officers funds of the corporation in his hands more than sufficient to pay the note. Under such circumstances the note was paid, not bought, and the drawer of the check could not recover back the amount as a payment made in error. Oiv. Code, art. 2310.</p> <p>2. If, by error or ignorance, one has done himself a prejudice which cannot be repaired without breaking in upon the right of another-, the error cannot be corrected to the prejudice of the latter.</p> <p>(Syllabus by the Court.)</p>

<p>VENDOR AND PURCHASER — SUFFICIENCY OF TITLE — DONATION—SUBSEQUENT MARRIAGE —SUSPENSIVE APPEAL — BOND—RIGHT OF-APPEAL — DISMISSAL.</p> <p> On Motion to Dismiss Appeal. </p> <p>1. Where, in an order granting a suspensive appeal, a sum is named as the amount for which the suspensive appeal bond is to be given, and this sum equals the amount which the law requires for a suspensive appeal, and the bond is given for such sum, the fact of such amount having been written in the order furnishes no sufficient reason for dismissing the appeal.</p> <p>2. No right of appeal from a judgment, whether interlocutory or final, accrues until the motion for new trial filed is acted on and denied.</p> <p>3. AVith respect to another ground urged for dismissal of the appeal, the Court reiterates its reluctance to dispose of the rights of parties upon questions of law raised in limine on motion to dismiss appeals, and, following precedent, defers action on the motion to dismiss on the ground alluded to until the case is examined on the merits.</p> <p> On the Merits. </p> <p>4. One refusing to accept title after written agreement to buy must point out some substantial, threatening danger; not a mere remote possibility.</p> <p>5. AVhen an unmarried person of full age and otherwise capable of contracting makes a donation of real property to another, and, later, marries and children are born of the marriage, such children, after the donor’s death, have no-recourse upon the property so donated on the plea of the impairment, by the donation, of their legitime as forced heirs.</p> <p>6. AUter, if the donation were made subsequent to the marriage from which they sprung and their legitime were impaired by it.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Judicial District Court, Parish of Sabine; John Bachman Lee, Judge.</p> <p>Action by Frederick A. Hornbeek against Alexander Gilmer. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>John Riggs was convicted of murder and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St Paul, Judge.</p> <p>Action by C. N. Maestri against the board of assessors and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the Rocheblave Market Company, Limited, against the city of New Orleans and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the Third District Market Company, Limited, against the board of assessors and others. Judgment for plaintiff. Defendants appeal.</p>

Paul, Judge. Action by the Suburban Market Company, Limited, against the board of assessors and others. Judgment for plaintiff, and defendants appeal.

<p>STREET RAILROADS — INJURY TO PEDESTRIAN —PROXIMATE CAUSE — NEGLIGENCE.</p> <p>1. Action sounding in damages for personal injuries incurred. Facts and circumstances-make out a case of contributory negligence barring plaintiff’s recovery.</p> <p>On Rehearing.</p> <p>2. Finding himself between two street cars-upon a crossing, plaintiff held his ground. A curve in the car tracks began where he stoodCn entering this curve, the car in front of him. developed a lateral motion, and squeezed him against the other car. Although he had lived in New Orleans all his life, and presumably was as familiar as anybody with this crossing, he did not know of this lateral movement, and did not guard against it, which he could easily have done, and had ample opportunity to do, as the cars at one moment were stationary, the-one taking on passengers and the other letting a wagon go by. Under these circumstances, hold, that this unexpected lateral movement of the car and the act of plaintiff in remaining •between the cars were the proximate causes of the accident.</p> <p>3. The car behind plaintiff would have passed on, and would not have been there to act-as a wall for plaintiff to be pressed against, if it had not made an emergency stop to avoid striking plaintiff, who had negligently passed too close ahead of it. Bold, this negligence of plaintiff in passing too close ahead of this car was not a proximate cause of the accident, it being disconnected judicially from the accident by the deliberate act of the plaintiff himself in choosing to remain between the cars and the-deliberate act of the car company in so running its cars upon the crossing as to create a danger by which pedestrians upon the crossing might be overtaken unawares.</p> <p>4. The act of the car company in creating upon one of the most frequented crossings of the city of New Orleans an insidious danger, when it could have avoided doing so by not permitting the ears to pass each other upon the crossing, is held to constitute actionable negligence.</p> <p>Blanchard, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Marion Franklin Machen, Judge.</p> <p>George L. Shields and R. P. Webb were convicted of selling liquor without a license, and Shields appeals.</p>

<p>JUDGMENT — EXECUTION SALE — CLAIMS OP THIRD PARTIES — APPEAL.—REVERSAL—REMAND — FURTHER PROCEEDINGS.</p> <p>1. The property remained in the clerk’s office in the name of one who disclaims ownership, having been paid the amount for which he had the property seized and sold, and of which he had become the adjudicatee at the sale.</p> <p>The payment was made by the father for his own account, or by him for account of his children. If payment was made for account of his children, they are the owners, and the property was not subject to seizure. If, on the other hand, payment was made by plaintiff’s father, and the name of the minors was used as a shield, then the property was the father’s. The testimony did not satisfy the district court that the children had rights such as claimed. On appeal, the court has not found the error urged by appellants.</p> <p>Provosty and Monroe, JJ., dissenting.</p> <p>On Rehearing.</p> <p>2. The court, exercising its discretion to remand causes when the interests of justice require it, sets aside the judgment herein and remands the case.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Robert J. Whann and others against Alfred Hiller and others. Judgment for plaintiffs, and defendant Hiller appeals.</p>

<p>CONTRACT OP SALE — INDIVISIBILITY—BREACH —RIGHTS OP PARTIES.</p> <p>1. The contract ■ for the sale of one entire crop of molasses is indivisible, and, if broken, cannot be dissolved for part, but must be set aside as a whole, or not at all. If, therefore, the vendor diverts part of the crop, this gives rise to an action in damages, but does not release the purchaser from the obligations of the contract, he not asking 'that the contract be set aside as a whole, nor offering to restore that part of the crop already received by him, and to place matters in the situation in which they would have been if the contract had not taken place.</p> <p>2. The purchaser who pays a sound price is entitled to a sound article. The purchaser of an entire crop of molasses to be manufactured is not bound to receive molasses manufactured from frozen cane, classed on the market as unsound goods.</p> <p>(Syllabus by the Court.)</p>

<p>BUILDING CONTRACT — DELAY IN PERFORMANCE-RIGHTS OF OWNER.</p> <p>1. The contract was for a complete dwelling for a stated amount, to be built within a stipulated time. The work, at the appointed time for delivery of the house, had not been done in accordance with stipulations. The house was not complete.</p> <p>2. The defendant had good cause to terminate the contract, and to himself take charge of the building. The contract contained the stipulation that, in case of default on lines mentioned, defendant would have the right to charge for tiie work to complete the building, and deduct the amount from the sum he was to pay for a complete residence. The stipulations of' the contract were followed, and plaintiff was accordingly charged for the work on the house to complete it according to specifications.</p> <p>3. The items for extra work to the extent sustained by sufficient testimony is allowed. •</p> <p>(Syllabus by the Court.)</p>

<p>TAXATION — SALE—ACTION TO ANNUL. .</p> <p>1. Persons who are not the owners, of record or otherwise, of property assessed and sold for taxes, and who have thereafter acquired no title to the same, have no interest or standing to prosecute a suit to annul the sale.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Marcus J. Magruder against Eugene Hornot and others. Judgment for plaintiff, and defendants appeal.</p>

<p>MUTUAL AID ASSOCIATION — CERTIFICATE — MODIFICATION — ACQUIESCENCE— BENEFICIARY.</p> <p>1. A benefit certificate issued by a mutual aid association to one of its members is a contract, which can be changed only by the consent of both parties.</p> <p>2. A clause in such a certificate, by which the person to whom it is issued agrees to comply with all the by-laws of the association now existing or hereafter adopted, cannot be construed as authorizing the association to .reduce the amount stipulated in the certificate to he paid.</p> <p>3. Payment of assessments on the reduced basis will not be construed into acquiescence in, the reduction, when made under protest, and with tender of the full amount that would have been due if the reduction had not been made.</p> <p>4. The beneficiary named in the certificate being designated by name, and also as being the wife of the person to whom the certificate is issued, and this person having had but one wife, this removes any uncertainty that might result from calling the beneficiary “Georgie J. Rayne,” instead of “Georgiana Jackson Rayne.”</p> <p>(Syllabus by the Court.)</p>

Edwards, Judge. E. Brown was indicted for perjury. From a judgment sustaining the plea of autrefois acquit, the state appeals.

B. Talbot, Judge. Action by John W. Austin and others against S. P. and E. B. Schwing. Judgment for plaintiffs for less than amount claimed,, and they appeal.

<p>Certiorari to Court of Appeal, Parish of ■Orleans.</p> <p>Action by Daniel Moriarty against Thomas Bagnetto and others. Judgment for'plaintiff was affirmed by the Court of Appeal, and ■defendant Fitzpatrick appeals.</p>

King, Judge. Action by Bertha Pokorny, wife of Benjamin J. Kamien, and others, against George K. Pratt; Walter T. Carey & Bro. being called in warranty. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Bertha Pokorny, wife of Benjamin J. Kamien, and others, against George K. Pratt. Judgment for defendant and plaintiffs appeal.</p>

- Action by John T. Hardie’s Sons & Co. against Louis E. Sebeen and others. Judgment for plaintiffs was affirmed by the Court of Appeal, and defendants bring certiorari.

<p>Appeal from Civil District Court, Parish of Orleans; Pred D. King, Judge.</p> <p>Action by Harriet Schwartz against the Rosetta Gravel Paving & Improvement Company. Prom a judgment on the accounting of the receiver, Lazarus & Luce appeal.</p>

<p>RAILROADS — ACCIDENT AT CROSSING — RUNNING SWITCH — CONTRIBUTORY NEGLIGENCE.</p> <p>1. Under the circumstances of this case, the-making of what is called a “running switch,” is-held gross negligence.</p> <p>2. While the running switch was the remote cause of the accident, a direct and approximate cause is found in the failure of the brakeman, who was sent to a public and much used street crossing over which the running switch had to-be made, to give the warning he was sent there to give.</p> <p>3. The two together suffice to fix the liability of the defendant, unless contributory negligence of a character to defeat recovering supervenes.</p> <p>4. While a boy of twelve years pf age may b.e guilty of contributory negligence which bars-recovery, he is not to be held to the same degree of care, prudence and circumspection that a full grown person is.</p> <p>5. A case like the present one, where a railroad company is engaged in the performance of a hazardous undertaking without using proper precautions to safe-guard the public, is to be differentiated from one where a person is injured by his failure to observe necessary precautions against the ordinary and usual dangers-to be anticipated at a railroad crossing.</p> <p>Breaux, J., dissenting.</p> <p>(Syllabus by'the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by Mattie Crisman and others against the Shreveport Belt Railway Company and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>CRIMINAL LAW — APPEAL—BILL OP EXCEP- ■ TIONS — RIGHT TO COUNSEL.</p> <p>1. Where the transcript of appeal in a criminal case contains no formal bill of exception, no assignment of errors, and there is no' error patent upon the face of the record, the judgment appealed from will be affirmed.</p> <p>2. If the defendant in such case has been improperly denied the assistance of counsel in the trial court, the fact should be made to appear by motion for new tidal and bill of exception." In the absence of those, and of proof to the contrary, it will be presumed that he was properly represented.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — REVIEW—FINBING OF JURY.</p> <p>1. This case was one sounding in damages for personal injuries. It presents only a question of fact, as to which the jury found unanimously against the plaintiff.</p> <p>2. It is only where error is manifest that this Court will set aside the verdict of a jury, in a case involving exclusively a question of fae.t, after the same has received the sanction and approval of the trial judge.</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 succession of Henry Miller against the Manhattan Life Insurance Company 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 Anna Marks against the Ger-mania Saving Bank. Judgment for plaintiff,. and defendant appeals.</p>

W. Ellis, Judge. In the matter of the succession of Odelia Zies Weber, widow of Jacob Weber. Action by Louisa Casserly against Teresa Seitz and others. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by the Louisiana Sulphur Mining Company against Rudolph Krause and others. Judgment for defendants, and plaintiff appeals.</p>

<p>MARRIED WOMAN — SURETY POR HUSBAND-ADVANCES TO FIRM — VALIDITY.</p> <p>As Relates to Facts.</p> <p>1. The former owner, who died after this appeal, transferred her property to the partner of her husband in a commercial partnership; and he, in turn, mortgaged it ‡0 obtain an advance for'the firm.</p> <p>2. This former owner swore that the method followed was suggested by the creditor, and in this the record contains some corroboration.</p> <p>3. The creditor swore that lie had made no suggestion. Plaintiff claimed that the mortgage was to secure the debt of her husband.</p> <p>As Relates to Law.</p> <p>■4. True, the wife cannot be her husband’s surety. She can be the surety of a partner to secure advances to the partnership, although her husband is a member of the partnership.</p> <p>5. “The partnership was a distinct personality from the individuals who compose it.” Rivers v. City, 8 South. 484, 42 La. Ann. 1201.</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. In the matter of the succession of John J. Gragard. Action by Edward Pierson, administrator, against the Metropolitan Bank. Judgment for plaintiff, and defendant appeals.

<p>INSOLVENT SUCCESSION — BIGHTS OF CREDITORS — WRONGFUL POSSESSION OF ASSETS —PLEA OF COMPENSATION.</p> <p>1. The creditor of an insolvent succession having been condemned to pay to the succession the value of property of the succession, of which he has wrongfully taken possession after the opening of the succession and sold, he cannot plead in compensation an ordinary debt due him by the deceased. Such a case is one of the exceptions established by the Code to the rule of compensation.</p> <p>Nicholls, C. J., and Breaux, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge.</p> <p>Action by Onezephore Robichaux against the Segura Sugar Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>CRIMINAL LAW — ACCUSED AS WITNESS — IMPEACHMENT.</p> <p>1. The accused took the stand to testify as at witness in his own behalf. On cross-examination he was asked by the prosecuting attorney “How many times have you been in trouble?” which question and the answer thereto were-objected to as attacking the character of the accused which had not been put in issue. The-ruling of' the trial judge was that while not admissible to impeach the character of the accused, the question and its answer were proper for the purpose of affecting the accused’s veracity as a witness. Sustained.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — DISMISSAL.</p> <p>1. AVith consent of both plaintiff and defendant, the appeal is dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>PRESCRIPTION — TRESPASS ON LAND.</p> <p>1. Where, in an action, governed by the law as it stood prior to the adoption of Act No. 33, p. 41, of 1902, for damages for trespass upon land, including the cutting and removing of timber, it appears that no timber has been cut or removed and no other trespass committed within the year preceding the institution of the suit, the plea of prescription of one year should be sustained.</p> <p>Blanchard, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by George Walker, tutor, against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>MANDAMUS TO JUDGE — SEVERANCE AT TRIAL.</p> <p>1. As a matter of reason and authority, the determination of the question of severance vel non involves the exercise of a judicial discretion vested in the trial judge, and his action in the premises is not reviewable by mandamus.</p> <p>(Syllabus by the Court.)</p>

<p>RECORDS — PAYMENT OF POLL TAXES — INSPECTION — REGULATION.</p> <p>1. The right to inspect the book iu which, by Act No. 180, p. 344, of 1902, the sheriff is-required to enter the names of all persons who have paid their poll taxes, carries with it the right to make memoranda or copies from the book.</p> <p>2. While the sheriff is entitled to make reasonable rules for the orderly conduct of the ■business of his office, he cannot make a rule which will deny or abridge this right to inspect And make copies.</p> <p>Breaux and Blanchard, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of W. H. Byrnes, syndic, for writs of certiorari and prohibition to W. B. Sommerville, judge of the civil district court for the parish of Orleans, Division D.

<p>INJURY TO RAILROAD EMPLOYE — NEGLIGENCE —JURISDICTION.</p> <p>1. Where injury is caused a person through the fault of a railroad company in the running of one of its trains over its own tracks, which it had placed or left in such a condition as that running a train over them would be likely to result in accidents, the company is guilty of a fault not only of omission but of commission, and the court of the parish where the accident ■occurred has jurisdiction over an action brought by the person injured for the recovery of damages.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert R. Reid, Judge.</p> <p>Action by Payne & Joubert against the Amos Kent Brick & Lumber Company, Lim•ited. Judgment for plaintiffs, and defendants appeal.</p>

In the matter of the succession of J. P. Vance. Application to probate last will and testament. S. F. Vance and others, opponents. From the judgment striking a certain bequest from the will as illegal, Eliza James, legatee, appeals.

Action by Louis Dehon and W. W. Pugh against the Lafourche Basin Levee Board and others. Judgment for defendants. From the judgment, both parties appeal.

<p>Appeal from • Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Irwin Jamison against Charles F. Cullom & Co. and others. Judgment for defendants, and plaintiff appeals.</p>

Separate actions by P. & H. H. Youree, by Mahlen & Vatter, and by Bernstein Bros, against the Vicksburg, Shreveport & Pacific Railroad Company. Judgment for defendant was affirmed by the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Alonzo Patterson against the New Orleans & Carrollton Railroad, Light & Power Company and the New Orleans City Railroad Company. Judgment for plaintiff against the New Orleans City Railroad Company and it appeals.</p>

<p>NATURAL TUTRIX — APPOINTMENT—JURISDICTION — REMARRIAGE—EFFECT—RIGHT TO SUE —INVENTORY—SALE OF MINOR'S PROPERTY — RECOVERY — PETITORY ACTION — JUDGMENT-AMENDMENT.</p> <p>1. The district court for the parish of the mother’s domicile is the proper one to appoint and confirm her as natural tutrix.</p> <p>2. By law, the wife is declared deprived ipso facto of .the natural tutorship by contracting a second marriage without having provoked a family meeting to consider whether she should be retained or not. This is an affirmative pregnant, with the negative that her marriage, after provoking a’ family meeting, does not deprive her of the tutorship, even if the proceedings are not homologated.</p> <p>3. Though at the time the order of court appointing and confirming a mother -as natural tutrix of her minor children, and at the time of her taking the oath as tutrix, no inventory of the minors’ property' had been recorded or taken, her capacity to sue cannot be successfully attacked by the defendant in a petitory action, if at the time of the institution of the suit an inventory of the minors’ property had been taken and recorded, and her status as tutrix has been recognized and acted upon by the district judge of her domicile. Irregularities in the matter of the appointment and confirmation of tutors can be urged by way of defense by third persons only in so far as this may be necessary for the protection of their own rights.</p> <p>4. Where property belonging to minors has been illegally seized and sold as that of another person, the purchaser at such sale, in possession of the same in bad faith, cannot exact, as a condition precedent to the institution of a suit for its recovery, that plaintiff offer to reimburse him the amount he has paid for the property.</p> <p>5. Minors whose property has been illegally seized and sold as that of another person are not forced to attack by direct action the title, of the party in possession. -They may at their risk ignore it as an absolute nullity, and institute a petitory action for its recovery.</p> <p>6. Where a plaintiff and appellee has herself in her petition fixed the time from which she asks judgment for fruits and revenues against the defendant, the Supreme Court will not go back of that date on a prayer for an amendment of judgment made on defendant’s appeal. It will, however, reduce a demand for money expended by defendant for repairs, on its being made to appear that rents received by him prior to the date so fixed by plaintiff were more than sufficient to cover the bill for repairs.</p> <p>7. Where, on the declaration made by the party against whom a petitory action is brought, that ho is a mere lessee, the lessor is brought into the action, the latter is the real defendant. I-Ie is a warrantor only in a qualified sense.</p> <p>(Syllabus by the Court.)</p>

<p>Certiorari to Court of Appeal, First Circuit.</p> <p>Action by S. W. Harkness against the Louisiana & Northwestern Railroad Company. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.</p>

Théard, Judge. Action by M. R. Neuhauser against Jean D. Barthe. Judgment for plaintiff, and Victor Maumus became adjudieatee on sale of property seized. From a judgment canceling the adjudication, plaintiff appeals.

Action by Leon Irwin against Edward J. Flynn. Mary Dreyfus intervened. Judg^ ment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by the Pfytania Street Market Company, Limited, against the city of New Orleans 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 the state against E. Allgeyer & Co. and others to show cause why they should not pay a license as cotton buyers. Judgment for defendants, and the state appeals.</p>

Paul, Judge. Action by Michael Griffin against the drainage commission of New Orleans. The National Contracting Company was called in warranty. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. E. Blackman, Judge.</p> <p>Action by George W. Bennett and others against George A. Staples and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>APPEAL — WHEN LIES — JUDICIAL SEQUESTRATION-DISSOLUTION ON BOND — SUSPENSIVE APPEAL — EXCESSIVE BOND.</p> <p>1. Where a judicial sequestration issued pendente lite has not the effect of changing the possession of property, when its only effect is to preserve the existing status of affairs and of things, and where it is apparent that it works no irreparable injury, being an interlocutory order, no appeal from it lies.</p> <p>2. The judicial sequestration, like the ordinary sequestration, may be dissolved on bond. The bond in such case takes the place of the property and under its obligation the rights of parties in interest are conserved.</p> <p>3. Where it appears that the interlocutory order permitting the judicial sequestration to be set aside on bond is not one the effect of which will be to work irreparable injury to the opposite party, it may not be suspensively appealed from by him.</p> <p>4. Where the evidence on which the District Judge acted in fixing the amount of the release bond is before this Court, and one of the complaints of the relator is the bond is excessive, it is both competent and proper for the Court, under its supervisory powers, to reduce the bond, if it be of the opinion it ought to be reduced, and to fix the amount at a figure deemed reasonable.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by Martin Davie & Co., Limited, against J. M. Carville. Judgment for plaintiff was affirmed by the court of appeals, and' defendant applies for certiorari or writ of review.

<p>APPEAL — JURISDICTION — PARTIES — INTERVENTION — RES JUDICATA — CORPORATIONS — POWERS OF PRESIDENT — VENDOR’S LIEN.</p> <p>1. F. brought suit for a moneyed judgment appealable as to amount to the Court of Appeal, claiming a vendor’s privilege on certain timber, and obtained a sequestration of the same. Defendant denied owing the debt, and that plaintiff was its vendor. T. intervened in the suit, joining defendant, set up ownership of the lumber as acquired from the defendant, and placed its value at an amount within the appellate jurisdiction of the Supreme Court. The district court rendered judgment against the plaintiff in favor of the defendant on the main demand, and in favor of the intervener against the plaintiff. The latter appealed from both judgments — his demand against the defendant, to the Court of Appeal, and that of the intervener to the Supreme Court. The Court of Appeal reversed the judgment on the main demand, and gave judgment in favor of the plaintiff against defendant, as prayed for. Intervener having made himself voluntarily a party to the pending suit, and being such at the time of the judgment, he was taken by the appéal, as an appellee, to the Court of Appeal, and the judgment rendered therein bound him as to the issues raised between the plaintiff and the defendant. The issue between plaintiff and intervener remaining was whether the original rights between the plaintiff and defendant were cut off by subsequently acquired rights of the intervener.</p> <p>2. A suggestion by the intervener that the value given by himself to the lumber was inflated, and the Supreme Court was without jurisdietion as to the judgment upon the intervention, was not entertained. Singer v. McGuire, 4 South. 578, 40 La. Ann. 638: Boggs v. Hays, 11 South. 222, 44 La. Ann. 859.</p> <p>3.The president of corporation cannot sell to himself individually the product of a sawmill, subsequently to be made, belonging to the corporation, to the extent of 3,000,000 feet, so as to cut off for his individual benefit the privilege of the vendor upon -the lumber, of which privilege he, as president of the corporation, had knowledge. Cahill v. Slaughter House, 17 South. 784, 47 La. Ann. 1484.</p> <p>(Syllabus by the Court.)</p>

<p>TRESPASS — LITIGIOUS RIGHTS — PURCHASE-EFFECT.</p> <p>1. A person who enters upon the land of another, and appropriates the timber thereon, under circumstances justifying the conclusion that, if he did not know that he was without right so-to do, it was because he did no-t choose to know it, is a mere trespasser and depredator, and is-liable in damages.</p> <p>2. “A right is said to be litigious whenever there exists a suit and contestation on the same.” This is the controlling definition of the-law of this state upon the subject, and it is applicable as well to the public officers mentioned: in Civ. Code, art. 2447, as to other persons.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Ered D. King, Judge.</p> <p>Action by Paul Capdevielle, mayor of the city of New Orleans, against the New Orleans & San Francisco Railroad. Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>In the matter of the succession of Joseph Wegmann. Rule on dative tutor for an accounting, and the tutor appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by A. Handlin against John C. Dodt and others. Judgment for plaintiff, and both parties appealed. Appeal of plaintiff dismissed.</p>

<p>MUNICIPAL CORPORATIONS — CONTRACTS—VALIDITY — TAXATION—LIGHT AND WATER.</p> <p>1. Contracts whereby municipal corporations make provision in advance for such prime necessities as light and water, and incur obligations therefor, to be met from time to time (as those necessities are furnished) from current revenues, do not fall within the restrictive operation oí R. S. 1876, § 2448, which prohibits such corporations from contracting debts, without providing, in the ordinances by which they are contracted, for their payment.</p> <p>2. So far as shown in this case, there is no special statutory limitation upon the power of the city of Monroe, with respect to the making of contracts for light and water, which renders necessary a stipulation for or the voting of a special tax, and the fact that such tax was agreed .on and voted, for 10 years, in aid of contracts extending over a period of nearly 30 years, does not of itself affect the validity of such contracts quoad the period beyond which the tax was levied, nor does the language of the contracts which are here sued on require such an interpretation. To the extent that the tax is inadequate for that purpose, the obligations of the city must be met in some other way.</p> <p>(Syllabus by the Court.l</p>

<p>Betition by the state, on the relation of Joseph Bachet, against Hon. W. B. Sommerville, Judge, for. writs of certiorari, mandamus, and prohibition.</p>

<p>Application of Harry Williams to be released on bail.</p>

Application by the state, on the relation of Joseph Cavignac, for writs oí certiorari and prohibition, against A. M. Aucoin, judge of the Second Criminal Court for the parish of Orleans, and Terrence Reilley, sheriff.

Application by the state, on the relation of the Honey Island Land & Timber Company, for writs of certiorari, prohibition, and mandamus to Fred D. King, judge.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Bernard Heebe against the New Orleans & Carrollton Railroad, Light & Power Company. Judgment for plaintiff, and defendant appeals.</p>

<p>IRRIGATION CONTRACT — ACTION FOR BREACH —EVIDENCE.</p> <p>1. As the plaintiff has not shown that the loss of which he complains can be properly attributed to the failure of the defendant to comply with any obligation which it owed him, the verdict and judgment which he has obtained are set aside, and his suit is dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>COMPROMISE — VALIDITY—EFFECT.</p> <p>1. Where a party, who had suffered personal 'injuries while in the service of another, seeks that other, and asks for and receives money from him, and signs a receipt acknowledging payment in full for time lost and medical bill incurred on account of the injuries received, disclaiming liability to him on part of the other on any other account, such as that predicated, •or which might be predicated, on allegations of fault or negligence, he cannot afterwards, in the absence of proof of error or fraud super-inducing to the settlement, sue for the recovery of damages.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Maria Labat, widow by first marriage of Victor Lamia, and wife by second marriage of' Christian Redenbaeh. Petition by the heirs of Christian Redenbaeh, annulling the inventory, and decreeing them to be the owners of certain' moneys. From an order denying the same, the petitioners appeal.

<p>Application by the state, on the relation of William P. Conery and others, for writs of mandamus and certiorari to John St. Paul, judge of Division C of the civil district court. Writ of mandamus made peremptory.</p>

<p>LEASE — CONSTRUCTION—ABATEMENT OF PRICE.</p> <p>1. A contract of lease, in which a plantation is designated by name, and the number of acres in cultivation is stated approximately, is not a lease per aversionem, but falls within the rule established by Oiv. Code, arts. 2701, 2494; and, where “the real measure comes short of that expressed in the contract by one-twentieth,” the lessee is entitled to a corresponding abatement in the rent.</p> <p>(Syllabus by the Court.)</p>

<p>ACTION BY ASSOCIATION — EXECUTIVE BOARD —AUTHORITY—CONTRACTS.</p> <p>1. Plaintiff’s suit was properly brought in the name of the association, authorized under its charter to sue; a right it could not divest itself of by attempting to transfer it to an executive board.</p> <p>2. There was no quorum of the executive board present participating and voting' on the proposition to make an exchange of immovable property of the association. The ordinance to that end was not legally adopted.</p> <p>3. The executive board was without authority to transfer the property of the association differently from what the association had decided.</p> <p>4. The executive board was only the agent of the association from which it derived its authority.</p> <p>5. Notice sufficient was given to warn defendant against attempting to transact with the executive board'of plaintiff association.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by D. Y. Gammage against T. C. Mahaft'ey and others. Judgment for defendants, and plaintiff appeals.</p>

<p>INTOXICATING LIQUORS — REGULATION—REWARD — POLICE JURY — POWERS.</p> <p>1.The power to regulate the police of taverns, grog shops, etc., is not confined to the mere adoption of regulations, but extends to the taking of such measures as may be deemed expedient to prevent the violation of the regulations after they are adopted, such as the offering of a reward for evidence on which to convict offenders.</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 H. Abraham & Son and others against the New Orleans Brewing Association and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>INSURANCE — STANPARD POLICY — CONDITIONS —CONSTRUCTION — FORECLOSURE PROCEEDINGS — LOSS—VALUE OF PROPERTY.</p> <p>1. The fire insurance contract known as the “Standard Policy” contains the following clause: “This policy shall he void if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of the insured, takes place in the interest, title or possession of the subject of insurance, whether by legal process or judgment, or by voluntary act of the insured, or otherwise.” Interpreting this clause, held:</p> <p>(a) The word “interest,” as here used, has the same meaning as in the phrase “right, title and interest.” It means a proprietary or insurable interest, not a mere sentimental interest. So long as the insured continues to be the sole and exclusive owner and possessor of the property insured, the condition is not violated.</p> <p>(b) The stipulation, “if notice he given of sale by virtue of any mortgage,” has, reference to extrajudicial enforcement of a mortgage by means of a notice given to the mortgagor, and is inoperative in this state, since that mode of enforcing mortgages is not known to our law.</p> <p>(c) By “commencement of foreclosure proceedings” is meant the institution of judicial proceedings for the enforcement of the mortgage; and waivers of legal delays, and other waivers of a nature to greatly facilitate ■ and expedite the judicial proceedings, if ever begun, do not constitute of themselves the commencement of foreclosure proceedings.</p> <p>2. In determining the value of the insured property, in adjusting the loss under a fire insurance policy, market value is not necessarily to govern, but the aim must be to arrive as near as possible at the value of the insured property as it stood on the day of the fire, taking into consideration what would be the cost of rebuilding, and allowing for difference in value between the buildings new and in the condition in which they were when destroyed.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of Mary Jane Alexander. From a judgment amending the final account of the administrator and allowing certain accounts, the administrator appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Robert M. Cox and others against the heirs of W. O. Lea. Judgment for defendants, and plaintiffs appeal.</p>

<p>CITY TAX — INSCRIPTION OP PRIVILEGE — CANCELLATION.</p> <p>1. The imprescriptibility of a city tax does not preclude the owner of the property from having the inscription of the privilege therefor canceled from the books of the mortgage office, when, by the terms of the Constitution and the law, such privilege has ceased to exist.</p> <p>(Syllabus by the Court.)</p>

<p>Application by tbe state, on tbe relation of Bettie P. Werlein, for writs of certiorari and mandamus against T. O. W. Ellis, judge.</p>

Action by W. A. Pleasants and others against the city of Shreveport and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Leonard Hoffmann against Catherine V. Aekermann and others. Judgment for plaintiff, and Catherine L. Peters, defendant, appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by 'A. Lehmann & Co. against Robert E. Rivers. Judgment for plaintiffs, and defendant appeals.</p>

Aucoin, Judge. Gaston Cueullu was charged with deserting bis wife and child. Demurrer to an affidavit sustained, and accused discharged, and the state appeals.

<p>INSURANCE AGENT — LIABILITY TO COMPANY-UNPAID PREMIUMS — EVIDENCE.</p> <p>1. This case involves only questions of fact.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Seventeenth District Court, Parish of Vermilion; Minos T. Gordy, Jr., Judge.</p> <p>Philbert Menard was convicted of crime, and appeals.</p>