Volume 111 — Louisiana Reports

<p>PRINCIPAL AND AGENT—FUNDS FOR INVESTMENT-INTEREST.</p> <p>1. An agent who causes the party irom whom he has received funds to believe by his representations that they are profitably invested in his hands, and thus led him not to attempt to change the agency or withdraw the funds, cannot, no matter what his motives for the action may be when called on to account, urge that the funds were deposited all the time in bank, and that he was not called on to make investments.</p> <p>2. A person intrusted by the mother of a minor, living with her mother in Germany, with the interests and property of the minor in Louisiana, who deposits confusedly with his own the funds of the minor to his own account in the local hanks, checking against the same at will, obtains a basis for credit therefrom, and is chargeable with interest thereon. Legally considered, he uses the money for his own purposes, though the amount checked out may have left on deposit an amount sufficient to cover the funds belonging to the minor.</p> <p>(Syllabus by the Court.)</p>

<p>SALE—ACTION FOR PRICE.</p> <p>1. Where machinery of the kind and quality •called for by the contract has been delivered, the price is due, though the machinery fails to answer the purpose for which it was purchased.</p> <p>2. Especially is this true where the trouble has arisen from the unsuitability of a part bought separately, and not embraced in the contract.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chrétien, Judge.</p> <p>George Banks was convicted of robbery, and appeals.</p>

<p>SUCCESSION — PARTITION — JURISDICTION — RIGHTS OF ADJUDICATEE—FAMILY MEETING-HOMOLOGATION OF DECISION.</p> <p>1. The proceedings for the partition were regular in form.</p> <p>2. An inventory was taken and experts appointed. A family meeting was held, and recommended the sale of the property as made. The proceedings were homologated.</p> <p>3. There were seven different lots forming the assets of the succession. All the parties in interest deemed to their and the minors’ interest to sell only one lot for a partition, and not to sell all the lots. The court had jurisdiction. The adjudicatee at the sale of the property became the owner of a good and valid title.</p> <p>4. The proceedings as to the adjudicatee were binding. It is no part of the adjudieatee’s concern whether all the property was divided, or the partition only of a part of the property.</p> <p>5. If a family meeting advise a partition of property, and their decision be homologated, it furnishes sufficient authority for the tutor of the minors to provoke a sale for the purpose.</p> <p>6. Majors and minors have parted with the property, the latter through regular proceedings of court. The purchaser must comply with the terms of the sale.</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 Neil Forsman and others against Frank Mace and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge.</p> <p>Dudley Robertson was convicted of burglary, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>In the matter of the succession of Caroline Wintz, widow of Frank Bustillo. On refusal of an application for letters of administration, Fred W. Gras appeals.</p>

<p>CRIMINAL, LAW—TRIAL—REMARKS OF PROSECUTING ATTORNEY—MURDER—EVIDENCE—INSTRUCTIONS.</p> <p>1. The remark, “Yes, it was an injustice to you not to let you testify in French,” made by the state’s attorney to a state witness who had been directed by the court to testify in English, was probably intended by way of sympathy with the witness rather than criticism of the court, but, whether intended in the one way or the other, or in both ways, was not likely to have worked any prejudice to the accused, and affords no ground for setting aside the verdict.</p> <p>2. In a prosecution for murder said to have been committed on a farm of which the accused had charge for the owner, the latter, being on the stand as a witness for the defense, was asked, “What instructions did you, as employer of the accused in charge of your Prairie Farm, give him as to the policing of the place?” and the objection of irrelevancy was made thereto and sustained. This was reversible error; the jury should have been allowed to judge the accused in the light of the quality in which he was acting, as well as of the circumstances by which he was surrounded.</p> <p>3. It appears from the transcript that the counsel for the accused requested the court to instruct the jury “that where A. is charged with the murder of-, and it appears that the deceased died from the effects of a wound several days after he was struck, it is incumbent on the state to prove that the wound from which he died was the same as that inflicted by Halliday.” Assuming the requested charge to have been formulated as it thus appears, the trial judge was justified in refusing to give it as “inapplicable to the facts.”</p> <p>4.In a prosecution for murder it is reversible error to give the following charge, to wit: “That in cases of manslaughter there must be shown to you some provocation justifying the accused to believe that he was in fear of great bodily harm, or that his life was in danger at the moment that he acted. The provocation must arise from overt act or demonstration on the part of the [deceased] which should convince the ordinary person, of ordinary courage, that then and there his life was in danger, or that then and there (?) suffer great bodily harm. If these facts and circumstances do not exist at the moment and time, then the person committing the act resulting in death is guilty of murder, because the provocation justifying him to act does not exist.”</p> <p>The jury might well have assumed from this charge that the accused was guilty of manslaughter, notwithstanding that he had made out a ease of justifiable or excusable homicide.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of Joseph Cavignac, for a writ of certiorari, mandamus, and prohibition to A. M. Aucoin, judge of the Second criminal court of the parish of Orleans.

<p>OBSTRUCTING PUBLIC DRAIN — ACTION FOR DAMAGES—EVIDENCE—INJUNCTION—DAMAGES—DISSOLUTION.</p> <p>1. In an action sounding in damages for the asserted interruption of a public drain into a stream, to the use of which plaintiffs were entitled for drainage purposes, by hauling timber therein, it was not shown that the timber was the proximate cause of the damage.</p> <p>There were two causes alleged: '(1) by plaintiffs, that the timber in the stream caused the damage; (2) the other, alleged by defendants, that it was caused by a storm.</p> <p>Plaintiffs’ field of corn and cane was submerged for a number of days and damages suffered. A number of witnesses testify that the damage was not by the storm, that it was caused by the logs; others, that the damage was not occasioned by the logs in the stream, that it was caused by the storm. The testimony is quite conflicting.</p> <p>Plaintiffs, upon whom was the onus of proof, did not sustain their demand for damages. It is rejected.</p> <p>■2. Two of the defendants against whom the suit was brought were not parties at all in hauling and floating logs. As to them, there is no issue at all.</p> <p>3. As to the remaining defendants, whilst it is evident that they had no right to use the drain without taking proper care of their timber after it had been placed in the stream, which is admitted to be public, they .cannot be held liable; it not being shown that they occasioned a loss or imposed an injury.</p> <p>4. The defendants are not entitled to damages upon the dissolution of the injunction.</p> <p>Plaintiffs acted in good faitli in taking out the injunction. The issues tendered by defendants are not such as to be basis enough for judgment holding plaintiffs liable for damages.</p> <p>5. Defendants claim attorney’s fees for the dissolution of the writ. No motion to dissolve was tried.</p> <p>The writ was dissolved after trial on the merits.</p> <p>Glaim for fees set up by defendants is not allowed.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of the Mount Calvary Methodist Episcopal Church, for writ of prohibition to John St. Paul, judge Division 0, civil district court.

Action hy Henry J. Lawson against the Shreveport Waterworks Company. From a judgment for plaintiff, defendant appeals, and plaintiff, hy answer filed, asks for an increased judgment.

<p>Appeal from Fifth Judicial District:,Court, Parish of Winn; Marion Franklin Machen, Judge.</p> <p>Will Fuller was convicted of robbery, and appeals.</p>

<p>CRIMINAL LAW—APPEAL—REVIEW.</p> <p>1. In a criminal case this court cannot review questions of fact upon which the jury has passed, nor questions of the admissibility of evidence to which objection was not timely made.</p> <p>(Syllabus by the Oourt.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Shelby' Braden was convicted of crime, and appeals.</p>

<p>Appeal from -Eleventh Judicial District Court, Parish of Red River; Charles V. Poster, Judge.</p> <p>John 'Stover was convicted of an illegal sale of liquor, and appeals.</p>

Application by the state, on the relation of John W. Watson, for writs of mandamus, certiorari, and prohibition to T. C. W. Ellis, Judge of Division A of the civil district court.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Simon' J. Reems against Mary M. Dielmann. Judgment for defendant, and plaintiff appeals.</p>

<p>APPEAL—DISMISSAL—POSSESSORY ACTION-DISCLAIMER OP TITLE.</p> <p>1. Unless it be very evident that the appeal should be dismissed on the ground averred, action on the motion to dismiss will be deferred until the case is examined on the merits; and then, if good grounds are shown to dismiss the appeal, it will be dismissed.</p> <p>“Grounds for dismissal may he considered on the merits.’’ Brown v. Land Company, 23 South. 292, 49 La. Ann. 1779; Succession of Fortier,- 26 South. 554, 51 La. Ann. 1562.</p> <p>On the Merits.</p> <p>2. Where a suit Is brought against a succession for the recovery of real estate and for the cancellation of a note executed by plaintiff, and the succession, after asserting title to the real estate, amends its answer, and, disclaiming title, alleges that said real estate had been sold at tax sale to a third person, who had sold to another, who in turn had been put in possession by an order of the court in which said suit is filed, rendered in a proceeding which is made part of said answer and offered in evidence, the disclaimer referred to is an insufficient basis for a judgment in favor of the plaintiff, decreeing him to be the owner of the property, and authorizing the cancellation of the note in question.</p> <p>(Syllabus by the Court.)</p>

O. F. Bordelon was convicted of embezzlement. From an order rejecting his demand to set aside forfeiture of his bond, he appeals.

Mary; Albert Campbell Allen, Judge. Suits by Joseph E. and Denis P. Burguieres and the J. M. Burguieres Company, Limited, against John B. Sanders, sheriff, and others. Suits were consolidated. Judgment for defendants, and plaintiffs appeal.

W. Ellis, Judge. ' In the matter of the succession of Edward Conery. Actiop by Mary H. Conery against William H. Byrnes and others. Edward Conery intervenes. From the judgments the curator of the interdict and the wife of the interdict appeal.

Mary; Albert Campbell Allen, Judge. Application by the state, on the relation of Ozema Ditch and others, for a writ of mandamus to Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment for relator, and defendant appeals.

<p>STATUTES—CONSTRUCTION—TAXATION-EXEMPTIONS.</p> <p>1. When an act that has received judicial interpretation is re-enacted in the same terms, that construction must be considered to have the sanction of the legislative body, unless the-contrary appears.</p> <p>2. The interpretation of the constitutional exemption from taxation as not extending to any other manufacturer of furniture than of wood is adhered to.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Widow Henry Govan against the New Orleans & Carrollton Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chrétien, Judge.</p> <p>Sidney Curtin was convicted of robbery, and appeals.</p>

<p>SALE—ACTION POR PRICE—PARTIES.</p> <p>1. A., president of a bank, and B., having agreed to buy a barge load of staves for their joint account, and B.’s check for the purchase price having been paid by the bank, under the direction of A., and charged to the account of</p> <p>A. & B., and the barge having thereafter been consigned to a dealer in another place by B., who was fully authorized by A. to dispose of it, and the dealer having settled with B. for the price of the staves, the bank has no standing to recover such price from the dealer.</p> <p>(Syllabus by the Court.)</p>

Action by the Railroad Commission of Louisiana against the Kansas City Southern Railway Company. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>PARENT AND CHILD—TORTS OF CHILD—LIABILITY OF FATHER.</p> <p>1. The father of a minor convicted of shooting with “intent to kill” may not be liable (despite the conviction), for the injurious act thereby committed by his minor son, in a civil suit, brought after conviction, to recover damages from him.</p> <p>2. While the father may be liable for the wrongful act of his minor son under article 2318 of the Civil Code, it must be shown, in order to render him liable, that the one who had a difficulty with the son was not himself at fault in the trouble wMch resulted injuriously to the claimant for damages.</p> <p>3. One who avoids the law, makes no complaint to the authorities, who is quick to meet a minor, and the first to resort to insulting words and then to blows, is not in a position to recover damages for injuries which were received in the struggle which ensued.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by James L. Bradford and others against John A. Haas. Judgment for defendant, and plaintiffs appeal.</p>

<p>CRIMINAL LAW — TRIAL — RULINGS ON EVIDENCE—HOMICIDE—THREATS —INSTRUCTIONS.</p> <p>1. Defendant was arraigned and his case fixed for trial on the same day that the indictment against him was returned. The arraignment was made subject to the right reserved to defendant to urge thereafter any objection which greater delay would have afforded him. He did not avail himself of this right, and announced on the day assigned for trial that he was ready. Under the circumstances, he had no ground for complaint.</p> <p>2. A complaint that a witness was permitted to be asked a question is not ground for reversal unless there should be resulting injury shown.</p> <p>3. A witness placed upon the stand to prove that, in a conversation between defendant and the deceased, the former had made a certain threat against the latter, is authorized to testify to the fact of the threat, when he testifies that he heard all the defendant said on the occasion, and all that the deceased said, except one word which he did not catch.</p> <p>4. Where there is nothing in defendant’s bill of exception indicating that there was reason for the application of the maxim, “Palsus in uno,” the court was not called upon to give any instruction to the jury on the subject.</p> <p>5. There was no error in the refusal of the district judge to charge the jury that “if a man, though in no danger of serious harm, through fear, alarm, or cowardice, kill another under the impression that great bodily harm was about to be inflicted upon him, it is neither murder nor manslaughter, but self-defense, although it might appear afterwards that he was mistaken in the impression.” The doctrine asserted is not law. There must be a reasonable cause for apprehension and belief.</p> <p>(Syllabus by the Court.)</p>

<p>-'INJURY TO SERVANT—FELLOW SERVANTS— NEGLIGENCE OF FOREMAN—DEFECTIVE MACHINERY.</p> <p>1. When servants are engaged in different duties in the same establishment, an injury resulting to one by the carelessness or negligence of another, in the course of the latter’s peculiar work, does not fall within the rule which exempts the master from liability by reason of a fellow servant’s negligence.</p> <p>2. To bring a case within the exemption (exemption of the master from liability) this material fact must appear, that the servants engaged, one of whom is injured or killed, must be men in the same common employment and engaged in the same eommon work under that common employment.</p> <p>On Rehearing.</p> <p>3. In this action, sounding in damages, the workman killed in the accident was in no way at fault.</p> <p>4. The foreman knew that the one immediately in charge of the rip-saw, a dangerous machine, was indolent and careless, and therefore close supervision was the more necessary.</p> <p>5. A piece or “guard” had been removed from this machine, and the accident happened thereafter about 12 hours. Careful inspection would have, it is reasonable to presume, enabled the master, or his representative, to discover that it had been removed.</p> <p>6. The superintendent had the power to employ and discharge those under him.</p> <p>7. The ease does not fall under the “fellow-servant” rule.</p> <p>8. The master was not relieved of all responsibility, for the want of supervision and inspection are traced to the foreman or representative.</p> <p>(Syllabus by the Court.)</p>

<p>PERJURY—EVIDENCE — INDICTMENT — CROSS-EXAMINATION—INSTRUCTIONS—ARREST OE JUDGMENT.</p> <p>1. In a case in which perjury was the crime charged, the record of the civil suit wherein it was charged the accused had committed perjury offered for the restricted purpose of showing the jurisdiction of the court to try the case and the materiality of the testimony.</p> <p>2. It must appear on the face of the indictment that the matter sworn to was material, or “there must be an averment charging that it was material, and an express averment of materiality lets in the evidence.” Roseve.</p> <p>3. Evidence not pertinent, nor in answer to any question, a statement in the nature of a preface, which could not injure defendant, is not ground for annulling proceedings.</p> <p>4. A conversation between counsel and his client is not admissible.</p> <p>5. On cross-examination a latitude is allowed to test memory of the witness.</p> <p>6. There is no necessity to have it appear that the accused had been sworn in another case than the one in which he is charged with perjury, before it can be required of him to testify as to what he said as a witness.</p> <p>7. The trial judge cannot be required to reiterate that which he has already said to the jury.</p> <p>8. The court properly charged the jury that the drunken condition of the accused at the time was a question of fact for the jury.</p> <p>9. The fact charged had direct bearing upon the point at issue, and was material.</p> <p>10.An arrest of judgment will only be decreed for illegality or irregularity apparent on the face of the record.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW—EXAMINATION OP WITNESS-EVIDENCE—DISTINCT CRIME—WITNESS —CREDIBILITY—COMPETENCY.</p> <p>1. It is well settled that, where a party is surprised by the unexpected testimony of his witness, he may be permitted to interrogate as to previous declarations inconsistent with the testimony given; the object being to test the recollection of the witness, and lead him, if mistaken, to review what he has said.</p> <p>2. Where, upon the cross-examination of a state witness, the defense elicits new matter prejudicial to the prosecution, the witness may be fully interrogated thereon upon redirect examination.</p> <p>3. Whilst, as a general rule, a distinct crime, unconnected with the one charged i'n the indictment, cannot be given in evidence, exceptions to that rule arise when it becomes necessary to rebut the possible inference of accident, or to prove the intent with which the act charged was committed.</p> <p>4. "Where two witnesses are testifying with regard to the same facts, it is the’ province of the jury, and not of the witnesses respectively, to determine as to which is testifying truthfully.</p> <p>5. Act No. 29, p. 39, of 1886, is the law of this state by which the competency of witnesses in criminal prosecutions is to be determined. It imposes no disqualification on account of lack of information concerning or faith in the existence of a Supremo Being Or a future state of rewards and punishments, and no disqualification outside the statute can be recognized by the courts.</p> <p>(Syllabus by the Court.)</p>

<p>ADMINISTRATION—APPOINTMENT-PREFERENCES.</p> <p>1. Where some of the heirs are- beneficiary, and there are debts, and creditors or heirs of age demand an administration, it should be ordered.</p> <p>2. The beneficiary heir, of age, present or represented in the state, is preferred to the surviving husband or wife. Oiv. Code, arts. 1042, 1121.</p> <p>(Syllabus by the Court.)</p>

Mary; Albert Campbell Allen, Judge. Application by the state, on the relation of William J. Young, for a rule to show cause why mandamus should not issue to John B. Sanders, sheriff. Writ granted, and defendant appeals.

<p>RES JUDICATA—PARTIES TO JUDGMENT—TAX SALE—SUIT TO ANNUL.</p> <p>1. A judgment dismissing a suit brought by mortgagees to annul a tax sale of the property mortgaged does not constitute res judicata as against the owner of the property, who had' acquired from such mortgagees before the tax sale, and who was not a party to the litigation resulting in such judgment.</p> <p>■2. The fact that the legal adviser of the owner of a parcel of real estate appears as amicus curiae in this court, and files a brief in support of an application for rehearing in a litigation concerning the same between the mortgagees and the holder of a tax title, does not make such owner a party to such litigation, or bind him by the judgment therein rendered.</p> <p>3. The allegation that property belonging to eight persons in indivisión has been assessed in the name of one of them with the suffix “et als.” is sufficient to disclose a cause of action in a suit brought by the vendee of such persons to annul a sale for taxes predicated on such assessment, at least as to the interest acquired from the parties not named.</p> <p>(Syllabus by the Court.)</p>

Action by the Louisiana Society for the Prevention of Cruelty to Children against Thomas C. Moody and others. Judgment for defendants was affirmed by the court of appeal. Application by the society for certiorari or writ of review.

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chrétién, Judge.</p> <p>Harry Williams was convicted of shooting with intent to kill, and appeals.</p>

Action by the Neith Lodge, No. 21, I. O. O. F., against E. H. Vordenbaumen. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

Application by the state, on the relation of Theresa Caillouet, for writs of certiorari and prohibition against A. P. Marmouget, recorder of the Second Recorder’s Court, and others.

John St. Paul, Judge. Application by the state, on the relation of Henry C. Perkins, for a writ of mandamus to the recorder of mortgages and others. Judgment for plaintiff, and defendants appeal.

<p>COURTS—JURISDICTION—WAY OF NECESSITY-APPEAL—REVIEW—CERTIORARI—JURISDICTION OF COURT OP APPEAL.</p> <p>1. Plaintiff, whose lands ’ are enclaved by those of defendant, sued defendant for a road, and from an adverse judgment appealed to the Court of Appeal, which gave him judgment for the road, and remanded the ease for fixing the amount to be paid to defendant. Defendant then excepted to the jurisdiction of the district court on two grounds: First, that the police jury alone has jurisdiction of the matter of granting a road such as was asked for; and, second, that the amount in dispute was not fixed by either the pleadings or the evidence, and that consequently the Court of Appeal had been without jurisdiction. The district court overruled the exception, and defendant applied .to the Supreme Court for prohibition to the district judge and the plaintiff. Held, first, that while, possibly, there was no law authorizing the courts to grant the demand of the suit, yet that the demand, if sufficient in amount, was one of which the courts have jurisdiction, and that after final judgment it was too late to inquire into whether or not there was any law justifyiug the action of the court, and especially that the judgment of the Court of Appeal could not be reviewed by means of a writ addressed to the district judge; second, that as the matter was one apparently sufficient in amount to confer jurisdiction, and no exception to jurisdiction was filed, the Court of Appeal was justified in entertaining jurisdiction, and that in such a case it is too late after final judgment to inquire into the question of value. .</p> <p>On Rehearing.</p> <p>2. A judgment of nonsuit was rendered against plaintiff in an action which he had brought asking a right of way over defendant’s property. He appealed to the Court of Appeal. That court reversed the judgment below, and gave judgment for the right of way, and remanded the case to the district court for assessment of damages. On the return of the case, defendant excepted that the judgment of the Court of Appeal wás a nullity, as that court had no jurisdiction of the appeal; that the district court itself has no jurisdiction, as under Act No. 54, p. 88, of 1896, proceedings of that character had to be presented to, and disposed of by, the police jury. No exception of jurisdiction in either court had been made up to that time. The district court overruled the exceptions, but without assigning reasons. Defendant then applied to the Supreme Court for writs of certiorari and prohibition. On a rule to show cause, the district judge returned that it was not admissible for the district court to question the jurisdiction of the Court of Appeal; that the district court itself had original jurisdiction, as Act No. 54, p. 88, of 1896, was unconstitutional.</p> <p>Held, relator could test the validity and legality of the judgment of the Court of Appeal by proceedings by certiorari directed to the Court of Appeal, not by certiorari to the district court. The district court correctly refused to pass upon the question of the jurisdiction of the Court of Appeal. The district court having sustained its own original jurisdiction by declaring the law advanced in bar of that jurisdiction unconstitutional, - the correctness of that ruling should be tested under the appellate, not the supervisory jurisdiction of the Supreme Court. Relator’s right to present the question of the jurisdiction of the district court in a future proceeding is reserved.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermilion; Minos T. Gordy, Jr., Judge.</p> <p>Action by John J. Bagley against the Rose Hill Sugar Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>BUILDING CONTRACT — PERFORMANCE — DEFECTS—BOND—LIABILITY OF SURETY—REPAIR.</p> <p>1. A clause in a building contract stipulated: “That the contractor shall at any time when required by the supervising architect, within one year from and after the completion and acceptance of the work herein contracted, make good any and all latent defects not discernible at the final examination and occupation thereof; such as evidence of the use of improper materials and labor.”</p> <p>2. The building was accepted, and payment made. After two years had elapsed, defects became evident. Defects growing out of the use of bad materials were cured under the conditions of the contract. The building was constructed under the direction of an architect, and under the inspection of a building committee. If there were defects of construction, it was not satisfactorily made to appear that they were such as the surety on the bond could be held for.</p> <p>3. The meaning of articles 2762 and 3545, Civ. Code, will be construed strictly as against the surety on a builder’s bond.</p> <p>4. The liability arises (under just cited articles) should “the building fall to ruin either in whole or in part on account of the badness of the workmanship.” It does not appear that the building was falling to ruin in “whole or in part.” It was a valuable building, which was repaired, and the ruin in “whole or in part,” with no very great, difficulty, avoided.</p> <p>5. After delivery' of the building by the builder and acceptance by the contractor, and the expiration of 12 months stipulated in the contract, the contract could no longer, under the circumstances of the case, be violated actively; but, if there was violation, it was passive, and the parties were entitled to notice. Instead, plaintiff chose to have the building repaired, and then made demand for cost of repair, regardless of the right which the builder had to repair the work if repair was due by him. There is no question of fraud or deception on the part of the builder. The case of plaintiff presents question growing out of the asserted negligence to perform the work.</p> <p>6.A number of architects testified that the plans and specifications were defective. It is not shown by the testimony that defect of construction was to be laid at the door exclusively of the builder. To hold his surety after such length of time, it would be necessary to prove that the principal was liable for the asserted defective construction.</p> <p>(Syllabus by the Court.)</p>

<p>DESCENT AND DISTRIBUTION—FORCED HEIRS —CONVEYANCE IN FRAUD OF—EVIDENCE. -</p> <p>1. Where a father over 70 years of age, of simple tastes and frugal habits, and without debts, transfers a short while before his death all of his property in the form of a sale for a large amount to one of his sons, who has always attended to his business for him, ana matters remain as they were, the father occupying the property and receiving the revenues therefrom, and prior contracts of tenants continuing unchanged, and where at the death of the father the alleged price has disappeared, leaving no trace as to how it had been expended and what had become of it, and the son disavows all knowledge on the subject, it will be presumed that the act did not evidence a real sale, but was resorted to in order to deprive the other children of their legitime. Le Blanc v. Bertant, 16 La. Ann. 298; Cole v. Cole, 2 South. 794, 39 La. Ann. 878.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW—CONTINUANCE—SUFFICIENCY OF MOTION.</p> <p>1. A motion and affidavit for a continuance which do not set forth the names and residences of the witnesses, nor the facts which they are expected to prove, nor their materiality to the case, nor why their presence cannot be had, are fatally defective. 1 Bishop on Grim. Proc. p. 571.</p> <p>2. It is left to the sound discretion of the district judge to determine what time should be allowed counsel for the purpose of preparing the defense, and his ruling will not be revised on appeal unless it is shown that he acted arbitrarily and was guilty of a denial of justice. State v. Wilson, 33 La. Ann. 261.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Seventh Judicial District Court, Parish of West Carroll; W. J. Gray, Judge.</p> <p>Rufus G. Coleman was convicted of murder, and appeals.</p>

<p>HOMICIDE—EVIDENCE—THREATS.</p> <p>1. There must be proof of a hostile demonstration before evidence of threats can be admitted.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Robert G. Westmore and Cecilia W. King against Louisa Harz, widow of Stephen M. Westmore, and others. Judgment for plaintiffs, and defendant Harz appeals.</p>

<p>Application by the state, on the relation of one Johnson, for writ of certiorari and prohibition to B. F. Thompson, mayor of the town of Ruston, and R. B. Dawkins, judge for the judicial district court</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; E. B. Talbot, Judge.</p> <p>Action by Henry D. Dardenne and others against Calvin K. Schwing. Judgment of partition, and one co-owner appeals. Motion to dismiss.</p>

Parish of East Baton Rouge; H. S’. Brunot, Judge. Application by the state, on the relation of Adolph Kaifie, for a writ of mandamus to James M. Smith, Register of the State Land Office, and others. Judgment for defendants, and relator appeals.

Action by George Walker against the parish of Tangipahoa. Judgment for defendant, and plaintiff applies for certiorari or writ of review to the Court of Appeal.

<p>APPEAL — REVIEW — SLANDER — EVIDENCE-INDICTMENT—PRESUMPTIONS.</p> <p>.1. In casos óí slander the findings of the jury will not be disturbed unless clearly erroneous, improper, and not sustained by any correct view of the evidence.</p> <p>2. Slanderous words may be actionable even though they do not consist of an unequivocal and positive assertion concerning another.</p> <p>3. Under article 2315 of the Civil Code, all that is necessary for a person judicially claiming damages to himself from a slander is to allege a condition of things such as would show a “fault” on the part of the defendant, accompanied by a claim of resulting damage -therefrom, and upon the trial of the case to establish the truth of his allegations. Plaintiff may recover compensatory damages, whether there was actual malice or not on the part of the defendant. The question of actual malice arises only when punitive damages are claimed.</p> <p>4. The finding of an indictment against a person gives rise to a presumption of good faith in favor of the person making the charge, and to criminality on the part of the person charged, only for a limited purpose, extent, and time. The presumption of innocence follows the accused until conviction. When the district attorney enters a nolle prosequi, or the jury acquits, such limited presumptions as the indictment gives rise to disappear, and the whole matter is set at large.</p> <p>(Syllabus by the Court.)</p>

<p>HOMICIDE—EVIDENCE —OBJECTIONS — DETENTION OF WITNESSES—TAKING TESTIMONY.</p> <p>1. On the trial of the defendant the testimony of two witnesses, John and Frances Davis, taken by the deputy clerk of the district court, by order of the district judge, under Act No. 124, p. 179, of 1896, was offered, but objected to on the sweeping objection that “the state had not laid the proper foundation for doing so, and it was not shown that Act No. 124, p. 179, of 1896, was complied with because no judicial accusation was ever made against the accused prior to the day on which the testimony was taken, and that all orders to take testimony without an accusation being made against the accused was absolutely null.”</p> <p>The homicide was committed on the night of October 2d. About four hours afterwards he was arrested and taken to the parish jail by a sheriff, who did so without affidavit or warrant, on information received. The deputy sheriff told him he was arrested on a charge of having killed one Robertson. On the 3d of October, a coroner’s jury having found that Robertson had come to his death as the result of gunshot wounds at the hands' of Will Jackson, the coroner ordered verbally the deputy sheriff to commit Will Jackson and the witnesses John and Frances Davis to jail. The latter were committed to jail. Jackson was already in jail.</p> <p>On the 7th of October the witnesses applied to the district judge to have their testimony taken under Act No. 124, p. 179, of 1896, reciting that they were in jail detained under order of the coroner as witnesses to testify in the case of the state against Will Jackson, charged with the murder of John Robertson. The judge on the same day ordered the testimony to be taken, and it was taken on the 11th of October contradictorily with Jackson, after service on him of the application and order. No application was made to the judge to modify his order on any ground. The coroner’s inquest was not marked “Filed” at the date of this order.</p> <p>The district judge by virtue of his office was a committing magistrate.</p> <p>Meld, Act No. 124, p. 179, of 1896, is a remedial statute, and should be interpreted liberally in aid of its object. To construe the words “prosecution pending” as meaning that the witnesses were to be detained in prison until after an indictment should be found would be to defeat its purposes. The words “prosecution pending” evidently meant “accusation pending.”</p> <p>2. The finding of the coroner’s mquest was a sufficient basis as an accusation for the judge of the district court to have ordered the testimony to have been taken. There was no necessity for it to be marked “Filed” before the judge could take cognizance of it. No reversible error was made in allowing the testimony to be taken, and no resulting injury is shown.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by Leopold Weil against the estate of Henry Jacobs. Judgment for plaintiff was affirmed in part by the Court of Appeal, and certain of the parties to such appeal apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Application by the state, on the relation of W. S. Benedict, for a writ of mandamus to the city of New Orleans. Judgment for defendant, and relator appeals.</p>

<p>SIGNATURE—WHAT CONSTITUTES—MARK—ERROR OF NOTARY—RECORD—NOTICE.</p> <p>1. A man unable to write may make his mark. In such case the true signature is his act making his mark, not what the notary wrote as his name. An error in the name does not vitiate the signature.</p> <p>2. Where the notary errs as to the vendor’s name, and writes it “Willie Jones” instead of “Willie Johnson,” and the error is carried into the index to the conveyance records, it cannot have the effect of depriving the vendee of his property. The index is no part of the record. It is simply for the convenience of those examining the records.</p> <p>3. The body of the act gave the true name, “Willie Johnson.” The index gave “Willie Jones.” Defendants, by reading the act, would have learned from its recitals that it was Willie Johnson who appeared before the notary and made the sale, and thus would have been brought home to them sufficient notice to put them on guard, even though the name at the foot of the deed was written thus:</p> <p>his</p> <p>“Willie X Jones.”</p> <p>(Syllabus by the Court.)</p>

Action by Bertha Sutherland against John Legier, Jr. Judgment for plaintiff was affirmed by the Court of Appeal, and the state,, on the relation of John Legier, brings certiorari or writ of review.

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

<p>Appeal from Civil District Court, Parish of Orleans; 'Walter Byers Sommerville, Judge.</p> <p>Action by Prank Sharp against the New Orleans City Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>SLANDER—PRIVILEGED COMMUNICATIONS.</p> <p>1. The wife of a half-brother of a lady who was engaged to be married communicated to the latter’s sister a charge against the lady’s fiancé, which she had heard, which, if true, would have made the marriage one not to be thought of by the family. The communication was made to have the charge brought to the attention of the lady’s mother, then a widow, to the end that she might investigate the matter.</p> <p>2. The communication of the' charge to the sister, under the circumstances it was made, did not give rise to a cause of action. It was protected as a privileged communication. It was not necessary for it to have that character that the party informing the sister of the charge should have had such information on the subject as to have made her believe it was true. She was not responsible for the subsequent, incautious, or improper action of a member of the family in speaking of the charge outside of the family circle and councils.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Edward C. Byrnes against Byrnes’ minors and others. Judgment for defendants, and plaintiff appeals.</p>

<p>CRIMINAL LAW—APPEAL-BILL OF EXCEPTIONS.</p> <p>1. The object of a formal bill is to inform the appellate court of that which is deemed illegal, and the reasons therefor. There being no bill of exceptions in the record, no assignment of errors and motion in arrest, and no prejudicial error apparent, the appeal must be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>ESTOPPEL—HUSBAND AND WIFE—PARAPHERNAL FUNDS—AUTHENTIC ACT.</p> <p>1. Where the affidavit of the wife, to the effect that her husband is in debt to her for paraphernal funds received and used by him, is made and recorded with his knowledge and consent, and is allowed to remain unchallenged on the public records until after the wife dies, and her heirs, upon the petition of the husband, are put in possession of her estate, during which time it is recited in authentic acts, to which the husband is a party, as a valid, subsisting mortgage, the husband is estopped to deny the verity of the claim represented by such affidavit, and cannot be heard to say, as against the heirs of the wife, that it is fictitious and was intended merely to protect his property from the possible pursuit of his creditors.</p> <p>(Syllabus by the Court.)</p>

<p>MARRIED WOMAN—SALE OF PARAPHERNAL PROPERTY—USE OF PROCEEDS—DEBTS OF HUSBAND—SALE OF REALTY—COUNTER LETTER.</p> <p>1. A married woman may, with the authorization of her husband, sell her paraphernal property, and make such use of the proceeds as she thinks proper. The law contemplates that she may turn them over to her husband, and provides a method by which she may secure herself in so doing, and it does not affect the validity of the sale that she announces such purpose in advance.</p> <p>2. The rule thus stated is modified by judicial interpretation of those provisions of the law which deprive the wife of the capacity to bind herself or her property for the debts of her husband, agreeably to which interpretation it is held that transactions having that object in view cannot be sustained, as between the parties thereto, no matter what may be their form; that, m attacking .them, the wife is not estopped by her own admissions or conduct, and, in cases of authentic acts, that she is not confined to counter letters or interrogatories on facts and article, but may resort to parol evidence.</p> <p>3. Where, however, a married woman, duly authorized, executes an instrument in the form of a sale of real estate, and takes a counter letter securing a right to redeem within a year, and it is not alleged or proved that the purpose of the transaction was to obtain money to pay the debts of her husband, and the price was not vile, and the purchaser takes, and, for six years, holds, possession, as owner, in good faith, the fact that the vendor intended to execute a mortgage, and believed that she had done so, affords no ground for holding the transaction to be other than what it purports to be.</p> <p>(Syllabus-by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by M. L. Swords, sheriff and tax collector, against John O. Le Blanc. Judgment for defendant, and plaintiff appeals.</p>

<p>STREET RAILROADS—OPERATION—LEASE OP ROAD—NEGLIGENCE OP LESSEE.</p> <p>1. A railroad corporation, by its very incorporation under the laws of the state, assumes as one of its primary obligations that it shall operate the road under such conditions as to properly secure the safety of the general public.</p> <p>2. It is liable for injuries to persons caused by the wrongful or negligent operation of the cars upon the road, whether operated by itself or by another corporation to which it had leased it.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; Robert Hingle, Judge.</p> <p>Joseph Michel, alias Burns, and Alexander Williams were convicted of crime, and appeal.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary. Albert •Campbell Allen, Judge.</p> <p>Action by Alexis Brian against A. A. Bonvillain and others. Judgment for plaintiff, .and defendants appeal.</p>

Application by the state, on the relation of S. Blum and others, for writs of mandamus and certiorari to I. C. Wells, clerk of court.

<p>INJURY TO EMPLOY®—CONTRIBUTORY NEGLIGENCE—SAKE APPLIANCES.</p> <p>1. The action was one sounding in damages for injuries received in defendant’s oil factory.'</p> <p>2. One in the performance of work under the sanction of his employer is not at fault if the manner resorted to in doing this work is similar-to that frequently followed by other workmen.</p> <p>3. There is an implied promise by the master to make all appliances safe, and to furnish all necessary appliances.</p> <p>4. The “safety collar” on the driving shaft was broken, near which plaintiff undertook to put the belt on the pulley. The weight of the testimony traces the cause of the accident to the broken “safety collar.”</p> <p>5. There was no resting place, as there had been prior to the accident, upon which to stand while pulling the belt on the pulley of the running shaft.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW—TRIAL—TALES JUROR-COMPETENCY OP JURORS — HOMICIDE — DECLARATIONS OP DECEASED—EVIDENCE—QUESTION POR COURT—COMMON LAW—ARGUMENT OP COUNSEL—INSTRUCTIONS.</p> <p>1. The opportunity was given to the defendant to have his witness heard, although he, the witness, was not present when the case was called for trial.</p> <p>2. A deputy sheriff who is not performing any of the duties of the office at the time may be a tales juror, if he does not invoke exemption.</p> <p>3. A member of the general venire for the term may be called in and sworn, although absent when called, if he comes in before the jury is complete.</p> <p>4. A mere suggestion to the district attorney by a juror not to take a person called on the jury, on ground that does not give rise to the least impression of prejudice against the accused, is not ground to declare him incompetent from serving as a juror.</p> <p>5. The ruling of the court permitting expert witnesses to remain in the courtroom during the trial is not ground to set aside the verdict.</p> <p>The rule is largely left to the discretion of the trial judge.</p> <p>6. If the declaration of the deceased is associated with and relates to the homicidal deed (even though separated from it for two minutes) it is admissible.</p> <p>7. The question did not turn upon any refusal of the clerk of court to take down the testimony under the law, which requires him to take down testimony when there is variance regarding the facts between the trial judge and counsel. The clerk did not refuse to take down the testimony. There is no issue in that respect. There is sufficient evidence before the court to clearly present the issue regarding asserted overt act for which defendant contends.</p> <p>Decisions have repeatedly held that it is within the power of the district judge to decide whether there is any evidence at all, or whether there is sufficiency of evidence. State v. Labuzan, 37 La. Ann. 490; State v. Janvier, 37 La. Ann. 644; State v. Spell, 38 La. Ann. 21.</p> <p>8. It has been decided that, where the common law prevails as the rule of decision in a state, the adjudication in regard to a particular matter relating to public policy or morality, “settling a principle in a manner regretted expressly by the English judges, it must be followed even where the question for the first time comes before the state court, whose business it is to enforce the established common-law rule, until the Legislature shall see fit to change it by express enactment.” Wells, Stare Decisis, c. 10, § 1.</p> <p>9. Intemperate utterances of counsel for the state in argument should have been restrained; but they do not present reversible grounds.</p> <p>10. After a case has been argued and submitted to the jury, after the judge has commenced to deliver the charge (no request having been previously made of the judge to reduce his charge to writing), it is too late to interrupt the proceedings and bring on delay to write a charge. The jury at the time the request was made for delay had been locked up three days.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by Mary L. Moore and others against Mary E. Boagni and others. Judgment for plaintiffs, and defendants appeal.</p>

Action by Joseph Strohmeyer and others against the Consumers’ Electric Company and the city of New Orleans. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by city of Shreveport against P. Draiss & Go. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Judicial District Court, Parish of Plaquemines; Robert Hingle, Judge.</p> <p>Action by the Bayou Cook Navigation & Fisheries Company, Limited, against M. P. Doullut and others. Judgment for plaintiff, and certain defendants appeal.</p>

<p>ELECTRIC LIGHT COMPANY—NEGLIGENCE-FALLING WIRE.</p> <p>1. A wire of an electrical company, detached from the poles and lying in the streets of a town, is, of course, out of place, and those having control of it and charged with the legal duty of taking due care of it have the burden of accounting for its being found in that condition and situation (Maus v. Broderick, 25 South. 977, 51 La. Ann. 1153), and to show that it was not due to its negligence.</p> <p>2. It is the absolute duty of an electric light company conveying electricity by overhead wires strung through the streets of a city to keep its wires constantly insulated so as to be prepared to guard against the effect of objects coming in contact with them regardless of the facts and causes which may bring about the contact.</p> <p>3. The facts that a telephone company may have strung its wires above those of the electric light company already in position, and should have_ taken no steps to guard against the coming in contact of the wires of the two companies at the_ crossing points, and that in stringing its wires it did so so negligently and loosely that one of its wires fell, in a storm, upon an uninsulated wire below, causing it to burn and fall on the street, is no excuse to the electric company in not having performed its own duty of additional and special precautions in the premises. A fault on the part of the telephone company did not relieve it from the consequence of its own fault. The falling of the telephone wire on the wire below would have been attended with no disaster but for the uninsulated condition of the latter, and that condition is to be attributed as the proximate cause of the death of the husband and father of the plaintiffs.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Action by W. Martin Evans against the Louisiana Lumber Company, Limited. Judgment for plaintiff!, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the city of New Orleans against Widow Angelo Cotonio. Judgment for plaintiff, and defendant appeals.</p>

Action by Norman E. Thompson against S. W. Vance and others, third opponents. Judgment for plaintiff, and the third opponents appeal.

<p>APPEAL—DISMISSAL—RES JUDICATA—TAX TITLE-CANCELLATION OF TAXES—PRESCRIPTION—ACTION TO ANNUL TAX SALE.</p> <p>On Motion to Dismiss.</p> <p>1. It not appearing that the evidence called for by defendant had been by her offered in evidence, the appeal will not be dismissed on the ground that it had not been copied in the transcript.</p> <p>On the Merits.</p> <p>2. The officers of the tax collecting department had accepted the action of the court canceling the tax as final, and the plaintiff was not iñ a position to buy a claim which, under the court’s action, had no basis upon which to stand.</p> <p>Blanchard and Provosty, JJ., dissenting.</p> <p>On Rehearing.</p> <p>3. The prescription or bar of three years to suits to annul tax sales, provided by article 233 of the Constitution of 1808, does not apply where the property remains in the actual or corporeal possession of the tax debtor or original owner, the purchaser at the tax sale making no effort to dispossess him.</p> <p>4. Under such a state of facts, an action to confirm the tax title under the provisions of Act No. 101, p. 127, of 1808, is not maintainable.</p> <p>(Syllabus by the Court.)</p>

<p>ACTION TO RECOVER REALTY—PRESCRIPTION — PUBLIC LANDS — QUIETING TITLE — TAX DEED—PRESUMPTION OP VALIDITY.</p> <p>1. Defendants’ title to the property claimed by the plaintiff rests upon a tax sale, duly recorded, made by the tax collector for the parish of St. Landry in enforcement of delinquent state taxes for the year 1881, assessed upon it as private property belonging to Anthony Cork-ran, or his- heirs. The property was in the actual possession of the defendants. at the time of the institution of the present suit, on the -day of-, and they and their authors had been in possession for more than 10 years prior thereto.</p> <p>Plaintiff claims that at the date of this tax sale the property belonged to the United States, and so remained until it was segregated from the public domain by patent issued in November, 1897; that the property at the time of the tax sale was not subject to state taxation, and the tax sale was an absolute nullity; that no prescription could run in favor of the purchaser against the government so long as it remained the owner. The patent under which plaintiff claims issued prior to the adoption of the Constitution of 1898, and any party in interest holding under the patent could have attacked defendants’ title from that date. Defendants, having remained in corporeal possession of the property, unmolested, for throe years after the adoption of the Constitution, are free from attack by the prescription of three years provided for in article 233 of the Constitution of 1898. In re Lockhart Praying for Possession, 33 South. 753, 109 La. Ann. 740; Pillow v. Roberts, 13 How. 472, 14 L. Ed. 228.</p> <p>2. On February 10, 1897, Congress passed an act (29 Stat. 517, c. 213) entitled “An act to quiet title and possession with respect to certain unconfirmed and located private land claims in the state of Louisiana,” in which it ■was enacted that all the right, title, and interest of the United States in and to the lands situate in the state of Louisiana known as the located, but unconfirmed, private land claims therein, aggregating 80,000 acres, and specifically described in the list or tabular statement accompanying the report, dated February 19, 1880, made by the Surveyor General of Louisiana to the Commissioner of the General Land Office under a resolution of the United States Senate, of December 2, 1879, and which report and list wore communicated to the Senate by the Secretary of the Interior on March 8, 1880, should be, and were by said act directed to be, granted, released, and relinquished by the United States in fee simple to the respective owners of the equitable titles, and their respective heirs and assigns, forever, as fully and completely in every respect whatever as could be done by patents issued therefor according to law. The eact declared that nothing in it should in any 'manner abridge, divest, impair, injure, or prejudice any valid right, title, or interest of any person or persons in or to any portion or part of the lands mentioned; the true intent of the act being to relinquish and abandon, grant, give, and concede any and all right, interest, and estate, in' law or equity,' which the United States then had or was supposed to be entitled to in said lands, in favor of all persons, estates, firms, or corporations who would be the true and lawful owners of the same under the laws of Louisiana, including the laws of prescription, in the absence of the said interest and estate of the United States.</p> <p>The act directed that the Department of the Interior should cause patents to issue for such lands, and that such patents should issue in the name of the original claimant, as appeared in the list or schedule aforesaid, and, when issued, should be held to be for the use and benefit of the true and lawful owners, as provided therein.</p> <p>This particular tract was included in the list in the name of Anthony Corkran, or his heirs, and a patent issued therefor on the 22d November, 1897; the patent embodying on its face the sections of the act under which it was issued.</p> <p>The effect of the statute was to make the relinquishment or grant made by Congress act retrospectively, or by relation back, in such manner and to such times as to cover and protect any claims or rights of third persons to or upon the property prior to its date, as if it had belonged to Anthony Corkran or his heirs when such rights or claims arose.</p> <p>The property was therefore subject to state taxation as private property when taxed, and must be held to have been such when the tax sale was made; and neither Anthony Corkran, nor his heirs, could claim under and through the United States government an exemption from the operation of prescription, which privilege or right the government itself had waived and renounced. Especially is this so when the heirs of Corkran repudiate the idea that their ancestor had at any time prior to the act any vested right in the property, which, being true, would leave the government perfectly free to convey or grant the land on such terms and conditions, and for the benefit of such persons, as it might think fit.</p> <p>3.The presumption “omnia rite” applies under some circumstances and conditions to tax sales as well as to sales under eviction. When no attack has been made upon them after great lapse of time, where proceedings having for effect the divestiture of title have remained for many years unattacked, and parties have been permitted to remain under them for long periods in quiet possession of property as the true owners, adding to its value by permanent improvements, the want of positive testimony as to certain facts will be frequently supplied by the presumption referred to. The assessment roll •of 1S81 referred to in the tax collector’s deed will be assumed to have been legal and specific, and not insufficient, as suggested by plaintiff, and its nonproduction accounted for by the probability of its loss after so many years.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Action by J. J. Barnidge and wife against Charles M. Kilpatrick. Judgment for defendant, and plaintiffs appeal.</p>

Caillouet, Judge. Application by the state, on the relation of Charles L. Hopkins, for writ of mandamus to Thomas Stark, president School Board of Lafourche. Writ denied, and relator appeals.

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles V. Porter, Judge.</p> <p>Action by Waller & Edmonds against A. P. Cockfield. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the Citizens’ Bank against Robert H. Marr and others. Judgment for defendants, and plaintiff appeals.</p>

Action by the Louisiana Western Railroad Company against the heirs of M. J. Cross-man and others. Judgment for defendants, and plaintiff appeals.

<p>CRIMINAL LAW—APPEAL—RILING TRANSCRIPT —TRIAL—ABSENCE OR COUNSEL—MURDER-EVIDENCE—PRIVILEGE OP WITNESS—CROSS-EXAMINATION.</p> <p>1. Appellant in a criminal ease is entitled to three judicial days beyond the return day within which to file the transcript of appeal. If the return day itself falls on the day the Supreme Court adjourns for its vacation, the filing of the transcript during the vacation is in time.</p> <p>2. Where a criminal case is fixed by consent for a particular day, and subsequent thereto the court stated, on being told by defendant’s senior counsel that he would go to New Orleans, the second day before the day fixed for trial, to argue a case before the Supreme Court, that it would not, for reasons assigned, entertain a motion for a postponement, it was authorized to have the case opened on the day fixed, in the absence of the senior counsel; the junior counsel being present.</p> <p>In the absence of injury alleged and properly shown to have resulted, the court’s action would furnish no ground for complaint.</p> <p>3. Defendant being charged with murder, his counsel asked a state witness on cross-examination whether the party who had been killed had not been indicted for murder, and had broken jail, and was a fugitive from justice at the time he was killed. The court, on objection that the questions were irrelevant, refused to allow them to be answered at that stage of the proceedings, as the defense set up was that defendants had not committed the homicide, not that they had killed the deceased while attempting to arrest him. The court’s ruling was correct.</p> <p>4. Bud Jackson, Ovide Benoist, Steve Gosey, and Richard Blunt were indicted jointly for murder. Gosey escaped, and Jackson and Benoist were placed on trial. Blunt was not. The state closed its case, and the defendants placed Blunt, as their witness, upon the witness stand. Before testifying, his own counsel requested the court to withdraw him from the stand, and allow him to consult with him before doing so. The request was granted, and defendants excepted. Under the circumstances, the request and the granting of the same were reasonable. The presumed object of the interview was to inform the client of his legal rights, not to tamper with the witness as to his testimony, as was suggested. On Blunt’s retaking the stand, defendants’ counsel asked him to state what had passed between himself and his own counsel. The latter objected, claiming privilege. The court sustained the objection, and defendants excepted. The court’s ruling was correct.</p> <p>- Defendants’ counsel then asked the court to permit Blunt to he withdrawn from the stand, and allow them to interview him alone. The court refused to do so, and defendants excepted. The court’s ruling was correct.</p> <p>Defendants’ counsel propounded several questions to Blunt, and turned him over to the state for cross-examination. The state widening the cross-examination beyond matters which had been testified to by the witness in direct examination, defendant Benoist excepted, but the court permitted the cross-examination to be continued. The court erred. The cross-examination was too much broadened. If the state desires to examine a witness upon matters other-than those drawn out upon his direct examination, it must make the witness its own, and call him as such. Defendants’ opportunities for properly defending through cross-examination of the state’s witnesses are much broader than through evidence sought to be adduced by their own witnesses in rebuttal.</p> <p>(Syllabus by the Court.)</p>

<p>WAREHOUSEMAN—STORAGE OF WHEAT—CONTRACT—CONSTRUCTION—NEGLECT OF WAREHOUSEMAN-DAMAGES.</p> <p>1. In October, 1891, the plaintiff obtained from the defendant the right of transferring through the elevator of the railroad company-'s,000 bushels of grain, the defendant agreeing to reserve space for it for the purpose, and to take care of and handle.that quantity of grain in the elevator, under the rules and regulations adopted by it; but this right was granted- under the correlative obligation assumed by the plaintiff that it should keep the quantity of grain contracted -to be received “'constantly on the move.” It was understood and agreed that the elevator was not to be employed as an ordinary storage place or warehouse, but was to be used as incidental to the business of the defendant as a common carrier in aid of the export to Europe by shipping of the grain brought by its road. Defendant received and placed in its elevator a quantity of grain belonging to the plaintiff in transitu to Europe. The grain was graded No. 4 wheat by the New Orleans inspectors, but No. 3 by those at St. Louis. No. 4 wheat was not in demand at that time, and plaintiff, after a consultation with the New Orleans inspectors, to which defendant company was no party, determined to send to the West and purchase No. 2 wheat, which, being mixed with the No. 4, would bring that wheat up to No. 3.</p> <p>Plaintiff met with obstacles in the way of purchasing No. 2 wheat, but finally bought and had brought to New Orleans a quantity of wheat -of that grade. When it reached New Orleans it was found that the grain in the elevator was so weevil-eaten and buggy as to cause it to fall below No. 4 wheat, and to cause it to be designated as "no grade wheat,” which could not be brought up to No. 3 grade by mixing it with the No. 2 which plaintiff had 'brought down. The mixing was abandoned, and the wheat in the ■elevator and that brought down for mixing were shipped to Europe and sold at a loss.</p> <p>Plaintiff received the wheat in the elevator under protest, contending that defendant had failed in its obligations, and was liable to it in damages for its condition. During this period plaintiff made no attempt to ship the wheat which v'as in the elevator. Plaintiff sued the defendant for damages it received by reason of the condition of the wheat in the elevator.</p> <p>Beld: That the plaintiff was itself to blame for the situation. It failed to have the wheat promptly shipped, as was its duty, and while seeking to minimize its own loss it forced upon the defendant the obligations of holding the wheat until late in the season, during which interval it deteriorated and fell below grade in spite of proper care being taken of it. The weevily condition was not traceable to its being in the elevator, but was due to causes antedating its being placed therein, and weevils would doubtless have developed in it had it been promptly placed on ship and forwarded. The loss on plaintiff’s sales was not due to any fault of the defendant. The character of the wheat was not changed while in the cars by reason of being side-tracked in New Orleans. The New Orleans grading is more severe than that at St. Louis.</p> <p>2. While it would have been the duty of the plaintiff, had defendant been liable to it, to have minimized the damages in the premises, it could not throw upon defendant any increase of loss resulting from an injudicious attempt to bring about that result on its part. The defendant had nothing to do with that matter. The New Orleans inspectors were not authorized to act for the defendant by way of advice or otherwise.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. Action by Joseph D. Kiernan against W. L. Jackson, doing business under the names of W. L. Jackson and W. L. Jackson & Co., Bankers. Judgment for plaintiff, and the state, through the Attorney General, files a petition for a suspensive appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the city of New Orleans against Henry Schroeder, Jr. Judgment f<5r plaintiff. Defendant appeals.</p>

Action by A. H. Reéd against J. O. and R. A. Corbin. Judgment for plaintiff was affirmed by the Court of Appeal, and defendants apply for certiorari or writ of review.

Landry; Edward Taylor Lewis, Judge. In the matter of the estate of Addison Dimmick and Levisa Carpenter. Frank . Pulford, as tutor of one of the heirs' filed an opposition. From the judgment, the administrator appeals.

Action by Andrew J. Thomas and others against Joseph P. Blair and Ernest B. Iiruttschnitt, executors of Alexander C. Hutchinson. Judgment for defendants, and plaintiffs and intervener appeal.

<p>CRIMINAL LAW—BILL OF EXCEPTIONS—CONTINUANCE—ABSENCE OF COUNSEL.</p> <p>1. Where a hill of exception is signed by the trial judge with the statement that if any bill was reserved, or if the facts stated in the bill occurred, it had entirely escaped his memory, and there is no evidence aliunde that such bill was reserved, or that the alleged facts are true, the appellate court cannot assume that the recitals of the bill are correct. Where the facts are not taken down as provided by Act No. 113, p. 162, of 1896, they must be settled by the trial judge. His certificate that he does not remember is a negation, rather than an affirmation.</p> <p>2. Motions for a continuance address themselves largely to the discretion of the trial judge, which will not be interfered with except in clear cases of abuse. State v. Perry, 25 South. 944, 51 La. Ann. 1077.</p> <p>3. Absence of alleged employed counsel, who has made no appearance in court, is no ground for a continuan'ce, where the defendant is represented by competent counsel appointed by the court, and it does not appear that some injustice was probably done by the refusal to continue the case. 4 Am. & Eng. Ency. PI. & Pr. pp. 839, 840.</p> <p>(Syllabus by the Court.)</p>

<p>GRAND JURY—EXCLUSION OF MEMBER—ACTION FOR REINSTATEMENT—PARDON.</p> <p>1. After a grand jury has been discharged, one of its members, who had been excused from further service and excluded from that body, has no right of action to be reinstated. On that ground, the rule nisi is recalled, and relator’s demand dismissed.</p> <p>Although the pardon was full and free, and had the effect of reinstating the one pardoned to all his civil and political rights, he cannot be reinstated to the membership of a body which had passed out of existence.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District •Court, Parish of Sabine; John Bachman Lee, Judge.</p> <p>John Brown was convicted of manslaughter, and appeals.</p>

<p>COMMUTATIVE CONTRACT—ACTION TO AVOID.</p> <p>1. Where, in a suit to avoid a commutative contract, it appears from the allegations of the petition that the defendant has in the past done all that the contract required of him, and it is not alleged that he is unable or unwilling to do all that may be required in the future, an exception of no cause of action is properly sustained.</p> <p>(Syllabus by the Court.)</p>

<p>INJUNCTION—NUISANCE—OFFENSIVE OCCUPATION.</p> <p>1. Acts which disturb physical comfort to an injurious extent may be restrained by the interposition of the courts.</p> <p>2. An offensive occupation cannot be carried on to the very great annoyance of the one dwelling immediately near.</p> <p>3. No one has the right to use his own land so as to render that about him in any degree useless. His enjoyments must have reference to the rights of others.</p> <p>4.To the extent needful to prevent extreme annoyance, the decree as heretofore rendered by the district court is by the Supreme Court affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Theodore Sigur, curator, against Dennis Burguieres and others. Judgment for plaintiff. Defendants appeal.</p>

Application by the state, on the relation of Robert Trainor, Jr., for writs of mandamus, certiorari, and prohibition to John St. Paul, judge of Division O, civil district court for parish of Orleans.

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of East Feliciana; Charles Kilbourne, Judge.</p> <p>John Carr, Jr., was convicted of murder, and appeals.</p>

<p>ROBBERY—INSTRUCTIONS—HARMLESS ERROR —NEW TRIAL.</p> <p>1. Defendants, charged with assault and robbery, requested-the court on the trial of the case to instruct the jury as to the various verdicts it could render, including verdicts in all the grades of petty larceny.</p> <p>The court had charged the jury as to the law governing robbery, and instructed them that, if they found that the money alleged to have been stolen was taken from the person without force or violence, or putting the person from whom it was taken in fear, they could return a verdict of petty larceny. It refused to charge as to the lower grades of petty larceny on the ground that there was nothing in the evidence which called for such a verdict. Defendant reserved a bill of exceptions.</p> <p>2. Defendants in a motion for a new trial assigned as a reason therefor that they had been prejudiced by the action of the court m refusing to give the special charge which had been asked for. The court adhered to its original grounds of refusal, and urged that the refusal to charge, if technically error at the time, was not prejudicial, as the jury trial found the accused guilty of robbery, which excluded all consideration of the amount taken from the person.</p> <p>The complaint furnishes no ground for reversal. Had the jury returned a verdict of petty larceny, it was still in the power of the court, on application of the accused, to have had the jury sent back to designate the particular degree of petty larceny which they had intended to cover by their verdict.</p> <p>3.The granting of a new trial falls particularly within the province of the trial judge, and his action will be sustained unless clearly wrong.</p> <p>(Syllabus by the Court.)</p>

<p>BREACH OF CONTRACT—DAMAGES—NONSUITEVIDENCE.</p> <p>1. Plaintiff had sold to parties in New Orleans 1,250 bales of cotton then in the interior. He ordered it compressed at the local compress and shipped to New Orleans by a certain time. The compress company failing to do this, plaintiff purchased other cotton in New Orleans, at a higher price, to meet his contract of delivery.</p> <p>He is entitled to recover ,, damages from the compress company the amo mt representing the difference in price between me two lots of cotton, but, the evidence failing, to establish the price he paid for the cotton in the interior and the price he paid for that purchased in New Orleans, he should have been nonsuited.</p> <p>2. As to the claim for actual loss upon the cotton itself by reason of a falling market or deprivation of profits, there should also have been a nonsuit, the evidence failing to show:</p> <p>Firs.t, at what price he had sold the cotton in the interior to parties in New Orleans for delivery within specified dates; and,</p> <p>Second, the price at which he sold the same cotton after its tardy arrival in New Orleans.</p> <p>On Application for Rehearing.</p> <p>3. It was not the purpose of the decree heretofore handed down to hold definitely that the defendant was in default with reference to the shipment of the entire lot of cotton, and it may be that, the measure of damages is the difference between the price paid by the plaintiff for the cotton purchased in New Orleans and that at which the delayed cotton was subsequently sold. These questions will therefore be considered left open.</p> <p>(Syllabus by the Court.)</p>

Action by Mary Harrison and others against John Ottman. Judgment for plaintiffs was reversed by the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Lodoiska Collins, individually and as tutrix, against H. F. Lewis & Co., Limited. Judgment for plaintiff, and defendant appeals.</p>

Action by Sergt. J. C. Aucoin against the police board of the city of New Orleans. On certificate from the court of appeals for instructions.

<p>MORTGAGE—FORECLOSURE SALE—SUIT TO ANNUL—TENDER—EXECUTORY PROCESS—NOTE-PRESCRIPTION — PLEADING — CURATOR AD HOD—SEIZURE AND SALE—APPEAL—INJUNCTION—LACHES—TAX SALE.</p> <p>1. Where the price of property sold by the sheriff is merely credited upon the writ under which the sale is made, a tender of such price is not a condition precedent to an action to annul the sale.</p> <p>2. Where an act of mortgage running in favor of a named mortgagee and of the holder or holders of the note to secure which the mortgage is given recites the delivery of the note to a person acting for the mortgagee,!and the holders of the note thereafter, by executory process, cause the property to be sold in satisfaction of the mortgage, the acceptance of the mortgage is sufficient quoad vendees of the mortgagor by whom the mortgage has been assumed. and quoad their vendee, who acquired after the sale under executory process.</p> <p>3. Executory process may properly issue upon a note which upon its face appears to be prescribed; and the plea of prescription will not be supplied by the court, nor can it be urged by the mortgagor, or those claiming under him, in an action of nullity, brought after the sale and subsequent resale of “the property, the remedy in such case being to enjoin the sale.</p> <p>4. The mere fact that an order for the issuance of executory process bears no date affords no ground upon which to annul the sale made thereunder, since, in the absence of proof to the contrary, it will be presumed that the order was signed at the time and place contemplated by law.</p> <p>5. In a proceeding via executiva upon an act of mortgage containing the pact de non alienando, the allegation that the mortgagor resides in another state, coupled with a request to that effect, is sufficient to justify the appointment of a curator ad hoc to represent such mortgagor. Persons claiming under him by conveyances of later date than the mortgage are not entitled to notice of the proceeding, and can attack the same only for want of notice to the mortgagor, or by showing, either that he was not absent from the state, or that he was represented in the state, to the knowledge of the plaintiff in such proceeding.</p> <p>6. When a note payable to the order of the maker, and by him indorsed in blank, of anterior, is identified with a mortgage of subsequent, date, by description, number, and paraph, and the mortgage runs in favor of a named mortgagee and the future holder or holders of the note, it does not matter, for the purpose of such identification, that the act of mortgage recites that the money was borrowed from one person whilst the note recites that it was borrowed from another.</p> <p>7. An order of seizure and sale is not a judgment in the full sense of that term, but it is a decree of a court in aid of the execution of an obligation which, by law, is given the effect of a judgment quoad the particular property to which it refers, and it is a judgment in so far that an appeal will lie therefrom for the review of the question of the sufficiency of the evidence on which it is based, whilst a remedy by injunction is provided where other objections are relied on. Hence, where the party proceeded against neglects either to appeal or enjoin, and allows the property to be sold and resold, he cannot thereafter attack the proceedings and the title thus acquired in an action of nullity predicated upon matters within the remedies so neglected.</p> <p>8. The owner of property who has paid his taxes cannot be prejudiced by a sale for the same taxes assessed in the name of another.</p> <p>(Syllabus by the Court.)</p>

<p>COMMUNITY PROPERTY — DEATH OP WIPE — RIGHTS OP HEIRS — SALE BY HUSBAND — RIGHTS OP PURCHASER—MINOR—ESTOPPELPRESCRIPTION—POSSESSOR IN GOOD FAITH-EVICTION—IMPROVEMENTS.</p> <p>1. Upon the* death of the wife, an undivided half interest in the property of the community vests in her heirs, and a subsequent sale by the surviving husband, though purporting to convey the whole property, in reality conveys only the undivided interest of the husband, and constitutes the vendee an owner in indivisión with the heirs of the wife, who are not bound to await the liquidation of the community for the bringing of an action to recover their interest. Nor, in such action, is the indebtedness of the community, or its financial condition, when dissolved, a legitimate subject of inquiry.</p> <p>2. A minor is not estopped to sue for the recovery of property inherited from her mother, and illegally sold by her father, because of the payment of the price to the administrator of her father’s succession, or of the payment of the same by her father’s administrator to her grandfather, who has not qualified as her tutor, and is not shown to have used the money for her benefit, or by reason of the fact that part 9f such price has been paid to her after her majority, when it does not appear that she was informed of the source whence it came.</p> <p>3. The prescription of 10 years, acquirendi causa, does not run against minors.</p> <p>4. A possessor in good faith is entitled, upon eviction, to recover for improvements made by him which add- value to the property, and to be reimbursed taxes paid during his possession; and the owner, who recovers the property, is entitled to rent and revenues from judicial demand.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Tkéard, Judge.</p> <p>Action by Frank Goothye against Louis Delatour and others. Judgment for plaintiff, and defendants appeal.</p>

Paul, Judge. Action by Marie E. Fortier, widow of Arthur Hart, against George W. Barry. Judgment for plaintiff, and Pamelia Clark, widow of the defendant, brings injunction to restrain levy. From a judgment denying the injunction, Pamelia Clark appeals.

<p>Appeal from Second Judicial District Court, Parish of Bossier; John Thomas Watkins, Judge.</p> <p>Action by James M. McClanahan, tutor, against the Vicksburg, Shreveport & Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>SUCCESSION—SALE OF REAL ESTATE-INJUNCTION.</p> <p>1. Plaintiff, in possession as owner, has no right to enjoin a probate sale of real estate on the grounds that the succession has no title to the property. Seymour v. Bourgeat, 12 La, 123; Morrison v. Larkin, 20 La. Ann. 700; Railroad v. City, 28 South. 311, 52 La. Ann. 1831.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by the Commercial National Bank of Shreveport against Jackson Bros. The Teutonia Fire Insurance Company was summoned in garnishment. Judgment for plaintiff and against the garnishee was affirmed in the circuit court of appeal, and the Teutonia Insurance Company brings certiorari or writ of review.

In the matter of the succession of C. J. Welsh. From the allowance of certain vendor’s privileges and the denial of others, the administrator and opponents appeal.

<p>CRIMINAL LAW — PRESENCE OF ACCUSED -, MURDER—EVIDENCE—THREATS.</p> <p>1. The accused need not he present when the minutes of the court are corrected so as to make them conform to the truth.</p> <p>2. In order that threats should be part of the res gesta?, something more must be shown than that they were made “recently.” i</p> <p>3. For the introduction of evidence as to threats, the laying of a foundation by proof of an overt act is as necessary when the threats are sought to be proved by way of mitigation, as when they are sought to be proved by way of justification.</p> <p>4. Remarks of the prosecuting attorney merely by way of comment on the heinousness of the crime for which the accused is being prosecuted are not objectionable.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Mayor’s Court, Town of Mandeville; R. B. Paine, Judge.</p> <p>James Band was convicted of a violation of the ordinance of the town of Mandeville, and appeals.</p>

<p>LARCENY—VERDICT—SENTENCE.</p> <p>1. Where a person is charged, under Act No. 107 of 1902, with stealing $30, an offense punishable by imprisonment, with or without hard labor, the question whether he stole that amount, or less, is one of fact, which is not answered by a verdict of “Guilty of larceny,” since the accused would he equally guilty of larceny if he had stolen less than $20 or less than $5, offenses of lower grades, for -which the punishment is lighter: and in such case the judge is without authority to impose sentence for the higher grade, since the jury may have convicted of the lower.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge.</p> <p>Louis Nix was convicted of manslaughter, and appeals.</p>

<p>APPEAL—INTERLOCUTORY ORDER—DEPOSITIONS.</p> <p>1. No appeal lies from an interlocutory order dismissing a rule taken by defendants on plaintiff to return into court a deposition in the possession of a nonresident commissioner.</p> <p>2. The injury that may result from the ruling is not irreparable. State ex rel.‘ Cole v. Judge, 29 La. Ann. 803. Defendants may obtain the deposition on paying charges for executing same, and, failing in this, certainly have the legal right to take the deposition of the witness.</p> <p>(Syllabus by the Court.)</p>

<p>VENDOR AND PURCHASER—CONTRACT OF SALE—VALIDITY.</p> <p>1. Where a determinate tract of land is agreed to he sold at a price to be regulated by the quantity of timber on the land at a fixed price per thousand feet, the quantity of the timber to be estimated by experts, what is left indeterminate by the contract is the amount of money to be paid for the land; in other words, the price.</p> <p>2. If the price is left to be determined by experts to be named thereafter by the parties, the contract is null, since either of the parties can nullify it by refusing to appoint the expert.</p> <p>(Syllabus by the Court.)</p>

Théard, Judge. Action by E. B. Williams & Co. against W. C. Dotterer, receiver and general manager of the New Orleans & Western Railroad Company and another. Judgment for defendants, and plaintiffs appeal.

<p>GAS COMPANY—FRANCHISE—USE OP STREET-REMOVAL OP MAINS—ACTION POR DAMAGES.</p> <p>1. The plaintiff company was authorized by an act of the General Assembly prior to the Constitution of 1879 to lay pipes and conduits on any of the public ways, alleys and streets of New Orleans where same might be required in such manner as might produce the least inconvenience to the city or its inhabitants. It must be held to have accepted this privilege subject to the paramount and inalienable right of the state to construct or authorize to be constructed by the city sewers or drainage canals under the streets whenever, in its judgment, the public</p> <p>' interests demanded, and in aid of the construction of such sewers to cause the plaintiff company, at its own expense, to change the location of its own mains. The state, in requiring the shifting of .the position of the mains, simply enforced in its own favor one of its reserved rights.</p> <p>2. The rights and obligations of parties are to be tested by the provisions of the Constitution of 1808.</p> <p>3. The plaintiff had no vested right to occupy any particular position in the streets. Such right as it had was ab initio; not an absolute, but an imperfect, right, contingent and conditional in its nature, controlled by law and the regulation of the police authorities.</p> <p>4. The only damage claimed in this action is the sum of money expended by the plaintiff in changing the position of its mains. It is not asserted that the pipes of the plaintiff have been injured by removal, nor that any of its work or material have been or will be utilized by the state or city for their own purposes, or that the value of the franchise has been lessened, or that there has been any physical “taking” of its property.</p> <p>The demand of the plaintiff falls under the rule of damnum absque injuria.</p> <p>Breaux, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>EMINENT DOMAIN—VERDICT—REVIEW.</p> <p>1. A verdict fixing the value of property in an expropriation case, being, as it is, the judgment of a jury composed of persons selected because of their presumed peculiar knowledge of the subject, will not be disturbed merely because, in the opinion of this court, it may appear to be possibly over liberal to the owner.</p> <p>(Syllabus by the Court.)</p>

<p>INTOXICATING LIQUOR—LICENSES—ILLEGAL SALE—STATUTES—REPEAL—PENALTY.</p> <p>1. Act No. 66, p. 93, of 1902, is binding to the extent that it is binding in parishes in which they have adopted local option or prohibition ordinances, and Act No. 107, p. 161, of 1902, is binding in parishes in which licenses are issued to liquor dealers.</p> <p>2. Act No. 66, p. 93, of 1902, was given effect in State v. Brown, 6 South. 638, 41 La. Ann. 771, in prohibition parishes, and that effect remains as laid down in that decision, and Act No. 107, p. 161, of 1902, governs in all parishes in which licenses are issued.</p> <p>3. The penalty is provided in Act No. 66, p. 93, of 1902, in prohibition parishes, and Act No. 107, p_. 161, of the same session, provides a penalty in parishes in which licenses are issued.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>DEED ABSOLUTE—MORTGAGE—EVIDENCE—ACTION OE LESION—INADEQUACY OE PRICE —COUNTER LETTER.</p> <p>1.Yrhen plaintiff prays for a decree declaring a sale of real estate to be a mortgage, evidence admitted for the purpose of showing inadequacy of price is germane to the issue, but cannot be used, under a prayer for general relief, for the purpose of converting the action into one of lesion, the two demands being inconsistent. Winston v. Tufts, 10 La. Ann. 23.</p> <p>2. A.n action of lesion lies to rescind a sale of real estate with the pact of redemption, and the right of plaintiff in this respect should have been reserved.</p> <p>3. When the counter. letter shows that the purchaser was to become the absolute owner on the failure of the vendor to redeem, and where the purchaser went into possession of the property and exercised rights of ownership over it, mere inadequacy of price is not sufficient to justify the court in holding that the contract was not a sale but an hypothecation. The rem? edy, where the price paid is less than one-half of the value of the immovable estate sold, is by action of lesion.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighth Judicial District Court, Parish of Franklin; D. N. Thompson, Judge.</p> <p>J. H. Wheat was convicted of manslaughter, and appeals.</p>

<p>VENDOR’S LIEN—SALE BY HOMESTEAD ASSOCIATION-ACTION FOR PRICE—CONSTITUTIONAL LAW.</p> <p>1. Act No. 115, p. 177, of 1888, provides that property may be sold for cash, and resold to the original owner by a homestead association on terms of credit, and that the second conveyance is to be regarded as a sale from which there springs a vendor’s lien in favor of the association.</p> <p>2. Where, by way of defense to an action brought by a homestead association to recover the price of property said to have been sold, it is alleged, without specification, that the plain; tiff has not complied with the provisions of Act No. 115, p. 177, of 1888, and no proof is adduced in support of the allegation, such defense is entitled to no consideration.</p> <p>3. Act No. 115, p. 177, of 1888, in regulating the business of homestead associations, and declaring that transactions with them purporting to be sales shall be so considered, is applicable to all persons who may choose to form such associations or to engage in such transactions with them, and does not deny to any person the equal protection of the laws, in violation of the fourteenth amendment to the Constitution of the United States, or confer any special or exclusive right, privilege, or immunity, in violation of article 48 of the Constitution of this state.</p> <p>4. This court adheres to the ruling made in the matter of the Succession of Bienvenu, 31 South. 193, 106 La. 595, that Act No. 115, p. 177, of 1888, is not repugnant to article 31 of the Constitution, as embracing more than one subject.</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 Daniel D. Avery against the Segura Sugar Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>PUBLIC LANDS—GRANT OF SWAMP LANDS— SALE BY STATE — PETITORY ACTION — DEFENSES—ESTOPPEL—STREAMS—PRE-EMPTION RIGHTS.</p> <p>1. Where a subdivision of land was granted to the state of Louisiana under the acts of Congress of 1849 (Act March 2, 1849, c. 87, 9 Stat. 352) and 1850 (Act Sept. 28, 1850, c. 84, 9 Stat. 519), there can be no reason to doubt that the grant carried with it all the land in the subdivision, whether dry or overflowed, since those acts provide that “all subdivisions” shall be granted, “the greater part of which is” swamp land, subject to overflow, and that, “when the greater part of a subdivision is not of that character, the whole of it shall be excluded from the grant.”</p> <p>2. Under the swamp-land grant acts of Congress of 1849 (Act March 2, 1849, c. 87, 9 Stat. 352) and 1850 (Act Sept. 28, 1850, c. 84, 9 Stat. 519) the lands granted to the state were “subject to be disposed of by the Législatp-e,” and under the act of the General Assembly No. 247, p. 306, of 1855, shallow lakes so acquired, not navigable, could be sold only after their area had been ascertained by surveys recognized by the state.</p> <p>3. Where a defendant in a petitory action sets up as a muniment of title a government survey, from the plat of which it appears that a certain lake or stream was meandered at the water’s edge, he is in no position to show that such was not the case.</p> <p>4. The defenses to a petitory action that the land was acquired by accession as alluvion, or as relicted land, and that it was acquired as dry land within the boundaries of the original purchase, are conflicting, and cannot stand together.</p> <p>5. Red Shoot Lake (otherwise called Flat River), between the upper and lower ends, has been a mere slough in the midst of a body of land subject to overflow, and serving to carry the waters of the lake, sometimes in one direction and sometimes in another. Being part of a shallow lake, the land under which is susceptible of reclamation, it is not to be regarded as a “stream” within the meaning of the law regulating titles to estates bordering on streams.</p> <p>6. No pre-emption rights could be acquired, under Act No. 21, _p. 31, of 1886, on land in the Bossier Levee District, after the passage of Act No. 89, p. 113, of 1892, donating those lands to that district.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the city of New Orleans against Charles Manfre. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Second Judicial District Court, Parish of Bossiey; John Thomas Watkins, Judge.</p> <p>Action by Adolph Lattier against the Bossier Levee Board. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from Eighth Judicial District Court, Parish of Franklin; D. N. Thompson, Judge.</p> <p>Action by John M. Munholland and others against B. R. Fakes and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Poster, Judge.</p> <p>Joseph Charles and John Daniels were convicted of manslaughter, and appeal.</p>

<p>CRIMINAL LAW—EVIDENCE OF OTHER CRIME-INTENT.</p> <p>1. It is competent for the state to prove that a person charged with the commission of a crime was seen in the vicinity where the crime was committed, shortly after or before the event, and if, when seen, he was engaged in the commission of another crime, the evidence, otherwise admissible, is not to be excluded on that account.</p> <p>2. A distinct offense may also be proved, if necessary or pertinent, as showing intent in the matter of the crime charged.</p> <p>(Syllabus by the Court.)</p>

Théard, Judge. In the matter of the succession of Harriet L. Watt. From a judgment revoking an order appointing a tutor, defendants in rule appeal.

Application, by the state, on the relation of Porteus R. Burke, chairman Democratic parish executive committee and others, for writ of prohibition to T. Don Foster, judge of the Ninteenth Judicial District Court, and others.

<p>APPEAL—DISMISSAL—PARTIES—FAMILY MEETING-DISCRETION OF NOTARY—COMPOSITION —MARRIAGE OF TUTRIX—REVIEW BY COURT.</p> <p>Motion to Dismiss.</p> <p>1. Mere departure from the regular, prescribed method of bringing parties into court and applying for the dismissal of an appeal is disregarded, where it has brought about a situation which warrants judicial action in the premises. City of Baltimore v. Parlange, 25 La. Ann. 335; Borde v. Erskine, 29 La. Ann. 822.</p> <p>2. The undertutor and certain relatives of minors, members of a family meeting held in their behalf, who had dissented from the majority in opinion, being ruled into court by the tutrix to show cause why the proceedings should not he homologated, appeared and set up objections in detail. The court, after a hearing, homologated the proceedings, and opponents united in perfecting an appeal granted them. The opposing undertutor having died, the newly appointed undertutor made himself a party, and joined the tutrix. The tutrix urged the dismissal of the appeal on the ground that the relatives had no legal right to stand iu judgment. Held, the death of the original under-tutor and the position taken by the new under-tutor did not cause the appeal to fall. The appeal of the other opponents still stood. Appellee, having herself called them into court, could not question their legal interest and capacity. Independently of this, they were entitled to be heard.</p> <p>On the Merits.</p> <p>3. Any irregularity there may be in an order of court leaving it to the discretion of the notary to take any five out of nine persons appointed to compose a family meeting is cured by the act of the notary in calling to the meeting all nine of the persons appointed, and thus not exercising the discretion delegated to him.</p> <p>4. The judge can appoint on a family meeting only so many friends as may be necessary to supply the places of the relations lacking to hold a valid meeting. There being three relations, he can appoint only two friends. If he appoints a greater number, and the friends outvote the relations, the proceedings of the family meeting are null and void. Bothick’s Case, 11 South. 712, 44 La. Ann. 1037, distinguished.</p> <p>On Rehearing.</p> <p>5. Article 281 of the Civil Code, correctly interpreted, means that “family meetings, in all cases * * * shall be composed of, at least, five [persons], relations, or, in default of relations, friends,” etc. The words “at least” apply to all family meetings, and cannot be held to mean “neither more nor less than five.” The authority of the judge to determine the maximum number of members of which a meeting is to be composed can in no case be interfered with; and, having determined the number at not less than five, he must appoint relations, if they are to be found and are eligible, or, if they are not to be found, may complete the number so determined by the appointment of friends.</p> <p>6. Favorable action by a family meeting is indispensable to the retention, as tutrix, of a mother, in the event of her marrying again; but such action, whether favorable or unfavorable, is subject to review by the courts.</p> <p>Nicholls, C. J., and Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; Luther Egbert Hall, Judge.</p> <p>Frank Matthews was convicted of assault by shooting, and appeals.</p>

W. Ellis, Judge. Application by the state, on the relation of Theodore Cotonio, for writ of mandamus to the Louisiana Bar Association. Robert J. Maloney intervenes. From an order denying the writ, plaintiff and intervener appeal.

<p>APPEAL—REVIEW.</p> <p>1. This case involves only questions of fact.</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 Max Braun against David T. Weill. Judgment for plaintiff, and defendant appeals.</p>

<p>WILLS—DISINHERISON—REHEARING—REVIEW.</p> <p>1. A recital that the heir married without the consent of the testator, and is therefore disinherited, sufficiently expresses the cause of the disinherison. The minority of the heir need not be mentioned.</p> <p>On Application for Rehearing.</p> <p>2. Points not made on the original hearing will not, as a rule, be considered on an application for a rehearing. 1 Hennen’s Digest, pp. 107, 108.</p> <p>3. A demand not embraced in the pleadings in the court a qua cannot be urged on appeal. Airey v. Okolona Sav. Inst., 33 La. Ann. 1346.</p> <p>4. Minority is implied when the cause of disinherison set forth in the testament is applicable only to minors.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on relation of the Louisiana Improvement Company, for writ of mandamus to the Board of Assessors and others. Judgment for defendants, and the relator appeals.

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Frank B. Moore was convicted of perjury, and appeals.</p>

<p>BOUNDARIES—ESTABLISHMENT.</p> <p>1. In re-establishing a boundary line, where indications fail, the rule of surveying, as well as of law, is to reach the point of destination by the line of shortest distance.</p> <p>(Syllabus by the Court.)</p>

<p>PUBLIC LANDS—SWAMP LAND GRANTS.</p> <p>1. This case is controlled by the principles announced in the case of Hall v. Bossier Levee Board (recently decided) ante, p. 913, 35 South. 976.</p> <p>iSyllabus by the Court.)</p>

Application by the state on the relation of Louis R. Alba, for writs of mandamus and prohibition to W. B. Sommerville, judge of the civil district court, Division D.

Certiorari from Court of Appeal, Fifth Circuit. Action by the Ruddock Cypress Company, Limited, against Jean Peyret. Judgment for plaintiff was reversed by the Court of Appeal,. and plaintiff and its vendee apply for certiorari or writ of review.

<p>ADOPTION—RIGHT TO INHERIT—SUCCESSION.</p> <p>1. Under the terms of the act of the Legislature of the year 1862 (Act No. 66, p. 4J), the person adopted has the capacity to inherit in preference to all collateral heirs.</p> <p>“The adopted child shall have the capacity to inherit in preference to all others, save forced heirs.” Civ. Code, art. 214. Succession of Hosser, 37 La. Ann. 841; Vidal v. Gommagere, 13 La. Ann. 517.</p> <p>2. Plaintiffs, having no right to inherit from the_ succession the property of which they claim, have no right to inquire into the method's followed in settling the' succession.</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 Mary E. Nott against Samuel Nott and others. Judgment for nlfi intiff, and defendants appeal.</p>

Landry; Edward Thomas Lewis, Judge. Jim Williams was found guilty of perjury. Prom an order sustaining a motion in arrest of judgment, the state appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by T. J. Kellogg against J. W. McFatter. Judgment for plaintiff, and defendant appeals.</p>

<p>CORPORATIONS — DISSOLUTION—APPOINTMENT OP LIQUIDATOR — ACTION BY STATE — NEW COMPANY—RIGHTS OF STOCKHOLDERS.</p> <p>1. Where the charter of a waterworks company was forfeited by judgment of the state court, and thereupon a receiver was 'appointed by the United States Circuit Court, who, under its orders, took possession of and operated the plant, and where nearly one year subsequently a liquidator was appointed by the Governor under the statutes to administer the assets of the dissolved corporation, and said liquidator was made a party to the suit in the federal court, and by plea asserted his superior right to the custody and administration of said assets, the state has no standing to litigate the rights of the liquidator with the stockholders of the defunct company and a new corporation organized by them, having neither possession nor control of said assets.</p> <p>2. The object and purpose of a corporation must be determined from the provisions of its charter, and not from the declarations or acts of its officers or agents. The - defendant stockholders had the right to organize the new corporation for the purpose of supplying water to the city of New Orleans and its inhabitants, and, to that end, for the further purpose of purchasing the plant of the former company. They also had the legal right to sell to said corporation for its shares of stock all their right, title, and interest in the assets of the dissolved corporation, subject to the payment of debts and costs of administration.</p> <p>3. The burden of proof is on the state to show that defendant has issued fictitious stock. Where the evidence leaves the question of value in doubt, and, in the nature of things, the residuary interest of the stockholders cannot be ascertained until the plant is sold, and the affairs of the corporation liquidated, the demand of the state for the forfeiture of charter should be nonsuited.</p> <p>Nicholls, G. J., dissenting in part.</p> <p>(Syllabus by the Court.)</p>

<p>TAX SALE—VALIDITY—PRESCRIPTION—ASSESSMENT—POSSESSION—PRESUMPTIONS—IN-NOCENT THIRD PARTY.</p> <p>1. A tax sale of property in the year 1869, under which the buyer never claimed possession, paid no taxes since, and laid no claim to the property prior to the year 1902, is null, because of illegalities shown in defense, against plaintiff’s petition to be recognized as owner.</p> <p>(a) The taxes for which the property was sold were assessed in the years 1854 and 1855.</p> <p>The lien and privilege were prescribed as against an innocent third person, who had become «the owner after the assessment and prior to th,e sale. Section 43, Act No. 346, p. 512, of 1855.</p> <p>(b) The property was not assessed in the name of the owner. The court infers from the testimony that the owner was dead, in whose name the property was assessed.</p> <p>I 2. The plaintiff not having gone into possession, and the defendant having shown possession at one time in the history of the title, the presumption is that that possession continued in defendant or its authors to date of suit.</p> <p>3. The land is low, wet, and wild land, not inclosed, and, as a body, unfit for cultivation.</p> <p>Many years ago the owner of the title now in defendant had the land surveyed, established the boundaries, cut firewood thereon, and warned trespassers not to commit further trespass. He exercised the right of. an owner in possession.</p> <p>4. The chain of defendant’s title goes back to 1806. The first act was sous seing prive, and originally not binding on third persons.</p> <p>Subsequent acts had the effect of recognizing the first act.</p> <p>5. The second act of transfer was in notarial form. The heirs declared in the act that they were the heirs of the original owners. The declaration is not sustained by proof aliunde.</p> <p>The many years that have elapsed must give rise to some presumption that the declaration of these heirs is in accordance with the facts.</p> <p>6. Over 10 years prior to suit, the defendant’s author held under title translative of property.</p> <p>The law has given to the purchaser in good faith the benefit of the prescription of 10 years.</p> <p>7. The defendant and its authors had possession and title, and were in a position to plead defenses other than those growing out of “dual assessment” and “payment,” laid down in the Constitution of 1S98.</p> <p>8. An innocent third person acquires title adversely to plaintiff prior to the date of the last Constitution.</p> <p>9. The alleged title of plaintiff falls within the class of titles of “those who buy property which is in the possession of the tax debtor, and make no effort to-dispossess the debtor; on the contrary, by silence enable the owner to acquire legal title. Cooley on Taxation (2d Ed.) p. 551; Ashley Co. v. Bradford, 109 La. 641, 33 South. 634.</p> <p>(Syllabus by the Court.)</p>

<p>Afipeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; James M. Thompson, Judge.</p> <p>Action by Ann C. Brady against William T. Jay. Judgment for plaintiff, and defendant appeals.</p>

<p>PAYMENT—EVIDENCE.</p> <p>1.The character, temperament, and habits of two litigants, as also the surrounding circumstances, considered, it may be more probable that one has forgotten a debt due or to become due him by the other, than that the other should have paid it and have preserved no record or memoranda showing how, when, where, or to whom such payment was or might have been made.</p> <p>2. The law requires sotnething more cogent to prove the payment of a debt than mere probability.</p> <p>3. Where, by the unambiguous terms of a contract, the rights of a party in a particular respect are to be governed by a specified condition, with reference to which alone he is called on to regulate his conduct, he cannot, at the option of the other contracting party, be affected by another and different condition to which he has never assented, even though, if it had been so agreed, the one condition might have served the purpose of the other.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of Rees, Broussard and others, for writ of mandamus to T. Don Foster, Judge Nineteenth Judicial District Court for the parish of St. Martin.

<p>APPEAL—PARTIES — NONRESIDENT PLAINTIFF— TIME OF TAKING—FRAUDULENT SIMULATION —ACTION TO ANNUL—PETITION.</p> <p>1. Where a suit is instituted in the name of a resident partnership, and is in its name prosecuted to final judgment, and where an appeal taken in the name of said partnership was dismissed for informality, and not renewed within the year prescribed by law in case of residents, the nonresident universal legatee of one of the partners, alleging that he acquired the claim pendente lite, will not be allowed to appeal.</p> <p>2. A nonresident plaintiff, appearing as such on the record, can appeal at any time within two years from the rendition of judgment. Code Prac. art. 593; Succession of Martin v. Succession of I-Ioggatt, 37 La. Ann. 340.</p> <p>3. Id a suit to annul a series of sales as fraudulent simulations, all vendors and vendees are necessary parties. Black v. Bordelon, 38 La. Ann. G96; Eecel v. Guinault, 32 La. Ann. 91; Gillis v. Carter, 29 La. Ann. 701; Vandine v. Eherman, 2G La. Ann. 388; Hyde v. Craddiek, 10 Rob. 3S9; Lawrence v. Bowman, 6 Rob. 21. The court, on its own motion, will notice the want of nonjoinder of proper parties. Willis v. Wasey, 42 La. Ann. 877, 8 South. 591, 879.</p> <p>4. The law does not permit separate creditors to join in an action against the debtor unless there be a joint interest in the thing demanded or a privity of contract. Dyas v. Dinkgrave, 15 La. Ann. 502, 77 Am. Dec. 19G; Mavor v. Armant, 14 La. Ann. 182; Barrow v. Lapene, 30 La. Ann. 330. Plaintiffs in this case have no interest in each others’ claims against the defendant A. J. Wyly. They have a common interest in annulling the sale as fraudulent simulations. In such cases the proper practice is for the creditors to sue separately on their claims, and then join in the suit to annul. Marx v. Meyer, 50 La. Ann. 1229, 23 South. 923.</p> <p>5. A petition which assails a series of sales as fraudulent simulations not divesting' the title of the original owner, shows a cause of action, though as to some the consideration is referred to as “real or pretended.”</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 William H. Blake against Grace Dudley, his wife. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Cfrart, Parish of Orleans; Thomas O. W. Ellis, Judge.</p> <p>Action by John W. Watson against Patrick McGrath. Judgment for defendant, and plaintiff appeals.</p>