Volume 113 — Louisiana Reports

<p>Application by tbe state, on tbe relation of Jaubert Bros., for writs of certiorari and prohibition to Paul Leche, judge.</p>

Judicial District Court, Parish of East Baton Bouge; H. F. Brunot, Judge. Application by the state, on the relation of Le Blanc & Bailey, Limited, for writ of mandamus to John T. Michel, secretary of state. From an order granting the writ, defendant appeals.

D. Hicks, Judge. A. Schulsinger and A. E. Maloney were charged with violating an ordinance of the city of Shreveport. Judgment for defendants, and the city appeals.

<p>CITIES — INJUNCTION—COLLECTION OE TAX — EXEMPTIONS — PLEADING.</p> <p>1. A municipal corporation has no power to sue out an injunction to prevent the collection of a tax claimed by the police jury of the parish from one of the residents of the town on property situated within the limits of the town.</p> <p>2. If the property owners of the town are exempt, it is incumbent upon them to plead the exemption, for the exemption is a personal right, which must be invoked by the taxpayers themselves.</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 the state against O. F. Bordelon. Rule to show cause why judgment of forfeiture on bond furnished by Bordelon should not be set aside. Application denied, and defendants appeal.</p>

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of West Feliciana; Charles Kilbourne, Judge.</p> <p>Action by the Louisiana Railway & Navigation Company against H. W. Jones. From the judgment, plaintiff appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by David M. Gray against Paulin J. Coco. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; T. Don Foster, Judge.</p> <p>Action by Walmsley & Co. against Resweber and others. George W. Sentell & Co. intervene. Certain property was sold under the judgment. Rule by plaintiffs on sheriff to show cause why they should not be recognized as first mortgage creditors.</p>

<p>PRESCRIPTION — GOOD FAITH — EVIDENCE — DISCLAIMER OF WARRANTY.</p> <p>1.He who acquires the ownership of an immovable in good faith — i. e., from one whom he believes to be the owner — by a title which would be sufficient to transfer the ownership if derived from the owner, and who holds continuous, uninterrupted, peaceable, public, and unequivocal possession thereof, as owner, “prescribes for it in ten years.”</p> <p>2. Good faith is always presumed in matters of prescription, and he who alleges bad faith must prove it.</p> <p>3. It is sufficient if the possession has begun in good faith, the fact that it is afterwards held by the original possessor or his successors in title in bad faith not affecting the prescription.</p> <p>4. Disclaimer or exclusion of warranty is a fact affecting the question of good or bad faith, which is to be considered in the light of surrounding circumstances.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chrétien, Judge.</p> <p>Charles Foley was convicted of murder, and appeals.</p>

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

Action by William E. Sevey against the Chappuis Company, Limited. Judgment for plaintiff. On the suing out of executory process the Dodge Manufacturing Company filed a third opposition. ' Judgment for plaintiff, and intervener appeals.

F. Blackman, Judge. Action by George W. Bennett and others against the police jury and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge.</p> <p>Action by Wilson Varnado and Fannie V. Varnado against Peter H. Lewis. Judgment for defendant, and plaintiffs appeal.</p>

<p>DISCHARGE 03? EMPLOYÉ — GROUNDS.</p> <p>1. Disobedience of lawful and reasonable orders connected with his employment affords just grounds for the 'discharge of an employs.</p> <p>Monroe, J., dissenting.</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 Joseph H. Lawrence, administrator, against the Penn Mutual Life Insurance Company. Judgment for plaintiff. Defendant appeals.</p>

Application by the state, on the relation of the heirs of Sallie Busha, for writ of mandamus to the register of conveyances and John P. Lindner. Judgment for relator was affirmed by the Court of Appeal, and Lindner applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>In the matter of the succession of E. Fenner Henderson. From the judgment in favor of Jules A. Gauche, opponent, the executor appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Poster, Judge.</p> <p>Action by Octave P. and J. D. Romero against the New Iberia Milling & Development Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>APPEAL — REVIEW.</p> <p>1. This case involves only questions of fact.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. Action by the Board of Levee Commissioners, Orleans Levee District, against the estate of James Jackson, to condemn land, and by the same plaintiff against Emma Louise Brittin. Judgment for plaintiff, and defendants appeal.

Action by Mathew Schmitz against A. A. Peterson and another. C. A. McCoy was called in warranty. Judgment for plaintiff, and defendants appeal to the Court of Appeal. Judgment was affirmed, and A. A. Peterson and others bring certiorari.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the New Orleans & Northeastern Railroad Company against the Louisiana Construction & Improvement Company. Action dismissed. From a rule compelling payment of costs taxed, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the state against the Banking Department of the Citizens’ Bank. Judgment for defendant, and the state appeals.</p>

<p>FRAUDULENT CONVEYANCE — EIGHTS OF PARTIES —SI3IÜLATI0N—EVIDENCE—COUNTER LETTER.</p> <p>1. Where parties enter into an agreement to .defraud creditors, neither party can maintain an action upon it or sue to recover the property conveyed. Denton v. Willcox, 2 La. Ann. 60; I-Iood v. Frellsen, 31 La. Ann. 5S0; Dent v. Ferguson, 10 Sup. Ct. 13, 132 U. S. 50, 33 L. Ed. 242.</p> <p>2. Where real estate has been conveyed to or purchased in the name of certain persons, plaintiff, asserting ownership, cannot prove simulation or agency, except by a counter letter, or by answers of defendants to interrogatories on facts and articles; and such answers cannot be contradicted by parol evidence under a charge of fraud, nor can writings insufficient per se to establish title be eked out by the testimony of witnesses. Wright-Blodgett Co. v. Elms, 30 South. 311, 106 La. 150.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — REDUCTION OP JUDGMENT — CONSENT.</p> <p>1. An expropriation suit by a railroad corporation. The amount awarded to defendant by the jury, and the judgment appealed from, is reduced by consent.</p> <p>(Syllabus by the Court.)</p>

<p>CORPORATIONS — CONTRACTS WITH DIRECTORS— RIGHTS OP MINORITY STOCKHOLDERS —DIVIDENDS.</p> <p>1. Where the same five persons compose both the directorate and’the body of the stockholders of a corporation, two of these persons cannot, by joining with a third, enter into contracts with the corporation, or fix their own salaries, or vote allowances to themselves, over the protest of their two other associates. It is not possible for a person to be on both sides of a contract, and equity will not permit the members of a corporation, whether as directors or as stockholders, to vote to themselves the money of the corporation over the protest of their associates.</p> <p>2. Ordinarily there is no trust relation between the stockholder and the corporation, but the reason is that ordinarily the stockholder has no mandate to administer the affairs of the corporation; but, if stockholders undertake to discharge the functions of directors and conduct the affairs of the corporation, they become subject to the same trust relation which precludes directors from contracting with themselves to the detriment of the corporation.</p> <p>3. Where the majority of the stockholders of a corporation, who were also the sole managers of. its business, have gone on, over the protest of the minority, and dealt with themselves, and the court, on the complaint of the minority of the stockholders, cannot approve the basis upon which the business has been carried on, a situation is presented with which the court must deal as best it can under the circumstances, even though its intervention involves the proposition of reforming the contract between the corporation and the majority of stockholders, or revising the basis for the apportionment of the profits of the business.</p> <p>4. On complaint of the minority stockholders, and on proper showing, the court will order the board of directors of a corporation to declare a dividend.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.</p> <p>Action by Henry Nagel against Jules Clement. Judgment for defendant, and plaintiff appeals.</p>

<p>COMPROMISE — VALIDITY—COLLATERAL ATTACK.</p> <p>1. There is no rule of law, -morals, or ethids which denies to the ordinary citizen the right to compromise, with the person asserting it, a claim against him for' damages; „por is that right defeated by any previous employrdent of counsel to prosecute such claim; and, when the compromise is effected, it has the force of the thing adjudged, and cannot be attacked collaterally, or for error of law or lesion, in a direct action. Where, however, the collateral attack has- been made and met, and no good purpose would be subserved by relegating the parties to further litigation, the. questions of the validity and effect of the compromise will be decided on their merits.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.</p> <p>Paul Foley 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 M.. A. Dauphin on an accounting of Harvey Wilber Smith, executor. Eosa L. Dauphin filed an opposition, and from the judgment on the accounting she appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Robert H. Chaffe against the Baratarla Canning Company. Judgment tor defendant, and plaintiff appeals.</p>

Case Certified from Court of Appeal, Parish of Orleans. Action by Grace Spaun against Mrs. Joseph Helen and others. Judgment for defendants, and plaintiff appealed to the Court of Appeal, which applied to the court for jurisdiction.

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Willis Henderson was convicted of murder, and appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert R. Reid, Judge.</p> <p>Action by John Ballard against John Puleston, registrar of voters, and others. Judgment for plaintiff, and defendant William W. Alford appeals.</p>

<p>INJUEY TO SERVANT — WARNING OE DANGER— NEGLIGENCE.</p> <p>1. The servant has a right to assume superior knowledge in his employer, to rely on his judgment, and to believe that he will not unnecessarily jeopardize his person and life by avoidable risk.</p> <p>2. The employer is presumed to know the danger to which the employg will be subjected in the discharge of the duty to which he is assigned, and, if the latter be inexperienced, is' bound to warn him of such danger.</p> <p>(Syllabus by the Court.)</p>

Orleans; Frederick Durive King, Judge. In the matter of the succession of John Kep pel. Rule on Leopold Levy to compel him to comply with an adjudication. From an order granting the rule, Levy appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Gaspar Cusachs against Joseph DuguS and others. Judgment for defendants, and plaintiff appeals.</p>

<p>SUPREME COURT — JURISDICTION — SUSPENSIVE APPEAL — JUDICIAL MORTGAGE — CANCELLATION-INSCRIPTION OP JUDGMENT — TRANSPER OP CLAIM — RIGHTS OP PARTIES — USURY—PRESCRIPTIONS.</p> <p>1. An appellant against whom a moneyed judgment had been rendered, and who had taken a suspensive appeal from the judgment, charged in the Supreme Court the appellee with having partially executed the judgment in violation of the suspensive,appeal, and applied to the court for a rule upon him to show cause why the act complained of should not be set aside, so as to hold matters intact until the appeal should be acted upon. Appellee excepted to the jurisdiction of the court to issue the rule. Held, the court has jurisdiction in the premises. Article 130, Code Prae.; article 85, Const. 1898.</p> <p>On the Merits.</p> <p>2. “The jurisdiction of the court has been enlarged to enable it to determine questions of fact affecting its own jurisdiction in any case pending before it, or it may remand the case.” Article 85 of the Cqnstitution.</p> <p>3. If the facts are before the court in such form as that the court may at once consider them and determine as to its jurisdiction, it will do so, or otherwise it may remand the case to the court a qua to hear testimony.</p> <p>4. The evidence relating to the question of jurisdiction is all before the court, and, after weighing and considering this evidence, the court holds that it has jurisdiction to direct the recorder of mortgages to cancel and erase a judicial mortgage instituted after a suspensive appeal has been taken. After the suspensive appeal has been perfected, the status quo remains until decision on appeal.</p> <p>5. A judgment may be inscribed at any time prior to appeal, but not after the suspensive appeal has been taken.</p> <p>As to whether it should be canceled when inscribed prior to the appeal is a question left open, as it is not involved in this case.</p> <p>On Rehearing.</p> <p>6. Plaintiffs are transferees of a claim, and stand in place of their transferror.</p> <p>7. There was a settlement of account between the transferror and the defendant which binds the plaintiffs.</p> <p>8. The settlement was followed by payments of the amounts, which by agreement was imputed to the payment of debts mentioned in the settlement.</p> <p>This settlement and payment were entered ' into and made some time prior to the present suit, in which plaintiffs attack the settlement on the ground of usury.</p> <p>9. The prescription of 12 months pleaded bars recovery of amounts which have been credited on defendant’s indebtedness.</p> <p>(Syllabus by the Court.)</p>

<p>MORTGAGE — ACTION TO CANCEL — EBAUD—PARTIES.</p> <p>1. The wife of plaintiff handed over money to the late William M. Grant to buy property for her from a homestead association, and afterward handed him amounts to pay the installments of the price.</p> <p>That Grant placed the title in his own name and paid the installments in his own name is the testimony of record.</p> <p>In course of time it became known to plaintiff that the title of the property was in the name of Grant.</p> <p>Grant and the daughter of plaintiff appeared before a notary, who read the act of sale to them. Grant retained a mortgage of $3,000 on the property.</p> <p>The action is brought to cancel this mortgage on the ground that it was not the property of Grant, and that he had no right to it.</p> <p>The vendee, having neglected to listen to the conditions upon which the title was placed in her name, viz., that she was to pay to the vendor $3,000, might protect herself against any loss on account of this mortgage. She cannot, however, set up defenses and urge rights in the interest of third persons.</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>Habeas corpus by the state, on the relation of Edward F. Taylor, against Julia A. Jones. Judgment for defendant, and relator appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles V. Porter, Judge.</p> <p>Action by Mrs. A. M. Voiers against Atkins Bros. Prom the judgment both parties appeal.</p>

<p>MUNICIPALITIES — CONSTRUCTION OE SIDEWALKS — BANQUETTING STREETS — ORDINANCE — NOTICE TO OWNER.</p> <p>1.Act No. 114 of 1886, p. 211, has reference exclusively to the repairing or regrading of sidewalks already in existence. Act No. 119 of 1886, p. 217, amended by Act No. 142 of 1894, p. 179, has reference to the construction of sidewalks where none existed before.</p> <p>2. Authority to pave a sidewalk includes, as a necessary incident, authority to grade, curb, and drain.</p> <p>3. To “banquette” a street means to construct on one or on both sides of it a sidewalk such as will conform with the city ordinances on the subject.</p> <p>4. The provision of Act No. 119 of 1886, p. 217, by which, before the city council can vote to have any sidewalk constructed, it must give notice by publication of such contemplated vote, provides for a different case from that provided for by Ordinance 8422, O. S., requiring that, after the council has ordered a sidewalk to be constructed, notice of such action shall be given to the property owner in interest. Therefore the said statute and ordinance are not in conflict with each other.</p> <p>5. A property owner who has not had the benefit or the notice provided for by Ordinance 8422, O. S., cannot be forced to pay for a sidewalk constructed upon his property by contract with the city.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish ■of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Henry J. Bruning against Madeline Braun Barrett. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court,' Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Charles G. Hardy against Paul Pecot, sheriff, and others. Judgment for plaintiff, and defendant Pharr appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Frederick Durive King, Judge.</p> <p>Application by the state, on the relation of Edward Galle, for writ of mandamus to the city of New Orleans. Judgment for relator, and defendant appeals.</p>

<p>SALE OF LEASE — PAYMENT OF PRICE — SUSPENSION — DANGER OF EVICTION — BOND OF SELLER.</p> <p>1. The purchaser cannot suspend the payment of the price because of a danger of eviction, of which he was informed at the time of the purchase.</p> <p>2. Danger of eviction justifies the suspension of payment of the price only until the seller has furnished bond. In all cases where the-price is due and payment is refused, the seller is entitled to judgment, subject to stay of execution until the danger of eviction has ceased,, or bond has been furnished.</p> <p>3. Where the seller sues for an absolute and unconditional judgment, and the purchaser pleads danger of eviction, and the seller does-not ask to be permitted to give bond, and the purchaser does not ask that the seller be required to do so, the court will nevertheless so-decree. The prayer for an absolute judgment includes a prayer for a conditional judgment, on the principle that the greater includes the less.</p> <p>4. Whether, when the purchaser is in danger of being evicted from one-fifth of the property, the bond to be given by the seller should be for one-fifth or for the whole-of the price, quEeret But when the purchaser has sold half of the property, and is gradually disposing of the remainder, he must be held to have elected not to ask for a rescission of the sale, and in such case a bond be given only for that part of the property as to which there is danger of eviction.</p> <p>(Syllabus by the Court.)</p>

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

<p>CONTRACT — SALE OB -TIMBER — CONSTRUCTION.</p> <p>1. Where parties have agreed that timber sold should be measured by the Doyle rule, the agreement will be enforced, without regard to customary deviations from a rule which, on account of its fairness, has been adopted by the Legislature of this state. Act No. 87, p. Ill, of 1S92, and Act No. 64, p. 89, of 1898.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge ad hoc.</p> <p>Action by Aalery Sallier, curator, and others against Thomas Bartley; J. E. Le Besse, warrantor. Judgment for plaintiffs, and defendant appeals.</p>

<p>APPEAL — JURISDICTIONAL AMOUNT — BEOEIVEKS —ACCOUNTING—HOMOLOGATION—ACTION AGAINST COEPOEATE SUBSCEIBEE.</p> <p>1. In cases of insolvency, the test of our appellate jurisdiction is not the amount actually distributed under a provisional account, but the amount of the fund to be distributed in the ease. Brierre v. Their Creditors, 9 South. 640, 43 La. Ann. 423. The liability of a particular stockholder of the insolvent corporation for unpaid subscription is an incidental issue, which does not affect the question of jurisdiction on an appeal from the judgment of homologation.</p> <p>2. Section 8, Act No. 159, p. 315, of 1898, requiring the clerk to,enter in the order book notice of the filing of every petition, motion, etc., has no application to appeals, which are matters of constitutional right.</p> <p>3. Where the receiver filed his annual account, containing a detailed statement of the liabilities of the corporation, and showing collections and disbursements to date, on the homologation of said account, after due notices, and there being no opposition, the testimony of the receiver that all of said liabilities, except those styled contingent, were just debts of the corporation, as shown by its books and by notes and judgments, was sufficient to warrant the judgment of homologation. Succession of Rabasse, 23 South. 910, 50 La. Ann. 746.</p> <p>4. The suit brought by the receiver against the appellant to recover 65 per cent, of his unpaid subscription is not before this court, but if more should be collected by said suit than is necessary to pay appellant’s proportionate share of debts of the corporation, and the costs and expenses of administration, he would have his recourse for reimbursement against the receiver. Insurance Oo. v. Walle, 29 South. 503, 105 La. 89.</p> <p>(Syllabus by the Court.)</p>

<p>ARREAL — TIME OR TAKING — SURETY—RELEASE.</p> <p>1. Delay for appeal dates from signature, not from rendition of judgment.</p> <p>2. The appellant is not responsible for an error in the return day, though his counsel wrote the order; especially where the prayer was that the appeal be made returnable according to law.</p> <p>■On the Merits.</p> <p>3. The surety is released by any change in the principal contract without his consent; also | by failure to give him notice of the commencement of work, when such notice is stipulated to be given. '</p> <p>(Syllabus by the Court.)</p>

<p>DEED — CONSTRUCTION—DESCRIPTION OF PROPERTY.</p> <p>1. Where reference is made in an act of sale of real estate to the title under which the vendor holds, both acts should be consulted, and taken together, to ascertain the true description of the property. Bank v. Denhan, 7 Rob. 40; Labicbe v. Jahan, 9 Rob. 30.</p> <p>Breaux, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommervilie, Judge.</p> <p>Proceedings between E. Conery, Jr., and his creditors. From an order requiring the syndic to pay interest on certain moneys received, he appeals.</p>

Théard, Judge. Application by the state, on the relation of J. C. Aucoin, for a writ of mandamus to the board of police commissioners. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Eli S. Moorman against the Plummer Lumber Company. Judgment for plaintiff, defendant appeals.</p>

<p>REMOVAL OE CAUSES — SEPARABLE CONTROVERSY —CITATION — SERVICE — APPEARANCE — COMMISSION TO TAKE TESTIMONY — CROSS-INTERROGATORIES.</p> <p>1. Furnishers of materials to contractors, to-be used by them in the construction of a building, not having been paid, brought suit against them, claiming also a privilege upon the building. They made parties defendant the contractors, the owners of the building, and a surety company, which had executed, with the aontractors, in favor of the owners of the building, a bond for the faithful performance of the building contract. The owners of the building were made parties not only by reason of interest in the question of privilege on their property, but because it was charged by plaintiff that they had become personally liable to them as unpaid materialmen by not having required from the contractors a bond to secure the payment of workmen and materialmen. The surety company was made a party for the reason that, the contractors having defaulted upon their contract, they had assigned the same, with all its rights, and all materials belonging to-them, to their surety, which had assumed all their obligations in reference to the contract. The plaintiff was a Missouri corporation. The contractors were citizens of Texas. The surety company was a citizen of Maryland. The owner of the building was a Louisiana corporation. The contractors and the surety company applied to have the suit removed to the federal court. The application was denied by the district court. Its ruling was correct.</p> <p>2. The Fidelity & Deposit Company excepted' that the citation claimed to have been made upon it was null and void, as the person upon whom service had been made was not authorized to receive process, and, as a consequence of want of citation, it prayed that a default which had been taken should be set aside. The court, under the facts, set aside the judgment by default, with reservation to make new citation. New service was made. The judgment by default was properly set aside. There was no necessity for a new service. The fidelity company, by joining the contractors in the application for a removal of the case, brought itself into court as of the date of that application. After that date plaintiff applied for the taking of testimony in Texas under a commission. All the defendants were notified to cross-the interrogatories. The contractors, in writing, reserved their right to object to questions- and answers when made, but declined to cross the interrogatories, and submitted the question. The other defendants ignored the order. On the trial the surety company objected that the testimony had not been taken contradictorily with it. The court overruled the objection, and allowed the testimony to be admitted. The ruling was correct. The fidelity company was before the court when notified to cross. It was not necessary that the case should have been at issue at that time. Besides this, the contractors, in whose shoes it then stood under the assignment, were unquestionably in court at that time, and the relations between the parties were such as to make the testimony taken contradictorily with the contractors admissible against it. Late v. Armorer, 14 La. Ann. 826.</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 Eugene Dietzgen Company against Herman Kokosky. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Francesco Gianfala was convicted of manslaughter, and appeals.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of West Baton Rouge; E. •B. Talbot, Judge.</p> <p>Action by the Chattanooga Car. & Foundry-Company against Victor M. Lefebvre. judgment for defendant, and plaintiff appeals..</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Maggie Ray against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiff. Defendant appeals..</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by Hattie D. Griffith and husband against W. B. Alcocke and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>INJURY TO EMPLOYÉ — LIABILITY OE MASTER— NEGLIGENCE — EVIDENCE—WARNING— ASSUMPTION OE RISK.</p> <p>1. The small stream, owing_ to the rising waters, was about 300 feet in width, with a strong current. There was a railroad trestle across the stream, which was threatened by the drift jammed against it. A foreman and nine men undertook to remove the débris on a dark, cold night, with insufficient light. In pulling up the logs a limb broke from a tree, and a man seated on one of the cross-pieces of the trestle was thrown into the bayou and drowned.</p> <p>The weight of the testimony, as found by the jury, was that he was not sufficiently warned of the danger; that he was ordered by the foreman to the place on the trestle from which he was thrown; that the light was dim, and not such a light as should have been provided to do dangerous work on a dark night.</p> <p>2. The lower court and the jury decided that there was negligence on the part of defendant.</p> <p>3. Sufficient light should have been provided, the situation explained, and the danger warned against.</p> <p>4. An employe who obeys his foreman cannot be charged with having assumed the peril when nothing shows that he (the employe) was aware of the great peril to which he was exposing himself.</p> <p>5. The servant did not select the mode of performing the duty. The lower court decided that it was selected for him. The record" does not show the erroneousness of the conclusion.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Annie Hailey against the Texas & Pacific Railway Company.' Judgment for plaintiff, and defendant appeals.</p>

<p>Application by the state, on the relation of J. D. Humble, against M. F. Machen, Judge Fifth Judicial District, and others, for writs of prohibition.</p>

<p>EES JUDICATA — POLICE JUEIES — BONDS.</p> <p>1. An evidence of indebtedness, negotiable in form, was placed in the hands of a trustee or custodian. Part of the evidence of indebtedness was owned by the trustee or custodian.</p> <p>He instituted suit on the whole claim in his own name. The owner of that part which did not belong to the trustee gr custodian became aware that suit had been brought. He never objected to the suit.</p> <p>Res judicata operates as bar both against the trustee and custodian to the extent of his interest; and against the owner, the plaintiff in this case, to the extent of his interest.</p> <p>2. Police juries can exercise only such powers as are delegated to them. While they may impose a tax and have it collected, they are without power to issue negotiable paper. Hazie v. Police Jury of Parish of Madison, 28 La. Ann. 263; Sterling v. West Feliciana, 26 La. Ann. 60; Snelling v. Joffrion, 42 La. Ann. 886, 8 South. 609; Flagg v. Parish of St. Charles, 48 La. Ann. 765, 19 South. 944.</p> <p>The warrant and bond upon which suit was brought are negotiable instruments. Without them plaintiff would not have the shadow of a claim. They are in third hands, and not identified with any special work. They do not represent the value of work performed as shown by the evidence.</p> <p>3. The police jury must provide for paying debts when they create them. Benham v. Parish of Carroll, 28 La. Ann. 343; Smith v. Parish of Madison, 30 La. Ann. 461; Police Jury v. Britton, 15 Wall. 566, 21 L. Ed. 251; Young v. Police Jury of Concordia, 32 La. Ann. 394.</p> <p>Act of 1829, p. 102, No. 31, relative to levees in Concordia, which dispensed that parish from the necessity of providing for the payment of a levee debt which it had contracted, is to be construed with section 2786 of the Revised Statutes. The two laws are not inconsistent. The parish may have the plenary power to make enactment for levees and to incur any expense for their construction or repair, and still be bound to provide for the payment of a debt thus incurred simultaneous with enacting it. Young v. Police Jury of Concordia, 32 La. Ann. 394.</p> <p>The police jury did not provide in the act creating the debt the means for its payment.</p> <p>(Syllabus by the Court.)</p>

<p>EMINENT DOMAIN — EXERCISE OE BIGHT— PROCEDURE — APPEAL—INJUNCTION.</p> <p>1. The state has imposed upon itself and upon the political corporations established by it the same conditions in the respect to the exercise of the power of eminent domain as are imposed upon other corporations to which that power is granted.</p> <p>2. The mere determination of the state or of a political corporation to expropriate property does not devest the title of the owner, and the courts ought not at that stage to interfere with the owner’s dominion, save to the extent necessary for the ultimate accomplishment of the purpose contemplated by proposed expropriation.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of the board of liquidation of the city debt, for writs of prohibition, certiorari, and mandamus to W. B. Sommerville, judge of Division D, acting for Fred D. King, judge of Division B, and others.

<p>SHIPPING — CHARTER PARTY — ESTOPPEL.</p> <p>1. The party appearing in a charter party as owner of the vessel chartered was in reality only an agent of the owners, acting as between himself and the owners under limited powers, and under a special agreement as to compensation.</p> <p>This agent- employed subagents, with whom the owners had no dealings. The rights of the latter as to commissions are controlled by the terms of the actual contract which their principal had made with the owners.</p> <p>2. Though certain allegations made in a suit brought by A. against B. to which suit C. is no party, may be utilized by C. in a suit between himself and A., as containing admissions in his favor, they cannot be urged by him as working an estoppel against A. Between them they are open to explanation and correction.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — PROCEDURE — JUDICIAL SEQUESTEAj TION —LESSEE IN POSSESSION — POSSESSORVbig ACTION — SUSPENSIVE APPEAL — MANDAMUS.</p> <p>1. While the effect of appeal is to cause the case to pass out of the trial court and into the appellate court, yet the trial court may in certain cases order the judicial sequestration of the property in controversy after the appeal has been perfected.</p> <p>2. The lessee in possession by a lease duly recorded has the same right to maintain his possession as against his lessor, or as against any one claiming by virtue of a transfer of the property made by the lessor subsequently to the registry of the lease, as he has against any other person.</p> <p>3. In the present case the transferee_ of the lessor brought a possessory action against the lessee, coupling the suit with an injunction to prevent the lessee from trespassing upon or interfering with the property. The suit was dismissed, and the injunction dissolved after trial, and the plaintiff obtained and perfected a suspensive appeal. Thereafter the plaintiff drilled an oil well upon the property and “brought in” an oil gusher, and was proceeding to appropriate the oil, when the court ex officio ordered its sequestration. Held, the court had authority to make the order notwithstanding the appeal.</p> <p>4. The trial court having subsequently dissolved the sequestration as having been granted coram non judice, a suspensive appeal was asked from the dissolving order and -refused, and an application was made to this court for a mandamus to compel the granting of same. Held, that in considering this application this court will not pass upon the validity of the lease involved in the possessory suit; that to do so would be to decide that suit in advance of its being tried in this court.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish ■of Orleans; Frederick D. King, Judge.</p> <p>Action by M. L. Casey, administratrix, .against H. Abraham & Son and others. Judgment for defendants, and plaintiff appeals.</p>

<p>TUTRIX — ACCOUNTINQ—PRESCRIPTION -=- PARTITION — RESCISSION—MINOR HEIRS — PLEADING.</p> <p>1. On the face of the petition, plaintiff’s demand against his former tutrix for an account has long since been barred by the prescription of four years. Civ. Code, art. 362.</p> <p>2. An action for a partition cannot be prescribed against as long as the property remains in common, and such community is acknowledged or proved, but such an action may be barred by the continued and uninterrupted separate possession of one of the heirs or joint owners for 30 years. Civ. Code, arts. 1304, 1305.</p> <p>3. In case of minors, where the formalities prescribed by law have not been fulfilled, the partition is considered as provisional, and it is not necessary to sue to rescind it, but a new partition may be demanded for the least lesion. Civ. Code, arts. 1399, 1400.</p> <p>4. Where the prescription pleaded depends on adverse possession and other facts, they should be set forth in the plea; but, when the allegations of the petition admit possession in defendant under a partition, the case will be remanded for trial on the merits.</p> <p>On Rehearing.</p> <p>5. A plea of prescription liberandi causa, filed as an exception in limine, which contains no affirmative allegations to break the force of plaintiff’s allegations, but relies upon certain admissions in his petition, should not be' sustained if his pleadings, taken as a whole, properly present for decision on the merits matters of fact which affect the question of prescription. The exception should be referred to the merits, to be disposed of on the trial of the case.</p> <p>6. The Supreme Court has authority, under article 906 of the Code of Practice, to remand cases when the condition of the record is such, in its opinion, as will not enable it to pass upon the issues submitted to it intelligently and with justice to all parties.</p> <p>(Syllabus by the Court.)</p>

Action by W. W. Carre & Co. against Jesse H. Massie. Judgment for plaintiff was affirmed in the appellate court, and defendant brings certiorari.

<p>TAXATION — EXEMPTIONS—FLOUR AND FEED.</p> <p>1. The word “flour,” in article 230 of the Constitution of 1898, in reference to exemption from taxation, is used in a restricted or special sense, as “the ground and bolted substance of wheat manufactured for human, consumption”; and the word “feed,”-which has been adopted by the plaintiff corporation as descriptive of and characterizing the business in which it was engaged, has also a special meaning. It signifies a “food for cattle.”</p> <p>2. The grinding of the cereals which passed through plaintiff’s mill was but the initial step towards the production of the articles whose sale was the object and purpose of the creation of the corporation. Not a pound of “flour,” in the sense in which that term is used in the Constitution, has been sold by it.</p> <p>Plaintiff’s claim to exemption is not well founded.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the state, on the relation of the Jennings-Heywood Oil Syndicate, for writ of mandamus to Conrad Debaillon, judge.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Walter L. Saxon against the Southwestern Brick & Tile Manufacturing Company, Limited. From an order appointing a receiver, Francis Bruseau and T. H. Bradley, interveners, appeal.</p>

<p>JOINT OWNERS — EIGHTS AND POWERS — ACCOUNTING — ACTION POE POSSESSION — BENTS OP JOINT PROPERTY.</p> <p>1. Where the joint owners of a storehouse cannot agree as to its administration, and the evidence shows that the joint owner in possession has charged himself with the full rental value of the property, and expended same for the common benefit in defraying expenses of cultivating a plantation jointly owned by the parties, plaintiffs’ remedy is by suit for a partition and settlement of accounts, or for a division of profits, and not by action for possession and to recover their proportion of the rents of the storehouse, with damages.</p> <p>On Rehearing.</p> <p>2. An amount due by a joint owner for rent of property which he has used, without objection of his co-owners of property, toward defraying the expenses of other property, a plantation owned in common, will remain on the “plantation account” in settlement of plantation affairs to be accounted for.</p> <p>3. The owner in possession had no right to continue applying the rent toward paying expenses after suit brought, fully notifying him that they did not consent to the use of the rental as made, but were opposed to it.</p> <p>4. Where the facts show that a joint owner of .a property is holding on to rental without right, and applying it to a purpose against the wish of the owners, they are entitled to judgment for the rental from the day that the joint ■owner, who is lessee, is notified that he must cease thus to apply the fund.</p> <p>5. After notice they were funds for which the joint owner, lessee as well as agent, is liable.</p> <p>6. If a joint owner wrongfully confiscates a joint owner’s rent, the latter may sue to recover the rent and be reinstated in his rights as joint owner.</p> <p>7. At first the joint owner used the property, ■of which he afterwards became tenant, with due regard to the rights of his co-owners. Afterward he applied the rent to pay the expenses ■on another property also owned in common.'</p> <p>Held, that he could not, in opposition to the will of his co-owners, continue to use the rental in payment of the expenses of other property. The rent under the circumstances did not enter in all the accounts between the parties, to be used as one of the number might please. He was the agent of the joint owners, and is accountable to them for their portion of the rent from the date that he was notified to thus account.</p> <p>Land, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; Benjamin P. Edwards, Judge.</p> <p>N. J. Rasberry was convicted of intimidating a witness, and appeals.</p>

<p>CRIMINAL LAW — APPEAL—JURISDICTION OF SUPREME COURT — CITY COURT — TRIAL DE NOVO —CONSTITUTIONAL LAW.</p> <p>1. Defendant was prosecuted before the criminal court for violating Act No. 118, p. 181, St. 1888, which makes the slandering and defaming of persons of “good repute without a probable cause, a misdemeanor.”</p> <p>2. He was found guilty by the city court of Shreveport, and condemned to pay a fine of $1,-000, or to work two years on the public roads. He appealed to the district court. His appeal was dismissed on the ground that Act No. 29, p. 34, St. 1900, is unconstitutional.</p> <p>3. The organic law ordains that appeals may be taken in criminal cases where a law has been declared unconstitutional, or where a fine exceeding $300 has been imposed, or imprisonment exceeding six months.</p> <p>4. The Constitution of 1898 vests appellate jurisdiction in the Supreme Court where a law has been declared unconstitutional, in civil and in criminal cases.</p> <p>5. When the Constitution said “all cases,” it meant to, and did, include all cases, civil or criminal.</p> <p>6. The Supreme Court has jurisdiction on the law where the fine imposed exceeds $300.</p> <p>7. There was no authority delegated to the Legislature to modify this jurisdiction, and vest the district court with jurisdiction on appeal from the city court — that is, it had no authority to authorize an appeal from the city court to •the district court, and, after decision in the latter court, authorize an appeal to the Supreme Court.</p> <p>8. Appeals from mayors or recorders are to be taken to the district court upon giving' security for fine and costs of courts, and the case is to be heard de novo in the district court on appeal. Const, art. 111.</p> <p>The article does .not include within its terms appeals from the city court.</p> <p>9. The mayor’s and recorder’s courts are different courts, with different jurisdictions. An article of the Constitution which authorizes legislation vesting the one court with jurisdiction does not include another court — the city court— not referred to eo nomine.</p> <p>10. An appeal and trial de novo is an appeal, and not exclusively a hew trial. No rule of interpretation would sanction reading out the word “appeal” from the statute, and construing it to mean authority to hear the case as in new trial only. The Legislature has not provided for a new trial — only for an appeal.</p> <p>11. The Legislature can restrict the jurisdiction under the wording of the power granted. It cannot enlarge it.</p> <p>12. The court has not found it possible to decide that an appellant might take his appeal direct to the Supreme Court on the law of the case, or, on giving bond for the amount of fine and costs, he may obtain a trial de novo in the district court, without touching his right to a final appeal to the Supreme Court on questions of law alone.</p> <p>(Syllabus by the Court.)</p>

' Action by John Lee against John Foley. Judgment for defendant, and plaintiff appeals. On subsequent death of appellant, his widow was duly substituted.

<p>Application by .the state, on the relation of R. T. Rogers, for writs of mandamus, prohibition, and certiorari to.W. J. Gray, Judge of the Seventh Judicial District Court.</p>

<p>CRIMINAL LAW — EVIDENCE AT PRELIMINARY EXAMINATION — WITNESS—CREDIBILITY.</p> <p>1. Certain facts stated in the opinion are held to afford sufficient proof of the permanent absence of the witness from the state to lay a foundation for the admission of the testimony of the witness taken at the preliminary examination.</p> <p>2. That a witness was drunk on the occasion as to which he is called upon to testify goes to his credibility and the weight of his evidence, and not to his competency to testify.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second Judicial District Court, Parish of Bossier; John Thomas Watkins, Judge.</p> <p>Ed Richardson was convicted of crime, and appeals.</p>

<p>Certiorari to Court of Appeal, First Circuit.</p> <p>Action by Jules E. Messi and others against J. M. Frechede. Judgment for defendant, and plaintiffs- appeal.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Landry Bordelon and others were convicted of murder, and appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia;- Conrad De Baillon, Judge.</p> <p>Action by Colastie Landry and others against Philip Laplos. Judgment for defendant, and plaintiffs appeal.</p>

Chrétien, Judge. Richard Behan and others were indicted for keeping a banking house, and Dennis Hannan was convicted, and appeals.

<p>CRIMINAL LAW — CONTINUANCE—EVIDENCE—OBJECTIONS — REVIEW—BIGAMY.</p> <p>1.The application for a continuance was properly refused under the state of facts disclosed by the bill of exceptions.</p> <p>2. A paper certified to by the clerk of the circuit court of Wabash county, Ind., to the effect that it was a “true copy” of a particular document as it appeared on file and of record in his office, is properly admitted in evidence as against the specific objection made that, when admitted under such a certificate, it would not prove the verity of the facts recited in the document itself, nor the capacity or authority of the person who executed that document. The objections set up went to the effect of the document, not to its admissibility under the certificate of the clerk. The certificate to the document was not such as the objection assumed it to be. The attestation of the judge of the circuit court to the document was sufficient for a certificate such as this was.</p> <p>3. A letter offered in evidence was properly admitted, as against the specific objections that it was not complete and had no date. It was not essential for the letter itself to have had a date. The date of the writing could be established aliunde. It was not pretended that the letter, in its condition as offered, was not the precise letter received; besides, the specific purpose for which it was offered was not affected by the fact of the contents not being complete.</p> <p>4. Defendant was indicted for bigamy, his first marriage being charged to have been celebrated in Indiana. On the trial, defendant permitted evidence, direct or circumstantial, or both, to be admitted as to the facts connected with the celebration of the marriage in Indiana. The statutes of Indiana were not offered in evidence. The jury returned a verdict of guilty. On appeal the judgment is asked to be reversed on the ground that, in the absence of affirmative proof before the jury of the laws of Indiana, it was without' right to assume that the laws of Indiana were similar to our own, and apply the laws of Louisiana to the evidence adduced. The jury having returned a verdict of guilty, and the court having refused a new trial based on the claim that the verdict was contrary to the law and the evidence, the appellate court is bound to assume, until the contrary be affirmatively shown, that the jury had before it evidence to justify the verdict. State v. Barrow, 31 La. Ann. 692.</p> <p>The Supreme Court is not justified in reversing the verdict of the jury upon the pure “assumption” on its part that the laws of Indiana differed from those of Louisiana, and that the first marriage was a nullity.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — PLEA — SETTING ASIDE — APPEAL — RECORD—PRESENCE OP ACCUSED —PETIT LARCENY — SENTENCE.</p> <p>1.A plea of guilty, which has been induced by error, should be permitted to be set aside.</p> <p>2. The oath of the accused verifying a motion to set aside such a plea, comes up as part of the pleadings, and, in order that it may be considered by this court, does not necessarily have to be annexed to the bill of exceptions reserved to the ruling of the court on the motion.</p> <p>3. The following entry on the minutes: “The defendant, Clem Coston, assisted by his counsel, AVm. C. Pegues, Esq., in open court, withdrew his plea of not guilty and pleaded guilty to petty larceny” — fails to show that when the plea was entered the accused was present in court in person.</p> <p>4. In cases of felony the accused must be present in court in person when a plea of guilty is entered.</p> <p>5. Petit larceny being punishable or not by imprisonment in the penitentiary, accordingly as the value of the stolen property falls above or below $20, the value of the property charged to have been stolen must be fixed either by plea or by verdict before the judge can pass sentence ; hence the judge cannot impose a sentence of imprisonment in the penitentiary in a case where, the charge being larceny, the accused has entered a plea of guilty of petit larceny.</p> <p>(Syllabus by the Court.)</p>

<p>SUPREME COURT — JURISDICTION — RECONVEN TIONAL DEMAND-AMOUNT IN CONTROVERSY — TRANSPER OP CAUSE.</p> <p>1. The amount in dispute between plaintiff and defendant is $493, the price' of adjudication of four lots of ground sold at public auction, and said amount is far below the minimum of our jurisdiction.</p> <p>2. A third party called in to assert title, if any she had, to the lots in controversy, filed an answer to plaintiff’s petition — first, asserting title to the property in Controversy; and, secondly, claiming the ownership, “by way of reconvention,” of two squares of ground, one of which included the lots in dispute, alleging that the whole was claimed by plaintiff under the same chain of title. Held that, as the judgment appealed from was rendered on a reconventional demand, the appeal should have been to the court having jurisdiction of the main demand, as provided by article 95 of the Constitution of 1898.</p> <p>■3. This court notices its want of Jurisdiction on its own motion, and orders the cause transferred to the Court of Appeal, parish of Orleans, pursuant to Act No. 56, p. 135, of 1904.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.</p> <p>Richard Guidor was convicted of murder, and appeals.</p>

<p>EXPROPRIATION — EXCEPTIONS TO THE MERITS— APPEAL — HARMLESS ERROR — CORPORATION — ACTION—PARTIES.</p> <p>1. The court again animadverts upon the deplorable practice of referring to the merits exceptions that do not involve the merits.</p> <p>2. Especially should not such exceptions be referred to the jury of freeholders, whose jurisdiction is special, and extends to those questions alone which the law directs shall be submitted >to it.</p> <p>3. Not every error will furnish sufficient ground for setting aside a judgment and ordering another trial. There must be prejudice to the appellant, and the prejudice must be such as cannot be remedied on the appeal.</p> <p>4. A corporation can sue in its own name, without any necessity of designating its president or any of its other officers in the petition.</p> <p>5. Private property can be expropriated under the eminent domain power only for a public purpose. Hence the defendant in an expropriation suit may always raise the question of whether the purpose for which his property is •sought to be expropriated is public in its nature. Whatever may be the reason why the purpose is not public, it may be shown.</p> <p>(Syllabus by the Court.)</p>

<p>FORGERY — INFORMATION — SUFFICIENCY — INSTRUMENT FORGED — ORDER FOR GOODS.</p> <p>1.It is not essentially necessary for a prosecution in every case, under section 833 of the Revised Statutes, that either of the words “forge,” “counterfeit,” or “alter” should be employed in the information. It was sufficient in this particular case to charge the accused with having “falsely made” the instrument (which was copied in the information), declaring it to be (as it was on its face) “an order for money or goods,” and declaring further that that instrument was “falsely made” by the party charged, with the intention of defrauding some one.</p> <p>2. The information in this case having, in the exact terms of the statute on which the prosecution was based, charged the accused with having done the very act denounced therein as a crime, there was no necessity for supplementing its recitals by an additional statement of facts.</p> <p>3. It was not necessary, in the information filed in this case, to have set out that a particular amount in money or goods of any particular quantity or value had been fixed in the order (falsely made) for the payment of goods.</p> <p>4. It was not necessary to the offense charged in this case that the instrument should be one which, if genuine, would be a binding obligation. It is sufficient that the instrument purports to be good. The want of validity must appear on the face of the papers. The prefixing of the abbreviation “Mrs.” to the name of a person purporting to have signed an order for the payment of money or goods does not carry with it the presumption that the signer , was a married woman, or, being one, that her order was not a valid or legal order.</p> <p>(Syllabus by the Court.)</p>

<p>GAMBLING — INFORMATION—SUFFICIENCY —AID - ING AND ABETTING — FARO—EVIDENCE.</p> <p>1. The defendant, prosecuted under a statute directed against gambling, was charged, without uncertainty or ambiguity in the charge, with having committed an offense in violation' of the statute.</p> <p>2. The statute is complete and plain enough. There was no necessity, in writing the information, to expand and amplify it beyond the statutory words.</p> <p>3. The present statute, under which defendant was prosecuted, in substance, re-enacted the repealed act of 1855, p. 145, No. 120, and decisions rendered under the act of 1855 are authoritative and have bearing upon issues here.</p> <p>4. In a prosecution under the very statute under which defendant is prosecuted, this court held:</p> <p>“This instrument is drawn in the words of the statute, and although the latter denounces distinct offenses, it does not follow that these cannot be included in the same count without being obnoxious to the charge of duplicity. The rule that the defendant must not be charged with having committed two or more offenses in any count of the indictment does not apply to cumulative offenses denounced in the same statute.” State v. Markham, 15 La. Ann. 498.</p> <p>5. One who aids and abets in keeping a banking game or banking house — the act being made one by statute with the principal act — may be prosecuted in one count setting out the principal and the acts of aiding and abetting.</p> <p>6. “A faro game is a banking game.” State v. Markham, supra.</p> <p>7. The offense alleged was one of a system of mutually dependent offenses. Evidence of a prior offense, not remote, was admissible to prove the continuity of the offense, but not to prove the offense charged.</p> <p>8. Grounds had been laid of offense committed before proof was offered of prior offense of keeping a banking game, or of assisting in keeping such a game.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Eugene Chretien against the New Orleans Railways Company. Judgment for defendant, and plaintiff appeals.</p>

Petition by the state, on relation of Allen B. Hundley, district attorney, and another, for writs of certiorari and prohibition to W. F. Blackman, judge.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Application of John E. Lindner to be put in possession of property bought at tax sale. Philip J. Helmbeck sued out an injunction, and from an order dissolving the same he appealed.</p>

Action by James Schroeder against Charles Collins. Judgment for defendant was affirmed by the Court of Appeal, and he applies for certiorari or writ of review.

<p>CRIMINAL LAW — TRIAL—INSTRUCTION ON TIIB FACTS.</p> <p>1. Under Rev. St. 1870, § 785, the jury, in any trial for murder, may bring in a verdict of manslaughter; and where the trial judge, charging the jury in the language of that section, intimates that, in his opinion, it has no application to the case then being tried, he trenches upon the facts, in violation of Rev. St. 1870, § 991, and the conviction of murder must be set aside.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; William Jefferson Gray, Judge.</p> <p>William Clayton was convicted of manslaughter, and appeals.</p>

<p>HOMESTEAD — EIGHTS 01? WIDOW.</p> <p>1. The widow left in necessitous circumstances is entitled to the $1,000 homestead, though she does not live and has never lived in this state.</p> <p>Breaux, O. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Judge. In the matter of the succession of Charles. W. Henry. Harley A. W. Howcott was appointed dative testamentary executor. Sallie F. Henry filed an opposition, and from the judgment appealed.

<p>Appeal from Ninth Judicial District Court, parish of East Carroll; Francis Xavier Ransdell, Judge.</p> <p>Giles Golden was convicted of manslaughter, and appeals.</p>

Action by Mrs. Francis McMiehael against W. J. Davis and others. Judgment was affirmed by the Court of Appeal, and defendants apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by George L. Bright against Samuel H. Bell and others. Judgment for defendants, and plaintiff appeals.</p>

<p>FACTORS — CONSIGNMENTS—BILLS OF LADING-INSTRUCTIONS.</p> <p>1. Under the facts of this particular case, the proposition that a consignee receiving shipments of goods under bills of lading reading for account of some particular person is estopped from doing any act which would inure to his benefit, or that of others for whom he is agent, in conflict with the instruction of the bills of lading, receives no application.</p> <p>(Syllabus by the Court.)</p>

Certiorari from Court of Appeal, First Circuit. Action by J. W. Harris against M. W. and J. T. Wafer. Judgment for plaintiff was affirmed on appeal, and defendants apply for certiorari or writ of review.

Paul, Judge. Action by Frank Boimare against Anatole St. GSme and another. From an order authorizing defendant St. GSme to furnish bonds and claim possession of property sequestered, plaintiff appeals.

<p>CONTRACT — PERFORMANCE—SET-OEJ? — SEQUESTRATION — COSTS—RECON VENTIONAL DEMAND.</p> <p>1. Where there has been an imperfect performance of a contract for the irrigation of a rice crop, and the parties have elected to let the contract go on to the end of the irrigation season, and the crop has suffered from the failure to furnish water in time and in sufficient’ quantity, the water rent stipulated in the contract will be due up to the full amount thereof, if the crop has been benefited that much; but the debt will be offset by any loss that may have resulted from the dereliction of the contractor.</p> <p>2. In such cases only the excess of the rent can serve as a basis for sequestration.</p> <p>3. Where there is a reconventional demand, and both parties are cast, each must pay the costs occasioned by the demand of the other; and, where the testimony has borne on both demands, the costs thereof will be divided.</p> <p>(Syllabus by the Court.)</p>

John the Baptist; Jerome Louis Gaudet, Judge. Action by A. S. Ezidore against the heirs of Sidney Cureau. John Henry Jackson, tutor, files third opposition. From the judgment, plaintiff appeals.

<p>Application by the state, on the relation of H. S. Hart, for writ of certiorari to Cal D. Hicks, judge of the city court of Shreveport.</p>

Action by George M. Lomax and others against W. H. Phillips. Judgment for plaintiffs was reversed by the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

Action by the Ruddock Cypress Company, Limited, against Jean Peyret. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

Action’ by J. C. Green against the Farmers’ Consolidated Dairy Company, Limited. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant brings certiorari or writ of review.

<p>DISMISSAL 01? ACTION — WANT OE PROSECUTION.</p> <p>1. Under Act No. 107, p. 155, of 1898, amending- and re-enacting article 3519, Civ. Code 1870, a suit is considered abandoned when, at anytime before obtaining- final judgment, the plaintiff allows five years to elapse without taking any steps in its prosecution, and, at the suggestion of any party in interest, it may properly be stricken from the docket or dismissed.</p> <p>Nicholls, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of M. W. Darton. Rule of Henry Willet against the succession to show cause why inscription of an agreement should not he erased. From an order granting the rule, affirmed by the Court of Appeal, Edgar M. Cahn and Daniel B. Darton, administrator, apply for certiorari or writ of review.

In the matter of the succession of T. A. Oliver. Application of Mrs. Theresa A. Frisch for appointment as tutrix was opposed by Oscar Oliver. From a judgment granting the application, the opponent appeals.

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; J. L. Dagg, Judge.</p> <p>John Brackin was convicted of assault with intent to kill, and appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St Tammany; Frederick D. King, Judge ad hoe.</p> <p>Action by Henry J. Smith against Paul J. Dulion and Edward J. Frederick. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by John H. Sundmaker against J. A. Gaudet and Henry Lambert. Action dismissed as to Lambert. Judgment in favor of defendant Gaudet, and plaintiff appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Mandamus by the state, on the relation of Morris R. Stewart, against David J. Reid. Judgment for defendant, and relator appeals.</p>

<p>PRIVILEGE — REPAIRS OP DREDGE — VENDOR’S PRIVILEGE — PLED GE.</p> <p>1. There is no law in this state according a privilege upon a dredge boat for money advanced to repair same.</p> <p>2. The pledgee under a bill of sale not being an owner, no vendor’s privilege arises from the execution by him of a counter bill of sale re-transferring the pledged property to the pledgor or owner.</p> <p>(Syllabus by the Court.)</p>

<p>SEQUESTRATION — PARTNERSHIP.</p> <p>1. The action was for the settlement of a partnership.</p> <p>A writ of sequestration was obtained on grounds stated, in accordance with requirement of the statute.</p> <p>The grounds were not sustained by sufficient proof.</p> <p>The sequestration is dissolved at plaintiff’s costs.</p> <p>In all other respects the judgment of the district court is affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the state, on the relation ■of Paul J. Gelpi, undercurator of Louise II. Lambert, for a writ of mandamus to Frederick D. King, judge.</p>

In the matter of the Immanuel Presbyterian Church in liquidation. The board of church erection fund and B. R. Forman filed oppositions. From the judgment they appeal. Opposition of the board of church erection fund maintained, and opposition of B. R. Forman maintained in part.

<p>MORTGAGE — LIEN—DESTRUCTION OE PROPERTY.</p> <p>1. Where a sugar house was destroyed by fire, and the machinery therein was left “in a demolished and ruined condition,” valuable only as metal, the remains of such machinery are not subject to a legal mortgage held by plaintiff, at the date of the fire, on the interest of her husband in the plantation on which said sugar house was located.</p> <p>Nicholls, J., dissenting.</p> <p>On Rehearing.</p> <p>2. The court adheres to the views expressed as to the law in the opinion heretofore handed down, and remands the case for further trial on the facts, with instructions.</p> <p>(Syllabus by the Court.)</p>

Action by James G. Simonton, agent, against S. L. Mitchel. Judgment for 'defendant, and appeal by plaintiff was dismissed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by the state, on the relation of William E. Burke, for a writ of mandamus to the sewerage and water board and others. Judgment for defendants, and plaintiff appeals.</p>

W. Ellis, Judge. Action by the state, on the relation of Lloyd Posey, against the board of assessors. Judgment for defendants, and plaintiff appeals.

Action by Widow Isaac Liehtentag against M. Feitel and others. Judgment for plaintiff was affirmed by the Court of Appeal, and M. Feitel applies for certiorari or writ of review.

<p>CRIMINAL LAW — JURY LIST — INSPECTION — DRAWING JURORS — PARTICIPATION OP SHERIFF — CONSTITUTIONAL LAW — ABSENT WITNESS — EVIDENCE — PRELIMINARY EXAMINATION-REFRESHING MEMORY — HOMICIDE—EVIDENCE — STATEMENT OF ACCUSED — REVIEW ON APPEAL.</p> <p>1. The list of names in the jury wheel required by law to be kept by the jury commissioners “as part of the records of their office” is not intended to be open to public inspection, and a motion or request by counsel in a criminal case-“to be permitted to examine the books and records of the jury commissioners,” without specification of the necessity or purpose of such inspection, but with a view to the examination of the list mentioned, is properly refused by the judge to whom it is addressed.</p> <p>2. Where the names of jurors are drawn from the wheel, but the bearers do not render the service to which they are assigned, such names are properly returned to the wheel, and they should be then relisted, but the failure to relist them is not such an irregularity as of necessity to work injury to the defendant in a criminal prosecution, or to justify the setting aside of a verdict against him.</p> <p>3. The participation of the criminal sheriff, with the jury commissioners, in the drawing of the names of jurors for service in the criminal district court, is a ministerial function, which he may discharge through a deputy.</p> <p>4. The provision of Act No. 170, p. 213, of 1894, requiring the drawing of jurors 12 days before the expiration of the monthly session of the criminal district court, refers to the session as established by the rule of the court, to wit, “from the first Monday of one month to the empanelment of the new jury on the first Monday of the following month,” and such drawing, if made 12 days before the day last mentioned in the rule, is within the law, though the court may adjourn its sittings prior to that day and less than 12 days after such drawing.</p> <p>5. The jury commissioners are not required to-make their drawings in secret, and the drawings are not invalidated by reason of the presence of the criers of the courts for which the jurors are to be drawn, provided such criers do not participate or interfere therein.</p> <p>6. The requirement of the statute that the jurors drawn for service in the criminal district court, over and above those necessary to form the grand jury, shall constitute the panel of petit jurors for the month, is not to be construed as depriving the judges of that court of the right to exercise discretion in the matter of excusing jurors from service, or as invalidating the panel in the event of the loss of some of its members by reason of death, sickness, or other sufficient cause.</p> <p>7. The power vested in the jury commissioners in the matter of selecting jurors having .proper qualifications, including good moral character, is not judicial, and the acts of 1880 (page 124, No. 98) and 1894 (page 211, No. 170) are not obnoxious to the objection of unconstitutionality as attempting to confer such power.</p> <p>8. The mere fact that by accident or oversight the jury commissioners fail to comply with the law in the matter of ascertaining the qualifications of one or more persons selected for jury duty does not operate an irreparable injury to a defendant in a criminal prosecution, who still has the privilege of examining for himself all jurors who may be called to try him.</p> <p>9. A witness may be considered permanently absent from this state when it is shown thal he claimed New York as his home; that he has only been here as a sojourner; that when last heai-d from he was in Texas, having left Louisiana owing money; and that he could not be found here after diligent search; and, upon such showing, his testimony, otherwise competent, taken upon a preliminary examination, contradictorily with the accused, is admissible in evidence in a criminal trial.</p> <p>10. A state witness in a criminal trial may be allowed to refresh his memory by referring to the testimony previously given by him on the preliminary hearing of' the accused, and may then, if he be able, testify from his recollection as so refreshed.</p> <p>11. The clothing of the accused, worn at the time of the commission of the homicide charged, may be used in evidence against him, and its production, though it be illegally taken out of his possession, is not a violation of the constitutional provision that no person shall be compelled to give testimony criminating himself.</p> <p>12. A pistol, such as may have been used in the killing of the deceased, found near the scene of the killing and within a few minutes thereafter, is admissible in evidence whether the testimony has connected the accused with it or not, the finding and the weapon itself being evidentiary facts tending, as does the bullet extracted from the body, to show the means by which, though not the persons by whom, the deceased came to his death.</p> <p>13. An exculpatory statement, in which the attempt is made to lay the foundation for a false alibi, is admissible against the accused, as tending to show a sense of guilt, coupled with a desire to escape punishment, and the state, by whom it is offered, may thereafter prove that it is untrue. Such statements do not fall within the rule governing confessions of guilt or statements tending to establish guilt.</p> <p>14. Rules of the board of police commissioners, not offered in evidence and not found in the transcript, cannot be considered by this court.</p> <p>15. The deceased having been shot to death with a pistol of a certain caliber, evidence tending to show that within a few months preceding the homicide the accused possessed a pistol, and that it was of the same caliber as that by which the deceased was killed, was relevant.</p> <p>16. Where special charges requested are covered by the charge given by the judge, the requested charges are properly refused.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Lewis W. Lyons was convicted of murder, and appeals.</p>

<p>MANDATE — CONSTRUCTION—VENDOR AND PURCHASER-TITLE TO REALTY — CERTIFICATION BY CONSUL.</p> <p>1. There is no inconsistency, in an act executed by several heirs in a succession in which they acknowledge that they have received payment in full from one of their coheirs of everything falling to them in that succession, that they appoint that coheir as their agent to sell certain real estate described in the inventory of the succession. That portion of the act was necessary in order to take out of the heirs executing the power of attorney all apparent interest in the legal titles of the immovables.</p> <p>2. It is not necessary that all the links in a chain of title to real estate should be established by authentic acts. They may be proved upon the trial by proper and sufficient evidence.</p> <p>3. Under section 1436 of the Revised Statutes of 1876, it is the duty qf the several courts of Louisiana to receive the attestation of any American consul, consul general, vice consul, or commercial agent residing in any foreign country as legal evidence of the attributes and official station or authority of any magistrate or other civil officer in such foreign country under the laws thereof, which attestation and seal shall be full and complete proof that it emanated from said consul, etc. So, when an official in Germany certifies to the genuineness of the signatures to a power of attorney, and the American vice consul certifies to the signature and seal of that officer to his capacity and authority to make the acknowledgment, the signatures to the power must be held proved.</p> <p>The laws of Louisiana cannot control foreign officials as to the formalities to be followed in taking acknowledgments. Their power and authority are fixed by their own laws.</p> <p>(Syllabus by the Court.)</p>

Appeal, from Civil District Court, Parish of Orleans; John St. Paul, Judge. In the matter of the succession of Alice M. Meteye, wife of Numa J. Aubry. Application of Numa J. Aubry to be recognized as an owner of one half the property belonging to the community, and to be decreed usufructuary of the other half. From an order denying the same, he appeals.

Don Poster, Judge. Rule by the mayor and board of trustees of the city of New Iberia against the Moss Hotel Company, Limited, Edward Nereaux, Alphonse Lacour, Ralph Landry, Louis B. Delahoussaye, M. P. Smith, and Joseph Maniskako. Judgment for defendants, and plaintiffs appeal.

L. Caro, Justice of the Peace. Rule by James Beary, sheriff and tax collector, against Joseph Narrau, for payment of an occupation tax. Rule made absolute, and defendant appeals.

<p>INJURY TO EMPLOYÉ — DANGEROUS APPLIANCES -ASSUMPTION OP RISK — FELLOW SERVANTS.</p> <p>1. Damages for personal injury was plaintiff’s demand.</p> <p>There was a want of needful supervision and control on the part of the agent of the master.</p> <p>The appliance erected for the work was not sufficiently strong, owing to the defect in one of the main supports. The plank used should not have been used, and would not have been used if the agent had not yielded to the assurance of solidity by the men by whom the stage was erected. It was the duty of the agent to satisfy himself in regard to the strength of this staging, and not to trust others against his better judgment. The stage was improperly constructed. The cause of its breaking was the use of a plank — the main support — in which there was a large knot.</p> <p>2. The danger was not apparent, and therefore the workman injured did not assume the risk of the employment.</p> <p>3. The laborer working in discharging the vessel is not the fellow workman of the one who has charge of the laborers, and who is to see to the unloading of the ship.</p> <p>(Syllabus by the Court.}</p>

Application by the state, on relation of F. Rivers Richardson, for writs of certiorari, prohibition, and mandamus, to John St. Paul, judge of the civil district court for the parish of Orleans.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Robert Raymond Reid, Judge.</p> <p>Action by William B. Rownd, tutor, and others, against Gaston J. Davidson and others. Judgment for defendants, and plaintiffs appeal.</p>

Action by the city of New Orleans against P. G. Riddell. David J. Butler intervenes. Judgment for defendant was reversed by the court of appeal, and Butler applies for certiorari or writ of review.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by the St. Landry Wholesale Mercantile Company against the Teutonia Insurance Company of New Orleans. Judgment for plaintiff, and defendant appeals.</p>

<p>TAXATION — ASSESSMENT—NECESSITY—TAX SALE.</p> <p>There cannot be a tax privilege or a tax sale without an assessment identifying the property.</p> <p>(Syllabus by the Court.)</p>

Actions by the Bunkie Brick Works, Limited, J. O. Ward, A. B. West, and A. J. Moule against the police jury of Avoyelles and others. Judgments for plaintiffs, and defendants appeal.

<p>Application by the state, on the relation of Thomas Glancey and others, for writ of mandamus to John St. Paul, judge of the civil district court, and others.</p>

Action by the J; G. Wagner Company against the city of Monroe. Judgment for plaintiff. Rule by sheriff on plaintiff to show cause why certain expenses incurred under a seizure on execution subsequently enjoined should not be paid. Judgment for plaintiff in the rule, and defendant in the- rule appeals.

Paul, Judge. Action by George L. Bright against Samuel H. Bell and others. Verdict for plaintiff for nominal damages, and he appeals. Reversed as to one defendant, and judgment amended by increasing the damages as to the other defendants.

<p>WATERWORKS FRANCHISE — CONSTRUCTION—PERFORMANCE — ENFORCEMENT—WATER FOR FIRE DEPARTMENT — BREACH — RIGHT OF ACTION— LIABILITY OF CITY — PROTECTION AGAINST FIRE.</p> <p>1. A contract by which the waterworks franchise of a city is granted on condition that the contractor shall supply the inhabitants with water at a fixed maximum rate for private use, and shall rent a specified number of fire hydrants to the city at a fixed rental, payable yearly out of the corporate treasury, and shall keep said hydrants in good order, with a specified pressure of water for extinguishing fires, flushing sewers, engine houses, public parks, public schools, and other public buildings, contains a double set of stipulations and engagements— one in favor of the inhabitants individually, for the enforcement of the performance of which or for the breach of which they have a right of action individually, and one in favor of the municipal corporation, for the enforcement of the performance of which or for the breach of which the inhabitants have individually no right of action.</p> <p>2. The municipal corporation and the inhabitants of its territory are, in law, distinct, separate persons, and the corporation is not the mandatary of the inhabitants individually for entering into contracts for them individually. From lie fact that the inhabitants are interested that the obligations of contractors towards the municipal corporation should be faithfully complied with, or from the fact that they, as taxpayers, contribute the money with which _ the payments under the contracts of the municipality have to be made, it does not follow that the inhabitants are principals in the contracts entered into by the corporation, and as such have a right of action thereon.</p> <p>3. The above-mentioned engagement of the waterworks contractor to lease fire hydrants and furnish water to the city for the use of her fire department was an engagement in favor of the city, and not in favor of the inhabitants individually. It was not a stipulation pour autrui in their favor, and they have no right of action thereon.</p> <p>4. Notwithstanding the apparent requirement of the Code of Practice (art. 35) that the stipulation pour autrui, in order to entitle the beneficiary of it to an action upon it, should be express, such stipulation pour autrui may result from implication. Form is not sacramental. The question in every case must be simply as to whether or not the contractants intended to confer a right of action.</p> <p>5. A municipal corporation, being nothing more than a fictitious being created for the sole and exclusive purpose of administering the public interest, every contract entered into by it is necessarily so entered into “in the public interest” ; and every contract entered into for the benefit of its fife department is necessarily so entered into “in consideration of the public benefit and of the protection to property” to result therefrom. Hence the recital in a contract that it is entered into by the corporation from those motives does not have the effect of making the contract a stipulation pour autrui in favor of the inhabitants individually, upon which the inhabitants or any of them may individually bring suit. If it did, every municipal contract would be a stipulation pour autrui.</p> <p>6. A contract entered into by a municipal corporation for supplying its fire department with water must find its sanction in the right of the city to demand specific performance, or damages or the revocation of the contract for nonperformance, and not in any right on the part of the inhabitants individually to recover damages for losses sustained as a consequence of the inefficiency of the fire department of the city, brought about by the failure of the contractor to fulfill his contract. Unless a person is privy to a contract, either from having been a party to it originally, or from having accepted a stipulation made therein in his favor, he cannot recover damages for its breach, no matter how directly the damages may result from the breach; and the fact that no one else can sue for the damages, or that they cannot be sued for at all, unless by him, makes absolutely no difference. Breaches of contract resulting in losses for which no one may bring suit are not of unfrequent occurrence.</p> <p>7. No liability to damages in favor of her inhabitants or corporators lies upon a city for the nonperformance or negligent, performance of her duty to furnish water to her fire department for protecting the property within her corporate limits from fire. Hence no duty rests upon her to impose such liability upon a contractor stepping into her shoes for performing such duty.</p> <p>8. The city of Shreveport being without authority to make herself liable to her inhabitants for any losses suffered by them as a result of her negligent discharge of her duty to furnish water for the protection of their property against fire, she necessarily is likewise without authority to hire some one else to assume such a liability. Such assumption of liability would have to be paid for out of the corporate treasury, and the city would only be doing indirectly what she could not do directly.</p> <p>9. The decision of this court in Planters’ Oil-mill v. Monroe, 27 South. 684, 52 La. Ann, 1243, is overruled.</p> <p>(Syllabus by the Court.)</p>