Volume 114 — Louisiana Reports

<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 Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Mrs. Jean Marie Lafferranderie against P. A. Capdau. Judgment for defendant, and plaintiff appeals.</p>

<p>INJURY TO EMPLOYÉ — MINORITY— CONTRIBUTORY NEGLIGENCE.</p> <p>1. When a young man was employed as a brakeman on his sworn application, in which he stated that he was 21 years old, he at the time having the physique of a man, his minority is no factor in an action for damages for personal injuries.</p> <p>2. When the evidence clearly shows that plaintiff was injured while operating a ground switch, and that such injury was occasioned directly by his carelessness in throwing the switch or by an accidental slip or fall, plaintiff cannot recover, although the injury was sustained on the occasion of the making of a running switch, forbidden by the rules of the company when avoidable.</p> <p>. (Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Joseph Dugue against Samuel Levy. Judgment for plaintiff, and defendant -appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Poster, .Judge.</p> <p>Action by L. A. Nereaux and others against Edward Nereaux. Judgment for defendant, and plaintiffs appeal.</p>

Application by the state, on the relation of A. M. Hill, for writ of prohibition to the judge of the civil district court of the parish of Orleans, Division C,. and others.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Actions by John T. Dowdell against the-Orphans’ Home Society and the Freedman’s. Aid & Southern Education Society, by the Orphans’ Home Society and Freedman’s Aid & Southern Education Society against John T. Dowdell, Fannie E. Harding, intervener,, and by the Orphans’ Home Society and Freedman’s Aid & Southern Education Society against John T. Dowdell, E. B. Spiller, intervener. The actions were consolidated, and from the judgment the succession of Dowdell appeals.</p>

Action by the Louisiana Railway & Navigation Company against Henry Miller. Judgment for plaintiff, and defendant appeals. Motion to rescind order extending return day, and to declare, appeal abandoned.

<p>CRIMINAL LAW — APPEAL—AFFIRMANCE.</p> <p>Where the transcript of appeal in a criminal prosecution contains no bill of exceptions (save one which the trial judge, for good reason, refused to sign) or assignment of error, and no error is patent on the face of the record, and the defendant makes no appearance in this court, in person or by counsel, the judgment appealed from will be affirmed.</p> <p>(Syllabus by the Court.)</p>

John the Baptist. Action by the administrators of the succession of Madame Adolph Delaneuville and others against Cecile Duhé and others. Judgment for defendants was affirmed by the Court of Appeal, and plaintiffs applied for certiorari or writ of review.

<p>CRIMINAL LAW — NEW TRIAL — APPEAL — EVIDENCE — DILIGENCE — MURDER — VERDICT-IMPEACHMENT — MISCONDUCT OP JURORS.</p> <p>1. The allegation in a motion for new trial,, the overruling of which is made the ground of a bill of exceptions, that the verdict is contrary to law and the evidence, of itself, presents no-question which this court can review.</p> <p>2. The general rule that a new trial will not be granted on the ground of newly discovered evidence which is merely cumulative to that introduced on the' original trial is not absolutely inflexible, but a new trial should not be granted in such case unless the evidence relied on impresses the trial judge with a decided belief that, if added to the other, it would be likely to turn the scale in favor of the accused.</p> <p>3. When the record does not contain the evidence adduced on the original trial, the opinion of the trial judge upon the questions, whether or not the newly discovered evidence suggested as a ground for new trial would be merely cumulative, and whether or not it would be likely to result in a change of the verdict, is necessarily conclusive in this court.</p> <p>4. The question of diligence vel non in the-¿matter of obtaining evidence for the defense of a criminal case is one the determination of which rests largely in the discretion of the trial judge, whose conclusion thereon will not be disturbed on appeal unless manifestly erroneous.</p> <p>5. Where, upon a preliminary examination, a person accused of murder has been required to give bond for his appearance, and he is thereafter indicted for manslaughter, and, when called for trial, announces, through counsel of his own selection, that he is ready, and is thereupon tried and convicted, and where he makes application for a new trial based upon the grounds that his counsel had not sufficiently prepared himself, because he was otherwise engaged, and because, from an investigation of the record of such preliminary examination (including certain unguarded expressions in the written opinion of the trial judge then sitting as a committing magistrate), he had reached the conclusion that no criminal liability attached to the defendant, and where such application fails to show any specific injury resulting to the defendant from such lack of preparation, the new trial is properly refused.</p> <p>6. The testimony, and a fortiori the unsworn certificate, of a juror is not admissible to impeach the verdict of a jury of which he was a member. The court must derive its knowledge of the misconduct of the jury from some other source than the jurors themselves.</p> <p>{Syllabus by the Court.)</p>

In the matter of the interdiction of Charlotte Schmidt or Schmitt. From a judgment condemning George Koop to accept title to certain real estate, he appeals.

<p>SUPREME COURT — JURISDICTION—APPEAL IN CRIMINAL CASES.</p> <p>The appellate jurisdiction of the Supreme Court in criminal cases is confined to final judgments. Hence, where conviction of murder and sentence of death have been affirmed on appeal, the subsequent refusal of the trial judge to appoint a commission to inquire into the defendant’s then mental condition is riot the subject of review, and mandamus to compel him to grant a suspensive appeal from his refusal must be denied.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial Court, Parish •of Claiborne; Benjamin P. Edwards, Judge.</p> <p>Dick Craighead was convicted of murder, .and appeals.</p>

<p>EMINENT DOMAIN — RAILROAD THROUGH STATE LAND — SALE—RIGHTS OE PURCHASER.</p> <p>Under Act No. 84, p. 10G, of 1882, “any person, company, or corporation” is authorized to build a railroad through land belonging to the state. When, therefore, as in this case, a plaintiff alleges that he bought certain land from the state, and that prior to the date of his purchase a railroad company had built a railroad through the same without compensating the owner, and he prays judgment in his favor for an amount representing the value of the land used by such company, he discloses no cause of action, and his suit is properly dismissed.</p> <p>(Syllabus by. the Court.)</p>

<p>Application by the state, on the relation of Morris R. Stewart, for writ of mandamus to David J. Reid.</p>

W. Ellis, Judge. Action by Henry Morris against George K. Pratt. Judgment for plaintiff for a less amount than claimed, and both parties appeal.

<p>LANDLORD AND TENANT — CONSTRUCTION Off LEASE.</p> <p>1. Considering the reasons given in the suit In which Henry Morris is appellant, in a suit the same as here, except that defendant is appellant in one case, and plaintiff is appellant in the other.</p> <p>2. The demand here is disposed of on the same judgment which was rendered in the case in -which plaintiff is appellant.</p> <p>(Syllabus by the Court.)</p>

<p>INJURY TO EMPLOYÉ — ASSUMPTION OF RISK— NEGLIGENCE OF ANOTHER EMPLOYÉ.</p> <p>1. The fact itself of the happening of an accident does not prove or even tend to prove negligence on the part of the servant.</p> <p>2. The one by whom an appliance was used failed to use it properly, and failed to close it down as should have been done. The result was an accident to plaintiff.</p> <p>3. It was not foreseen by the injured workman, nor could it well have been foreseen, that an employé of defendants would use this appliance whilst he was away attending to other work, and he (plaintiff) could not see him from where he was.</p> <p>4. On the injured workman’s return to the place where the appliance was, he met with the accident caused by the improper and negligent use made of it by the employé of defendants. It became dangerous owing to the negligence of this employé.</p> <p>5. The danger was not apparent, and the workman did not assume the risk of the employment.</p> <p>6. The master is liable for the negligence of the servant within the scope of his employment.</p> <p>7. The fellow workman’s doctrine is not in the case. The employe was working in a different department.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Luther Egbert Hall, Judge.</p> <p>Action by Maggie Tieman and another against D. A. Johnston, sheriff, and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>DIVORCE — PREMATURE ACTION.</p> <p>A suit for a divorce based on a judgment ■of separation from bed and board is premature, when instituted within less than one year from the date of the finality of the judgment of the Supreme Court affirming the judgment of the ■court below, from which a suspensive appeal had been taken. Civ. Code, art. 139, contemplates a judgment, final and executory, between the parties. See, also, Act No. 25, p. 35, of 1898.</p> <p>(Syllabus by the Court.)</p>

In the matter of the receivership of the Eckhardt Manufacturing Company, Limited. Application of the Iberia Cypress Company for rule on Jack Frank el and others to-show cause why the appointment of William E. Lanson, receiver, should not be set aside. Prom an order refusing the rule, petitioner appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by S. S. Riley against the Shreveport Traction Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Injunction by James B. Rosser, Jr., against Alden McLellan and others. Judgment for defendants, and plaintiff appeals.</p>

<p>APPEAL — PLEA OE PRESCRIPTION — REMAND POR TRIAL.</p> <p>Defendant having filed a plea of prescription in the Supreme Court, the cause was remanded to the District Court for a trial of that plea, the appeal remaining otherwise in statu quo.</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 the St. Landry Wholesale Mercantile Company, Limited, against the New Hampshire Fire Insurance Company of Manchester, N. H. From the judgment, both plaintiff and defendant appeal.</p>

Action by the New Orleans & Carrollton Railroad Company against the Maryland Casualty Company. Judgment for defendant was affirmed by the Court of Appeal, and it applies for certiorari or writ of review.

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

Action by Gustave Fitzner against Frank A. Noullet. Messrs. Bruenn and Oahn were appointed liquidators, and obtained, a rule on creditors to show cause why certain inscriptions referred to should not he canceled. From an order discharging the rule, the liquidators appeal.

<p>BANKS — ACTION ON NOTES — EVIDENCE—BURDEN OE PROOF.</p> <p>1. In a suit on bank notes purporting to have been issued in 1856, and which are genuine on their face, mere possession makes out a prima facie case in favor of the holder; and the burden of proof rests on defendant to show, as alleged, that such notes were not issued by its predecessor bank, but were lost or stolen, and that plaintiff acquired the same in bad faith or with notice.</p> <p>2. Where the evidence shows that such notes ■ were not' issued or put in circulation, but were lost or stolen, and came into plaintiff’s possession in 1901, and his own account of'how he acquired same is either false, or shows a purchase from an “old woman,” not named or identified, for the insignificant price of $25, more or less, for above $10,000 of notes of a solvent-bank, plaintiff will be treated as a finder of such notes, or as having acquired the same with notice of all the facts, and subject to all equities.</p> <p>3. Where the evidence shows that plaintiff, through the interposition of third persons acting as his secret agents, and prior to the institution of this suit, collected from defendant bank some of the notes so found or acquired by him, and that such payments were made by the officers in ignorance of the facts of the case, plaintiff will be condemned to restore the money thus unduly received by him.</p> <p>(Syllabus by the Court.)</p>

<p>EXPROPRIATION — EVIDENCE—OPINIONS OP JURORS — REVIEW.</p> <p>1. Although the jury of freeholders in an expropriation ease are chosen as experts, and, as such, may take into consideration their own information outside of the testimony in the case, and also their own opinions, in arriving at a conclusion, yet it is error to charge them that they may disregard the testimony in the case. The language is too broad. The most that they can be told is that they may rely upon their own information and opinions as well as upon the testimony.</p> <p>2. When all the facts are before this court, the case will not be remanded because of an error in the charge to the jury, but will be finally disposed of.</p> <p>(Syllabus by the Court.l</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by the city of Shreveport against James S. Noel. Judgment for plaintiff, and. defendant appeals.</p>

Action by Lucy Millot against Charles Conrad and others. Leon Dreyfus intervened. A judgment dismissing the intervention was affirmed by the Court of Appeal, and intervener applied for certiorari or writ of review.

W. Ellis, Judge. In the matter of the succession of Samuel Blagge Caldwell. Susan B. Samuels was appointed administratrix. Action by certain alleged heirs of the deceased to annul the order of appointment. Judgment for the administratrix, and plaintiffs in nullity appeal.

<p>ADMINISTRATION Off SUCCESSION — SALE Off REALTY — PURCHASE BY ADMINISTRATOR-NULLITY — ACTION BY HEIRS.</p> <p>The administrator of a succession, in which he had no interest as an heir, obtained from the deputy clerk of the district court (he being unauthorized to give the same) an order to sell the property of the succession. A commission issued, authorizing him, as administrator, to make such sale. Acting as auctioneer, he adjudicated the property to himself individually for $1,020. This sale was the only attempted act of the administrator. On the day of his purchase he sold the same property at private sale to a third person for over $4,000. The property by successive sales passed into the possession of different vendees. After the last of these sales the administrator and the heirs of the succession -joined in a petition in which they prayed that the administrator be discharged from his trust, and his sureties discharged, and judgment was rendered accordingly. The heirg then brought this petitory action for the recovery of the property. The defendants admitted the nullity of the sale, but pleaded the discharge by the1 heirs of the administrator and his sureties as an estoppel.</p> <p>For reasons assigned, the plea is held to be not well founded. Le Bleu v. Timber Co., 16 South. 501, 46 La. Ann. 1470.</p> <p>(Syllabus by the Court.)</p>

<p>ATTACHMENT — CLAIM BY THIRD OPPONENT— PLEADING — INSOLVENCY OP DEBTOR.</p> <p>1. Plaintiff obtained a writ of attachment, and had property seized, as belonging to defendant, which the latter’s wife claimed by third opposition.</p> <p>2. In answer to the third opposition, plaintiff attacked third opponent’s title on the ground of fraud and undue preference, on the part of the husband, in favor of his wife, under Act No. 46, p. 65, of 1886, which authorizes the seizing creditor, in his answer to the third opposition, to allege and prove opponent’s title fraudulent.</p> <p>3. The action was_, in character, revocatory, and without the essential allegation and proof to sustain such an action, without which such an action cannot be maintained.</p> <p>4. The court’s action in rejecting plaintiff’s demand is maintained, and the right is reserved to plaintiff to institute suit to assert right, if any it has.</p> <p>(Syllabus by the Court.)</p>

<p>ADMINISTRATION — CLOSING SUCCESSION — MORTGAGE — FORECLOSURE—PARTIES.</p> <p>1. Where the administrator, who is also one of the heirs, delivers possession of all the property of the succession to the widow and heirs, with the consent of a particular creditor, as to him the administration is terminated and the succession closed.</p> <p>2. Where, after the lapse of eight years, such creditor seeks to foreclose a mortgage granted by the decedent on the property so delivered to the widow and heirs, they are necessary parties, and should be given notice of the proceedings. Notice to the former administrator alone will not suffice in such a case.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; Benjamin P. Edwards, Judge.</p> <p>In the matter of the succession of F. A. Fullerton, deceased. From a judgment homologating the account, opponents appeal.</p>

Certiorari from Court of Appeal, Parish of Caddo. Action by Mack Wellman against W. J. Smith and others. Judgment for plaintiff was reversed by the Court of Appeal, and he applies for certiorari or writ of review.

<p>CRIMINA!. LAW — ARGUMENTS OF COUNSEL.</p> <p>Defendant, indicted for murder, and found guilty without capital punishment, seeks reversal of the verdict and sentence on the ground that the district attorney, in his closing address to the jury, applied opprobrious epithets to him, to his prejudice. The district attorney did not pass beyond the limits of legitimate argument. The views of the Supreme Court on that subject are announced in State v. Johnson, 19 South. 213, 48 La. Ann. 89, and are affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by John F. Knotts against H. K. Midkiff and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; Conrad De Ballion, Judge.</p> <p>Action' by William Levy against Moses Levy. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Moses Burns and wife against the Ruddock-Orleans Cypress Company. Judgment for plaintiffs, and defendant appeals.</p>

Paul, Judge. Action by Melville La Groue and. wife-against the city of New Orleans and another. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Marion F. Machen, Judge.</p> <p>Action by Amaranta Vara against E. M. Quigley Construction Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>Action by W. M. Fuller against the Tremont Lumber Company and others. Judgment for plaintiff, and defendants appeal.</p>

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

<p>TAXATION — QUIETING TITLE — ACTION BY TAX PURCHASER — PLEADING—POSSESSION —PRESCRIPTION.</p> <p>1. The purpose of Act No. 101, p. 127, of 1898, is to enable a tax purchaser to quiet his title by bringing suit against the real party or parties in interest; and such suit may be properly brought, though not brought against the person to whom the property was assessed when sold, if such assessment was erroneous, and such person neither has, nor pretends to have, any interest in the title.</p> <p>2. Neither Act Ijío. 101, p. 127, of 1898, nor the jurisprudence of this court, requires that a tax purchaser suing under said act to quiet his title shall allege possession in himself, or want of possession in the defendant. The fact of possession by the defendant is for him a matter of defense — a shield to be used for his protection against the plea of prescription used by the plaintiff as a weapon.</p> <p>3. Where the person in whom title is vested at the moment of the sale for taxes has never been in actual possession of the property sold, and no one else is in possession, the tax purchaser acquires civil or constructive possession by virtue of the sale; and, though he may not take actual possession, nevertheless, as between him and the former owner, he may invoke the prescription declared by article 233 of the Constitution of 1898 in support of his title, and his right to do so is not affected by the fact that his possession has been disturbed or wrested from him by other persons, not parties to the litigation, and between whom and the former owner no privity of title exists.</p> <p>4. Where, in a litigation arising under Act No. 101, p. 327, of 1898, between the former owner and the holder of a tax title, prima facie valid, there is nothing in the question of possession which takes the case out of the rule of prescription recognized and applied by this court as having been declared by the Constitution, and it is not alleged that there had been a dual assessment, or that the taxes for which the property was sold had been paid, the prescription in favor of the title declared by article 233 of the Constitution will be sustained.</p> <p>Breaux, C. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>BANKS — REFUSAL TO PAY CHECKS — DAMAGES— SUIT FOE DEPOSIT — MATERIALMAN’S CLAIM.</p> <p>1. An indebtedness of a bank to a contractor, being a balance due on a building contract retained by the bank pending the settlement of certain claims for materials furnished, does not, on becoming exigible by the contractor, con-' stitute money or funds in the hands of the bank, subject to be checked out as in ordinary cases of bank deposits. Hence the nonpayment of the contractor’s checks by the bank in such a case does not furnish a legal basis for a claim for damages to the drawer’s credit.</p> <p>2. A suit for a balance of deposits as per passbook will be maintained where there is no plea of want of amicable demand, accompanied by a tender of the balance due.</p> <p>3. The recordation of the claim of a materialman in the mortgage book is without legal efficacy as to the owner, when the right of action, if any, against him, has been barred by the statutory prescription of 90 days. Act No. 180, p. 223, of 1894.</p> <p>(Syllabus by the Court.)</p>

Action by L. A. Hasling and others against Francis Martin, and by the succession of L. A. Hasling and others against the Palatine Insurance Company of Manchester, England. The cases wei;e consolidated. Judgment for defendants, and plaintiffs appeal.

Action by W. T. Hughes against W. J. Smith and others. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

Action by the state, on the relation of Joseph Moore, district attorney, and' others, against John A. Perkins and another. Judgment for plaintiff, and defendant American Bonding Company appeals.

<p>APPEAL — REVIEW — CONSTITUTIONAL LAW— ORDINANCE — VALIDITY — DISCRIMINATION — MUNICIPAL CORPORATIONS — REGULATION OF INFLAMMABLE MATERIALS — STORAGE — DUE PROCESS OF LAW.</p> <p>1. On an appeal coming to this court solely under the grant of jurisdiction to this court over suits involving the constitutionality or legality of a fine or penalty imposed by a municipal corporation, the question of whether the facts were sufficient to justify the conviction of the appellant cannot be considered.</p> <p>2. An ordinance is not informal or illegal because the cause or reasons of its enactment are not given, nor because it punishes as a nuisance what neither by it nor by another ordinance is expressly declared to be such.</p> <p>3. An ordinance which applies alike to all persons, firms, or corporations engaged in the business legislated against is not discriminatory.</p> <p>4. Authority to a municipal corporation to regulate the storage of combustible and inflammable materials includes authority to prohibit the storage of refined and other explosive oils within the corporate limits. And an ordinance so providing is not unreasonable.</p> <p>5. A special ordinance granting to a particular person permission to store refined oils within the corporate limits of a town is repealed by a subsequent general ordinance, applicable to all persons alike, making such storage of oils a criminal offense.</p> <p>6. Though an ordinance prohibiting the storage of explosive oils in large quantities within the corporate limits happens to have the effect of putting an end to a business, and of rendering valueless certain structures used in connection with the business, its enforcement will not constitute a depriving of property without due process of law, when the circumstances justified its adoption as a police regulation.</p> <p>(Syllabus by the Court.)</p>

<p>TEADE-MARK — INERINGtEMENT—DAMAGES.</p> <p>1. Two trade-marks are the same in legal contemplation if the resemblance is such as to deceive an ordinary purchaser giving such attention to the same as such a purchaser usually gives, and to cause him to purchase the one supposing it to be the other. Although differences may exist between two trade-marks, there is an unlawful infringement where the general appearance of the package is well calculated to-mislead and deceive the unwary purchaser.</p> <p>2. Act No. 49, p. 56, of 1898, makes it a misdemeanor to counterfeit or imitate a trademark, and authorizes the imposition of such damages as the court may deem “just and reasonable,” in addition to the payment to plaintiff of all profits derived by defendant from the manufacture, use, or sale of the article. Hence the. court may award damages beyond the actual pecuniary loss shown by the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>INFORMATION — VERIFICATION BY DISTRICT ATTORNEY — SPECIAL OATH.</p> <p>1. The district attorney, acting_ on his official oath, may present an information, and, with leave of the court, have it filed, without any necessity of taking a special oath.</p> <p>2. It is not alleged or shown that the prosecuting officer acted with vindictiveness or malice.</p> <p>3. Where the prosecuting officer acts ex mero motu, and it does not appear that he has acted at the instance of any one, the defendant is without right to sustain the plea that the officer should have taken a special oath. His official oath suffices.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Oouvillon, Judge.</p> <p>Mrs. M. L. Smith was convicted of crime, and appeals.</p>

<p>CORPORATIONS — DUPLICATE STOCK CERTIFICATE —INDEMNITY.</p> <p>Inasmuch as title to a certificate of stock passes by mere delivery, without the necessity of notice to the corporation, and inasmuch as a corporation issuing a duplicate certificate while the original is outstanding might be responsible on both certificates, to bona fide holders, the court should not order the issuance of such duplicate, in place of a lost or mislaid original, without bond being given to hold the corporation harmless against the reappearance of the original in the hands of a bona fide holder, unless, upon the facts, it be reasonably certain that there is no danger of such reappearance.</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 J. J. Jordan and others against W. E. Richards. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Frederick D. King, Judge.</p> <p>Action by Mrs. Grace Spann against Mrs. Joseph Hellen and others. Judgment for 'defendants and plaintiff appeals.</p>

<p>Application of George K. Pratt and Alphonse D. Riffel for writ of mandamus, prohibition, and certiorari to Fred D. King, judge, commanding him to grant a suspensive appeal from the judgment in the action of the Albert Maekie Grocery Company, Limited, against George K. Pratt and others.</p>

<p>MINING LICENSE — WHAT CONSTITUTES — ABANDONMENT — SUBSEQUENT LEASE-BIGHTS OE PARTIES.</p> <p>1. Where A. and B., owning adjoining tracts •of land, joined in a lease of the same to C. for the term of 99 years, for the purposes of prospecting, boring, excavating, etc., for oil, gas, petroleum, coal, salt, sulphur, and other minerals, during that period for the consideration of one •dollar and a royalty of one cent for each barrel of oil sold, and the same proportionate value for all other minerals, A. to have one-third of the royalty accruing from the land of B., and vice versa; and where C. did not bind or obligate himself to prospect or to do any work on the premises, held, that such an agreement is not a contract of lease, but a mere permit or license, revocable and terminable at will.</p> <p>2. Where, within 30 days thereafter, B. leased his tract of land to C. for one year, and on different terms and conditions, the lessee binding himself to develop the property for oil and other minerals, and the royalty, fixed at one-eighth of the oil, was made payable to B. alone, held, that the first lease was abandoned and terminated, and was no longer binding on A.</p> <p>3. Where, after subsequent discovery of oil •on the B. tract, C. entered on the land of A. for the purpose of erecting a derrick thereon, and was enjoined by A., who soon thereafter sold a fifth interest in the land to plaintiffs, held, that they acquired a title free of the first lease, and were not affected by the subsequent compromise of the suit and the recognition by A. of the first lease in a modified form.</p> <p>4.Where, under such compromise lease, the tract of land was developed into an oil-bearing territory, held, that plaintiffs, as owners of an interest in the land, are entitled to a like interest in the oil produced, less all expenses of production.</p> <p>(Syllabus by the Court.)</p>

<p>DEFAULT JUDGMENT — EVIDENCE—SPECIFIC PERFORMANCE — DAMAGES.</p> <p>1. The court should not, on confirmation of a default, receive or consider as evidence the testimony of a witness for plaintiff taken several days before'at chambers under an oath administered by the minute clerk, and in the absence of the defendant, when he had not been notified of the time and place of the taking of the testimony, had given no consent thereto, and no order of the court had been given in respect to the matter.</p> <p>2. Plaintiff sued a corporation, alleging that, though it had bound itself by contract to do a certain thing, it had failed so to do, and, in consequence thereof, he had suffered heavy damages. He prayed for citation on defendant, and that it be condemned to a specific performance of its contract. Should the court hold that plaintiff was not entitled to a specific performance of the contract, then and in that event it prayed for a judgment for damages. Plaintiff afterwards expressly waived his demand for a specific performance. Held, that no judgment could be rendered for the plaintiff, as the contingency upon which the alternative demand was based could not arise.</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 the parish of Caddo against the parish of De Soto. Judgment for defendant, and plaintiff appeals.</p>

<p>PARISHES — -BOUNDARIES—VENUE—JURISDICTION OP COURTS.</p> <p>1. The interpretation of a law, the declared' purpose of which is to establish the boundaries between two parishes, is a judicial function.</p> <p>2. Where the property which is the subject of an action of boundary between two parishes lies within the territorial jurisdiction of the courts, of both, such action may be brought in either court.</p> <p>3. Where, as in this case, the law provides a particular method of fixing the boundaries between parishes in the event of disagreement as to the proper interpretation of the statute on the subject, the remedy so provided must be exhausted before the jurisdiction of the courts can be invoked.</p> <p>(Syllabus by the Court.)</p>

King, Judge. Action by John Gracia, for the use and benefit of his minor child, against the O. N. Maestri Furniture Manufacturing Company. Judgment for plaintiff, and defendant appeals.

<p>COMMUNITY — DEATH OE WIFE — DISSOLUTION-INSOLVENCY — FORECLOSURE — CONSENT DECREE — SALE — TITLE ACQUIRED — RIGHTS OF HEIRS OF WIFE.</p> <p>1. It is the settled jurisprudence of this state that, on the dissolution of the community by the death of the wife, its creditors may proceed directly against the community property in the possession of the husband, contradictorily with him alone.</p> <p>2. Where the community is insolvent, neither the wife nor her heirs have any valuable interest therein; and the latter cannot complain that they were not made parties to a decree of foreclosure in a federal court, ordering the sale of a certain plantation to pay the purchase price due by the community.</p> <p>3. Such decree, when rendered on bill and answer admitting the facts alleged, which were true, as shown by the authentic act of sale and mortgage, was not void as a consent decree.</p> <p>4. Where, pursuant to the decree of the court, the plantation was seized, appraised, advertised, offered, and adjudicated as a whole, the purchaser acquired the property in its entirety, and his title was not affected by the recital in the deed that the marshal sold, etc., “all the rights, titles, interests, and claim” of defendant.</p> <p>5. “He who seeks equity must do equity,” and, where community property has been sold at a judicial sale to pay the purchase price, the heirs of the wife should not be permitted to recover without first offering to make restitution to the purchaser or his assigns. Such a sale cannot be ignored as nonexistent.</p> <p>(Syllabus by the Court.)</p>

<p>TAX TITLE — SUIT TO QUIET — DEFENSES.</p> <p>1. Where the former owner, who is brought into court under Act No. 101 of 1898, in an action to quiet a tax title, prima_ facie valid, makes no attack thereon, such title becomes conclusively valid, and should be quieted.</p> <p>2. Where a defendant, not the former owner, who is brought into court under Act N®. 101, p. 127, of 1898, in an action to quiet a tax title prima facie valid, has in bad faith, and under a mere pretense of title, acquired possession of the property at a date subsequent to the registry, and with knowledge, of the tax title, he has no standing to sue for the nullity of such title, and it should be quieted.</p> <p>(Syllabus by the Oourt.)</p>

<p>CRIMINAL LAW — NEW TRIAL — NEWLY DISCOVERED EVIDENCE — MURDER—EVIDENCE.</p> <p>1. Where the newly discovered evidence is cumulative, or where it confirms the verdict, a new trial is properly refused.’</p> <p>2. It is not essential that the act of the defendant should have been the sole cause of the death; if it was a contributory cause to the death, that is sufficient.</p> <p>(Syllabus by the Court.)</p>

<p>Action by Gustave Fitzner against Frank A. Noullet. Application of Bernard Bruenn and Edgar M. Calm, receivers, for writs of prohibition and certiorari.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; Gharles Yemon Porter, Judge.</p> <p>Action by Lisso & Bro. against Tandy K. Giddens; J. J. O’Bieme, and others, warrantors. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.</p> <p>Action by the Sucker State Drill Company against Henry Loewer & Co. Judgment for defendants, and plaintiff appeals.</p>

<p>STREET RAILROADS — INJURY TO CHILD ON TRACK — EVIDENCE.</p> <p>1. A street railway company will not be held responsible for the death of a child 2% years old which has suddenly and unexpectedly run upon the track 5 to 10 feet ahead of an electric car moving rapidly through a narrow street.</p> <p>2. In such a case, the fact that the car was not brought to a full stop within as short a distance as the evidence shows it is possible to bring such a car to a full stop is insignificant, in view of the fact that, even if it had been done, the fatal result would not have been avoided.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — ATJTRB FOIS ACQUIT — FORMER JEOPARDY.</p> <p>1. Where, by reason of the date of an offense, as alleged in the indictment, the prosecution is barred by prescription, so that, quoad the offense charged, there can be no legal conviction, and the defendant, upon his own motion, whether by the trial or the appellate court, is discharged upon that ground, such offense cannot thereafter, and for the purposes of the plea of autre fois convict, be identified by him as being the same as that charged, by information subsequently filed, to have been committed at a later date, the prosecution of which is not so barred.</p> <p>2. But if such identity could be established, the plea of autre fois convict is founded in the law that no one shall be twice put in jeopardy for the same offense, and the law does not consider that one has been put in jeopardy by a prosecution under an insufficient indictment; and it holds, moreover, that when his conviction is set aside, at his instance, on motion for new trial or in arrest of judgment, he thereby waives any objection that he might otherwise urge to. being tried again.</p> <p>3. The plea of autre fois convict, based on a conviction that has been set aside, on motion in arrest of judgment, as illegal, is, on its face, demurrable, and is properly heard and decided by the trial judge, without a jury.</p> <p>4. No appeal lies from the ruling of the trial judge refusing to allow a plea of autre fois convict, demurrable on its face, to be tried by jury.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.</p> <p>W. F. Sibley was indicted for shooting with intent to murder. From an order quashing the indictment, the state appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas Moore Burns, Judge.</p> <p>Action by Oscar R. Brugier against Benjamin M. Miller and Charles L. Hosmer, receiver of the Slidell Company, Limited, intervener. Judgment for plaintiff, and the intervener appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Gustavus. Adolphus Goudran, Judge ad hoc.</p> <p>Action by the White Castle Lumber & Shingle Company, Limited, against Paul Le Blanc- and others. Judgment for defendants, and. plaintiff appeals.</p>

<p>CRIMINAL LAW — GRADING MISDEMEANORS— CONSTITUTIONAL LAW — LARCENY</p> <p>—PUNISHMENT.</p> <p>1. Section 5 of Act 'No. 107, p. 162, of 1902 (“To grade misdemeanors and minor offenses,-’ etc.), is constitutional in so far as it grades the offense of petty larceny and makes the same punishable by imprisonment in the parish jail.</p> <p>2. In State v. Dalcourt, 36 South. 479, 112 La. 420, it was held that the same section was unconstitutional only in so far as it made the larceny of objects of the value of $20 and over punishable by imprisonment at hard labor in the penitentiary.</p> <p>(Syllabus by the Court.)</p>

<p>Ajopeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by George Henry Romano against the Seidel Furniture Manufacturing Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Action by Joseph Dugue against Samuel Levy.' Judgment for plaintiff was reversed on appeal. 37 South. 995.1 Application of Samuel Levy for writ of mandamus.</p>

<p>DEMAND IN WARRANTY — PRIVITY BETWEEN PARTIES — EEEEOT OE STIPULATION.</p> <p>1. It is impossible to sustain the proposition' that the right of a defendant to call in a warrantor depends upon the question of privity vel non between such warrantor and the. plaintiff in the main action, and equally impossible to deny that, as a basis for the exercise of such right, there must be a contract of warranty between such defendant and the person so called in.</p> <p>2. A stipulation pour autrui, when accepted, may establish the contract required as the basis for a call in warranty. I</p> <p>(Syllabus by the Court.)</p>

<p>VEN DOB AND PURCHASES — QUITCLAIM DEED— BONA PIDES — NOTICE—FAILURE TO BECOBD TITLE.</p> <p>1. Acquisition of property under a quitclaim title loses its significance as a circumstance tending to show bad faith in the purchaser where a sufficient explanation is given, and more particularly when it is admitted as a fact that such purchaser acquired in good faith and without notice.</p> <p>2. Act No. 97, p. 107, of 1890, provides for the registry in the office of the recorders of the respective parishes of the titles to lands thereby conveyed by the state to the board of commissioners of the Atchafalaya levee district, and the general law upon the subject of registry applies to the conveyance of all Idnds alienated by said board.</p> <p>3. Where A. sells land of which he is the owner to B., who fails to record his title, O., subsequently purchasing the same land from A. in good faith, and without notice of the prior conveyance, acquires a good title as against B.</p> <p>(Syllabus by the Court.!</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by A. A. Woods against M. A. Shumard & Co. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans: Thomas C. W. Ellis, Judge.</p> <p>Iu the matter of the succession of Celine Jahraus. Action to set aside a will. From the judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Eighth Judicial District Court,' Parish of Franklin; David Newton Thompson, Judge.</p> <p>Action by James W. Shamblin against the New Orleans & Northwestern Railroad Company. Judgme’nt for plaintiff, and defendant appeals.</p>

Paul, Judge. Action by W. B. Hayward and others against Jack Moore Hayward. Judgment for plaintiffs in partition, and Peter Labouisse and others appear by way of intervention and third opposition. From the judgment, defendant and Peter Labouisse appeal.

Action by the Xavier Realty, Limited, against the Louisiana Railway & Navigation Company. Judgment for defendant, and plaintiff moves for a specific appeal, and defendant applied for writs of certiorari, prohibition, and mandamus.

<p>PARTNERSHIP — LIABILITY OP PARTNER IN COMMENDAM — PERSONAL JUDGMENT.</p> <p>Only the fund which the partner in commendam has contributed, or engaged to contribute, enters into the firm; he himself does not. Hence the firm is without authority to take him into court; and if it does, and a judgment is rendered against him personally in the suit on a reconventional demand, the judgment must be considered as having been rendered without citation or equivalent notice, and to be null, and incapable of revival, and in the suit for revival the facts going to show' such want of citation may be proved.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of R. B. Broadway. From an order refusing to set aside acceptance of resignation of administrator, certain creditors appeal.

Certiorari from Court of Appeal, Parish of •Caddo. Action by A. H. George against the Shreveport Cotton Oil Company. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

Paul, Judge. In the matter of the succession of Pierre MorSre. From a judgment rendered at the instance of the. widow in community, Bartholomew MorSre, testamentary executor, appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Mrs. Louis Bernos against J. B. Canepa. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by George Henderson, sheriff and tax collector, against O. B. Ortte and others. Judgment for plaintiff, and defendants appeal.</p>

<p>DIVORCE — ALIMONY—RECON VENTIONAL DEMAND.</p> <p>While it is true that the wife can claim alimony only when she is plaintiff, yet she may claim alimony in a suit where, in her answer to the suit of her husband for divorce, she institutes a reconventional demand for separation from bed and board. She then becomes a plaintiff in reconvention.</p> <p>(Syllabus by the Court.)</p>

Rule against the Merchants’ Trading Company, Limited, to collect the license due the-state. Judgment for the state, and defendant appeals.

<p>Appeal from Third Judicial District Court, Parish of Bienville; James Edward Moore, Judge.</p> <p>S. N. Feazcll was indicted for murder. Motion to quash indictment sustained, and the state appeals.</p>

P. Brunot, Judge. Action by the Louisiana Improvement Company against the Baton Rouge Electric & Gas Company and another. Prom the judgment, plaintiff and defendant gas company appeal.

<p>LEASE — RENEWAL—SURETY.</p> <p>1. Where a contract of lease renewable “upon the same terms and conditions” is secured by a surety so solid as to leave no room whatever for doubt or risk, the lessee must tender for the renewal a surety equally safe, or practically so. He cannot require the lessor to accept a surety as to whose solidity there may be some doubt.</p> <p>2. The qualifications of a surety tendered for the renewal of such a lease are to be judged in the light of the facts which the parties had before them at the time they were called upon to accept or reject him, and not in the light of facts subsequently developed on a trial in a court of justice.</p> <p>3. Where the lessee, whose right to renew depends upon furnishing a good surety, has announced his inability to furnish any other than one which the lessor was justified in declining to accept, the lessor is released from his obligation to renew, and is at liberty to lease to another tenant.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish* of Orleans; George Henry Théard, Judge.</p> <p>Action by Frank Sharp and others against Henry Zeller and others. Judgment for plaintiffs, and Henry Zeller appeals-</p>

<p>Appeal from Twelfth Judicial District ■Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>Houston Hopper and others were convicted •of manslaughter, and appeal.</p>

<p>SECOND ACTION — DISMISSAL—FORMER COSTS UNPAID — LIS PENDENS — DIVORCE — EVIDENCE— WITNESSES — IMPEACHMENT — MISCONDUCT OF PLAINTIFF.</p> <p>1. The evidence does not sustain the exception — the exception being that the costs of a former suit had not been paid — nor does the evidence sustain the exception of lis pendens. There was no other issue pending. The issues in the former suit were not similar, and were not pending when the exception was fixed, and did not sustain the plea of lis pendens.</p> <p>On the Merits.</p> <p>2. Plaintiff presented in the petition grounds enough for a divorce. They were substantially sustained by the testimony.</p> <p>3. Witnesses whose characters were assailed, and whose veracity defendant sought to impeach, were sufficiently corroborated to enable plaintiff to prove his cause.</p> <p>4. A witness may at one time or another have acted badly in a matter not immediately germane to the suit in which he is a witness, and yet his testimony may be considered as true.</p> <p>5. Seven witnesses testified for plaintiff. Attempt was made by defendant to impeach the testimony of all of them on about the same lines, viz., subornation. The other bad conduct charged is charged in terms too general to set aside the testimony entirely.</p> <p>6. The husband was not a witness, and there can be no question of his veracity. The fact that years ago, in another suit, he made a reckless oath, is not ground sufficient to deny him a divorce.</p> <p>(Syllabus by the Court.)</p>

Frank Cox was accused of selling liquor without a license, and gave bond for Ms appearance to answer -to the charge. Judgment was entered on the bond for failure to appear, and, from a judgment denying a motion to set aside the judgment on the bond, said Cox and another, as surety on the bond, appeal.

<p>Case Certified from Court of Appeal, Parish of Orleans.</p> <p>Action by Theodore Laporte against George H. Libby and others. Judgment for defendants, and question certified from the Court of Appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.</p> <p>Action by the Jennings-Heywood Oil Syndicate against the Houssiere-Latreille Oil Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>James A. Farrier was convicted of obtaining money on false pretenses, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry ThSard, Judge.</p> <p>Habeas corpus by the Louisiana Society for the Prevention of Cruelty to Children against S. J. Tyler. Judgment for defendant, and plaintiff appeals.</p>

<p>MURDER — EVIDENCE—OBJECTIONS—TRIAL— BILLS OE EXCEPTION.</p> <p>1. On a trial for murder, in which the state was relying exclusively upon circumstantial evidence, the prosecuting attorney, for the purpose of proving a circumstance connecting the accused with the crime, asked a state witness “if he was in church on the night of the murder, and, if so, to state who else was there, and if he saw Archie Butler,” the accused, to which witness replied: “Joe Carr [who was not called as a witness] and myself was standing in front of the church house, and we seen some one pass there, and it looked to be Archie Butler, and I asked him [referring to Carr] who it was, and he says, ‘That’s Archie,’ and we called Archie by name.” Whereupon counsel for defendant objected to the testimony on the grounds that it was irrelevant and “was not part of the res gesteé,” which objection was •overruled.</p> <p>Held, whilst the objections might have been more to the point, they were sufficient for the purpose for which they were made, and the failure of the court to exclude the testimony •objected to was reversible error.</p> <p>2. The word “trial” is not used in Act No. 113, p. 162, of 1896; in the rigidly technical -sense which restricts its application in criminal matters to the proceedings had after the impaneling of the jury, but it is there intended to apply to all proceedings which take place after "the state and the accused announce that they are ready, or after they are ordered by the •court, to proceed with the trial.</p> <p>(Syllabus by the Court.)</p>

Action by Andrew Kuhn, tutor, and others against Cora Bercher, tutrix, and others. Judgment for plaintiffs, and defendants appeal.

<p>MANDAMUS TO COURT — DISTRICT COURT — JURISDICTION — TITLE TO OliTTCE..</p> <p>1. In the absence of apparent jurisdiction over a cause in any appellate court, the Supreme Court has, under the supervisory jurisdiction of the court, the authority to instruct the court of original jurisdiction, the district court, to reinstate a case dismissed on the ground and for the alleged reason that the court is without jurisdiction, if it be manifest that the court has jurisdiction.</p> <p>2. The district court has jurisdiction in all cases where title to office is involved, “or other public position, even where no specific amount is in contest.”</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Don Foster, Judge. Proceedings by Mrs. Mary Ann Hartman to probate the will of Rosemond Theriot, deceased, in which Austin D. Theriot filed oppositions. From a decree sustaining the oppositions, proponent and a special legatee appeal.

Uase Certified from Court of Appeal, First 'Circuit. Action by Julius Kessler & Co. against H. Manhein. Judgment for plaintiffs was reversed by the Court of Appeal. On rehearing, such judgment was set aside, and the case certified for instructions.

<p>LANDLORD AND TENANT — LEASE OE BOAT — DESTRUCTION BY EIRE — LIABILITY OE LESSEE.</p> <p>1. The lessee did not violate the contractual' stipulations which required him to return the-thing leased at the expiration of the lease.</p> <p>2. The property was destroyed by fire, an accident against which the lessee did not warrant.</p> <p>3. The care was usual care, and the way the property was cared for received the expressed sanction of the owner.</p> <p>4. The obligation to return the property must be taken as subject to the condition relating to wear and tear. The accident was not due to-the negligence of defendant, and is to be considered in the light of an unavoidable accident. The testimony does not show that the lessee omitted to do an act he was called upon to do. If there was anything omitted, the plaintiff did not object; on the contrary, .assented.</p> <p>(Syllabus by the Coui't.)</p>

<p>MUNICIPAL CORPORATIONS — CONSTITUTIONAL LAW.</p> <p>1.When the object of a statute is to cover and dispose of the whole of the subject-matter of municipalities, the fact that, in consideration of that subject, different classes of municipalities may have to be dealt with, does not break the force of the singleness of the object of the law.</p> <p>2. The title of a statute, which is sufficient to cover all the matters and things enacted in the body of the law, is not made defective if some one or more of those matters are unnecessarily mentioned therein.</p> <p>3. The power and authority conferred upon municipalities extending their limits in manner and form as provided for in Act No. 136, p. 224,. of 1898, was granted to municipalities existing at the date of the enactment of that statute, as well as to those which might be created thereafter. Such authority was an absolute right or power, conferred at once, without the necessity of such existing corporations being forced, as a condition precedent to availing themselves of the same, to have placed themselves under the 'provisions of the law. Section 43, p. 243, No. 136, Acts 1898.</p> <p>(Syllabus by the Court.)</p>

Action by Belcher & Creswell against Willie Johnson. A judgment for defendant was affirmed by the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert Raymond Reid, Judge.</p> <p>Action by the heirs of Zaehariah Strain against Jacob C. Lyons and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>DONATION OF MOVABLES — LIFE INSURANCE POLICY — BENEFICIARIES—VESTED BIGHTS.</p> <p>1. The article of the Code which limits the donation of movables to one-tenth part of the value of the estate of the donor (Civ. Code, art. 1481) must be read in connection with article 12 of the same Code, which provides that “whatever is done in violation of a prohibitory law is void, although the nullity be not formally directed.” Furthermore, “every disposition in favor of a person incapable of receiving, shall be null.”</p> <p>2. Under the first article, to the extent of nine-tenths, the person designated in the policy as the beneficiary was incapable of receiving. By special provision of the article, she is entitled to one-tenth of the personal property of the insured.</p> <p>3. The gratuity, as relates to nine-tenths_, is prohibited in any form — whether as a donation, gratuitous stipulation pour autrui, or in form of an insurance policy.</p> <p>4. The insured had no property, the premium paid being about all he had, to the extent the record discloses.</p> <p>5. The facts and circumstances show that he (insured) had not abandoned all interest in the policy. The beneficiary named could not, to the extent of nine-tenths, acquire a vested right in the policy. The insured bound himself for 20 years to pay premiums annually. His children had been left without support. The proceeds, to the extent before mentioned, fall to the heirs, under the terms of the policy.</p> <p>6. To the extent of one-tenth, there was an insurable interest, to which the defendant is entitled.</p> <p>Provosty, X, dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Frank Davies against William W. Bierce, Limited. From a judgment for defendant, plaintiff appeals.</p>

<p>ADVERSE POSSESSION — STATE LANDS — TRESPASS —HEDGE—BOUNDARY.</p> <p>1. Adverse possession cannot be acquired of property actually owned by, and virtually in possession of, the state.</p> <p>2. The vagaries of hedge vines may be checked by cutting off that part which extends onto property of the state, of which the abutting owner had not acquired possession, for the state had leased within six months of the date of plaintiff’s suit.</p> <p>3. The weight of the testimony, as between ¡the official plan in possession of the board’ of control — the state’s representative and defendant’s lessor — and the plan under which plaintiff claims his eastern line, sustains the former.</p> <p>4. At best, a spreading hedge, not trimmed every year, is a poor monument of a boundary line.</p> <p>5. There was no trespass for which plaintiff can recover damages.</p> <p>(Syllabus by the Court.)</p>

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

<p>Certiorari to Court of Appeals, Parish of Orleans.</p> <p>Application by Widow William Thomas and others for certiorari or writ of review to the Court of Appeal of the parish of Orleans.</p>

<p>PUBLIC LANDS — SCHOOL SECTIONS — VENDOR AND PURCHASER — SUBSEQUENTLY ACQUIRED TITLE — EVIDENCE—PRESUMPTIONS.</p> <p>1. Fractional sections in fractional townships did not pass to the state under the general grant by Congress of sixteenth sections for school purposes, and the sale of such a section by a parish treasurer, professing to sell school land under the authority of Act No. 250, p. 213, of 1853, which authorized the sale of school land alone, conveyed no title.</p> <p>2. The presumption that an officer has done his duty cannot sustain his action where the mandatory requirements of the law concerning the record of such action are disregarded. And in any event, such presumption merely furnishes a species of evidence which may be rebutted.</p> <p>3. The rule that a title subsequently acquired by the vendor inures to the benefit of the vendee, to whom the property has previously been sold, has no application where the subsequent title is acquired in a different representative capacity from that in which the prior title was held and conveyed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from CiviJ District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Edward Knoll against Wilhelmena Knoll. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.</p> <p>Action by the heirs of Francois Bossier against E. W. Jackson and others. From an order dismissing the action, plaintiffs appeal.</p>

<p>APPEAL BOND — USE OE ABBREVIATIONS— CORPORATION AS SURETY — WRONGFUL DEATH —ACTION BY MINOR CHILDREN.</p> <p>1. The use of abbreviations in judicial documents is dangerous, and to be avoided. In this particular instance it was not prejudicial, as their meaning was shown by identification with different parts of the record.</p> <p>2. The objections to the qualifications of the company, which signed the appeal bond of the plaintiff are met and answered by the statutes on the subject of such companies and the certificate of the Secretary of State.</p> <p>3. The authority of the parties who signed the appeal bond for the surety company is shown to the satisfaction of the court. The company has not only not questioned their authority, but has received a premium for becoming such surety.</p> <p>On the Merits.</p> <p>4. The right of the minor children of a person who has been killed by the fault of another to an action against the party committing the fault for damages is a statutory right, and the extent of the relief to be given them is controlled by the evident intent of the statute. The fact that the beneficiaries under the statute are not “all” the children, but only those who are “minors,” indicates clearly that the object was to save the latter harmless during minority from loss of the benefits (material and moral) which they would have received from the father up to the time of their respective majorities had he lived to tide them over during that period under as favorable conditions as would have existed had he not been killed. The amount of property which the father might have possibly earned up to the date of his probable natural death, and which the children might have inherited at that time, does not enter as a factor in determining to what extent they are entitled to a judgment. -The amount decreed to the minors should be apportioned among them according to the length of their respective minorities. One of the minors, who, after bringing suit, became of age before judgment, is not cut off from the benefit of the statute during her minority.</p> <p>(Syllabus by the Court.)</p>

Action, by Desiree Baker against Walter H. Jewell. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff brings certiorari or writ of review.

<p>CORPORATIONS — NOTES — EXECUTION — VALIDITY-PLED GE — ESTOPPEL—WAREHOUSE RECEIPTS — INDORSEMENT.</p> <p>1. Plaintiff sues to recover back certain property which the company of which he is the liquidating commissioner, acting as a corporation, gave to the defendant in pledge; and the defendant challenges the regularity of plaintiff’s appointment, and his right to stand in judgment, on the ground that said company was not a corporation. Held that, having received the pledged property from said company as a corporation, defendant cannot, for the purpose of holding on to the property, deny the corporate character of said company.</p> <p>2. Although the charter of a corporation requires that the notes of the corporation shall be signed by the president and countersigned by the secretary, a note of the corporation signed by the secretary alone will be valid if issued in due course of business, and especially if the corporation was in the habit of disregarding that provision of its charter. And it would make no difference that the note had not been given for a plain loan, but had been discounted. Nor that it was the creditors of the corporation, and not the corporation itself, that contested its validity, the corporation being defunct and insolvent.</p> <p>3. But even if said note, because of nonconformity with the charter, were invalid, a pledge executed along with it to secure its payment would not lapse for want of a principal obligation, but would remain in full force and effect, as security for the return of the money received in the transaction.</p> <p>4. A pledge of warehouse receipts need not be evidenced by any writing, but may be effected by mere delivery.</p> <p>5. Act 72 of 1876, p. 113, has no application to United States bonded warehouse receipts; hence such receipts are not statutory instruments regulated by said act, but mere ordinary warehouse receipts, governed by commercial law, and, as a consequence, need not be paragraphed, “For hypothecation,” in order to be susceptible of being given in pledge.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Henry Berlin against P. L. Cusachs, Limited. Judgment for plaintiff. Defendant appeals.</p>

<p>EJECTMENT — TITLE TO LAND — EXPROPRIATION-</p> <p>1. This court decreed that the streets of the-town of Colfax are free from any claim of ownership. Calhoun v. Town of Colfax, 29 South-887, 105 La. 416.</p> <p>2. Front street is one of the streets of that, town, with the width similar to other streets.</p> <p>3. The lot in possession of defendant never-was in public use, and is not subject to a public servitude.</p> <p>It is owned by plaintiff to the .outer line of' Front street.</p> <p>(Syllabus by the. Court.)</p>

Paul, Judge. In the matter of the succession of Owen •Glancey. From an order rejecting a judgment for testamentary executor, Thomas Glancey and others, opponents, appeal.

In the matter of the succession of Mary Sangpiel, widow by first marriage of C. W. Rieder, and wife by second marriage of Frank Martin. The Jackson Brewing Company, opponent, appeals.

<p>INTOXICATING LIQUORS — LICENSE—AUTHORITY OJT POLICE JUBY — LOCAL OPTION.</p> <p>1.The parish of De Soto has no authority to levy a license tax on the sale of spirituous liquors within the limits of the town of Mansfield. At an election held throughout the parish, under the authority of the police jury, the result was for prohibiting the sale of intoxicants in the parish, including the town of Mansfield.</p> <p>Subsequently an election was held in Mansfield and the result was, for licensing the sale of spirituous liquors.</p> <p>In 1903 one license was issued and collected of $3,500.</p> <p>In 1904 ...........................$4,000</p> <p>—and the dealer lost money.</p> <p>In 1905, the parish, acting under section 11 of Act No. 186, p. 363, Acts 1902, fixed the license at $5,000.</p> <p>The license relators attack on the ground of invalidity, because, as they urge, prohibitory.</p> <p>2. The first section cited (section 11, Act No. 186, p. 363, Acts 1902) is general in terms. It is not restricted to any particular business or occupation subject to license. It does not retain full force and authority, where, as in this case, the parish has declared itself against issuing any license at all, and the town subsequently by vote declared for licensing a business ; and it does not retain its authority to impose license upon the town that has a special clause in its charter granting the power, since the election was held conferred by section 14, Act No. 186, p. 366, Acts 1902. The town has power to rule and regulate, as well as prohibit, the sale of intoxicating drinks, and to call an election to determine by ballot questions their grant suggests.</p> <p>3. Between the general section first mentioned and the last section, which refers to Mansfield, only, the court holds that the last particular section governs wherever there is direct conflict and irreconcilable conflict between the two.</p> <p>4. The power of the parish can be restored only by a vote of the people of the parish, and not by the action of the police jury alone, who have no authority, by result of the election, to-issue a tax licensing the sale of intoxicants.</p> <p>5. It was not the intention of the lawmaking-body in any of the grants to neutralize the local option laws of the state, and to take from the voters the right to judge for themselves whether license should issue or not.</p> <p>6. The questions involved are judicial, and render decisions necessary to the extent that statutes are interpreted and ordinances are declared to be illegal.</p> <p>7. The ordinance is annulled as ultra vires and illegal, and the judgment is affirmed to the extent that it declares the license null.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Proceeding by J. D. McClenny against W. M. Webb. Judgment dismissing suit and McClenny applies for certiorari and mandamus.</p>

<p>BREACH OX MARRIAGE PROMISE — DAMAGES — JUDGMENT — ASSIGNMENT—APPEAL—PURCHASE BY ATTORNEY.</p> <p>1. In a suit for breach of promise of marriage, the question of damages is peculiarly within the discretion of the jury or trial judge, and their finding will not be disturbed unless the amount awarded is manifestly excessive or insufficient.</p> <p>2. Where the judgment rendered in such a suit was several months thereafter transferred to an attorney at law, and the defendant subsequently took a devolutive appeal, held, that he had no interest in contesting on such appeal the title of the attorney, because, if his purchase was null, as contended, the title to the judg-.. ment remained in plaintiff, who was before the court as appellee, and because, further, the purchase per se did not affect the defendant.</p> <p>3. Where an attorney purchases a litigious right in the form of a judgment, the remedy of the defendant is to oppose its execution when the attorney attempts to enforce it.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish, of Orleans; John St. Paul, Judge.</p> <p>Action by F. Martin and others against G. & J. Hanson. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by the Bank of Patterson against the Urban Company, Limited, and others. Judgment for defendants, and plaintiff appeals.</p>

Action by Rochbert P. Richard against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff was reversed on appeal by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by William A. Lorenz, for the use of Lillian Y. Lorenz, against the city of New Orleans. Judgment for plaintiff. Defendant appeals.</p>

<p>INJUBY TO EMPLOYÉ — DANGEBOUS APPLIANCE —ASSUMPTION OP BISK.</p> <p>The master is under a legal obligation to furnish safe appliances to his workmen, and by proper inspection and care to keep them in safe condition. In case of an injury resulting from the breaking of part of the appliances, the master is in better condition to know the cause than the workman. As a general rule, the master must show that he has complied with the obligations imposed upon him. A workman does not, by the mere fact of taking employment, assume the risks of all accidents which may happen from the breaking of part of the appliances.</p> <p>(Syllabus by the Court.)</p>

<p>VENDOS AND PURCHASER — DEEDS—CONSIDERATION — DESCRIPTION—VALIDITY.</p> <p>N., by authentic and duly recorded act, transferred the legal title to certain property to S., to be by him sold and the proceeds applied to the payment of N.’s debts. The property was accordingly sold, and the proceeds applied as directed to W., the act of sale being duly recorded with full and complete description.</p> <p>N. subsequently sold the same property to P., who brought a petitory action to recover it from W., on the ground, among others, that the description of the property in the act from Ñ. to S. was insufficient to carry the title, and because the consideration of that transfer was the withdrawal of a criminal prosecution against the transferror. Held that, under the circumstances, N. could not ignore the sale to W. and recover the property, nor could P. do so.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert Raymond Reid, Judge.</p> <p>Action by James B. White against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

In the matter of the succession of George Landry. Suit by legal heirs against Angeline Yohe to set aside a will. From the judgment, Yohe appeals.

Action by the city of Lake Charles against the Equitable Life Assurance Society of the United States. Judgment for defendant was' affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>INJURY TO EMPLOYÉ — ASSUMPTION OE RISK-PLEADING — EXCEPTIONS.</p> <p>1. The employé had knowledge of the danger incident to the crossing over a weak bridge. Others avoided the danger. I-Ie remained in the place of danger, although the danger was specially mentioned to him. Under a well-established rule, he must be held to have assumed the risk he met at the moment of the fatal accident.</p> <p>2. Plaintiff sued defendant as a partnership. It was a corporation, and not a partnership. This objection on the ground stated, urged by way of exception, is fatal to the action.</p> <p>(Syllabus by the Court.)</p>

<p>' PARTNERSHIP — DISSOLUTION—-SETTLEMENT.</p> <p>When two partners in a poolroom business have made 2l monthly settlements and divisions of the net profits on a certain basis, it will require very strong evidence to make good the claim of one of them, set up for the first time after the dissolution of the partnership, and in connection with the settlement for the last month of the existence of the partnership, that the basis of settlement ought to have been different, especially where the alleged discrepancy involves a large sum.</p> <p>(Syllabus by the Court.)</p>

Case Certified from Court of Appeal, Parish of Caddo. Action by M. L. Scovell and others against the St. Louis Southwestern Railroad Company. Judgment for defendant, and plaintiffs appeal to the Court of Appeal. Certified from the court by the judges thereof applying for instructions.

<p>GAMING — CONSTITUTIONAL LAW — ORDINANCES.</p> <p>Article 188 of the Constitution, declaring that “gambling is a vice and the Legislature shall pass laws for its suppression,” does not preclude the Legislature from conferring upon the municipalities of the state the power to pass ordinances for the suppression of gambling, and the Legislature has conferred such power upon the municipalities organized under the provisions of Act No. 136, p. 224, of 1898.</p> <p>(Si’llabus by the Court.)</p>

Application by the state, on the relation of Josephine M. Bailey, for writ of mandamus to the Canal Bank & Trust Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chrétien, Judge.</p> <p>Henry Boice was convicted of Manslaughter, and appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Jerome-Louis Gaudet, Judge.</p> <p>' Action by George Muntz 'against the Jefferson Railway Company. Judgment for defendant, and plaintiff appeals.</p>

Helena; Clay Elliott, Judge. Action by the Amos Kent Lumber & Brick Company, Limited, against the tax assessor, and others, for the parish of St. Helena. Judgment for defendants, and plaintiff appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; James Martin Foster, Judge ad hoc. Action by P. J. Trezevant, syndic, against the heirs of S. Levy. Judgment for defendants, and plaintiff appeals.</p>

<p>APPEAL — DISMISSAL—SETTLEMENT — EVIDENCE —ACTION .BY CORPORATION.</p> <p>On Motion to Dismiss.</p> <p>1. Where an appellee, suggesting that a compromise has been effected, moves to dismiss a pending appeal, and an issue of fact is raised, which requires .the taking of testimony, the motion may be held for subsequent action, and, where such a course seems preferable, the parties relegated to the district court, there to. litigate in a proper proceeding the matter in dispute.</p> <p>On Second Motion to Dismiss.</p> <p>2. The defendant corporation loosely kept minutes of its board of trustees. The officers evidently forgot the rules laid down in their charter.</p> <p>3. The motion to dismiss shows irregular attempts to prove that the corporation entered into a compromise with the plaintiff, who sues for possession.</p> <p>4. The former president of the company, it appears, has in some way been ousted. As he was the plaintiff in the action, he no longer has authority to represent the corporation.</p> <p>(Syllabus by the Court.)</p>

<p>CORPORATIONS — ACTION AGAINST STOCKHOLDERS — REVOCATORY ACTION — PARTIES —ASSETS.</p> <p>1. Plaintiff seeks to set aside acts entered into by one of the shareholders of a corporation, on the one hand, with the corporation in which he owns these shares, on the other.</p> <p>2. Plaintiff is a creditor of the corporation in. question, and the shareholder is the debtor of plaintiff. Plaintiff charges fraud, and, from the point of view of a creditor, legal fraud is chargeable. The action in its nature is revocatory, and can be sustained only under the articles of the Code relating to the revocatory action.</p> <p>3. In such an action the parties to the acts attacked must be made parties to the suit.</p> <p>4. The amount sought to be recovered, if due, is due to the corporation of Wood & Co., and not exclusively to plaintiff. The property must be brought back contradictorily with the parties in interest, and placed in the mass of property owned by the corporation, in order that it may be distributed among all the creditors. All the shareholders and creditors are interested in proportion to their shares or their claims.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>In the matter of the succession of Anna B. Sangfried. In the trial of an opposition in the district court, Philip C. Doerr, individually and as one of the joint administrators, appeals.</p>

<p>APPEAL — MOTION TO DISMISS — PETITION — EXCEPTIONS — FRAUDULENT MORTGAGE —■ NEGOTIABILITY — VALIDITY — CONSIDERATION — BONA FIDE HOLDERS — SUBSEQUENT TRANSFER-TAX SALE — PURCHASE BY REAL OWNER.</p> <p>1. On a suggestion made by a party who had taken a devolutive appeal, the court on the return day of the appeal extended the time for filing the transcript of appeal. It was duly filed under the terms of the extension. Thereafter appellee moved to dismiss the appeal on the ground that the inability of the clerk to have made out the transcript for the return day was due to the delay of the appellant to file his appeal bond. Appellant had stated in his application for an extension that there had been delay occasioned by pending propositions made by the appellee for a compromise. The delays for a devolutive appeal had not yet' expired. The court, for reasons assigned, refused to dismiss the appeal.</p> <p>On the Merits.</p> <p>_ 2. Though the petition be of doubtful sufficiency, the court will overrule an exception of no cause of action where there are- allegations of fraud and conspiracy, and under certain phases of the evidence a cause of action might appear.</p> <p>3. While the mortgage is negotiable, and follows the note it secures, yet it is not governed by the commercial law like the note, and does not enjoy the same perfect negotiability. Hence, where the ostensible owner of property has fraudulently mortgaged it and negotiated the mortgage paper, the right of the real owner to contest the validity of the mortgage is not to be determined exclusively from the consideration of whether the mortgage paper .was negotiable, and was acquired for value, in good faith, and before maturity, but rather from the consideration of whether, under all the circumstances of the case, he is estopped from doing so.</p> <p>4. Until the contrary is made to appear, negotiable notes in the hands of a third person are presumed to have been acquired in good faith, for value before maturity.</p> <p>r 5. Notes so acquired are not vitiated in the hands of the holder by subsequent information of the infirmity of their origin.</p> <p>6. The transferee of such a holder, though possessed of the same information, will acquire as good a title as he had.</p> <p>7. Where, in the acquisition of the notes from the bona fide holder, the transferee is represented by the person who originally negotiated the notes in fraud, this agency may give rise, as matter of fact, to suspicions and inferences, but will not ipso facto, as matter of law, vitiate the title of the transferee; it having been the principal himself acting through the agent.</p> <p>8. Failure to annex to the petition a copy of the authentic act upon which the suit is brought cannot be taken advantage of by exception of no cause of action. The sole penalty of such failure is that the defendant may refuse to answer until the document is filed.</p> <p>9. The real owner of property may buy it at a tax sale made to satisfy taxes assessed against the ostensible owner, and at such a sale the property will pass to him free of the mortgages' consented upon it by the ostensible owner as a fraud upon him. He owes no duty, either to the ■ostensible owner or to the latter’s mortgagee, to pay the tax.</p> <p>(Syllabus by the Court.)</p>

Application by John E. Lindner for possession of property held under tax sale. William H. Howcott applied for an injunction. The judgment of the district court was affirmed by the Court of Aiipeal, and Howcott applies for certiorari or writ of review.

Action by J. Sully Martel and others against the Jennings-Heywood Oil Syndicate. Judgment for defendant was reversed on appeal, and J. Sully Martel and others apply for a writ of mandamus for execution of the judgment.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; Albert Estopinal, Jr., Judge.</p> <p>Action by the Louisiana Navigation & Fisheries Company, Limited, against Milton P. Doullut and others. Judgment for defendants, and plaintiff appeals.</p>

<p>PARTITION — SUIT TO RE-ESTABLISH — DEFENSES —EVIDENCE—POSSESSION.</p> <p>Where, in a proceeding under Act No. 57, p. 92, of 1886, as amended by Act No. 30, p. 35, of 1900, to re-establish a partition in kind of a tract of land, the defendants assert that the owners in common each took possession of the parcel allotted to him, it cannot be successfully contended that one of the co-owners, who thereafter sold and put his vendee in possession of part of such tract, did not take possession thereof, and that the same was not partitioned, and the superstructure of the defense, based on such a proposition, must fall with the foundation.</p> <p>(Syllabus by the Court.)</p>

<p>SALE — BREACH OE CONTRACT — ACTION BY SELLER-EVIDENCE.</p> <p>This is a suit brought by plaintiff to recover from defendant on a contract of sale of oil, the defense being that the contract was terminated by reason of the failure of the plaintiff to comply with an obligation, alleged to be contained therein, to deliver the oil at a fixed date, it being asserted that plaintiff was in default not only by the terms of the contract, but by being additionally placed in default. Held, for reasons assigned, that the defense was not sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; Wilbur Fisk Black-man, Judge.</p> <p>Action by David and Mary Moses against the Grant Lumber Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>SUPREME COURT — JURISDICTION IN CRIMINAL CASES — HOW DETERMINED.</p> <p>1. Where a defendant was convicted of violating a “labor contract,” and was sentenced to pay a fine of $10 or to imprisonment for six days in the parish jail, held, that the Supreme Court is without jurisdiction, although the constitutionality of the statute under which defendant was prosecuted was questioned by him on the trial below.</p> <p>2. The criminal appellate jurisdiction of the Supreme Court is measured by the punishment which may be or is actually imposed, and not by the nature of the question of law that may be involved, save in cases where the constitutionality or legality of a fine, forfeiture, or penalty imposed by a municipal corporation is in contestation.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John Bachman Lee, Judge.</p> <p>George Williams was convicted of larceny, and appeals.</p>

Action by Mary Parker, wife of David McElveen, and others, against Charles N. Ricks; L. P. Parker, warrantor. Judgment for plaintiffs, and defendant and the warrantor appeal.

<p>DIVORCE — SUBSTITUTED PROCESS.</p> <p>Divorce and separation from bed and board are distinct and separate under our law, and separation from bed and board does not include divorce. I-Ience article 142 of the Civil Code, •which authorizes proceedings by substituted process against absent husbands for separation from bed and board, cannot be extended to proceedings in divorce.</p> <p>Breaux, O. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>ADMINISTRATION — CREDITORS OR SUCCESSION— ORDER OR PREFERENCE — EXECUTOR’S ACCOUNT-HOMOLOGATION — REVIEW.</p> <p>1. The law provides that the claim of the widow or minor in necessitous circumstances “shall be paid in preference to all other debts, except those for the vendor’s privilege and those incurred in selling the property,” but it does not otherwise affect the order of preference in which the creditors of a succession are to be paid, and, after such claim has been so paid, the claims to which inferior privileges are accorded should be paid in the oi'der established by law, and should not be subjected to horizontal or pro rata contribution, levied without regard to rank.</p> <p>2. The judgment of a district court homologating an account of an executor will not be reversed for the correction of a trifling error, not specified by opposition, and the correction of which would entail expense upon others, without benefit to the appellant.</p> <p>(Syllabus by the Court.)</p>

<p>SIMULATED SALE — DECLARATION DE SIMULATION — PARTIES—RENT CLAIM — DONATION OR SALE — JUDGMENT.</p> <p>1. The property was sold partly cash, and, partly on time. The vendors were in good faith, and sold to the vendee without reference to any agreement or understanding between their vendee and her father. They had a right to select their vendee, and no change can be made under the circumstances whereby the father can be substituted to the daughter as vendee, and this without the least notice to the vendors.</p> <p>2. The vendors were necessary parties to the suit. It does not appear that the contract was a mere simulation. Some valid consideration passed between the parties.</p> <p>This is additional reason rendering it necessary to make parties.</p> <p>3. The vendors were third persons who chose to sell the rent claim due by the father of the vendee to the vendee, without special mention made of this claim in a deed in which they sold immovable property to this vendee.</p> <p>4. Whether considered as a donation or a sale, the matter of form is not something of which a creditor can avail himself to have the property considered as property of their debtor, and this without citing and making the vendors parties to the suit which affects their contract.</p> <p>5. The judgment obtained on this rent claim had valid consideration. In addition, the claim, without reference to the judgment, was secured by the lessor’s privilege, which gave intervener standing to claim the proceeds.</p> <p>The manner of executing the judgment was not prejudicial error.</p> <p>6. The rent claim is reduced to the amount due by deducting a sum due by the former lessor.</p> <p>(Syllabus by the Court.)</p>

<p>Action by the Xavier Realty, Limited, against the Louisiana Railway & Navigation Company. Application of the Xavier Realty, Limited, for writs of mandamus, prohibition, and certiorari.</p>

<p>STREET RAILROADS — INJURY TO PERSON ON TRACK — EVIDENCE—NEGLIGENCE.</p> <p>1. The decedent was at a place where he had a right to be, on the track on his way to board a street car.</p> <p>2. The car of the defendant company, the appliances, and the road were in good order.</p> <p>3. The car was running at the usual rate of speed.</p> <p>4. The decedent and his companion were not standing on or dangerously near the track on which the car which collided with decedent was coming up.</p> <p>5. The decedent suddenly turned and left the place where he was standing, and ran diagonally in the direction of the coming car, and struck the dashboard and was killed.</p> <p>When he crossed over to the advancing car with which he collided, he was about six feet from the coming car.</p> <p>6. The weight of the evidence sustains the view that it was too late after the decedent came on the track to stop the car and save his life. The following are decisions in point: Snider v. R. R. Co., 18 South. 695, 48 La. Ann. 12; Hoelzel v. R. R. Co., 22 South. 330, 49 La. Ann. 1302, 38 L. R. A. 708; Webster v. R. R. Co,, 25 South. 77, 51 La. Ann. 299; Farrar v. R. R. Co., 26 South. 995, 52 La. Ann. 417; Ponsano v. R. R. Co., 26 South. 820, 52 La. Ann. 245.</p> <p>7. The threatened danger alleged grew out of a misapixrehension. The companion remained where the two were standing before the decedent turned and walked back, and was not hurt.</p> <p>8. The testimony shows that the accident was sudden. The companion of the decedent said, with reference to the latter, “He just turned around for a minute — a second.”</p> <p>The court finds it impossible, in view of the facts, to hold that the motoneer is responsible for the death.</p> <p>(Syllabus by the Court.)</p>

<p>CARRIERS — INJURY TO PASSENGERS — RIGHTS OB EXCURSIONISTS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — EMERGENCY TOOLS — PALL OP BRIDGE.</p> <p>1. Excursionists have the right to return home on the train by which they were taken out, and if, owing to the crowded condition of the train, they can secure no safer position than the platforms, it is not negligence on their part to ride thereon.</p> <p>2. The defense of contributory negligence is not inconsistent with the denial of negligence •on the part of defendant.</p> <p>3. The failure to equip a train with the tools usually carried by trains for emergency use in ■case of a wr'eek is negligence, and, where, for want of such tool, a passenger is not rescued as promptly as would otherwise have been practicable from his position in the débris of a wreck, the railroad company will be held responsible in damages for such additional sufferings, regardless of whether the wreck itself was or was not caused by its negligence.</p> <p>4. A railroad company will be held responsible for the injury to a passenger resulting from the collapse of one of its bridges, unless it can show that the bridge was as safe as the highest degree of practical care and skill could make a bridge of that class, and that, to the fullest extent that the highest degree of care and foresight could suggest, such bridge was inspected for discovering and remedying any defects that might have developed in it from the operation of the road or other causes, and, in case the defect was latent in the materials, then that the materials were thoroughly tested before being put in position.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by the S. M. Jones Company and others against J. H. Hoffman and others. Judgment for defendants. Plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Alphonse Lopes against Paul E. Sahuque. Judgment for plaintiff, and de-' fendant appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by Laurent Domingeau against Anais Darby. Judgment for defendant, and plaintiff appeals.</p>

<p>CARRIERS — EREIGHT IN SEALED CARS — CONNECTING CARRIERS — LIABILITY EOR INJURY.</p> <p>1. A railroad company which receives, as a connecting carrier, outside of this state, cotton in bales, shipped in sealed cars which were in good condition, under through contracts to which it was no party, and which hauls sucli cars unopened, and in like good condition, to their place of destination, and there delivers the cotton to the consignee, cannot be held liable for the wet and dirty condition of such cotton outside and inside the bales when so; delivered.</p> <p>2. Act No. 93 of 1888 in terms exempts from its provisions “freight received, in sealed cars, from roads outside of this state,” and the exemption is none the less applicable because the delivering and receiving carriers operate within as well as without this state.</p> <p>(Syllabus by the Court.)</p>

<p>VENDOR AND PURCHASER— CONDITIONAL PROMISE OP SALE — APPROVAL OP TITLE.</p> <p>1. The promise to sell was made on condition that the sale would be completed if the property was unincumbered and the title good. The matter of incumbrance and of title was left to the attorneys named in the written promise to sell.</p> <p>2. The attorneys did not approve the title within the appointed time. The time appointed to sign the deed of sale elapsed.</p> <p>3. The promisor cannot be held bound to complete the deed. The condition of the agreement was in the interest of both promisor and promisee.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — FINAL ORDER — APPOINTMENT OF ADMINISTRATOR-PROCEDURE.</p> <p>Motion to Dismiss.</p> <p>1. Where an opposition to the appointment of a certain person as administrator on the grounds, first, that there was no necessity for an administration, and, second, that the opponent was entitled to the appointment by preference, was filed, and “disallowed” or dismissed, held, that opponent had the right to appeal from the order, which was final as to his demands.</p> <p>On the Merits.</p> <p>2. Such an opposition should be tried with the original application for administration, and all the issues involved determined by one judgment.</p> <p>(Syllabus by the Court.)</p>

<p>INJURY TO EMPLOYÉ — DEFECTIVE APPLIANCES</p> <p>—CONTRIBUTORY NEGLIGENCE — EVIDENCE.</p> <p>1. While plaintiff, a sawyer, was in a stooping position in the narrow space 20 inches wide between the sawyer’s platform and the log deck, and engaged in removing sawdust which had accumulated beneath the platform and around the levers, his coat was caught by the collar of the shaft beneath the log deck, and plaintiff’s arm was broken and his shoulder dislocated. One of the screws of the collar projected about one inch beyond the rim of the collar, and one of its flanges was broken. Held, that the defective condition of the collar was the direct and immediate cause of the injury, that this defective condition was known or should have been known to' the management, and that defendant was negligent in not furnishing reasonably safe appliances.</p> <p>2. Contributory negligence is an issue of fact, and where the evidence is conflicting the finding of the trial judge will not be disturbed unless clearly wrong.</p> <p>.3. Where the evidence does not show that plaintiff was aware of the defective condition of the collar, the circumstance that he did not take precautions against an unknown danger is insufficient to charge him with negligence.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by People’s Savings, Trust & Banking Company against William N. Louque and Mrs. A. Pons, in solido. Judgment for plaintiff, and Pons appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by H. C. Spinks against the Georgia Quincy Granite Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by F. Rivers Richa'rdson against William Johnson. Judgment for plaintiff, and defendant appeals.</p>

<p>APPEAL — JURISDICTIONAL AMOUNT — COMMUNITY PROPERTY — BOND BY WIDOW.</p> <p>1. Where the jurisdiction of this court depends solely on the amount in dispute, an appeal involving $310 will be dismissed.</p> <p>_ 2. A widow in community is not obliged to. give bond as usufructuary of community property inherited by her children, unless so required by the last will of her husband.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — JURISDICTIONAL AMOUNT — TRANSFER OF CAUSES.</p> <p>1. For the purposes of the appeal, the plaintiff is bound by the allegations of his petition as to the value of the property claimed by him, and neither his right of appeal nor the jurisdiction of the court to which the appeal is taken fluctuate with the market value of such property.</p> <p>2. Act No. 56 of 1904, providing for the transfer of causes appealed to the wrong courts, cannot be applied to a case so appealed in which the delay for appeal to the court vested with jurisdiction had expired before the statute became operative, since the party in whose favor the judgment was rendered had acquired a vested right therein which could not be devested by legislation.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by the .city of New Orleans against Paul Lagasse. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Louis Bose was convicted of larceny, and appeals.</p>

<p>RAILROADS — INJURY TO EXPRESS AGENT NEAR TRACK — EVIDENCE—SPEED 03? TRAIN —CARE AT STATIONS.</p> <p>1. Personal injury was the cause of action.</p> <p>2. The questions are mainly of facts.</p> <p>3. Whether the rate of speed was unusual or usual on the night of the accident, the extent of the obstruction in a passageway, the place of the accident at the depot, the. light at the depot, whether sufficient or not, are questions bearing upon the issues.</p> <p>4. The testimony is conflicting. The jury observed the witnesses; saw them while testifying. They must have been familiar with the depot and depot grounds. Some weight must be given to their verdict.</p> <p>5. The railroad company owed it to the employés of the express company to furnish a reasonably safe passageway from the depot to the train.</p> <p>6. A railroad train approaching its depot in a large municipality should moderate its speed.</p> <p>7. Witnesses who notice that the speed is unusually fast on approaching a depot are not discredited by the fact that they are not familiar with the management of a railroad under way.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>PETITORY ACTION — ADVERSE POSSESSION.</p> <p>The plaintiff in a petitory action cannot recover land which, pursuant to an agreement to which he was a party, was sold more than 30 years ago at sheriff’s sale, and subsequently mortgaged to him, and of which the defendant, who acquired through mesne conveyances from the original purchaser, by himself and through his authors, has been in actual, open, notorious, and uninterrupted possession, under titles translative of property, for more than 10 years.</p> <p>(Syllabus by the Court.)</p>

<p>INTERDICT — JUDGMENT IN EXPROPRIATION SUIT —VALIDITY—WIFE. AS CURATRIX — POWERS —PRESCRIPTION—APPEAL—REMAND.</p> <p>1.A judgment rendered in an expropriation suit against an interdict without the intervention of a jury, and pursuant to an agreement between the wife of the interdict, as curatrix,. and a railroad company, is absolutely null and-void as to the person interdicted.</p> <p>2. The wife cannot be appointed curatrix of the interdicted husband except on the recommendation of a family meeting. Even when regularly appointed, she, like a tutrix, cannot compromise respecting his rights, nor can she bind him by confession of judgment, nor can she alienate his immovable property, except when duly authorized by the court on the advice of a family meeting, and when the property is sold according to law.</p> <p>3. Persons under interdiction cannot be prescribed against except in the cases specially provided by law, nor can they be estopped by silence, in action, or conduct.</p> <p>4. Where it is probable, from the circumstances of the case, that' insufficiency in the evidence may be supplied, and justice requires it, the cause will be remanded as to a particular issue, on which the court cannot pronounce finally.</p> <p>(Syllabus by the Court.)</p>

Petition by the state, on the relation of R. A. Smith and J. L. Bake.r, for writ of mandamus to J. C. Theus, district attorney. Judgment for defendant, and relators appeal.