Volume 115 — Louisiana Reports

Action by Lehman, Stern & Co., Limited, against Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

A. J. Hadnot and others were convicted of violating a town ordinance, and appeal to the district court. Appeal transferred to the Supreme Court.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert Raymond Reid, Judge.</p> <p>Action by F. P. Mix, sheriff and tax collector, against Frank J. Campbell. Judgment for defendant, and plaintiff appeals.</p>

<p>APPEAL — FILING RECORD — DISMISSAL.</p> <p>1. The record of appeal was filed in this court a number of days after the return day.</p> <p>2. Although the motion to dismiss the appeal was not made within three judicial days after the record was filed, the appeal must be dismissed. The failure to timely file the appeal is fatal to the appeal.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the matter of the succession of Cecilia Corrette, widow of Armand Bossu. From an order appointing an administrator, the public administrator appeals.</p>

<p>SUCCESSION — CLAIMS OF COLLATERAL HEIRS— ' LIFE INSURANCE POLICY — INTEREST OF CONCUBINE.</p> <p>1. The succession is claimed by the collateral' heirs, to which claim there can be no objection, save as relates to a policy of insurance which was taken out by the deceased whose succession is claimed, although they (claimants) did nothing for their brother while he lived, and gave themselves no concern about him after his death.</p> <p>2. Concubinage with the one whose succession is claimed was the beneficiary of the policy, and it was stipulated with the insurance company that she should pay all premiums. They were all paid by her.</p> <p>3. The deceased (nominally the insured) did not expend a cent on the policy. She (the-beneficiary of the policy) rendered faithful services to the deceased, and when he died she-pledged her policies in order to obtain for him a decent funeral. He made her no donation. Under her investment she acquired a right to the proceeds of the policy.</p> <p>4. The case is easily differenced from New York Life Insurance Co. v. Jennie Neal, 38^ South. 485, 114 La. 652.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Thomas Lewis, Judge.</p> <p>Action by Preval Chretien against Agenor Giron. Judgment for plaintiff, and defendant appeals.</p>

W. Ellis, Judge. Action by T. J. Bartlett and others, as stockholders of the Young Men’s Real Estate Improvement Company, Limited, against H. C. Fourton and others. Judgment for defendants, and plaintiffs appeal.

<p>Action by J. W. Foote, commissioner, against Henrietta S. Pharr and others. Plaintiff filed supplemental petitions calling in warranty Pauline Ermann and Leon Cahn. The order being granted, Ermann and Cahn apply for certiorari and prohibition.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Henry A. Curtis against A. Lehmann & Co. Judgment for plaintiff, and-defendants appeal.</p>

Clay W. Fairbanks was convicted of assault by willfully shooting, and appeals, and, he prays for writs of certiorari, prohibition, and habeas corpus.

<p>DIVOBCE — DOMICILE — SEPARATION EBOM BED AND BOAED — ABANDONMENT.</p> <p>1. The domicile of the husband is that of _ the wife only when the husband has a domicile prhere the wife has the right to stay.</p> <p>2. Where a husband who has not provided • such a domicile takes his wife to the house of her parents, and without further notice to her leaves the state for an indefinite period, the wife has a right to a separation from bed and board on the ground of abandonment.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court,- Parish of Orleans; Ered D. King, Judge.</p> <p>Action by Ida Deppeart against Nicholas Rombotis. Judgment for plaintiff, and defendant appeals.</p>

<p>RAILROADS— OPERATION OF TRAIN — WATCHING TRACK — NEGLIGENCE—PRIMA FACIE EVIDENCE — INJURY TO PASSENGER.</p> <p>1. The company is liable for backing an engine and tender without a lookout.</p> <p>2. There were two men on the engine — the engineer and his helper. Neither saw the accident.</p> <p>3. In backing a short distance over depot grounds and depot yards, there should have been some one on the lookout. It does seem that the engineer could have been on the lookout, for it does not appear that while running at a very slow rate of speed the engine requires extraordinary attention; or the fireman, who has very little, if anything, to do on the way from depot to roundhouse, and no further, might have been on the lookout at or near the front of the tender.</p> <p>4. The collision took place with the tender in front of the backing car, whereby the man lost his life. Because of the absence of a “lookout,” the mind is led to a presumption of negligence on the part of the defendant company, which, if it might have been rebutted, was not rebutted. It does appear that a lookout could have avoided the accident.</p> <p>In the absence of explanatory evidence, negligence was found by the jury, which on appeal does not appear erroneous.</p> <p>5. The maxim res ipsa loquitur is applicable. There was prima facie evidence of negligence, which defendant failed by its testimony to explain away.</p> <p>6. Yards about a passenger depot are a public place. One is not a trespasser who follows a pedestrian beaten path in the attempt to get on the train about to leave, although this path is some feet away from the depot.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>MANSLAUGHTER — EVIDENCE — DYING DECLARATION — ADMISSIBILITY— OODEEENDANTS.</p> <p>1. To authorize the admission in evidence, in a prosecution for manslaughter, of an ante mortem statement, as a dying declaration, the state must prove that the deceased was in ex-tremis, that he was fully conscious of his condition, and that he made the declaration under a sense of impending death, and after having abandoned all hope or expectation of recovery.</p> <p>^ 2. Where the question is one of life and death, to a man presumably in good health, who has been suddenly stricken down by a gunshot wound, who has still something to live for, and whose mind is shown to have been busy with the idea of prosecuting those by whom he had been injured, proof that the last spark of hope has left his breast can hardly be considered convincing unless it comes in the form of a specific admission to that effect, by word or sign, from the man himself, since no one else •can know.</p> <p>3. It does not follow, because a man who, having been shot, and having been told by his attending physician that he (the physician) cannot cure him, makes no reply, and upon another occasion pleads to his Maker for mercy, and is downcast in appearance, that he is therefore convinced that death is imminent, and that he has abandoned all hope of recovery. There are persons who pray for mercy and are downcast in appearance as the result of trifling visitations.</p> <p>4. Where three persons are being prosecuted at the same time and under the same indictment, the jury ought to be instructed that one or two may be convicted or acquitted without the conviction or acquittal of the other or others.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommer ville, Judge.</p> <p>Action by John McDonnell against the New Orleans Cypress Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the matter of the succession of Samuel Arthur Kohn. On rule to show cause why all the property belonging to the estate should, not he decreed free from the inheritanee tax. From a judgment holding it not exempt, Mrs. Samuel Arthur Kohn, plaintiff in rule, and the succession appeal.</p>

Action by Jules Clement against T. J. Breaux. Action dismissed by a justice, and plaintiff appealed, and, on an order to the district judge fixing a day for trial, defendant applies for writs of certiorari and prohibition.

<p>JUDGMENT — ACTION TO ANNUL — NECESSARY PARTIES.</p> <p>Parties to a judgment must be made parties to an action to annul it, and, where the necessary parties are not cited in the trial court, the error cannot be corrected by their appearance in this court long after the appeal has been returned, and over the objections of the appellants.</p> <p>(Syllabus by the Court.)</p>

<p>PROHIBITION — NOTICE OE APPLICATION— WAIVER.</p> <p>Parties called on to respond in this court to applications for writs of prohibition, mandamus, and the like, who except that they have not been notified of the intention to make such applications (as required by rule 12, § 2, of this court 21 South, xi), do not waive the exception by answering to the merits, since in such cases all matters of exception and defense are required to be pleaded at the same time, and to hold that the answer to the merits waives the exception would be to hold that the rule in question can be successfully invoked only by abandoning all defense to the merits.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; Richard Cleveland Drew, Judge.</p> <p>Action by Clem H. Jackson against Milton McMillan and others. Judgment for plaintiff, and defendant McMillan appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>In the matter of the interdiction of Louise Helene Lambert. From the judgment, the undercurator appeals.</p>

<p>MASTER AND SERVANT — EMPLOYMENT OP MINOR —ASSUMPTION OP RISK.</p> <p>1. A railway company is not at fault in employing as a brakeman an intelligent young man, 19, who has the. appearance of being 22 or 25, years of age, in the absence of any objection from his parents or tutor.</p> <p>■ 2. An experienced brakeman, who, in violation of a rule of the company employing him, and of specific instructions, voluntarily and unnecessarily goes between the moving cars of a train, assumes the risk of the consequences.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Poster, Judge.</p> <p>Action by Elias A. Pharr against H. H. Shade! H. G. Turner and others intervene. Judgment for defendant, and plaintiff appeals.</p>

<p>SUCCESSIONS — PARTITION — SALE — ANNULMENT — DEFECTS — RATIFICATION —EVIDENCE.</p> <p>1. The instrument of writing sous seing prive was not admissible without evidence aliunde of its genuineness.</p> <p>2. After the document had been admitted, testimony was admitted which had the effect of proving up its genuineness and the verity of its text.</p> <p>3. Without an offer to return the price, plaintiffs are without right to have transfer annulled.</p> <p>4. A sale of property in which minors are interested may be made to effect a partition.</p> <p>5. If errors of form are committed, minors may ratify them after majority. Prescription also may cure the defect.</p> <p>6. If property be omitted of insignificant value, it may give rise to the necessity of making a supplementary partition without the necessity arising of repartitioning all the property previously divided.</p> <p>7. The rights of parties reserved to recover property not covered by the proceedings heretofore had.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Emily E. H. Reems. Action hy M. M. Dielman and-others against Philip F. Reems and others. Judgment for defendants, and plaintiffs appeal.

<p>OIL AND GAS LEASE — CONSIDERATION—MUTUALITY — FAILURE TO PAY RENT — POS-SESSORY ACTION — ISSUES.</p> <p>1. The plaintiff company stepped into the shoes of their vendor, who was the lessor of property held by defendants under a contract of lease.</p> <p>2. Lessor reserved no right to rescind the contract under its terms.</p> <p>3. The lessees were privileged to drill a well for petroleum or pay rental.</p> <p>4. The plaintiffs, as owners, claim possession and treat the contract of lease as void, or as no longer binding upon them.</p> <p>(a) That defendants did not drill for petroleum, and permitted the time to pass without complying with the contract.</p> <p>(b) Rental was paid for a part of the time.</p> <p>5. The contract was not void, and the owners were not entitled to possession (if at all) without an action to set aside the lease, to which, as assignee, they must be held to have consented.</p> <p>6. The rental was not so inconsiderable as to amount as to render it possible to consider it as “vile” and a mere nothing.</p> <p>Insufficiency of the amount cannot be sustained in a suit exclusively for possession.</p> <p>7. Delays in offering to pay rental do not render the contract absolutely null.</p> <p>8. There was performance for a time as relates to rental and execution of the contract.</p> <p>9. A contract of lease may contain a stipulation fixing an amount enabling the lessee to put an end to the lease, and unless this amount is “vile” and insufficient the lessor must resort to the courts to have the contract annulled. B'orfeitures are to be strictly construed in an action to resume possession of the property leased, not directed toward setting aside the contract of lease under which the property is held.</p> <p>10. If the owners have a right of action to set aside the lease, they have no right to an action in which the lease is not mentioned and no allegation is made to have its dissolution decreed.</p> <p>11. The right to resume possession could not arise until default made by the lessees, both in not exploring the land for oil and in not paying for the delay.</p> <p>12. Even the appearance óf a contract has binding effect after execution. There was for a time, at least, the appearance of a contract, by which plaintiffs are held bound.</p> <p>On Rehearing.</p> <p>13. In a possessory action the plaintiff is bound to prove his possession and its disturbance by the defendant, and the question of the latter’s title whether as owner or lessee can be made an issue only by consent and to the extent of the consent.</p> <p>14. A contract purporting to be a lease for a term of 10 years of mineral rights in a 40-acre tract of land in an unproved part of the country, whereby the contractor agrees to commence operations within six months, or pay $50 quarterly, in advance, for each additional three months such operations are delayed, until an oil well is completed, and whereby he is given the right to remove his machinery at any time, and to cancel the contract on payment of $100 at any time, and whereby, in the event of the discovery of oil and gas, the gross yield is to be shared, in certain proportions, by the contracting parties, is not void upon its face for want of mutuality or as containing a potestative condition.</p> <p>(Syllabus by the Court.)</p>

<p>CONTRACT — ABANDONMENT — DAMAGES — APPEAL — ANSWEE.</p> <p>1. Where a contractor, through his own negligence, brings the work which he has undertaken to perform into such a condition that he is unable to complete it, and thereupon abandons his contract, he becomes liable for the loss resulting to the other contracting party, including the amount reasonably expended in minimizing such loss.</p> <p>2. An answer to an appeal, praying an amendment of the judgment appealed from, comes too late if not filed at least three days before the cause is first set down for argument in this court.</p> <p>(Syllabus by the Court.)</p>

<p>AEPEAL — COURT OF APPEAL — REHEARING — PROCEDURE — RENDERING JUDGMENT.</p> <p>The Court of Appeal, on defendant’s application for a rehearing, set aside the judgment it had rendered in favor of plaintiff and rendered judgment in favor of defendant. This it was without authority to do. “If the application (for rehearing) be refused,” says Act 100 of 1896, p. 150, “the judgment or decree shall become final; if granted, the case shall be continued on the docket for the next term.”</p> <p>{Syllabus by the Court.)</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by John Pharr against Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment for defendant, and plaintiff appeals.</p>

Action by Clara Harris and husband against Jeff Deblieux, administrator, and the succession of B. V. Deblieux. Judgment for plaintiffs, and defendants appeal.

<p>CRIMINAL LAW — VENUE—CONSTITUTIONAL LAW.</p> <p>Section 988 of the Revised Statutes, authorizing the trial of an offense in a court other than that of the parish in which it was committed, provided it be committed within 100 .yards of the boundary line, is unconstitutional, being in conflict with article 9 of the Constitution, which requires that “all trials shall take place in the parish where the offence was committed.”</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Mrs. M. Driscoll against John E. Pierce. Judgment for plaintiff, and the heirs and testamentary executors of deceased defendant appeal.</p>

<p>CRIMINAL LAW — EVIDENCE—WITNESS—IMPEACHMENT — LETTERS—PROCEDURE.</p> <p>1. On a criminal trial evidence is admissible on behalf of defendant to refute details of testimony given by witnesses for the state, on which details the probabilities of the statements of the state’s witness depend, though bearing on immaterial circumstances.</p> <p>2. A witness cannot be contradicted by the contents of a letter he admits having written, unless first interrogated upon the portions of the letter by which it is intended to impeach him.</p> <p>3. Before a letter written by a witness can be used for purposes of impeachment, it must be shown to the counsel of the party against whom it is offered.</p>

<p>BEE0BMATI0N OF DEED — MISTAKE IN DESCKIPTION.</p> <p>Errors of description in sales of real estate may be corrected as between the parties. The court will the more readily recognize and correct errors where the description is by reference to United States'surveys.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Edward Blount Talbot, Judge.</p> <p>Action by Sitgreaves Adams and others against the Brownell-Drews Lumber Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the United Fruit Company against the Louisiana Petroleum Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fish Black-man, Judge.</p> <p>Action by Grace T. Bonnette against Henry A. Wise. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Blackman, Judge.</p> <p>Action by the American Machinery & Construction Company against Stewart & Haas. Judgment for defendants, and plaintiff appeals.</p>

<p>Mandamus by the state, on the relation of Morris R. Stewart, acting district attorney, against David J. Reid. Application of relator for writ of mandamus to J. B. Lee, judge.</p>

<p>APPEAL — JURISDICTION—TRAN SEER TO COURT OE APPEAL.</p> <p>Case transferred to the Court of Appeal, under Act No. 56 of 1904; the Supreme Court having "no jurisdiction.</p> <p>(Syllabus by the Court.) '</p>

<p>JURY — PUBLICATION OE LIST — EXCUSING JUROR EOR SICKNESS — CRIMINAL LAW — OBJECTIONS TO EVIDENCE — EXPERT EVIDENCE — MURDER-INDICTMENT.</p> <p>1. Act No. 135, p. 216, of 1898, the general jury law, does not require lists of jurors to be-published or posted for 30 days or any other particular period of time.</p> <p>. 2. The accused cannot complain that the judge, in his discretion, has excused a particular juror on account of sickness, or' because another juror duly summoned has failed to appear, there being present a sufficient number of' jurors to complete the panel.</p> <p>3. Where a question is objected to, and the-objection overruled, the bill of exception should set forth the answer of the witness, and all other facts necessary to show the relevancy and materiality of the answer as evidence in the cause.</p> <p>4. A coroner who is sworn as an expert physician and surgeon, and who has examined the wounds of the deceased, may give his opinion as to the kind of weapon used, and the distance-from which the shot was fired.</p> <p>5. In an indictment for murder it is sufficient to charge that “the defendant did feloniously, willfully, and of his malice aforethought kill and murder the deceased.” Rev. St. 1870, § 1048.</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 Leopold Levy against R. W. Collins, Jr., and others. Judgment for de-</p> <p>fendants, and plaintiff appeals.</p>

<p>ACTIONS — NATURE AND FORM — PARTIES — NONRESIDENTS — PROCESS—JURISDICTION— OBJECTION — WAIVER.</p> <p>1. After joinder of issue by judgment by default, an exception to the jurisdiction of the court, ratione personae, comes too late.</p> <p>2. An action brought by a resident of Mississippi in the district court for the parish of Caddo against a railway company, whose agent for the acceptance of service is domiciled in New Orleans, and against another defendant, domiciled in Ohio, to annul a contract to which the plaintiff is neither party nor privy, whereby the company has agreed to establish a depot on the land of the other defendant, lying contiguous to that of the plaintiff, in the parish of Red River, in consideration of the grant of a portion of such land for right of way and other purposes, on the ground that the contract is illegal, is a personal action, not in the nature of a proceeding in rem.</p> <p>3.The mere fact that, in an action against two defendants domiciled beyond the territorial jurisdiction of the court of first instance, jurisdiction is acquired as to one, does not of itself authorize the bringing of the other into court by the appointment and citation of a curator ad hoc, even though the appearance of such other defendant be necessary in order to enable the parties already in court, or either of them, to obtain a judgment upon the issues offered for decision.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>ABDUCTION — INDICTMENT — SUFFICIENCY — SURPLUSAGE — “UNLAWFUL SEXUAL INTERCOURSE” — MEANING OF TERM. '</p> <p>1. Act No. 134 of 1890, p. 175, makes it a crime to abduct a woman of previous chaste character “for the purpose of prostitution or for any unlawful sexual intercourse, at a house of ill fame or at any other place of like character, or elsewhere.” If in an indictment under this act it be necessary to specify any particular house to which the woman was taken, such requirement is satisfied by the naming of one such house.</p> <p>2. Eor the purpose of showing the purpose of the abduction, proof that the abducted woman was taken to other houses is admissible for showing the purpose of the abduction.</p> <p>3. The crime denounced by the above-named act lies in the abduction, and an indictment which charges but one abduction would not be bad for duplicity if it named several houses to which the abducted woman was taken, and a fortiori is it not bad because, after naming one house to which the woman was taken, it adds, “and to the houses of various other persons, whose names are unknown to these grand jurors.” These added words are too vague'ror any useful purpose, but, being mere surplusage, they do no harm.</p> <p>4. The term “unlawful sexual intercourse” found in said Act No. 134, p. 175, of 1890, means sexual intercourse out of wed.lock. .The meaning is not restricted to such sexual intercourse as is made unlawful by some express statute. It means the infringement of the moral law, and not necessarily of the civil law.</p> <p>(Syllabus by the Court.)</p>

<p>PROCESS — SERVICE—NONRESIDENT CORPORATIONS.</p> <p>1. In an action in which a creditor seeks to obtain a personal judgment against its asserted debtor, a nonresident corporation, process served upon the latter’s secretary while temporarily in the state is not sufficient to enable the plaintiff to recover judgment.</p> <p>2. The defendant had no property, real or personal, in the state.</p> <p>3. Beyond isolated transactions, it did not conduct a business in this state.,</p> <p>4. The transaction which gave rise to a claim on the part of plaintiff was not one brought about by defendant’s secretary, and it did not fall within the provision of the statute which renders it possible to serve process and cite “each person or persons, company or firm, thus transacting business for the corporation.” The secretary is not of that number, not having transacted the “business for the corporation.”</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Oivil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Mrs. E. L. Theard against Mrs. Z. Gueringer, in which the New Orleans Terminal Company was served as garnishee. The garnishee paid the fund in its hands into court, and filed a bill of interpleader asking that plaintiff and Mrs. Cleris, a claimant of the fund, be required to litigate the question of the ownership of the fund. From a judgment for plaintiff, Mrs. Cleris appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Robert E. Leithman against Mrs. D. A. S. Vaught and others. From a judgment for plaintiff, defendants appeal.</p>

<p>CRIMINAL LAW — OPINION EVIDENCE — GOOD CHARACTER — REMARKS OE DISTRICT ATTORNEY-APPEALS TO RACE PREJUDICE.</p> <p>1. The belief of a witness as to whether the prisoner would have been likely to commit the crime charged against him is not evidence.</p> <p>2. Evidence of good character must be restricted to the trait of character which is involved in the crime charged.</p> <p>3. On the trial of a negro for striking a white man, the jury being all white, a reference on the part of the district attorney to the prosecuting witness as “a creole fellow brother in blood,” or “a fellow brother in blood,” or “a creole fellow in blood,” is in the nature of an appeal to race prejudice, and as such, in view of the peculiar racial conditions in this state, of which the court takes judicial cognizance, is calculated to unduly influence the jury, and as a consequence vitiates the verdict.</p> <p>4. And it is considered that the effect of such an appeal cannot be counteracted by the instructions of the judge to the jury to disregard same, or by the apology of the district attorney for the unfortunate slip and his request that the same be disregarded.</p> <p>(Syllabus by the Court.)</p>

Petition by the Oil City Ironworks, Limited, against the Pelican Oil & Pipe Line Company, for the appointment of a receiver. An order was made appointing a receiver, and Jesse S. Savage and others, as directors and stockholders in the defendant corporation, applied for rehearing. From an order striking out the motion for rehearing, movants appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Petition by Edward C. Byrnes against the minors Byrnes and others. From a judgment for defendants, petitioner appeals.</p>

<p>BATTURE ACCRETIONS — DEEDS — RESERVATIONS — VALIDITY — PRESCRIPTION — EMINENT DOMAIN — CONFLICTING JUDGMENTS — RES JUDI-CATA.</p> <p>1. Where the owner of an interest in a parcel of land fronting the Mississippi river sold said interest to the city of New Orleans in the year 1854, excepting and reserving, however, his interest in all future batture accretions, held, that such a stipulation is a lawful agreement, and should be enforced.</p> <p>2. Where there are two conflicting judgments in the same case, the later in point of time must prevail. Where the first was a consent judgment between plaintiff and defendant, and was vacated by their consent before the rendition of the final judgment on the merits, a warrantor, no party to the consent proceedings, is bound by the last judgment, and cannot plead the consent decree as res judicata.</p> <p>3. Prescription does not run against a riparian owner in respect to batture while administered by a city for public uses.</p> <p>4. The term “river” includes the bed of tbe stream up to its state of ordinary high water.-</p> <p>5. Where batture is formed within tbe limits of incorporated towns and cities of this state, the ownership of tbe riparian proprietors is subject to tbe right of tbe corporation to reserve and use a sufficient portion thereof as may be necessary for navigation, commerce, public highway, and streets. There is, however, no public servitude over such batture in favor of railroads.</p> <p>6. The right of the riparian owner to recover such portion of the batture which has been formed in front of his land as may not be necessary for public use is specially conferred by section 318 of the Revised Statutes of 1870, which imposes on the courts the duty to de-, termine what portions of the batture are not necessary for the purposes of navigation, commerce, and other public uses.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>In the matter of the insolvency of Edward Conery, Jr. Prom the appointment of Harry McEnerny as definitive syndic, George A. Hassinger and others appeal.</p>

Suit by Swift & Co., Limited, against the board of assessors and others to reduce an assessment against plaintiff. There was judgment for plaintiff, which was affirmed by the Court of Appeal, and the state, on the relation of John Fitzpatrick, as state tax collector, First District, parish of Orleans, and others, applied for certiorari or writ of review.

<p>Petition by the Cudahy Packing Company of Louisiana against the board of assessors and others. There was judgment for petitioner, and the state, on the relation of John Fitzpatrick, as state tax collector, First District, parish of Orleans, and others, applied for certiorari or writ of review.</p>

<p>1. Railroads — Right of Way — Necessity— Bcjbden of Pboof.</p> <p>A railroad company seeking to expropriate land for a right of way assumes the burden of proving the necessity in the particular case for the exercise of the power of eminent domain!</p> <p>2. Same — Want of Necessity.</p> <p>Where a city ordinance granting a steam railroad a right of way on the streets of a city was permissive, merely, and was not granted on condition that the route of the road should be along the streets, and it was established at the trial of a proceeding to condemn land privately owned for a right of way that the interest not only of the railroad company, but of the general public, would be subserved by not having the railroad tracks laid in the street, plaintiff was not deprived by the ordinance of the right to condemn the land in question because of want of necessity.</p> <p>3. Same — Damaqf.s.</p> <p>In proceedings to condemn land for a railroad right of way, defendant was not entitled in such proceeding to recover damages caused by the construction of the road sustained by property other than that directly involved in the proceeding.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by the Xavier Realty, Limited, against the Louisiana Railway & Navigation Company. Judgment for defendant, and plaintiff appeals.</p>

Action by George W. Booksh against A. Wilbert Sons Lumber & Shingle Company; the Citizens’ Bank of Louisiana being called in warranty. From a judgment for defendant, plaintiff and said bank appeal.

<p>1. Jactitation — Ríame to Judgment — Pleading — Tax Sale.</p> <p>Plaintiff in a jactitation suit, who fails to disclose a color of title to the property with reference to which the suit is brought, is not entitled to a judgment recognizing his possession as legal and quieting him therein, even though the defendant, setting up title in himself, fails to establish it, and, a fortiori, is this true where the plaintiff does not pray such judgment. Nor should the judgment, under such circumstances, go beyond the prayer of the petition with reference to other property, where the possible effect will be to lay a foundation for, build up, or strengthen a title as against the public.</p> <p>2. Tax Title — Prescription — Reimbursement.</p> <p>Prescription does not run against an owner in possession, in favor of a tax title, based upon an adjudication to the state, made in 1885, for taxes of that year, assessed in the name of one not the owner of the property, and to whom no notice, actual or constructive, of the proposed sale, was given; nor is the holder of such tax title entitled to reimbursement of the taxes and penalties paid by him.</p> <p>On Rehearing.</p> <p>3.Slander oe Title — Possession oe Plain-</p> <p>tief.</p> <p>In a suit for slander of title mere possession by the plaintiff will suffice as against a defendant disclaiming title, and also as against a defendant setting up a tax title absolutely null.</p> <p>Monroe, J., disseuting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Mrs. Fannie M. Tobin and others against the United States Safe Deposit & Savings Bank, as trustee. From a judgment for plaintiffs, defendant appeals.</p>

W. Ellis, Judge. In the matter of the succession of Mathias Levy. Rule on the executors to show cause why they should not pay certain legacies. From an order dismissing the rule, the universal and particular legatees, plaintiffs in the rule, appeal.

Action by William V. Gilmore against Joseph Schenck, in which R. A. Corbin was cited to appear as defendant’s warrantor. From a judgment for defendant, plaintiff appeals^

<p>Habeas Corpus — Application to Supreme Court — Jurisdiction.</p> <p>In the present situation of the proceedings, it happens that part of the action against defendant is before the district court, and that additional steps in the proceedings have been taken before the justice of the peace.</p> <p>In order that the proceedings may be considered as a whole, and that the court may be sufficiently advised, to the extent that it is possible to find reason, if any, for dual charges, the judge of the district court is the proper officer to retain jurisdiction and afford whatever remedy the defendant may have.</p> <p>He has held no examination into the last charge before the justice of the peace, and'has not declined to take action in the matter. He is the proper judge to consider (in the first place) the questions involved.</p> <p>(Syllabus by the Court.)</p>

<p>1.Estoppel by Warranty — After-Acquired Title.</p> <p>Where all the parties to an act of partition, but one, have estopped themselves from contesting the legality and regularity of the proceedings, and warranted the title of the purchaser, and the one not so estopped dies, leaving as his heirs, through representation, the parties so already estopped, the latter cannot, through such acquisition of an additional interest in the property, attack the title of the purchaser or the regularity of the proceedings. The maxim, “quern de evictione tenet actio, eundem agentem repellit exceptio,” bars the attack. Beneficiary heirs, no less than heirs pure and simple, are bound by the estoppel warranty of those through whom they inherit.</p> <p>On Rehearing.</p> <p>2. Partition Sale — Purchase — Enforcement.</p> <p>This is a suit asking for a decree ordering defendant to comply specifically with the terms and conditions of a contract of sale into which he had entered. Under the facts of the special case, judgment is rendered in favor of the plaintiff.</p> <p>3. Tutrix ad Hoc — Appointment of Mother.</p> <p>Where the father of minor children has died, there is no legal objection on account of her sex to the appointment by the court of the mother as the tutrix ad hoc of some of the minors, defendants in a partition proceeding.</p> <p>(Syllabus by the Court.)</p>

<p>1. Contracts — Building Contract.</p> <p>This case grew out of a controversy be* tween the owner and the contractor.</p> <p>2. Same — Delay in Completing Building.</p> <p>The contractor, having failed to deliver at the appointed time the houses he was employed to construct, is liable for his default.</p> <p>3. Same — Liquidated Damages.</p> <p>His contract contained the stipulation that he would pay $15 for each day’s delay.</p> <p>4. Same — Extent op Delay.</p> <p>There was a delay of 56 days after the stipulated time.</p> <p>5. Delays Caused by Owner.</p> <p>The owner caused some delay in the construction. Each day’s delay caused by him is deducted from the 56 days, and judgment is rendered for the remainder of days.</p> <p>6. Substantial Compliance.</p> <p>In other respects the contract was substantially complied with.</p> <p>7. Plan op Architect Not Plain.</p> <p>There was deficiency in the height of one of the buildings. The plan was not entirely correct. Contractors cannot be held for errors in architect’s plan not patent on the face of the plan, or for errors not easily detected. The architect’s mistake, the architect having been employed by the owner, should not be charged to the contractor. There was claim for “sundry incompleteness,” which is not sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Ernest Dewez against the Orleans Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish Of Orleans; John St. Paul, Judge.</p> <p>Expropriation proceedings by the New Orleans Terminal Company against the Firemen’s Charitable Association. Judgment for defendant, and plaintiff appeals. On motion to dismiss.</p>

<p>1. Master and Servant — Injury to Servant —Proximate Cause.</p> <p>The servant’s want of care was not the proximate cause of death. He attempted to perform the duty in the mode usual among railroad émployés in running a freight train.</p> <p>2. Same — Evidence.</p> <p>The rule of the company did not require the flagman to remain in the caboose of the last car while the train was stopped at a station and cars were cut off to be left on a switch on the way.</p> <p>3. Same.</p> <p>The servant was near the conductor, under whose orders he was, who gave the signal from the ground, where he was standing, to leave the station.</p> <p>4. Same.</p> <p>He afterwards boarded the train, climbed to the top, and walked on the moving train to1 ward the caboose, and in the opposite direction of the telltale warning and the headway bridge the train was fast approaching.</p> <p>5. Same.</p> <p>He was killed under the bridge. His head struck a beam of the lower part of the roof of the bridge, and thereon left an imprint. From' the top of the bridge on which he was walking to the under side of the bridge above him, there was not clearance enough, and hence the blow he received.</p> <p>6. Saids — Knowledge of Danger.</p> <p>Beyond mere inference, nothing shows that he had knowledge of the height of the bridge.</p> <p>7. Same — Low Bridge — Telltale Signals.</p> <p>There was a telltale signal at,the required distance from the bridge to warn employes walking on the train to stoop down. The provisions of Act No. 39, p. 51, of 1882, requires that telltale signals shall hang low enough to touch persons on top of the ordinary box car, and should be put up in such a way as to be ample warning.</p> <p>8. Same — Evidence.</p> <p>The testimony does not lead to the inference that the telltales were low enough, and the ample warning intended by the statute. A measurement of the, height of the average car, considered in connection with the height of the deceased, shows that he could pass without receiving the intended touch from the cords of the telltales. The telltale signal was too high and the bridge too low for him to pass without casualty.</p> <p>9. Same — Contributory Negligence.</p> <p>No reasonable inference shows that he was killed, otherwise than by the collision before stated. The contributory negligence charged was not shown.</p> <p>Provosty, X, dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Sequestration — Proceedings after Judgment.</p> <p>Relators brought suit to recover one-fifth of a tract of land, together with one-fifth of the oil produced by_ certain wells thereon. They accompanied their suit by a sequestration of the entire output of oil. Thereupon the parties agreed that the net proceeds of one-fifth of the oil should be deposited in bank subject to the event of the suit, and the remainder be released from the sequestration. The court decided in favor of relators, but decided that the sequestered oil should not be delivered to relators until they had reimbursed the expense of producing same. The judgment having become final, the relators filed a petition in the same suit, asking that the total output of oil be sequestered. Held, the suit having been closed by final judgment, no further proceedings could be had in it, except such as might be required for the execution of the judgment; that the remedy of relators, if they and their co-owners could not agree as to the disposition of the property, was a suit in partition, accompanied, if need were, by a sequestration pendente lite.</p> <p>(Syllabus by the Court.)</p>

<p>1. Habeas Corpus — Refusal of Bail — Review.</p> <p>The Supreme Court will interfere when the criminal court has refused to admit a defendant to bail only in case it be evident that a prejudicial error has been committed.</p> <p>2. Same — Grounds of Defense.</p> <p>Grounds of defense are confined to the trial. They are not controlling or conclusive, one way or the other, in considering questions which may arise prior to trial.</p> <p>(Syllabus by the Court.)</p>

<p>On Motion to Dismiss.</p> <p>1. Criminal Law — Appeal—Time oe Taking.</p> <p>Appeal was timely taken within “continuous” session of the court.</p> <p>On the Merits.'</p> <p>2. Homicide — Assault by “Shooting At.”</p> <p>The defendant was prosecuted under section 792 of the Revised Statutes, which denounced “shooting at.”</p> <p>The court heretofore decided that “shooting at” is a complete crime in itself. State v. Brady, 2 South. 556, 39 La. Ann. 688. That decision is affirmed.</p> <p>3.Statutes — Construction—Power oe Legislature.</p> <p>The court looks into the propriety of a penal statute to ascertain whether it falls within the power of the Legislature. Amending Act No. 59, p. 93, of 1896, falls within that power and is not void.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Black-man, Judge.</p> <p>Action by William T. Parker against the Crowell & Spencer Lumber Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>In the matter of interdiction of Louise Helene Lambert. From a judgment removing the curator of an interdict from office, he appeals.</p>

W. Ellis, Judge. Application by the state, on the relation of L. B. Wilder and others, for writ of mandamus to the board of liquidation of the city debt. Judgment for relators, and defendants appeal.

<p>Action by Henry Barbier against Dr. T. Nagel and others. Judgment for defendants. Application by I. T. and W. Preston for writ of prohibition.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Joseph Duperier was convicted of assault with intent to kill, and appeals.</p>

Action by. Jacob Itzkovitch against Edward Stanley Whitaker. Exceptions to a rule nisi were overruled, and defendant prays for writs of prohibition and certiorari. Samuel Louis Gilmore, City Atty. (Benjamin Rice Foreman, of counsel), for relators. Respondent Judge, pro se. Solomon Wolff and Gustave Lemle, for respondent Itzkovitch. |

<p>Highways — Use—Runaways—Personal Injuries.</p> <p>It is negligence for the driver of a team of horses to abandon his seat upon the box and his hold upon the reins, and to leave his team standing in a frequented place; and, where it appears probable that they might have been controlled if he had been in the proper position to control them, his employer will be held liable in damages for injury inflicted by them upon a third person in running away.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Suit by the Church Extension Society of the Methodist Episcopal Church and others against Lhote & Co.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Lillian Hill against A. M. Hill. Judgment for plaintiff, defendant appeals.</p>

<p>1. Cbiminal Law — Appeal — Demubber to1' Evidence — Review.</p> <p>Where a district judge overrules a demurrer to the evidence adduced in a criminal case and proceeds at once to render judgment on the merits, finding the accused guilty and sentencing him, the Supreme Court cannot on appeal go behind the judgment and decide whether the judgment and sentence were sustained by the law and the evidence submitted to the court. The jurisdiction of the Supreme Court is confined to questions of law. It can pass (under a bill of exception^) upon the admissibility of evidence received in a case, but not upon its effect after it has reached the jury, or (in a case tried by the court alone) after it has been submitted to and acted on by the judge.</p> <p>2. Same — Bill of Exceptions.</p> <p>The Supreme Court will not pass upon certain questions, unless brought before it under a bill of exceptions; but it does not follow, because a bill of exceptions has been taken, that it will pass upon them. Issues raised must be such as will fall within the appellate jurisdiction, and they must have been presented at the time and in the manner and in form as required by the law and the rules of practice.</p> <p>3. Same — New Trial — Grounds.</p> <p>Great latitude is given defendants in criminal cases in assigning in the trial court grounds for a new trial. The right to apply for a new trial and the authority given to the trial court to grant the same are the great remedies afforded by the lawmaker for the ascertainment of and for relief from error and injury, but many of those grounds can- never be assigned in the Supreme Court on appeal. Complaints urged, which, if well founded, would result in a complete rejection of and bar to the action, find no place in a motion for a new trial.</p> <p>4. Same — Defects in Indictment.</p> <p>Parties who submit their cases for trial on certain testimony, introduced by consent, occupy the same position which they would have done, had the state (on defendant’s application) furnished a bill of particulars covering the condition of affairs which that testimony disclosed. Defendant cannot claim that he was not informed of the nature and character of the accusation against him. Judgment rendered under such circumstances comes in aid of and cures defects in the indictment and vagueness in the law. State v. Hauser, 36 South. 396, 112 La. 335.</p> <p>5. Same — Motion in Arrest of Judgment-Constitutional Law — Pool Rooms.</p> <p>Motions in arrest of judgment are to be disposed of on errors apparent on the face of the record. The court cannot examine, discuss, and act on the testimony adduced on the trial, though copied in the transcripts. Act No. 128, p. 292, of 1904, is not unconstitutional, as violative of article 31 of the Constitution of 1898. A law is not unconstitutional because of the generality of its terms. Parties indicted under a statute v.ery general in its terms can obtain relief by requiring a bill of particulars of the charge against them, and on the trial the things not intended by the lawmaker are read out of the law. Board of Com’rs v. Miaiegvich, 27 South. 790, 52 La. Ann. 1292.</p> <p>On Rehearing.</p> <p>6. Gaming — Operation of Pool Rooms — Constitutional Law.</p> <p>Act No. 12S, p. 292, of 1904, providing for the suppression of “pool rooms,” declaring their operation to be gambling, and providing penalties for opening, conducting, or operating the same or working therein, is not unconstitutional or inoperative for obscurity in defining the words “pool room.”</p> <p>7. Same — Construction of Statute:</p> <p>This legislation was in response to decisions of this court to the effect that betting on horse races, whether on the track or remote from the track, was sanctioned by the Civil Code of the state. The act is therefore to be construed with reference to the particular evil pointed out and sought to be remedied.</p> <p>8. Evidence — Judicial Notice — Pool Room.</p> <p>The term “pool room” is to be understood in its most usual and popular signification, and the court will take judicial notice of its notorious and unquestioned meaning.</p> <p>9. Statutes — Construotion.</p> <p>The court will also resort, in the interpretation of statutes, to the common knowledge of the public at large on conditions which led to its enactment.</p> <p>10. Gaming — Pool Rooms — Construction of</p> <p>Statute.</p> <p>Aided by the above rules of construction^ there can- be no question that the evil sought to be remedied by Act No. 128, p. 292, of 1904, and Act No. 127, p. 291, of the same session, was the suppression of gambling on horse races through the medium of “pool rooms” and “turf exchanges,” which mean the same thing.</p> <p>11.- Same — Evidence.</p> <p>The circumstance that the wagers were made under the guise of telegrams to a neighboring town in another state,' the room being operated and the money received and bets paid by the defendant in this state, cannot be considered in any other light than a subterfuge or evasion, having no legal effect whatever on the venue of the offense.</p> <p>(Syllabus by the Court.)</p>

<p>1. Petitoey Action — Title to Maintain.</p> <p>Plaintiff in a petitory action, in order to recover, must at least show a better title to the property claimed than the defendant in possession.</p> <p>2. Prescription — Judicial Sale — Adverse</p> <p>Possession — Evidence.</p> <p>Where a tract of land has been incorporated, by fencing and use, in a plantation for more than 20 years, openly, notoriously, and without interruption or disturbance, and the plantation is sold by- the sheriff, as such, by name and by metes and bounds, the tract so incorporated passes to the adjudicatee, with and as a part of said plantation, by a title the defects of which, if any there be, where the adjudicatee continues in possession in good faith, are cured by the prescription of 10 years.</p> <p>(Syllabus by the Court.)</p>

Chrétien, Judge. P. B. Peralta was indicted, for violation of Acts 1902, p. 42, No. 34, making it an offense to willfully neglect to provide for the maintenance of any person’s wife or minor children, and gave a bond conditioned to pay a certain sum weekly, and was after-wards adjudged guilty of contempt for 'the failure to make such payment, and appeals.

<p>Building and Loan Associations — Seizure and Sale — Abuse oe Process — Dismissal oe Proceedings.</p> <p>Where, under a contract with a homestead association, whereby such association has undertaken to build a house on lots transferred to it for that purpose and then resell the property to the owner of the lots at a fixed price payable in installments, payments have been made during a series of years, and gross errors have been committed by the association in the charging of interest and the keeping of the account, and the establishment of its claim for a balance alleged to be due is dependent upon evidence not authentic, the resort to the writ of seizure and sale savors of an abuse of that process, and, in the absence of an amendment to the pleadings changing the proceeding to an ordinary action, such proceeding will be dismissed and the parties relegated to such other form of action as they may be advised to pursue.</p> <p>(Syllabus by the Court.)</p>

Action by Erasmus J. Shepherd against Henry Schomaker. Judgment for plaintiff, affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>1. Executor — Bond — Motion op Forced Heir.</p> <p>The law does not exact bond on motion of a forced heir. The right is limited to the demand of creditors or claimants of specific prop-, erty.</p> <p>2. Same — Inventory—Motion to Amend.</p> <p>A direct action to set aside claims to property is the remedy, and not a rule asking for another inventory or an amendment of the old inventory.</p> <p>(Syllabus by the Court.)</p>

Case Certified from Court of Appeal, Parish of Orleans. Action by Paul Rousset against the city of New Orleans. Judgment for plaintiff, and defendant appealed to the Court of Appeal, which certified the case for instructions.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Pietrina Parriconi and Domenico Rini against Victor Greco. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Animals — Vicious Dogs — Liability or Master.</p> <p>Plaintiff, while on a public street, was attacked, thrown down, and his thigh bitten by a dog of defendant. Held that, in order to bring this case within the ruling of the Martinez Case, 30 South. 901, 106 La. 368, 55 L. R. A. 671, 87 Am. St. Rep. 306, it was necessary for defendant to show that the animal had always been of a kind temper, had never attempted to bite any one, and had never given occasion to suspect that he would bite; and, failing to do so, the law presumes that the defendant was in fault in not confining the animal, which was a strange dog, to the premises.</p> <p>2. Damages — Personal Injuries.</p> <p>In such a case, where the actual pecuniary loss was nearly $200, and pain was suffered for several weeks, a total award of $500 cannot be considered as excessive.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of" Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the Monongahela River Consolidated Coal & Coke Company against the board of assessors and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Criminal Law — Objections to Evidence.</p> <p>A defendant who testified as a witness in her own behalf as to a fact, to which fact the witnesses for the state had testified, cannot legally object to the testimony as not admissible on the ground that as to her case the testimony was foreign and not admissible.</p> <p>2. Same.</p> <p>The witnesses to whose testimony objection was urged by the defendant did not prove anything further or more material to the issues than she had when testifying in her own behalf. The testimony as to .this fact was substantially the same.</p> <p>(Syllabus by the Court.)</p>

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

Application of Dan T. Dupuy and others for writs of mandamus, certiorari, and prohibition to the police jury of the parish of Iberville and, others.

<p>Application by W. J. Emmer for writ of prohibition to prevent the continuance and enforcement of an injunction issued in a suit commenced by J. W. Sanders against applicant.</p>

Action by Charles Mongogna against the Illinois Central Railroad Company. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

W. Ellis, Judge. In the matter of the succession of Jules Joseph Kunemann. On the filing by the administratrix of a final accounting of administration, the widow of deceased filed an opposition, and from a dismissal of the same appeals.

Action by J. Sully Martel and others against the Jennings-TIeywood Oil Syndicate and others. Rule on application by the sheriff for plaintiffs to furnish a provisional bond. Application of plaintiffs for writ of prohibition.

<p>Action by J. Sully Martel and. others against the Jennings-Heywood Oil Syndicate, and others. Application for a writ of mandamus on the relation of plaintiffs against the judge of the district court.</p>

<p>Injunction — Protection oe Personal Rights.</p> <p>The issues raised are substantially the same as those in the case of Jacob Itzkoviteh v. Edward Stanley Whitaker (No. 15,804), In re Edward Stanley Whitaker, 39 South. 499,1 applying for writs of prohibition and certiorari.</p> <p>The principles announced in that case are reaffirmed.</p> <p>(Syllabus by the Court.)</p>

Action by the National Automatic Fire Alarm Company against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

R. K. Franklin was convicted of violating an ordinance of the town of Many, and on appeal to the district court the prosecution was dismissed, and the town appeals.

<p>Criminal Law — Appeai^Dismissal.</p> <p>The appeal is dismissed, for the reasons stated in the opinion this day handed down by Mr. Justice Land in the case of same title (No. 15,614) 39 South. 740, ante, p. 638.</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law — Appeal.</p> <p>Litigation in all cases is limited to one appeal; i. e., an appeal from the court of first instance to the appellate court.</p> <p>Judgments from the magistrate’s or mayor’s court are similarly limited as to appeals. See Case 15,614, 39 South. W), ante, p. 638, handed down this day.</p> <p>(Syllabus by the Court.)</p>

Proceedings between Edward Conery, Jr., and his creditors. From the order appointing a syndic for said Conery, Harry MeEnerny and others appeal.

Paul, Judge. Suit for injunction by William S. Benedict and others against the city of New Orleans and others to restrain defendants from proceeding with the construction of a courthouse in the parish of Orleans. Prom a de cree for complainants, defendants appeal

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>Action by the Lhote Lumber Manufacturing Company against Joseph Dugué and Samuel Levy. Judgment for plaintiff was affirmed by the Court of Appeal, and Levy applies for certiorari or writ of review.</p>

<p>Appeal from Civil District Court, Parish of Orleans: Fred D. King, Judge.</p> <p>Action by Robert P. De Renzes against his wife. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard,-Judge.</p> <p>Action by Paul Chapman against the Old African Baptist Church. Judgment for defendant, and plaintiff appeals.</p>

Application by John Journee for a writ of mandamus to compel the court to issue a peremptory writ of mandate in a mandamus proceeding by the state, on relation of John Journee, against the board of commissioners.

<p>Appeal from Civil District Court, Parish, of Orleans; John St. Paul, Judge.</p> <p>Action by the State National Bank against S. W. Clark & Sons and others. There was-judgment for plaintiff, under which a fi. fa. was-issued and levied on certain property, and Mrs. S. W. Clark sued out an injunction restraining the sale of the property. Prom a judgment dissolving the injunction, Mrs. Clark appeals.</p>

Paul, Judge. Suit by the Metropolitan Life Insurance Company of New York against the board, of assessors for the parish of Orleans. From a judgment for plaintiff, defendants appeal.

Action by Mrs. James W. Elizardi against Thomas H. Kelly and wife. Judgment for defendants was reversed by the Court of Appeal, and defendants applied for certiorari or writ of review.

<p>1. Criminal Law — Evidence—Plight of Accused.</p> <p>In murder cases, evidence of flight is admissible on the part of the state, as a circumstance tending to create a presumption of guilt, whether the homicide was committed publicly in the presence of witnesses or secretly. The objection to such evidence goes to the effect, which must be decided by the jury. State v. Harris, 20 South. 729, 48 La. Ann. 1189; State v. Middleton, 28 South. 914, 104 La. 233; State v. Austin, 29 South. 23, 104 La. 410. 2. Same — Objections to Evidence.</p> <p>Where defendant in a murder case voluntarily testified to his flight from the scene of the homicide to a distant portion of the state, and to his there living for 15 years under an assumed name, he is in no position to complain that a witness for the state testified to his flight immediately after the killing.</p> <p>(Syllabus by the Court.)</p>

<p>1. Master and Servant — Injuries to Servant-Superintendence.</p> <p>Responsibility of contractors for injury received by workmen rests upon their freedom of action in respect to selection of and to superintendence over the latter. When the individual workmen, instead of allowing matters to take their usual shape and course, make it a condition of their accepting service that the contractor will yield in their favor this right of freedom of action, they absolve him from the responsibility which otherwise would be thrown upon him, and look to that of their own selected agencies.</p> <p>2. Same — Superintendence oe Labor Organization.</p> <p>When the workmen delegate to a labor organization which they have joined (and others in privity with it) this right of selection and superintendence, they agree, so far as the contractor is concerned, to accept the membership of their fellow workmen in their respective organizations, and the action of those associations is, ipso facto, good and sufficient guaranty to them for their individual safety and protection.</p> <p>If they deem membership in organizations as conferring benefits upon them, they cannot accept the benefits and repudiate the resulting legal disadvantages.</p> <p>Neither justice nor reason would justify throwing upon contractors responsibility in favor of parties for acts over which they have themselves taken control.</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law — Joint Defendants — Motion for Severance.</p> <p>A motion for severance on the ground that the defenses are antagonistic should specify wherein the defenses are antagonistic or be supported by oath or other proof.</p> <p>’ (Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>William Rabb was convicted of conducting a poolroom, and appeals.</p>

<p>Gaming — Owning and Maintaining Pool-booms.</p> <p>The defense that the prosecution cannot be maintained because Act No. 128, p. 292, of 1904, on which it is based, is unconstitutional, null, and void, for the reason “that it does not define the crime pretended to be denounced therein, nor is the same defined by any act of the state of Louisiana,” is not well grounded. The decision of the Supreme Court in State v. Maloney (No. 15,576) 39 South. 539, ante, p. 497, is affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>Judge — Recusation—Venue—Recused Cases — Time for Transfer.</p> <p>The date fixed by the fifth section of Act No. 40, p. 39, of 1880, for the transfer of recused cases to another district for the trial, is nine months from the order of recusation, not nine months from the date of the order referring the question of “recusation vel non” to another than the trial judge. Non constat but that the decision on that question may be against the recusation, in which event the case remains for trial where it originated.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Bill oe Exceptions —</p> <p>Sueeiciency.</p> <p>Whether a bill of exceptions prepared under the provisions of Act 'No. 113, p. 162, of 1896, need be submitted to opposite counsel before it is presented to the judge for signature, qusere. But a bill so prepared will be considered by this court, even though not showing on its face that it was submitted to opposite counsel, if from the statement of facts attached to it and from the per curiam this court is informed with sufficient certainty what the facts were upon which the bill has been reserved, and what the exact point ruled on was, and what the ruling was.</p> <p>2. Homicide — Evidence — Threats oe Deceased.</p> <p>The laying of a foundation for the proof of threats is not required, where the purpose of proving the threats is to rebut the inference of malice arising from an independent act proved by the prosecution; as where, the state having proved that on the day before the homicide the defendant had sought to borrow a shotgun, the latter offers to prove that his life had been threatened by the deceased.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Jerome Louis Gaudet, Judge.</p> <p>Jim Gallo was convicted of murder, and appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Sabine; John Bachman Lee, Judge.</p> <p>Action by the Hammond Signor Tie Company against the Zwolle Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Eminent Domain — Juey— Quauitcations.</p> <p>The persons selected by the clerk of court and the sheriff to serve as jurors in matters of expropriation should be taken, not only from parties having no pecuniary interest in the issue to be tried, but from men who have taken no specially active steps towards the accomplishment of the object sought to be obtained by the expropriation. The wide scope given for selection, the narrow margin left for objection by the owner, and the great weight attached to the verdict of the jury in such cases, make it the duty of courts to rigidly construe and enforce the requirements of the law touching the competency of jurors.</p> <p>2. Same.</p> <p>The owner of the property has the right to have the issues he has raised tried before a jury legally constituted.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Wesley Parks was convicted of murder, and appeals.</p>

<p>1. Couets — Pleading — Jurisdictional ' Facts.</p> <p>It suffices that the jurisdictional facts appear from the evidence. They need not necessarily appear from the pleadings.</p> <p>2. Injunction — Dissolution—Liability on</p> <p>Bond.</p> <p>Where the cutting of timber is enjoined, and the injunction is bonded, and after trial on the merits is dissolved, attorney’s fees and other expenses relating distinctly to the bonding of the injunction may be allowed as damages.</p> <p>(Syllabus by the Court.)</p>

Indictments were found against G. S. Adair for shooting- with intent to murder and against Pete Adair for carrying concealed weapons. Failing to appear, the bonds in each case were forfeited. The sureties appeal.

<p>Appeal from Judicial District Court, Parish of Vermilion; William Pierrepont Edwards, Judge.</p> <p>Leon Baudoin was convicted of horse stealing, ánd appeals,</p>

<p>Bigamy — Instructions.</p> <p>A charge that a marriage contracted with a woman within 10 months after her divorce is a nullity, and that the other contracting party is not guilty of bigamy in thereafter marrying another woman, unless it appears that he had continued to live with the first contractee as her husband until after the expiration of such 10 months, is more favorable to the defendant on trial than he had a right to expect.</p> <p>(Syllabus by the Court.)</p>

<p>1. Intoxicating Liquoks — Licenses by State.</p> <p>The state relinquishes her right to grant licenses for the sale of intoxicating liquors only when none are granted by the local authorities, but reserves such right “whenever any licenses may be granted.” Rev. St. 1870, § 1212.</p> <p>2. Same — Action foe License Tax.</p> <p>The failure of defendant to procure a permit from the city of New Orleans to conduct a saloon business is no defense against a suit by the state for license taxes.</p> <p>3. Same — Parties Liable.</p> <p>The provisions of the General License Law (Act No. 171, p. 414, of 1898) § 13, are broad enough to cover any place or establishment where intoxicating liquors are sold to be drunk on the xiremises.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Application by the state, on the relation of George Jurgens, against the Consumers’ Brewing Company. Judgment for relator, and defendant appeals.</p>

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>Action by James D. L. Mullen against Mrs. Widow A. Kerlee. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.</p>

<p>Appeal from Judicial District Court, Parish of East Carroll; Francis Xavier Ransdell, Judge.</p> <p>Jake Hopkins was convicted of shooting with intent to commit murder, and appeals.</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; Richard Cleveland Drew, Judge.</p> <p>J. J. Spurling was convicted of crime, and appeals.</p>

<p>Motion to Dismiss.</p> <p>1. Appeal — Jurisdiction—Amount in Controversy.</p> <p>A suit by a judgment creditor to annul a judicial sale of a plantation on the ground that it was made without appraisement, and on the further ground of a fraudulent combination to prevent competition in bids, is not a revocatory action, but is petitory in character, and the value of the property is the test of appellate jurisdiction.</p> <p>On the Merits.</p> <p>2. Mortgages — Foreclosure—Sale—'Validity — Appraisement.</p> <p>Where the plaintiff filed a third opposition, claiming a lien and privilege on a sugar house and one acre of ground on which it stood, and obtained an order for a separate appraisement of said property, and the plantation was sold as a whole without the benefit of appraisement, as stipulated in the mortgage and as originally ordered by the court, held, that such appraisement could have been made after the judicial sale; and held, further, that when the seizing creditor offered to join plaintiff in making such appraisement immediately after the sale, and the offer was declined, and thereupon the purchaser deposited in the hands of the sheriff an amount sufficient to satisfy plaintiff’s alleged claim, the latter has no ground to complain that the sale was null because made without previous appraisement.</p> <p>3. Same — Conspiracy to Prevent Bidding.</p> <p>Where the evidence fails to prove_ an alleged fraudulent combination and conspiracy to prevent competitive bidding at a judicial sale, an agreement as to the subsequent disposition of the property by the purchaser cannot affect the validity of the sale. If injured by such agreement, plaintiff can sue to annul it.</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 Vinton Oil & Sulphur Company, Limited, against J. M. Park. Judgment, for plaintiff, and defendant appeals.</p>

<p>1. Criminal Law — Appeal—Review.</p> <p>Appeals in criminal cases are not taken for the mere purpose of testing the correctness of the rulings of the trial judge, but of rectifying any injury which the convicted parties may have received therefrom. If there be no reason, they practically have no reason for complaint. ■</p> <p>2. Same — Harmless Error.</p> <p>Assuming that a statement made by the party killed to a witness was not res gestae and should not have been permitted to go to the jury, the accused party suffered no injury if the same statement went to the jury without objection as a dying declaration made by the deceased.</p> <p>3. Same — Reception oe Evidence.</p> <p>The time and order of receiving testimony are controlled to a very considerable extent by the discretion of the trial judge. His action in the present case is upheld by the appellate court.</p> <p>4. Homicide — Instructions—Sele-Defense.</p> <p>The special charge requested by the accused, that in a case of homicide the jury, in determining the necessity for the killing, should consider the evidence from defendant’s standpoint at the time of killing, was, in the language in which it was couched, faulty. Defendant’s rights were protected by the general charge, which was given.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>In the matter of Edward Conery, Jr., and his creditors. From the judgment, George H. Hassinger and Otto F. Maier appeal.</p>

Action by John Alonzo Woodville against Josh Kantrowitz. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Certiorari to Court of Appeal, Fifth Circuit.</p> <p>Action by Ursin Perret and others against C. W. Coleman. Judgment for plaintiffs was reversed by the Court of Appeal, and they apply for certiorari or writ of review.</p>

<p>1. Divorce — Separation from Bed and Board</p> <p>—Defamation.</p> <p>The spreading of a report that the wife is insane, and the publishing of a notice that the husband will not be responsible for any debts she may contract, are not sufficient in themselves to support an action for separation from bed and board on the ground of defamation; but these facts will contribute materially to the support of an action on the ground of excesses and cruel 'treatment, especially in a case where the wife is a woman of culture and refinement.</p> <p>2. Same — Evidence.</p> <p>In weighing the facts in a suit for separation from bed and board, the court will be mindful that there may have been in the life of tlie parties a great deal which, owing to the mouth of the plaintiff being sealed, it may have been impossible to bring to the attention of the court.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Manuel Gomez against James E. Tracy. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by the Woodstock Iron Works against the Standard Pulley Manufacturing Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermilion; William Pierrepont Edwards, Judge.</p> <p>Adrien Baudoin was convicted of an assault with intent to kill, and appeals.</p>

Certiorari from Court of Appeal, Parish of Orleans. Action by the Equity Savings & Loan Company, Limited, against S. B. Boisfontaine and others, in which the Junius- Hart Piano House, Limited, was made garnishee, and from a judgment against it appealed to the Court of Appeal, where the judgment was reversed, and Henry L. I-Ieymann, as subrogee, applies for certiorari or writ of review.

<p>Appeal from Judicial District Court, Parish of Rapides; William Cullen Roberts, Judge ad hoc.</p> <p>Action by Gilmore & Maginnis against Joseph H. Meeker. Judgment for plaintiffs, and defendant appeals.</p>

<p>I. Guabanty — Acceptance.</p> <p>Where a guaranty has been demanded as a condition of withholding judicial proceedings, and has been received, and the judicial proceedings have been withheld, this was a sufficient acceptance of the guaranty, and no further acceptance was necessary.</p> <p>2. Same — Construction—Mistake.</p> <p>Where a person signing a guaranty thinks it is for $1,100, when in reality it is for so many thousands, there is error as to the substance of the contract; and the guaranty is binding only up to the amount as to which there was no error.</p> <p>3. Same.</p> <p>It makes no difference that the error was not induced by the creditor. Error is error, no matter by whom or by what induced, and vitiates the consent; and without consent there can be no contract.</p> <p>4. Same — Rights of Parties.</p> <p>The creditor, however, cannot be made to suffer for am error for which he is in no wise responsible; hence the person who committed the error must make good all the losses resulting therefrom.</p> <p>(Syllabus by the Court.) .</p>

<p>1.Admiralty — Sale op Ship — Liability por Liens.</p> <p>A state court can only sell the right of the shipowner subject to maritime liens, and where the purchaser at a receivership sale paid, over and above his bid, a certain sum of money to lien claimants, who had filed a libel against the vessel in a court of admiralty, held, that the insolvent estate had no ownership or equity in the money so paid and received, and that the lien claimants, who were also creditors of the insolvent, could not be compelled to account for the same in the receivership proceeding's.</p> <p>2. Same — Vendor’s Lien — Prescription.</p> <p>A vendor’s lien or privilege on a steamboat must be enforced, under the Civil Code of Louisiana, within six months from the date of the sale, although a note payable at a distant day has been given for the credit portion of the purchase price. The privilege perempts or dies at the end of six months, and in such a case no plea of prescription is necessary. Where such note was received as cash, the debt was novated and ■ the vendor’s lien waived.</p> <p>3. Corporations — Mortgages.</p> <p>Mortgage claims against an insolvent corporation should be evidenced, not only by acts of mortgage signed by the president, but by proof that such officer was duly authorized by the board of directors to execute the instruments.</p> <p>4. Receivers- — Accounting.</p> <p>Where a receiver filed a provisional account, and the court decreed a distribution of the assets on hand among the privileged creditors, reserving the right of all creditors not paid to demand of the receiver a full and complete account of his administration, held, that all questions of accounting should be postponed until the filing of the final account.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Charles W. Henry, deceased. From the appointment of the widow as executor, Harley A. W. Howcott, petitioner for letters, appealed.

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

<p>Appeal from Civil" District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Application by the state, on the relation of Erank J. Noullet, for writ of mandamus to the Acme Lumber Company (B. S. Coleman, proprietor) and others. Erom an order denying the writ, relator appeals.</p>

<p>1. Criminal Law — Arguments ox Counsel — Review ox Evikence.</p> <p>The testimony of witnesses had been admitted in evidence without objection. It went to the jury. In argument the prosecuting officer referred to this testimony. Counsel for the defense objected, and asked the court to stop, the officer’s argument in the line suggested.</p> <p>2. Same.</p> <p>The rule is that the argument must be based solely upon facts proven on the trial, or of facts of which no evidence need ever be introduced, being of judicially noticed facts.</p> <p>3. Same.</p> <p>It does not appear that that rule has been disregarded. The trial judge stated, as part of the bill of exception, that the facts referred to by the district attorney had been proven; that the officer did not comment on facts not in evidence.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Black-man, Judge.</p> <p>Action by Willie Wilson and others against Ben Hoffman and others. From a judgment for defendants, plaintiffs appeal.</p>

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

<p>Corporations — Foreign Corporations — Service of Process.</p> <p>When a foreign corporation conducts a regular business in this state at a permanent place of business, a service of process made at such place-of business upon its agent in connection with- a matter growing out of said business is good, if the same service would be good as against a domestic corporation. Act No. 41, of 1894, requiring surety companies of other states and of foreign countries to appoint an agent upon whom service of process may be made, and Act No. 105, p. 132, of 1898, authorizing service to be made upon the Secretary of State, did not provide an exclusive, but an additional, mode of service.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Thomas Rutland Smith, Judge ad hoc.</p> <p>Action by Winston Jones and others against Louisa Goss and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by the Louisiana & Arkansas Railroad Company against B. W. Bailey, tax collector, and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Municipal Corporations — Charter-Amendment.</p> <p>Under Act No. 136, p. 224, of 1898, relative to the creation and government of municipal corporations, the city of Lake Charles, having then a population exceeding 2,500 inhabitants, was authorized to amend its charter in the mode prescribed by section 43 (page 243) of said act.</p> <p>2. Statutes — Constitutional Law — City Charters — Special Acts.</p> <p>Article 48 of the Constitution of 1898, in prohibiting the amendment by local or special laws of the charters of municipal corporations, with the exception of those having a population of not less than 2,500 inhabitants, did not abridge the power of the General Assembly to enact general laws affecting the charters of the class of municipal corporations excepted.</p> <p>3. Municipal Corporations — Ordinances— Gambling.</p> <p>It was competent for the General Assembly to confer upon municipal corporations the power to pass ordinances for the suppression of gambling games of all kinds, including those like “poker,” not specially penalized by the statutes of the state. Ruston v. Perkins, 114 La. 851, 38 South. 583, reaffirmed.</p> <p>(Syllabus by the Court.)</p>

<p>1. Jury — General Venire — Selection.</p> <p>Where there is substantial compliance with the statute, unless there is fraud practiced'or wrong inflicted, irregularities are not fatal to. the legality of the general venire or the indictment. State v. Batson, 32 South. -478, 'T08. La. 479; State v. Thompson, 28 South. 882, 104 La. 167.</p> <p>2. Same.</p> <p>There was irregularity, but it does not appear that fraud or wrong was committed. State v. Hart, 14 South. 430, 46 La. Ann. 60.</p> <p>3. Same.</p> <p>The irregularities were not committed for the purpose of. injuring defendant, nor do they appear to have been committed for the purpose of injuring any one else. State v. Rector, 35 La. Ann. 1098; State v. Sandoz, 37 La. Ann. 377; . State v. Gonsoulin, 38 La. Ann. 459 ; State v. Green, 9 South. 42, 43 La. Ann. 402; State v. Simmons, 10 South. 3S2, 43 La. Ann. 991; State v. Saintes, 15 South. 160, 46 La. ■Ann. 547; State v. McCarthy, 10 South. 673, 44 La. Ann. 324; State v. Taylor, 11 South. 132, 44 La.' Ann. 783.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.</p> <p>Emile Denoist was indicted for holding a collation in violation of an ordinance. From a judgment quashing the indictment, the state appeals.</p>

<p>Appeal from First City Criminal Court, Parish of Orleans; Edward King Skinner, Judge.</p> <p>John T. Kumpfert was indicted for violating the pharmacy law, and on dismissal of the prosecution the State appeals.</p>

<p>1.Weapons — Accidental Discharge op Gun — Evidence.</p> <p>Damages for personal injury was the alleged cause of action.</p> <p>The discharge of the gun was sudden and unexpected. In handling a gun, usual caution • was observed. The gun was in good condition, and whatever defect there may have been in the cartridge was not, in so far as the evidence discloses, apparent.</p> <p>There was a turn made by defendant in order to close the stock and barrel of the gun in an opposite direction from the boys standing near. One and possibly two of the boys, the evidence shows, moved from where they were standing, and at the same moment the gun went off.</p> <p>The testimony and the circumstances point to an accident.</p> <p>2. Same — Gross Negligence.</p> <p>Where persons are gunning together, and an accident occurs, the negligence, to render one liable, must be in its nature gross. Fault must be shown.</p> <p>3. Same — Evidence.</p> <p>The judge a quo, who saw and heard the witnesses as they testified, to whom they explained the occurrence with gun in hand, decided that defendant was not liable in damages.</p> <p>On appeal a close examination of the evidence has not resulted in convincing the court that the judgment appealed from should be reversed.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus bj the Court;)</p>

<p>1. Appeal —When Lies — Order Recusing</p> <p>Judge.</p> <p>Suit was for mandamus to compel a judge ad hoc to grant an appeal.</p> <p>The judge ad hoc entered an order recusing the first judge.</p> <p>There is no appeal possible from an order of a judge ad hoc recusing the first judge.</p> <p>2. Same. 5</p> <p>It would be different if the judge ad hoc had refused to recuse the first judge.</p> <p>3. Same — Irreparable Injury.</p> <p>In repeated decisions this court has decided, that the order recusing the first judge is not appealable from, as it does not work irreparable injury; on the other hand, that the judgment refusing to recuse the first judge works irreparable injury, and is appealable.</p> <p>It is now stare decisis.</p> <p>(Syllabus by the Court.)</p>

Application by Matheo Songy and Leopold Songy for writ of mandamus to Judge J. L. Gaudet to compel him to take an affidavit of relators charging Maurice Elfer and others with murder.

<p>1.Negligence — Burden of Proóf.</p> <p>In all suits for damages for personal injuries, the burden of proof is on plaintiff to prove by a preponderance of the evidence the facts necessary to show the alleged negligence of the defendant.</p> <p>2. Appeal — Injury to Servant — Defective Appliance — Evidence.</p> <p>Where it is alleged that the negligence consisted in furnishing an insufficient “dolly' run” for the transport of heavy pieces of timber, and that the accident was occasioned by the breaking of one of the planks in the run, and the evidence shows that the “dolly” was successfully operated before and after the accident, and is conflicting as to the breaking of any plank, and does not show that the plank alleged to have been broken was comparatively of inferior size, or was defective or unsound, a judgment in favor of the defendant will not be disturbed on appeal.</p> <p>3. Master and Servant — Assumption of</p> <p>Rises.</p> <p>Where the plaintiff was a carpenter of six years’ experience, and hired himself for constructive mill work, and was injured while operating a “dolly” on a narrow runway, held, that he assumed all the obvious risks, of his employment, and cannot recover without showing affirmatively that the planks used in the runway were either defective or insufficient in dimensions for the uses intended.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by E. D. Martin against the Picayune. Judgment for defendant, and plaintiff appeals.</p>

<p>Homestead — Abandonment—Mortgage.</p> <p>A homestead is intended to be occupied as a home, and is not intended to be rented out or used as a trap wherewith to ensnare the guileless lender of money.</p> <p>(Syllabus by the Court.)</p>

<p>1. Ferries — Leases—Powers oe Police Juey.</p> <p>The police juries of the several parishes are vested by statute with the exclusive right to establish, lease, and regulate ferries and bridges within their respective limits.</p> <p>2. Same — Unlicensed Ferries. ’</p> <p>The lessee of a public ferry has a license which is in its nature exclusive, and the police jury of the parish has the power to prohibit by ordinance the operation of unlicensed free ferries and bridges within competitive distance.</p> <p>3. Same — Infringement of Franchise.</p> <p>A combination of a large majority of the patrons of a licensed ferry, each one subscribing a certain sum, for the construction and operation of a pontoon ferry bridge across a navigable stream, is an unlawful infringement of the franchise of the lessee, and cannot be considered in the light of individuals operating a private ferry for the benefit of themselves and families.</p> <p>4. Navigable Waters — Obstruction.</p> <p>No person has the legal right to construct a pontoon bridge across a navigable stream without special legislative authority.</p> <p>5.Statutes — Local Laws.</p> <p>Act No. 202, p. 391; of 1902, relative to the powers of police juries throughout the state (the parish of Orleans excepted) is not a local or special law in the sense of article 48 of the state Constitution.</p> <p>(Syllabus by the Court.)</p>

Action by the Victoria Lumber Company, • Limited, against O. 6. Rives, comptroller and tax collector. From the judgment, both parties have appealed.

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermilion; William Pierrepont Edwards, Judge.</p> <p>Hubert Rodriguez was convicted of murder, and appeals.</p>

<p>1. Elections — Notice.</p> <p>Where the official journal of the parish is published only every Saturday, a statute requiring that a notice of election “shall be published for 30 days in the official journal of the parish” is complied with if the notice is published in the official journal five consecutive Saturdays, and the-election is held 32 days after the first publication.</p> <p>2. Same — Vote—Validity.</p> <p>A vote cast before the time for the opening of the poll has arrived, and before any of the commissioners of election have arrived, is no vote; and the courts are powerless to infuse any legal life into it, however disposed they may be, in the absence of fraud, to give effect to elections where possible.</p> <p>3. Same — Opening Polls by Bystandees.</p> <p>Bystanders who take it upon themselves to open the poll before the hour fixed by law for opening the poll has arrived cannot be said to be de facto commissioners. This is on the principle that there cannot be an officer de facto until there is a corresponding office in existence. Until the hour comes for the election to be held, there cannot be said to be an election.</p> <p>4. Same — De Facto Oommissionees.</p> <p>But, even if bystanders so acting before the hour for the opening of the poll could be held to be de facto commissioners in a case where the voter had been induced by appearances to believe that they had authority to receive his vote, they cannot be so held in the case of a voter who himself had appointed the commissioners, and, moreover, had actual knowledge of who the regular commissioners were.</p> <p>(Syllabus by the Court.)</p>

<p>1. Wills — Universal Legatee — Title to Residuum — Exemption erom Taxation.</p> <p>Under the maxim, “Le mort saisit le vif,” embodied in articles 940, 941, and '942 of the Civil Code, the universal legatee is, in the absence of forced heirs, invested with the ownership and seisin of the universal legacy from the moment of the death of the testator; and as a consequence, if the property of such legatee enjoys immunity from taxation, the property composing such universal legacy becomes exempt from taxation, and cannot be assessed to the succession while the succession is in course of administration.</p> <p>2. Same — Exemption ob Particular Legacies.</p> <p>Inasmuch as the universal legacy is composed of what is left after all particular legacies, debts, and charges are paid, any taxes assessed against the succession are in effect, or as a matter of dollars and cents, assessed against the universal legatee. It does not follow from this, however, that, in a case where the universal legacy is exempt from taxation, the part of the succession property required for satisfying the particular legacies is in like manner exempt.. Such particular legacies are in the hands of che succession representative to be turned over to the legatees’ and, not being themselves exempt from taxation, are properly assessed to the succession. The universal legatee does not pay the tax, but receives that much less under the terms of the will.</p> <p>8. Taxation — Statutes—Construction.</p> <p>The revenue law, levying' a tax upon all property held by executors, has reference to property so held that is subject to taxation.</p> <p>4.Executors and Administrators — Title to Property.</p> <p>The decisions of this court, holding that the property of a succession pending administration is owned by the abstract being called “succession,” mean nothing more than that the property is so held for thé purposes of administration. They do not mean that the property is so held in hostility to or exclusion of the ownership and legal seisin of the legal heir or of the universal legatee.</p> <p>5. Taxation — Exemption —’ Tulane University-Property Included.</p> <p>The provision of the Constitution exempting from taxation “all the property of Tulane University of Louisiana of whatsoever character” does not limit the exemption to property whereof the university has the actual- corporeal possession, v</p> <p>6. Descent and Distribution — What Law Governs.</p> <p>Questions of the transmission and tenure of property in this state are governed exclusively by the Civil Code. The common law has no application.</p> <p>7. Taxation — Improper Injunction — Penalty and Costs.</p> <p>Where a tax has been improperly enjoined, 10 per cent, on the amount of the tax, penalties, and costs must be allowed as statutory damages.</p> <p>(Syllabus by the Court.!</p>

Case Certified from Court of Appeal, Parish of Vermillion. In the matter of the succession of Lewis Campbell. There was a judgment homologating the tableau as filed, and the opponent appealed to the Court of Appeal, which certifies the questions to the Supreme Court, applying for instructions. Instructions given.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.</p> <p>Sonny Green was convicted of manslaughter, and appeals.</p>

<p>1. Evidence — Parol Evidence — Enforcement of Judicial Mortgage — Consideration.</p> <p>In a hypothecary action to enforce a judicial mortgage, parol evidence is not admissible to prove that the purchase price of the property was not paid in cash, as recited in the deed to defendants’ author, but that the true consideration was partly cash, a special mortgage held by the purchaser, and his assumpsit of a- vendor’s lien and mortgage held by a third person.</p> <p>2. Subrogation — When Allowed.</p> <p>Where the purchase price has been used in the payment of pre-existing mortgages, which were extinguished and canceled on the record, such payment gives no right of subrogation to the purchaser or his assigns, since the price thus used was the money of the vendor.</p> <p>3. Homestead — Sale—Judicial Mortgages.</p> <p>Where the owner sells his homestead, it passes to the purchaser and his assigns burdened with judicial mortgages inscribed against it. Denis v. Gayle, 4 South. 3, 40 La. Ann. 286; Herbert v. Mayer, 8 South. 590, 42 La. Ann. 839.</p> <p>(Syllabus.by the Court.)</p>

<p>1. Appeal and Error —■ Amendments Regarded as Made. '</p> <p>Where suit is brought to recover a balance alleged co be due on two notes, A and B, and the evidence, introduced without objection, shows that note A has been paid, but that a certain amount is due the plaintiff, partly as a balance upon note B and partly as a balance upon a note not in suit, the plaintiff may recover such proportion of the amount as is due upon note B; the allegations as to note A being considered as amended by the evidence.</p> <p>2. Payment — Imputation.</p> <p>Where, in a contract between a planter and his factor, the latter is authorized to impute payments as and when he pleases, but it appears that he has imputed certain payments to the total debt represented by two notes, and has predicated his subsequent statements of account on the total balance due, his right of imputation is exhausted, and he cannot thereafter impute the payments already made, so as to extinguish one note and leave the entire debt as a balance due upon the other. The imputation as made, and its ratification, are equivalent to an agreement which satisfies and takes the place of the original agreement.</p> <p>3. Usury — Discount of Note.</p> <p>The discount of a note, the proceeds of which are placed at the disposal of the maker from its date, is not added to, but is in lieu of, interest, when the interest runs only from the maturity of the note; and where the rates charged, whether for discount or interest, do not exceed 8 per cent, per annum, the contract is not usurious.</p> <p>4. Same — Advances by Factor — Charges for</p> <p>Selling Crop.</p> <p>The agreement of a factor to advance money to a planter at the highest rate, of convencional interest carries with it no obligation to sell the crop of the planter, nor does a charge for the latter service make the contract, considered with reference to the charge for the use of the money advanced, usurious; and the same may be said of a stipulated penalty, imposed upon the planter for failure to ship his crop according to his agreement, which is not a nudum pactum, but a contract of agency, involving reciprocal obligations, the penalty for the nondischarge of which may be enforced.</p> <p>o. Bills and Notes — Action — Pleading</p> <p>—Judgment.</p> <p>Where, in a suit upon a note purporting to be secured by mortgage, the plaintiff alleges that he reserved his mortgage rights, but does not pray that such reservation be accorded or that the mortgage be recognized or enforced, a decree reserving his mortgage rights is not authorized by a prayer for general and equitable relief, but is ultra petitionem.</p> <p>(Syllabus by the Court.)</p>

Action by Arthur Y. Houeye against James P. Henkel and others. Judgment for defendants was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

Action by Mrs. George Copley Terry against Charles C. Heisen and others. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>In the matter of the liquidation of M. F. Dunn & Bro. From a judgment sustaining several oppositions to the account filed, the liquidators appeal.</p>

<p>1. Gifts — Donation of Land — Pbivate Signatube — Validity.</p> <p>A donation of land under private signature is a nullity.</p> <p>2. Same — Ratification.</p> <p>The donation has not been ratified and confirmed by the donee.</p> <p>3. Same — Acceptance.</p> <p>The donee did not go into actual possession. There never was an express acceptance of the donation.</p> <p>4. Estoppel — Acquiescence—Sale by Shebiff.</p> <p>The property was sold at sheriff’s sale (about nine years before the trial.) The heirs of the donee (plaintiffs) knew of the sale and raised no objection.</p> <p>5. Same.</p> <p>The title of the property passed to third persons, who have the right to set up title in opposition to plaintiffs’ title, which was null and void, and which was never ratified in manner required.</p> <p>■* (Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Dominick C. O’Malley and another were convicted of criminal libel, and O’Malley appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Mallory Sonier was convicted of shooting with intent to kill, and appeals.</p>