Volume 116 — Louisiana Reports

<p>1. Public Lands—Homestead — Community Property.</p> <p>The acquisition of the land by the homesteader under the federal homestead law dates from the entry. The occupying and cultivating of the land for five years, and the making of the final proofs, are merely conditions imposed upon the title; and the accomplishment of these conditions has a retroactive effect to the date of the entry. Consequently the homestead becomes the joint property of the husband and the wife, if the community of acquets and gains existed between them at the time of the entry, even though the proofs were made, and the certificate and the patent issued, only after the dissolution of the community by the death of the wife.</p> <p>On Rehearing.</p> <p>2. Stipulations.</p> <p>Estoppel was pleaded, and evidence admitted in its support. An agreement of counsel gave rise to issues on appeal.</p> <p>3. Same.</p> <p>Through error originally, greater scope was given by junior counsel to the agreement than there was any necessity, in order npt to appear to have taken advantage.</p> <p>4. Same.</p> <p>On the application for rehearing one of the counsel admitted that he had stated to plaintiff’s and appellee’s counsel, when applying to them for a waiver pro forma, in so far as they, as attorneys of one of a number of defendants and appellees were concerned, of the petition and citation of appeal, “that the demand of plaintiffs had been dismissed against their client, and that he would make no further claim in his brief against them.”</p> <p>5. Dismissal and Nonsuit.</p> <p>There had been motion made by plaintiffs for a discontinuance in the district court as relates to one of the defendants. Greater scope was given to this discontinuance in the Supreme Court than required by it (the discontinuance of itself), which scope binds parties.</p> <p>6. Appeal — Hearing and Rehearing — Rights Acquired Since Judgment.</p> <p>Issues not heretofore touched upon, and not included within the prior action of the court, considered, and after considering as relates to the extent of warrantee’s claim the cause is remanded to admit evidence of asserted rights acquired since judgment was rendered, and to consider and pass upon issues involved between warrantor and warrantee. ,</p> <p>(Syllabus by the Court.)</p>

<p>Brokers—Dealings in Stock—Instructions.</p> <p>Where a cotton broker was instructed to “hedge when margin about exhausted,” the instructions covered, not only the particular margin at the time, but any margin in the hands of the brokers at any time before the close of the trades.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Rosemond Theriot. From a judgment granting a demand for an administrator, S. A. Dubus and others appeal.

<p>1. Indictment—Amendment.</p> <p>Just before beginning with the trial, the court may authorize the district attorney to substitute the proper name of the person who was wounded, for the infliction of which the defendant is prosecuted.</p> <p>[Ed. Note.—Eor cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 514.]</p> <p>2. Criminal Law—Appeal—Continuance.</p> <p>The court’s refusal to continue a case will not be overruled, unless it operate injustice.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3045.]</p> <p>3. Witnesses—Recalling.</p> <p>After examination and re-examination, a witness may be recalled in a criminal case. State v. Scott, 24 La. Ann. 161; State v. Baker, 30 La. Ann. 1134; State v. Coleman, 27 La. Ann. 691; State v. Rose, 33 La. Ann. 932.</p> <p>[Ed. Note.—F-or cases in point, see vol. 50, Cent. Dig. Witnesses, § 899.]</p> <p>4. Criminal Law—Instructions.</p> <p>The .trial judge properly declined to instruct the jury that they could find the defendant guilty of a less offense than that which he was charged to have committed. There was no evidence to justify the finding.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1985.]</p> <p>Prorosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Jury — Criminal Cases — Challenges — Disqualification—Effect.</p> <p>In a criminal prosecution, the state has a right to demand jurors who are willing to convict the accused of the crime with which he is charged, upon legal evidence, whether direct 1 or circumstantial, and its challenge, for cause, •of jurors who are unwilling to convict on cir-cumstantial evidence alone should be sustained, and does not authorize the assumption that such evidence alone will be offered on the trial, nor •does it bind the state to offer only evidence of that character.</p> <p>[Ed. Note.—Eor cases in point, see vol. 31, Cent. Dig. Jury, § 487.]</p> <p>2. Witnesses—Criminal Prosecution—Witness eor State—Suspense—Impeachment.</p> <p>Where the state voluntarily calls a witness in support of a criminal prosecution, and is surprised by his testimony, her prosecuting ■officer may interrogate such witness as to previous declarations, inconsistent with the testimony given, with a view of testing his recollection and leading him, if mistaken, to reconsider what he has said; and such officer may call other witnesses to prove that the facts are •otherwise than as testified to, but, if the sole purpose and effect of the interrogation, of the witness, or of the testimony offered in contradiction of his statements, is to discredit him, then such interrogation and such testimony are inadmissible, unless the officer has been entrapped into calling a hostile witness, and even then it is not sufficient to justify the impeachment of the witness that he should have failed to give the testimony that was expected, but it is necessary that he should have testified against the state and in favor of the defendant in some material matter.</p> <p>[Ed. Note.—Eor cases in point, see vol. 50, •Cent. Dig. Witnesses, §§ 1268-1270.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Francois Hymel against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Licenses—Back Taxes—Collection.</p> <p>The general license law of this state (Act No. 171, p. 387, of 1898) does not authorize the collection of additional license taxes for back years.</p> <p>2. Same—Traversing Statement op Applicant.</p> <p>Under section 19, p. 417, of Act No. 171 of 1898, the tax collector, if dissatisfied with the sworn statement of the applicant for a license, is directed to traverse the same by summary rule; but he must do so without delay, and before the license taxes become delinquent.</p> <p>3. Same.</p> <p>Where a social club has for five successive years paid license taxes based on sworn returns which were accepted as correct by the taxing officers, no action will lie in behalf of the state to recover additional license taxes for the same years. „</p> <p>4. Same—Liability oe Social Club.</p> <p>A social club is not subject to license taxation except in so far as it engages in the sale of intoxicating liquors to its members. State v. Boston Club. 12 South. 895, 45 La. Ann.</p> <p>586, 20 L. R. A. 185.</p> <p>5. Intoxicating Liquors — License Tax — Amount.</p> <p>In ascertaining the amount of license taxes due by a social club engaged in the sale of intoxicating liquors to its members, the sales of other articles, at or from the bar, should not be added to gross sales of liquors.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by the Jackson Brewing Company against Charles A. Wagner. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; PauL Léche, Judge.</p> <p>Action by the Iberia Cypress Company, Limited, against John Christen, third opponent.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>George Williams was convicted of murder, and appeals.</p>

<p>1. Insurance—Payment oe Premium.</p> <p>Where, by its terms, a policy of life insurance is not to take effect unless the first premium is paid, such premium cannot be said to be past due because not paid upon the day upon which the policy bears date.</p> <p>2. Same—Overdue Payment.</p> <p>When the agent of a life insurance company is authorized, in his discretion, to receive payment of premiums within 30 days after they fall due, provided the insured is alive and in sound health when such payments are tendered, the fact that (those conditions existing) he receives payment of a single past-due premium, for which he gives the usual receipt of the company, containing the stipulation, “The acceptance by the company, at any time, of a premium past due, is to be taken as an act of grace by the company, and not as a precedent, nor as a waiver of any of the policy conditions,” cannot be considered as constituting a course of conduct whereby the insured was induced to believe that he might delay the payment of subsequent premiums. The company’s acceptance of a past-due premium, upon such conditions, and when the insured was alive and in good health, does not authorize the assumption that it will accept a future premium when overdue, and when the insured is in. bad health or dead.</p> <p>(Syllabus by the Court.)</p>

<p>Municipal Corporations — Contracts — Validity—Interest op Member oe Council.</p> <p>There were two contracts entered into: The first between the contractor and the city of New Orleans. The second between the contractor and others formed into a partnership to-execute the first contract. The last contract was tainted with nullity, in consequence both fell within the grasp of the prohibitory law, and the certificates based thereon, in hands of' plaintiff, are null and void, and cannot form the basis of a judgment.</p> <p>[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 657-664, 1065.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Ananias High was convicted of shooting while lying in wait and appeals.</p>

<p>Contract—Action for Breach.</p> <p>The parties having agreed to join their efforts for controlling a company and for having plaintiff chosen as secretary and local manager, and defendants having thereafter entered into a contract with another party, by which the same positions were to be secured for such other party, held, plaintiff has a cause of action for breach of contract.</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 A. Currie against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.</p> <p>In the matter of the succession of J. J. Gragard. Action by Paul Rosenthal against Ed. Pierson, administrator, to call the balance due. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Weapons—Shooting into Dwelling.</p> <p>Motive in another person to commit the crime may be shown; but, where this is sought to be done by proof of a disconnected fact from which to infer such motive, the fact must have a close bearing. Where, on a charge of shooting into a dwelling house, the prosecution has •established facts tending to show that the motive of the accused in doing the shooting was to get rid of a negro camp near the house, "the defendant may show that a notice had been served upon the occupant of the house by the white people of the neighborhood that the negro camp must go.</p> <p>•2. Witnesses—Cross-Examination.</p> <p>Where one side has gone partially into :a matter on examination in chief, the other ■side may go fully into it on cross-examination.</p> <p>[Ed. Note.—For cases in point, see vol. 50, •Cent. Dig. Witnesses, §§ 931-948.]</p> <p>:3. Witnesses — Examination — Control by Coubt—Number of Counsel.</p> <p>Where there are several counsel, the court may limit to one counsel the examination of each witness. It is a matter pertaining to the police of the court.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 789-793.]</p> <p>¡(Syllabus by the Court.)</p>

<p>1. Estoppel—Scope and Effect.</p> <p>Estoppel, as predicated upon the maxim that no one can be heard alleging his own turpitude, is a doctrine which forms part of the policy of the law by reason of its recognition by the courts, but, as the law itself is paramount as to its policy, it follows that, in matters concerning which it speaks definitely, it cannot be controlled by an estoppel which is but the creature of its creature, and that such an estoppel cannot be given the effect of subordinating the law, and the policy of the law as declared by the law itself, to the will or infirmity of the citizen.</p> <p>[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Estoppel, § 146.]</p> <p>2. Same—Estoppel by Judicial Confession —When Prohibited.</p> <p>Article 2291 of the Civil Code, establishing estoppel by judicial confession, must be construed in its relation to other provisions of law which determine the capacity of the individual and the validity of his acts. One cannot confess away that which, in the interest of public order and good morals, he is prohibited by law from alienating.</p> <p>.'3. Same—Mutual Estoppel.</p> <p>It may happen that, a plaintiff being es-topped to allege a state of facts which the defendant is estopped to deny, the interest of justice will require that both should be liberated.</p> <p>4.Gifts—Onerous Donation.</p> <p>A manual gift may be free, onerous, or remunerative, and when the donor makes such a gift, omnium bonorum, on condition that the donee shall maintain him for the rest of his life, it will be dealt with as an onerous donation, and not as a commutative contract.</p> <p>5. Contracts — Gifts Omnium Bonorum — Power to Make—Prescription.</p> <p>A contract whereby one gives away his property, without reserving enough for his own subsistence, subject to the condition or charge that the donee shall thereafter maintain him, is void ab initio, as contravening a prohibitory law, enacted in the interest of public order and good morals; it can acquire no validity, either by lapse of time or by ratification, and the action of the donor to annul it and to recover his property is not barred by the prescription either of 5 or 10 years.</p> <p>6. Husband and Wife—Contracts of Married Woman—Effect.</p> <p>A married woman, living in community with her husband, may be held liable on contracts made by her, which inure to her separate benefit, when to hold otherwise would be to enable her to perpetrate a fraud.</p> <p>7. Gifts — Invalidity — Right to Recover from Third Person.</p> <p>Where property is given away in violation of a statute enacted in the interest of public order, to the knowledge of a third person, who receives it from the donee, such third person may be held liable therefor, at the suit of the donor, at least to the extent of the value of such property still in his possession.</p> <p>[Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Gifts, §§ 20, 72-74.]</p> <p>8. Same — Annulment — Tendering Back Benefits.</p> <p>In an action to annul a donation omnium bonorum, made in violation of Civ. Code, art. 1497, a tender of an amount representing the value of the benefits received under the contract is not required as a condition precedent.</p> <p>9. Same—Lien on Property.</p> <p>The claim of the donor who has given away his money in violation of Civ. Code, art. 1497, does not so follow the money into the hands of a third person as to operate as ’ a lien upon property in which the same has been invested. Liens exist in this state only when created by law, and there is no law creating a lien in such a case.</p> <p>10. Witnesses—Estoppel to Testify.</p> <p>Pleadings and testimony in other litigation may affect the credibility of a litigant as to testimony given in a particular case, but should not, ordinarily, estop him from testifying.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1265, 1266.]</p> <p>On Rehearing;</p> <p>11. Limitation of Actions—Gifts—Invalidity—Action to Annul.</p> <p>A donation omnium bonorum is prohibited by law, and, as a consequence, null and void. Where such a donation is made on the condition that the donee shall board the donor and furnish him with pocket money, every payment made in fulfillment of the condition of the donation, as also the very presence of the donor in the house of the donee as a hoarder, operates as an interruption of the prescription of the action of the donor for the return of the money.</p> <p>[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Husband and Wife, §§ 637, 640.]</p> <p>(Syllabus by the Court.)</p>

Application by C. C. Barton for a writ of mandatory injunction against the Cumberland Telephone & Telegraph Company. Prom an order dismissing the suit, plaintiff appealed to the Court of Appeal, where the decision was reversed, and defendant appealed for certiorari or writ of review-

<p>1. Divorce—Evidence.</p> <p>Where, in a suit for a divorce on the ground of adultery, the defendant wife reconvened for a divorce on the same ground, and' also alleged public defamation, abandonment, and nonsupport, and the evidence clearly showed' that defendant was guilty as charged, but also showed that plaintiff had deserted defendant and her children and failed or refused to support, them; held, that the trial judge erred in dismissing plaintiff’s demand; the faults of the parties n'ot being of a similar nature or gravity. Trowbridge v. Carlin, 12 La. Ann. 882; Thomas v. Tailleu, 13 La. Ann. 127; Castañedo v. Fortier, 34 La. Ann. 135.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 195, 197.]</p> <p>2. Same—Abandonment.</p> <p>Abandonment or desertion is no ground for a divorce or separation from bed and board, unless made to appear in the manner prescribed by article 145 of the Civil Code.</p> <p>[Ed. Note.—Eor cases in point, see vol. 17, Cent. Dig'. Divorce, §§ 113-116.]</p> <p>3. Husband and Wife—Refusal to Suppobt.</p> <p>The refusal of the husband to support his wife is not per se ground for a divorce or separation from bed and board. In such case the wife cannot sue for alimony, but she may procure necessaries at the expense of the husband, or may have him prosecuted under Act No. 34, p. 42, of 1902.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, § 116; vol. 26, Cent. Dig. Husband and Wife, §§ 1074^1077.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>Action by Westley Barfield against D. W. Saunders. Judgment for plaintiff, and defendant appeals.</p>

Paul, Judge. Rule by the tax collector against the New Drleans Railway & Light Company to show cause why it should not pay a license. Rule made absolute, and from judgment in favor of the state, defendant appeals.

<p>1. Mandamus — When Lies — Remedy by Appeal—Refusal to Grant.</p> <p>Where the affairs of a business corporation are placed in the hands of a receiver, to be administered and returned to the stockholders, •or liquidated, as circumstances may warrant, a judgment ordering the sale, in bulk, at public auction, of all the assets of the corporation, including the lease of its place of business, though interlocutory, in the sense that it is ancillary to the final judgment of distribution and discharge to be thereafter, rendered, is definitive, in the sense that, quoad the particular issues involved and the prospective results of its execution, it cannot be, effectively, reviewed upon an appeal from such final judgment; and hence, considering the character of those issues and results, it may, if erroneous, work irreparable injury to a creditor or stockholder by whom its rendition is opposed, and who has, therefore, the right to an appeal, which right, if denied, will be enforced by mandamus.</p> <p>[Ed. Note.—Eor cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 399, 401, 686; vol. 33, Cent. Dig. Mandamus, § 115.]</p> <p>2. Appeal — When Lies — Irreparable Injury.</p> <p>Where the application of the receiver of a business corporation, to be authorized to sell, in bulk, all the assets, including a large stock of goods, and the unexpired term of a lease having several years to run, is opposed by a creditor and stockholder, on the ground that the property should be sold, in lots, a judgment ordering the sale to be made, in bulk, may work irreparable injury and is appealable.</p> <p>3. Same—Objections Below—Waiver.</p> <p>The facts, that the counsel for one opponent co-operates with the counsel for other opponents in the trial of their respective oppositions to the application, by the receiver, to sell the property of the corporation ; that such counsel offers neither evidence nor argument in support of one of the grounds of opposition; that he remains silent when the judgment ordering the sale is rendered, and when the counsel with whom he has co-operated states, in open court, that he submits to the judgment; and that these circumstances create the impression upon the mind of the court that he, too, submits to the judgment; do not establish such acquiesence in the judgment, or estoppel against his client, as to deprive the latter of his right to appeal from such judgment.</p> <p>4. Same—Review—Affidavits.</p> <p>Affidavits, in the nature of original evidence, .attached to the return of litiguent to an application for a writ of mandamus to compel the granting of an appeal cannot be considered in this court.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Suit by the Louisiana Railway & Navigation Company against Eveleen Kohn, widow of Victor Meyer. Judgment for defendant, and plaintiff appeals.</p>

<p>Officers — Members of Board — Acts of Board—Liability of Individual Members.</p> <p>A public officer, who is a member of a corporate body upon which a duty rests, cannot be held liable for the neglect of duty of that body. If there be refusal to exercise the power of such "body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the offi•cial action of the board itself as an entity.</p> <p>Monroe, J., dissenting.</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 Kansas City, Shreveport & Gulf Railway against the Louisiana Western Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of West Feliciana; Charles Kilbourne, Judge.</p> <p>Action by the state against the Yazoo & Mississippi Yalley Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Homicide—Character on? Deceased—Evidence.</p> <p>Where the accused in a murder case, pleading self-defense, adduced evidence tending to show that the deceased was a “shootist” and had been in several shootings, in one of which he had got shot, the trial judge properly ruled that the accused had opened the door for evidence in rebuttal as to the general good character of the deceased for peace and quiet.</p> <p>[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 310-317.]</p> <p>2. Same—Instructions—Sele-Deeense.</p> <p>A special charge requested as to the law of self-defense was properly modified by the judge adding that the circumstances must afford reasonable ground for the belief that the deceased was then and there about to carry out his -felonious intention.</p> <p>[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 158-163.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Ralph Cato was convicted of murder, and appeals.</p>

<p>1. Divobce—Decree.</p> <p>Where a judgment of separation from bed and board has been obtained, and a judgment of final divorce is sought to be obtained on the strength of that judgment, two separate decrees of the court must have been rendered : (1) A decree of separation from bed and board. (2) A final decree of divorce after the lapse of a certain time from the decree of separation provided no reconciliation took place between the parties.</p> <p>2. Same—Trial.</p> <p>When the object of the suit is to obtain a final decree of divorce, either party has the right to require the case to be set down on the ordinary docket of suits and tried in the ordinary way, under averments such as would authorize a judgment.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Charles W. Henry. Mrs. Henry, the widow of the decedent, was appointed dative executrix, and from an order denying petition to place her in possession of the property, Mrs. Henry and the Hibernia Bank & Trust Company appeal.

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>In the matter of the succession of Ernest Marchand. Application by Mrs. John Gauche for certiorari or writ of review to the Court of Appeal, parish of Orleans.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by Donat Breaux, administrator, against Ovignae Broussard, and others. •Judgment for defendants, and plaintiff appeals.</p>

<p>1. Taxation — Tax Deeds — Evidence ox-Sale.</p> <p>A duly recorded tax deed to the state,, made pursuant to section 53 of Act No. 85, p.</p> <p>130, of 1888, and showing on its face the observance of all the formalities prescribed by the statute, must, under constitutional provisions, be received as evidence establishing-a prima facie valid sale.</p> <p>[Ed. Note.—For cases in point, see vol. 45,. Cent. Dig. Taxation, §§ 1555-1559.]</p> <p>•2. Same—Sale—1Title Acquired.</p> <p>A tax sale to the state, made pursuant to law for taxes due on an assessment against the owner of a tract of land, who does not redeem within the year, necessarily vests the legal title to the property in the state.</p> <p>[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Taxation, § 1463.]</p> <p>.3. Same — Validity of Sale — Burden of Proof.</p> <p>Where, in such a case, plaintiff in an ac.tion of trespass derives his title from the state, and the defendant asserts title from the alleged widow and heirs of the tax debtor, and assails the tax sale on the ground that the assessment was null because made in the name ■ of a dead man, held, that the burden of proof was on the defendant to show the death of the tax debtor prior to the time of the assessment.</p> <p>[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1565, 1606.]</p> <p>■4. Death—Evidence—Hearsay.</p> <p>The testimony of a single witness to the ■effect that the tax debtor left the state in 1883, .and that the witness heard that the absentee was drowned during the same year by the sinking of a “swamp boat,” is purely hearsay, and therefore insufficient to establish the fact of death prior to the assessment in the year 1890.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig'. Death, §§ 5, 6.]</p> <p>.5. Evidence — Presumptions — Failure to Call Witnesses.</p> <p>Where the wife and the sons of the tax debt- or were living in the parish where the trial was had, and were not called as witnesses by the defendant to testify as to the alleged death ■of the husband and father prior to 1890, the presumption is that their testimony would not have aided defendant in establishing such contention.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 97.]</p> <p>■6. Injunction—Costs—Attorney’s Fees.</p> <p>Plaintiff in injunction is not entitled to attorney fees as damages in case of a trespass on wild land.</p> <p>[Ed. Note.—For cases in point, see vol. 27, ■Cent. Dig. Injunction, § 420.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Luther Egbert Hall, Judge.</p> <p>Action by Thomas E. Flournoy against D. A. Breard, Sr. The city of Monroe intervened. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Jack Perry was found guilty of burglary and larceny, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by George Muntz against the Algiers & Gretna Street Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Sixteenth Judicial District Oourt, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Zenon Rideau was convicted of murder, and appeals.</p>

In the matter of the insolvency of S. J. Zeigler. From a judgment rendered on oppositions filed by M. L. Scovell and Vinnie Gaines to the final account of the syndics of the insolvent, S. J. Zeigler and others appeal.

<p>Appeal — Bond eob Costs — Suspensive Appeal.</p> <p>A bond for costs is sufficient to sustain •a suspensive appeal from a judgment ordering the distribution of a fund resulting from a ■sale made to effect a partition; such fund 'being in the hands of the notary appointed by «the court to complete the partition.</p> <p>[Ed. Note.—Por cases in point, see vol. 2, vOent. Dig’. Appeal and Error, § 2236.)</p> <p>»(Syllabns ,by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by John F. Lindner against the Yazoo & Mississippi Valley Railroad Company and the Illinois Central Railroad Company. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Witnesses — Criminal Law — Cross-Examination ob Accused.</p> <p>The state has the right to cross-examine a witness for the accused on matters pertinent to and growing out of or clearly connected with the matters elicited on the examination in chief.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 931-948.]</p> <p>2. Homicide—Appeal—Review—Rulings on Evidence.</p> <p>The ruling of the trial judge that no-overt act or hostile demonstration had been proved, _ and therefore that no foundation had been laid for the admission of proof of a previous difficulty between the accused and the deceased, is reviewable on appeal, when all the evidence on which the trial judge acted is brought up by bill of exception; but such ruling will not be disturbed unless it be made to appear that the trial judge has abused the sound legal discretion vested in him.</p> <p>3.Same—Remarks ob Counsel.</p> <p>An improper remark of counsel, made in the heat of argument, reflecting on the temper of the accused and suggesting that she may have used intoxicants, cannot be considered as working prejudicial error when counsel subsequently asked the jury to disregard anything he may have said that was not based on the evidence, and the court charged the jury to disregard all such statements of counsel on either side.</p> <p>[Ed. Note.—For cases in point, see vol. 14, •Cent. Dig. Criminal Law, §§ 1692, 1699.]</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Trade Unions—Obligation of Members.</p> <p>The obligation or pledge which an initiate in a labor union is required to take is to be construed with reference to the declared purposes of the organization, and is binding only in so far as those purposes are lawful and are to be attained by lawful means, and when such union attempts the accomplishment of an object which is foreign to the purposes for which it is organized, or attempts the accomplishment of those purposes by unlawful means, the initiate or member may properly say: “I entered into no such contract.”</p> <p>2. Contracts—Public Policy—Influencing ■ Appointment to Office.</p> <p>Agreements which tend to injure the public service are opposed to the policy of the law and will not be enforced by the courts. Of this character are agreements to use one’s influence to secure the election or appointment of a person to a public office, and those which restrict the free exercise of the discretion vested in a public officer for the public good.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, § 577.]</p> <p>3. Same.</p> <p>It is the duty of an officer having a power of appointment to make the best appointment in his power at the time the appointment is made, and it is against public policy that he should be deprived of the exercise of his best judgment by a contract previously made or an obligation previously assumed. Whatever may he the practice, appointments are, in theory, made for the public good.</p> <p>4. Trade Unions—Recommendation to Oenice—-Duties oe Members — Suspension — Reinstatement.</p> <p>The fact that the labor union of which the plaintiffs are members recommended another member for an office, the appointment to which rests with a board of public officers, the members of which, in turn, are appointed by the mayor and council of New Orleans, imposed no obligation upon the plaintiffs, upon their subsequently becoming members of said board, to vote for the candidate recommended by their union; their obligations to the union and to the public being distinct from each other, and the latter being paramount. Hence their failure to vote for such candidate afforded no sufficient reason why their union should fine and suspend or boycott them, and they are entitled to relief, by injunction and by judgment remitting the fine imposed, reinstating them in the union, and condemning the union, and its officers and members who participated in its actions, in damages, actual and exemplary.</p> <p>5. Same—Question eor Court.</p> <p>The general rule is that a complaining member of an organization should exhaust the remedies provided by the laws of the organization before applying to the courts; but where those laws provide no remedy, and the organization provides none, but meets the demands therefor with futile correspondence and vexatious and unnecessary delays, it becomes a question for the courts to determine whether or not the member has done all within his organization that could reasonably be expected of him.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; Louis P. Caillout, Judge.</p> <p>Action by the police jury of Lafourche against E. G-. Robiehaux and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Libel—Allegations in Civil Action.</p> <p>The rule in this state as to responsibility for injuries is statutory. “Every act whatever •of man that causes an injury to another obliges him by whose fault it happened to repair it.” In every ease the sole question must be as to whether there has been “fault” on the part of the person sought to be held responsible. A litigant who without probable cause makes defamatory allegations against his adversary knowing them to be false commits a fault within the meaning of the above statute, and cannot •escape liability on the score of the allegations having been material to the issue.</p> <p>[Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 117-123, 149.]</p> <p>2. Same—Privileged Statements.</p> <p>The common-law rule that in a suit for libel based on judicial allegations the verity of material allegations cannot be inquired into, but that such allegations are absolutely privileged can have no place under the above statute.</p> <p>LEd. Note.—For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 117-123.]</p> <p>3. Same—Premature Action.</p> <p>The rule is that a suit for malicious prosecution cannot be instituted before the malicious prosecution has terminated. Granting that this rule applies to a suit like the present one for a libel alleged to have been contained in judicial allegations, it can have no application in the present case, where the allegations complained of were made in a suit to which the plaintiff in the suit for libel was not a party.</p> <p>Breaux, C. J., dissenting.</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 Peter C. Schmidt against the New Orleans Railways Company. Judgment for plaintiff and defendant appeals.</p>

<p>1. Insurance—Action on Policy—Answer.</p> <p>Defendant, in an amended answer which it filed, “specially denied that plaintiff had suffered any loss or damage in the amount set forth, or in any amount for which it was responsible.”</p> <p>Its adjuster had previously written as follows in one of his letters: “So far as the buildings are concerned, we admit a total loss on them, but we will not be liable for any loss to the building now standing. We give you notice of cancellation which will take effect in five days. We do not think that the damage to the boiler and engine will in any event exceed $150.”</p> <p>Under existing conditions it would be a vain act to throw the litigants back to preliminary proceedings.</p> <p>2. Same—Evidence—Nonsuit.</p> <p>The inventory referred to in the policy was not intended by the parties to be received as “proof” of the facts therein recited on the trial of the merits of the case. It was simply one of the steps contemplated to be taken prior to the institution of a suit. It should not have been admitted as “proof” over defendant’s objection. When received, it retained its character of hearsay, and had no effect other than as hearsay and as rem ipsam.</p> <p>Plaintiff having advanced his claim as an entirety and manifesting no willingness to have it divided by accepting the admissions (pro tanto) of the defendant, the claim is presently nonsuited as a whole without prejudice.</p> <p>On Rehearing.</p> <p>3. Same—Valued Policies—Immovables.</p> <p>Section 2, Act No. 135, p. 209, of 1900, is merely complemental of section 1, and, the two sections considered together, the act must be held to relate exclusively to policies of fire insurance covering property which is immovable by nature.</p> <p>4. Same—Policies—Form.</p> <p>Section 22, Act No. 105, p. 151, of 1898, prescribing the use of fire policies conforming to the requirements of the New Vork standard form of fire insurance policy, is not in conflict with, and hence, is not repealed by, Act No. 135, p. 209, of 1900, in so far as the form of policy prescribed requires the insured to make preliminary proof of loss and to furnish the insurer with information concerning the character, situation, and actual value of the property destroyed or damaged.</p> <p>5. Same—Prooe ojt Loss—Waiver.</p> <p>Where, after the expiration of 60 days, within which, by the terms of the policy, the insured is to make his preliminary proofs, etc., the insurer, without qualification and without reservation of the right to replace the same, admits a total loss as to certain, property, immovable by nature, and agrees to pay, upon proof being made according to the contract, the loss resulting from the destruction, or partial destruction, of other property covered by the policy, it (the insurer) will be considered as having waived entirely the proof of loss as to such immovable property, and as having waived the time limit, with respect to such proof, as to the other property, and where the items are distinct there may be judgment for the amount •admitted, without prejudice to the right of the insured to sue for the balance of his claim on complying, save as to the limit of time, with the conditions of his contract as to proof of loss, etc.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1378, 1405-1409.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Contract—Bond for Title—'Validity — Mutuality.</p> <p>An agreement whereby one of the parties binds himself to make to the other a bond for title, but the language of which imposes no obligation upon the other party, is not bilateral.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 21, 24.]</p> <p>2.‘Vendor and Purchaser—Sale Distinguished from Agreement to Sell.</p> <p>An agreement whereby one of the parties obligates himself to make to the other a bond for title can be considered a promise to sell, within the meaning of Civ. Code, art. 2462, only by holding that an agreement to do that which amounts to a sale amounts to a promise to sell. The law in question is, however, exceptional, and its application must be confined to the cases provided for, and cannot properly be extended to what may be considered the equivalents of those cases.</p> <p>3. Same—Essentials of Contract.</p> <p>In the promise to sell, as in the contract of sale, the thing, the price, and the consent are essentials.</p> <p>4. Same—Action for Breach.</p> <p>Though an agreement, alleged to have been repudiated in bad faith, may not fall within the category of enforceable contracts, it does not follow that a petition alleging such repudiation and actual loss sustained thereby may not set forth a cause of action for the recovery of such loss.</p> <p>On Rehearing.</p> <p>5. Contracts—Rescission.</p> <p>It is well settled that, where the understanding of the parties is that their contract shall be reduced to writing, the reduction to writing stands as a condition precedent to the perfection of the contract, and either party is at liberty to retire from the contract so long as the reduction to writing has not taken place; but there is nothing in this which prevents a licit future contract, whereof all the terms are fixed, from being made the subject of a present contract.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 57, 107, 109.]</p> <p>6. Vendor and Purchaser — Validity of Contract.</p> <p>Where, however, the future contract is to be a sale, or promise of sale, and the deferred payments on the price are to bear interest, and the rate of the interest is not fixed, the contract is null for want of a fixed price. The interest is a component part of the price, and unless its rate is fixed the price is not fixed. The fixing of this interest must be a matter of convention; hence the provisions of the Code fixing the rate of legal interest can have no application to such a case.</p> <p>7. Same—Action for Breach.</p> <p>The contract being null, no action in damages can arise from its nonexecution.</p> <p>(Syllabus by the Court.)</p>

Action by the Houssiere-Latreille Oil Company against the Jennings-Heywood Oil Syndicate. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applied for writs of certiorari, prohibition, and mandamus.

<p>1. Municipal Corporations — Ordinance— Regulating Peddlers.</p> <p>The city, under the delegation of power vested in its council, has the authority to regulate peddling on the streets and to compel peddlers and hawkers while peddling and hawking their wares, to keep within due bounds and not to act in a manner that renders their occupation a public nuisance.</p> <p>[Bd. Note.—For cases in point, see vol. 25, Cent. Dig. Hawkers and Peddlers, § 1; vol. 36, Cent. Dig. Municipal Corporations, § 1345.]</p> <p>2. Same—Reasonableness oe Ordinance.</p> <p>The ordinance is reasonable and there is nothing about it in restraint of trade as charged. On the contrary, it is a protection to the occupation.</p> <p>3. Same.</p> <p>The ordinance is legal.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish-of Orleans; Fred Durieve King, Judge.</p> <p>Action by John F. Lindner against the city of New Orleans. Judgment for defendant and plaintiff appeals.</p>

Action by Lazare Levy & Co. against Thomas Madden. Judgment for plaintiffs was reduced on appeal to the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

<p>1. Taxation — Overpayment by Collector-Action to Recover.</p> <p>This cause was remanded to give the plaintiff an opportunity to prove that he had paid and delivered to the parish treasurer valid obligations of the parish of East Baton Rouge. See 36 South. 547, 112 La. 511. There was judgment on the second trial in favor of the defendant for $6,327.28, with 5 per cent, per month interest from July 30, 1902, and plaintiff has appealed.</p> <p>2. Same—Evidence.</p> <p>The issues were purely of fact, with the burden of proof on the plaintiff, and the.court finds that the judgment is sustained by the evidence.</p> <p>3. Same—Forfeiture of Commissions.</p> <p>A forfeiture of the commissions of a' tax collector under section 79, p. 380, of Act No. 170 of 1898 may be waired by the police jury, and will be considered as waived when belated monthly settlements have been accepted, without protest or objection, for a series of years. Such an acceptance is equivalent to a voluntary payment of commissions.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law—Trial—Entries of Facts —Verification.</p> <p>If the district judge, under Act No. 113, p. 162, of 1896, gave instructions to the clerk to take down the facts, counsel had the right and it was their duty to have supervised and verified at the time the entries made by the clerk. They had the right to have the entries made by the clerk read in open court as made, and to have the same enlarged and modified if deemed insufficient. It was no part of the judge’s duty to do this for counsel. It was the duty of counsel to know at the time what was done by the clerk and they could not postpone finding, as jate as they did, what the situation was. They had the power to have known, and should have done so.</p> <p>2. Same — Bill of Exceptions — Correction Below.</p> <p>It has been the constant practice of the district judges to mention in the per curiam ■statement made in bills of exception any fact which, occurring after the ruling complained of, would go to show that the ruling, if erroneous, was harmléss, or had been waived.' As the Supreme Court, in criminal cases, deals only with questions of law, there should be some method by which the appellate court could come to a knowledge of the harmless character of the error or its waiver’. Either the judge should mention such fact, or the district attorney be afforded an opportunity to do so; otherwise, the greatest criminals might be released on totally unfounded grounds. If the judge in the per curiam statement should state any fact injurious to the defense or unwarranted, defendant is afforded an opportunity for correction by a_ motion for a new trial, and he should avail himself of that remedy.</p> <p>3. Same—Appeal—Review.</p> <p>The mere fact that a judge has given no reasons for his rulings furnishes no ground for reversal of the judgment appealed from.</p> <p>.[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2991.]</p> <p>4. Same—Arraignment—Joint Indictment.</p> <p>Two out of three 'parties jointly indicted for murder were arraigned and tried together. The third party was not simultaneously ,arraigned. Complaint on that score did the appellants no injury.</p> <p>5. Homicide—Bill oe Particulars.</p> <p>Appellants were not entitled to a bill of particulars as claimed by them. They were charged with the commission of murder; a •specific crime of which time was not the essence. The indictment was sufficiently definite, and judgment thereon would support a plea of res judicata.</p> <p>•6. Witnesses—Rights oe Accused—Compulsory Process.</p> <p>Appellants did not have the constitutional right to have their counsel granted a private interview with the third party who was charged jointly with them, who was then confined in jail, and jwhom they had subpoenaed as a witness. Under the circumstances of this case, appellants had no legal ground for complaint.</p> <p>7. Criminal Law — Severance — Harmless Error.</p> <p>The court’s refusal to grant the two appellants a severance of trial under the circumstances shown was not ground for reversal. They were tried separately from the third party who was charged jointly with them. See State v. Gournet, 9 South. 436, 43 La. Ann. 197, and Act No. 41 of 1904.</p> <p>8. Same—Trial—Exclusion oe Witnesses.</p> <p>Complaint that a person was pennitted to testify as a witness who had remained in the courtroom while other parties were giving testimony in violation of the court’s orders, held harmless under the circumstances of the case.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1559.]</p> <p>9. Homicide—Evidence.</p> <p>The admission of a certain appearance bond executed by the two appellants to appear for trial on a charge of having some time before the homicide attempted to kill the party, whom they stood charged with murdering, in order to prove motive, was not error under the circumstances that this was done.</p> <p>10. Witnesses—Impeachment.</p> <p>A complaint that the court permitted two witnesses on behalf of the state to testify that to their knowledge a witness on behalf of the defendant could in point of fact speak English fluently and understand it, in contradiction of his declaration to the contrary, furnished no ground for reversal, under the circumstances that this was allowed.</p> <p>11. Criminal Law — Trial — Remarks to Jury.</p> <p>A remark made to one of the jurors by a bystander “that he looked warm” was properly deemed by the district judge as a matter of no moment. The jury had not been permitted to separate. They were being accompanied by two deputy sheriffs to the jury room as the necessity of the case required should be done.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1460, 2053.]</p> <p>12. Same—Verdict—Correction.</p> <p>The sending back by the judge of the jury to their rooms touching their verdict was perfectly harmless, under the circumstances this was done.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Ered Durieve King, Judge.</p> <p>Action by the Provident Bank & Trust Company against Walter L. Saxon and others. Judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the Louisiana National Bank against Thomas J. Henderson and others. Judgment for defendants, and plaintiff appeals.</p>

Action by the board of liquidation of the city debt against the city of New Orleans. Judgment for plaintiff; and defendant appeals.

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

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>Action by C. H. Flores and others against the police jury of De Soto parish and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by M. F. Dunn against the Southern Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Public Lands—Spanish Grant.</p> <p>The grant was intended to inure to the benefit of future generations as well as to the living grantees. The evidence and circumstances attending the issuance of the grant lead to that one inference.</p> <p>2. Same—Inhabitants oe Bellevue were Beneeiciabies.</p> <p>There are inhabitants of Bellevue at this date, as there were at the date of the grant. And to this date they availed themselves of the right granted.</p> <p>3. Same—Survey in 1806.</p> <p>The land subject to the right was surveyed and laid out. Swamp lands in 1797, the date of the grant, may not be swamp lands at this date. It is not possible at this date to determine the area there was in swamp at the date of the grant. It has features of swamp land. It contains swamps. It is subject to overflow in heavy rains, and it has been overflowed by the waters of the river.</p> <p>4. Same—Beneeiciaeies.</p> <p>Defendant is not one of the inhabitants of Bellevue, and is therefore without right under the concession.</p> <p>5. Same—What Constitutes.</p> <p>The soil forms part of the public domain of the United States government. The land was sold at tax sale in the name of the inhabitants of Bellevue. They were not its owners. It could not be thus taken from the public domain.</p> <p>6. Taxation—Tax Sale—Public Lands. The tax title is void.</p> <p>7. Same—Tax Deeds—Replication.</p> <p>The answer is open to attack without special plea. Replication is possible by proof.</p> <p>8. Same—Prescription—Curative Act.</p> <p>The title claimed was unaffected by the curative article 233 of'the Constitution of 1898.</p> <p>9. Same—Timber Right.</p> <p>The soil could not be thus sold. The sale could not have the effect of including, as property bought, the timber right on the land.</p> <p>10. Costs—Appeal—Good Faith of Defendant—Attorney’s Fees.</p> <p>The question of the good faith of defendant is made one of the issues on appeal, in the answer to the appeal in which amendment of the judgment is asked. The bad faith charged is not sustained. The judgment will therefore not be amended to allow attorney’s fee.</p> <p>(Syllabus by the Court.)</p>

<p>1. Indictment—Motion to Quash.</p> <p>A motion to quash an indictment is made too late if filed after verdict.</p> <p>[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 473.]</p> <p>2. Criminal Law—Motion in Arrest.</p> <p>A motion in arrest is one leveled at errors apparent on the face of the record, to sustain which no evidence can be received.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2423.]</p> <p>3. Same.</p> <p>The motion made by relators was properly overruled by the district court.</p> <p>4. Courts—Supreme Court—Jurisdiction— Criminal Cases—Certiorari.</p> <p>We have several times declared that the supervisory jurisdiction of this court, under article 101 of the Constitution of 1898, extended over criminal as well as civil courts, but in the case of State ex rel. Satcho v. Judge, 29 South. 690, 49 La. Ann. 231, we announced limitations upon the exercise of that power. The supervisory authority conferred upon it by the Constitution is very broad, and we would exercise it promptly in order to prevent a very evident and exceptional denial of justice; but we do not think that this case presents anything calling for unusual action.</p> <p>[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Criminal Law, § 2569.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Partnership—Receiver—Appointment.</p> <p>Whether a receiver should be appointed gave rise to the issues involved.</p> <p>2. Same—Application.</p> <p>Under the district court’s discretion, directing plaintiffs to elect as to which of two demands plaintiffs would proceed with, they elected to prosecute the suit for the appointment of a receiver.</p> <p>3. Same—Prosperous and Extensive Business.</p> <p>The business of the parties which plaintiffs ask to place in the hands of a receiver, and which the defendants oppose, is prosperous and large.</p> <p>4. Same—Grounds.</p> <p>The charges made by plaintiffs are not sufficiently borne out by the facts to justify a judgment authorizing the appointment of a receiver.</p> <p>5. Same—Necessity.</p> <p>The necessity for the appointment is not apparent. The rights of parties are not threatened with loss.</p> <p>6. Same—Accounting.</p> <p>The right is reserved to plaintiffs to sue for a settlement and accounting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Master and Servant—Injury to Servant—Action—Petition.</p> <p>A petition which merely alleges that one-servant was injured by the negligent act of another servant, while both were engaged in the-same work under a common employment, discloses no cause of action against the master.</p> <p>If, as a matter of fact, the servant who was guilty of negligence was a superior servant or vice principal, the petition -should have so alleged.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Gent. Dig. Master and Servant, § 838.]</p> <p>2. Same—Negligence oe Fellow Servant.</p> <p>The asserted civil-law doctrine that a master, without fault, is liable for the negligence of a fellow servant, Is recognized neither by the Civil Code nor jurisprudence of Louisiana.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 352.]</p> <p>3. Same—Fellow Servants—Corporations.</p> <p>The framers of the Civil Code of 1825 intentionally departed from the Code Napoleon in enacting that masters are only responsible when they “might have prevented the act and have not done it.” Article 2320 (2299), Rev. Oiv. Code. In departing from the letter of this restriction as not applicable to corporations, the Supreme Court of this state has adopted the common-law doctrine of fellow servants in a modified form.</p> <p>[Ed. Note.—Eor cases in point, see vol. 34, Cent. Dig. Master and Servant,' § 352.]</p> <p>(Syllabus by the Court.)</p>

<p>Master and Servant—Injury to Servant-Contributory Negligence.</p> <p>One who is injured through his own negligence must bear the loss.</p> <p>[Ed. Note.—For cases in point, see vol. 34, ■Cent. Dig. Master and Servant, § 668.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Malicious Prosecution—Limitations.</p> <p>To charge a person with a crime, without actual malice, but also without probable cause, is a quasi offense, the action to recover damages resulting from which is barred by the prescription of one year from the day upon which such damage is sustained; and where there is an interval of time between the date upon which the charge is preferred and that upon which it is made known to the person so charged and to the public by the arrest of such person, the damage is sustained upon, and the prescription begins to run from, the day of the arrest.</p> <p>LEd. Note..—For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, § 89.]</p> <p>2. Same—Damages—Advice oe Counsel.</p> <p>Defendants in an action for damages for malicious prosecution, though no actual malice is shown, are in no wise protected by the advice of counsel from liability for actual damages, such as expenses incurred, inconvenience suffered, and injury to feelings and character, unless it be clearly shown that all the facts were laid before the counsel and that he actually gave the advice relied on.</p> <p>[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Malicious Prosecution, § 41.1</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Onaehita; Luther Egbert Hall, Judge.</p> <p>Action by Arthur Haueh against the E. C. Drew Investment Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Application by the state, on the relation of Edwin S. Broussard, district attorney, against George W. Dallas and others, members of the board of water and light commissioners of the city of New Iberia. Judgment for defendants, and relator appeals.</p>

Action by L. &. E. Wertheimer and others against John Favalora. Judgment for plaintiffs was reversed by the Court of Appeal, and they bring certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Michael Martin against John Derenbeeker. Judgment for plaintiff, defendant appeals.</p>

<p>1. Partnership—Silent Partners — Estoppel.</p> <p>Defendant who in fact was not a partner in the firm of Talbot & Hilliard did not render himself responsible to the creditors of that firm as a silent partner by estoppel, under the following circumstances: Defendant was an undertaker and had a great many carriages, and at all times one or more of these were under repair in the shop of Talbot & Hilliard who were carriage repairers. To keep an eye on this work, defendant was in the shop every day. I-Ie would give instructions to the workmen in reference to the work. He lent money to Talbot & Hilliard, and to reimburse himself accepted for collection accounts of theirs against their customers, and kept the money he thus collected. Haying furnished the funds for obtaining the delivery of certain expensive rubber tires, he was consulted as to the advisability of letting certain customers of the firm have these tires on a credit. The shop of Talbot & Hilliard having been closed by seizure, he opened a shop a few doors away and removed thither from the shop of Talbot & Hilliard his own repair work then on hand, and shortly thereafter received there the repair work that Talbot & Hilliard had had on hand for others. Some of the goods of Talbot & Hilliard, without his knowledge, were surreptitiously removed from the shop of Talbot & Hilliard during the seizure and taken to this new shop. He employed in this new shop some of the workmen from the shop of Talbot & Hilliard.</p> <p>2. Libel—Pbobable Cause eor Statements.</p> <p>The former bookkeeper of Talbot & Hilliard, and also one of the workmen of that firm, having stated the above facts to plaintiff’s counsel, together with others tending to show that a considerable portion of the stock of goods of Talbot & Hilliard had been surreptitiously conveyed to the shop of defendant, held, that in setting out the facts relied upon for contending that defendant was responsible as a silent partner by estoppel in the firm of Talbot & Hilliard, plaintiff had probable cause for alleging that defendant had appropriated the assets of Talbot & Hilliard to the detriment of the creditors of that firm, and brought about the bankruptcy of that firm.</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 L. A. Hubert against the city of New Orleans. Judgment for plaintiff, and defendant appeals.</p>

Action by Cusachs & Co. and Gasper Cusachs and Max A. Orlopp against the sewerage and water board of New Orleans and others. Judgment for defendants, and plaintiffs appeal.

<p>1. Public Lands—Homestead—Entry—Sale —Evidence—Estoppel to Contradict.</p> <p>It is true that a person cannot sell the land which he holds from the government under the homestead law before he has obtained a final receiver’s receipt; but it is also true that his testimony cannot be heard as having preponderance against the testimony of witnesses, who testify that he sold the land after, and not before, the final receiver’s receipt had been issued to him by the government.</p> <p>2. Cancellation op Instruments —Debit— Fraud—Setting Aside.</p> <p>While conspiracy is charged, it is not proven. It is not shown that defendant and his author—the latter bought directly from plaintiff-—conspired together to defraud plaintiff from the title to his land.</p> <p>(Syllabus by the Court.)</p>

<p>A. C. Bowen was charged with being a vagrant. From an order dismissing the prosecution, the city of Shreveport excepted, and applies for certiorari and mandamus.</p>

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

Action by Alice Bouchereau against Theresa Guilne, wife of Leo P. Charlet. Judgment for plaintiff was affirmed by the Court of Appeal, and Theresa Charlet applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish •of Orleans; Walter Byers Sommerville, Judge.</p> <p>In the matter of the proceedings between Edward Conery, Jr., and his creditors. Appeal of creditors.</p>

<p>Action by John Wilson and others against Ivy Lodge, No. 93, Knights of Pythias. Prom an order dismissing the suit, plaintiff appealed to the Court of Appeal, where judgment was rendered for plaintiff, and defendant brings certiorari or writ of review.</p>

Mary. Action by W. R. Gates, tutor ad hoe, against the Bank of Patterson. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Henry Brenner and others against John McW. Ford. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Trespass — 'Cutting Timber — Claim oe Ownership—Slander oe Title.</p> <p>The exceptions filed hy the defendant were properly disposed of by the court. The exception of no cause nor right of action was properly overruled. The defendant was committed by the exception to the truthfulness of the allegations, and plaintiff was entitled under them to judgment of some kind against the defendant, if true. Plaintiff’s action was not a petitory action, nor one of jactitation. Defendant by his pleadings occupied throughout a purely defensive position, and did not convert the action into a petitory action. Plaintiff, alleging that he was the owner and had been for many years in the possession of certain property, and charging that defendant had wantonly and maliciously trespassed upon the same hy deadening and cutting down trees thereon, prayed for damages against him and for an injunction against further trespass. He incidentally alleged that defendant, by claiming a right to go upon the land, had wantonly and maliciously slandered his title.</p> <p>2. Same—Title oe Plaintixx—Evidence.</p> <p>Plaintiff on the trial failed to establish in itself either ownership or possession, and the decree rendered in the case in favor of the defendant was correct.</p> <p>8. Taxation—Tax Deed—Land Included.</p> <p>The tax title which plaintiff set np to this particular tract of land did not cover and extend to it. No part of it was included within the boundaries given either in the assessment, the advertisement, the adjudication, or the sheriff’s deed of sale. Subsequent purchasers were without power or authority, by giving (as between themselves) additional boundaries to the land adjudicated at tax sale, to give the tax sale a force and effect which the sale itself did not have and make it serve as the basis for prescription. The tax proceedings had to stand or fall as made. They could not be reformed after they had been closed by either the tax collector or subsequent purchasers, without the consent of the owner. The prescription of three years under the Constitution of 1898 (article 233) is held, for reasons assigned, to have no application.</p> <p>4. Adverse Possession.</p> <p>Questions of possession, its nature, its different kinds, hnd effect, were raised and decided in the case.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; Louis P. Caillouet, Judge.</p> <p>Action by John St. Paul and others against the Louisiana Cypress Lumber Company, Limited. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Oourt, Parish of Tangipahoa; Olay Elliott, Judge.</p> <p>Action by Preston Bennett and others-against Dallas L. Oalmes and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Action by Julien Cormier and wife against E. T. Hoyt and others. Judgment for defendants, plaintiffs appeal.</p>

<p>1. Criminal Law—Appeal—Defective Record-Remand.</p> <p>Where many steps necessary to the regularity of the proceedings were probably taken, but the minutes fail to show the fact, the court may, in furtherance of justice, remand the case, with leave to the trial court to correct the minutes so as to conform to the truth.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2903, 2904.]</p> <p>2. Same—Imperfect Record—Oeetioeari.</p> <p>The state, as appellee in a criminal prosecution, is not responsible for defects in the transcript of appeal, and, though this court may not be willing to affirm a conviction unless it appears to have been legally obtained, it is unwilling to set aside a valid conviction merely because, by the negligence of the clerk of the trial court, such transcript has been imperfectly prepared; hence, it is well settled that the writ of certiorari may be used as an auxiliary process in order to obtain a perfect transcript.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2911-2915.]</p> <p>3. Exceptions, Bills of—Signing—Rules of Court.</p> <p>Judges of the district courts are authorized to establish rules of practice in their courts, where the law is silent, and the establishment of a rule, requiring bills of exception, in criminal cases, to be presented for signature not later than the day following that upon which they are reserved, is a competent exercise of that authority ; the rule being neither in conflict with law, oppressive, nor unreasonable.</p> <p>4. Criminal Law—Trial.</p> <p>The prosecuting officer and the counsel for the defense, in a criminal trial, have equally the right to submit to the jury the conclusions suggested to their minds by the evidence adduced.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1663-1667.]</p> <p>5. Same —New Trial —Errors by Interpreter.</p> <p>Where an interpreter has been accepted by the defense, in a criminal trial, and, after having been sworn, has acted throughout the trial, without objection, the charge, based upon the ex parte affidavit, annexed to a motion for new trial, of á person who is not produced at the hearing of the motion, that the testimony was not correctly interpreted, is entitled to no consideration, as against evidence showing the interpreter to be a man of standing, known to the court, and as against the testimony of the interpreter to the effect that he interpreted correctly.</p> <p>6. Same—Appointment of Interpreter.</p> <p>The objections, that an interpreter, who has been accepted by both parties, and has acted throughout the trial, was not legally appointed, and that the court was not legally organized, because a deputy clerk acted as minute clerk, without having' been appointed to that position, come too late when urged for the first time in a motion for new trial.</p> <p>7. Same—Remarks of Prosecuting Attorney.</p> <p>Where, among the witnesses in a criminal case, there are Italian subjects, called on behalf of the state, and American citizens, both white and negroes, called on behalf of the defendant, the remark, by the district attorney, in his argument before the jury, “You must believe the testimony of these two white boys—two American citizens” (referring to two witnesses called on behalf of the defendant), may be regarded as merely a means of distinguishing the witnesses and is not, necessarily, to be taken as an appeal to prejudice, based on either race or nationality, injuriously affecting the rights of the defendant.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1670, 1675.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Mortgages — Ownership of Property — Consent of Owner to Mortgage by Others.</p> <p>Plaintiff enjoined the enforcement by ex-ecutory process of a note which she had executed jointly with two others, which was secured as to payment by special mortgage on certain property in its entirety and of which the makers in the mortgage act declared themselves to be the owners. The grounds of injunction were that the property belonged in its entirety to herself as sole heir of her father and mother; that the co-makers had no right in the succession of her father or mother, and were without right to mortgage the property; that she herself was not bound upon the note as the consideration had not inured to her benefit. That the note and mortgage had been extinguished by payment made by the plaintiff in the ex-ecutory proceeding, and if any claim he had, it was an unsecured claim for reimbursement for the money expended by him in making the payment; that payment had been illegally demanded of her of payment of the whole note under the executory proceedings whereas she was only bound for one-third if at all.</p> <p>Held, if the plaintiff was the owner in entirety of the property she was at liberty to dispose of it in any form she thought proper, provided third parties were not injured. If the co-makers of the note were not owners of the property, her own property was authorized by her to be mortgaged by them to the extent they did so by permitting them to unite with her in the execution of the mortgage.</p> <p>2. Descent and Distribution—Debts—Liability or Heirs.</p> <p>The note declared on was given for money borrowed of a bank to pay a prior note which had been executed by herself and the same parties, jointly with plaintiff’s father to enable him to pay a debt of his own, and which note was outstanding at her father’s death. Plaintiff accepted his succession unconditionally. If she was his sole heir she acquired all his property but became bound for the whole debt. Under plaintiff’s claim as to the legal situation, demand of payment of the whole note wa» authorized, but even if she had not owed personally the whole debt it would have been authorized for the purpose of a foreclosure of the mortgage.</p> <p>3. Subrogation—Payment 03? Note Secured by Mortgage.</p> <p>Under the circumstances of this case, though the debt due to the bank was satisfied by the plaintiff in the executory proceeding, the note and its accessory mortgage were not extinguished.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Israel West was convicted of murder, and appeals.</p>

Action by William Mott against Sam and John Hopper. Judgment for plaintiff was affirmed by the Court of Appeal, and defendants applied for certiorari or writ of review.

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by P. A. Johnson against Mrs. M. D. Agurs and others. From a judgment dismissing the petition, plaintiff appeals.</p>

<p>1. Bridges — Defects — Liability of Parishes.</p> <p>' No remedy is given by the statutes of the state of Louisiana against a parish for a private injury caused by the neglect of the police jury or highway officers to keep a public bridge in proper repair.</p> <p>2. Same—Liability of Highway Offices.</p> <p>If a highway officer be responsible for a private injury caused by his failure to repair a defective bridge, it is only in cases where he had requisite funds in hand or under control to make the repairs.</p> <p>[Ed. Note.—For cases in point, see vol. 8, Cent. Dig. Bridges, §§ 98-100.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Luther Egbert Hall, Judge.</p> <p>Action by M. D. Swayze against the city of Monroe and others. Judgment for plaintiff, and defendants appeal.</p>

Action by A. H. Geisenberger against E. B. Cotton. Hyman, Lichtenstein & Co., in liquidation, intervened. Judgment for defendant was affirmed on rehearing in Court of Appeal, and Hyman, Lichtenstein & Co. apply for certiorari or writ of review.

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; George Wear, Judge.</p> <p>Butler Murray was indicted for violating a labor contract. Motion to quash was sustained, and the state appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.</p> <p>Action by Preslar & Tier against Alice Walker and others. Judgment for plaintiffs, and defendant Walker appeals.</p>

Paul, Judge. Action by the Planters’ Fertilizer & Chemical Company against the board of assessors for the parish of Orleans and others. Judgment for plaintiff, and defendants appeal.

Action by Charles F. Borah and John A. Landen against Charles O’Niell. An exception of no cause of action was overruled by the district court, and judgment was sustained by the Court of Appeal, and the suit dismissed, and plaintiff brings certiorari.

Application by John B. Lewis for a writ of mandamus and certiorari to compel the granting of an injunction restraining the prosecution of a suit by G. D’Albor against the applicant.

<p>1. Intoxicating Liquors—Barroom Permits —Validity of Ordinance.</p> <p>Ordinance No. 12,636, relative to saloon and barroom permits, adopted by council of the city of New Orleans pursuant to section 21 of the city charter of 1896 (Act No. 45, p. 55 of 1896), is not unconstitutional as conferring arbitrary powers on the property holders and council or as discriminating in favor of saloons and barrooms already opened and established at the date of the ordinance. City of New Orleans v. Macheca, 36 South. 590, 112 La. 559, reaffirmed.</p> <p>2. Same—Prohibition.</p> <p>There is no inherent right in a citizen to sell intoxicating liquors by retail, and the business may be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. Crowley v. Christensen, 11 Sup. Ct. 13, 34 L. Ed. 620, 127 U. S. 86.</p> <p>[Ed. Note.'—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 1.]</p> <p>3. Same — Arbitrary Refusal — Remedy of Apflicant.</p> <p>Section 21 of the city charter of 1896 (Act No. 45, p. 55; of 1896) does not vest in the city council absolute control over barrooms, and saloon permits, and, where the refusal to grant such a permit is arbitrary, discriminatory, and unjust, the applicant has his remedy by mandamus. To that extent State ex reí. Galle v. City of New Orleans, 36 South. 999, 113 La. 371, 67 L. R. A. 70 is reaffirmed.</p> <p>[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 75.]</p> <p>Monroe, J., dissenting.</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 B. L. Whann against M. R. Whann. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Louisa Jackson against Henry J. Burns. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Libel-Publication as to Candidate fob Office.</p> <p>Defendants published that for reasons too numerous to mention plaintiff was unfit to be district attorney, or even to practice law. Challenged to name these reasons, defendants gave them in the form of self-answering questions, putting at the head of the list the question whether plaintiff’s brother had not done thus and so, referring to reprehensible conduct on the part of the, brother. Held, that the brother’s misconduct could render plaintiff unfit to be district attorney or to practice law only if he had participated therein, and that therefore the imputation contained in the question was that plaintiff had participated in some way in this misconduct of the brother. Held, secondly, that the facts from which it must be supposed the authors of the publication intended that the reader should draw his conclusions are those stated in the publication, and not others not stated or alluded to therein.</p> <p>2. Same—Justification—Sufficiency.</p> <p>Justification of a different charge from that complained of as libelous is no justification at all. Where the charge is that plaintiff participated in the act of his brother in approaching for a large fee certain defendants whom plaintiff was prosecuting as district attorney, the proof that plaintiff did not impart to the proper authorities the intelligence of his brother’s misconduct as soon as it reached his ears, so that the brother continued to remain in an employment of trust for which he had shown himself to be unfit, is the justification of a different charge from that made, and is no justification at all. .</p> <p>[Ed. Note.—For cases in point, see vol. 32, Gent. Dig. Libel and Slander, § 333.]</p> <p>3. Same—License to Publish.</p> <p>The demand of plaintiff that defendants should name the “reasons too numerous to mention” why he was unfit to be district attorney, or even to practice law, was not a license to defendants to publish defamatory falsehoods about him.</p> <p>4. Same—Privilege of Newspaper.</p> <p>A newspaper has no greater privilege than an ordinary person to publish false and defamatory statements.</p> <p>(Syllabus by the Court.)</p>

<p>Courts — Supreme Court — Jurisdiction — Boundary Suit—Amount in Controversy.</p> <p>This is a boundary suit over which the Supreme Court has no appellate jurisdiction ratione materite. It is therefore ordered transferred to the Court of Appeal, parish of Or- ■ leans, under the provisions of Act No. 56, p. 135, of 1904.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by the Dallas Brewery against Henry Holzner and A. Thoman. Judgment for plaintiff, and defendants appeal.</p>

<p>Action by Anna Fellman against the-Mercantile Fire & Marine Insurance Company. Application of William A. Cooke ruled into court for contempt for writ of prohibition.</p>

Action between Anna Fellman and the Mercantile Fire & Marine Insurance Company. From an order sentencing William A. Cooke for contempt, he applies for writs of prohibition and certiorari.

Paul, Judge. In the matter of the succession of Louis August Schirm. Prom an order placing the heir in possession, the state appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Marshal Hunley against A. L„ Patterson & Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by M. S. Buckingham and wife against D. Negrotto, Jr. Judgment for plaintiffs, and defendant appeals.</p>

<p>Application by Peter Kiernan and others for writs of certiorari and prohibition.</p>

<p>1. Habeas Corpus—When Issues.</p> <p>The writ of habeas corpus issues in any case where the court may have appellate jurisdiction. Article 93 of the Constitution.</p> <p>[Ed. Note.—Eor cases in point, see vol. 25, Cent. Dig. Habeas Corpus, § 35.]</p> <p>2. Same—Jurisdiction.</p> <p>The court is without appellate jurisdiction. The application for habeas corpus is dismissed.</p> <p>[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, § 35.]</p> <p>Z. Criminal Law—Review.</p> <p>After sentence and final judgment, only issues of a grave character are subject to review, such as want of jurisdiction or similar allegations.</p> <p>4. Same — Certiorari — Prima Facie Showing.</p> <p>A prima facie showing should be made by annexing required papers showing by allegations and copies, or documents annexed, that the party applying is entitled to a hearing.</p> <p>(Syllabus by the Court.)</p>

Action by J. H. Marshall and others, against the town of Mansura and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by J. H. Marshall and others against the town of Marksville and others. Judgment for plaintiffs. Defendants appeal.</p>

<p>1. Burglary—Entry of House in Daytime —Repeal oe Statute.</p> <p>Whoever enters a dwelling house in the daytime with intent to steal is guilty of the crime denounced in the section 854 of the Revised Statutes.</p> <p>The offense is distinct and substantive, and the section 854 is not repealed by section 6 of the statute, Act No. 107, p. 162, of 1902.</p> <p>2. Same—Indictment.</p> <p>The indictment properly charged that the defendant entered the house with the “intent” to steal.</p> <p>3. Same—'Verdict.</p> <p>From the verdict it must be implied that the facts proven showed the “intent” alleged.</p> <p>(Syllabus by the Court.)</p>

Action by Ferdinand Zeigler and others ■against the Interior Decorating Company, Limited. From an order dismissing the account of the Germania National Bank as in case of nonsuit, it appeals.

<p>1. Insane Persons—Property oe Interdict-Private Sale.</p> <p>It is only in case where the purpose is to effect a partition by the sale of the whole property that the interest of. an interdict can be alienated at private sale, otherwise such interest must be sold at public auction.</p> <p>[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Insane Persons, §§ 111, 118.]</p> <p>2. Same—Validity.</p> <p>A proceeding which has for its purpose only the private sale, to one of the plaintiffs, of the interest of an interdict in the property held in common is unauthorized and illegal, and is ineffectual to devest the title of the interdict, though there be included in such proceeding a family meeting recommending such sale and a judgment homologating the same; and. a party agreeing to purchase the property from such plaintiff (subject to examination of title)' is not bound to comply with his agreement.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District ■Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Action by William S. E. Sevey against the Chappuis Company, Limited. The Dodge Manufacturing Company filed intervention. Prom a judgment sustaining the intervention, plaintiff appeals.</p>

<p>1. Intoxicating Liquobs—Sale Without License-Evidence.</p> <p>A prosecution under section 910 of the Revised Statutes of 1870, for retailing intoxicating liquors without previously obtaining- a license from the police jury, town, or city authorities, fails, where the accused produces a license in due form either from the parish or municipality.</p> <p>2. Same—Impeachment oe License.</p> <p>A license in proper form to sell intoxicating liquors issued by a municipality, with general powers to regulate and license such business, cannot be collaterally impeached in a criminal prosecution by evidence tending to show that the powers of the corporation had been^ divested by a parochial election in favor of prohibition.</p> <p>[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 84.]</p> <p>(Syllabus by the Court.)</p>

<p>Intoxicating Liquors—Prohibiting Sale-Powers of Police Jury—Mandamus.</p> <p>Under no law of this state is the power conferred on police juries to prohibit the sale of intoxicating liquors, and whilst it is true that the taxing power is essentially legislative, and that the unlimited power to tax may include the power to prohibit, it is also true that, where the state grants to one of its agencies the power to license and regulate, whilst, not only withholding, but lodging elsewhere, the power to prohibit, the power so granted is exceeded when used to prohibit and destroy, and a case is thereby presented’ in which the authority of the judiciary may be invoked.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish óf Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by S. H. Keoughan & Company against the Equitable Oil Company, Limited, and others. Judgment for plaintiff, and defendants appeal.</p>

In the matter of the interdiction of R. H. Jones. Application of James R. Mitchell for writs of certiorari and mandamus to the-judge of division B of the district court.

<p>1. Criminal Law—Opinion Evidence.</p> <p>An old man, familiar with firearms from his boyhood, is a competent witness to express the opinion or conclusion that, judging from the report heard by him, the weapon used was a pistol.</p> <p>2. Same—Weight oe Evidence.</p> <p>The statement of Wills on Circumstantial Evidence, p. 126, that “it must be shown that the shoes were compared with the footmarks before they were put on them,” is a rule of sufficiency, rather than of admissibility, of evidence, and cannot be followed in this state, where the jury is made by law the sole judge of the weight and sufficiency of the testimony.</p> <p>3. Same—Poot Prints—Evidence oe Experiments.</p> <p>Testimony is admissible to show that the sheriff carried the prisoner to the place of the shooting and placed his. feet in certain footprints there found, and that the fit was perfect; it being shown that the prisoner made no objections to the experiment and that no force was used by the officer.</p> <p>[Ed. Note.—Por cases in point, see vol. 14 Cent. Dig. Criminal Law, § 874.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Eirst Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.</p> <p>Action by Dan T. Dupuy and others against the police jury of Iberville. Judgment for defendant, and plaintiffs appeal.</p>

<p>Railroads — Accident at Crossing — Last Clear Chance.</p> <p>While plaintiff was negligent in attempting to cross the defendant’s track at a sharp curve without stopping to look and listen at the proper time and place, the company will be held liable when the evidence shows that the engineer saw the danger in time to avoid the ac-dent by sounding the whistle or applying the brakes.</p> <p>Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1096-1099.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; James Edward Moore, Judge.</p> <p>Action by William P. Theus against W. W. Armistead and others. Judgment for plaintiff, and defendants appeal.</p>

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

<p>1. Marshaling Assets—Scope of Remedy-Mortgage Covering Separate Tracts.</p> <p>Where a single first mortgage rests upon two plantations, owned by A. and B., respectively, though, as between such owners, the entire debt so secured is due by A., the plantation of B. cannot be1 made to contribute to the payment thereof, unless the proceeds of the sale of A.’s plantation prove insufficient to satisfy the mortgage in full, and, whilst the mortgagee may seize both plantations, the mortgagor, on the other hand, may demand that the plantation of A., alone, be sold, if, by such sale, sufficient may be realized to satisfy the mortgage, and if A., the mortgagor, neglect or refuse to make such demand, B., as his creditor, having an interest, may exercise A.’s right.</p> <p>2. Same—Application of Fund.</p> <p>Where two plantations held by A. and B., respectively, are affected by a single first mortgage, and the titles show that, as between the owners, A. has assumed .the debt, and has agreed that in the event of B.’s paying any part of it, he shall be subrogated to the rights of the creditor and mortgagee, neither A., nor any creditor of his who was party to the contracts by which the titles were acquired or who claims under a mortgage inscribed against his plantation after the registry of those titles can take anything from the fund realized by the sale, under the first mortgage, of the two plantations, until B. is reimbursed the amount contributed by his plantation to the satisfaction of said first mortgage, to which to the extent and by virtue of such contribution and quoad the parties mentioned, he becomes subrogated.</p> <p>3. Mobtgages — Extension — Release of Lien.</p> <p>The holder of notes secured by a mortgage containing the pact de non alienando does not lose his mortgage by consenting with the maker of the notes and mortgagor, without consulting a third person to whom the mortgagors property may have been sold, to an extension of the time for the payment of the notes.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Elius Le Blanc was convicted of murder, and appeals.</p>

<p>1. Jury—Rejection oe Juror by Judge-Objection of Accused.</p> <p>The law gives to the accused the right to object to an obnoxious juror, but does nut give him the right of selection, hence, the rejection of a juror by the judge, even if erroneous, affords no legal ground of complaint, and' this rule is equally applicable where the judge has. refused to allow the juror whom he has excluded to be cross-examined on his voir dire. Act No. 135, p. 216, of 1898, § 1.</p> <p>[Ed. Note.—Eor cases in point, see vol. 31, Dent. Dig. Jury, § 598.]</p> <p>2. Same—Talesmen—Order to Stand Aside.</p> <p>It is within the discretion of the trial judge to order talesmen to be summoned “from any portion of the parish, remcCe from the scene of the crime, that he may designate”; and if the sheriff, in disregard of his instructions, returns talesmen from the neighborhood in which the crime was committed, the judge may order them to stand aside. Act No. 135, p. 222, of 1898, § 11.</p> <p>3. Criminal Law—Triaju-Service of List of Jurors on Accused.</p> <p>The accused on trial is not entitled to service of the list of talesmen summoned to complete the panel after the regular venire has been exhausted.</p> <p>[Ed. Note.—For cases in point, see vol. 14, ■Cent. Dig. Criminal Law, § 1443.]</p> <p>4. Witnesses—Cross-Examination.</p> <p>Where a state witness testifies that just before a homicide the person who was subsequently slain said to the accused, “You have several times tried to kill me, why don’t you do it now”? or words to that effect, such question does not open the door to the question on cross-examination, “Have you ever heard of a previous attempt by the accused on the life of the deceased?”</p> <p>5. Criminal Law—Appeal—Review—Harmless Error—Refreshing Memory.</p> <p>Where a witness for the state is allowed, for the purpose of refreshing his memory, over the objection of the defense, to read the transcribed testimony given by him on the preliminary examination, but it appears that his memory is not thereby refreshed, and he testifies that he has no recollection of any fact about which he was then being interrogated, the defendant has no injury to complain of.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 3136.]</p> <p>6. Same—Evidence—Statements of Accused.</p> <p>Rev. St. 1870, § 1010, provides the manner in which the statements and answers of a person accused of crime may be reduced to writing and verified, so as to constitute evidence before the grand and petit juries, and the transcribed notes of a stenographer, unsigned by the accused, and unverified by the signature of either magistrate or witness, do not meet the requirements of the statute, and do not constitute evidence of such statements and answers, which, in the absence of such evidence, may be proved by the testimony of any competent witnesses who were present and heard them.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1238-1246.]</p> <p>7. Same—Admissions—Explanation by Accused.</p> <p>Where the state proves an admission made by the defendant in a criminal prosecution, the defendant has the right to prove all that was said at the same time and in the same connection relating to the subject-matter of, or explaining or modifying the admission, but he has no right to introduce his own self-serving statements made on another and separate occasion.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 862.]</p> <p>8. Same—Failure of Accused to Testify.</p> <p>The reading and explaining to the jury by the judge of Act No. 41, p. 77, of 1904 sufficiently meets the requirements of the situation, where it appears that in answer to a question by the judge in effect, as to why the trial does not go on, counsel assisting the district attorney informs the court that that officer has gone out, temporarily, under the impression that one of the defendants would take the stand as a witness, the answer being made without intention of commenting on the fact that the case for the defense had been closed without the defendant referred to having taken the stand as a witness.</p> <p>[Ed. Note.—Por cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1693.]</p> <p>(Syllabus by the Court.)</p>

<p>Husband and Wife—Donations Between— Second Makria&e.</p> <p>Donations made by one of the spouses to the other before marriage fall within article 1753, Civ. Code, according to which the spouse who marries a second time forfeits to the children of the first marriage all property acquired by donation from the deceased spouse.</p> <p>(Syllabus by the Court.)</p>

<p>1.Public Lands—State Patent to Swamp Lands—Effect as Evidence.</p> <p>A state patent to a tract of land as “swamp” does not -per se prove that title passed to the state under the acts of Congress of 1849 and 1850, commonly called the “swamp land grants.” Wright v. Roseberry, 7 Sup. Ct. 985, 121 U. S. 488, 30 L. Ed. 1039; Chandler v. Calumet & Hecla Mining Co., 13 Sup. Ct. 798, 149 U. S. 79, 37 L. Ed. 657.</p> <p>2. Adverse Possession—Adding Possession of Author of Title.</p> <p>Defendant’s title cannot be affected by the nonregistry of an' anterior deed forming a link in the chain, and they have the right to add the sum of their author’s possession to their own for the purpose of prescription.</p> <p>[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 218.]</p> <p>3. Evidence—Best and Secondary.</p> <p>The existence and loss of a process verbal of a probate sale of land having been proven, parol evidence is admissible to prove that the lost instrument evidenced an adjudication to a particular person, and also to prove the facts of adjudication, payment and transfer of possession.</p> <p>[Ed. Note.—Eor cases in point, see vol. 20, Cent. Dig. Evidence, §§ 582, 583.]</p> <p>4. Landlord and Tenant — Defeating Landlord’s Title.</p> <p>A tenant during the continuance of his lease cannot change the character of his possession and oust his lessor by purchasing or leasing from a third person. Town of Morgan City v. Dalton, 36 South. 208, 112 La. 9, Harvin v. Blackman, 36 South. 213, 112 La. 24.</p> <p>[Ed. Note.—Eor cases in point, see vol. 82, Cent. Dig. Landlord and Tenant, §§ 199-209.]</p> <p>5. Adverse Possession—Title by Prescription.'</p> <p>Defendants and their authors, having been in actual and continuous possession as owners since the year 1856, have acquired title by the prescription of 30 years, if not by that of 10 years under titles translative of property.</p> <p>[Ed. Note.—Eor cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 161.]</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. Application by the state, on relation of William A. Lorenz, for writ of mandamus to the city council of New Orleans. Writ granted, and defendant appeals.

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Léche, Judge.</p> <p>Tama Johnson and others were convicted of murder, and appeal.</p>

<p>1. Execution—Sales — Title of Purchaser' —Proof—Secondary Evidence.</p> <p>To establish a title as derived from a sale by the sheriff, one must show a judgment rendered by a court of competent jurisdiction, a writ issued in conformity thereto, and a sale by the sheriff pursuant to the writ; but, where the original records are shown to have been lost or destroyed, the existence of those elements, or either of them, may be proved by secondary evidence.</p> <p>2. Same—Petitory Action—Evidence—Sufficiency.</p> <p>Where, after a lapse of nearly 30 years, the plaintiff in a petitory action, in support of a title derived from a sale under execution, proves the loss of the record in which^ the execution issued, produces certified copies of a judgment against the former owner of the property, and a sheriff’s deed, both from the books in which said copies are required to be made, and produces the clerk’s - “charge docket,” showing the issuance of a writ of fieri facias, as of date corresponding with that recited in the sheriff’s deed, and there is nothing to suggest any want of jurisdiction in the court or irregularity in the proceedings, the title will be considered established.</p> <p>3. Mortgages — Foreclosure — Judgment Authorizing Sale—Title oe Purchaser-Prescription—Color oe Title—Estoppel.</p> <p>The commercial firm of A., B. & C., through A., one of its members (whose authority does not appear), purchases, by notarial act, certain real and personal property from D. who retains a mortgage to secure a portion of the price, and E. intervenes in the act and grants a mortgage containing no pact de non, etc., on property belonging to her, as further security to D. Nine years later, and after the time has elapsed within which the payments under the original contract were to have been completed, judgment is rendered, in a suit entitled “D. v. B. et.als.,” upon the confession of the “defendants” (in which, however, no other defendant than B is named), condemning the “defendants” to pay a sum of money, subject to certain credits, to be indorsed on the judgment (the amounts of which are not specified, and which are not so indorsed), and also ordering that the mortgaged property be seized and sold, though it appears that in the meanwhile another contract had been entered into, by which, apparently (the act not being produced), the payments under the original contract had been extended to a period subsequent to the date of the judgment so rendered. Nine years later still, and after the property mortgaged by E. had been sold under execution to E., a third, person, and is under administration, in the . parish court, as belonging to his succession (of which C. is administrator), it is sold under a writ of seizure and sale, issuing from the district court (of the new parish to which the case had been transferred), and is purchased by G., the wife, separate in property of B. The entire record in the suit of D. v. B. et als., save the judgment, having been lost, and there being no proof, aliunde, connecting E. therewith, held that no judgment is shown to have been rendered against E.; that the district court was without jurisdiction to order the sale of the property mortgaged by her, but then owned by the succession of E., and under administration in the parish court; that the sheriff’s deed to G., with the judgment mentioned and the writ of seizure and sale (the existence of which latter is assumed to have been proved), do not constitute the just title required as the basis of the prescription of ten years; and that G. and her heirs have been, and are, possessors in bad faith, liable for rents and revenues from the beginning of their possession. Held, further, that the heir of F. is not estopped to assert the nullity of the title set up by the heirs of G. by reason of the fact that F. Lad made certain payments on the judgment, or contract, in favor of D., and had been, in a measure, subrogated to his rights thereunder.</p> <p>(Syllabus by the Court.)</p>

<p>1. Depositaries—Contract—ConstructionLiabilities.</p> <p>Where real estate is sold by authentic act,, but the buyer does not take possession under the act, and the price, instead of being paid, is deposited in bank subject to the condition that it shall not be paid to the vendor until the title shall have been examined and found to-be good, the money so deposited is, alike, placed. beyond the control of the purchaser, and withheld from the seller, and the bank, not having been advised by both parties of either, the faiL ure or the fulfillment of the condition, the purchaser has no right to draw the money, and the seller has no right to demand that it be turned -over to him and the bank incurs no liability for damages for refusing to honor the check of the purchaser therefor.</p> <p>[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Depositaries, §§ 3, 9, 11.]</p> <p>2. Same.</p> <p>Where the .purchaser of real estate has signed the completed act of purchase, but does not take possession thereunder, and, instead of paying the price, by agreement with the seller, deposits the same in bank, subject to the condition that it shall not be paid to the latter until the title to the property shall have been examined and found to be good, and where it appears that there is a defect in the title, of which the purchaser was informed, when the act was signed by him, and which it was the purpose of the agreement and the deposit to give the seller a reasonable opportunity to cure. He Id, that the money cannot be withdrawn by the purchaser, without the consent of the seller, until such reasonable opportunity shall have been exhausted.</p> <p>3. Same—Evidence oe Agreement.</p> <p>Where money has been deposited in bank to await the result of the examination of a title to real estate, a completed act of sale of which has already been signed, and suit is brought against the bank for its recovery by the purchaser, and by the seller intervening and claiming it as the purchase price of the property sold by him, the objection urged on behalf of the bank and of the intervener that the purchaser cannot prove by parol the circumstances under which the deposit was made, because he would thereby contradict the recital in the act of sale, to the effect that the sale had been made for cash in hand paid, is one which, under the circumstances, neither the bank nor the intervener has any standing to urge.</p> <p>(Syllabus by the Court.)</p>

<p>Contracts—Public Policy — Restraint oe Trade.</p> <p>A contract whereby a party, who contemplates engaging in a lawful business in a particular place, for a pecuniary consideration paid and promised, binds himself not to do so, in favor of another, with whom he had no previous business relations and who is about ■engaging in the same business at the same place, is void, under the general commercial law, as in unreasonable restraint of trade, and a fortiori is it unenforceable when in contravention of an express prohibition of. the law of the place where it was made and is to be executed.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 542, 553.]</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of Anna McLean Gerard, widow of Thomas H. Howard. From an order refusing to dismiss the ■ executor, Leigh and George Howard appeal.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by Robert W. Stoker against the Hodge Fence & Lumber Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Negligence—Evidence.</p> <p>The facts and the law in this case are the same as those presented in the case of Stoker v. Same Defendant (recently decided) 41 South. 211, ante, p. 92C.</p> <p>(Syllabus by the Court.)</p>

<p>Brokers—Commission on Sales—Evidence. Involves only question of fact.</p> <p>(Syllabus by the Court.)</p>

Action by John B. Murphy and others against the police jury of St. Mary. From an appointment of a member of the bar to-act as judge on the recusation of the district judge, Murphy and others apply for writs of mandamus and prohibition.

<p>Deeds—Recordation—Signature by Vendor Alone.</p> <p>The registration of an act of sale signed by the vendor alone will effect a registry of the sale. Hutchinson v. Rice, 33 South. 57, 109 La. 29, overruled.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by James E. MeCaleb against the board of commissioners for the buras levee district. Judgment for plaintiff, and defendant appeals.

<p>Appeal — Decision — Remand, and Procedure Below.</p> <p>This court having simply condemned the •defendant to declare whether she accepted or renounced the succession of her daughter, the lower court erred in requiring her, in addition, to cause an inventory to be made; • especially in a different succession, that of the father of the daughter. The lower court can■not add to the decree of this court.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of Peter Perez, for writ of mandamus to E. S. Whitaker, Inspector of Police, and others. From an order denying the writ, relator appeals.

<p>1. Evidence—Paeol Evidence—Title to Realty.</p> <p>Where a mortgage is sought to be annulled on the ground that the mortgagor was not the owner of the mortgaged property, the issue involves the title of the mortgagor, and parol evidence is inadmissible.</p> <p>2. Same—Feaud.</p> <p>The fraud, whereof the allegation ouens the door to the admission of parol evidence to affect title to real estate, is that kind of fraud which, in the nature of things, admits of no other kind of proof, as, for instance, the fraud that is the cause of error in contracts, ancl the fraud by which a debtor puts his property beyond the reach of his creditors. The fraud by which a person buys real estate in his own name, instead of in that of his principal, is not provable by parol.</p> <p>3. Executors and Administrators—Claims Against Decedent.</p> <p>For proving against the estate of a dead man a claim for a large sum of money said to have been confided to him and not accounted for, specific allegations and unsuspicious proof are required.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal—Bond—Suspensive Appeal.</p> <p>In cases where article 575, Code Prae., fixing the amount of suspensive appeal bond at one-half over and above the amount of the judgment, is inapplicable, as, for instance, where plaintiffs suit is dismissed, the amount of the bond for suspensive appeal must be fixed by the judge, as would have to be done if the appeal were devolutive; and where it is not done, the appeal must be dismissed for want of a bond.</p> <p>(Syllabus by the Court.)</p>

<p>1. Corporations—Liability fob Libel—Acts of Manager.</p> <p>A corporation is responsible in damages for a libel, the publication of which was sanctioned by its manager, in a matter which concerned the business of the company.</p> <p>[Ed. Note.—Por cases in point, see vol. 12, Cent. Dig. Corporations, §§ 1903, 1904.]</p> <p>2. Same—Who May Sue.</p> <p>.A father individually cannot recover damages for a libel against his daughter, a minor aged 19 years.</p> <p>3. Appeal—Parties Entitled to Appeal.</p> <p>Where the daughter married pending the suit, and her husband was made a party, the father thereupon ceased to represent the daughter, and is without capacity to plead for her on appeal.</p> <p>4. Libel—What Constitutes.</p> <p>Published words to the effect that1 a factory girl was discharged, not for the violation of the rules, but for a reason that the manager preferred not to disclose, but, which was such that she could not be retained in the factory, constitute an actionable libel under the laws of Louisiana.</p> <p>[Ed. Note.—Por cases in point, see vol. 37, Cent. Dig. Libel and Slander, § 1.]</p> <p>5. Evidence — Parol Evidence — Corporations.</p> <p>Parol evidence is not admissible to show that a corporation has gone into liquidation, or that a foreign corporation has been licensed to do business in the state, or that one corporation has been merged into another.</p> <p>6.Corporations—Estoppel of Stockholders —Corporate Existence.</p> <p>Where the stockholders of a corporation permit its name to be used in the conduct of th,e same business, in the same place, and under the same manager, they are estopped to deny its continued existence as to the public and employes not aware of any change in corporate ownership or control.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; William Hutchinson McClendon, Judge ad hoc.</p> <p>Action by W. W. Tucker and others against H. P. Benedict and others. Judgment for plaintiffs, and defendant bank appeals.</p>

<p>Attorney and Client—Contingent Fees— Validity oe Contract.</p> <p>An agreement that for his services in a litigation an attorney shall have one-half of whatever he may recover is not the purchase of a litigious right, and is valid.</p> <p>[Ed. Note.—For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 351.] ■</p> <p>(Syllabus by the Court.)</p>

Action by the state against F. J. Orfila. Judgment for the state for a less amount than sought, and the state appealed to the-Court of Appeal. John Fitzpatrick, tax collector, applied for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Ered. Durieve King, Judge.</p> <p>Action by Julius G-. Stendell against the Longshoremen’s Protective Union Benevolent Association. Judgment for defendant, and plaintiff appeals.</p>

<p>"Exemptions—Execution—Work Horses.</p> <p>The term “work horses” used by the con■stitutional exemption provision, includes mules.</p> <p>[Ed. Note.—Eor cases in point, see vol. 23, •Cent. Dig. Exemptions, § 54.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Homicide — Evidence — Dying Declarations—Appeal.</p> <p>The defendant was indicted for manslaughter, found guilty and recommended to the mercy of the court. The objection of the defendant to the admissibility of evidence was general, and did not point out the inadmissible words of the declaration. Grounds not urged below will not be considered on appeal.</p> <p>2. Same—Evidence—Malice.</p> <p>The fact that the testimony for the stale may have gone slightly beyond the crime charged because of the issues as presented by defendant will not afford ground sufficient to set aside the verdict. If there was malice on the part of defendant it only added to the gravity of the offense.</p> <p>3. Same—Sele-Defense.</p> <p>The testimony of defendant admitted to prove that plea, i. e., self-defense, justified the ruling, which permitted the introduction of testimony by the state to which the defendant objected.</p> <p>4. Same—Trespass Vel Non.</p> <p>The defendant sought to prove he had not committed a trespass, that he was on a peaceable mission at the time of the homicide. The testimony offered by the State was properly admitted.</p> <p>5. Same — Testimony as to Conversation Heard.</p> <p>The witness heard the conversation which was pertinent to the issue. The testimony was admissible in corroboration of other testimony.</p> <p>(Syllabus by the Court.)</p>

<p>1. Witnesses —Impeachment — Preliminary Showing.</p> <p>Where the defense in a criminal trial seeks to impeach the credibility pf one of the state’s witnesses testimony as to his general reputation in the community in which he lives for truth and veracity, it is a reasonable demand on the part of the prosecution that it should be shown before the witness testifies that he is so situated as to be properly able to give testimony on that subject. The state should not be driven to the necessity of allowing injurious testimony to be received and confined to having it afterward stricken out and the jury instructed to disregard it.</p> <p>[Ed. Note.—Eor cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1154, 1157.]</p> <p>2. Criminal Law—Exclusion oe Evidence.</p> <p>The mere fact that the trial judge refused to allow a witness for the defense to be asked the question whether he knew the general reputation of one of the witnesses for the state in the community for truth and veracity furnishes no ground for reversal where the answer expected to be made was not made known to the trial court, nor was it made known on and through a motion for a new trial, what the witness would have answered.</p> <p>3.Indictment—Motion to Quash.</p> <p>The filing of a motion to quash an indictment after pleading to the merits even though it may not then be absolutely too late falls under the discretionary powers of the court. Where a motion is sought to be filed under such circumstances it should not be granted except upon clear and plain grounds, the accused under such circumstances being driven to some other remedy. The motion should not be allowed to prevail on a doubtful case where the insufficiency of the indictment was not such as being shown would not authorize a verdict upon it adverse to the accused. In this case a verdict of guilty could be legally returned upon the indictment under proper and sufficient evidence.</p> <p>[Ed. Note.—Eor cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 473.]</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 H. C. Drew and others against Caffall and Dalbey, commissioners of the Citizens’ Bank. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Expropriation—Jury of Freeholders.</p> <p>The jury of freeholders, in an expropriation case, should be taken as much as possible from the vicinage.</p> <p>2. Jury—Recusation of Juror.</p> <p>1-Iis being the brother of one of the counsel in the case is not good ground for recusing a juror.</p> <p>[Ed. Note.—For cases in point, see vol. 31, Cent. Dig. Jury, § 419.J</p> <p>3. Expropriation—Evidence of Value.</p> <p>So long as assessments are not made at the market value of property in this state, the offering of them, for the purpose of showing value in expropriation cases, will be a useless incumbering of the record.</p> <p>4. Same—Evidence.</p> <p>The statement of the notary that the price recited in the act is the true price, so far as he knows, is not sufficient proof of the true price for the purpose of making the act admissible as proof of value in an expropriation ■case.</p> <p>5. Same—Expert Evidence.</p> <p>In an expropriation case, in order that a witness should be admitted to testify as an expert as to value, it suffices that he shows he has some knowledge of the value of the property in question.</p> <p>[Ed. Note.—For eases in point, see vol. 20, . Gent. Dig. Evidence, §§ 2217, 2273.]</p> <p>6. Same—Evidence.</p> <p>The verdict of the jury in a case between other parties for the expropriation of property of similar character in the neighborhood, is good evidence of value.</p> <p>7. Same.</p> <p>Whether an estimate of the value of the particular property, or of neighboring property of similar character, is, or not, too remote, is a question depending upon the facts of the particular case. If the only change in the property since the estimation was made has been a steady rise in its value, the remoteness of the estimate might perhaps offer to the defendant good ground of objection, but surely not to the plaintiff.</p> <p>8. Evidence—Parol Evidence.</p> <p>Parol evidence is admissible to show an agreement of sale of neighboring property, when the purpose is not to affect title of real estate, but simply to show value.</p> <p>9. Expropriation—Evidence of Value.</p> <p>The price paid for neighboring property by a railway company for its right of way is admi-sible to show value, though the purchase was made after suit brought. The objection goes to the effect.</p> <p>(Syllabus by the Court.)</p>

<p>Husband and Wire—Action for Separation prom Bed and Board.</p> <p>Plaintiff and defendant have managed to live together as husband and wife nearly a half century. Children, issue of the marriage, are of age and married.</p> <p>It is not made evident that there is cause enough to dissolve the ties of matrimony.</p> <p>The cause to justify a decree as prayed for must clearly appear.</p> <p>It is late in life to apply for a separation from bed and board, to be followed by a divorce.</p> <p>(Syllabus by the Court.)</p>

<p>1. Notaries—Officers De Facto.</p> <p>One who has been commissioned as notary, and has taken the oath of office, and has been acting as notary for many years, and has the reputation of being such in the community in which he lives, but who has failed to file his •oath of office in the offices of the Secretary of State and of the clerk of court, and has also failed to renew his bond every five years, as required by law, is a notary de facto; and acts passed before him have the same validity as acts passed before a notary de jure.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Notaries, §§ 6, 12%.]</p> <p>2. W ills—Peo of—W itnesses—Competency.</p> <p>The executor is a competent witness to the will in which he is named executor.</p> <p>[Ed. Note.-—For cases in point, see vol. 49, Cent. Dig. Wills, § 289.]</p> <p>3. Same—Identity of Witness.</p> <p>Where the witness signs by a name slightly different from that given to him in the testament, “Fresco Cutero,” instead of “Francesco Cutero,” parol evidence is admissible to show the two to be the same person.</p> <p>4. Bastaeds—Legitimation—Methods.</p> <p>It is not essential to the validity of an act of legitimation that it negative the existence of the various causes which would constitute impediments to the legitimation. The existence, vel non, of these impediments, depends upon proof dehors the act.</p> <p>5. Same—Legality of Legitimation—Burden of Proof.</p> <p>The burden of showing the existence of such impediments lies on the person contesting the legitimation.</p> <p>6. Same.</p> <p>Marriage is not the only mode of legitimation. Legitimation may also be effected by notarial act.</p> <p>[Ed. Note.—For cases in point, see vol. 6, Cent. Dig. Bastards, §§ 16, 17.]</p> <p>7. Same—Act of Legitimation—Consteuotion and Effect.</p> <p>Where, in the act of legitimation or acknowdedgment, the parent declares that he acknowledges the child, and “does hereby legitimate him” ; and further declares that he wishes that the child inherit “the same as if born in lawful wedlock”; the act will be held to be one of legitimation, and not of mere acknowledgment ; and this although in the same act the parent further declares that he does hereby legitimate said child as is contemplated by article 203 of the Civil Code of 1900, which article is the one providing for mere acknowledgment; and although he, moreover, in a will made on the same day refers to the child as having been acknowledged.</p> <p>(Syllabus by the Court.)</p>

<p>In the matter of the interdiction of Jabez Bunting Watkins. Application of Grant Mutersbaugh for writ of mandamus and certiorari.</p>

<p>In the matter of the interdiction of Jabez Bunting Watkins.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Harry O’Meallie and others against Charles Moreau. Judgment for defendant, and plaintiffs appeal.</p>

<p>Costs—Parties Liable.</p> <p>In a revocatory action coupled with an attachment, the defendant in the revocatory action is liable in soiido with the principal defendant for the costs of the attachment. The suit is a unity, and, moreover, has been made necessary by his acts.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Simon Segari against Frank D. Mazzei and others. Judgment for plaintiff, and to obtain a correction therein he appeals,</p>

Actions by J. B. Simmons against the Shreveport Gas, Electric Light & Power Company, Limited, and the Shreveport Telephone Company, and by J. M. Smullins against the same defendants. Judgments for plaintiffs, and defendants appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by- P. H. Burns against the Ores-cent Gun & Rod Club. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory HoratioCouvillon, Judge.</p> <p>Action by the police jury of Avoyellesagainst the town of Mansura. Judgment for-defendant, and plaintiff appeals.</p>

<p>Appeal from Fourteenth Judicial District - Court, Parish of Avoyelles; Gregory Horatio■ Oouvillon, Judge.</p> <p>Action by the police jury of Avoyelles'against the town of Marksville. Judgment-for defendant, and plaintiff appeals.</p>

Action by T. J. Henderson against the Louisville & Nashville Railroad Company. •Judgment for plaintiff was affirmed by the Court of Appeal, and defendants applied for certiorari or writ of review.

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

<p>1. Sales—Sale or Agency—Determination.</p> <p>The plaintiff agreed to sell materials to the defendant. Through a period of about a year the defendant sold the materials from time to time, and as he sold them they would be delivered by plaintiffs at the agreed price. The materials were all specified at the date of the sale.</p> <p>The delay feature of the negotiation between the parties, and the time that defendant took to place the orders did not have the effect of changing the negotiation from a sale to an agreement whereby defendant undertook to sell for plaintiff.</p> <p>The sale was absolute of all the property mentioned in the agreement between the parties.</p> <p>2. Same.</p> <p>Whether the materials were of the standard grade, or nonstandard, is something which does not seem to have been considered when the contract was agreed upon.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District -Court, Parish of Rapides; Horace Henry White, Judge at hoe.</p> <p>Action by Ennemon M. Wells and others against Charles M. Wells. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Master and Servant—Injury to Servant —Action for Damages—Pleading.</p> <p>There was a cause of action and in consequence an exception on the ground was properly overruled.</p> <p>On the Merits.</p> <p>2. Same—Defective Appliance—Evidence.</p> <p>Whilst it is true that corporations following dangerous occupations assume certain primary obligations to secure the safety of their employés, on the other hand, a plaintiff to recover must prove that needful appliances were wanting and due to that fact an accident was the result.</p> <p>[Ed. Note.—Eor cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 895, 900.]</p> <p>3. Same^-'Tnexpebience.”</p> <p>The weight of the testimony does not sustain that plaintiff was green and inexperienced.</p> <p>4. Same—Instruction.</p> <p>The preponderance of the testimony shows that plaintiff was warned against dangers incident to the occupation.</p> <p>5. Same—Evidence—Adjustable Speings.</p> <p>There were no adjustable springs on the machine fed by plaintiff. A number of witnesses testified that there is no necessity for such “springs.” Some of the witnesses were employes of other factories than that of defendant. Plaintiff must make out his case with reasonable certainty.</p> <p>The court holds that plaintiff has not made out his case with required certainty.</p> <p>6. Same—Piece oe Wood.</p> <p>The plaintiff was feeding the machine with small pieces of wood. One of these pieces was brought up with the record. The court holds that the preponderance of evidence sustains the defense.</p> <p>(Syllabus by the Court.)</p>

<p>Application of Edward A. Hanson and others for writs of certiorari, prohibition, and mandamus.</p>

<p>Husband and Wife — Selection of Domicile.</p> <p>The husband has the exclusive light to select the matrimonial domicile, and the wife is bound to follow him wherever he chooses to reside.</p> <p>[Ed. Note.—For cases in point, see vol. 26, ■Cent. Dig. Husband and Wife, § 7.]</p> <p>(Syllabus by the Court.)</p>

Action by Arthur A. Sperier, individually and as tutor of his minor children, against Luther D. Ott. Judgment for defendant, and plaintiff appeals.

In the matter of the succession of Eugene Dupre, the tutor of Helen Coleman, filed in opposition, and from the judgment, she appeals.

<p>1. Guardian and Ward—Accountin<3--Matters Involved in Appellant’s Complaint.</p> <p>In the matter of the settlement of the succession, the court of first instance, considered dealings between the tutrix administering while in oflice, and excluded the personal accounts between the parties after their majority as not connected with the settlement of the succession, nor with the settlement of the account of thetutrix. Tutorship of Crane, et al., 17 South. 43l, 47 La. Ann. 896. As the settlement is sufficiently complicated without considering those items they will not be considered in the appeal. If anything be due to the tutrix she can deduct it in settling balances with her wards.</p> <p>'2. Same—Taxes Paid by Tutrix.</p> <p>In settling accounts between the tutrix and •one of her wards, taxes, though due her were not added to the indebtedness of the ward. It was considered that she was paid these taxes in the •settlement as made. The tutrix was allowed for maintenance of the minors which was fixed by keeping account of taxes and deducting them.</p> <p>3. Same—Evidence.</p> <p>The weight of the testimony did not sustain the claim for note donated by the late husband and not paid by the tutrix as averred.</p> <p>4. Same—Rights of Usufructuary.</p> <p>The usufructuary is entitled to fruits and revenues from day to day. As much of the rental as had been earned at the date that the ■succession was opened was due to the succession.</p> <p>•5. Same—Support of Children.</p> <p>Appellee’s claims, set forth in answer to appeal. The mother did not waive her claim for maintenance. The succession was small as to assets. The mother had by her own personal •exertions provided for the children. The court considered that she was entitled to a limited amount for their support after she had lost the usufruct of the property.</p> <p>■6. Same—Charges Against Usufructuaries.</p> <p>Usufructuaries must bear the expense of repairs, but not of new building necessary, which enhanced the value of the property, and which because of this enhancement enabled the tutrix to collect rents for which she accounted to her wards.</p> <p>7. Same—Evidence.</p> <p>The tutrix supported her charges by proof to the extent allowed.</p> <p>'8. Same.</p> <p>The court holds that as amended the judgment was substantially correct.</p> <p>(Syllabus by the Court.)</p>

<p>1.Landlord and Tenant—Repairs.</p> <p>The articles 2693 and 2694 Oiv. Code, are pertinent and govern, and not article 2695, touching guaranties of lessor against vices and defects.</p> <p>2. Same.</p> <p>The repairs were ordinary and were within the terms of the former articles.</p> <p>3. Same—Personal Injuries.</p> <p>There was in consequence no cause of action for asserted personal injury caused by a falling shutter owing to a defective window hinge.</p> <p>[Ed. Note.—Eor cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, §§ 630, 631.]</p> <p>4. Same.</p> <p>The head of the family represents the family. If he, a tenant, is without a right of action because of his failure to make the repairs, although he had the right to make them, the members of the family occupying the dwelling are equally as concluded.</p> <p>(Syllabus by the Court.)</p>

<p>Assault and Battery—Civil Action—Justification.</p> <p>He who is in fault, and sues for damages resulting therefrom, cannot recover for the injuries inflicted on him, although the perpetrator was not justified in law in his conduct.</p> <p>[Ed. Note.—For cases in point, see vol. 4, Cent. Dig. Assault and Battery, §§ 10, 48, 51.]</p> <p>(Syllabus by the Court.)</p>