Volume 117 — Louisiana Reports

<p>1. Appeal and Error — Reassignment’ of Cause — Effect.</p> <p>. An agreement of counsel, afterwards sanctioned by the court, for the reassignment of a case, has the effect of setting aside the assignment and placing matters in the situation in which they would have been if no assignment had been made, with the consequence that the timeliness of the filing of an answer to the appeal has to be determined with reference to the assignment thereafter made, and not with reference to the assignment that has been set aside.</p> <p>2. Contracts — Remedy for Breach — Election.</p> <p>When one of the parties breaks the contract, the other party must elect between demanding a dissolution of the contract and exacting a continued performance of it. He cannot have both, and the choice is made once for all.</p> <p>[E'd. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, § 1174; vol. 44, Cent. Dig. Specific Performance, § 4.]</p> <p>3. Evidence — Verbal Admissions — Weight and Effect.</p> <p>Verbal admissions are the weakest kind of' evidence, especially when the exact language-cannot be given, and when the purpose is to eke out a written contract or to put a particular interpretation upon such contract.</p> <p>[Ed. Note. — For cases in point, see vol. 20~ Cent Dig. Evidence, §§ 1029, 1050.] *</p> <p>4. Contracts — Form.</p> <p>To confirm a conversation by letter is a good business precaution. The letter should be written as soon as possible after the close of the conversation, and surely not later than the night of the same day if circumstances permit.</p> <p>5. Estoppel — Requisites.</p> <p>Estoppel en pais arises only where the other party has been led to change his position. The mere bringing of the suit in support of which the estoppel is invoked cannot be said to constitute a change of position within the meaning of the law of estoppel.</p> <p>[Ed. Note. — Eor cases in point, see vol. 19, Cent. Dig. Estoppel, § 142.]</p> <p>0. Damages — Contracts —Breach— Prospective Profits.</p> <p>The very profits the making of which constituted the sole inducement for entering into the contract cannot be said to be too speculative or remote to be claimed as damages on a breach of the contract. Hence a contractor for getting out timber may recover as damages on a breach of the contract the margin between the contract price and the cost of getting out the timber.</p> <p>7. Same.</p> <p>But he can recover nothing more. He cannot recover also and in addition any part of the expenses incurred by him in making preparations or providing a working plant for executing the contract.</p> <p>8. Same — Calculation of Future Profits.</p> <p>Where large expenses have had to he incurred in preparations for the executing of a contact having five years to run, and after the contract has run two years its further execution is wrongfully stopped, and a suit in damages is instituted for the recovery of the profits that would have been realized if it had been permitted to go on to the end of the five years, the net profits of the first two years cannot serve as a criterion for determining what the ultimate profits would probably have been if the five years had been accomplished.</p> <p>9. Same — Expenses of Execution.</p> <p>The salaries of officers and the interest on money invested in the operating plant constitute part of the cost of executing the contract, and must be deducted for arriving at the net profits.</p> <p>On Rehearing.</p> <p>10. Same — Burden of Proof.</p> <p>Where a logging contract having five years to run is wrongfully terminated by the oontractee at the end of two years, the contractor, who has made no money during the time .that the contract was in force, in order to recover prospective profits for the unexpired term of the contract, ought to make it clear that by reason of some change in the conditions he would be able in the future to do that which ¡by actual experience he, had been unable to do .in the past.</p> <p>Provosty, X, dissenting.</p> <p>{Syllabus by the Court.)</p>

<p>Taxation — Reduction of Assessments — Powers of Police Jury.</p> <p>The police jury, as a board of reviewers, has no authority to reduce assessments of its own motion, in the absence of a contest by the taxpayer.</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law — Appeal—Review — Bill op Exceptions — Homicide.</p> <p>The ruling of the trial judge that no overt act or hostile demonstration has been proved to his satisfaction, and therefore, that no proper foundation' has been laid for the admission of proof of prior communicated threats, previous difficulties, or the dangerous character of the deceased, is reviewable on appeal, when all the evidence on which the trial judge acted is brought up by bill of exceptions; but such ruling will not be disturbed unless it be made to appear that the judge a quo has abused the sound legal discretion vested in him. State v. Feazell, 116 La. 264, 40 South. 698, reaffirmed.</p> <p>[Ed. Note. — For cases in point, see vol. 26, Cent. Dig. Homicide, § 698.]</p> <p>(Syllabus by the Court.)</p>

<p>-Corporations — Insolvency — Receiver — Sale oe Assets.</p> <p>The spirit of our law, as indicated by the text applicable to insolvencies, seems to be that, in matters of that kind, the question whether the property should be sold in bulk or in parcels had best be left to the. creditors. Hence, in the matter of the receivership of a corporation,' where the creditor holding the vast majority •.of the claims, in amount (being perhaps a majority in number, as well), requests that the sale be made in bulk, it will be so ordered, unless there be shown some conclusive reason to the contrary.</p> <p>[Ed. Note. — For cases in point, see vol. 42, ■Cent. Dig. Receivers, §§ 231, 233.]</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Criminal Law — Appeai^-Record.</p> <p>Where an alleged overt act on the part of' the prosecuting witness is relied on as a defense to the charge of shooting with intent to kill, and neither the recitals of the bill of exception nor any evidence annexed show the relation, in point of time ox- circxxmstan.ee, between such act and the shooting, this court is obliged to accept as correct, the ruling of. the trial judge to the effect that no overt act was proved.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2938, 3014, 3030.]</p> <p>2. Same — New Trial.</p> <p>, A motion for new trial which merely presents the theory of the defense as to the facts, brings up nothing upon which this court can act.</p> <p>3. Same — 'Verdict.</p> <p>Where the record shows that the verdict was properly indorsed on the back of the bill of information, the fact that it was entered on the minutes without the name and official capacity of the foreman being added is immaterial.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; Nemours Henry Núñez, Judge.</p> <p>Action by John ICuhl against the St. Bernard Rendering & Fertilizing Company and others. Judgment for defendants, and plaintiff appeals.</p>

Application by the state, on the relation of W. G. Turner, for writ of mandamus. Newton C. Blanchard, Governor, and A. W. Crandall, register. From an order denying the writ, plaintiff appeals.

<p>Courts — Supreme Court — Jurisdiction.</p> <p>Case ordered to be transferred under Act No. 56, p. 135, of 1904, to the Court of Appeal for want of jurisdiction of the Supreme Court of the.appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. Parent and Child — Custody oe Child-Evidence.</p> <p>In a controversy over the custody of a minor child, a judgment of divorce alleged but not offered in evidence, cannot be considered in determining the issues.</p> <p>2. Estoppel by Pleadings.</p> <p>A husband who, in suing for a divorce, alleged that there was no issue of the marriage, and that a child born to the wife after she had left the matrimonial domicile was an adulterous bastard, is bound by such allegations, it appearing that a judgment of non-suit only was rendered in said suit.</p> <p>[Ed. Note — For cases in point, see vol. 19, Cent. Dig. Estoppel, §§ 2-5.]</p> <p>3. Parent and Child — Custody.</p> <p>Where, in a suit by an alleged father for the custody of a minor child, he is confronted by his own previous allegations that the child was an adulterous bastard, and his allegations that the physical and moral welfare of the child is seriously endangered -by the neglect or immoral habits of the mother, are not sustained by the evidence, the district judge properly dismissed the action under the provisions of Act No. 79, p. 91, of 1894.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>In the matter of the interdiction of H. R. Jones. From a judgment of interdiction, she appeals.</p>

<p>1. Sale — Guaranty — Compliance with Teems.</p> <p>Where a mechanical apparatus. is guarantied, on a certain condition, the condition must be complied with in order to enforce the guaranty.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, §§ 793-796.]</p> <p>2. Same — Action foe Price — Defenses.</p> <p>When the contraetee has operated a mechanical plant long enough to test it, and has made specific demands, all of which have been complied with, and has finally expressed a willingness to settle the account of the contractor, provided the latter complies with a demand arising out of another transaction, with different parties, objections, urged on the trial of the suit for the price of the plant, that it had not been completed according to contract, are not entitled to favorable consideration.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Verdict — Recommendation to Merct.</p> <p>Where the defendant was found guilty of manslaughter and recommended by the jury to the mercy of the court, such a recommendation is no qualification of the verdict, and must be considered as mere surplusage.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 2108.]</p> <p>2. Homicide — Sentence.</p> <p>The quantum of punishment in such a case is confided to the sound discretion of the trial judge, and cannot be deemed excessive when within the limitation prescribed by law.</p> <p>3. Same — Manslaughter.</p> <p>In all trials for murder, the judge is required to chal'ge the jury that they may find a verdict of manslaughter, and homicide by poisoning forms no exception to the general rule.</p> <p>[Ed. Note. — For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 650-654.]</p> <p>4. Criminal Law — Instructions.</p> <p>Special charges are properly refused when covered by the general charge or where their omission therefrom is favorable to the defendant. The bill of exceptions should contain such a recital of facts as to show the materiality and pertinency of requested special charges.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 2011; vol. 15, Cent. Dig. Criminal Law, §§ 3161, 3165.]</p> <p>5. Same — Appeal—Review.</p> <p>Objections to letters admitted in evidence, cannot be considered when they are not annexed to a bill of exceptions or included in the transcript of appeal. Non constat that their admission worked prejudice to the accused.</p> <p>[Ed. Note. — For eases in point, see vol. 15, . Cent. Dig. Criminal Law, §§ 2831-2833.]</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 Henry M. Wood against the New Orleans Railway & Light Company. Judgment for plaintiffs, and defendant appeals.</p>

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

Application by the state, on the relation of the Arkansas Southern Railroad Company and others, for a writ of mandamus to George Knowles, assessor, and others. Judgment for plaintiffs, and defendants appeal.

<p>Application by Jean Marie Baurens for writs of certiorari and prohibition, to review conviction of failing to support his wife.</p>

<p>1. Public Lands — Grant by Federal Government — Ratirioation by State.</p> <p>A grant by the federal government of land that had passed to the state under the swamp land grants of 1849 and 1850, may be ratified and confirmed by the state.</p> <p>2. Same — Railroad aid Grant.</p> <p>Where such subsequent grant is made to the state herself, in aid of a railroad, and the state accepts the grant, and in her turn, grants the land to a railroad company, such action on her part operates as a consent to the subsequent grant — a ratification and confirmation of it.</p> <p>3. Same — Swamp Land Grants.</p> <p>Where, owing to such subsequent grant, the General Land Department has refused to confirm the land to the state under the swamp land grants, and the state has, nevertheless, issued a patent for the land, as of land belonging to her under the swamp land grants, and such patent comes in opposition to the title under the subsequent grant, the latter will prevail.</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 city of Shreveport against Cade Marks and others. Judgment for defendants, and plaintiff appeals.</p>

W. Ellis, Judge. Action by the state against C. C. Hart-well Company, Limited, to collect a license fee. Judgment for defendant, and plaintiff appeals.

<p>Injunction — Anciulakt Injunction.</p> <p>An ancillary injunction necessarily falls with the main suit.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, § 392.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Ninth Judicial District Court, Parish of Madison; Francis Xavier Ransdell, Judge.</p> <p>Robert T. Rogers and others were indicted for murder and discharged, and the state appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Jérome ’ Louis Gaudet, Judge.</p> <p>Action by the Louisiana Railway & Navigation Company against George Sarpy, to expropriate certain -land. ■ Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; John S. Boatner, Judge.</p> <p>Action by the National Bank of Commerce against J. B. Sullivan, in which the Union Oil Company intervened. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Municipal Corporations — New Orleans Board oe Liquidation — Custody oe Funds.</p> <p>The proceeds of the 1 per cent, tax should be paid over to the fiscal agent or depository of the board of liquidation, as directed by that bond and to the credit of the board.</p> <p>■2. Same — Statutory Provisions.</p> <p>The purpose of section S of Act No. Ill, p. 147, of 1890 is separate and distinct. The instruction touching the deposit of the fund therein referred to is special and direct.</p> <p>3. Same — Action oe Board — Quorum.</p> <p>There was no quorum at the meeting of September 1, 1905, at which a depository was selected by the board.</p> <p>4. Same — Absence oe Quorum — Eeeect.</p> <p>The question was jurisdictional — it went to the power vel non of an illegal quorum. The relator had the right to stand in judgment to have it determined where the fund should be deposiced. He had the further right.</p> <p>5. Same — Oeeicers—Representation by Deputy.</p> <p>Record evidence should be kept of the fact that, on account of the “absence” of one of the executive officers, the comptroller, his chief clerk or deputy acted.</p> <p>•6. Principal and Surety — Contract.</p> <p>A contract, entered into to secure funds •deposited, and the accompanying bond, should clearly set forth the extent of the liability of principal and security.</p> <p>7. Municipal Corporations — Action oe Oeeicers.</p> <p>No changes .should be made before the board has acted through a legal quorum.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of George Landry. Angeline Yrle, executrix, obtained an order for an accounting, and from a judgment overruling her opposition to the homologation of a partition by the heirs, and sustaining the opposition of the heirs to her final account, she appeals.

<p>1. Eminent Domain — Foreign Corporation —Legality oe Organization.</p> <p>A corporation organized under the laws of another state, which seeks to expropriate a right of way, must meet objection raised on ground of illegality of its organization by proving the regularity of its organization.</p> <p>2. Evidence — Judicial Notice — Statutes op Other States.</p> <p>Courts will not take judicial notice of statutes under which a company is organized— not offered in evidence and not proven.</p> <p>[Ed. Note. — Eor cases in point, see vol. 20, Cent. Dig. Evidence, § 51.]</p> <p>3. Same — Judicial Notice.</p> <p>The district court is without authority to take judicial notice of proceedings in a case in another jurisdiction.</p> <p>[Ed. Note. — Eor cases in point, see vol. 20, Cent. Dig. Evidence, § 65.]</p> <p>4. Appeal — The Record as Made Up.</p> <p>The appellate court, although a case has • been decided by it on appeal, will not go beyond the record in hand to examine into ths facts of the decided case.</p> <p>[Ed. Note. — Eor cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2959, 2960.]</p> <p>5. Evidence — Judicial Notice — Overruled Cases.</p> <p>Graham v. Williams, 21 La. Ann. 594; Smith v. McWaters, 7 La. Ann. 147, and other cases in which different views are expressed, are overruled.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St, Tammany; Thomas Moore Burns, Judge.</p> <p>Action by Antonia Faure against Ernest Faure and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal — Jurisdictional Amount — How Determined.</p> <p>The sheriff having denied that the district attorney was entitled to a commission on. fines in criminal cases, and refused to pay him such commission on certain fines already collected, and declared his intention not to pay same on future fines, held, that, in a mandamus suit to ■ compel the payment of the commissions, the only amount in dispute is the commission on the fines already collected, and that, for determining the jurisdiction of the appellate court, the commissions on the future fines cannot be taken •into computation. Courts can only decide actual controversies. They cannot prescribe for the future. Mandamus will not lie to compel a -general course of official conduct.</p> <p>(Syllabus by the Court.)</p>

<p>Homicide — Appeal—Bill oe Exceptions.</p> <p>Upon an appeal from a conviction of manslaughter, o'n a charge of murder, a bill of exceptions to the overruling of a motion for a new trial (in support of which no proof was offered) based on the grounds; (1) That the verdict is contrary to the law and the evidence; (2) that it is not responsive to the charge; (3) that there can be no element of manslaughter when the accused is charged with murdering his infant child, and that the verdict shows that the jury did not give the accused the benefit of the doubt, and that they “could not make up their minds to turn loose, or acquit, a negro,” furnishes' no ground for the reversal of the-judgment.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; Louis P. Caillouet, Judge.</p> <p>Hilary Craft was convicted .of murder, and appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by Joseph Warren Foster against Andrew Meyers. Judgment for plaintiff, and defendant and his .warrantors appeal.</p>

<p>1.Appeal — Final Judgment.</p> <p>Considered with reference to the- right of .appeal, a final judgment is one which decides “all the points in controversy between the parties,” and which, disposing of all the issues not previously disposed of by interlocutory judgments, is the last judgment rendered in the case.</p> <p>[Ed. Note. — For cases in point, see vol. 2, ■Cent. Dig. Appeal and Error, §§ 426-443.]</p> <p>2. Same — Inteblocutoey Judgments.</p> <p>Interlocutory judgments are appealable only when they work irreparable injury to the parties cast.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 402-416.]</p> <p>3. Same.</p> <p>Where several alleged causes of action are cumulated in the same demand,» a judgment dismissing one or more of them, on an exception of no cause of action, but leaving the demand, though reduced, still pending, is interlocutory.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Pierrepont Edwards, Judge.</p> <p>Action by Mrs. Eulalie Foreman, tutrix, against the Eagle Rice Mill Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Anatole St. Geme and others against Frank Boimare and F. G. Adolph. Judgment for defendants, and plaintiffs appeal.</p>

In the matter of the succession of Caroline Herber, widow of Joseph Herber. Abraham Creppel sued to annul the will. Judgment maintaining exception and no cause of action, and plaintiff having died, Julia Baumgartner and others appeal.

<p>1. Railroads — Defective Track — Liabilities. ■ ,</p> <p>Where a railroad company granted to a lumber company the privilege of running a logging train on its roadway, and the train was derailed and the conductor injured by the giving way of a defective bridge, the railroad company is liable in damages.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, £•§ 817, 818.]</p> <p>2. Master and Servant — Injury to Servant.</p> <p>In such a case, the lumber company, not guilty of any default or negligence, and with no supervision or control over the track or knowledge of its condition, is not liable for the injuries sustained by its conductor, who had full knowledge of the situation when he accepted the employment.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 171; vol 41, Cent. Dig. Railroads, §§ 817, 827.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish -of Orleans; George Henry Théard, Judge.</p> <p>Action by Samuel Israelite Baptist Church .against Jordan Thomas. Judgment for defendant, . and plaintiff appeals.</p>

<p>1. Physicians and Surgeons — Negligence-Evidence.</p> <p>Two of the defendants were not the owners of, nor connected with the management of the sanitarium at the date of the accident of which plaintiff complains.</p> <p>Suit against them did not lie. They are not liable.</p> <p>2. Same.</p> <p>The attendant of the sanitarium was not sufficiently careful, and did not follow the prescription. The injury, if any, was very slight. There was pain caused to the patient. Nominal damages allowed.</p> <p>An attendant in a sanitarium should be careful, and it is the duty of those in charge to compel the nurse to be careful, and not neglect the patient who is under the care of the sanitarium, and to whom it must see, to some extent at least, that medicines are properly administered.</p> <p>(Syllabus by the Court.)</p>

Action by Mrs. Alida Décuir, wife of Carlos St. Julien, and others, against Mrs. Célimene Décuir and others. Judgment for plaintiffs, and defendant Edward Simon appeals.

<p>Appeal — Review—Presumptions.</p> <p>The presumption is in favor of the correctness of the judgment appealed from, and where the transcript fails to show the contrary such judgment will be affirmed.</p> <p>[Ed. Note. — For eases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3667-3672J</p> <p>(Syllabus by the Court.)</p>

Action by Margaret Driscoll, wife of John E. Pierce, against John E. Pierce. Judgment for plaintiff. Rule against executor and Mrs. Pierce individually to have fees of curator and tutor ad hoc taxed as costs. From an order making the rule absolute, Mrs. Pierce individually, and as guardian of the minor, appeals.

<p>Bridges — Use oe Tolls — Action by Taxpayer.</p> <p>The mere interest of a plaintiff as a citizen and resident of a town and parish is insufficient in law to maintain an action to compel the authorities to invest the surplus revenues arising from the operation of a toll bridge and use the interest accruing therefrom for the maintainanee and operation of the structure as a free bridge; it not being even alleged that plaintiff had ever used the bridge or expected to use it, or had been or would be injured by the collection of tolls.</p> <p>(Syllabus by the Court.)</p>

<p>1. Exemptions — Pkopeety Subject.</p> <p>Where the only property belonging to either of two spouses separated in property from each other consists of a small house and lot, a small stock of goods, and movables, the whole amounting in value to less than $2,000, and falling under the terms of the right of exemption, the wife is entitled to an exemption upon said property from seizure and sale by her creditors where the house is occupied by the husband, the wife, and seven children as a residence, and the stock of goods therein employed by the wife in carrying on a small trade through which the whole family is supported.</p> <p>2. Same — Head oe the Family.</p> <p>Under artiele 244 of the Constitution of 1898 a right of exemption is granted to the extent and upon the things therein specified, not only to every “head of a family,” but to every person having a person or persons dependent upon “him” or “her” for support. While it is true that the husband, so long as the marriage continues, is in one sense “the head of the family,” it does not follow that the burden and duty of supporting the family does not under some circumstances rest upon the wife (Civ. Code, art. 2435), and that condition of things is shown to exist in this case. That fact with its legal consequences is not affected because the husband may give his time and attention to the conducting of the wife’s business! The utmost that can be claimed is that he thereby contributes something towards his own support.</p> <p>[Ed.. Note.- — For cases in point, see vol. 23, Cent. Dig. Exemptions, §§• 15-19; vol. 25, Cent. Dig. Homestead, §§ 22-27.]</p> <p>(Syllabus by the Court.)</p>

<p>Courts — Supreme Court — Jurisdiction.</p> <p>The questions here presented áre whether the plaintiff’s land lies in the parish of Bossier or the parish of Bienville, and, if in the parish of Bossier, whether payment to the parish of Bienville discharges plaintiff from liability for taxes legally assessed by the parish of Bossier. These questions do not involve the legality of the tax in controversy, and, as the amount claimed is less than $2,000, this court is without jurisdiction of the appeal.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 608-618.]</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 Walter W. Girault against Barbara Eeucht. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Bills and Notes — Checks — Notice to Payee — State Funds.</p> <p>The check assigned to defendant was to be paid from state funds.</p> <p>2. Same.</p> <p>The initials of the drawer, “T. C.,” identified the funds sufficiently to place defendant on his guard.</p> <p>3. Estoppel — Acts oe Deeaultins Oeeicers.</p> <p>The state is not estopped by the act of the defaulting officer, even in case of a belated settlement.</p> <p>4. Evidence — Presumptions.</p> <p>When a defendant can by his “own testimony throw light upon matters at issue necessary to his defense and' peculiarly within his knowledge, if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will bo given effect to, that’the facts do not exist.” Bastrop State Bank v. Levy, 31 South. 164, 106 La. 591.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 95, 96.]</p> <p>(Syllabus by the Court.)</p>

W. S. Hunter was convicted in a mayor’s court for illegally selling intoxicating liquors, and appeals to the district court, where the conviction was held void. Town moved for a new trial, which was denied, and the state, on the relation of the town by Robert Roberts, Mayor, applies for writs of mandamus, certiorari, and prohibition.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Mrs. H. I-I. Clark, wife of S. W. Clark, against John T. Whitaker. Judgment for defendant, and plaintiff appeals.</p>

Action by the board of directors of the-parish of Livingston against J. S. Lanier and Malissa Lanier, warrantor. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher. Bell, Judge.</p> <p>Action by Mrs. J. E. Leverett against Herman Loeb and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Blackman, Judge.</p> <p>Action by the Louisiana & Arkansas Railway Company against Madison C. Moseley. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pleading — Petition — Demueeer — No Cause oe Action.</p> <p>The petition in this case is lacking in some of the allegations customarily employed in actions^ of the character of that before the court, and is open to criticism on that account; but the missing allegations are not of character such_ as to call for the drastic remedy of a dismissal of the suit upon an exception of “no cause of action.”</p> <p>2. Same — Amendment.</p> <p>The tendency of modern practice is to yield as little as possible to technicalities, and to afford aid as far as practicable to the filing of amendments which work no injury and prevent useless delays and costs.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, § 591.]</p> <p>3. Same — Exceptions.</p> <p>When the lawmaker in the Code of Practice established and classified exceptions of different kinds to be advanced at different stages of cases, and to be followed by announced consequences, it was intended that they should be resorted to under the circumstances stated. Courts should see that each exception should be made to perform the function properly appertaining to it, and not be allowed to have another substituted .for it, and thus be lost, merged, and confused.</p> <p>4. Same — No Cause oe Action.</p> <p>An exception of no cause of action should not be sustained when a judgment of some kind, however small, could be legally rendered on the allegations supported by evidence.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 408-415, 486.]</p> <p>5. Death — Action by Wipe — Petition.</p> <p>It is not necessary when a wife brings suit against a corporation for damages for the alleged killing of her husband through its negligence, that she should in her pleadings negative the existence of minor children issue of her marriage. Her right of action is not conditioned upon the nonexistence of such children.</p> <p>It is not necessary that she should allege as the result of such killing that a right of action had survived therefrom to herself. That was a legal consequence resulting from the facts.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, §§ 64,. 65.]</p> <p>6. Damages — Pleading—Nominal Damages.</p> <p>The violation of a person’s legal rights through a tort gives rise to a right of action, and to a verdict for at least nominal damages, without specification as to the particular amount of damage resulting from the tort.</p> <p>Defendant is entitled to demand specific allegations on that subject before going to trial.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Damages, §§ 7-18; vol. 39, Cent. Dig. Pleading, § 962.]</p> <p>7. Death — Pleading—Demubker.</p> <p>The court is not warranted in disposing of an exception of no cause of action filed by a defendant (which admits the truth of plaintiff’s allegations) to deal with plaintiff’s husband as a. trespasser on defendant’s track when she alleged that he was wholly without fault in the premises, and his killing was due to the reckless and wanton negligence of the defendant corporation.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1331-1340.]</p> <p>Provosty, X, dissenting in part.</p> <p>(Syllabus by the Court.)</p>

<p>1. Judgment — Res Judicata.</p> <p>In a suit to annul a tax sale for irregularities, a judgment dismissing the suit after trial on issue joined by general denial concludes the plaintiff as effectually as if the defendant, in addition to the general denial, had, by way of reconventional demand, asked that his own title be recognized and enforced.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1165.]</p> <p>2. Pleading — Supplemental Answer — Notice.</p> <p>No law requires that a supplemental answer be notified to the plaintiff otherwise than by its filing.</p> <p>3. Appeai^-Objeotions in Lower Court— Transfer of Case — Objections Waived.</p> <p>After trial and judgment it is too late to object that the transfer of the case from one of the divisions to the other of the civil district court, parish of Orleans, was irregular.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1141.]</p> <p>4. Taxation — Tax Deed — Validity.</p> <p>When the purchaser at a tax sale made under Act No. 82, p. 104, of 1884, to satisfy taxes of 1879 and previous years, does not pay the taxes of 1880 and subsequent years, but merely promises to pay them, the title he acquires is a mere nullity.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Taxation, § 1469.]</p> <p>On Rehearing.</p> <p>5.Vendor and Purchaser — Action for Price — Interest.</p> <p>In an action to compel a purchaser to accept title to real estate and pay the price, the defendant should be condemned to pay interest only from the date of judgment, where he had reasonable ground to defend the suit.</p> <p>[Ed. Note. — For cases' in point, see vol. 48, Cent. Dig. Vendor and Purchaser, § 933.]</p> <p>(Syllabus by the Court.)</p>

Action by James B. Pelletier against the State National Bank. Judgment for defendant on a reconventional demand against plaintiff. On the issuance of a fi. fa. against plaintiff, his wife filed a petition of intervention and third opposition. Judgment for defendant against the third opponent, and she •appeals.

<p>1. Possessory Action — Evidence — Limitations.</p> <p>In a possessory action, it is incumbent on the plaintiff to prove possession, at the time of the disturbance complained of, and during the year preceding, and that the disturbance occurred within a year prior to the institution of the action.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trespass, §§ 32-47.]</p> <p>2. Appeal — Theory oe Case.</p> <p>This court is not at liberty, of its own motion, to deal with a possessory action as though it were petitory.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1053-1055.]</p> <p>(Syllabus by the Court.)</p>

Action by John J. Orillen and others against the New Orleans Terminal Company. Judgment for defendant was affirmed by the Court of Appeal, and plaintiffs appeal for ■certiorari or writ of review.

Action by John Murphy and George D. Palfrey against the police jury of the parish of St. Mary. Judgment for defendants, and plaintiffs apply for certiorari, mandamus, and prohibition.

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

<p>Application by E. M. Wells and others for writs of mandamus and certiorari against W. F. Blackman.</p>

Action by S. D. Moody & Co., Limited, against the Sewerage & Water Board and others. Judgment for plaintiffs was affirmed by the Court of Appeal, and defendant applied for certiorari or writ of review.

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Aroncia Dartez was convicted of manslaughter, and appeals.</p>

<p>1. Appeal — Parties.</p> <p>Where a minor, after attaining majority, appeals from a judgment homologating a provisional account filed by the natural tutrix, administering the succession of the deceased father and husband, the creditors, whose claims are recognized on such account and have been paid, and who have, therefore, an interest in maintaining the judgment of homologation, must be made parties to the appeal; otherwise, and if there is no prayer that they be cited, the appeal will be dismissed.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1822.]</p> <p>2. Executors and Administrators — Accounting.</p> <p>In the instant case, the account in question is not regarded as an account ,of tutorship, but merely as in account of administration.</p> <p>(Syllabus by the Court.)</p>

<p>Guardian and Ward — Brovisional Accounting — Rigiit of Minor to Appeal.</p> <p>The appeal taken from the judgment of homologation of the account is dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.</p> <p>Robert Pointdexter, alias Bull Dafney, and others, were convicted of murder, and appeal.</p>

<p>1. Landlord and Tenant — Lease — Option por Sale.</p> <p>The contract of lease contained an option or promise of sale of the property leased which was accepted by lessees.</p> <p>2. Same — Enforcement—Defense.</p> <p>The lessor does not by preponderance of testimony sustain his defense which was that ■he had signed the contract not knowing that it contained a clause covering an option to sell the property.</p> <p>3. Same — Pleading—Fraud.</p> <p>The pleadings set forth no charge of fraud or deception.</p> <p>4. Same — Knowledge op Contract — Read or Have it Read.</p> <p>It is incumbent upon a person signing a contract to read it carefully or to have it read; to stop and listen and take no chances touching the contents of the act.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 155-159; vol. 11, Cent. Dig. Contracts, §§ 415-419.]</p> <p>5. Same — Tender—In Mora.</p> <p>The defendant was sufficiently placed in mora the cash portion of the price was tendered the notes representing the credit portion, which defendant refused to accept.</p> <p>6. Same — Deposit.</p> <p>In order to complete the tender there wao no necessity under the circumstance of consigning the amount tendered.</p> <p>[Ed. Note. — Eor cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, § 344.]</p> <p>7. Same — Other Amounts.</p> <p>The debtor need not tender other amounts he owes; in this instance the indebtedness which defendant claims should have been tendered, is to be settled under the terms of the decree.</p> <p>[Ed. Note. — Eor cases in point, see' vol. 48, Cent. Dig. Vendor and Purchaser, § 345.]</p> <p>8. Evidence — Parol Evidence — Fraud—Testimony Excluded.</p> <p>Conversation of witnesses between themselves at the moment of signing is not admissible, especially as fraud had not been alleged. What was said by the two parties themselves at the time- was admitted.</p> <p>(Syllabus by the Court.)</p>

Action by J. L. Campbell and others against the J. I. Campbell Company. A. Gilmer and others intervened. Judgment for plaintiffs, and certain defendants and interveners appeal.

<p>Appeae — Law op the Case — Costs.</p> <p>With reference to costs of intervention and opposition, the rule heretofore laid down must remain. They are assessed against the receiver of the Lake Charles Lumber Company.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4358-4368.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>James County was convicted of larceny, and appeals.</p>

<p>Appeal from Mayor’s Court of Town of Homer; Hugh Taylor, Judge.</p> <p>Suit by the mayor and board of selectmen of the town of Homer against Thomas H. Brown. From a judgment against the defendant, he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Jennie Nolan against Henry P. Labatut and others. Judgment for defendants, and plaintiff appeals.</p>

Barry, Judge ad hoc. Action by W. L. Doss and others against the board of commissioners of Mermentau levee district. Judgment ‘for defendants, and plaintiff appeals.

<p>Action by Mrs. Volcy Amet against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff applies for certiorari or writ of review.</p>

« Action by Mrs. Mary Lee Scovell and others against the St. Louis Southwestern Railway Company. Judgment for plaintiffs, and the defendant applies for certiorari or writ of review to the Court of Appeal.

<p>L Criminal Law — Appeal—Objections to Charge.</p> <p>Objections to the charge, not made before verdict, will not be considered on appeal.</p> <p>[Ed. Note. — Eor cases in point, see vol. 14, Cent. Dig. Criminal Law, § 2022.]</p> <p>2 Indictment — Motion to Quash.</p> <p>Motion to quash on the ground of the incompetency of one of the grand jurors comes too late after plea.</p> <p>[Ed. Note. — Eor cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 473.]</p> <p>3. Grand Jury — Disqualification ofJuror.</p> <p>Being charged with an offense not cognizable by the grand jury — for instance, the breach of a municipal ordinance — does not disqualify a grand juror.</p> <p>4. Jury — Competency of Juror.</p> <p>A juror who has declared that he thinks he is incompetent, because the deceased was bis friend, but who, on being further questioned, says that, if sworn as a juror, he will try tlie case according to the law and the evidence, just as if he had not known the deceased, is competent. It is not for the juror to decide whether lie is competent, but for the court.</p> <p>[Ed. Note. — For cases in point, see vol. 31, Cent. Dig. Jury, §§ 437, 594.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Louis Stewart was convicted of assault with intent to murder, and appeals.</p>

Action by Milton P. Doullut against Louisa Smith and others. Judgment for defendants was reversed by the Court of Appeal, and they apply for certiorari or writ of review.

<p>1. Petitory Action — Defendant not Prejudiced by Warrantor’s Defense.</p> <p>The allegations of warrrantor do not control nor defeat the right of the defendant.</p> <p>2. Prescription — Possession.</p> <p>The defendant was in possession of the property sold at tax sale; plaintiff takes nothing by prescription.</p> <p>3. Taxation — Notice to Tax Debtors.</p> <p>It does not satisfactorily appear that the tax debtor was notified as required.</p> <p>4. Same — Redemption Certificate.</p> <p>The auditor issued a “certificate of redemption” for the very taxes for which plaintiff claims the property was sold. Though issued after the time for redemption it remains as a fact that the state did not transfer the property which had been adjudicated to her for taxes for which the “certificate” issued. Moreover, the property had not been correctly assessed in the name of the tax debtor, nor had it been properly described.</p> <p>5. Same — Redemption.</p> <p>The state authorities did not go behind the certificate of redemption, nor seek to sell the property for taxes paid.</p> <p>6. Same — Tax Sale.</p> <p>The act of sale of 1897 for the taxes of 1896 is null by reason of the fact that the taxes had been paid.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Taxation, § 1267.]</p> <p>7. Same — Assessment.</p> <p>Moreover, if there was any validity in the tax deed of 1895, the property, after one year had elapsed was not separately assessed as the property of the state as required by Act No. 80, p. 88, of 1888.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Execution — Injunction — Burden oe Proof.</p> <p>Where an injunction is taken against the enforcement of payment by executory process of notes bearing on their face 8 per cent, interest from date, payable annually and payable at a particular bank, on the ground that the holder 'of the notes has agreed to the reduction of the rate of interest of 6% per cent, the burden of proof is thrown upon the plaintiffs in injunction to establish the agreement and its precise terms. ,</p> <p>2. Tender — Place and Time.</p> <p>Where the holder has consented to a reduction of interest should the notes and interest be promptly paid on or before their maturity, it is the duty of the debtor to so tender payment. The tender must be made at the bank specified in the notes as that at which they were to be paid unless it should be affirmatively established that the holder had set at large the place of payment.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Tender, §§ 11-19.]</p> <p>3. Same — Provisions of Note — Waiver.</p> <p>The holder of the notes did not, under the facts of this case, waive his right to have tender of payment of the notes and interest made at the bank named in the notes.</p> <p>4.- Tender— Sufficiency.</p> <p>Even had the holder consented to receive payment elsewhere than at the bank named the tenders claimed to have been made were not such as to meet the legal requirements of the situation.</p> <p>Breaux, O. J. dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Courts — Rules.</p> <p>Rules established by the judge of a district court for the regulation of the proceedings in such court become the rules of the court, and remain so until abrogated or superseded by the judge who established them or his successor in office.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 294, 303.]</p> <p>2. Mandamus — Judges—Compelling Hearing oe Cause.</p> <p>Mandamus will lie to compel the judge of a district court to grant a hearing in a matter with respect to which, under the law and the rules of his court, parties in interest are entitled to a hearing.</p> <p>[Ed. Note. — For cases in point, see vol. 33, Cent. Dig. Mandamus, §§ 74, 75, 95.]</p> <p>(Syllabus by the Court.)</p>

<p>Certiorari — Prohibition—Acts of Judges.</p> <p>Where, upon an application for writs of certiorari and prohibition, and the return thereto, it does not appear that the respondent judge-has usurped power, or Has refused to discharge any duty imposed upon him by law, or that there has been any irregularity, operating a denial of justice, in the proceedings complained' of, the supervisory jurisdiction of this court will not be so exercised as to give to the relator' the benefit of an appeal in a case in which the lawmakers have not thought proper to authorize-such appeal.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Certiorari, § 1; vol. 40, Cent. Dig. Prohibition, § 1.]</p> <p>(Syllabus by the Court.)</p>

Action by the Jennings-Heywood Oil Syndicate against the I-Ieywood Oil Company and another for an injunction. Injunction was dissolved on bond, and plaintiff applies to the Supreme Court for a writ of mandamus compelling the district court to grant an appeal.

<p>1. Executors — Accounting—Rehearing.</p> <p>Where the relator filed no application for a rehearing as to a certain item of an executor’s account, which was rejected by a judgment of the Court of Appeal, the writ of review will be dismissed as to such item, although a rehearing was granted to the opposing party on other issues. No application for a rehearing is required or is permissible in case of a judgment rendered on a rehearing, unless specially reserved.</p> <p>2. Wills — Contest—Attorney’s Fees —Liability of Succession.</p> <p>Where a last will and testament valid in form was presented by the executor for probate, and was duly proven and ordered to be executed, and the executor was duly qualified and entered upon his administration, and subsequently the will was annulled at the suit of the surviving widow on the ground that the testator was insane at the time of the execution of the testament, held, that the succession is bound for the fees of the attorneys employed by the executor to conduct the mortuary proceedings and to defend the will, although he may have been aware of the mental condition of the testator at the date of the execution of the testament.</p> <p>[Ed. Note. — For cases in point, see vol. 49, Cent. Dig. Wills, §§ 880, 894.]</p> <p>(Syllabus by the Court.)</p>

<p>Public Lands — Patent — Cancellation of Entries — Effect—Taxation.</p> <p>Where the holder of a patent issued by the state to lands entered with internal improve.ment warrants consents to the cancellation of his entries, and authorizes the delivery of the warrant to a third person by whose transferee they are used for the entry of other lands, the title to the lands first entered becomes again vested in the state, and cannot thereafter be devested by a sale for taxes.</p> <p>(Syllabus by the Court.)</p>

<p>1.Constitutional Law — Legislative and Judicial Powers — Municipal Ordinances — Reasonableness — Question eor Court.</p> <p>The power of a municipal corporation to determine as to the reasonableness of an ordinance, when exercised in connection with, and •as included in, the enacting power, is, no doubt, legislative; but the power to determine, in a ■given case, presented by parties having property, or other rights, at stake, and independently •of the exercise of the enacting power, whether a municipal corporation, professing to legislate under its incidental or general powers has done ■so in accordance with the conditions of the grant Is judicial, 'and the effect of its exercise upon the power of legislation as conferred on the corporation is merely a necessary incident to the exercise by the courts of the power vested in them.</p> <p>[Ed. Note. — For cases in point, see vol. 10, •Dent. Dig. Constitutional Law, §§ 129-132.]</p> <p>2. Courts — District Courts — Jurisdiction.</p> <p>Sections 3, 4, 5, and 6, pp. 225, 226, of Act No. 136 of 1898, are not obnoxious to the objections that they confer jurisdiction, or legislative power, on the courts, in disregard of the limitations and prohibitions of the Constitution.</p> <p>3. Municipal Corporations — Extension op Boundaries — Reasonableness op Ordinance.</p> <p>Upon the facts disclosed, certain ordinances of the town of Vidalia, extending its boundaries, are held to be “reasonable.”</p> <p>(Syllabus by the Court.)</p>

<p>Action by M. R. Beasley against A. F. Jenkins. Judgment for defendant. Applica-. tion of -plaintiff for writ of mandamus.</p>

<p>Action by M. R. Beasley against W. Y. Robson. Judgment for defendant. On refusal of a writ of injunction, plaintiff applies for certiorari.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Charles Bianchi and Isola Bianchi against Vincent Del Valle. Judgment for defendant, and plaintiffs appeal.</p>

<p>Action by Homer Hayes against Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment for plaintiff, and defendant applies for writs of certiorari and prohibition.</p>

Action by the heirs of Henry T. Williams and others against Frank Zengel, curator and individually. Judgment for defendant, and plaintiffs appeal.

Action by the heirs of Henry T. Williams and others against Prank Zengel, curator and individually. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by the Ramos Lumber & Manufacturing Company, Limited, against Henry J. Sanders and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Application by the Standard Import Company, Limited, for mandamus to compel the issuance of an injunction against the New Orleans Import Company, Limited.</p>

<p>Appeal from Civil District Court, Parish -of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Ella Handy and another against -the Barber Asphalt Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Courts — Supreme Court — Supervisory Jurisdiction.</p> <p>A litigant cannot as matter of right call upon this court to exercise the power of control and general supervision over inferior courts confided to this court by article 94 of the Constitution. This court will exercise or not this power in any particular case in its wise discretion.</p> <p>[Ed. Note. — Eor eases in point, see vol. 13, Cent. Dig. Courts, § 613.]</p> <p>2. Same — Rehearing.</p> <p>Applications for rehearing are not entertained on orders granting or refusing to grant a rule nisi on an application for a mandamus.</p> <p>(Syllabus by the Court.)</p>

<p>1. Trial — Allotment on Case — Waiver.</p> <p>Whilst the allotment of a case in the civil district court may be waived, such waiver is not compulsory, and any litigant has the right to invoke the Constitution and the rules of the court, to the end that his case (unless it be included among the exceptions contemplated by the Constitution) be allotted.</p> <p>[Ed. Note. — Eor cases in point, see vol. 46, Cent. Dig. Trial, § 21.]</p> <p>2. Executors — Management on Estate — Jurisdiction on Courts.</p> <p>A person occupying the position of executrix, who in her individual capacity holds and claims as owner, under a conveyance from her testator, property which is claimed by a coheir as belonging to the succession under administz’ation, has the right to demand that any attack on her title be made by means of a direct and independent action, regularly docketed and allotted, and her objection, made in limine, that such action has been begun in the succession, without allotment, is properly sustained.</p> <p>Nicholls and Provosty, JJ,, 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 Joseph Sacco against the New Orleans Railway & Light Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Divorce — Evidence op Marriage.</p> <p>Where, on confirmation of a judgment by default in a suit for separation from bed and board, a single witness testifies that plaintiff and defendant were married, no further proof is necessary to establish the marriage, and, if the case be otherwise made out, there should be judgment for plaintiff.</p> <p>[Ed. Note. — Eor cases in point, see vol. 17, Cent. Dig. Divorce, § 396; vol. 34, Cent. Dig. Marriage, § 80.]</p> <p>(Syllabus by the Court.)</p>

Aline Meiies was convicted of libel before the city court, and her appeal to 'the district court was dismissed, and she applies for writs of certiorari and mandamus.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Jules Mayronne and wife against J. J. Keegan. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Malicious Prosecution — Damages.</p> <p>Plaintiff’s suit is directed against the defendant corporation for damages. Malicious prosecution is his charge against the defendant.</p> <p>2. Same — Want of Malice.</p> <p>Without malice and without gross negligence, rhe prosee’ lion complained of by plaintiff was instituted by the state.</p> <p>3. Same — Probable Cause — Confessions.</p> <p>There had been confessions made by persons accused, implicating plaintiff. Some of the goods were found in the possession of the accused. The confessions implicated plaintiff and justified the defendant in bringing the matter to the attention of the authorities and in assisting in prosecuting the offenders.</p> <p>TEd. Note. — Eor cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 28-31, 33.]</p> <p>4. Same — Abandonment of Prosecution Not Ground Sufficient.</p> <p>The prosecution against plaintiff was abandoned. Defendant did not, because of the abandonment, become liable in damages as there was probable cause.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 49, 51.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Taxation — Not Dual Assessment — Pakt of Description Sufficient — Another Part Fatally Defective.</p> <p>In a suit to set aside a tax sale on the ground that the property was assessed twice for the taxes of the same year, and the further ground that the property was not described, it is held as relates to the asserted dual assess- ‘ ment that the assessment to another than the real owner does not release the owner from the payment of the tax due by him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 45, Taxation, § 104.]</p> <p>2. Same — Description.</p> <p>Where there is a good beginning of proof, three of the four boundary lines of a square having been given, and the fourth line is indicated clearly enough by the three given lines, it will be held a sufficient description. The lines of the description are sufficient to identify the property.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 45, Taxation, § 724.]</p> <p>3. Same — Lots Not Described.</p> <p>The remaining lots not sufficiently described for identification were not legally conveyed. The constitutional provision invoked does not cure the tax title, where the description is insufficient to identify the property.</p> <p>(Syllabus by the Court.)</p>

. Action by Alois Schall against Thomas Kinsella. Judgment for plaintiff, and on appeal to the Court of Appeal the suit was dismissed, and plaintiff applies for a writ of review.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; Nemours Henry Núñez, Judge.</p> <p>Action by John M. Baurens against Pauline Giroux, his wife. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by A. Schulman against E. S. Whitaker. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Jacob Itzkovitch-against Edward S. Whitaker, police inspector. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Actiou by Henry L. Lazarus against George-G. Friedrichs. Judgment for plaintiff, and defendant appeals.</p>

Paul, Judge. Action by the state, on the relation of Charles Smythe, against the city of New Orleans. Judgment for defendant, and relator appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Rule by J. P. Martinez to compel M. N. Lacroix to accept title. From a judgment dismissing the rule, Martinez appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by George M. Schaub against Ida M. Schaub, née Sintes. Judgment for defendant, and plaintiff appeals.</p>

Action by the heirs of Eugene Rovens against Murray McRob'inson. Judgment for defendant was affirmed by the court of appeals, and plaintiffs apply for writs of certiorari or review.

<p>Appeal from Civil District Court, Parish-of Orleans; Fred Durieve King, Judge.</p> <p>Action by Anna Fellman against the Succession of Alfred Guitterez. Judgment for defendant, and plaintiff appeals.</p>

Duvieve King, Judge. Action by Hilda Foreman Lanphier against the F. Johnson & Son Company, Limited, and the New Orleans Railway & Light Company. Judgment for plaintiff for less than the ■amount claimed, and she appeals.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. John the Baptist; Prentice Ellis Edrington, Judge.</p> <p>Action by Maximilien Becnel, Jr., and others against Norma Stewart and others. Judgment for plaintiffs, and defendants appeal.</p>

In the matter of the succession of Anna Ross Sharp. Suit by heirs to compel their brother to collate certain sums received from his father. -Judgment for defendant, and the heirs appeal.

Actions by Fanny McCan Tobin and others against John G. O’Kelly, and by the same plaintiffs against Mrs. M. G. T. Stempel, guardian. Judgments for plaintiffs, and defendants appeal.

<p>1. Corporations Organization — Application por Stock — Contract.</p> <p>The promoters of a private corporation, having been advised by their solicitors that P. •was willing to take stock therein, sent him a printed form reading:</p> <p>“Ivindly place my name for - shares at the price of one hundred and fifty dollars per share, being one hundred dollars f 100) par value and fifty dollars (50) surplus — subject to allotment by the organization committee.</p> <p>“I bind myself to pay for this stock on the call of the organizers.”</p> <p>This paper was accompanied by a note reading: “Referring to your application in the above-bank, we shall thank you to fill and sign the inclosed slip and return it by first mail to-the undersigned.” P. signed the slip after filling it up with the words “one hundred,” find returned it to the writers. The bank was thereafter organized with F. loft out as a stockholder. He sued the promoters for 100 shares of stock, or in the alternative for damages for the increased value upon the shares.</p> <p>Held that F. had no cause of action. The slip, when filled and returned, was the “initial” step towards the creation of a future contract, a proposition or application submitted to the promoters for acceptance as a stockholder, which .did not ripen into a contract until acted upon favorably by the promoters and notice thereof had been given to the applicant.</p> <p>Hid. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 209.]</p> <p>2. Same.</p> <p>When an individual applies for shares in a company, there being no ‘ obligation to let him have any, there must be a response of the promoters, otherwise there is no contract.</p> <p>TEd. Note. — For cases in point,' see Cent. Dig. vol. 12, Corporations, § 209.]</p> <p>3. Same — Rights of Promoters.</p> <p>The promoters in this case were not acting as such as agents for any parties under delegated powers, but as the original parties or principals in the matter they were dealing with. They were free to take such action as in their view and judgment would best promote the success of'the object they had in view.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. .12, Corporations, § 209.]</p> <p>(Syllabus by the Court.)</p>

Mary; Albert Campbell Allen, Judge. Action by L. F. Pecot against Demás Prevost; W. B. Kemper and others being called in warranty. Judgment for plaintiff, and defendant and warrantors appeal.

<p>Appeal — Rehearing — Original Judgment.</p> <p>The judgment from which only a restricted rehearing is granted continues to stand, and to be decisive of the issues not embraced in the order of rehearing.</p> <p>(Syllabus by the Court.)</p>

<p>1. Divorce — Separation from Bed and Board — Alimony—Appear—Presumptions.</p> <p>A wife brought suit against her husband, praying for a judgment of separation from bed and board. In her petition she prayed to have a place assigned to her as a residence and that she be granted alimony pendente lite.</p> <p>The application for alimony was fixed for trial, and tried without objection on a day fixed, resulting in a judgment for alimony. Defendant filed no application for a new trial, but appealed suspensively, praying for a reversal of the judgment on the ground that the case was not ripe for a default and no answer had been filed when the rule was tried, that he was not represented on the trial of the rule, that there was no allegation or proof that plaintiff had remained in the house appointed by the judge, and no proof in the record as to the means of the husband.</p> <p>Meld, there is no law requiring and no reason for postponing the trial of the application for alimony until the case was ripe for a default or an answer had been filed. The prayer for alimony is a mere incident of plaintiff’s demand, which could be taken up at any time after due notice.</p> <p>(2) If there was any legal ground for a continuance, it should have been urged on the day fixed for the trial. Appellant did not pray for a new trial, nor did he repudiate the action of the party who represented him.</p> <p>(3) The assignment of a residence by the court being subsequent to the filing of the petition, it was impossible for the plaintiff to have made in her petition the allegation which defendant urges should have been made therein.</p> <p>(4) The presumption is that the district judge acted upon proper and sufficient evidence. Reading and construing the certificate of the clerk by the law'and the nature of the clerk’s duties, there is nothing to break the force of that presumption.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by A. A. Bonvillain against Philip Bodenheimer and the People’s Bank of New Orleans. Judgment for .plaintiff, and defendants appeal.</p>

<p>Appeal from Civil District Court, Parish •of Orleans; Fred Durieve King, Judge.</p> <p>Action by Robert De Renzes against Ms wife. Rule against plaintiff to show cause why costs should not be taxed.</p>

Landry; Edward Taylor Lewis, Judge. Action by the New Orleans Acid & Fertilizer Company and others against 0. Guillory & Co. and others. Judgment for defendants, and plaintiffs appeal. Defendants Samuel 1-Iaas and John A. Haas also appeal. Re-

<p>1.Appeal — Time op Taking — Refusal of</p> <p>New Trial.</p> <p>Plaintiff’s suit against the state was brought under permission granted him by the General Assembly in Act No. 67 of 1898, under authority of article l92 of the Constitution. He appealed from an adverse judgment in the district court and died since the appeal was taken. Counsel for the state move to dismiss the appeal.</p> <p>On Motion to Dismiss the Appeal.</p> <p>2. Same — Motion to Dismiss.</p> <p>The date from which the year given for taking an appeal runs (when a motion for a new trial was filed within the time granted by articles 537, 538, of the Code of Practice, to make such motions) is from the day when the court refuses the new trial. The litigant should not be made to suffer from the court’s withholding its decision on the motion for a new trial. “Actus curias non gravabit.”</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1895.]</p> <p>3. States — Actions Against — Appeal — Death of Appellant — Effect.</p> <p>The death during the pendency of his appeal of a person to whom permission was given by the General Assembly to sue the state does not cause the suit to abate on the ground that the right given to the plaintiff to sue was intended by it to be personal. It can be continued to judgment on the representatives of the plaintiff making themselves parties, leaving to the Legislature itself to determine what its intentions were. The object of the Legislature was to be fully informed as to the claim subjected to investigation in order to guide its own future action on the claim. To dismiss the appeal would be to defeat the object sought; to permit the investigation to continue to final judgment would leave the future action of the General Assembly open to its own discretion.</p> <p>Technical rules should not be applied to a case of this character.</p> <p>On the Merits.</p> <p>4. Same — Burden of Proof.</p> <p>Article 192 of the Constitution makes it the duty of the General Assembly in granting a person (claiming that the state is indebted to him) the right to bring suit against it to require that the alleged creditor shall carry the burden of showing “that the claim sued upon is a legal valid obligation of the state, incurred in strict conformity to law, not in violation of the Constitution of the state or of the United States, and for a consideration.” The plaintiff in the present suit has not met these requirements.</p> <p>5. Same — Evidence.</p> <p>The ordinary rules of evidence find no application in such a suit. Plaintiff is required to go behind the certificates of engineers and commissioners and establish affirmatively and de novo the existence of the facts certified to therein.</p> <p>6. Same — Issue of Bonds — Constitutional Law.</p> <p>The General Assembly of 1868 in Act No. 67 authorized the creation of a debt by the state of $135,000 for the improvement of the navigation of Red river. The act provided that bonds of the state should be delivered to the contractors for the work done; and under this contract such bonds should be payable out of any funds in the treasury not otherwise appropriated.</p> <p>Held the act of the Legislature was unconstitutional, being violative of article 111 of the Constitution of 1868, which required that the General Assembly when contracting such a debt shall provide adequate ways and means for the payment of the principal and interest on the debt.</p> <p>(Syllabus by the Court.) ■</p>

<p>1. Homicide — Indictment—Name of Deceased.</p> <p>In an indictment for murder, under section 1048 of the Revised Statutes, the deceased is sufficiently described by his proper name.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 208-209.]</p> <p>2. Criminal Law — Confessions.</p> <p>A free and voluntary confession made by an accused to a police officer while under arrest is admissible against him, although the accused was not cautioned or warned as to the use that would be made of the same. Intoxication, less than mania, does not exclude a confession made during its continuance, but is a fact for the jury tending to discredit such confession.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1157-1169, 1199.]</p> <p>3. Same — Conduct of Accused.</p> <p>The actions and conduct of the accused after the homicide are admissible in evidence against him, although forming no part of the res gestae.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig-vol. 14, Criminal Law, §§ 776-785.]</p> <p>4. Same —Calling Witnesses — Discretion of Court.</p> <p>A witness who had not been summoned, when all the other witnesses were excluded from the courtroom, was called by the state in rebuttal, and permitted to testify, over the objection of the accused. Held, that the matter was within the sound discretion of the trial-judge, and that such discretion would not be interfered with in the absence of proof of fraud' or wrongdoing on the part of the prosecution.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1556-1562.]</p> <p>5. Witnesses — Impeachment.</p> <p>Where nonexpert opinion testimony as to-insanity has been received on the stand, evidence tending to show the expression of an inconsistent opinion by the same witness is always admissible in rebuttal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 50, Witnesses, § 1225.]</p> <p>6. Criminal Law — Insanity from Drunkenness-Evidence.</p> <p>Where the defense was insanity, and defendant’s evidence tended to show that his alleged condition resulted from chronic drunkenness, and evidence on the part of the prosecution tended to show that the defendant had at no time been ill since his arrest, it was competent for the state to prove in rebuttal by a physician that a man suffering from such a mania could not recover within 10 days without medical treatment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 14, Criminal Law, §§ 1061, 1062.]</p> <p>7. Same — Remarks of Prosecuting Attorney.</p> <p>A reply by the prosecuting officer to opposing counsel in the presence of the jury, to-the effect that the accused would not be on trial if he were insane, worked no prejudice, since the accused by pleading not guilty and going to-trial admitted his present sanity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1674, 3127.]</p> <p>8. Homicide — Murder—Degrees.</p> <p>In Louisiana there is no statute dividing the crime of murder into two degrees, and defining murder in the first degree as a homicide-committed with the specific intent to kill or positive premeditation; and therefore the trial judge correctly refused to give a special charge, based on the theory that the absence of such specific intent would justify the jury in finding the defendant guilty without capital punishment, or guilty of manslaughter.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 26, Homicide, §§ 35-38.]</p> <p>9. Criminal Law — Instructions.</p> <p>A requested special charge, which requires explanation, limitation, or qualification, is not sustainable, and may be refused by the trial judge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2014-2018.]</p> <p>10. Homicide — Drunkenness.</p> <p>Drunkenness at the common law neither</p> <p>excuses nor mitigates criminal offenses not requiring a specific intent, but in a murder case, where the evidence tends to show some provocation, may be taken into consideration, in connection with all the other facts and circumstances. to show that the accused acted from heat of blood, rather than from malice.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 2G, Homicide, § 381.]</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>1. Attachment — Grounds—Evidence.</p> <p>The writ of attachment issued at the instance of plaintiff was not sustained by evidence.</p> <p>2. Same — Dissolution—Damages.</p> <p>The attachment dissolved without allowing damages, none having been proved.</p> <p>[Ed., Note. — For cases -in point, see Cent. Dig. vol. 5,’ Attachment, § 983.]</p> <p>3. Action — Time oe Bringing.</p> <p>The action ivas not premature ; some of the items to secure the pledge were due.</p> <p>■4. Pledge — Action by Pledgee.</p> <p>A plidgee can sue in his name in the note .he holds as pledgee.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, §§ 191, 186.]</p> <p>•5. Bills and Notes — Bona Fide Holder.</p> <p>Plaintiff, as relates to the note in pledge, was a third holder without notice.</p> <p>•6. Insurance — Parties Interested.</p> <p>Interveners claim the property was insured for the security of all holders of mortgage notes.</p> <p>'7. Same.</p> <p>The defendant, the insured, has an interest in payment of all the notes.</p> <p>The proceeds to be proportionately divided. [Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1444.]</p> <p>On Rehearing.</p> <p>"8. Pledge — Action by Pledgee.</p> <p>The pledgee of a note may sue on it as ■owner.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, §§ 191, 186.]</p> <p>•9. Same — Rights of Pledgor.</p> <p>By that form of proceeding, however, defendant is not cut off from the equities he ■could have pleaded had plaintiff sued as pledgee.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, § 187.]</p> <p>10. Same — Nature of Action.</p> <p>In such a suit, the demand not being founded on the principal obligation, but on the pledged collateral, the fact that the principal obligation is immature or contingent is immaterial.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, § 187.]</p> <p>11. Principal and Surety — Indemnity to Surety — Pledge—Consideration.</p> <p>The Code expressly authorizes the giving ■of a pledge for holding a surety harmless.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Surety, § 505.]</p> <p>12. Pledges — Pledge of Notes.</p> <p>Also dispenses with all formalities in the ■pledging of negotiable notes except delivery to the pledgee. Hence, for pledging the note of a third person, to the maker’s order, and by himself indorsed in blank, the indorsement of the pledgor is not required.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, § 39.]</p> <p>13. Same — Action on Note — Judgment. Where the pledged note was without consideration, and is saved from nullity in the hands of the pledgee only because taken by him in good faith before maturity, the judgment against the makér will not be absolute, but will be so framed as to be executory only in so far as may be necessary for carrying out the purposes of the pledge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig.</p> <p>■ vol. 40, Pledges, § 194.]</p> <p>Breaux, C. J., dissenting in part.</p> <p>(Syllabus by the Court.)</p>

Action by Elias Williams against Lucinda Varnardo, and application by the state, on the relation of Elias Williams, for writ of habeas corpus against Lucinda Varnardo and others. The cases were consolidated and judgment rendered for defendant in both proceedings, and plaintiff appeals.

Action by William Rimmer against Jones Bros, and James Duval. Judgment of the Court of Appeal in favor of plaintiff, and defendants Jones Bros, apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Alex. Johnson against Christie & Lowe and others. Judgment for defendants and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Robert Clark, alias Robert Young, was convicted of forgery, and appeals.</p>

<p>Appeal — Jurisdictional Amount — Cumulation op Claims.</p> <p>Where, by reason 'of the acceptance of a portion thereof, a fund deposited in court for distribution is reduced below $2,000, and no single claim is left, whether against such fund or against either of the litigants, amounting to that sum, this court is without jurisdiction of tho appeal, and the independent claims of the litigants, each for less than $2,000, cannot be cumulated, with the effect of conferring such jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 276-292.]</p> <p>(Syllabus by the Court.)</p>

<p>•Criminal Law — Trial—Argument oe Counsel.</p> <p>Documents offei’ed on behalf of the state .and received in evidence during the trial of a criminal case, but not then read to the jury, may be read by the prosecuting officer in his closing argument.</p> <p>(Syllabus by the Court.)</p>

<p>Ceiminal Law — Auteeeois Acquit.</p> <p>A defendant, acquitted of stealing a mule, cannot be prosecuted on the same facts for the embezzlement of the mule.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 396.]</p> <p>(Syllabus by the Court.)</p>

<p>Injunction — Motion to Dissolve — Time fob Filins.</p> <p>A motion to dissolve a preliminary injunction, on the ground that the signature of the surety _ on the bond was affixed by an unauthorized person, is in the nature of - a peremptory exception, relating to forms, and should be filed before joinder of issue.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Nestor Couvillion was indicted for crime. From an order quashing the writ, the state appeals.</p>

<p>1. Criminal Law — Appeal.</p> <p>No ground for an appeal. No bill of exceptions was taken, and no assignment of errors was filed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2619.]</p> <p>2. Same.</p> <p>The gravity of the charge and of the sentence moved the court to inspect the record. No reversible error was found.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>John Warner was convicted of burglary and larceny, and appeals.</p>

Action by the board of commissioners of the Petite Anse drainage district against the Iberia & Vermilion Railroad Company. Application by such company for writs of mandiamus, certiorari, and prohibition.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>John C. Kramer was convicted of extortion in office, and appeals.</p>

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

<p>1. Highways — Rights of Abutting "Owner —Hedges.</p> <p>A plaintiff, owner of the adjacent land, cannot maintain an action for damages for the trimming and cutting of a hedge planted on a public highway by the municipal authorities.</p> <p>2. Same.</p> <p>The hedge not having been planted on the boundary line of plaintiff’s property, article 691 of Merrick’s Rev. Civ. Code has no application, and his legal rights in the premises are confined to requiring the cutting of branches which may extend over his estate.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Refusal of Continuance.</p> <p>'When six clear days intervene between the day upon which counsel are assigned to the accused in a criminal prosecution and that upon which the case is called for trial, and it does not appear that the accused were unable to obtain any of their witnesses, and the court is not informed in what respect a better defense could have been made if more time had been granted, the refusal of the trial judge to grant a continuance presents no ground for reversal.</p> <p>[Ed.- Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1317.]</p> <p>2. Same — New Trial — Grounds.</p> <p>Allegations, in a motion for a new trial in a criminal case, that the verdict is contrary to law and the evidence, and that the facts were not sufficiently proved, present nothing upon which the court can act.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2363-2367.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio (pouvillon, Judge.</p> <p>Action by Fereol Regard and others against the police jury of Avoyelles. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal — Jurisdictional Amount — Fictitious Claim.</p> <p>The jurisdictional allegations of a petition will not control, when it is manifest that the claim it sets up is not serious and that it is fictitious. This case as to amount falls below the appellate jurisdiction of the Supreme Court. The appeal is dismissed, or the cause ■contingently transferred to the Court of Appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. -vol. 2, Appeal and Error, §§ 254, 256-258.]</p> <p>(Syllabus by the Court.)</p>

Mat Westmoreland was convicted of violation of a city ordinance, and applies for writs of certiorari, mandamus, and prohibition.

<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>Action by the heirs of William Johnson against Onezime Raphael. Judgment for defendant was reversed by the Court of Appeal, and he applies for certiorari or writ of review.</p>

<p>1. Criminal Law — Appeal — Review — No Legal Ground.</p> <p>There was no bill of exception, no assignment of error, and an inspection of the record shows no error.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3205.]</p> <p>2. Perjury — Repeal or Statute — Asserted Repeal.</p> <p>Defendant’s contention in the brief was that Act No. 118, p. 200, of 1906, by implication, repealed section 857 of the Revised Statutes, under which he was convicted. It did not.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39. Perjury, § 2; vol. 44, Statutes, §§ 235, 236.] '</p> <p>3. Same — False Swearing.</p> <p>As it must appear that an accused was convicted under some law, the point urged was considered, though it was not before the court in due form.</p> <p>“False swearing” is an indictable offense. A law denouncing “false swearing” does not necessarily cover perjury; it being a separate and distinct offense-. The statute (Act No. 118, p. 200, of 1906) was not a substitute for perjury, and did not repeal section 857 of the Revised Statutes, cited, relating to perjury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Perjury § L]</p> <p>(Syllabus by the Court.)</p>

<p>1. Coubts — Supreme Court — Jurisdiction. '</p> <p>The appellee moved in this court to have his appeal to this court transferred to the ■Court of Appeal for want of jurisdiction. The appellant having selected this tribunal to take his appeal, if transferred, it would have to be done ex proprio motu. This court has jurisdiction. The motion is overruled.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 617.]</p> <p>2. Appear — Bond—Sueficienct.</p> <p>Relative to motion of appellee to dismiss ■on the ground that the appeal bond is irregular, and does not contain the proper conditions.</p> <p>It contains sufficient recitals for all purposes of an appeal bond.</p> <p>3. Same — Record—Yeritt.</p> <p>The second motion of appellee to dismiss is upon the ground that the transcript was not filed in time.</p> <p>It is not shown by sufficient evidence that the order of appeal was not properly dated as ■set forth in the transcript. The date of the order of appeal (fourth Monday of February, 1906) cannot be changed by ex parte statements.</p> <p>4. Same — Clerk’s Certificate.</p> <p>Though not given strictly according to law, it is not shown wherein the appellee is prejudiced by it. Appellee has not moved to ■dismiss the appeal on this ground.</p> <p>(Syllabus by the Court.)</p>

Action by Bennie E. Payne against the Georgetown. Lumber Company, Limited. Plaintiff died, and his mother and brothers and sisters were made parties plaintiff. Judgment for defendant, and plaintiffs appeal.

<p>1. Specific Performance — Conditions of Contract — Suit for Specific Performance.</p> <p>In a suit to compel defendant to specifically perform an agreement to sell, the terms and conditions control.</p> <p>2. Vendor and Purchaser — Contract—Construction — Not a Saxe.</p> <p>Tbe agreement was not a definite sale taking effect at its date.</p> <p>It states in part “balance when act of sale is passed.”</p> <p>Substantially similar agreements have been considered as promises of sale.</p> <p>“There was to be a sale, the title was to be transferred; that was to be done.” Bennett v. Puller, 29 La. Ann. 667; Knox v. Payne & Harrison, 13 La. Ann. 361; Peck v. Bemis, 10 La. Ann. .160; Collins v. Desmaret, 45 La. Ann. 108, 12 South. 121.</p> <p>3. Same — Option — Earnest Monet or Aerhes.</p> <p>There was a promise of sale. The cash deposited at the time the agreement to sell was signed by one of the parties was to be forfeited in case the vendee did not pay the price agreed upon and complete the sale.</p> <p>This was the stipulation. The right remained in the defendant to decline to complete the sale by paying twice the amount.</p> <p>One of the parties may recede from the promises, to wit, “he who has given the consent, by forfeiting it. And-he who has received it by returning the double.”</p> <p>This is precisely what has been done by the one who proposed to sell.</p> <p>(Syllabus, by the Court.)</p>

<p>1. Courts — Supreme Court — Jurisdiction.</p> <p>The Supreme Court has jurisdiction of all suits “involving homestead exemptions,” whether the issues be raised by the debtor or by Ms creditors.</p> <p>2. Homestead — Waiver.</p> <p>The debtor waives his homestead by removing with his family to another state, and as soon as the exemption ceases a creditor holding a special mortgage may foreclose.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Homestead, § 36.]</p> <p>3. Mechanics’ Liens — Homesteap.</p> <p>The lien of the materialman does not extend to the homestead as a whole, but is restricted to the building constructed or repaired and the lot, not exceeding one acre, on which the structure stands.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Mechanics’ Liens, § 16; Cent. Dig. vol. 25, Homestead, § 155.]</p> <p>4. Execution — Sale—Sufficiency oe Bid-Prior Liens.</p> <p>Where the materialman elects to seize and sell under execution a homestead embracing 20 acres of land, the sale will be null if the price of adjudication is less than the amount of a special mortgage covering the whole property. Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1.Witnesses — Residents of Another Parish.</p> <p>Whether witnesses shall be required to attend from another parish is a matter left entirely to the discretion of the judge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 9.]</p> <p>2.Same — Impeachment.</p> <p>A female witness cannot be impeached by an attack upon her chastity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1121.]</p> <p>3.Criminal Law — Evidence — Secondary Evidence.</p> <p>Parol evidence of the age of a person is not secondary evidence, and is not made so by the circumstances of there having been a registry made of the baptism of the person.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 880.]</p> <p>4. Criminal Law — Remarks of Counsel.</p> <p>Complaint being made of a remark of the district attorney not intended for the jury, the jury were called one by one and asked whether they had heard the remark, their attention being called to the time when, and the circumstances under which, the remark was made, and they answered they remembered the time and circumstances, but had not heard the remark, and thereupon the defendant asked that the objectionable remark be repeated to the jury and the specific question put to them whether they had heard it, held, the judge properly refused to allow the remark to be repeated.</p> <p>5. Same.</p> <p>Remarks made by the district attorney argumentatively furnish no ground for setting aside the verdict.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Burglary — .Entering Dwelling House with Intent to Commit Rape — Evidence.</p> <p>A person indicted for violation of section 854 of the Revised Statutes may be found guilty thereof although he may have entered the main building without the intention of committing a felony, if, after being therein, it is established that he, with intent to commit a felony, entered into one of the rooms of the building for that purpose. Each room of the building is the “dwelling house” of the particular occupants, within the meaning of the law. People v. Bush, 3 Parker, Cr. R. (N. X.) 556; Mason v. People, 26 N. X. 200; 1 Hale, P. C. 556.</p> <p>[Ed. Note. — For oases in point, see Cent. Dig. vol. 8, Burglary, § 15.]</p> <p>2. Criminal Law — Appeal—Review.</p> <p>The Supreme Court will not on appeal enlarge the complaints urged by appellant in the trial court.-</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. voi. 15, Criminal Daw, § 2619.]</p> <p>3. Same — Instructions.</p> <p>Special charges asked in a criminal case to be given to the jury are properly refused when they are covered by the general charge given by the court itself.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2011.]</p> <p>4. Same.</p> <p>Complaints against the charge as given by reason of insufficiency of explanation to the jury of the ingredients of the crime charged, should be called to the attention of the court by direct objection thereto, and not presented in a special charge misleading Ae court as to its scope and object. The special charge in this instance gave no more information to the jury than the court’s own charge, and the refusal to give it worked no injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, 4 2023.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Mines and Minerals — Lease—Indivisibility.</p> <p>Where the obligation of one party to a contract is indivisible, the corresponding obligation of the other party is necessarily so likewise. Thus the obligation of the lessor of a tract of land is indivisible among his heirs when the consideration of the lease is the completion of one well for the exploration of the land for oil and gas.</p> <p>2. Same — Action to Rescind.</p> <p>A petition which alleges that the defendant entered into a contract to complete a well within one year, and alleges that at the time of the filing of the suit, four years after the date of the contract, the defendant had not yet even made preparations for commencing the well, and which prays that the contract be avoided, sots forth an action for rescission of contract.</p> <p>3. Same — Consideration—Sufficiency.</p> <p>The civil law, differently from the common law, requires that the consideration of a contract be serious, and not out of all proportion with the value of the contract. Hence, in a contract of more than $100 in value, the traditional $1 consideration of a common-law contract is looked upon by the civil law as not being a serious consideration; that is to say, as not being any consideration at all. And the same may be said of $2 for the privilege of re-, tiring at any time from such a contract. Therefore, in an oil and gas lease, the obligation of the lessee to complete one well within one year will be held to be purely potestative, and as such to entail the nullity of the contract, where he at the same time reserves to himself the right to retire from the contract at any time on paying $2. and this notwithstanding that the consideration of the contract is stated to be $1 cash in hand paid, receipt whereof is acknowledged.</p> <p>4. Same.</p> <p>I-Ioussiere-Latreille Oil Go. v. Jennings-Heywood Oil Syndicate, 38 South. 932, 115 La. 107, distinguished..</p> <p>5. Same — Construction — Performance of Conditions — Penalties.</p> <p>Where, in an oil and gas lease, it is stipulated that the lessee shall complete one well within one year, “or pay at the rate of $4 quarterly, in advance, for each additional three-months such completion is delayed,” and it is-expressly declared that the contract is made “for the sole and exclusive purpose of mining and operating for oil and gas,” and it is otherwise manifest from the instrument as a whole-that the intention of the parties was not that the lessee should have the right to simply hold the land during the term of the lease — not exploring it himself for oil and gas, and not allowing any one else to do so — but that he should be bound to complete a well within one year, the obligation to pay $4 quarterly will be held to be a mere penal clause, and not an alternative obligation, and the making of said payments will be held not to be a fulfillment of the-principal contract, in whole or in part, but merely the payment of liquidated damages.</p> <p>6. Contracts — R'esoission.</p> <p>A contract to do is breached by the failure-of the obligor to perform within the time agreed upon, and it then becomesi optional with the obligee to claim the rescission of the contract or damages; and only in the latter event does-he need to put the obligor in default as a prerequisite to bringing suit.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1174-1180.]</p> <p>7. Mines and Minerals — Lease—Rescission.</p> <p>In a suit to rescind a contract to do, the court may, according to the circumstances of the case, grant the obligor further time in which to perform. Further time is refused in this case because in a mineral contract time is always more or less of the essence, and because the obligor offers no excuse for having allowed four years to elapse without any effort on his part to fulfill his contract.</p> <p>8. Contracts — Rescission—Return of Payments.</p> <p>Payments made by way of liquidated damages for delay in the performance of a contract are not required to be returned in a suit for the rescission of the contract because of nonperformance.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 1186.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second. Judicial District Court, Parish of Webster; Richard Cleveland Drew, Judge.</p> <p>Jack Sims was convicted of robbery, and he appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasien; Edmund Dennis Miller, Judge.</p> <p>Joseph Rugero was convicted of manslaughter, and appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; George Kent Favrot, Judge.</p> <p>Noah Griggsby was convicted of murder, and appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Action by Lillian Bankston and others against the Owl Bayou Cypress Company and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of East Feliciana; Joseph Lindsay Colson, Judge.</p> <p>Action by Florence Hays and others against Isidor Mayer and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Municipal Corporations — Firemen — Pensions — Persons Entitled.</p> <p>Act No. 43, p. 51, of 1902, created the board of trustees of the fireman’s pension and relief fund, and designated disabled firemen and their widows and children as the parties entitled to pensions from the pension fund. The twenty-third section of the act declared that it should take effect immediately after its promulgation, but provided that no pension should bo withdrawn therefrom until the sum of $20,-000 should be to its credit. The third section declared that the board of trustees should have the exclusive control and management of the fund, and make all needful rules and regulations for its government in the discharge of its duties, and should hear and decide all applications for relief or pensions under the act, and its decisions should be final and conclusive, and not subject to review, except by the board. The board rejected the application of the relatrix on the ground that the only widows entitled to pensions were those whose husbands had died after the fund should have had $20,000 standing to its credit, and in the Supreme Court maintained that its decision to that effect was final, and not subject to review by the courts.</p> <p>Held, the board was in error in both respects. The law itself fixed the class of persons entitled to relief from the fund, and did not leave the determination of that question to the board. No power was given to it to make changes in that respect.</p> <p>The right was, however, granted it to decide whether, as a matter of fact, the parties applying for relief had brought themselves into the elass provided under the terms and conditions fixed by the statute. The object of the statute was not to confine the class of persons entitled to relief to widows whose husbands should die after the fund should reach $20,000, but to prohibit the payment of the pensions until after the fund had reached that sum. If the board had any discretion as to the action it was primarily authorized to take, its action after it had once exercised its discretion, as to the questions of law involved was open to review. State ex rel. Construction Co. v. O’Kelly, 18 South. 757, 48 La. Ann. 33.</p> <p>On Rehearing.</p> <p>2. Mandamus — Pension Board — Exercise oe Judgment.</p> <p>Mandamus will not lie to review or reverse the decision of a pension board on an application for a pension, as such a decision necessarily involves the exercise of judgment on the law and facts of the case. Moreover, Act 43, p. 51, of 1902. specially provides that the decision of the defendant board shall be final and conclusive. and shall not be reviewed or reversed, except by the board itself.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 33, Mandamus, § 134.]</p> <p>Nicholls, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>W. R. Barrett and others were convicted of manslaughter, and appeal.</p>

Action by Jerry Godfrey against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. The plat referred to in the opinion is given on the opposite page.