Volume 118 — Louisiana Reports

<p>1. Carriers — Injury to Passenger — Burden oe Prgoe.</p> <p>The burden of proof is on the carrier to show why the contract of safe carriage was not fulfilled. Thus, where a passenger fell from' the platform of. a street ear and was killed, in consequence of the gate not being securely fastened, the question being as to whether the gate had been insecurely latched or was unlatched by the passenger himself, the burden of proof lies on the car company.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1283, 1290.]</p> <p>2. Evidence — Demonstrative Evidence.</p> <p>AVhcn a question arises as to the working of a mechanical device, for instance, as to whether it was possible for a certain link to stay insecurely on a certain knob, the safer plan is to produce the device itself in court and demonstrate its operation.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. voí. 20, Evidence, §§ 679, 680.]</p> <p>(Syllabus by the Court.)</p>

<p>Masteb and Servant — Employment — Unlawful Discharge.</p> <p>A person who is employed as manager of a dairy at a salary and for a term fixed, and who is discharged without good reason, is entitled to-recover the full amount of such salary up to the expiration of the term agreed on.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 50-53, 119, 120.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Appeai>-Record.</p> <p>The testimony taken in a criminal case, though copied in the transcript, will not be considered, if not annexed to and made part of a bill of exception.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2803, 2804.]</p> <p>2. Same — Bill op Exceptions.</p> <p>A note found in the body of such testimony to the effect that certain questions asked had been objected to, and the objections thereto sustained, and a bill was reserved, does not take the place of a bill of exceptions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 15, Criminal Law, §§ 2803, 2804.]</p> <p>(Syllabus by the Court.)</p>

Tammany; Thomas-Moore Burns, Judge. Application by the state, on the relation of August Heitkamp and others, for writ of mandamus to Joseph B, Lancaster, district attorney. Judgment for plaintiffs, and defendant appeals.

Action by Yowell & Williams against Norman Walker. Judgment for plaintiff was reversed by the Court of Appeal, and J. G-. W. Yowell applies for certiorari or writ of review.

<p>1. Master and Servant — Injury to Servant-Condition oe Machine.</p> <p>In this suit for damages, the machinery was in good order. The mangle, an ironing machine, at which plaintiff was at work when she was injured, was new.</p> <p>2. Same.</p> <p>The machinery did not wabble. It rested on a heavy, solid foundation, and had all the appliances necessary. It was a high-priced machine, one of the best in the market.</p> <p>3. Same — Notice of Danger — Warning.</p> <p>Its fender roller, made for the-purpose and properly adjusted, was in itself a warning. Besides, there was some notice given by the foreman.</p> <p>4. Same — Evidence—No Defect Shown or Fault Committed.</p> <p>Where machinery is of an approved make, in good condition, runs satisfactorily, and notice is given of danger, liability for personal injury cannot be found. Damages will only be assessed if it be shown that there was defect in the machinery or somebody at fault.</p> <p>Under the facts and circumstances of this case, defendant cannot be held liable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig', vol. 34, Master and Servant, § 550.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Mayor’s Court of Town of Ruston; J. L. Bond, Judge,</p> <p>Action by the town of Ruston against Monroe Fountain. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Execution — Levy—Injunction.</p> <p>Thompson & Co., judgment creditors of 'Thomas W. Hurst, seized certain real estate •as belonging to him which was in the possession of the wife and children of Hurst, under a donation to them by his mother. The donees •enjoined the sale. The district court perpetuated the injunction. That judgment is affirmed.</p> <p>2. Gift — Validity—Possession.</p> <p>The donees were living, at the time of the donation, with the donor, and possession followed the title. The son had no interest in the property, and no rights to urge against the •donation. He had received from his mother more than his share in the mother’s succession, and there was no legal obstacle standing in the way of his mother giving the property to whom she pleased. No one having a legal interest to attack the donation has done so, and, until successfully attacked by parties having a legal interest so to do, it should remain undisturbed. The debt due to the seizing creditor had its origin long after the donation, and long-after the opening of the succession of the donor.</p> <p>3.Husband and Wife — Community Property-Donation to Wife.</p> <p>A donation, made specially and separately to the wife, does not fall into the community. The provisions of article 2402 of the Civil Code do not apply to such a case. Legal presumptions do not extend from the special cases provided for to others not enumerated. The property in this case was not purchased, nor was the donation made jointly to the husband and the wife.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26. Husband and Wife, § 893.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Albertina Scheurrmann, widow of John F. Kern, against Lucas Yaccaro. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from City Court of Baton. Rouge; Sambola Jones, Judge.</p> <p>Henry J. Butler was convicted of violating an ordinance of the city of Baton Rouge, and appeals.</p>

<p>1.Municipal Corporations — Obstructions in Street — Injury to Pedestrian.</p> <p>Where, íd repairing a street, a contractor places upon the crossing a barricade so weather-stained as to be inconspicuous at .night, and fails to provide a red lantern as required by city ordinance, and the barricade, either from its rickety condition or from being run against by passers who do not see it, is frequently upset and lying flat on the pavement, where it serves no useful purpose, but is dangerous to travelers on the street, held, that the obstruction being on the street is the result of the negligence of the contractor, entailing upon him responsibility for the injury to a person who in the night is tripped up by it.</p> <p>[Ed: Note. — Eor cases in point, see Cent. Dig. vol. 36. Municipal Corporations, §§ 1688, 1689.]</p> <p>2. Same — Rights op Pedestrian.</p> <p>A pedestrian is not; confined to the regular crossing, but may walk upon any part of the street. He may traverse it diagonally.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1681.]</p> <p>3. Same — Duty op Pedestrian.</p> <p>All that is required of a pedestrian upon the street is ordinary care, and this does not necessitate his looking constantly where he treads. He may run to catch a car, and when doing so, and about to cross an intervening' car track, upon which an electric car may be coming at any time, he may without negligence divide his attention between the car he is bent on catching and the intervening car track. He is not bound to be looking constantly at his feet. He has the right to assume that the roadway is safe for travel.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1673, 1678.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Vendor and Purchaser — Rescission oe Sale — Lesion Beyond Moiety.</p> <p>This is a suit for rescission of a sale on the ground of lesion beyond moiety. The evidence does not sustain the attack.</p> <p>2. Estoppei>-By Deed — Parol Evidence.</p> <p>Plaintiff’s mother, holding the “legal title” to certain property, transferred the same to her own mother by authentic act in the form of a sale. The plaintiff, as heir of his mother, cannot ignore, on the ground that it was an absolute nullity, an act by which, as apparent owner, she took the legal title out of herself and placed it in another. The latter, when attacked, is authorized, in aid of the legal title so conveyed, to introduce parol evidence to ■show the actual facts.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 19, Estoppel, § 67; vol. 20, Evidence, § 1809.]</p> <p>(Syllabus by the Court.)</p>

Action by J. W. Brown and. others against the Louisiana & Northwest Railroad Company. Judgment for defendant was reversed in the Court of Appeal, and defendant applies-for certiorari or writ of review.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge ad hoc.</p> <p>Action by Thomas Bartley against Yalery Sallier and others. Judgment for defendants, and plaintiff appeals.</p>

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

Action by the state, on the relation of Morris R. Stewart, acting district attorney,. against David J. Reid. Judgment for defendant, and plaintiff appeals.

<p>1. Municipal Corporations — Ordinances— Police Regulation.</p> <p>Plaintiff’s charter contains the grant of power to regulate by general ordinance the use of sidewalks, streets, and public ways, and to keep the same free from obstructions.</p> <p>2. Same — Hucksters and Peddlers.</p> <p>An ordinance, reasonable in terms, may require hucksters and peddlers, who sell small articles of merchandise of limited value, such as cakes and candies, in the streets and other public places, not to loiter and be in the way.</p> <p>3. Same — Reasonableness oe Ordinance.</p> <p>All who carry on business in the public streets can be required to carry on their business in conformity with the rules of “propriety, good neighborhood, and good manners.” Blackstone.</p> <p>An ordinance to that end relating to a class is neither unreasonable nor discriminative.</p> <p>4. Same — Ordinance Not Prejudicial to Trade.</p> <p>Reasonably enforced, the ordinance is an incentive to industry and not in restraint of trade.</p> <p>5. Same — Enforcement.</p> <p>The matter of the manner of its enforcement is not before the court.</p> <p>6. Same — Ordinance Legal.</p> <p>It is not unconstitutional.</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 manslaughter, and appeals.</p>

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

<p>1. Larceny — Evidence.</p> <p>Upon a trial for larceny, it is competent to prove that a letter, written by the accused, was opened out of his presence and found to contain property answering the description of that charged to have been stolen by him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 144-146.]</p> <p>2. Criminal Law — Harmless Eeeoe.</p> <p>When a witness for the state gives an answer which is unexpected and uncalled for by the question propounded to him, in that it embraces a negative statement by a third person, which cannot, however, operate to the prejudice of the accused, and which the jury are instructed to disregard, the conviction will not be set aside.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3129-3134.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas Moore Burns, Judge.</p> <p>Action by Maud Jenkins against Eugene Maier. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio. Couvillon, Judge.</p> <p>Action by Charles H. Bernard against Sea-born I-I. Kelley. Judgment for defendant, and plaintiff appeals.</p>

Action by the police jury of the parish of Tangipahoa against the town of Ponchatoula. Judgment for plaintiff, and defendant appeals.

<p>Courts — Supreme Court — Jurisdiction.</p> <p>In a suit for a license, where the defense is that the statute levying the license does not apply to defendant’s business, the legality of a tax is involved, and the Supreme Court has jurisdiction, irrespective of amount.</p> <p>I'Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 616.]</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law — Appeal—Review.</p> <p>Where the record discloses no bill of exception, no motion in arrest, no assignment of errors, and an inspection of the record shows no reversible error in the proceedings, the judgment will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>Ap>peal from First Ward Justice Court, Parish of Livingston; S. G. Peak, Judge.</p> <p>Action by C. A. Arnold, tax collector, against George W. Jones. Judgment for defendant, and plaintiff appeals.</p>

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

Action by Edmond Fontenette against Lazard Kling. Judgment for defendant, and plaintiff appeals.

<p>1. Insolvency — Rights oe Insolvent — Choice of Syndic.</p> <p>An insolvent, who makes a surrender of his property in insolvency, surrenders it to his creditors for administration by them for their own use and benefit through the court. Any interest which he might have in the property and in its administration is subordinated to the paramount rights of the creditors. He reserves no right (and the law accords him none) in the selection or choice of a syndic. Questions on that subject concern the creditors alone.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 28, Insolvency, §§ 56-60.]</p> <p>2. Same — Appointment of Successor to Syndic — Appeal—Parties Entitled.</p> <p>The definitive syndic of Edward Conery, Jr., first elected, having been removed, a meeting of creditors was held for the purpose of selecting his successor. Three persons contested for the position. The district court having declared one of them to have been duly elected, the other two appealed to the Supreme Court. On appeal the court reversed the judgment, declaring that there had been no election, and remanded the cause, with orders to select a syndic according to law. On the return of the case the parties who had contested the election applied as creditors to be appointed syndic. The court rejected both applications and appointed the sheriff syndic, under section 1810, Rev. St., and both appealed. Their appeals were both dismissed, and not renewed during the year for' a devolutive appeal. The insolvent having been' interdicted after his insolvency, his curator obtained a devolutive appeal from the judgment appointing the sheriff as syndic, and on his prayer the parties whose appeals had been dismissed were cited on the appeal of the curator. Held, that the curator had no legal standing to question the judgment appealed from, he could not champion the rights of the parties whose appeals had been dismissed, and they themselves had exhausted their right to question the judgment appealed from.</p> <p>(Syllabus by the Court.)</p>

<p>Action by Annie H. Hickey against J. Franklin Smith. Judgment for plaintiff was reversed by the Court of Appeal, and she applies for certiorari or writ of review.</p>

<p>Appeal from First Judicial District- Court, Parish) of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Robert Sanders and wife against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiffs appeal.</p>

Action by John M. Cooper and N. S. Wisenhurst against the Jennings Refining Company, in which John D. Bell intervened as third opponent. From the judgment rendered plaintiffs appeal.

<p>1'. Appeal — Review—Ageeed Statement of Facts.</p> <p>Where the causé was submitted on an agreed statement of facts, no point of law can be examined which does not arise from the facts stated, nor can the allegation of any fact not found in such statement receive attention.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3344, 3345.]</p> <p>2. Homestead — Exemptions.</p> <p>The husband claiming a homestead exemption under article 244 of the Constitution of 1898 is not required as a condition precedent to prove that his wife does not own property exceeding $2,000 in value. Gamier v. Sheriff, 2 South. 797, 39 La. Ann. 884, reaffirmed.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 25, Homestead, § 15.]</p> <p>3. Exemptions — Construction oe Statute.</p> <p>Exemption laws must be construed with reference to the condition of things existing at the date of the seizure.</p> <p>4. Homestead — Residence.</p> <p>A plaintiff, having a wife and three minor children, is entitled to the homestead exemption, although they are not living with him at the date of the seizure and may have been earning a support for themselves.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Homestead, §§ 35, 309.]</p> <p>5. Appeal — Review.</p> <p>Where the plaintiff claimed that certain personal property was exempt, and his ownership and possession at the date of the seizure are admitted by the statement of facts, the contention that he was not in actual possession at the time will not be considered.</p> <p>6. Homestead — Loss oe Right.</p> <p>The imprisonment of the plaintiff in the jail or penitentiary did not affect his right to the exemption claimed, which under the law was not so much for his benefit as for that of his wife and children,</p> <p>7. Appeal — Amendment oe Judgment.</p> <p>A judgment will not be amended, as between plaintiff and an intervener, co-appellees in the same suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4414.]</p> <p>(Syllabus by the Court.)</p>

<p>Sale — Action eob Pbice — Pleading and Peooe,</p> <p>There is no legal identity between an alleged contract of sale, accompanied with delivery, made on September 26, 1904, and a conditional agreement of sale made on July 26, 1904, and the variance is fatal.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Clay Elliott, Judge.</p> <p>Emile Huff was convicted of manslaughter, and appeals.</p>

Action by G. E. Walker against Leopold Levy; J. B. Atkins, warrantor. Judgment for defendant was reversed by the Court of Appeal, and Leopold Levy applies for certiorari or writ of review.

In the matter of the succession of Malvina 5. Weincke, deceased. Joseph H. Moss filed petition for administration, which Madora Farquhar and others opposed. From a judgment for opponents, applicant- appeals.

<p>Taxation — Inheritance Tax.</p> <p>The surviving spouse does not acquire, in usufruct, the estate of the deceased spouse by inheritance, and hence the right of usufruct in such case is not subject to the tax imposed on inheritances.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John Bachman Lee, Judge. ,</p> <p>Action by W. C. Lenehan against the Gulf Land & Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by John M. Parker & Co. against Ceran R. Guillot and others. From the judgment, all parties appeal.</p>

Action by the New Orleans Baseball & Amusement Company, Limited, against the city of New Orleans. Judgment for plaintiff. Motion for new trial was denied, and defendant applies for writ of prohibition.

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>Action by John E. Hewitt against W. W. Williams and others, liquidating commissioners of J. E. Hewitt & Co. The New Orleans Acid & Fertilizer Company intervened. Judgment for plaintiff, and defendants and intervener appeal.</p>

In the matter of the receivership of the Dugdamonia Shingle & Lumber Company, Limited. To the receiver’s account the New Orleans Railway & Mill Supply Company filed opposition, and from the judgment appealed.

<p>On Motion to Dismiss.</p> <p>Appeal from Twenty-Fifth Judicial District Court, Parish of St. Helena; Clay Elliott, Judge.</p> <p>George Smith was convicted of carrying concealed weapons, and appeals.</p>

<p>1. Weapons — Carrying Concealed Weapons —Statutes—Repeal.</p> <p>Act No. 43, p. 58, of 1906, denouncing the offense of carrying concealed weapons, repealed section 9, Act No. 107, p. 163, of 1902, grading the same offense and prescribing penalties therefor. State v. George Smith (No. 16,355) 42 South. 791, ante, p. 248, reaffirmed.</p> <p>2. Same — Misdemeanoks—Grading Punishment.</p> <p>The failure of the Legislature of 1902 to regrade the offense of carrying concealed weapons, pursuant to article 155 of the Constitution, did not render Act No. 43, p. 58, of 1906, unconstitutional.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Luther Egbert Hall, Judge.</p> <p>Action by William T. Hardie & Co. against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

Action by the Jennings-Heywood Oil Syndicate against the Houssiere-Datreille Oil Company and others. Rule of sheriff to tax costs and fees. From the judgment defendant in rule appeals.

<p>1. Husband and Wife — Notes of Wife-Debt of Husband.</p> <p>Where, as an incident to an agreement made by him, the husband was to buy, on a credit, at par, certain commercial stock, worth a great deal less than par, and give his wife’s security for same, and, on the parties discovering that the wife could not legally bind herself for her husband’s debt, the sale was made to the wife, and her notes were executed for the price, secured by mortgage on her property, held, that the substitution of the wife as purchaser was a mere disguise of the real transaction, and that the notes were in reality for a debt of the husband, and in consequence null. It makes no difference that the wife was separate in property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 629, 630.]</p> <p>2. Same — Action by Wife — Judgment Against Husband.</p> <p>In the absence of the husband from the suit, judgment cannot be rendered against him for the debt, nor any inquiry made into the question of title as between him and his wife.</p> <p>(Syllabus'by the Court.)</p>

<p>1. Eminent Domain — Railroad Right oe Wat — Selection oe Route.</p> <p>Where, in a suit to expropriate property for the building of a railroad, the evidence fails to disclose that the plaintiff, in selecting its route, has been actuated by any wanton purpose to inflict injury, and, on the other hand, makes it clear that the route has been selected in good faith, the right of the expropriating corporation to select its route will not be subjected to judicial control.</p> <p>2. Same — Compensation — Valuation by Jury.</p> <p>A jury composed of farmers, necessarily owners of real estate, and probably of farms and plantations, is particularly well qualified to deal with the question of the compensation which should be awarded to the owner for the expropriation of a right of way for a railroad through; his plantation, and will not lightly be presumed to have done such owner an injustice in estimating the value of the property taken or the damage inflicted. On the other hand, whilst the assessment of values and damages in such cases should not be exorbitant, the citizen whose property is taken, without his consent, for a purpose, which, though quasi public, is in the main predicated upon considerations of private profit, ought to be paid full value.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 683, 685.] (Syllabus by the Court.)</p>

<p>1. Judges — Absence — Substitution — Powers.</p> <p>The judges of the civil district court of the parish of (Means may sit in each other’s places in each other’s absence, and the judge so sitting-may grant an appeal from a judgment rendered by the absent judge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Judges, §§ 140-152.]</p> <p>2. Appeal — Procedube — Validity — Constitutional Law.</p> <p>The question, of whether an appeal has been brought up, stands before that of whether the court has jurisdiction of the appeal. Hence, in every case, whether within. or without its competency, the appellate court has jurisdiction to inquire whether the appeal has been brought up, or, in other words, whether it has been “properly brought up”; and Act No. 56, p. 135, of 1904, by requiring- the court to make such inquiry in cases of which it has not jurisdiction, with a view to deciding whether to dismiss the appeal or to transfer it to another, court, does not confer a jurisdiction not already possessed, and is not unconstitutional as attempting to do so.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3111, 3114.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Luther Egbert Hall, Judge.</p> <p>J. M. Johnston was convicted of manslaughter, and appeals.</p>

In the matter of the succession of Carmelite Desina, wife of F. R. Kurucar. F. R. Kurucar, on commitment for contempt, applies for certiorari, prohibition, and habeas corpus.

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; Wilbur Fisk Black-man, Judge.</p> <p>Action by the Little River Lumber Company, Limited, against A. B. Thompson and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Thirteenth Judicial District ■Court, Parish of Rapides; John Bachman Lee, Special Judge.</p> <p>Action by E. M. Wells and others against W. F. Blackman. Judgment for defendant, and plaintiffs appeal.</p>

<p>Eminent Domain — Expropriation — Value oe Property.</p> <p>In an expropriation under the eminent domain act, the value of the property must be estimated as of the time of the taking, and not as of the time before the public improvement for the purpose of which the property is being taken was proposed, deducting, however, the increment in value resulting from the proposed improvement. Article 2633, Civ. Code, has no other meaning than this.</p> <p>[Ed. Note. — Eor cases'in point, see Cent. Dig. vol. IS, Eminent Domain, §§ 332-344.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Sales — Contea ct — Misrepresentations or Selleb — Liabilities.</p> <p>Where a contract is entered into by which 250.000 barrels of oil are sold, and the seller binds himself to make no additional contracts until the 250,000 barrels are delivered, and it is stated in the contract that the seller has 135.000 barrels in storage, of which 90,000 barrels have been already contracted for, and the contract, from its terms and from the conduct of the parties, is interpreted to have been for so much of the output of certain wells operated by the seller as, with the oil in storage, would make 250,000 barrels, and the wells run dry before having furnished s.n amount sufficient to make up the number of barrels called for by the contract, and it develops that it was not true that there was any oil in storage beyond the quantity already contracted for — held, that the seller’s statement of his having the quantity of oil in storage was a representation by which he is bound, and that he must account to the purchaser for said oil as if same had in fact been on hand.</p> <p>TEd. Note. — For cases in point, see Cent Dig. voi. 43, Sales, §§ 189-196.]</p> <p>2. Same — Construction.</p> <p>In the absence of any agreement to the contrary, either express or implied, the sale of the output of an oil well will be taken to mean the total output, and the seller cannot divert a certain proportion of the output for the remuneration of the furnisher of air pressure for bringing up the oil; it not appearing that such air pressure could not have been secured by means of money.</p> <p>(Syllabus by the Court.)</p>

<p>1. Partition — Drawing of Lots — Necessity.</p> <p>The drawing- of the lots is an essential formality in a judicial partition in which a minor is interested; and the failure to observe this formality renders the partition merely provisional.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 38, Partition, § 281.]</p> <p>2. Same — Provisional Partition.</p> <p>The effect of a provisional partition is to give to the parties the right to the fruits of the things which have fallen to them respectively.</p> <p>3. Same — Definitive Partition — Prescription.</p> <p>Where a partition is thus provisional, because of a minor having been interested and of the forms of law not having been complied with, the action of the minor for a definitive partition is prescribed by either five or ten years from emancipation or majority.</p> <p>(Syllabus by the Court.)</p>

Action by the mayor and board of trustees of the city of New Iberia against Victor Erath. Judgment for plaintiffs, and defendant appeals.

<p>Sales — Passing of Title — Failure to Pat Price — Abandonment of Contract.</p> <p>The sale of a specific lot of rice, at a fixed price, payable within 10 days, to be shipped on | order of buyer, is not a promise of sale, but a completed sale, by which the ownership passes to the buyer; and the failure of the buyer to pay within 10 days will not have the effect of setting aside the sale, or of authorizing the seller to set it aside without the consent of the buyer. Nor will the latter’s refusal to honor a.sight draft for the price have the effect, even after the 10 days, if so qualified as to preclude the idea of an abandonment of the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 264.1</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 T. F. Weaver against T. E. Schumpert. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Mortgages — Vente a Ríméríd — Delivery oe Possession.</p> <p>An act purporting to be a vente & réméré, but made for an inadequate consideration, and unaccompanied by delivery of possession, will be treated, in the absence of sufficient countervailing evidence, as a contract by which the thing nominally sold stands as security, and nothing more.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 35, Mortgages, §§ 60-94.]</p> <p>2. Same — Payment — Future Advances.</p> <p>Where the payment called for by an act purporting to be a vente il rgmSré is made within the time stipulated, the effect of the act cannot be so extended, by verbal agreement, as to protect a loan subsequently made by the vendee to the owner of the property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 237-241.]</p> <p>3. Same — Redemption — Liability eor Taxes.</p> <p>Where the amount called for by an act purporting to be a vente :1 rSméré is paid within the time stipulated, and the vendee named in the instrument thereafter sells the property, the owner, who has thus redeemed it, may recover the price, though the vendee is entitled to reimbursement of the taxes paid by him, if the owner has remained in possession.</p> <p>(Syllabus by the Court.)</p>

<p>Descent and Distribution — Advances — Collation.</p> <p>Where a mother makes a donation to on« of her children, declaring that she does so “to equalize the advance in money and otherwise which she had made to her other children,” the property is not subject to collation, even though as a matter of fact no advance in money or otherwise had been made to the other heirs.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 16, Descent and Distribution, §§ 416-420.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupée; CalviD Kendrick Schwing, Judge.</p> <p>Action by Francois Decuir against Henrietta K. Loeb and husband. Judgment for defendants, and plaintiff appeals.</p>

Action by Fox & Jewell against Barksdale & Sledd. Judgment for plaintiff for less than the amount demanded, and both parties appeal.

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; Wilbur Disk Black-man, Judge.</p> <p>Action by W. R. King against William P. Guynes and others.- Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; Wilbur Fisk Black-man, Judge.</p> <p>Action by Wash B. Adams against William P. Guynes and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Jury — Jurors on Voir Dike.</p> <p>The jurors excluded on their examination on their voir dire were related to the accused, or the examination showed that on the score of friendship or other similar influence it was advisable to refuse to accept them as jurors.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, §§ 413-415, 432.]</p> <p>2. Same — Bias.</p> <p>The mind of the court, and not of the juror, must be satisfied that the challenged juror is free from bias.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, § 594.]</p> <p>3. Same — Peremptory Challenges.</p> <p>Six peremptory- challenges are allowed to the state, and 12 to each of the defendants, where there are several on trial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, §§ 610-614.]</p> <p>4. Criminal Law — Opinion Evidence — Witness Testifying as to Cause of Death.</p> <p>A nonexpert witness can be examined regarding the cause of death; it being evident that the cause was one which was evident to an ordinary person.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1052.]</p> <p>5. Same — Absent Witness.</p> <p>Testimony admissible which accounts for the absence of a witness whose testimony was material.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 802, 802%.]</p> <p>6. Witnesses — Examination by Court — Question by Court.</p> <p>The court has the right, in directing the course of the proceedings, to propound questions without regard to objections.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 852-857.]</p> <p>7. Same — Examination.</p> <p>The court has it in its power to prevent useless delays in the course of the trial and the course of examination that does not tend to throw light on the issues of the case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §-§ 789, 792-796.]</p> <p>8. Witnesses — Cross-Examination.</p> <p>The witness may be examined in regard to a course of conduct on his part that would have a tendency to discredit his testimony.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1135-1142.]</p> <p>9. Criminal Law — Statement.</p> <p>That which a witness has said ordinarily can be much better proven by an examination' of the person by whom it was said.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig., vol. 14, Criminal Law, § 973.]</p> <p>10. Same — Instructions Not Applicable.</p> <p>The court is not obliged to instruct the-jury regarding law not applicable to the case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1979.]</p> <p>11. Same — Other Special Charge Properly Refused.</p> <p>All points decided correctly, except the eighth, as above numbered.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig.. vol. 14, Criminal Law, § 2011.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Fraudulent Conveyances — Criminal Liability oe Purchaser — Sale in Block.</p> <p>Act No. 94, p. 137, of 1896, imposing a penalty of fine and imprisonment for “willfully and knowingly purchasing, in block, goods, wares and merchandise, unpaid for by the seller, without exacting from said seller a written statement, sworn to, showing that said goods, wares or merchandise have been paid for,” has no application to the case of a wife who receives such goods, etc., by dation en imiement from her husband in restitution of her paraphernal property, received and alienated by him.</p> <p>2. Same — Surrender of Property to Wife.</p> <p>A man may lawfully surrender to his creditors in general all the property that he has, and, unless the vendor of particular goods has preserved his privilege for the price, the proceeds of such goods will be distributed among the creditors in general; and whatever he may surrender to his creditors in general he may give to his wife, whom the law prefers to all other creditors, in satisfaction of her lawful claim against him, from which it follows that, though the property so given be not paid for, the wife may acquire a perfect title thereto, unless such title be incumbered with the privilege of the vendor for the price.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 380, 381.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Appeal—Review—Harmless Error — Grand Jury — Validity — Drawing.</p> <p>Where a sufficient number are left on the venire of grand jurors to complete the panel, the defendant has no ground for complaining that because of one of the venire having been a minor and four others having been excluded by the judge, and one more having failed to attend, the grand jury was drawn from a venire of only 13.</p> <p>2. Same — Juey—Venires—Drawing—List.</p> <p>A defendant is presumed to know the law, and therefore is presumed to know that venires are drawn for the different weeks of the term, and not for the different days; and hence that a list served on him. headed, “Petit jury for Monday, Oct. 15, 1906,” means for the week beginning on that day.</p> <p>3. Criminal Law — Trial—Remarks op Prosecuting Attorney.</p> <p>One of the witnesses for the prosecution refusing to repeat an important statement, because, as he said, he had already repeated it several times, there was no impropriety in the district attorney telling him, in the presence of the jury, that it was before the judge, and not before the jury, he bad repeated the statement. The remark was harmless; and, moreover, was merely by way of inducement to the stubborn witness.</p> <p>4. Same — Evidence.</p> <p>The conduct of the prisoner when an attempt was made to arrest him, shortly after the commission of the offense, was properly allowed to be proved to show intent.</p> <p>(Syllabus by the Court.)</p>

<p>1.Grand Jury — Member of Panel.</p> <p>The mere drawing of the name of a juror on the list of grand jurors does not constitute him a member of the panel when he is not present in court at the time and did not answer before the grand jury was duly impaneled and sworn.</p> <p>[Ed. Note. — Eor cases in point, see Gent Dig. vol. 24, Grand Jury, §§ 56-58.]</p> <p>2. Same — Quashing Venire.</p> <p>The mere fact that an incompetent person has been selected and summoned as a grand juror furnishes no ground for cjuashing the venire.</p> <p>[Ed. Note. — For eases in point, see Gent. Dig. vol. 24, Grand Jury, § 43.]</p> <p>3. Same — Setting Aside Incompetent.</p> <p>It is the duty of the trial judge to sot aside an incompetent person selected and summoned to serve as a grand juror.</p> <p>TEd. Note. — Eor cases in point, see Gent. Dig. vol. 24, Grand Jury, §§ 28, 29.]</p> <p>4. Jury — Excusing Members.</p> <p>In the absence of proof of fraud or wrong, the accused has no right to complain of the action of the judge in excusing jurors for sickness or other causes. Where the cause is not expressed, a sufficient canse will be presumed.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 24, Grand Jury, §§ 28, 29.]</p> <p>5. Criminal Law — Serving List of Jury.</p> <p>Where a list of the trial venire has been served on the accused, a trifling clerical error in the spelling of the name of one juror will not suffice to set aside the service.</p> <p>[Ed. Note. — Eor cases in point, see Gent. Dig. vol. 14, Criminal Law, § 1442.]</p> <p>6. Same — Remarks of Prosecuting Attorney.</p> <p>A comment of the district attorney in the course of his argument before the jury that it was unfortunate for the state that the wife of the accused could not testify is within the bounds of legitimate comment, wb°n warranted by the evidence from the standpoint of the prosecution. and, moreover, cannot be presumed to have worked any actual prejudice.</p> <p>[Ed. Note. — Eor cases in point,- see Cent. Dig. vol. 14, Criminal Law, §§ 1670, 1673.]</p> <p>7. Witnesses — Cross-Examination.</p> <p>A witness for the defense may be cross-examined on all matters brought out in his direct examination, and it is no objection that his answers may affect his credibility and character.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 50, Witnesses, §§ 031-948.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Louis Bingaman Claiborne, Judge.</p> <p>Action by the liquidators of the Joseph David Company against Berthelot Bros. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Sixteenth. Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Zenon Rideau was found guilty of manslaughter, and appeals.</p>

Action by J. Sully Martel and others against the Jennings-Heywood Oil Syndicate. Rule to show cause why motion for sheriff to approve bill of costs should not be granted. Judgment for plaintiff in rule, and defendants in rule appeal.

<p>Appeal from Fourth District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge,</p> <p>Action by the Arkansas Southern Railroad Company and others against J. H. Wilson, tax collector, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Parishes — Rights and Remedies of Taxpayers.</p> <p>Property holders and taxable inhabitants, complaining of no injury save such as is common to the community, but charging gross abuse of power, oppression, and fraud, have a stand-mg in court to restrain the alleged illegal and unwarranted expenditure, by a police jury, of the funds of the parish.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Counties, § 308.]</p> <p>2. Appeal — Review—Objections Waived.</p> <p>• An attack upon the constitutionality of Act No. 94, p. 117, of 1S98, comes too late when made for the first time in this court by an appellant who is before the court solely in virtue of an appeal authorized by said act.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error. §§ 1037. 1038.]</p> <p>3. Parishes — Police Juries — Courthouses— Review by Court.</p> <p>The obligation to provide good and sufficient courthouses for their respective parishes, with proper rooms for jurors, and of determining how the money of which they have the administration shall be expended, is imposed by law upon the police juries, not upon the courts; and for the judiciary to meddle in such matters, where, as in this case, allegations of gross abuse of power, oppression, and fraud are wholly unsupported by proof, would be for it to invade the domain of other departments of the government, in violation of the express prohibitions of the Constitution.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Counties, §§ 204, 221.]</p> <p>4. Same — Estimate of Expenditures.</p> <p>A police jury is not required (by Rev. St. § 2745. or any law) to make out and publish its estimates of expenditures within the same year that it levies taxes to meet such expenditures ; to the contrary, there are some reasons why such estimates should be made and published before the expiration of the preceding year.</p> <p>5. Same — “Estimated Excess of Revenues.”</p> <p>The expression “estimated excess of revenues,” in Act No. 32, p. 39, of 1902, is used in its ordinary sense, and it is a sufficient compliance with the provisions of that statute (to the effect that “no dedication of future revenues shall be made which, alone, or with other, prior, dedications in force, shall exceed the estimated excess of revenues,” etc.) that a police jury, in good faith, though not necessarily by ordinance, and not necessarily for publication. makes an estimate of the future revenues (predicated upon the rates of taxation and expenditure), which, with reasonable certainty, will show the prospective existence of the surplus appropriated or dedicated; and this, in any given case requiring it, the courts will presume to -have been done, unless there is proof to the contrary.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Counties, §§ 221. 300.]</p> <p>6. Same — Appropriations—Construction of Ordinance.</p> <p>The meaning of ordinances of a police jury is to be ascertained by construing their provisions together; hence, where one paragraph of a particular ordinance appropriates a lump sum for the building of a courthouse and succeeding paragraphs appropriate, for the •same purpose, specific amounts, with interest thereon, from the surplus revenues of successive years, and, by another ordinance, a certain proportion of the tax of such successive years' is dedicated to the principal and interest of the ■debt so provided for, it will be held that the intention is to make an appropriation to cover principal and interest, notwithstanding that the aggregate of the specific amounts so appropriated, with the interest, exceeds the lump sum first mentioned.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Counties, §§ 221, 300.]</p> <p>7. Same — Taxation—Limitation oe Amount.</p> <p>Act No. 64, p. 100, of 1906, in limiting taxation “for ordinary parochial purposes” to eight mills, has no application to taxes levied for school purposes, and a police jury may levy taxes for ordinary parochial purposes up to the limit so fixed, provided the aggregate rate, including the tax levied for school purposes, does not exceed the 10-mill limit, “for all purposes, whatsoever,” fixed by article 232 •of the Constitution.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Counties, § 303.]</p> <p>8. Same — Erection oe Courthouse — Ordinance.</p> <p>Where a parish tax is levied on all property subject to parochial taxation, the allegation, unsupported by proof, that the px-operty in a particular town is to be exempted, constitutes no ground for an attack upon an ordinance providing for the building of a courthouse and dedicating part of the parish tax therefor.</p> <p>9. Same — Contract—Review by Courts.</p> <p>Act No. 32, p. 39, of 1902, prescribing the conditions and limits upon, and within, which parishes and municipal corporations may incur debt and issue certificates therefor in excess of the revenues of the year in which such debt shall be incurred, leaves it to the police jury to determine, in any given case, what manner of contract shall be made, and how the same shall be worked out, and the courts will not undertake to control those bodies in the exercise of the discretion so vested in them, save on proof of fraud, oppression, or gross abuse of power.</p> <p>10. Statutes — Title oe Act — Amendment-Re-enactment.</p> <p>Act No. 32, p. 39, of 1902, does not contravene articles 3l and 32 of the Constitution, or either of them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 127. 171, 209.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Vendor and Purchaser — Remedies of Purchaser — Failure to Give Possession.</p> <p>Neither in a petitory action nor in action of boundary can the plaintiff call his vendor in warranty. Foote v. Pharr, 38 South. 885, 115 La. 35, reaffirmed.</p> <p>2. Same — Action for Damages.</p> <p>Where a part of the land sold is in the adversé possession of the defendant in a petitory action, or action of boundary, the plaintiff cannot-call in his own vendor for the purpose of condemning the latter to deliver possession of the land in controversy; but the right of action of the vendee against his vendor in such a case is limited to a claim for damages.</p> <p>(Syllabus by the Court.)</p>

<p>Executors and Administrators — Claims Against Estate.</p> <p>A suspicious claim against a succession will bo rejected, unless supported by very strong proof.</p> <p>USd. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 84l.]</p> <p>(Syllabus by the Court.)</p>

<p>Assignments — Unearned Salary of Public Officer.</p> <p>The assignment of the unearned part of his salary by a public officer is against public policy and void.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 4, Assignments, § 23.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Prescription — Railroad Right oe Way.</p> <p>Where the owner allows a railroad company to build a road upon his land and operate same for 20 years, he cannot reclaim the property free of the servitude, or interfere with the operation of the road.</p> <p>TEd. Note. — Eor cases in point, see Cent. Dig. vol. 33. Limitation of Actions, §§ 73-75; vol. 17, Easements, §§ 27-32; vol. 18, Eminent Domain, §§ 783-786.]</p> <p>2. Same — Personal Actions.</p> <p>Iiis right, if any he had, would resolve itself into an action for the recovery of the value of the land used and for damages to his adjacent land, in either case a personal action, barred by the prescription of 10 years.</p> <p>3. Eminent Domain — Recovery oe Damages —Rights to Vendee.</p> <p>Where a railroad company enters upon land with the consent or acquiescence of the owner, the right to recover the value of the land used, or to recover damages resulting from such entry, is a personal one, which does not pass to the vendee of the owner, unless it be so declared in terms.</p> <p>(Ed. Note. — Eor cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 407-416, 789.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District. Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by J. L. Kingsbury against Henry E. Gumbel. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by tbe state against tbe New Orleans Lighting Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve'King, Judge.</p> <p>Action by Joseph J, Russell against the Citizens’ lee Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twentieth District Court, Parish of Terrebonne; Louis Phillixope Caillouet, Judge.</p> <p>Action by Fanny B. Johnson against Maurice Levy and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by Francois E. Savoie against Théophile Guillory. Judgment for plaintiff, and defendant appeals.</p>

<p>Divorce — Evidence.</p> <p>Involves only facts.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chrétien, Judge.</p> <p>Louis Dueffechaux was convicted of carrying a concealed weapon, and appeals.</p>

<p>1. Evidence.</p> <p>A third person with interest may prove that title pleaded to oust him is simulated. Parol testimony is admissible to prove simulation. Gaidry v. Lyons, 29 La. Ann. 4.</p> <p>TEd. Note. — For eases in point, see Cent. Dig. vol. 20. Evidence, §§ 2005, 2007.]</p> <p>2. Petitory Action.</p> <p>Plaintiff traces her title to her father as her author. He acted in his own behalf. His daughter was a minor. He sold the property before she arrived at her majority, and it passed into the hands of a third person.</p> <p>3. Donation.</p> <p>There was no donation.</p> <p>4. Estoppel — Deeds.</p> <p>Third persons are not estopped by the recitals in a deed to which they are not parties.</p> <p>TEd. Note. — For eases in point, see Cent. Dig. vol. 19, Estoppel, § 61.]</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.]</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>

Riley Taylor and. others were charged with being neglected and delinquent children. Judgment for defendants, and the state, on the relation of James P. Parker, applies for certiorari and mandamus.

<p>Judge — Recusation—Time or Trial.</p> <p>The delay within which a recused case should be tried by the judge ad hoc begins to run from the date of the recusation of the judge a quo, and the case is “tried,” within the contemplation of the law (Act No. 40 of 1880, p. 39, § 5), although dismissed on exception of “no cause of action” filed after default, and although, on appeal, the judgment of dismissal being reversed, it is remanded to be further proceeded with.</p> <p>(Syllabus by the Court.)</p>

<p>1. Jury — Venire—Publication.*</p> <p>The venire of jurors for a special term need not be published.</p> <p>2. Criminal Law — Harmless Error.</p> <p>Ordinarily the act of a" witness for which the prosecution is not responsible will not vitiate a verdict, and ordinarily the admission of incompetent evidence is cured by striking-out the evidence and instructing- the jury not to consider it; but an exception must be made when the court believes that, notwithstanding the instructions of the court, the conviction of defendant may have been founded on the ex-) eluded evidence.</p> <p>3. Witness — Impeachment.</p> <p>The deceased having been killed in his house by a shot fired from the darkness outside, and the sole question being as to the identity of the assassin, and a witness for the state having testified that he had seen the accused concealed with a gun near the house just before the fatal shot was fired — it was competent for the defense to prove that said witness, while speaking of the murder on the night of its occurrence, had not mentioned the fact of his having seen defendant under the suspicious circumstances in question.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1247.]</p> <p>4. Same — Cross-Examination.</p> <p>It is not improper on cross-examination to ask a witness whether he realizes what will happen to him in another world if he testifies falsely, and whether he knows the nature of an oath and the penalty for false swearing.</p> <p>(Syllabus by the Court.)</p>

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

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Osborn H. Stark against William H. Howcott (The Globe Realty Company and others, interveners). Judgment for plaintiff, and defendants appeal.</p>

<p>Prescription — Suspension by Action — Defective Citation.</p> <p>Plaintiff filed in the district court a petition, in which he set out a cause of action against the town of Lafayette. He prayed, that it be cited, and that judgment be rendered in his favor against it. The district clerk copied the petition, and made out a citation, addressed to the mayor of the town of Lafayette which he handed to the sheriff, who served these papers on the mayor. An exception filed by the town, that it had not been cited, was sustained by the court. A citation addressed to the town of Lafayette was then made out, and placed in the hands of the sheriff, who served it on the mayor. The town then filed a plea of prescription, on the ground that prescription had in the meantime accrued. The court sustained the plea, and dismissed the suit. Held, the ruling was erroneous. Though the first citation was defective, the original service of the papers, as made upon the mayor, interrupted prescription on the claim.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 527-535.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Payment — Repetition.</p> <p>This was a suit for repetition of payment of amount claimed to have been paid in error.</p> <p>2. Same — Evidence.</p> <p>The error was not proven.</p> <p>8. Estoppej>-Acts of Parties.</p> <p>The claims of .all interested creditors and ■owners of the property about to be sold in foreclosure proceedings had been litigated, and judgement rendered. At the last moment oppositions to the sales were about to be filed. The parties agreed upon a compromise. It was consummated. The plaintiff in foreclosure, being the transferee of all the mortgage claims thereon, exercising his rights as a bidder on the property, beca1""' the adjudicatee and owner.</p> <p>Having effected his purpose in a legitimate manner of becoming the owner, having proposed to parties interested to become the owner of their claims, and they, in consequence, having abandoned all claims, the adjudicatee and owner is without right to reclaim what he has paid. He is estopped by conduct and by the effect of subsequent judicial proceedings.</p> <p>4. Same.</p> <p>As relates to the larger of the two amounts claimed.</p> <p>A large amount was due to the minors. Considerably less was accepted by their tutrix in payment of their claims. Had not compromise been effected, the sum would have remained due to these minors. At their majority they accepted the amount paid by the adjudicatee and vendee at sheriff’s sale. This was a large consideration of itself.</p> <p>Having, through the agency of the tutrix, obtained this claim, vendee received consideration sufficient to stand as a bar to his setting aside the compromise.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Action by the Opelousas, Gulf & Northeastern Railroad Company against George K. Bradford. Judgment for plaintiff. Defendant appeals.</p>

<p>Vendor and Purchaser — Rights of Vendee —Defective Title.</p> <p>A purchaser, who has been put in possession of the property bought and paid for by him, who has not been evicted or threatened with eviction, and who neither alleges nor proves the existence of an adverse, paramount title to any part of the property so purchased, has no right to annex other property belonging to the vendor, as the equivalent of a part of that included in his purchase, concerning the title to which he has doubts; nor can he, under such circumstances, obtain a reduction of the price paid.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 266, 360-363.]</p> <p>(Syllabus by the Court.)</p>

<p>Application by Octave Darby and others for writs of certiorari and prohibition against Albert Emmer. Denied.</p>

<p>1. Appeal — Appealable Interest — Dismissal.</p> <p>Where an attorney for a litigant moves, as such attorney, for an appeal from a judgment against his client, but alleges error to the prejudice of the “mover,” and prays that he (“mover”) be allowed an appeal, and the order, prepared by him, grants the appeal to the “mover,” and it is not pretended that such attorney has any appealable interest, the appeal will be dismissed.</p> <p>2. Same — Absence oe Parties.</p> <p>This court is obliged to notice, of its own motion, the absence of proper parties, since it has no authority to adjudicate the rights of persons who are not before it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3140.]</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 Charles A. Damonte against 'Oliver Patton. Judgment for defendant, and plaintiff appeals.</p>

Action by William L. McFarlain against the Jennings-Heywood Oil Syndicate and others. From a judgment in favor of defendants, plaintiff and defendant named appeal.

Paul, Judge. Action by the city of New Orleans against the board of liquidation of the city debt and others. Judgment for defendants, and plaintiff appeals.

<p>1. Embezzlement — What Constitutes.</p> <p>Embezzlement is not a common-law crime, but one created by a statute of Louisiana. In determining whether the acts charged to have been committed constitute embezzlement, the terms of the statute are controlling.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 18, Embezzlement, § 2.]</p> <p>2. Same.</p> <p>The term “embezzle” used in the statute is one which has a well-recognized and accepted common meaning. It is a broader term than “larceny,” but not exclusive of it. “Embezzling” is the wrongful and felonious appropriation to himself by a servant, employe of a civil corporation, or other person designated in the statute, of property intrusted to him by his employer.</p> <p>8. Same — Evidence,</p> <p>Under an indictment, which charges a defendant, in terms legally sufficient under the statute creating embezzlement, with the commission of acts which bring him within the grasp of the statute, the jury may find him guilty of embezzlement, though the acts charged to have been committed would be characterized legally as larceny, if not committed by him in violation of the fiduciary relations existing between himself and his employer. Violation of these fiduciary relations transforms his acts of wrongful and felonious appropriation from acts of larceny into acts of embezzlement under the statute.</p> <p>4. Indictment — Sufficiency — Statutory Crime.</p> <p>In charging a person in an indictment with a statutory crime, the use of the identical words of the statute is not sacramental. Any words may be used which will unequivocally convey the meaning of the statute, so that the defendant cannot be misled as to the charge he is to answer. He must be fully informed of the crime.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 289-294.]</p> <p>5. Same — “Wrongfully.”</p> <p>When there is a change in the phraseology, and a word not in the statute is substituted for one that is, and the word substituted is of more extensive significance than and includes the word of the statute, the indictment will be sufficient. The words “unlawfully,” “willfully,” “fraudulently,” and “feloniously” in the indictment include the word “wrongfully.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 291.]</p> <p>6. Criminal Law — Arrest of Judgment.</p> <p>Upon a motion in arrest of judgment, questions cannot be considered as to an alleged variance between the averments of the indictment and the testimony offered on the trial, or error in the admission of testimony, or that there was error in refusing a new trial on the ground that the verdict was contrary to the law and the evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2475, 2476.]</p> <p>7. Same — Instructions. ,</p> <p>When special charges are asked to be given to the jury, they must be such as are correct under the state of facts disclosed by the evidence. If they be correct only under a special state of facts, that state of facts must be shown to exist in the case on trial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1982 — 1985.]</p> <p>8. Embezzlement — Demand — Necessity of Proof-</p> <p>There are many cases of embezzlement where it is not necessary to prove that a demand has been made by the employer on his employe to comply with his fiduciary obligation, and there was a refusal by the servant to do so. When there is proof of wrongful misappropriation by the employé, and appropriation to his own use, there is no necessity for a demand.</p> <p>[Éd. Note. — For eases in point, see Cent Dig. vol. 18, Embezzlement, § 9.]</p> <p>9. Same — Return oe Property Embezzled.</p> <p>The fact that things or money which have been embezzled are afterwards returned does not purge the acts of embezzlement of their criminal character.</p> <p>[Ed. Note. — For eases in point, see Gent. Dig. vol. 18, Embezzlement, § 34.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Benjamin Henry Pavy, Judge ad hoc.</p> <p>Action by Paul Lisso and Bertrand Weil against P. O. C. Devillier. Judgment for defendant, and plaintiffs appeal.</p>

Landry. Action by Paul Lisso and others against Dejean S. Fontenot. Judgment for defendant was affirmed by the Court of Appeal, and Paul Lisso and others apply for certiorari or writ of review.

In the matter of the liquidation of J. H. Curlee & Co. On opposition to final account. From the judgment, the liquidator, Charles A. Dutherage, appeals.

<p>1. Deeds — Consideration — Presumption — Prejudicial Delay.</p> <p>The parties to the act attacked had departed this life at the date that the suit was brought.</p> <p>2. Same — Motive.</p> <p>No one knows with reasonable certainty the motives of the parties to this act.</p> <p>3. Same — Consideration.</p> <p>After these many years, over eight years after the death of the vendor, whose act is attacked, and after the death of the vendee, in the absence of proof of fraud, there is au absolute presumption of adequate consideration.</p> <p>4. Cancellation oe Instruments — Vendor was Entirely Sui Juris.</p> <p>The right transferred was a personal right. The vendor was in the possession of his mental faculties. He was an old man; not superannuated. He knew very well what he was doing.</p> <p>5. Same — Stale Demand.</p> <p>If lie acted without sufficient knowledge of the business in which he had an interest, and he abandoned it without adequate consideration, objection to the act is not timely.</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. Action by the Interstate Land Company, Limited, against Willie and Joseph Doyle, minors. Judgment for defendants, and the land company applied for a writ of possession, and defendants obtained a preliminary injunction. Thereafter the land company brought a petitory action against the defendants, and the suits were consolidated. Judgment rendered for the land company, and defendants, Doyle, appeal.

<p>Appeal — Review.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by W. Floyd Britt against Davis Bros. Judgment for defendants, and plaintiff appeals.</p>

<p>Assault and Battery — Civil Action — Evidence.</p> <p>„ This is an action brought by the plaintiff against defendants for damages for injuries received from an alleged assault and battery.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>In the matter of the succession of Francis J. Quinlan. From the judgment an appeal is taken.</p>

<p>1. Fbaudulent Conveyances — Action to-Set Aside — Cause.</p> <p>The action was brought to set aside a sale made to defraud creditors.</p> <p>2. Same — Vendob.</p> <p>It does not appear that the vendor was in-, good faith; on the contrary.</p> <p>3. Same — Yendee.</p> <p>The weight of the testimony shows that the vendee did not know of vendor’s insolvency, nor did he know that the vendor’s purpose was to take advantage of his creditors. The vendee’s bad faith was not shown.</p> <p>•4. Bills and Notes — Bona Fide Purchasers —Third Persons.</p> <p>The notes executed by the vendee to the vendor representing the price were transferred by the latter to an innocent person, as testified to, and the testimony is neither rebutted nor contradicted.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 970.]</p> <p>5. Appeal — Fraudulent Conveyances — Verdict and Judgment.</p> <p>The parties were known to the jury and the court; they believed the testimony.</p> <p>The court on appeal found no good reason ■to set aside the verdict and judgment.</p> <p>(Syllabus by the Court.)</p>

<p>1. Death — Personal Injury Averred.</p> <p>Plaintiff’s child suffered injury from the effects of which the child died. The suit is for damages on account of death.</p> <p>2. Same — Marriage—Burden of Proof.</p> <p>Defendant denied that plaintiff’s child was a legitimate daughter, and tendered an issue requiring proof of marriage. Plaintiff declined to furnish proof of her marriage, on the ground that the burden of proof was with defendant. The marriage, if there was a marriage, was peculiarly within her knowledge. If she held the proof, relief cannot be allowed, nor damages.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Marriage, § 68J</p> <p>3. Same — Acknowledgment — Natural Child.</p> <p>The acknowledgment of the child, as the record discloses, was made only after the death of the child. Whether timely made or not presents no important point; for whether plaintiff be considered as mother of a child, acknowledged or not acknowledged by her, she is without right to sustain the claim.</p> <p>4. Same — Legitimate Child.</p> <p>The child referred to in the Act No. 71, p. 94, of 1884, is a legitimate “child,” and not an illegitimate “child.” The right under the language of the statute to sue for damages growing out of personal injury is inherited by the mother of the former, and not of the latter.</p> <p>On the Merits.</p> <p>5. Negligence — Evidence.</p> <p>Plaintiff’s child imprudently went on the freight piled on the bank of the stream. It was not shown that defendant was guilty of negligence.</p> <p>6. Same — Proximate Cause.</p> <p>It was proven that the child, with others, went on the freight piled on the bank. Some of it fell and she was fatally injured. Under the circumstances and conditions of the accident plaintiff cannot recover.</p> <p>7. Same — Freight Had Not Been Handled by Dependant.</p> <p>The freight had been placed on the bank by the schoonermen. It was under the supervision, as relates to stacking, of the harbor master. Defendant is not liable.</p> <p>(Syllabus by the Court.)</p>

<p>1. Notes — Receipt and a Promise to Pat.</p> <p>Petition declares upon a written instrument which was made payable at the death of the obligor.</p> <p>2. Same — Simulation.</p> <p>The defendants deny liability, and show that in so far as the document may seem to be a recognition of indebtedness it is simulated.</p> <p>3. Same — Agreement Different.</p> <p>Defendants aver a different motive than indicated in the instrument, and aver that the consideration contemplated at the time of the execution of the instrument had completely failed.</p> <p>4. Pleading — Plaintiff’s Replt.</p> <p>The rejoinder of plaintiffs is that want of consideration urged, attacks the instrument because null ab initio, and that the plea of failure of consideration, attacks the instrument arising after the instrument had been executed and that one defense is incompatible with the other, i. e., failure excludes idea of want of consideration.</p> <p>The court has not found it possible to arrive at that conclusion.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, § 189.1</p> <p>5. Evidence — Parol.</p> <p>TÍie question is: Was parol testimony admissible? The court holds that it is under Act No. 71, p. 94. of 1884. and under, the principle laid down by jurisprudence, which enables heirs to prove wanT of consideration _bv testimony which shows that no consideration passed, and' that, in matter of the agreement which was the controlling purpose of the obligor, there was failure for consideration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 20. Evidence, §§ 1981-1989.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Adeline Prater and others against Charles D. Craighead. Judgment for defendant, and plaintiffs appeál.</p>

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>Action by the Ayers Asphalt Paving Company against Mrs. L. B. Hill. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by L. Clinton Bordelon and others against S. Gumbel & Co., Limited, and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal — Dismissal.</p> <p>Where the delay for the return of an appeal has been extended, and the transcript is not filed in this court until after the return day, the appeal will be dismissed.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 3, Appeal and Error, § 3129.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by Charles P. Glover against A. E. Haley and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Eirst Judicial District Court, Parish of Pointe Coupee; Louis Bingaman Claiborne, Judge.</p> <p>Action by Lovel Ledoux and others against Edward E. Kornbacher. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas Moore Burns, Judge.</p> <p>W. J. Burkhalter was convicted of an illegal sale of liquor, and appeals.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Joseph Silva, Sr., was convicted of mayhem, and appeals.</p>

In the matter of the liquidation of the Shreveport National Bank. From a hearing, on opposition by Frank B. I-Iayne and others to the account of W. E. Hamilton and others, liquidating commissioners of the bank, the opponents appeal.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by the Interstate Bank & Trust Company against W. W. Welsh. Judgment for defendant, and plaintiff appeals.</p>

<p>Licenses — Exemption oe Manufacturers.</p> <p>One who, by extracting the medicinal properties from various drugs and making a chemical combination in which the ingredients lose their identity, creates a distinct product, which, for years, is offered to, and accepted by, the public for distinct uses, may be regarded as a manufacturer. And, where it appears that the formula for the manufacture of such product is a secret, which has cost him a large sum of money, he ought not to be compelled to disclose it in order to obtain the exemption from license taxation accorded by the Constitution to manufacturers.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edrington, Judge.</p> <p>In the matter of the Minors Long. From an order setting aside the resignation of a tutrix, she appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Victor Porter, Judge.</p> <p>Jesse Easley and others were convicted of robbery, and appeal.</p>

<p>Appeal from First Judicial District Court. Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by T. J. Wood and others against Exa Salter. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Holidays — Election Day — Not a General. Election.</p> <p>Less than an election held throughout the state is not a “general state election,” falling within the terms of Act No. 3, p. 5, of 1904,. which enacts that ail “general election” days' shall be legal holidays. The same is true of’ parochial elections held in the parishes and municipalities.</p> <p>2. Criminal Law — Acquiescence — BIotion: to Quash.</p> <p>An accused has no right to stand by and suffer proceedings to take place on a “statutory holiday,” and after verdict, in a motion to-quash, ask to have the proceedings reversed on the ground that it was a holiday.</p> <p>He sought an acquittal which would have been. complete had he been acquitted.</p> <p>3. Holidays — Statutory.</p> <p>The days entitled “legal holidays” do not. have the effect of rendering legal business null,. if it takes place by consent, or if an accused chooses not to timely urge what there may be in the objection. The objection is not timely nor in proper form urged for the first time in a motion in arrest of judgment.</p> <p>TEd. Note —For cases in point, see Cent. Dig. voi. 25, Holidays, §§ 2-5J .</p> <p>4. Sundays.</p> <p>The observance of the seventh day has a 'different meaning than observance of a “statutory holiday.” With the former it is coeval with the creation, and, with the latter, with the date of the statute to which it owes its title.</p> <p>The history of the common law clearly indicates the character of the day and the respect .and honor to which it is entitled. It is different as to statutory holidays. They have not the sacredness of the Sabbath, and there may be legal business transacted on a statutory holiday not null, if there is silence when a person should speak and object.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 25, Holidays, §§ 2-5.]</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the matter of the succession of Jean B. Abadie. Prom an imposition of an inheritance tax, Louis E. and Joseph Abadie, opponents, appeal.</p>

<p>Appeal — Failure to Perfect — Second Application.</p> <p>Where an appellant has obtained an order for both a suspensive and devolutive appeal, and has perfected neither by giving bond, he is entitled, , within the year, to another order for a devolutive appeal. There is no appeal to be abandoned until the bond is given. Bowie v. Davis, 33 La. Ann. 345.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 53.]</p> <p>(Syllabus by the Court.)</p>

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

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

<p>Libel — Defamatory Judicial Allegations.</p> <p>Defamatory judicial allegations are not libelous and actionable, unless shown to have been false, malicious and without probable cause.</p> <p>(Ed. Noto. — For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 117-123.]</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 Citizens’ Bank of Louisiana against H. J. Lenoir and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Moore, Judge.</p> <p>D. B. Austin was indicted, and a motion to quash indictment was sustained. The state appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by John W. Foscue against the Black Bayou Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

Certiorari from Court of Appeal, Parish of St. Mary. Action by Lucy Adams Crockett against Alfred Madison. Henry Bruce and others intervene. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of error.

Actions by the city of Shreveport against J. P. Nelson and against the Southern Paving & Construction Company and others. Judgment for the city against the traction company, and it appeals.

<p>1. Mortgages — Conditions—Validity.</p> <p>A stipulation in an act of mortgage that,, in the event of the failure of the mortgagor to pay anv one of a series of notes, the remainder shall “become due and' exigible by foreclosure,” is a lawful agreement, binding on the parties to the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1161, 1162.]</p> <p>2. Same — Foreclosure—Attorney’s Fees.</p> <p>Where, in such a case, the mortgagor defaulted on the payment of an interest note, the note for the principal became due at once, and the plaintiff, on the institution of a foreclosure suit via ordinaria, became entitled to the stipulated attorney’s fee on the amount of both notes.</p> <p>FEd. Note. — For cases in point, see Cent. Dig. vol. 35. Mortgages, §§ 1669-1677.]</p> <p>3. Same — Judgment in Personam.</p> <p>The words “exigible by foreclosure” include an ordinary suit to foreclose the mortgage, as well as executory process, and do not debar the plaintiff from recovering a judgment in personam against the mortgagor on her own note, due under the terms of the contract.</p> <p>FEd. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1600-1608.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal — Review—Questions op Fact.</p> <p>Involves only questions of fact.</p> <p>(Syllabus by the Court.)</p>

<p>Judgment — Res Judicata.</p> <p>The principle by which a demand not granted or reserved in the judgment must be considered as rejected has no application in a case where the thing omitted to be decreed is a necessary consequence of the judgment, as where the demands are for the nullity of an obligation and the cancellation of its inscription, and the latter demand is ignored in the judgment.</p> <p>TEd. Note. — Eor eases in point, see Cent. Dig. yol. 30, Judgment, § 1259.]</p> <p>(Syllabus by the Court.)</p>

<p>.1. Municipal Corporations — Ordinance Legal. '</p> <p>The legality and constitutionality of the municipal ordinance of the town of Minden is not questioned.</p> <p>2. Courts — Supreme Court — Jurisdiction.</p> <p>. The Supreme Court has jurisdiction where the constitutionality of a municipal ordinance is at issue under which a fine has be'en imposed, but not of a question exclusively of fact.</p> <p>3. Same — Trend op Decisions.</p> <p>As regards the particular clause in question — that is, the fine or penalty imposed — there is a construction of a contemporaneous character. It limits jurisdiction to the legality and constitutionality of the ordinance. New Orleans v. Blanc, 1 La. Ann. 385. “The Supreme Court has no jurisdiction as to the mode of the procedure.” Id.; Albert v. Brewer, 9 La. Ann. 65; Goale v. Recorder, 30 La. Ann. 451; Gibbs v. Atkins, 34 South. 411, 110 La. 197; Town of Ruston v. Monroe Fountain (recently decided) 42 South. 644, ante, p. 53.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; John Nicholls Sandlin, Judge ad hoc.</p> <p>Action hy C. O. Chaffe, guardian, and others, against the Minden Lumber Company. From the judgment, an appeal is taken.</p>

<p>Appeal — Time op Rettjeh — Repeal op Statute.</p> <p>Under Act No. 92. p. 150, of 1900, appeals to the Supreme Court throughout the state, the parish of Orleans excepted, are returnable to the .'Supreme Court, whether in term time or vacation, in not less than 15 nor more than 60 days, exclusive of days of grace, after the date of the order of appeal, except by consent of parties. The return day or the extension of the return day fixed for a date within the period of vacation cannot be extended by implication to the first day of the next term of the Supreme Court. Section 4 of Act No. 45, p. 100, Ex. Sess. 1870, was repealed by Act No. 92, p. 150, of 1900, in so far as appeals from the country parishes are concerned.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Sixth Judicial Dis triet Court, Parish of Washington; Thomas Moore Burns, Judge.</p> <p>Action by George P. Welch and wife against Henry J. Smith and others. Judgment for defendants. Plaintiffs appeal.</p>

<p>Appeal from Twenty-Sixth Judicial Dis trict Court, Parish of Washington; Thoma Moore Burns, Judge.</p> <p>Action by Samuel and Mary Carrol against Joe N. Magee and others. Judgment for defendants, and plaintiffs appeal.</p>

In the matter of the succession of Armand and Mary Trahan. Action by Andrew Jackson and others against Joseph A. Trahan, administrator. From the judgment, plaintiffs appeal.

Action by B. Pendleton Ferriday and others against the Middlesex Banking Company and others. Heard on application Of the Middlesex Banking Company and others to Stay proceedings in a' state court pending proceedings in the federal court

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>Cap. McClendon was indicted for murder. From an order quashing the indictment, the state appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>George K. Favrot was indicted for crime. Motion to quash sustained, and the state appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>Ed Plunkett was indicted for crime. Motion to quash sustained, and the state appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>Will Aikens and Jerry Holmes were indicted for crime. Motion to quash sustained, and the state appeals.</p>

<p>1. Master and Servant — Injury to Servant-Tool.</p> <p>The implement used was a Verona lever jack. It was not out of order. It was in charge of the superintendent, who was not shown to have been negligent or imprudent.</p> <p>2. Same — Raising a Locomotive.</p> <p>Similar instruments are used for lifting large bodies., The toe of the lever jack had hold of the piece' of timber. It broke through the woody fiber, and the piece of timber fell on plaintiff’s fingers, mashing two and wounding the other two fingers of the left hand.</p> <p>3. Same — Failure to Crib Locomotive.</p> <p>The locomotive, as raised, should have been made to rest on cribbing, following it up as it was raised by the lever jack. This does not appear to have been done, and in consequence the buffer of the locomotive fell about eight inches and struck plaintiff’s hand. Plaintiff was a machinist helper, and had some experience in such work.</p> <p>4. Same — Evidence Insufficient Upon Wmcn to Predicate a Judgment.</p> <p>The immediate cause of the accident was not shown, nor how the plaintiff was handling the blocks -he was holding.</p> <p>(Syllabus by the Court.)</p>

<p>1.Appeal — Review—Evidence.</p> <p>This suit is one against a railroad company for damages for personal injuries alleged to have been received by the plaintiff through the carelessness and negligence of its employes in the operation of the train. The facts and circumstances connected with the accident have been brought before the Supreme Court as far, presumedly, as each party could, in aid of its own side of the controversy. The court deals with it as a whole, regardless of and without reference to the party by whom the particular testimony was introduced. Ramos Lumber Co. v. Labarre, 40 South. 902, 116 La. 559; Aiken v. South. Pac., 29 South. 1, 104 La. 160.</p> <p>FEd. Note. — For cases in point, see Cent. Dig. voi. 3, Appeal and Error, §§ 3262-3278.]</p> <p>2. Carriers — Injury to Passenger — Presumption op NeGligence.</p> <p>The proposition contended for by plaintiff— that in an action of this character all that the plaintiff bringing it is required to prove is the accident, the fact that she was a passenger, and that she had not been safely placed on the ground at her destination, when the burden shifts to the defendant company to prove that the accident did- not arise from any negligence on its part, or that of its agents or employ6s-“-is too broadly stated. The circumstances surrounding and connected with plaintiff’s accident were of character such as to withdraw against the defendant any presumption of fault or negligence, and it should not be held responsible.</p> <p>TEd. Note. — For cases in point, see Cent Dig. voi. 9, Carriers, §§ 1283-1294.]</p> <p>3. Same — Burden op Pro op.</p> <p>The rigor of the rule announced in article 2754 of the Civil Code touching the burden of proof of carriers is to some degree relaxed in the case of damage to passengers from what it is in reference to things in their care.</p> <p>[Ed. Note. — For cases in point,' see Cent Dig. voi. 9, Carriers, §§ 1283-1294.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the Jackson Brewing Company against O. Canton. Judgment for defendant, and plaintiff appeals.</p>

Application by the state, on the relation of Morris R. Stewart, acting district attorney, for writ of certiorari and prohibition to J. B. Lee, judge.

Landry; Edward Taylor Lewis, Judge. Action by Frank Brinkman, for use of his minor son, and individually, against the St. Landry Cotton Oil Company. Judgment for defendant, and plaintiff. appeals.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by M. C. Soniat against C. Donovan and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Edward T. Lewis and others against James M. Sandell and others. From an order dissolving an injunction on bond, plaintiff applied for a suspensive appeal, and, on the refusal of the same, applied for writs of mandamus and prohibition.

<p>1. Prescription — Basis—Sale op Realty.</p> <p>A sale made on the condition that it shall be found that the vendor was owner of the property cannot serve as a basis for prescription, if it is found that the vendor was not owner. The accomplishment of the condition retroacts to the date of the sale, placing matters in the same situation in which they would have been if the sale had not been made; and hence any possession by the vendee is one without a title.</p> <p>[Ed. Note. — For cases in point, see Gent Dig. vol. 1, Adverse Possession, §§ 415-417.]</p> <p>2. Same — Deed—Defective Description.</p> <p>A deed describing a different tract of land from the one in controversy is not translative of the land in controversy, and therefore cannot serve as a basis for prescription.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 4Ó3-467.]</p> <p>(Syllabus by the Court.)</p>

In the matter of the insolvency of E. Conery, Jr. Action by William A. Lawler to set aside a judgment authorizing Henry B. McMurray, civil sheriff, to perform the functions of syndic of the insolvent. From a judgment for defendant, plaintiff appeals.

Action by Mrs. Mary E. Campbell, individually and as tutrix, against William Hart, individually and as liquidator. In the matter of the application of Mrs. Mary E. Campbell, individually and as tutrix, for writs of certiorari, prohibition, and mandamus.

<p>Appeal from Civil District Court, Parish of Orleans; ’George Henry Théard, Judge.</p> <p>In the matter of the succession of Georgine Pritchard. Prom an order fixing the inheritance tax, the heirs appeal.</p>

<p>1. Estoppel — Equity — Claim in Judicial Proceeding.</p> <p>When a contractor, being called into a litigation between a subcontractor and one who has undertaken work under him, to show what demands he has against the subcontractor arising out of the default of the undertaker, sets up a claim, which is made the basis of a judgment in favor of the undertaker, against the subcontractor, he. (the contractor) cannot be heard in another litigation, between him and the subcontractor, to set up a different claim, based upon the same default of the undertaker.</p> <p>[Ed. Note. — Eor cases in point, see Cent Dig. vol. 19, Estoppel, §§ 165-169.]</p> <p>2. Contracts — Action eor Breach — Amount op Recovery.</p> <p>Where, in a suit for a balance alleged to be due under a contract for work, the defendant claims a reduction on account of work done by him which he alleges the contractor should have done, and the contractor denies that his contract required him to do such work, the reduction will be allowed if it be found that the contract calls for the work.</p> <p>3. Same — Peefokmance.</p> <p>The contractor has no right to do work called for by a subcontractor, at the expense of the subcontractor, without notice to the latter.</p> <p>4. Same — Construction—Time of Performance.</p> <p>When a subcontractor is familiar with the demands of the main contract, with reference to the time within which it is to be executed, he will be held to a reasonable execution of his subcontract, considered with reference to such demands, even though his subcontract contains no stipulation as to time.</p> <p>5. Damages — Compensation—Elements.</p> <p>Wages of workmen and hire of machinery, kept idle by unreasonable delay in the execution of a subcontract, are elements to be considered in a suit by the contractor for damages; but ordinarily, a general contractor, engaged in executing, and at liberty to obtain, other contracts, cannot recover for loss of his own time in such a case, nor for alleged injury to his business reputation, nor hypothetical damages, which could not have entered into the contemplation of the parties when the subcontract was made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 58, 92-98.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by D. C. O’Malley against Edward S. Whitaker 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>Action by J. B. Railsback against A. H. Leonard and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; Charles Victor Porter, Judge.</p> <p>Action by the parish of Red River against the parish of Caddo. Judgment for defendant, and plaintiff appeals.</p>

Certiorari from Court of Appeal, Parish of Concordia. Action by the Luckett Land & Emigration Company and others against George M. Brown, Jr. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Anthony M. Martinez against Peter Fabacher. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by the Bijou Company against Henry Lehmann. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Criminal Law — Appeal—Proceedings fob Transfer of Cause — Time.</p> <p>The provisions of Act No. 108, p. 155,_ of 1898, requiring “that appeals * * * in criminal cases * * * shall be taken by motion, verbally or in writing, in open court, within three days after sentence,” are mandatory, and, as there is no proviso in the act to the effect that, in the event that the trial court should adjourn immediately upon pronouncing sentence and should not open again until after the expiration of such three days, the delay within which the appeal is to be taken shall be extended until it again opens, it follows that, in such case, the defendant must take his appeal upon the day upon which the sentence is pronounced. It is only when the court remains open until, or reopens upon, the third day after the sentence is pronounced, that the defendant can avail himself of the full term “within” which he is required to act if he. desires to appeal.</p> <p>2. Same.</p> <p>The expression “open court,” as used in Act No. 108, p. 155, of 1898, means the actual session of the court while the judge is on the bench, as contradistinguished from the “continuous session,” of 10 months, provided for by article 117 of the Constitution.</p> <p>3. Same.</p> <p>The word “term,” as used in Act No. 30, p. 56, of 1878, § 1, means the session during which the court is actually open, as contradistinguished from the continuous session, of 10 minutes, provided for by article 117 of the Constitution.</p> <p>On Rehearing.</p> <p>4. Same.</p> <p>Adjournment of court cannot deprive accused of the three days allowed him for appealing.</p> <p>5. Criminal Law — Continuance—Grounds— Absence of Witnesses.</p> <p>Accused cannot complain of the refusal of a continuance for summoning witnesses, when he had ample opportunity for procuring the attendance of the witnesses, and has not chosen id avail himself of it.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1336J</p> <p>6. Same — New Trial — Proceedings — Impeachment of Verdict.</p> <p>Separation or misconduct of the jury, or that strangers had access to the jury, cannot be proved by the jurors.</p> <p>A juror cannot be heard to impeach his own verdict.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2394.]</p> <p>7. Same — Amendment of Motion.</p> <p>A motion for new trial, defective for being too vague and general in its allegations, should be allowed to be amended by the giving of particulars, where it can be done without delaying the trial more than a few minutes.</p> <p>8. Same — Appeal—Harmless Error — Ruling on Motion for New Trial.</p> <p>But the refusal to allow such amendment will not be good ground for setting aside the verdict on appeal, where the evidence in support of the motion was admitted as if the amendment had been made.</p> <p>9. Courts — Officers — Stenographers — Right to Compensation.</p> <p>A stenographer employed by the accused' to take down the evidence and the. bills of exception cannot be compelled to furnish a copy of his notes without being paid therefor.</p> <p>TEd. Note. — For cases in point, see Cent. Dig-vol. 13, Courts, § 200.]</p> <p>10. Criminal Law — Continuance—Grounds —Absence of Witnesses.</p> <p>Defendant is not entitled to have the case remain open until the next day to enable him to summon witnesses whom he has had ample oportunity to summon and has not summoned.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1336.]</p> <p>11. Homicide — Instructions—Defenses.</p> <p>A general charge that the homicide must have been willful is not sufficiently specific, in a case where the defense is that the homicide was per mfortuniam; but the refusal of a requested charge is not reversible error, unless the charge is shown to have been applicable to the facts of the case.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3164, 3165.]</p> <p>12. Same.</p> <p>It is not true that in a case of homicide the accused cannot be convicted, unless the fatar wound is shown to have been inflicted maliciously. He may be convicted of manslaughter. Such a charge is properly refused.</p> <p>(Syllabus by the Court.)</p>

<p>1. Vendor and Purchaser — Promise to Sell —Construction.</p> <p>A promise of sale amounts to a sale in the sense that it gives the purchaser the right to demand a specific performance of the obligation to transfer and deliver the property. Where the conditions have been performed, the legal' title passes as of date of the original agreement.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 83-85.]</p> <p>2. Same — Bona Fide Purchaser.</p> <p>A promise of sale duly accepted and recorded confers a real right on the purchaser, of which third persons are bound to take notice, and such right cannot be defeated by a subsequent sale of the same property recorded prior to the execution of the deed pursuant to the promise of sale.</p> <p>(Syllabus by the Court.)</p>

<p>1. Vendor and Purchaser — Defect in Title. Suit to compel defendants to take title.</p> <p>The missing link in plaintiff’s chain of title to property sold by it to defendant has been supplied. The title is complete, and one that defendant is safe in taking.</p> <p>2. Appeal — Review.</p> <p>There was no question regarding the costs.</p> <p>(Syllabus by the Court.)</p>

Action by Mrs. Mary Lee Scovel and another against the heirs of S. Levy, Jr. From the judgment an appeal is taken.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Julia A. O’Brien against Charles D’Hemecourt, her husband. Judgment for plaintiff. Defendant appeals.</p>

Action by L. H. Holliday against the Hammond State Bank. Petition of D. L. Calmes against L. H. Holliday to show cause why he should not accept title to certain real estate. From a judgment, defendant on rule appeals.

<p>1. Landlord and Tenant — Trespass by Landlord — Action por Tort — Evidence.</p> <p>Plaintiff who is the lessee of the upper stories of a building sues the defendant, her lessor, for damages for having illegally sent workmen into her premises, who tore up the lower flooring and diminished the height of her rooms, depriving her of the full and peaceable possession of the leased premises and filling the lower rooms with dirt and rubbish. The defense is that plaintiff consented to what was ■done; that the alterations were beneficial to her; that the action is one ex contractu, and damages, if due, ai'e fixed by the rules governing violation of conventional obligations.</p> <p>Held, the action is not one “ex contractu,” but “ex delicto.” Defendant went entirely dehors the contract relations between the parties, •and he was responsible for his actions as for ;a tort just as any other person would have been for the same acts. His ownership gave him no vantage ground, but, on the contrary, his legal obligations as lessor made it more imperative on him than on a stranger to respect her rights. Quoad consent to the making of the alterations defendant carried the burden of ■proof, and he failed to sustain the burden.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 460-463.]</p> <p>:2. Same.</p> <p>It was for the plaintiff, and not the defendant,, to determine whether the alterations were •advantageous or desirable, even benefits cannot be forced upon a person against his will.</p> <p>[Ed. Note. — Eor cases in point, see Cent, Dig. vol. 32, Landlord and Tenant, §§ 460-463.]</p> <p>:3. Damages — Torts.</p> <p>Damages for a tort may be assessed without ■calculating altogether the pecuniary loss of the party. Dudley v. Tilton, 14 La. Ann. 283; Caspar v. Prosdame. 34 South. 317, 46 La. Ann. 39; Euselier v. Telephone Co., 24 South. 274, 50 La. Ann. 800; Lobe v. Cary, 33 La. Ann. '914; Williams v. McManus, 38 La. Ann. 161, 58 Am. Rep. 171; Louque’s Digest, p. 376, verbo “Libel.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, § 502.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Appeal—Record—Transcript — Setting out Evidence.</p> <p>Subject to his right to maintain good order in his court, the judge cannot dictate what shall be included in, or omitted from, the plead-, ings of the defendant. If the defendant embodies in his motion for new trial a synopsis of the evidence, the judge cannot require that such synopsis be omitted from the transcript of appeal.</p> <p>2. Rape — Elements op Oppense — Age op Consent.</p> <p>Under the jurisprudence of the state of Louisiana, the carnal knowledge of a female child under the age of 12 years constitutes the crime of rape. Act No. 115, p. 165, of 1896, fixes the age of consent at l2 years.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Rape, § 12.]</p> <p>3. Criminal Law — Instructions—Privilege op Witness.</p> <p>A requested charge that the privilege of the accused as a witness does not extend “to such physical circumstances as may exist on defendant’s body or about his person” is a statement of a rule of evidence, which does not concern the jury.</p> <p>4. Same — Appeal — Harmless Error — Evidence.</p> <p>Where the prosecution has made no attempt to compel the accused to submit to a second physical examination, the right to do so is a mere abstract question, and the failure of the prosecution to make the proof of the existence of the particular disease more certain worked no prejudice to the defendant.</p> <p>5. Same — Instructions—Undue Prominence op Particular Matters.</p> <p>The judge cannot be required to pick out particular circumstances for the consideration of the jury, thus giving them undue prominence and importance.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1969-1973.]</p> <p>6. Rape — Evidence.</p> <p>As in the carnal abuse of female children the want of consent is not an element of the offense, and consent is no defense, the particular rules of evidence, with one exception, applicable to the rape of women, have no application.</p> <p>7. Criminal Law — Appeal — Review—Questions op Fact.</p> <p>The Supreme Court is without power in a criminal case to review the verdict of the jury on the facts of the case.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Louis R. Alba against the Provident Savings Life Assurance Society of New York. Judgment for defendant and intervener, and plaintiff appeals.</p>

<p>1. I-Itjsband and Wife — Separate Properties — Mingling op Affairs.</p> <p>When a person mixes or mingles his own affairs with those of another person, and subsequently seeks to hold that other responsible for matters and things resulting from such mingling, lie must affirmatively establish that the claim made by him rests in reality upon the affairs of that other.</p> <p>2. Same — Rights of Survivor — Merger of Claim.</p> <p>If a husband, pending his marriage, expends separate funds of his own upon the separate property of his wife, but is by her will left all the property belonging to her, his claim for the enhanced ’ value of the property through the expenditures is merged and confounded in the acquisition made by him under the will of the property so enhanced. If the forced heir of the wife has the legacy reduced to the wife’s disposable portion, the claim for enhancement is merged and confounded to the extent of the interest continued to be held by, the husband.</p> <p>3. Same.</p> <p>If during a marriage matters take such a shape as to cause a claim to accrue in favor of the husband against the wife,'it is the duty of the husband, who receives during the marriage moneys accruing to her from inheritances falling to her, to apply the same to the extinguishment of the claim, and not hold the matter ojien to be advanced as a claim against the wife’s succession. Debts of the wife paid during the marriage are presumed to have been paid by her, if during the marriage she receives moneys from inheritances falling to her. If those moneys have passed into the possession and under the control of her husband, those debts are presumed to be paid by him for her out of those funds, rather than out of funds of his own.</p> <p>(Syllabus by the Court.)</p>

<p>1. Prescriptions — Allegations in Complaint — Admissions by Plea.</p> <p>Allegations put into the petition for the purpose of taking the case out of prescription are not admitted by the filing of a plea of prescription.</p> <p>2. Same — Revival op Debt.</p> <p>A debt on which prescription has accrued can be revived only by the debtor’s consent. A bare payment on the debt is not of itself proof of such consent.</p> <p>TEd. Note. — For cases in point, see Cent. Dig, vol. 33, Limitation of Actions, §§ 642-648.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by Gill Smith and Oliver K. Wallace against A. W. Crandall and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the Matter of the Succession of Mary Catherine Becker. From a judgment as to the inheritance tax, the inheritance tax collector appeals.</p>

In the matter of the succession of Adelaide Landry. Application by Dominique Miguez for appointment as administrator. From the judgment granting the appointment, the opponents, Louis Delcambre and others, appeal.

Tammany; Thomas Moore Burns, Judge. Action by the state, on the relation of Harvey E. Ellis, district attorney pro tern., and others, against the village of Pearl River and others. From a judgment for defendants, plaintiffs appeal.

Paul, Judge. In the matter of the succession of Cecile Burrell, born Smith. Prom an order refusing to revoke an appointment as tutor, the undertutor appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Dominick Froelicher against the Southern Marine Works. Judgment for plaintiff. Defendant appeals.</p>

Action by Ofelie Robideaux, individually and as tutrix, against I. E. Hebert and another. Judgment for plaintiff against both defendants, and they appeal.

<p>1. Taxation — Sale—Invalidity — Prescription.</p> <p>Where a person has always paid his taxes upon his entire property, a sale of the property under another assessment in the name of another person is an absolute nullity, and cannot serve as a basis for the constitutional prescription of three years. It makes no difference that the assessment in the owner’s name contained an error in the description of the property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, § 1594.]</p> <p>2. Prescription — Recording Title.</p> <p>To serve as a basis for prescription, the title need not be recorded. Registry is required only for transferring the property, and in the law of prescription the title does not operate to transfer the property, but merely to establish the good faith of the possessor and fix the limits of the possession.</p> <p>(Syllabus by the Court.)</p>

Action by Antoine Pons, against the board of assessors for the parish of Orleans and others. Judgment for defendants, and plaintiff appeals.