Volume 119 — Louisiana Reports

<p>1.Appeal — Dismissal — Interlocutory Order.</p> <p>A sheriff, having been ordered to seize and take into his possession, on a writ of sequestration, certain certificates of stock which the plaintiff in the suit alleged to be in the possession of defendant, of which he therein prayed to be decreed the owner and given the possession, reported to the court that defendant had refused to deliver the certificates to him. Thereupon, at the instance of the plaintiff, the court ruled the defendant to show cause why he should not do so. Defendant excepted to, and answered the rule. It was made absolute, and defendant applied for and obtained a suspensive appeal. Plaintiff suggested to the court that the judgment being a nonappealable interlocutory judgment, it should be by’it dismissed ex proprio motu. Plaintiff should have filed a motion to dismiss. The court will dismiss the appeal when the subject-matter of the same has been submitted to it, if after examination of the record it appears that the judgment is not appealable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3138.]</p> <p>2. Sequestration — Writ — Enforcement — Rule to Deliver — Judgment on Rule.</p> <p>A judgment on a rule ordering the defendant to deliver certain certificates of stock to the sheriff holding a writ of sequestration is not sustainable, as there is no legal obligation on the defendant, in such a case, to deliver the property to the sheriff or to the court.</p> <p>3. Appeal — Dismissal on Court’s Own Motion.</p> <p>An appeal from such a judgment will not be dismissed on a mere suggestion that the order does not work irreparable injury, when the same issues are before the court by appeal from the judgment on the merits of the cause. The court is not bound to notice such a suggestion where no motion to dismiss has been filed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3138.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; Louis P. Caillouet, Judge.</p> <p>Action by Henry Bergeron against O. C. and H. C. Daspit Judgment for plaintiff,</p> <p>and defendants appeal.</p>

Action by Hardy C. Gill and others against the city of Lake Charles and others. Judgment for defendants, and plaintiffs appeal.

<p>Master and Servant — Injury to Servant-Pleading.</p> <p>In an action brought for damages for personal injuries received through the fault and negligence on the part of the defendants, it is not sufficient to allege, or set out facts, or con•ditions, from which an injury might have been •occasioned. Plaintiff’s pleadings must establish a causal connection between the facts or conditions stated and the injury actually received.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. -vol. 34, Master and Servant, § 818.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by John A. Smith against John Hussey. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Corporations — Contracts — Validity — Sale to Stockholder.</p> <p>An agreement between two or more promoters, stockholders, and officers of a lumber company, to the effect that one of them shall be supplied with lumber, for his personal use, at cost, is not binding on the other stockholders, the company, the liquidators of the company, or the receiver, and the latter, or his assigns, may recover the price of lumber so supplied at the market rate prevailing at the time.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 12, Corporations, §§ 702, 1401-1407.]</p> <p>2. Husband and Wire — Debts oe Husband —Liability oe Wiee.</p> <p>Where lumber, used in the construction of a residence, is furnished to the husband and charged to him, that the wife takes an interest in the manner and progress of the work, makes suggestions, which are adopted, and is allowed to give directions, does not make her liable for the price, nor, unless the privilege of the furnisher is secured in the manner provided by law, does it prevent her from acquiring the property, by dation en paiement, from her husband, free of such privilege.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 575-581.]</p> <p>3. Mechanic’s Lien — Detailed Statement.</p> <p>In order to preserve his privilege for the price, one who furnishes to the owner material used in the construction of a building must record the detailed statement, or acknowledgment, required by Civ. Code, art. 3272. A statement showing merely the total amount charged, with payments and credits, on account, and the balance due, is not the detailed statement so required.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. voi. 34, Mechanics’ Liens, §§ 208-212, 253-255.]</p> <p>4. Same — Notice.</p> <p>Notice of a claim, the privilege to secure which may be preserved by registry, is not the equivalent of registry.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 34, Mechanics’ Liens, §§ 175, 176.]</p> <p>Breaux, C. J., and Nicholls, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Actions — Creation of Remedy.</p> <p>The language of the following proviso is so plain and unambiguous as to leave no room for interpretation:</p> <p>“Provided, that nothing in this act shall be construed to mean that a right or cause of action is created in favor of said Forman against said board; the intention being to give him the right to enforce any cause of action that he may have, either in law or equity.”</p> <p>2. Statutes — Construction—Title of Act.</p> <p>The title of an act is no part of the act, and can be resorted to for the purpose of interpreting the act only in case of doubt.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 44, Statutes, § 288.]</p> <p>3. Attorney and Client — Right to Compensation.</p> <p>The right of an attorney at law to demand payment for his services depends upon whether he was or not employed. He cannot recover from one who did not employ him, however valuable the result of his services may have been to such person, and especially if the person was not even a party to the suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § 317.]</p> <p>(Syllabus by the Court.)</p>

Action by Mrs. L. M. Hayward against Mrs. Joanna G. Campbell. Heard on application of defendant for certiorari or writ off review to the Court of Appeal to review, a judgment affirming a judgment of the district court in favor of plaintiff.

Action by Sarah Vaughan against the Dalton-Lard Lumber Company, Limited; the Standard Life & Accident Company being called in warranty. From a judgment in: favor of plaintiff, defendant and warrantorappeal.

Paul, Judge. Proceedings to enforce the collection of an inheritance tax against the succession of I. H. Stauffer. From the judgment, an appeal is taken.

<p>1. Master and Servant&emdash;Injury to Employé&emdash;Negligence&emdash;Proximate Cause.</p> <p>Where a railroad employé, with a lighted iantern in his hand, being engaged in the discharge of his duties, is killed upon a dark night, at a terminal station, by being run over by a backing locomotive and tender, and it appears that there was no one on the rear of the tender (being the forward part of the machine as it moved) to keep a lookout, and neither headlight nor white lights, as required by the rules of the company, but, instead, a red light (or marker), as prohibited by such rules; that the fireman was engaged in _ supplj'ing fuel to the furnace; that the killing of the employs was not known until after he had been run over; and that the violation _ of the company’s rules involved in the handling of the locomotive in the manner described had been habitually tolerated by the company’s representatives in charge of the station, and was partly attributable to the failure of the company to furnish a yard engine and to furnish the lights required by such rules&emdash; the company will be held liable, in damages, notwithstanding that the employe who was killed may have been at fault, in being on the track, his fault being slight in comparison with that of the company, and the fault of the company being the proximate cause of the accident.</p> <p>[Ed. Note.&emdash;For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 801.]</p> <p>2. Death&emdash;Damages&emdash;Elements.</p> <p>In assessing the damages claimed by the widow for the negligent killing of her husband, the distress and mental suffering inflicted on her by the deprivation of her husband’s companionship are, under our law, elements to be considered, and, as her pecuniary loss resulting from the failure of her husband’s support is to be made good upon the hypothesis that, though engaged in a hazardous occupation, he would have furnished such support during the unexpired term of a life the average duration of which is to be assumed, the question of the amount that should be allowed is impossible of determination upon any scientific basis. The most that the courts can do, in such case, is to exercise a sound judicial discretion, and award such amount as, all the circumstances considered, may seem just to both litigants, and not unduly oppressive to either.</p> <p>[Ed. Note.&emdash;For cases in point, see Cent. Dig. vol. 15, Damages, §§ 118-120.]</p> <p>3. Same.</p> <p>A freight conductor, 32 years old, of good health and habits and earning $1,200 a year, having lost his life through negligence imputed to the railroad company by which he was employed, and his childless widow having obtained a verdict of $25,000 as damages, held, that the amount is excessive, and should be reduced to $10,000.</p> <p>[Ed. Note — For cases in point, see Gent. Dig. vol. 15, Damages, §§ 125-130.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Nuisances — Injunction — Abatement — Evidence.</p> <p>This suit is brought by plaintiff (a property owner residing'thereon, in the neighborhood •of the defendant corporation’s plants) to have a fertilizer and tallow plant carried on by it at its abattoir declared a nuisance and abated. Plaintiff obtained a preliminary injunction, which (after hearing) was perpetuated absolutely as to its fertilizers and modified as to its tallow plant. The court rejected the demand for damages. Defendant appealed, and plaintiff on appeal prayed that the judgment be amended so as to maintain the injunction in its entirety with damages.</p> <p>The plaintiff entered into this litigation with the prima presumption that the fertilizer and tallow rendering plants of the defendant were nuisances. Yillavaso v. Barthet, 1 South. 599, •39 La. Ann. 247. That presumption is corroborated by the action of the police jury taken in reference thereto and by the evidence adduced on the trial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 84-86.]</p> <p>2. Same — Noxious Odoes.</p> <p>The odors complained of are the legitimate and natural cause of the nuisance charged. They are not shown to be injurious to health, but are a source of great discomfort to plaintiff .and his family. A use of property which materially interferes with the physical comfort of those who live in the neighborhood, or which impairs the enjoyment of their home, may be a nuisance, •even though it does not impair their health or result in driving them from their homes.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 26-34.]</p> <p>3. Same — Evidence.</p> <p>The mere fact that other nuisances exist in the same locality which produce similar results is no defense, if the nuisance complained of adds to the nuisance already existing to such an •extent that the injury complained of was measurably traceable thereto. It is not necessary that all the injury should be the result of the nuisance charged, if it be of such a character and produces such results as, standing alone, it would be a nuisance to plaintiff. The fact that it is the principal, though not the sole, agent producing the injury, is sufficient.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Philip W. Dielmann against the liquidators of the Germania Savings Bank and others. From the judgment, an appeal is taken.

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Luther Egbert Hall, Judge.</p> <p>Action by T. G. Reily against D. A. Johnston, sheriff, and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Luther Egbert Hall, Judge ad hoc.</p> <p>Action by the parish of Caddo against the parish of De Soto. Judgment for defendant, and plaintiff appeals.</p>

<p>Parties — Misjoinder.,</p> <p>Where the receiver of an alleged insolvent corporation sued 40 different stockholders for different sums of money alleged to be due by them respectively for the unpaid purchase price of stock acquired under different circumstances, held, that the suit was properly dismissed on an exception of misjoinder of parties defendant. Jones Oo. v. Hoffman et al., 38 South. 763, 114 La. 996, reaffirmed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37. Parties, §§ 31, 32; vol. 12, Corporations, §§ 226, 405.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermilion; William Pierrepont Edwards, Judge.</p> <p>Gabe Johnson was convicted of assault with intent to rape, and he appeals.</p>

<p>Criminal Law — Plea oe Not Guilty — Motion to Withdraw.</p> <p>A party, indicted for having “willfully, feloniously, and of his malice aforethought cut and stabbed another with intent to kill and murder him,” was arraigned and pleaded not guilty to the charge. When the case was called for trial the accused withdrew his plea of not guilty, and pleaded guilty to “cutting and stabbing with a dangerous weapon with intent to kill.”</p> <p>This plea was accepted by the district attorney and the court, and entered on the minutes of the court. When he was called up for sentence, he made a motion to withdraw his plea of guilty and to plead not guilty. The motion to that effect was not sworn to, nor signed by himself. It did not allege that he had a legal defense, and did not assign any sufficient legal reason for its being granted. To have granted the application and allowed the withdrawing of a plea of guilty, which had placed him in a position of safety and security relatively to the much more serious charge, called for the exercise of great caution by the court in the interest of the accused himself. Befoi-e granting such an application. the court should have had before it positive evidence from the accused party himself that he was willing to take the chances of a trial on the greater charge, and he should have himself set out the grounds upon which he based his motion, and supported the same by his signature and his oath.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. Id, Criminal Law, § 087.]</p> <p>(Syllabus by the Court.)</p>

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

Actions by the parish of Calcasieu against H. Avery and by the same plaintiff against Rigmaiden & Co. Cases consolidated. Judgment for defendant, and plaintiff appeals..

<p>1. Judgment — Setting Aside — Rule to Show Cause.</p> <p>A suit against a wife for setting aside her judgment against her husband on the ground that the same was obtained on a fictitious claim cannot be brought by rule', and in such a case the judge properly refused to grant an order to show cause.</p> <p>2. Mandamus — Return—Pleadings.</p> <p>Where the petition to this court is not ■sworn to, and is not accompanied by a certified •copy of the pleadings below, and there is a difference between the petition and the return of the judge touching the contents of the pleadings below, this court will accept the statement of the judge.</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 James 5. Zacharie. Opposition to number of manual items on a provisional accounting sustained, and opposition as to principal demand overruled, and opponents appeal.</p>

<p>Appeal — Review.</p> <p>The judgment appealed from in this ease is-set aside, and the cause is remanded to the district court for further proceedings according to law.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal — Review—Conflicting Evidence.</p> <p>Where there is conflicting evidence, the conclusions of the trial judge are entitled to great weight, and will not be disturbed, unless manifestly erroneous.</p> <p>2. Divorce — Separate Domicile — Refusal to Return.</p> <p>Where the wife sued for a divorce, and the court assigned her a separate domicile, and the ■defendant husband reconvened with a demand for a separation from bed and board on the ground of abandonment, and obtained an order •of court that the wife be summoned to return to the matrimonial domicile, held, that the refusal of the wife to obey the summons was justified by the order assigning her another ana different domicile pending the suit for a divorce. Jolly v. Weber, 36 La. Ann. 676.</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. Action by the state, on the relation of the Third Ward Poll Tax Association and others, to compel Otto F. Briede, treasurer of the city of New Orleans, to file attested list of taxpayers. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by William R. Taylor against William T. Jay to recover commission. Judgment for defendant, and plaintiff appeals.</p>

<p>1.States — State Property— Conferring Administration on Municipality.</p> <p>Article 58 of the Constitution, in prohibiting the granting of state property to persons or corporations, does not prohibit the state from changing the destination of particular public property or from intrusting the administration of such property to the municipal corporation within the limits of which it lies.</p> <p>2. Dedication — Validity.</p> <p>A dedication by the state to the “people of New Orleans, for public use, for public park, or amusement park, purposes,” of a parcel of land lying beneath the waters of Lake Ponchatrain, is none the less a dedication to the public because the words “people of New Orleans” are used, since those who are not so may become people of New Orleans, if, and when, they choose, or they may avail themselves of the dedication without becoming people of New Orleans.</p> <p>3. Statutes — Title oe Act — Grant oe State Property — Constitutional Land.</p> <p>Act No. 209, p. 363, of 1906, contravenes neither article 58 nor article 31 of the Constitution.</p> <p>(Syllabus by the Court.)</p>

<p>■Carriers — Injuries to Passengers.</p> <p>Involves only facts.</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 the South Louisiana Land Company, Limited, against the Riggs Cypress Company, Limited. From a judgment for defendant, plaintiff appeals.</p>

<p>Master and Servant — Injury to Employé— Evidence.</p> <p>"Where an employé in a saw and planing mill is injured whilst operating, for his own purposes, a machine which does not constitute part of the machinery of the mill, but is under the control and subjected' to the use of a third person, who merely gets power from the mill, the proprietor of the mill is not liable for the damages resulting from such injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 153.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal — Review—Questions oe Pact.</p> <p>The questions involved are mainly of fact. They involved the settlement of accounts between plaintiff and defendants.</p> <p>2. Same — Sueeicienct.</p> <p>The defendants invoked the familiar rule that contracts and agreements above $500 in value must be proved at least by one credible witness and other corroborating circumstances.</p> <p>The acts between the parties did not fall within the rule, as the respective items are amply proven.</p> <p>[Ed. Note. — Por cases in point, see Gent. Dig, vol. 20, Evidence, § 2427.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Principal and Agent — Remuneration.</p> <p>Although the general rule is that the contract of agency is gratuitous, remuneration is sometimes allowed.</p> <p>•2. Same — Traveling Salesman Becomes Special Agent.</p> <p>At first compensation was not mentioned. In time plaintiff was specially requested to find .a purchaser. The request was joined with or formed part of a written statement that, if the -services expected were rendered, plaintiff would receive a compensation.</p> <p>.3. Sale Eeeected.</p> <p>A purchaser was found and a sale made. ’Thereafter the defendants sent an amount to plaintiff, which he declined to accept as inadequate.</p> <p>As the services were worthy of remuneration, .held an amount should be paid usually paid to the regular broker for similar services. The minimum usually charged is allowed.</p> <p>[Ed. Note. — For cases in point; see Cent. Dig. ■vol. 40, Principal and Agent, § 216.]</p> <p>(Syllabus by the Court.)</p>

Tammany; Thomas Moore Burns, Judge. Action by George R. Tolson and others-against the police jury of St. Tammany parish and others. Judgment for plaintiffs, and: defendants appeal.

<p>1. Appeal — Hearing—Stay—Death oe Party.</p> <p>The death of the defendant, in a proceeding via executiva, who has not been made party to an injunction suit, staying the writ, or to the appeal from the judgment therein, affords no ground for staying the hearing of such suit in this court.</p> <p>2. Same — Motion to Dismiss.</p> <p>A motion to dismiss an appeal for incompleteness of the transcript and insufficiency of the clerk’s certificate cannot be entertained if filed after the lapse of three judicial days from the day upon which the transcript should be filed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig: yol. 3, Appeal and Error, § 3153.]</p> <p>3. Same — Remand—Loss of Record.</p> <p>When a material part of the record, or the evidence adduced, has been lost, through no fault of the appellant, and he is unable, for that reason, to bring up a transcript upon which this court can review the judgment appealed from, the case will be remanded to be tried de novo.</p> <p>(Syllabus by the Court.)</p>

<p>Taxation — Equitable Graduation — Classification.</p> <p>The license tax levied on the business of cotton and stock brokerage by section 2 of act No. 214, p. 384, of 1906, is graduated so as to make the smaller business pay in proportion 100 per cent, more than the larger business. Meld, that such a classification is not the equitable graduation required by article 229 of the Constitution of 1898 for the protection of the citizen against arbitrary taxation.</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 the police jury of Avoyelles .•against the town of Mansura. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edgrington, Judge.</p> <p>Action by Aristide Landry and wife against the American Creosote Works, Limited. From a judgment for plaintiffs, defendant appeals.</p>

<p>Attorney and Client — Fees — Determination.</p> <p>Determining the fees for services of an attorney is a matter of great delicacy, and a court in fixing them must be- guided by a conscientious estimate of their value. Expert opinion in such a case is a useful guide, but is not necessarily controlling on the court. Where the nature and extent of the services are shown by the record, it is the duty of the court to bring to bear its knowledge of the value of the services rendered by counsel. Where the amount allowed by the trial judge for professional services is not manifestly insufficient or excessive, the judgment will be affirmed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 2397.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Taxation — Place of Taxation.</p> <p>The taxes for which the property sold had been paid. The lines of the property extended from one parish into another. It was assessed originally in one parish, and to its tax collector the taxes were paid. Subsequently part of the place was assessed in the adjacent parish in the name of persons who were not in possession and who were not the owners. It was not known at first that the land was situated partly in the two parishes.</p> <p>2. Adverse Possession — Acquisition of Rights by Prescription.</p> <p>Plaintiff traced title back to the year 1866, and proved his possession and the possession of his ancestors in title 30 years prior to the date suit was brought.</p> <p>3. Same.</p> <p>Defendant has not shown possession of or title in that part of the property claimed.</p> <p>4. Same — Possession—Necessity.</p> <p>The prescription pleaded by defendant is not sustained.</p> <p>5. Same — Acquisition of Rights by Prescription.</p> <p>Plaintiff had an interest growing out of his title and his many, years’ possession which is not defeated by defendant’s claim.</p> <p>6. Same.</p> <p>Plaintiff does not seek to avail himself of the error he asserts.</p> <p>7. Appeal — Modification of Judgment — Correction of Errors.</p> <p>The judgment annulled title to other lands than that to which plaintiff has a right. To that extent the judgment is amended.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4490.]</p> <p>(Syllabus by the Court.)</p>

Action by the state, on relation of Robert D. Cain and others, against T. J. Davis, •sheriff, and the police jury of Vernon parish, praying for a judgment directing a liquor license to issue to relators. From a judgment for relators, the sheriff and police jury appeal.

<p>1. Libel and Slander — Words Tending to Injure Business.</p> <p>The exception of no cause of action was erroneously sustained.</p> <p>2. Action — Time for Bringing.</p> <p>A suit should not be dismissed on an exception of prematurity, when the cause of action on which it is brought exists at the time it is instituted.</p> <p>3. Same.</p> <p>The question as to the particular time at which a suit should be tried is essentially different from that as to when the plaintiff has the right to institute it. Defendant might have the right to have the case continued to await some decision in another case, and yet not be entitled to throw plaintiff’s suit out of court.</p> <p>4. Same — Limitations—Words Injurious to Business.</p> <p>This suit is one “ex delicto.” If plaintiff were to delay filing it until the condition of the evidence be such as to warrant his immediately trying it, he might be cut off from all opportunity of doing so by a plea of prescription of one year.</p> <p>5. Abatement and Revival — Another Action Pending — Identity of Causes of Action.</p> <p>Though the result of a suit in one court may enter as a factor in the determination of another in a different tribunal, “lis pendens” cannot be properly pleaded on the ground of the coexistence of the suits, where the causes of action are not identical.</p> <p>(Syllabus by the Court.)</p>

<p>1. Health — Regulations of Boards of Health — Review by Courts.</p> <p>Under the Constitution and laws of the state the power to define and abate nuisances dangerous to the public health is vested in the boards of health of the different parishes and municipalities. This power is legislative in its nature, and the courts have no right to interfere with its exercise except in clear cases of abuse.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 25, Health, § 9.]</p> <p>2. Same.</p> <p>The police jury is without authority to modify or nullify an ordinance adopted by the board of health of the parish.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 25, Health, § 7.]</p> <p>3. Same — Ereect or Ordinance.</p> <p>Where the board of health passed an ordinance declaring the use of fish and shrimp-shell refuse as á fertilizer to be a nuisance dangerous to public health, the question whether such fertilizers can be safely used during the winter months is concluded by the ordinance, where it does not clearly appear that the action of the board was arbitrary.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 25, Health, §§ 29-31.]</p> <p>(Syllabus by the Court.)</p>

<p>Perpetuities — Donation to Pious Uses.</p> <p>A condition of inalienability attached to a donation for pious uses is void, and reputed not written — both as creating a tenure of. property not provided for by our Code, and therefore impliedly forbidden; and as putting property out of commerce, and therefore contrary to public policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Perpetuities, §§ 45-56.]</p> <p>Breaux, C. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Nathan I. Schwartz was convicted of a violation of the act for the protection of non-' game birds, and applies for certiorari and prohibition.

<p>1. Criminal Law — Former Jeopardy.</p> <p>The defendant, charged with murder, interposed the plea of former jeopardy.</p> <p>2. Same — Recital of Facts.</p> <p>He had been tried to the extent that the testimony had gone to the jury. The usual proceedings were observed. The jury retired to their room of deliberation. After two hours they returned and reported to the court that they could not agree. The court ordered note of a mistrial to be made and discharged the jury.</p> <p>The complaint on the second trial was that the time allowed for deliberation was not sufficient.</p> <p>3. Same — Discretion of Trial Judge.</p> <p>Many things within judicial proceedings cannot be brought within an exact rule. Necessarily many are left to the. discretion of the trial judge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2072.]</p> <p>4. Same — Mistrial.</p> <p>The trial court, having heard the evidence, was aware of the nature of the questions involved. and was in a position to determine whether the jury had deliberated a sufficient length of time to justify entering an order of mistrial and discharging the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2071-2078.]</p> <p>5. Same — No Former Jeopardy.</p> <p>Unless the court has manifestly erred, the order complained of will not afford ground to enable the defendant to successfully stand on the plea of former jeopardy and claim his acquittal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 344.]</p> <p>6. Same — Time for Deliberation.</p> <p>While this court has always sought to impress the trial court with the importance of avoiding hurry in the trial of criminal cases, it has left it in great part to the trial court in its discretion of judging of the length of time a jury should deliberate.</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 the police jury of Avoyelles .against the town of Mansura. Judgment for ¡plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Suit by William A. Freret on a lease against Alice A. Taylor. From a judgment for plaintiff, defendant appeals.</p>

<p>T. Injunction — Dissolution on Bond — Compensation.</p> <p>On an appeal from an order authorizing an Injunction to be dissolved on bond.</p> <p>If specific performance can be required, to the extent that there will be failure in complying, ample compensation may be decreed.</p> <p>2. Same — Insolvency op Parties — Property to be Accounted eor.</p> <p>Plaintiff makes no mention of apprehended insolvency of defendant, nor of the insufficiency of the bond. There is no sentimental claim urged. It all relates to property and its value, which cannot be stealthily made away with.</p> <p>3. Same — Discretion oe Court — Not a Matter oe First Impression.</p> <p>Defendant addressed a motion to the district court for an order to bond. It was granted in a former injunction. On application for writ of review the matter was brought to the attention' of the Supreme Court. The discretion of the district court was not interfered with. In a second injunction, similar proceedings were had. Substantially the result is the same, and the question is before the court on appeal.</p> <p>Held, that the district court is invested with large discretion, and that it does not appear to have been improperly exercised.</p> <p>Provosty, J., dissenting.</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 Minnie Dowden against A. C. Dowden. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by Henry Riney against the Hemenway Furniture Company, Limited. Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; James Edward Moore, Judge.</p> <p>Action by J. D. Head and others against the Howeott Land Company, Limited. Judgment for defendant, and plaintiffs appeal.</p>

<p>Master and Servant — Personal Injuries— Evidence.</p> <p>Action for damages for personal injuries. No disputed question of law involved. Judgment affirmed on the facts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 950-996.]</p> <p>(Syllabus by the Court.)</p>

<p>1.Appeal — Procedure—Citation.</p> <p>Where an appeal is taken during the term of court at which the judgment is signed and the day after the signing, it may be taken by motion, and citation is unnecessary.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2099.]</p> <p>On the Merits.</p> <p>2. Landlord and Tenant — Repairs—Duties op Landlord.</p> <p>A lessor is as much bound to keep the necessary approaches to the apartments which he lets in a safe condition, for ordinary use, as the apartments themselves.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 629.]</p> <p>3. Costs — Security eor Costs — Rule to File.</p> <p>Section 4 of Act No. 136, p. 190, of 1880, entitling defendant to demand “bond or other security” for costs, is not confined in its application to one bond to be given at the inception of the litigation, but may be invoked, from time to time, as occasion may require. When, however, the ex parte order to furnish a second bond is not served on plaintiff, or at his domicile, but on his attorney, whose authority in the premises is not shown, and the bond is filed before the day fixed for the hearing of a rule taken for the dismissal of the suit, such rule is properly discharged.</p> <p>4. Landlord and Tenant — Injury to Tenant-Contributory Negligence.</p> <p>Lowering furniture over the railing of a gallery is not the ordinary use for which the lessor is presumed to warrant the safety of such railing; and those who resort to such means, when other and safer ways are open to them, do so at their own risk, and not at the risk of the lessor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 642.]</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 H. C. Yarbrough against Swift & Co., Limited. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Descent and Distribution — Rights oe Collateral Heirs — Contract oe Ancestor.</p> <p>Collateral heirs have no standing to attack for fraud, or as simulated, or as a donation made-in violation of Civ. Code, art. 1497, a contract made by their de eujus and fully executed by the other contracting party.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig-vol. 16, Descent and Distribution, §§ 208-210.],</p> <p>2. Contracts — Executory Contracts — Validity — Consideration.</p> <p>A conveyance of property (where the grantor reserves enough for his support), the consideration of which is the obligation of the-grantee to provide the grantor with a home during his life, and to bury him, when dead, is an aleatory contract, which, save under exceptional circumstances, is not open to attack for lesion, and, though neither a sale nor a donation, cannot, after having been fully executed by the grantee, be successfully assailed by the collateral; heirs of the grantor on the ground that such contract is unknown to our law.</p> <p>(Syllabus by the Court.)</p>

Action by Smith & Standifer against Ivey Bros, and others. Judgment for plaintiff was affirmed by the Court of Appeals as to certain of the parties, and plaintiffs apply for certiorari or writ of review.

<p>Appeal from City Court of Shreveport; Rhydon Dickens Webb, Judge.</p> <p>Action by J. F. Fisher against T. J. Bryson. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas Moore Burns, Judge.</p> <p>A. J. Welch was convicted of violation of the liquor law, and appeals.</p>

<p>1. Homicide — Review—Evidence.</p> <p>This court cannot, in the absence of the evidence upon the subject, review the ruling of the trial judge, in a murder case, to the effect that no overt act, on the part of the deceased, has been proved.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, § 695.]</p> <p>2. Criminal Law — Evidence—Statement oe Person Injured — Explanation—Admissibility.</p> <p>Where, after being mortally wounded, the injured person makes an exclamation to another person, which is, plainly, part of the res gestae, testimony should be admitted, when required, to show the meaning and significance of such exclamation; as, for instance, K., having been shot by L., fell, a minute or two later, mortally wounded, into the door of P., exclaiming: “I am shot through and through, and if I had listened to you this would not have happened.” Held, that defendant (on trial for the shooting) should have been allowed to elicit from P. (the witness on the stand) testimony as to what had passed between him and the deceased constituting the basis of the exclamation.; and this, without regard to time.</p> <p>[Ed. Note. — For, cases in point, see Cent. Dig. vol. 14, Criminal Law, § 862.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John Bachman Lee, Judge.</p> <p>R. B. Mitchell was convicted of manslaughter, and appeals.</p>

Action by Payne & Joubert and others against the Schaeffer-Gaiennie Company, Limited. Application of Mrs. Cuthbert Schaeffer to have judgment homologating receiver’s account vacated denied, and appellant appeals.

Action by W. Y. Robson and others against M. R. Beasley and husband and by A. F. Jenkins against M. R. Beasley. Motion by sheriff to have a certain amount taxed as costs. From an order rejecting his claim, the sheriff appeals.

<p>1. Mandamus — To Judge.</p> <p>The applicant asks for a mandamus to bring about the fixing of a case for trial by the judge ad hoc. The respondent in his answer to the rule nisi states that he has fixed the case, and that it will be called for trial at the time fixed.</p> <p>2. Same — Compliance With Rule.</p> <p>The respondent having complied with the rule nisi, it would serve no purpose to issue the mandamus.</p> <p>(Syllabus by the Court.)</p>

Action by Morgan’s Louisiana & Texas Railroad & Steamship Company against Henry I. Stewart. On trial of a rule to dissolve an attachment issued in the action, the court made the rule absolute and dissolved the attachment, and plaintiff appeals.

<p>Appeal from Fourteenth Judicial District -Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>M. L. Laborde was convicted of selling liquor without a license, and appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>T. R. Roy was convicted of crime, and appeals.</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; John Stirling Boatner, Judge.</p> <p>Action by Henry Hollins and wife against the New Orleans & Northwestern Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Insurance — Life Insurance — Application —False Answers.</p> <p>Where, in an application for life insurance, the assured expressly warrants the truth of the answers made to the medical examiner, and it is further stipulated that the policy shall be avoided if any answer be untrue, the contract is the law of the case, and the policy will be -declared forfeited, where it is alleged and pi-ov■ed that the assured answered untruly that she ihad never had a “chronic or persistent cough.” .Act No. 52, p. 86, of 1906, is noted as making-radical changes in the laws governing life in-surance policies made or delivered in this state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. ■vol. 28, Insurance, §§ 681-690.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermilion; William Pierrepont Edwards, Judge.</p> <p>Action by Sylvester Abshire against Franeoise Hanks, his wife. Judgment for plaintiff, and defendant appeals.</p>

<p>Corporations — Debts — What Constitute.</p> <p>The defendant company received all the stock of the Leesville Lumber Company, Limited, and nearly all of its property by deed of sale.</p> <p>After the defendant company had become the transferee of the stock, it continued operations until January 1, 1905, without change.</p> <p>After it became transferee by deed and actively took charge in its own name, it paid part of the debt, and its president gave his note for the remaindei’. It represented an indebtedness of the company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig-vol. 12, Corporations, § 2316.]</p> <p>Provos.ty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Jennie Plough. On accounting, judgment in favor of James Howard, sole debtor, and Lavinia Lewis, and others, opponents appeal.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by the Bodeaw Lumber Company against M. D. L. and J. F. Huddleston. Judgment for plaintiff. Defendants appeal.</p>

<p>Courts — Supreme Court — Criminal Jurisdiction — Appeal.</p> <p>This court is without jurisdiction of an* appeal in a criminal case, where the maximum penalty authorized by the law is a fine of $100' and imprisonment, without hard labor, for 6 months, and the penalty actually imposed is a fine of $50, or, in the alternative, imprisonment,, without hard labor, for 30 days.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by the Mayville Canal Company, Limited, against the Lake Arthur Rice Milling Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Action by Sarah Rhodes Keating against the John Wilbert and the A. Wilbert’s Sons Lumber & Shingle Company. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Criminal Law — Instructions—Grades of Offenses.</p> <p>It is only in prosecutions for murder that the judge is required of his own motion to instruct the jury as to verdicts for offenses of lower grades than that for which the accused is prosecuted. In other cases such instruction should not be given, even though requested, unless called for by the evidence adduced.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1923-1927, 2005.]</p> <p>2. Same — Former Jeopardy — Pleading.</p> <p>The defense of autrefois acquit must be specially pleaded before verdict. It cannot be set up by way of motion for new trial, or in arrest of judgment.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 14, Criminal Law, § 666; vol. 15, Criminal Law, §§ 2138, 2432.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Mandamus — When Lies — Forced Heirs.</p> <p>The district court recognized plaintiffs as forced heirs. There was no ground for further-action on that score.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Mandamus, § 9.]</p> <p>2. Same — Right Reserved.</p> <p>The right to place them in possession was-reserved to be considered in proceedings later. Whatever error may have been committed will' come up on the appeal taken.</p> <p>The issues do not present such a case as-would justify the court were it to order that mandamus issue.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of 'Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Alexander B. Lacoste against the • city of New Orleans and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Mary Jane Coleman against Charles M. Thibodaux. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of •Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by J. P. Bourdette against William Burke. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Attorney General — Actions by State-Powers — Cause Alleged.</p> <p>The district attorney as representative of the state brought suit to set aside, an entry of land and to set aside the patent, on the ground that the land was fraudulently entered.</p> <p>2. Same — Ground eor Continuing the Suit.</p> <p>There was a tentative compromise entered into, which it is proposed to submit to the General Assembly at its session in 1908.</p> <p>3. Same — District Attorney Opposed Continuance.</p> <p>On different grounds stated in the opinion, the district attorney sought to continue with the prosecution of the suit.</p> <p>4. Same — Matter Leet to General Assembly.</p> <p>The Governor deemed it to the interest of the state to continue the case in order to submit the terms of compromise to the Legislature.</p> <p>5. Same — Attorney General Acts.</p> <p>In accordance with direction from the Governor to the Attorney General the latter filed a motion for a continuance, which was granted by the district court.</p> <p>6. Same — No Ground eor Mandamus.</p> <p>Such a motion may be filed by the Attorney General and a temporary continuance granted for the purpose of leaving matters to the legislative department, in order that the state may take steps, if deemed proper, for the protection of her interests.</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 Anna B. Travis against the Kansas City, Shreveport & Gulf Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Fourth Judicial District «Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>Action by J. S. Janes against J. H. Wilson, town marshal. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Benjamin F. Queen against William Schwann and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Actions — Joinder oe Causes.</p> <p>A petitory action and an action in jactitation or slander of title and an action for damages for trespass should not be cumulated in the same suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Action, §§ 405 — 415.]</p> <p>(Syllabus by the Court.)</p>

<p>Application of Jean Murat for writs of ■certiorari, mandamus, and prohibition to the city of New Orleans.</p>

Application by the state, on the relation of John Journee for a writ of mandamus to' the board of commissioners of the police department of the city of New Orleans. From an order refusing the writ, relator appeals-

Case Certified from Court of Appeal, Parish of Orleans. Action by Robert J. Perkins against the Crystal Ice & Pop Manufacturing Company, Limited. Rule to show cause why order appointing receiver should not be vacated, dismissed, and the movers appeal to the Court of Appeal, which certified the question to the Supreme Court.

<p>1. Pilots — Atjthobity to License.</p> <p>Whilst Act Cong. March 2, 1837, c. 22, 5 Scat. 153, provides that either of two states, having a water boundary “between” them, may license persons to pilot vessels to and from “any port, situate” thereon (i. e., on the “waters which are the boundary between” the two states), the waters of the Mississippi river,' at South Pass, thence to New Orleans, and thence to the Mississippi state line, lie wholly within the state of Louisiana, and are no more the boundary between that state and the state of Mississippi than between Louisiana and any other state which the Mississippi river, or its tributaries, may pass through, or touch, on their way to the Gulf of Mexico. Hence the act of Congress does not, and the law of the state of Mississippi could not, furnish authority for the licensing of a person to pilot vessels in such waters.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 39, Pilots, § 3.J</p> <p>2. - Same — Construction oe License.</p> <p>An examination of the law of Mississippi does not lead to the conclusion that it was the intention of the Legislature to authorize the issuance of licenses to persons'to engage in piloting in waters wholly outside that state and wholly within the limits of the state of Louisiana.</p> <p>(Syllabus by the Court.)</p>

Action by Shelby Baucum and others against the police jury of Claiborne parish. Judgment for defendant, and plaintiffs appeal.

<p>1. Pleading — Answer—Amendment—Master and Servant — Injuries to Servant.</p> <p>Where an employé sues his employer for ■damages for personal injuries received through the alleged fault or negligence of the latter, the 'latter can, in an amended answer, set up in defense that the plaintiff assumed the risk of the accident which happened, or that it resulted from the fault of a fellow servant, without changing the issue raised by a general denial. Defendant had the right, under the general is■sue, either by direct evidence, or through cross-examination, to bring out all the facts constituting the res gestee of the accident.</p> <p>•2. Master and Servant — Negligence oe Fellow Servant.</p> <p>The fact that one employe receives injuries hy reason of the act of a fellow workman does not necessarily relieve the employer from legal responsibility for the accident.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 352.]</p> <p>3. Same — Dangerous Method oe Work.</p> <p>Where an employer adopts a method of doing his work which involves risks and danger greater than the nature of the work calls for, he should take correspondingly appropriate precautions to guard against the increased danger and risks.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 269, 270.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal — Bond—Sufficiency.</p> <p>The court of the first instance after an appeal has been taken still has jurisdiction to pass upon the question of the insolvency or illegality of the bond.</p> <p>'[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2205-2207.]</p> <p>2. Same.</p> <p>The district court in accordance with this view, after some delay, owing to oversight, decided that the bond was sufficient and' legal.</p> <p>3. Same — Conclusiveness op Decision.</p> <p>The decision put an end to further issues upon the subject in the district court.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; James Edward Moore, Judge.</p> <p>Action by George .Gruner and others against the police jury of Claiborne parish. Judgment for defendant Plaintiffs appeal.</p>

<p>1. Lis Pendens — What Constitutes.</p> <p>Where a nonresident is proceeded against by substituted process, the judgment can operate only on the property seized in the suit. Hence, where such a suit is against two parties, and the property of only one of them is seized, the suit can be invoked as lis pendens only by the party whose property has been seized.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 73-81.]</p> <p>2. Jud&ment — Res Judicata.</p> <p>The judgment in such a suit condemns only the property, and hence, when adverse to the defendant, cannot be pleaded by him in bar of another suit, wherein other property is being proceeded against.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1098, 1099.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — View By Jury — Waiver oe Objections — Did Not Accompany the Jury.</p> <p>It would be better and safer if the trial judge were to accompany the jury. His failure to accompany the jurors, not timely urged, affords no good ground to set aside the jury’s verdict.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 15, Criminal Law, § 2644; vol. 14, Criminal Law, § 1461.]</p> <p>2. Same — Not Misconduct.</p> <p>The jury while at the scene of the homicide were in charge of two deputies, within whose sight they were all the time they were in the house. They did not talk to any one other than members of the jury.</p> <p>[Ed/Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1519.]</p> <p>3. Same — Presence oe the Accused.</p> <p>The accused, in charge of the sheriff, followed the jury to the house where it was stated the killing took .place. He, in charge of the officer, remained outside. He did not ask to go into the house, and urged no objection.</p> <p>The jury was inside the house about five minutes.</p> <p>The case went to the jury. After their verdict, on application for new trial, was the time that objection was urged. It was not timely urged.</p> <p>4. Homicide — Charge.</p> <p>Taken as a whole, the charge complied with the law. The principle of self-defense was sufficiently given to the jury.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Dawkins, Judge.</p> <p>Action by Alphin H. Roff against the Summit Lumber Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by R. E. Milling and others against the Sulphur Timber & Lumber Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; Louis Bingaman Claiborne, Judge.</p> <p>Action by George B. Sheehy praying for confirmation of tax title. Judgment for defendants, and plaintiff appeals.</p>

Action by Henry L. Huntington against J. W. Westerfield. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

Paul, Judge. Application by the state, on the relation of L. A. Hubert, receiver, for a writ of mandamus against the mayor and council of the city of New Orleans. Writ denied, and plaintiff appeals.

<p>1. Taxation — Exemptions—Presumption of Continuance — Injunction.</p> <p>Plaintiff, claiming that it was exempted from parochial and municipal taxation for 1906, and three years thereafter, under article 230 of the Constitution, as manufacturers of articles of wood, enjoined the assessing and taxing collecting officers from assessing its property and collecting taxes thereon. The district court recognized the right of exemption and perpetuated the injunction.</p> <p>Held, on appeal, that the judgment is erroneous. The judgment is set aside, and the injunction dissolved. The court will not by its present decree adjudge a corporation exempt from taxation for future years. Conditions existing in one year may be entirely different in the next.</p> <p>2. Same — Manufactures.</p> <p>Conditions existing in the year 1906 did not justify plaintiff’s claim for an exemption from taxation for that year. The creosoting process on which its right to exemption was predicated was applied to cross-ties already existing as articles of wood, and which it had purchased from a company which had already made them. The process in question was not creative in character, but merely preservative.</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 town of Rayne against Benjamin F. Harrel. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Léche, Judge.</p> <p>Action by M. M. Gonzales and other» against Desire Saux and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John Bachman Lee, Judge.</p> <p>Lige Freeman, alias Snake was convicted of murder and appeals.</p>

<p>1. Grand Jury — Drawing.</p> <p>State v. Mitchell (La.) 44 South. 132, ante, ■p. 374, and State v. Lively (La.) 44 South. 128, ante, p. 363, reaffirmed.</p> <p>•2. Criminal Law — Trial — Argument oe District Attorney.</p> <p>Where counsel for defendant has commented on his custom not to put his clients on the stand in their own behalf, and the district attorney, in reply, has begun some comments on the said statement of counsel for defendant, but is stopped before he has completed his sentence, and the judge warns the jury not to draw .any prejudicial inference against the defendant from the latter’s not having testified in his ■own behalf, and the district attorney adds to the bill of exception the statement that he intended to tell the jury the same thing which the .judge told them, no injury to defendant is shown.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3127; vol. 14, Criminal Law, § 1693.]</p> <p>3. Same.</p> <p>In the course of the argument of the district attorney, a question arose as to whether certain testimony he was commenting upon had been given in the presence of the jury or during their retirement, and the court, agreeing- with the district attorney, in that the testimony had been given in the presence of the jury, allowed him to proceed, but, as an extra precaution, instructed the jury that they were the exclusive judges of the law and the facts and would have to disregard the comments of the district attorney on the testimony in question, if they had no remembrance of its having been given. Here, the only possible conclusion is that counsel for defendant was mistaken in saying that the testimony had been given out of the presence of the jury.</p> <p>'[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1670, 1677, 1693.]</p> <p>4. Same —Opinion Evidence — Homicide — Circumstantial Evidence — Appearance op Accused.</p> <p>Near a circus tent at night, a crowd of young men assaulted a negro, and a row ensued, during which pistols were fired, and a bystander was killed. The trial was for the killing of this man. The defense was an alibi. The evidence was all circumstantial. The theory of the state was that the accused had quickly gone away from the scene and immediately returned with a view to proving an alibi. A witness for the prosecution, having testified that immediately after the shooting he had met accused coming towards where the shooting had taken place, was asked: “What was his appearance?” and counsel for defendant objected that “the testimony calls for an opinion pure and simple of the witness; second, that it is no part of the res gestae, no part of the actual transaction itself, and what defendant and an outside party had to say at that time and place was hearsay, irrelevant, and immaterial.” The witness answered: “He seemed a little excited, panting, walking very fast, panting when he was talking.” In a ease of circumstantial evidence, the “appearance” of the accused may be proved.</p> <p>Provosty and Monroe, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Homicide — Evidence — Threats by Deceased.</p> <p>Where, on the trial of a person charged with murder, the evidence showed that before and at the time accused fired the shot which killed the deceased the latter had made no hostile demonstration nor committed any overt act against the accused, evidence is inadmissible on the part of the defense to establish that the deceased had made threats against the accused which had been communicated to the latter, and that the deceased was a violent and quarrelsome and dangerous man. Had the deceased in fact made such threats, and had he been a violent, quarrelsome, and dangerous man, those facts of themselves would not have justified the accused in shooting him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 399 — 402.]</p> <p>2. Same — Character oe Deceased.</p> <p>This being true, the trial court properly refused to allow questions to be asked and answered as to the character of the deceased, and as to his having made threats as ascribed to him, and to have such questions and answers taken in writing, to be made part of the record. No useful purposes would have been subserved thereby.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 391-397.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Descent and Distribution — Rights of Heirs — Conveyances in Fraud of Heirs.</p> <p>A forced heir is not estopped to attack, to the extent necessary to protect his legitime, the alleged illegal, fraudulent, or simulated conveyances of the person to whom he occupies that relation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 16, Descent and Distribution, § 210.]</p> <p>2. Same.</p> <p>The rule which denies to the creditor the right to assail the acts of his debtor, committed prior to the creation of his debt, has no application to the right of action of the forced heir for the reduction of an excessive donation, which, though arising only upon the death of the donor, relates back to a date anterior to the donation.</p> <p>3. Prescription — Computation of Period-Accrual of Right of Action.</p> <p>The prescription of an action to reduce an excessive donation begins to run from the date of the death of the donor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 336.]</p> <p>4. Action — Grounds—Motive for Act.</p> <p>The imputation or an illegal motive for doing an act authorized by law discloses no cause of action, since, by authorizing the act, the law places the motive beyond inquiry.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Action, § 4.]</p> <p>5. Estoppel — Equitable Estoppel — Persons Estopped.</p> <p>An ordinary heir cannot be heard to allege the turpitude of the person under whom he claims, nor to assert a claim which such person would be estopped to assert.</p> <p>6. Judgment — Equitable Relief — Consent Judgment.</p> <p>Children of a first marriage attacking a judgment of separation of property between their deceased father and his second wife, as art absolute nullity, and alleging that it was obtained by consent, without proof, and was not executed in due time, and also alleging prejudice to their legitime as forced heirs of their father, as the effect of such judgment, disclose a cause of action.</p> <p>7. Husband and Wife — Separation — Actions.</p> <p>The provisions of the law which authorize the wife to obtain judgment of separation of property contemplate that the separation shall not be a matter of consent, but shall be the result of deliberate, judicial, action, predicated upon proper pleading, a hearing of the parties, and due consideration of the evidence submitted by them, and that the judgment rendered shall not, even then, of itself, be binding on the creditors of the husband. The husband may, however, in such case, waive citation and his wife’s want of authorization to bring the suit.</p> <p>8. Judgment — Equitable Relief — Evidence —Burden of Proof.</p> <p>Where children of a first marriage, claiming as forced heirs, attack a judgment decreeing a separation of property between their ancestor and his second wife, and allege prejudice to their legitime, the burden of sustaining the-validity of the judgment rests upon those who-rely on it, and, if they fail to show the existence of conditions authorizing it and compliance-with the law in the matter of its execution, the judgment will be decreed to be, and to have-been, void, and all property thereafter acquired, whether in the name of the one spouse or the-other, unless affirmatively shown to be the separate property of the widow, will be held liable for such legitime.</p> <p>9. Same — Relief Awarded.</p> <p>Unless, in such case, the judgment is shown to be a mere simulation, the forced heirs take nothing under Act No. 5, p. 12, of 1884, and can succeed in their attack only to the extent necessary for the protection of their legitime.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of •Orleans; George Henry Théard, Judge.</p> <p>Action by the Carrollton Land. & Improvement Company, Limited, against the Eureka Homestead Society. From a judgment in .favor of plaintiff, defendant appeals.</p>

In the matter of the succession of Catherine Gabisso, widow of Louis Frigerio, Jr. From a judgment for Joseph and Margaret Frigerio, represented by their guardian, Louise Cuevas, the heirs of Frigerio appeal.

<p>Appeal from Civil District Court, Parish «of Orleans ; Fred Durieve King, Judge.</p> <p>Suit by Rufus W. Rogers against the ¡Southern Fiber Company and Abbott W. Law¡rence. From a judgment for plaintiff, defend-</p> <p>ants appeal.</p>

<p>1. Executors and Administrators — Settlement-Compensation.</p> <p>The personal property of the succession is administered in accordance with the laws of the domicile. To that domicile that property was transferred without having deducted the amount of the commission. There is no good reason to deduct the amount of the executor’s commission from another fund remaining within the jurisdiction of this court.</p> <p>2. Descent and Distribution — Succession to Real Estate — What Law Governs. .</p> <p>The realty is disposed of in accordance' with the laws of this state.</p> <p>The decision in the Gaines Case, 14 South. 602, 46 La. Ann. 261, 49 Am. St. Rep. 324, is', distinguished from the present case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 16, Descent and Distribution, §§ Í6-18.]</p> <p>3. Executors — Settlement—Compensation.</p> <p>Property that is unproductive, not showm to have required the least care or attention from the executors, cannot serve as a basis for commission.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig-vol. 22, Executors and Administrators, §§ 2090— 2093.]</p> <p>4. Husband and Wipe — Community Property — Indebtedness to Individual Spouse..</p> <p>Funds of one of the spouses used to buy property during the community become ant amount, after use, of indebtedness of the community.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; John Stirling Boatner, Judge.</p> <p>Alexander Clark was convicted of murder,, and appeals.</p>

Action by the Max J. Winkler Brokerage Company against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff was affirmed on appeal by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; George I-Ienry Théard, Judge.</p> <p>Action by Miss Catherine V. Ackermann against Mrs. Catherine Larner, widow of William H. Peters, and others. From a judgment in favor of plaintiff, defendants appeal.</p>

Suit by the Shreveport Traction Company to expropriate from the Kansas City, Shreveport & Gulf Railway Company a crossing over the latter’s right of way. From a judgment declaring the right of plaintiff to cross and fixing the amount to be paid defendant, ■defendant appeals.

<p>Appeal from Civil District Court, Parish, of Orleans; John St. Paul, Judge.</p> <p>Action by Theobald R. Rudolf and others against Adolph M. Costa. From a judgment for defendant, plaintiffs appeal.</p>

<p>Application by Lazar Mehojovich for writ of mandamus to the board of pardon.</p>

Action by the Jennings-Heywood Oil Syndicate against the Houssiere-Latreille Oil Company and others. From the judgment,, both plaintiff and the above-named defendant appeal.

Action by the Jennings-Heywood Oil Syndicate against the Houssiere-Latreille Oil Company. The Texas Company and the Producers’ Oil Company petition for removal to the United States court. A motion to stay was overruled, and the petitioners apply for a writ of prohibition.

Action by Alexander P. Perrin against the Crescent City Stockyard & Slaughterhouse Company, Limited. Rule against H. B. Wheeler and another to have them punished for contempt. On denial of the application, plaintiff applied for writs of certiorari and mandamus. Rule discharged.

Action by Manion & Co. and others against the board of directors of the public schools for the parish of Orleans. Judgment for defendants, and the Crescent Filter & Specialty Company applied for certiorari and mandamus.

Application by R. B. Powell and others for writs of certiorari and prohibition to review an order of a trial judge refusing to set aside an application for an injunction restraining relators as a new school board of the parish of De Soto, appointed by the Governor, from entering upon the discharge of the duties of such office, which were being exercised by A. F. Jackson and others, constituting an old board, all of the members of which had been removed by the Governor.

<p>Mandamus — To District Judge.</p> <p>While the Supreme Court will not lightly interpose its authority to control district judges in their discretion to fix the date of the trial of cases, it will do so under is supervisory powers in exceptional cases, when, in its judgment, it is necessary to bring about an effective remedial administration of justice.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 33, Mandamus, § 74.]</p> <p>(Syllabus by the Court.)</p>

Virginia Reed was charged on information-with embezzlement, and, on refusal of the-judge to reduce the amount of the bail, applies for writs of habeas corpus and certiorari.

<p>Application by John Fitzpatrick for a writ ■of mandamus in an action by said Fitzpatrick against Charles E. Letten and others.</p>

<p>1. Waters — irrigation Contract — Breach-Right or Action.</p> <p>In the (rice irrigation) contract before the court, the irrigating company (defendant) is made the sole judge as to when the water shall be furnished, and in what quantities, and it is otherwise stipulated that it shall not be liable for failure to furnish water, when such failure is caused by deficiency of water at its source of supply, accidents to machinery, injuries to canal, or other failures or accidents over which it has no control.</p> <p>Held, that the control vested in the defendant is accompanied by a corresponding measure of liability, and is exercised at its peril, and that the allegation that, having control of the water, it failed to furnish same, on proper demand, under the contract, and that plaintiff thereby lost his crop, would disclose a cause of action¡ and if sustained by proof would entitle plaintiff to recover, unless defendant could show that its failure to furnish the water was attributable to one or more of the causes exempting it from liability in such case.</p> <p>2. Same — Conditions—Notice.</p> <p>Where an irrigating contract contains a stipulation to the effect that the contracting company “shall be entitled to a written notice of not less than 10 days before water will be required on the premises,” which shall be served on a particular officer “and shall state, as nearly as may be, the number of acres to be irrigated at that time,” no damage can be recovered for failure to furnish water, in the absence of allegation and proof that the notice so required was given, unless it be satisfactorily shown that the inability of the company to furnish water was admitted.</p> <p>(Syllabus by the Court.)</p>

Action by George Selby and another against the city of New Orleans and others, and another action by Gustave Fitzner against F. A. Noullet & Co. The actions were consolidated and from the judgment F. A. Noullet & Co. and another appeal.

<p>1. Judgment — Res Judicata — Nonsuit — Questions Determined.</p> <p>Where, in a suit claiming different items of damage for violation of a contract to erect certain machinery, the court finds that the alleged violation was active, and gives judgment on some of the items, but, for lack of sufficient proof, dismisses the claim as to another, as in case of nonsuit, the question of the necessity of putting the defendant -in default is closed, and cannot be opened by way of defense, to a second suit, on the item with respect to which the judgment of nonsuit was rendered.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1251.]</p> <p>2. Damages — Breach oe Contract.</p> <p>Where one who has agreed to put up a kiln (and appurtenances) for the drying of lumber actively violates his contract by putting up a defective kiln, and the other contracting party sustains a loss by the “bluing” of lumber which he is obliged to stack in the open air, for lack of a kiln in which to dry it, the contractor is liable for the loss.</p> <p>[Ed. Note. — For cases in. point, see Cent. Dig. vol. 15, Damages, §§ 58-62.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by the Louisiana Western Railroad Company against the Louisiana Central Land & Improvement Company, Limited, and others. Judgment for defendants, and plaintiff appeals.</p>

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

Action by E. B. Varney against the Monroe National Bank. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of error.

Action by the Ruddock Orleans Cypress-Company against Charles De Luppe and others. Petition dismissed, and judgment affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.-

<p>1. Mandamus — To District Attorney — When Lies.</p> <p>In a proper case this court will review a judgment by writ under its supervisory power, even though the case be appealable; and such a proper case is manifestly presented where the district attorney has refused to bring an intrusion into office suit, and the judge has refused to mandamus him to do so, and the term of office of the officer sought to be proceeded against will run out before relief could be had by means of an appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Mandamus, § 9.]</p> <p>2. Same — Limitations—Expiration of Time to Perform Act — Effect of Appeal.</p> <p>By the perfecting of an appeal the case is transmitted to the appellate court, and the trial court is deprived of all jurisdiction over it; hence it is then too late to invoke the supervisory power of the Supreme Court for compelling the trial court to change its judgment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Mandamus, § 283.]</p> <p>’ (Syllabus by the Court.)</p>

Action by S. Goldstein against the city of Shreveport. Judgment for plaintiff was affirmed by the Court of Appeal, and on refusal of a rehearing the city of Shreveport applied for writs of certiorari and mandamus.

<p>Appeal — Dismissal — Irregularities in Bond.</p> <p>Where the appeal bond is sufficiently identified with the judgment appealed from, and the erasures and interlineations complained of are such as could not affect the liability of the surety, the appeal will not be dismissed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2050.]</p> <p>(Syllabus by the Court.)</p>

<p>Action by Julia D. Otillio against J. N. Otillio. Judgment committing defendant to imprisonment for failure to pay alimony, and he applies for writs of certiorari and prohibition.</p>

Application of the Union Sawmill Company for writ of mandamus against the Ar- • kansas Southeastern Railroad Company and others to compel the grant of an appeal.

<p>Appeal from .Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Shepard Smith against the New Orleans Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Case Certified from Court of Appeal, First 'Circuit.</p> <p>Action by George P. Harris and others ■ against the Natalbany Lumber Company. Case certified from the Court of Appeal.</p>

<p>‘Prohibition — When Granted — Imposition op Sentence.</p> <p>Defendant, who was tried and found guilty in a criminal case which is unappealable, seeks in this present proceeding to prevent the trial • court imposing sentence upon him, on the ground that the statute for violation of which he was found guilty is unconstitutional.</p> <p>Ruling: The court will not interpose its authority to prevent the imposing of the sentence. Relator should have recourse to the writs asked for after the sentence has been imposed, not before.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Prohibition, § 67.]</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. Action by Carrie Meyers against Solomon Rosenthal for separation from bed and board. Judgment for alimony was affirmed on suspensive appeal, and from a judgment against the surety on the appeal bond for the alimony, defendant and the surety appeal.

<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 De Soto. Judgment for defendant, and plaintiff appeals.</p>

In the matter of the succession of R. M. Filhiol. Application of Inez Schmidt to pro-hate will. H. H. Filhiol filed an opposition. .Judgment ordering the probate, of the will, ex- • cept as to certain provision therein, and appointing Inez Schmidt as executrix. From the judgment, Inez Schmidt and H. H. Filihiol appeal.

<p>"1. Jury — Disqualification—Exemptions.</p> <p>The fact that a juror may be a justice of the peace or constable or deputy sheriff is not .a sufficient cause for challenge under the express terms of section 2, Act No. 135, p. 217, of 1898. Exemption from jury duty is a personal privilege.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, § 264.]</p> <p>•2. Same.</p> <p>The fact that a juror may be engaged in •operating a gambling game is no sufficient cause for challenge. The law excludes only those persons who have been convicted of some infamous crime. Const. 1S98, art. 159.</p> <p>3. Same — Waiver of Objections. ■</p> <p>Objections to the service of the jury list, 'based on the small number of regular jurors present for duty, if not seasonably urged, will be considered as waived.</p> <p>-4. Criminal Daw — Trial — Misconduct of Counsel.</p> <p>Where the counsel for defendant opened a ■discussion on the subject of lynching negroes ■for criminal assault on white women, and argued that his client was innocent because he had not been lynched, and the district attorney thereupon replied that negro domination in times ■past had forced the white people to protect them■selves, but that there was no longer any neces.sity for lynching, and every man, white or black, was entitled to a fair and impartial trial, held that, while the whole discussion was exceedingly improper and should have been repressed by the trial judge, the remarks of the district at-torney could not be considered as an appeal to race prejudice for the purpose of influencing the jury.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. •vol. 14, Criminal Daw, § 1676.]</p> <p>(Syllabus by the Court.)</p>

Action by the Junius Hart Piano House, Limited, against Charles Ingman. Judgment for plaintiff. I-I. B. McMurray, sheriff, and the Junius Piano House, obtained a rule against John D. Abadie and James F. Abadie for contempt of court. Judgment' against defendants in rule, and they apply for writs of prohibition and certiorari.

W. Ellis, Judge. Action by Frank A. Cristadoro and wife against the heirs of Ferdinand Von Behren and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the succession of Louis Sportono against W. H. Howcott and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Samuel S. Marks was convicted of crime, and appeals.</p>

<p>IDivoeoe — Adulteet—Evidence.</p> <p>The fact of a wife having syphilis will not justify a divorce on the ground of adultery, ■where the parties lived together as man and wife for over a year after the husband knew of ithe wife’s having the disease, and the husband shows no more reason at the time of bringing the suit for divorce than he had while he was living with his wife for ascribing a criminal origin 'to the trouble.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. «rol. 17, Divorce, §§ 411-441.]</p> <p>^Syllabus by the Court.)</p>

<p>Taxation — Inheritance Tax — Property Subject. p</p> <p>Where the contract between the agent of ■an insurance company and the company provides that, in case the agent dies while the agency still continues, his heirs shall be entitled to a ■commission of 5 per cent, on the net amount received by the company on the renewal of certain policies, held that, at the death of the •agent, his heirs inherit, not any part of the premiums, but merely a right to be paid by the insurance company a certain amount of money •to be computed on the premiums, and that, ac■cordingly, an inheritance tax is due on the right or claim thus inherited, although the premiums are assessed to the company and taxes are regularly paid on them and the computation •of the commission is made only after deduction of the taxes thus paid.</p> <p>(Syllabus by the Court.)</p>

<p>1. Auctions — Sale of Land — Plan—Rights qe Purchasers.</p> <p>Where a plan by which an urban lot was sold at public auction was so grossly inaccurate as to the boundary lines as to represent the area of the property as much greater than it really was, and the adjudicatee was misled by the plan, the adjudication will be canceled on the ground of error as to the thing intended to be purchased.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 5, Auctions and Auctioneers, § 32.]</p> <p>2. Same.</p> <p>In such a case the verbal declarations of the auctioneer as to nonwarranty of the extent of one of the boundaries will not affect the adjudicatee, who did not hear such declarations, if made, but purchased on the faith of the plan referred to in the advertisement and exhibited by the auctioneer at the time of the sale.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 5, Auctions and Auctioneers, §§ 31, 32.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Eminent Domain — Municipal Corporations — Change of Street Grade — Right to Damages.</p> <p>Under article 167 of the Constitution, the owner of property abutting upon a street in a municipal corporation is entitled to recover the damages sustained by the property by reason of the grading, or change in the grading, of the street, and in estimating the value of the property for the purpose of assessing such damages the benefit to result from the grading is to be considered only in so far as it is peculiar to the property; the benefit so resulting which is common to the community not being taken into account.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 390.]</p> <p>2. Same — When Liability Arises.</p> <p>By the adoption of a grade, thereafter to be established, the corporation fixes the status of an existent lot as property which must, sooner or latter, be affected by the actual establishment of the grade so adopted, and the right to recover for such damage as it may sustain, though inchoate at the moment, becomes perfect when the damage is actually inflicted, and may be exercised by the then owner. But, if the lot be not improved when the grade to be -•actually established in the. future is adopted (on paper), no liability for damage to improvements is imposed and no right of recovery with respect- thereto is created. Under such circumstances, if then nonexistent improvements are •subsequently and at the option of the owner placed on a lot, they come into existence subject to conditions already established, and of -which the owner of the lot ha's notice, and he must govern himself accordingly.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. -voí. 18, Eminent Domain, §§ 266, 269, 270.]</p> <p>Land and Provosty, JJ., dissenting in part.</p> <p>On Rehearing.</p> <p>3. Same-Mnitial Grading.</p> <p>Under article 167 of the Constitution of 1898 a municipal corporation is responsible for •damage to private property resulting from the initial grading of a street, as well as from a -change of the established grade. The rule, ■“Damnum absque injuria,” was abrogated by said article of the Constitution in all such -cases.</p> <p>4. Same — Measure oe Damages.</p> <p>In this case the measure of damages is the -consequential diminution of the market value of the property or the improvements thereon by reason of the grading. The necessary cost of ■changes and alterations of improvements and ' premises in order to preserve the same and to ■conform to the new grade is an element of damage which should be considered.</p> <p>(Syllabus by the Court.)</p>

Action by Leon Lavedan against R. F. Choppin. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Taxation — Sale—Payment of Taxes.</p> <p>Where the tax debtor 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 the basis for the constitutional prescription of three years. It makes no difference that the assessment in the record owner’s name contained an error of description. Bernstine v. Leeper, 118 La. 1Ó98, 43 South. 889, reaffirmed.</p> <p>(Syllabus by the Court.)</p>

Durieve King, Judge. In the matter of the succession of Caroline Herber, widow of Joseph Herber. From an order sustaining exceptions to the petition of Frederick Baumgartner and others, attacking the will, they appeal.

<p>Action by the Audubon Hotel Company, Limited, against Jay Braunig and Thomas Boettler. Judgment for plaintiff, and defendants applied for certiorari and prohibition.</p>

In the matter of .the succession of Odelie Zebriska. Rule against adjudieatee at judicial sale, to accept title. The city of New Orleans filed an intervention, and plaintiffs in rule appeal.

<p>1. Municipal Corporations — Police Power —Health—Regulation oe Dairies.</p> <p>By Act No. 45, p. 46, of 1896, the city of New Orleans was given express authority and power to regulate the location of, and inspection and cleanliness of, dairies likely to be or become detrimental to health or comfort and to adopt such ordinances and regulations as shall be necessary for the protection of health, and to prevent the spread of disease, and to maintain good sanitary conditions in the streets, etc. In May, 1907, the common council of the city acted under that authority by adopting its Ordinance No. 13,335, which declared that from and after its ' adoption it should not be lawful for any person to carry on a dairy within certain designated limits, and that all dairies then existing by virtue of any previous ordinance of the city should be removed within 10 years from the promulgation of the ordinance. By the fifth section of the ordinance it was provided that any person convicted of the violation of the ordinance should be sentenced to pay a fine of $25 and in default thereof be imprisoned for a period of 30 days.</p> <p>In June, 1907, defendant was charged with a violation of this ordinance by failing to remove his dairy from within the limits designated by the ordinance. He excepted that the ordinance was illegal and unconstitutional on a number of grounds, but they were overruled, and he was convicted and sentenced. None of the grounds of complaint urged are well grounded.</p> <p>Held, that the right and power of the city to prohibit the carrying on of dairies inside of certain limits therein, when that power is exercised in the interest of public health, is undoubted. It is to be presumed that the common council, charged by law with the determination of that question, has not acted capriciously, oppressively, or arbitrarily, but that it has acted in and for the best interests of the people of New Orleans. The proposition contended for by accused that, by reason of his having established his dairy within limits assigned at that time for dairy purposes and expended money in the improvement of the property, he has acquired a vested right to remain in that location, no matter what change in conditions may have occurred subsequently, and that the couneil by once fixing dairy limits had exhausted its powers over the subject-matter, is manifestly untenable. Public interest and progress cannot be tied up in that way. All property is held subject to the paramount right of the public safety and health. The general right of a person to engage in any trade, profession, or business is subject to the power inherent in the state to make all rules and regulations respecting- the use and enjoyment of property rights necessary for the public health,- morals, comfort, and safety, and such regulations do not deprive owners of property without due process of law. Parties who had dairies in existence at the time of the adoption of the ordinances within the prescribed limits have no legal ground to complain of discrimination, in that they have been accorded 10 years to lessen the consequences of a sudden move, while others are prohibited at once from carrying on dairies within the same limits; the discrimination, if any, being in their own favor. The ordinance itself as a whole, and as such, had effect from the date of its promulgation, the portion relative to the change of location as well as the other parts.</p> <p>I'Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 825; vol. 36, Municipal Corporations, § 1380.]</p> <p>2. Same — Validity oe Ordinance.</p> <p>An ordinance is not invalid because some of its provisions are to take effect in the future or upon a contingency.</p> <p>(Syllabus by the Court.)</p>