Volume 120 — Louisiana Reports

<p>1. Appeal — Transcript—Motion to Use.</p> <p>A motion to use a transcript, already in this court, in order to perfect the transcript of an appeal in the same proceeding subsequently brought up, is in time, though made after a motion to dismiss the appeal, provided it be made, at the time of or before the argument and submission of such motion to dismiss.</p> <p>2. Same — Intekest to Sustain.</p> <p>Whether a stockholder of a corporation, said to be insolvent, -who has intervened pro interesse suo, after trial of the oppositions to the receiver’s account, has sufficient interest to sustain his appeal, is a matter that can be best determined after a hearing on the merits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 921.]</p> <p>On the Merits.</p> <p>3. Appeal — Theory op Case — Chan ge in Argument.</p> <p>The complaint set forth in the petition, and on which alone the case was tried, cannot be changed in argument in the Supreme Court to another; for instance, where the charge in the petition and on which the case was tried is a conspiracy to procure a sale to be made in block, instead of in detail, it cannot be changed in argument in the Supreme Court to that of a conspiracy to procure the sale to be made without appraisement.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1053-1061.]</p> <p>4. Assignments — Corporations — Insolvency-Purchase op Claims by Creditor.</p> <p>No principle of law stands in the way of two or more creditors of an insolvent corporation clubbing their interests for buying up the other creditors at a reduced figure, or of their doing so through an interposed person and having such person thereafter champion the claims in court,, as if owner of them, in the course of the judicial settlement of the affairs of the corporation. What one may do one’s self one may do through an agent, and there is nothing fraudulent in buying up claims against an insolvent corporation and afterwards championing them in court.</p> <p>5. Parties — Intervention.</p> <p>An intervention, especially if it adds new grounds, comes too late after trial.</p> <p>TEd. Note. — For cases in point, see Cent. Dig, vol. 37, Parties, § 69.]</p> <p>6. Corporations — Insolvency — Rights op Stockholders.</p> <p>Where a corporation is insolvent and in the hands of a receiver, one of its stockholders has no standing for interfering in the settlement of its affairs.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 2176.]</p> <p>7. Appeal — Amendment op Judgment.</p> <p>A judgment cannot be amended on appeal prejudicially to parties who are parties to it, but not to the appeal. Thus, where several separate oppositions to the final account of a receiver have been disposed of by one judgment, and the receiver has not appealed, and appeals have been taken in only some of the oppositions, the fee of the receiver, which was reduced at the instance of all the opponents, cannot be increased on the answer of the receiver to the appeals.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4413, 4415.]</p> <p>(Syllabus by the Court.)</p>

Landry; Edward Taylor Lewis, Judge. Mandamus by the state, on relation of E. M. Boagni, against the Colorado Southern, New Orleans & Pacific Railroad Company to enforce compliance with a decree that defendant install and maintain necessary crossings, culverts, and cattle guards, and to compel defendant to remove loose earth piled on relator’s land, and to restore the embankment where the cut was wider than the right of way. Judgment for relator, and defendant appeals.

<p>Appeal .from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Petitory action by Adam Doucet and others against Michael Fenelon. Judgment for defendant and plaintiffs appeal.</p>

Partition hy the Interstate Land Company, Limited, against William Doyle and another, minors. An order was entered dismissing a rule filed by defendants to compel plaintiff to furnish an account of rents collected since plaintiff had possession, and from a judgment refusing to dissolve a writ of sequestration, absolutely or on plaintiff furnishing bond, plaintiff appeals.

In the matter of the tutorship of Julia Eleanor Brown. On an appointment of Marion Brown tutrix, Julia M. Brown moved to set the same aside and to be appointed tu-trix. From an order appointing the grandmother, Marion Brown appeals.

Durieve King, Judge. Proceedings by Samuel H. Meyer and another for the probate of the will of Elizabeth Welp, deceased, in which Robert J. Maloney was appointed to represent absent heirs. Thereafter James H. Turner, as husband and attorney in fact of an absent legatee, filed a petition of intervention and third opposition to set aside Maloney’s appointment as improvidently granted.

<p>1. Master and Servant — Injury to Servant.</p> <p>Plaintiff’s son sacrificed his own life while (losing all thought of self) he was seeking to save that of Sherman, a fellow workman. The construction of defendant’s line where the accident occurred was faulty, but the workmen had been provided with appliances which safeguarded them from injury had they been used. Plaintiff’s son and Sherman were familiar with their work and its dangers, and had received proper directions and caution.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 84, Master and Servant, § 749.)</p> <p>2. Same — Contributory Negligence.</p> <p>The proximate cause of what occurred was the failure of both plaintiffs’ son and Sherman to make use of the safety appliances which had been placed in their hands. Both were chargeable with contributory negligence. The action of plaintiffs’ son was commendable and admirable, but it was rash and imprudent, and defeated an action for damages against defendant company.</p> <p>(Syllabus by the Court.)</p>

<p>1. Master and Servant — Injury to Servant-Duty oe Master.</p> <p>It is the duty of those employing persons of whom, from their youth, ignorance, or inexperience, it may be assumed that they are unlikely to use the precautions of age* knowledge, and experience, to protect them, as far as may be reasonably possible, from the consequences of their failure so to do. And whether the employe be young or old, ignorant or well informed, experienced or otherwise, the employer must furnish him with a reasonably safe place in which, and reasonably safe appliances with which, to do his work, or else must show where injury is sustained that the employe knew, or ought to have known, the danger to which he was subjected.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 141.]</p> <p>2. Same — Failure to Warn Minor Servant.Held, that defendant is liable to the parents of a minor for injuries to the latter and the loss of his life resulting from his falling into a vat of boiling oil and water whilst engaged in skimming the same with unsafe and insufficient appliances, furnished by defendant without warning of the danger to be apprehended from doing the work under such conditions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 314.]</p> <p>(Syllabus by the Court.)</p>

<p>MASTER AND SERVANT — ACTION FOR SALARY. Involves only questions of fact.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 34. Master and Servant, § 49.]</p> <p>(Syllabus by the Court.)</p>

<p>Railroads — Injury to Trespasser.</p> <p>Action for personal injuries. Judgment for defendant affirmed on the facts.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 914.]</p> <p>(Syllabus by the Court.)</p>

Action by the Globe Realty Company, Limited, against Caroline Vix, widow of Angelo Cotonio. Judgment condemning defendant to pay costs of appeal to the district court made absolute, and plaintiff applies for writs of certiorari and prohibition.

<p>Action by the First National Bank against the Powell Bros. & Sanders Company, Limited. Application of the Powell Bros. & Sanders Company, Limited, for writs of certiorari and prohibition.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edrington, Judge.</p> <p>Action by Ephraim Lochbaum against the Southwestern Box & Lumber Manufacturing Company. Judgment for plaintiff, and defendant appeals. On motion to dismiss appeal.</p>

* Clifton Mathews was charged by the town of Farmerville with refusal to pay street tax, and from a conviction thereof he appeals.

<p>1. VENDOR AND PURCHASER — OFFER—ACCEPTANCE.</p> <p>The instrument which plaintiff contends to be evidence of an absolute present sale of all the timber on a certain tract of land is not such. The alleged vendee did not sign it nor pretend to assume any of the obligations of a vendee under it for more than two years after the offer was made. He was not at liberty during all that time to keep the matter open, holding the party making the offer bound, but leaving himself free to take such course as his own will and interests might dictate. Until accepted there was no mutuality of obligation under the offer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 17-20.]</p> <p>2. Same — Contract.</p> <p>Parties proposing to sell their property are at liberty to make such stipulations in regard to the sale as their will can suggest, except such as are forbidden by law.</p> <p>3. Contract — Conditions Precedent.</p> <p>Where plaintiff declares upon an instrument bearing across its face the words, “It is hereby agreed that in'case the Hamburg, Rus-.ton & Southern Railway is not completed to Farmerville within 2 years and to Ruston within three years this contract is null and void,” that stipulation binds him, and the agreement is null and void if that road is not constructed as provided for. It does not suffice that some other road may have been built between the points within the time stated with equal and even greater advantages to the party offering to sell than the road named. It is not a case for an application of the doctrine of equivalents. He had the right to stand upon the precise terms of the agreement.</p> <p>(Syllabus by the Court.)</p>

<p>Arson — Prosecution—Verdict.</p> <p>On an indictment for arson, the following verdict: “We, the jury, find the accused guilty of an attempt to burn dwelling house” — is insufficient to serve as a foundation for sentence. The attempt to burn a dwelling house is not necessarily a crime, and a verdict cannot be eked out by intendment.</p> <p>(Syllabus by the Court.)</p>

<p>1. MASTER AND SERVANT — INJURIES TO SERVANT — Negligence.</p> <p>There was an accident. Plaintiff charges that it was owing to defendants’ negligence.</p> <p>2. Same — Appliances.</p> <p>The machine was in good order, new, and had all necessary appliances.</p> <p>3. Same — Warning.</p> <p>The young son of plaintiff was temporarily employed as a wheelbarrow boy at the time of the accident. His work required not the least skill. There was no negligence in matter of not warning the employé, for he was not subjected thereby to greater risk. He was performing his work as it had been always performed before and since.</p> <p>4. Same — Protected Machines.</p> <p>The machine was protected and screened as such machines usually are.</p> <p>5. Same — Accident—Negligence.</p> <p>The employé, after the master has done all that reasonably good management and the law require, cannot recover if it was an accident pure and simple.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 34, Master and Servant, § 163.]</p> <p>6. Same.</p> <p>The employé lost an eye from the blow of a sliver which was hurled from a direction not positively known. If from the fast revolving machine it was entirely out of the ordinary. He was standing at the proper place to do the work assigned' to him for the day. As there was no negligence proven, the cause alleged is not sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Master and Servant — Independent Contractor — Injury to Servant.</p> <p>One who contracts with a boss painter for the painting of his house, and does not undertake to control or direct him or his employes with respect to the manner of doing the work, is not liable for injuries to a workman employed by the contractor resulting from the failure of an ornament upon the cornice to sustain his weight, or part of his weight, whilst he is engaged in painting.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1242, 1243, 1257, 1258.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Criminal- District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>George Meyers was convicted of murder, and appeals.</p>

<p>1. Jubt — Tales Jttbobs — Sebvice of List-Appeal — Disceetion of Couet.</p> <p>Under section 11, Act No. 135, p. 222, of 1898, the judge is authorized to order the sheriff to summons tales jurors from portions of the parish remote from the scene of the crime. The law does not require the service of a list of tales jurors thus summoned on the accused two days before the trial as in case of venires drawn by the jury commission. Where the list of the tales jurors thus summoned was served on counsel for the accused, the granting of delay for the examination of the names appearing thereon was a matter within the discretion of the court, the exercise of which will not be inquired into in the absence of proof of prejudice.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1443.]</p> <p>2. Same.</p> <p>The accused has no legal right to require a trial by jurors who are acquainted with him, or from any particular portion of the parish or of the same race.</p> <p>3. Criminal Law — Instructions.</p> <p>Where the accused was tried for the forgery of an indorsement on a promissory note, and there was no special objections to the charge of the court, instructions which merely amplified or generalized certain portions of the charge were properly refused.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2011.]</p> <p>4. Forgery — Criminal Intent.</p> <p>The criminal intent in forgery is “to defraud any person.” Section 833, Rev. St. It suffices that the forged instrument does or may prejudice the rights of another. The intent of the forger to profit by the act is not a necessary element of the offense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Forgery, § 4.]</p> <p>(Syllabus by the Court.)</p>

Action by W. B. Sharp against J. M. McBride. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

Mandamus by the state, on the relation of N. Bellamore and others, against Nicholas Rombotis and others to compel defendants, as .trustees of a certain church, to convene a meeting of the members of the church to hold an election of trustees, as provided in the corporation’s charter. The court ordered a peremptory writ, and respondents appeal. Motion to dismiss denied.

Application by the state, on the relation of W. G-. Davis, for writ of mandamus to the police jury of Webster parish. From an order granting the writ, defendant appeals.

<p>1. Trespass — Defenses — Remedies of Tax Title Owner.</p> <p>Where a tax title owner has not entered into possession of the land included in his title, and where the owner and tax debtor remains in possession after the sale a number of years, a suit cannot be maintained against him exclusively as a trespasser.</p> <p>2. Same.</p> <p>The remedy is provided by statute to oust the former owner.</p> <p>3. Same.</p> <p>The plaintiff is relegated to the proper remedy to assert its right and go into possession and sue for damages, if any be due.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>Tom Sloan was convicted of crime, and appeals.</p>

<p>Appeal — Dismissal—Bond.</p> <p>Where there were two distinct judgments against the plaintiff in the same suit, and he applied for an appeal from the one, but gave bond as for an appeal from the other, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law — Evidence — Tracks on GROUND.</p> <p>Defendant was charged with murder. On the trial a witness testified that he had identified certain footprints near the scene of the homicide as those of the defendant by having the accused place his foot over the tracks upon the ground. Defendant moved the court to strike this testimony out, for the reason that that fact was not a reliable test. The court refused the motion, as the weight and effect to be given to the testimony was solely a question for the jury. Sold, no error. The ruling is supported by State v. Graham, 116 La. 779, 41 South. 90.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 14, Criminal Law, § 874.]</p> <p>2. Same — Acts of Defendant — Oonpessions.</p> <p>The sheriff of the parish of Calcasieu testified for the state that the defendant, while standing on the occasion of the funeral of the deceased by her coffin, denied recognizing the corpse of the deceased, and denied knowing a woman who then spoke to him, though he and deceased had boarded at her house. Defendant objected, on the ground that the statements were made by defendant under duress while in fear in the hands of the sheriff; that they were not free and voluntary; that they were not part of the res gestae, and not' in any manner closely connected with the case.</p> <p>The court overruled the objections, stating that the statements were free and voluntary, not induced by fear, threats, hostile demonstrations, promise, or hope of reward; that defendant said nothing which incriminated him, but denied knowing or recognizing the deceased or the woman who. spoke to him at the funeral; that the free and voluntary declarations of the accused and his entire conduct before and after the homicide were admissible in evidence; that, besides this, the accused had made the same statements as a witness on his own behalf on the trial. Seld, there was no error in the ruling under the per curiam attached to the bill. The statements made were not a confession. There was nothing in them which could serve as a basis for excluding them on the ground that they were. State v. Picton, 51 La. Ann. 624-628, 25 South. 375; Marr’s Grim. Jurisprudence, p. 659.</p> <p>(Syllabus by the Court.)</p>

<p>1. Evidence — Presumptions—Regularity of Official Action.</p> <p>■ Where a tutrix’s sale of minor’s property is sought to be set aside on the ground that the bond of the tutrix was never recorded, and, owing to the destruction of the courthouse and its records by fire, it is not possible to know whether the bond was or not recorded, the presumption of regularity attaching to official proceedings will supply the missing record. Especially will this presumption be strong after 25 years of quiet possession under the sale.</p> <p>[Ed. Note.' — For cases in point, see Oent. Dig. vol. 20, Evidence, § 105.]</p> <p>2. Minor and Tutorship — Act of Sale — Recitals.</p> <p>Where an act of sale of minor’s property, passed before the clerk and ex officio custodian of the records of the court, recites that the sale is made in pursuance of the recommendations of a family meeting held before the clerk himself and duly homologated by a judgment of which a copy is annexed to the act, these recitals will be taken for true, where no evidence is adduced to the contrary, and the records have been lost.</p> <p>(Syllabus by the Court.)</p>

A. E. Josephson and Herman Castens were indicted for assault. On overruling of an objection to the jurisdiction, they were permitted to apply to the Supreme Court for a writ of certiorari.

<p>Appeal from First Judicial District Court, Parish of Caddo; Andrew Jackson Murff, Judge.</p> <p>S. B. Short was convicted of manslaughter, and he appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Herman Loeb against Selig & Cromwell. From a judgment for defendants, plaintiff appeals.</p>

Suit by the state, on the relation of Morris R. Stewart, acting district attorney, against David J. Reid. On application by relator for a writ of mandamus to compel setting of the case for trial with preference over all other cases on a specified date, and that the trial be proceeded with until terminated in a verdict, judgment, mistrial, or a judgment by the court, if the jury is waived.

Cail-louet, Judge. Action by Anna Haddad against Alexander P. Haddad, to annul a partition in a prior action between the parties -for separation from bed and board. From an adverse decree, plaintiff appealed.

<p>'Descent and Distribution — Rights oe Heirs — Trespass — Admissions by Pleading.</p> <p>A single heir may maintain an action against a trespasser to recover the whole of the property or the whole of the damages. An allegation that one of the defendants is in possession of real estate as a trespasser, or under some verbal agreement unknown to and not binding on the plaintiff, does not disclose that such defendant possesses under color of title.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 16, Descent and Distribution, § 355.]</p> <p>(Syllabus by the Court.)</p>

Action by Denis, Danziger & Tessier against Mrs. Caroline Tilton. A judgment in favor of defendant was reversed by the Court of Appeal, and defendant brings certiorari or writ of review.

<p>Taxation — Tax Sale — Mortgage—Foreclosure — Quieting Title.</p> <p>Certain property on which the Citizens’ Bank had a special mortgage had in 1885 been adjudicated to the state in enforcement of delinquent taxes assessed against the owner, and the tax deed had been recorded. The Citizens’ Bank, ignoring the tax sale, seized and sold under its mortgage the same property, buying it in itself. Tax privileges appearing on the records, it became necessary to have them erased before the sheriff would execute a deed of sale. The bank thereupon caused a rule to issue against the state tax collector to show cause why the inscription should not be erased, on the ground that they were then prescribed. The tax collector making no appearance, the rule was made absolute, and the sheriff executed to it a deed, but the bank was not placed in possession. On the contrary, the State Auditor had in the meantime sold the property to W. as belonging to the state under the adjudication made to it, and the deed was recorded in July, 1898.</p> <p>The bank thereupon, in October, 1901, attacked the adjudication made to the state and the sale to Wall on various grounds, among others that the judgment in the rule was res judicata as to the existence of taxes, and es-topped the state from thereafter selling the property. It prayed to have the adjudication and sale set aside as a cloud upon its title; to have its ownership recognized, and to be placed' in possession. Judgment was rendered in its favor and defendant appealed.</p> <p>Held, the judgment appealed from is erroneous, and it is annulled, avoided, and reversed. The owner of the property has acquiesced in the tax sale, and abandoned the property. Neither he nor the bank has paid taxes since the tax sale, nor offered to do so. The judgment on the rule for reasons assigned cannot be invoked as res judicata or by way of estoppel. The owner’s title has been destroyed, also the bank’s mortgage which was based on ownership. It is too late for the bank to attack the title conveyed to W. Augusti v. Citizens’ Bank, 46 La. Ann. 529, 15 South. 74.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 45, Taxation, § 1581.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Homicide — Inconsistent Defenses.</p> <p>Appellant, indicted for murder, was convicted, and has appealed. He defended on the ground of self-defense and insanity. The two defenses are not necessarily inconsistent.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 624-628.]</p> <p>2. Jury — Venire—Motion to Quash.</p> <p>The motion to quash filed in this case was not under section 15 of Act No. 135, p. 223, of 1898, made too late. The trial had not been entered into.</p> <p>3. Same — Jury Commissionebs — Term of Office — Oath.</p> <p>The jury commissioners appointed by a district judge do not cease to be such upon the election of a new judge. Once appointed and qualified, they continue to hold their office by affirmative action of the judge until they are displaced. The district clerk, who is ex officio a jury commissioner, is not required under the law to take in addition to his oath as clerk a special oath as jury commissioner.</p> <p>4. Same — 'Venire.</p> <p>The complaint urged against the venire from which was drawn the jury to try this case is not well grounded under section 15 of Act 135, p. 223, of 1898.</p> <p>5. Homicide — Evidence.</p> <p>The defense, claiming that accused was insane at the time he committed the homicide he was charged with, offered testimony to show that threats had been made against him by.the deceased, who was known by him to be a violent and dangerous man, and that these threats had been communicated to the accused. The testimony was not allowed to be submitted to the jury. Under the condition of the evidence already before the jury as recited in the bill of exceptions taken to this ruling, the testimony should have been admitted.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 26, Homicide, §§ 293-296, 380.]</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of John M. Rogers and others, for writ of mandamus against J. W. Parsons, district attorney. Judgment for defendant, and plaintiffs appeal.

In the matter of the receivership of the Louisiana Driving & Racing Club. From a judgment refusing to appoint a receiver, certain parties appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the Dilzell Engineering & Construction Company, Limited, against Gus Lehmann and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Adverse Possession-Title to Maintain.</p> <p>A sale of all the vendor’s right, title, and interest in and to certain described property vests the whole estate in the vendee, and such a title may serve as the basis of the prescription of 10 years.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 1, Adverse Possession, § 427.]</p> <p>2. Deed — Consideration.</p> <p>Where the consideration of an executed contract of sale of land is not expressed, the agreement is not the less valid, and a just consideration will always be presumed, unless the contrary be proved.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 16, Deeds, §§ 584r-580.]</p> <p>3. Same — Impeachment.</p> <p>A stranger to such a conveyance and to the parties has no standing to impeach the transfer on the sole ground that no price or other consideration is expressed on the face of the instrument.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 16, Deeds, § 209.]</p> <p>(Syllabus by the Court.)</p>

Action by William Hart and others against the police jury of the parish of Tangipahoa, and action by the town of Ponchatoula against the same defendant. Suits dismissed, and defendant applies for writs of certiorari and prohibition.

Actions by the city of Alexandria against J. B. Thigpen and J. E. Thorsell and against O. R. Green. Actions consolidated. Judgment for defendants, and plaintiff appeals.

Moore Burns, Judge. Action by the taxpayers of Washington parish against the police jury of Washington parish.' Judgment for defendant, and plaintiffs appeal.

<p>1. Witnesses — Cross-Examination oe Accused.</p> <p>Where the accused testified to circumstances surrounding the homicide, the state had the right to elicit on cross-examination a full and complete account of the action and conduct of both parties on the same occasion. State v. Feazell, 116 La. 264, 40 South. 698.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 979-984.]</p> <p>2. Criminal Law — Trial — Argument oe Counsel.</p> <p>The delay to be granted counsel for rest and preparation for argument after the evidence is closed is a matter within the sound discretion of the lower court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1655-1657.]</p> <p>S. Witnesses — Cross-Examination.</p> <p>Where a witness is recalled by the state for the purpose of rebuttal, the cross-examination must be confined to the matter on which the witness has been re-examined.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1006, 1007.]</p> <p>4. Criminal Law — Evidence in Rebuttal.</p> <p>The state has the right to rebut the testimony elicited on the cross-examination of the accused as a witness in his own behalf. The state could not contradict the accused before he testified, and contradiction is one of the modes of impeaching a witness.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1615-1618.]</p> <p>5. Same — Misconduct oe Prosecuting Attorney.</p> <p>Except in extreme cases, the presumption is that the prejudicial effect on the jury of improper remarks made by counsel for the state was removed by tlie instructions of the court to the jury to disregard the same. ' State v. Easley, 118 La. 690, 43 South. 279.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1693.]</p> <p>6. Same — Insakitt—Heaesat Opinion.</p> <p>The hearsay opinion of even an expert on insanity is not admissible in evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 976.]</p> <p>7. Homicide — Malice.</p> <p>To constitute murder it suffices if the malice existed at the moment of the killing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 15-18.]</p> <p>(Syllabus by the Court.)</p>

<p>1. LANDLORD AND TEN ANT — IN 3 ÜEY TO THIBD Peeson — Liability on Landloed.</p> <p>The fact that a building has a door opening into space six or seven feet above the ground does not, of necessity, imply fault of construction, and a petition which alleges that the owner leased such building and permitted it to be operated before steps had been provided for the door; that the door had the word “Exit” painted and red lights established over it, and was unprovided with lock and key; and that the theatrical programs contained the announcement that the exits were indicated by red lights —discloses no cause of action against the owner for the recovery of damages sustained by a patron of the theater in walking out of the door and falling to the sidewalk. Non constat but that the door was left without steps for the convenience of the lessee, to facilitate the loading and unloading of theatrical paraphernalia and baggage. But, assuming that such was not the case, it is manifest that it was not intended by the owner to be used as an exit in its then condition by the patrons of the theater, and if it was so used by reason of. the notice upon the programs, the red lights maintained, or other acts of the lessee, it was no more the fault of the owner than if the lessee had thus indicated or left unguarded any window or other aperture not intended to be used as an exit.</p> <p>2. Same.</p> <p>In alleging that the theater is leased to and operated by a third person, the petition in effect alleges that the owner is without right to enter it and without authority to regulate its internal police, and, as the power to determine under such conditions whether its patrons should enter and depart through one door or both is vested exclusively in the lessee, so the responsibility devolves on the lessee to make proper provision for carrying into effect such regulation on that, subject as he may see fit to adopt.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Daw — -Continuance—Affidavit.</p> <p>An affidavit for a continuance on account of the absence of witnesses, which fails to set forth that the facts expected to be established cannot be proved by other witnesses, is fatally defective.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1856.]</p> <p>2. Same — Appeal—Presumptions.</p> <p>Where the record does not contain the testimony elicited by the judge from a prospective juror examined on his voir dire, this court will assume that it justified the overruling of a challenge for cause.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3023.]</p> <p>3. Jury — Competency— Opinions.</p> <p>Though persons summoned to serve as jurors may have heard, through common talk, or read in the newspapers, of the case to be tried, and may have formed opinions concerning the same, they are nevertheless competent, if upon examination upon voir dire it appears that they would be able to disregard such opinions and try and decide the case in accordance with the evidence to be produced on the trial and the law to be given by the court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, §§ 461-479.]</p> <p>4. Homicide — Evidence.</p> <p>Where two or more persons are tried for murder, it is competent, in order to show cooperation, preparation, and design, to prove that they were together at or near the place where the deceased might have been expected to be found at a time shortly anterior to that at which the homicide was committed.</p> <p>5. Criminal Law — Argument oe Prosecuting Attorney.</p> <p>Whether witnesses, in giving their testimony, will be influenced by the fact that they and the defendant in a criminal prosecution are members of the same race, nationality, family, church, lodge, or union, is a legitimate subject for discussion; and criticism of such witnesses by the prose’cuting officer, predicated upon the ground that they are likely to be so influenced, does not involve an appeal to the jury to base its own finding upon racial or other prejudice against the defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1676.]</p> <p>6. Witnesses — Cross-Examination — Impeachment.</p> <p>Cross-interrogatories, propounded to a witness with a view to discredit him, as to particular acts or a particular course of conduct, are properly excluded.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, AVitnesses, § 1135.]</p> <p>7. Criminal Law — Evidence—Res Gest.®.</p> <p>While the acts and sayings of the participants, at the time of a homicide or so soon after the fatal blow has been struck as to preclude the idea of reflection and plan, form part of the res gestea, and as such may be proved by third persons, the subsequent statements of mere observers, made after the striking of the blow, and which formed no part of the affair, cannot be so proved, but such persons must themselves be called and examined.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 812, 815, 821.]</p> <p>8. Homicide — Evidence — Dying Declarations.</p> <p>The fact that a person mortally wounded consents to be removed to a sanitarium for the satisfaction of his wife and children is not inconsistent with his own abandonment of the hope of recovery ; and where, upon the whole, the evidence justifies the belief that he is impressed with a sense of impending dissolution, his statements may be admitted as a dying declaration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 430-437.]</p> <p>9. Criminal Law — Evidence in Rebuttal.</p> <p>The fact that testimony offered in rebuttal in a criminal prosecution tends incidentally to strengthen the case as originally presented by the state does not render it inadmissible for the purpose for which it is offered.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1615-1617.]</p> <p>10. Same — Evidence — Expert Witnesses — Competency — Unregistered Physicians.</p> <p>When a witness in a criminal prosecution is offered, and, over the objection that he has not been examined and has not registered, as required' by Act No. 49, p. 55 of 1894, is permitted to testify, as an expert physician or surgeon, it is no answer to the objection that the testimony is incompetent to say that the facts testified to might have been established by competent testimony, or that the testimony as given “was not strictly that of a medical expert.” The act in question provides that practitioners who have not been examined and passed by the state board of medical examiners and have not otherwise complied with its provisions “shall not * * * be allowed to testify as medical or surgical experts in any court of this state.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Daw, § 1067.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal — Juetsdiction—Amount in Con-teoveesy — -Fictitious Demand.</p> <p>The resulting damages, if the right claimed by plaintiff is lost, cannot possibly amount to $2,000.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 207, 258, 259.]</p> <p>2. Same — Plea Sustained.</p> <p>The allegation of damages is not sufficiently real to defeat the plea of want of jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 207, 258, 259.]</p> <p>fSyllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by John T. Whitaker against Silvan Newburger. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; Whitmell Pugh Martin, Judge.</p> <p>George Anderson was convicted of willfully shooting prosecuting witness, and appeals.</p>

<p>1.Master and Servant — Personal Injuries —Contributory Negligence.</p> <p>The testimony does not sustain the defendant’s contention that plaintiff negligently exposed himself at the moment of the accident.</p> <p>2. Trial — Instruction to Jury.</p> <p>The defendant had no right to instruction to the jury by the judge on an assumption of facts not sustained by the testimony.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Master and Servant, §§ 420-435.]</p> <p>3. Master and Servant — Employer’s Responsibility.</p> <p>The master must provide a reasonably safe place for the work of his servant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 171-179.]</p> <p>4. Same — Defective Construction.</p> <p>The pipe, in view of the construction, waa defective and exposed the workman to injury.</p> <p>5. Same — Employer Liable — Contributory Negligence.</p> <p>Employs not negligent if he does not see danger that is latent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 706-722.]</p> <p>6. Same — Evidence—Pathway.</p> <p>The employg followed the usual passageway to the mill.</p> <p>7. Appeal — Damages—Amount.</p> <p>Some weight given to the amount of damages found by the jury.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Weldon Gibson was convicted of felonious assault, and appeals.</p>

Certiorari from Court of Appeal, Parish of Orleans. Action by M. S. Daniels against John Tau-benblatt. Max Fleischer and others intervene. Judgment was modified and affirmed by the Court of Appeal, and interveners, the Xiques Lemore Company, Limited, and Sigmund Fleischer, applied for certiorari or writ of review.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by Charles W. Krotz against the Louisiana Construction Company, and W. R. Taylor, intervenes. Judgment for plaintiff, and defendant and intervener appeal.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by Charles W. Krotz against the Louisiana Construction Company and W. R. Taylor. Judgment for plaintiff, and defendant and intervener appeal.</p>

<p>Appeal — Review—Conflicting Evidence.</p> <p>In an action for damages for personal injuries, where the evidence is conflicting, the conclusions of the trial judge on questions of fact are entitled to great weight.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3983-3989.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Joseph Dugue against Samuel Levy. Judgment for plaintiff, and defendant appeals.</p>

Action by Jeremiah M. Gleason against Mortimer N. Wisdom. Judgment for defendant, and plaintiff applied to the Court of Appeal for mandamus to allow the granting of an appeal. Application of Mortimer N. Wisdom for certiorari and prohibition.

<p>1. Criminal Law — Instructions — Evidence to Sustain — Law Not Applicable Should Not be Given.</p> <p>The judge should state the law applying. He should not be called upon to instruct the jury that a defendant may be found guilty of a mere assault if there is no evidence of assault in the case. The same is true of assault and battery, particularly if the indictment does not include the offense.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1980-1985.]</p> <p>2. Same — Degree oe Crime.</p> <p>“The law of each degree which the evidence tends to prove should be given, but not of any degree which it does not tend to prove.” 1 Bishop (3d Ed.) p. 980, cites numerous decisions in support of his text. See, also, Matthew’s Case, 111 La. 962, 36 South. 48.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1923-1925.]</p> <p>3. Same — Continuance.</p> <p>The defendant had not used due diligence to procure a witness.</p> <p>The statement of the judge, as incorporated in the bill of exceptions, renders it evident that the defendant had no right to a continuance.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>In the matter of the succession of Rose-mond Theriot. Rule on application of Ira H. Knight, administrator, against Walter J. Du-rand, to show cause why an order for a de-volutive appeal should not be set aside. Appeal dismissed, and Durand appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>In the matter of the succession of Rose-mond Theriot. Walter J. Durand, third opponent, appeals.</p>

<p>Appeal from Fourteenth' Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by the Citizens’ Bank of Louisiana against Ernest Jeansonne and others. Judgment for plaintiff, and defendants appeal.</p>

Action by the board of commissioners of the Caddo levee district against W. E. Glassel and others. Judgment for plaintiff was reversed on appeal by the Court of Appeal in part, and the board applied for certiorari or writ of review. Judgment of the Court of

<p>1. Witnesses — Competency—Attokney and Client.</p> <p>There can be no question of “privileged communications” between an attorney and his client which should prevent the former from testifying to what took place at an interview between them, on the one side, and another person, having an adverse interest, on the other side.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 764.]</p> <p>2. Appeal — Peesumptions — Exclusion op Evidence.</p> <p>Where a litigant objects to his attorney testifying to what passed between him and the opposing litigant (at an interview at which all were present), on the ground that, as to the attorney, the matter is privileged, and the objection is sustained, it will be presumed in this court that, if given, the testimony would tell against the objector.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4038, 4041.]</p> <p>3. Evidence — Paeol Evidence — Ambiguity in Whiting.</p> <p>Where, in an act otherwise purporting to be one of sale, the “thing” said to have been sold, for a single price, is a tract of land with the building's and improvements thereon, and the contraetants stipulate that such buildings and improvements (the relative value of which is not shown) “shall not be removed therefrom during the tenure of this mortgage,” the “thing” in question not being surrendered to the absolute dominion of the supposed vendee, and the contract being styled by such contraetants a mortgage, there is upon the face of the instrument no sale, the contract is ambiguous, and evidence aliunde is admissible to explain the ambiguity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 2085.)</p> <p>4. Same.</p> <p>Where evidence aliunde is admissible to explain the ambiguity of a contract by authentic act, such evidence does not become inadmissible by reason of answers to interrogatories on facts and articles with which it may conflict. The answers in such case and quoad such evidence are to be “weighed by the judge as other evidence.”</p> <p>5. Mobtgages — Absolute Deed.</p> <p>Where the alleged sale is made for an inadequate price, and the alleged purchaser makes no demand for possession, the contract, though purporting to be a vente fl. rérnéré, will be held to be one of security.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 60-66.)</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>E. D. Holland was convicted of kidnapping, and appeals.</p>

A. E. Josephson and Herman Castens were found guilty of assault, and Josephson applies for writs of prohibition and certiorari.

James Labry was convicted of murder. From an order granting a new trial, and allowing plea of guilty of manslaughter, the state appeals.

<p>INSURANCE — Fire Insurance — Contract — Forfeiture — Change of Title.</p> <p>A fire insurance policy contained the following stipulation: “The entire policy, unless ■otherwise provided by agreement herein indorsed or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership * * * or if any change other than death of an assured takes place in the interest, title or possession of the subject of insurance whether by legal process or judgment, or by voluntary act of the -assured, or otherwise, or if this policy be assigned before a loss.” On February 1, 1905, the assured filed a petition in the United States District ■Court for the Eastern District of Kentucky in voluntary bankruptcy, and on the same day he was adjudged a bankrupt. On February 2d the stock of merchandise insured was (at Ruston, La.) destroyed by fire. On February 3d a receiver was appointed, and on February 13th the same person was appointed as trustee and qualified as such. On May 13th the District Court confirmed a composition which had been entered into between the bankrupt and his creditors. The assured thereafter sued the insurance company. The latter pleaded that the policy had become void by reason of the proceedings in bankruptcy. The court rendered judgment in favor of the plaintiff, and the correctness of that judgment has been brought up for review.</p> <p>Held, the judgment is correct and is affirmed. The property insured was destroyed before either a receiver or a trustee was appointed. In the interim between the adjudication in bankruptcy and the appointment and qualification of the trustee, the title to the property with the incidents of interest and possession continued in the bankrupt. When the trustee was appointed, there was no property in existence to which the title in the trustee could vest. The trustee of a bankrupt is not obliged to accept title to the property surrendered by the bankrupt, if to do so would not' benefit the creditors, or would prejudice them. The creditors deemed it to their interest to make a composition with the bankrupt, and depend upon his personal obligation to them and did so. The court confirmed the composition. The composition did away with the effect of the bankruptcy proceedings, and the assured had the right to sue on the policy with his rights intact.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 809.]</p> <p>(Syllabus by the Court.)</p>

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

<p>Payment — Primary Elections — Expenses.</p> <p>The spirit of the law providing for primary elections is to encourage the multiplication of worthy candidates for nomination to public office, in order that the body of voters constituting a political party, or constituting the electorate at large may have the benefit of a choice, and not be compelled to accept candidates chosen by the minority, or thrust upon them in some other way. When, therefore, with that purpose in view, the law provides that those presenting themselves for approval, by means of a “primary,” shall pay the sums assessed against them to defray “actual expenses,” there is no reason to suppose that it is intended that such payments shall be made otherwise than as payments are usually made; that is to say, in lawful money, or, by checks, payable in lawful money, and which, when honored, constitute payments, as of the dates upon which they were given. The court is not here concerned with the case of a check that was not paid on presentation, or that would not have been paid if presented when given and received, and the questions which might arise from that situation are left to be determined when presented.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 39, Payment, § 87.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal — Dismissal—Renewal.</p> <p>When an appeal is dismissed for failure of the appellant to file the transcript in time, it is considered abandoned, and cannot afterwards be renewed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3169.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Jury — Jury Commission — Order oe Appointment.</p> <p>The following order is sufficient in terms to comply with the requirement that the judge appoint five citizens to constitute a jury commission for the parish, namely: “It is ordered that a jury commission is hereby ordered to be composed of the following citizens,” etc. — naming five citizens.</p> <p>2. Same.</p> <p>The statute (Acts 1898, p. 218, No. 135, § 3) provides: “The evidence of the appointment of said jury commissioners, shall be the written order of the district judge, which order shall be entered upon the minutes of the district court.” This statute is complied with by an order given verbally in open court and entered on the minutes of the court. The order need be written by the judge only when in chambers. The manifest object is to provide for the order being entered on the minutes, and, for being so entered, it must be in writing when made in chambers, and need not be when made in open court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, § 268.]</p> <p>3. Courts — Orders op Court.</p> <p>An order made in open court by a court of record and duly entered of record is in a sense a written order of tbe judge. It is then an order of the court as contradistinguished from an order of the judge. The court is an organism which, as it were, speaks by the mouth of the judge and writes with the hand of the clerk.</p> <p>4. Jury — Drawing Venire — Evidence.</p> <p>The proper evidence of the manner in which the venires have been drawn is the procés verbal of the drawing. In the absence of sworn allegations of fraud, the accused is not entitled to have the general venire box opened and the names therein counted for the purpose of ascertaining whether the recitals of the procés verbal of the drawing are true. Whether accused would have such right upon alleging fraud, quiere?</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Action by Agnes Higginbotham, natural tu-trix, and others, against Theogene Daigle and others. Judgment for plaintiffs, and defendants appeal.</p>

Action by the Louisiana & Northwest Railroad Company against the state board of appraisers. Board of school directors of parish of Natchitoches, and Bienville, interveners. Judgment for defendants, and plaintiff appeals.

<p>1. Appeal — Jurisdictional Amount — No Evidence OE JURISDICTIONAL AMOUNT.</p> <p>The cause did not come within the jurisdiction of the Supreme Court.</p> <p>The jurisdictional allegation showed that a moneyed value of $1,500 alone was involved, and no attempt was made to prove that even this amount was involved.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 233-260.]</p> <p>2. Same — Court oe Appeal.</p> <p>Plaintiff complains on the ground that the amount involved is not within the jurisdiction of this court, and states that he called attention to this at the time that an order of appeal was moved for by the defendant and granted; that whatever right of appeal there may have been was to the Circuit Court of Appeal.</p> <p>3. Same — Concurring Causes Show Want oe Jurisdiction.</p> <p>The defendant urges that the amount involved is not within the jurisdiction of this court.</p> <p>After considering the pleadings, the evidence, the argument of counsel, it is evident that this court is without jurisdiction.</p> <p>4. Same — Transferred.</p> <p>The appeal during 10 days will be held subject to appellant’s right to transfer the ease within that time, and, in default of its exercise, it follows that the case will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>Insurance — Oonmtions — Further Insurance-Public Policy.</p> <p>The defendant issued its policy of insurance for $1,500 on the building in Shreveport, known as the “Simon Building.” It was partially destroyed by fire. The policy contained the following clause:</p> <p>“It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on each item of property insured by this policy of not less than 75 per cent, of the actual cash value thereof, and that failing so to do, the assured shall be an insurer to the extent of such deficit and in that event shall bear his, her, or their portion of the loss.”</p> <p>The assured obtained other insurance on the building, but fell short of obtaining insurance up to 75 per cent, of the building to the amount of several thousand dollars. On being sued, the defendant company claimed the benefit of the co-insurance clause contained in the policy. Plaintiff resisted this claim on the ground that the clause seeking to make him a co-insurer as declared therein was violative of the provisions of Act No. 135, p. 209, of 1900, known as the “Valued Policy Statute.” This position was sustained by the court, and judgment was rendered accordingly. On appeal to the Court of Appeals that judgment was affirmed, and the ease was then brought to the Supreme Court for review.</p> <p>Held, the stipulation in defendant’s policy as to the assured becoming a co-insurer with the insurance company in a certain contingency to the extent and under the conditions stated is not against public policy. It is not prohibited by law, and a prohibition should not be read into, the law by construction. Liberty of contract is the rule, and limitations and restrictions the exceptions.</p> <p>(Syllabus by the Court.)</p>

<p>Taxation — Tax Title — Action to Set Aside —Laches.</p> <p>The present is a petitory action by which plaintiffs seek to be decreed the owners of the Ashton plantation, in East Carroll parish, fronting on the Mississippi river near the Arkansas line. Plaintiffs in their petition refer to certain tax sales under which the property has been sold, and to certain judicial proceedings to which the holders of the parties holding the legal title had recourse to confirm their title, as being radical nullities. Plaintiffs’ demand is rejected, and defendants’ title recognized. The property was sold at tax sale as far back as 1873. Plaintiffs’ father had anterior to that time left the property for which he was heavily indebted and gone to Mississippi to reside. He resided in Mississippi until his death, and his heirs have never returned to Louisiana. Neither plaintiffs’ father nor they themselves have, paid, nor offered to pay, a dollar of taxes on the property at any time later than 1869. They obviously abandoned it. In the meantime the tax purchasers have transformed the property from a wilderness into a plantation in cultivation, with extensive improvements upon it. Plaintiffs’ demand, for reasons assigned, is without equity or law to support it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, § 1564.]</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 David R. Bettison and others against the Avoyelles Land & Improvement Company, Limited, and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Courts — Practice—Courts or Appeal.</p> <p>The rules of practice regulating appeals to,, and proceedings in, the Supreme Court, regulate, so far as applicable, appeals to, and proceedings-in, the Courts of Appeal. Const, art. 104.</p> <p>2. Same — Judgment—Rendition.</p> <p>No judgment can be rendered by a Court of Appeal without the concurrence of two. judges. Const, art. 102.</p> <p>3. Appeal — Judgment—Record.</p> <p>No judgment of a Court of Appeal can be received, in evidence until it has been entered upon the records of such court; and no such judgment can be executed until, having been so. entered, it.has also been “recorded in the records of the inferior court” from which the appeal has been brought up, all as provided by Code Prac. arts. 617-620, 623, 910, 915; Rev. St.. § 475; Const, art. 104.</p> <p>4. Same — Signing Judgment.</p> <p>The provision of the Code of Practice contained in part 2 under “Title 1” relate to the-prosecution of civil actions in courts of original jurisdiction, and article 546, requiring the judge-to sign all definitive or final judgments, has no-application to the justices of this court or the judges of the Courts of Appeal, who are not required to sign the judgments participated in, by them.</p> <p>5. Same — Records—Minutes.</p> <p>The minutes of a court of record, whether of original or appellate jurisdiction, should be-approved by the judge, or judges, but the entering of the proceedings of such court in the minute book is the duty of the clerk, who should attest his work with his signature. If, however,, the clerk should fail to sign minutes entered by him when entered, that circumstance does not impair the validity of the entry or disqualify the clerk from certifying to the correctness of copies taken therefrom at a later date.</p> <p>■6. Same — Rendition of Judgment.</p> <p>An opinion ancl decree prepared and signed in chambers by one of the judges of a Court .of Appeal, and filed in such court, together with an uncertified excerpt, purporting-, but not shown, to have been taken from the minutes ■of the court, and indicating that a judgment appealed from has been affirmed, do not prove that any judgment has been rendered; and, where such evidence is relied on as showing the final dissolution of an injunction, which had been pending on appeal, an exception of prematurity, or no right of action, to a suit for the recovery of damages for the alleged wrongful issuance of the injunction, is properly maintained</p> <p>(Syllabus by the Court.)</p>

<p>Attorney and Client — Action for Compensation.</p> <p>Involves only questions of facts.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Samuel Jami-son Henry, Judge.</p> <p>George Smith was convicted of manslaughter, and appeals.</p>

<p>Bueglaey — Indictment — Desceiption or Location.</p> <p>By the act of 1805 we are dispensed from following the common-law forms of indictment servilely. Hence allegations usual at common law, but not essential to the full statement of the crime charged, may be dispensed with. In this country, in an indictment for burglary, it has been usual to dispense with mention of the “vill, hamlet or other place within the counfy” where the house, subject of the burglary, is situated. Therefore an indictment for burglary which alleges that the crime was committed within the parish and gives the name of the owner is sufficient.</p> <p>(Syllabus by the Court.)</p>

Certiorari from Court of Appeal, Parish of Iberia. Application by the state, on the relation of Edwin Broussard, district attorney, for writ of mandamus to George Henderson, sheriff. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from Twenty-Eirst Judicial District Court, Parish of Pointe Coupée; Louis Binga-man Claiborne, Judge.</p> <p>Henry Lewis was convicted of manslaughter and appeals.</p>

<p>1.Minoe and Tutokship — Peivate Sale op Minob’s Realty.</p> <p>A private sale by the tutor of the minor’s real estate for the purpose of paying debts is an absolute nullity, and a ratification thereof by the minor, after emancipation, must be clearly shown by the evidence.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 25, Guardian and Ward, §§ 174, 175, 3G6.J</p> <p>2. Same — Ratification — Knowledge op Facts.</p> <p>The approval by the emancipated minor of the tutor’s final account in which the proceeds of such a sale appears as a debit will not suffice to constitute ratification or estoppel, where the evidence shows that the minor at the time was ignorant of the fact that the property had been sold at private sale.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 25, Guardian and Ward, § 382.]</p> <p>3. Same — Accounting poe Peoceeds.</p> <p>Though such a sale be void, the minor is bound to account to the purchaser for the proceeds used in the payment of debts for which the estate was liable, but the minor is not bound to tender such proceeds as a condition precedent to suit to recover the property.</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 Gussie Jenkins and husband against the Salmen Brick & Lumber Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by L. M. Coreil against the town of Welsh and others. Judgment for defendants, and plaintiff appeals.</p>

Action by the heirs of one Smith and others against the Railroad Lauds Company. Judgment for plaintiffs, and defendant appeals.

<p>Master and Servant — Injury to Servant— Negligence oe Master.</p> <p>This is a suit for damages for personal injuries received by the plaintiff. Defendant is held responsible in damages, under the conditions disclosed, for having failed in his obligations to give proper instructions and warnings to an inexperienced workman, in consequence of which he placed his hands (in order to steady it) upon a machine which was shaking, by reason of badly adjusted belting, and by so doing displaced a portion of the machinery and thereby lost his arm. Gracia v. Maestri Furniture Co., 114 La. 383, 38 South. 275.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 314r-316.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Sehwing, Judge.</p> <p>Action by Alvin Rochelle against the White Castle Lumber & Shingle Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Action by the state against D. L. Douglas and Daniel Hardy Sanders. From a judgment annulling a previous judgment forfeiting an appearance bond, the state appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by Roland L. Lumpkin against the Reiser Machine Shops. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Union; John Elliotte Clayton, Judge ad hoc.</p> <p>Action by L. E. Smith against the Union Sawmill Company. Judgment for defendant, and plaintiff appeals.</p>

Durieve King, Judge. Action by Dorothy Wagner, wife of Frederick Glaeser, against Frederick Glaeser. Judgment for plaintiff, ■ and the widow of George Provenzano, as vendee of defendant, petitions for a devolutive appeal. On motion by plaintiff to dismiss said appeal.

<p>1. Husband and Wife — Life Insurance — Policies — Paraphernal Property.</p> <p>The policies of insurance were issued to the husband some time before the marriage. They formed part of his separate estate, and the proceeds were properly placed to the credit of his property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, yol. 26, Husband and AVife, §§ 886-892.)</p> <p>2. Wills — Construction—Life Usufruct.</p> <p>The will of the testator read: “All my property to my wife for her life except the forced portion to my father and mother.”</p> <p>That was the donation of a life usufruct, and not, as claimed by the legatee, an absolute donation of the property forever.</p> <p>3. Same — Inheritance.</p> <p>Usufruct to the wife except the forced portion. At the death of the legatee, the property will pass to the heirs.</p> <p>4. Husband and Wife — Community Property-Policies.</p> <p>The premiums paid by the community were properly credited to the community.</p> <p>'5. Same — Not a Community Asset.</p> <p>It being evident that the community did not own an amount deposited in bank to the credit of the opponent’s husband, it cannot be properly placed to the credit of the community.</p> <p>It was a matter of impossibility as made to appear by the testimony for said amount to have been earned by the community.</p> <p>(Syllabus by the Court.)</p>

<p>1. INSURANCE — Policy—Default in Premiums — Statement.</p> <p>The policy contained the forfeiture clause of which the defendant availed itself, when the insured failed to pay in accordance with the conditions and terms of the policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2S, Insurance, §§ 891-900.]</p> <p>2. Same — Premium Note — Notice.</p> <p>The insured was notified and was called upon to pay the note representing the past-due annual premium. The uncontradicted testimony of the attorney representing the defendant was that time to pay the note representing the premium was given, and that after its maturity it was collected on the expressed understanding that it was paid in payment of a past due premium, and that he, the insured, had no claim on the policy.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 28, Insurance, §§ 932, 933.]</p> <p>3. Same.</p> <p>Written statement of the insured to the immediate members of his family proven.</p> <p>The testimony produced by plaintiff did not overcome the direct testimony produced by defendant. Payment of the note made by the late insured was demanded for asserted protection which the insured had received and in regard to which he consented. He (the insured) had a right to enter into this agreement, and so was bound by it and so is the beneficiary.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 932, 933.]</p> <p>4. Same — Reinstatement oe Polict — Decisions Cited by Parties.</p> <p>The failure to pay the note for the third annual premium on a policy of insurance containing the forfeiture clause again expressed in a receipt, which was given by the defendant company to the insured, is fatal to a claim to recover on the policy.</p> <p>Failure to pay the needful premium to reinstate the policy and failure to furnish health certificate, as required by its terms and conditions, precluded the beneficiary from recovering. Fenn v. Union Central Life Ins. Co., 48 La. Ann. 541, 19 South. 623.</p> <p>The policy was rendered void. Resster v. Fidelity Mut. Life Ins. Co., 110 Tenn. 411, 75 5. W. 735; Phoenix Co. v. Stevenson, 78 Ky. 158.</p> <p>Time was of the essence of the contract, for it was stipulated. Iowa Insurance Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126, 47 L. Ed. 204; 25 Cyc. 828.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of L. J. Trosclair. for writ of mandamus against the parish Democratic committee. Judgment for defendant. Relator appeals.

<p>Appeal from Twenty-Sixth Judicial District Go-urt, Parish of Washington; Thomas. Moore Burns, Judge.</p> <p>Action by Samuel M. Carroll and wife-against Joe N. Magee, sheriff, and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Action by Jeremiah M. Gleason against Mortimer N. Wisdom. Judgment for defendant, and plaintiff, having been denied a sus-pensive appeal, applied to the Court of Appeal for writ of mandamus. Application by defendant for writ of prohibition.</p>

<p>1. Pledges — Sam by Pledgee — Right to.</p> <p>A pledgee cannot lawfully sell the pledged property, save in satisfaction of the debt which it is intended to secure; nor can a third person, with knowledge of the facts, acquire title to such property when sold to pay another debt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4b, Pledges, §§ 99-101, 152.]</p> <p>2. Same — Sale of Property — Payment of Note Secueed.</p> <p>When the holder of a note, secured by the pledge of property belonging to the indorser, sells such property in satisfaction of the debt due him, and realizes sufficient for the purpose, the note is paid, the indorser becomes subro-gated to the rights of the holder, and the latter cannot lawfully put the note in circulation by indorsing it, without recourse or otherwise, to the purchaser of the pledged property.</p> <p>3. Same — Sale of Collateral — Condition Peeoedent.</p> <p>Where a note, payable on demand at the payee bank, is secured by a pledge of collaterals, which the bank is authorized to sell on the failure of the maker to respond to a call for additional security and after demand for payment, the bank has no right to sell the collaterals unless such call and demand have first been made.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 40, Pledges, §§ 152-159.]</p> <p>4. Same.</p> <p>Considered without reference to the stipulation concerning the call for additional security, the pledgor in a contract, reading as here below and securing a demand note payable at the bank of the payee and holder, does not waive his right to actual notice, by demand for payment or otherwise, of the intention of the pledgee to sell the pledged property:</p> <p>“This note is secured by pledge of the securities mentioned on the reverse hereof, with the right to call for additional security, should the same decline, and, on failure to respond, this obligation shall ■ be deemed to become due and payable, on demand, with the full power and authority to sell * * * the whole of said property, or any part thereof, * * * at public or private sale, at the option of the bank, and without further notice.”</p> <p>The words “further notice,” as thus used, imply actual previous notice of the demand for payment, and whilst such demand, made without the knowledge of the pledgor at the place where the note is payable, may be sufficient in some cases, it does not, in a case such as this, constitute a sufficient basis for the sale of the pledged property.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 40, Fledges, §§ 152-159.]</p> <p>5. Same.</p> <p>Where by a course of dealing, followed by a specific assurance to that effect, the maker of a demand note payable at the payee bank, and for the payment of which securities are pledged, is led to believe that the securities will not be sold without actual notice to him, a sale without such notice will not be sustained, either as to the pledgee or as to the alleged buyer, when it appears that the latter was fully informed of the situation.</p> <p>6. Sales — Distinguished Eeom Other Transactions.</p> <p>A transaction whereby a bank, holding a demand note payable to it at its place of business and secured by pledge, indorses the note “without recourse” and delivers it, with the pledged securities, to a third person for a consideration more than sufficient to pay the note, is upon its face a sale of the note and a substitution of the purchaser in the place of the bank as the pledgee of the securities.</p> <p>(Syllabus by the Court.)</p>

<p>1. HoMicide — Appeal—Review.</p> <p>Defendant, indicted for the murder of his wife, was found guilty and sentenced to death. He has appealed. His defense is that he was insane when the act was committed. He complains that the trial court improperly rejected evidence sought to be introduced to sustain his plea. He urges additionally various matters that he claimed were prejudicial to him, which arose in the course of the trial below.</p> <p>2. Criminal Law — Nolle Prosequi — Jury-Summoning, Attendance, and Discharge —Statutory Provisions. .</p> <p>Defendant was tried for murder under a second indictment which was found against him. The district attorney had the legal right to enter a nolle prosequi upon the first indictment, if he believed it could not stand the test of judicial scrutiny by the Supreme Court, although its validity had been recognized by the trial court. The accused suffered no injury thereby, as he had not been as yet placed in jeopardy. The district court had the right, under section 10, Act No. 135, p. 221, of 1898, to order the jury which had been drawn for the May term to reassemble for duty for the June term under the circumstances this was done.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 688-697; vol. 31, Jury, § 391.]</p> <p>3. Same — Appeal—Harmless Error —Selection of Jury.</p> <p>The defendant has no legal ground for complaint on the ground that the court refused to allow a certain question to be propounded to jurors on their voir dire, when he was not called on to exhaust his peremptory challenges in consequence thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 16, Criminal Law-, §§ 3115-3117.]</p> <p>4. Same — Trial — Reception ojt Evidence-Hypothetical Questions.</p> <p>The trial court has much discretion in the matter of permitting hypothetical questions to be propounded to an expert witness for the purpose of eliciting from him his opinion as to the sanity of the accused at the time when the homicide with which he was charged was committed; this discretion covering both the form and the substances of the question.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1073.]</p> <p>5. Same — Order of Evidence.</p> <p>When the hypothetical question -which counsel for the defense proposes to submit to the expert as a premise on which to express an opinion as to the sanity of the accused includes matters as to which there has been as yet no testimony before the jury, and as to which he simply declares he expects to produce testimony, he should at least make the offer conditioned upon an obligation upon his part to subsequently offer such testimony. When the trial court has refused to allow the question to be asked on the ground that the premise on which the question is based is as to matters not supported by testimony as yet before the jury, the accused, complaining of the ruling, should be able to show by the record that such testimony was in fact subsequently placed before the jury.</p> <p>6. Same — Record in Another Case.</p> <p>Where the áccused, charged with the murder of his wife, depends on the claim that he was insane when the homicide was committed, he cannot offer in evidence the record in another court of a charge against his wife for the murder of another woman, so as to bring before the jury the particulars of that homicide, to connect himself with it and make the connection furnish the probable cause of subsequent insanity in him. The testimony sought to be introduced was that adduced on the preliminary investigation of the charge against his wife, which was never used in the trial of his wife. This testimony was no part of the record sought to be introduced.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice Ellis Edrington, Judge.</p> <p>Action by Leon C. Vial against Charles El-fer and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice Ellis Edrington, Judge.</p> <p>Action by J. C. Triehe against S. H. La-biche and others. Judgment for defendants and plaintiff appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by the heirs of Coralie Darby against Albert G. Emmer. Judgment for plaintiffs, and defendant appeals.</p>

Paul, Judge. In the matter of the succession of Mrs. Fernand May. From a judgment for plaintiff in rule, Thomas Connell, clerk of the civil district court and collector of inheritance taxes, appeals.

Action by Wisdom & Levy against W. H. Bille and Waldemar Bille. From a judgment in the city court for defendants, plaintiffs appealed to the Court' of Appeal, in which court there was a judgment for plaintiffs, and Waldemar Bille petitions for cer-tiorari or a writ of review to the Court of Appeal, which writ Wisdom & Levy moved to dismiss. Motion to dismiss denied.

<p>Appeal from Twenty-Second. Judicial District Court, Parish of East Baton Rouge: Harney Felix Brunot, Judge.</p> <p>Injunction suit by J. W. Frellsen & Co. against A. W. Crandell, Register of the State Land Office, and others, in which action the Bowman-Hicks Lumber Company and others intervened. From the judgment, plaintiffs and defendants appeal.</p>

<p>.Appeal from Civil District Court, Parish of Orleans; George Henry ThSard, Judge.</p> <p>Action by Marie Louise Sieward and others against Justin F. Denechaud and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Victor Porter, Judge.</p> <p>Action by the heirs of J. M. Ducasse against Mrs. Victorine Ducasse, executrix. Judgment for defendant, and plaintiffs appeal.</p>

Action by Thomas Bartley and others against Vallery Sallier, curator, and others. Judgment for plaintiff was reversed by the Court of Appeal, and he applies for certiorari or writ of review.

Action by Gustave Goldstein against Simon D. Harris. On an order dissolving injunction, plaintiff applied for a suspensive appeal, and on denial of the same applied for writs ■ of certiorari and mandamus.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Clay Elliott, Judge.</p> <p>Closey West and another were found guilty of manslaughter, and appeal.</p>

<p>1. Homestead — Registration — Homestead Law op 1865.</p> <p>Plaintiff, in so far as he claims that he acquired a homestead under Act No. 33, p. 52, of 1865, was not obliged to register his claims.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Homestead, § 63.]</p> <p>2. Same — Waiver by Mortgage.</p> <p>The property was none the less susceptible to mortgage. Allen v. Carruth, 32 La. Ann. 444.</p> <p>3. Same — Title Devested by Sale.</p> <p>It was mortgaged, and the title passed from him to another person under foreclosure. The title acquired was legal and valid. Gilmer v. O’Neal, 32 La. Ann. 984.</p> <p>4. Same — Homestead Law under Constitution ob 1879.</p> <p>Plaintiff, to the extent that he claims that he acquired a homestead right under Const. 1879, art. 219, and Act No. 114, p. 140, of 1880, relative to homestead, is without right to a judgment reinstating him in the ownership of the property, by reason of the fact that he never registered his homestead claim, as required by the Constitution and that homestead act.</p> <p>5. Same — No Objection Urged to Sale ob Property.</p> <p>The property was transferred years ago in foreclosure proceedings without objection.</p> <p>6. Same — Total Silence.</p> <p>The homestead right must be timely urged in case of seizure before a foreclosure. If the person claiming the exemption under Act No. 33, p. 52, of 1805, remained silent and permitted the property to be sold, he was bound by the sale.</p> <p>Whatever right there was was lost. The plaintiff is absolutely without right to a homestead.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 25, Homestead, §§ 220, 344.]</p> <p>(Syllabus by the Court.)</p>

Action by the heirs of Lavinia Babin, wife of John Lester, against S. Isaac Daspit. Judgment for defendant was reversed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>1. CONSTITUTIONAL LAW — CONSTRUCTION OF Provisions.</p> <p>It is true that in the interpretation of a Constitution, as in the interpretation of statute law, the inquiry is to be directed to the ascertainment of the idea intended to be expressed by the language used; but the conditions to be considered in the two cases differ in some respects, for statutes are sometimes hastily drawn, and construction is necessary to give them effect, whereas- the language of a Constitution is presumably selected with the utmost discrimination.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 9.]</p> <p>2. Same.</p> <p>The rule that, “as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated,” applies to the provisions of a Constitution, as well as to those of a statute.</p> <p>[Ed. Note. — For cases in 'point, see Cent. Dig. vol. 10, Constitutional Law, § 9.]</p> <p>3. TELEGRAPHS AND TELEPHONES — REGULATION — POWEK op Railroad Commission.</p> <p>The Constitution of this state in terms grants to the Railroad Commission the power to make regulations to govern the “tariffs and service” of carriers of passengers and freight, and in equally explicit terms grants it the power to make regulations to govern the “charges” and “rates” of telephone and telegraph lines; and this court finds no warrant for holding that the discrimination was not intended.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 14.]</p> <p>(Syllabus by the Court.)</p>

<p>Municipal Coepobations — Demolition op Buildings — Liability. '</p> <p>A municipal corporation is prima facie liable in damages for the unlawful demolition of a private building by direction of its board of trustees. The burden is on the corporation to plead and prove that the acts of its agents were wholly ultra vires.</p> <p>(Syllabus by the Court.)</p>

<p>1. Animals — Vicious Animals.</p> <p>This is an action for damages for injuries received by plaintiffs’ child by being hooked by a vicious cow alleged to belong to defendant, and permitted by it to run at large on the public ro,ad in violation of an ordinance of the police jury.</p> <p>2. Same — Animals Running at Large.</p> <p>The public road ran through defendant’s plantation, and at the time of the injury the cow was on the public road, but under charge of a keeper, who was transferring it, with others, from a cow lot on one side of the road to a pasture on the other side belonging to defendant. It was not “running at large” on the public road.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 2, Animals, §§ 147-175.]</p> <p>3. Same — Peesons Liable.</p> <p>The animal did not belong to the defendant corporation, but to two of its members, who were at the time on the plantation. By an agreement between the corporation and these members, the latter were permitted to keep the animal on the place, and the corporation placed at their service one of its employes to take care of the animal for them. The employé, while so employed, was not in the service of or acting for the corporation, but in the service of and acting for the owners.</p> <p>4.Same — Evidence—Variance.</p> <p>The husband of one of the owners, and who was in the employ of the corporation as manager of the plantation, was made a defendant with the corporation, and sought to be made responsible personally • as being in charge of the animal. He was not in charge. The animal was at the time of the accident in charge of the man who was driving it across, and he was in the employ of the wife, and not the husband. Plaintiffs’ pleadings, which were never amended, placed the ownership of the animal in the corporation. Plaintiffs could not change their position on the trial, so as to shift the ownership to some one else.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. Action by Eugene Chassaniol and others against the board of assessors of the parish of Orleans and others. Judgment for defendants, and plaintiffs appeal.

<p>1. Trespass — Issues—Title to Land.</p> <p>Where the defendants, in an action for damages for trespass by cutting trees on a tract of swamp land, reconvened, asking to be recognized as owners of the land and of the trees taken therefrom, they thereby opened the door to plaintiffs to prove up their title. St. Paul v. Louisiana Cypress Lumber Co., 116 La. 590, 40 South. 906.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 46, Trespass, § 105.]</p> <p>2. Evidence — Judicial Notice.</p> <p>Courts will take judicial notice of the appointment and tenure of office of a member of the President’s cabinet.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 66, 67.]</p> <p>3. Public Lands —Swamp Lands —Selections by States.</p> <p>Act Cong. March 3, 1857, c. 117, 11 Stat. 251, confirmed to the several states their selections of swamp lands which had previously been reported to the Commissioner of the General Land Office. The subsequent sale by the United States of a tract of land thus confirmed to the state of Louisiana was null and void.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, § 180.]</p> <p>4. Adverse Possession — What Constitutes.</p> <p>The cutting of trees in small quantities and at long intervals on an isolated tract of swamp land, unaccompanied by external and public signs indicating intention to hold and preserve possession as owners, does not constitute that actual corporal possession required as the basis of the prescription of 10 and 30 years acquirendi causa.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 112, 113.]</p> <p>5. Taxation — Tax Sale — Title Acquired.</p> <p>A valid tax sale of the property itself, without reservation, is a sale of the whole title, and cuts off all prior claims and incumbrances not specially excepted by statute. Such a tax sale is a new and complete title emanating from the sovereign.</p> <p>'[Ed, Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, § 1463.]</p> <p>6. Estoppel — By Deed.</p> <p>The transferees of a tax title are not es-topped by the execution or recitals of a collateral deed antedating the tax sale, although their immediate vendor was a privy to such instrument.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of George Landry. On presentation of the account of the executrix, the heirs of George Landry filed opposition, and from the judgment Angelina Yrle appeals.

Action by Lahn & Co. against A. P. Carr. Judgment for plaintiff. On levy of execution, Jean Courrege and othersj third opponents, asserted the vendor’s privilege. On appeal the Third circuit court found for plaintiffs, a rehearing was granted, and judgment reversed in part; and Jean Courrege and others bring certiorari or writ of review.

<p>1. Appeal — Review—Conflicting Evidence.</p> <p>Where the evidence is conflicting, the verdict of the jury, approved by the trial judge, is entitled to great weight.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3949.]</p> <p>2. Tbial — Rebuttal Evidence.</p> <p>Evidence in rebuttal should be confined to new matter brought out by the defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 146-155.]</p> <p>(Syllabus by the Court.)</p>

<p>State — Action Against — Appeai,.</p> <p>The right of the General Assembly to waive the right of exemption of the state from suit and to grant permission to sue is not derived from article 192 of the Constitution. That article merely fixes certain features of the demand under certain circumstances, and the effect of the judgment when rendered. It has specially in view demands calling for the making of appropriations by the General Assembly.</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. In the matter of the succession of Ida R. Gurley, wife of Alphonse D. Denis. W. N. Grünewald sued out a rule against the minor heirs of a widow in community to show cause why judgment should not be rendered recognizing the mover as the lawful owner of the property. Judgment making the rule absolute, and the Newcomb Realty Company appeals.

<p>Appeal from the Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice Ellis Edringtou, Judge.</p> <p>Action by Anthony Madere against Thomas B. Sellers and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Malicious Prosecution — Malice—Probable Cause.</p> <p>There was a shortage in plaintiff’s account. Reason for the shortage was not believed by defendant who submitted the case to the district attorney, and, on his advice, the affidavit was made.</p> <p>2. Same — “Probable Cause” — Good Faith.</p> <p>Probable cause is that which leads the average man to believe that the accused, charged with embezzlement, purposely withheld the truth. Warrants him in the belief of the guilt of the accused in the offense charged. Mosley v. Year-wood, 48 Ann. 334, 19 South. 274; Sandoz v. Yeazie, 106 La. 202, 30 South. 767.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 18-28.</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5618-5627; vol. 8, p. 7765.]</p> <p>3. Same — Alleged Impeaching Statement.</p> <p>There was conflict in the testimony as to what was said by one of defendant' owners some time after he failed to sustain his case on preliminary trial.</p> <p>4. Same— Contradicting Statement.</p> <p>This conflict in the testimony does not prove the bad faith charged, nor the malice or want of probable cause alleged.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>[Syllabus by the Court.)</p>

Actions by J. C. Triche against S. H. La-biche and others, and by Leon C. Vial against Charles Elfer. Thomas J. Sellers .applies for writs of certiorari and prohibition.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Vantell Rock against the American Construction Company and the Consumers’ Electric Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; Louis P. Cail-louet, Judge.</p> <p>Action by the St. Louis Cypress Company, Limited, against Mrs. Orville Thibo-daux and others. Judgment for defendants, and plaintiff appeals.</p>

Action by Octave Darby against Paul Darby and others. Judgment for plaintiff was affirmed by the Court of Appeal, and defendants apply for certiorari or writ of review.

<p>1. Bills and Notes — Evidence—Sufficiency —Instkument Declared on.</p> <p>Plaintiff held a written acknowledgment of indebtedness.</p> <p>2. Same — Acknowledged Indebtedness.</p> <p>It was stolen or destroyed. At the instance of the debtor, it was renewed, not delivered to the legal representative of the creditor.</p> <p>3. Same — Delivery oe Document.</p> <p>After the death of the creditor it was forwarded, by the agent of the debtor and manager of her affairs, without the least intimation that it had no consideration.</p> <p>4. Same — Remarkable Case.</p> <p>The business relations present such a condition of affairs that the court holds the instrument was valid, and one which should be paid</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of the police jury of the parish of Vernon, for writ of mandamus to T. J. Davis, sheriff. From an order denying the writ, relator appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Janie M. Williams against the Kansas City, Shreveport & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Certiorari- from Court of Appeal, Parish of Iberia. Action by Andrew J. Cammack against Leopold Levy and others. Judgment for defendant was affirmed by the Court of Appeal, and he applies for certiorari or writ of review.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harvey Félix Brunot, Judge.</p> <p>Action by Adam Coleman against E. Wax and N. S. Dougherty, sheriff. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Henry G. Caldwell against Nelson Morris & Co. Judgment for defendants, and plaintiff appeals.</p>

In the matter of the succession of Thomas Newman. From an order dismissing oppositions to the probate of his will, the opponents appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by James J. Bailey against Charles Janvier and others. Judgment for plaintiff, and defendants appeal.</p>

Action by the Exchange Bank against E. B. Williams & Co. Judgment for plaintiff, and defendant appeals to the Court of Appeal. Judgment reversed, and plaintiff- applies for certiorari or writ of réview.

In the matter of the succession of Thomas Bagley. On filing of the account of the ad-ministratrix, Walter S. Crawford files opposition. From the order approving the account and tableau as filed with certain modifications, the opponent appeals.

Paul, Judge. Action by Daniel M. Pitard, for personal injury, against the New Orleans Railway & Light Company. Judgment for defendant and plaintiff appeals. On. opposite page is the sketch referred to In the opinion.

<p>Vendos and Purchaser — Conteact •— Construction — Pasties.</p> <p>Plaintiff, claiming that he was induced to build a planing mill at Gibbsland, La., through the representation of defendant that he would donate two acres of land for that purpose, sues the defendant for damage for failure to do so.</p> <p>Held, the claim is neither just nor well founded. Defendant, to the knowledge of plaintiff, was acting in the matter as an intermediary assisting plaintiff in obtaining the land, and the situation to his knowledge was such as to place it out of defendant’s power to make title to him when asked to do so.</p> <p>(Syllabus by the Court.)</p>

John H. Hoffman was convicted of a violation of Act 108, p. 144 of 1884, making it a crime for any officer of a bank to receive a deposit after he knows that the bank is insolvent, and he appeals.

<p>‘ ‘MARRIAGE’CEREMONIAL MARRIAGE.</p> <p>A man and a woman competent to marry went through the marriage ceremony before a Catholic priest and three witnesses, intending to marry; and the priest made on the marriage record of his church an entry reciting that in view of a license issued by the clerk of court he had in the presence of the witnesses required by law received the free and mutual consent of marriage between the parties, and had given them the nuptial benediction, and caused them and the witnesses to sign “the present act of mar-' riage.” The parties had already married before a justice of the peace, or rather gone through the forms of a marriage, since the woman’s first husband was then still living; and the priest was under the impression that said marriage, although no marriage in the eye of the Catholic Church, yet was valid in the eye of the civil law, and that therefore the ceremony before him was intended to be merely a religious marriage: hence he acted under the same license which had done service for the other marriage, and did not send to the clerk of court a certificate of marriage signed by three witnesses, as required by law; and he caused his own record to be signed by only two of the witnesses, no greater number being required for a church record. In a suit contesting the will of the husband in favor of the wife as made in favor of a mere concubine, held, that the ceremony before the priest was a marriage, and not a mere blessing of the null and void marriage before the justice of the peace.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Marriage, §§ 42-50.</p> <p>Eor other definitions, see Words and Phrases, vol. 5, pp. 4390-4398; vol. S, p. 7717.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Logs and Logging — Licenses—Contract —Mutuality.</p> <p>It was a license, as it purports to be on the face of the paper. If any more than a mere license, it was a nudum pactum, by reason of its binding only one of the parties to the contract, which the parties must have intended to be commutative.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Logs and Logging, § 13.]</p> <p>2. Same — Agbeement Violated.</p> <p>If it was more than a license, and not a nudum pactum, the defendant did not comply with its terms, and for that reason, also, it is null.</p> <p>(Syllabus by the Court.)</p>

<p>Insurance — Insurable Interest — Debtor and Creditor.</p> <p>An agreement entered into by a creditor and his debtor, by which the creditor agrees to make an additional loan, and the debtor agrees to take out life insurance on his own life and transfer it to the creditor in payment of the existing debt and of the loan, the creditor to pay all premiums, is valid, and, when carried out, makes the creditor the owner of the policy and entitled to receive the proceeds; provided the transaction be in good faith, and the value of the policy be not so disproportionate with the amount of the debt and loan as to constitute a mere wagering scheme.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 162.1</p> <p>Breaux, C. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Specific Pebfobmance — Pleading — Contract — Conditions Precedent.</p> <p>Where the petition alleges that plaintiff has elected to accept an option whereby, under a contract with defendant for the delivery of 5,000,000 feet of lumber, an additional 5,000,000 feet were to be delivered at prices to be fixed under certain conditions, by a named third person, and there is no allegation that the prices have been fixed, and plaintiff prays judgment condemning defendant to deliver the lumber, an exception of “no cause of action” should be sustained ; and where in such case, upon the trial on the merits, plaintiff proves no more than is alleged, the demand is properly rejected.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol.. 44, Specific Performance, §§ 356-372.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville,. Judge.</p> <p>Action by the Louisville & Nashville Railroad Company against the New Orleans Terminal Company. Judgment for defendant, and plaintiff appeals.</p>

Application by James Reed for the probate of the will of Mrs. H. R. Jones, deceased, From a decree admitting the will to probate, opponent James R. Mitehel appeals.

Mary; Albert Campbell Allen, Judge. Action by Arthur Bourg against the Brownell-Drews Lumber Company, Limited. Judgment for plaintiff, and defendant appeals. The following is the sketch referred to in the opinion:

In the matter of the succession of L. J. Gary. Rule of widow L. J. Gary and others against C. E. Brenholz to recover possession of land. Judgment for defendant, and petitioners appeal.

<p>Action by Minoprio, Forgan & Co. against the Western Union Telegraph Company. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applied for cer-tiorari or writ of review.</p>

<p>1. Parties — Capacity to Sue — How Objection Raised.</p> <p>The capacity of a person suing as heir is not put at issue by a general denial, The want of such capacity should be specially pleaded in limine litis.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 37, Parties, § 118.]</p> <p>2. Marriage — Evidence to Establish — Presumption.</p> <p>In the absence of primary evidence, a marriage may be proved by evidence of cohabitation as man and wife and general reputation. The presumption of marriage arising from such' a state of facts may be rebutted by proof that no marriage between the parties ever took place, or that the marriage was void for some nullity established by law. Papers purporting to be certificates of marriage, not proven up and never recorded, furnish no evidence of the celebration of the marriage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Marriage, §§ 61, 62, 73.]</p> <p>3. Mortgages — Redeemable Sale oe Land.</p> <p>A redeemable sale of real estate, where the apparent vendor remains in possession and the price is vile, will be considered as a mortgage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 79, 86.]</p> <p>4. Same — Parol Evidence.</p> <p>The heirs of an apparent vendor, under allegations of error and fraud, may show by parol that a sale of real estate absolute on its face was intended to operate as a mortgage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, § 98.]</p> <p>5.Taxation — Tax Sale — Want oe Notice-Prescription.</p> <p>A tax sale of real estate, made without notice to the tax debtor or his legal representatives, is null and void, and is not cured by the constitutional prescription of three years, where the widow in community continued in possession of the property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1332-1337.]</p> <p>(Syllabus by the Court.)</p>

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

<p>Eminent Domain — Expropriation Suit — Intervention bv Purchaser.</p> <p>The adjudicatee at a judicial sale made ■pending an expropriation suit has a standing to intervene in the suit; and the question of whether or not he is in default in complying with his hid cannot be decided as an incident to the expropriation suit.</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 Ernest Prevost against Duvil-lier Rodriguez. Judgment for defendant, and plaintiff appeals.</p>

Action by Patrick Broderick against R. P. Blunt. Judgment for defendant was affirmed by the Court of Appeal, and Mrs. Patrick Broderick applies for certiorari or writ of review.

<p>1. CORPORATIONS — RIGHT OP ACTION.</p> <p>A corporation may sue in its own name, without designating its president or other officers. In such a case the corporation appears through its attorney, whose authority is presumed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1953-1957, 1975.]</p> <p>2. Sales — Breach oe Contract — Damages.</p> <p>Where the defendant violated his contract to deliver lumber of specified grades and quantity within a certain fixed time, the purchaser is entitled to recover as damages the amount of profits of which he had been thereby deprived.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1196.]</p> <p>3. Contracts — Action por Breach — Demand op Performance.</p> <p>In a suit for damages, a putting in default by formal demand for performance is not required as- a prerequisite, where the defendant denied the existence of the contract, or refused, or was admittedly unable, to perform his part.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 11, Contracts, §§ 1217-1219.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Lydia Maitrejean against the New Orleans Railway & Light Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Yendoe and PubchaseR — Lesion Beyond Moiety — Rescission by Yendoe.</p> <p>In sales of real estate, the vendor may be relieved if the price given is less than one-half of the value of the property sold. Rev. Civ. Code, arts. 1861, 1862, 2589, 2590. In such a case the burden is on the vendor to prove lesion beyond moiety by evidence peculiarly strong and convincing, and of such a nature as to exclude speculation and conjecture.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 151, 181.]</p> <p>2. Same — Capacity of Yendoe — Intoxication.</p> <p>Habits of intoxication not excluding sober intervals, and not incapacitating the person from attending to the ordinary transactions of life, will not suffice to avoid an agreement to convey real estate, especially in the face of evidence tending to show that the vendor was sober at the time and understood the nature of the transaction.</p> <p>3.Specific Pebfobmance — Right of Action.</p> <p>The right of action follows the legal title, and the fact that the plaintiff purchased for another does not concern the vendor in the transaction.</p> <p>(Syllabus by the Court.)</p>

Action by- the Arcadia Cotton Oil Mill & Manufacturing Company against A. B. Fisher and by the Silbernagel Company, Limited, against the same defendant. Actions tried together. From the judgments, plaintiffs appeal. Action by the Arcadia Company transferred to Court of Appeal.

<p>1. Landlord and Tenant — Lessor, Lessee, and Subtenant.</p> <p>A lease from lessor to lessee does not pass to the subtenant. There is no contractual tie between the lessor and the subtenant.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 244-257.]</p> <p>2. Same — Duty of Lessee.</p> <p>The recourse of the subtenant is against his immediate lessor. The duty of the latter is to protect his subtenant, and compel his lessor to perform his part of his obligation as a lessor, which is to inure to the subtenant under the terms of the lease.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 249-257.]</p> <p>3. Same — Lessor Not Bound as Between Him and ti-ie Subtenant.</p> <p>The subtenant is without the right of renewal of the lease with original lessor in case the exercise of this right is opposed by the lessee.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 277.]</p> <p>4. Same — Remedy—Indemnity.</p> <p>The right is to damages, and not to a renewal of the lease and reinstatement in the possession of the property.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 277.]</p> <p>5.Same — No Right to Transfer, but Right to Sublet.</p> <p>There are limitations in the lease not expressly passed upon except to the extent of holding that it places the defendant at least one remove further from the impossibility of obtaining possession as subtenant.</p> <p>(Syllabus by the Court.)</p>