Volume 121 — Louisiana Reports

Certiorari from Court of Appeal, -Parish of Natchitoches. Action by W. W. Page against Roy Kidd. Mrs.- Chaffraix intervener. Judgment against defendant Kidd, and, on appeal to the Court of Appeal, judgment was rendered for intervener. W. W. Page applies for certiorari or writ of review.

<p>1. Public Lands — Patent from State — Collateral Attack.</p> <p>Neither the state nor any of its agents can attack a state patent valid on its face in a collateral proceeding.</p> <p>2. Same — Swamp and Overflowed Lands.</p> <p>The acceptance by the state of lands certified to it by the Secretary of the Interior as “swamp and overflowed” is conclusive upon the state as to the title to and character of the lands so certified and subsequently sold by the state as such.</p> <p>Qn Rehearing.</p> <p>3. States — State Boards — Authority.</p> <p>Whilst the authority of a public corporation, created as an agent of the state, may be very extensive in the direction in which it is intended to be used, such agent has not only less authority in other directions than the ordinary citizen, but has none whatever; and the authority conferred upon it can be sustained only in so far as not devested or controlled by authority emanating from the same or a higher source.</p> <p>4. Public Lands — Sale of State Lands— Oyster Commission — Powers.</p> <p>The state, through its agents, having sold a particular tract of land as susceptible of private ownership, the oyster commission, another agent, charged with the control of oyster beds and water bottoms suitable for oyster beds, has no authority or standing in court to deny • or attack the validity of such sale.</p> <p>5. Same — Right to Bring Action.</p> <p>In a litigation between a possessor of land, bolding under a patent from the state, and the oyster commission, the latter being without capacity to stand in judgment for the state with respect to the validity of such patent, and the state itself not being a party to the litigation, no judgment can be rendered on that question by which the state can be bound.</p> <p>(Syllabus by the Court.)</p>

<p>1.Intoxicating Liquors — Licenses—Power of Municipalities to Impose.</p> <p>Under article 229 of the Constitution the General Assembly may authorize a municipal corporation to impose upon dealers in distilled, alcoholic, or malt liquors a license tax in excess •of that imposed for state purposes; but whether such corporation can legally impose a license tax upon the liquor business, or upon any other business, and, if so, upon what conditions, depends upon its authority as derived from the General Assembly.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, §§ 7-14.]</p> <p>2. Same — State Regulation.</p> <p>Act No. 136, p. 224, of 1898, Act No. 17, p. 24, of 1902, and Act No. 142, p. 313, of 1904, are general statutes, applying to municipal corporations; but Act No. 171, p. 387, of 1898, is a statute whereby the state undertakes to make special provision with regard to the levying and collecting of licenses, not only for its own account, but by and for account of the municipal and parochial corporations throughout the state, and its provisions control those of the other statutes with respect to the particular subject legislated on.</p> <p>3. Same — Wholesale and Retail Business.</p> <p>Under Act No. 171, p. 387, of 1898, whoiesale_ and retail businesses are dealt with as distinct from each other, and are required to be licensed separately, and the provisions of the act upon that subject are as applicable to the liquor business as to any other and as applicable to municipal corporations as to the state. Hence a municipal ordinance imposing one license upon the liquor business, wholesale and retail, is unauthorized and illegal.</p> <p>■ [Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, §§ 7-14.]</p> <p>4. Same — Grading of Licenses.</p> <p>The provisions of Act No. 171, p. 387, of 1898, requiring the grading of licenses, applies as well to municipal as to state licenses.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, §§ 7-14.]</p> <p>5. Same — Validity of Ordinance — Purpose of Tax.</p> <p>There is nothing in Act No. 136, p. 224, of 1898, Act No. 17, p. 24, of 1902, or Act No. 142, p. 313, of 1904, which requires that, as a condition to the exemption of a municipality from parochial license taxation, the particular purpose to which the municipal license tax is to be devoted shall be stated in the ordinance imposing such tax; that matter being left for subsequent determination, upon the condition always that the tax, when used, shall be used for one or other of the purposes specified in the two statutes last above mentioned.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville,. Judge.</p> <p>Action by Pauline Josephson against Caroline Powers and Ira A. Powers. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Appeal — Review—Objections Not Made Below.</p> <p>Where defendant in a petitory action, before answering, pleaded in bar the prescription of 10 years, and such plea was tried separately without objection, it is too late to complain that the plea should have been referred to the merits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1251, 1252.]</p> <p>2. Same — Harmless Error.</p> <p>Where, on a motion for a new trial, filed by the plaintiffs, it was for the first time suggested that some of them were unrepresented minors, and the court thereupon ordered the case reopened for further evidence on the question of minority, held, that the plaintiffs of full age, who made no objections to the order and tendered no additional evidence, were not prejudiced by the proceedings.</p> <p>3. Minors — Actions By and Against — Representation by Tutors.</p> <p>Minors can neither sue nor be sued, except through their duly appointed and .qualified tutors. A father, never confirmed as natural tutor, cannot represent his minor children in a judicial proceeding.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Infants, §§ 195, 196, 222-229.]</p> <p>4. Prescription — Suspension During Minority.</p> <p>Title to real estate may be acquired against the true owner by actual possession in good faith, and under title translative of property, for a period of 10 years. The current of this prescription is suspended during the minority of' the true owner.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 15-23, 65-76.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; Richard Cleveland Drew, Judge.</p> <p>Action by John M. Jones against the Sibley, Lake Bisteneau & Southern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Appeal1 from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory HoratioCouvillon, Judge. Action by Melloway Laborde, authorized by her husband, and Leonce Dauzat in his. own behalf, against the Louisiana Railway & Navigation Company. Judgment for plaintiffs, and defendant appeals.

<p>Criminad Law — Evidence — Admissions of Accused.</p> <p>Where the admission of the accused results from his answer to a question, the latter is necessarily admissible as explanatory of the answer.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, § 895.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Jury — Disqualification.</p> <p>Defendants’ case, on a charge of robbery, coming up for trial, defendants objected to going to trial on the ground that the regular jurors in attendance upon the court, and who would have to act upon their case if the trial were proceeded with, had been present during their trial on another charge of robbery. Sold, that the court properly overruled the objection, since the presence of the jurors during the other trial did not necessarily have the effect of disqualifying them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, .§ 460.]</p> <p>2. Witnesses —Cross-Examination—Discretion oe Court.</p> <p>The court has a certain discretion in the conduct of trials and hence may stop counsel from indefinitely prolonging a cross-examination by repeatedly going over the same matter.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 928.]</p> <p>3.Criminal Law — Argument oe Counsel— Reversal.</p> <p>The fact that the district attorney has argued to the jury an erroneous proposition of law is not good ground for setting aside the verdict.</p> <p>[Ed. Note. — For cases in' point, see Cent. Dig. vol. 14, Criminal Law, §§ 1682-1687.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Evidence — Paeol Evidence.</p> <p>Parol evidence is inadmissible to prove a transfer of real estate, or to take the debt of a ■deceased person out of prescription.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 548-555.]</p> <p>■2. Same.</p> <p>But such evidence may be received to defeat a demand for fruit and revenues of real estate.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 548-555.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Louisia Jackson against Louis H. Crillton and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Action by L. E. Bentley and others against Armantine Cavallier. Judgment for defendant, and plaintiffs appeal.</p>

<p>Death — Right oe Action — Surviving Parents — “Father’ ‘ ‘Mother. ’ ’</p> <p>The right granted in article 2315 of the Revised Civil Code to the surviving “father” or “mother” to recover damages for the death of their son is a right granted to the actual father or mother of the child, and not an adopting parent.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 15, Death, § 43.</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2702-2703; vol. 5, p. 4609; vol. 8, p. 7662.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Abraham I. Hirsh against Louis E. Valloft and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Sales — Rights oe Purchaser — Reduction oe Price.</p> <p>AVhere the purchaser of a steam tug sued in reconvention for a reduction of the price to the extent of $1,000 on account of concealed defects in the hull and machinery of the boat, held that, having elected to keep the vessel, lie cannot recover for repairs made thereon or for damages, but is restricted to his claim for a reduction of the price.</p> <p>2. Same — Liability oe Vendor.</p> <p>In a suit for a reduction of the price, the responsibility of the bona fide vendor is measured by the difference in value between a sound and unsound article.</p> <p>[Ed. Note.- — For cases in jioint, see Cent. Dig. vol. 43, Sales, §§ 128«301.]</p> <p>3. Same — Action on Note.</p> <p>AArhere the note sued on showed that it was given by the defendant to the plaintiff for a certain steam tugboat, evidence was admissible to connect the note with a purported cash sale of the same vessel made by plaintiff’s manager in his own name.</p> <p>(Syllabus by the Court.)</p>

<p>1. Vendor and ‘ Purchaser — “Promise of Sale” — Effect—“Sale”—The Equivalent.</p> <p>The promise of sale was, in effect, a sale. [Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 17.</p> <p>For other definitions, see Words and Phrases, voi. 7, pp. 6291-G306; vol. 8, p. 7793.]</p> <p>2. Same — A Sale.</p> <p>The acts of the parties have brought the promise to the state of an actual sale.</p> <p>3. Specific Performance — Performance by Plaintiff — Proof to be Made.</p> <p>The buyer being in possession, and having paid in addition to the “earnest money” an amount on the remainder of the price, it only remains for him to prove his willingness and ability to pay the remainder of the price. After legal and sufficient proof made — and deposit of remainder, if necessary — then it will be incumbent upon the seller to sign the deed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 286-298.]</p> <p>4. Same — Deed.</p> <p>The buyer will be held to the necessity of proving that he has complied with all needful renuirements on his part to complete the sale.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 383.]</p> <p>(Syllabus by the Court.)</p>

<p>1.Administrators — Priv ilege — Allow an ces to Surviving Wife or Children — Setting Apart by Administrator — Land.</p> <p>Article 3252 of the Civil Code grants to the widow or children in necessitous circumstances “money” and not “land.” In order that title to any land of the succession should vest in the widow or children, it would have to be transferred from the succession to them through some legal proceeding. The administrator of the father’s succession is without power or authority to transfer land to the drldren by an allotment or a dation en paiement to them in lieu of money, and the mother cannot legally bind the minors to accept title to the land without their consent.</p> <p>2. Minors and Their Tutorship.</p> <p>In this instance the widow, at a sale made by an administrator to pay debts, bid in her individual name, upon a specific piece of real estate. As the last and highest bidder it was adjudicated to her in her individual name, and deed executed to her in her individual name, as purchaser. By the adjudication she became personally bound for the price. The fact that after the purchase the administrator, instead of requiring her to pay cash, credited her with the amount of her bid, taking from her her receipt for an amount corresponding to her bid, cannot be invoked by the children as having the effect- of making them purchasers of the-land.'</p> <p>3. Vendor and Purchaser — Bo-na Fide Purchasers — Reliance on Records.</p> <p>Where the widow appears on the face of' the succession records, and the records dehors the succession as the legal owner of the land,, and no equities in 'favor of the children appear in any way, third persons buying the property from her in good faith are protected from attack of the children under a claim by them of ownership.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 513.]</p> <p>(Syllabus by the Court.)</p>

<p>Divorce — Custody oe Children.</p> <p>The husband, having obtained judgment of final divorce awarding him the unconditional custody of the minor children of the marriage, is without legal capacity to abdicate his trust by . a subsequent agreement with his divorced wife; and such an agreement, purporting to vest in her the temporary or conclitional custody of the children, cannot operate as a bar to his recovering possession of them.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of Morris R. Stewart, acting district attorney, for writ of mandamus to the trial judge.

<p>1. Evidence — Judicial Admissions — Pleading — No Admission.</p> <p>There was no judicial admission by defendant.</p> <p>The answer containing the alleged admission controverted another issue raised by the supplemental and amended petition of plaintiff.</p> <p>In leaving the sphere of the same cause, parties left behind all questions of judicial admission.</p> <p>2. Corporations — Receivers — Proceedings eor Appointment — Burden oe Prooe — Party Asserting Pact — Matter oe Evidence.</p> <p>Whether plaintiff was or was not a stockholder of the corporation for which he sued to have a receiver appointed is a question of proof.</p> <p>3. Same — Charter Provisions — The Charter.</p> <p>The provisions of the charter were, among others, the shares subscribed for were to be paid in 30 days. The directors and other officers under the terms of the charter, must own shares. They owned none except one of the officers.</p> <p>All except one failed to pay in accordance with their subscription. They consented to the transfer of all stock, and kept none of the stock for 'themselves.</p> <p>4. Same — Issues—Parties—The Stockholders.</p> <p>The right of those who bought the shares, whatever it may be, cannot be decided in this case, for they are not parties.</p> <p>5. Same — Persons Entitled to Petition eor —No Right to- Stand in Judgment.</p> <p>To maintain an action for the appointment of a receiver, the petitioner must be a stockholder or creditor. In this case, it does not appear that plaintiff is either.</p> <p>6. Husband and Wiee — Judgment—Interest oe the Wiee.</p> <p>In a suit by the husband in pursuit of his own interest, he cannot change the issues to the end of sustaining the action in the name of his wife.</p> <p>Whatever necessity there may be for the appointment of a receiver, the court is constrained to decline to make the appointment until it appears that petitioner is a stockholder or creditor. The -mere fact of being an officer will not suffice; it not appearing by proof that he owns stock.</p> <p>(Syllabus by the Court.)</p>

Action by the National Fire Insurance Company against the board of assessors and others. Judgment for defendants, and plaintiff appeals.

W. Ellis, Judge. Action by the General Electric Company against the board of assessors and others. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice Ellis Edrington, Judge.</p> <p>Primary election contest by J. C. Triche against S. H. Labiche and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1 Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice Ellis Edrington, Judge.</p> <p>Action by Leon C. Vial against Charles Elfer and others. Judgment for plaintiff, and defendants appeal.</p>

Thomas C. W. Ellis, Judge. Action by C. E. Allgeyer and others against the board of assessors and others. Judgment for defendants, and plaintiffs appeal.

<p>Case Certified from Court of Appeal, Parish of Iberville.</p> <p>Action by the Barber Asphalt Paving Company against the St. Louis Cypress Company, Limited. Judgment for defendant, and plaintiff appeals. Case certified by Court of Appeal.</p>

<p>1. Husband and Wife — Community Property — Surviving Spouse — Usufruct—Remarriage.</p> <p>The usufruct in favor of a surviving spouse, which ceases when such spouse remarries, is that established by law upon so much of the share in the community property of the deceased spouse, who has died intestate, as may have been inherited by the issue of the marriage. The usufruct established by the will of the deceased in such share does not so cease.</p> <p>2. Judgment — Res Judicata.</p> <p>Where the major children (by a prior marriage) of a deceased wife, and the surviving husband, upon their joint petition, obtain a judgment ordering the execution of the will of the decedent, and putting them in possession in accordance therewith (the surviving husband as usufructuary of the share of the testatrix in the property of the second community), such judgment is conclusive as to the rights of the parties, unless set aside upon allegations of fraud or error.</p> <p>3. Partition — Sate.</p> <p>Where one who owns an undivided half interest in real estate, which is not susceptible of division in kind, holds the other half interest as usufructuary, the owner of the naked title to the half so held cannot force the sale of either the naked or the perfect title -in order to effect a partition.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal — Right oe Review — Estoppel.</p> <p>The right of a party to appeal from a judgment which he considers prejudicial to his interest is constitutional, and exists in all cases except where the party has confessed judgment, or has acquiesced in the same by executing it voluntarily. Codé Prac. art. 507. An alleged estoppel which does not amount to a voluntary execution of the judgment will not defeat the right of appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 953-976.]</p> <p>2. Master' and Servant — Master’s Liability por Injury to Servant — Duty to Furnish Safe Place to Work.</p> <p>The master cannot plead ignorance of the defects in the construction of a suspended sliding door, which rendered it liable to fall outward on a slight jar or disturbance.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 249, 250.]</p> <p>3. Same — Fellow Servants — Concurrent Negligence op Master and Fellow Servant.</p> <p>Where such .a door, after having been closed, fell and injured a servant, the concurring negligence of another servant in closing the door cannot avail the master.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 515.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Master and Servant — Injury to Servant —Contributory Negligence.</p> <p>Where the servant undertakes to discharge the duty for which he is employed in a manner more hazardous than that contemplated or required, he assumes the risk, and there can be no recovery of damages for injury resulting therefrom. Thus, where a railroad switchman is warned, by a rule of the company employing him and by special admonition, not to attempt to uncouple moving cars, and, whilst between two cars for the purpose of uncoupling them, signals the engineer to move, he assumes the resulting risk of such movement. Nor does it affect the question that his failure to get out in time to save himself is caused by his getting his foot wedged between the guard and the track rails; for, though it should be conceded that the company was negligent in failing to block the space between the two rails, the danger resulting therefrom would not have affected the switchman if he had been discharging his duty in the manner contemplated by his employment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 559-566.]</p> <p>2. Same — Negligence oe Fellow Servant.</p> <p>Where a locomotive engineer and a switch-man are members of a switching crew operating in a railroad yard, the movements of the switch engine being directed by the signals of the switchman, the two are fellow servants, and there can be no recovery of damages for injuries resulting to the switchman from the negligence of the engineer, unless it be alleged and proved that the latter was incompetent or negligent to the knowledge of the common employer, or such knowledge can fairly be imputed to the common employer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 493-514.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal — Appealable Oeder.</p> <p>No appeal lies from an order granting, or refusing to dissolve, an injunction pendente lite, except in cases where the injury cannot be repaired in damages.</p> <p>[Ed. Note. — For cases in point, see Cent, Dig. vol. 2, Appeal and Error, §§ 675-677.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by the Breaux Bridge Lumber Company, Limited, against Edward Hebert and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Judgment — Conclusiveness—Summary Proceedings.</p> <p>When, after hearing, a rule requiring a litigant, at whose instance the execution of a writ of seizure and sale has been enjoined, to show cause why the truth of his allegations should' not be proved summarily, or the writ dissolved, has been made absolute, another application foiinjunetion, which presents or might present the-same grounds as the first, is made, such application is properly denied; and mandamus will not lie to compel the issuance of another injunction, nor -will prohibition lie to restrain the trial court from proceeding to enforce execution of the writ of seizure and sale, still less when it appears that the execution of the judgment dissolving the first writ is suspended by appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. Execution — Property Subject — Right to Sue eor Collation.</p> <p>The heir’s right in this respect is not subject to seizure.</p> <p>2. Same — Seizure.</p> <p>The fact that the heir has filed suit to compel collation is not an “executed” right, rendering the suit subject to seizure. Suits may be seized, with the exception of those which are exclusively reserved to the person; for instance, a suit to compel collation. The right is “executed” or enforced only after judgment is-rendered.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.</p> <p>Action by the New Orleans Land Company against the National Realty Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

Action by Henry Rivet against the George M. Murrell Planting & Manufacturing Company to enjoin a sale under fieri facias on the ground that tbe property was exempt under Const. 189S, art. 244. Judgment for defendant, and plaintiff appeals.

<p>1. Landlord and Tenant — Duties of Lessor —Warranties.</p> <p>The lessor of a building is bound to deliver the same in good condition and free of repairs, and warrants against all vices and defects which may prevent it from being used for the purposes of the lease.</p> <p>2. Same — Essential Defects.</p> <p>A stipulation that the lessee shall make all necessary repairs, present and future, for the term of one year, does not dispense the lessor from his obligation to deliver the building in a sound condition as to its structural parts, nor does it exclude the lessor’s warranty against essential vices and defects.</p> <p>3. Same — Necessary Repairs — Duty oe Lessee.</p> <p>Where a leased building collapsed during the term by reason of rotten supporting columns, the lessor has no claim for damages against the lessee on the latter’s covenant to make necessary repairs; usual decay being excepted.</p> <p>4. Same — Damages—Recovery by Lessee.</p> <p>A lessee, who might have protected himself at small cost against the collapse of a building by temporary shoring, is' not entitled to recover the consequential damages.</p> <p>(Syllabus by the Court.)</p>

<p>1.Judgmeno^-Default — Pleading — Exceptions — No Cause of Action — Right to Answer.</p> <p>An exception of no cause of action not being an answer, even though filed after default, cannot he ordered by the trial court to stand as an answer; and such an order, though made upon a rule to show cause, cannot deprive the defendant of his right to file an answer.</p> <p>2. Appeal — Bill of Exceptions — Necessity.</p> <p>For having such unauthorized order re viewed on appeal, the defendant need not have taken a bill of exception to same.</p> <p>3. Principal and Agent — Action by Agent —Undisclosed Principal.</p> <p>A broker cannot sue the other contracting party for breach of a contract made in behalf of his principal; and this is so, although the principal is undisclosed.</p> <p>(Syllabus by the Court.)</p>

Application by the state, on the relation of Delia Kearney, for writ of habeas corpus against Mrs. Andrew Steel and others. From an order denying the writ, plaintiff appeals.

Paul, Judge. Rule by the state against Nick Scutarri to-show cause why he should not pay a liquor license. Rule discharged, and the state appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by Madeline Vital and others against D. D. Andrus and others. Judgment for defendants, and plaintiffs appeal.</p>

Durieve King, Judge. In the matter of the succession of Michael Gairnes. Rule by the administratrix on Francis Carrau to show cause why he should not be condemned to comply with the adjudication. Judgment for defendant in rule, and plaintiff in rule appeals.

Action by Daniel E. Sheridan against Samuel E. Reese. Judgment for plaintiff, and defendant appeals. Rule to show cause why he should not be punished for contempt. Exceptions to the rule overruled, and he applies for writ of prohibition.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Amelia Eigenbrod against tbe Cumberland Telephone &■ Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Dawkins, Judge.</p> <p>Action by F. E. Mayo against the Little Rock & Monroe Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

■ Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge. Rule by the sheriff to tax costs in an action by J. Edward Crusel against R. E. Brooks. From a judgment for the sheriff, Crusel appeals.

<p>Injunction — Private Nuisance — Ice Plant.</p> <p>The location and operation of factories and other works likely to disturb neighbors by smoke, smells, noise, etc., must be determined by the police regulations or customs of the place. •Civ. Code, art. 669. Unavoidable noises resulting from the operation of an ice plant, constructed under a municipal permit, furnish no basis for enjoining its operation as creating a private nuisance.</p> <p>(Syllabus by the Court.)</p>

Action by Henry M. Davis against the Kenefick, Hammond & Quigley Construction Company. Judgment for defendant. On appeal to the Court of Appeal, a judgment was affirmed, and plaintiff applies for certiorari or writ of review. Judgment of the Court of

<p>1. Specific Performance — Evidence—Admissibility.</p> <p>Mrs. A. Graffagnino and her son Dominick owned in indivisión a lot of ground in the city of New Orleans. On March 12, 1906, the son signed the following writing: “Received from Mrs. George Burch (plaintiff) the sum of two hundred dollars being deposit on account of the purchase of the property belonging to Mrs. A. Graffagnino, No. 3524 Camp street, for the sum and price of twenty-nine hundred and fifty dollars cash; purchaser must pay taxes of 1906, and if the act of sale is not passed by the first of April the purchaser will have all rents due from that date.”</p> <p>At that date the property was under lease to one Neilson, and the plaintiff (his mother-in-law) was living with him on that property. Claiming that -the instrument evidenced a saie of the property plaintiff brought suit to compel Mrs. Graffagnino and her son to deliver title and possession of the property to her upon payment of the sum of $2,950, the purchase price thereof, less the sum of $500 to be retained by her for expenses to be incurred in obtaining the cancellation of the mortgages. On the trial plaintiff sought to elicit from Mrs. Graffagnino, through interrogatories on facts and articles propounded to her, that she had authorized her son to sign the instrument and had consented to the sale of the property. Her counsel objected to their being answered on the ground that she was in possession of the property, and interrogatories on facts and articles could not under such circumstances be propounded, and that a mandate to sell real estate had to be evidenced by writing. The court sustained the objection, .and after trial rejected plaintiff’s demand, and she appealed. Held, the rulings of the court were correct, and the judgment under the pleadings is affirmed.</p> <p>2. Same — Sufficiency of Performance by Plaintiff.</p> <p>A party seeking to compel the specific performance of an alleged contract of sale must allege and prove or at the least tender exact compliance with what he was called on to perform under the contract. The relief asked must be that which is legally demandable by him under the terms of the contract. Satterfield v. Keller, 14 La. Ann. 606.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 372.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Bonds — Interest—Bonds with Coupons Attached.</p> <p>The bonds were advertised to be sold with coupons attached. The coupons were attached to the bonds at the time that plaintiff’s bid was accepted. It was only after the bid was accepted that they were detached.</p> <p>2. Same — Date oe Bonds and Coupons.</p> <p>The bonds and coupons bore the date of the statute under which they were issued. Their maturity is fixed for that date.</p> <p>3. Same — Way Provided to an End.</p> <p>' The statute provided a plan for issuing bonds and coupons and at the same time for their payment; nothing more.</p> <p>4. Same — The Terms and Conditions oe the Bonds and Coupons Referred Back to their Date.</p> <p>The date of the issue of the bonds and coupons is not necessarily the date that it was found convenient or advantageous to sell them. (Syllabus by the Court.)</p>

Action by Emma Johnson against Louisa Birch, dative testamentary executrix of Albert Elmore, deceased, and others. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Action by W. E. Lawson and others against P. W. McBride and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Negligence — Places Attractive to Children — Timbers Across Canal — Liability— Temporary Crossing.</p> <p>The stringers across the canal were not an inviting place for children. The two timbers were not a continuation of a highway, nor did they connect two streets. They were not intended for pedestrians. They were put there to wheel wheelbarrows across the canal.</p> <p>2. Same — Not Inviting.</p> <p>The stringers were above a coffer dam. The end of each stringer was about eight feet below the surface of the bank. There was an “incline” or “approach” from the bank to the end of the timbers below.</p> <p>3. Same — An Incline or “Run.”</p> <p>While in use, defendants had placed a few boards and made a “run” for the wheeling of the wheelbarrows from the bank to the stringers.</p> <p>4. Same — The Boards oe the “Run.”</p> <p>When the defendants left the work they took these planks away. They left the stringers across the canal.</p> <p>5. Same — Some Time Had Elapsed.</p> <p>At the date of the accident they had been away from the work of laying pipes about one month and a half.</p> <p>6. Same — Private Way Over Drain.</p> <p>The crossing was not public. It was not dangerous. The child who met with the fatal accident, aged 4% years, had wandered from her home with a companion about her age.</p> <p>7. Same — Not Liable eor Accident.</p> <p>A person not in any way negligent, not suspecting and without cause to suspect that a child of tender years would leave the playground and attempt to cross on stringers that he placed across a canal, cannot be held liable for damages.</p> <p>8. Same — Boards Across Drains.</p> <p>If the contrary were the rule, then all boards across a small stream, canal, or drain would have to be removed immediately after they have been used, although not intended as a crossing place and not attractive at all as such. The approaches to them did not offer ready access.</p> <p>9. Same — Used Crossing Nearby.</p> <p>There was a crossing nearby made with boards laid from bank to bank. It was a convenient crossing as compared with the two pieces of timber.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second Judicial District Court, Parish of Bossier; Richard Cleveland Drew, Judge.</p> <p>Action by the Antrim Lumber Company, Limited, against S. H. Bolinger and Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Injunction — Remedy at Law — Restraining Enforcement of Ordinance — Appeai,—Jurisdiction.</p> <p>A person, notified by the marshal of a town that, unless he complied with the provisions of a town ordinance requiring him to perform road duty in the streets of the town or exercise the option reserved to him of paying a fixed sum of money in lieu of the service, he would “take him before the mayor’s court and have him there tried for violation of the ordinance,” is not entitled to an injunction from the district court enjoining the bringing of such action in the mayor’s court. He had ample opportunity in defense in the latter court to raise therein all objections against the authority of the town of Farmerville to enact the ordinance, and to raise all issues he thought proper as to the legality and constitutionality of the ordinances, with the right to an immediate appeal to the Supreme Court from a judgment adverse to him. The mayor’s court was the proper court in which to raise primarily and have determined such issues. The party so notified could not by injunction transfer primarily to the district court the issues as to the powers of the town or the constitutionality of the ordinances. There was no occasion for precipitancy in the premises, or for having recourse to equitable relief. When the district court refused to take cognizance of such issues, when presented to it in the manner and under the circumstances they were, for want of jurisdiction, this refusal gave no right to the party seeking an injunction to appeal therefrom. The case as presented to this court does not fall within its appellate jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, § 175.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Assignments — Contbacts — Mutuality— Consideration.</p> <p>The rights which defendants assert as transferees under the instrument which they set out in their answer are neither just nor well founded, as that instrument for want of mutuality and serious consideration did not evidence-a valid and binding contract.</p> <p>2. Logs and Logging — License to Cut Timber-Construction — Nonperformance.</p> <p>The instrument on which defendant as. transferee thereunder bases its rights was not signed by the party named therein as the party of the second part, nor did he take upon himself the obligations of a purchaser of all the timber upon plaintiffs’ land, neither did he take upon himself the obligation of constructing or causing to be constructed the Hamburg, Ruston & Southern Railway, or some other standard gauge railway, through that section within two years of the date of that instrument. It was stipulated in the instrument referred to that if such road should not be completed within two years from the date of the instrument that the agreement should be null and void. A road was not completed within the time fixed, and if any rights had accrued prior to the time fixed in favor of any one under the license granted to cut and remove timber, to be paid for when cut and removed (which was not the fact), that right. ended when the two years expired and the road had not been completed.</p> <p>3. Same.</p> <p>The stipulation on that subject was the controlling stipulation of the whole act — all the other clauses and stipulations in the instrument •were held in check and subordinated and governed by it.</p> <p>(Syllabus by the Court.)</p>

<p>1. Action — Consolidation — Action by Heirs — Probate oe Will — Attack on.</p> <p>A petition alleging that a married woman has died intestate, leaving community and separate property, free of debts, that her estate is held by the administrator of her husband, and that plaintiffs are her heirs at lajv, discloses a cause of action with respect to the prayer, that, after citation of such administrator and of the heirs of the husband, plaintiffs be put in possession of such estate. But where, after the bringing of such suit, an instrument purporting to be the last will of the alleged intestate is offered for probate, in the same court, and is attacked by such plaintiffs as illegal, and on the grounds that the husband, named as the beneficiary, was “unworthy” and incapable of inheriting, the suit already brought should be referred to the proceeding in which the will is thus attacked and the probate thereof opposed.</p> <p>2. Descent and Distribution — Rights oe Collateral PIeirs — Attacking Involuntary Alienation — Actions.</p> <p>Though collateral heirs have no capacity to attack a donation or voluntary alienation of property made by one from whom, under the law, they are entitled to inherit, such incapacity does not extend to the case of an involuntary alienation, where the property is alleged to have been wrested from the de cujus by force, fraud, or threats, for, in such case, the heirs, whether collateral or forced, in seeking to recover the property are attempting, not to defeat the purpose of the owner in exercising his legal rights, but to vindicate those rights, as well as the right which the law gives to the heirs themselves to inherit from the owner the property of which the latter had not voluntarily disposea, and which, therefore, belonged to him at the time of his death.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harvey Felix Brunot, Judge.</p> <p>Mandamus by the state, on relation of the Unity Industrial Life Insurance & Sick Benefit Association, against John T. Michel,'Secretary of State. Judgment for respondent, and relator appeals.</p>

Action by the state, on the relation of R. R. Gentry, for a writ of mandamus to the mayor and board of aldermen of the village of Dodson. Prom a judgment granting the writ, defendant appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Simmon Maille. against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

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

<p>1. Landlord and Tenant — Lessor’s Privilege.</p> <p>Not all the property of the lessee, but only that on the leased premises, is subject to the lessor’s privilege.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 1001.]</p> <p>2. Judgment — Set-Ofe.</p> <p>Where in the same judgment the parties are ■condemned to pay each other money, the two judgments should be made to offset pro tanto.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1670.]</p> <p>■3. Receivers — Sale oe Claims — Validity.</p> <p>The brother of a receiver may buy up the ■claims against the receivership; there being no suggestion of the receiver himself being interested in the transaction.</p> <p>(Syllabus by the Court.)</p>

Ap-peal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge. Mandamus suit by the state of Louisiana, on the relation of Thomas W. Labauve, against John T. Michel, Secretary of State. From a judgment for plaintiff, defendant appeals.

Action by E. M. Wells and others against W. F. Blackman, in which Eugene V. Weems and others intervened. Judgment for defendant, and plaintiffs appeal.

Action by Marion Harvin against Mrs. F. J. Blackman and others. Plaintiff having died, the suit was revived in the name of his administratrix. Judgment for plaintiff,, and defendants appeal.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by Lu James Williams against the Louisiana Railway & Navigation Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walker Byers Sommerville, Judge.</p> <p>Action by Yito Graziano against the city of New Orleans. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Error — Review — Immaterial Matters.</p> <p>Defendant moved to dissolve the attachment in this case on the ground of the insufficiency of the amount of the bond. Plaintiff sought to cure the defect by filing a supplemental petition, and alleging that through error of counsel a larger amount had been sued for than was due, or was intended to be claimed by plaintiff. On the trial of this motion to dissolve, no evidence was offered by plaintiff to prove the alleged error. The trial court sustained the motion, and dissolved the attachment, and plaintiff appealed. Held that, the alleged error not having been proved, the appellate court is not called upon to consider what would have been the legal situation if the error had been proved.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 3, Appeal and Error, § 3341.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Henry K. Nixon against the. New Orleans Railway & Light Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Judgment — Res Judicata.</p> <p>A judgment in a former suit that the operation of machine and boiler works on certain lots did not constitute a nuisance is res judicata as to the question of nuisance vel non, raised in a subsequent suit between the same parties on the same state of facts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1251.]</p> <p>(Syllabus by the Court.)</p>

<p>Corporations — Subscription bob Stock-Action — Pie adin g .</p> <p>Where, in written communications, following verbal negotiations, between promoters of a corporation and an alleged subscriber to the capital stock, the latter is given and accepts the character of an applicant for stock, whose application has not been accepted, there is no contract, and a petition predicated upon such written communications and verbal negotiations, and praying judgment against the promoters for the-stock applied for or damages, discloses no cause of action.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 209.]</p> <p>(Syllabus by the Court.)</p>

<p>Brokers — Commissions—Sale oe Realty.</p> <p>A contract between an owner of real estate and a broker, which provides that, in the event of the sale of the property under a certain option which has been given, a commission shall be paid to the broker, of which one-third shall be taken from the cash portion of the price, contemplates an actual sale, and a petition claiming the commission, which shows an agreement to buy and sell, subject to a deposit of “earnest” bj' the proposed buyer, but which fails to allege either that a sale has been made or that the customer is willing to comply with his agreement to buy, discloses no cause of action.</p> <p>[Ed. Note. — Kor eases in point, see Cent. Dig. vol. 8, Brokers, §§ 70-72.]</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 William Schwann and others against John B. Sanders and others. Judgment for defendants.</p>

<p>1. Jury — Appointment oe Jury Commissioners.</p> <p>Under Act No. 98, p. 124, of 1880, as amended by Act No. 170, p. 211, of 1894, the duty of appointing jury commissioners is vested in the Governor.</p> <p>2. Same.</p> <p>Jury commissioners are statute officers, and under article 71 of the Constitution the General Assembly has the right to prescribe the mode of appointment to all offices created by it.</p> <p>3. Constitutional Law — Executive Powers —Encroachment on Judiciary.</p> <p>The Governor, making appointments to such offices under the authority conferred upon him so to do by the General Assembly, performs an executive function. The fact that an officer so appointed by him will have to perform judicial duties does not make the Governor’s act in appointing him a judicial act.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal and Error — Appealable Orders —Order Releasing Sequestration.</p> <p>An order releasing a sequestration on bond is appealable in a case where the sequestration has been resorted to for the protection of a right of property.</p> <p>.2. Sequestration — Release on Bond — Rights op Dependant.</p> <p>Defendant may furnish bond in sequestration proceedings within 10 days.</p> <p>■3. Same — Rights op Plaintipp.</p> <p>If he fails to furnish bond within that time, and the plaintiff offers to furnish bond, the defendant cannot then claim a better right to furnish a bond.</p> <p>4. Same — Eppect op Waiver.</p> <p>The person sued, who waives notice and citation, waives no other right.</p> <p>•5. Same — Legal Rights Remain Not Waived.</p> <p>The agreement resulting in the waiver can have no further effect than results from that of waiving notice.</p> <p>The defendant did not furnish bond to release the sequestration within the 10 days. It was lawful after the 10 days for plaintiff to furnish bond, as he offered to do.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; Richard Cleveland Drew, Judge.</p> <p>Action by John F. Cherry and wife against the Louisiana & Arkansas Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Theobald R. Rudolf and others against Mrs. Widow Elizabeth Gerdy. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish, of Orleans; George Henry Théard, Judge,</p> <p>Action for partition by Michael Kremer, administrator of the succession of Nicholas Kremer, and on behalf of himself and of his coheirs, against Lizzie Kremer. Judgment for plaintiffs, and defendant appeals, and plaintiffs move to dismiss the appeal.</p>

Paul, Judge. Action by J. A. Amiss against the executors of the estate of Blrs. M. C. Witting and others, to enforce an option to purchase land. Judgment for plaintiff, and defendants appeal.

<p>1. Master and Servant — Injury to Servant-Contributory Negligence.</p> <p>An employé, part of whose employment was to see to everything being kept in order about a sawmill, cannot complain that the lantern by which he was doing his work was smoky and gave but a dim light. If such was the case, the fault was his own.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 710-714.]</p> <p>2. Same — Warning by Master.</p> <p>Where the danger is manifest, and incident to the work, and the employé is of 'sufficient age and intelligence to appreciate the risk, the employer is not required to give any special warning, as, for instance, that the hands or the clothing of the employé may get caught in the moving machinery at which he is employed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 310.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Bills and Notes — Accommodation Papes.</p> <p>The notes were signed as an accommodation to the maker, and accepted with some haste by the plaintiff, anxious to secure an indebtedness.</p> <p>This does not take the notes out of the category of ordinary commercial paper.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 563-569.]</p> <p>2. Same — Alleged Agreement.</p> <p>The contention that there was an agreement between plaintiff and the other parties to the notes, whereby the plaintiff obtained the indorsement for its own benefit and in order to be able to obtain a loan needed by it at the time the indorser signed, is not sustained by proof.</p> <p>3. Same — Consideration — Ordinary Commercial Paper.</p> <p>There was consideration for the notes, as between maker and the plaintiff.</p> <p>4. Same — Liability oe Indorser — In Possession oe Third Person.</p> <p>This is all that is needful to bind the indorser, where the paper is in every respect valid and binding between holder and maker, and the holder is in the position of ordinary holder of commercial paper transferred before maturity.</p> <p>5. Same — Defenses—Forbearance.</p> <p>There were no delays granted, and no such forbearance to sue as affords good ground of defense.</p> <p>6. Same — Relative to Validity.</p> <p>The notes were not prescribed.</p> <p>7. Same — Marginal Notes.</p> <p>Any one who signs negotiable paper should carefully read the paper, or have the same read to him.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by William H. Devons against the Lee Logging 'Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Bud Conega was convicted of selling spirituous liquors without a license, and appeals.</p>

<p>Evidence — Pakol Evidence — Admissibility.</p> <p>For opening the door to parol evidence to contradict a written act, error or fraud must not simply be alleged, but must be proved, or at any rate the litigant must satisfy the court that he has in his possession the evidence necessary for the purpose and will offer it later on in the course of the trial.</p> <p>(Syllabus by the Court.)</p>

<p>On Motion to Dismiss.</p> <p>1. Criminal Law — Appeal—Dismissal.</p> <p>The court will not dismiss the appeal. It was the inadvertence of the clerk that caused the delay in bringing up the transcript.</p> <p>2. Same.</p> <p>The defendant under the facts had the right to assume that the transcript had been timely filed. He was not negligent.</p> <p>3. Same.</p> <p>The right is exceptional, and he has the right to be heard on appeal only because it is a criminal case, and, in the second place, because under the facts his appeal should not be dismissed. State v. Bevell, 47 La. Ann. 49, 16 South. 568.</p> <p>On the Merits.</p> <p>4.Same — Continuance.</p> <p>Continuance is left in great part to the discretion of the trial judge.</p> <p>The discretion has not been exceeded by compelling the defendant to go to trial. The case had been postponed several times, and, not having heard from counsel for defendant, the cause was tried.</p> <p>The complaint of the defendant is not sustained.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig-vol. 14, Criminal Law, § 1311.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Catherine Tell against Emile Senac and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Vendor and Purchaser — Option—Acceptance.</p> <p>An option to purchase real estate within ten days for a certain price, payable in cash or on terms, at buyer’s option, in order to bind the proposer, must be accepted as made and the terms specified. An acceptance on a condition not contained in the option amounts to a counter proposition, not binding until accepted in writing by the other party.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 17-20.]</p> <p>(Syllabus by the Court.)</p>

<p>Contract — Right to Recant.</p> <p>Where both parties intended that a building contract should be in writing, and the contractor submitted plans and specifications, accompanied by a formal contract in writing,, signed by himself and to be signed by the owner, and also by some one as surety for the contract- or, and the owner never signed the instrument,. held, that the -contract was inchoate and incomplete, and that either party had the right to recant before the instrument was executed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>Action by James Taylor against the Rock' Island, Arkansas & Louisiana Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Judgment — Res Judicata.</p> <p>A final decree of a competent court in a partition suit concludes all parties on all questions of title raised or that might have been raised in the partition proceedings.</p> <p>2. Vendor and Purchaser — Default oe Purchaser — Damages.</p> <p>A purchaser who refuses to accept a legal title and pay the price in cash as agreed upon must pay legal interest thereon from the date of his default.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 48, Vendor and Purchaser, § 954.]</p> <p>(Syllabus by the Court.)</p>

<p>Statutes — Title oe Act — Constitutional Law.</p> <p>Act No. 57, p. 81, of 1898, relating to the use of slot machines, does not embrace more than one object, nor is the text broader than the title, within the meaning of article 31 of. the Constitution.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 123, 158.]</p> <p>(Syllabus by the Court.)</p>

<p>Application for rule. Denied.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Dawkins, Judge.</p> <p>Action by the Union Sawmill Company against G. M. Starnes and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by A. M. Sutton against the Lee Logging Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Criminal Law — Continuances.</p> <p>There is a broad discretion vested in the trial judge in the matter of granting continuances in criminal cases, and it is no abuse of that discretion where, being satisfied from the evidence adduced that there is no reasonable certainty that a witness can be obtained for the purpose of a subsequent trial, he refuses a continuance, asked for on account of his absence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1311, 1321, 1322.]</p> <p>2. Same — Absent Witness.</p> <p>A defendant in a criminal prosecution is not prejudiced by the refusal of the court to grant a continuance in order to enable him to secure the presence of an absent witness where it appears that the testimony expected to have been elicited from such witness would not have been admissible.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1323-1327.]</p> <p>3.' Same — Appeal—Rulings on Evidence.</p> <p>Where the whole evidence is not brought up, the finding of the trial judge that there was not sufficient proof of an overt act on the part of the deceased to authorize the admission of evidence of prior threats is conclusive, under the jurisprudence of this court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2938, 2939.1</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Homicide — Evidence of Other Crimes— Ground of Defense Not Sustained.</p> <p>The ground urged by the defendant was that the testimony of a witness was admitted, over the objection of his counsel, which related to another and distinct crime than that with which the defendant was charged and for which he was placed on trial.</p> <p>2. Same — Arrest Made Without Warrant.</p> <p>It became evident during the examination of witnesses, as inferred from the record, that there was reason for admitting testimony to the end of proving that a felony had been committed, or there was good reason to suspect that a felony had been committed, when the police officer, who was killed, attempted to arrest the accused.</p> <p>8. Criminal Daw — Instructions—Evidence of Other Crimes — Charge of Trial Judge.</p> <p>The jury’s attention in the charge was directed to the purpose of admitting the testimony, the arrest having been made without a warrant, “that the proof of the commission of a felony was, therefore, necessary to justify such arrest. Testimony which went to prove another and distinct crime was not admissible of itself. The testimony the purpose of which was to show the cause of the attempted arrest was admissible under instructions stated.</p> <p>(Syllabus by the Court.)</p>

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

Action by the Opelousas National Bank against Jules Perrodin. Judgment for defendant was reversed in the Court of Appeal and defendant applies for certiorari or writ of review. Judgment of Court of Appeal reversed.

<p>1. Specific Peefoemance — Veebal Contract.</p> <p>In order that a contract for the sale of real estate be enforced, or that damages be recovered for noncompliance therewith, such contract (save where the vendee is put in actual possession of the property) must be in writing; hence a petition which sets up a written contract, purporting to be a promise to sell and buy real estate, and also sets up a subsequent verbal contract, whereby an essential condition of the written contract is alleged to have been abrogated and superseded, and which, praying for the enforcement of both contracts, demands the forfeiture of the deposit made by the proposed vendee, discloses no cause of action.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 113.]</p> <p>2. Same — Pleading.</p> <p>An allegation that one has made no effort to do_ is not the equivalent of an allegation that one is able to do. The failure to make the effort may be predicated upon knowledge of its futility. “Lex neminem cogit ad vana.”</p> <p>(Syllabus by the Oourt.)</p>

<p>1. Criminal Law — New Trial — Newly Discovebed Evidence.</p> <p>A new trial must be granted where important evidence has been discovered since the trial and due diligence had been used.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2306-2336.]</p> <p>2. Same.</p> <p>The fact that the judge does not believe that thé evidence would change the verdict is immaterial. Whether it will or not is a question, not for the judge, but for the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2336.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; Nemours Henry Núñez, Judge.</p> <p>Action by Siles Labasse against Pierre Fiat. Judgment for defendant, and plaintiff appeals.</p>

Afipeal from Civil District Court. Parish of Orleans; Thomas C. W. Ellis, Judge. Action by J. S. Casper, curator, for the ■use of Charles M. Lazarus, against the New Orleans Railway & Light Company, the American Construction Company, and the Consumers’ Electric Company. From the judgment, plaintiff and the American Construction Company appeal.

<p>Action by Luzin J. Gonsoulin against Emile Decuir and J. G. Le Blanc, to’ contest ■an election. From an order directing the clerk of the court to open the ballot box, he applies for writs of certiorari, prohibition, and mandamus.</p>

<p>Joint Adventures — Rights or Parties.</p> <p>The loss should fall on the party who assumed the risks and would have reaped the profits of a commercial transaction, rather than on the party whose interest in the venture was confined to a reimbursement of his advances, and who held the legal title only for the purposes of security.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Joint Adventures, § 4.]</p> <p>(Syllabus by the Court.)</p>

Tammany; Thomas Moore Burns, Judge. William and Charles Peterman were charged with willfully cutting and carrying away timber. Charles Peterman was discharged, and from a judgment of conviction, William Peterman appeals.

Tammany; Thomas Moore Burns, Judge. Bob Davis was convicted for cutting and carrying away trees on the land of another, and aqipeals.

<p>Appeal from Thirteenth District Court, Parish of Grant; Wilbur Fisk Blackman, Judge.</p> <p>Action by J. F. Ball & Bro. Lumber Company against the Simms Lumber Company. Judgment for plaintiff for less than the amount claimed, and it appeals.</p>

<p>1. Abatement and Removal — Death oe Pabty.</p> <p>The first step to be taken, after it becomes known that one of the necessary parties to a suit has departed this life, is to make the legal representative of his succession a party.</p> <p>If there is any good reason for reinstating the, case, it will be done contradictorily with a party to the suit.</p> <p>On the Merits.</p> <p>'2. Injunction — Bond — Surety Company Ceasing to Do Business.</p> <p>The surety company had ceased to do business in this state. It had failed to comply with the statute requiring security (bonds) to be deposited in the office of the Secretary of State.</p> <p>This failure to furnish security rendered it possible for defendant to call for other surety, as the surety furnished did not come within the law’s requirement. The fact that it was settling its unfinished business in the state and had property left ■ there — the value of it does not appear — did not afford sufficient security to enable the plaintiff to sustain the validity of the bond furnished.</p> <p>Time is granted within which to furnish new bond.</p> <p>(Syllabus by the Court.)</p>

Action by J. T. Hagens and others against the police jury of Caddo parish. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Fifteenth Judicial District Oourt, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Action by Z. Darbonne and others against the village of Oberlin. Judgment for defendant, and plaintiffs appeal.</p>

Action for divorce by Hans C. Nissen against Margaret Farquhar, his -wife, in which defendant filed a petition in reconvention, praying a separation from bed and board, with custody of their child and alimony. From an order allowing defendant temporary alimony, plaintiff appeals.

W. Ellis, Judge. Rule by the state against the Pacific Express Company and others to collect license fees. From an order denying the rule, the state appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; George Wear, Judge.</p> <p>Action by J. J. Lewis against the Huie-Plodge Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Action — Change of Character or Form.</p> <p>An action which at its institution is an action of jactitation, with the onus of proof on the plaintiff, may assume before its termination the character of a petitory action, with the burden of proof on the defendants, by reason of the line of defense adopted by the defendants in respect to the issues tendered by the plaintiff.</p> <p>2. Real Actions — Petitory Actions — Title to Support Action.</p> <p>In a petitory action, the success of the plaintiffs therein depends on their making good their own title, not on their disclosing weakness in that of the defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Real Actions, § 22.]</p> <p>3. Same.</p> <p>Plaintiffs in a petitory action claimed that in a certain act of purchase and sale between the defendant in the suit and their own mother the property transferred in the act was purchased by the latter as their tutrix, for them and not for herself individually. The act itself being lost or destroyed, recourse was had to parol testimony to establish its contents. That testimony established that the property was purchased by the mother individually, and was later resold by her to the defendant. The testimony showing that plaintiffs never acquired ownership of the property, they, as claiming ownership, had no further concern in the title.</p> <p>4. Executors and Administrators — Privileges — Allowances to Surviving Wife and Children.</p> <p>A widow, with minor children, in necessitous circumstances, received from the succession of her husband $1,000 under the provisions of article 3252 of the Revised Civil Code. Be-mg in possession of that money under those circumstances, she purchased individually certain real estate with part of the same; the seller of the property being aware of the origin of the fund. The children, coming of age, claimed that the property purchased by their mother belonged to them, and that therefore she could not alienate it. Held, this contention is untenable. Conceding that the mother held the entire fund in usufruct, she had the legal right as such to make use of it for her own interest, subject to the right of the children to demand in money the amount due them at the termination of her usufruct. Succession of Dielmann, 119 La. 117, 43 South. 972.</p> <p>(Syllabus by the Court.)</p>

Jack Firmatura, Frank Bongiovanni, and others were jointly indicted for murder. Bongiovanni was granted a severance, and appeals from a conviction.

Action by the Henry Block Company, Limited, against Joseph Papania. Judgment for defendant, and on appeal the Court of Appeal answered contrary to the decision of the Supreme Court, and plaintiff applies for certiorari or writ of review.

In the matter of the succession of Prank Roder. Rule by Prank J. Roder for the possession of policies of life insurance. Mrs. C. A. Tessier and others appeared. Prom a judgment for Prank J. Roder, they appeal.

<p>1. Taxation — Sale op Land fob Nonpayment op Tax.</p> <p>The present is a petitory action. The-property involved in this litigation stood assessed in the year 1889 for the taxes of that year in the name of the original owner of the tract, and also in the name of S., who claimed to be the owner there by mesne conveyances under P. The taxes of that year were duly paid, and the state ceased thereby to be a creditor on that property for those taxes, no matter by whom the taxes were paid. Not being a creditor, it had no legal right to sell the property for the-taxes of 1889. None the less it offered the property for sale and had it adjudicated to itself. It was then transferred by it to the Atchafalaya Basin levee district, which sold it to the defendant without warranty, declaring that it conveyed only the title it had acquired from the state. The state, having no title by the adjudication, conveyed none to the levee district, and the latter conveyed none to the defendant.</p> <p>2. Real Actions — Petitoey Action — Title, to Suppoet.</p> <p>In a petitory action, plaintiff has to recover on the strength of his own title, and not on the weakness of that of a defendant in possession. Plaintiff’s title, as exhibited in this case, does not entitle it to a judgment. It is thereforenonsuited. '</p> <p>[Ed. Note. — For cases in point, see Cent. Dig,, vol. 42, Real Actions, § 22.]</p> <p>3. Evidence — Documentary—Requisites of Certificate.</p> <p>Recorders, certifying to the recording of acts in their offices, should state the dates of the recording, as well as the books in which the recording was made. Knowledge that they were recorded on a certain page of Book A or B is ordinarily of no value to the court.</p> <p>Provosty, J., dissenting.</p> <p>On Rehearing.</p> <p>4. Evidence — Self-Serving Declarations.</p> <p>In a petitory action, in which both parties claim title through the original patentee, the declaration of the appearers to a notarial act confirmatory of plaintiff’s title that they are the children and heirs of the patentee is not evidence as against the defendant in possession, especially when it is not shown that the patentee is dead, or that, if living, he would be more than 100 years old.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action, by William G. Taylor against E. C. Palmer & Co., Limited. Judgment for de- . fendant, and plaintiff appeals.</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; Richard Cleveland Drew, Judge.</p> <p>Action by the Bodcaw Lumber «Company against E. D. White. Judgment for plaintiff, and defendant appeals.</p>

Mary; Albert Campbell Allen, Judge. Application by William S. Hansell, curator, for the removal of Lelia S. Hickox and others, administrators of the estate of Henry J. Sanders. From a denial of the application, petitioner appeals.

<p>1. Appeal and Error — Suspensive Appeal-Operation and Eefect.</p> <p>The time and conditions within and upon which a suspensive appeal may be taken from an order of seizure and sale are regulated by Oode Prac. art. 575, considered in connection with Code Prac. art. 735, and such appeal, taken within the legal delay, operates to vacate and avoid any writ, and any seizure thereunder, which may have been prematurely issued and made, by virtue of the order appealed from.</p> <p>2. Partnership — Dissolution.</p> <p>Where the interest of a member of a co-partnership (organized for its cultivation) in a plantation owned jointly by the members is seized, under executory process, at the instance of another member, to enforce payment of an individual debt, and a suspensive appeal is taken from the order of seizure, such appeal operates to vacate and avoid the writ and the seizure thereunder, and the seizure does not, ipso facto, dissolve the partnership.</p> <p>3. Same — Settlement and Accounting — Advances — Interest.</p> <p>Amounts due for advances, overdrafts, and undivided profits are mere items in a partnership account, for which, in the absence of special agreement, interest will not usually be allowed, save upon and from a final liquidation and settlement.</p> <p>4. Same — Attorney’s Fees on Firm Note.</p> <p>A partner, who, without suit, pays with accrued interest a note executed by his firm, and containing a stipulation for attorney’s fees, in case of suit, has no right, in the settlement of the partnership, though it be settled by suit, to recover such attorney’s fees.</p> <p>5. Mortgages — Property Mortgaged.</p> <p>Three persons having acquired a going plantation, with mules, implements, etc., thereon, and mortgaged it for part of the price, and whilst cultivating the same, in partnership, having replenished the supply of mules, feed, and implements, needed for its service. Held that, for the purposes of such mortgage and the sale in foreclosure thereof, the mules, feed, and implements are immovable, by destination, and go to the purchaser.</p> <p>6.Partnership — Dissolution —Settlement and Accounting — Costs.</p> <p>In a suit for settlement of partnership, the partner by whom the balance is found to be due pays the costs.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by the state, on the relation of one Douglas, for a writ of mandamus to C. R. Kennedy, comptroller, and others. From a judgment making the writ peremptory, defendants appeal.</p>

• Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge. Application by the state, on the relation of Fisher, Gasquet, and others, for a writ of mandamus to the mayor and council of the city of New Orleans. Judgment for defendants. Plaintiffs appeal.

Actions by Patsy Cole against the Louisiana Gas Company and by Sallie Ford against the same defendant. Judgments for plaintiffs, and defendant appeals.

<p>1. Pleading — Motions — Election Between Causes oe Action — Exceptions.</p> <p>The fact that both specific performance and damages are demanded may afford ground for a motion to elect, but not for an exception of no cause of action.</p> <p>2. Contracts — Performance or Breach — Demand for Performance —• Institution of Suit.</p> <p>The institution of a suit is one of the modes of putting in default.</p> <p>3. Attachment — Grounds of —Debt—Certainty.</p> <p>The margin between market price and the price fixed in a contract for the delivery of lumber is a sufficiently certain basis for fixing the amount of a debt upon which to predicate an attachment.</p> <p>4. Same.</p> <p>Attachment may be resorted to as a _ conservatory measure to a suit which the plaintiff “intends to bring.” Hence, where plaintiff alleges that defendant is about to dispose of all his property and remove permanently from the state without fulfilling a certain contract, and that by the nonfulfillment of the contract plaintiff will be damaged in an amount stated, and that plaintiff intends to bring suit for the damages as soon as the time for fulfilling the contract has expired and the right of action has accrued; the liability of defendant is sufficiently a “debt” within the intendment of the Code of Practice to support an attachment.</p> <p>Breaux, O. J., dissenting.</p> <p>On Rehearing.</p> <p>5. Specific Performance — Grounds of Relief-Pleading.</p> <p>A petition, filed within 7 months from the making of a contract, which alleges that defendant agreed to deliver a certain quantity of lumber within 10 months; that it (defendant) has delivered part of the lumber; that it is about to sell all of its property in, and permanently remove its business from, this state; but which does not allege that defendant is in default on its contract, or intends making default, or that the alleged contemplated sale and removal will result in such default, discloses no cause of action for either specific performance or the recovery of damages.</p> <p>6. Attachment — Grounds of — Debt Not Due.</p> <p>To authorize an attachment for a debt not yet due, there must be a debt actually existing, though not exigible, — debitum in prsesenti, solvendum in futuro; and the amount claimed must, in its nature, be susceptible of being fixed with certainty by the oath of the party applying for the writ.</p> <p>[Ed. Note. — B'or cases in point, see Cent. Dig. vol. 5, Attachment, §§ 30-36.]</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Eminent Domain — Expropriation— Proceedings to Take — Appeal—Review of Verdict.</p> <p>The verdict of the jury in an expropriation suit, although entitled to great weight, is subject to amendment on appeal when it is clearly contrary to the weight of the evidence.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 685.1</p> <p>2. Same — Compensation, Elements oe.</p> <p>In a suit to expropriate a railroad right of way, the defendant is entitled to adequate compensation for the land actually taken, and to damages for the actual diminution in sale or rental value of the remainder of his property, but not for inconveniences and loss of business.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 18, Eminent Domain, §§ 271-277.]</p> <p>3. Same — Costs—Just Fees.</p> <p>Plaintiff in an expropriation suit is not taxable, in the absence of special statute, with the cost of the per diem and mileage of the jurors serving in the case.</p> <p>LEd. Note.' — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 690-693.]</p> <p>On Rehearing.</p> <p>4. Same — Liability oe Pakish.</p> <p>In proceedings taken for the purpose of expropriating property by a public utility corporation, there is no law under which the parish in which the suit is brought can be held for the fee of the jurors summoned to try the case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 691.]</p> <p>5. Costs — Dependent on Statute.</p> <p>The parish is a third party. Costs and fees in proceedings in court are dependent upon the statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Costs, §§ 1-5.]</p> <p>6. Eminent Domain — Costs—Statutes.</p> <p>The court made researches to find a law under which plaintiff or defendant could be held for the fee of jurors in an expropriation suit and found none.</p> <p>7. Same.</p> <p>The general law in civil suits, differently drawn from the method followed in drawing a special jury in an expropriation suit, has no application. There is a broad difference between the two — the law looking to the trial of jury eases generally and the special law relating to the drawing of the jury in an expropriation case. The former law does not apply. Thez’e is a casus omissus if it ever was the intention to provide for the remuneration of jurors in special expropriation cases. As far back as the fifteenth Annual this court held that parties could not be held for costs unless there was provision by statute to that end.</p> <p>(Syllabus by the Court.)</p>

<p>1. Railroads — Trespass — Actions Against Companies — Domicile.</p> <p>The prayer of plaintiff’s petition is that by reason of certain works alleged to have been done by the defendant company in a street in front of her property (alleged not to be a public street) and the running of cars thereon (alleged to be continuing acts) the said works be adjudged a nuisance and ordered taken away and defendant adjudged a trespasser.</p> <p>2. Same.</p> <p>On the face of the petition the acts recited set out as a cause of action either a trespass strictly such, or “a trespass on the case.” Defendant filed what it designated an “exception to the jurisdiction of the court ratione personae, in which it averred simply that it was a corporation having its domicile in the city of New Orleans.</p> <p>3. Same — Evidence.</p> <p>On the trial of the exception defendant was permitted over plaintiff’s objection to introduce in evidence an ordinance of the council of the town of Jeannerette granting permission to it to run cars over the street named, and on the strength of that ordinance the exception was sustained, and plaintiff’s suit dismissed.</p> <p>Held error. For reasons assigned the evidence should not have been received, neither should the exception have been sustained, nor the suit dismissed in limine.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of Julia P. Drysdale. From a decree probating the will, her legal heirs, Mary A. Pike and John T. Pike, appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Pinal accounting of Malvina Scott, administratrix of the estate of William Stewart, deceased. Prom a judgment for administratrix, Ambrosine J. Epps, opponent, appeals.</p>

<p>1. Railroads — Location oe Dedots — Power on Railroad Commission.</p> <p>The Railroad Commission possessed the power it exercised by virtue of the following language of article 284 of the Constitution: “The power and authority to govern and regulate railroads; to correct abuses and to require railroads to build and maintain suitable depots, switches and appurtenances whenever the same are reasonably necessary at stations.”</p> <p>2. Same.</p> <p>The plaintiff had settled that it would establish a station within the limits of the Gonzales settlement. It was within the power of the Commission to select the place on which to build the depot.</p> <p>3. Same.</p> <p>A difference had arisen between the public, represented by a very large majority of the community and the railroad company as to where the depot should be located. After having investigated the facts, heard the evidence, and visited the ground, the Railroad Commission decided that the site should be at the place deemed the most convenient for the shippers and the traveling public.</p> <p>4. Same — Review by Courts.</p> <p>Where, on appeal, it does not clearly appear wherein an error has been committed, the finding of the Railroad Commission will be permitted to stand.</p> <p>5. Same — Order to Build Depot — Definiteness.</p> <p>The plaintiff is authorized under the terms of the order to fix the situs for the depot within the limits designated by the order at the place most convenient to the plaintiff.</p> <p>Monroe, J., dissenting.</p> <p>On Rehearing.</p> <p>6. Same.</p> <p>The question of the depot was in great part, as to the situs of this depot, left to the judgment of the Railroad Commission.</p> <p>It was selected without earnest objection.</p> <p>7. Same.</p> <p>Later the plaintiff and appellant, through some of its officers, expressed preference for another site.</p> <p>Held, that a depot being for the accommodation of the public, the Commission, particularly considering the facts, had the authority to make the order it has regarding this site.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Homicide — Evidence—Prior Threats.</p> <p>Accused, with members of his family, and’ deceased, being on different sides of a fence separating their respective premises, accused told deceased that he would require him to prove-in court a certain statement that he had made about his (accused’s) sister, whereupon deceased said, “It is this night that I shall judge you all,” and immediately ran into his house and' returned with a vessel, the contents of which he emptied in the direction of the accused and his family, saying, “All of you are not worth, that,” and accused thereupon shot and killed him.</p> <p>Held, that there was no such proof of an overt act as to authorize the introduction of evidence of prior threats by the deceased.</p> <p>TEd. Note. — Eor cases in point, see Cent. Dig. vol. 26, Homicide, § 338.]</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law — Apheal—Presumptions.</p> <p>Where a bill of exception in a criminal case contains no statement that there was any evidence adduced calling for a requested charge, and the judge and the record are silent upon the subject, it will be assumed by this court that the charge was refused because it was considered that it would be inapplicable to the facts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3082.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the matter of the succession of Anna Meisner. Certain legatees filed an opposition. From the judgment, 'the executor appeals.</p>

In the matter of the succession of Henrietta Walker. Action by Edward Walker and others against Henry McGwinn and others to annul the last will of decedent. Judgment for defendants, and plaintiffs appeal.

Action by Angeline and Mary Gauthreaux against Eno Theriot Judgment for defendant was reversed by the Court of Appeal, and he applies for certiorari or writ of review.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; Nemours Henry Núñez, Judge.</p> <p>Separate actions by B. E. Estopinal against Miguel Spicuzza, Peter Spicuzza, and Thomas Spicuzza, consolidated on appeal. Judgments for plaintiff, and defendants appeal.</p>

<p>1. Elections — Voters — Qualifications— “Residence.”</p> <p>The term “residence,” used by the Constitution in fixing the qualification of voters, does not mean domicile.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Elections, §§ 67-74.</p> <p>For other definitions, see Words and Phrases,vol. 7, pp. 6151-6161; vol. 8, p. 7788.]</p> <p>2. Same.</p> <p>The object of requiring the voter to have resided for a time at the place where he offers to vote is that he may be afforded an opportunity to acquire the information necessary for an intelligent vote, and become identified with the interests of the locality, and also to prevent the colonization of voters.</p> <p>3. Domicile — Evidence.</p> <p>In the absence of proof that a person otherwise qualified has acquired a residence elsewhere, he must be considered to be a resident of the parish where his work requires him to stay, where he was born, and where he has always lived and voted; and it makes no difference that he has never had in said parish any other home than a boarding house, while he has had in another parish a home where he has kept his wife and children, whom he has visited as often as he could.</p> <p>(Syllabus by the Court.)</p>

<p>1. Elections — Votees—* ‘Residence. ’ ’</p> <p>The term “residence,” used by the Constitution in fixing the qualification of voters, does not mean domicile.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Elections, §§ 67-74.</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. 8, p. 7788.]</p> <p>2. Same.</p> <p>The object of requiring the voter to have resided for a time at the place where he offers to vote is that he may be afforded an opportunity to acquire the information necessary for an intelligent vote and become identified with the interests of the locality, and also to prevent the colonization of voters.</p> <p>3. Domicile — Evidence.</p> <p>In the absence of proof that a person otherwise qualified has acquired a residence elsewhere, he must be considered to be a resident of the parish where his work requires him to stay, where he was born, and where he has always lived and voted; and it makes no difference that he has never had in said parish any other home than a boarding house, while he has had in another parish a home where he has kept his wife and children, whom he has visited as often as he could.</p> <p>(Syllabus by the Court.)</p>

<p>1. Master and Servant — Injury to Servant —Evidence—Negligence.</p> <p>Where a switchman was killed at night, as the result of a collision between cars being switched and other cars standing on the same track in the yards of a railroad, held, that the mere fact that the yards were not lighted did not constitute negligence on the part of the railway company, although it was shown that it was the practice of a number of railroads to light their switchyards.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. voi. 34, Master and Servant, §§ 184, 243-251.]</p> <p>'2. Same — Assumption oe Risk.</p> <p>Held, further that the deceased, an experienced switchman, must have known the situation, and therefore assumed the risk, although he was killed on the first night of his employment.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]</p> <p>(Syllabus by the Court.)</p>

Mary. Action by William Kyle against Placide P. Sigur. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>1. Animals — Powers of City — Diseased Cows — Regulation of Dairies.</p> <p>Power “to maintain the city’s cleanliness and health, and to this end to regulate the location of, and the inspection and cleaning of, dairies, * * * and to adopt such ordinances and regulations as shall be necessary or expedient for the protection of health and to prevent the spread of disease,” is a plenary delegation of police power in connection with the police of dairies, and invests the city council with all the authority which the state itself is possessed of to require dairy cows in a large city to be inspected, and, if found to be affected with tuberculosis, to be destroyed, without compensation to the owner.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Animals, § 82.]</p> <p>2. Same — Destruction Without Compensation.</p> <p>It being shown that tuberculosis in a cow may be ascertained by a practically infallible test, and it being further shown that the presence of a cow so affected in a dairy in a city is a serious menace to the public health, the public authorities have the same right to require the destruction of such cow without comXiensation to the owner and without judicial inquiry as they have to require the destruction of decayed fish, meats, and vegetables.</p> <p>[Ed. Note.' — Eor cases in point, see Cent. Dig. vol. 2, Animals, § 82.]</p> <p>3. Municipal Corporations — Exercise oe Police Powers.</p> <p>The city council may exercise its police power through the agency of boards or insxiectors.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; George Wear, Judge.</p> <p>Action by G. W. Whitworth against the South Arkansas Lumber Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial 'District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>Suit by Mary L. Lognion, joined by her husband, against Isaac Fontenot and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; Philip Sidney Pugh, Judge.</p> <p>Action by Francois Gueble against the town of Lafayette. Judgment for plaintiff, and defendant appeals.</p>

<p>Master and Servant — Wrongful Discharge —Action for Salary.</p> <p>Under Rev. Civ. Code, art. 2749, a servant discharged without any serious ground of complaint may recover the salary for the unexpired term. But this article is in the nature of a penal statute, and hah no application to contracts for hiring purely executory in their nature. Trefethen v. Locke, 16 La. Ann. 19, reaffirmed.</p> <p>[Ed.. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 50-53.)</p> <p>(Syllabus by the Court.)</p>

<p>1. Pleading — Amendment — New Cause oe Action.</p> <p>The amendment was timely filed and allowed. It did not change the substance of the demand.</p> <p>2. Judgment — Conclusiveness — Matters Concluded.</p> <p>The proceedings pleaded as res judicata were not of such a character as to afford good ground for sustaining that plea.</p> <p>3. Same.</p> <p>The return of the defendant in accordance' with summons issued in a suit based on abandonment cannot be successfully invoked as an estoppel in another suit in which the defendant in the first suit is now plaintiff. The grounds of the two suits are not disclosed as the same. In the first suit for abandonment the grounds do not appear. In the present suit special grounds are alleged. Nothing shows that they were considered in the first suit.</p> <p>4. Appeal and Error — Harmless Error-Admission oe Evidence.</p> <p>Mere hearsay testimony not considered on appeal affords no ground to remand. It does not prejudicially affect the issues.</p> <p>5. Evidence — Declarations—Admissibility.</p> <p>The defendant in a suit for separation from bed and board is not entitled to prove his statement to a witness.</p> <p>6. Same — Res Gestas — Foundation.</p> <p>Even if it be a part of the res gestee, proper foundation, must be laid.</p> <p>7. Appeal and Error. ,</p> <p>The ruling having resulted in offering to defendant the opportunity of proving that which his statement embiaced, he having declined to avail himself of the opportunity as far as it went, the case will not be remanded to enable him to prove the facts which he declined to prove, on the ground that the scope was limited by the ruling so as not to admit his statement to a third person.</p> <p>8. Husband and Wiee — Actions eor Separation.</p> <p>_ The incompatibility of temper between plaintiff and defendant led to quarrels, fusses, and a state of affairs rendering their living together not bearable.</p> <p>9. Same — Custody oe Children.</p> <p>Considering the facts disclosed by the testimony and the condition to which the incompatibility has brought the parties, the court concludes to affirm the judgment with the exception of its terms as relates to the children.</p> <p>In this respect the judgment is reversed, and the cause is to that point alone referred back to the district judge.</p> <p>(Syllabus by the Court.)</p>

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

Action by the Tulane Improvement Company, Limited, against the board of assessors and others. Judgment for defendants, and plaintiff appeals.

<p>1. Street Railroads — Operation—Care Required-Collision with Eire Apparatus,</p> <p>It being important that the apparatus for its extinguishment should reach a fire promptly; and, the men and horses of the fire department being expected and trained to use the utmost expedition for the accomplishment of that purpose, the requirement, that individuals and vehicles engaged upon less pressing missions, shall not only accord them the right of way, but shall hold themselves in readiness to do so when they have reason to anticipate that fire apparatus may appear, is not unreasonable, and that condition may be said to exist when a vehicle, and more particularly a street car, which is confined to its track, approaches a fire engine house situated in close proximity to such track.</p> <p>2. Same — Negligence oe Motorneer.</p> <p>The motorneer of an electric car which passes immediately in front of a fire engine house is guilty of double negligence when he drives the car at full speed in approaching^ such house, and fails to see, in time to enable him to stop the ear and avoid collision with an out-coming hose wagon, a signal given whilst his car is 144 feet distant from the engine house.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1. Mortgages — Foreclosure —Attorney’s Fees.</p> <p>A creditor, bolding an act of mortgage given by bis debtor to bim to secure payment of a loan of money, which act declares that the mortgage covers a certain percentage for attorney’s fees in case of suit, must, in order to obtain a judgment for such fees, allege and prove the existence of the facts and circumstances which go to warrant a demand for attorney’s fees under that clause.</p> <p>2. Executors and Administrators — Claims Against Estate — Interest.</p> <p>The homologation of a provisional account filed by an administrator, in which he seeks authority from the court to pay out of the funds of the succession then in his hands the interest-bearing debts therein recognized, with the interest thereon due up to the date of the filing of the account, does not cut off a creditor from demanding and receiving interest which may accrue on his claim subsequently to the filing of the account up to the date of the actual payment thereon.</p> <p>(Syllabus by the Court.)</p>

<p>1. Contracts — Performance — Intent of Parties.</p> <p>The obligations following from every contract must be carried out as the parties wished and intended they should be. Rev. Civ. Code, art. 2037.</p> <p>2. Damages — Breach of Contract — Measure — Profits.</p> <p>The liability of one of the parties to a contract to the other for damages for his breach of the contract may extend not only to the loss which the other has really suffered thereby, but to the gain of which he has been deprived, but not necessarily so. The damages may be limited and confined to the loss which the other has actually suffered not extending to the gain of which he has been deprived. Were the defendant in this case liable at all to the plaintiff for damages by reason of inexecution of its obligations (which it is not), those damages would be limited to the loss which plaintiff would have actually suffered. Defendant has carried out its obligations to the full extent which was intended and contemplated by the parties at the time the contract was made, as shown by the testimony adduced on the trial of the case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 72-88.]</p> <p>3. Contracts — Construction — Evidence-Surrounding Circumstances.</p> <p>Testimony was properly introduced showing the facts and circumstances surrounding the creation of the contract so as to enable the court to read the contract in the light of those circumstances and enable it the more perfectly to understand and explain the interest and meaning of the parties.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 766.]</p> <p>4. Sales — Breach—Acts Constituting.</p> <p>Contract was entered into between a seller of oil and a corporation owning a plantation in St. Mary parish and engaged in manufacturing sugar at its factory and using oil, whereby the former agreed to sell to the latter, and the latter agreed to purchase, 20,000 barrels of oil at a fixed price, with privilege of 15,000 more. The privilege granted was to enable the planter to call, if necessary, for more oil to enable it to take off its crop of 1900. The seller furnished all the oil needed for that purpose, but the planter insisted upon its furnishing the full .15,000 barrels and on its refusal to do so brought suit against it for damages. Held, for reasons assigned, that no damages could be received, and the judgment granting them is reversed.</p> <p>(Syllabus by the Court.)</p>

Action by Henry Barbier against T. Nagel and others. Caroline I-Ioey and others intervene. From the judgment, plaintiff appeals. Reversed in part, and affirmed in part.

<p>1.Corporations — Stockholders — Action Against Corporation — Minority Stockholder. '</p> <p>Courts are reluctant to interfere with the affairs of a corporation on behalf of a minority of the stockholders, and will not do so at the suit of a stockholder who acquired his stock, with full knowledge of the conditions of which, he complains.</p> <p>2. Same — Subscription to Stock — Payment by Third Person — Effect.</p> <p>Where a son subscribed for stock in a corporation, the fact that his father furnished the' money to pay for it did not give the father any privilege in respect to it, or render him the owner of the stock.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 232.]</p> <p>3. Corporations — Stockholders — Action' Against Corporation — Acquiring Stock for Purpose of Creating Discord —Presumptions.</p> <p>One will not be permitted to acquire an interest in a corporation for the sole purpose of fomenting discord and litigation, and the presumption is that such is his purpose when he acquires stock from his son, who had made an unsuccessful attempt to have a receiver appointed, and follows it immediately by bringing suit for a similar purpose.</p> <p>4. Estoppel — Claim or Position in Judicial Proceeding.</p> <p>A stockholder suing the corporation cannot complain of its failure to collect subscriptions to capital stock, when he himself is delinquent, and suit has actually been filed agaist him tO' compel payment, which suit he is contesting.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Estoppel, §§ 165-169.]</p> <p>5. Same.</p> <p>A stockholder suing the corporation cannot complain of its failure to comply with certain requirements of law, when the question is at issue between the state and the corporation, and when the chief obstacle to such compliance comes from the course of conduct which he himself pursues, and the consequent inability of the corporation for the time being to raise the necessary capital.</p> <p>6. Corporations — Receivers — Grounds for Appointment.</p> <p>The mere fact that the business of a corporation has not been prosperous, especially in the first year of business, affords no ground for the appointment of a receiver, particularly when the applicant is partly responsible therefor.</p>

Bernard; Nemours Henry Nunez, Judge. Action by Charles Esteves against the board of commissioners for the Bayou Terreaux-Boeufs drainage district and others. Judgment for plaintiff and intervener, and defendants appeal.

E. Ellis, Judge. Action by R. Emerson Thompson against the Southern Pacific Company and the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff against the defendant the Yazoo & Mississippi Valley Railroad Company, and it appeals.

Action by the Louisiana & Arkansas Bail-way Company against F. L. Shaw, sheriff and tax collector, and others. Judgment for defendants, and plaintiff appeals.

<p>1. Juey —Drawing Jurors — Statutory Requirements.</p> <p>The statute (Act No. 135, p. 216, of 1898) does not direct that the names of the petit jurors be drawn from the envelope.</p> <p>2. Same — Objection Not Timely.</p> <p>The objection to the drawing was raised •after eight of the jurors had been accepted.</p> <p>■8. Same.</p> <p>The jury was drawn, as to the eight, in accordance with the custom which had prevailed in the trial court.</p> <p>4. Same.</p> <p>As to the remaining four jurors, they were drawn in accordance with suggestion of counsel for defendant.</p> <p>5. Same.</p> <p>There was nothing unfair or irregular in the drawing of the names of the jurors.</p> <p>•6. Homicide — Appeal — Harmless Error — Admission oe Evidence.</p> <p>The testimony admitted before the coroner’s inquest to prove the cause of death did not ■conflict with the coroner’s inquest.</p> <p>It would have been more regular if the coroner’s inquest had been offered after the objection was raised. In view of the fact in connection with the offering of the inquest, held, that it was not reversible error.</p> <p>7. Criminal Law — Nonexpert Testimony-Sanity.</p> <p>The testimony of nonexpert witnesses regarding sanity may, under proper safeguard and under certain state of facts, be admitted.</p> <p>The court does not find it possible to remand the case for a new trial on that ground.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1045, 1046.]</p> <p>8. Same — Trial—Remarks oe Counsel — Correction.</p> <p>A statement of the prosecuting officer made in error may be corrected, if offer to correct is timely made.</p> <p>9. Same.</p> <p>The intemperate remarks made by the district attorney were not such as to influence the jury. Such was the conclusion of the trial judge, who states instructions given to the jury to guard against their influence. Jurors must be credited with some judgment, and that they are not to be swayed by hasty remarks. State v. Butler, 48 Ann. 87, 19 South. 213; State v. Meche, 114 La. 231, 88 South. 152; State v. Spurling, 115 La. 790, 40 South. 167.</p> <p>(Syllabus by the Court.)</p>

<p>1. Logs and Logging — Standing Timber — Contract to Purchase.</p> <p>A document, which recite.s that one party sells to the other certain standing timber, at 50 cents per thousand feet, board measure, payable at the end of each month as the same shall be cut and removed, and that “this contract shall be in full force and ettect" if tne purchaser pays to the seller within 60 days $400, evidences a contract, subject only to the payment of the $400 within the 60 days, and such payment, whereby the contract is perfected, may be shown by interrogatories on facts and articles propounded by the vendor to the vendee.</p> <p>2. Same — Contract—Mutuality.</p> <p>The omission from such contract of any time within which the purchaser shall remove the timber does not rob the contract of mutuality of obligation, since such omission can be supplied by application to the courts.</p> <p>(Syllabus by the Court.)</p>

<p>1. Municipal Corporations — Taxpayers’ • Action — When Lies.</p> <p>Taxpayers have as such no standing in court to contest an ordinance of the city council ■on the ground that it violates the vested rights of a corporation in which they have no legal interest.</p> <p>They have no standing in court as property owners, unless and until danger of injury to their property rights becomes actual and real. Code Prac. art. 15.</p> <p>’2. Electricity — Electric Companies — Use oe Streets.</p> <p>This case, so far as the “legality” of the ordinance contested is concerned, is governed ■•and controlled by the decision in Strohmeyer v. Consumers’ Electric Company, 111 La. 509, 35 South. 723.</p> <p>(Syllabus by the Court.)</p>

<p>1. Homicide — Evidence — Provoking Difficulty.</p> <p>Where the accused, after having had a difficulty with the deceased, has armed himself with a deadly weapon and sought out the deceased under circumstances that make it highly probable, or practically certain, that their mere meeting will be a signal for the renewal of hostilities, and, after having- come into his presence, does nothing to indicate an intention of avoiding-further trouble, and the combat is immediately renewed, and in the course of it he kills the deceased, the charge of the court properly leaves it to the jury to decide whether the mere act of defendant in coming up with the deceased, and his attitude in doing so, was not in itself reasonably calculated, under all the circumstances of the case, to provoke the fatal difficulty.</p> <p>2. Same — Instructions.</p> <p>Under the circumstances above stated, a special charge that the accused cannot be held to have provoked the difficulty, unless he did something or spoke some word, after having come into the presence of the deceased, such as was reasonably calculated to bring on a difficulty, might have been misleading-. It assumes that the mere act of the defendant in seeking out the deceased and coming up with him can, under no circumstances, be calculated to provoke a difficulty.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Dawkins, Judge.</p> <p>Bud Crane and others were convicted of larceny, and they appeal.</p>

<p>Executoks and Adiiinistkatoks — Sale to Pay Debts — Validity.</p> <p>Where, by reason of the residence of the deceased and the situation of the property, the district court is vested with jurisdiction with respect to the opening and settlement of a succession, its order, appointing an administrator and directing that the property be sold to pay-debts, is so far conclusive as to protect the title acquired by the adjudicatee, who purchases in good faith, from subsequent attacks- by minor heirs,-alleging that the succession owed no debts, that an administration was unnecessary, that they were unrepresented and that the property was sold without the consent of a family meeting.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 1446-1454, 1573-1582.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John Bachman Lee, Judge.</p> <p>Will Thompson was convicted of murder, and he appeals.</p>

Action by the Foster, Glassel Company against the Kansas City Southern Railway Company. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from First Judicial District Court, Parish of Caddo; Andrew Jackson Murff, Judge.</p> <p>George Barrett and another were convicted of publishing a forged instrument, and they appeal.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Risk Black-man, Judge.</p> <p>Suit by Marion-C. Cloud and wife against tbe Alexandria Electric Railways Company. Judgment for plaintiffs, and defendant appeals.</p>

Action by the New England Mutual Life Insurance Company against the board of assessors and others. Judgment for defendants, and plaintiff appeals.

<p>1. Homicide — Evidence—Threats.</p> <p>Defendant, indicted for murder, was convicted and sentenced for manslaughter. He has appealed, claiming that the deceased was the aggressor in.the difficulty which resulted in the homicide, and that testimony of threats made fay him against the accused, though not communicated' to the accused, should have been admitted to prove that fact.</p> <p>The record as it reaches the Supreme Court discloses that the homicide did not occur under circumstances such as to make the question as to who was the aggressor in a difficulty between the parties at the time an issue in the case. The testimony was properly excluded.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig vol. 26, Homicide, § 338.]</p> <p>2. Same — Dying Declarations.</p> <p>The dying declarations of the deceased were properly admitted as a whole. No effort was made by the accused, after it was admitted, to strike out any particular portion of the same; nor was the court asked to give any instructions to the jury in respect thereto. The deceased made a statement as to all the facts at the time of the homicide, and the jury was in a position to decide itself whether trie accused had or had not shot him “for nothing.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 463, 464.]</p> <p>Provosty, J., dissenting.</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>Leonardo Gebbia and another were convicted of murder, and they appeal.</p>