Volume 122 — Louisiana Reports

Injunction by the Shreveport Traction Company against the city of Shreveport and others to restrain the execution of an ordinance requiring plaintiff company to issue transfers to passengers on its street cars. Judgment for plaintiff, and defendants appeal.

<p>In the matter of the succession of Louise Platz, widow of Peter Schneider. Application for writs of mandamus, prohibition and certiorari by Josephine Schneider.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge ad hoc.</p> <p>Action by Charles Gary, Sr., and others against Paulin Landry. Judgment for defendant, and plaintiffs appeal. On rehearing. Former opinion withdrawn.</p>

<p>1. Elections — Contests — Jtjbisdiction — Juby Tkial.</p> <p>Act No. 129, p. 197, of the Extra Session of the Legislature of 1877, repeals in part, at least, section 1422 of the Revised Statutes.</p> <p>2. Same.</p> <p>Act No. 24, p. 27, of 1894, provides that contested election cases shall be tried in all respects as ordinary suits, except that they shall be tried by preference.</p> <p>3. Same.</p> <p>This leaves section 1422, cited above, without effect and repealed to the extent that it directs in mandatory terms that the trial shall be proceeded with before the court and jury.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of Julia P. Drysdale. Application by Mary Ann Pike and others for writs of certiorari, prohibition, and mandamus.

<p>Peohibition — Grounds for Relies^-Want of Jurisdiction.</p> <p>It is not evident that an error has been committed by the district court. The court had power to act, and did not exceed the bounds of its jurisdiction.</p> <p>(Syllabus by the Court.)</p>

Action by Margaret Reynolds against M. L. Egan. Application by plaintiff for writs of mandate and certiorari to compel the vacation of an order for suspensive appeal for the party defendant.

<p>Action by the New Orleans Scrap Metal Company against the Interstate Trust & Banking Company. Judgment for defendant, affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.</p>

Paul, Judge. In the matter of the succession of Philip Felix Herwig. M. H. Sullivan appeals from the judgments rendered on certain rules, and such appeals were in the Supreme Court consolidated.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the matter of the succession of Philip F. Herwig. From the judgment on a rule taken by C. A. Tessier, Martin H. Sullivan appeals.</p>

Petition by Andrew H. Gay, Jr., and others, members of the Twenty-First Judicial District Democratic Committee, for writs of certiorari and, prohibition, prohibiting any further proceedings in an action by the state, on the relation of Joseph E. Le Blanc, Jr., for mandamus against the Twenty-First Judicial District Democratic Committee.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Percy Saint against J. Sully Martel. Judgment for defendant. Plaintiff appeals.</p>

W. Ellis, Judge. Action by the Liverpool & London & Globe Insurance Company against the board of assessors and others. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Second Judicial District •Court, Parish of Bossier; Richard Cleveland Drew, Judge.</p> <p>Action by Whited & Wheless, Limited, ,-against J. D. Calhoun and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Abatement and Revival — Actions-Breach of Marriage Promise — Damages— Compensatory and Exemplary Damages— Recovery Against Heirs.</p> <p>Compensatory damages may be recovered against the heirs of a decedent for his breach of a promise of marriage, where the obligor has been put in default as provided by law. Johnson v. Levy et al., 118 La. 447, 43 South. 40. But exemplary damages are not allowable in such a case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 252.]</p> <p>2. Contracts — Putting in Default — Necessity.</p> <p>No formal putting in default is necessary, where the obligor denies the existence of the alleged contract and declares his intention not to perform his part.</p> <p>3. Appeal and Error — Review — Questions of Fact — Verdict on Conflicting Evidence.</p> <p>Where, in a suit for damages for breach of a promise of marriage, the evidence is conflicting, the verdict in favor of the plaintiff on the question of contract vel non will not be disturbed, except where it is clearly erroneous.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3928-3934.]</p> <p>4. Breach of Marriage Promise — Aggravation of Damages.</p> <p>The fact that the plaintiff was seduced under promise of marriage, and that such seduction was followed by pregnancy, is admissible in aggravation of damages.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 8, Breach of Marriage Promise, § 42.]</p> <p>5. Abatement and Revival — Breach of Marriage Promise.</p> <p>The fact that plaintiffs father, after the discovery of her pregnancy, killed the other party to the promise of marriage on the occasion of his refusal to marry the complainant, does not bar her claim for damages against the estate of the decedent.</p> <p>6. Breach of Marriage Promise — Excessive Damages.</p> <p>A verdict for $20,000 in favor of the plaintiff in a suit for damages for breach of promise of marriage instituted against the heirs of the other party held to be excessive under the facts and circumstances of the case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Breach of Marriage Promise, § 47.]</p> <p>(Syllabus by the Court.)</p>

Application by the Ozone Lumber Company for mandamus to compel the Court of Appeal, Second Circuit, Third District, to hear and determine its petition for a rehearing in an action between it and A. H. Hargis; and a like petition by J. P. Jones in an action between him and F. M. Gremillion.

<p>1. Indictment and Information (§ 40*) — Filing Information — Leave of Court.</p> <p>Under Act No. 156, p. 294, of 1S98, amending and re-enacting Rev. St. § 977, an information, in a case not capital, may be filed iu the clerk’s office without the leave of the court having been previously obtained.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 151: Dec. Dig. § 40.*]</p> <p>2. District and Prosecuting Attorneys (§ 3*) — Private Counsel.</p> <p>Private counsel may be employed and permitted to assist the Attorney General or district attorney in the trial of a criminal case ; and such officer, being present, may intrust to his associate the exclusive conduct of the case.</p> <p>[Ed. Note. — For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 12; Dec. Dig. § 3.*]</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. Action by the Travelers’ Insurance Company against the board of assessors and others. Prom the judgment the company appeals.

W. Ellis, Judge. ■ Action by the United States Fidelity & Guaranty Company against the board of as sessors and others to have its assessment canceled, or, in the alternative, that it be reduced. Judgment for the board, and the company appeals.

<p>Case certified from Court of Appeal.</p> <p>Action by Robert M. Helmer against the Colorado Southern, New Orleans & Pacific Railroad Company. Judgment for plaintiff, and defendant appeals to the Court of Appeal.</p>

Application by J. A. Seegars for certiorari or writ of review to the Court of Appeal, parish of Claiborne, in an action by the George D. Witt Shoe Company against J. A. Seegars & Co., in which action judgment was had in the district court for J. A. See-gars & Co., but in the Court of Appeal for the George D. Witt Shoe Company.

Action by Lizzie Caruthers Stoddard against A. H. Stoddard. Rule to show cause why defendant should not be punished for contempt. Prom the judgment, plaintiff applies for writs of certiorari and mandamus.

<p>Action by Meyer Bros., Limited, against J. A. Colvin. Judgment for plaintiff, and defendant appeals to the Court of Appeal. Certified certain questions to the Supreme Court.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edrington, Judge.</p> <p>Action by William G. Taylor against Jules Fisher and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. MORTGAGES (§ 529*) — SALE — ACTIONS TO Set Aside — Time to Sue — “Judgment.”</p> <p>An order of seizure and sale is not a judgment in the legal sense of the term, and an action to annul a sale made under executory process is not an action to annul a judgment, and as such subject to the prescription of one year.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1542; Dec. Dig. § 529.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3827-3842; yol. 8, pp. 7695-7696.]</p> <p>2. Moktgages (§ 529*) — Sale—Cure by Prescription.</p> <p>Where there was no existing mortgage at the time an order of seizure and sale was issued, a sale thereunder is radically null, and not curable by the prescription of five years.</p> <p>[Ed. Note — For other cases, see Mortgages, Dec. Dig. § 529.*]</p> <p>3. Mortgages (§ 587*) — Sale — Operation-Persons Concluded.</p> <p>■ The title of a third possessor, a stranger to the proceedings, cannot be divested by a sale under executory process issued on a mortgage note which had been previously paid.</p> <p>[Ed.' Note. — For other cases, see Mortgages, Cent. Dig. §§ 1685, 1685% ; Dec. Dig. § 587:*]</p> <p>4. Husband and Wipe (§ 47*) — Conveyance —Consideration—Payment oe Parapher-nal Claims.</p> <p>The husband may lawfully convey property to his wife in payment of her just paraphernal claims, whether there be a separation of property between them or not, and the law obligates him to warrant the title against prior mortgages on the property, when the transfer is not made subject to mortgages and liens.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 235; Dec. Dig. § 47.*]</p> <p>5.JHUSBAND AND WlEE (§ 47*) — CONVEYANCE In Payment oe Paraphernal Funds — Dation En Paiement — Eefect.</p> <p>Where a dation en paiement is made by the husband to the wife to replace her para-phernal funds, the legal title vests in the wife, and not a mere equity representing the value of the property over and above the amount of prior mortgages and liens existing thereon.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 236; Dec. Dig. § 47.*]</p> <p>6. Appeal and Error (§ 1106*) — Disposition oe Cause — Remand eor Determination oe Issues.</p> <p>The court will not, even by consent of counsel, try a plea by piecemeal, when the overruling of the plea would necessitate the remanding of the cause for a trial of the plea on its merits.</p> <p>A plea of estoppel by conduct based on facts de hors the record should not be tentatively decided on the face of the petition.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4386-4398; Dec. Dig. § 1106.*]</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 William Rabb against Francis Trevelyan and others. Judgment for defendants, and plaintiff appeals.</p>

Application by the state, on the relation of William G. Tebault, for writ of mandamus against John T. Michel, Secretary of State. Writ denied, and relator appeals.

Mandamus by the state, on relation of William P. Piper and others, to compel John T. Michel, Secretary of State, to place the names of relators upon the official ballot as candidates of an independent league. Judgment for respondent, and relators appeal.

<p>1. EXECUTORS AND ADMINISTRATORS (§ 20*)— Proceedings bob Appointment — Evidence —Sufficiency—Parent and Child.</p> <p>The applicant asks for the appointment of an administrator of his mother’s succession.</p> <p>Applicant produced certificate of the registry of the church showing that about three years after his birth he was christened as issue of the marriage in the presence of the mother. She also had his name registered as one of the pupils of one of the public schools as issue of the marriage, and she always recognized him as her son.</p> <p>The opponents challenge his right on thv ground that he is not the son of the one whom he claims as his mother, nor issue of her marriage with the one whom.he claims as his father.</p> <p>There is positive testimony going to prove that she is the mother.</p> <p>There is testimony equally as positive in support of the averment that she is the mother, and that the statement that the applicant was an informally adopted child is not true.</p> <p>In the presence of the conflict of testimony, weight is given to the certificate of 'baptism and to other testimony corroborative in character.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dee. Dig. § 20.*]</p> <p>2. EXECUTORS AND ADMINISTRATORS (§ 20*)— Proceedings eor Appointment — Evidence —Supeiciencv.</p> <p>The late Louise Ledet was the mother, as the weight of the testimony shows; the applicant was the issue of her marriage with the reputed father. The father never disowned him.</p> <p>It was not shown with certainty that he never returned to the city after he had left it to represent the United States government in Mexico as consul.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dec. Dig. § 20.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by M. A. Sawyers against her husband. Judgment for defendant. Plaintiff appeals..</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Alberto Pamelia was convicted of felony, and appeals.</p>

<p>Application of William H. Patterson for a writ of habeas corpus.</p>

Action by Rojas & Conner against Gustave-Seeger and Edward Claudel. Judgment for plaintiff against both defendants, and dismissing the call in warranty made by defendant Claudel on his codefendant, Seeger, and both defendants appeal, and Claudel also appeals from the judgment dismissing his call in warranty.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Suit by the Quaker Realty Company, Limited, under Act No. 101, p. 128, of 1898, § 3, to quiet title. From a judgment against it, the realty company appeals.</p>

Louis Banta was charged with crime. Order to recuse the judge was denied, and accused applies for writs of certiorari and prohibition.

<p>P. W. Holliday and others were indicted for crime. On order of the judge refusing to recuse himself, they apply for writs of certiorari and prohibition.</p>

J. L. Danos was indicted for crime. On an order of the judge refusing to recuse himself, he applies for writs of certiorari and prohibition.

James E. Dunlap was indicted for crime. From an order of the judge refusing to recuse himself, he applies for certiorari and prohibition.

Action by Kathryn ,T. McClelland against Fernand V. Gasquet, her husband, for separation. Petition by Fernand Vaughn Gas-quet for writs of certiorari, prohibition, and mandamus.

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

<p>Cieiminal Law (§ 1092*) — Bill os' Exceptions — Refusal to Sign.</p> <p>A judge may refuse to sign a bill of exceptions presented after the expiration of the day fixed by the rule of his court for the presentation of bills.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. § 1092.*)</p>

<p>Appeal from Ninth Judicial District Court, Parish of East Carroll; Francis Xavier Ransdell, Judge.</p> <p>J. T. Morris was convicted of unlawfully selling liquor, and he appeals.</p>

<p>Mortgages (§ 440*) — Process (§ 19*) — Notice — Foreclosure — Judicial Sale — Validity.</p> <p>Where executory process to foreclose a mortgage issued in the parish of Orleans against property therein situated and against a resident thereof, and notice was served on the defendant in the parish of Lafourche, held, that a judicial sale made under such process was radically null for want of legal notice. Judicial process does not run beyond the territorial limits of the court, except in cases specially provided for in the Code of Practice.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 440 ;* Process, Cent. Dig. | 15; Dec. Dig. § 19.*]</p> <p>(Syllabus by the Court.)</p>

<p>1.Criminal Law (§ 627*) — Trial—Service or Copt or Indictment — 'Variance.</p> <p>An accused, charged with the burglary of ■a “box car,” was served with a copy of the information in which the word “ear” was omitted. Held, that the variance was material, and .could not be cured by reference to an indorsement forming no part of the information, and that the case should have been continued for proper service, as prayed for by the accused.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1403; Dec. Dig. § 627.*]</p> <p>2. Criminal Law (§ 665*) — Trial—Separation or Witnesses.</p> <p>The granting or refusing of a motion for the separation or sequestration of witnesses is within the sound discretion of the trial judge.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1549; Dec. Dig. § 665.*]</p> <p>3. Burglary (§ 28*) — Indictment—Issues— Date or Crime.</p> <p>In cases of burglary, the exact date of the offense is not material, and so an approximate date may be proven.</p> <p>[Ed. Note. — Eor other cases, see Burglary, Cent. Dig. §' 70; Dec. Dig. § 28.*]</p> <p>4. Criminal Law (§ 1144*) — Trial — Presence or Accused.</p> <p>Where the trial comménced and was concluded on the same day, the presence of the accused, being affirmatively shown at the beginning, will be presumed to have continued until the end.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2765; Dec.'Dig. § 1144.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Process (§ 72*) — Citation — Service on Representative — Validity.</p> <p>Residents of other states cannot he brought into the courts of Louisiana by citations served on persons representing them here for business purposes, but shown to be without authority to receive or accept such service.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 86; Dee. Dig. § 72.*]</p> <p>2. Constitutional Law (§ 809*) — Due Process oe Law.</p> <p>Nor can residents of other states or foreigners be brought into the courts of this state, upon ordinary demands for money, by process issued from such courts and served beyond the limits of their territorial jurisdiction. Act No. 23, p. 29, of 1900, purporting to authorize such proceedings, is in contravention of the fourteenth amendment to the Constitution of the United States, and therefore void.</p> <p>TEd. Note. — For other cases, see Constitutional Law, Cent. Dig. § 929; Dee. Dig. § 309.*)</p> <p>(Syllabus by the Court.)</p>

Action by J. D. Simms & Sons against the-New Orleans & Northeastern Railroad Company. Judgment for plaintiffs was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>1. Jury (§■ 4*) — Jury Trial — Number on Jurors.</p> <p>Under article 116 of the Constitution of 1898, as embezzlement, a felony necessarily punishable at hard labor under the statute, is triable by a jury of 12, it follows that a jury of 5, trying an accused for petit larceny, has no jurisdiction to convict him of embezzlement.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 3-7; Dec. Dig. § 4.*]</p> <p>2. Criminal Law (§ 5*) — Grading Felonies —Constitutional Law.</p> <p>Act No. 107, p. 162, of 1902, is unconstitutional in so far as it attempts to grade felonies. State v. Dalcourt, 112 La. 420, 36 South. 479, reaffirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 5.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Executors and Administrators (§ 20*)— Application eor Dative Executorship-Order — Revocation.</p> <p>An ex parte order for publication of an application for dative executorship was revocable by the court at any time without a hearing, ii found to have been made improvidently.</p> <p>[Ed. Note. — Eor other cases, see Executors and Administrators, Dec. Dig. § 20.*]</p> <p>2. Executors and Administrators (§ .20*1-Wills — Designation of Executor — Effect.</p> <p>Where an order for publication of an application for dative executorship was made on a showing that the will contained no appointment, a provision in the will, “I appoint my friend Geo. Montgomery as testator of my will,” was sufficient to justify a revocation of such order as improvidently made.</p> <p>[Ed. Note. — Eor other cases, see Executors and Administrators, Dec. Dig. § 20.*J</p> <p>3. Executors and Administrators (§ 20*)— Appointment — Remedy of Objectors.</p> <p>The remedy of objectors to the confirmation of an appointee as executor is by appeal.</p> <p>. [Ed. Note — Eor other cases, see Executors and Administrators, Dec. Dig. § 20.*]</p>

Miho C. Cibilich was convicted of receiving and keeping oysters in sacks not of standard measure,' in violation of Acts 1908, p. 135, No. 92, § 1, and lie applies for certiorari and prohibition.

Action by the Keystone Life Insurance Company of Louisiana against Bernard Von Sehlemmer. Judgment for plaintiff was affirmed in the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>1. Contracts (§ 322*) — BREACH—EVIDENCE.</p> <p>In an action for breach of a package delivery contract, evidence held to require a finding that the contract had been extended prior to defendant’s breach for a period of two years, and that defendant’s termination of the contract was not justified by plaintiff’s alleged unsatisfactory service.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>2. Contracts (§ 326*) — Bbeach—Damages.</p> <p>- Plaintiff could not recover for breach of a delivery service contract, in the absence of proof that he had sustained damages thereby.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 326.*]</p> <p>3. Contracts (§ 326*) — Breach—Damages— Statutes.</p> <p>Civ. Code, art. 2749, providing that if, without any serious ground of complaint, a man send away a laborer whose services he has hired for a certain time before the time has expired, he is bound to pay the salary for the full term, applies only to contracts for personal services, and does not justify a recovery for breach of a contract for package delivery service, without proof of actual damages.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 326.*]</p>

Action by J. B. Starnes and wife, in behalf of their minor son, against the Pine Wopds Lumber Company. Prom a judgment for plaintiffs, defendant appeals.

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Ferdinand P. Dudenhefer was convicted of embezzlement, and he appeals.</p>

M. B. Simpson was arrested on an affidavit sworn out before a justice of the peace, and' was released on a bond upon which J. C. Brown was surety. Simpson having failed to appear, his bond was forfeited, and from the forfeiture his surety appeals, and the State moves to dismiss the appeal.

<p>Municipal Corporations (§ 374*) — Public IMPROVEMENTS — CONTRACTS — LIABILITY OP Municipality.</p> <p>The city of New Orleans entered into a contract with plaintiff (under the thirty-seventh section of the city charter, as amended by Act No. 119, p. 217, of 1886, and Act No. 142, p. 179, of 1894) for the paving of the sidewalks on both sides of David street and of Bienville street. The work was performed by the contractor according to contract. The city in part payment of the work transferred to the contractors “paving certificates,” representing the proportion of the cost due by proprietors of the lots fronting on the streets, and which were supposed to be secured by privilege on those properties subrogating the contractor to the rights of the city. In his attempt to avail himself of these certificates the contractor was successfully resisted by the owners of certain properties on the ground that they had not been given a special notice by the city officials which, under an ordinance of the city council entitled them to have given, in order to render their properties liable for contribution for any part of the work.</p> <p>Being cast in those actions, the contractor has brought suit against the city to recover from it the amount called for by the certificates (with interest and costs), which he had been unable to collect for the reasons stated. The city resists the demand on the ground that the contractor had expressly agreed that the city of New Orleans should not be held liable for any bills due by the abutting owners, should same not be paid. The -district court rendered judgment against the contractor, and he has appealed.</p> <p>Appellant urges that the contract between himself and the city was a valid contract under the city charter, and that that validity was not affected by the neglect of the city officials to give the property owners a notice as directed by a city ordinance, and which failure had enabled them to escape from contribution towards the-costs of the work; that the city, in transferring the paving certificates to him with subrogation to its rights, warranted the existence of the claims transferred, and it could not claim exemption from warranty, as the nonexistence of the claims against the property was the result of its own fault. Held, under the circumstances of the case, that the city’s defense is not just nor well-founded.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 905-910; Dec. Dig. § 374.*]</p> <p>(Syllabus by the Court.)</p>

<p>Application by John T. Michel, Secretary of State, for writs of certiorari and prohibition to prevent a suspensive appeal in an action against him by Joseph E. Le Blanc, Jr.</p>

Action by Paul Felix and others against John T. Michel, gecretary of gtate. Judgment for defendant. On refusal to grant an appeal, Paul E'elix and John Clancy apply for writs of mandamus and prohibition.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas Moore Burns, Judge.</p> <p>Action by Wetenhall Jones against the New Orleans Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and ERROR (§ 612*) — Record—Certificate-Construction.</p> <p>A clerk certified that the foregoing pages contained a true, correct, and complete transcript of all the proceedings had, documents filed, and evidence adduced on the trial of the above entitled and numbered cause instituted in the court specified “and now in the record thereof.” Held, that the words quoted modified the word “cause,” and not “all the proceedings had, documents filed, and evidence adduced,” and that the certificate was therefore sufficient.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2698-2701; Dec. Dig. § 612.*]</p> <p>2. Divorce (§ 115*) — Adultery—Adulterous Disposition.</p> <p>In an action for divorce for adultery, evidence of incidents showing defendant’s adulterous disposition, though not connected in time or place with the alleged act of adultery, are relevant to add to the probability of her having committed the acts relied on.</p> <p>[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §' 373; Dec. Dig. § 115.*]</p> <p>3. Divorce (§ 129*) — Adultery—Evidence.</p> <p>In an action for divorce for adultery, evidence held sufficient to sustain a finding of defendant’s guilt.</p> <p>[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. § 411; Dec. Dig. § 129.*]</p> <p>4. Divorce (§ 124*) — Evidence — Presumptions.</p> <p>In an action for divorce for adultery, evidence that plaintiff and defendant were living together as husband and wife, and passed as such in the community in which they lived, created a presumption of marriage which was sufficient proof thereof, in the absence of any denial.</p> <p>[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. § 396; Dec. Dig. § 124.*]</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; John Stirling Boatner, Judge.</p> <p>Action by E. D. Green against W. P. Richardson. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Taylor Webster and others against W. H. Howcott and the Aztec Land Company, Limited. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>R. W. Turner was convicted of horse stealing, and he appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>George W. Lindsay was convicted of manslaughter, and he appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Eisk Blackman, Judge.</p> <p>Action by Edward W. Pearce and others against Samuel Haas and others. Judgment for defendants, and plaintiffs appeal, and defendants move to dismiss the same.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Mrs. Widow George Provenzano against Frederick Glaesser and wife. Judgment for plaintiff, defendants appeal.</p>

<p>DIVORCE (§ 37*) — SEPARATION FROM BED AND Board — Public Defamation.</p> <p>A wife abandoned her husband’s home, taking her two children, giving the.reason that her husband objected to some of her friends, and that she had to go to her mother’s to receive them. The husband appealed in vain for her to return. Subsequently, accompanied by her mother and with a whip concealed about her person, she waited in the street near her husband’s house and without provocation slashed him twice, and followed him up with abusive language. She also wrote to his employer, untruthfully complaining that he had not been supporting her and the children. Held, that the husband was entitled to a separation from bed and board.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 107; Dec. Dig. § 37.*]</p>

<p>1. COBPOEATIONS (§ 503*) — ACTIONS — DOMICILE.</p> <p>A corporation cannot be sued without its consent outside of the parish of its, domicile on ■an implied promise to pay the liabilities of a commercial firm.</p> <p>[Ed. Note. — Por other cases, see Corporations, Dec. Dig. § 503.*]</p> <p>■2. Appeal and Error (§ 1002*) — Review— Conflicting Evidence;</p> <p>On issues of fact, where the evidence is conflicting, the verdict of a jury of the vicinage is entitled to great weight, and will not be disturbed unless manifestly erroneous on the face ■of the evidence.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>3. Appeal and Error (§ 1178*) — Remand — Damages.</p> <p>Where the evidence shows that the plaintiff is entitled to recover damages in some amount over and above a certain sum, and it is probable that on another trial the quantum can.be fixed with reasonable certainty, the cause will be remanded for further proceedings.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Dec. Dig. § 1178.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Daw-kins, Judge.</p> <p>Action by Julia F. Brandon against W. K. Slade. Judgment for plaintiff, and defendant appeals.</p>

Opposition of Helina Barbin and others to the account of W. F. Couvillon, testamentary executor. From the judgment of homologation, the executor appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by Joe Bernstein against the Dalton Clark Stave Company. Judgment for defendant. Plaintiff anneals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; T. Don Foster, Judge.</p> <p>Suit by the Anse La Butte (Le Danois) Oil & Mineral Company, Limited, against Alfred Babb for specific performance. Judgment for defendant, and plaintiff appeals.</p>

Mandamus by Thomas C. Bishop to compel Henry N. Sherburne, registrar of voters, to register him as a duly qualified voter. The writ having been denied, Bishop appeals.

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by Olympe Boudreaux and others against Sylvain Boudreaux. Judgment for defendant, and plaintiffs appeal.</p>

Mandamus by Bernard Lorio to compel Henry A. Sherburne, registrar of voters, to register him as a duly qualified voter. The writ having been denied, Lorio appeals.

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Dawkins, Judge.</p> <p>Action by H. E. Gates against the Union Sawmill Company. Judgment, for plaintiff, and defendant appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Action by George Ferringer against the Crowley Oil & Mineral Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Militia (§ 19*) — Actions Against Oeei-cees.</p> <p>Section 21, Act No. 181, p. 377, of 1904, relative to the state militia and the state National Guard, does not 'exempt a superior officer from suits for damages in the civil courts.</p> <p>[Ed. Note. — For other cases, see Militia, Gent. Dig. § 44; Dec. Dig. § 19.*]</p> <p>2. Militia (§ 16*) — Encampment — Sttppeession op Business in Vicinity.</p> <p>Section 101 (Act 1904, p. 408, No. 181) of the same act does not authorize the suppression of a lawful and harmless business carried on by a citizen on his own land or outside of the encampment, when the same kind. of business is permitted within the limits of the adjoining camp grounds.</p> <p>, [Ed. Note. — For other cases, see Militia, Cent. Dig. § 42; Dec. Dig. § 16.*]</p> <p>(Syllabus by the Court.)</p>

Action by R. B. Blanks against W. J. Sutcliffe and others. D. A. Breard and others, interveners. Judgment for defendant and interveners, and plaintiff appeals.

Action by Donoven & Daley for the recovery of mules in the possession of Travers & Hermann. Judgment declaring plaintiffs to be the owner of the mules, but reserving the right to defendants to remain in possession thereof with the right to redeem, and plaintiffs appeal.

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupée; Louis Bing-aman Claiborne, Judge.</p> <p>Action by Charles L. Andrews against ■George B. Sheehy. J. W. Green became defendant in reconvention. Judgment for plaintiff, and defendant Sheehy appeals.</p>

<p>1. Libel and Slandeb (§ 19*) — Wokds Actionable and Liability Thereeob.</p> <p>For the purpose of determining the liability of a newspaper towards plaintiff for the publication of an alleged libel, it is the duty of the court to take into consideration all of the circumstances of the case. It should weigh every fact having a legal bearing on the publication. It should regard the occasion on which it was made to ascertain how far, in view of the occasion and of everything that was said by the defendant with reference to the matters published, the publication is as to its character libelous or not. Its conclusions must be based upon the situation as a whole.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 99; Dee. Dig. § 19.*]</p> <p>2. Libel and Slandeb (§ 19*) — Words Actionable and Liability Thebeeob.</p> <p>The headlines to a newspaper article are frequently determinative of the question as to whether the article is libelous or not.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 98, 99; Dec. Dig. § 19.*]</p> <p>3. Libel and Slander (§ 1*) — 'Words Actionable and Liability Therefor.</p> <p>If a publication in a newspaper does not naturally and reasonably tend to injure plaintiff’s reputation or expose him to hatred, contempt, or ridicule, it is not libelous in character.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>4. Libel and Slander (§ 7*) — Words Actionable and Liability Therefor.</p> <p>A publication in a newspaper contained statements made by two persons convicted of crime, to the effect that the jury which had found them guilty of the same had been jobbed (bribed). The remarks were not published with approval, but as statements discredited by the situation of the parties who made them, and as the remarks customarily made by convicted persons in reference to the court and jury which convicts them. The publication as a whole was condemnatory of the conduct of the parties in making such remarks, instead of expressing regret for the homicide of which they had been found guilty. Held, that such publication is not libelous in character.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 17; Dee. Dig. § 7.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Felix Brunot, Judge.</p> <p>Action by Lawrence Downey and wife against the Baton Rouge Electric & Gas Company and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Husband and Wise (§ 273*) — -Community Property — Rights of Surviving Husband —Usufruct.</p> <p>The surviving husband, as usufructuary of the community property, does not become the owner of the deceased wife’s half interest in bank shares acquired during the marriage, but is entitled to all the dividends accruing therefrom until the termination of the usufruct.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1009, 1017; Dec. Dig. § 273.*]</p> <p>2. Husband and Wife (§ 273*) — Community Property— Sale.</p> <p>A private sale by the surviving husband of the half interest of his minor son in bank shares, made without an order of court issued on the advice of a family meeting, is a nullity.</p> <p>The purchaser at such a sale, knowing that the shares were acquired during the marriage and that the wife was dead, was bound to know that the property belonged to the community and was owned jointly by the surviving husband and the minor heir of the wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1021; Dec. Dig. § 273.*]</p> <p>3. PRESCRIPTION (§ 65*) — Mistake—Effect-Error of Law.</p> <p>Error or mistake of law is never a good foundation for acquiring property by prescription. Rev. Civ. Code, art. 1846.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §| 365-370; Dec. Dig. § 65.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Action by Apolina Richard against Louis Chariot and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Account Closed — Promise to Pat.</p> <p>The account was closed; the defendant promised to pay the amount after it had been •closed.</p> <p>■2. Application op Proceeds — Imputation op Payments — Advances.</p> <p>The defendants agreed with plaintiffs that the proceeds of the crop to be produced would 'be applied to the payment of any and all amounts due.</p> <p>Z. Payment (§' 38*) — Application op Proceeds.</p> <p>The proceeds of the crop were applied to •the indebtedness of defendants, as authorized by the contract.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 99-103; Dec. Dig. § 38.*]</p> <p>A. Examination op Account — Alleged Error.</p> <p>Plaintiffs’ account was examined into; the ■testimony does not prove the error charged.</p> <p>,5. Guaranty (§ 70*) — Discharge op Guarantor-Plaintiffs Not Liable for Delay.</p> <p>Defendants had not ordered plaintiffs, as commission merchants, to sell the cotton crop they had on hand for defendants. It was agreed •that plaintiffs would hold it until July 1, 1906. It was thus held, and sold a few days thereafter. The testimony shows no fault of which .defendants have good ground for complaint.</p> <p>[Ed. Note. — For other cases, see Guaranty, •Cent. Dig. § 79; Dec. Dig. § 70.*]</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law (§ 15*) — Statutes—Express Repeal.</p> <p>Where, pending the trial of accused for blowing up, with explosives, a house, etc., Laws 1908, p. 384, Act No. 263, was enacted, section 1 of which made it a capital offense to will-’ fully blow up, etc., any house, etc., wherein persons are customarily found, and section 2 (page 385) repealed all conflicting laws, but provided that no offense theretofore committed against the repealed laws should be condoned thereby or its prosecution affected, the prior acts were not repealed, so as-to affect the prosecution of accused.</p> <p>[Ed. Note. — For other cases, .see Criminal Law, Cent. Dig. §§ 17-19; Dec. Dig. § 15.*]</p>

<p>1. Statutes (§ 114*) — Title oe Act — One Object.</p> <p>The statute under which the relator was prosecuted and condemned has but one object. The title of the statute as relates to oneness is equally as unobjectionable.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 148; Dec. Dig. § 114.*]</p> <p>2. Intoxicating ■ Liquors (§ 155*) — Physicians Evading Law — Punishment oe Aiders.</p> <p>The object is to punish medical practitioners who aid in evading the law.</p> <p>[Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 154; Dec. Dig. § 155.*]</p> <p>3. Intoxicating Liquors (§ 155*) — Physicians Evading Law — First Part oe Statute.</p> <p>The statute has for purpose in the first part of the paragraph the punishment of those physicians who assist in violating the license law under the guise of a prescription.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 154; Dec. Dig. § 155.*]</p> <p>4. Intoxicating Liquors (§ 155*) — Indictment— Evasion oe Law by Physician — Second Part of Statute.</p> <p>This part of the statute has for purpose the punishment of physicians who by prescribing assist in violating the law (cither than the license law) against the sale of intoxicants.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 154; Dec. Dig. § 155.*]</p> <p>5. Statutes (§ 114*) — Subjects and Titles oe Acts — Aeeects Two Classes of Violators.</p> <p>The one purpose is the punishment of physicians who violate either part of the statute; as to these, there is one object.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 148; Dec. Dig. § 114.*]</p> <p>6. Intoxicating Liquors (§ 215*) — Indictment-Description of the Crime.</p> <p>The crime charged is not defined in the language of the statute, nor are equivalent words used.</p> <p>Arrest of judgment sustained.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 258, 259; Dec. Dig. §</p> <p>7. Intoxicating Liquors (§ 215*) — Indictment-Crime Not Described.</p> <p>One of the grounds urged is that it does not sufficiently appear whether the defendant is prosecuted under the first part of the statute or under the second.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 258, 259; Dec. Dig. I</p> <p>8. Intoxicating Liquors (§ 202*) — Indictment — Intent.</p> <p>The intent is not alleged in the bill of information, although the statute makes intent a part of the crime.</p> <p>The statute is legal; the bill of information is not.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §' 222; Dec. Dig. § 202.*]</p> <p>(Syllabus by the Court.)</p>

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

Mortgage foreclosure by James E. Dunlap against V. & J. A. Bertkelot. After seizure by the sheriff, and pending the advertisements of the property for sale, Leon Cahn & Co. filed an intervention, claiming a privilege for advances and supplies. Judgment for Dunlap, and interveners appeal.

<p>1. Wills (§ 96*) — Letter Con stitutin g.</p> <p>A letter written, dated, and signed by the .author, may serve as a last will, where it contains testamentary language indicating that it was so intended.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 229; Dec. Dig. § 96.*]</p> <p>2. Perpetuities (§ 4*) — Fidei Commissum— Presumptions.</p> <p>The law presumes that a testator intends a lawful rather than an unlawful disposition of his property, and though such presumption, may be rebutted, and the creation by last will of a fidei commissum may be proved by presumptions arising from circumstances dehors the instrument, such presumptions must be grave, precise, and consistent, and must leave no reasonable basis for a different conclusion.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. | 38; Dee. Dig. § 4;* Trusts, Cent. Dig. §§ 3, 4.]</p> <p>3. Perpetuities (§ 4*) — Fidei Commissum.</p> <p>Where, in sufficiently explicit terms, the person named as universal legatee is bequeathed the entire estate of the testator, the expressions or instructions, “Now, do as I told you, at the station, when you left,” and “Do for my children as I have said” (referring to certain illegitimate children), are too vague and uncertain to impose any charge on the legatee, and do not create a fidei commissum in favor of the children.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. § 38; Dec. Dig. § 4 ;* Trusts, Cent. 'Dig. §§ 3, 4.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Samuel Jami-son Henry, Judge.</p> <p>Action by J. H. Stephens, dative tutor, against the Louisiana Long Leaf Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche;' Whitmel Pugh Martin, Judge.</p> <p>Action by Robert Ruffin Barrow against Leon Gaillardanne, tutor. Judgment for plaintiff, and defendant appeals.</p>

<p>1. HUSBAND AND WIPE (§ 270*) — DAMAGES to Paraphernal Property.</p> <p>The husband who has the administration of the paraphernal property of the wife can stand in judgment in a suit for damages growing out of the diminution in the value of the property.</p> <p>[Ed. Note.' — Eor other cases, see Husband and Wife, Cent. Dig. § 972; Dec. Dig. § 270.*]</p> <p>On the Merits.</p> <p>2. Municipal Coeporations (§ 680*) — Rail-BOADS (§§ 76, 114*) — CONSTRUCTION — INJURIES — ACTIONS bob Damages.</p> <p>The testimony of witnesses regarding the extent of the diminution in the value of the property considered, and the amount of the damages fixed.</p> <p>Plaintiff sued the defendant road for damages for the diminution in value of a lot caused by the construction of the defendant road through a street. The street was obstructed by its embankment and track.</p> <p>The pleadings and the facts do not admit of a claim on the ground that defendant occupied the street beyond the terms of the ordinance granting the franchise.</p> <p>The municipality had the right to grant the franchise to the defendant company to construct its track through a public street.</p> <p>It did not grant to the defendant company the right to impair the value of property by its roadbed and track.</p> <p>There was. an impairment of value, and to that extent the defendant is liable.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1464; Dec. Dig. § 680;* Railroads, Cent. Dig. §§ 195, 809; Dec. Dig. §§ 76, 114.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by Martin N. King against Nancy O. King. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Osrcees (§ 27*) — Eligibility — Delinquent Tax Collector.</p> <p>A collector of taxes is not eligible until he shall have obtained his discharge for the amount of collections he has made. Article 182 of the Constitution.</p> <p>[Ed. Note. — For other eases, see Officers, Cent. Dig. § 46; Dec. Dig. § 27.*]</p> <p>2. Eligibility of Delinquent Tax Collector to Office.</p> <p>In construing the article, this court held that “it was proposed to exclude from the right of holding office” persons intrusted with public funds until they shall have obtained a discharge. Echeveria’s Case, 33 La. Ann. 721.</p> <p>3. Subrogation (§ 7*) — Payment by Surety.</p> <p>Defendant’s sureties paid the amount he owed to the state and became subrogated to the rights of the state for the amount due by the defendant paid by them.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §' 21; Dec. Dig. § 7.*]</p> <p>4. Payment by Principal to Sureties.</p> <p>Subsequently payments were made by the sheriff to his sureties.</p> <p>(a) The heirs of the late Allen J. Perkins acknowledged to have been paid in full.</p> <p>(b) So does W. R. Ramsey, another surety</p> <p>(c)'The heirs of the late Chas. Miller chose to accept less than the full amount in satisfaction of their claim.</p> <p>.5. Election as Sheriff.</p> <p>The sheriff thereafter became a candidate for the office and was chosen as his own successor at the primary in 1908.</p> <p>6. Eligibility of Delinquent Tax Collector to Office.</p> <p>This court had occasion to interpret a similar article of the Constitution of 1845, and held .that a tax collector may be appointed after exhibiting a discharge from the proper officer of the state. State v. Dunn, 11 La. Ann. 549. To the same effect is State v. Reid, 45 La. Ann. 181, 12 South. 189.</p> <p>7. Eligibility of Delinquent Tax Collector to Office.</p> <p>Relator here states that article 182 of the Constitution “only imposes ineligibility for public office until the defaulter shall have obtained a discharge for the amount of such collections and for all public moneys with which he may have been intrusted; citing Echeveria’s Case, 33 La. Ann. 709.</p> <p>8. Eligibility of Delinquent Tax Collector to Office.</p> <p>The contention of the relator is that the respondent has never been discharged.</p> <p>9. Officers (§. 33*) — Eligibility — Delinquent Tax Collector.</p> <p>The state has no claims against the defendant. The sureties have been paid. The temporary suspension must be held at an end". Otherwise, there would be a disregard of the plain terms of the article cited. It is too evident to be misunderstood.</p> <p>. The discharge is not attacked. .This court has decided that a discharge could not be attacked collaterally. Echeveria’s Case, 33 La. Ann. 709.</p> <p>The receipts must be held binding.</p> <p>[Ed. Note. — For other cases, see Officers, Cent. ■Dig. § 48; Dec. Dig. § 33.*]</p> <p>10. Principal and Surety (§ 185*) — -Settlement by Principal with Sureties — Validity.</p> <p>The fact that one or more of the sureties chose to accept less than the full amount does not render the discharge null.</p> <p>When the suit was brought to have the status of the officer fixed as ineligible and to have him ousted from office, there was cause for the suit.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Dec. Dig. § 185.*]</p> <p>11.Eligibility of Delinquent Tax Collector to Office.</p> <p>He has been acquitted in a criminal prosecution, obtained a discharge from his sureties, and elected to the office he now occupies. There was no undue or any other influence (in so far as the record discloses) toward obtaining a settlement.</p> <p>It is not evident that the present suit can be maintained, to the end of having him declared ineligible and ousted from office to which he has been elected since the suit was brought.</p> <p>None the less the decree is not predicated on that ground. The decision is based on the fact that he was not a defaulter at the time that he was elected to the office' he now holds, as he had settled with his bondsmen.</p> <p>(Syllabus by the Court.)</p> <p>Monroe, J., dissenting.</p>

Application by Albert O. Duffy for respite. Judgment homologating the proceedings and appointing a syndic, and the debtor applied for a suspensive appeal, and on refusal applied for writs of certiorari, mandamus, and prohibition.

In the matter of the receivership of the ¡Mrs. E. D. Burguieres Planting Company. Application for mandamus by E. C. Viguerie .and another to compel the trial court to grant an appeal from a judgment fixing the fees of the receiver.

<p>1. Master and Servant (§ 137*) — Injury to . Servant — Negligence oe Master.</p> <p>The master is negligent when, through ignorance or indifference, he adopts an improper and unsafe mode of operating belts in his factory.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 273; Dec. Dig. § 137.*]</p> <p>2. Master and Servant (§ 89*) — When Relation Exists — Volunteer.</p> <p>A servant, hired by the day to perform certain work in a factory, was instructed by the foreman to look after the belts which operated the machine at or near which the servant was working, and while so doing was injured by the breaking of the belts. Reid, that the servant was not a volunteer doing work beyond the scope of his employment.</p> <p>[Ed.' Note. — Eor other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 89.*]</p> <p>3. Master and Servant (§ 233*) — Injury to Servant-Contributory Negligence.</p> <p>Where in such a case the danger of the breaking of the belts was not apparent, and they were handled in the customary manner by the servant, there was no contributory negligence on his part, and the doctrine of the assumption of risk has no application.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 233.*]</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 Solomon Reinach against J. Charles Jung. Judgment for plaintiff, and defendant appeals.</p>

Mandamus by the State, on relation of the Board of Commissioners of the Saline Levee & Drainage District, against Paul Capdevielle, State Auditor, and A. W. Crándell, Register of the State Land Office, in which action the Board of Commissioners of the Red River, Atchafalaya and Bayou Boeuf Levee District intervened. Judgment for defendants and’ intervener, and relator appeals.

<p>1. Charities (§ 45*) — Eire Insurance Patrol — Negligence—Liabilities.</p> <p>Defendant, an association organized under Act No. 115, p. 186. of 1902, composed of insurance companies doing business in New Orleans, and having authority to maintain a corps of men and suitable apparatus to save life and property at and after fires, and which is supported by assessments levied on all persons, natural or artificial, engaged in the fire insurance business in said city, is a private association, whose, main purpose, as appears from a reasonable construction of the law under which it is established, is to minimize the losses and promote the pecuniary interests of its members, and is neither a public corporation nor a public charity, and it is liable in damages for injuries sustained by a member of the fire department, engaged in the discharge of his duties, as the result of the negligence of its servants in driving one of its vehicles through the streets of the city; and this, notwithstanding that the statute referred to includes the saving of life among the purposes for which such associations may be established, and prohibits them from charging for their services or from distinguishing between insured and uninsured property.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. § 103; Dec. Dig. § 45.*]</p> <p>2. Municipal Corporations (§ 705*) — Use oe Streets — Right of Way — Fire Department-Insurance Patrol.</p> <p>Construing Act No. 83, p. 114, of 1894, granting the right of way through the streets of New Orleans to the fire department, with Act No. 115, p. 186, of 1902, granting a similar right to the fire insurance patrol, it is clear that whilst, as between the patrol and the public, such right is vested in the patrol, the right granted to the fire department is paramount to, and is wholly unaffected by, that granted to the patrol.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1515; Dec. Dig. § 705.*]</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by Nathaniel E. Lee against T. C. Wingate and the Interstate Trust & Banking Company, co-receivers of Powell Bros. & Sanders Company, Limited, and others. Judgment for plaintiff, and the co-receivers appeal.

<p>1. Libel and Slander (§ 15*) — -Words Actionable.</p> <p>To condemn a person as a libeler, it must appear that the letter written by him was defamatory, and communicated in order to bring him into contempt, ridicule, or hatred.</p> <p>LEd. Note. — For other cases, see Libel and Slander, Cent. Dig. § 1; Dec. Dig. § 15.*]</p> <p>2. Libel and Slander (§ 25*) — Publication —Libel.</p> <p>The letter written by the person charged with libel, addressed directly to the attorneys of the complainant, is not a libel in the sense of the law of libel. There was no publication.</p> <p>(Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 107, 108; Dec. Dig. § 25.*]</p> <p>3. Libel and Slander (§ 87*) — Actions—Petition — Sufficiency.</p> <p>Plaintiff failed to allege that the letter was untrue to the knowledge of the writer. Besides, it was intended for the attorneys of plaintiff, and no other persons.</p> <p>(Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 211; Dec. Dig. § 87.*]</p> <p>4. Libel and Slander (§ 83*) — Actions—Pe-TITIO N — SUFFICIEN CY.</p> <p>The malice charged does not necessarily give rise to the implication of untruth.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Dec. Dig. § 83.*]</p> <p>5. Privileged Communication.</p> <p>The whole letter related to the business in hand.</p> <p>■6. Dibel and Slander (§ 45*) — Privileged Communications — Letter to Attorney.</p> <p>A private letter between a person who answers the attorneys of another relating to a special matter in which each is concerned is not ground for action.</p> <p>[Ed. Note. — For other cases; see Libel and •Slander, Cent. Dig. § 1S8; Dee. Dig. § 45.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Evidence (§' 429*) — Parol Evidence Affecting Writings — Simulation.</p> <p>This suit is brought to have an act apparently of sale from H. 0. Drew to Johnson Rion declared a simulation, and the property described therein to belong really to the succession of William M. Rion, the father of the apparent vendee. The suit is brought by the widow and forced heirs of William ’ M. Rion. William M. Rion, having- borrowed money from Drew, secured the loan by a special mortgage in the form of a sale with “right of redemption” in four months. Pour months after the period for redemption William M. Rion paid the debt, and Drew, in retransferring the property, placed it (at the request of AVilliam M. Rion) in the name of his bon, Johnson Rion. The father died while the legal title stood in the name of the son, and shortly after the son himself died, the property standing still in his name. The defendants are his minor heirs (grandchildren of William M. Rion). The trial court, over objection, allowed the plaintiffs to show, first, that the sale to Drew with “right of redemption” was in reality a mortgage, and, having shown it to have been such, to then show (using parol evidence) that the act from Drew to Johnson Rion was a simulation. The court rendered judgment in favor of the plaintiffs, and defendants appealed. Held, that the forced heirs had the right by parol to prove the second act simulated, after having, by proper testimony, shown that Drew was really never an owner, but a mortgagee.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1966, 1967; Dec. Dig. § 429.*]</p> <p>2. Mobtgagbs (§ 597*) — Expiration ob Time Limited bob Redemption — Ebbect.</p> <p>Drew’s status as a mortgagee did not become by the expiration of time for redemption that of owner, but, if it did, he had the right to waive the forfeiture, it being a matter in his interest.</p> <p>LEd. Note. — For other cases, see Mortgages, Dec. Dig. § 597.*]</p> <p>3. Other Case Distinguished.</p> <p>This case differentiated from Westmore v. Harz, 111 La. 305, 35 South. 578, and Wells v. Wells, 116 La. 1065, 41 South. 316.</p> <p>(Syllabus by the Court.)</p>

<p>False Impbisonment (§ 6*) — What Constitutes.</p> <p>Plaintiff entered upon grounds which were lawfully in possession of schoolboys, who were giving a free picnic, and who had given notice, in advance, that later in the day a game of baseball would be played, to which a trifling admission fee would be charged. When the game was about to begin he refused, though repeatedly requested so to do, to pay the fee or go out, and he was thereupon taken by the arm by a citizen — one of the assembled guests or patrons— acting in behalf of the boys, though without special authority, and led in the direction of the gate, always with the privilege of paying and staying, and the alternative of not paying and going. Before reaching the gate, he paid the fee, and thereafter stayed and witnessed the game.</p> <p>Held, that the restraint imposed was not total, and did not render it impossible for plaintiff to stay where he was or otherwise control his movements; that, being at all times able to release himself on payment of the fee, for which, if he stayed, he was morally and legally bound, the restraint imposed on him, merely as a means of his ejection, until he elected to pay, was the result of his voluntary persistence in an unlawful act, did not deprive him. of “free egress,” and affords no ground for an action in damages for false imprisonment.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. | 3; Dec. Dig. § 6.*]</p> <p>(Syllabus by the Court.)</p>

Action by the Shreveport Traction Company against J. T. Mulhaupt. Plaintiff hacl judgment, which was reversed by the Court of Appeal, and plaintiff applies for certiorari, or writ of review, to the Court of Appeal.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>Application for mandamus by the State, on relation of the Bank of Franklinton, against the Louisiana State Board of Agriculture and Immigration. Judgment for respondent, and relator appeals.</p>

Action by J. E. Lindner against Joseph Pompei and wife. Judgment for plaintiff. Rule to show cause against Delia Pompei and Alfred Ringe for violation of injunction obtained in the original suit. Judgment for plaintiff, and, on execution against Ringe for costs in the contempt proceedings, he applies for certiorari and prohibition.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>Action by the Ronaldson & Puckett Company, Limited, against Margaret C. Bynum. Judgment for plaintiff, and defendant appeals.</p>

D. Pace, Judge. Julius T. Long was convicted of violating an ordinance of the town of Winnfield, compelling every able-bodied man to work on the streets for not over three days during each quarter of the year or pay $1 for each quarter, and he appeals.

Action by H. H. Filhiol against Inez Schmidt. E. T. Lamkin, tutor, intervened. Judgment dismissing the intervention, and intervener applies for writ of mandamus to compel the granting of suspensive appeals and for a writ of prohibition.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Harney Félix Brunot, Judge.</p> <p>Sam Chance was convicted of an assault with an intent to commit rape, and he appeals.</p>

<p>.Assault and Batteby (§ 40*) — Cxvn, Actions — Damages.</p> <p>Where defendant sought out plaintiff with the deliberate intention of assaulting him, and did brutally assault him, and as a result thereof plaintiff limped for some 30 days, and his ear, which was permanently displaced, remained black and blue a long time, he was entitled to 8500 damages, notwithstanding the mitigating circumstance that plaintiff during the difficulty called defendant a liar.</p> <p>[Ed. Note. — Por other cases, see Assault and Battery, Cent. Dig. § 55; Dee. Dig. § 40.*]</p>

<p>1. Criminal Law (§§ 180, 200*) — Former Jeopardy — Distinct Offenses.</p> <p>The offense of “wilfully shooting cat,” denounced by section 792 of the Revised Statutes of 1870, and the offense of shooting with a dangerous weapon with intent to murder, denounced' by section 791, are separate and distinct, subject to different possible penalties, and triable before different tribunals, and cannot serve as the basis of a plea of former jeopardy, where on the form'er trial the jury was discharged from giving a verdict. ■ Rev. St. § 1055.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 328, 392; Dec. Dig. §§ ISO, 200.*]</p> <p>2. Criminal Law (§ 1090*) — Appeal — Bill op Exceptions — Necessity.</p> <p>A motion for a new trial cannot be made to serve the purpose of a bill of exception to the charge of the court.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2804; Dec. Dig. § 1090.*]</p> <p>(Syllabus by the Court.)</p>

<p>Exemptions (§ 148*) — Evidence—Bueden of Proof.</p> <p>The laws of the state in respect to homestead rights and things exempt from seizure are exceptional in character.. Parties who claim under them, in their pleadings, and in their proof, must bring themselves within their provisions, expressly and not by implication.</p> <p>[Ed. Note. — For other cases, see Exemptions, Dec. Dig. § 148.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by Octave J. Villere against the New Orleans Pure Milk Company, Limited. Judgment for defendant, and plaintiff appeals.'</p>

<p>Appeal from Tenth Judicial District Court, Parish of Tensas; John StirlingBoatner, Judge.</p> <p>Action by Jennie K. Bass against Michael Kullman. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>Suit by J. W. Gooden and others against the Police Jury of Lincoln Parish and others. Judgment for plaintiffs, and defendants appeal.</p>

Landry; Edward Taylor Lewis, Judge. Action by Delphine Fontenot, for herself and minor children, against the Colorado Southern, New Orleans & Pacific Railroad Company and others. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by 6. Lehman, Jr., against the Athletic Park Amusement .Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Homicide (§ 190*) — Uncommunicated-Threats — Admissibility.</p> <p>In a prosecution for manslaughter, uncom-munieated threats, made by the deceased against the accused shortly before the homicide, are admissible in evidence as tending to show who was the aggressor in the fatal encounter and as-supporting the plea of self-defense.</p> <p>[Ed. Note. — For other cases, see Homicide,. Cent. Dig. § 405; Dec. Dig. § 190.*]</p> <p>Breaux, C. J., and Nicholls, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Moetgages (§ 32*) — Deed Absolute in Form —Restoration oj? Title.</p> <p>It is axiomatic in the law and jurisprudence of this state that where the owner of land, uninfluenced by fraud or error, vests the title thereto in another, such title can be devest-ed, as simulated, only upon the production of a counter letter, or upon the basis of answers to interrogatories propounded to the apparent owner, and a fortiori does this rule apply in a case where the property has been sold to a third person, purchasing in good faith.</p> <p>[Ed. Note. — For other eases, see Mortgages, Dec. Dig. § 32.*]</p> <p>(Syllabus by the Court.)</p>

Ba-deaux, Judge ad hoe. Action by William H. Junk and others against the Golden Ranch Sugar & Cattle Company, Limited, and others. Judgment for plaintiffs, and defendants appeal.

In the matter of the Succession of Catherine Gabisso, widow of Louis Frigerio, Jr. Andrew Murphy filed an opposition. Judgment for the succession, and opponent appeals.

<p>1. Pleading- (§ 228*) — Exceptions—No Cause op Action.</p> <p>An exception of “no cause of action” is separate and distinct from an exception of “vagueness and insufficiency of allegations.” An exception of “no cause of action,” if sustained, will bring about a dismissal of the suit; while an exception of “vagueness and insufficiency of allegation” will, if sustained, result in an order to the plaintiff to amend his pleadings and mate them more definite.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 228.*]</p> <p>2. Pleading (§ 228*) — Exception—No Cause op Action.</p> <p>On an exception of no cause of action, the allegations of the petition are to be taken as true. If, on the assumption that on trial of the case plaintiff has established all the allegations of his petition by proof, an application of the law invoked by him to those facts would entitle him to a judgment, it cannot be said that his petition discloses “no cause of action,” though it be faulty for vagueness.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 586, 590; Dec. Dig. § 228.*] '</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. Motion in the matter of the Succession of Patrick M. Westfeldt, deceased, by his widow, praying that Thomas Connell, clerk of the civil district court, ex officio collector of the inheritance tax, show cause why he should not receive a certain sum in full settlement of the inheritance tax due from the estate of Patrick M. Westfeldt, deceased. Prom the judgment fixing tlie amount of tfie tax,

<p>1. Taxation (§ 709*) — Tax Sales — Redemp-tio n — Tendee—Amount.</p> <p>A tender of taxes and costs, without the penalties and surplus, which had been paid by the purchaser at a tax sale, was insufficient to effect a redemption.</p> <p>[Ed. Note. — Por other cases, see Taxation, Cent. Dig. § 1434; Dec. Dig. § 709.*]</p> <p>2. Taxation (§ 70S*) — Tax Sales — Assessments — Defenses—Peesobiption.</p> <p>An action to redeem from a tax sale made in 1881, based on the objection that the assessment under which the sale was made was in the name of “W. H. Puller,” instead of “A. J. Puller,” the rightful owner, was barred by the three-year limitation.</p> <p>[Ed. Note. — Por other cases, see Taxation, Dec. Dig. § 70S.*]</p>

<p>1. Logs and Logging (§ 3*) — Contract—Validity— CERTAINTY — 1 ‘MERCHANTABLE. * ’</p> <p>A contract for the sale of all merchantable pine timber, measuring 10 inches in diameter and over, on a described tract of land, was not void for uncertainty, the word “merchantable” being used to describe the grade or quality of the thing sold, and determinable by experts with approximate certainty.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3 ;* Contracts, Cent. Dig. § 890.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4489, 4490.]</p> <p>2. Logs and Logging (§ 3*) — Sale of Timber —Contract — Certainty — Price — Mutuality of Obligation.</p> <p>A contract for the sale of standing timber on certain described land for $1 per thousand feet, to be paid in cash, or vendor’s option of equivalent value, by the vendees on the 15th day of the succeeding month for all timber cut during any month, imposed an obligation on the vendees to cut, haul, and scale the timber, and was therefore not objectionable for uncertainty as to the price.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12: Dec. Dig. § 3 ;* Contracts, Cent. Dig. § 890.J</p> <p>3. Logs and Logging (§ 3s’) — Standing Timber — Sale—Contract—“Cash or Vendor’s Option of Equivalent Value.”</p> <p>Where a contract for the sale of standing timber required payment in cash “or vendor’s option of equivalent value,” such clause should be construed to mean only that payment should be made in cash unless vendor chose to accept something other than cash of equivalent value if offered him by the vendee, and did not render the contract uncertain as to the price, as giving the vendor the right to demand something other than money in satisfaction of the debt, and, as so construed, the clause was mere surplusage.</p> <p>[Ed. Note". — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. §3;* Contracts, Cent. Dig. § 890.]</p> <p>4. Logs and Logging (§ 3*) — Sale of Timber-Specific Performance.</p> <p>The fact that specific performance of a contract for the sale of standing timber could not be enforced did not deprive the contract of its obligatory character.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>5. Logs and Logging (§ 3*) — Standing Timber — Contract of Sale — Statutes.</p> <p>Rev. Civ. Code, art. 2458, providing that when produce or other objects are not sold in a lump, but by measure, the sale is not perfect, inasmuch as the thing so sold is at the risk of the seller until measured, but the buyer may require either the delivery of them or damages, if there be any, in case of nonexecution of the contract, is applicable to a sale of standing timber, the title to -which does not pass until it has been cut.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>6. Logs and Logging (§ 3*) — Standing Timber-Contract of Sale.</p> <p>A contract of sale of standing timber of certain dimensions on described land for a specified price per thousand feet, to be paid on the 15th day of the month succeeding that in which the timber was cut, constituted a valid sale of the timber, and, being recorded, was valid as against third persons.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>7. Property (§ 4*) — Standing Timber — Sale —Effect.</p> <p>Trees continue to be real estate, after they are sold apart from the land, until severance.</p> <p>[Ed. Note. — For other eases, see Property, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>8. Injunction (§ 186*) — Dissolution—Counsel Fees.</p> <p>Defendant is not entitled to counsel fees for dissolving an injunction, where the services of his counsel were rendered exclusively on the trial of the case on the merits.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. § 403; Dec. Dig. § 186.*]</p>

Chrétien, Judge. Eugene Bertrand and Odette Duval having been arrested for concubinage, they were released upon bonds signed by Joseph Bonomo as surety. The bonds having been thereafter forfeited for failure of the principals to appear, Bonomo moved to set aside such judgment of forfeiture, which motion was denied, and he appeals.

<p>Appeal from Fourth Judicial District Court, Parish of Union; Robert Brooks Daw-kins, Judge.</p> <p>Action by William Riley against the Union Sawmill Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of -Orleans; George Henry Théard, Judge.</p> <p>Action by Marie L. Sieward against Justin F. Denechaud. Judgment for defendant, and plaintiff appeals.</p>

<p>Statutes (§ 5*) — :Mandamus (§ 77*) — Legislation Germane to Governor’s Call-Grounds oe Relief — Public Officers.</p> <p>.The subjects legislated upon in Act No. 17, p. 19, of 1907 (Extra Session), are -germane to the objects of legislation designated (in Nos. 1, 2, and 4) of the Governor’s call, and it being the plain duty, under that act, of the parish treasurers, acting as treasurers of the school boards, to turn over ,to their successors, the parish superintendents of public schools, thereby made treasurers of such boards, the books, papers, and vouchers pertaining to such offices, mandamus will lie to compel the performance of that duty.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 4; Dec. Dig. § 5 ;* Mandamus, Cent. Dig. § 165; Dec. Dig. § 77.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Petitoby Action.</p> <p>The succession was accepted by plaintiff under the benefit of inventory. The de cujus died testate. His heir and universal legatee under the will seeks to recover the property as an heir at law, ignoring the will, and thereby avoiding all accounting to an adjudieatee of property of the succession, who was an innocent third person.</p> <p>2. Executoes and Administkatoes (§ 380*)— Sale of Succession Property — Setting Aside — Tendee of Peice.</p> <p>If the heir he entitled to the property, she cannot recover it without first tendering the amount.</p> <p>LEd. Note. — For other cases, see Executors .and Administrators, Cent. Dig. § 1550%; Dec. Dig. § 380.*]</p> <p>3. Necessity of Tendee.</p> <p>The property having been sold to pay debts, a return of the price is an essential before recovery of the property sold (if the sale be null). Sharkey v. Bankston, 30 La. Ann. 891.</p> <p>4. Executoes and Administrators (§ 383*)— Sale of Succession Peopeety — Collateral Attack.</p> <p>The questions involved will have to be raised in a direct action, and will not be (under repeated decisions) considered in collateral proceedings, in which all that was done in the settlement of the succession is treated as the ■merest nullity, as if nonexisting.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1554; Dec. Dig. § 383.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTRACTS (§ 22*) — Acceptance—Separate Instrument.</p> <p>Under the express provisions of Rev. Civ. Code, art. 1804, an acceptance of a proposal to contract need not be by the same act as the proposal.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 22.*]</p> <p>2. Contracts (§ 19*) — Acceptance — Time-Death oe Party Proposing.</p> <p>Where a person, after signing a proposal, died before an acceptance, there was no contract, under Rev. Civ. Code, art. 1810, providing that, if a party making an offer die before it is accepted, his representatives are not bound.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 58; Dec. Dig. § 19.*]</p> <p>8. Contracts (§ 19*) — Ofeer—Withdraw al— “Change of Intention.”</p> <p>Where, after a person had made a written offer, he received no actual notice of an acceptance until after he had made a contract involving the subject-matter with another, the acceptance came too late to bind him, he having already signified his change of intention within Rev. Civ. Code, art. 1801, providing that a party proposing shall be presumed to continue in the intention which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposal is made, he does not signify the change of his-intention.</p> <p>[Ed. Note. — For other cases, see Contracts, Dee. Dig. § 19.*]</p> <p>4. Logs and Logging (§ 3*) — Ofeer to Sell Timber — Acceptance — Time — Statutory Provisions.</p> <p>Rev. Civ. Code, art. 1802, provides that a party proposing to contract is bound by his proposal, and cannot signify a dissent if the proposal be made in terms which evince a design to give the other party the right of concluding the contract by his assent, and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow. Meld, that written offers to sell timber by the owners executed out of the presence of the vendees or of any person having authority to accept for them were intended to be submitted to the vendees as propositions of contract for their acceptance, and, no time being fixed for acceptance, no more time was intended to be allowed to the vendees than would be required for submission to them for acceptance or rejection, and they could not hold the offers for months for purposes of speculation before accepting or rejecting.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p>

<p>Sales (§ 359*) — Action lob Pbice — Evidence. This case involves only questions of fact.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1056; Dec. Dig. § 359.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Black-man, Judge.</p> <p>Action by Peter L. Rickman against the Lee Lumber Company, Limited. Judgment for plaintiff. Defendant appeals.</p>

<p>1. Jttd Ghent (§ 253*) — Conformity to Plead - INGS.</p> <p>Where, in a suit to recover compensation for services rendered under an alleged contract, ■plaintiff having offered evidence to establish the contract alleged, and defendant having offered ■evidence to prove that, under the alleged contract as interpreted by it, the compensation was fixed at a lower rate than that claimed, plaintiff acquiesces in such interpretation, and proves that otherwise the alleged contract was fully executed by him, he is entitled, under his prayer for “general relief,” to judgment for compensation on the basis established by such interpretation and acquiescence, and will not be driven to another suit for the recovery of the same.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 2o3.*]</p> <p>2. Cobporations (§ 406*) — Contracts op General Manager — Ratification.</p> <p>Where the business of a corporation, composed of a few persons, is loosely conducted, mainly by an officer called “general manager,” who is urged by the other members to make contracts and incur obligations on behalf of the corporation, pursuant to a policy approved by 'them, and' not ultra vires of the corporation, and, such an obligation having been incurred, and the consideration therefor having been accepted by the board of directors, composed of practically all the members of the corporation, and having inured to its benefit, the corporation will be considered bound therefor, originally and also by ratification.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1611-1614; Dec. Dig. § 406.*]</p> <p>(Syllabus by the Court.)</p>

Action by A. H. Humphrey against H. K, Midkiff. Judgment for plaintiff, and the Oil City Iron Works, Limited, was garnished. Judgment for plaintiff against the garnishee-was affirmed by the Court of Appeal, and the Oil' City Iron Works, Limited, applied for certiorari or writ of review.

<p>1. Vendor and Purchaser (§ 44*) — Rescission oe Sale — Lesion Beyond Moiety.</p> <p>This action is to rescind a sale “for lesion beyond moiety.” The district court set aside the saie. Held error.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 44.*)</p> <p>2. Vendor and Purchaser (§ 44*) — Rescission oe Sale — Burden oe Proof.</p> <p>The judge’s estimate of the value of the property, under his appreciation of the evidence, was toó high. The burden was on the vendor to prove lesion beyond moiety by evidence peculiarly strong and convincing, and of such a nature as to exclude speculation and conjecture.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dee. Dig. § 44.*]</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of Mrs. H. L. Watt. From a judgment rejecting the demand of certain heirs, and ordering that a certain sum left on deposit be distributed among other heirs, John Watt and others appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by the Allopathic State Board of Medical Examiners against Leon Williams. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.</p> <p>Action by Sidney J. Gilly against Abraham I. Hirsh. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; James Pemberton Madison, Judge.</p> <p>Mandamus by the State, on relation» of Emanuel C. Drew, against W. A. Myatt, Clerk and Ex Officio Recorder, and others. Judgment for defendants, and relator appeals.</p>

Action between W. L. Key and R. F. McCall and others. From a judgment for the former, the latter appeals. On motion to dismiss.

<p>Cbiminai, Law (§ 1167*) — Appeal—Haemless Error — Amendment on Indictment.</p> <p>■ Defendant, having been indicted for breaking and entering a store in the nighttime, with intent to steal, and for the larceny, on the same occasion, and from the same store, of a number of articles, described in 22 items, was found guilty as charged.</p> <p>Held, that an amendment to the indictment, whereby one of the items, reading “6 pairs of house, each paid valued at 8 cents,”, was made to read “6 pairs of hose, each pair valued at 8 cents,” becomes immaterial to the merits of the case, in the sense that defendant has sustained no substantial prejudice thereby, in view of the fact that it added nothing to the gravity of the offenses with which he was otherwise charged, that he has been convicted of the burglary and of the larceny of the other articles described in the indictment, and that his conviction upon the amended item, in the charge of larceny, carries with it no other or greater penalty than that for which he is otherwise liable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3104; Dec. Dig. § 1167.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; Hugh Tullis, Judge ad hoc.</p> <p>Action by the Jefferson Sawmill Company, Limited, against the Iowa & Louisiana Land Company, Limited. Judgment for plaintiff, and defendant appeals. On rehearing. Original opinion withdrawn.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by W. J. Thomason against the Kansas City Southern Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Divorce (§ 240*) — Auimony—Amount.</p> <p>The wife obtained judgment of divorce awarding her the custody of four minor children, issue of the marriage, and, she and they being without means, alimony at the rate of §40' per month is not out of proportion to the wants-of the minors or to the circumstances of the father, when it appears that the latter is employed at an annual salary of $1,800 and board, for which he works about six months in the year, and that he has no one else dependent upon him for support.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 678; Dec. Dig. § 240.*]</p> <p>(Syllabus by the Court.!</p>

<p>. Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip Sidney Pugh, Judge.</p> <p>Armas Wood was convicted of murder, and he appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by the W. F. Taylor Company, Limited, against A. N. Sample and others. From a judgment for plaintiff, defendant O. H. P. Sample appeals..</p>

Apipeal from Fifteenth. Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge. Action hy H. C. Gill and others against the City of Lake Charles and others. Judgment for plaintiffs, and defendants appeal.

<p>1. VENDOR AND PURCHASER (§ 21*) — PROMISE to Sell — 'Validity of Agreement.</p> <p>A written promise of sale was signed to the defendant, promisee. It contained all the elements of a sale, save to the defendant was given time within which to comply with the terms and conditions of the agreement, and then the deed was to he signed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 21.*]</p> <p>2. Payments on Price.</p> <p>The plaintiff accepted amounts paid on the price.</p> <p>3. Vendor and Purchaser (§ 214*) — Contract of Sale — Transfer by Vendee.</p> <p>The promisee acquired a right to the property, subject to the condition expressed, which he could sell.</p> <p>[Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 442, 443; Dee. Dig. § 214.*]</p> <p>4. Vendor and Purchaser (§ 214*) — Contract-Transfer by Vendee —Acquiescence.</p> <p>The plaintiff consented to the conveyance made by the promisee to the defendant.</p> <p>[Ed. Note — For other cases, see Vendor and Purchaser, Dee. Dig. § 214.*]</p> <p>5. Vendor and Purchaser (§ 214*) — Contract — Conditions — Transfer — Special Skill in Vendee.</p> <p>The personal grounds urged as precluding the promisee from selling are not sustained by the facts, and are not supported by the terms of the Code; the alleged special skill expected by the plaintiff finds no support in law or fact.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 214.*]</p> <p>6. Partnership (§ 53*) — Evidence to Establish.</p> <p>The contemplated partnership was not formed. It never had any right to any amount paid by defendant on the written agreement referred to as the “Toomer contract.”</p> <p>[Ed. Note. — For other cases, see Partnership, Dec. Dig. § 53.*]</p> <p>7. Amount of Damages.</p> <p>The question of damages raised not considered in this case.</p> <p>(Syllabus by the Court.)</p>

<p>J udgment (§ 570") — Res Judicata.</p> <p>Where the judgment dismissing an action was rendered pursuant to a compromise, but plaintiff did not understand that he was compromising liis claim against one oí the defendants, while the other parties understood differently, and such defendant paid to plaintiff a part of the money to be paid under the compromise, the judgment, until set aside in a proper action, was res judicata as between plaintiff and such defendant.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1028-1045; Dec. Dig. § 570.*]</p>

<p>1. Absentees (§ 5*) — Curator Ad Hoc.</p> <p>In partition proceedings, the curator ad hoc has the authority of a general curator. I-Ie represents the absentee if alive, and represents the interest of the absentee in the property if he has departed this life.</p> <p>[Ed. Note. — For other cases, see Absentees, Cent. Dig. §§ 5, 7; Dec. Dig. § 5.*]</p> <p>2. Partition (§ 10*) — Nature oe Proceedings.</p> <p>The proceedings are in rem.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. § 33; Dec. Dig. § 10.*]</p> <p>3. Absentees (§§ 2, 7*) — Meaning cot Term— Partition — Jurisdiction.</p> <p>The court had jurisdiction. The proceedings are not null and void. The purchasers were innocent third persons.</p> <p>[Ed. Note. — Por other cases, see Absentees, Cent. Dig. §§ 1, 14; Dec. Dig. §'§ 2, 7.*]</p> <p>4. Corporations (§ 122*) — Judicial Sale of Stock — Effect — Liability of Corporation.</p> <p>The company in which the de cujus had stock was not responsible for the stock, and could not be sued for its delivery, as it was not in possession of the stock.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. § 535; Dec. Dig. § 122.*]</p> <p>Land, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>Action by Z. T. Kent against the Davis Bros. Lumber Company, Limited, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Attorney and Client (§ 44*) — Contracts with Client — Validity — Misconduct oe Attokney — Suspension.</p> <p>There was a want of sufficient consideration in a transaction, which resulted in the transfer of property.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Dec. Dig. § 44.*]</p> <p>2. Divorce (§ 56*) — Evidence—Collusion.</p> <p>The evidence produced assisted in establishing facts of a date preceding the suit, and facilitated the wife in obtaining her divorce.</p> <p>Client and counsel should decline to accept the offer of the opposite party to the suit of evi-,deuce to prove his or her matrimonial offense.</p> <p>The witnesses to prove the offense were procured by the plaintiff’s husband.</p> <p>As relates to material points in course of proceedings for divorce, each of the parties to the ■suit should decline to enter into an agreement facilitating the proof of the offense. The main issues should be left to be made out by the respective parties.</p> <p>[Ed. Note. — Eor other cases, see Divorce, Dec. Dig. § 66.*]</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Mandamus by the Louisiana Railway & Navigation Company against the Mayor and Councilmen of the Town of Coushatta and others; Judgment for defendants, and plaintiff appeals.

<p>1. Criminai, Law (§ 720*) — Argument oi? Counsel.</p> <p>The remarks of the district attorney to the jury complained of by the accused were within the limits of legitimate argument.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 720.*]</p> <p>2. Criminal Law (§ 457*) — Opinion Evidence —Intoxication.</p> <p>Testimony given by the accused in his own behalf that at the time he had made certain statements “he was drunk or under the influence of dope” can be disproved by the testimony of “nonexpert” witnesses.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1046; Dec. Dig. § 457.*]</p> <p>3. Criminal Law (§ 829*) — Requested Instruction Covered by Instructions Given.</p> <p>The refusal of the district judge to give a certain special charge, which he "was reguested to give to the jury on the ground that “several paragraphs of that charge were contrary to law” and because the general charge covered the law of the case, was not reversible error.</p> <p>[Ed. Note; — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]</p> <p>4. Criminal Law (§§ 913, 972*) — New Trial —Newly Discovered Evidence — Motion in Arrest — Grounds.</p> <p>The application of the accused for a new trial was not well grounded. The defendant was indicted under section 832, Rev. St., as amended by Act No. 72, p. 95, of the Acts of 1898,-charging him with receiving and having money that had been feloniously taken, stolen, embezzled, or by false pretenses obtained from any other person, knowing the same to have been stolen. The reason assigned for a new trial was that the person from whom the evidence showed defendant had received the money had been himself tried on the same charge as the defendant before the district court for Calcasieu and had been acquitted, and therefore defendant should by reason of that fact be also acquitted. The court held that the acquittal of that party did not affect the case. The parties were tried before different juries. Case differentiated from State v. Antoine, 42 La. Ann. 945, 8 South. 529.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2423; Dec. Dig. §§ 913, 972.*]</p> <p>(Syllabus by the Court.)</p>