Volume 123 — Louisiana Reports

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by H. F. Lewis & Co., Limited, against Richard Brock. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action between Pauline Josephson and Caroline Powers and Ira Powers. From the judgment, Caroline Powers appeals.</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; James Pemberton Madison, Judge.</p> <p>Action by Mary E. Ball against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Error (§ 773*) — Dismissal — Abandonment of Appeal.</p> <p>In proceedings under the judgment of the district court in this matter appellant became the adjudicatee of certain property at public auction by the sheriff. He failed- to comply with his bid, though ordered so to do on a rule taken against him for. that purpose. Thereafter the sheriff was ordered to sell the property á. la folie enchére, at appellant’s risk. He appealed suspensively to the Supreme Court from that order, and executed an appeal bond. The transcript of appeal was filed in court in due time, and the appeal was fixed for hearing in this court. On that day the appellee moved to have the appeal struck from the record, or that he might be granted such relief as the. court might hold he was entitled to under the circumstances, on the ground that the appeal had been dismissed in the district court for the reason of the failure of the surety on the bond of appeal to qualify as being solvent, and appellant acquiesced in the dismissal. Appellant had made no appearance and filed no brief in the matter of the appeal. The appeal is considered by the court as abandoned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. Petitory action by the Quaker Realty Company against Louis Stephen Bradbury and Charles A. Salzer. Judgment for plaintiff for possession, with judgment for defendants for the value of certain improvements, and plaintiff appeals.

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; Samuel Jami-son Henry, Judge.</p> <p>Action by John W. Carnes against the Atkins Bros. Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas O. W. Ellis, Judge.</p> <p>' Action by Mary Lozano Trenchard against the New Orleans Railway & Light Company and Robert Powell. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Dominick Claverie against Anthony Fabacher. Judgment for defendant, and plaintiff appeals.</p>

<p>Sales (§ 174*) — Actions foe Nonperformance of Contract — Action by Buyer in Default — Damages.</p> <p>Where a buyer of lumber failed to pay for it as provided by the contract, and the seller stopped delivering after endeavoring in vain to collect the overdue payments, the buyer could not recover damages for the seller’s refusal to further perform, since, under Civ. Code, art. 1913, a party cannot claim damages for the nonperformance of a contract as to which he himself is in default.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 434; Dec. Dig. § 174.*]</p>

W. Ellis, Judge. Action by George Scheuermann against the Monarch Fruit Company. The First National Bank of Fresno intervenes, and the Morgan’s Louisiana & Texas Railroad & Steamship Company was garnished. Judgment for plaintiff, and intervener appeals.

Paul, Judge. In the matter of the liquidation of the Colonial Bank & Trust Company. Application of Meyer S. Dreifus to have receivers appointed for such company. From an order appointing two receivers, defendant and the liquidators appeal.

Paul, Judge. Contest by Dauphin and Augustin Frigalo of the right of the State to collect a 5 per cent, inheritance tax upon an inheritance of less than $10,000 falling to them from their adoptive mother, Catherine Frigalo. From the judgment, Thomas Connell, ex officio collector of inheritance taxes, appeals.

<p>1. Drains (§ 75*) — Power to Order and Direct Elections — Who has.</p> <p>Under article 281 of the Constitution, as amended, the authority to determine whether the power to order and direct the conduct of the special drainage tax elections contemplated by the article shall be vested in the police juries or the boards of commissioners of drainage districts is left with the General Assembly.</p> <p>[Ed. Note. — Por other cases, see Drains, Cent. Dig. § 72; Dec. Dig. § 75.*]</p> <p>2. Drains (§ 67*) — Power to Order and Direct Elections — Who has.</p> <p>The power to order and direct the conduct of the special drainage tax elections, contemplated by article 281 of the Constitution, as amended, is vested by Act No. 114, p. 178, of 1900, in the police juries, and the provisions of that act upon that subject have not been repealed by Acts Nos. 145, 159, pp. 248, 293, of 1902, or No. 135, p. 225, of 1906.</p> <p>[Ed. Note. — Por other cases, see Drains, Cent. Dig. § 73; Dec. Dig. § 67.*]</p> <p>3. Drains (§ 67*) — Proceedings for Establishment-Validation.</p> <p>The provision, in the amendment to article-281 of the Constitution proposed by Act No. 300, p. 450, of 1908, and adopted in November,. 1908, validating “contributions and acreage taxes heretofore authorized by a vote of a majority, in number and amount,.of the property tax payers, qualified to vote * * * in drainage districts,” is a re-enactment of the provision contained in the amendment proposed by Act No. 122, p. 207, of 1906, and adopted in-November, 1906. It finds no application in a case in which it appears that a majority in amount of the qualified electors referred to did not, and does not appear that a majority in number did, participate in the election.</p> <p>[Ed. Note. — Por other cases, see Drains, Cent. Dig. § 73; Dec. Dig. §'67.*]</p> <p>4. Drains (§ 19*) — Indebtedness—Right to-Incur.</p> <p>Article 281 of the Constitution authorizes drainage districts, upon the vote of the qualified taxpayers, to incur debt and issue bonds therefor, upon the basis of an ad valorem tax (to which all taxable property is liable), not exceed-' ing 5 mills on the dollar, to the extent of one-tenth of the assessed value of the property in such districts, respectively. The article also authorizes such districts, on the same condition, to incur debt and issue bonds therefor, upon the basis of a specific tax on land, not exceeding 25 cents per acre, up to such amount as may be paid from the proceeds of the tax levied, the limit of time for which the taxes may be levied and during which the bonds may run being fixed in both cases at 40 years.</p> <p>Held,: A debt, which, by reason of excess in amount, cannot be.incurred upon either of the bases thus provided, cannot be incurred upon the theory that the two bases may be combined for its support, so that the debtors of the ad valorem and of the specific taxes, respectively, will be bound, each class, for the whole; and a person who has agreed to buy bonds, to be issued by a board of commissioners of a drainage district, cannot be held to his agreement upon the basis of a tender of bonds predicated on such theory.</p> <p>[Ed. Note. — Por other cases, see Drains, Gent. Dig. § 13; Dec. Dig. § 19.*]</p> <p>On Rehearing.</p> <p>5. Amicus Curl® (§ 3*) — Rehearing—Right' to.</p> <p>An amicus curise has no standing in court to apply for a rehearing.</p> <p>[Ed. Note. — Por other cases, see Amicus Curiae, Cent. Dig. § 5; Dec. Dig. § 3.*]</p> <p>6. Appeal and Error (§ 831*) — Rehearing— Right to Grant — Expiration of Time.</p> <p>Conceding that the Supreme Court can ex proprio motu grant a rehearing, it cannot be exercised after the legal delays for a rehearing have expired.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3212; Dec. Dig. § 831.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Sidney Gardner and others were indicted for burglary, and Gardner was convicted, and appeals.</p>

<p>Appeal from Civil District Court, Parish .of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by W. L. Nelson & Co. against Adolphe Rocquet & Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by George H. O’Niell against Samuel K. Guyther. Judgment for plaintiff, and defendant appeals.</p>

<p>Prescription — Prescription oe Ten Years —Tacking Possessions.</p> <p>Where, in the case of a sale, made in good faith by a vendor in actual possession, - of a small tract of land, which, with a larger tract, owned by the same person, is surrounded by' a fence, the vendor, after the sale, fails- to segregate the tract sold, and fails to keep his stock from grazing on it by additional fencing, but does not pretend to hold possession, his possession, such as described, being subject to the pleasure of the owner, will be regarded as that of the owner, and, as such, may be united -with his previous actual possession and the ownerls subsequent civil possession for the purposes, of the prescription of 10 years, aequirendi causa,.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 218; Dec. Dig. § 43.*].</p> <p>(Syllabus by the Court.)</p>

<p>1. Jury (§ 14*) — Right to Jury Trial — Action yor Injunction.</p> <p>Plaintiff had a right to a trial by jury. [Ed. Note. — For other oases, see Jury, Cent. Dig. § 77; Dec. Dig. § 14.*]</p> <p>2. Mandamus (§ 31*) — When Granted — Grounds.</p> <p>The writ will not issue, as the'answer of respondent shows that the issues will be heard and determined at the earliest possible opportunity.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 74; Dec. Dig. § 31.*]</p> <p>(Syllabus by the' Court.)</p>

<p>Master and Servant (§ 283*) — Injuries to Servant — Assumption op Risk.</p> <p>A servant who selects an improper and dangerous route assumes the risk of resulting injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 702; Dec. Dig. § 233.*]</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. In the matter of the successioii of Anna Staub, deceased, involving the question whether a bequest to the City Insane Asylum of New Orleans had lapsed. From a decree adjudging that the legacy had lapsed, the city appeals.

<p>Action to Annul Tax Voted eor Railroad —As Election Contest — Limitations—Prescription.</p> <p>A suit to annul a tax levied in favor of a railroad, pursuant to an election held by the police jury for such purpose, which required the court to inquire into the election, and to .ascertain whether or not the tax received the vote of the majority of the qualified voters, thereby involving an inquiry into the question •who were the qualified voters, and how many votes were cast for the tax, was a suit contesting an election, even though the proclamation made by the police jury of the result of the election itself showed that the majority which the tax received was only of those voting at the election, and not of the total number of those qualified to vote, and, not being brought within three months after the proclamation, as required by Acts 1892, p. 140, No. 106, was barred.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.*]</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by Albert H. Thompson against the Southern Sawmill Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Criminal Law (§ 736*) — Trial — Reception oe Evidence — Preliminary Prooe— Questions eor Court.</p> <p>It is for the trial judge, and not the jury, to determine, on a murder trial, whether an overt act of hostility has been sufficiently proved to open the door for evidence of prior difficulties, previous threats, and dangerous character.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1219; Dec. Dig. § 736.*]</p> <p>2. Homicide (§ 331*) — Appeal—Review—Discretion oe Court — Exclusion oe Evidence.</p> <p>In determining this question, the judge may consider the evidence pro and con, and his ruling will not be disturbed except where the evidence to the contrary is clear and convincing. This is the settled jurisprudence of this court.</p> <p>[Ed. Note. — Eor other eases, see Homicide, ■Cent. Dig. § 698; Dec. Dig. § 331.*]</p> <p>.3. Criminal Law (§ 670*) — Reception oe Evidence-Preliminary Prooe.</p> <p>While evidence of prior threats is admissible, in a proper case, for the restricted purpose of showing that the deceased probably brought on the difficulty, such evidence is not admissible under a general offer to prove communicated threats and dangerous character, based on the theory that an overt act has already been proven.</p> <p>[Ed. Note. — For other cases, see. Criminal Law, Dec. Dig. § 670.*]</p> <p>(Syllabus by the Court.)</p>

Action by Stella Crosley Eby and her husband against L. D. McLain and Kate L. Crosley, individually and as natural tutrix. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Suit by the Jeanerette Rice & Milling Company against John M. Durocher. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Master and Servant (§ 228*) — Injuries to Servant — Violation oe Statute by Master — Contributory Negligence.</p> <p>Whilst the violation by the master of the provisions of a statute regulating the employment of his servants is negligence per se, and actionable, if injuries are sustained by the servants in consequence thereof, such provisions are not to be so construed as to abrogate the ordinary rules relating to contributory negligence, which is available as a defense, notwithstanding the statute, unless the latter is so worded as to leave no doubt that such defense is to be excluded.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 671; Dec. Dig. § 228.*]</p> <p>2. Master and Servant (§ 204*) — Injuries to Servant — Employment oe Children— Violation oe Statute by Master — Contributory Negligence.</p> <p>Where the foreman of a factory employs a boy, in his twelfth year, and assigns him to work in a perfectly safe position, instructing him to stay there, and not to go near or meddle with any of the machinery, the owner of the factory will not be liable in damages, notwithstanding that the employment of boys of that age in factories is prohibited under penalty of fine and imprisonment, for injuries received by the boy whilst unnecessarily, and in violation of his instructions, subjecting himself to an obvious risk, the danger of which he was capable of appreciating. And, a fortiori, is this true where the boy was employed in the belief, superinduced by his own representations and his appearance, and by the acquiescence of his family, that he was over the age prescribed by the statute.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 204.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. List eor Taxation.</p> <p>Due return had been made by the tax assessor. It was sworn to by the owner, an'd accepted as correct by the assessor and by the board of reviewers.</p> <p>2. Assessment Increased.</p> <p>An order was issued to the assessor, in accordance with the direction of the state board of equalization, to increase the amount of the assessment.</p> <p>3. Classification of Lands.</p> <p>Upon this order the assessor undertook to change plaintiff’s assessment by taking lands assessed in classes B and C and placing them in class A. The land in each class had a separate value.</p> <p>4. Lands of Different Value.</p> <p>The assessor did not examine the land before making the change and satisfy himself that, in thus assessing them, classes B and C were of equal value with the land in class A. In fact, they were not.</p> <p>5. Assessment of Lands.</p> <p>The testimony shows that the lands were properly assessed at the first. There was no possibility of assessing them in the manner attempted when the change was made.</p> <p>6,. Taxation (§ 450*) — Equalization of Assessments — Increase of Valuation.</p> <p>In order to comply with the statute, it is necessary to preserve the principle of separate rate for each class of property.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 450.*]</p> <p>7. Failure to Appeal.</p> <p>An order of appeal was entered in the name of the hoard of equalization, of which the ■Board did not avail itself.</p> <p>(Syllabus by the Court.)</p>

<p>Collection oe Taxes.</p> <p>The facts and the law applying are similar to those in Natalbany Lumber Co., Limited, v. Same Defendants, 48 South. 879, ante, 174.</p> <p>(Syllabus by the Court.)</p>

I-Ionore Richard was convicted of an illegal sale of intoxicating liquors, and applies for .writs of certiorari and prohibition.

Suit by E. T. Lamkin, tutor ad hoc of the minors, Aloysius Roland Filhiol and Nancy Ruth Filhiol, against the succession of R. M. Filhiol, deceased, and another. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edrington, Judge.</p> <p>Action by Paul Felix against the Kenner Canning & Packing Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.</p> <p>Action by Hans C. Nissen against Margaret Farquhar, his wife. From a judgment for plaintiff, and denying defendant’s prayer in reconvention for a separation, defendant appeals.</p>

<p>Damages (§ 78*) — Liquidation—Sales—Stipulations Fixing Liability eor Breach by Seller.</p> <p>Where, in a contract for .the sale of lumber, it was stipulated that, on failure to fill the orders, the purchaser should buy elsewhere at the cheapest possible prices, and that the seller should refund the difference in the prices, held, that such a stipulation is a law between the parties fixing the measure of damages, and the mode of ascertaining their amount, and that the purchaser, not electing to purchase' lumber to supply certain shortages in delivery, cannot recover loss of profits.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 159; Dec. Dig. § 78.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Alexander H. Levy against the New Orleans Railways & Light Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Lawrence Ladnier against James C. Stewart & Co. and the Otis Elevator Company in solido. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Andrew Jackson Murff, Judge.</p> <p>Action by the State against the Cross Lake Shooting & Fishing Club. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by Louis Kohlman against Clara Cochrane. Judgment for defendant, and plaintiff appeals.</p>

Actions by the Provident Bank & Trust Company against W. L. Saxon and others, and by the Louisiana National Bank against Thomas J. Henderson and others. The actions were consolidated. Judgment for defendants, and plaintiffs appeal.

<p>1. Customs and Usages (§ 14*) — Adding to Terms op Contract.</p> <p>• Where, in a contract of employment, a definite term is agreed on, evidence as to usage in similar cases is irrelevant and inadmissible, since, the contract being lawful, usage cannot be substituted for the will of the parties.</p> <p>[Ed. Note. — Eor other cases, see Customs and Usages, Cent. Dig. § 29; Dec. Dig. § 14.*]</p> <p>2. Customs and Usages (§§ 14, 19*) — Adding to Terms op Contract — Evidence—Supetciency.</p> <p>A theatrical manager having telegraphed to an actor, “Telegraph, here, lowest salary for next season, opening about September first, possible,” and the actor having replied, stating his terms, and the manager having telegraphed again, offering somewhat less than the amount demanded, and adding, “If accepted, consider yourself engaged; answer, here, without fail, to-night,” and the actor having answered, accepting the offer, held, that the engagement was for the season, and that evidence tending to show usage, among theatrical people, whereby there should be read into the contract a stipulation giving to either party the right to terminate the relation resulting therefrom, on giving the other two weeks’ notice, was irrelevant and inadmissible. Held, further, that the evidence (which was admitted, though, as subsequently held, improperly) fails to show any such usage applicable to the case stated.</p> <p>■ [Ed. Note. — Eor other cases, see Customs and Usages, Cent. Dig. § 29; Dec. Dig. §§ 14, 19.*]</p> <p>3. Master and Servant (§ 42*) — Wrongful . Discharge — Other Employment.</p> <p>Where an actor, employed for the season, is discharged without cause before the close of the season, the fact that he may elsewhere earn money during the unexpired term of his contract has no bearing, under the law and jurisprudence of this state, upon his right to recover his salary for such unexpired term.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 42.*]</p> <p>4. Appeal and Error (§ 173*) — Presentation and Reservation op Grounds op Review — Questions Not Raised Below.</p> <p>Where, in a cause in which there are two parties defendant, an agreement is entered into, in advance of the trial, to the effect that, quoad the plaintiff, the defendants, if liable at all are'liable in solido, and shall be so condemned, without prejudice to their rights inter sese, and, pending the trial, one of the defendants goes into bankruptcy, placing the claim of the plaintiff on his schedule (though denying its validity), and is discharged, and judgment is thereafter rendered against the other defendant for the whole amount claimed, and such other defendant makes no complaint in the district court, and shows no injury, the judgment so rendered will not be disturbed, on the appeal, upon the suggestion that the agreement contemplated that both defendants should be condemned, and that plaintiff should have made the bankrupt’s trustee a party defendant.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1079-1120; Dec. Dig. § 173.*]</p> <p>(Syllabus by the Court.)</p>

Chretien, Judge. Robert M. Scheffield and another were convicted of illegal betting on horse races, in violation of Act No. 57, p. 64, of 1908, and they appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Charles A. Farwell and others against ' the Ellington Planting Company, Limited. Judgment for defendant, and plaintiffs appeal.</p>

W. Ellis, Judge. Action by Margaret Reynolds against M. L„ Egan. Judgment for plaintiff, and defendant appeals. Plaintiff moves to dismiss the appeal. Motion to dismiss denied.

Action by the I. Trager Company against the Cavaroe Company, Limited, for the appointment of a receiver. Sol Levi was appointed receiver, and from a subsequent order directing him to turn over the property in' his hands to the trustee in bankruptcy of defendant, both Levi, individually and as-receiver, and plaintiff appeal.

<p>Appeal from Civil District Court, Parish-of Orleans; Fred Durieve King, Judge.</p> <p>Action by M. E. Ansley against C. D. Stuart. Judgment for plaintiff, and defendant appeals.</p>

<p>Factors (§ 23*)— Power to Sell — Effect of Advances.</p> <p>Commission merchants, who agree with a shipper to make such advances on cotton as the shipments justify, have power to sell in a proper market the cotton shipped and pay the advances from the proceeds.</p> <p>TEd. Niote. — For other cases, see Factors, Cent. Dig. § 23; Dec. Dig. § 23.*]</p>

<p>1. Municipal Corporations (§ 705*) Streets — Leaving Mules Unhitched.</p> <p>There was imprudence on the part of the driver in leaving a pair of mules harnessed to a beer wagon on one of the public streets in the populous part of the city while he was away in a restaurant near by taking lunch on a day of general rejoicing.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Uig. §§ 1515-1517; Dee. Dig. § 705.*]</p> <p>2. Team Frightened.</p> <p>The crowded street, the procession, and the music were enough to disturb the equanimity of gentle mules, frighten them, and cause them to run away.</p> <p>3. Team Not Held Nor Hitched.</p> <p>They were not hitched, as they should have' been.</p> <p>4. Wheel Not Securely Fastened.</p> <p>The inference is that the front wheel was not chained as securely as the driver imagined.</p> <p>5. Master and Servant (§ 300*) — Injuries to Third Persons — Liability oe Master-Damages — On Public Occasions Particularly.</p> <p>Those who drive mules or horses on the streets must control them; else their employers may become liable in damages.</p> <p>[Ed. Note. — For other cases, see Master and Servantj Cent. Dig. §. 1209; Dec. Dig. ,§ 300.*]</p> <p>(Syllabus by the Court.)</p>

Action by Henry D. Nick against Robert Bensberg. Judgment for defendant, and plaintiff appeals. Cause transferred to the Court of Appeal under Acts 1904, p. 135, No. 56, provided plaintiff or his attorney make oath that appeal was not taken for delay; otherwise,

Durieve King, Judge. Action by Marie Classi Radovich against John C. Jenkins and wife. On death of Mrs. Radovich, her heirs were substituted. Judgment for plaintiffs, and defendants appeal.

<p>1. Corporations (§ 553*) — Receiver—Right op Stockholder to.</p> <p>A receiver will not be appointed on the petition of a stockholder; it not satisfactorily appearing that the officers mismanaged or misused the funds or other property of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 553.*]</p> <p>2. Corporations (§ 553*) — Receiver—Right op Stockholder to.</p> <p>The remedy, if the complaint is well founded, can be found in the charter, which authorizes liquidation of the company’s affairs by commissioners.</p> <p>[Ed. Note. — For other cases, see Corporations. Dec. Dig. § 553.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by Annie Seabury Fell against E. A. Melllhenny and others. Judgment for plaintiff, and defendants appeal.</p>

Election contest between Charles Deal and Thomas G. Hodge. On an order refusing contestant the right to have the case tried by a jury, he applies for writs of certiorari, mandamus, and prohibition.

Action by the Monroe Grocer Company, Limited, against J. A. Perdue & Co., Limited, in which action the Southern Development Company was summoned as garnishee. Judgment for plaintiff, and the garnishee appeals.

<p>Appeal and Eurob (§ 781*) — Dismissal—Cessation op Controversy — Elections.</p> <p>Relator, claiming to have been nominated as Democratic candidate for judge, brought mandamus against the Democratic committee for a recanvass. Mandamus being made peremptory, the committee took a suspensive appeal. Before hearing of appeal the election was had, and relator’s opponent, who was placed on the Democratic ticket, was elected and commissioned and qualified. Held, that appeal would be dismissed, as there was no longer any controversy, and the appeal was functus officio.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3122; Dec. Dig. § 781. *J</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John Bachman Lee, Judge.</p> <p>Action by the Bank of Leesville and others against T. C. Wingate, receiver of Powell Bros. & Sanders Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

Action by the St. Louis Jewelry Company against Joseph Imbraguglio. There was a default judgment for plaintiff, and defendant appealed to the Court of Appeal, which remanded the cause for correction of the sheriff’s return on the citation, but did not set-aside the judgment; and defendant applies for certiorari or writ of review to the Court of Appeal.

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; Louis Bingaman Claiborne, Judge.</p> <p>Action by Julie Michel Joffrion and others against Ferdinand Gumbel. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Carriers (§ 28G*) — Depot Platform — Obstruction — Negligence.</p> <p>The carrier is not at fault in placing trunks on its platform at a depot, provided a sufficient passageway is left on the platform.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1142, 1140; Dec. Dig. § 280.*]</p> <p>2. Carriers (§ 280*) — Depot Platform — Obstruction — Negligence.</p> <p>There was margin or space of 24 inches on the outer edge of a platform 4 feet 10 inches from the ground.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 1142, 1140; Dec. Dig. § 280.*]</p> <p>3. Carriers (§ 247*) — Carriage of Passengers — Waiting Passenger — Cake Required.</p> <p>Due care must be exercised. The weight of the testimony is to the contrary.</p> <p>ROd. Note. — For other cases, see Carriers, Cent. Dig. §§ 981-993; Dec. Dig. § 247.*]</p> <p>4.Danger Apparent.</p> <p>If there was danger, it was open and apparent, easily avoidable.</p> <p>Two other persons about the time of the accident passed through the passageway provided without meeting with an accident.</p> <p>(Syllabus by the Court.)</p>

Judge. Clinton Reed was accused of theft, and a motion was sustained to quash the information and transfer the case to the juvenile court, and the State appeals.

<p>Fraudulent Conveyances (§ 95*) — Dation en Paiement — Restitution to Wife — Use of Parafhernal Funds.</p> <p>The law favors restitution to ihe wife, and looks with favor upon the efforts of the husband, although insolvent, to secure her honest and just claims against him.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 277; Dec. Dig. § •95.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by the Board of School Directors of Iberia Parish against the Police Jury of Iberia Parish. Judgment for defendant, and plaintiff appeals.</p>

W. Ellis, Judge. In the matter of the succession of Albert Arnemann, Sr. From a judgment dismissing fhe rule against Mrs. Albert Arnemann, executrix, charging her with misconduct, and sustaining the opposition in part, Theodore Arnemann and another appeal.

<p>Appeal from Mayor’s Court of Town of Marksville; Walter F. Couvillion, Judge.</p> <p>E. B. Worthy and Louis J. Barbin were convicted of playing cards for money, and appeal.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.</p> <p>C. J. F. Dudley and others were convicted of violation of the game laws, and appeal.</p>

Action by E. B. Dubuisson and others against the Board of Supervisors of Election of the Parish of St. Landry and others. On an order declining to dissolve an injunction, A. E. Soileau and others applied for writs of certiorari and prohibition.

Action by Rev. J. M. Langlois against D. J. Gragnon and another, liquidators of the People’s Bank of Breaux Bridge. From a judgment for defendants, plaintiff appealed to the Court of Appeal of the First circuit, and it applies for instructions. Instructions given.

<p>Libel and Slandeb (§ 140*) — Right oe Action — Destroying Evidence oe Title — Oe-EENSES AND QUASI OEEENSES.</p> <p>Where a party not in actual possession, but claiming to be the owner of certain real estate, brings suit against another not in actual possession, alleging that the latter has inflicted injury upon him by destroying the recorded evidence of his title, and by causing to be inscribed in the public records a pretended and fraudulent adverse title, he has a standing in court, and, if his allegations be sustained by proof, is entitled to damages, under Civ. Code, arts. 21,. 2315, though his action be not specifically classified by the Code of Practice.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 397; Dec. Dig. g 140.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.</p> <p>Action by John Legier, Jr., against Widow George H. Braughn. Judgment for plaintiff, and defendant appeals.</p>

In the Matter of the Succession of Carmelite Desina. Marco Desina and others filed a petition against F. R. Kuruear and others to vindicate the title of the Succession to certain property, and, from the judgment, defendants appeal.

<p>1. Judges (§ 56*) — Recusation—Powers oe Recused Judge.</p> <p>The jurisdiction of the two judges of the Twenty-First judicial district court, as conferred by the Constitution, is equal and concur- I rent, and ordinarily either may hear and determine any cause brought before that court. When, however, one of the judges brings suit on his own personal account, he has no other official function to discharge with reference to it than to recuse himself, having done which his jurisdiction (conceding, arguendo, that he was possessed of any originally)' is exhausted, and he can make no order affecting the jurisdiction of the other judge, which is exclusive. Hence an order of the recused judge, referring the case to the other, is an unauthorized work of supererogation, and a subsequent order, overruling an objection to the former order and to the jurisdiction of the other judge, is void, as coram non judice, and the entry of judgment by default in the case (the other judge presiding) is premature and unauthorized.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. § 235; Dec. Dig. § 56.*]</p> <p>2. Courts (§ 79*) — District Courts — Rules —Abrogation.</p> <p>The present Constitution declares that the courts provided for by it shall be considered the same courts as those bearing the same names created by the Constitution of 1879; hence the district court in and for a particular parish provided for by the present Constitution is but the continuation of the district court in and for such parish as created by Constitution of 1879, and the rules adopted for the regulation of the business of the court created by the Constitution of 1879 continue in force as the rules regulating the business of the courts provided for by the present Constitution (notwithstanding that the judge or judges holding under the present Constitution may not formally have accepted or agreed on them) until.they are rescinded or abrogated.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 275; Dec. Dig. § 79.*]</p> <p>(Syllabus by the Court.)</p>

<p>Judges (§ 39*) — Recusation — Appointment by Recused Judge.</p> <p>Upon the recusation of one of the (two) judges of the Twenty-Eirst judicial district court, exclusive jurisdiction of the recused ease vests in the other judge; hence the recused judge has no capacity to appoint any one, whether the judge of an adjoining district or a lawyer, to act in the matter.</p> <p>[Ed. Note. — Eor other cases, see Judges, Dec. Dig. § 39.*]</p> <p>(Syllabus by the Court.)</p>

In the matter of the insolvency of W. L. Perkins. An appeal was taken from an order sustaining opposition to' a respite, and W. L. Perkins applies for certiorari, prohibition, and mandamus to reduce the amount of the bond.

In the matter of the Succession of Roland M. Filhiol. Tableau of privileged debts and claims filed, and opposition thereto of Hardy H. Filhiol and others. From the judgment Inez Schmidt, executrix, and others, appeal.

Action by John F. Fletcher against the Ozone Lumber Company, Limited. There was a judgment by default, which was confirmed, and defendant appealed to the Court of Appeal, and, the appeal having been dismissed, defendant applies for certiorari or writ of review to the Court of Appeal.

<p>1. Mortgages (§ 151*) — Priorities — Privileges on Immovables — Failure to Record.</p> <p>Privileges on immovables have no effect against third persons, unless recorded in the manner required by law, and confer no preference over prior mortgages, unless recorded within the delay prescribed by article 3274 of the Civil Code.</p> <p>.[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 151.*]</p> <p>2. Mortgages (§ 151*) — Priorities — Privileges on Immovables — Failure to Record.</p> <p>The delay of 7 or 15 days (as the case may be) commences to run from the date of the contract, whether written or verbal, and in the latter case it suffices to record an affidavit setting forth the terms of the agreement.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 151.*]</p> <p>3. Mechanics’ Liens (§ 128*) — Duty to Record-Delay.</p> <p>Article 3274, Civ. Code, applies to privileges and liens on buildings and grounds appurtenant thereto in favor of contractors, subcontractors, materialmen, and the furnishers of labor and supplies.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Dec. Dig. § 128.*]</p> <p>(Syllabus by the Court.)</p>

Theodore Grünewald was charged with conducting a barroom without having obtained a permit and within 300 feet of a church or school. Defendant demurred, and, his demurrer having been sustained, St. Clair Adams, District Attorney, applies for writs of certiorari, prohibition, and mandamus.

Ernest S. Lewis was charged with conducting a barroom without having obtained a permit and within 300 feet of a church and school. Defendant demurred, and, the demurrer having been sustained, St. Clair Adams, District Attorney, applies for writs of certiorari, prohibition, and mandamus.

Flandry & Bertrand were indicted for a violation of the liquor law. A demurrer was sustained, and the district attorney applies for writs of certiorari, prohibition, and mandamus.

<p>C. G. Morris was convicted for violation of the liquor law, and applies for writs of certiorari and prohibition.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the City of New Orleans against the Board of Administrators of Tulane Educational Fund. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 749*) — Answer to Appeal — Amendment op Judgment — Time por Filing.</p> <p>An answer to an appeal, praying for an amendment of the judgment appealed from, cannot be considered in this court if filed upon the day upon which the cause is set down for argument; it should be filed three days before.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 749.*]</p> <p>2. Contracts (§ 10*) — Nature and Essentials — Mutuality.</p> <p>Instruments representing merely inchoate contracts, which do not bind both parties, bind neither, and do not pass title to real estate.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*]</p> <p>3. Injunction (§ 200*) — Right to Attorney’s Fees.</p> <p>It may be proper, • under some circumstances, to allow attorney’s fees, by way of damages, for the suing out and maintaining of injunctions, but the court declines to establish the precedent in the present case.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 420; Dec. Dig. § 200.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Accident.</p> <p>In a suit sounding in damages for personal injury, the question of fact is whether nlaintiff’s daughter hastily jumped or stepped on the bridge while it was in motion.</p> <p>2. Negligence (§ 85*) — Contributory Negligence — Children.</p> <p>If she ran to or hastily stepped on the bridge while it was in motion, the plaintiff is not entitled to judgment.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 121-129; Dec. Dig. § 85.*]</p> <p>3. Bridges (§ 37*) — Negligent Operation-Liability of Public Authorities.</p> <p>If she went on the bridge while it was in place, and then, due to a sudden, unexpected, and negligent putting it in.motion, she lost her balance and was crushed, there is liability.</p> <p>[Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 103-105; Dee. Dig. § 37.*]</p> <p>4. Bridges (§ 43*) — Liability for Injuries— Proximate Cause.</p> <p>The proximate cause of the accident from the first point of view considered as sustained by the testimony was the heedless act of the little girl.</p> <p>[Ed. Note. — For other cases, see Bridges, Dec. Dig. § 43.*]</p> <p>5. Condition of Bridge.</p> <p>The bridge was in a fairly good condition.</p> <p>6. Bridges (§ 44*) — Injuries—Contributory Negligence.</p> <p>There was no guard or chain to warn pedestrians. That did not have the effect of relieving the daughter of plaintiff from the necessity of acting as is expected of a young person of her age.</p> <p>[Ed. Note. — For other eases, see Bridges, Dee. Dig. § 44.*]</p> <p>7.Negligence (§ 85*) — Contributory Negligence-Children.</p> <p>Contributory negligence may be laid at the door of a young person 10 years and 9 months of age.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 121-129; Dec. Dig. § 85.*]</p> <p>(Syllabus by the Court.)</p>

Chrétien, Judge. Eugene Bertrand and Odette Duval having been arrested for an offense, they were released on bonds signed by Joseph Bonomo as surety, and the bonds were thereafter forfeited for failure of the principals to appear. Subsequently Bonomo moved to declare the judgment of forfeiture satisfied and himself dismissed from further liability, which was denied, and he appeals.

<p>1. Negligence (§ 108*) —- Dangerous Premises — Action eor Injuries — Petition.</p> <p>The petition in this case alleges that plaintiffs minor son was injured by the bursting of a water tank whilst he was waiting on defendant’s property for the return of one of defendant’s employés, whom he had called to see on business. It does not allege that he was engaged in any business for defendant-, that defendant’s employe was authorized by it to transact his own business or that of the minor on its property, that defendant had held out to the public or to the minor that the place selected by the latter was a safe or proper one for a stranger to wait while engaged in his own concerns, or that defendant was under obligation to provide such a place for such person so engaged.</p> <p>[Ed. Note. — For other cases, see Negligence, Dec. Dig. § 108.*]</p> <p>2. Soteiciency oe Petition — No Cause oe Action.</p> <p>In other words, the petition does not show the violation by defendant of any duty which it owed to the minor or the plaintiff, and hence discloses no cause of action for damages.</p> <p>(Syllabus by the Court.)</p>

Wilson, Judge. John Shepherd and others were tried for selling liquor to minors. Shepherd was discharged, and Joe Di Magio was found guilty, and moved in arrest of judgment. From an order denying the same, he appeals.

<p>Courts (§ 489*) — State Courts — Jurisdiction-Interstate Shipment — Rates—Overpayment.</p> <p>Where an interstate carrier represents to a shipper that a certain freight rate has been established between given points, and such rate-has, in fact, been published, and the shipper sends his goods upon the faith of such representation and publication, and is thereafter coerced into paying a higher rate, a state court has jurisdiction to hear and determine his suit for the recovery of the amount thus overpaid.</p> <p>LEd. Note. — For other cases, see Courts, Dec. Dig. § 489.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Drains (§ 17*) — Drainage Districts — Governing Body.</p> <p>The police jury is not the governing body of the drainage board in the different parishes. The board of commissioners of the drainage district in the parishes is the governing body in their respective districts.</p> <p>[Ed. Note. — For other eases, see Drains, Dec. Dig. § 17.*]</p> <p>2. Drains (§ 76*) — Governing Bodies — Taxation — Elections—Acts 1902, P. 248, No. 145.</p> <p>They are authorized to call elections regarding taxation for drainage and to issue bonds.</p> <p>[Ed. Note. — For other cases, see Drains, Dec. Dig. § 76.*]</p> <p>3. Governing Body.</p> <p>Decisions holding that the police jury is the governing body are overruled.</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 John B. Levert against the Daily States Publishing Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge. '</p> <p>Eva Gregg was convicted of perjury, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Frederick H. Bommarius against the New Orleans Railway & Light Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Intoxicating Liquors (§ 116*) — Saloons —Conduct of Business — Separate Buildings Required.</p> <p>The sale of intoxicating liquors to whites and colored, to be consumed on the premises, •cannot be conducted in one building. Bars, separated one from the other in one building, do not come within the provision of the statute requiring that the business be conducted in separate buildings.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 126; Dec. Dig. § 116.*]</p> <p>•2. Intoxicating Liquors (§ 55*) — Licenses.</p> <p>If a person conducts two saloons, one for ■the whites and the other for negroes, he owes two licenses. The law cannot be avoided by conducting two separate barrooms in the same building.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 55; Dee. Dig. § 55.*]</p> <p>B. Constitutional Law (§ 296*) — Statutes (§ 114*) — Due Process of Law — Titles of Acts — Alleged Unconstitutionality.</p> <p>Act No. 176, p. 236, of 1908, does not violate article 2 of the state Constitution-and the fourteenth amendment, and it is in line with the requirement of article 31 of the state Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 826; Dec. Dig. § 296;* Statutes, Cent. Dig. § 148; Dec. Dig. § 114.*]</p> <p>4. Intoxicating Liquors (§ 55*) — Licenses— Separate Bars.</p> <p>The state cannot compel the payment of two licenses instead of one, in view of the facts; defendant is not at liberty to continue! the business in one building.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 55; Dec. Dig. § 55.*]</p> <p>(Syllabus by the Court.)</p>

Action by the Town of Vidalia against Charles Falkenheiner. With this action have been considered in this court actions by the same plaintiff against A. P. Simms, against Adam Martinelli, and against G. R. Ober. or Conti Bros. Judgments for defendant in each case, and plaintiff appeals.

Action by the State, on the relation of D. B. Fleming, against John J. Joyce, registrar, and T. M. Wilson to strike the name of Wilson from the registration rolls. Judgment for plaintiff, and defendants appeal.

<p>Appeal and Error (§ 10H*) — Review—Conflicting Evidence — Elections — Residence.</p> <p>On the question of the actual bona fide residence of a person registered as a voter in a particular precinct, where the evidence is conflicting and the judgment accords with legal presumptions, it will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Fn'or,^ Cent. Dig. §§ 3983-3989; Dec. Dig. §</p> <p>(Syllabus by the Court.)</p>

Action by the State, on the relation of D. B. Fleming, against John J. Joyce, registrar, and Louis Valentine, to strike name of defendant Valentine from the registration rolls. Judgment for plaintiff, and defendants appeal.

<p>Elections (§ 66*) — Qualification of Voters —Majority—'“Minor.”</p> <p>The common-law rule that a minor becomes a major “on the beginning of the day preceding the (21st) anniversary” of his birth does not prevail in the state of Louisiana, which by codal provision has adopted the civil-law rule that minors are persons “who have not as yet attained the age of one and twenty years complete.” Rev. Civ. Code, art. 87. This provision was taken from the Code Napoleon, and the French commentators all agree that a minor does not become of age until the commencement, at least, of the twenty-first anniversary of his birth. Hence a minor whose twenty-first anniversary will not occur until the next day after the date fixed for an election cannot lawfully register for the purpose of voting thereat.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 58; Dec. Dig. § 66.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4527-4528.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal and Error (§ 397*) — Citation-Notice — Appeal in Open Court.</p> <p>Where an appeal is taken by motion in open court at the same term, no citation or notice of appeal is necessary, and there can be no want of proper parties to the appeal, since all parties to the suit who are not appellants are appellees..</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2101; Dec. Dig. § 397.*]</p> <p>2. Appeal and Error (§ 434*) — Failure or Appellant to Appear.</p> <p>Where the appellant makes no appearance in the Supreme Court, and makes no assignment or suggestion of error, the judgment below will be assumed to be correct.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2183; Dec. Dig. § 434.*]</p> <p>3. Ejectment (§ 127*) — Damages.</p> <p>Held, on joinder of plaintiffs in the appeal, that the judgment of nonsuit on their claim for damages was correct.</p> <p>[Ed. Note. — For other cases, see Ejectment, Dec. Dig. § 127.*]</p> <p>(Syllabus by the Court.)</p>

Action by Edward Mullins against August I-Ianneman. Defendant bad judgment dissolving an injunction, which was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review to the Court of Appeal. Judgments of the Court of Appeal and district court set aside, and injunction perpetuated.

Action by Ellis. D. May against the Texas & Pacific Railway Company. There was a judgment for defendant, which was affirmed by the Court of Appeal, and plaintiff applies for certiorari or a writ of review.

W. Ellis, Judge. Action by the City of New Orleans against the liquidators of the Louisiana National Bank and others. Judgment for defendants, and plaintiff appeals.

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

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.</p> <p>Action by Joseph S. Gouaux against Frank Beaullieu and another. Judgment for defendants and plaintiff appeals.</p>

Action by Joshua D. McGee against the Louisiana Lumber Company, Limited. Defendant called its vendor, the Louisiana Central Lumber Company, in warranty, and that company in turn called its vendor, the Louisiana Midland Company, Limited. From a judgment for plaintiff, both plaintiff and defendant appeal.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Action by the Brooks-Seanlon Company against T. F. Booty. Judgment for plaintiff, and defendant appeals. Transferred to Court of Appeal on condition.</p>

<p>Negligence (§ 135*) — Evidence—Contbibutory Negligence.</p> <p>Suit for damages for personal injuries occasioned by fall of freight elevator in building under construction. Only questions of fact involved. Judgment for defendant afiirmed.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 274-276; Dec. Dig. ■§ 135.*)</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of J. B. Junqua. Symphorien Dugas filed, oppositions to the account. From an order sustaining an exception to the right of the opponent to appear, she appeals.

<p>Appeal from Civil District -Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the Standard Marine Insurance Company, Limited, of Liverpool, England, against the Board of Assessors and others. Judgment for defendants, and plaintiff appeals.</p>

Action by the State, on the relation of James Wilkinson, District Attorney, against Felix S. Hingle, to oust him from the office of Parish Treasurer. Judgment for plaintiff, and defendant appeals. Transferred to the Court of Appeal.

Action, by the First National Bank against W. F. Taylor and another. On application by defendant named for writs of certiorari and prohibition to review an order granting a new trial.

<p>Appear and Error (§ 1078*) — Waiver oe Objections.</p> <p>The judgments of the district court are presumably correct, and appellate courts are justified in affirming them on the strength of that presumption, when counsel do not, either by personal appearance or through a brief, point out the specific grounds of complaint which they could urge against them.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]</p> <p>(Syllabus by the Court.)</p>

<p>"Executors and Administrators (§ 3S0*) — Sales Under Order of Court — Actions to Set Aside.</p> <p>The plaintiff is bound to prove with legal ■certainty all the grounds on which he relies to annul a judicial sale, such as that the executor was the real purchaser through a party interposed, or that the executor acted as the agent •of the purchaser in bidding in the property; and if the case be doubtful on the evidence the presumption against official misconduct will prevail.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dee. Dig. § 380.*]</p>

<p>Appeal from Eighth Judicial District Court, Parish of Catahoula; David Newton Thompson, Judge.</p> <p>Action by the State, on the relation of Riley J. Wilson, against John C. Hardin. Judgment for defendant, and the relator appeals.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; Robert Brooks Dawkins, Judge.</p> <p>Action by Willie Lane Ford against the Tremont Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by John Fitzpatrick against Charles E, Letten and others. Judgment for defendants, and plaintiff appeals, and defendants move to dismiss the appeal. Motion overruled.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.</p> <p>Action by Lou Taylor, tutrix, against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Payment (§ 73*) — Evidence.</p> <p>Defendant having the burden of proof as to payment, a finding against payment is sustained ; he alone testifying thereto, and being contradicted by a disinterested witness.</p> <p>[Ed. Note. — For other cases, sec Payment, Cent. Dig. §§ 220-225, 232-238; Dec. Dig. § 73.-']</p> <p>2. Sales (§ 23*) — Countermanding Order.</p> <p>It was too late for defendant to countermand his order given plaintiff for an implement to be manufactured, where the party with whom plaintiff placed the order had commenced its ■construction before the countermand.</p> <p>[Ed: Note. — For other cases, see Sales, Cent. Dig. § 45; Dec. Dig. § 2,3.*]</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; Wilbur Fisk Black-man, Judge.</p> <p>Hargis Mills and Roy Miles were convicted of a crime, and appeal.</p>

Paul, Judge. The final account of the Hibernia Bank & Trust Company, as executor of the will of Frederick Olea Bertrand, deceased, having been filed, approved, and homologated,' and the executor discharged, Minnie Drury, individually and as tutrix of her minor children, appeals.

Action by J. C. Pugh and another against A. N. Sample. Judgment for defendant was reversed by the Court of Appeal, and he applies for certiorari or writ of review.

<p>Landlord and Tenant (§ 144*) — Holding Over by Lessee — Liability in Damages.</p> <p>Where a lessee, after the termination of his lease, continued to occupy the premises against the protest of the lessor, his liability in damages is to be measured by the rental market value of the property, and not by the price of the expired lease made several years before.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 459; Dec. Dig. § 144.*]</p> <p>(Syllabus by the Court.)</p>

Charles I-Iageman, Jack Robbins, and John Rosotti, were convicted of keeping a grog shop without a license, and defendants Robbins and Rosetti apply for writs of certiorari and prohibition.

<p>Charles Ferris was convicted of crime, and applies for writs of certiorari and prohibition.</p>

A. Gras and others were convicted for unlawfully obtaining intoxicating liquor, and apply for writs of certiorari and prohibition.

A. L. Worsham and Henry Sartini were convicted of an illegal sale of intoxicating liquors, and apply for writs of certiorari and prohibition.

Action by Percy Saint against J. Sully Martel. Motion of defendant, which was dismissed, referred to the merits, and defendant moved for a new trial, which being overruled, he applied for an appeal, which was refused, and applies for writs of certiorari and mandamus and prohibition.

<p>Yie Campisi and others were convicted of illegally selling intoxicating liquors, and said Qampisi applies for writs of certiorari and prohibition.</p>

<p>1. Seduction (§ 17*) — Evidence—No Peomise Broken.</p> <p>The testimony does not sustain plaintiff’s averment that defendant promised to marry her.</p> <p>[Ed. Note. — For other cases, see Seduction, Dec. Dig. § 17.*]</p> <p>2. In Paei Delicto — Right oe Action.</p> <p>Equal fault on both sides makes the parties equal in law.</p> <p>3. Seduction (§ 17*) — Volenti Non Fit In-' JURIA.</p> <p>The plaintiff was not free from fault. From that point of view damages cannot be allowed.</p> <p>[Ed. Note. — For other cases, see Seduction, Dec. Dig. § 17,*]</p> <p>(Syllabus by the Court.)</p>

Action by the Ruddock Orleans Cypress Company against Charles De Luppe and others. Judgment for defendants was reversed by the Court of Appeal, and Marie De Luppe applies for certiorari or writ of review.

<p>Appeal from Eighteenth Judicial District ■Court, Parish of Acadia; Thomas Rutland .Smith, Judge ad hoc.</p> <p>Action by C. C. Duson and others against Isaac Roos and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry Théard, Judge.</p> <p>Action by the First National Bank of Birmingham, Ala., against Gibert & Clay. Judgment for defendants, and plaintiff appeals.</p>

<p>Mandamus (§ 4*) — 'When Lies to Courts— Remedy by Appeal.</p> <p>Relator applies to the Supreme Court to compel by mandamus, under its supervisory power, a trial judge to proceed to try at once a case pending before him. The court is very reluctant to exercise through mandamus its supervisory authority oyer inferior courts in respect to orders which can be corrected, if erroneous, in some other manner. The order complained of in this proceeding was not absolutely void. It was an order which it was within the power of the judge ad hoc to have himself modified or set aside on direct application made to him to do so. The order was interlocutory in character, subject to correction before final judgment by the court which gave it. Hennen’s Dig. p* 330, tit. “Courts in General.”</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 9, 11, 14; Dee. Dig. § 4.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Seventh. Judicial District Court, Parish of Ascension; Paul LSche, Judge.</p> <p>Alex Cunningham was convicted of murder, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Zenon Lejeune against the Vaufrey Sugar Planting & Manufacturing Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by J. M. Baurens against Pauline Giroux, his wife. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Erbok (§ 1178*) — Disposition of Cause — Reveesal—Amendment of Pleading — Damages.</p> <p>This suit by plaintiff is for damages for being knocked down by a runaway team belonging to defendant and in charge of one of his drivers.</p> <p>The petition disclosed a cause of action, but one defectively stated. The defendant’s objections to the same were raised for the first time on objections to evidence. These objections were sustained by the trial court, and plaintiff’s demand rejected.</p> <p>On appeal that judgment is reversed, and the case is remanded, with leave to plaintiff to amend his pleadings; the court believing that in the interest of justice the facts of the case should be developed, and that evidence on the subject is easily obtainable one way or the other.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4616-4618; Dec. Dig. § 1178.*]</p> <p>(Syllabus by the Court.)</p>

Action by Leon Garig and others against the Truth Printing & Publishing Company, Limited. From an order appointing a receiver, defendant and certain interveners appeal.

Mandamus by the State, on relation of R. R. Gentry, against the Mayor and Board of Aldermen of the Village of Dodson. The-district court awarded a peremptory writ and the judgment was affirmed by the Court of Appeal, and the Mayor and Board apply for certiorari or writ of review to the Court of Appeal.

Action by George K. Pratt against John F. McCoy and. others. Application by said Pratt for writ of mandamus directed to Hon. Walter B. Sommerville, Judge, etc., to compel the reception of certain evidence.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.</p> <p>Action by the Citizens’ Bank of Louisiana against L. N. Folse and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Mortgages (§ 25*) — Amount oe Debt — Evidence.</p> <p>In a suit to foreclose certain mortgages, evidence held to warrant a finding that the purchase price of a plantation to secure which the mortgages were executed was $3,150, and not $6,500, as claimed by the mortgagee, and that $3,150 was the amount of the mortgage debt.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §' 42; Dec. Dig. § 25.*)</p> <p>2. Mortgages (§ 581*) — Foreclosure — Attorney’s Fees.</p> <p>Where no extension of a mortgage debt was shown beyond July 1, 1907, and suit was brought on the 3d, the mortgagor was liable for costs and 10 per cent, attorney’s fees as provided.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1670; Dec. Dig. § 581.*]</p>

<p>Levees (§ 16*) — Construction — Contracts —Breach.</p> <p>Where a levee board let a contract for the-removal of all piles in a certain district “asmav be designated” by its engineer, and a large number of piles were so designated, removed, and the stipulated price per pile paid, and the levee board thereupon notified the contractors that the agreement was abrogated, and thereafter the contractors sued for damages for alleged breach of the contract as to the remainder of the piles, held, that the contract covered only the piles designated, and that the contractors-cannot recover damages in the absence of allegations showing that they were misled as to-the number of piles to be removed, or that the levee board acted in bad faith in the cancellation of the contract.</p> <p>[Ed. Note. — For other cases, see Levees, Dec. Dig. § 16.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Black-man, Judge.</p> <p>In the matter of the Supple minors for family meeting. From an order appointing Mrs. Murray tutrix, the Iberville Bank & Trust Company, tutor, appeals.</p>

<p>1. Negligence (§ 121*) — Evidence.</p> <p>In a suit for damages for personal injuries, the plaintiff is bound to prove the alleged negligence of the defendant by a preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217-228; Dec. Dig. § 121. *J</p> <p>2. Evidence (§ 598*) — Review—Sufficiency of Evidence.</p> <p>Where, on vital issues of fact, the testimony of the injured person, a youth in his seventeenth year, is contradicted by four unimpeached witnesses for the defense, and their version of the facts is as probable as that of the injured person, the judgment below will be reversed as clearly erroneous.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598.*]</p> <p>(Syllabus by the Court.)</p>

Paul, Judge. Accounting by the executors of the will of Edward Thompson, deceased. The account was opposed by the city of New Orleans and Mrs. Edward Thompson, Jr., as tutrix of her minor children. From the judgment dismissing the oppositions and homologating the account as filed, opponents appeal.

<p>1. Appeal and Ebbob (§ 134*) — Pinal Judgment.</p> <p>A minute e try reciting that' the court maintained an exception of “no cause of action” filed by the defendant in a certain case does not show a judgment which authorizes an appeal.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 898; Dec. Dig. § 134.*]</p> <p>2. Appeal and Ebbob (§ 337*) — Entry of Judgment — Necessity.</p> <p>Where a judgment maintaining an exception of “no cause of action” has been rendered, and the suit dismissed, an appeal is premature until the judgment has been signed, and will be dismissed. Hauch v. E. C. Drew Co., 110 La. 488, 40 South. 847.</p> <p>[Ed. Note. — Por other' cases, see Appeal and Error, Cent. Dig. § 1877; Dec. Dig. 1 337.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; James Edward Moore, Judge.</p> <p>Action by Nannie Smith against the HuieHodge Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Application to Remove Cause.</p> <p>The defendant made application to remove the case to the federal Circuit Court.</p> <p>The application was denied.</p> <p>It was not pressed for decision in this court.</p> <p>2. Appearance (§§ 9, 24*) — General or Special-Petition eor Removal — Waiver or Citation.</p> <p>In the petition for the removal to the federal Circuit Court, the defendant strongly guarded by sufficient allegation its right to hereafter plead that it had not been cited. In view of the allegation, full effect is given to the reservation made by defendant in regard to the asserted want of citation.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 50, 134; Dec. Dig. §§ 0, 24.*J</p> <p>3. Absentees (§ 2*) — Substituted Service— “Absentee.”</p> <p>Persons who have no domicile in the state, as well as those who, having resided here, have left the state permanently and left no property, are absentees.</p> <p>[Ed. Note. — For other cases, see Absentees, Cent. Dig. § 1; Dec. Dig. § 2.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 37.]</p> <p>4. Corporations (§ 668*) — Foreign Corporations — Process—Service.</p> <p>No legal judgment can be obtained against an absentee (who had no agent and no property here) by service on the Secretary of State.</p> <p>[Ed. Note, — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. § 668.*]</p> <p>5. Withdrawal prom State.</p> <p>The issues are limited to those corporations that leave the state before service on the Secretary of State.</p> <p>6. Point Not Determined.</p> <p>There is no necessity of passing upon the other point attacking the constitutionality of the statute as relates to corporations carrying on business in this state when service is made.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by the Edward B. Bruce Company against Michael Lambour and Albert Godchaux. Judgment for plaintiff, and Godchaux appeals.</p>

W. Ellis, Judge. Action by Amelia T. Stewart, natural tutrix of the minor Edwin J. Stewart, against Benjamin Crump, Jr., dative tutor of the minor Gladys Marguerite Stewart. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Léche, Judge.</p> <p>Action by Milliken & Farwell against the Sweet Home Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth. Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Action by M. M. Sanders & Son against Mrs. Eusebe Fortenberry Schilling and others. Judgment for defendants, and plaintiff appeals.</p>

Judicial District Court, Parish of Yermilion; William Pierrepont Edwards, Judge. Action.by George A. Glenn against John Bresnan to foreclose a mortgage. The Gueydan Rice Mill, Limited, intervened. Judgment for plaintiff for the entire proceeds of the sale, and the intervener and third opponent appeal.

<p>Appeal from Civil District Court, Parish -of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the First National Bank of Lumberton, Miss., against J. H. Hinton and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Decisory Oath About Condition of Defendant’s Road.</p> <p>The answers to interrogatories propounded by plaintiff to defendant’s employes on facts and articles prove that the roadbed, the rails, the cars, and the running appliances and devices were in good repair.</p> <p>2. Street Railroads (§ 81*) — Operation-Duty.</p> <p>The accident did not occur at a crossing. The rule applicable to crossings has no direct 'bearing.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*]</p> <p>3. Right to Use Street and Care Required.</p> <p>The right to the use of the street and the ■extent of care each should exercise — the pedestrian and the company — gave rise to the question for decision.</p> <p>4. Rate of Speed — Street Car.</p> <p>While the rate of speed (15 miles an hour) was too rapid, that rate has received some sanction.</p> <p>5. Street Railroads (§ 98*) — Injuries to Persons on Track — Contributory Negligence.</p> <p>If the plaintiff, despite the speed, was at fault, he cannot recover.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 98.*]</p> <p>6. Street Railroads (§ 98*) — Duty of Pedestrian to Look and Listen.</p> <p>The pedestrian should look and listen before stepping on the track of a street car.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 215; Dec. Dig. § 98.*]</p> <p>7. Operation of Street Car.</p> <p>The car was not traveling on a narrow and crowded street, late at night. There were few persons on the street. The car was lighted. The street is straight. The coming car and its usual noise could have been heard.</p> <p>8. Street Railroads (§ 98*) — Injuries to Persons on Track — Contributory Negligence.</p> <p>The plaintiff suddenly stepped from behind an automobile, standing still, to the track. It was not _ possible for the motorman to stop the car in time to avoid the accident.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*]</p> <p>9. Contributory Negligence.</p> <p>Plaintiff, by leaving the place where he was in the rear of the automobile and stepping on the track, gave rise to the proximate cause.</p> <p>When he crossed over to the coming car with which he collided, he was about five feet from the coming car. Had the car been running slower, the danger would have been the greater, as he would have had time to step further on the track.</p> <p>(Syllabus by the Court.)</p> <p>10. Street Railroads (§ 81*) — Injuries to Person on Track.</p> <p>The necessity of being careful about the speed of a street car is not as urgent at 12 o’clock at night as it is during the active business hours of the day, when there are many persons and vehicles on the street.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 81.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by J. D. Neely against the Orleans Metal Bed Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by Eva Rossey, tutrix, and individually, against Lawrence & Hamilton and others. Judgment for plaintiff, and defendants appeal.</p>

<p>' Appeal from Civil District Court, Parish ■of Orleans; John St. Paul, Judge.</p> <p>Action by Henry Jones against the New Orleans Railway & Light Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Principal and Agent (§ 156*) — Authority oe Agent — Sales—Construction op Contract.</p> <p>Plaintiff sues for the specific performance by defendant of the obligations alleged to have been incurred by him under an order upon it to furnish and deliver to him certain machinery at the price and on the terms and conditions contained in a printed order, which a soliciting agent of the plaintiff submitted to him. The defendant himself and the agent signed the document, which was transmitted to the plaintiff company.</p> <p>The machinery ordered was- shipped and received by the defendant. On the face of the document signed by the defendant, the exact authority of the solicitor in respect to the proposed order and sale and the limitations upon his right to depart in any way from the terms and conditions of the printed order and sale were set out.</p> <p>Defendant read the document before signing the same. The machinery sent to defendant was not found satisfactory to him and failed to meet the representations in respect to it which had been made to him by the agent. Denying that he was bound in any way under the order, this suit followed.</p> <p>Before signing the order, the defendant obtained from the soliciting agent a written certificate to the effect that the order was given conditionally, that the machinery was to be shipped to defendant, and received by him subject to a trial by him of its merits and its efficiency to accomplish the work which be required, and that it was to be accepted only if found satisfactory. The certificate so signed by the solicitor agent was written on a separate piece of_ paper. Knowledge of the same was communicated to the plaintiff company neither by the agent nor by the defendant until after the machinery was received and had been found unsatisfactory. The trial court held defendant bound according to the terms of the printed order. He has appealed. The judgment is correct and is affirmed.</p> <p>[Ed. Note. — For other cases, see Principal and* Agent, Dee. Dig. § 156.*]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Fourth District Court, Parish of West Feliciana; • George Jones Woodside, Judge.</p> <p>Ephriam Scott was convicted of resisting an officer, and he appeals.</p>

<p>Evidence (§ 568*) — Opinion Evidence — Effect-Damages .</p> <p>In reaching conclusions as to damage to property based on the testimony of witnesses, the “credibility” of the witnesses is not the only factor to be considered in weighing the testimony. The theory or basis upon which the witnesses act in making their estimates, the opportunities which each may have had for obtaining full and correct information, and the ability and capacity of each to express an opinion on the subject are factors not to be lost sight of. The question of values is, after all, to a great extent a matter of opinion. As matters stand adjusted, the judgment appealed from is inside of the limits within which men may reasonably differ.</p> <p>[Ed. Note. — For other cases, see Evidence. Dec. Dig. § 508.*]</p> <p>(Syllabus by the Court.)</p>

Helena; Clay Elliott, Judge. Slander of title by the heirs of Dio C. Davis against the heirs of Goodrum Davis. There was a judgment for defendants, and plaintiffs appeal.

<p>1. Sales (§ 166*) — Sale of Machinery — Duty to Remedy Defects.</p> <p>Where machinery, purchased for particular use, is so defective in design or construction, or both, as to be incapable of rendering the service •contemplated by the contract, the obligation rests upon the vendor to ascertain the nature of the defects and to cure them.</p> <p>[Ed. Note. — Por other cases, see Sales, Cent. Dig. § 394; Dec. Dig. § 166.*]</p> <p>■2. Prescription — Reconventional Demand —Ignorance of Grounds of Action.</p> <p>In a case where machinery has been sold which proves to be defective in design or construction, but the exact nature of the defects in which is a matter of dispute, determinable only by expert opinion, and where the vendor, after repeated efforts, abandons the attempt to cure such defects, the prescription of the action, brought by way of reconventional demand, to .avoid the contract and recover the portion of the price paid, begins to run only when the vendee discovers that such defects are redhibitory and the vendor abandons his attempt to cure them.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 473; Dee. Dig. § 95.*]</p> <p>3. Appeal and Error (§ 173*) — Presentation and Reservation of Grounds of Review — Questions Not Raised Below.</p> <p>Where a vendor of machinery sues upon notes given for a balance due on the contract price and is met by a demand, in reconvention, for the avoidance of the contract and the repetition of the amount already paid, upon the-ground that the machinery proved to be defective, such demand will not be dismissed, upon an objection, urged for the first time in this court, that no tender has been made of the machinery ; but the rights of the plaintiff, with respect to its return, as a condition precedent to the execution of the judgment for the repetition of the price, will be protected.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 1085; Dec. Dig. § 173.*]</p> <p>(Syllabus by the Court.)</p>