Volume 124 — Louisiana Reports

<p>1. Master and Servant (§ 217*) — Injuries to Servant — Assumption op Risk.</p> <p>The servant assumes the ordinary risks incident to his employment, and those of which he has actual knowledge, and he is chargeable with knowledge of risks which are obvious and of those of which he might acquire actual knowledge by the use of ordinary care; due allowance being made for youth, inexperience, and lack of intelligence.</p> <p>2. Master and Servant (§ 280*) — Injury to Servant — Assumption op Risk.</p> <p>Where, in a sawmill, the ends of two heavy planks become jammed beneath a revolving shaft in such a manner as to press against the shaft in juxtaposition to two cogwheels in plain view, the danger incurred by a workman, who, wearing gloves with flaring gauntlets, undertakes to dislodge the planks by so taking hold of them that his gloves, or gauntlets, are brought in contact with the cogwheels, or with a set screw by which one of the wheels is fastened to the shaft, is an obvious one, which a workman of average intelligence must be considered to have assumed.</p> <p>(Syllabus by the Court.) '</p>

<p>1. Donations — Rescission by Consent.</p> <p>A donation inter vivos of real estate from a father to a daughter may be rescinded or modified at any time by the mutual consent of the parties.</p> <p>2. Donations — Rescission — Rights of Expectant Heirs.</p> <p>In such a case the return of the property cancels the donation, and the presumptive forced heirs of the parties have no standing to complain of the retrocession of the property.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law (§ 1181*) — Review — Remand for Further ’Evidence — After Judgment.</p> <p>The points raised were not urged in the district court before judgment on motion to have it decreed a nullity.</p> <p>2. Evidence Needful to Decision.</p> <p>In consequence material evidence which respondent alleges, if obtainable, is not before the court.</p> <p>3. Remanded.</p> <p>The case is returned, in order that the evidence may be offered and, if admissible, admitted.</p> <p>4. Points Reserved.</p> <p>The court declines to pass upon the points involved and leaves the questions to be determined after the evidence will have been offered.</p> <p>5. Nominal Sureties.</p> <p>One of the allegations being that these sureties were secured by a deposit of funds made by the principal, the case is remanded, mainly to afford an opportunity to prove that allegation. Louisiana Society, etc., v. Moody, 52 La. Ann. 1815, 28 South. 224.</p> <p>(Syllabus by the Court.)</p>

<p>Action by W. P. Connell, receiver, against W. F. Barber. Judgment for defendant. Application by plaintiff for writs of certiorari and mandamus to compel respondent judge to grant a suspensive appeal.</p>

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

Action by John F. Lindner against W. F. 'Stock and others. Judgment for plaintiff, and defendant appealed to the Court of Appeal, and plaintiff applies to the Supreme Court for a writ of prohibition to restrain hearing on the appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; Andrew Jackson Murff, Judge.</p> <p>Action by the Texas & Pacific Railway Company against J. B. Railsback. Judgment for defendant, and plaintiff appeals.</p>

Action by W. W. Sanders against the Natalbany Lumber Company, Limited. Judgment for plaintiff, and defendant appeals. The following is the sketch referred to in the opinion:

Application of James Bradford to probate the last will and testament of John W. Bradford, to which Mrs. Ább Dear and others filed objections. From a decree allowing probate, opponents appeal.

<p>Homestead (§ 95*) — Judicial Mortgage — - Conflicting Rights.</p> <p>Homestead rights cannot come into existence as against a judicial mortgage which attached to the land before it became a homestead.</p>

Appeal.from Civil District Court, Parish of Orleans; John St. Paul, Judge. . Action by .the Illinois Central Railroad Company and others against the St. Louis & San Francisco Railroad Company and others. Prom a judgment sustaining a demurrer to the petition, plaintiffs appeal.

<p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 720.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 826.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1829-1832; Dec. Dig. § 774.*]</p>

<p>[Ed. Note. — Eor other cases, see Larceny, Dec. Dig. § 19.*]</p> <p>[Ed. Note. — Eor other cases, see Larceny, Dec. Dig. § 2.*]</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 36; Dee. Dig. § 20.*]</p>

L. Arthur Delacroix and others were ■charged with malicious libel and petition for an order for examination of the books of the official alleged to have been libeled, and, from an order denying the examination, they apply for certiorari, mandamus, and prohibition.

T. Ellis, Judge. Succession of Albert Elmore. Prom a judgment annulling the will in favor of minor adulterine children, the dative testamentary executrix and the curator ad hoe appeal.

<p>[Ed. Note. — For other eases, 'see Homicide, Gent. Dig. § 684; Dec. Dig. § 316.*]</p>

<p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 559.*]</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 440.*]</p>

<p>Appeal from Juvenile Court, Parish of Orleans; Andrew Hartshorne Wilson, Judge.</p> <p>John Segreto and others were convicted of selling intoxicating liquors, and appeal.</p>

<p>1. Taxation (§ 805*) — Action to Annul Tax Titles — Prescription—Minors.</p> <p>The prescription of three years, established by article 233 of the Constitution, against actions to annul tax titles, applies to an action brought on behalf of a minor, notwithstanding that the minor may not have been provided with a tutor, and, hence may not have received notice of the intention to sell the property ; his recourse being upon those whose duty it was to see that he was provided with a tutor.</p> <p>2. Constitutional Law (§ 308*) — Due Process oe Law.</p> <p>And the application of the prescription in such case does not deprive the minor of his property without due process of law.</p> <p>(Syllabus by the Court.)</p>

<p>[Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 66;' Dec. Dig'. § 38.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1159.*]</p>

<p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 886.*]</p>

<p>1. Evidence (§ 265*) — Admissions of Defendant-Effect.</p> <p>Plaintiff is at liberty to rely on the admissions of the defendant as made, or on evidence to be offered by himself, for the establishment of the facts necessary to his case. If he adopts the course first mentioned, he cannot expect the court to divide the admissions of the defendant to the prejudice of the latter, or to hold that defendant should prove that he is not liable upon a claim for which neither his admissions nor any evidence in the record tends to show that he is liable.</p> <p>2. Hawkers and Peddlers (§ 3*) — Drummers.</p> <p>Act No. 49, p. 108, of 1904, does not attempt to classify “drummers,” representing" merchantile houses established in .other states, and soliciting orders or selling by sample, as hawkers or peddlers, or to impose any license tax on them, and a person engaged in such business has therefore no interest to attack its constitutionality.</p> <p>For other definitions, see Words and Ph -ases, vol. 4, pp. 3220-3222; vol. 6, pp. 5200-5237; vol. 8, p. 7750.]</p> <p>(Syllabus by the Court.)</p>

<p>[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. § 826; Dec. Dig. § 324.*]</p> <p>[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. § 826; Dec. Dig. § 324.*]</p>

Action by Victor Grandchampt against the administrator of the Succession of J. Billis and others, and application of R. S. Cameron for the probate of the last will of Lola Billis. The actions were consolidated, and, from the judgment, plaintiffs appeal.

In the matter of the succession of Allen Lynch. From an order dismissing petition to set aside the probate of an alleged will, Mrs. Anthony Hollins appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; Andrew Jackson Murff, Judge.</p> <p>Action by C. R. Mower against D. C. Richardson. Judgment for defendant. Plaintiff appeals.</p>

<p>1. Criminal Law (§ 448*) — Evidence—Opinions.</p> <p>In a prosecution for homicide, a question asking for witness’ opinion from the appearance and acts of the parties at the time of the difficulty as to which of the parties was in most danger of being shot was properly disallowed.</p> <p>2. Homicide (§ 188*) — Evidence—Character —Reputation of Family.</p> <p>A witness having testified to the bad reputation of deceased for violence, defendant could not go further and show the reputation of deceased’s family for violence, fighting, etc.</p> <p>3. Criminal Law (§ 1092*) — Bill of Exceptions — Explanation of Rulings.</p> <p>District judges before signing bills of exceptions should scrutinize them carefully and disclose in a per curiam the basis for their ruling.</p> <p>4. Criminal Law (§ 1171*) — Improper Argument of District Attorney — Appeal — Prejudice.</p> <p>Defendant, in a prosecution for homicide 'having been convicted of manslaughter, was not prejudiced by a statement of the district attorney in argument that defendant’s character did not show up well from proof that he was going around with a weapon concealed on his person.</p> <p>Monroe, J., dissenting in part.</p>

Application by the State, on the relation of James E. Edmunds, for writ of mandamus against Paul C-apdevielle, Auditor. From'an order granting the writ, defendant appeals.

Action by W. P. Johnson against Joseph Murphy. Judgment for plaintiff, and judgment pro confesso against the D. H. Holmes Company, Limited, garnishee. Judgment affirmed by the Court of Appeal, and the Holmes Company, Limited, applies for certiorari or writ of review.

Action by the S. M. Jones Company against the Home Oil & Development Company. Certain parties filed objections to the receiver’s account, and from the judgment the receiver, plaintiff, and other judgment creditors appeal.

<p>1. Intoxicating Liquors (§ 45*) — Statutes —Repeal.</p> <p>Act No. _ 107, p. 161, of 1902, relating to-the sale of liquors without a license, does not repeal Rev. St. §' 910, as amended by Act No. 66, p. 93, of 1902, as both acts have full scope in reference to subjects to which they apply.</p> <p>2. Criminal Law (§ 1206*) — Punishment— Maximum and Minimum Penalties.</p> <p>Act_No. 66, _p. 93, of 1902, relating to the sale of liquors without a license, is not violative of Const. 189S, art. 155, providing that the Legislature shall fix the minimum and maximum penalties for misdemeanors.</p>

<p>Taxation (§ 100*) — Liability oe Property to be Exported.</p> <p>-Staves which are held in the state for export and are retained in the state for an indefinite period are liable to taxation.</p>

Action by Peter Durel against James C. Murphy. Judgment for defendant, and plaintiff appeals, and defendant moves to dismiss the appeal.

<p>1. Contracts (§ 300*) — Construction—Stipulation as to Delay.</p> <p>Where a building contract to be performed on or before a fixed date contained a stipulation that in case of failure to complete the building the contractor should pay liquidated damages at a certain rate per diem, but should be given an extension for delays met due to causes or casualties beyond his control. Held, that the contractor was not entitled to an extension for rainy days, holidays, or for time lost by the failure of his subcontractors to furnish materials or perform work. Held, further, that delays caused by the owner or by the municipal authorities should be credited to the contractor.</p> <p>(Syllabus by the Court.)</p> <p>2. Words and Phrases — “Casualty” — “Fortuitous Event.”</p> <p>Casualty means inevitable accident, or what Civ. Code, art. 1933, calls a “fortuitous event.” A cause beyond human control may be a “fortuitous event” or “irresistible force.”</p> <p>3.'Words and Phrases — “Irresistible Force.”</p> <p>By “irresistible force” is meant such an interposition of human agency as is, from its nature and power, absolutely uncontrollable. It may result also from a cause beyond human control.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Eliott, Judge.</p> <p>Action by Nancy Davidson against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

W. Ellis, Judge. Action by the Tabernacle Baptist Church against Samuel C. Green and others. Judgment for plaintiff in part, and defendants appeal, and plaintiff joins therein.

<p>1. Municipal Corporations (§ 62*) — Defining Duties of Officer — Delegation of-Power.</p> <p>It is a violation of a city charter, confiding to the council the power of defining the duties of the auditor, for the council to attempt to delegate this power to the mayor.</p> <p>2. Municipal Corporations (§ 155*) — Removal of Officers.</p> <p>The provision of a city charter authorizing the council to remove any officer or employs-when his service is no longer necessary to the public interest cannot apply to the auditor, whose office, created by the charter with certain prescribed duties, some of which are essential to the operation of the city government, and which must be performed by him alone, cannot possibly cease to be necessary.</p> <p>3. Mandamus (§ 76*) — Salaries of Officers. —Interference of Court.</p> <p>The court may interpose where a city council, having no power to abolish an office created by the charter, or to remove the officer except for cause, manifestly attempts to do this indirectly, by abuse ot its discretion to fix the-salary of the officer, fixing it so low that no-competent person will accept the office.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 158-160; Dec. Dig. § 76.*]</p> <p>4.- Municipal Corporations (§ 164*) — Salary of Officers — Interference of Court.</p> <p>A city council empowered, in the exercise of its discretion, to fix- the salary of the city auditor at a sum not exceeding $1,500 per year, having reduced it from $1,500 to $300, in a manifest attempt to abolish the office, which it could not do, or to remove the officer, which it could not do in the absence of cause, will' be ordered to restore it to not less than. $900; the evidence showing that to be the lowest reasonable salary for the office, and any amount above that being a matter of discretion.</p> <p>Nicholls and Monroe, JJ., dissenting.</p>

Action by the Robert Gair Company against the Columbia Rice Packing Company, Limited, and another. There was a judgment for plaintiff against the defendant the Columbia Rice Packing Company, and in favor of co-defendant the Crowley Rice Milling Company, and plaintiff appeals.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert Stephens Ellis, Judge.</p> <p>Avery Llount was convicted of murder, and he appeals.</p>

<p>1. Courts (§ 93*) — Previous Decisions as Controlling.</p> <p>Principles laid down in matter of interpretation of the will of the lawmaking power should not he recalled save for the most cogent and controlling reasons.</p> <p>2. Change in Decision.</p> <p>When change becomes unavoidable because of different opinion arrived at, it should extend no further than actually necessary.</p> <p>3. Judgment (§ 668*) — Conclusiveness—Persons .Concluded.</p> <p>Those who were parties to a former litigation and have accepted the terms of a decision and have acted thereon are not to be considered as if they were third persons regarding views expressed contradictorily with them.</p> <p>4. Ratification of Election.</p> <p>An election was held in the interest of local improvement. Owing to recent opinion expressed. another election was held to ratify and confirm that which was previously done. The prior proceedings were properly ratified and confirmed.</p> <p>5. Legal Election.</p> <p>The last election, considered separately and apart from the first, is in itself legal; all the requirements have been complied with.</p> <p>6. Taxes Separately Classified.</p> <p>The ad valorem tax and the acreage tax • were classified separately, and bonds issued secured as to their payment by each.</p> <p>7. Drains (§ 18*) — Bond Issue Election— Irreg ularities — Cure.</p> <p>The consideration is the work done and to be done in draining the district. It is complete and valid from first to last. It relates back a few months. It is all part of one continuous plan of drainage, and the dating of the bonds is not, under the circumstances, an act which invalidates the bonds in any respect. The election and the issue of the bonds were made legal, if they were not previously, by the last election.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George Henry ThSard, Judge.</p> <p>Action by Alice D. Lyons and another against the Woman’s League of New Orleans. Judgment for defendant, and plaintiffs appeal.</p>

<p>[Ed. Note. — -For other cases, see Exemptions, Cent. Dig. §§ 52, 53; Dec. Dig. § 44.*]</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 41; Dec. Dig. § 39.*]</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of West Baton Rouge; L. B.'Claiborne, Judge.</p> <p>Action by the Henry Lochte Company, Limited, against Victor M. Lefebvre, in wbicb action the People’s Bank intervened. •Judgment for plaintiff, and intervener appeals.</p>

King, Judge. In the matter of the succession of Julia P. Drysdale. From a judgment refusing probate to the will propounded, the executors appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. I-Cing, Judge.</p> <p>In the matter of the succession of Julia P. Drysdale. From a judgment against the executors, they appeal.</p>

<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 and another. Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Adam H. Litolff against the New Orleans Railway & Light Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Habeas Corpus (§ 4*) — Application to Supreme Court — Dismissal.</p> <p>In matter of an application for a writ of habeas corpus.</p> <p>The Supreme Court may refer the application to the court of original jurisdiction, in order that the facts may be taken down and a decision rendered. State ex rel. Condon v. Duson, 36 La. Ann. 855; State ex rel. Bauman v. Sheriff, 44 La. Ann. 1015, 11 South. 541; State v. McColfey, 115 La. 406, 39 South. 81.</p> <p>This is particularly true in a case in which the judgment of a court a qua may be reviewed on appeal.</p> <p>The case is reviewable. Prieto v. St. Alphonsus Convent of Mercy, 52 La. Ann. 631, 27 South. 153, 47 L. R. A. 656; State ex rel. Lassere v. Michel, 105 La. 741, 30 South. 122, 54 L. R. A. 927.</p> <p>(Syllabus by the Court.)</p>

<p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 139; Dec. Dig. § 39.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1144.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1485; Dec. Dig. § 639.*]</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 150,; Dec. Dig. § 39.*]</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 288; Dec. Dig. § 211.*]</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 4; Dec. Dig. § 2*</p>

<p>Appeal from Civil District Court, Parish of Orleans; Frederic Durieve King, Judge.</p> <p>Action by Thomas J. Shea against the Sewerage & Water Board of New Orleans. From a judgment for plaintiff, defendant appeals.</p>

In. the matter of the application of John F. Ryan for a writ of habeas corpus, or for certiorari and mandamus to compel respondent to hear an application for habeas corpus.

Application by the Jeanerette Lumber & Shingle Company, Limited, and others, 'for writs of certiorari, mandamus, and p>rohibition against the Police Jury of the Parish of St. Martin and others to review an order dissolving an injunction on bond. Application denied.

<p>John J. Holtgreve was convicted of crime, and applies for writs of certiorari and prohibition.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua G. Baker, Judge.</p> <p>Susie Lawrence was convicted of murder, and appeals.</p>

Garnishment by the Edward Thompson Company against W. J. Durand. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>1. Pledges (§ 27*) — Liability op PledgeeRental Value op Property Pledged.</p> <p>The pledgee of oil machinery, who has not used the same for his own benefit, cannot be charged with its rental value by the pledgor, who has failed to redeem it pursuant to contract.</p> <p>2. Appeal and Error (§ 842*) — Review-Question of Fact.</p> <p>The question of damages to oil machiner-y while held in pledge is an issue of fact, on which the judgment below will not be disturbed, unless clearly erroneous.</p> <p>3. Contracts (§ 319*) — Performance—Supplemental Contract — Default.</p> <p>When a contract to sink a well to a certain depth has been performed, and the driller has thereby earned the stipulated compensation, his failure to comply with a supplemental contract to sink the -well deeper -will not affect the right acquired under the previous contract.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by I-Iewes T. Gurley against the City of New Orleans for an injunction. Judgment for defendant, and plaintiff appeals.</p>

Consolidated actions between Fuller Bros, and .1. P. Duke, and between S. S. Gullatt & Bros, against J. P. Duke and others, in which Charles Mathews intervenes. From the judgment of the Court of Appeal, the intervener applies for certiorari or writ of review.

<p>Certiorari to Court of Appeal, Parish of Sabine.</p> <p>Action by J. N. Davenport against T. B. Allen & Co. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.</p>

H. J. Sandoloski was charged with illegally soliciting orders for liquors, and, his motion for a bill of particulars having been denied, he applies for a writ of certiorari and a rule to show cause why mandamus should not issue compelling the granting of a bill of particulars.

Action by D. E. Corbitt and others against Rasmus Hanson, O. B. Law, and others. Judgment rendered for defendants was affirmed in part, and in other respects set aside and rendered for plaintiffs. Defendant Law applies for mandamus to enforce the judgment in his favor.

<p>1. .Taxation (§ 805*) — Tax Deed — Setting Aside — Pkesckiptio n .</p> <p>After the lapse of three years from the adoption of the Constitution of 1898, the party in possession under a duly recorded tax deed in the usual form cannot be disturbed, except for one of the two causes specified in article 233 of the Constitution of 1898 — that of dual assessment and that of antecedent payment of taxes.</p> <p>2. Taxation (§ 805*) — Tax Sale — Curative Act.</p> <p>A tax sale made under an actual assessment, however irregular or illegal, comes within the curative scope of article 233 of the Constitution of 1898.</p> <p>(Syllabus by the Court.)</p>

Etienne B. Cognevich was convicted of • crime, and he applies for writs of cértiorari and prohibition to review the judgment of -the criminal district court affirming the conviction.

<p>1. Municipal Corporations (§ 705*) — Streets — Injuries to Pedestrians — Collisions — Negligence.</p> <p>Where a beginner in the management of an automobile concentrated his attention on a curve which he was executing, and not on what was ahead of him, and did not see a pedestrian until he was right on her, and he then failed to stop, as he could have done, within a foot or two, but ran his machine some eight feet after he had knocked the pedestrian down, the juridical cause of the accident was his inattention to what was ahead of him in the street, combined with his lack of skill in the management of the machine, authorizing a récovery.</p> <p>2. Municipal Corporations (§ 705*)— Streets — Injuries to Pedestrians — Collisions — Negligence.</p> <p>Where a pedestrian, struck by an automobile, had time to run from a point 3 feet from the east gutter of a street about 29 feet wide to a point beyond the middle of the street, and beyond the automobile, which was on the west side of the street, a competent operator had ample time in which to stop, and the cause of the accident to the pedestrian was the fault of the operator in venturing on the streets without knowing how to make an emergency stop.</p> <p>3. Municipal Corporations (§ 705*) — Streets — Injuries to Pedestrian — Voluntary Acts — Acts Resulting ebom Terror.</p> <p>The act of a pedestrian in running in front of an automobile as a result of terror, caused by discovering the automobile near him, is not voluntary, and it is not negligence.</p> <p>4. Municipal Corporations (§ 705*) — Streets — Injuries to Pedestrian — Collisions — Negligence.</p> <p>Where a pedestrian, because of terror, ran in front of an automobile, and the operator saw the danger to the pedestrian in time to avoid the accident by stopping, but he failed to do so, and ran over the pedestrian, the operator was liable under the last chance doctrine.</p> <p>5. Municipal Corporations (§ 706*) — Streets — Collisions — Petition — Sufficiency.</p> <p>The petition in an action for injuries to pedestrian, struck by an automobile, which shows the condition of the street where the collision occurred and the surrounding circumstances, and which alleges that the operator of the automobile was running it in a careless and reckless manner, and neglected to stop it, is sufficiently specific.</p> <p>6. Appeal and Error (§ 1004*) — Review-Verdict — Approval by Court — Excessive Damages.</p> <p>A woman 60 years old was knocked down by an automobile and dragged. Her thigh bone was fractured in two places. She suffered excruciatingly for months. The injury would cause her to hobble with a stick, instead of walk, for the rest of her life. She was put to large expenses. Held, that a verdict of $3,250, approved by the trial judge, would not be disturbed as excessive.</p>

W. Ott, Judge ad hoc. Action by Rosa Byrd and others against Luzene P. Pierce and another, in which Olivia Pierce and another intervened. Judgment for defendants, and plaintiffs appeal.

<p>[Ed. Note. — For other cases, see Levees, Cent. Dig. § 19; Dec. Dig. -§ 32.*]</p>

C. W. Ellis, Judge. Action by the New Orleans, Ft. Jackson & Grand Isle Railroad Company against the New Orleans Southern Railway Company. Judgment for defendant, and plaintiff appeals, and defendant moves to dismiss the appeal. Motion overruled.

R. _J. Miller and others were convicted of crime, and John Arthur and others apply for writ of mandamus to compel the trial judge to deliver to the clerk his written charge and certain memoranda on which bills of exception were reserved.

<p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 912% ;* Indictment and Information, Cent. Dig. §§ 516-523 ; Dec. Dig. § 161.*]</p>

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

Action by the Petit Anse Gotean Drainage District against the Iberia & Vermilion Railroad Company. Judgment for plaintiff, and defendant appeals. The following is the plat referred to in the opinion:

In tlie matter of the succession of F. M. Pavey. Application by Adolph V. Coco, agent, and others, for writs of mandamus and prohibition.

Lew Rose was convicted of violating the child labor law (Act No. 301, p. 453, of 1908), and pending his appeal applied-for a writ of prohibition to stay subsequent proceedings against him for violation of the same statute.

<p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 375-378, 4S6-4S8; Dec. Dig. § 196.*]</p> <p>■ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3954; Dee. Dig. § 1005.*]</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944^3947; Dec: Dig.- § 1004.*] . , .</p>

Chrétien, Judge. George Gantz was charged with performing the work of a master electrician without having obtained a license, and, his demurrer having been sustained, the State appeals.

Action for an injunction by the Baldwin Lumber Company, Limited, against Nathan IC Todd and others. The injunction prayed was denied, and plaintiff applies for writs of mandamus and certiorari. Application

<p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig'. § 2589; Dec. Dig. § 1023.*]</p>

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

<p>1. Insurance (§ 4*) — Provisions Necessary in Charters.</p> <p>Section 2 of Act No. 105, p. 134, of 1898, providing what provisions the charters of all insurance companies must contain, has not been repealed by subsequent legislation.</p> <p>2. Insurance (§ 5*) — Provisions Necessary in Charters.</p> <p>The Secretary of State properly refused to issue a certificate and license to a proposed industrial life insurance company whose charter failed to conform to several of the requirement;! of section 2 of Act No. 105, p. 134, of 1898.</p> <p>(Syllabus by the Court.)</p>

<p>1. Insurance (§ 600*) — Subrogation — Actions — Parties. , .</p> <p>Where the owner of property which has- • been destroyed by fire through another’s negligence has been paid part of his losses by an insurer, who thereby becomes subrogated to the remedies of the assured, an action to recover from the wrongdoer the value of the property destroyed is properly brought in the name of the assured, and the insurer is not a necessary party to such action. The wrongful act is indivisible, and gives rise to but one cause of action.</p> <p>2. Electricity (§ 16*) — Actions for Damages — Defenses.</p> <p>The fixtures for plaintiffs’ dwelling had for years been used, without injury or loss, in connection with the electrical wires by which the defendant company lighted the house. They had been accepted as sufficient by the company. Had anything been wrong about them, it was the company’s duty to have, by examination ancf. inspection, ascertained and reported the fact. It was engaged in that particular business, and' had knowledge of what was required for safety. The other party did not.</p> <p>3. Electricity (§ 19*) — Actions for Damages — Sufficiency of Evidence.</p> <p>The evidence on the trial satisfied the jury that on the day of the fire which injured plaintiffs’ dwelling the defendant company, by its fault, passed through the wires by which the house was lighted a current of electricity of greater power and strength than the fixtures in the house were prepared to receive and meet. The court is not prepared to say that the conclusions of the jury are erroneous.</p> <p>Monroe, J., dissenting.</p> <p>On Rehearing.</p> <p>4. Appeal and Error (§ 901*) — Burden to Show Error.</p> <p>The.burden rests on an appellant to show, to the satisfaction of this court, that the judgment complained of is incorrect; and where that is not done, and this court can feel no assurance that it could render a judgment that would come nearer doing justice, the judgment appealed from will be affirmed.</p> <p>(Syllabus by the Court.)</p>

Action in the city court of Shreveport by H. L. Baih & Co. against Zach Olipbant. Plaintiff obtained judgment, and thereafter, under execution, garnished the Morris & Dickson Company, Limited, against whom judgment was rendered pro confesso. The Morris & Dickson Company, Limited, thereupon appealed to the district court, where the appeal was dismissed, and then it applied for writs of certiorari and mandamus to reinstate the same.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas ,C. W. Ellis, Judge.</p> <p>Action by Mrs. Margaret Reynolds against Mary L. Egan. Judgment for defendant, and plaintiff appeals. Motion by plaintiff to be allowed to file her motion, order of appeal, and a copy of her bond omitted by the clerk, and to be allowed to annex the transcript of another appeal.</p>

Action by the Priscoville Realty Company against the Police Jury of the Parish of St. Bernard. On an order denying plaintiff’s application for a suspensive appeal from an ex parte order dissolving an injunction on bond, he applies for mandamus, certiorari, and prohibition to require the granting of such appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the estate of H. C. Minor against J. Edward Crusel. Judgment for plaintiff, and defendant appeals.</p>

Théard, Judge. Action by Jane West Benedict and others against Mrs. George Pasley and others. Judgment for plaintiffs, and defendants appeal. Plaintiffs move to dismiss the appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Edna L. Harvey against Horace II. Harvey. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Louis Landry against the Ramos Lumber & Manufacturing Company, Limited. Plaintiff had judgment, which was affirmed in a Court of Appeal, and defendant applies for certiorari or writ of review to the Court of Appeal.</p>

Action by Helena Aucoin against the Ramos Lumber & Manufacturing Company, Limited. Plaintiff bad judgment, which was affirmed by a Court of Appeal, and defendant applies for certiorari or writ of review to the Court of Appeal.

Action by Elies Simoneaux against the Ramos Lumber & Manufacturing Company, Limited. Plaintiff had judgment, which was affirmed by a Court of Appeal, and defendant applies for certiorari or writ of review to the Court of Appeal.

Action by the State, on the relation of A. N. Muller, District Attorney, and others, against Paul N. Cyr and others. Judgment for relators, and respondents apply for writs of certiorari and prohibition.

Action by Dudley G. Moore against the ■Gulf Refining Company and others. Judgment for plaintiff and the Gulf Refining Company appealed to the Court of Appeal, which court certifies questions to the Supreme ■Court.

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by the I. Trager Company against the Cavaroc Gompany, Limited. From the judgment, plaintiff appeals.</p>

<p>[Ed. Note. — For other cases, sec Criminal Law, Cent. Dig. §§ 822-S24; Dec. Dig. § 369.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2894; Dec. Dig. § 1111.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.*]</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 584; Dec. Dig. § 176.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1679; Dec. Dig. § 724.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.*]</p> <p>[Ed. Note. — For other eases, see Criminal Law, Dec. Dig. § 1092.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2818; Dec. Dig. § 1091.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2059; Dec. Dig. § 858.*]</p>

The Tulane Improvement Company, Limited, having obtained judgment against the W. B. Green Photo Supply Company for rent, proceeded by rule against J. D. Bloom, a subtenant of the Photo Supply Company. The rule was dismissed, and plaintiff appealed to the Court of Appeal, where the judgment was affirmed, and plaintiff applies for certiorari or writ of review to the Court of Appeal.

The Interstate Trust & Banking Company sued out an order of seizure and sale on a mortgage note against Powell Bros. & Sanders Company, Limited, and Thomas C. Win-gate, receiver. An appeal suspensive and devolutive was granted the receiver from an order dismissing his suspensive appeal from a decree of foreclosure and a suspensive appeal from the order of seizure and sale, and plaintiff applies,for writs of certiorari, mandamus, and prohibition.

<p>1. Statutes (§ 114*) — Title of Act — Sufficiency.</p> <p>Act No. 209, p. 312, of 1908, purporting to amend and re-enact section 5 of Act No. 171, p. 392, oil 1898, imposing a license tax on pawnbrokers, is unconstitutional, null, and void, to the extent that it provides for a license tax on money lenders generally.</p> <p>2. Statutes (§ 109*) — Title of Act — Sufficiency.</p> <p>An ac,t purporting to amend a certain section of a general law is limited in its scope to the subject-matter of the section proposed to be amended, under a constitutional provision that “every law shall embrace but one object, and that shall be expressed in the title.”</p> <p>(Syllabus by the Court.)</p>

<p>1. Taxation (§ 196*) — Exemptions — Taxes Aeeected by.</p> <p>The general temporary exemption of new railroads from “taxation,” as granted in article 230 of the Constitution of 1898 and in the constitutional amendment of 1904 (Laws 1904, p. 19, No. 16), includes all ad valorem district levee taxes, but not local assessments, such as acreage and produce taxes and the mileage tax levied on railroads.</p> <p>2. Constitutional Law (§ 9*) — State Constitution — Submission to Popular AVie.</p> <p>The railroad tax exemption set forth in article 230 of the Constitution of 1898 does not violate any of the restrictions enumerated in the enabling act (Act No. 52, p. 85, of 1896), and said act has no application to the constitutional amendment of 1904, under which the plaintiff claims exemption from ad valorem taxes.</p> <p>3. Constitutional Law (§ 6*) — Power to Amend State Constitution — Limitations.</p> <p>The power of the people to amend or revise their state Constitutions is limited only by the prohibitions contained in the Constitution of the United States, none of which have been pleaded in this case.</p> <p>4. Taxation (§ 206*) — Exemptions—Constitutional.</p> <p>The delegated power conferred on a political agency or corporation to levy a tax on all the taxable property within a certain district does not extend to property which comes into existence under the shelter of a constitutional exemption from taxation.</p> <p>(Syllabus by the Court.)</p> <p>5. Taxation (§ 1*) — “Tax” Defined.</p> <p>A “tax” has been variously defined as a burden, or charge imposed, or proportional contribution levied, by the sovereign, for the support of the government and for all public needs or purposes.</p> <p>For other definitions, see AVords and Phrases, vol. 8, pp. 6867-6886, 7813.]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas O. W. Ellis, Judge.</p> <p>Action by the Interstate Trust & Banking Company against the United States Fidelity & Guaranty Company. Judgment for defendant, and plaintiff appeals.</p>

Wilson, Judge. Julius Apfel was convicted on two affidavits, charging, respectively, the selling of liquor to a minor and permitting a minor to gamble in his barroom, and he appeals.

Proceedings by the State, on the relation of James Wilkinson, District Attorney, against Felix S. Hingle, to oust him from office. Judgment of ouster was affirmed by the Court of Appeal, and Hingle applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by E. G. Scklieder against James T. Boulet. Judgment for plaintiff, and defendant appeals.</p>

Action by Mrs. Eugenia Semple and others against the Frisco Land Company. Limited, and others. From a judgment appointing a receiver for defendant corporation, it appeals.

Mary; Charles A. O'Niell, Judge. Frank and Fielden Price were convicted of ■selling liquors to women, and for selling to both whites and negroes, and appeal.

D. King, Judge. In the matter of the succession of Elizabeth C. Maloney. Application of Harry H. Maloney for probate of alleged last will of deceased denied, and he appealed.

<p>Criminal Law (§ 721*) — Trial—Argument of District Attorney.</p> <p>The district attorney, in his argument to the jury, said: “The accused himself has testified that he jumped the fence, as testified to by one of the state witnesses.” To which it was objected that the accused had not so testified. Whereupon the district attorney explained that he was speaking figuratively, and what he meant was that the accused had _ admitted to the deputy sheriff that he had jumped the fence, and the deputy sheriff had testified to that fact, and therefore, figuratively, the accused had testified, through the deputy sheriff. “I could not have meant” (the district attorney proceeded to say) “that the accused had testified to that fact, because the accused has not testified at all. You know that he has not been on the stand.” Held, that the remarks of the district attorney implied no unfavorable construction of the failure of the accused to testify in his own behalf, and were not violative of either the letter or the spirit of the provision of Act No. 29, p. 39, of 1886, which reads: “And provided, further, that his failure to testify shall not be construed for or against him, but all testimony shall be weighed and considered according to the general rules of evidence, and the trial judge shall so charge the jury.”</p> <p>(Syllabus by the Court.)</p>

<p>Action by W. D. Turner against R. P. Woods. Judgment for plaintiff before a justice was reversed in the district court, and W. D. Turner applies for writs of certiorari and mandamus.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Action by Rosalie Basile, wife of Philip Taranto, against Philip Taranto. Judgment for plaintiff. Defendant appeals.</p>

Action by William Frantz & Co. against J. S. Winehill & Co. and another. Judgment for plaintiffs was reversed by the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

Action by A. Y. Roach against J. H. Craig. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Divorce (§ 129*) — Evidence—Adultery.</p> <p>The judgment in this case was in- plaintiff’s favor, dissolving the bonds of matrimony between herself and her husband. On appeal that judgment is affirmed.</p> <p>(Syllabus by the Court.)</p>

Action by Isaac L. Weil against Sam Bonart. Judgment for plaintiff was reversed by the Court of Appeal, and. plaintiff applies for certiorari or writ of review.

<p>1. Specific Performance (§ 13*) — When Granted — Damages .</p> <p>Specific performance is not a remedy which can be demanded as of right in every case of violation of contract. The party aggrieved' by such violation is in ordinary cases entitled only to damages. Specific performance is a character of relief which should be granted only where under the circumstances the thing ordered to be done is within the legal capacity of the party ordered to do it and the rights of parties not before the court are not involved.</p> <p>2. Specific Performance (§ 13*) — When Granted.</p> <p>Courts should not order a party to jdo that which legally he is not entitled to do.</p> <p>(Syllabus by the Court.)</p>

<p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1158.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2666, 2667; Dec. Dig. § 1055.*]</p>

Ellis, Judge. Will Varnado and another were tried for a capital offense, and the jury was discharged without verdict. From'a judgment denying a motion to discharge defendants on the ground that they had been placed in jeopardy, they appeal.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.</p> <p>Action by Robert P. Voinche against the Town of Marksville. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Lyle Saxon against the City of New Orleans and another, judgment for defendants. Plaintiff appeals.</p>

Buster Berlin was indicted for willfully cutting down trees, and appeals. From an order forfeiting the bond, he appeals.

<p>1. Judges (§ 56*) — Recusation—Right to Revise Order.</p> <p>A district judge, having recused himself and appointed a judge ad hoc to try the case, retains jurisdiction to review and revise the order of appointment, on the suggestion of the accused 'that the judge ad hoc was disqualified to sit in the case.</p> <p>2. Judges (§§49, 51*) — Recusation—Grounds —Reference of Motion to Another Judge.</p> <p>The fact that a judge may have formed and expressed an opinion on the merits of a cause furnished no ground for his recusation. Such a suggestion is frivolous, and may be disregarded, without the formality of a reference to another judge.</p> <p>3. Cbiminal Law (§' 1158*) — Review—Foundation foe Confession.</p> <p>Whether a sufficient basis was laid for the admission of an alleged voluntary confession of the accused is a question of fact, on which the ruling of the trial judge will not be disturbed, unless clearly against the preponderance of the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law (§ 625*)— Present Insanity —Procedure.</p> <p>' Where a plea of present insanity is made on behalf of the accused, the judge may appoint a commission of experts to inquire into the mental condition of the defendant, or may refer the issue to a jury.</p> <p>2. Criminal Law (§ 625*) — Insanity at Trial — Separate Issue — Trial—Effect.</p> <p>The arraignment of the accused and the fixing of the case for trial, after the appointment of such a commission, will not be set aside, where it appears that the commission subsequently reported that the accused was not insane. '•</p> <p>3. Criminal Law . (§ 421*) — Insanity—Evidence.</p> <p>The insanity of a person whose mental condition'is at issue cannot be proved by reputation in the family or by general reputation.</p> <p>4. Criminal Law (§ 825*) — Objections to Instructions — Request for Special Instruction.</p> <p>A general objection to a charge on the subject of insanity, accompanied by no request for special instruction, will not avail.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Poiute Coupee; Louis B. Claiborne, Judge.</p> <p>James Labry was convicted of manslaughter, and appeals.</p>

King, Judge. The administrator of the succession of Marie Louise Morgan, widow oi the late Charles A. Whitney, filed an account, in which he allowed and proposed to pay W. Morgan Gurley, a notary public, a certain fee for taking an inventory. Guriey opposed the account on the ground that the allowance was inadequate, and, his opposition having been dismissed, he appeals.

<p>[Ed. Note. — Por other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. § 102.*]</p> <p>[Ed. Note. — Por other cases, see Contracts, Cent. Dig. § 744; Dec. Dig. § 162.*]</p>

<p>1. Evidence (§ 586*) — Weight and Sufficiency-Positive and Negative.</p> <p>Where the plaintiff and four unimpeached witnesses swore positively that the slanderous words were uttered by the defendant, and his denial under oath is supported by the testimony of three witnesses to the effect that they heard words used by the parties to the altercation, but did not hear the alleged slanderous words, held, that such evidence is negative and noncorroborative, in the absence of proof that such words could not have been uttered without having been heard by such witnesses.</p> <p>2. Apfeal and Ekror (§ 1012*) — Review-Questions of Eact — Preponderance of Evidence.</p> <p>The constitutional jurisdiction of this court over the facts imposes the correlative duty of reversing verdicts and judgments when manifestly contrary to the preponderance of the evidence, and of rendering such judgment in the case as should have been rendered in the court below.</p> <p>(Syllabus by the Court.)</p>

<p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1673, 1682: Dec. Dig. § 803.*] -</p> <p>LEd. Note. — For other cases, see Evidence, Cent Dig. § 42; Dec. Dig. § 32;* Appeal and Error, Cent. Dig. § 2959.]</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Alex Williams was convicted of murder, and he appeals.</p>

Théard, Judge. ■ Action by B. C. Casanas and others against the Audubon Hotel Company, Limited, and others. Judgment for defendants, and plaintiffs appeal.

P. Madison, Judge.. Action by the Bank of Monroe against E. ■C. Drew Investment Company and others. Judgment for plaintiff, and the bank brings garnishment proceedings against the Ouachita Valley Bank and others. Judgment for the garnishee bank, and plaintiff appeals.

F. Brunot, Judge. In the matter of the succession of A. M. King. From the settlement of the provisional account, the curator appeals.

Theard, Judge. Consolidated actions by the Union Garment Company, Limited, against Sylvan New-burger and others, and by Hartwig Moss against Edward Ivory. From a judgment for the first-named plaintiff, Moss and others appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by William P. Blank and others against John Blank and others. From the judgment, the trustee defendant appeals.</p>

<p>1. Railroads (§ 113*) — Damages from Construction of Railroad — Franchise as Protection — Limit of Grant.</p> <p>The franchise will not protect the grantee who damages private property.</p> <p>2. Railroads (§ 114*) — Damages from Construction — Sufficiency of Evidence.</p> <p>The preponderance of the evidence sustains the amount of damages assessed.</p> <p>3. Substantially Same Amount Awarded.</p> <p>The amount does not differ substantially from that allowed for damages to other owners of property near by of about the same value.</p> <p>(Syllabus by the Court.)</p>

<p>Logs and Logging (§ 34*) — Contract of Millowner — Construction. '</p> <p>_A contract whereby a millowner agrees to receive logs, on the Ouachita river, during the floating season of 1900-07, does not oblige him to accept_ logs tendered in November or December, 1907, at which period the floating season of 1907-08 begins.</p> <p>(Syllabus by the Court.)</p>

<p>1. Elections (§ 98*) — Registration of Voters.</p> <p>An elector, who leaves the parish and precinct in which he is entitled to vote and removes to another parish, is not entitled to be registered in the parish and precinct from which he removes, after residing in the parish to which he removes for 10 months and while still residing there.</p> <p>2. Elections (§ 95*) — Registration of Voters — Statutes. ■</p> <p>The proviso, contained in section 35, Act No. 199, p. 465, of 1898, to the effect that “the name of no voter shall be stricken from the list of registration in any parish who has left said parish within six months of the time for holding the election; so that the elector shall not lose his right to vote in one parish before he has acquired his right to vote in another,” cannot be sustained as establishing a rule in conflict with that established by article 167 of the Constitution.</p> <p>3.Elections (§ 98*) — Registration of Voters — Qualification.</p> <p>No one is entitled to be registered as a voter who does not possess the qualifications required of a voter.</p> <p>(Syllabus by the Court.)</p>

F. Blackman, Judge. Petitory action by B. M. Pearce and' others against H. Frank Ford and others to recover an undivided three-fourths interest in land. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Clay Elliott, Judge.</p> <p>Action by the State against Hackley, 1-Iume & Joyce. Judgment for defendants, and plaintiff appeals.</p>

J. Murff, Judge. Specific performance by D. T. Manning against Heyman Cohen. Judgment for plaintiff for less than the relief demanded, and he appeals.

<p>1. Taxation (§ 253*) — Statutes — Modification of Revenue Law.</p> <p>Acts Í908, p. 230, No. 170, providing that notes and indebtedness and all evidence of indebtedness shall be taxable only at tbe situs and domicile of the holder or owner thereof, is not an interpretation, but a modification of the revenue law, having no retroactive effect.</p> <p>2. Taxation (§ 499*) — Assessments—Suit for Reduction — Limitations—Stay by Agreement — Prescription.</p> <p>The operation of Revenue Law (Acts 1S98, p. 360, No. 170) § 26, prescribing the time within which action shall he brought to test the correctness of an assessment, cannot be stayed by agreement by the assessors and tax collectors with tax debtors to await the result of pending suits.</p> <p>3. Taxation (§ 499*) — Correction of Assessment-Operation and Effect of Statute.</p> <p>Though assessments are grossly excessive, and the taxpayer made a correct return, courts can give no relief; action not being brought in the time prescribed by statute.</p> <p>4.Taxation (§ 347*)— Assessments — Excessiveness — Annulment in Toto.</p> <p>An assessment being intended, as such, and being such in fact, though grossly excessive, six times as large as it ought to be, is not absolutely null, on the ground of its being the result, not of exercise of judgment by the assessors as required by law, but merely of guessivork and caprice.</p> <p>Breaux, C. J., and Monroe, J., dissenting.</p>

<p>Appeal from Eighth Judicial District Court, Parish of Franklin; D. N. Thompson, Judge.</p> <p>Ora Latham was convicted of manslaughter, and appeals.</p>

<p>1. Banks and Banking (§ 148*) — Deposits— Payment of Forged Checks — Liability to Depositor — Negligence of Depositor.</p> <p>Plaintiff’s checks were always signed by himself and written by himself or his clerk. On November 21, 1905, his passbook was returned with the checks paid to that date, and three of the canceled checks, which were payable to bearer, and were not shown by the stubs of his checkbook, were in a handwriting entirely different from that of plaintiff or his clerk, except the signature, which was an exact imitation of plaintiff’s signature. Plaintiff discovered these facts at the time, but did not notify the bank, claiming at trial that he thought the fact that the checks were not shown in his stubs might be explained by his forgetting to enter them, and he was not sure at the time that they were forged. On January 25, 1906, IS other checks forged in the same manner were returned to him, when he notified the bank and sued to recover the entire amount of the forged checks. Held, that the fact that the checks, except the signature, were in a strange handwriting, was sufficient to arouse plaintiff’s suspicion and require him to inform the bank, and he could not recover the amount of the forged checks paid after November 21st.</p> <p>2. Banks and Banking (§ 148*) — Deposits— Payment of Forged Checks — Liability-Facts Putting Upon Inquiry — Absence of Date.</p> <p>That the year was not filled out on a forged check dated “New Orleans, La., Dee. 4, 19G ,” was not sufficient to-put the bank upon inquiry so as to make it liable for its payment.</p>

<p>Brokers (§ 65*) — Sale of Real Estate— Comeen satxo jst — Fraud .</p> <p>Services were rendered by plaintiff to defendant. The former was to find a purchaser for the latter.</p> <p>The purchaser was found and the sale made.</p> <p>The amount stipulated for the services was due.</p> <p>The plaintiff did not seek his own interest to the extent of forfeiting right to compensation.</p> <p>The fee was contingent. The sale was consented to by defendant readily without inquiry.</p> <p>There had been no agreement entered into between plaintiff and the one who bought the property, only general conversation which did not result in any agreement, prior to the sale. -</p> <p>Under the circumstances, there was no fraudulent concealment of facts.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by G. F. Hammar against J. B. & J. W. Atkins. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Edward T. Lewis, Judge.</p> <p>Action by the Widow Victor Lastrapes and others against the Colorado Southern, New Orleans & Pacific Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

Mary; Charles A. O’Niell, Judge. Frank and Fielden Price were convicted and fined for violating the law in relation to the sale of intoxicating liquors, and they appeal.

<p>Railroads (§§ 381, 387*) — Accident at Crossing — Contributory Negligence.</p> <p>It is negligence per se for a traveler to attempt to cross a railroad track a few feet m front of an advancing train, when warned of its approach, and when, by the exercise of the least degree of ordinary care, the imminent danger of the situation could have been discovered. In such a case, the negligence of the party injured, being the proximate cause of the accident, may be urged as a defense by the railroad company, although itself guilty of negligence contributing remotely to the happening of the accident.</p> <p>(Syllabus by the Court.)</p>

B. Dawkins, Judge. Suit by L. W. Hinton against J. S. Roane, constable, and others. From a judgment in part for plaintiff, defendants appealed, and plaintiff joined therein.

Tammany; Thomas M. Burns, Judge. John Perry was convicted of breaking and entering a dwelling house in the nighttime armed with dangerous weapons With intent to kill, and he appeals.

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Action by Charles D. Craighead and another against A. W. Connely, Sheriff, and others. Judgment for defendants, and plaintiffs appeal.</p>

' Appeal frbm' Fifteenth Judicial' District Court,'- Rarish of Calcasieu; D. B.'-Gorham, Judge'adhoc. - ’ John A. Perkins was indicted for embezzlement. From an order overruling a motion to recuse the presiding judge, defendant appeals.

<p>1. Criminal Law (§ 723*) — Trial—Remarks of Assistant District Attorney.</p> <p>The remark, addressed by counsel assisting the district attorney, with regard to friendship by a juror, examined on- his voir dire, for the accused, was not of such importance as to affect the judgment of the jurors by whom it , was heard.</p> <p>The talesman was excused by the court.</p> <p>2. Homicide (§ 216*) — Dying Declaration-Admissibility — Preliminary Evidence — Ante Mortem Statement.</p> <p>■ There was sufficient predicate laid for the admission of the dying declaration.</p> <p>3. Criminal Law (§ 359*) — Evidence—Motive.</p> <p>Evidence which does not tend to connect a third person with the crime charged is not admissible.</p> <p>4. Criminal Law (§§ 666, 720*) — Witness-Failure to Examine.</p> <p>The state is not bound to examine a witness in whom she has lost confidence, although subpoenaed by the state.</p> <p>Comment of counsel for the prosecution was not so harsh as to justify interference with the finding of the jury.</p> <p>5. Criminal Law (§ 720*) — Argument of Counsel.</p> <p>Argument of counsel assisting in the prosecution was on the hypothesis that the case presented an issue to the jury. The defense denied that there was such an issue before the court upon a particular point.</p> <p>From the record the 'court infers that the trial judge ruled correctly; that the point argued was not entirely dehors the record.</p> <p>6. Homicide (§ 314*) — Appeai>-Verdict.</p> <p>The jury had the authority to modify its verdict. The modification does not give rise to the inference that the jurors were not certain of the correctness of the verdict.</p> <p>(Syllabus by the Court.)</p>

<p>1. Municipal Corporations (§ 747*) — Offenses and Quasi Offenses — Liability oi Municipality».</p> <p>When the mayor of a town clears the banks of a stream of trespassers, in accordance with the will of the town council, he is performing a public duty, as the municipality has the authority to clear, in a legal manner, all public property from encroachment and trespass by private individuals. When the mayor employs an irregular method, the municipality is responsible for any damages which might arise because of the employment of this irregular method.</p> <p>2. Municipal Corporations (§ 747*) — Servitudes — Liability of Municipality.</p> <p>While the banks of Bayou Teche are public property and owe a servitude to the public, still those who have occupied them in good faith for many years must be proceeded against in regular form, unless there is a necessity for the removal under certain circumstances.</p> <p>3. Municipal Corporations (§ 742*) — Action Against City — Evidence.</p> <p>It is not evident that plaintiff’s cabin was on land burdened with a servitude.</p> <p>(Syllabus by the Court.)</p>

M.. L. Clark was convicted of unlawfully conducting' a tippling shop for the sale at retail of intoxicating liquors, and he appeals.

Boatner, Judge. George Brown and Robert Haywood were convicted of unlawfully killing a hog with intent to steal the same, and appeal.

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Roman Le Blanc was convicted of an illegal sale of liquors, and appeals.</p>

Action between George P. Blaise and the Security Brewing Company. Z. W. Tinker and another apply for writs of certiorari and prohibition to the Judge of the Civil District Court.

<p>[Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. I 405.*]</p>

Aetion by Charles Deal against Thomas G. Hodge. Judgment for plaintiff, and defend•ant appeals to the Court of Appeal, which ■dismissed the same, and he applies for certiorari or writ of review. Order to show ■cause.

<p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 333; Dec. Dig. § 307.*]</p> <p>[Ed. Note. — For ’other cases, see Costs, Cent. Dig. §§ 1, 4, 5; Dee. Dig. § 3.*]</p>

Mary; Charles A. O’Niell, Judge. Action by the Bank of Berwick and others against the George Vinson Shingle & Manufacturing Company, Limited, and others. Judgment for defendants, and plaintiffs appeal.

<p>[Ed. Note. — Eor other cases, see Attorney and Client, Cent. Dig. § 25; Dec. Dig. § 17.*]</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent.'Dig. § 25; Dec. Dig. § 17.*]</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu ; Winston Overton, Judge.</p> <p>Action by Simeon Benoit against Eva Benoit, Judgment for plaintiff, and defendant appeals.</p>

<p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 261-270; Dec. Dig. § 141.*</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 282; Dec. Dig. § 147.*]</p> <p>[Ed. Note. — For other cases, see Homestead, Dec. Dig. § 183.*]</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 270; Dec. Dig. § 143.*]</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §§ 32, 399.*]</p>

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; George Wear, Judge.</p> <p>Ed. Satcher and Frank McDay were convicted of manslaughter, and appeal.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Samuel J. Henry, Judge.</p> <p>Action by the Ozan Lumber Company against the Goldonna Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Criminal Daw (§ 1020*) — Ajppeai^-Supbeme Court — Jurisdiction.</p> <p>This court is without jurisdiction ' of an appeal from an adverse judgment on a motion to set aside the forfeiture of an appearance bond of $1,000 given in a prosecution where the offense charged is not punishable with death or imprisonment at hard labor, and no penalty has been actually imposed.</p> <p>(Syllabus by the Court.)</p>

<p>1. Criminal Law (§§ 595, 603*) — Continuance — Affidavit — Grounds — Remarks of Judge.</p> <p>Defendant’s first complaint is substantially that over his objection he was forced to trial when unprepared. To obtain a continuance, a motion for the same must be made in due form, and supported by affidavit. State v. Underwood, 44 La. Ann. 1114, 11 South. 823; State v. Perique, 42 La. Ann. 403, 7 South. 599; State v. Guillory, 45 La. Ann. 31, 12 South. 314.</p> <p>Even had defendant’s application been in due form, the delay which he was seeking to obtain was evidence to support an issue which he was not authorized to tender under the particular crime charged against him.</p> <p>2. Criminal Law (§§ 755%, 1154*) — Appeal-Review — Arguments of Counsel — Remarks of Judge.</p> <p>The exercise of the discretion of the trial judge in deciding in a criminal case as to how far a district attorney in his remarks to the jury was or was not within the bounds of legitimate argument is entitled to very great consideration by an appellate court. The trial judge knew (while the Supreme Court does not) the circumstances under which they were made and the likelihood or not of those remarks being legally prejudicial to the defendant. State v. Romero, 117 La. 1003, 43 South. 482.</p> <p>The trial judge in his charge to the jury, while defining the crime of embezzlement with which defendant was charged, made use of an illustration of what an embezzlement ivas which it would appear brought defendant’s case directly under the evidence. Defendant urges that by so doing' the trial judge prejudiced the jury and commented on the evidence. It is not claimed that the illustration given was not legally correct. If it was, it was for the jury to determine whether under the evidence the defendant’s case fell under it or not. The judge made no comment in the evidence. State v. Leñares, 12 La. Ann. 226; State v. Markham, 15 La. Ann. 498.</p> <p>(Syllabus by the Court.)</p>

<p>1. Trial (§ 63*) — Reception oe Evidence-Rebuttal — Petitory Action.</p> <p>In a petitory action, it is incumbent upon-, the plaintiff to prove his title, and evidence to-prove such title must be offered as evidence in chief. Failure on the part of the plaintiff to-offer such evidence at the proper time cannot be corrected by his offer to prove a missing-link in his chain of title under the guise of rebutting the evidence of the defendant.</p> <p>2. Records (§ 17*) — Supplying Destroyed* Records — E vidence — Sueeiciency.</p> <p>While the rules of evidence are relaxed to-prove a deed which has been destroyed, still title to realty cannot be established by evidence-of so uncertain a character as the record contains. Under Act No. 57, p. 92, of 1886, parol testimony is admissible to prove the contents of a public record destroyed by fire; but mere-uncertain assertions and mere impressions of witnesses who fail to testify to a particular-title, who give no dates, no price, and no circumstances that go to prove that there was a sale, is not such evidence as will establish the-existence of a deed now alleged to be destroyed.</p> <p>(Syllabus by the Court.)</p>

<p>Criminal Law (§ 1019*) — Appeal—Jurisdiction op Supreme Oourt.</p> <p>The Supreme Court has no appellate jurisdiction in misdemeanor eases except wherein a fine exceeding $300 or imprisonment exceeding six months has been actually imposed, or a municipal ordinance or law of this state has been declared unconstitutional.</p> <p>(Syllabus by the Court.)</p>

<p>Pakishes — Public Aid to Cobdohations — “Wabd.”</p> <p>Under article 270 of the Constitution of 1898, the police jury is without power to order an election for special taxes in aid of a railway enterprise in a justice.of the peace ward forming a part of a regular parish ward. The “ward” mentioned in said article is the political subdivision of the parish commonly called a “police jury ward.”</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 284; Dee. Dig. § 66.*]</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 284; Dec. Dig. § 66.*</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 340-342, 348; Dec. Dig. §§ 72, 82.*]</p> <p>[Ed. Note. — For other cases, see Jury, Cent, Dig. § 348; Dec. Dig. § 82.*]</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 481-479; Dee. Dig. § 103.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3064; Dec. Dig. § 1153.*]</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399 — 413, 417; Dec. Dig. §§ 190,</p> <p>[Ed. Note. — For other cases, see 'Criminal Law, Cent. Dig. § 1636; Dec. Dig. § 695.*]</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 848; Dec. Dig. § 384;* Witnesses, Cent. Dig. § 1084; Dec. Dig. § 318.*]</p>

J. Murff, Judge. Mandamus by the State, on the relation of L. E. Hinds and wife, against F. A. Leonard, Clerk and Recorder, and another, to compel the cancellation of certain judgments, etc. From a judgment denying relators’ application, they appeal.

So Relie,. Judge. Action by Grigsby Construction Company against A. C. Colly, in which A. Hamilton- and another intervened. From a judgment in favor of defendant on a demand in reconvention and dissolving plaintiff’s attachment,, and in favor of interveners, plaintiff appeals.

<p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 228;* Wills, Cent. Dig. § 269; Dec. Dig. §§ 111, 457.*]</p>