Volume 125 — Louisiana Reports

X. Ransdell, Judge. Action by the Maxwell-Yerger Company against Irby L. Rogan, administrator of L. W. Rogan, and others, interveners. Judgment for plaintiff, and certain interveners appeal.

<p> (Syllabus by the Qou/rt.) </p> <p>1. Judgment Aeeirmed.</p> <p>The judgment of the district court dismissing plaintiff’s suit is affirmed.</p> <p>2. Executors and Administrators (§ 365*)— Public Sale oe Property oe Succession— Purchase by Administrator.</p> <p>The purchase of property of a succession by the administrator thereof at a sale at public auction by the sheriff of the parish under an order of the court to pay debts will not be declared null and void, when it is shown that the administrator prior to the sale had bought out the interest of two of the heirs of the succession with subrogation to their rights. Under such circumstances the administrator, so_ far as the other heirs are concerned, had the right to buy. In this case the administrator after the sale filed his final account of administrator and was discharged as such; all debts having been paid.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1500; Dec. Dig. § 365.*]</p> <p>3. Executors and Administrators (§ 380*)— Sale oe Decedent’s Estate — Purchase by Administrator — Laches.</p> <p>The sale was made in 1886. No attack was made upon the sale until the present suit was instituted in June, 1908. No attack, even now, is made upon the judgment approving and homologating the administrator’s account and discharging him.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1553; Dec. Dig. § 380.*]</p>

<p> (Syllabus by the Court.) </p> <p>Logs and Logging (§ 3*) — Sale oe Standing Timber — Time eor Removal.</p> <p>On March 2, 1900, X. C. Palmer sold to the Hymers Lumber Company all the merchantable timber, standing on certain land of which he was the owner, for $1,231, $410 cash, the balance payable in three and six months, the credit portion represented by notes secured by special mortgage and vendor’s privilege on the timber sold. The vendee was given in that act five years from the date of sale to enter upon the land and cut and remove the timber. The act of sale was duly recorded in the conveyance and mortgage books of the parish. In January, 1901, the vendor applied for and obtained an order for the seizure and sale of the timber, and at a sheriff’s sale at public auction the timber was sold for $755 cash to D. G. Saunders. No mention was made in the order of sale, in the advertisement of sale, or at the sale of any time limit for the removal of the timber. In June, 1901, Saunders sold the timber for $3,487 cash to the defendant, the Vernon Lumber Company; no time being fixed for a removal of the timber. In May, 1903, X. C. Palmer sold the land'from which the timber had been sold to G. J. Palmer, the plaintiff, for $300. On the 8th of April, 1908, the plaintiff brought suit to have himself declared the owner of the timber upon the ground that the timber had not been removed from the land within the five years which had been accorded to the Hymers Lumber Company. The district court rendered judgment in his favor, and defendant has appealed. The judgment appealed from is, for reasons assigned, held to be erroneous. The judgment is annulled, avoided, and reversed, and plaintiff’s suit dismissed.</p> <p>[Ed. Note. — Eor other cases, see Logs and Logging, Cent. Dig. § 11; Dec. Dig. § 3.*]</p>

Action by the Mutual Life Insurance Company of New York against L. M. New. Judgment for defendant was reversed by the Court of Appeal, and he applies for certiorari or writ of review.

Ellis, Judge. Action by Miss Edith Howcott against W. L. Smart, state and parish tax collector, Livingston parish, La., and others. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Mandamus by the State, on the relation of the People’s Fire Insurance Company of New Orleans, against John T. Michel, Secretary of State. Judgment for defendant, and relator appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; W. H. Jack, Judge ad hoc.</p> <p>Action by Marie Theresa Rocques, Widow Metoyer, against J. W. Freeman, Sheriff, and others. From a judgment, for plaintiff, defendants appeal.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by H. & C. Newman, Limited, against Joseph Pellerin and others. Judgment for defendants, and plaintiff appeals.</p>

X. Ransdell, Judge. Petition by certain persons to be recognized as the heirs of John E. Hodges, to which Edward Hodges and Thomas P. Kell, executor, and others, answered. Judgment for defendants, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§§ 303, 340*) — Crossing Streets — Duty to Public.</p> <p>A corporation exercising a franchise to operate steam cars on tracks crossing the streets of a town incurs the correlative obligation to use such privilege' with due regard to the public safety and to maintain its tracks in a safe condition, and it cannot escape liability for failure to discharge such obligation by transferring, or attempting to transfer, it to an em-i ployé or other person.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959, 1102-1104; Dec. Dig. §§ 303, 340.*]</p> <p>2.Railroads (§ 340*) — Liability for Acts of Agents.</p> <p>A railroad corporation, being incorporeal and incapable of acting save through agents selected by it, when it places in the custody and under the control of certain agents so selected its depot, locomotives, and tracks, and vests in them the authority to operate the locomotives, over the tracks, with a certain discretion and subject to certain instructions, but with the actual power to operate them when they please, must be regarded as represented by such agents, within the sphere of authority conferred on them, and should be held liable to a third person, injured through the negligent, or improper use, or abuse, of the power and discretion vested in such agents.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1102; Dec. Dig. § 340.*]</p> <p>3.Railroads (§ 340*) — Liability for Acts of Agents.</p> <p>Where the agents of a railroad company are placed in charge and control of its depot, locomotives, and tracks in a town, with authority to operate the locomotives over the tracks, for switching and other purposes (connected with the business of the company), and with actual power to operate them when they please, and the agents whilst operating them for their amusement across a street of the town negligently injure a citizen, who is legitimately using the street, such agents will be held to be acting, though improperly, within the scope of authority conferred on them, and the company will be held liable for the injury resulting from such action.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1102; Dec. Dig. § 340.*]</p> <p>4.Railroads (§ 340*) — Operating Locomotive Across Street — Injury—Shifting of Responsibility to Agent.</p> <p>The right to operate a steam locomotive on or across a street in a town involves the use of an agency highly dangerous to life, limb, and property, and the responsibility for the exercise of-such right cannot be shifted by the corporation in which it is vested to the person who by its authority actually exercises it.</p> <p>TEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 1102-1104; Dec. Dig. § 340.*]</p>

P. Madison, Judge. Action by I-I. C. Heard, administratrix, against Robert B. Blanks, Jr. Judgment for defendant, and plaintiff appeals. The administratrix of the succession of S. H. Heard (and his widow in community) instituted the present action to set aside a sale made by him of certain property on the ground of lesion, and on the further ground that at the time of the sale the vendor was notoriously insane.

<p> (Syllabus by the Court.) </p> <p>Homestead (§ 161*) — Exemptions — Forfeiture — Removal from State.</p> <p>Plaintiff enjoined the seizure and sale of a certain movable property belonging to him by a judgment creditor under a writ of fi. fa. on the ground that they were exempt from seizure under the homestead law. The district court dissolved the injunction, and plaintiff appealed. On the appeal the judgment is affirmed. The right to the benefit of the homestead law is lost when the party otherwise entitled to claim it has removed with his family to another state and manifested his intention of making that state his home.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 312-314; Dec. Dig. § 161.*]</p>

<p> (Syllabus by the Court.) </p> <p>1.Children — Juvenile Courts — Organization.</p> <p>Act No. 83, p. 96, of 1908, subsequently adopted as an amendment to the Constitution of 1898, created a special juvenile court in the parish of Orleans, and provided that district courts outside of said parish should hold separate sessions as juvenile courts. No organization of district courts as juvenile courts is required, and sessions of such courts may be held without the appointment of a “probation officer.”</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § 18.*]</p> <p>2. Juvenile Courts — Session.</p> <p>Sessions of a juvenile court in the country parishes may be held during- a criminal term of the district court, provided such sessions be held apart, and a separate record kept of the proceedings.</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § '18.*]</p> <p>3. Children — Prosecution for Crime —Delinquents.</p> <p>Under Act No. 83, p. 96, of 1908, children are hot prosecuted as criminals, but are proceeded against as delinquents for the sole purpose of reformation, even where the delinquency charge would, in an adult, amount to a crime punishable at hard labor. Section 17. Such delinquents cannot be prosecuted for crime for the purpose of punishment, except, perhaps, in capital cases.</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § 68.*]</p> <p>4. Delinquent Children — Enforcement of Act.</p> <p>Act No. 83, p. 96. of 1908, can be readily enforced against adults for violation of laws made for the protection of children, and, as to neglected and delinquent children, must be enforced by the juvenile courts as far as practicable;_ and said act is not to be treated as inoperative because of the failure of the state authorities to provide reformatories or other institutions for the care, custody, and discipline of delinquent children, or because of the failure-of the parochial authorities to provide proper facilities for the execution of the provisions of the act.</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § 16.*]</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Henry Riney was convicted of obtaining money under false pretenses, and appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge.</p> <p>Action by the Board of Commissioners of Iowa Drainage District No. 1 against the Wilkins Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge.</p> <p>Action by the Board of Commissioners of Iowa Drainage District No. 1 against the Wilkins Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Bruno t, Judge.</p> <p>Application by the State, on the relation of the Louisiana State Bank, for writ of mandamus against the Bank of Baton Rouge. Judgment for defendant, and plaintiff appealed.</p>

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 126*) — Declarations — Res Gestae.</p> <p>The deceased son of the plaintiff was struck by a train of the defendant and rendered unconscious for a period of time unascertained. When he recovered consciousness he told witnesses what he knew of the accident, and his statements were sought to be introduced at the trial as part of the res gestre; but as his statements were not a part of the transaction, nor the immediate outcome of the act complained of, but was merely narrative of what he knew of the accident, they were properly excluded as not forming part of the act and not within the rule of res gestm.</p> <p>[Ed. Note. — For other cases, see' Evidence, Cent. Dig. §§ 372-376; Dec. Dig. § 126.*]</p> <p>2. Death (§ 62*) — Dying Declarations — Admissibility.</p> <p>Nor was the narrative of the event admissible as a dying declaration, for, while dying declarations were once admissible in England in civil cases, it is the well-settled rule of the present day that they are not admissible in civil suits. Stevens (2d Am. Ed.) 87.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 81; Dec. Dig. § 62;* Evidence, Cent. Dig. §§ 376, 1060.]</p> <p>3. Railroads (§ 398*) — Injury to Person on Track — E viden oe .</p> <p>It was not shown that any of the train crew was^ negligent, the train was in good order and running at its usual rate of speed, and the failure to ring a bell when there was no need for it cannot be construed as negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]</p>

Action by L. M. McDuffie against Sam Walker. Judgment for defendant was affirmed by the Court of Appeal, Parish of Cad-do, and plaintiff applies for certiorari or writ of review.

<p> (Syllabus by the Ootirt.) </p> <p>Municipal Corporations (§§ 112, 594*) — Constitutional Law (§ 63*) — Gaming (§ 02*) — Validity op Ordinance — Title — Delegation op Powers.</p> <p>Appellant convicted of having violated an ordinance of the citj' of Lake Charles charging him with having unlawfully gambled at cards for money in a private club in the city of Lake Charles, known as the “Lake City Saloon,” appeals from the judgment on the ground that the ordinance was null and void and ultra vires, and contrary to the Constitution of the state and of the United States. The, objections to the legality and constitutionality of the ordinance are not well grounded. Callaghan v. Alexander, 52 La. Ann. 1015, 27 South. 540; City of Lake Charles v. Roy, 115 La. 939, 40 South. 362; Ruston v. Perkins, 114 La. 851, 38 South. 583; City of New Orleans v. Turpin, 13 La. Ann. 56; State v. Fourcade, 45 La. Ann. 718, 13 South. 187, 40 Am. St. Rep. 249; State v. Dobard, 45 La. Ann. 1412, 14 South. 253; City of Monroe v. Hardy, 46 La. Ann. 1232, 15 South. 696; City of New Orleans v. Collins, 52 La. Ann. 977, 27 South. 532; City of Shreveport v. Bowen, 116 La. 523, 40 South. 859.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. §§ 112, 594;* Constitutional Law, Dec. Dig. § 63 ;* Gaming, Dec. Dig. § 62.*]</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by Dominique Miguez, administrator of Adelaide Landry, against Louis Deleambre and others. Judgment of dismissal, and plaintiff appeals.</p>

King, Judge. In the matter of the succession of Herman Graf. Rule by widow against Otto P. Graf, as forced heir and administrator, to show cause why certain real estate should not be decreed to her. From an order making the rule absolute, he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 396*) — Grading Streets — Damages to Abutting Owners — Set-Off Against Benefits.</p> <p>The city of Lake Charles graded Streets in front of the property of the plaintiffs and lowered their level, increasing considerably the distance from the top of the sidewalk to the surface of the street, and making it more difficult to step from the street to the sidewalk. The defendant also diverted the course of water so that it flowed through the gullies before the property of the plaintiffs, and by eroding and washing away the unstable soil caused them damage, the right to recover for which is not contested. It is only a question of amount. These damages cannot be set off by the benefit derived by the plaintiff in common with other property owners from the changing of the grade of the street, especially where the plaintiff does not seem to have derived any great advantage from the work, as in this case.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 949; Dec. Dig. § 396.*]</p> <p>2. Municipal Corporations (§ 394*) — Grading Streets — Damages to Abutting Owners.</p> <p>Plaintiff had three driveways leading from the street to his property, and these defendant could not destroy without replacing them to the extent made necessary by the new grade of the street. Flights of steps rendered unserviceable by the new grading must also be replaced by the defendant.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 938-941; Dec. Dig '§ 394.*]</p> <p>3. Municipal Corporations (§ 394*) — Improving Sidewalks — Right to Remove Trees.</p> <p>A municipality has the right to, remove trees for the improvement of the sidewalks, provided that this removal is not' wanton. There-lore plaintiff is not entitled to recover for the six water oaks removed for that purpose.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 941; Dec. Dig. § 394.*]</p> <p>4. Municipal Corporations (§ 281*) — Grad-ins Streets — Duty to Strengthen Sidewalk.</p> <p>Defendant is liable for the curbing necessary to support and strengthen the sidewalk, as the owner is liable only for ordinary repairs, and the improvements of the defendant are not of a usual character, and plaintiff cannot be made to construct new sidewalks, which is beyond his obligation to make ordinary repairs.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 745-749; Dec. Dig. § 281.*]</p>

B. Claiborne, Judge. Action by Charles L. Andrews against George B. Sheehy, who filed a plea in reconvention. Judgment for plaintiff and also for defendant on his plea of reconvention, and both parties appeal.

<p> (Syllabus by the Court.) </p> <p>1.Logs and Logging (§ 3*) — Sale of Standing Timber — Lesion Beyond Moiety.</p> <p>Timber sold while standing on the land of the vendor continues to be an immovable. “Standing trees are immovable even when separated in ownership.’’ Act No. 188 of 1904. The sale of timber comes within the provisions of article 1861 of the Civil Code, according to which relief is granted the vendor of an immovable. if the price given is less than one-half of the value.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*] •</p> <p>2. Vendor and Purchaser (§ 13*) — Remedies of Vendor — Lesion Beyond Moiety— Basis of Relief Necessity for Fraud.</p> <p>To support the action of lesion beyond moiety there is no need to show fraud, for the remedy given for lesion is founded on the implied error of the vendor, or upon the imposition upon him. Inadequacy of price, less than one-half the value, is considered an imposition, although not in its nature a fraud. The insufficiency of price is the imposition.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dee. Dig. § 13.*]</p> <p>3. Vendor and Purchaser (§ 13*) — Reme: dies of Vendor — Lesion Beyond Moiety— Value to be Considered as of Day of Sale — Evidence.</p> <p>In fixing the value of the property, the price must be considered as of the day of the sale. Civ. Code, art. 1871. And the value of the property, in order to support the action of lesion, must not be left to conjecture, but must be fixed and certain, and in fixing this value a high estimate will not recommend itself to the court.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 13.*]</p> <p>' (Additional Syllabus by Editorial Staff.)</p> <p>4. Logs and Logging (§ 3*) — Sales of Standing Timber — Lesion Beyond Moiety.</p> <p>In an action by the vendor of timber for lesion beyond moiety, evidence held to show that it was sold for less than half of its value.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]'</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Belle, Judge/</p> <p>Action by the Nona Mills Company, Limited, against John T. Swain and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge. 1</p> <p>Action by Sam Lee and others against the New Orleans Great Northern Railroad Company. Judgment for defendant, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 247*) — Injury to Servant — Negligence of Servant — Proximate Cause of Injury.</p> <p>Failure on the part of the plaintiff to exercise due caution in removing an obstruction from dangerous machinery is the proximate cause of the accident; and, as the plaintiff thereby contributes to his misfortune by his own negligence and want of care, he is not entitled to damages.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 795-800; Dec. Dig. § 247.*]</p> <p>2. Master and Servant (§ 247*) — Actionable Negligence — Proximate Cause of Injury.</p> <p>The negligence of a defendant when it is not the proximate cause, or the concurrent cause, but is merely a remote cause, will not support an action for damages against him; for, in order to render a defendant liable, his negligence must be such as proximately contributed to the injury. In the instant case the absence of a shaker or screen was not the proximate cause of the accident, for the manner in which plaintiff performed his work was the proximate cause.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 795-800; Dec. Dig. § 247.*]</p>

<p>Action by Watson Bros, against Fed R. Jones. Judgment of dismissal, and plaintiff applies for certiorari and mandamus to Third Judicial District Court, Parish of Claiborne.</p>

F. Bell, Judge. In the matter of the succession of L. A. Perry. Application of Nannie A. Kilpatrick and Florence Kilpatrick to he recognized as heirs and placed in possession. Judgment for petitioners, and the administrator appeals. .

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1111*) — Appeai^-Statement op Facts.</p> <p>When the statement of facts submitted by the trial judge does not agree with that submitted by counsel, unless evidence is taken by the court, under the statute governing the matter, this court will accept the statement of facts-submitted by the trial judge.</p> <p>The statement of the trial court is determinative of the issue.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2895 ; Dec. Dig. § 1111.*]</p> <p>2. Homicide (§ 264*) — Threats—Evidence.</p> <p>Evidence to prove threats is not admissible until a proper foundation has been laid. A predicate must be first laid.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 558; Dec. Dig. § 264.*]</p> <p>3. Homicide (§ 158*) — Threats—Evidence.</p> <p>The admonition of a mother to her son to-behave himself does not give rise to an inference that the son had made threats, or of an intention on his part to do bodily harm to some one.</p> <p>[Ed, Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*]</p> <p>4. Criminal Law (§ 1091*) — Appeal.</p> <p>A bill of exceptions must state the facts necessary to a decision of the point of law involved.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2831; Dec. Dig. § 1091.*]</p> <p>5. Criminal Law (§ 1038*) — Instructions— Objections.</p> <p>If the charge of the trial judge contains error, objection must be timely and by means of a bill of exceptions.</p> <p>[Ed. 'Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 103S.*]</p> <p>6. Criminal Law (§ 1165?) — Appeal—Harmless Error.</p> <p>If gross error, in a spirit of humanity, were considered as ground to set aside a verdict, as held in several decisions of this court, it would not afford ground for remanding this case. If there is any error, it is not prejudicial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3085; Dec. Dig. § 1165.*]</p>

Action by Laperle Pavy against the Franklin Life Insurance Company of Illinois. Judgment for plaintiff, and defendant appealed to the Court of Appeal, Parish of Acadia, where the judgment was amended, and the defendant applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Geo. I-I. Théard, Judge.</p> <p>Action by Walter E. Seckinger against E. J. Cheneville. Judgment for defendant, and plaintiff appeals.</p>

Sommerville, Judge. In the matter of the succession of Mary Driscoll and others. On the final accounting Maggie Sullivan, executrix of the succession of P. Redmond, filed an opposition. Opposition dismissed, and opponent appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Malicious Prosecution (§ 18*) — Probable Cause.</p> <p>Where the blank opposite plaintiff’s name on the registration book of voters was not filled in and his name had been canceled, so that a bona fide examination of the book did not show that plaintiff was registered, so as to entitle him to vote, there was probable cause for arresting him for illegally voting, though he was in fact registered on another part of the roll; and hence defendants were not liable for causing his arrest on affidavit and warrant.</p> <p>[Ed. Note. — Eor other cases, see Malicious Prosecution, Cent. Dig. § 27; Dec. Dig. § 1S.*1</p> <p>2. Arrest (§ 63*) — Arrest Without Warrant.</p> <p>Plaintiff, who was the head of a family and had long been a resident in the town, and a property owner as well as an alderman of the town, while leaving the polling booth was arrested by a sheriff, without affidavit and warrant, for illegal voting. Held, that the circumstances did not require plaintiff’s immediate arrest, so that his arrest without affidavit and warrant was illegal.</p> <p>[Ed. Note. — For other cases, see Arrest, Cent. Dig. § 151; Dee. Dig. § 03.*]</p> <p>3. Arrest (§ 60*) — Criminal Charges — Exemptions — V OTEES.</p> <p>Under Const, art. 204, privileging electors from arrest during attendance on elections and in going to and returning from them, except in case of treason, felony, or breach of the peace, the arrest of a voter for illegal voting while leaving the voting booth was illegal.</p> <p>[Ed. Note. — For other cases, see Arrest, Cent. Dig. § 142; Dec. Dig. § 60.*]</p> <p>4. False Imprisonment (§ 36*) — Action-Amount oe Damages.</p> <p>In an action for false arrest on the charge of illegal voting, a judgment for $250 damages held proper.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 113-115; Dec. Dig. § 36.*]</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relie, Judge.</p> <p>Jake Jefferson was convicted of rape, and he appeals.</p>

<p>Appeal^ from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice E. Edrington, Judge.</p> <p>Philip Rollins was convicted of an assault with intent to kill, and appeals.</p>

Case Certified from Court of Appeal, Parish of Orleans. Action by Henry T. Roux against R. L. Witzman and others. Judgment for plaintiff, and defendants appeal to the Court of Appeal, which certifies a question to the Supreme Court.

<p> (Syllabus by the Court.) </p> <p>Evidence (§ 241*) — Declarations or Agent-Admissibility.</p> <p>The declarations of a company’s agent are not admissible against it, unless shown to have been made while acting within the scope of his authority, and in a matter relating directly to the agency and then depending. Declarations made by the agent are admissible against the principal only when forming a part of the res gestas.</p> <p>[Ed. Note. — For other oases, see Evidence, Cent. Dig. |§ 887-892; Dec. Dig. § 241.*]</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Action by Thomas C. Bush against M. Greenhoward and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by Albert I-Iackemuller against William Figueroa. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and Information (§ 91*) — Information — Necessity for Alleging Felonious Taking.</p> <p>An information for the common-law offense of larceny, alleging that defendant “did steal” and carry away the property described, without the use of the word “feloniously,” is insufficient.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 261-265; Dec. Dig. § 91.*]</p> <p>2. Criminal Law (§ 1134*) — Appeal—Conviction on Defective Information.</p> <p>A conviction on a defective information cannot be sustained, on the ground that the demurrer thereto was interposed without the plea to the merits being first withdrawn by leave of court, where the court entertained the demurrer and overruled it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1134.*]</p> <p>3. Larceny (§ 70*) — Trial—Instructions.</p> <p>In a prosecution for larceny, defendant is entitled to an instruction that “it is necessary, in order to convict accused, that the state show the property was stolen, and that it was stolen by accused.”</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182-186; Dec. Dig. § 70.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Acting Judge.</p> <p>Plabeas corpus by the State, on the relation of Robert N. Bush, against Paula Trahan, widow of Charles Adolph. Judgment for respondent, and relator appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§ 900*) — Real Actions (§§ 7, 8*) — Petitory Action — Title op Plaintiff.</p> <p>Plaintiffs are appellants in a petitory action from an adverse judgment in the district court. The Supreme Court finds no error in the judgment appealed from.</p> <p>[Ed. Note — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3607-3669; Dec. Dig. § 900;* Real Actions, Cent. Dig. §§ 22, 30; Dec. Dig. §§ 7, 8.*]</p>

Théard, Judge. Application by the State, on the relation of the Courthouse Commission, for a writ of mandamus to the Board of Liquidation of the City Debt of the City of New Orleans. From an order granting the relief asked in part, relator appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Willis Johnson was convicted of crime, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 768*)— Streets —Duty to Keep in Repair — Negligence.</p> <p>A municipality must keep its streets and sidewalks in a condition sufficiently sale to enable pedestrians to cross gutters at intersections without danger; and where it is customary to have three planks as a crossing over a gutter, and through a failure to keep the walk in order only one plank is left across the gutter, this failure constitutes negligence.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. § 1624; Dec. Dig. § 768.*]</p> <p>2. Municipal Corporations (§§ 763, ■ 817, 819*) — Streets — Injury from Defects — Time to Repair.</p> <p>The municipality must have had sufficient time to make the needed repairs in order to render it liable. Abbott; Municipal Corporations, vol. 2, p. 2321. “The burden is on the defendant to plead and prove that it did not have sufficient time in which to make the repairs before the injury was received.” Abbott, vol. 3, p. 2329. The city has failed to prove want of sufficient time.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1615, 1725, 1739; Dec. Dig. §§ 763, 817, 819.*]</p> <p>3. Municipal Corporations (§ 791*) — Defective Streets — Liability for Resultant Injury — Notice of Defect.</p> <p>The corporation must also have notice of the bad condition of the walk in order to render it liable; hut the neglect to make the- repairs for a considerable time gives rise to an implication which is considered a sufficient notice to make the city liable.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent.'Dig. § 1648; Dec. Dig. § 791.*]</p> <p>4. Municipal Corporations (§ 790*) — Defective Streets — Injuries—Sufficiency of Notice — Notice to Councilman.</p> <p>Notice to a councilman that a walk is in need of repair is sufficient notice to the city, for a councilman is charged with a duty in regard to the repairs of streets.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. § 1645; Dec. Dig. § 790.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>5. Damages (§ 130*) — Amount—Personal Injuries.</p> <p>A person injured by falling on a defective sidewalk suffered a complete vacuate dislocation of both bones of his left arm, suffered great pain, and the ulnar nerve was paralyzed; the effect being to cause complete disability of the lower part of the left arm, which was 2% inches shorter than the other. He had not entirely recovered at the time of trial, and had expended about $1,200 as a result of the injuries. Held, that a recovery of $6,200 was not excessive.</p> <p>[Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 357-367, 370, 371; Dec. Dig. § 130.*]</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 894*) — Verdict—Rendition —Error or Informality.</p> <p>Until a verdict is received and recorded, there is no verdict, and the jury have the right to alter it. AVhere the foreman handed to the judge a slip of paper, on which was written in pencil words to the effect that two of the defendants were guilty of murder and the third of manslaughter, and the judge thereupon inquired whether the jury intended to render a written verdict, and the jury replied, “No,” that they intended to render an oral verdict, as instructed by the court, and thereupon rendered a verdict ore tenus, conforming to the finding as written on the slip, which was received and recorded without objections, held, that the writing on the slip was properly considered by the trial jrdee as a mere memorandum, and that the informality, if any, in the rendition of the verdict, was waived by the failure of the defendants to object and except at the time, and that the defendants were not prejudiced by the alleged irregularity in the proceedings.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2115; Dec. Dig. § 894.*]</p> <p>Provosty, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>Fraudulent Conveyances (§ 255*) — Action to Cancel Mortgage — Necessary Parties.</p> <p>Where A. executed a special mortgage to secure a note payable to his own order, and by him indorsed in blank, in favor of B. and any future holder of said note, and B. pledged the note before maturity to C. as collateral security for a loan of money, and subsequently D., a judgment creditor, brought suit against A. and B. to annul and cancel the mortgage as a fraudulent simulation, held, that C. was a necessary party to the suit.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 741-751; Dec. Dig. § 255.*]</p>

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; J. P. Madison, Judge.</p> <p>Action by John D. Morgan against O’Ban-non & Julien and others. Judgment of dismissal, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Texas & Pacific Railway ’ Company against the W. K. Henderson Iron Works & Supply Company. Verdict for defendant, and plaintiff appeals.</p>

<p>Appeal from Ninteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Application by the State, on the relation of J. G. Bouvier and others, for a writ of mandamus to Louis A. Walet and others. From a judgment awarding the writ, defendants appeal.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; Don E. So Relie, Judge.</p> <p>Action by W. A. Nabors against the Commercial Union Assurance Company, Limited, of London, Eingland. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Eminent Domain (§ 124*) — Expropriation —Measure oe Damages — Date oe Filing Suit.</p> <p>In an expropriation suit the defendant lumped his damages, and this court ordered him to amend his answer so as to show the items of damages, which he did, but he also alleged in his amended answer a cause of action that did not exist at the date the suit was filed. In an expropriation suit the issue must be confined to ascertaining the value of the property and the damage growing out of the expropriation at the date when such suit was filed. La. Nav. Co. v. Xavier Realty Co., lio La. 338, 30 South. 1.</p> <p>[Ed. Note.' — For other cases, see Eminent Domain, Cent. Dig. §§ 332-344; Dec. Dig. § 124.*]</p> <p>2. Action (§ 52*) — Eminent Domain (§ 124*) —Damages Subsequent to Expropriation —Distinct Cause oe Action.</p> <p>A man whose land has been expropriated has a right of action for all damage caused him by the railroad subsequent to the expropriation, but he cannot cumulate this action with the original expropriation suit. This right of action is distinct from the action for expropriation. In the present suit the defendant must confine himself to the question' of damage arising immediately from the expropriation.</p> <p>[Ed. Note. — For other cases, see Action, Dec. Dig. § 52;* Eminent Domain, Cent. Dig. §§ 332-344; Dec. Dig. § 124.*]</p> <p>3. Eminent Domain (§ 215*) — Expropriation . Proceedings — Competency oe Juror.</p> <p>If a juror possesses average common sense, but disclaims any knowledge of land values, his disclaimer does not disqualify him as a juror, for he may discharge the duties of a juror by hearing the testimonj', observing closely, and deciding according to the best light before him.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 553; Dec. Dig. § 215.*]</p> <p>4. Eminent Domain (§ 124*) — Expropriation Proceedings — Value op Land — Remote Future Possibilities.</p> <p>In estimating the value of land which has been expropriated, the remote possibility that the land will at some future time be sought after for a particular purpose, thereby greatly increasing its value, cannot be considered.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 332-344; Dec. Dig. § 124.*]</p> <p>5. Eminent Domain (§§ 142, 205*) — Damages —Damages to Revetment Levee — Cutting Plantation into Small Parcels.</p> <p>If a revetment levee is rendered useless by an embankment of the railroad company it should pay for the levee, but, in order to recover, the owner of the levee must prove beyond reasonable doubt that the railroad company lias ruined it, and that another is necessary to take its place. The evidence in the present case leaves the question in doubt.</p> <p>Where a railroad cuts a plantation into small parcels of land and obstructs intercommunication, it causes damage which it must repair, or for which it must pay.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. § 377; Dec. Dig. §§ 142, 205.*]</p> <p>C. Eminent Domain (§ 223*) — Expropriation Suit — Conolusiveness ox Verdict eor Damages.</p> <p>While the court will give due weight to the verdict of a jury in an expropriation suit, it will not be bound thereby, and will change the amount allowed, where it believes that the amount does not correctly represent the damage.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Dec. Dig. § 223.*]</p>

Landry; William Pierrepont Edwards, Judge. Suit by Leouee Sandoz and others against J. X. Sanders, Governor of the State, and certain interveners, to invalidate Act June 22, 1908, No. 53, providing for the creation of the parish of Evangeline, together with the proclamation of the Governor declaring such parish created. From an adverse decree, plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 171*) — Answer Asserting New Theory on Appeal.</p> <p>An action by a forced heir to set aside a conveyance of real estate, made by his ancestor to other forced heirs, on the ground that it was simulated, or a donation in disguise, or, in the alternative, on the ground that the consideration was inadequate and that the property should be held subject to collation, cannot be converted, at the instance of plaintiff, and merely by answer to an appeal taken by defendants, into an action to set aside the conveyance on the ground of lesion beyond moiety; no such issue having been presented by the pleadings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1069; Dec. Dig. § 171.*]</p> <p>2. Appeal and Error (§ 173*) — Issues in Lower Court — Prescription—Plea After Judgment.</p> <p>A plea of presci-iption, filed in the district court after the rendition of judgment, and in terms leveled at the “decree,” does not apply to the action in which such decree has been rendered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1120; Dec. Dig. § 173.*]</p> <p>3. Descent and Distribution (§ 110*) — Right to Collation from Coheirs — Limitations.</p> <p>The right of an heir to demand collation from his coheirs is not barred by the prescription of one year from the date of the death of the de cujus.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Dee. Dig. § 110.*]</p> <p>4. Descent and Distribution (§ 115*) — Advancements— Collation — Presumption.</p> <p>Equality between heirs of the same degree is the cardinal principle of our law of inheritance, and, in order that it may be secured, “collation is always presumed, where it has not been expressly forbidden.” Whatever is given by a father to a child is presumed to have been given as in advance of the portion, which the child may, one day, expect to receive from the succession, and that portion, in the absence of express declaration of the parent to the contrary, can be no greater than the portion of another heir in the same degree; hence what has been so received must be collated or accounted for, in the partition of the inheritance. Nor does it make any difference whether the advantage which a child has received has come to him directly or indirectly, by donation, pure and simple, by donation disguised as a sale, by a sale for an inadequate price, or otherwise; every such advantage, not unequivocally given as an advantage, is subject to collation.</p> <p>[Ed. Note. — Eor other cases, see Descent and Distribution, Cent. Dig. § 426; Dec. Dig. § 115.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>5. Descent and Distkibution (§ 110'*) — Advancements— Collation — Pkesckiption.</p> <p>A suit by one heir to compel his coheirs to collate with respect to an advantage alleged to have been received from the common ancestor, whose succession has never been opened or settled, in excess of what he intended and of what in the absence of such expressed intention, the law allows, is not barred by the prescription of one year.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Dec. Dig. § 110.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 595*) — Record—One Transcript Sufficient.</p> <p>There is no necessity of making two transcripts of appeal, and the appellee may use the same transcript as the appellant, when such appellee desires to also occupy the position of appellant, provided that the cost of the transcript is shared by both.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 2G23; Dec. Dig. § 595.*]</p> <p>On the Merits.</p> <p>2. Insane Persons (§ 93*) — Actions by Curator — Authority to Discontinue.</p> <p>When a curator institutes a suit on behalf of an interdict, and later files a motion to discontinue the suit, the court may grant the application. The curator has the right to decide whether or not he will assume the responsibility of continuing a suit, and he is responsible to the interdict for any damage that may result from the discontinuance of the suit.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 1(33; Dec. Dig. § 93.*]</p> <p>3. Estoppel (§ 59*) — Leading Other into Error — Right to Claim Bad Faith.</p> <p>A plaintiff who leads a defendant into error cannot benefit himself by charging the defendant with bad faith when he himself is not in good faith.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 147; Dec. Dig. § 59.*].</p> <p>4. Estoppel (§ 117*) — Partition (§ 5*) — Parol Partition of Immovable Property by Co-Owners — Bad Faith — Parol Evidence.</p> <p>While it is well settled that a partition of immovable property must be in writing, still where the parties have agreed to partition the property by drawing a line through it, and the defendant has incurred expenses in making this informal partition, and this informal partition was induced by the bad faith of the plaintiff, parol evidence is admissible to prove the bad faith of the plaintiff, and all that is needed to sustain a plea of estoppel may also be proved by parol testimony.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 307; Dec. Dig. § 117 ;* Partition, Cent. Dig. §§ 13-17; Dec. Dig. § 5.*]</p> <p>5. Tenancy in Common (§ 21*) — Trespass by Co - Owners — Liability.</p> <p>Where a defendant accepts the verbal representations of a co-owner that he has authority to represent his other co-owners, and such defendant goes upon the land and commits acts that amount to trespass, without first requiring evidence of the authority the first co-owner claims to possess, the defendant will be responsible to the other co-owners not aware of the trespass for any damage caused them by his acts on the land. The testimony does not show that the plaintiff knew what defendant was doing on the land.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § G2; Dec. Dig. § 21.*]</p> <p>G. Prescription. — Unlawful Cutting of Timber by Co-Owners.</p> <p>The unlawful cutting of timber by a co-owner on the land held in common is not subject to the prescription of 12 months.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 473; Dec. Dig. § 95.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>7. Estoppel (§ 55*) — Equitable EstoppelReliance on Adverse Party.</p> <p>One is estopped who by his conduct or representations causes another to take a position or do something which he would not have taken or done, but when one is thoroughly informed, and knows of all the particulars, there is no estoppel as to him.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. i 138; Dec. Dig. § 55.*]</p> <p>8. Estoppel (§ 55*) — Equitable EstoppelReliance on Adverse Party.</p> <p>Estoppel is applied to present injury, and presupposes error on the part of one who has been misled, but does not apply when everything is well known.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 138; Dec. Dig. § 55.*]</p>

<p> (Syllabiis by the Oourt.) </p> <p>Colleges and Universities (§ <3*) — Statutes (§§ SO, Í13*)— Landlord and Tenant (§ 30*) —Lease—Local Acts — Titles—Parties.</p> <p>Act No. 43 of 1884, subsequently adopted as a constitutional amendment, transferred for a valuable consideration to the Board of Administrators of the Tulane Education Fund, a private corporation, all the property of the University of Louisiana, to be perpetually used and administered to maintain and develop a new university, to be called the “Tulane University of Louisiana.” It was provided that the property so transferred should not be “sold or disposed of without legislative sanction.” Act No. 94 of 1890 authorized the board of administrators to lease, sell, or dispose of said property, with the approval of the Governor. In 1897 the real estate was leased by the said board, with the apprpval of the Governor, to one Thomas Nicholson for 99 years at an annual rental of $10,000, payable in advance.</p> <p>In 1908 the Legislature instructed the Attorney General to institute suit to annul said lease and to restore said property to said board for administration under Act No. 43 of 1884.</p> <p>Suit was brought, accordingly, to annul said lease, based on allegations that the board of administrators was without power to make said contract; that Act No. 94 of 1890 is unconstitutional ; that the contract was made in bad faith and for an inadequate price; and that the nominal lessee was a man of straw_ interposed for the president of the board and his relations. The suit was brought against the board of administrators and the Tulane Improve-, ment Company, the assignee of Thomas Nicholson and associates. There was a verdict and judgment for the plaintiff for the use and benefit of the board of administrators, and the defendants have appealed.</p> <p>Held, that the charges of fraud and bad faith against the members and president of the board of administrators are repelled by the overwhelming weight of the evidence, and that the contract of lease was made in good faith and for an adequate consideration based on values at the time.</p> <p>Held, that Act No. 94 of 1890 is constitutional, and that the lease was a valid contract.</p> <p>Held, further, that the state had no right to institute suit for the use and benefit of the board of administrators, against their protest, and that Act No. 43 of 1884 restricts the right of the state to a suit to retake the property in the event of the failure of said board to comply with the obligations imposed by the legislative contract on the corporation known as the “Administrators of the Tulane Education Fund,” and that no breach of such obligations is alleged in the petition.</p> <p>[Ed. Note. — For other cases, see Colleges and Universities, Dec. Dig. § &;* Statutes, Dec. Dig. §§ 80, 113 ;* Landlord and Tenant, Cent. Dig. § 86; Dec. Dig. § 30.*]</p> <p>Breaux, C. J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>Eminent Domain (§ 262*) — Expropriation— Compensation — Review on Appeal.</p> <p>In an expropriation proceeding, where only the question of value and damage is at issue, the verdict of the jury, approved by the trial judge, will be approved, unless it appears to this court to be unreasonable.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 685; Dee. Dig. § 262.*]</p>

Wilson, Judge. Lew Rose was convicted of knowingly and unlawfully permitting a minor aged 10 years to appear and perform on the stage of a theater, and appeals.

Action by Mary Furman against R. A. Grounds and others. Judgment for defendant was reversed by the Court of Appeal, and R. A. Grounds and others apply for certiorari or writ of review to the Court of Appeal, Parish of Caddo.

<p> (Syllabus by the Court.) </p> <p>1.Bills and Notes (§ 350*) — Purchase After Maturity — Rights of Holder.</p> <p>Plaintiff is the holder after maturity and for value of a promissory note, executed by one of the defendants, who gave to his attorney, Maloney, money to pay the note at date of maturity. The attorney paid the note, and without authority sold it to plaintiff, who collected interest from Maloney, who also extended the time of payment for one year. When plaintiff acquired it, the note was past due, and the attorney could not give it vitality1 as a negotiable instrument by indorsing on it an extension of the time of payment. The note bore notice of its dishonor on its face sufficient to place any one on his guard.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 882; Dec. Dig. § 350.*]</p> <p>2. Bills and Notes (§ 350*) — Purchase After Maturity — Rights of Holder.</p> <p>The attorney had no authority to cut off the equities by attempting to extend the time of the note, for his authority was merely to pay the note and his acts beyond this cannot give negotiability to the instrument, already matured. The plaintiff who purchased it after maturity acquired merely the rights of a transferee, which are not greater than those of the transferror, and, as the one from whom he acquired the note had no rights against the defendants, the transferee, the plaintiff, can assert none.</p> <p>[Ed. Note. — For other cases, see Bilis and Notes, Cent. Dig. § 882; Dec. Dig. f 350.*]</p> <p>3. Bills and Notes (§ 350*) — Reissue by Agent After Maturity and Payment-Liability of Maker.</p> <p>Where a person places an amount in the hands of an attorney for the purpose of paying a note, and after so paying the attorney reissues it without authority, thereby committing a fraud, the maker cannot be held for the payment of the dishonored paper, when such maker has acted in good faith.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 882; Dec. Dig. § 350.*]</p> <p>4. Bills and Notes (§ 350*) — Application of Commercial Law. ■</p> <p>The principle that one who puts another in a position where he may perpetrate a wrong must suffer for the consequent loss has no application to the present case, for the strict rule of the commercial law, adopted in the interest of commerce, must prevail. The loss must fall on the one who trusted the attorney and accepted the note after maturity.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 882; Dec. Dig. § 350.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Partition (§ 44*) — Descent and Distribution (§ 83*) — Prescription.</p> <p>This is a suit brought for a partition by certain of the heirs of Sibley against and contradictorily with other of the heirs, represented by a curator ad hoc, and the representatives of a party holding undivided interests in the succession, through mesne conveyances of the undivided interest therein of particular heirs. The latter have pleaded the prescription of 30 years arising from the alleged nonacceptance of the succession by the heirs in bar of the action, and the prescription of 5, 10, and 30 years as having acquired the ownership of the property sought to be partitioned, and thereby withdrawn it from being made the subject of partition. Held, that none of the prescriptions pleaded are applicable under the circumstances of the case.-</p> <p>[Ed. Note — For other cases, see Partition, Cent. Dig. § 112; Dec. Dig. § 44;* Descent and Distribution, Dec. Dig. § 83.*]</p> <p>2. Partition (§ 109*) — Validity of Sale-Mistake in Petition as to Interests.</p> <p>All the parties interested in the succession being before the court, the order for a partition was properly rendered. The order for' a sale of the property to effect a partition was proper. A sale under the order would carry the title to the purchaser, even should there have been a mistake in the petition as to the extent of the interest of some of the heirs. Such mistake could be (as between the parties to the suit) corrected through the proceedings before the notary, to whom the making of the partition was referred.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 391-395; Dec. Dig. § 109.*]</p> <p>3. Descent and Distribution (§ 109*) — Collation — Purchasers of Undivided Interests of Heirs.</p> <p>Plaintiffs prayed that the purchasers of the undivided interests of certain heirs should be “held to collate” certain property which they had disposed of. Held, that the rules of collation are not applicable to the case. •</p> <p>Those parties are not “coheirs” of -the heirs of Sibley, and the properties disposed of by them were not received as heirs prior to the opening of the succession, but by reason of an after-acquired ownership. The parties should, however, be held to account for the money, so received, with interest from judicial demand.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Dec. Dig. § 109.*]</p> <p>On Rehearing.</p> <p>4. Descent and Distribution (§ 81*) — Obligation of Co-owner to Account for Excess Received.</p> <p>Collation is due only with respect to some gift or advantage which a forced heir has received from his parent or ascendant himself, but the obligation of any co-owner, whether he be a coheir, the transferee of a coheir, -or otherwise, to account in a partition proceeding for so much of the property held in common, in excess of his share, as he or his authors may have appropriated, is prescribed by rules which, though somewhat different, are equally as effective as those which regulate collation, the object to be attained in either case being that each of the parties interested shall get the share to which he is entitled.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 282, 283; Dec. Dig. § 81.*]</p> <p>5. Prescription — Partition—Demand of Co-owner for Account.</p> <p>A demand, by one co-owner of another, to account in a partition proceeding for a portion of the property owned in indivisión, which the latter has appropriated, though possibly as an independent demand barred by a comparatively short term of prescription, is subject, as an incident to the partition, only to the prescription by which the action for partition would be barred, and such action cannot be prescribed against so long as the thing remains in common and the community is acknowledged or proved.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Dec. Dig. § 16.*]</p> <p>6. Tenancy in Common (§ 15*) — Tacking Possession of Vendor.</p> <p>Where one possesses beyond his title, but sells according to his title, the vendee cannot, for the purposes of the prescription of 30 years, acquirendi causa, tack to his own possession that of his vendor of the property which is not included in the deed by which he acquires; there being no privity between him and his vendor with respect to such possession.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 45; Dec. Dig. § 15.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>7. Descent and Distribution (§ 109*) — Rights of Heirs — Collation — ‘ ‘Otherwise.”</p> <p>The word “otherwise,” as used in Civ. Code art. 1227, defining the collation of goods as the supposed or real return to the mass of the succession which an heir makes of property, which he received in advance of his share or otherwise, in order that such property may be divided, together with the other effects of the succession, refers to the provisions contained in the other articles relating to collation, and includes everything that may have been received by the heir from the parent himself, save where the latter has indicated unequivocally that it was intended as an advantage.</p> <p>TEd. Note. — For other cases, see Descent and Distribution, Dec. Dig. § 109.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the State, on the relation of L. A. Hubert, as receiver, against the Mayor and Council of the City of New Orleans. Judgment for defendant, and plaintiff appeals.</p>

Du-cote, Judge ad hoc. Action by. Albert Gremillion and others against J. B. Abraham Roy; Fereol Regard, warrantor. Judgment for plaintiffs, and defendant and the warrantor appeal.

<p> (Syllabus by the Court.) </p> <p>1. Contracts •(§ 336*) — Building Contract-Appointment op Arbitrators — Complaint.</p> <p>Where a building contract contains a clause under which matters in dispute are to be referred to arbitrators, and another clause requiring the owner to give notice in writing to the contractor of any objection that he may have to the “work being performed,” and still another clause to the effect that the occupancy of the building by the owner shall be regarded as an admission of the completion and acceptance of the building, a petition by the owner, from which it appears that he has taken possession of the building, but which does not allege compliance with the second clause mentioned, discloses no cause of action in a proceeding to compel the contractor to join in the appointment of arbitrators for the arbitration of complaints apparently covering the whole period of the contract. ’ ■</p> <p>{Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1677-1081; Dec. Dig. § 336.*]</p> <p>2. Specific Performance (§ 5*) — When Denied.</p> <p>A judgment ordering specific performance of a contract “to do” will not be rendered, where its execution appears to be impracticable, and where the party seeking such relief appears to have an adequate remedy in an action for damages.</p> <p>[Ed. Note. — For other eases, see Specific Performance, Cent. Dig. §§ 5-8; Dec. Dig. § 5.*]</p> <p> (Additional Syllabus by Editorial Staff.) : </p> <p>3. Specific Performance (§ 80*) — Contracts Enforceable — Arbitration.</p> <p>The court will not order specific performance of a contract requiring defendant to appoint a disinterested party to consider the matter of damages, the disinterested party to confer with one designated by plaintiff as to the choice of a third disinterested party to determine the amount thereof.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 214; Dec. Dig. § 80.*]</p>

<p> (Syllabus by the Court.) </p> <p>Executors and Administrators (§ 130*) — Petitory Action — Right of Administrator to Maintain.</p> <p>An administrator of a succession which owes no debts has no right to bring alone a petitory action to recover real estate alleged to belong to the succession, where there are present in the parish heirs who have accepted the succession.</p> <p>TEd. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 538; Dec. Dig. § 130.*]</p>

Action by John Y. Jones against the Texas & Pacific Railway Company. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

O. W. Ellis, Judge. In the matter of the succession of George Kleinert. From a judgment determining a contest over the partition of the property between Bertha They and another, children of decedent by his first wife, and Lillie Sieger and another, children of his deceased second wife by a former husband, the first-named contestants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and Error (§ 170*) — Relief Not Sought Below.</p> <p>The court, on appeal in a suit for partition of certain lots, cannot grant the request of plaintiffs in their brief that there be included in the partition other lots owned jointly by the parties ; partition thereof not having been asked either -by the petition or the answer.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1040; Dec. Dig. § 170.*]</p> <p>2. Partition (§ 77*) — Partition in Kind.</p> <p>Partition in kind of lots jointly owned by the parties will be- granted as prayed by plaintiffs, there being nothing to interfere therewith unless it be improvements put thereon by defendant at his own expense and for his own benefit; he having had no right to put the improvements thereon, and so having done it at Ms own peril.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 211-223; Deo. Dig. § 77.*]</p> <p>3. Partition (§ 86*) — Rents of Improvements Made by One Party.</p> <p>Defendant, co-owner with plaintiffs of certain lots, having put houses on certain of them at his own expense, after plaintiffs had refused to co-operate with him therein, does not have to account to them for any of the rents received by him; he not having interfered with their equal right to occupy and enjoy their proportionate share in the property, and the property in its unimproved condition having yielded no revenues.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 247-249; Dec. Dig. § 86.*]</p> <p>4. Judsment- (§ 682*) — Parties Concluded— Vendor and Purchaser.</p> <p>The decree in partition for certain lots cannot affect those lots defendant’s interest in which had been sold before institution of the suit to persons not made parties.</p> <p>■[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682,*]</p> <p>5. Partition (§ 116*) — Rights and Liabilities as to Removal of Improvements by One Party.</p> <p>Where defendant, co-owner with plaintiffs of lots, put houses on some of them at his own expense, plaintiffs, if the improved lots fall to them in the partition, may, because of defendant having put the improvements on the lots without right, require him at his own expense to remove them; and defendant will have equal right to remove them, though plaintiffs desire to keep them and pay him therefor.</p> <p>[Ed. Note. — For other cases, see Partition, Dec. Dig. § 116.*]</p>

Ellis, Judge. Oliver Sullivan was indicted for attempting to prevent a witness from testifying by threats. Motion to quash the indictment was sustained, and the State appeals.

<p> (Syllabus by the Court. </p> <p>Motion to Quash Indictment.</p> <p>This case is controlled and governed by that of State of Louisiana v. Sullivan (decided this day) 51 South. 588,1 in which a motion to quash the indictment based on the same section (section 880 of the Revised Statutes) was sustained, and the prosecution dismissed.</p>

C. Drew, Judge. J. J. Parker and another were convicted of manslaughter, on a charge of murder, and the mentioned defendant appeals.

King, Judge. Executory proceedings by William E. Roberson, in which Mrs. Mary E. Goldsmith, as tutrix of Pearl Tilton, and another, intervened as third opponents. Writ of seizure and sale of the minor’s interest was enjoined, and'the writ issued as to the interests of the other third opponent, and the third opponents appeal.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Lisbon Prater was convicted of burglary and larceny, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Statutes (§ 123*) — Title of Act — Municipal Improvements.</p> <p>Act No. 10 of 1896 is not unconstitutional on the ground that its object was not expressed in its title and that it had two distinct and separate purposes. The provisions of the act are germane to the objects of the statute.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 130-132; Dec. Dig. § 123.*]</p> <p>2. Railroads (§ 94*) — Construction of Roadbeds in Cities.</p> <p>It is the duty of a railroad company constructing its roadbeds through a city to so construct its works that they shall not hinder, impede, or obstruct the drainage of the city, and that duty is a continuing- one and should be met and performed by it as the necessity for the same arises.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 270; Dec. Dig. § 94.*]</p> <p>3. Railroads (§ 94*) — Railroads in Streets —Liability for Paving.</p> <p>The city authorities of the city of Shreveport, for the public good order causing a particular street to be paved, had the right to require, as necessary for the purpose of such paving, the railroad company whose tracks run through and along the streets to relay its tracks in the streets so as to conform to the paving of the streets, and, on the failure so to do, they had the right to have such work done themselves, and to be reimbursed the amount which they reasonably paid for that purpose.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 270; Dec. Dig. § 94.*]</p>

<p>Appeal from Fifteenth. Judicial District Court, Parish of Calcasieu; William F. Schwing, Judge ad hoc.</p> <p>Action by James A. Kinder, trustee in bankruptcy of Cleopha Benoit, against Edward Sckarff and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mortgages (§ 380*) — Foreclosure—Executory Prooess — Discrepancy Between Note and Mortgage..</p> <p>A discrepancy between the dates of the note sued on and that described in the authentic act is fatal to a proceeding via executiva.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1154; Dec. Dig. § 380.*]</p> <p>2. Appeal and Error (§ 9*) — Existence of Other Remedy in Lower Court.</p> <p>An appeal may be taken from an order of seizure and sale, for the presentation of a question determinable on the face of the papers, notwithstanding that the execution of such order has been enjoined, under 'Code Prac. art. 739, upon one of the grounds authorizing injunction without bond; the two remedies applying to different conditions, and, when so used, being exclusive of each other.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 9.*]</p> <p>3. Action (§ 36*) — Change of Form.</p> <p>It does not lie with the plaintiff in injunction' to change a proceeding via executiva into a proceeding via ordinaria; but such change may be made with the consent of the plaintiff in the writ enjoined.</p> <p>[Ed. Note. — For other cases, see Action, Dec. Dig. 1 36.*]</p>

<p> (Syllabus by the .Court.) </p> <p>On Motion to Dismiss the Appeal.</p> <p>1.Courts (§ 224*) — Supreme Court — Jurisdiction — Appeal prom Judgment Declaring Statute Unconstitutional.</p> <p>The plaintiffs sought in this suit to contest and have set aside an election held to take the sense of the property holders of the First Ward of the parish of Iberville in relation to consenting to a tax of two mills per annum for public school purposes under article 232 of the Constitution of 1898, also to annul and set aside on grounds not questioning the legality of the election, an ordinance enacted hy the police jury of that parish in enforcement of the tax voted at the said election, and to have declared unconstitutional Act No. 84 of 1906, under which it was alleged that the school board of Iberville was preparing to issue bonds and to dedicate to their payment the taxes voted at the election. The defendants denied the power and authority of the court to entertain jurisdiction of a contest of election, but, in the event it had jurisdiction, they pleaded in bar of the action the prescription of three months. They further filed in bar of the action an exception of no right nor cause of action. The ease was disposed of on trial of the exceptions. The district court overruled the exceptions of no right nor cause of action, and that of prescription, and rendered judgment setting aside the election, and also the ordinance enacted to enforce the tax and decreed Act No. 84 of 1906 unconstitutional. The hoard of school directors have appealed. Plaintiffs have moved to dismiss the appeal.</p> <p>Plaintiffs having sought to have a tax on property annulled and set aside as illegal, and to have an act of the General Assembly declared unconstitutional and having been sustained by the Court in both positions, the party cast has a right of appeal to the Supreme 'Court. The appeal is sustained.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 224.*]</p> <p>On the Plea of Prescription and the Exception of no Cause of Action.</p> <p>2. Schools and School Districts (§ 97*)— Bonds — Election on Question oe Issue-Contests — Prescription.</p> <p>The prescription of three months pleaded was well grounded. The Court erred in overruling it and in maintaining the suit in so far as it contested the election. It should have sustained the exception of prescription and no cause of action, and dismissed the demand in so far as it contested the election.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Dec. Dig. § 97.*]</p> <p>On the Alerits.</p> <p>3. Schools and School Districts (§ 97*)— Bonds — Election on Question oe Issue-Contest — Trial.</p> <p>The court on trial of the exceptions should not have passed on the merits. The case was not at issue. The judgment on the merits is annulled, avoided, and reversed, and the case remanded for further proceedings according to law.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Dec. Dig. § 97.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; George I-I. Theard, Judge.</p> <p>Action by Henry L. Lazarus against George G. Friedrichs. Judgment for plaintiff, and defendant appeals.</p>

<p>On a rule for contempt of court by the Attorney General against F. Rivers Richardson.</p>

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

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; S. J. Henry, Judge.</p> <p>Martin Glover was convicted of selling liquor without a license, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>In the matter of the Succession of Jean (or John) Daste, Emily Olsen presented an account. From an order disallowing the same, she appeals.</p>

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>Action hy the heirs of Anton Weber against Joseph P. Martinez. Judgment for defendant was reversed by the Court of .Appeal, and defendant applies for certiorari or writ of review.</p>

<p> (Syllabus by the Oowt.) </p> <p>Indictment and Information (§ 114*) — Sufficiency— Second Offense.</p> <p>Where a statute provides a greater penalty for the commission of an offense a second time, the prior conviction enters into and is an element of the second offense, and as such an element it must be stated in the indictment, so that the accused may be made fully aware of the offense with which he is charged.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 301-307; Dec. Dig. § 114.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Partnership (§ 32*) — Agreement — Construction.</p> <p>Where parties make an agreement _ for the purchase and sale of land, and regard this agreement as a contract of partnership, the resulting partnership is an ordinary partnership, whose nature is not changed by the incidental purchase of timber, or the sale of the timber cut on the partnership lands.</p> <p>[Ed. Note. — For other cases, see 'Partnership, Dec. Dig. § 32.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5191-5202; yol. 8, pp. 7746-7747.]</p> <p>2. Partnership (§ 165*) — Commercial Partnership — Joint Obligation.</p> <p>It follows that the obligations of the’parties to the agreement is a joint obligation since they are ordinary partners.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. ■§ 301; Dec. Dig. § 165.*]</p> <p>3. Release (§ 28*) — Joint Obligation — Discharge oe One Debtor.</p> <p>The discharge of one joint obligor does not discharge the others, since each is liable for his virile portion, and each may at any time obtain his discharge by paying his virile share of the obligation.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 57; Dec. Dig. § 28.*]</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; H. F. Brunot, Judge ad hoc.</p> <p>Action by Calvin K. Schwing against James E. Dunlap and John J. Holtgreve. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. I-I. Couvillon, Judge.</p> <p>Action by Adolph Y. Coco against O. Coco, Sheriff and Tax Collector. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Action by the Argyle Planting & Manufacturing Company, Limited, against A. W. Connely, sheriff, and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Oowt.) </p> <p>Juvenile Courts — Jurisdiction—“Child.”</p> <p>Juvenile courts have no jurisdiction over minors, or of offenses against minors, over 17 years of age. A minor over the age of 17 years is not considered a child in the sense of section 9, Act 83 of 1908.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. § 18.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1115-1141; vol. 8, p. 7601.]</p>

<p> (Syllabus by the Court.) </p> <p>1.Nuisance (§ 21*) — Abatement—Evidence.</p> <p>This is an action by plaintiff to obtain an injunction to abate a nuisance of smoke, noise, and vibration caused by the operation of a roundhouse by the defendants near the property of plaintiffs. While the noises complained of are annoying, and should be lessened as much as possible, still they do not appear to affect the rights of the plaintiff to such an extent as to cause the removal of the works of the defendant.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 55; Dec. Dig. § 21.*]</p> <p>2. Nuisance (§ 33*) — Abatement—Evidence.</p> <p>The evidence does not show the vibration to be of such a character as to interfere with a substantial right of the plaintiffs so as to order the removal of the works of the defendant.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § 89; Dec. Dig. § 33.*]</p> <p>3. Nuisance (§ 3*) — Abatement—Smoke.</p> <p>While railroads as quasi public corporations enjoy certain privileges in reference to the emission of smoke from their property, still they should use every means at their command to lessen the amount of annoying smoke. While the neighbors of such a corporation cannot expect too much, still the railroad will be ordered to use approved methods to minimize’ any annoyance from its operation.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 10, 11; Dec. Dig. § 3.*]</p> <p>4. Nuisance (§ 33*) — Abatement—Noises.</p> <p>The testimony regarding the whistling noise is not such as to make up a case requiring the interference of the court.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. § S9; Dec. Dig. § 33.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Mrs. Arthur Cartwright against John P. Puissigur. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by Leroy Smith and others against the Krause & Managan Lumber Company, Limited. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by Mrs. Ernestine Chavigny against Dr. Adrian Hava. Judgment for plaintiff, and defendant appeals.</p>

Action by J. Landry & Son against G. J. Labarre and others. Judgment for plaintiff and the mentioned defendant obtained a writ of certiorari or review to the Court of Appeal.

<p>Appeal from Civil District Court, Parish, of Orleans ; George H. Theard, Judge.</p> <p>Action by Octave J. Villere against the New Orleans Pure Milk Company, Limited. From a judgment homologating the final account of a receiver, 28 creditors appeal.</p>

P. Edwards, Judge. Action by W. J. L. Smith and others against the Police Jury of Claiborne Parish and the Shreveport & Northeastern Railway Company. Judgment for plaintiffs, and the railway company appeals.

Theard, Judge. Proceedings for settlement of the estate of Delphine Gravier. Application of the public administrator to be appointed administrator or curator, -which Pelieite Jamet and another opposed. Prom a judgment allowing the application, opponents appeal.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Theard, Judge.</p> <p>Action by the Louisiana Navigation Company, Limited, against the Oyster Commission of Louisiana and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>Action by the Louisiana & Arkansas Railway Company against the Louisiana Railway & Navigation Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabtis by the Court.) </p> <p>Carriers (§ 94*) — Carriage of Goods — Delivery — Actions—Burden of Proof.</p> <p>Where the shipper produces the receipts of a carrier, issued by its authorized agent, showing the delivery of goods for safe carriage, and demands an accounting, the burden rests upon the carrier to prove either that the goods were never, in fact, delivered to it, and that the receipt was issued in fraud; or that the goods have been safely carried to their destination and there delivered to the consignee, subject to the exceptions lawfully included in its contract.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 378; Dec. Dig. § 94.*]</p>

1 Certiorari to Court of Appeal, Parish of Iberville. Action by V. Polizzotto against the People’s Bank. Judgment for plaintiff affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drent, Judge.</p> <p>Action by Shelby Ventress and others against Joe A. Reeves, President of the Police Jury, and others. Prom a judgment for defendants, plaintiffs appeal.</p>

« Action by the Belle Alliance Company against the Texas & Pacific Railway Company. Prom a judgment for .plaintiff, affirmed by the Court of Appeal, defendant brings writ of review.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; B. B. Purser, ad hoc, Judge.</p> <p>Sim E. Anderson was convicted of an illegal sale of liquors, and appeals. _</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Paul A. Sompayrac, Judge ad hoe.</p> <p>Action by Tqrner T. Nixon against the Krause & Managan Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Corporations (§ 557*) — Stockholder’s Bill — Mismanagement—Petition .</p> <p>A stockholder sued to have a corporation running a cotton oil mill put into the hands ol' receivers, alleging generally mismanagement, and then alleged specifically that on a stock subscription of $68,000 the directors incurred a debt of $90,000; that the operating expenses for 1908 and 1909 were $50,000, and the profits only $2,500; that the corporate property was mortgaged for over $6,000 to meet pressing obligations; that the board of directors adopted resolutions embodying a plan to borrow money from the stockholders to take up notes and claims owing ■ by the corporation, but that no provision was made for funds to operate the corporation; that owing to natural causes, reducing the amount of cotton seed necessary to supply the various oil mills, and thereby creating competition, it would be impossible to run the mill at a profit. Eeld, that the acts alleged were not unmistakable acts of mismanagement, and, in view of a failure to allege that the acts were not done in the honest exercise of the judgment of the corporate officers in the interests of the corporation, that a case of dissatisfaction only was made out, and the court would not interfere.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 557.*]</p> <p>2. Pleading (§ 22S*) — Exceptions — Admission.</p> <p>An exception of no cause of action to a petition, alleging mismanagement of a corporation, admits that the acts alleged have been done, but -not the conclusion which the pleader has drawn from them.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 590; Dec. Dig. § 228.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Deeds (§ 118*) — Construction—Property Conveyed.</p> <p>This is a petitory action by plaintiff'seeking to be decreed the owner of certain land inside the limits of the N. y> of section 36, township 7 N., range 4 W., upon which had been located at one time a Spanish grant known as the “Maria Taurus” grant, which he alleges that defendant is in possession of. Judgment was rendered in favor of the plaintiff, and defendant has appealed. The judgment appealed from is affirmed. It is conceded that the N. % of said section 36 was patented to plaintiff’s father by the United States government. Subsequently to patenting the land to Hickman the government located the Maria Taurus grant upon it, but later canceled the location, issuing scrip to the parties who claimed under the grant while the ultimate result of the conflict was in doubt. Plaintiff sold to one Richardson 250 acres of land more or less in the section “outside of the Spanish grant intersecting the section.” Defendant holds under the sale to Richardson. There was a second Spanish grant in conflict with the patent known as the “Juan De Leon” grant. Defendant contended that this was the grant referred to in the sale to Richardson. The district court held that it was not, and that conclusion is confirmed by the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Deeds, Dec. Dig. § 118.*]</p> <p>2. Estoppel (§ 22*) — Adverse Possession (§ 71*) — Estoppel oe Vendor by Conveyance.</p> <p>The plea of estoppel and the exception of prescription were correctly overruled by the trial court.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 22 ;* Adverse Possession, Dec. Dig. § 71.*] -</p> <p>3.Real Actions (§ 8*) — Judgment—Scope.</p> <p>The plaintiff asks that the judgment be amended as against defendant decreeing him to be the owner of all land within the Maria Taurus grant, but the judgment must be limited to the land which defendant is shown to be in possession of. To render judgment in favor of plaintiff for more would be outside the pleadings, and have no legal significance.</p> <p>[Ed. Note. — For other cases, see Real Actions, Dec. Dig. § 8.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 224*) — Decisions Review able— Amount in Controversy.</p> <p>Plaintiff sued a notary public and the surety on his official bond, praying for a judgment in solido against them for the sum of $2,511.</p> <p>Judgment for the full amount claimed was rendered against the notary by default. On taking up the case later against the surety, the plaintiff on the trial caused to be entered in the note of evidence an admission that he had received $1,250 on the judgment through a fieri facias and garnishment proceedings thereunder, and that he was not entitled to judgment against the surety for the full amount. In consequence of this admission the court rendered judgment against the surety for the amount originally claimed, subject to the credit.</p> <p>The surety in his answer had pleaded a general denial, followed by an admission that he was surety of the notary upon his official bond. He set up no reconventional demand.</p> <p>The surety appealed to the Supreme Court. Plaintiff moved to dismiss the appeal, on the ground that the amount in dispute was less than that required to give that court appellate jurisdiction. Held, that the Supreme Court has no appellate jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 608-618; Dec. Dig. § 224.*]</p> <p>2. Appeal Dismissed.</p> <p>The appeal is dismissed, with the right to-have the case transferred to the Court of Appeal, on compliance by applicant with the provisions of Act No. 56 of 1904.</p>

<p> (Syllabus by the Court.) </p> <p>1. Schools and ScnooL Districts (§ 85*) — ' Contracts — Nonperformance of Duty by Agent — Liability.</p> <p>The parish school board appointed a local committee to contract for and supervise the erection of a schoolhouse, and said committee made a contract for a kiln of hard-burned bricks at a certain price, to be delivered to and accepted by the building contractor if found suitable for the purpose. The kiln was burned, and a certain proportion of the bricks was accepted by resolution of the committee, carried by the casting vote of the defendant as chairman, and all the members signed a warrant for the price, and the proceeds of the warrant was received by the defendant as a creditor of the contractor for furnishing the bricks. On inspection by experts appointed by the school board the bricks were found unsuitable for use in the construction of the proposed school building. Held, that the defendant was properly condemned to make restitution to the plaintiff board, on the ground that an agent is responsible for damages resulting to his principal from' the nonperformance of his duty, or from his fault or neglect. Oiv. Code, arts. 3002, 3003.</p> <p>[Bd. Note. — Bor' other cases, see Schools and School Districts, Cent. Dig. § 202; Dec. Dig. § 85.*]</p> <p>2. Pleading (§ 398*) — Defects—Cure by Evidence.</p> <p>Evidence received without objection supplies the place of pleadings.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 398.*]</p> <p>3. E'stopTel (§ 114*) — Replication—Avoidance oe Defense in Answer.</p> <p>As the Code of Practice does not permit replications, it is not necessary for plaintiff to plead an estoppel in avoidance of defenses set forth in the answer. If surprised, the remedy of the defendant is to ask for a postponement of the trial.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 304; Dec. Dig. § 114.*]</p>

King, Judge. Action by Stephen Jozsa against Timothy Mproney, defended by his succession on his death prior to trial. Judgment for defendant, and plaintiff appeals.

C. W. Ellis, Judge. Action by the Sanders Baptist Church, Incorporated, and others, against Joseph L. Dennis and others. Judgment for defendants, and plaintiffs appealed to the Court of Appeal, which transferred the case to the Supreme Court.

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Inez J. Emuy against Horace E. Farr. Judgment of dismissal, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Interpleader (§ 1*) — Several Claimants to Fund — Discretion of Court.</p> <p>The law does not favor lengthy, vexatious, and expensive litigation, and where there is no positive prohibition, and when in the reasonable exercise of that discretion allowed a judge he decides that it is consonant with equity to determine en concurso the rights of several claimants to a fund, the proceedings will be held valid, where no substantial right of any party has been denied him. A large discretion is allowed the courts when there are several parties claiming a fund. Gill v. Lake Charles, 119 La. IT, 43 South. S9T.</p> <p>[Ed. Note. — For other cases, see Interpleader, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>On the Merits.</p> <p>2. Interpleader (§ 33*) — Payment into Court — Rights of Holder of Forged Note.</p> <p>Where the holder of a good mortgage note and the holder of a forged note claim the fund deposited in the registry of the court by the maker thereof, the holder of the good note is entitled to be paid, and the loss must fall on the holder of the forged note.</p> <p>[Ed. Nóte. — For other cases, see Interpleader, Cent. Dig. § T4; Dec. Dig. § 33.*]</p>

F. Blackman, Judge. ' Action by the Bank of Lecompte against the Lecompte Cotton Oil Company, Limited, in which Mrs. May R. Hardy and others intervene. From the judgment, plaintiff and intervener Hardy appeal.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton; Judge.</p> <p>Action by J. P. McMillian against the Louisiana Manufacturing & Mercantile Company, Limited. Judgment for defendant,' and plaintiff appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Action by Oliver Y. Waggner and others against the Police Jury, Parish of Jefferson, and others. Judgment for defendants, and plaintiffs appeal.</p>

Tammany; Thomas M. Burns, Judge. Proceedings for the settlement of the estate of Mrs. S. H. Delano. From a judgment homologating the executor’s account, the residuary legatee appeals.

<p> (Syllabus by the Court.) </p> <p>Taxation (§ 231*) — Railroads—Exemption— Constitutional Law.</p> <p>Article 230, Const. 1898, exempts all railroads completed prior to 1904 from, taxation, and provides that, when any parish, ward, or municipality has voted aid to a railroad, that railroad must submit to the taxpayers within six mouths of the adoption of the Constitution the question of the continuance of such aid, unless the railroad waives or relinquishes such aid; otherwise it shall not be entitled to the exemption granted by this section. This section does not mean that a railroad obtaining aid in one parish without first submitting the question of its continuance to the taxpayers will be deprived of the constitutional exemption in another. A railroad may claim the aid in one parish and the exemption in another, and this choice of rights in the one will not bind its choice in the other parish.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 231.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Deeds (§ 38*) — Description of Property —Title.</p> <p>In order to be good and serve as the basis of property rights, a title must sufficiently, describe the property so as to identify it, and when, as in the case of defendant’s .title, it fails to describe land claimed by the defendants, it will not serve to avail them against plaintiffs who possess a title to the land that is the subject of the suit.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.*)</p> <p>2. Prescription. — Title Translative of Property — Description of Land.</p> <p>In order to acquire property by means of the prescription of 10 years, it is necessary that the one pleading this prescription should 'possess by a title translative of property, and one of the essential requisites of this title is that it should correctly and properly describe the land so as to identify it.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.*]</p> <p>3. Prescription — Possession—Evidence.</p> <p>Possession is one of the essential elements of the 10 years’ prescription, and the evidence does not show that either the defendants or the authors of their title were in possession for 10 years prior to the filing of the suit, and so this prescription cannot avail them.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Dec. Dig. § 14.*]</p>

<p> (Syllabus by the Court.) </p> <p>Attorney and Client (§ 147*) — Contract eob Contingent Pee — 'Validity.</p> <p>It is lawful for an attorney at law to contract with a client for the payment of a fee conditioned on his success in recovering property or collecting claims. The amount of the contingent fee, being fixed by contract, is binding on the client, in the absence of fraud practiced, or error induced, by the attorney.</p> <p>[Ed. Note. — Por other cases, see Attorney and Client, Cent. Dig. § 351; Dec. Dig. § 147.*J</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Action by W. H. D. Price, for use, etc., against the Lee Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from 'Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.</p> <p>■ Action by E. L. Williams against the Arkansas, Louisiana & Gulf Railroad Company. Judgment for plaintiff. Defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Street Railroads ■(§ 114*) — Injury to Pedestrian — Contributory Negligence.</p> <p>The plaintiff was not guilty of contributory negligence in crossing at the foot crossing of the streets at the time and under the circumstances which she did.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 114.*]</p> <p>2. Street Railroads (§ 114*) — Accident to Pedestrian — Negligence.</p> <p>The motorman was at fault in taking his car over the foot crossing as soon as he did under the circumstances of the case, and with the car moving as it was.</p> <p>[Ed. Note — For other cases, see Street Railroads, Dec. Dig. § 114.*]</p> <p>3. Street Railroads (§ 81*) — Injury to Pedestrian — Negligence.</p> <p>He had reasons to believe that persons might be attempting to cross at the foot crossing of that narrow street directly in the rear of the wagon which had just passed by, and he should have been certain that the crossing was clear before taking his car over it.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 81.*]</p> <p>Monroe, J., dissenting.</p>

<p>Appeal from Eighth Judicial District Court, Parish of Franklin; D. N. Thompson, Judge.</p> <p>Action by William I-I. Gilmore against A. O’Brien. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from the Justice’s Court, Ward 4, Parish of Union; J. M. Anderson, Justice of the Peace.</p> <p>Action by Solomon Schute against J. L. Hopkins and others. Judgment for plaintiff, and the mentioned defendant appeals.</p>

X. Ransdell, Judge. Action by William S. Holmes against Annie A. Murdock, defended by her executor upon her death pending appeal. Judgment for defendant, and' plaintiff appeals.

Action by Victorin Jolivet against Francesca Chaves and others. Judgment for plaintiff was reversed by the Court of Appeal, parish of Lafayette, and he applies for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>1. Insurance (§ 281*) — Forfeiture of Policy — Padding Inventory.</p> <p>The “padding” of an inventory of merchandise by false entries of articles not on hand will work a forfeiture of a fire insurance policy, when such entries cannot be explained on any reasonable theory of honest mistake.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ '597, 598; Dec. Dig. § 281.*]</p> <p>2. Insurance (§ 388*) — Forfeiture—Waiver.</p> <p>Under the New York standard policy, a forfeiture is not waived by any requirement, act, or proceeding on the part of the insurer relating to the appraisal of the loss or to any examination of the insured provided for in the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 388.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Mrs. Linnie Cornelia Moren, individually and as guardian for Ruth Evelyn Moren against the New Orleans Railway & Light Company. Judgment for defendant and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1150*) — Appeal—Review —Ruling on Motion for New Trial.</p> <p>The trial judge being in a much better position to estimate the value of the testimony given in support of a motion for new trial in a criminal case, and the matter of granting or denying such motion being largely within his discretion, this court would hesitate, under any circumstances, in reversing his ruling on the subject. In this instant case, it has no hesitation in affirming it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.*]</p> <p> (Additional Syllabtis by Editorial Staff.) </p> <p>2. Criminal Law (§ 911*)— Appeal — Discretion of Court — Denial of New Trial.</p> <p>In a criminal ease, the court held, under the evidence, not to have abused its discretion in denying a new trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 911.*]</p>

<p>Roman Le Blanc was convicted of selling spirituous liquors, and he applies for certiorari and prohibition.</p>

<p> (Syllabus by the Court.) </p> <p>1. Donations — Inter Vivos — Revocation.</p> <p>A donation of lands made on certain potestative conditions mdy be revoked by the donor on the failure of the donee to perform, and where it was stipulated that, in the event of such failure, the conveyance shall be null and void, if the donor so elect, and the donor brought suit to annul on the ground of nonperformance of the conditions, held, that it was too late for the donee or his mortgage creditor to tender performance, and that the court had no power to grant delay in such a case.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. § 20; Dec. Dig. § 41.*]</p> <p>2. Donations — Inter Vivos — Validity—Execution.</p> <p>A deed of gift of lands in Louisiana, executed by the donor alone in the state of Texas by private act and acknowledged before a notary public, is null and void for want of the formalities required by the laws of the situs.</p> <p>TEd. Note. — For other cases, see Gifts, Cent. Dig. § 4; Dec. Dig. § 26.*]</p> <p>3. Acknowledgment (§ 19*) — Authority to Take — Extraterritorial Authority.</p> <p>A deed of gift under private signature, attested by two witnesses and acknowledged by the donor before a notary in another state, is not such an authentic act as is required by the law of Louisiana to evidence donations of immovables.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Dec. Dig. § 19.*]</p> <p>4. Donations — Action to Annul — Grounds.</p> <p>A donor in the same action may set up different grounds for annulling the donation, such as nonperformance of conditions imposed on the donee and the nullity of the donation for want of form.</p> <p>[Ed. Note. — For other cases, see Gifts, Dec. Dig. § 41.*]</p> <p>5. Donations —Annulment —Reversion oe Property.</p> <p>Where a donation is annulled, the property reverts to the donor free from all incumbrances and mortgages created by the donee.</p> <p>[Ed. Note. — For other cases, see Gifts, Dec. Dig. § 41.*]</p> <p>6. Donations — Annulment — Betterments —Right oe Donee.</p> <p>Where a donation is annulled, the donee has no equitable claim for improvements and betterments, when their cost is less than the value of timber on the premises converted to his own use by the donee.</p> <p>[Ed. Note. — For other cases, see Gifts, Dec. Dig. § 41.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Petition by the Fidelity Mutual Life Insurance Company against John Fitzpatrick, State Tax Collector, and others. From a judgment denying relief, defendants appeal.</p>

<p>Prohibition by the State, on information and relation of Walter Guión, Attorney General, against the People’s Fire Insurance Company of New Orleans.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Action by Branch E. Smith against the Parish Board of School Directors. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Second Judicial District Oourt, Parish of East Baton Rouge; H. P. Brunot, Judge.</p> <p>Action by the Shreveport Bridge & Terminal Company against the State Board of Appraisers. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 224*) — Supreme Court — Jurisdiction — Amount in Controversy.</p> <p>This court has jurisdiction in cases that involve an amount in excess of $2,000, and the matter of jurisdiction is determined by the value of the right sought to be vindicated, and not by the value of the property out of which the right arises. The damage to the property resulting from the trespass to the right of property, and not the value of the property, is the basis of the jurisdiction of this court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 491%, 617; Dec. Dig. § 224.*]</p> <p>2. Courts (§ 224*) — Supreme Couro>-Jurisdiction — Amount in Controversy.</p> <p>There is nothing in the record to show that the right invaded by the defendant is in excess of $2,000, and so this court cannot take jurisdiction of the case, especially as plaintiff merely prays for an injunction, and does not even ask for a money judgment.</p> <p>[Ed. Note. — For othér eases, see Courts, Cent. Dig. §§ 491%, 617 ; Dec. Dig. § 224.*]</p>

Action by William Frantz & Co. against Jacob Fink and another. Judgment for defendants was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review to the Court of Appeal.

<p> (Syllabus by the Court.) </p> <p>Real Actions (§ 8*) — Petitoey Action — Petition — Sufficiency.</p> <p>Where plaintiff, claiming ownership under a chain of title of a tract of land, alleges' that the defendant is and has been for a number of years in unlawful possession of the same, and is accountable for rents and revenues, and prays for judgment restoring him to the possession of his property, quieting him in his title, condemning the defendant to pay rents, and for general and equitable relief, held, that the action is petitory on the face of the petition, and that the omission to pray for a specific decree of ownership is cured by the prayer for general relief.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent. Dig. § 29; Dec. Dig. § 8.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Contracts (§§ 57, 116*) — 'Validity—Consideration.</p> <p>A contract by which the second party agrees to buy the molasses required by the first party for its distillery for the term of one year from date, for a commission of 10 cents per barrel, the second party to have his commission on all molasses which the first purchases of other persons, is a valid contract, binding the second party to furnish his services and the first party to pay him therefor.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 345; Dec. Dig. §§ 57, 116.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>Action by George K. Pratt against John F. McCoy and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the Concrete Construction & Contracting Company against George K. Pratt. From an order dissolving an injunction, plaintiff appeals.</p>

King, Judge. Action by Frank Christina against Theresa Cusimano and others. Judgment for defendants, and plaintiff and William Schroeder, intervener, and certain of the defendants appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Frank Christina against Theresa Ousimano and others. Judgment for plaintiff, and Cusimano appeals.</p>

King, Judge. In the Matter of the Succession of Charlotte Schmidt. Rushian Johnson and others, proponents of a certain will, appeal from an order probating a will in nuncupative form.

<p>Appeal from Juvenile Court, Parish of Orleans; Andrew I-I. Wilson, Judge.</p> <p>Lew Rose was convicted of willfully and unlawfully permitting minors to perform on a stage, and he appeals.</p>

<p>Appeal from Juvenile Court, Parish of Orleans ; Andrew H. Wilson, Judge.</p> <p>Lew Rose was convicted of willfully and unlawfully permitting minors to perform on a stage, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 289*) — Injury to Servant — Negligence — Question for Jury.</p> <p>Where plaintiff, a brakeman riding on a skeleton car of a logging train, was thrown beneath the wheels and badly injured, by the sudden and violent stopping of the train by the engineer, without warning or notice, the question whether he was guilty of contributory negligence in riding in an unsafe position on the car is one of fact, peculiarly within the province of the jury, and after a review of the evidence we are not prepared to say that the finding 'is against the preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1124; Dec. Dig. § 2S0.*J</p> <p>2. Master and Servant (§ 240*) — Injuries to Servant — Negligence —Unforeseen Acts.</p> <p>Plaintiff cannot be considered as guilty of contributory negligence for failing to foresee and guard against a sudden and unexpected emergency stop, which no one anticipated.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 754; Dec. Dig. § 240.*]</p> <p>3. Master and Servant (§§ 198. 22G, 210*)— Assumption of Risk — Negligence of Master and Superintendent.</p> <p>Plaintiff cannot be considered as assuming the risk of the negligence of the railroad company or of its conductors, or engineers acting as conductors.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 501-505, 570; Dec. Dig. §S 198, 226, 216.*]</p> <p>4. Master and Servant (§ 240*) — Negligence of Servant — Assuming Dangerous Position.</p> <p>As the evidence tends to show that the position of the brakeman on the car would have been safe under ordinary circumstances, he cannot be considered as guilty of contributory negligence for assuming such a position.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 752; Dec. Dig. § 240.*]</p> <p>5. Master and Servant (§§ 137, 141*) — Injuries to Servant — Negligence of Master.</p> <p>The emergency stop was the immediate cause of the injury, but the necessity for such a stop was created by the negligence of the superior servants of the railroad company in leaving the switch open, contrary to custom, and in not inspecting the switch before attempting to use it, and by the negligence of the management in not making and enforcing proper rules for the operation of the switch.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. §§ 137, 141.*]</p> <p>G. Master and Servant (§§ 137, 141*) — Injuries to Servant — Negligence of Master.</p> <p>But from any point of view, the efficient cause, the causa causans, was the negligence of the company and of its servants for whose fault it is answerable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. §§ 137, 141.*]</p> <p>7. Damages (§ 132*) — Personal Injuries— Excessive Amount.</p> <p>As far as possible, some reasonable uniformity in awards of damages should be observed.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 381; Dec. Dig. § 132.*]</p> <p>Monroe, J., dissenting.</p>