Volume 126 — Louisiana Reports

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by John Eckhardt against E. A. Máteme and others. Judgment for defendants, and plaintiff appeals.</p>

Action by the Town of Franklinton against the Police Jury of the Parish of Washington. An order dismissing plaintiffs suit was reversed by the Court of Appeal, and judgment rendered for plaintiff, and defendant applies for certiorari or writ of review.

<p>Appeal from 'Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Alexander J. Carriek against Jacob Joachim. Judgment for defendant, and plaintiff appeals.</p>

Theard, Judge. Petition by T. Scott Burbank and others, children and legal heirs of Edward W. Burbank, deceased, against Nellie G. Burbank, for judgment putting the heirs in possession of the property of the succession. From the judgment, all parties appeal.

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1134*) — Appeal—Review —Question oe Law.</p> <p>A complaint that the corpus delicti was not proven beyond a reasonable doubt raises no question of law for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1134.*]</p> <p>2. Criminal Law (§ 1171*) — Misconduct oe Counsel — Argument.</p> <p>A verdict of the jury will be set aside on account of the remarks of prosecuting counsel only in cases where such remarks were not only improper, but were well calculated to influence the verdict of the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127; Dec. Dig. § 1171.*]</p> <p>3. Courts (§ 42*) — Organization oe Criminal District Court.</p> <p>The constitutionality of Act No. 98 of 1880, providing for the organization of the criminal district court of the parish of Orleans, is too well settled for further controversy.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 42.*]</p>

<p>Appeal from Twelfth. Judicial District Court, Parish of Vernon; Don E. So. Relie, Judge.</p> <p>Action hy William C. Whitney against the Parish of Vernon. Judgment for defendant, and plaintiff appeals.</p>

So Relie, Judge. Action by the Interstate Trust & Banking Company against the Powell Brothers & Sanders Company, Limited, and Thomas C. Win-gate, as its receiver. Judgment for plaintiff, and defendants appeal.

<p>Appeal from • Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by John Estrade and others against John I-Ienry Kaack. Judgment for plaintiffs, and defendant appeals.</p>

Action by the Morris McGraw Wooden Ware Company, Limited, against the German Fire Insurance Company of Pittsburg, Pa. Judgment for plaintiff was reversed by tbe Circuit Court of Appeal, and plaintiff applies for certiorari or writ of review. Denied, and petition dismissed.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Homicide (§§ 83, 309*) — Accessory Before the Pact — Charge on Manslaughter.</p> <p>Notwithstanding Rev. St. § 972, provides that the punishment of the accessory shall be the same as that of the principal, and under section 785, providing that there shall he no crime known as murder in the second degree, hut on trials for murder defendant may be found guilty of manslaughter, it is necessary in all cases of murder that there be given a charge, though not requested, that the jury may bring in a verdict of manslaughter, such a charge need not be given on a prosecution for being an accessory before the fact to a murder; as there cannot be an accessory before the fact to manslaughter.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 109, 649-656; Dec. Dig. §§ S3, 309.*]</p> <p>2. Criminal Law (§ 107*) — Venue.</p> <p>Const, art. 9, providing that trials shall take place in the parish in which the offense was committed, controls any statute to the contrary.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 219; Dec. Dig. § 107.*]</p> <p>3. Criminal Law (§§ 737, 791*) — Venue — Submission of Question to Jury.</p> <p>Though on a prosecution for being an accessory before the fact to a murder the only acts of counseling and procurement directly testified to were located by the witness in a parish other than that of the trial, yet evidence that defendant was seen in the company of the murderers near the scene of the murder, in the parish of the trial, within an hour of its commission, authorized the submission of the question whether there had been any counseling and procurement by defendant in the latter parish ; but' the jury should also have been told that if they found no acts of counseling and procurement were committed in the latter parish, but did find such acts had been committed in another parish, they should so report and find no verdict.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1703-1706; Dec. Dig. §§ 737, 791.*]</p> <p>4. Witnesses (§ 326*) — Impeaching Impeaching Witness.</p> <p>Refusal to permit defendant to impeach a material witness for the prosecution testifying for the first time in rebuttal of evidence adduced by defendant, which evidence was offered to contradict and impeach the sole wdtness by whom defendant was directly connected with the crime, was reversible error.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1174; Dec. Dig. § 326.*]</p> <p>5., Criminal Law (§ 31*) — Inconsistent De~ ’ SENSES.</p> <p>Defendant, on a prosecution for being. an accessory before the act, cannot occupy the inconsistent position of denying the procurement, and at the same time contending that he repented and countermanded it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 31.*]</p> <p>6. Criminal Law (§ 73*) — Accessory Before the Fact — Countermanding Order.</p> <p>Evidence for defendant on a prosecution for being an accessory before the fact to a murder, which was committed by two men, both of whom, if either, had been counseled and incited by him to commit the-crime, that he had countermanded his order with one of them could be of no avail, in the absence of evidence that he had countermanded it with the other.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 73.*]</p> <p>7. Criminal Law (§ 413*) — Evidence—Self-Serving- DECLARATIONS.</p> <p>Evidence, on a prosecution for being an¥ accessory before the fact to a murder, that on the day of the murder defendant had said he did not wish deceased harmed is evidence of a self-serving declaration.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.*]</p>

<p>Appeal from Twelfth. Judicial District Court, Parish of Vernon; J. B. Lee, Judge.</p> <p>Action by Nathaniel E. Lee against the Powell Bros. & Sanders Company, Limited, and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and Error (§ 878*) — Review—Appeal prom Judgment op Dismissal.</p> <p>Where plaintiff appeals from a judgment of dismissal, and defendant files no answer asking that the lower court’s action in entertaining jurisdiction be also reviewed, such question cannot be considered, and the only subject open to review is the correctness of the dismissal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573-3580; Dec. Dig. § 878.*]</p> <p>2. Levees (§ 11*) — District Lands — Improper Sale — Suit to Avoid — Parties.</p> <p>Const, art. 239, authorizes the Legislature to create levee districts and to provide for levee commissioners to have charge of the levees of the district. Act No. 59 of 1886 created the Tensas Basin levee district, and provided that lands within the district “shall be and hereby are given, * * * conveyed and delivered” to the board of commissioners thereof, and that a deed thereof should be made to the board upon the registry of which the title to such lands with possession thereof should vest absolutely in the board of commissioners, its successors or grantees, with power to sell or otherwise dispose of such lands. The board was also given power to sue and be sued as to all matters relating to their trust. Hold, that the board of commissioners could sue to annul an alleged fraudulent sale of such lands by the members of the board and other district officers, and it not appearing that the board had failed or was unwilling to sue, and no co-ordinate power being given the Governor or Attorney General to sue respecting such lands, a suit for such purpose in the name-of the state was unauthorized.</p> <p>[Ed. Note. — For other eases, see Levees, Dec. Dig. § 11.*]</p> <p>Breaux, C. J., and Nicholls, J., dissenting.</p>

U. Richardson, Special Judge. Action by the Barnette Sawmill Company against the Ft. Harrison Lumber Company. From a judgment for plaintiff, defendant appeals, and plaintiff prays that the judgment be increased.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge.</p> <p>Action by 0. Paul Cos, trustee, against the First National Bank of Lake Charles; Mrs. O. Robideaux intervening as plaintiff. From a part of the judgment rendered, plaintiffs appeal.</p>

King, Judge. Action by Mrs. Clara Weil Steeg against the Leopold Weil Building & Improvement Company, prosecuted by the executor and heirs of plaintiff upon her death. Judgment for plaintiff, and certain defendants appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Gladstone Realty Company against A. Currie. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Forgery (§ 7*) — Subjects oe Forgery — Trade Check — “Note.”</p> <p>Since the enactment of Act No. 228, p. 345, of 1908, trade checks redeemable in merchandise are payable on demand in current money of the United States. Hence a trade check in the form of a promissory note payable to bearer in merchandise, if not an order for money, is a “note,” within the purview of the statute against the forgery of notes, orders, etc.</p> <p>[Ed. Note. — Eor other cases, see Forgery, Cent. Dig. §§ 8-15; Dec. Dig. § 7.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4836-4839.]</p>

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

Sommerville, Judge. Action by Mrs. Elizabeth Williamson, against Francois Gruaz. From an interlocutory judgment requiring defendant to pay plaintiff alimony pending the action, defendant appeals; plaintiff answering the appeal and praying for additional relief.

<p> (Syllabus by the Court.) </p> <p>Divorce (§ 121*) — Separation from Bed and Board — Evidence—Sufficiency.</p> <p>The plaintiff in this case was granted a separation from bed and board from her husband by the district court. On appeal that judgment is affirmed.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398; Dec. Dig. § 124.*]</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Bettie Smith was convicted of perjury, and, from an order sustaining a motion in arrest of judgment, the State appeals.</p>

B. Purser, Judge ad hoe. John Dykes was convicted of violation of the election law, and on failing to appear his bond was forfeited, and he appeals.

<p> (Syllabus by the Court.) </p> <p>Appeal and Ekboe (§ 1106*) — Acquiescence-in Judgment — Remand.</p> <p>The defendant lost the suit in the district court. He paid costs, including stenographer’s: charges and amount due to witnesses.</p> <p>He applied for and obtained a suspensive appeal.</p> <p>He was not obliged to pay costs and charges.</p> <p>On appeal, appellee moved to dismiss the appeal on the ground that appellant had acquiesced' in the judgment by paying costs and charges.</p> <p>The court will not consider ex parte testimony, offered to prove facts alleged to the end of obtaining a dismissal.</p> <p>Case remanded in order that evidence may be introduced in the district court, and that court to pass upon the question submitted. Cause subject to appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, -Cent. Dig. § 4392; Dec. Dig. § 1106.*]'</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Emma Ferrier Dumont and another against'John A. Barrett. From a judgment for defendant, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 407*) — Constitutional Law (§ 290*) — Public Improvements — Local Assessments — Due Peocess op Law.</p> <p>Act No. 147, p. 201, of 1902, empowering cities and towns (the city of New Orleans and city of Shreveport excepted) having a certain population, and parish sites, to levy local' assessments on abutting real estate for the purpose of paving or otherwise improving sidewalks and curbings, is a lawful exercise of the taxing power, and is not repugnant to articles 2 and 232 of the state Constitution, or to the fourteenth amendment of the Constitution of the United States, guaranteeing to the citizen due process of law.</p> <p>(Ed. Note — For other cases, see Municipal Corporations, Cent. Dig. § 1003; Doc. Dig. § 407;* Constitutional Law, Cent. Dig. § 871; Dec. Dig. § 290.*]</p> <p>2. Municipal Corporations (§ 495*) — Local Assessments — Review by Courts.</p> <p>Whether a local assessment for street purposes is necessary or not, or will confer any special benefits on the abutting property, are not judicial questions, when ordered in admissible cases, unless there be such a plain and manifest abuse of power as takes the case out of legislative discretion.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1196; Dec. Dig. § 495.*]</p> <p>3. Municipal Corporations (§ 336*) — Contracts— Letting to Lowest Bidder.</p> <p>Under section 2, Act No. 147, p. 261, of 1902, paving contracts must be let to the lowest responsible bidder who can give satisfactory security ; and where a town council awards such a contract to one of the bidders, ignoring two lower bids, without even plausible reasons, the award will be set aside as an abuse of the discretion vested in the council.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 862; Dec. Dig. § 336.*]</p>

Judicial District. Court, Parish of Natchitoches; Samuel J. Henry, Judge. Action by Martha Britt and others against the Caldwell-Norton Lumber Company, Limited, and others. Judgment for plaintiffs,, and defendant and warrantors appeal.

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; J. P. Madison, Judge.</p> <p>Action by Joseph W. Moore against O’Ban-non & Julien and others. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Courts (§ 79*) — Rules oe Court — Statutes— CONSTRUCTION.</p> <p>Under Const, art. 104, providing that the rules of practice in the Supreme Court shall apply to the Courts of Appeal until otherwise provided, a rule of practice regulating appeals in the Supreme Court will regulate appeals in the Courts of Appeal, where there is no law on the subject; but where there is a law on the subject, the Legislature must repeal the law and enact another in its place, if a change is desired, and Act No. 223 of 1908, fixing the delay for a rehearing in the Supreme Court at 15 days, does not repeal a rule of the Courts of Appeal limiting the time to 6 days, adopted as authorized by Act No. 100 of 1890.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 275; Dec. Dig. § 79'.*]</p>

<p>Appeal from the Twenty-Third Judicial District Court, Parish of St. Mary; J. R. Parkerson, Judge ad hoc.</p> <p>Action by J. L. Darragh against A. E. Vicknair. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Bastaeds (§ 102*) — Right to Inherit.</p> <p>The child of a woman slave by a white man is a bastard, and cannot inherit the succession of the mother opened in the state of Louisiana since the adoption of Act No. 54 of 1894, p. 03, prohibiting marriage between white persons and persons of color.</p> <p>[Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 254, 255; Dee. Dig. § 102.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 717, 718; vol. 8, p. 7588.]</p> <p>2. Bastards (§ 13*) — Legitimation.</p> <p>Under Civ. Code 1870, art. 204, no illegitimate child can inherit from his parents unless they were capable of contracting marriage at the time of its conception. Act No. 68 of 1870, permitting the legitimation of natural children by declaratory acts before notaries public and two witnesses, where there existed no other legal impediments to the intermarriage except those resulting from color or the institution of slavery, has no application to a case where the parents have not availed themselves of the benefit of the statute.</p> <p>[Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.*]</p> <p>3. Descent and Distribution (§ 6*) — What Law Governs.</p> <p>The capacity of heirs to inherit must he determined by the laws in force at the date of the opening of the succession.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 28-32; Dee. Dig. § 6.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Damasks (§ 150*) — Pleading—Liquidated Damages.</p> <p>Where the putting of the debtor in default is a prerequisite to the recovery of damages in ordinary cases, it is also a prerequisite to the recovery of liquidated damages or the penalty stipulated for delay in the performance of the contract. A pleading containing a demand for liquidated damages shows no cause of action in the absence of averment that the debtor is in default by the act of the creditor, by the terms of the contract, or by operation of law.</p> <p>[Ed. Note — For other cases, see Damages, Dec. Dig. § 150.*]</p> <p>2. Pleading (§ 225*) — Demurrer—Exception —Amendment Aeter Demurrer Sustained.</p> <p>After a demurrer to a pleading is sustained by the court, an offer to amend comes too late, but in such a case the ruling does not prejudice the right of the party to renew his demand on proper allegations.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 575; Dec. Dig. § 225.*]</p> <p>3. Damages (§ 71*) — Breach oe Contract-Attorney Fees.</p> <p>Where the terms of a contract are doubtful as to the inclusion of attorney fees as damages, such a demand will be rejected.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 146; Dec. Dig. § 71.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Execution (§ 272*) — Sale — Rights of Pubchasek.</p> <p>A sheriff holding in his hands for execution a writ of fieri facias is legally authorized to thereunder seize, advertise, and sell as belonging- to the judgment debtor real estate standing in his name in the conveyance records of the parish where that property is situated, when there was at the time no evidence in those records of -any claim of adverse ownership, and, for the same reason that the judgment creditor and sheriff were authorized to so seize and sell the said property, the public was legally authorized and justified in purchasing it.</p> <p>[Ed. Note. — Eor other eases, see Execution, Dec. Dig. § 272.*]</p> <p>2. Execution (§ 264*) — Sale —Rights of Pubchasek.</p> <p>A person purchasing under such circumstances is subrogated to the rights of the seizing creditor so selling the same, and is not limited as a purchaser to the rights of the seized debtor in the property as modified or affected by admissions or acts which may have been made or done by him in favor of third parties which did not appear in the conveyance records, and which might work an estoppel eu pais as between himself and such third person. Brian v. Bonvillain, 52 Da. Ann. 1806, 28 South. 261; Id., Ill Da. 441, 35 South. 632.</p> <p>[Ed. Note. — For other eases,' see Execution, > Dec. Dig. § 264.*]</p> <p>S. Bona Fide Puechaseks — Uneecokded Deeds.</p> <p>All the claims and pretensions of the_ plaintiff herein are met and defeated by the principle announced in the case of McDuffie y. Walker, 125 La. 152, 51 South. 100.</p>

<p> (Syllabus by the Court.) </p> <p>Taxation (§ 679*) — Tax Sale — Subsequent Conveyance by State — Validity.</p> <p>Plaintiff brought suit, seeking contradictorily with the defendants to test his title to certain property, the original ownership of which was admitted to have been in the ancestor of the defendant. Plaintiff obtained judgment in the district court, and defendants appealed. The judgment on appeal is reversed, and plaintiff’s demand and suit dismissed.</p> <p>Plaintiff’s title is based upon a conventional deed of sale to him of the property in litigation, executed by the State Auditor; his authority for doing so being claimed to be Act No. 80 of 188S and Act No. 126 of 1896. Defendants alleged that the property had never been offered for sale under the provisions of the said acts; that that fact was a condition precedent to any authority in the State Auditor to sell the property. They established that fact on the trial of the case through evidence adduced over plaintiff’s objection that the defendants had no interest in raising that issue, inasmuch as the title of defendants’ ancestor had passed and was in the state when the Auditor acted, and therefore it alone could question that officer’s authority to act.</p> <p>Held, for reasons assigned, that the offering for sale under Act No. SO was a condition precedent to the exercise of the State Auditor’s authority to sell, and that the defendants were legally interested in raising that issue.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 679.-]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by Addie C. Pitts against S. N. Kerley and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Rickard Coleman against the New Orleans Railway & Light Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Action by the Evangeline Oil Company against Albert Trahan, Assessor, and others. On application of defendants for certiorari or writ of review to the Court of Appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Review on Appeal.</p> <p>Action to recover money loaned. Defense payment. No question of law involved.</p>

<p> (Syllabus by the Court.) </p> <p>Abatement and Revival (§ 4*) — Anothee Action Pending.</p> <p>An exception of lis pendens has no legal basis to rest on, when predicated upon the pendency of a suit in the same court as that in which it is pleaded. The prohibition is against the bringing of the same cause “before two separate courts” of “concurrent jurisdiction.” Code Prae. arts. 94, 335.</p> <p>[Ed. Note. — Eor other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dec. Dig. § 4.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal Ooepobations (§ 987*) — Municipal Aid to Raileo ad — Violation op Conditions — Right op Taxpateb.</p> <p>Where a railroad company, to which a city voted a special tax on condition that it should within a specified time build a railroad and establish shops in the city, failed to comply with the conditions within the time specified, the special tax could be annulled at the suit of a taxpayer, suing for his joint interest and all others similarly situated.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 987.*]</p> <p>2. Municipal Ooepobations (§ 977*) — Municipal Aid to Raileoad — Violation op Conditions — Eppect.</p> <p>Where a railroad company, to which a special tax had been voted by a city on specified conditions, had forfeited all right to the tax, it could not contest the right of a taxpayer to demand of the city reimbursement of the portion of the tax already paid.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 977.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Joseph L. Quealy against Imelda Waldron. Judgment for plaintiff, and defendant appeals.</p>

<p>Proceedings to disbar Joseph Q. Gowland.</p>

<p>Application by the State for the disbarment of Robert J. Maloney.</p>

<p>Application by the State for the disbarment of Theodore G. Spitzfaden.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Action by the Lower Terrebonne Refining & Manufacturing Company against R. R. Barrow. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Limitation or Actions (§ 122*) — Prescription- — Interruption—Service or Citation.</p> <p>Prescription is not interrupted by the service of citation on a day of public rest other than Sunday.</p> <p>[Ed. Note. — Por other cases, see Limitation of Actions, Dec. Dig. § 122.*]</p> <p>2. Time ' (§ 9*) — Excluding First or Last Day — Limitation or Actions.</p> <p>An action for damages for the death of a person is prescribed by one year from the day of the death. In the computation of time, the day a quo is excluded, and the day ad quern must have elapsed. Thus, where death occurred on June 25, 1905, citation served on June 25, 1906, before midnight, will interrupt prescription.</p> <p>[Ed. Note. — Por other cases, see Time, Cent. Dig. §§ 11-32; Dec. Dig. § 9.*]</p> <p>3. Chakities (§ 45*) — Fire Insurance Pa-thol — Negligence — ‘ ‘Public Charitable Association.”</p> <p>The Fire Insurance Patrol of the City’ of New Orleans is not a public charitable association, and is responsible in damages for injuries occasioned by the negligence of its servants in driving its wagon into a truck of the city fire department. Conceding that such patrol and the fire department have the same rights of way in the streets, it does not follow that the former is not responsible for injuries inflicted through the negligence of its servants.</p> <p>[Ed. Note. — For other' cases, see .Charities, Cent. Dig. § 103; Dec. Dig. § 45.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1082.]</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles A. O’Niell, Judge.</p> <p>Action by A. S. Boutterie against Florence Demarest. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish Of Iberville; C. K. Schwing, Judge.</p> <p>Action by Leontine Crochet against Enos Dugas. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Dismissal oe Action.</p> <p>Plaintiff’s suit was dismissed by the sustaining’ by the court of defendant’s exception to its want of jurisdiction. That judgment on appeal is affirmed.</p> <p>2. Vende (§ 6*) — Jurisdiction — Action Against Heir — Recovery oe Debts Due by Deceased.</p> <p>The only issue left to be disposed of after the decision in Bourdette v. Burke, 119 La. 478, 44 South. 270, was the amount (if any) of money due by the defendant William Burke to the widow in community of J. P. Bourdette. The trial court properly held that that issue should he disposed of by the court of the defendant’s residence.</p> <p>[Ed. Note. — For other cases, see Venue, Dec. Dig. § 6.’:’]</p>

Chretien, Judge. Octave Treadaway and another were indicted for miscegenation, in violation of Act No. 87 of 1908, § 1, and from a judgment of acquittal the State appeals.

<p> (Syllabus by the Court.) </p> <p>Taxation (§ 730*) — Sale fok Taxes — Adjudication to State — Effect.</p> <p>Plaintiff being in possession of certain property enjoined the placing of the defendant in possession of the same under a writ of possession, which was granted to him as holder of an auditor’s deed dated in October, 1902, executed to him under Act No. 80 of 1888. The property had been adjudicated to the state in 1883 at a tax sale for delinquent state taxes. It was reoffered for sale by the state under Act SO of 1888 and adjudicated to it. At that time plaintiff was in possession of the property, but without title, and had been for many years, but not sufficiently long for him to have acquired ownership by prescription. The state did not take possession under the adjudication to it. At the lime defendant sought to take possession under the auditor’s deed, plaintiff had been in possession long enough to have acquired by prescription. The district court rendered judgment adverse to the plaintiff, and he appealed. l-Ield that, through the second adjudication to the state its title became good and perfect (section 1, Act No. 80 of 1888), and plaintiff’s right to invoke prescription was cut off.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 730.*]</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. John the Baptist; Prentice E. Edrington, Judge.</p> <p>Action by Joseph Madere and Louis S. Vilemont against Charles Alexandre. Judgment for defendant, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Ejectment (§ 16*) — Possessory Action— Natuee oe Possession — “Real and Actual Possession.”</p> <p>Under the plain text of article 49 of the Code of Practice a plaintiff cannot maintain a possessory action unless he should have had the real and actual possession of the property at the instant the disturbance occurred, and mere civil or legal possession is not sufficient. There can be no “real and actual possession” of property, unless there be, in the commencement at least, a corporeal 'detention and use of the thing according to its nature and destination. As timbered swamp lands may be actually possessed by the construction of roads or canals, or by deadening, felling, or removing the trees, they are no-exception to the general rule. In such a case, mere payment of taxes, tracing of boundary lines, marking of trees, and watching for trespassers do not constitute real and actual possession of the land and timber thereon.</p> <p>[Ed. Note. — For other. cases, see Ejectment,. Cent. Dig. §§ 30 — 41; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases,, vol. 1, pp. 165-167; vol. 8, p. 7565.]</p> <p> (Additional Syllabus by 'Editorial Staff.) </p> <p>2. Ejectment (§ 16*) — “Natural Possession.”</p> <p>“Natural possession” is that by which a man detains a thing corporeally, as by occupying a house, cultivating ground, or retaining a movable possession. Civ. Code, art. 3428. Such a possession in its nature must be visible, open, and public.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. §§ 30-41; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4670.]</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. John the Baptist; Prentice E. Edrington, Judge.</p> <p>Action by Joseph Madere and Louis S. Vile-mont against Edmond Alexandre. Judgment for defendant, and plaintiffs appeal.</p>

P. Martin, Judge. James Howard was indicted for murder, and from an order referring the case to the juvenile court, the State appeals.

<p> (Syllabus by the Court.) </p> <p>Siiieping (§ 84*) — Injury to Employé While Unloading Vessel — Negligence oe De-pendant-Evidence.</p> <p>Two different sets of workmen were engaged in removing a lot of staves from a barge landed at the'foot of Marengo street in the city of New Orleans, to the wharf opposite that landing, and in taking the logs from the wharf to the oars waiting for them. One set were in the employ of the Leyland Company; the other in' the employ of the defendant. The two sets of workmen, though they co-operated with each other to a certain extent, had separate and distinct duties, and were under different management and control. The plaintiff, an employé of the Leyland Company, engaged on the wharf in receiving the logs when they should have been hoisted over to the wharf through the instrumentality of a derrick, was injured by the careless and negligent handling of the derrick in allowing the boom attached to it to swing one of the logs over and on to the spot where the em-ployés of the Leyland Line were at work receiving and carrying away the logs as received. The man in charge of the operation of the derrick was an employé of the defendant who did not act under the orders of the foreman of the “receiving gang” or any employé of the Leyland Company. The defendant was the party responsible for the injury.</p> <p>[Ed. Note. — Por other cases, see Shipping, Cent. Dig. §§ 349-351; Dec. Dig. § 84.*]</p>

<p> (Syllabus by the Court.) </p> <p>Receivers (§ 145*) — Sale oe Insolvent’s Property — Claim oe Privilege.</p> <p>Where all the property of an insolvent was sold in lump by a receiver under order of court, a claim of privilege on open accounts included in the sale cannot be enforced, where there has been no separate appraisement of the property.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 145.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by A. C. Jacobs and others against A. G. Jacobs and others. Judgment for'plaintiffs, and defendants appeal.</p>

King, Judge. Action by M. E. Ansley against C. D. Stuart. From a rule ordering money deposited with the clerk of court to be paid certain persons, W. J. Gex, the transferee of a judgment for plaintiff, appeals.

District Court, Parish of Claiborne; B. P. Edwards, Judge. Proceedings by heirs of E. and J. R. Lan-ders to compel D. B. Landers to file an account as administrator, etc. From a judgment decreeing D. B. Landers to be the administrator and ordering him to file an account, he appeals. Pending appeal he died, and his widow, as such and as legal representative of his heirs, was substituted in his stead.

W. Ellis, Judge. Consolidated actions by August Cluseau and by Win. S. Garvey against W. S. Wagner, in which David Bernhardt intervened, calling Peter Gallagher in warranty. There was judgment for intervener, and the warrantor appeals and applies for a rule upon the in-tervener and Recorder of Mortgages to show cause why the inscription of a judgment against warrantor should not be erased.

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.</p> <p>Action between Charles C. Girod and the Monroe Brick Company. From the judgment, Girod appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Action by John Brooks against Joe N. Magee, Sheriff, and others. Judgment for plaintiff, and defendants appeal.</p>

0. Drew, Judge. Application by the State, on the relation of J. W. Martin and others, for mandamus to the Webster Parish School Board. From a judgment denying the application, the re-lators appeal.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles A. O’Niell, Judge.</p> <p>Action by W. N. Gooch against the Town of Patterson. Judgment for defendant, and plaintiff appeals.</p>

H. V. Wall was convicted of embezzlement, and appeals to the Criminal District Court and applies for certiorari and prohibition.

<p> (Syllabus by the Court.) </p> <p>1. Abatement and Revivad (§ 4*) — Costs— Taxation — Injunction—Lis Pendens.</p> <p>An injunction suit, instituted by the defendant, to prevent the execution of a judgment for costs, taxed on an ex parte rule, does not stop the plaintiff from taking another rule to have these costs taxed. Where both proceedings are before the same court, lis pendens cannot be pleaded.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dee. Dig. § 4.*]</p> <p>2. Costs (§ 61*) — Appoetionment.</p> <p>In a suit where the defendant becomes plaintiff in reconvention, and the judgment taxes plaintiff with the costs of the reconventional demand and the defendant with the costs of the main demand, the plaintiff must pay for the testimony necessary to sustain the reconven-tional demand, while the defendant must pay for the testimony necessary to sustain the main demand.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 272; Dec. Dig. § 61.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Eminent Domain (§ 268*) — ExaRpeopbiation — Rights of Landowneb — Action fob Damages.</p> <p>If an- owner of land fails to object in due time to an appropriation of part of it by a railroad, he is concluded from reclaiming the land free of the servitude imposed thereon and is relegated to the right of claiming damages. St. Julien v. Morgan’s R. R. Co., 35 La. Ann. 924.</p> <p>[Ed: Note. — Por other cases, see Eminent Domain, Cent. Dig’. §§ 697, 736-742; Dec. Dig. § 268.*]</p> <p>2. Eminent Domain (§ 284*) — Right to Damages — Passing of Right.</p> <p>The right to claim these damages is personal to the owner of the land and does not pass to successive owners, unless they have been specially subrogated to it, for it does not pass with the title. McCutclien v. Railroad, 118 La. 438, 43 South. 42.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 789, 790; Dee. Dig. § 284.*]</p> <p>3. Railkoads (§ 72*) — Duty to Fence and Dbain — Sale or Land — Rights or Gean-tbe.</p> <p>Where a railroad acquires land with the obligation to fence and drain it and construct crossings thereon, this right is a servitude in favor of the land and the right to enforce it passes with the title.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§' 168-178; Dec. Dig. § 72.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Libel akd Slandeb (§ 51*) — Publication oe News — Malice.</p> <p>The publication by a newspaper of a report made by the police in the regular course of police administration, to the effect that persons had been poisoned by sugar purchased at the store of the plaintiff, will not of itself support an allegation of malice on the part of the defendant.</p> <p>In order to support the allegation of malice, there must be evidence of an act showing a wanton inclination to mischief, an intention to injure or wrong, or a depraved inclination to disregard the rights of others.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 149, 150; Dec. Dig. § 51.*]</p> <p>2. Libel and Slander (§ 3 20*) — Libelous Publication — D amases — Malice.</p> <p>Facts exciting public comment, regarding public health or safety, may be published by a .newspaper, and comment, if made and published fairly and in good faith, is not a libel and will not give rise to an action for punitory damages.</p> <p>If deductions are made from the facts of a case and published by a newspaper, it will be liable for damages only where actual damages are shown when the publication was not inspired by malice. Newell (2d Ed.) p. 591.</p> <p>[Ed. Note — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dec. Dig. § 120.*]</p> <p>3. Failure to Snow Actual Damages.</p> <p>Under the circumstances, it was incumbent upon plaintiff to show actual damages in order to recover, and he has failed to do so.</p> <p>The case is distinguished from Billet v. Times-Democrat Case, 107 La. 751, 32 South. 17, 58 L. R. A. 62.</p> <p>Monroe, J., dissenting.</p> <p> (Additional Syllahus 6y JSditorial Staff.) </p> <p>4. Words and Phrases — “Legal Malice.”</p> <p>“Legal malice” is defined as an act growing out of the wicked or mischievous intention of the mind; an act showing a wanton inclination to mischief, an intention to injure or wrong, and a depraved inclination to disregard the rights of others.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712, 7713.] I</p>

<p>Appeal from First District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>L. F. Irvine and another were tried for manslaughter. From his conviction, Irvine appeals.</p>

<p> (8yTlabus by the Oourt.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 801*) — Dismissal-Matters Not Apparent oe Record.</p> <p>Appellee moves to dismiss the appeal basing his motion upon alleged proceedings taken in the district court after appellant has executed an appeal bond of which proceedings there has been no evidence produced in the Supreme Court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3161; Dec. Dig. § 801.*]</p> <p>2. Habeas Corpus (§ 85*) — Custody oe Child —Dismissal oe Writ.</p> <p>Relator, as father, seeks through a writ of habeas corpus directed against the brother of his deceased wife to obtain the care and custody of his daughter, about 13 years of age, living with her uncle. The district court refused relator’s application to have the child surrendered to him, and he has appealed. Under the facts disclosed by the evidence the judgment is affirmed.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 78; Dec. Dig. § So.*]</p> <p>3. Habeas Corpus (§ 99*) — Custody oe Child — Best Interests oe Child.</p> <p>A writ of habeas corpus issued by a court on the petition of the father of a girl 13 years of age, directed against the brother of relator’s deceased wife, to compel defendant (with whom (lie child was living) to surrender possession of her to him, can scarcely be regarded in the light of an ordinary suit between relator and his brother-in-law. It is a matter in which the state has an interest beyond the mere right and authority of the father. The welfare and happiness of the child are involved and have to be considered by the court.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dee. Dig. § 99;* Parent and Child, Cent. Dig. §§ 4^32.]</p> <p>4. Habeas Corpus (§ 34*) — Custody oe Child.</p> <p>When called into court by a writ of habeas corpus issued on the petition of the father of the child to show cause why he should not surrender to him possession of his child, defendant has the right by way of defense to urge before the court any good reason why relator’s prayer should not be granted and relief be refused.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 7; Dec. Dig. § 34.*]</p> <p>5. Habeas Corpus (§ 99*) — Custody oe Minor-Determination.</p> <p>Relator having invoked in his behalf the exercise of the court’s authority in the premises, it has the legal right from a consideration of all the issues raised to determine on the trial of the writ whether a proper case has been shown calling for its interposition.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*]</p>

<p>Appeal from Second Recorder’s Court, City of New Orleans; Charles J. Gauth-reaux, Recorder.</p> <p>Joseph. Lenfant and others were convicted of violating an ordinance of the City of New Orleans, and appeal.</p>

King, Judge. Action by J. S. Lewis and others against the McLellan Dock Company. The sheriff having seized and sold defendant’s property, plaintiffs took rules praying that the State Tax Collector and the City of New Orleans be ordered to show cause why it should not be decreed that the state and city had no claims on the proceeds of the sale for taxes.

Mary. Action by the Adeline Sugar Factory Company against Louis Theriot. There was a judgment of the Court of Appeal, affirming a judgment dissolving a sequestration, with damages, and plaintiff applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish ■of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by William Adler against Julius Adler and others. Judgment for plaintiff, and defendants appeal,</p>

King, Judge. In the matter of the succession of Elizabeth Hanna, née Spires. To the homologation of the account of the administrator, Ida Driscoll filed an opposition and appeals.

<p> (Syllabus by the Oowrt.) </p> <p>1. Discovery (§ 79*) — Interrogatories to Party — Answers as Evidence — Effect on Coparties.</p> <p>The answers to interrogatories on facts and articles made by a mother, a codefendant in a suit to recover property belonging to the community, is binding on her to the extent of her interest in the property, but is without power to affect the interest of her minor children therein, as her interest is distinct from theirs.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. § 100; Dec. Dig. § 79.*]</p> <p>2. Discovery (§ 79*) — Interrogatories to Party — Answers as Evidence — Effect on Coparty.</p> <p>The answers of the mother, whose interest is distinct, cannot shift the burden of proof to the minors, her codefendants, so as to place on them the onus of proving that their title, which on its face is a sale, is not a deed of sale, but merely a mortgage.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. § 100; Dee. Dig. § 79.*]</p>

<p> (Syllabus by the Court.) </p> <p>CORPORATIONS (§ 228*) — INSOLVENCY -— SUBSCRIPTION Stock — Inability oj? Stockholder.</p> <p>The receiver is attempting under the authority of the court by which he was appointed to marshal the assets of the corporation in order to pay therefrom a balance in excess of $40,000 which is due to the creditors. Conspicuous among those assets is defendant’s unpaid stock subscription. Even if we should assume that he could originally have discharged -his obligation (quoad the creditors) with respect thereto by-surrendering valueless stock in other corporations, he has not done that, and he is properly condemned to pay his subscription in cash.</p> <p>[E-d. Note. — For other cases, see Corporations, Cent. Dig. §1 874, 878; Dec. Dig. § 228.*]</p>

Application by J. P. Flournoy, tax collect- or, for writs of certiorari and prohibition to review an order denying an application for judgment for license tax, sought to he recovered from AY. AY. Walker.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; R. Emmett Hingle, Judge.</p> <p>Action by Michael J. I-Iartigan against Joseph Dell Weaver. Judgment for plaintiff, and defendant appeals.</p>

K. Skinner, Judge. Actions by Gustave Helmas and wife against Elias Pailet, and by Elizabeth Healy against Elias Pailet. The actions were consolidated; verdicts for defendant, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>Ferries (§ 33*) — Injury to Passenger — Evidence — ^Contributory Negligence.</p> <p>The plaintiffs’ mother in attempting to board a ferry boat fell into the Mississippi river and was drowned. They sue the ferry company for damages as having caused her death by leaving open a gate at the end of a gangway leading to the boat, thereby misleading her into the belief that she (the boat) was safely moored to the' wharf, and impliedly inviting plaintiffs’ mother to go on, when in fact the ferry had swung out into the stream.</p> <p>The jury before which the ease came rendered a verdict in favor of defendant, and plaintiffs have appealed. The judgment appealed from is affirmed. The death of the woman was due to her own rashness and negligence.</p> <p>[Ed. Note. — For other cases, see Ferries, Cent. Dig. § 92; Dec. Dig. § 33. *J</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Philip P. Reems against the New Orleans Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

George A. Villere was convicted of having in his possession for sale adulterated milk, in violation of an oz’dinance of the city of New Orleans, and applies for certiorari and prohibition.

Action by Jules Le Blue against A. W. Smith and wife. A justice’s judgment for plaintiff was reversed by the district court, and plaintiff applies for certiorari and mandamus.

<p> (Syllabus by Editorial Staff.) </p> <p>Injunction (§ 105*) — Grounds—Restraining Ceiminal Proceedings — Vested Rights.</p> <p>Where relator had no vested or proprietary right to take fish from the waters of the lakes and bayous of a parish by reason of a license issued by the fish and game commissioners, an injunction will not lie to restrain the district attorney and police jury of the parish from enforcing a parish ordinance making it an offense to fish with a seine of more than 50 feet in the lakes and bayous of the parish, on the theory that the ordinance was invalid.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 105.*]</p>

Action, by William Bell and another against Joseph Lafosse and others.. The Court of Appeal reversed a judgment of dismissal rendering judgment for plaintiffs, and defendants apxily for certiorari or writ of review to the Court of Appeal.

<p> (Syllabus by the Court.) </p> <p>Partnership (§ 208'*) — Appeal and Error</p> <p>(§ 1024*) — When Lies — Partnership Property-Residence op Managing Partner.</p> <p>An attachment will not lie against the property of an alleged commercial firm, or against the interest of a nonresident partner therein, where the managing partner is a resident of this state. Where such managing partner has actually lived in this state with his wife and children while conducting the business of the partnership, a finding by the trial court that he was a resident of this state will not be disturbed, when not manifestly against the weight of the evidence as to intent to here remain an indefinite time.</p> <p>[Ed. Note — For other cases, see Partnership, Dec. Dig. § 208;* Appeal and Error, Cent. Dig. § 3816; Dec. Dig. § 1024.*]</p> <p>Provosty, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Action (§ 52*) — Causes oe Action — Mis-joinder.</p> <p>Plaintiff sought to recover certain land against defendant E., alleged to have entered as plaintiff’s tenant, and thereafter to have claimed the land under a tax deed which plaintiff claimed was void, and in the same action sought to recover the land as against defendant G., whom she alleged entered clandestinely, without her knowledge and consent, as a squatter, and to recover for use and occupation. Held that, since there was no connection between the defendants, the petition contained distinct causes of action against different defendants, and was, therefore, subject to exception for mis-joinder of causes of action and parties.</p> <p>[Ed. Note. — For other cases, see Action, Gent. Dig. § 548; Dec. Dig. § 52.*]</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Robert S. Ellis, Judge.</p> <p>Action by Mrs. Josephine I-I. Davidson against Thomas C. McDonald, and others. From a judgment dismissing the action, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Parties (§ 25*) — Defendants—Joinder.</p> <p>Whilst all who are parties, or privies to, or who have a common interest in, the same title, or titles, to real estate, may, for some purposes, be joined as defendants in the same suit, to bring a number of persons into court as defendants, with respect to a number of titles, without regard to their relation to them, and to hold them in court for the purposes of issues with which they have no concern, would be a hardship, would tend to confusion and embarrassment, and would be inconsistent with well-established jurisprudence.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. § 31; Dec. Dig. § 25.*]</p> <p>2. Dismissal and Nonsuit (§ 56*) — Misjoin-der oe Defendants — Power of Court.</p> <p>Where an exception of misjoinder of defendants is sustained, the court cannot discriminate by dismissing the suit as to one defendant, rather than another, but must, ordinarily, dismiss it as to all.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Dec. Dig. § 56.*]</p>

King, Judge. Suit by the State on the relation and information of Walter Guión, Attorney General, against the People’s Fire Insurance Company of New Orleans. Judgment for re-' lator for less than the relief demanded, and he appeals. Motion to dismiss appeal, denied.

Action by the Louisiana Glass & Mirror Works, Limited, against Widow Edward D. Ir.win and others. Judgment for defendants was reversed by the Court of Appeal, and Widow Edward D. Irwin applies for certio-rari or writ of review.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; William P. Edwards, Judge.</p> <p>Action by Joseph A. Guillory and others against Charles S. Elms. Judgment for plaintiffs, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Shipping (§ 84*) — Injueies to Sekvant — Evidence.</p> <p>The United Fruit Company, having in its possession and control at the landing of the city of New Orleans as charterer of a steamship named the Bertha, employed the defendant Legeai. engaged in the business of loading and unloading ships and having a number of men under him, to load a cargo of cross-ties upon said steamship. While Legeai’s workmen were in the hold of the vessel to receive and properly stow the ties when received there, others upon the shore were swinging the ties from the shore upon the vessel. When the men first went into the hold, the hatch above was open, but later, by direction of one of the ofiieers of the United Fruit Company, the mate of the ship had a portion of the open hatchway covered. The cover was improperly and insecurely placed over the hatch, so that, in lowering the ties into the hold, they struck this covering, dislodged it, and caused it to fall upon the men below in the hold. The plaintiff was severely injured by the falling of the cover and has sued Legeai and the United Fruit Company to recover damages for the injury so received by him. Judgment having been rendered in plaintiff’s favor against the fruit company, it has appealed. It was under the circumstances legally responsible for the injury.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § S4.*]</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by Pliilomene Thibodeaux and others against Ulysse Thibodeaux, administrator. From a judgment denying relief, plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Theard, Judge.</p> <p>Action by Mr. and Mrs. William H. McGaw against Edward J. O’Beirne. Judgment for defendant, and plaintiffs appeal.</p>

Ellis, Judge. Action by O. D. Varnado and others against the Banner Cotton Oil Company and others in which certain parties intervened. Judgment for plaintiffs, and defendants and interveners appeal.

King, Judge. Action by Mrs. Marguerite McCormack against Mrs. Emma Robin, the City of New Orleans, and another. Judgment for plaintiff against the city, and plaintiff and the •city appeal.

<p> (Syllabus by the Court.) </p> <p>Appeal and Ebbor (§§ 874, 1119*) — Parties— Mis joinder — Sep abate Jtjd omen ts.</p> <p>Plaintiff, alleging that she is the owner and legal and rightful possessor of a certain tract of land, and that the corporation holding an adverse title is not in possession, prays that said corporation and its authors in title (naming them) be cited, and that she have judgment recognizing her “as the owner and legal possessor” of said tract, and ordering the cancellation of the chain of adverse titles held by, and acquired from, the parties made defendant. On an exception of improper cumulation of action and motion to require plaintiff to elect, the trial court held that the action is petitory, and overruled said exception and motion, and on the following day it maintained an exception of misjoinder of defendants and dismissed the suit as to all defendants save the alleged immediate holder of the adverse title. Plaintiff appealed from the judgment last mentioned. Held, in view of the judgment, unappealed from, holding the action to be petitory, the judgment appealed from is correct, in so far as it dismisses the suit against defendants, not alleged to be in actual possession; and in so far as it maintains the suit against the one defendant, holding the adverse title, it must be affirmed because no one complains of it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. §§ 874, 1119.*]</p>

<p> (Syllabus by Editorial Staf.) </p> <p>Carriers (§ 333*) — Injury to Alighting Passengers — Liability.</p> <p>A carrier is not liable for injury to an incumbered passenger who fell from a train after dark, while attempting to alight where the train made a slight stop just before reaching the station, where she acted hastily, was familiar with the station, knew that a trainman always assisted alighting passengers, and where the brakeman was standing opposite her on the next car ready to alight and assist the passengers when the train reached the station.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13S5-1397; Dec. Dig. § 333.*]</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Suit by Knoblock & Rainold against Mrs. Frank E. Posey. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Gourt.) </p> <p>1. Elections (§ 115*) — Destruction oe Register — Rights oe Registered Voters.</p> <p>The registered voter is not disfranchised because of the destruction.by fire of all the registrar’s records.</p> <p>[Ed. Note. — For other cases, see Elections, Dec. Dig. § 115.*]</p> <p>2. Elections (§ 115*) — Destruction oe Register-Rights oe Registered Voters.</p> <p>lie may have his name placed on the new book of the registrar by application at any time before the 48 hours preceding the opening of the polls.</p> <p>[Ed. Note. — For - other cases, see Elections, Dec. Dig. § 115.*]</p> <p>3. Elections (§ 115*) — Destruction oe Register-Rights oe Registered Voters.</p> <p>The voter who has registered, and whose registration papers are destroyed, is not in the category of a voter who has not registered.</p> <p>He cannot be made to register anew, as if he had never before been a registered voter.</p> <p>The registrar has authority to protect his office from imposition, and at the same time he may permit registered voters to have their names placed on the new poll book.</p> <p>[Ed. Note. — For other cases, see Elections, Dec. Dig. § 115.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>Pleading (§ 248*) — Amendment—New Cause oe Action.</p> <p>An amended petition, setting forth that the ■destruction of a house was due to the contact of defendant’s wires, not properly insulated, with other heavily charged wires on the outside of the house, does not state the same cause of action as the original petition, which charged that the destruction was due to the improper installation of defendant’s wires and apparatus on the inside of the house.</p> <p>[Ed. Note. — For other cases, see Pleading, •Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]</p>

<p> (Syllabus by the Cov/rt.) </p> <p>MASTER AND SERVANT (§ 278*)— INJURIES TO Servant — Defective Machinery.</p> <p>Plaintiff sues defendants for damages for personal injuries received hy the bursting or breaking of an endless belt operating a blow fan in the mill of the defendant company, on the ground that it was an old belt, worn and rotten and improperly spliced, and that the accident was caused .entirely by the fault of the defendants, or those for whose acts it was responsible. The issues were tried before a jury, which returned a verdict in favor of the plaintiff. Defendant appeals from the judgment rendered in conformity to the verdict. On appeal the judgment is reversed.</p> <p>The belt was not old, worn, and rotten, nor improperly spliced. It was a comparatively new belt, of good material, and had been inspected the day before the accident. Having become somewhat stretched, it was taken up, spliced by an expert beltman in the employ of a belt company, sent by it to do the work of shortening and tightening the belt, who had for years before done such work skillfully and successfully.</p> <p>The court was of opinion that the defendant company had done everything incumbent on it as the employer of the plaintiff; that the accident was unavoidable, and arose from latent defects of some kind, for which it was not responsible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 9&L-972; Dec. Dig. § 278.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Street Railroads (§ 81*) — -Care Required —Noises.</p> <p>Where a street railroad company had created _a confusion of noises and car tracks at a crossing, it was bound to use extraordinary care in handling its cars there to prevent injuries to pedestrians.</p> <p>[Ed. Note. — Eor other cases, see Street Railroads, Gent. Dig. §§ 172, 176; Dec. Dig. § 81.*]</p> <p>2. Street Railroads (§ 103*) — Injuries to Travelers — Negligence — Last Clear Chance.</p> <p>Where a street railway motorman, approaching a crossing, had the last clear chance of stopping the car and preventing the striking of plaintiff, a pedestrian, from the rear, had he been looking, but did not see plaintiff until it was too late to prevent a collision, his lack of care was the proximate cause of the accident.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. § 103.*]</p> <p>3. Damages (§ 98*) — Personal Injuries.</p> <p>Plaintiff, an old lady, was struck by a car. There was a fracture of the fourth rib and of the metacarpus bone of the right hand, and contusions about the body and limbs. The shock affected her nervous system and heart, and she was confined to feed for two or three months, and it was four months before she could go out, even for a carriage ride, and the fracture of the rib superinduced pneumonia. She had permanently lost the use of one hand, and was unable to go about at the time of the trial without the use of a stick. The actual expenses in doctor’s fees, nurses, drugs, etc., amounted to $1,799.69. Held, that she was entitled to $3,000 permanent damages, in addition to the expenses so incurred.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 235, 236; Dec. Dig. § 98.*] ‘</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law ■(§ 968*) — Trial—Misconduct of Jurors — Time for Objection.</p> <p>Defendant (Sylvester Owen), indicted for murder, was found “guilty as charged without capital punishment,” and sentenced for life to the state penitentiary. He moved in arrest of judgment on the ground that four jurors who had béen examined on their voir .dire, and accepted by 'both sides, 'but who had' not yet been sworn, were left in charge of the sheriff by reason of the adjournment of the court for the night, and during that time had conversed with outside parties beyond the hearing of the sheriff. That on the next morning on motion of the district attorney these four persons were discharged as jurors by the court for misconduct, but nevertheless they were again tendered as jurors and served as such upon the jury. The court overruled the motion and sentenced the defendant, and he has appealed. There was no error in the court’s action. The parties named were not discharged for misconduct as jurors. The court simply replaced the situation with respect to those parties as if they had never been examined on their voir dire, nor been accepted, and matters quoad them were started de novo. They were again sworn on their voir dire, examined as to their fitness by both sides, and accepted. If defendant had any legal objection to this proceeding, he should have urged it at the time. It was too late after verdict to-raise the objection.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 968.*]</p>

<p>Appeal from Seventh Judicial District Court, Parish of West Carroll; John R. McIntosh, Judge.</p> <p>Alfred Owen was convicted of manslaughter on a charge of murder, and appeals.</p>

P. Campbell, Judge. Antoine Stelly was indicted for obtaining money under false pretenses, and the State appeals from' a judgment quashing the indictment.

<p>Action by the State against J. Vance for disbarment.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Has Wilson was indicted for manslaughter, and, on motion to quash being overruled, he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Erect D. King, Judge.</p> <p>Action by Mrs. A. F. Marts and others against the American Brewing Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Eighteenth Judicial District Ciourt, Parish of Acadia; W. P. Campbell, Judge.</p> <p>B. A. Riehart was indicted for misdemean- or, and the indictment was quashed. The State appeals.</p>

Sommerville, Judge. Action by Joseph Harz against Joseph Q. Gowland and another, in which the United States Safety Deposit & Savings Bank intervened. Judgment for plaintiff and intervener, and defendants appeal.

<p>Appeal from Civil District 'Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Joseph Harz against J. Q. Gow-land and another. Judgment for defendants, and plaintiff appeals. On motion to dismiss.</p>

<p>Appeal from Twenty-Pirst Judicial District Court, Parish of Iberville; Calvin K. Schwing, Judge.</p> <p>George Tomsa was convicted of manslaughter, and appeals.</p>

Sommerville, Judge. In the matter of the receivership of Fried-richs, Young & Taney, Limited. From a judgment on opposition to the provisional account of the receiver, George G. Friedrichs and others appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Oo-OWNEES — RIGHTS AND LIABILITIES OE Oo-Owneks — Expenses—Insurance.</p> <p>An owner of an undivided interest in real estate, who insures the property in his own name and for his own account, and not on behalf of the infant co-owner, is not entitled to the sum paid fot the insurance on the distribution of the proceeds of the property on a sale for partition.</p> <p>[Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. §§ 97, 98; Dec. Dig. § 32.*]</p> <p>2. Co-Ownees — Rights and Liabilities oe Co-Ownees — Taxes.</p> <p>One having an undivided interest in real estate who buys the entire property at a tax sale for state taxes is entitled to 10 per cent, interest on the price bid by him on the property, and an infant co-owner is properly charged with that amount in the distribution of the proceeds in partition proceedings.</p> <p>[Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. § 96; Dec. Dig. § 30.*]</p> <p>3. Co-Ownees — Rights and Liabilities oe Co-Ownees — Taxes.</p> <p>Where one having an undivided interest in real estate had in his hands funds belonging to the co-owners, he' must, when paying taxes on the property apply the funds pro tanto to the payment of the co-owners’ taxes, and he could not hol'd claims against the co-owners as interest-bearing claims, based on his payment of taxes, while he had funds of the co-owners which it could impute to their payment.</p> <p>[Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. § 106; Dec. Dig. § 37.*]</p> <p>it. Co-Ownees — Rights and Liabilities oe Co-Ownees — Expenses — Collection oe Rents.</p> <p>Where one having an undivided interest in real estate employed a third person to collect (lie rents, the co-owners claiming the moneys collected by the third person should pay a reasonable amount due for collection.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 97; Dec. Dig. § 32.*]</p> <p>Breaux, C. J., and Nieholls and Provosty, JJ.,. dissenting in part.</p>

Baker, Judge. William R. Stringfellow was convicted of conspiring to accomplish a forgery, and uttering as true a forged instrument, and he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Obiminaxi Law (§ 1043*) — Apfeait—Reser-vation of Grounds — Sufficiency of Objection to Charge.</p> <p>A general objection to the charge of the court presents nothing for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, -Cent. Dig. § 2654; Dec. Dig. § 1043.*]</p> <p>2. Homicide (§ 112*) — Self-Defense—Intentionally Beinging About Difficulty.</p> <p>A person who intentionally brings about a difficulty by any wrong-ful act or means cannot avail himself of necessary self-defense, before abandoning the conflict and retreating in good faith.</p> <p>[Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. § 112.*]</p> <p>3. Criminal Law (§§ 763, 764*) — Trial—Instructions on Pacts.</p> <p>A special instruction that trenches on the facts should be refused.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.*]</p> <p>4. Homicide (§ 107*) — Excusable Homicide —Prevention of Commission of Pelony.</p> <p>The judge properly charged that homicide is excusable to prevent the commission of a felony, but that a man may not be lawfully slain for a felony already committed.</p> <p>[Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 137; Dec. Dig. § 107.*]</p> <p>5. Criminal Law (§ 830*) — Trial—Refusal of Requests — Request Needing Modification.</p> <p>A special instruction that needs modification and qualification may be properly refused.</p> <p>[Ed. Note. — Por other cases, see 'Criminal Law, Cent. Dig. §§ 2012, 2013, 2017; Dec. Dig. § S30.*]</p> <p>6. Homicide {§ 300*) — Instructions—Modification of Request — Self-Defense.</p> <p>Where the accused relies on a plea of self-defense, the judge may properly qualify a requested instruction by the proviso that the accused was not the provoker of the difficulty.</p> <p>[Ed. Note. — Por other cases, see Homicide, Dec. Dig. § 300.*]</p> <p>7. Criminal Law (§ 814*) — Instructions— Application to Case.</p> <p>A requested instruction that a conspiracy to set fire to a house ends with the burning of the structure is objectionable as an abstract proposition of law, when the bill recites no particular facts calling for such' an instruction.</p> <p>[Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 1979-1985; Dee. Dig. § 814.*]</p> <p>8. Instruction Properly Qualified.</p> <p>A qualification of such a requested instruction by the court adding that, in the case o'f arson, the perpetrator is responsible for the consequences that arise directly 'or indirectly from the felonious act, and if, as a consequence growing out of such a crime, the life of a human being is taken, the offense would be murder, held not prejudicial to the accused, when considered in connection with other charges that presented fairly and fully the law applicable tO' the facts of the particular case.</p> <p>9. Homicide (§ 276*) — Prosecution — Question for Jury — Apparent Necessity.</p> <p>Where the deceased was disarmed of his weapon, and then killed by the accused, or his accomplice, or both, it was for the jury to determine under all the facts and circumstances of the case whether there was any real or apparent necessity for the homicide.</p> <p>[Ed. Note. — Por other cases, see Homicide,. Cent. Dig. § 569; Dec. Dig. § 276.*]</p> <p>10. Criminal Law (§ 508*) — Evidence—Accomplices — Competency.</p> <p>An accomplice is a competent witness. His. connection with the crime and any inducements held out to him by the prosecution to obtain his testimony merely affect his credibility.</p> <p>[Ed. Note. — Por other cases, see 'Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. §; 508 ;* Witnesses, Cent. Dig. §§ 24A-248.]</p> <p>11. 'Criminal Law (§ 730*) — Trial—Misconduct of Prosecutor.</p> <p>Where the accused objected to the remarks, of the district attorney as commenting on the accused’s failure to testify in his own behalf, and the trial judge, although not understanding the remarks as applying to the defendant, offered to charge the jury to disregard them, or to discharge the jury, and counsel for the accused objected to such discharge, and the judge thereupon properly charged the jury as to the rights of the accused in the premises, held, that the-accused had no just cause of complaint.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.*]</p> <p>12. Sunday (§ 30*) — Holidays (§ 5*) — Judicial Proceedings — Receiving and Recording Verdict.</p> <p>A verdict may be lawfully received and recorded on a Sunday or other legal holiday.</p> <p>[Ed. Note. — Por other cases, see Sunday, Cent. Dig. § 82; Dec. Dig. § 30;* Holidays, Cent. Dig. §§ 2, 4, 5; Dec. Dig. § 5.*]</p> <p>13. Criminal Law (§ 1090*) — Appeal — Review — Motion for New Trial — Necessity for Bill of Exceptions.</p> <p>The action of a trial judge on a motion for a new trial cannot be reviewed without a bill of exception on matters not disclosed by the. record.</p> <p>[Ed. Note. — Por other cases, see -Criminal Law, Cent. Dig. § 2822; Dec. Dig. § 1090.*]</p>

So Relie, Judge. In the matter of the receivership of the Pleasant 1-Iill Lumber Company, Limited. To the account of the receiver, the McCullough-Weaver Lumber Company objected, and appealed from the judgment allowing and disallowing certain claims in the account.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and Servant (§ 276*) — Injuries— Actions — Sufficiency of Evidence.</p> <p>In a servant’s action for injuries sustained by falling from a shafting while walking thereon from one beam to another, evidence hold to show that plaintiff slipped from the shafting before he attempted to catch hold of a pulley wheel thereon, which turned and caused him to fall.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 959; Dec. Dig. § 276.*]</p> <p>2. Master and 'Servant (§ 238*) — Injuries to Servant — Contributory Negligence.</p> <p>PJaintiff and his brother, who were 6 feet 1% inches high, were compelled to pass from the horizontal beam upon which they were standing in screwing nuts to bolts protruding from the ceiling, 9 feet 4% inches above, to another parallel horizontal beam 8 feet % inch away, both beams being 6 feet 5% inches from the ground floor. An iron shafting 315/i<s inches in diameter, which had been greased, extended from one beam to the other and there was a broad-rimmed iron pulley, 25 inches in diameter, on the shafting about half way between the beams. About 4 feet lower than the parallel beams, about 2 feet above the ground floor, was a platform extending between the two beams, and plaintiff could have either stepped down upon it and passed from one beam to the other, or could have done so by first letting himself to the ground floor and getting upon the other beam by a scaffold or ladder, but instead he attempted to walk across the shafting when he slipped and caught hold of the pulley to save himself, but it turned and let him fall. There was no rule requiring employes to walk across the shafting in doing such work though they frequently did so of their own volition, and no one had used the pulley as a handhold in doing so. The negligence claimed was in not having the pulley keyed so that it would not have turned when plaintiff took hold of it. Held, in view of the shafting being greased, plaintiff was negligent in attempting to cross between the beams thereon.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 743-748; Dee. Dig. § 238.*]</p> <p>3. Master and Servant (§ 128*) — Negligence-Improper. Use of Appliances.</p> <p>Defendant was not negligent in not having the pulley wheel keyed of which plaintiff caught hold when falling, since the shafting was not intended to be used to walk across, and the pulley wheel was not provided for holding to when walking across the shafting; the master not being liable for injuries caused by the use of appliances for purposes for which he had no reason to believe they would be used.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 256; Dec. Dig. § 128.*]</p> <p>4. Master and Servant (§ 213*) — Injuries to Servant — Assumption of Risk; — Selecting More Dangerous Method.</p> <p>Plaintiff was also barred from recovering under' the rule that a servant who selects an improper and dangerous route assumes the risk of resulting injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 560; Dec. Dig. § 213.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and Servant (§ 256*) — Injuries to Servant — Negligence—Petition.</p> <p>Where, in an action for injuries to a servant, the petition alleged particularly the manner and cause of the accident, and that it was through no fault of plaintiff, but through defendant’s negligence in failing to furnish plaintiff a safe place to work, it was not fatally defective for failure to allege that the danger was hidden or was not known of or assumed by plaintiff, or that he was inexperienced or not properly warned.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 809-854; Doc. Dig. § 256.*]</p> <p>2. Master and Servant (§§ 101, 102*) — Injuries to Servant — Care Required.</p> <p>While a master is not an insurer of the safety of his servant, he must use ordinary care to furnish the servant with a reasonably safe place in which to work.</p> <p>{Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 171-184; Dec. Dig. § 101, 102.*]</p> <p>3. Master and Servant (§ 278*) — Injuries to Servant-Negligence.</p> <p>In an action by an engineer in defendant’s employ, injured by getting his foot caught in certain gearing under a passage platform on the way from one engine to another, held, that the platform was dangerous, and that defendant was negligent in permitting it to remain so.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 278.*]</p> <p>4". Master and Servant (§ 288*) — Injuries to Servant-Assumed Risk.</p> <p>The danger from a defective platform on which plaintiff worked held not so manifest or clear that plaintiff would be held as a matter of law to have seen and assumed it.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Dec. Dig. § 288.*J</p> <p>5. Damages (§ 132*) — Personal Injuries — Amount Allowed.</p> <p>Plaintiff, a stationary engineer in defendant’s employ taking care of two engines, had his right heel caught in the cogwheels under a platform, and his foot was so badly crushed that his leg had to be amputated. Plaintiff’s sufferings were very great, and his earning capacity very greatly impaired, if not practically destroyed. Sold, that plaintiff should be allowed $6,000 damages.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]</p> <p>Land, J., dissenting.</p>

J. Murff, Judge. Action by J. T. Mulhaupt and others against the City of Shreveport, in which certain persons intervened. From the judgment, certain interveners appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>jl. Municipal Corporations (§ 7051-') — Collision op Automobile with Boy on Street —Contributory Negligence.</p> <p>A hoy 11 years old, following- others who had just preceded him, attracted by a large ■crowd around a police patrol wagon at the lower end of a block, and more largely on the other side of the street, ran along the sidewalk on the left side of the street in the direction he was going, till near the middle of the block, when he stepped into the street, running diagonally towards the wagon, and when out two to four feet from the curb was struck by an automobile coming from the rear, which was on that (the wrong) side of the street, because of the crowd at the lower end of the block being greater on the other side of the street. He apparently did not see the machine nor hear it, till just before it struck him, its tooting apparently having been at intervals and not continuous. Held, that no question of contributory negligence was involved.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Dec. Dig. § 705.*]</p> <p>2. Municipal Corporations (§ 705*) — Collision op Automobile with Boy on Street —Last-Chance Doctrine.</p> <p>Even if a boy, who, in the middle of the block, running diagonally towards a crowd about a police patrol wagon at the lower end of the block, stepped into the street, and when two to four feet from the sidewalk was struck by an automobile coming from the rear, and on the wrong side of the street because of the crowd, was negligent, the driver of the machine, who did not see the boy, having his attention on the crowd ahead, was liable, under the last-chance doctrine, as had he been looking, as was his duty, he would have seen the boy, and that he was unaware of the danger; and this though possibly, even then, it would have been too late to have stopped, or sufficiently have changed the direction of, the machine, so as to avoid a collision.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 705.*]</p> <p>3. Death (§ 98*) — Inadequate Damages — Death op Child.</p> <p>A recovery of $1,500 for death of plaintiffs’ child, 11 years old, will be increased from $1,500, as insufficient, to $3,000.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 124; Dec. Dig. § 98.*]</p>

<p> (Syllabus Tjy the Court.) </p> <p>1. Evidence (§ 5S4*) — Weight and Sufficiency.</p> <p>A claim for over $500 must be established by the testimony of two witnesses, or of one witness and corroborating circumstances.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2427; Dec. Dig. § 584.*]</p> <p>2. Assignments (§ 137*) — Conteacts — Evidence to Establish.</p> <p>The testimony of the lessee of a cotton plantation, in the northern part of the state, to the effect that, about October 1st, in New York, the owner agreed to buy the tenants’ accounts, at their face value, up to $5,000, in order to regain possession, without litigation or delay, is insufficient to make out a case, when contradicted by Hie other contracting party, and when the evidence shows that it was not known what amounts the tenants then owed, or would owe at the end of the year, and when it does not show that the accounts were ever assigned to the alleged purchaser, that the debtors were ever notified that they could discharge their debts by payment to any other than the original debtor, that the alleged purchaser collected or attempted to collect said accounts, or that the alleged seller did not, after the alleged sale, collect such of them as he could.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. § 234; Dec. Dig. § 137.*]</p> <p>3. Sales (§ 52*) — Evidence to Establish.</p> <p>And so the unsupported testimony of a lessee,' to the effect that the lessor agreed, with no information save the lessee’s statement, to pay him over $1,050 for peas alleged to have been purchased and planted, as a fertilizer, is insufficient for recovery, where it appears that peas had always been planted on the same land, for the same purpose, and that the property when surrendered by the lessee was in no better condition than when received-by him, or than as required by his lease.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 136; Dee. Dig. § 52.*]</p>

Action by Gustave Monteleone against the Seaboard Eire & Marine Insurance Company. A judgment for plaintiff was affirmed by tbe Court of Appeal, and defendant applies for certiorari or writ of review to tbe Court of Appeal.

Action by the Farmers’ Union Warehouse Stock Company, Limited, against C. O. Randall. Application by defendant for writs of prohibition against I-Ion. D. N. Thompson, judge of the Eighth judicial district court, in and for the parish of Catahoula, and T. E. Owen, receiver of the plaintiff company.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Suit by Ovide C. Blandin, a widow, and another, against the Blandin minors. From the judgment, Edgar Baehler appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Sidney P. Hearsey and others against Edna S. Craig. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Action by the John T. Moore Planting Company, Limited, against Morgan’s Louisiana & Texas Railroad & Steamship Company. From the judgment, both parties appeal.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. P. Brunot, Judge.</p> <p>Action by the Bank of Baton Rouge against Louis 'P. Leurey and another. Prom a judgment dismissing a provisional injunction, plaintiff appeals.</p>

So Relie, Judge. Petition of the Southland Lumber Company against Lee McAlpin, Assessor, and others, to set aside an assessment for taxes. Judgment for plaintiff, and defendants appeal.

<p>Appeal from Mayor’s Court of Town of Winnfield; W. F. Cooper, Mayor.</p> <p>Frank T. Grigsby was convicted of violating an ordinance of the Town of Winn-field, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Judgment (§ 715*) — Res Judicata.</p> <p>Where an heir brings a suit against his coheirs upon a particular issue concerning a matter in which they have a common interest, and some of the defendants resist the demand, whilst others, by way of answer, join in the prayer of the petition, and, subsequently, one of the latter class brings another suit, having the same general purpose and presenting the same issue as in the first suit, but, also, presenting additional issues, the parties, being the same in both cases, will be held bound by the decision of this court in the first suit with respect to the issue there involved and which is common to both.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1244^1247; Dee. Dig. § 715.*]</p> <p>2. CORPORATIONS (§ 29*) — POWER TO FORM— Fidei Commissum.</p> <p>A citizen may, legally, exchange part, or the whole, of the property of his estate for shares of stock in a corporation of which he is the main organizer, and, if the charter imposes no limitation on the power of the corporation to alienate such property and no obligation, other than that which the corporation owes to its stockholders, a® such, to hold the property or to administer it for the benefit of another, such exchange does not create a prohibited substitution or fidei commissum, nor does it constitute a violation, or unlawful evasion, of the law regulating the devolution of property by inheritance ; and a forced heir of such citizen, who receives his legitime, partly, in the stock of the corporation so established, has no standing to attack the validity of its organization, on the ground that it was created for a purpose prohibited by law or at variance with the public policy of the state, the laws authorizing the establishment of corporations being of equal force with those which make a child the forced heir of his father, and the legality of the charter of a corporation being determined by the law, and not by the motives of the incorporators.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 29.*]</p> <p>3. Corporations (§ 29*) — Vaudits'—Estop-pel to Question.</p> <p>Where a person subscribes for stock in a corporation, signs the charter as one of the in-corporators, and votes his stock, year after year, at the stockholders’ meetings, he becomes es-topped, as between himself and his fellow stockholders, thereafter, to attack the corporation on the ground of invalidity in its organization resulting from alleged nonobservance of statutory requirements; and the same thing is true with respect to a person who has acquired his stock by inheritance from another who has so acted.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ .77, 78; Dec. Dig. § 29.*]</p> <p>4. Corporations (§§ 28, 29*) — De Facto Status — Right to Question Validity oe Organization.</p> <p>Where there has been a bona fide attempt to establish a corporation, for a purpose, as declared in the charter, which is authorized, or can reasonably be believed to be authorized, by law, and such attempt has been followed by actual user of the corporate franchise, the corporation acquires a de facto status, and, ..save in exceptional cases, the validity of its organization will not be inquired into at the suit of an individual; the matter being one for the consideration of the state alone.</p> <p>[Ed. Note. — F’or other cases, see Corporations, Cent. Dig. §§ 70, 77, 78; Dec. Dig. §§ 28, 29.*]</p> <p>5. Corporations (§ 29*) — Validity oe Organization-Right oe Individual to Attack-Ultra Vires Acts.</p> <p>Where a corporation, by its charter, lays claim to powers beyond and in excess of those authorized by the law under which it is established, and exercises them, the claim is unfounded and the action unlawful; but the validity of its organization cannot, on that account, be attacked by an individual.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 77, 78; Dec. Dig. § 29.*]</p> <p>Nicholls, J., dissents. Breaux, C. J., dissents in part.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Mrs. Annie A. Curtis against the Union Homestead Association, in which a certain third person intervened. From the Judgment, defendant appeals.</p>

J. Murff, Judge. Action by C. Luehini and others against the police jury and others. Judgment for defendants, and plaintiffs appeal.

Action by Gustave J. Laharre against the Burton-Swartz Cj'press Company, in which the Baker-Wakefield Cypress Company, Limited, intervenes. From the judgment, plaintiff and defendant appeal.

; Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge. In the matter of the Succession of Constant Guillebert. On opposition of Adele Constant Guillebert and others to the final account of Mrs. Alfred J. Mayer and husband. The opposition was in part maintained, and both parties appeal.

<p> (Syllabus by the Court.) </p> <p>1. AUTHORITY OF PARTNER AFTER DISSOLUTION.</p> <p>A member of a partnership that has terminated is without power to create new obligations that are binding on the partnership, but he does possess the power to bind the partnership by his acknowledgment of obligations already incurred by it.</p> <p>2. Authority of Partner After Dissolution.</p> <p>The members of a partnership already terminated are not bound to pay 8 per cent, interest and attorney’s fees stipulated for in a note (given by one of the partners after the termination of the partnership) in substitution of a note given by the partnership, and which stipulated for interest at 5 per cent. To permit the partner to change the rate of interest would be to allow him to create new obligations to bind legal entity that had already ceased to exist. 1-Iis power to create new obligations is only coeval with the existence of the partnership.</p> <p>3. Authority of Partner After Dissolution.</p> <p>The evidence shows that an account had been rendered the partnership by plaintiff, which account was not objected to, and that the consideration for the note executed by the partner Blanks had been received by the partnership, therefore, in so far as the new note does not create new obligations against the partnership, it is binding on the partners.</p> <p>4. Partnership (§ 127*) — Commercial Partnership.</p> <p>As the object of the partnership was the purchase and sale of lands, the partnership was an ordinary one, and the incidental preparation and sale in the market of an article obtained from its lands does not change it into a commercial partnership, especially as this incidental act occurred during the existence of several years.</p> <p>[Ed. Note. — For other cases, see Partnership,. Cent Dig. § 192; Dec. Dig. § 127.*]</p> <p>On Rehearing.</p> <p>5. Partnership (§ 286*) — Dissolution—Liability for Subsequent Acts of Partner.</p> <p>After a partnership, whether commercial or ordinary, has been dissolved, a former member-cannot bind the other former members by making a note, in the firm name, whether for the creation of a new debt or the acknowledgment of an old one.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 64(1-649; Dec. Dig. § 286.*]</p> <p>6. Partnership (§ 296*) — Action Against PARTNERSHIP ON NOTE — SCOPE OE RECOVERY.</p> <p>Where suit is brought on a note, purporting to have been made by an ordinary partnership (but after its dissolution) through one of the former members, and it is held that the other former members, not having authorized it, are not bound thereby, the plaintiff cannot, in the same action, recover upon the open account, or overdraft, in settlement of which the note is said to have been given, and which account was admitted in evidence over the objection of the defendants.</p> <p>[Ed. Note. — Por other cases, see Partnership, Cent. Dig. §§ 666-678; Dec. Dig. § 296.*]</p> <p>7. Partnership (§ 286*) — Dissolution—Subsequent Acts oe Partner — Liability oe Other Partners.</p> <p>Where an ordinary partnership, created for the buying and selling of land and standing-timber, is dissolved, by consent, and two of -the members are authorized to liquidate its affairs, by selling the property of the firm and applying the proceeds of the sales to the payment of the firm debts, and one is allowed to draw checks for small amounts in payment of taxes and expenses, the other liquidator cannot, as such, bind his former partners by giving a note, in the firm name, in settlement of an old account or overdraft.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 646-649; Dec. Dig. § 286.*]</p> <p>Breaux, 'C. J., dissenting.</p>

<p>Appeal from the Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.</p> <p>Action by the Bank of Monroe against the E. O. Drew Investment Company and others. Judgment for plaintiff, and E. C. Reynolds, defendant, appeals.</p>

<p>Application by Alfred Melancon for a writ of habeas corpus for the liberty of Bertha Melancon.</p>

<p> (Syllabus by the Court.) </p> <p>1. 'Crimina! Eaw (§ 656*) — Conduct of Judge — Reproval of Defendant.</p> <p>A person on trial for a crime may be guilty of contempt of court, and, where he is already in actual custody, it is no invasion of his rights for the trial judge to say to him: “If you were not already in jail, I would send you there, for contempt.”</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dee. Dig. § 656.*]</p> <p>2. Criminal Law (§ 810*) — Conflicting Instructions.</p> <p>Where a person charged with embezzlement' reserves one bill, based on the theory of his being the partner (in business) of the prosecutrix, and others on the theory of his being married to her, there is manifest conflict between the different grounds of objection, since one cannot, under our law, be the husband and the partner in business of the same woman.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 810.*]</p> <p>3. Criminal Law (§ 1173*) — Appeal—Harmless Error — Instructions — Property of Another.</p> <p>In a prosecution for embezzlement, in which evidence is adduced tending to show that the property alleged to have been embezzled be- ; longed to a partnership, of which the accused was a member, it would be reversible error for the judge to refuse to charge the jury that if they find that such property did, in fact, belong to the partnership, - they should acquit the accused ; but, where there is no such evidence,' such refusal, coupled with a charge, given to the jury, in effect, that a partner may be guilty of embezzling the funds of the partnership, operates no injury to the accused, and the verdict will not be set aside on that account.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.*]</p> <p>4 Embezzlement (§ 8*) — Ownership — Embezzlement by Husband.</p> <p>A husband may be guilty of embezzling the property of the wife; though whether the same is true of the wife, with regard to the property of the husband, is a question which is not here decided.</p> <p>[Ed. Note. — For other cases, see Embezzlement, Dec. Dig. § 8.*]</p> <p>5. Criminal Law •(§ 915*) — Objections — Time for Taking — Waiver.</p> <p>It is too late for a party who has been convicted of a crime to make the objection on motion for new trial that he was prosecuted under the wrong name.</p> <p>[Ed. Note. — For other cases, see Criminal Law,^ Cent. Dig. §§ 2152-2158; Dec. Dig. §</p> <p>6. Criminal Law (§ 968*) — Motion in Arrest-Scope of Inquiry — Matters Covered by Verdict.</p> <p>Matters cured by the verdict will not be inquired into on motion in arrest of judgment.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2423-2444; Dec. Dig. § 968.*]</p> <p>7. Criminal Law (§ 970*) — Objections—Motion in Arrest.</p> <p>Where an indictment is signed by the district attorney, properly identified as the work of the grand jury by the indorsement “A true bill,” followed by the official signature of the foreman of the grand jury, and is shown to have been returned into court by the grand jury, the objection that it was not read “in open court, in the presence of the jury,” comes too late, in a motion in arrest of judgment.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. PROHIBITION (§ 5S:) — Grounds — Proceedings on Courts.</p> <p>The writ of prohibition will not be issued (as relates to appeal) to the end of maintaining jurisdiction of the appellate court, unless the appeal is perfected at least to the extent of executing a legal bond in accordance with an order of appeal, fixing the amount for the bond.</p> <p>[Ed. Note. — For other cases, see Prohibition, Dee. Dig. § 5.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Appeal and Error (§ 452*) — Proceedings for Transfer — Effect of Application.</p> <p>An application for appeal not granted cannot be considered as an application granted, divesting the court of original jurisdiction of its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2212, 2213; Dec. Dig. § 452.*]</p> <p>3. Mandamus (§ 57*) — Grounds — Compelling Granting of Order of Appeal.</p> <p>If the trial judge errs in refusing to grant an order of appeal, mandamus will lie to compel him to correct his mistake and invest the appellate court with jurisdiction.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 68, 11A-120; Dec. Dig. § 57.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>MANDAMUS (§ 61*) — GROUND — PRELIMINARY Trial.</p> <p>Where one was charged in an affidavit before the First city criminal court with murder, and the affidavit was dismissed after the case was called for hearing, and accused was subsequently brought to trial in the district court on an indictment for murder', accused could not, after having been called to plead to the indictment, by mandamus secure a decree entitling him to a preliminary examination, and have the case reinstated in the First city criminal court for such purpose.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 122-126; Dec. Dig. § 61.*]</p>

<p>Joseph Fritz was prosecuted for crime, and applies for a writ of mandamus.</p>

<p>Appeal from the Twenty-Second Judicial District Court, Parish of East Baton Rouge; I-I. F. Brunot, Judge.</p> <p>Action by the New Orleans Great Northern Railroad Company against the Railroad Commission of Louisiana. Judgment of dismissal, and plaintiff appeals.</p>

<p> (Syllabus by the Oowrt.) </p> <p>1. Criminal Law (§ 141*) — Change of Venue — Eobwaeding Copt of Documents.</p> <p>When, under a change of venue, a case has been transferred from, one court to another, the failure of the court where the indictment was found to forward a copy of all the documents to this court will not vitiate all the proceedings, particularly where the failure has been cured under a writ of certiorari.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 260-263; Dec. Dig. § 141.*]</p> <p>2. Indictment and Information (§ 25*)— Presumptions of Regularity — Grand Jury.</p> <p>There is a presumption that before the change of venue was gxanted all the proceedings in a criminal case have been carried on regularly, and, where the indictment states that the grand jury had been impaneled, sworn, and organized, that the statement is a sufficient legal basis for the trial of the accused. This presumption of regularity also extends to the fact that the foreman of the grand jury had been selected and sworn.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 92, 108-114; Dec. Dig. § 25.*]</p> <p>3. Criminal Law (§ 1031*) — Appeal—Objections Not Raised Below.</p> <p>As there is a presumption of regularity as to the proceedings, the defendant cannot on appeal object to the proceedings as irregular, as such objection should have been raised at /the trial. '</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2625; Dec. Dig. § 1031.*]</p> <p>4. Criminal Law (§§ 371, 783*) — Evidence of Motive.</p> <p>In a case of homicide, where the evidence is circumstantial, the state may introduce in evidence a copy of an indictment found against the accused, charging him with another crime, for the purpose of proving the “motive.” The instruction of the judge to the jury that the indictment is merely a link in the chain of evidence, to be considered as such, and that the fact that the accused is charged with another crime is not proof of his guilt of the homicide, is a sufficient protection of the rights Of the accused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. §§ 371, 783.*]</p> <p>5. Criminal Law (§ 783%*) — 1Trial—Recep-tion of Evidence.</p> <p>Where the state seeks to introduce evidence deemed to be relevant and a link in the chain of circumstances, its relevancy can be determined only by the trial judge after he has heard it, and if he deems it not relevant he must instruct the jury to disregard it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 783%.*]</p> <p>6. Witnesses (§ 300*) — Privilege of Accused —Refusal to Answer Question.</p> <p>While the accused', as a witness, may decline to answer any question that incriminates him, he may be made to decline before the jury.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 300.*]</p> <p>7. Witnesses (§ 352*) — Impeachment.</p> <p>The accused as a witness may be impeached, and an experiment may be used for that purpose, if properly conducted.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 352.*]</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles A. O’Niell, Judge.</p> <p>Action by Otto C. Claussen against the Cumberland Telephone & Telegraph Company. 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 H. T. Pringle against the Producers’ Turpentine Company. Judgment for plaintiff, and defendant appeals.</p>

Action by Albert Bienvenu against the Police Jury of St. Martin Parish and another. Judgment for defendants was affirmed by the Court of Appeal, and plaintiff applies for writ of certiorari or writ of review.