Volume 127 — Louisiana Reports

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Chas. A. O’Niell, Judge.</p> <p>Action by Hilaire Lancon against the Morgan’s Louisiana & Texas Railroad & Steamship Company. From a judgment for plaintiff, defendant appeals.</p>

Action by Meyer Cohen against Henry A. Otis. Judgment for plaintiff, and defendant appeals to the Court of Appeal. Prom an order refusing to dismiss the appeal, plaintiff applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by George W. Long against the Charles A. Kaufman Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Andrew J. Murff, Judge.</p> <p>Action by Winston Bros. & Co. and others against the Louisiana Central Construction Company and others. Judgment for plaintiffs and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant (§ 276*) — Injury to Servant — Evidence.</p> <p>Where, in an action for damages for injuries to, ana the death of, a locomotive fireman, resulting from, the jumping from the track of the tender and the overturning of the engine, whilst they were backing at the rate of 18 or 20 miles an hour, the testimony of all the witnesses is to the effect that the speed was not excessive, that the road was in good order, and that the engine was new and in almost perfect condition, and there is no suggestion (in the testimony) of any negligence, on the part of the railroad company, which could have caused the accident, the demand for damages must be rejected.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 276.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Agriculture (§ 7*) — Fertilizers—Analysis.</p> <p>The analysis of commercial fertilizers provided by section 3, Act No. 126, p. 186, of 1898, is for the benefit of purchasers for use, and there is no warrant for sending to buyers analyses of a mixture of different samples from different sales made by the same dealer, and forwarded by the local inspector for analysis as required by the said section.</p> <p>[Ed. Note. — For other cases, see Agriculture, Cent. Dig. §§ 13, 14; Dec. Dig. § 7.*]</p> <p>2. Agriculture (§ 7*) — Fertilizers—Analysis — Publication.</p> <p>The Commissioner of Agriculture may, under section 9 of Act No. 126 of 1898, analyze any fair samples of fertilizer he may select and publish the result of the analysis for the information of the public, and his discretion in this respect cannot be controlled by the courts.</p> <p>[Ed. Note. — For other eases, see Agriculture, Cent. Dig. §§ 13, 14; Dec. Dig. § 7.*]</p> <p>Monroe, J., dissenting.</p>

Proceeding by the State against John Dykes and others. Judgment for plaintiff was affirmed by the Court of Appeal, and John Dykes and others apply for mandamus, prohibition, and certiorari.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Benjamin Bonneval against the American Coffee Company and William H. ICerr. Judgment for plaintiff, and defendant Kerr appeals.</p>

<p> (Syllabus by the Gourt.) </p> <p>Mortgages (§ 529*) — Foreclosure — Notice to Debtor — Setting Aside Sale.</p> <p>If a debtor acts so as to thwart the efforts of an officer seeking to serve upon him notice of the seizure of his property by a mortgage creditor, and then remains passive while his property is being sold under this seizure, he will not be permitted to set aside this sale as null and void because he was not served with notice of seizure. A debtor cannot be allowed to take advantage of his unwillingness to be served in order to deprive his creditor of his rights.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1538; Dec. Dig. § 529.*]</p>

<p> (Syllabus by the Court.) </p> <p>Municipal Cobpobations (§ 994*) — Special Legislation — Injunction.</p> <p>Act No. 236 of. 1908, purporting to confer on the town of Providence the authority to issue bonds and levy a tax for their payment, is obnoxious to the prohibitions against local and special legislation contained in article 48 of the Constitution, and is therefore void; and the action and proposed action of the mayor and aldermen, tending to the issuance of such bonds and the levy, of such taxes, is therefore illegal and incompetent, and is perpetually enjoined at the suit of a citizen and taxpayer.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2162; Dec. Dig. § 95.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 1203*) — Trial (§ 387*) — Remand — Reopening Case for Further Evidence.</p> <p>Where an exception of no cause of action has been referred to, and tried with, the merits, and, after full hearing on the merits, the exception is overruled, it is proper for the judge to decide the case without reopening it for further evidence; and the same is true where, the exception having been sustained by the trial judge, his judgment is reversed, the exception overruled, and the case remanded, by this court, for further proceedings, according to law; and this (under Act No. 94 of 1898, § 3) whether the same judge be on the bench, when the case is remanded, or his successor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1203;* Trial, Dec. Dig. § 387.*]</p> <p>2. Appeal and Error (§ 170*) — Review — Constitutional Questions.</p> <p>This court will not consider an attack upon the constitutionality of a statute, not made in the pleadings and not presented to the trial court, where there has been opportunity for such pleadings and presentation.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1037; Dec. Dig. § 170.*]</p> <p>3. Principal and Agent (§ 78*) — -Duty of Agent to Account.</p> <p>One who is in possession of the property of another, somewhat in. the character of a negotiorum gestor, ought, when called on to account for it, to show some definite and controlling reason for not doing so. Dilatory tactics in such cases are not favored by the courts.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Dec. Dig. § 78.*]</p> <p>4. Compromise and Settlement (§ 5*) — Existence of Agreement.</p> <p>A proposed agreement, for the arbitration, or compromise, of a claim in dispute, does not acquire the status of an agreement, where the main debtor fails to make himself a party to jt until after the expiration of the time within which, by the terms of such proposed agreement, he should have made settlement.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ KNIG; Dec. Dig. § 5.*]</p> <p>5. Compromise and Settlement (§ 5*) — Essentials of Agreement.</p> <p>The proposition that, when the holder of a claim has tried, for several years, to get some adjustment of it, and has, finally, sold it to another, who brings suit, a stipulation, in a proposed agreement for arbitration, or compromise, fixing the time within which the claim is to be settled, is not of the essence of such proposed agreement, is untenable. Reason and authority«alike are against it.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 10-16; Dec. Dig. § 5-*]</p> <p>6. Specific Performance (§ 80*) — Contracts Enforceable — Agreement to Arbitrate Future Differences.</p> <p>An agreement to refer, for final determination, differences to arise in the future to arbitrators, or amicable compounders, is not susceptible of specific enforcement, but is dependent for its execution on the will of the parties; since the court will not, in such cases, compel persons to appoint arbitrators or amicable compounders, or otherwise enforce agreements whereby persons undertake, with regard to matters to arise in the future, to close the doors of the courts upon themselves.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 214;* Dec. Dig. § 80.*]</p> <p>Provosty, J., dissenting in part.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Judgment (§ 403*) — Annulling Judgment-Grounds.</p> <p>The rule that a judgment will not be annulled for matters showing that the judgment is erroneous or for matters available as a defense to the action does not apply to matters subsequently discovered, which render it against good conscience to enforce the judgment, or to judgments obtained by fraud.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. § 764; Dec. Dig. § 403.*]</p> <p>2. Minors — Judgment—Annulling.</p> <p>Under Code Prac. art. 615,_ authorizing the rescission of a judgment against a minor, and declaring that the article shall not be construed to imply the-nullity of a judgment where a minor has been regularly represented, a minor regularly represented is concluded by the judgment.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 314;, Dec. Dig. § 110.*]</p> <p>3. Minors and Their Tutorship — Actions— Service op Petition — Waiver op Citation.</p> <p>A tutor may accept service of petition in an action against his ward and may waive citation.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 439; Dec. Dig. § 28.*]</p> <p>4. Minors and THeir Tutorship — Judgment —Confession.</p> <p>A tutor may not confess judgment against his ward; but, where he believes that the demand against the ward is well founded, he may submit the matter to the court for decision.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 106; Dec. Dig. § 60.*]</p> <p>5. Minors and Their Tutorship — Right op Undertutor to Act.</p> <p>Under Civ. Code, art. 275, requiring the undertutor to act for the minor when the interest of the minor is in opposition to the interest of the tutor, a tutor cannot represent his ward in any matter in which their interests are opposed, but the minor must then !be represented by the undertutor.</p> <p>• [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 288-293; Dec. Dig. § 62.*]</p> <p>6. Minors and Their Tutorship — Right op -Tutrix to Act.</p> <p>Where the questions were whether a debt was due in whole by a widow, who acted as tutrix for her minor children, or was due in part by her and in part by the children, and involved the displacing of a legal mortgage of the children from the property of the widow, so as to subordinate it to other mortgages given by her, the interests of the widow and children were opposed, so that the widow could not act for or represent the children in'the litigation.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. § 118.*]</p> <p>7. Minors and THeir Tutorship — Action by Tutrix.</p> <p>Under Code Prac. art. 615, providing that an action to rescind a judgment against a minor cannot be brought by the tutor during the minority of the minor, a tutrix may not maintain a suit to annul a judgment against her wards on'the ground that the wards were not well represented in the action in which the judgment was rendered because their interests were opposed to the interests of the tutrix representing them.</p> <p>[E'd. Note. — For other cases, see Guardian and ■Ward, Cent. Dig. §§ 411-418; Dec. Dig. § 118.*]</p> <p>8. Executors and Administrators (§ 217*)— Management of Estate — Creditors.</p> <p>Where a plantation was operated by the widow of decedent individually and as the tutrix of her children and by the major children jointly for their joint account as property 'belonging to them of which they were in actual possession, and on that theory they borrowed money for operating the plantation and executed a mortgage to secure it, the creditor who took the notes of the widow and the heirs individually for the debt, together with the mortgage from them individually, and who sued them individually, could not urge that he was a creditor of the succession of the decedent.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 758; Dec. Dig, § 217.*]</p> <p>9. Executors and Administrators (§ 3*)— Right to Administration.</p> <p>The rule that, where one or more of the heirs are majors, there must be administration, is subject to the qualification that some heir or creditor demands an administration.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 3-14; Dee. Dig. § 3.*]</p> <p>10. Executors and Administrators (§ 130*) —Termination of Succession.</p> <p>The succession terminates when the heirs, whether minors or majors, go into actual possession of the land of the deceased owner without opposition; but until such possession a tutor acting as administrator of an open succession does not possess for the minor heirs.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 537; Dec. Dig. § 130.*]</p>

T. 0. Anderson was convicted of selling liquor to a delinquent child, and, a new trial being refused, applied for writs of certiorari and prohibition.

<p> (Syllabus by the Court.) </p> <p>1. Minors and Their Tutorship-Special Mortgage bt Tutrix — Rights op Minor Children.</p> <p>Under Civ. Code, art. 344, a special mortgage may be ^iven by a tutrix to secure the rights of her minor children on any immovables owned by her, whether her title has been acquired by adjudication under Civ. Code, art. 343, or otherwise.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 206-218; Dec. Dig. § 74.*]</p> <p>2. Minors and Their Tutorship — Securing Rights op Minors.</p> <p>Where all the rights of minors have been liquidated by a judgment of the court, the minor’s legal mortgage and the special mortgage reserved to them under Civ. Code, art. 343, may be restricted by 'one and the same special mortgage to particular immovables sufficient in value to secure the amount due, with interest to accrue, as provided by Civ. Code, art. 325.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 206-218; Dec. Dig. § 74*2</p> <p>.Breaux, C. J., dissenting.</p>

Action by George U. Borde against Lazarus, Michel & Lazarus. Judgment for plaintiff, and defendant appealed to the Circuit Court of Appeal, which dismissed the suit for want of jurisdiction, and defendant applies for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>Courts (§ 224*) — Jurisdictional Amount-Dismissal.</p> <p>In an action to recover immovable property, worth about $170, there can be no claim for damages, on the allegations in plaintiff’s petition, such as to bring the amount really in controversy up to the jurisdictional amount of this court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 617; Dec. Dig. § 224.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Attorney and Client (§ 155*) — Attorney oe Succession — Right to Pees — Allowance erom Estate.</p> <p>Only one lawyer should be employed on behalf of a' succession to settle it, and, where counsel has had difficult problems to face and much work to do, the fact that he may have committed errors in advising and conducting litigation will not be sufficient ground for depriving him of his fee.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 316; Dec. Dig. § 155.*]</p> <p>2. Attorney and Client (§' 155*) — Fees— Services to Estate.</p> <p>The services rendered in this case by counsel, now opponent, were in the main rendered to the estate, and not to particular heirs, and the amount of his fee fixed by the judge under whose eyes the work was done will not be set aside.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig, § 316; Dec. Dig. § 155.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Theard, Judge.</p> <p>Action by Abner B. Gilmore against Dr. Victor L. Gilmore, John Y. Gilmore, and others. From the decree, defendant John Y. Gilmore appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Apfeal and Error (§ 360*) — Motion—Time of Making — Dismissal.</p> <p>Article 573 of the Code of Practice provides that a motion for an appeal must be made in open court, and so an appeal granted on a motion made during the vacation of the court will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1941, 1949, 1953; Dec. Dig. § 360.*]</p>

Action by Mrs. Celia Puckett against the Fox Grocer Company, Limited. A judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by Bernard Bennett against Dr. G. W. Martin. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King,. Judge.</p> <p>Action by R. W. Perkins against the New Orleans Railway & Light Company. From a judgment for defendant", plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mandamus (§ 37*) — Grounds—Refusal to Grant Injunction — Mandatory Duty.</p> <p>Mandamus will not lie to compel the granting of writs of injunction, except in the specific instances recited in articles 298-302 of the Code of Practice.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 81; Dec. Dig. § 37.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Mandamus (§ 37*) — Refusal to Grant Injunction — Insufficiency of Petition for Injunction.</p> <p>Deficiencies in a petition for an injunction cannot be supplied by allegations in a petition for mandamus to compel issuance of the injunction.</p> <p>[Ed. Note. — For other cases, see Mandamus, Dec. Dig. '§ 37.*]</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Erro» (§ 1106*) — Disposition of Cause — Remandment.</p> <p>Where a plea of prescription is filed on appeal, the cause will be remanded, where the evidence is too vague and uncertain to enable the court to pass intelligently on the question of the interruption of prescription.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent Dig. §§ 4386-4398; Dec. Dig. § 1106.*]</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of St. James; Paul Leche, Judge.</p> <p>Action by the American Hoist & Derrick Company against Charles Y. Frey. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Minors — Juvenile Court — Jurisdiction.</p> <p>A charge that an adult has committed an offense against a delinquent minor under the age of 17 years suffices to give the juvenile court jurisdiction of the case, and additional averments as to wherein the child has been found delinquent are mere surplusage.</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § 20.*]</p> <p>2. Criminal Law (§ 1158*) — Appeal—Review —Pacts.</p> <p>On the question whether a child is a delinquent, the Supreme Court has no jurisdiction over the facts.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1158.*]</p> <p>3. Criminal Law (§ 954*) — New Trial — Newly Discovered Evidence — Necessity for Diligence.</p> <p>A new trial is properly refused, where the motion does not recite facts showing due diligence to discover and procure evidence.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Dec. Dig. § 954.*]</p> <p>4. Criminal Law (§ 972*) — Motion in Arrest-Scope.</p> <p>A motion in arrest reaches only defects patent on the face of the record, and cannot be aided by evidence.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2423; Dec. Dig. § 972.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the Interstate Trust & Banking Company against Hampton Reynolds and others. Judgment for plaintiff, and defendants appeal.</p>

Action by the Quaker Realty Company against the City of New Orleans and. others. A judgment for defendant was reversed by the Court of Appeal, and Louis E. Yalloft applies for certiorari or writ of review.

Action by S. Sciortino against the Bank of White Castle. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

P. Madison, Judge. Action 'by D. E. Corbett, Morris Jouvenat, and others against Rasmus Hanson and others. Judgment for defendants, and plaintiff Jouvenat appeals. On motion to dismiss.

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

Action by the Hall & Legan Lumber Company and others against Madison B. Jeter. Judgment for defendant was affirmed by the Court of Appeal, and plaintiffs apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by the Lake Charles Planing Mill Company, Limited, against the Grand Lodge,. I. O. O. F., and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Prentice E. Edrington, Judge.</p> <p>Action by Mrs. Adele Roux, widow of Jean Torres, against Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Juvenile Court, Parish of Orleans; Andrew H. Wilson, Judge.</p> <p>Edward Boettner was convicted for failure to support his family, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mrs. Ambrose Gilardino against Anthony Patorno. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Jury (§§ 100, 103*) — Competency op Ju-ROiis — Formation op Opinion as to Cause.</p> <p>A talesman, who testifies on his voir dire that he has heard rumors regarding the facts of a ease, and that he has formed an impression regarding them, but who also swears that he has no bias or prejudice, and that he will weigh the evidence, and decide the case impartially, is competent to serve on the jury. In order that a juror may be considered incompetent, it must appear that he has a fixed opinion which will preclude his giving an impartial verdict. State v. Johnson, 33 La. Ann. 889.</p> <p>[Ed. Note.' — For other eases, see Jury, Cent. Dig. §§ 449-457, 461-479; Dec. Dig. §§ 100, 103.*].</p> <p>2. Jury (§ 99*) — Competency op Jurors — Formation op Opinion as to Cause — Discretion op Court.</p> <p>In deciding whether a talesman is competent to serve as a juror because of an impression which he has regarding the case, much is left to the discretion of the trial judge. State v. Bouvy, 124 La. 1054, 50 South. 849.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 438-484; Dec. Dig. § 99.*]</p> <p>3. Jury (§ 107*) — Competency op Jurors — Opinion as to Circumstantial Evidence.</p> <p>The statement by a juror, on his voir dire, that, in his judgment, circumstantial evidence did not have the weight and force of direct and positive evidence, did not render him incompetent, as he did not say that he would not consider the circumstantial evidence.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 486-488, 495; Dec. Dig. § 107.*]</p> <p>4. Criminal Law (§ 1142*) — Appeal—Review — Presumption — Correctness op Judge’s Statement op Facts.</p> <p>Where the evidence has not been taken down, the statement of facts of the trial judge will be taken as correct, and it will not be inferred that the trial judge omitted to have the facts taken down where there was the least necessity for taking them down.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3014, 3016-3037; Dec. Dig. § 1142.*]</p>

<p> (Syllabus by the Gourt.) </p> <p>1. Criminal Law (§ 1158*) — Appeal—Review —Findings.</p> <p>Where, from the statement of the trial judge, it appears that there was no question as to who was the aggressor upon the occasion of the homicide, the case falls within the rule, long established in this state, that the finding of the trial judge is conclusive upon the question whether an overt act by the deceased, immediately preceding the killing, has been sufficiently proved to open the door to evidence of prior threats by him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. 3061, 3066; Dec. Dig. § 1158.*]</p> <p> (Additional Syllabus by Editorial Sta.ff.) </p> <p>2. Homicide (•§ 190*) — Evidence—Threats by Decedent Against Accused.</p> <p>Threats made by decedent against accused, unless accompanied or immediately followed by such a real or apparent demonstration of an immediate intent to execute them as would naturally induce a reasonable belief that the person threatened would lose his life or suffer serious bodily harm, are not admissible in evidence in a prosecution for the killing, to justify it, when not a part of the res gestm; there being no question as to who was the aggressor.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.*]</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§§ 938, 1156*) — Appeal—Review — Discretion of Court — Motion for New Trial for Newly Discovered Evidence.</p> <p>The trial judge is vested with great discretion in the matter of granting and refusing new trials applied for on the ground of newly discovered evidence, and this court will not reverse his ruling, unless that discretion has been abused and there is manifest error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2317, 3067-3071; Dec. Dig. §§ 938, 1156.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal Law (§ il66’:0 — Appeal—Harmless Error — Refusal of Continuance.</p> <p>Any error in refusing continuance for absence of witness was harmless; it developing at the trial that the testimony of such witnesses would have been merely cumulative.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3111; Dec. Dig. § 1166.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Oriminal Law (§ S41*) — Instructions — Objections After Verdict.</p> <p>The charge of the court not having been objected to, it is too late after verdict to complain of the law on which the verdict was based, as that malice is presumed where the homicide was without provocation.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2022; Dec. Dig. § 841.*]</p> <p>2. Criminal Law (§ 728*) — Misconduct of Jury — Time for Objection.</p> <p>The record showing the facts relied on as misconduct of the jury were known to defendant’s counsel before verdict, and were not then brought to the court’s attention, it was, after verdict, too late to do so.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1689; Dec. Dig. § 728.*]</p> <p>3. Criminal Law (§ 720*) — Trial—Remarks of District Attorney.</p> <p>Remarks of the district attorney to the jury, in answer to argument of the defendant’s counsel urging them to believe the testimony of a certain witness, in conflict with that of several others, that, if they do believe it, he is sure they are the only 12 persons who do believe it, are purely argumentative, and not objectionable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670-1671; Dec. Dig. § 720.*]</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§§ 938, 1156*) — Appeal—Review — Motion for New Trial — Discretion of Court.</p> <p>This case is typical of the class which xmderlie jurisprudence to the effect that the trial judge is vested with great discretion in the matter of granting or refusing new trials, applied for on the ground of newly discovered evidence, and that the appellate court will not reverse his ruling unless that discretion has been abused or there is manifest error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2317, 3067-3071; Dec. Dig. §§ 938, 1156.*]</p>

Madison, Judge. Consolidated actions by the National Iron Works and by others against the City of Monroe. From a judgment fixing the rank of competing claimants, the National Iron Works appeals.

<p>Proceedings by Felix Leleu against Adonis D. Delcambre to contest an election. Application for certiorari and prohibition to re-</p> <p>view a judgment for plaintiff.</p>

Action by Lisso & Bro. against the Police Jury of the Parish of Natchitoches. A judgment for defendant was reversed by the Court of Appeal, and the Police Jury apply for eertioraTi or writ of review. Judgment of the Court of

<p> (Syllabus by the Qourt.) </p> <p>Damages (§ 185*) — Injury to Passenger-Sufficiency of Evidence.</p> <p>Although it abundantly appears that plaintiff is suffering from “double, incomplete, direct, inguinal hernia,” it no more appears that he acquired it through the fault of the defendant than that he, in that way, acquired the anaemia, from which he also suffers, or the mitral regurgitation, or the arterial sclerosis, or the arcus senilis, and defendants are no more responsible, in damages, for the one than for the other.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 508-508; Dec. Dig. § 185.*]</p>

Action by Mrs. Esther A. Martin against the Hibernia Bank & Trust Company. A judgment for plaintiff was affirmed by the Court of Appeal, and defendant applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Demetrius Lykiardopoulo against the New Orleans & Carrollton Railroad, Light & Power Company and others. From a judgment for plaintiff,. defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Demetrius Lykiardopoulo against the New Orleans & Carrollton Railroad, Light & Power Company and others. Prom a judgment for defendants, plaintiff appeals.</p>

Bernard; R. Em-met I-Iingle, Judge. Action by the Friscoville Realty Company against the Police Jury of the Parish of St. Bernard and others. Judgment for defendants, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>Appeal and Ekroe (§ 14*) — Dismissaj>-Re-NEWAL.</p> <p>When an appeal is dismissed because of failure of the appellant to file the transcript in time, it is considered abandoned, and cannot afterwards be renewed; and a motion to dismiss an appeal, subsequently attempted to be taken, may be filed at any time after the filing of the transcript.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 48-58; Dec. Dig. § 14.*]</p>

P. Edwards, Judge. Luke Tuggle, Jr., was prosecuted for an assault with intent to kill, and with inflicting a wound less than mayhem. A motion to quash the indictment was sustained, and the State appeals.

<p> (Syllabus by the Court.) </p> <p>Indictment and Information (§ 125*) — Sufficiency of Indictment.</p> <p>Where an indictment charged that the accused did commit “the crime against nature-’ by a certain specific act of carnal knowledge, and did then and there commit the crime of “sodomy,” held, that the two terms were used by the pleader as equivalents, and that two different crimes were not charged.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]</p>

<p>Application of George W. Long for writs of certiorari, mandamus, and prohibition in the action of said Long against the Charles A. Kaufman Company, Limited.</p>

<p> (Syllabus by the Court.) </p> <p>1. Intoxicating Liquors (§ 148*) — Illegal Sale in Prohibition Parish — “Wholesale Dealer.”</p> <p>Under the general license act (No. 171 of 1898, p. 387), no person is deemed a wholesale dealer unless he sells to dealers for resale. Hence a dealer in intoxicating liquors, who sells to individuals for consumption, is a retailer, and may be properly convicted as such in a prohibition parish.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 148.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7450; 7451.]</p> <p>2. Intoxicating Liquors (§ 25*) — Local Option — Statutory Provisions.</p> <p>'The provisions in the charter of the town of Luke Charles, withdrawing said corporation from the jurisdiction of the police jury of the parish of Calcasieu for certain purposes, were repealed as to local option by Acts No. 76 of 1SS4 and No. 221 of 1902.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 31; Dec. Dig. § 25.*]</p> <p>3. Commerce (§ 41*) — Interstate Commerce-Intoxicating Liquors — Right to Sell Liquor Shipped from Another State.</p> <p>The interstate commerce act (Act Cong. Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]) confers no right to sell in the state of Louisiana intoxicating liquors shipped from another state of the Union.</p> <p>[Ed. Nóte. — For other cases, see Commerce, Cent. Dig. §§ 30, 31; Dec. Dig. § 41.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4. Words and Phrases — “Wholesale.”</p> <p>The primary and usual meaning of the word “wholesale” is the sale of goods in gross to retailers who sell to .consumers.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, yol. 8, p. 7450.]</p>

X. Ransdell, Judge. Actions by Mrs. Margaret McCulloch Long and husband and by Miss Lucile McCulloch and others against Elvin Dickerson and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.</p> <p>Action by the Hafner Manufacturing Company against the Lieber Lumber & Shingle Company and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Garnishment (§ 38*) — Property Subject.</p> <p>Where a mortgage in favor of a nominal mortgagee recited that it was granted for the particular purpose of enabling a receiver of a corporation to pay certain debts, and the mortgage note was delivered to the receiver, held, that a judgment creditor of the mortgagor could not seize the note by garnishment proceedings.</p> <p>[Ed. Note, — For other cases, see Garnishment, Dec. Dig. § 38.*]</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 797*) — Motion to Dismiss — Dismissal.</p> <p>The three days on which the motion to dismiss should have been filed had elapsed, and the motion, not being filed in the prescribed time, is dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. § 797.*]</p> <p>On the Merits.</p> <p>2. Injunction (§ 178*) — Dissolution on Bond — Denial.</p> <p>. The allegation- that to dissolve an injunction on bond would work an irreparable injury by changing the possession of immovable property from plaintiff to defendant is a sufficient allegation of irreparable injury to deny the dissolution of the injunction. The test to be applied to the dissolution on bond is whether plaintiff '-will suffer irreparable injury by such dissolution, and in this case such injury might arise.</p> <p>[Ed. Note. — Eor other eases, see Injunction, Dec. Dig. § 178.*]</p> <p>3. Injunction (§ 175*) — Dissolution — Grounds.</p> <p>Where there are several defendants in injunction, and only one applies for the dissolution of the injunction, he will have to make a very good showing in order for the court to grant his prayer.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Dec. Dig. § 175.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Elections (§ 103*) — Registration—Office of Registrar.</p> <p>Under section 22, Act No. 98 of 1908, the registrar of voters in a country parish cannot keep his office elsewhere than “at the courthouse.”</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 101; Dec. Dig. § 103.*]</p> <p>2. Elections (§ 111*) — Registration—Application.</p> <p>Applications for registration are official papers, open to inspection at all times by the public. Id. § 27. _</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 107; Dec. Dig. § 111.*]</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur F. Black-man, Judge.</p> <p>Action by William J. Sasser and wife against the Lee Lumber Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; Don E. Sorelle, Judge.</p> <p>Luther Mitchell was convicted of forgery, and appeals.</p>

Action by J. B. Stothard against the Louisiana Railway & Navigation Company. Judgment for plaintiff before a magistrate was found by the District Court, and defendant applies for a writ of certiorari.

F. Brunot, Judge. Suit by the Texas & Pacific Railway Company against the Railroad Commission of Louisiana to set aside an order of the Commission. Judgment sustaining the order, and the Railway Company appeals.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Benjamin Donato was convicted of selling liquor without a license, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by George P. Howell and others against the Metropolitan Land Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>Action by W. E. Allen and Carrie P. Allen against the Town of Minden. Judgment for plaintiffs, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 572*) — Weight oe Expert Testimony.</p> <p>The evidence of a physician who has attended a person immediately after an accident is of more weight on the question of the seriousness of the injury than that of the physician who has attended the injured person a year after the accident, for other causes and conditions may have intervened during the year.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 572.*]</p> <p>2. Appeal and Error (§ 1004*) — Review-Personal Injuries — Conclusiveness oe Verdict.</p> <p>In a suit for damages for personal injury, the verdict of the jury is of weight because they have an exceptional opportunity for forming a just estimate.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]</p>

<p>Appeal from the Fifth Judicial District Court, Parish of Winn; George Wear, Judge.'</p> <p>Action by W. A. Stothart against the Louisiana-Arkansas Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Leche, Judge.</p> <p>Albert Richard and another were convicted of an assault with intent to murder, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Street Railroads (§ 70*) — Carriage of Passengers — Assignment of White and Colored Races to Separate Compartment.</p> <p>The discretion vested in street railway companies and their officers and agents by Act No. 64 of 1902, with regard to the assignment of the white and colored races, respectively, to separate compartments in street cars, is to be exercised by them at their own peril, and they, and not the sufferers, are liable for the consequences of their mistakes or their abuse of such discretion.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 70.*]</p> <p>2. Carriers (§ 280*) — Carriage of Passengers — Duty to Protect Passengers.</p> <p>A carrier of passengers is as much bound to protect them from humiliation and insult as from physical injury.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1085-1117; Dec. Dig. § 280.*]</p> <p>3. Carriers (§ 283*) — Carriage of Passengers — Insult of Passenger by Conductor —Right of Recovery.</p> <p>To apply the term “negro” to a white person is humiliating and insulting, and a suggestive question, such as, “Don’t you belong over there?” addressed to a white person, by the conductor of a street car, who points to the seats reserved for negroes, is but little less so. In either ease, and whether the language used be heard by others or not, an action in damages will lie against the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1121; Dec. Dig. § 283.*]</p>

<p>Appeal from Ninth Judicial District Court, Parish of Madison; F. X. Ransdell, Judge.</p> <p>Action by A. S. Coltharp against Margaret E. West. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Minors — Jurisdiction—Juvenile Oourt.</p> <p>A juvenile court has no jurisdiction over capital offenses committed by minors under the age of 17 years. State v. Howard, 126 La. 353, 52 South. 539, reaffirmed.</p> <p>[Ed. Note. — For other cases, see Infants, Dec. Dig. § 18.*]</p> <p>2. Criminal Law (§ 409*) — Exculpatory Admissions.</p> <p>Exculpatory admissions of the accused are not governed by the rules applicable to confessions of guilt.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 918, 919; Dec. Dig. § 409.*]</p> <p>3. Criminal Law (§ 814*) — Trial—Special ' Instructions.</p> <p>Special instructions not applicable to the facts of the case are properly refused.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.*]</p> <p>4. Criminal Law (§§ 409, 518*) — Confessions —Admissibility—Warning.</p> <p>It is not necessary for the state to prove, as a foundation for the introduction of a confession or admission of the accused, that he was warned that any statement made by him might be used against him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 918, 919, 1157-1162; Dec. Dig. §§ 409, 518.*]</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; B. P. Edwards, Judge.</p> <p>Action by Henrietta O. Abney against the Louisiana & Northwest Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Dennis Hickman and another were indicted for cattle stealing. A motion to quash the indictments was sustained, and the State appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; R. S. Ellis, Judge.</p> <p>Action by H. G. Morris against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Judgment (§ 654*) — Conclusiveness — Nonsuit.</p> <p>A judgment of nonsuit leaves all questions of law and of fact open for further adjudication.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1165; Dee. Dig. § 654.*]</p> <p>2. Taxation (§ 79*) — Assessment — Sueeiciencz — Record- Owner.</p> <p>In 1889 a tract of land in the parish of St. Martin was assessed to A., a patentee from the state of Louisiana, and the records of the parish disclosed no alienation of the land by A. Held, that, the assessment was valid, although A. had previously conveyed the property to B. by unrecorded deed, and B. had conveyed the same to O. by duly recorded deed.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 139, 166; Dec. Dig. § 79.*]</p> <p>3. Taxation (§ 421*) — Assessment—Duplicate Assessment.</p> <p>There is no duplicate assessment where different tracts have been assessed by different sectional subdivisions. Acreage in an assessment necessarily refers to the land actually included therein.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec, Dig. § 421.*]</p> <p>4. Taxation (§ 730*) — Sale to State — Title Acquired.</p> <p>Under the provisions of Act No. 85 of 1888, where property was adjudicated to the state in 1890, and was not redeemed within the year from the date of the recordation of the tax deed to the state, held, that the state acquired a legal title to the property.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1463; Dec. Dig. § 730.*]</p> <p>Niehoils, J., dissenting.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Charles A. O'Niell, Judge.</p> <p>Action by David Duplechain against Olide C. Devilliers. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§§ 1045, 1171*) — Appeal-Remarks oe District Attorney — Reversal.</p> <p>The remark, by the district attorney, in his argument to the jury: “I do not ask you to convict the accused because he is a negro and the prosecutrix a white lady. I ask you to treat him as any other person being tried here, though I think that is a very good reason why he should 'be convicted” — was uncalled for and should have been omitted. On the other hand, if counsel for the accused attached serious importance to it, he should have requested the trial judge to rule upon his objection and have incorporated the ruling in his bill. And, finally, we are of opinion that the matter falls within our ruling, to the effect that: “To justify setting aside a verdict of a jury, approved by the trial judge, on the ground of intemperate or improper remarks by a district attorney, this court would have to be thoroughly convinced that the jury was influenced by such remarks, and, as well, that the remarks contributed to the verdict found.”</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2652, 2685; Dec. Dig. §§ 1045, 1171.*]</p>

N. Thompson, Judge. Leslie Sturgeon was convicted of forgery and of uttering and publishing forged instruments as true, and he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 967*) — Exemption prom Taxation — Property Employed in “Mining Operations” — “Mine.”</p> <p>Article 230 of the Constitution of 1898 provides: “There shall also be exempt from parochial and municipal taxes' for a period of ten years from the first day of January, 1900, the capital, machinery, and other property employed in mining operations.” A mining operation has to do with the working of a mine, and neither in the ordinary, nor in the scientific, acceptation of the term “mine,” is the term “oil well” included.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Dec. Dig. § 967.*</p> <p>Por other definitions, see Words and Phrases, vol. 5, pp. 4511, 4512.]</p> <p>2. Taxation (§ 204*) — Exemption—Construction op Statutes.</p> <p>Laws granting exemptions from taxation must be strictly construed, and so the operation of an oil well cannot be held to be within the exemption granted to those engaged in mining operations.</p> <p>[Ed. Note. — Por other cases, see Taxation, Cent. Dig. §§ 321, 322, 325, 332, 333; Dec. Dig. § 204.*]</p> <p>3. Taxation (§ 418*) — Assessment — Assessment in Improper Name — Waiver.</p> <p>If a corporation has been previously assessed in the name of the “Guffey Oil Company,” and has made no complaint, it cannot enjoin a seizure of its property to pay taxes on the ground that this is an illegal and insufficient assessment, as its name is the “J. M. Guffey Petroleum Co.” The name and description was sufficient to form the basis of a proper assessment.</p> <p>[Ed. Note. — Por other cases, see Taxation, Cent. Dig. §§ 707-710; Dec. Dig. § 418.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4. Words and Phrases — “Mine” — “Quarry.”</p> <p>A “mine” is a large opening into the ground made to obtain metal ores or coal, as distinguished from a “quarry,” which is a place where building stone or building_ material of any kind, as lime, cement, etc., is obtained.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, vol. 7, p. 5S81.]</p> <p>5. Mines and Minerals (§ 48*) — “Ore.”</p> <p>“Ore” is a metalliferous mineral or rock, especially one which is of sufficient value to be mined.</p> <p>[Ed. Note. — Por other cases, see Mines and Minerals, Cent.'Dig. § 134; Dec. Dig. § 48.* Por other definitions, see Words and Phrases, vol. 6, p. 5052.]</p> <p>6. Taxation (§ 233*) — Mineral Waters.</p> <p>Mineral waters are not classed as minerals; nor is mineral oil a mineral within the intendment of article 230, Const. 1898, which exempts from taxation property employed in mining operations.</p> <p>[Ed. Note. — Por other cases, see Taxation, Cent. Dig. § 134; Dec. Dig. § 233.*</p> <p>Por other definitions, see Words and Phrases, vol. 5, pp. 4513 — 4515; vol. 8, p. 7722.]</p>

<p> (Syllabus by the Court.) </p> <p>Commerce (§ 50*) — Interstate Commerce-Inspection oe Live Stock.</p> <p>An ordinance of a municipal corporation of this state, which requires, under penalty of fine and imprisonment, that all cattle, sheep, hogs, goats, and other live stock shall be inspected, on the hoof and before being slaughtered, by an officer appointed by the town authorities, as a condition to the sale, for food purposes, of the meats of such animals, practically excludes from the town market all meats taken from animals slaughtered in other states, or in this state at any considerable distance from the town, and contravenes the commerce clause (article 1, § 8) of the Constitution of the United States.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 48-53; Dec. Dig. § 50.*]</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Thomas Beebe and others were convicted of assault with intent to kill, and they appeal.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.</p> <p>Action by Putnam & Norman, Limited, against Mary D. Cooper and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Action by Mrs. Tessie Linemueller against John Arthur. Judgment for defendant, and plaintiff appeals.</p>

K. Skinner, Judge. In the matter of the succession of Henrietta Meyer, wife of M. Pericich, and another. From a judgment homologating the final account of the administrator of the succession, Catherine Weber, widow by first marriage of Rudolph Meyer, now the wife of Theophile Nevette, appeals.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Action by Jesse P. McGehee against Robert E. Keaton. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Indictment and Information (§ 121*) — Bill of Particulars — Sufficiency.</p> <p>Where three persons were jointly charged with unlawfully selling intoxicating liquors in a certain parish without a license, and one of them moved for a bill of particulars showing the material facts relied on for his conviction, such as date and place of sale, kind and quantity of liquor sold, name of seller, etc., held, that a bill of particulars merely stating the kind and quantity of liquors claimed to have been sold was manifestly insufficient.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 316-320; Dec. Dig. § 121.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Homicide (§ 190*) — Evidence—Threats.</p> <p>After hearing the testimony, showing that the accused was the aggressor and that the deceased had made no hostile demonstration, it was proper for the trial court to rule out any evidence offered by the accused, to prove prior threats.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 400; Dec. Dig. § 190.*]</p> <p>2. Criminal Law (§ 1171*) — Remarks oe District Attorney — Harmless Error.</p> <p>The making of an improper remark before the jury by the district attorney will not be ground for setting aside a verdict when the jury has received a proper instruction from the trial court that their verdict is to be based on the evidence and not on the remarks of counsel, and when the court does not believe that the remark prejudiced the rights of the accused. The remark complained of was not such an one as the trial court could not instruct away its possible effect.</p> <p>[Ed. Note. — For other cases, see Criminal Law, -Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.*]</p> <p>3. Witnesses (§ 393*) — Impeachment—Evidence at Coroner’s Inquest.</p> <p>It is permissible under proper instruction from the court as to the effect of the testimony to introduce testimony taken at the coroner’s inquest for the purpose of impeaching a witness. However, the court must instruct the jury that the testimony is not to be considered in determining the guilt of the accused, but is to be considered merely in judging of the credibility of the witness whose testimony is sought to be impeached.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 393.*]</p>

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; J. P. Madison, Judge.</p> <p>Action by John B. Reily against the New Orleans & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Mary; A. C. Allen, Judge ad hoc. Action by Walter. J. Suthon against Harry L. Laws in which defendant called his vendors in warranty. Judgment for defendant and plaintiff appeals.

Mary; A. C. Allen, Judge ad hoc. Action by Walter J. Suthon against Frank C. Viguerie, in which defendant called his vendors in warranty, praying judgment against them if plaintiff succeeded in his action. Judgment for defendant, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 224*) — Supreme Court — Jurisdiction — Amount in Controversy.</p> <p>In suits by landlords to eject tenants, the jurisdiction of the courts is determined by the amount of the monthly or yearly rental. Rev. St. _§ 2156. The Supreme Court has no jurisdiction of an action to annul a judgment rendered in such an ejectment suit, where the rental does not exceed $2,000.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 224,*]</p> <p>2. Courts (§ 484*) — Supreme Court — Transfer oe Cases.</p> <p>Act No. 56 of 1904 gives the Supreme Court the right to transfer cases to the Courts of Appeal, but imposes no mandatory duty in that respect.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 484.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Carriers (§ 331*) — Street Railroads — Injury to Passenger — Contributory Negligence.</p> <p>Where a passenger is permitted to stand on the front platform of a motor car, he has the right to assume that if there is any danger to him, requiring the closing of the gates of the platform, that they will be closed, and the same duty of closing these gates, when it is necessary for the protection of a passenger, rests upon an interurban railroad as upon a strictly city railroad.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1376; Dec. Dig. § 331.*]</p> <p>2. Carriers (§ 298*) — Street Railroads — Injury to Passenger — Negligence.</p> <p>The employés of a railroad company must use every care commensurate with the danger to a passenger, and where a motorman of a street car fails to sufficiently slow down his car in rounding a curve, and a passenger, who has been standing on the platform with the motorman, is thrown out by the consequent jolting and is injured, the railroad company is liable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1205; Dec. Dig. § 298.*]</p> <p>3. Carriers (§ 331*) — Street Cars — Injury to Passenger — Contributory Negligence.</p> <p>The fact that the rules of a railroad company provide that passengers may stand on the platform only when there are no seats in the car will not preclude a passenger from obtaining damages for the negligence of the car crew because there were seat's in the car and the passenger was riding on the platform with the sanction of the employés of the railroad company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1376; Dec. Dig. § 331.*]</p> <p>4. Damages (§ 95*) — Personal Injuries — Determination.</p> <p>• While there should be some similarity in the awards of damages for like injuries, still there is no exact rule for the measurement of damages, and the facts of each case must be the basis on which the amount in each case is predicated.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 222; Dec. Dig. § 95.*]</p> <p>Provosty, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 878*) — Failure oe Appellee to Answer — Amendment oe Judgment.</p> <p>If an appellee fails to answer the appeal, or pray for an amendment of the judgment of the lower court, it wall be accepted as correct by this court as far as he is concerned. It is too late for him to urge in argument that the demands of plaintiff are inconsistent, and that the judgment of the lower court, permitting him to urge both, should be set aside, and the court will do nothing to place the appellee in the same advantageous position that he would have acquired by appealing from the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573-3580; Dec. Dig. § 878.*]</p> <p>2. Limitation oe Actions (§ 30*) — Fraudulent Acts — Damages—Prescription.</p> <p>A notary public or commissioner, who fraudulently causes one to sign a deed, is guilty of a quasi offense for which he is responsible in damages, and the plea of the prescription of one year is a bar to recovery. This prescription begins to run from the date the damages accrue.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 141; Dec. Dig. § 30.*]</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by J. J. Burdin against the Police Jury of St. Martin Parish and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Action by the City of Shreveport against the Shreveport Traction Company. Judgment for defendant, and plaintiff appoals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§ 295*) — Collisions—Contributory- Negligence.</p> <p>Where the motorman of a street car, on approaching a steam railroad crossing, failed to stop, look, and listen for an approaching train at the street intersection, from which the train could have been plainly seen, held, that the motorman was guilty of contributory negligence, which bars recovery on his part, although the servants of the railroad company were at the same time negligent in not stopping their train before it reached the crossing, as required by city ordinance.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 940-942; Dec. Dig. § 295.*]</p> <p>2. Railroads (§ 295*) — Collision at Crossing — Last Clear Chance.</p> <p>In such a ease, the trainmen on seeing the car approaching the crossing had the right to presume that the motorman would exercise his senses so as to avoid a collision by stopping his car short of the crossing; and as the trainmen were keeping a proper lookout, and as soon as they discovered the danger, did all that could have been reasonably expected of them to stop the train, there is no room for the application of the doctrine of the last clear chance.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 940-942; Dec. Dig. § 295.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Bankruptcy (§ 264*) — Trustee’s Sale — Contracts — Delivery and Acceptance.</p> <p>Where a trustee in bankruptcy sold certain property to defendant, and, those interested in the bankrupt’s estate believing an approval of the contract by the court essential, it was agreed that 10 days should be allowed to obtain the same, and after that period had expired, without the sale being confirmed, the buyer withdrew therefrom, there was no completed contract of sale.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 264.*]</p>

Ellis, Judge. f“ Spencer Thomas was convicted under an indictment charging him with willfully and with malice aforethought shooting at another with intent to commit murder, and he apj__peals.

<p> (Syllabus by the Court.) </p> <p>1. Eminent Domain (§ 318*) — Expropriation —Extent of Rights 'Acquired.</p> <p>Defendant brought expropriation proceedings for a right of way across the low lands of what was formerly Silver Lake, and as it failed to expropriate any of the hill lands, on which the track in controversy now stands, it acquired no rights to these higher lands.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dec. Dig. § 318.*]</p> <p>2. Eminent Domain (§ 325*) — Expropriation —Reverter upon Termination op Use.</p> <p>■ The land expropriated by a railroad company for its right of way reverts back to' the owner when it has ceased to be used for the purpose for which it was expropriated, as the ownership of the soil continues in the owner from whom the land was taken for the servitude.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 854-856; Dec. Dig. § 325.*]</p> <p>3. Eminent Domain (§ 180*) — Expropriation Proceedings — Necessary Parties — Owners oe Land Sought to be Taken.</p> <p>In order for a railroad to acquire title to its right of way by expropriation it is necessary that the owners of the land should be cited and duly made parties to the expropriation proceedings.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 489; Dec. Dig. § 180.*]</p> <p>4. Adverse Possession (§ 13*) — Prescription of Ten Years.</p> <p>Possession and a title translative of property are necessary as a basis to support the prescription of 10 years.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65-76; Dec. Dig. § 13.*]</p> <p>5. Real Actions (§ 7*) — Petitory Actions— Defenses.</p> <p>A defendant in a petitory action cannot demand that the plaintiff should proceed against the vendors of the defendant for the price paid for it. The right of the owner is against the one claiming the ownership of the property, and this right cannot be defeated by any contract entered into by the defendant and a third party.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent.'Dig. §§ 21-25; Dec. Dig. § 7.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Action by M. L. Cooke against the Gulf Refining Company of Louisiana. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Homicide (§ 129*) — Murder— Sufficiency of Indictment — “With Malice Aforethought.’’</p> <p>The words “with malice aforethought” are equivalent to the words of the statute, “of his malice aforethought,” and clearly convey the meaning of the statute and fully state the elements of the crime so as to apprise the accused of the crime with which he is charged. The words used are therefore sufficient. State v. Humphries, 35 La. Ann. 966; State v. Mosely, 42 La. Ann. 975, 8 'South. 470.</p> <p>[Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 197, 198; Dec. Dig. § 129.*</p> <p>For other definitions, see Words and Phrases, vol. 8,. pp. 7490-7492.]</p> <p>2. Criminal Law (§ 1099*) — Bills of Exceptions — Judge’s Addenda.</p> <p>While a trial judge should make up his own statement of facts as addenda to the bill of exceptions, still his acceptance of the statement of facts made by the district attorney as correct is not sufficient ground for setting aside a verdict.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1099.*]</p> <p>3. Witnesses (§ 372*) — Cross-examination-Proof of Relationship Between Witness and Accused — Appeal — Review — Discretion of Court.</p> <p>The refusal of the trial judge to sustain an objection to a question on cross-examination as to the relationship between the witness and the accused, when nothing relating to this kinship had been brought out on direct examination, is not reversible error. This is one of the questions whose decision is in the discretion of the trial judge. 3 Jones on Criminal Law, p. 811. The ruling of the trial court was correct, for it is competent to prove relationship between a witness and the accused on cross-examination, even though the matter has not been touched upon in the direct examination.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]</p> <p>4. Witnesses (§ 388*) — Impeachment—Necessity eor Foundation.</p> <p>In order to impeach a witness, a foundation must first be laid by asking tbe witness if he had not made the contradictory statement attributed to him, and then, if he denies it, witnesses may be introduced to impeach him. The witness is entitled to be heard before any attempt is made to impeach him.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1233-1242; Dec. Dig. § 388.*]</p> <p>5. Witnesses (§ 321*) — Impeachment — Impeachment oe Own Witnesses by Accused.</p> <p>An accused who is not taken by surprise cannot impeach his own witness.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1094. 1099-1100; Dec. Dig. § 321.*]</p> <p>6. Witnesses (§ 372*) — Cross-Examination— Showing Relationship to Other Witnesses.</p> <p>• The state may on cross-examination of a witness for the defense ask as to the relationship of this witness to another witness, who is related to the accused and who has testified in his behalf, so that the jury may decide the credibility of the witness under cross-examination.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]</p> <p>7. Witnesses (§ 319*) — Impeachment — Accused.</p> <p>An accused who has testified may be impeached like any other witness, and the state may. introduce witnesses to show a state of facts different from that shown by the testimony of the accused. However, the witnesses introduced to impeach the accused can be questioned only as to facts pertinent to tbe issue.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1087-1093; Dec. Dig. § 319.*]</p> <p>8. Criminal Law (§§ 419, 420*) — Homicide (§ 203*) — Evidence—Declarations—Hearsay.</p> <p>The account of the shooting given by the deceased at a time when he did not believe he was going to die from, his wounds cannot be introduced in evidence as it would be mere hearsay, and, as the deceased did not believe that he was dying, it does not come within the rule of dying declarations.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. §§ 419, 420;* Homicide, Cent. Dig.. §§ 430-437; Dec. Dig. § 203.*]</p> <p>9. Criminal Law (§ 1128*) —< Appeal — EX Parte Aeeidavits.</p> <p>Ex parte affidavits to show prejudice against an accused such as to have denied him a fair trial will not be considered on appeal.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2952; Dec. Dig. § 1128.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>10. Criminal Law (§ 1170%*) — Appeal — Harmless Error — Exclusion oe Questions Asked Witness.</p> <p>In a murder case, the exclusion of a question asked a physician as an expert, whether from the nature and character of the wounds he did not consider that, if decedent had remained at the sanitarium during the entire time of his illness, he would not have stood a better chance for his recovery, was not prejudicial where the bill of exceptions showed that the objection was that the question was hypothetical in form, and not predicated on anything which had been proved, and that the question first propounded was changed by counsel for the defense, and in its changed form was answered by' the witness, since no other inference can be drawn from the ruling and statement in support thereof than that the information sought was given by the expert.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.*]</p> <p>11. Criminal Law (§ 1170%*) —Appeal — Harmless Error — Rulings on Evidence.</p> <p>A ruling of court permitting the district attorney to ask a witness a certain question over accused’s objection was not prejudicial, where the district attorney, after the ruling, withdrew the question.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1170%.*]</p>

<p>Action by the Louisiana Railway & Navigation Company against IC D. Holly. Judgment for defendant. Plaintiff applied for writ of certiorari.</p>

<p> (Syllabus by the Court.) </p> <p>1. Contracts (§ 176*) — Partnership (§§ 5,20*) —Usury (§ 102*) — Construction of Contract-Question of Pact — Existence of Partnership Relation — Question of Law —Transaction Constituting Usury.</p> <p>What may be the terms of a particular contract is a question of fact. Whether the contract, as made, establishes the partnership relation, is a question of law. A loan of money, in consideration of an obligation to pay a fixed sum for its use, is not a contract of partnership ; and, where the amount agreed to be paid exceeds the rate of conventional interest allowed by law, the contract is usurious, and the whole amount of interest paid is recoverable, save where included in a negotiable note or bond, etc.</p> <p>[Ed. Note. — For other, cases, see Contracts, Cent. Dig. §§ 767-770; Dec. Dig. § 176;* Partnership, Cent. Dig. §§ 6, 7, 15, 16; Dec. Dig. §§ 5, 20;* Usury, Cent. Dig. §§ 241-258; Dec. Dig. § 102.*]</p> <p>2. Usury (§ 75*) — Amount Represented by Usurious Note Merged with Another Loan.</p> <p>Where, however, the amount represented in such note is, by consent and upon the theory that the agreement will be maintained, merged with another loan, for which usurious interest is agreed to be paid, and paid, the holder of the note, upon being condemned to refund the interest received under the merger, may fall back upon such note with regard to the interest which he might otherwise have collected thereon.</p> <p>[Ed. Note. — For other cases, see Usury, Dec. Dig. § 75.*]</p> <p>3. Compromise and Settlement (§ 15*) — Settlement of Business Transaction — Effect.</p> <p>A settlement of business transactions, where, with full knowledge of all material facts, money is accepted and a receipt in full given, will not be disturbed in the absence of allegation and proof of error or fraud.</p> <p>[Ed. Note. — Eor other cases, see Compromise and Settlement, Cent. Dig. §§ 51-53; Dec. Dig. § 15.*]</p>

Taxpayer’s suit by the Houston River Canal Company, Limited, and others against D. J. Reid, Tax Collector, and others to restrain the collection of a tax in 1908 voted in aid of the Kansas City, Shreveport & Gulf Railway Company^ Judgment for defendants, and complainants appeal.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; E. F. Brunot, Judge.</p> <p>Action by Morgan’s Louisiana & Texas Railroad & Steamship Company and others against the Railroad Commission of Louisiana. Judgment for defendant, and plaintiffs appeal.</p>

F. Blackman, Judge. Action by the heirs of Adam Hoffman against John R. Hunter, District Attorney, in which one James E. Miller was interposed. Judgment for defendants and. plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Railroads (§ 94*) — Crossing Over Railroad — Ordinances—Reasonableness.</p> <p>An ordinance of the city of Shreveport, enacted under its charter (Acts 1898, No. 158), giving it full power over its streets and bridges, etc., makes it unlawful to erect any overhead wooden bridges over any railroad, or make any substantial repairs to such bridges heretofore erected, and requires that all such bridges be built of metal, stone, or concrete, or combinations thereof, and imposes a fine for its violation. Held, that the ordinance was reasonable.</p> <p>[Ed. Note. — For other cases, see Railroads. Cent. Dig. §| 266-273; Dec. Dig. § 94.*]</p> <p>2. Railroads (§ 94*) — Crossing Over Railroad — Ordinances—Violation—‘ ‘ Substantial Repair.”</p> <p>The repair of a wooden viaduct, under which railroad tracks ran and over which the street was carried, by changing 40 per cent, of the materials, was a “substantial repair,” within the meaning of the ordinance.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 266-273; Dec. Dig. § 94.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Trial (§ 84*) — Objections to Evidence-Certified Records of Judicial Proceedings.</p> <p>Objections to the admission of evidence of duly authenticated copies of proceedings of a court of a sister state that the papers on their face show that they are not a complete transcript of the entire proceedings, that there is in the transcript no signed judgment, and that the court in the sister state was without jurisdiction, go to the effect and not to the admissibility of the evidence, and the authenticated record is properly received in evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 216; Dec. Dig. § 84.*]</p> <p>2. Divorce (§ 88*) — Actions — Pleading — Judgment.</p> <p>An action for divorce brought by a wife in Louisiana against the husband who had obtained a divorce in Texas, and then returned to Louisiana and married another woman, is not an action in nullity of judgment, 'but is an ordinary divorce suit, and the unnecessary allegation in the petition as to the Texas judgment and its invalidity for want of jurisdiction of the court does not affect the Case.</p> <p>[Ed. Note. — For other cases, see Divorce, Dec. Dig. § 88.*]</p> <p>3. Divorce (§ 11*) — Interest of PublicEstoppel.</p> <p>The married status of parties is a matter of public interest, and the parties can neither dissolve 'the marriage by consent nor make it indissoluble by consent, and, where one of them has a cause for divorce, the state will not deny a divorce on the ground of estoppel, though the estoppel may be available as against the action for a settlement of community property.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 472; Dec. Dig. § 11.*]</p> <p>4. Divorce (§ 108*) — Pleading — Proof of Allegations.</p> <p>The allegations of a petition in a suit for divorce must be accepted as true for the purposes of the trial of the plea of estoppel.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 352; Dec. Dig. § 10S.*]</p> <p>5. Estoppel (§ 61*) — Estoppel Against Estoppel-Conduct Induced by False Representations.</p> <p>Where the conduct of a wife on which the husband relies as an estoppel to defeat her action for divorce was induced by his fraudulent representations, he cannot invoke the estoppel against her.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 149; Dec. Dig. § 61.*]</p> <p>6. Judgment (§ 951*) — Res Judicata — Foreign Judgment — Presumptions.</p> <p>Where, in an action by a wife for divorce, she alleged that a judgment of divorce obtained by the husband in a sister state was void for want of jurisdiction, and that she was entitled to a divorce on the ground that he had married another woman with whom he was living, and the husband pleaded the judgment as res judicata, and offered it in evidence, the wife must show the facts rendering it invalid, and on her failure to do so the presumption of its validity must prevail.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1809; Dec. Dig. § 951.*]</p> <p>7. Evidence (§ 340*) — Judicial Records — Authentication.</p> <p>A foreign judgment duly certified as a judgment of a court of record of a sister state will be accepted as a judgment in due form, though it is not signed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1294; Dec. Dig. § 340.*]</p>

F. Brunot, Judge. Petition by the State, on the relation of the Sewerage and Water Board of New Orleans and others, for writ of mandamus to John T. Michel, Secretary of State. From a judgment granting the writ, defendant appeals.

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§§ 331, 332*)— Street Improvement — Selection oe Paving Material by City.</p> <p>Under the provisions of Act No. 10 of 1896, empowering cities to improve streets and alleys and to levy special taxes on abutting real estate and railroads, the paving material must be selected by the council before bids are invited, and the bids must be for cash.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 856-858; Dec. Dig. §§ 331, 332.*]</p> <p>2. Municipal Corporations (§ 918*) — Local Improvements — Paving Bonds — Validity.</p> <p>Where by a vote of the taxpayers a city council was authorized to levy special taxes and to issue negotiable bonds for paving purposes, the insertion in the submission ordinance of a provision that the bonds may be negotiated for work does not affect the validity of the bond issue.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations Cent. Dig. §§ 1919-1923; Dec. Dig. § 918.*] ■</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Mary Jane Jones was convicted of arson, and she appeals.</p>

<p> (Syllabxts by the Court.) </p> <p>Succession — Appeal and Error (§ 907*)— Sale to Son — Collation—Valuation—Review.</p> <p>Property conveyed by a father to a son, by an act purporting to be a sale, for cash, is subject to collation, upon the death of the father, when there has been no real consideration, there being nothing to show that it was intended as an extra portion; and, where such property has been sold, the son may be required to collate it according to its value at the time of the opening of the father’s succession. But, where the record fails to show when the succession was opened, the valuation fixed by the trial judge will be presumed, in the absence of satisfactory evidence to the contrary, to be correct.</p> <p>[Ed. Note. — Por other cases, see Descent and Distribution, Cent. Dig. §§ 402, 421; Dec. Dig. §§ 98, 112;* Appeal and Error, Cent. Dig. §§ 3673-3678; Dec. Dig. § 907.*]</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Action by Cassie Cutno against Weil Bros.; Dr. J. T. Bringier being called as warrantor. Judgment for plaintiff, and defendants and warrantor appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 1175*) — Review— Evidence.</p> <p>In a case where the appellants ask that the case be not remanded to take a new survey of land in controversy, and the appellee does not urge the necessity of a remand, the court will consider the evidence and the survey already made, though it is admittedly not altogether satisfactory, and give judgment, instead of remanding the case to have a new survey made, when there is no assurance that a better survey will be obtained.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. | 1175.*]</p> <p>2. Evidence (§ 372*) — DocumentArt Evidence-Ancient Document.</p> <p>A document found in the possession of a defendant, and which purports to be an act translative of property signed 25 years previous to its production, and never recorded, cannot be introduced by the defendant under the rule relating to ancient documents, without evidence showing that it was signed on the date that appears on it.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. § 372.*]</p> <p>3. Evidence (§ 353*) — Documentary Evidence-Acts oe Sale.</p> <p>A purported act of sale not signed by one of the parties to the act does not evidence the consent of the parties, and as it cannot pass, title it is inadmissible as evidence of a title in a suit between the descendants of the parties.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1418; Dee. Dig. § 353.*]</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Charles A. O’Neill, Judge.</p> <p>Action by Linnie S. Thompson against Citarles F. Emery, Jr.; her husband. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Action by James Pertue against the Louisiana-Western Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

W. Ellis, Judge. Action by Marie L. Delay, widow, etc., and others, against the New Orleans Land Company. Judgment for defendant, and plaintiff named appeals.

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 272*) — Power to Establish Electric Light Plant— Construction of Statutes.</p> <p>The town of Houma has adopted Act No. 136 of 1898, which provides that a municipality which avails itself of the provisions of the act shall have the authority to purchase property, real and personal, for all municipal purposes, and especially includes electric lights. The municipality therefore has the right to provide for lights, and to that end may erect and maintain a lighting plant and system.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 727; Dec. Dig. § 272.*]</p> <p>2. Municipal Corporations (§ 897*) — Power to Establish Electric Light Plant-Construction of Statutes.</p> <p>Act No. 136 of 1898 is a general law providing for the organization of municipalities throughout the state,- and is repealed in so far as it conflicts with the provision of Act No. 17 of 1902 and of Act No. 32 of 1902. Under Act No. 17 of 1902 a municipality may erect and maintain a lighting system and may pay for these lights out of the revenues from licenses_ levied by it; and under Act No. 32 of 1902 it has the power to apply the excess of revenues over current expenses of subsequent years to' the maintenance of this- lighting system. This power carries with .it the correlative power of issuing certificates, as evidence of the obligation incurred by the municipality for this lighting system, to be paid out of the revenue of future years within the statutory limitation.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1881, 1882; Dec. Dig. § 897.*]</p> <p>3. Municipal Corporations (§ 321*) — Contracts — Improvements Payable Out of Revenues of Future Years.</p> <p>A contract made by a municipality for some public improvement, payable out of the revenues of future years, will not be interfered with by this court when the evidence shows that it is reasonable, and that the financial condition of the municipality is such as to warrant the belief that the future revenues will be sufficient to pay for it without exceeding the limit of taxation.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 837-840; Dec. Dig. § 821.*]</p> <p>4. Electricity (§ 1%*) — Establishment oe Plant by Municipality — Eeeect oe Prior Franchise.</p> <p>The granting by a municipality of a franchise to operate a lighting system does not confer an exclusive privilege on the grantee, and does not prevent the municipality from subsequently erecting a system of its own.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § iy2.*]</p>

So Relie, Judge. Action by the First National Bank of Lees-ville against S. P. Martin and others, in which Joseph M. Cavanaugh and others in-, tervene. Judgment for plaintiff, and interveners appeal.

Sorelle, Judge. Action by the Pirst National Bank against S. P. Martin and others, garnishees. James M. Cavanaugh and others intervene. Judgment for plaintiff, and garnishees appeal.

<p> (Syllabus by the Court.) </p> <p>1. Vendor and Purchaser (§ 233*) — Bona ' Fide Purchasers — Bights as Against Prior Conveyance Not Begistered.</p> <p>An unregistered sale of real estate is void as to third persons, and, in the absence of fraud alleged and proved against him, the vendee, under a conveyance, later in date, but earlier in registry, acquires a good title against the vendee under a conveyance earlier in date, but later in registry.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 563-566; Dec. Dig. § 233.*]</p> <p>2. Vendor and Purchaser (§ 233*) — Attorney and Client (§ 176*) — Contract to Convey for Attorney’s Fee — Becording in Mortgage Book — Effect—Lien for Fee.</p> <p>A written instrument of date July 31, 1903, recorded in the mortgage book, whereby a client agreed to convey to his attorney a half interest in real property, then the subject of litigation, or to pay him one-half the amount for which the property might be sold, in consideration of ibis services in instituting and prosecuting the litigation to final judgment, is not effective, ,as against one who purchased the property from the client in 1905, because (apart from other considerations) not registered in the conveyance book; nor can it be given any effect as preserving a privilege for the attorney’s fee, since the law at that time accorded such privilege only upon the judgment to be obtained, and did not extend it to the property recovered or to be recovered as a result of the judgment. .</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 563-566; Dec. Dig. § 233 ;* Attorney and Client, Cent. Dig. § 381; Dec. Dig. § 176.*]</p>

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

<p>Mike Winfield was convicted of assault and battery, and applies for writs of certiorari and prohibition.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Master and Servant (§ 129*) — Injuries — Proximate Cause.</p> <p>A railroad company is not liable for the death of an engineer, caused by running into an ordinary railroad switch which was opened by a train wrecker by removing a bolt after it had been securely closed, though there was no switch light at the switch; the act of the train wrecker being the proximate cause of the engineer’s death, which would not have been prevented by a switch light, the purpose of which is, not to light the rail, but merely to give signals.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]</p>

<p> (Syllabus by the Court.) </p> <p>Homicide (§ 340*) — Instructions.</p> <p>An instruction, in effect, to the jury to find the accused guilty of manslaughter, if the evidence showed that the accused was present when the homicide was committed by his co-defendant on a sudden altercation, and that the accused assisted in the flight of his codefendant after the killing, is erroneous in law, and was well calculated to confuse and mislead the jury, as the doctrine thus announced, if applicable to manslaughter, is also applicable to murder. A misstatement of law on a material point is presumed to have prejudiced the accused.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Gent. Dig. §§ 715-720; Dec. Dig. § 340.*]</p>

Ada Hayes was charged with selling intoxicating liquors without a license, and moved to recuse the presiding judge. Motion to recuse overruled, and she applies for writs of prohibition and certiorari.

Action by G. W. Long against the Charles A. Kaufman Company, Limited. Judgment for plaintiff, and defendant applies for writs of mandamus and prohibition to compel the granting of a suspensive appeal.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; James Wilkinson, Acting Judge.</p> <p>Cleveland Jones and another were convicted of feloniously carrying away oysters and shells, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mortgages (§ 535*) — Sale Under First Mortgage — Extinguishment oe Subsequent Mortgages.</p> <p>A judicial sale under a first mortgage extinguishes and cancels all subsequent mortgages and privileges where no surplus of the price remains for distribution. In such a case the debts secured by inferior privilege and mortgage become mere ordinary claims.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1556; Dec. Dig. § 535.*]</p> <p>2. Homestead (§ 96*) — Exemption—Debt eor Purchase Price— ‘Purchase Price.”</p> <p>The exception of debts for “the purchase price of property” from homestead exemption under article 245 of the Constitution does not include a debt resulting from a former sale of the same property to the defendant in a case where he was evicted by the foreclosure of a prior mortgage, and afterwards acquired a new title to the property.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig §§ 147-153; Dec. Dig. § 96.* . ,</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 5857, 5858.]</p> <p>3. Mortgages (§ 516*) — Foreclosure Sale-Rights oe Purchaser.</p> <p>When a purchaser at sheriff’s sale buys for himself and pays the price out of his own money, he is not a person interposed, although he may have agreed to sell to the defendant in execution.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1518; Dec. Dig. § 516.*]</p>

K. Skinner, Judge. Suit by Martin Behrman, Mayor of the City of New Orleans, against the Louisiana Railway & Navigation Company, to restrain defendant from claiming rights under an alleged contract with the city for construction and use of a part of a belt railway. Decree for complainant and defendant appeals.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Charles A. O’Niell, Judge.</p> <p>Action by the American Machinery & Construction Company against Samuel Haas. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Patents (§ 215*) — Acceptance—Enforcement.</p> <p>The evidence shows that the defendant offered to buy a cane machine if it were patented and, as this offer was not accepted by plaintiffs and the machine never patented by them, they cannot hold the defendant on the proposed contract.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 215.*]</p> <p>2. Patents (§ 215*) — Contract — Breach — Evidence.</p> <p>Defendant is not responsible to plaintiffs because a business associate of the plaintiffs transferred to him a machine on which the caveat in favor of plaintiffs and their business associates had expired, and for causing a patent t(> be issued on this machine, especially as lie did not know that it was the same machine as owned by the plaintiffs.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 215.*]</p>

M. Burns, Judge. Application by E. W. Ott for a respite from his creditors. A majority of the creditors granted the respite, and subsequently the debtor ruled W. B. Thompson & Co., as objecting creditors, to show cause why they should not accept the tender of an installment of their claim. The rule was made absolute, and Thompson & Co. appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Witnesses (§ 274*) — Cross-Examination— Character oe Accused.</p> <p>Where a witness had testified to defendant’s general good character, he was properly required to state on cross-examination whether defendant had not been suspected of selling liquors without a license.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 965, 966; Dec. Dig. § 274.*]</p> <p>2. Witnesses (§ 274*) — Character Witness-, Cross - Examination .</p> <p>A character witness can be cross-examined concerning what he has heard about defendant, though not as to his knowledge of particular acts.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 965, 966; Dec. Dig. § 274.*]</p> <p>3. Intoxicating Liquors (§ 223*) — Wrongful Sale — Offenses—Omission—Time.</p> <p>Where an indictment for wrongfully selling liquor without a license charged that the offense was committed on August 4, 1910, the state was entitled to offer evidence of a sale made by accused on the 18th following'; time not being of the essence of the offense.</p> <p>[Ed. Note.1 — Por other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-274; Dec. Dig. § 223 ;* indictment and Information, Cent. Dig. U 540-542.]</p> <p>4. Intoxicating Liquors (§ 223*) — Evidence —Other Offenses.</p> <p>Where under an indictment for wrongful sale of liquors without a license, alleged to have been committed on August 4, 1910, the state offered evidence and relied on a sale alleged to have been made on August 18th following, the state could not thereafter prove an alleged wrongful sale in the preceding December.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-274; Dec. Dig. § 223,*]</p>

King, Judge. In the matter of the succession of Emily Louise Hart. From an order requiring the judicial depositary to turn over to the Canal-Louisiana Bank & Trust Company, the tutor ad bona of a minor heir, property held on deposit, said depositary, the Metropolitan Bank of the City of New Orleans, appeals.

<p> (Syllabus by the Court.) </p> <p>1. Contracts (|§ 116, 117*) — Validity — Agreement Not to Pursue Particular Calling.</p> <p>The law will not permit a man to bind himself, by contract, not to pursue, at any time or place, the calling whereby he earns his livelihood, because, being so bound, he may become a charge upon the community. But contracts whereby men bind themselves never thereafter to pursue a particular calling, within reasonable geographical limits, or not to pursue such calling at all within a reasonable time, are generally upheld.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 542-569; Dec. Dig. §§ 116, 117.*]</p> <p>2. Injunction (§ 61*) — Violation oe Contract.</p> <p>A petition which sets up a contract whereby the defendant sold the insurance business carried on by him “at Franklin,” and agreed not to enter the insurance business in opposition to his vendees, and which alleges, in effect that two of the wards of the parish of St. Mary are not within the field from which opposition is excluded, and that the vendor has violated the contract by engaging in the insurance business in the town of Franklin, and prays for an injunction and damages, discloses a cause of action.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 120-123; Dec. Dig. § 61.*]</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Philip S. Pugh, Judge.</p> <p>Action by J. Edward Crusel against R. E. Brooks. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1.Vendor and Purchaser (§ 228*) — Bona Fide Purchaser — Unrecorded Contracts.</p> <p>The law is that all contracts affecting immovable property which shall not be recorded in the parish where the property is situated “shall be utterly null and void, except as between the parties thereto,” and that knowledge of such an unrecorded contract is not equivalent to its registry, and does not affect the rights of a third person acquiring the property upon the faith of the recorded title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 228.*]</p> <p>2. Real Actions (§ 7*) — Petitory Action-Adverse Possession.</p> <p>Article 2656 of the Civil Code has no application in a case where a third person holds adverse possession of immovable property which is given in payment, by public act, the donor of which delivers possession so far as he has it, and the defendant in the petitory action, resisting the demand of the donee for possession, sets up the nondelivery for which he alone is responsible.</p> <p>[Ed. Note. — For other cases, see Real Actions, Dec. Dig. § 7.*]</p> <p>3. Real Actions (§ 8*) — Petitory Action— Liability for Rents and Revenues.</p> <p>A defendant in a petitory action, relying on an alleged verbal title, which is not sustained by the evidence, is liable to plaintiff (holding under a written, recorded, title), as a possessor in bad faith, for rents and revenues.</p> <p>[Ed. Note. — For other cases, see Real Actions, Dec. Dig. § 8.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Mrs. Mary Ellen Lynch against the American Brewing Company and others. Judgment of dismissal, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Abatement and Revival (§ 69*) — Death oe Parties Pending Disposition on Appeal.</p> <p>Under court rule 13 (47 South, viii), providing that, when pending an appeal either party shall die, his proper representative may voluntarily come in and be substituted a party, and thereupon the case shall be heard as in other cases, an application by the administrator and heirs of a party who dies pending an application for a rehearing to be made parties authorizes the court to dispose of the application for a rehearing, and its action in so doing is a recognition of the presence of the administrator and heirs.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Dec. Dig. § 69.*]</p> <p>2. Appeal and Error (i§ 1200*) — Disposition oe Case on Appeal — Expect.</p> <p>The proper forum in which to seek relief against an irregularity in a judgment of the Supreme Court, based on the fact that the heirs and administrator of a deceased party were not made parties, is in the Supreme Court, and the trial court may not enjoin execution of the judgment as having been irregularly rendered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4672; Dec. Dig. § 1200.*]</p> <p>3. Appeal and Error (§ 1198*) — Disposition ox Cause on Rehearing — Expect.</p> <p>The defeated party may not urge errors in a judgment of the Supreme Court after denial of a rehearing, and he may not resort to an injunction in the lower court to enjoin execution of the judgment of the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1198.*]</p>

Mary; Charles A. O’Neill, Judge. In the matter of the opposition of Fred Alexander to the application of Edith Alexander to be appointed tutor to the succession of Martha Alexander, deceased. From a judgment appointing the applicant as tutrix, the opponent appeals.

In the Matter of the Succession of Theogene Bertrand and wife. From an order removing Elair Landry, executor, and amending his account, the administrator and the opponents appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by Warren Washington and others against Frank Filer and others. Judgment for plaintiffs, and defendants appeal.</p>

Tammany; Thomas M. Burns, Judge. Proceedings for settlement of the succession of Jacques Pelloat. From the judgment decreeing decedent’s widow her marital fourth, certain persons appeal.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>In the matter of the succession of Hortense I-Ionore. From a judgment annulling the will, Estelle Hubbard, executrix, appeals.</p>

Mandamus by the State, on relation of W. D. Goff and others, against Ed. Sawyers. An appeal from a judgment for relators was dismissed by the Court of Appeal. A rule was taken by relators upon respondent to show cause why judgment should not be enforced, and respondent applies for writs of certiorari and prohibition.

C. W. Ellis, Judge. In the matter of the succession of Julia Pike Drysdale. From an order allowing the probate of a will, the legal heirs appeal.

Action by the Bank of West Feliciana against J. H. Clack, Sheriff, and others. The Court of Appeal affirmed a judgment for defendants, and plaintiff applied for certiorari or writ of review to the Court of Appeal.

Sommerville, Judge. In the matter of the Succession of Elizabeth C. Maloney. Proceedings by Thomas B. Begg, purchaser at sheriff’s sale, that the will of the decedent be probated. Judgment ordering the will to be filed and quieting usufructuary rights of Dr. Maloney. Petitioner and certain of the defendants appeal.

Action by D. H. Sanders against the Illinois Central Railroad Company. On defendant’s application for certiorari or writ of review, to review a judgment for plaintiff.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Application by Peter P. Van Vleet for the appointment of a receiver of the Evangeline Oil Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Sales (§ 174*) — Breach—Right to Damages.</p> <p>A party cannot claim damages for the nonperformance of a contract as to which he himself is in default.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 174.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Homicide (§ 188*) — Assault with Intent to Iviix — Evidence—Character oe Prosecuting Witness.</p> <p>Where defendant in a criminal prosecution, charged with shooting with intent to murder, is shown to have been the aggressor from the beginning, and never to have receded from that position, he does not acquire, as incident to the plea of self-defense, the right to prove the dangerous character of the man whom he was attacking.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.*]</p> <p>2. Witnesses (§ 3S3*) — Impeachment—Collateral Facts.</p> <p>Where, from the recitals of a bill of exception, it appears either, that defendant attempted to impeach a state witness with reference to immaterial and collateral facts, to which he had testified, or by testimony (of the impeaching witness) as to immaterial and collateral facts, the exclusion of the testimony furnishes no ground for reversal.</p> <p>[Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § 383.*]</p> <p>3. Criminal Law (§ 656*) — Statements in Presence of Jury — Request to Withdraw Jury.</p> <p>The fact that the trial judge, in the presence of the jury, in a criminal prosecution for shooting with intent to murder, sustains an objection to testimony going to show the dangerous character of the man who was shot, on the ground that no overt act on his part immediately preceding the shooting had been proved, is not a good ground for the setting aside of the conviction, where it does not appear that any request for the withdrawal of the jury was made.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 656.*]</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of St. James; Paul Leche, Judge.</p> <p>Action by Mrs. Josephine Poirier and others against the Burton-Swartz Cypress Company. From a judgment for plaintiffs, defendant appeals.</p>

C. W. Ellis, Judge. Action by Ivan F. Siekmann against Pierre L. Vergez, by E. L. Schlieder against the same defendant, and by John J. Kreher against the same defendant. Judgments for defendant, and plaintiffs appeal.

<p> (Syllabus by the Gourt.) </p> <p>1. Lakceny (§ 88*) — Repeal op Statute-Punishment.</p> <p>Act No. 107 of 1902 is repealed by Act No. 64 of 1910.</p> <p>The penalty for violating the old statute is changed in the new and repealing statute.</p> <p>[Ed. Note. — For other cases, see Larceny, Dec. Dig. § 88.*]</p> <p>2. Constitutional Law (§ 203*) — Reteal oe Statute — Saving Clause — Necessity.</p> <p>Change in the penalty, without a saving clause, has the effect of releasing those prosecuted under the repealed law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 584-590; Dec. Dig. § 203.*]</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Ulysse Guillory was convicted of larceny, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Statutes (§ 80*) — Special Laws — Creation of “Corporation.”</p> <p>Act No. 260 of 1910, creating a school board for ward 4, including the town of Tallulah, parish of Madison, violates article 4S of the Constitution, prohibiting the creation of corporations by special legislation, and is therefore null and void.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 86-89; Dec. Dig. § 80.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1608-1621; vol. 8, pp. 7619, 7620.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Bills and Notes (§ 132*) — Conditions — Effect.</p> <p>A seller of lumber, who, after default in delivery, accepted a note for part of the price, is bound by provision therein conditioning payment on performance of the contract.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 316-324; Dec. Dig. § 132.*]</p> <p>2. Sales (§ 89*) —Contracts—Modification —Evidence—Sufficiency.</p> <p>Evidence held insufficient to show a verbal modification of a contract to sell lumber permitting delivery of grades of oak not specified in the original contract.</p> <p>[Ed. Note. — For other oases, see Sales, Cent. Dig. § 251; Dec. Dig. § 89.*]</p> <p>3. Compromise and Settlement (§ 23*) — Terms — Evidence—Sufficiency.</p> <p>Evidence held to show that a compromise agreement under a contract to sell lumber did not correctly describe all the timber the buyer was to receive.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlément, Cent. Dig. § 94; Dec. Dig. § 23.*]</p> <p>4. Attachment (§ 357*) — Sequestration (§ 21*) — Premature Levy — Liability.</p> <p>A seller of lumber, having failed to complete delivery as required by the note given for part of the price, is liable for premature issuance of writs of attachment and sequestra'tion in a suit on the note.</p> <p>[Ed. Note.' — For other eases, see Attachment, Cent. Dig. §§ 1307, 1309, 1310; Dec. Dig. § 357;* Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. § 21.*]</p> <p>5. Compromise and Settlement (§ 20*) — Interdependent Conditions.</p> <p>A seller, having failed to keep his part of the compromise agreement, cannot rely on a provision therein making a conditional note absolute.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 83-88; Dec. Dig. § 20.*]</p> <p>6. Sequestration (§ 5*) — Grounds.</p> <p>A seller of logs can sequester them if the buyer proposes to sell them, and the debt is due unless the circumstances show that sequestration is unnecessary.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. § 4; Dee. Dig. § 5.*]</p> <p>7. Attachment (§ 374*) — Wrongful Attachment — Evidence—Sufficiency.</p> <p>Evidence held to show that a premature attachment was levied to oppress defendant.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1371; Dec. Dig. § 374.*]</p> <p>8. Attachment (§ 376*) — Wrongful Attachment — Elements of Damage — Attorney’s Fees.</p> <p>An owner can recover attorney’s fees expended in procuring release of a premature and wrongful attachment.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1386; Dec. Dig. § 376.*]</p> <p>9. Damages (§ 6*) — Certainty as to Amount —Ascertainment.</p> <p>Difficulty in ascertaining actual damages resulting from a wrongful act does not prevent an award; the damages being properly approximated.</p> <p>TEd. Note. — For other cases, see Damages, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>10. Attachment (§ 377*) — Wrongful Attachment — Punitive Damages. '</p> <p>Evidence held to warrant an award of punitive damages for wrongful attachment.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1389-1392, 1397; Dec. Dig. § 377.*]</p>

Pugh, Judge. Consolidated actions by the Jennings-Heywood Oil Syndicate against the Houssiere-Latreille Oil Company and others, and the Houssiere-Latreille Oil Company against the Jennings-Heywood Oil Syndicate, in which certain parties intervened. From the judgment, certain parties appeal.

K. Schwing, Judge. Action by John B. Levert against Joseph B. Berthelot, and the Louisiana Sugar Company filed a third opposition and intervention. From a judgment for defendant, plaintiff appeals. Judgment for plaintiff and for intervener to the extent that its advances were applied to the cultivation and gathering of defendant’s crop.

S. Boatner, Judge. Action by the White Hall Agricultural Company and others against the Police Jury of Concordia Parish and others. Judgment for defendants, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>Indictment and Information (§ 125*) — Duplicity — Burglary and Larceny.</p> <p>“While the general rule is that two distinct offenses cannot be joined in one count in an indictment, it is a well-recognized exception to the rule that burglary and larceny may be so charged, without making the indictment amenable to duplicity. If, in a single count, the indictment charges the breaking, entering, and stealing, the offense is single, being burglary committed in a particular manner.” Marr’s Cr. Jur. of La. 173, and note. •</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Gent. Dig. §§ 334rA00; Dec. Dig. § 125.*]</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>P. J. Marks was convicted of bigamy, and he appeals.</p>

Mary; C. A. O’Neill, Judge. John C. Kramer was indicted for the illegal sale of intoxicating liquors. Judgment for defendant, and the State appeals.

<p> (Syllabus by the Com-t.) </p> <p>1.Minors — Sales of Liquoe — Prosecution-Jurisdiction — Juvenile Courts.</p> <p>The juvenile court has jurisdiction in a case where a saloon keeper is charged with selling a delinquent child intoxicating liquors. Act No. 176 of 1908 prohibits any person conducting a barroom from selling liquor to a minor, and confers upon the juvenile court power to punish for such violation. The minor was a delinquent, and, this requirement of the statute being satisfied the court had jurisdiction. State v. Lew Rose, 125 La. 1080, 52 South. 165.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. § 18.*]</p> <p>2.Intoxicating Liquors (§ 168*) — Sales to Minor.</p> <p>Act No. 176 of 1908 penalizes any one “conducting” a barroom for selling liquors to minors, and whether the liquor is sold by the owner, or by his agent, the law places upon the owner the duty of seeing that it is conducted according to law.</p> <p>[Ed. Note — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 189-192; Dec. Dig. 168.*]</p> <p>3.Criminal Law (§ 260*) — Appeal—Statements as to Facts Not Preserved.</p> <p>The statement of the trial judge, made after the trial, as to facts and a point not reserved at all before the end of the trial, will not be held as an affirmative showing sufficient to sustain an appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 567-609; Dec. Dig. § 260.*]</p> <p>4.Criminal Law (§ 260*) — Trial Before Judge — Objections to Evidence.</p> <p>The rules of practice governing trials before a judge are the same as those governing trials before juries, and where, in a trial before a judge, evidence is admitted without objection, the defendant cannot bring the facts up on appeal on an assertion that they involve a question of law, unless a bill of exceptions has been timely reserved.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 567-609; Dec. Dig. § 260.*]</p> <p>Provosty, J., dissenting in part.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 200*) — Appeal—Review —Questions oe Eaot.</p> <p>What a delinquent child is, within the moaning of Act No. 83' of 1908, is a question of law; but whether a particular child is within the class which the act declares delinquent is a question of fact, the finding of the trial court upon which this court is without jurisdiction to review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 567-609; Dee. Dig. § 260.*]</p> <p>2. Intoxicating Liquors (§ 168*) — Sales to Minors — Liability oe Employer.</p> <p>Under Act No. 176 of 1908, any person, firm, or corporation conducting a barroom or other place where intoxicating beverages are sold is criminally liable for the sale of intoxicating liquor to a minor, whether such sale be made by such person, firm, or corporation, or by an agent or employé placed in a position to make it, with authority to determine whether to do so in any given case; and this whether the sale be made with or without the knowledge or consent or against the instructions of the principal or employer.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 189-192; Dec. Dig. § 168.*]</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Ursin Pierre Auguste was convicted of horse stealing, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Public Lands (§ 152*) — State Lands — Patents Issued by State.</p> <p>Patents issued by the state to the holders of “McEnery scrip” are conclusive against the state, and against all persons claiming under junior titles from the state, until annulled by a court of competent jurisdiction, in a proceeding brought by the state for that purpose.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 152.*]</p>

'■'Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge. Action by the Leader Realty Company, Limited, against the Lakeview Land Company, and by the same plaintiff against the New Orleans Land Company. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Eighth Judicial District Court, Parish of Catahoula; David N. Thompson, Judge.</p> <p>Action by Simon J. McKenzie against Joseph Nosacka. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; S. J. Henry, Ju'dge.</p> <p>Action by Dora Simon, individually and as tutrix, against the Black Lake Lumber Company. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law (§ 519*) — Evidence—Confessions — 'Voluntary Character.</p> <p>While accused, who was suspected of crime, was being conveyed to the place of trial, several persons identified him as the criminal, and one person told him that he ought to be hanged, accused meanwhile being manacled and fettered. The sheriff who had him in charge and a deputy questioned him, and the sheriff advised him to effect a compromise. After 'he had been in jail about a week he confessed to a deputy sheriff in the presence of the deputy who had previously questioned him. Held, that the confession was not voluntary.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig.' § 519.*]</p> <p>2. Witnesses (§ 79*) — Competency — Determination.</p> <p>Where, on a prosecution for homicide, the one question before the jury was the identity of accused with the criminal, and the wife of accused was put on the stand by the defense and asked whether he was her husband, the sustaining of an objection that she could not testi-^ fy for or against her husband was not error, it' being for the court to determine the competency of the witness, notwithstanding that the identification of accused as the criminal is for the jury, and that the judge may not express an opinion on the facts.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. % 79.*]</p> <p>3. Indictment and Information (§ 159*)— Amendments.</p> <p>On the day of the trial, but before the trial, it was proper to permit an amendment of the indictment over the objection of accused by changing the Christian name of the one alleged to have been murdered and by changing the date of the crime, such changes being expressly authorized by Bev. St. § 1047.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Jury (§ 4*) — Wounding—Number of Jurors.</p> <p>The offense of wounding, created by Rev. St. § 791, being punishable by imprisonment at hard labor or otherwise, is required by the Constitution to be tried by a jury of five.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 3-7; Dec. Dig. § 4.*]</p> <p>2. Criminal Law (§ 1059*) — Review— Exceptions— Scope.</p> <p>Accused was charged with wounding, in violation of Rev. St. § 791, and the court, being of the impression that it was triable by a jury of 12, proceeded to impanel a jury of that number. Five jurors had been accepted, and six more had been sworn on their voir dire and accepted by the state, when it was discovered that the proper jury was five, whereupon the court ordered the six to stand aside, to which defendant filed a bill of exceptions, reciting that defendant objected to the withdrawal of the jurors and to the action of the court in ordering them to stand aside, which objection being overruled, defendant reserved a bill of exceptions. Bold, that such exception did not cover an objection that the court should not have dismissed the six, but should have dismissed the entire jury and begun anew the impanelment of a jury of five.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 1059.*]</p>

P. Brunot, Judge. Suit by the Alexandria Cooperage Company and others against the Railroad Commission of Louisiana and others. Prom a judgment for defendants, plaintiffs appeal.

K. Skinner, Judge. Proceedings for liquidation of the Colonial Bank & Trust Company. To the provisional account of the liquidating commissioners, Titche & Rogers and others filed an opposition which was dismissed, and opponents appeal.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Justin C. Daspit, Judge Ad Hoc.</p> <p>Action by Louis F. Baum against H. W. Smith and others. From a judgment for defendants, plaintiff appeals.</p>

Mary; Charles A. O’Niell, Judge. Action by John R. Oglesby against Emeline M. Turner, individually and as universal legatee and testamentary executrix of Mrs. Amanda Delmas and others. Judgment for defendants, and plaintiff appeals.