Volume 128 — Louisiana Reports

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Louis Werner, Jr., was convicted of manslaughter and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Dr. Ivan F. Siekmann against Mrs. Widow Henrietta Schwartz. From the judgment plaintiff appeals.</p>

<p>Appeal from Tenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Jules Ardoin was convicted of murder, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 121*) — Jurisdiction — Amount in Controversy — Taxpayer’s Action.</p> <p>In a case where a taxpayer assails the constitutionality of a statute, the enforcement of which may increase the burden of taxation, the test of jurisdiction is the amount involved to the public, rather than that which the taxpayer individually may have at stake.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426; Dec. Dig. § 121.*]</p> <p>2. Constitutional Law (§ 24*) —Statute Confirmed by Amendment to Constitution.</p> <p>Act No. 15 of 1910, creating and providing for the organization of the parish of Evangeline, having been ratified and confirmed by an amendment to the Constitution, and thereby practically made part of that instrument, an attack upon it, upon the ground that it is unconstitutional, has no basis to rest on.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 21-29; Dec. Dig. § 24.*]</p> <p>3. Constitutional Law (§ 24*) — Construction of Constitution — Existing Laws.</p> <p>The amendment to the Constitution, proposed by Act No. 75 of 1910, and duly adopted, in providing “that any act passed by the General Assembly * * *, at its session of 1910, creating a new parish or parishes and assigning a representative- to each, is hereby ratified and confirmed,” applies to the whole of the Act No. 15 of 19l0, and is not confined in its application to the provisions of the act relating to the assignment of representatives.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 21-29; Dec. Dig. § 24.*]</p> <p>4. Constitutional Law (§ 188*) — Retroactive Statutes — Validity.</p> <p>Retroactive laws may -be passed, so long as they do not impair the obligations of contracts or devest vested rights; and, where such a law is passed by competent authority, and the intention that it shall operate retroactively is clearly expressed, it becomes the duty of the courts to construe and apply it according to such intention.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 530; Dec. Dig. § 188.*]</p> <p>5. Constitutional Law (§§ 92, 115*)— Amendment to Constitution — Retroactive Effect.</p> <p>The ratification and confirmation by constitutional amendment of Act No. 15 of 1910 can mean nothing else than that the infirmities ■of that act, if any there were, are cured, and that it is to be regarded as having been constitutional from the beginning, and no contract obligation is thereby impaired or vested right devested, nor does such ratification and confirmation conflict with the general policy of the Constitution, being in entire harmony with these provisions which relate to the establishment and organization of new parishes, and dealing with a subject different from those which relate to parishes already established and organized.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dee. Dig. §§ 92, 115.*]</p> <p>6. Judges (§ 23*) — Authority—Change During Term.</p> <p>There is no interference with the territorial jurisdiction of the judge of a district court, where the law merely creates a new parish within the boundaries of his judicial district, and assigns it to such district.</p> <p>[Ed. Note. — For other cases, see Judges, Dec. Dig. § 23.*]</p> <p>7. Constitutional Law (§ 15*) — Construction of Constitution — Amendment.</p> <p>The amendment to article 10$ of the Constitution, providing for the redistricting of the state, to take effect on January 1, 1912, must be construed with the amendment creating the parish of JSrangeline and assigning it to the Sixteenth judicial district, to take effect on January 1, 1911, and must yield to the latter, quoad the special subject thus acted upon.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 15.*]</p> <p>8. Constitutional Law (§ 67*) — Judicial Functions — Adjustment of Eights and Obligations.</p> <p>Whether, if the question were left at large, it should be regarded as a legislative, or a judicial, function, to establish a basis for the adjustment of the rights and obligations of a newly created parish as against, and towards, the parish or parishes from which it is taken, there can be no doubt, where the Constitution requires the new parish to institute a judicial proceeding in a particular court, in order to effect such adjustment, that the adjustment must be effected in that way.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 123; Dec. Dig. § 67.*]</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Action by John D. Minor and others against J. F. Daspit and others. Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Juey (§ 32*) — Juey Trial — Number or Jurors — Prosecution eoe Shooting with Intent to Kill and Mubdeb.</p> <p>A person tried and convicted by a jury of 12 on a charge of shooting with intent to kill and murder is illegally convicted (the jury of 12 having no jurisdiction of that crime because it is not necessarily punishable at hard labor), and is entitled to obtain his release from the penitentiary by the writ of habeas corpus, and to a trial according to law.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 221-225; Dec. Dig. § 32.*] .</p> <p>(Additional Syllabus by Editorial Staff.) 2. Courts (§ 37*) — Jurisdiction—Waiver oe Objection.</p> <p>The objection that a court has no jurisdiction of the subject-matter is not waived by plea or by going to trial, but may be raised on motion in arrest of judgment on appeal, or by petition for writ of habeas corpus.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 147-151; Dec. Dig. § 37.*]</p>

B. Butler, Judge, ad hoc. Action by Mrs. Joseph Malbrough and others against John Roundtree and others. From a judgment granting insufficient relief, plaintiffs appeal.

<p> (Syllabus by the Editorial Staff.) </p> <p>1. Insurance (§§ 4, 493*) — Fire Insurance-New York Standard Policy — Repeal by Valued Policy Law — Total Loss.</p> <p>New York standard policy, adopted by the. Legislature of this state in 1898 (Act No. 105 of 1898, art. 3, § 22), was repealed by the valued policy law adopted in 1900 (Act No. 135 of 1900).</p> <p>They are measures of state policy.</p> <p>The arbitrariness charged in refusing to issue a permit to plaintiff to reconstruct the destroyed building is not evident.</p> <p>The city acted mainly to compel obedience to the ordinances regulating the construction of new buildings. . „ ,</p> <p>. „ It not being possible to rebuild m view of the withholding of the right to rebuild, in consequence the loss was total.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1266-1268; Dec. Dig. §§ 4, 493.*]</p> <p>2. Municipal Corporations (§ 63*) — Police Power — Review by Court.</p> <p>While the exercise of police power of a city may be erroneous and is subject to judicial control, the court should not interfere except on very clear grounds.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1378, 1879; Dec. Dig. § 63.*]</p>

King, Judge. Proceedings by Mrs. Katie O’Grady, executrix, for settlement of the succession of John Balovich'. From a judgment to compel N. Frey, adjudicatee of'certain property, to accept title and comply with the adjudication, he appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Texas & Pacific Railway Company against J. P. Flournoy, Sheriff, and others. From the judgment, defendants appeal.</p>

So Relie, Judge. Action by the Rice-Stix Dry Goods Company against D. G. Saunders and others, in which D. G. Saunders, Jr., intervened, and action by the First National Bank against D. G. Saunders and others. Actions consolidated. Judgments for plaintiffs, and the Saunders-Turner Lumber Company appeal.

<p>Appeal from Criminal District Court, Parish of Orleans; F. D. Chretien, Judge.</p> <p>Eugene Besancon and Francois Rodin were found guilty of murder, and appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Deeds (§ 111*) — Description—Construction.</p> <p>Where, in an act of sale, there is ambiguity in the description of a tract of land, that construction will be preferred which accords with the acreage recited in the deed, and the possession thereunder of the first purchaser and his assigns.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 309-315, 334, 335; Dec. Dig. § 111.*]</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; Don E. So Relie, Judge.</p> <p>Ishmael Hamilton was convicted of selling intoxicants without a license, and he appeals.</p>

Action by William Lewis and others against Gabriel Baker. Judgment for plaintiffs was reversed by the Court of Appeals, and plaintiffs applied for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Mary P. Clayton and others against the Quaker Realty Company, Limited. Judgment for defendant, and plaintiffs appeal.</p>

<p>. Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Joseph Conradi was convicted of sending threatening letters and he appeals.</p>

B. -Claiborne, Judge. Action by the Henry Lochte Company, Limited, against Victor M. Lefebvre and another, intervener and third opponent. Judgment for intervener and third opponent, and plaintiff appeals.

D. King, Judge. Proceedings for settlement of the Succession of Caroline Herber, widow of Joseph I-Ierber. From a judgment annulling - the will, J. S. Moore, individually and as executor, and another appeal.

W. Ellis, Judge. Action by the C. W. Robinson Lumber Company against W. O. & C. G. Burton, Albert Maclcie, and the Albert Maekie Grocery Company. From the judgment, defendants Maekie and the Grocery Company appeal; plaintiff answering the appeal, and praying for a personal judgment. Modified and affirmed.

<p> (Syllabus by the Court.) </p> <p>1. Taxation (§ 305*) — Fixing or Rate — Necessity eor Budget — Parish Taxes.</p> <p>A budget is a prerequisite to the fixing the rate of taxation for the year.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 498; Dec. Dig. § 305.*]</p> <p>2. Schools and School Districts (§ 103*)— Taxation — Necessity eor Budget.</p> <p>A legal budget having been adopted, afterward an amount necessary to be levied, of which nothing was known at the date that the budget was adopted (but which should have been taken into account m a supplemental budget after it became known that the amount was required), although to some extent insufficient and irregular, does not affect the taxes paid by plaintiff. As to these, the amount paid cannot be taken into account in this suit.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dec. Dig. § 103.*]</p> <p>3. Four-Mill Tax Dub.</p> <p>The four-mill tax levied under the budget is due on property assessed on which taxes have not been paid, but not the three mills, additional tax, not budgeted at all.</p> <p>4. Judgment (§ 731*) — Res Judicata.</p> <p>Res judicata pleaded is maintained as to that part of the issues heretofore decided, and is not maintained as to that part not heretofore decided.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1259; Dec. Dig. § 731.*]</p> <p>5. Injunction Dissolved in Part.</p> <p>The injunction is dissolved only to the extent that res judicata is sustained.</p> <p>6. Disposition op Cause.</p> <p>Tire judgment of the district court is annulled in part, and in part maintained.</p> <p>The case is ordered reinstated and remanded in order to hear and decide issues not heretofore decided.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>7. Parishes — Police Jury — Action Against.</p> <p>The police jury is a public corporation which may be tried in its corporate name.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 338; Dec. Dig. § 208.*]</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 14*) — Proceedings to Perfect Appeal.</p> <p>The first appeal was not perfected by furnishing an appeal bond. It is as if no attempt had been made to appeal.</p> <p>Another order of appeal was obtained and bond furnished in due form within 12 months. The appeal is devolutive.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 53; Dec. Dig. § 14.*]</p> <p>On the Merits.</p> <p>2. Malicious Prosecution (§ 8*) — Right of Action — Officer Acting Under Order of Court.</p> <p>Malicious prosecution was the charge, alleged for the damages claimed.</p> <p>The utterances of plaintiff, expressive of an intention to inflict bodily harm upon defendant, moved the latter to make an affidavit against the former.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 8.*]</p> <p>3. Malicious Prosecution (§ 8*) — Right of Action — Officer Acting Under Order of Court.</p> <p>The officer charged with the writ of arrest would have had to release the plaintiff had he not taken him to jail. In taking the plaintiff to jail he executed the order of the court.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 8.*]</p> <p>4. Malicious Prosecution (§ 8*) — Right of Action — Officer Acting Under Order of Court.</p> <p>Plaintiff was in jail a few days. When he offered a release bond, it was accepted, and he was released.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 8.*]</p> <p>5. Malicious Prosecution (§ 8*) — Right of Action — Officer Acting Under Order of Court.</p> <p>The officer in executing the order was not at fault. The order he held from the justice of the peace was a protection from damages.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 8.*] |</p> <p>6. Malicious Prosecution (§ 8*) — Right of Action — Officer Acting Under Order of Court.</p> <p>The court had jurisdiction.</p> <p>The defendant caused no damages, and is not liable in damages.</p> <p>[Ed. Note. — For other cases, see Malicious-Prosecution, Dec. Dig. § 8.*]</p> <p>7. Malicious Prosecution (§ 8*) — Right of Action — Officer Acting Under Order of Court.</p> <p>Moreover, the cause had not reached the point that rendered it possible under established jurisprudence to sustain the action. No-trial was ever had on the charge brought against plaintiff in the criminal case.</p> <p>[Ed. Note. — For other cases, see Malicious. Prosecution, Dec. Dig. § 8.*]</p>

<p> (Syllabus by the Court.) </p> <p>Specific Performance (§ 132*) — Enforcement of Judgment.</p> <p>A judgment for the specific performance of an agreement to sell real estate cannot be enforced by process of contempt.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 437 •; Dec. Dig. § 132.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Claims of Parties.</p> <p>The heirs of Andrew Drysdale set forth that they are owners of the property claimed by the heirs of Julia Pike Drysdale.</p> <p>2. Claims of Parties.</p> <p>They alleged that, by fraud and artifice, they have been deprived of their ownership.</p> <p>3. Claims Referred to be Tried with the Merits.</p> <p>The judge of the district court referred the claims of the former, brought up on exception, to be tried with the merits.</p> <p>4. Relator’s Contention.</p> <p>Relators seek to have the reference of the issues to the merits set aside and recalled; also, to .have recalled and set aside the judicial sequestration issued by the judge of the district court.</p> <p>5. Issues to be Passed Upon.</p> <p>The issues, whether there is an accounting due to the succession of Andrew Drysdale, and the nature of any right, if his heirs have any, are to be passed upon hereafter.</p> <p>6. Review on Appeal.</p> <p>This court declines to interfere, at this time, with the trial of the case on relators’ application.</p> <p>7. Executors and Administrators (§ 435*)— Proceedings for Settlement of Succession-Proceedings to Have Judicial Sequestration Annulled.</p> <p>An appeal from a decree of the district court will prove adequate.</p> <p>The prayer of respondents being to have it decreed that the property never passed out of the succession of Andrew Drysdale, that it should be listed among the assets of his succession, and that there should be a proper accounting, the suit was brought before the proper court. A special allotment of the case was not necessary.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dee. Dig. § 435.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>Action by Washington Davie against Francis Martin and Francis L. Martin. From a judgment dismissing the suit, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>In the matter of the liquidation of the Pet-it & Boh Company. From the judgment rendered, Stauffer, Eshleman & Go., opponents, appeal.</p>

Action by J. Warren Foster and others against the Iberia, St. Mary & Eastern Railroad Company and others. Rule to show cause why an order should not be granted for the opening of ballot boxes was granted, and plaintiff moved for an appeal, which was denied, and thereupon applied for writs of mandamus and prohibition.

<p> (Syllabus by the Court.) </p> <p>1.Taxation (§ 408*) — Assessment — Return of Property Owner.</p> <p>The assessor alone is authorized to make assessments (subject to the qualification that his assessment may be changed by the board of reviewers or the State Board of Equalization, or both), and the fact that the property owner makes a return, and the time passes at which the assessor is required to give public notice that the rolls will be exposed for correction, as, also, the delay for such correction, without his hearing from the assessor to the contrary, does not make such return the assessment, without regard to what the assessor may have intended.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 675; Dec. Dig. § 408.*]</p> <p>2. Taxation (§ 450*) — Assessment—Increase by State Board of Equalization — Presumptions.</p> <p>It is manifest that, in order to carry out the purposes of article 225 of the Constitution and of Act No. 182 of 1906, and properly discharge the duty of equalizing the assessments as between the different parishes of the state, and the different property owners in the different parishes, the State Board of Equalization must reduce assessments where they are above the average and raise them where they are below, and where it raises the assessment on the lands of a particular individual it must be presumed, in the absence of allegation or proof to the contrary, that such lands were found to be assessed at a lower rate than similar lands owned by other persons. That the increase amounts to 101 per cent, is no indication of unfairness to the owner, but rather shows that his previous assessment was unfair to other taxpayers.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 800-804; Dec. Dig. § 450.*]</p> <p>3. Judgment (§ 251*) — Questions Not Raised by Pleadings.</p> <p>It would be unfair to the defendant and inadmissible for the court to decide a ease in favor of plaintiff upon a point not suggested in the pleadings, nor relied on by plaintiff, and which defendant had no opportunity to meet.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*]</p> <p>4. Pleading (§ 427*) — Amendment by . Evidence — When Allowed .</p> <p>The rule that pleadings are broadened by evidence admitted without objection has no application to evidence offered and admitted^ for the purposes of an issue raised by the pleadings.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1428-1432; Dec. Dig. § 427.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Henry Stern against Charles E. Davies and others. Judgment for plaintiff, and defendants appeal.</p>

K. Skinner, Judge. Action by Mary B. Spizale, on her own behalf and in behalf of her infant son, against the Louisiana Railway & Navigation Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Richard Shay against August W. Wattigny, tutor, and others. Judgment for plaintiff, and John Shay, Jr., intervener, appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Corporations (§ 404*) — Power of Directors.</p> <p>The clauses in the charter of the defendant providing that the affairs of the corporation shall be liquidated by commissioners with full power to sell any and all assets and that clause providing that the stockholders are authorized to sell the entire plant of the corporation have to do with its final liquidation. They do not limit or restrict the clauses of the charter which vest the board of directors with general power to do all that the corporation may do, among which things is the operation of one or more breweries.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1633-1639; Dec. Dig. § 404.*]</p> <p>2. Injunction (§ 72*) — Corporations—Pow- . ee of Directors — Sale of Assets.</p> <p>The board of directors is vested with considerable powers, and, in the absence of an allegation of fraud, this court will not stop the defendant, whose charter gives the right to operate'one. or more, breweries from selling one of these brewing plants when the board of directors deems it advisable to do so. To enjoin the sale as asked by the plaintiff would be to compel defendant to operate two breweries when in the judgment of the board of directors only one was needed, and to do this would substitute the judgment of the court for that of the board of directors elected by the stockholders.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 138; Dec. Dig. § 72.*]</p> <p>3. Corporations (§ 393*) — Management — Court Interference.</p> <p>This court will not readily interfere with the acts of the board of directors in the management of a-corporation in the absence of a clear showing of fraud, or a breach of trust, for there is a presumption that the acts of the board of directors are for the good of the corporation. If the stockholders are not satisfied with the management and acts of the board of directors, their remedy lies in the election of another board, and the court will not take away the management of the corporation from the board of directors, because some stockholders do not approve some of their acts.</p> <p>[Ed. Note —For other cases, see Corporations, Cent. Dig. §§ 1574, 1575; Dec. Dig. § 393.*]</p> <p>4. Pleading (§ 17*) — Sufficiency of Petition-Argumentative Allegation.</p> <p>The statement in the petition that the sale of one of its breweries by the defendant would prove of advantage to a rival brewing company is purely inferential and argumentative, and cannot be considered as an allegation in determining the exception of no cause of action.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 38, 350; Dec. Dig. § 17.*]</p>

<p>Action by W. W. Carre, Limited, against the International Oar Company. Application of Oscar A. Schneidau for writs of prohibition and certiorari.</p>

<p>Appeal from Civil District Court, Parish, of Orleans; W. B. Sommerville, Judge.</p> <p>Action by Christie' & Lowe against the-Pennsylvania Iron Works Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by P. G. Riddell, agent, against Louis P. Rice. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by James S. Collins against the Dalton Clark Stave Company, Incorporated. From a judgment of dismissal, plaintiff appeals.</p>

Théard, Judge. Proceeding's for settlement of the Succession of Horace Valias. Rule by the People’s Homestead Association against Mrs. Kate Halliday Valias, executrix, and others, to have property of the estate held by the association as security sold to pay a claim against the estate. From the judgment, plaintiff in rule appeals.

<p> (Syllabus by the Court.) </p> <p>1. Property Not Exempt.</p> <p>The property is not exempt from taxation.</p> <p>2. Use oe Property.</p> <p>It is not used for educational purposes.</p> <p>3.Taxation (§ 242*) — Liability for Taxes —Exemption—Property Used for Educational Purposes.</p> <p>By failure to continue the use for educational purposes, the exemption is lost.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 39A-403; Dec. Dig. § 242.*]</p>

K. Skinner, Judge. Action by J. Arthur Dayries against Walter Lindsly and others. Judgment for plaintiff against defendant Walter Lindsly and in. favor of defendant L. M. Rougon, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>Courts (§ 224*) — Supreme Couei^-Jurisdictional Amount.</p> <p>The mere exaggeration of an amount claimed by way of exemplary damages, and added to that claimed as actual damages, does not, of necessity, bring a case within the jurisdiction of this court.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 224.*]</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Vito Peearino was convicted of selling intoxicating liquors, and appeals.</p>

Application by the State, on the relation of William Fritz, for writ of habeas corpus. From the judgment of the district court, the city of Alexandria, on relation of J. P. Turregano, mayor, and others, applies for writ of certiorari.

So Relie, Judge. A. B. Ives was indicted for embezzlement. From an order sustaining a motion to quash the indictment, the State appeals.

K. Skinner, Judge. In the matter of the application of Charles K. Lincoln for habeas corpus to secure possession of his children. Judgment granting the writ, and defendants, opposing it, appeal.

F. Brunot, Judge. Mandamus by the State on the relation of the Board of Commissioners for the Fifth Louisiana Levee District, against Paul Capdevielle, State Auditor. Judgment for defendant, and relator appeals.

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by H. B. Faraldo against Ferdinand Gumbel & Co.. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; Wm. Campbell, Judge.</p> <p>Action by John Wooten against the United Irrigation & Rice Milling Company to recover damages for wrongful death.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Nature of Possession of Land.</p> <p>The property in dispute was taken possession of by defendant without objection from plaintiff’s author.</p> <p>2. Rights of Plaintiff.</p> <p>The plaintiff is without right to put an end to that part of defendant’s road over the right of way in possession of defendant.</p> <p>3. Public Service Corporation.</p> <p>The use was for a public service corporation as admitted by defendant, and not for a private service corporation, as- argued.</p> <p>4. Eminent Domain (§ 288*) — Action for Possession of Land Taken bv Railroad —Limitations—Prescription .</p> <p>Plaintiff’s demand to have the road demolished is barred by the prescription of two years.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 783-788; Dec. Dig. § 288.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Philomena Creagh, natural tutrix, against the New Orleans Railway & Light Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Shreveport Ice & Brewing Company against Mandel Bros. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Delia A. Blackburn against the Louisiana Railway & Navigation Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Nineteenth. Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by Dominique Miguez, administrator of. Adelaide Landry, against Louis Deleambre and others. From the judgment, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish; of Orleans; Fred D. King, Judge.</p> <p>Action by C. Milo Williams against the' Congregation Mater Dolorosa and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by W. R. Taylor against the Vossburg Mineral Springs Company, Limited. Proceedings for settlement of the receivership of the defendant.</p>

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 696*) — Streets — Obstructions—Removal.</p> <p>The city of New Orleans has plenary authority to remove obstructions in streets and other public places.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1496-1501; Dec. Dig. § 696.*]</p> <p>2. Dedication (§ 41*) — Ground Reserved by the United States — Presumption.</p> <p>Where the United States reserved a bayou and a space along its banks from survey and sale, an intent to dedicate to public use will be presumed, especially where there was a public road along one of the banks.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 80-82; Dec. Dig. § 41.*]</p> <p>3. Adverse Possession (§ 8*) —Public. Ground — Trespassers—Prescription.</p> <p>The long possession of a trespasser of a part of a public place avails him nothing.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. § 8.*]</p>

Judicial District Court, Parish of Natchitoches; Samuel J. I-Ienry, Judge. Expropriation proceedings by the Louisiana & Northwest Railroad Company against J. J. Nelson and .others. From the award, plaintiff and the mentioned defendant appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by Alfred I-I. Clement against the South Atlantic Steamship Line. Judgment for defendant on a reconventional demand, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Judgment (§ 253*) — Conformity to Pleadings — Amount Demanded.</p> <p>The action is on a note with contract attached.</p> <p>The amount of the note is due, not the amount claimed under the “liquidated damage” clause of the contract.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 253.*]</p> <p>2. Nature of Note.</p> <p>The note represents an amount borrowed. The promise to sell “near beer” is not inseparably connected with the note.</p> <p>3. Contracts (§ 326*) — Breach— Grounds of Action — Damages.</p> <p>The defendant owes the note.</p> <p>The damages claimed by plaintiff for failure of defendant to sell near beer, in accordance with promise, are not allowed; the contract was executed in part, and “the loss really suffered” was not proven.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 326.*]</p> <p>4. Intoxicating Liquors (§ 329*) — Near Beer.</p> <p>The testimony shows that the near beer was not an intoxicant.</p> <p>[Ed. Note. — For other cases, see Intoxicating-Liquors, Dec. Dig. § 329.*]</p>

Action by Joseph N. Coignet against John Nelson. From the judgment, both parties appeal to the Court of Appeal, where judgment was rendered for defendant, and plaintiff applies for certiorari or writ of review to the Court of Appeal.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; C. K. Schwing, Judge.</p> <p>Suit by Jacob McWilliams and others against the Parish Board of Directors of. Iberville Parish and others. Judgment for defendants, and complainants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Peter Monteleone against the National Union Fire Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Action (§ 45*) — Joinder oe Causes — Cumulation.</p> <p>Under Code Prac. art. 151, providing that if plaintiff has several causes of action tending to the same conclusion, not contrary to or exclusive of each other, though they arise from different contracts, he may cumulate and bring them in the same suit, plaintiff may cumulate in one petition causes of action against a railroad for cattle killed at different times.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 378-448; Dec. Dig. § 45.*]</p> <p>2. Courts (§ 121*) — Jurisdiction — Amount in Controversy.</p> <p>Where several demands are cumulated in one suit as authorized by Code Prac. art. 151, the aggregate amount is the amount in dispute under Const, arts. 85, 109, regulating jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 417; Dee. Dig. § 121.*]</p> <p>3. Railroads (f 439*) — Injuries to Stock-Complaint —Negligence — Necessity eor Alleging.</p> <p>Under Act No. 70 of 1886, § 1, providing that in suits against railroads for the killing, etc., of stock, it shall suffice in order to recover to prove the killing or injury, unless defendant shows that it was not the result of carelessness on its part, an allegation of negligence on defendant’s part is not necessary in such actions.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 439.*]</p> <p>4. Constitutional Law (§ 249*) — “Equal Protection oe Laws.”</p> <p>Act No. 70 of 1886, § 1, which provides that in suits against railroads for the killing, etc., of stock, it shall suffice in order to recover to prove the killing or injury unless defendant shows that it did not result from carelessness on its part, etc., does not contravene Const. U. S. Amend. 14, § 1, as denying to railroads the equal protection of the laws.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 710; Dec. Dig. § 249.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2423-2426.]</p> <p>5. Statutes (§ 85*)—“Special Law”—Constitutional Provisions.</p> <p>Act No. 70 of 1886, § 1, which provides that in suits against railroads for the killing, etc., of stock, it shall suffice in order to recover to prove the killing or injury unless defendant shows that it did not result from carelessness on its part, etc., is a general law applying throughout the state and to all railroads, and, since it merely makes a change in the rules of procedure and evidence in a particular class of cases, does not discriminate invidiously between persons, and hence does not contravene Const, art. 48, §§ 15, l8, forbidding the passage of local or special laws regulating the practice of courts or changing the rules of evidence.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 94; Dec. Dig. § 85.*</p> <p>For other definitions, see Words and 'Phrases, vol. 7, pp. 6577-6584; vol. 8, p. 7802.]</p> <p>6. Constitutional Law (§ 109*) — Vested Rights — Rules op Procedure and Evidence.</p> <p>Rules of procedure and evidence are within legislative control, and change in them does not affect vested rights.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 260-263; Dec. Dig. § 109.*]</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia ; John S. Boatner, Judge.</p> <p>Proceeding by rule by the State, on the relation of A. J. Hodges, against John J. Joyce, Registrar of Voters, and another. Judgment for defendants, and relator appeals.</p>

Boatner, Judge. Proceeding by rule by the State, on the relation of A. J. Hodges, against John J. Joyce, Registrar of Voters, and another, to erase the other defendant’s name from the registration roll. Judgment for defendants, and relator appeals.

Boatner, Judge. Proceedings by rule by the State, on relation of A. J. Hodges, against John J. Joyce, Registrar of Voters, and another, to have the name of the other defendant erased from the registration roll. Judgment for defendants, and relator appeals.

Boatner, Judge. Proceeding by rule by the State, on the relation of D. B. Fleming, against John J. Joyce, Registrar of Voters, and T. Milt Wilson, to erase the name of Wilson from the registration list. Judgment for defendant, and relator appeals.

<p> (Syllabus by the Court.) </p> <p>Elections (§ 73*) — Residence or Voter — Temporary Absence.</p> <p>Temporary absence, necessitated by the calling of a voter, does not operate a change of his political residence.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. § 73.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Partnership (§ 26*) — Validity — Gambling Partnership — “Vice.”</p> <p>Under Giv. Oode art. 2804, declaring that partnerships formed for any purpose forbidden by good morals are void, a partnership formed to conduct gambling, by playing draw and stud poker, is void as contrary to public policy, as evidenced by Const, art. 188, declaring that gambling is a vice, and Giv. Oode arts. 1893, 1895, 2983, and Code Prac. art. 19, declaring that an obligation with an unlawful cause can have no effect, etc.; the word “vice” meaning a moral fault or failure, especially immoral conduct or habits.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. § 12; Dec. Dig. § 26.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7313.]</p> <p>2. Partnership (§ 313*) — Action by Partners Against Copartners.</p> <p>A partner may not sue his copartner for any definite sum as his share of the profits of the firm, but only for a settlement of the partnership.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. §§ 729, 729y2; Dee. Dig. § 313.*]</p> <p>3. Partnership (§ 26*) — Illegality — Actions eor Settlement.</p> <p>A petition, in a suit by a partner in a gambling firm against his copartner, which alleges that the defendant contributed the room, and that the plaintiff contributed his time and skill at gambling games; that the profits were to be equally divided; that the receipts from the business were from day to day deposited with defendant for safe-keeping; and praying for an accounting and liquidation of the firm— merely seeks.a settlement of the gambling firm, and is not maintainable on the theory that the profits had been reduced to possession by the plaintiff, and then deposited with the defendant for safe-keeping as the money of,the plaintiff.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 12; Dec. Dig. § 26.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Appeal and Error (§ 627*) — Transcript — Filing Time.</p> <p>Where tbe transcript on an appeal was not filed until two days after the return day as extended, the appeal will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. Í 627.*]</p>

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

Landry; B. H. Pavy, Judge. Buie by the executrix of the succession of William C. Perrault on the St. Landry Bealty Company, Limited, to show cause why defendant should not accept title to a specified tract of land. Erom a decree in favor of the executrix, defendant appeals.

<p> (Syllabus by the Court.) </p> <p>I-Iomicxde (§ 313*) — Tkiai>-Yeedict.</p> <p>Where a defendant is charged with murder, a verdict reading, “We, your jury, beg leave to return a verdict of manslaughter,” does not answer the question, “Is the. accused guilty or not guilty?” and the court could reach the conclusion that the jury intended to find the accused guilty of manslaughter only by inference, which could accomplish nothing, since it is what the jury did, not what it intended to do, that can furnish the basis for a sentence.</p> <p>[Ed. Note. — For other cases, see Homicide, Dec. Dig. § 313.*]</p>

<p>Appeal from City Court of Crowley; W. P. Campbell, Judge.</p> <p>A. W. Brande was convicted of violating an ordinance of the City of Crowley, and appeals.</p>

Action by the South Louisiana Land Company against Lloyd Waterhouse and others. To review the judgment,' defendants apply for certiorari, or writ of review, to the Court of Appeal. Amended and affirmed.

<p>Certiorari to Twenty-Ninth Judicial District Court, Parish of St. Bernard.</p> <p>J. Slover was convicted of unlawfully taking oysters from a natural reef without immediately replacing and scattering broadcast the dead shells and small oysters measuring less than three inches from hinge to mouth, and he applies for certiorari.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Attorney and Client (§ 53*) — Disbarment.</p> <p>A judgment of the criminal district court, finding defendant attorney guilty of forgery, is conclusive of his guilt in an original proceeding before the Supreme Court to disbar him, though possibly not technically res judicata.</p> <p>[Ed. Note. — Por other cases, see Attorney and Client, Cent. Dig. § 75; Dec. Dig. § 53.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Elections (§ 271*) — ■Counts of Votes.</p> <p>In an election contest, where there were two canrlidates, the rejection of a ballot for each candidate for the same irregularity affords neither a cause of action.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 248; Dec. Dig. § 271.*]</p> <p>2. Elections (§ 186*) — Counts of Votes — Ebkoks in Ballots.</p> <p>A ballot cast in an election held under section 24, Act No. 49 of 1906, providing that the voter shall designate his choice by a cross to the right of the name of the candidate he desires to support, was properly rejected because stamped on the left side.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 159; Dec. Dig. § 186.*]</p>

F. Bell, Judge. Judicial settlement of the succession of • Samuel C. I-Iostet'ter. A rule having been granted against the widow to show cause why her inventory as administratrix should not be corrected so as to include certain lots, and having been made absolute, she appeals.

<p> (Syllabus by the Court.) </p> <p>1. Carriers (§ 306*) —Joint Negligence — Liability.</p> <p>Where the track of a city railway company is obstructed through the combined fault and negligence of the company and of another corporation, employed by it to do certain work, with the result that a car is derailed and a passenger, riding therein, is injured, the two parties at fault may be held liable, in solido, for •damages, in an action-ex quasi delicto.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1249-1251; Dec. Dig. § 306;* Railroads, Cent. Dig. §§ 812, 841.]</p> <p>2. Master and Servant (§ 318*) — Injuries to Third Person — Independent Contractor.</p> <p>Where the employer retains supervision of the work, he cannot escape liability for injury inflicted upon a third person through the negligence of the employs in the doing of such work, under the plea that the employs is an independent contractor.</p> <p>[Ed. Ñute. — Por other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. i 318.*]</p> <p>3. Master and Servant (§ 310*) — Injuries to Third Person —Negligence of Employé — Liability of Employ^.</p> <p>An employs, committing a tort whereby a third person is injured, cannot escape liability therefor, under the plea that the tort was committed in accordance with the directions of his employer.</p> <p>LEd. Note. — Por other cases, see Master and Servant, Cent. Dig. § 1235; Dec. Dig. § 310.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4.Damages f§ 132*) — Excessiveness — Personal Injuries.</p> <p>A passenger at the time of her injury was 43 years of age, weighing Í54 pounds, mother of 11 children, and had always enjoyed good health, being able to do the work for a family of seven. As a result of the injury, her spinal cord was affected, resulting, in complete paralysis of her right leg and almost complete paralysis of her right arm, with an affection of the heart, producing painful smothering attacks, requiring frequent attention of a physician. Up to the time of trial her physician had visited her more than 400 times, the bill amounting to $800, and $225 had been paid to the druggist. It appeared that she would in the future require. not only some one to wait upon her constantly, but would never be able to dispense with the services of a physician. Held, that a recovery of $10,000 should be increased to $15.000.</p> <p>[Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]</p>

<p>Appeal from Fourth. Judicial District Court, Parish of Lincoln; R. B. Dawkins, Judge.</p> <p>Action by Samuel McCants against the Tremont Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

I-I. Théard, Judge. Actions by W. S. Garvey, William Sehroeder, E. T. Murphy, Thomas G. King, and Rose Sherwood against James M. Conner. The actions wer.e consolidated. Judgment for plaintiffs on rule for payment of certain moneys to W. S. Garvey, and the other plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 22*) — Elements op Crime — Motive.</p> <p>Motive is a material, although not an essential, element in a crime, as it tends to show the state of mind when the act was committed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 23; Dec. Dig. § 22.*]</p> <p>2. Homicide (§ 166*) — Evidence — Motive — ' Threats.</p> <p>Threats by the accused against the prosecuting witness are admissible in evidence to show motive.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.*]</p> <p>3. Homicide (§ 158*) — Assault to Murder— Evidence — Threats.</p> <p>Threats in general terms, and not expressly directed against the prosecuting witness, may be shown to have included, or to have had reference to him, and are admissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*]</p> <p>4. Homicide (§ 158*) — Assault to Murder-Threats Against Others.</p> <p>Threats against third persons or against a ■class to which the prosecuting witness does not belong are inadmissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §| 293-296; Dec. Dig. § 158.*]</p>

<p> (Syllabus by the Gomrt.J </p> <p>Courts (§ 224*) — Supreme Court — Jurisdictional Amount.</p> <p>The amount shown by the record to be in dispute is the test of the jurisdiction of this court, and not the amount alleged by the petition, as there was decided variance between the two.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 608-618; Dee. Dig. § 224.*]</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; Charles A. O’Neill, Acting Judge.</p> <p>Action by John K. Fahey and others against Mrs. Elizabeth M. Fahey. From the judgment, plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; W- B. Sommerville, Judge.</p> <p>Action by Leon D. Lebovitch against the Joseph Levy & Brothers Company and another. Judgment for defendants, and plaintiff appeals.</p>

F. Bell, Judge. Action by A. IT. Leonard against L. P. Garrett. O. B. Christian and the Gulf Refining Company intervened. Judgment for defendant and the interveners, and plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis) Judge.</p> <p>Action by Mrs. Annie E. Brewer against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff that she recover the land claimed, subject to a servitude in behalf of defendant railroad company for passage for railroad purposes generally, extending 25 feet on. each side of the center of defendant’s track, traversing the same, and for costs, dismissing plaintiff’s claim for damages, and in favor of defendant against its warrantors and others for costs. From the judgment, so far as same is adverse to them, all parties appeal.</p>

<p>Application of O. E. Guillory for a writ of habeas corpus.</p>

<p> (Syllabus by the Court.) </p> <p>1. Witnesses (§ 277*) — Ckoss-Examination of Accused.</p> <p>Where a defendant in a criminal prosecution tenders himself as a witness in his own behalf, he is subject to the same treatment as any other witness; and as a litigant, or defendant in a criminal prosecution, who tenders a witness, thereby in effect vouches for his credibility, and asks the court and the jury to accept him as a person to be believed, the opposing litigant, or the state, has the right to elicit further information about him than is conveyed by the mere name that he chooses to give, and may ask him such questions as: “Are you not an escaped convict?” “Are you not a fugitive from justice?” “Under what name did you register at the-Hotel?” etc.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 979; Dec. Dig. § 277.*]</p> <p>2. Criminal Law (§ 1153*) — Review—Cross-Examination of Witness.</p> <p>The trial courts may protect witnesses from unreasonable or oppressive cross-examination; but this court would be rather slow in interfering, in a matter of that kind, with the exercise of the discretion vested in these tribunals.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3064; Dee. Dig. § 1153.*]</p>

Action by John T. Michel, Secretary of State, against the Southern Insurance Company. An exception to the petition of intervention of the Tyler Canning & Pickling Company was sustained, and. intervener appealed to the Court of Appeal, where the judgment was reversed and the cause remanded, and the Whitney Central Trust & Savings Bank, receiver for the insurance company, applies for certiorari or writ of review to the Court of Appeal.

<p>Appeal from Civil District Court, Parish 'of Orleans; W. B. Sommerville, Judge.</p> <p>Action by John T. Michel, Secretary of State, against the Southern Insurance Company. From the judgment, Mrs. C. M. Dollerhide, opponent, appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Contracts (§ 312*) — Construction Contracts — Construction.</p> <p>Plaintiff contracted to furnish the money wherewith defendant should carry out his contracts with a city for the repaving, etc., of certain streets, the contract providing that al! city certificates, and the cash received from the sales or collections thereof should remain in Xilaintiff’s control until after the completion and auditing of all of the contracts, to be used by him exclusively in making payment, or in procuring funds for carrying on the work under the contracts, and also gave plaintiff the right to pledge any certificates for advances necessary to carry out the agreement, and to sell a sufficient amount of certificates representing the city’s part of the payment if sufficient funds were not derived from the collection of the property holders’ certificates for advances made by plaintiff, and further provided that reimbursement to plaintiff be first made from the proceeds of the property holders’ certificates, and any balance from the city’s part of such certificates. Held, that plaintiff was not entitled to reimburse himself for the amount advanced to defendant by selling the certificates before the work under the contract was completed, and his attempt to do so was a breach of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 312.*]</p> <p>2. Contracts (§ 194*) — Breach.</p> <p>Plaintiff contracted with defendant to furnish money for carrying out a contract with a city for the repaving, etc., of streets, and afterwards urged defendant to consent to accept certificates from the city in payment of the work for a less amount than was due defendant, in order “that we can make some satisfactory arrangement wherein we can pledge same.” Held, that plaintiff thereby agreed that the certificates received from the city should only be used to carry out the contract, and hence plaintiff could not claim the right to sell them before the contract was completed to reimburse himself for money advanced.</p> <p>[Ed. Note. — For other cases, see Contracts, Dee. Dig. § 194.*]</p> <p>3. Contracts (§ 312*) — Breach.</p> <p>Plaintiff’s threat to sell certificates received from a city in payment of street construction work done by defendant, under a contract between him and plaintiff by which plaintiff was to advance money for performing defendant's contract with the city, when the financial market was so depressed that the certificates could not be sold without great loss to defendant, was an activo violation of defendant’s contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 312.*]</p> <p>4. Contracts (§ 312*) — Breach.</p> <p>Plaintiff, who contracted with defendant to furnish money to enable him to carry out a construction contract with a city, by refusing to open defendant’s letters to him with reference to the work or to forward them to his agent, was guilty of a breach of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 312.*]</p> <p>5. Specific Performance (§ 121*) — Modification — Evidence.</p> <p>In an action for specific performance of defendant’s agreement to transfer to plaintiff or to such bank as he might designate, certificates received from a city for construction work done by defendant, for which plaintiff agreed to advance defendant money, evidence held to sustain a finding that plaintiff signed a letter which modified that part of the contract, so as to provide that such certificates should be deposited in a bank for the joint account of plaintiff and defendant, and that plaintiff’s advances should be paid from collections from the certificates after completion of the contract.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dec. Dig. § 121.*]</p> <p>6. Contracts (§ 150*) — Construction.</p> <p>A written contract, carefully prepared and executed by the parties, must be construed according to its plain meaning, if unambiguous.</p> <p>[Ed. Note. — For other cases, see Contracts, Dee. Dig. § 150.*]</p> <p>7. Specific Performance (§ 94*) — Right to Relief — Default by Plaintiff.</p> <p>One who is himself in default under a contract cannot compel specific performance thereof by the other party.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 249-256; Dec. Dig. § 94.*]</p> <p>8. Specific Performance (§ 1*) — Nature of Remedy.</p> <p>Specific performance is not favored in law. [Ed. Note. — For other cases, see Specific Performancé, Dec. Dig. § 1.*]</p> <p>9.Specific Performance (§ 1*) — Nature of Remedy at Common Law.</p> <p>At common law, specific performance is purely an equitable remedy; the legal remedy being damages.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dec. Dig. § 1.*]</p> <p>10.Specific Performance (§ 8*) — Discretion of Court.</p> <p>The granting of specific performance of a contract is largely within the court’s discretion.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 17, 18; Dec. Dig. § 8.*]</p> <p>11. Specific Performance (§ 94*) — Right to Relief.</p> <p>Plaintiff contracted to advance defendant money to enable him to carry out his contract for the repaving of a certain street, the contract providing that plaintiff should be reimbursed from the city’s certificates as soon as defendant’s contract with it was completed, and defendant offered to deposit the certificates received in a bank to plaintiff’s order until the contract was completed. Plaintiff throughout had continually failed to advance money for carrying on the work as agreed, thereby greatly embarrassing defendant’s credit for securing materials, etc. I-Ield, that even if, under his contract, plaintiff were entitled to have the certificates transferred to him, instead of deposited in the bank, he could not compel specific performance of the literal provision of the contract, in view of his own default and of the fact that the deposit of the certificates as offered by defendant would have adequately protected him.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 249-256; Dec. Dig. §</p> <p>12. Contracts (§ 303*) — Breach—Excuses— Impracticability.</p> <p>That it became difficult for plaintiff to secure money to advance to defendant to enable him to perform a construction contract, on account of the stringency of the money market, would not excuse plaintiff’s failure to advance the money as agreed.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. § 303.*]</p> <p>13. Contracts (§ 294*) — Performance—Substantial Performance.</p> <p>The doctrine of the substantial performance of contracts is firmly established.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1352, 1357-1361; Dec. Dig. § 294.*]</p> <p>14. Contracts (§ 305*) — Waiver of Defaults. Plaintiff contracted with defendant to furnish money to enable him to carry out contracts with a city for the repaving, etc., of streets. The construction contracts were taken in defendant’s name, but the profits were co be equally divided between plaintiff and defendant, plaintiff to be reimbursed for the money advanced out of the certificates received from the city after the contracts were completed. Plaintiff .claimed that under his contract with defendant the construction contracts, as well as the certificates, were to be transferred to plaintiff. Held, that defendant’s receipts of money from plaintiff for carrying on the construction contracts did not waive plaintiff’s past default in failing to advance money in the amounts and at the times agreed, so as to entitle plaintiff to insist, as one not in default, upon specific performance of the alleged agreement to transfer the certificates to him.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1398, 1399, 1467-1475; Dec. Dig. § 305.*]</p> <p>15. Contracts (§ 303*) — Waiver oe Provision.</p> <p>While one party to a contract does not lose the right to insist upon performance of a provision thereof by noninsistence or delay, the other party is not placed in default by not performing a provision of the contract which none of the parties apparently wish performed.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 303.*]</p> <p>16. Specific Performance (§ 16*) — Right to Relief — Defenses—Change in Condition of Parties.</p> <p>When plaintiff contracted to advance to defendant money to enable him to carry out construction contracts with a city, plaintiff represented himself to be, and defendant supposed that he was, a man of large means; but plaintiff repeatedly failed to advance the amount agreed upon, and it appeared that he had comparatively no financial standing. During the work the parties became hostile, plaintiff even refusing to open defendant’s letters as to the contract. Plaintiff also insisted upon being reimbursed for the money advanced, from the certificates received from the city during the progress of the work, when the contract required him to hold such certificates until the completion and auditing of the construction contract, for the purpose of raising funds to carry on such contract. The amount due plaintiff for advancements, after the deduction of proper credits, was not large, and defendants offered to deposit the certificates received from the city to their joint account until the construction contracts were completed. Held, in view of the changed conditions of the parties, that equity would not specifically compel defendant to deliver the city’s certificates to plaintiff before the construction contracts were completed, even though the contract with plaintiff required him to do so.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 35, 36; Dec. Dig. § 16.*]</p> <p>17. Specific Performance (§ 127*) — Action —Decree.</p> <p>Upon decreeing, in a suit for specific performance of defendant’s alleged agreement to transfer certificates issued to him by a city for public improvements, made under a written contract with it, that plaintiff was entitled to have such certificates deposited in a bank, selected by him, for the joint account of himself and defendant, subject to the terms of their contract, the certificates not yet issued by the city will be judicially sequestered as issued, unless defendant deposits them, when issued, as required by the decree.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dec. Dig. § 127.*]</p>

Application of the J. F. Ball Bro. Lumber Company for mandamus to compel the filing of testimony reported in an action by the Alexandria Naval Stores Company against applicant.

F. Brunot, Judge. Application for mandamus by the State, on the relation of Willis J. Roussel, against J. X. Sanders, Governor, and another, and petition for injunction by Willis J. Roussel against the same persons; the actions being consolidated. Judgment denying the relief prayed, and relator appeals.

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 1072*) — Appeal—Dismissal — Sufficiency of Order of Appeal.</p> <p>The order of appeal was premature.</p> <p>It has no date at all.</p> <p>Facts and circumstances do not relieve defendant from all responsibility for want of date.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1072.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Vendor and Purchaser (§ 134*) — TitleIncumbrances — Minor’s Mortgage.</p> <p>Title to real property which is burdened with a minors’ mortgage is not free and unincumbered.</p> <p>[Ed. Note. — Eor other cases, see Vendor g.nd Purchaser, Cent. Dig. §§ 250-254; Dec. Dig) § 134.*]</p> <p>2. Judgment (§ 707*) —Res Judicata —Persons Bound.</p> <p>A judgment canceling a minors’ mortgage is without effect as to the minors, when the latter have not been made parties, through their legal representative, to the rule filed to cancel the mortgage recorded in their favor.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Dee. Dig. § 707.*]</p>

Action by the Rynella Mill & Mercantile Company, Limited, against Armence Segura, in which certain mules and corn were sequestered. Judgment for defendant allowing exemptions, and plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Railroads (§ 381*) — Injuries on Track-Contributory Negligence.</p> <p>One who sat on the rail against the wheel of one of a string of freight cars on a switch, while waiting for a passenger train to arrive, to meet a passenger, was negligent, so as to bar recovery for injuries by an engine backing the car against him.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1285; Dec. Dig. § 381.*]</p> <p>2. Negligence (§ 83*) — Last Clear Chance • Doctrine.</p> <p>One who is himself negligent may recover for personal injuries, if defendant, after knowing of the danger, could have avoided the injury by exercising ordinary care, but failed to do so; the negligence of the injured person not being the proximate cause of the injury in such case.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*]</p> <p>3. Railroads (§ 390*) — Injuries—Contributory Negligence — Last Clear Chance Doctrine.</p> <p>Plaintiff’s negligence in sitting on the rail against the wheel of a freight car on a switch, in order to be in the shade while waiting for a passenger train, was concurrent with any negligence of the company in backing an engine against the cars without warning, and continued down to the very moment of the accident, so as to prevent the application of the last clear chance doctrine; it not being applicable where the negligence of plaintiff and defendant are concurrent, and each continues to the very moment of the accident.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.*]</p> <p>4. Railroads (§ 359*) — Injuries on Track-Injuries on Switches — Negligence.</p> <p>The exercise of due care does not require trainmen to look under stationary freight cars on a switch before moving them, to ascertain whether some one is sitting on the rails.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1238; Dec. Dig. § 359.*]</p> <p>5. Railroads (§ 307*) — Crossing Accidents —Negligence.</p> <p>A railroad company is not bound to station a flagman at the crossing of a switch over a street in a small town.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 975; Dee. Dig. § 307.*]</p> <p>6. Railroads (§ 398*) — Injuries on Track-Actions — Sufficiency of Evidence — Signals.</p> <p>In an action against a railroad company for injuries to plaintiff while sitting on the rail against a freight car on a switch, by the backing of an engine against the car, evidence held not to show that the bell was not rung as long as the backing train was in motion.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 398.*]</p> <p>7. Railroads (§ 398*) — Injuries on Track-Sufficiency of Evidence — Negligence.</p> <p>In an action against a railroad company for injuries to plaintiff while sitting on the rail against a freight car on a switch, by the backing of an engine against the car, evidence held not to show negligence by the company.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 398.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Insurance (§ 646*) —Policy — Construction—Burden oe Prooe.</p> <p>The onus probandi lies with an insurance company, seeking to escape the obligations of a policy, whose terms were written by it; and, under the rule that the conflicting testimony of witnesses of equal veracity will be disregarded, the defendant has failed to sustain this burden.</p> <p>[Ed. Note.—For other cases, see Insurance. Cent. Dig. §§ 1645-1668; Dec. Dig. § 646.*]</p> <p>2. Insurance (§ 389*)—Increase oe Hazard —Inspection.</p> <p>While the rule is well established that the increase of the hazard by means within the control of the insured may cancel the policy, still an insurance agent, making an inspection of premises and seeing conditions that might increase the hazards, must instruct the insured in regard to these things.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1028-1031; Dec. Dig. § 389.*]</p> <p>3. Insurance (§ 389*)—Inspector— Opinion as to Hazard.</p> <p>A prospective insurer, inquiring of an insurance inspector if the doing of a certain thing is hazardous; has a right to rely upon the answer of the inspector.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1028-1031; Dec. Dig. § 389.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Action by the American Well & Prospecting Company against the Lillie Oil Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Action by tbe W. W. Carre Company, Limited, against the International Car Company. Application of the Teutonia Bank & Trust Company, receiver of the International Car Company, for writs of prohibition and certiorari.</p>

Boatner, Judge. Suit by the White Hall'Agricultural Company and others against the Police Jury of Concordia Parish and others to restrain the collection of a special school tax. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>C. E. Terry was convicted of crime, and he appeals.</p>

<p>Appeal from Ninth Judicial District Court, Parish of East Carroll; F. X. Ransdell, Judge.</p> <p>Action hy Mrs. Josephine Bradley and others against Clifton F. Davis and others. Judgment for plaintiffs, and defendants appeal.</p>

B. Claiborne, Judge. Final accounting of Mrs. Mathilde Kahn, receiver of the Henry Cohn, Jr., Company, Limited, to which Gottlieb-Knox-Amiss Insurance Agency, Limited, and others filed opposition. From a judgment on the opposition, rejecting the receiver’s account, she appeals.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Charles Peterman against the Poitevant & Favre Lumber Company and AVilliam J. Poitevant. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mortgages (§ 151*) — Homestead (§ 125*)— Priorities.</p> <p>A special mortgage on a homestead is executory only on the surplus of the proceeds of a judicial sale over and above the amount of $2,-000, reserved to the debtor by article 244 of the Constitution; and as to such amount is primed by a subsequent special mortgage executed by the husband and wife, with a waiver of their homestead rights, pursuant to article 246 of the Constitution. Glenn v. Bresnan, 123 La. 1014, 49 South. 690, reaffirmed.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 307-336; Dee. Dig. § 151;* Homestead, Cent. Dig. § 223; Dec. Dig'. § 125.*]</p> <p>2. Homestead (§ 128*) — Mortgages—Value.</p> <p>Where such second mortgagor creditor received, on account, certain exempt movables attached to the homestead, the value of the same is properly deducted from the total homestead exemption of $2,000.</p> <p>[Ed. Note. — For other cases, see Homestead, Dec. Dig. § 128.*]</p> <p>3. Taxation (§ 531*) — Rights and Liabilities op Parties — Payment op Taxes by Mortgagee — Subrogation.</p> <p>A mortgage creditor, who has paid taxes on the property hypothecated, is subrogated by operation of law to the privilege of the taxing authorities.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. |§ 986, 987; Dec. Dig. § 531.*]</p> <p>4. Homestead (§ 193*) — Enforcement op Right — Time por Making Claim.</p> <p>The debtor or his assigns may claim the homestead exemption of $2,000 at any time before the proceeds of the judicial sale are paid out or distributed. Johnson v. Agurs, 116 La. 634, 40 South. 923, 114 Am. St. Rep. 562.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 364; Dec. Dig. § 193.*]</p> <p>Provosty, J, dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Divorce (§ 129*) — Grounds—Evidence—Stnreioienoy. '</p> <p>In a suit by a husband for divorce, evidence held not to establish adultery of the wife.</p> <p>[Ed. Note. — For other cases, see Divorce, Dec. Dig. § 129.*]</p>

<p> (Syllabus by the Court.) </p> <p>Taxation (§§ 415, 805*) — Assessment—Prescription-Possession.</p> <p>The tax assessment and the sale thereon were null and void.</p> <p>The owner was in possession of the property within three years after the adoption of the Constitution of 1898.</p> <p>The title does not come within the curative effect of article 233 of the Constitution.</p> <p>Over 10 years the property was assessed in the name of the defendant owner.</p> <p>Over 10 years the state collected taxes from him, as she collected taxes due her by all other owners of property.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. §§ 415, 805.*]</p>

Action by B. W. Hood against G. B. Wise. On plaintiff’s application for certiorari or writ of review to review a judgment of the Court of Appeal dismissing an appeal.

<p> (Syllabus by the Court.) </p> <p>Separation prom Bed and Board — Personal Violence — Burden op Proop.</p> <p>Where personal violence is exercised by the husband against the wife, the burden is on him to prove a lawful excuse.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 354-364; Dec. Dig. § 109.*]</p>

Case Certified, from Court of Appeal, Second Circuit. Action by Fred O. Newton and others against the Mutual Life Insurance Company. Judgment for plaintiffs, and defendant appeals to the Court of Appeal, with submitted questions of law for consideration. Record returned to the Court of Appeal.

<p>Action by Carter C. Welch against the New Orleans Great Northern Railroad Company. -Judgment for plaintiff, and defendant applies for a writ of certiorari.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Action by George W. Randolph against Charles V. Kraft and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Action by S. S. Lambeth against the New Orleans Great Northern Railroad Company. Judgment for plaintiff, and defendant applies for a certiorari.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Statutes (§ 109*) — Construction—Title— ■ Effect.</p> <p>An act cannot be broader than its title. [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 136-139; Dec. Dig. § 109.*]</p> <p>2. Licenses (§ 11*) — Occupations—Statutes —Construction.</p> <p>Act No. 42 of 1910, entitled “An Act to levy an annual license tax upon all persons * * * engaged in the business of lending money on or purchasing time, wages or salaries ■of wage-earners,” and providing that the license of each money broker, money lender, or person lending money on or purchasing time, wages, or salary of laborers, shall be graded according to the actual capital in use in the business, imposes a license on those who purchase time or lend money on wages and salaries, and one making loans to wage and salary earners on the moral security of their salaries and wages, without any assignments of salary and wages, is not within the act.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 18-21; Dec. Dig. § 11.*]</p>

<p>Appeal from Oivil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the State of Louisiana against Clinton W. Power. Judgment for defendant, and the State appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Husband and Wipe (§ 255*) — Community Property — Purchase with Separate Funds.</p> <p>Unless a husband, living with his wife under the régime of the community, when purchasing property with his separate funds, manifests a distinct and clear intention to invest such funds for his separate account, the property so purchased falls into the community, and he becomes a creditor of the community for the amount of his separate funds so invested, which amount does not, however, include funds derived by him, as revenue, from his separate property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 900-902: Dec. Dig. § 255.*}</p> <p>2. Judgment (§ 17*) — Process to Sustain— Successions.</p> <p>Where a husband, claiming as the heir of his wife, obtains a judgment recognizing him and putting him in possession as such of her estate, without the appointment of an attorney to represent the absent heirs of the wife, the judgment is of no more value than any other judgment rendered without citation; in other words, it is an absolute nullity, and the husband is no better off, by reason of it, with respect to the title to his deceased wife’s interest in the community property, than if he had taken possession of such interest without any judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. § 17.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Homestead (§ 1*) — Requirements—Conditions.</p> <p>A debtor who claims a homestead must combine in himself four indispensable conditions. (1) He must be the bona fide owner of the land. (2) He must occupy the premises as a residence. (3) He must have a family, or persons, or person, dependent upon him for support. (4) The property must not exceed in value $2,000. Denis v. Gayle, 40 La. Ann. 290, 4 South. 3; Hayden v. Sheriff, 43 La. Ann. 388, 8 South. 919.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>2. Homestead (§ 181*) — Abandonment.</p> <p>Homestead rights will not be presumed to be abandoned.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. § 181.*]</p> <p>3. Homestead (§ 181*) — Abandonment—Evidence.</p> <p>Leaving a homestead for a limited time is not of itself sufficient proof of abandonment of the homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. '§§ 351-353; Dec. Dig. § 181.*]</p> <p>4. Homestead (§ 162*) — Abandonment—Intent.</p> <p>The fact of abandonment is largely a question of intention, to be determined from all the circumstances. 21 Cyc. 603; Lyons v. Andry, 106 La. 359, 31 South. 38, 55 L. R. A. 724, 87 Am. St. Rep. 299; Burch v. Mouton, 37 La. Ann. 725; 15 Amer. & Eng. Encyc. pp. 640, 643.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. § 162.*]</p> <p>5. Homestead (§ 181*) — Abandonment—Burden of Proof,</p> <p>The burden of proof is on the party alleging abandonment of a homestead. Jones v. Kepford (Wyo.) 100 Pac. 923.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. § 181.*]</p> <p>6. Homestead (§ 71*) — Creation—Value.</p> <p>The homestead may be declared by the owner; and he may carve it out of a plantation or larger tract, provided it is no more than 160 acres, surrounding his residence, and does not</p> <p>exceed $2,000 in value. Todd v. Gordy, 28 La. Ann. 666.</p> <p>[Ed. Note. — Fox other cases, see Homestead, Cent. Dig. § 104; Dec. Dig. § 71.*]</p> <p>7. Homestead (§ 203*) — Seizure and Sale-Procedure.</p> <p>In the event of seizure and sale, the declared homestead shall be offered for sale separate and apart from surrounding lands; and, if the bid thereon is for $2,000 or less, it shall not be sold. If it brings more than $2,000 the debtor is entitled to be paid $2,000 net from the proceeds of sale.</p> <p>[Ed. Note. — For other cases, - see Homestead, Cent. Dig. §§ 384-386; Dec. Dig. § 203.*]</p> <p>8. Exemptions (§ 105*) — Seizure oe Movable Property — Rights oe Lessee.</p> <p>Other rules have application where a farmer, wlxo is a lessee, claims exemption from seizure of certain movable property. Dejean v. Lee, 124 La. 239, 50 South. 25.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 135; Dec. Dig. § 105.*]</p>

<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, Limited. From the judgment, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Commerce (§ 72*) — Interstate Commerce— Taxation.</p> <p>A state cannot tax interstate commerce. [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 123-136; Dec. Dig. § 72.*]</p> <p>2. Commerce (§ 41*) — Interstate Commerce.</p> <p>The business of importing beer into the state and selling it therein in the original packages is interstate commerce; and hence cannot be taxed by the state.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 30, 31; Dee. Dig. § 41.*]</p> <p>3. Commerce (§ 64*) — Interstate Commerce-Regulation — License.</p> <p>Since Act No. 171 of 1898, the general license law, is purely a taxing law, and not a police regulation, it is not applicable to impose a license on sales of beer which constitute interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 105; Dec. Dig. § 64,*]</p> <p>4. Intoxicating Liquors (§ 51*) — Licenses— Business Licensed — “Other Place.”</p> <p>Act No. 176 of 1908, § 1, known as the “Gay-Shattuck Act,” requires a license of from $200 to $1,600 based on the annual gross receipts of the business for every business conducting a barroom, cabaret, café, beer saloon, or other place where intoxicating or malt liquors are sold in quantities of less than five gallons. Section 3 contains a prohibition of the sale of malt liquors, etc., without a license, in substantially the same language designating the various places as in section 1. Section 4 provides that the statute shall not apply to .groceries where liquor is sold in original packages, and not consumed on the premises. Section 8, in prescribing the formalities to be observed in licensing places where liquors are sold to be drunk on the premises, gives the same list of places as in section 1, hut does not add “other places” where liquor is sold, and sections 10 and 11 also discriminate between barrooms and other places where liquors are sold not to be drunk on the premises. Held, that the statute required a license for the sale of malt liquors in original packages from a brewery warehouse; such warehouse coming within the provision “other place” where malt liquors are sold.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 52; Dec. Dig. § 51.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5070-5102; vol. 8, pp. 7741-7743.]</p> <p>5. Statutes (§ 121*) — Titles—Subjects.</p> <p>Act No. 176 of 1908, known as the “GayShattuck Act,” entitled “An act to regulate and license the business of conducting a barroom * * * or other places where alcoholic,” etc., liquors are sold, is broad enough to include provisions regulating and licensing the sale of malt liquors.</p> <p>[Ed. Note. — For other cases, see Statutes, Dec. Dig. § 121.*]</p> <p>6. Commerce (§ 64*) — Interstate Commerce— “Police Regulation.”</p> <p>The Gay-Shattuck act is not a revenue act, but a police regulation, within Act Cong. Aug. 8, 1890, c. 728, 26 Stat. 313 jU. S. Comp. St. 1901, p. 3177), known as the “Wilson Law,” providing that all intoxicating liquors transported into any state for sale, etc., shall be subject to the operation of laws enacted in the exercise of the police powers, though imported in the original packages, so that a license could be imposed thereunder upon the sale of malt liquor brought into the state in original packages by a brewery.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 64.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5438, 5439.]</p>

J. Chauvin, Judge ad hoc. Action by the Fred Miller Brewing Company against the Ascension Ice Company, Limited, in which G. J. Labarre filed a third opposition. Judgment for third opponent, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Estoppel (§ 3*) — By Pleading.</p> <p>An allegation in a petition for executory process that the note proceeded on was received in pledge on a certain date does not estop the plaintiff from thereafter alleging, in answer to a petition for injunction, that the note and pledge were so received as continuing security for a balance due upon a pre-existing debt to secure which they were already held by the pledgee.</p> <p>[Ed. Note. — Eor other cases, see Estoppel, Cent. Dig. § 3; Dec. Dig. § 3.*]</p> <p>2. Novation (§ 4*) — Substitution of New Obligation Between Same Parties.</p> <p>The taking of a new note in partial renewal of an old one, upon which a payment on account is made, does not operate a novation, or extinguish the original debt or the pledge securing the same.</p> <p>[Ed. Note. — For other cases, see Novation, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>3. Bills and Notes (§ 365*)— Bona Fide Purchaser.</p> <p>Where one executes a negotiable promissory note and a mortgage to secure the original holder and all subsequent holders thereof, and delivers the note to the said original holder, to be used by him in raising money for the use of the maker, and the money is so raised (by a pledge of the note, before maturity, to one who takes it in good faith and without notice of any equities or vices which may affect it), and is deposited to the credit of the maker and drawn out by him or his authorized agent, there can be no question as to the maker’s personal liability, and this whether his agent drew the money and used it for his own purposes, or whether, having been furnished by the maker with the means wherewith to pay the note, he used such means and left the note unpaid.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 959; Dec. Dig. § 365.*]</p> <p>4. Bills and Notes (§ 330*) —Bona Fide Purchaser — Notice oe Transfer.</p> <p>There is nothing in Civ. Code, art. 3158, as amended by Act No. 157 of 1900, upon which to rest the proposition that, in order to affect the maker of a mortgage note, and identify him with the pledge of the note to a third person, so as to cut off equities which may have existed between him and the original mortgagee, it is necessary that he be notified of the pledge.</p> <p>[Ed. Note. — For other cases, see Bills and 'Notes, Dec. Dig. § 330.*]</p> <p>5. Mortgages (§ 258*) — Bona Fide .Purchaser-Mortgage Note.</p> <p>It is true that a mortgage is not negotiable ; but it is also true that a mortgagor cannot under all circumstances set up against an innocent transferee of the mortgage the equities that he might set up against the original mortgagee. The rule upon that subject has been stated as follows: “A bona fide holder of a mortgage note, acquired before maturity, secured by mortgage, duly recorded, which has been executed by one having lawful authority to make it and bearing on its face nothing to impeach its validity, cannot be defeated in his mortgage rights by secret equities between the original parties, or arising after its execution, of which neither the act nor the public records afforded any notice, and of which he had no actual notice, at least, when such equities are opposed by the original mortgagor or in his right.”</p> <p>[Ed. Note. — For other cases, see Mortgages, ■Cent. Dig. §§ 689-691; Dec. Dig § 258.*]</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by Lee Robertson and wife against the Town of Jennings. Judgment for plaintiff Lee Robertson, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Municipal Coepoeations (§ 110*) — OediN AN OES — VALIDITY.</p> <p>An ordinance of a town council must be promulgated in the way directed in the law to have any effect. Section 33, Act No. 136 of 1898; Mayor of Breaux’s Bridge v. Dupuis, 30 La. Ann. 1105; Town of Mandeville v. Band, 111 La. Ann. 806, 35 South. 915.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 239-244; Dec. Dig. § 110.*]</p> <p>2. Municipal Coepoeations (§ 122*) — Oedinances — Validity.</p> <p>' Where the fact is denied that a certain ordinance has been enacted by a town council, the fact can only be proved by the deliberations of the council, and their promulgation, duly attested.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 287-289; Dec. Dig. § 122.*]</p>

<p> (Syllabus by the Oowrt.) </p> <p>1. Death (§ 31*) — Pleading (§ 8*) — Action by Wife — Abandonment of Husband — Conclusions.</p> <p>Assuming that desertion, without lawful excuse, on the part of the wife, is sufficient to deprive her as widow of the statutory right to sue for damages for the suffering and death of the husband caused by the fault or negligence of a third person, such desertion is not shown by the mere fact that the wife lived separate and apart from her husband during the pendency of a divorce suit by him instituted for alleged cause of adultery. The allegation that certain facts constitute abandonment is a conclusion of law,.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. | 42; Dec. Dig. § 31;* Pleading, Dec. Dig. § 8.*]</p> <p>2. Costs (§ 223*) — Costs on Appeal — Power of Appellate Court.</p> <p>Under Act No. 229 of 1910, all appellate courts have the power to tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judjpnent may be deemed equitable. This rule applied to costs occasioned by exceptions overruled by the Supreme Court.</p> <p>TEd. Note. — For other cases, see Costs, Cent. ■Dig. §§ 835-837; Dec. Dig. § 223.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§§ 636, 660*) — Tbial—-Presence of Accused.</p> <p>Not only must the defendant be present at every stage of his trial-for a felony, but the record must show his presence or disclose facts that will authorize the presumption that he was present; and a conviction in such case is vitiated when it appears, affirmatively, that the defendant was absent from the court whilst a person, called as a juror, was being examined on his voir dire, and when he was challenged peremptorily by his (defendant’s) counsel. Nor does it affect the question that defendant failed, at the time, to object and except, since “That which the law makes essential, in the deprivation of life and liberty, cannot be dispensed with or affected by the consent of the accused; much less, by his mere failure, when on trial and in custody, to object to unauthorized methods.”</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §■§ 1465-1482; Dec. Dig. §§ 636, 660.*)</p> <p>2. Criminal Law (§ 1122*) — Refusal of Instructions — Review.</p> <p>Whether a particular charge, apparently sound, as an abstract proposition, should be given in a particular case, depends upon the testimony adduced, and, without that testimony, this court is in no position to reverse the ruling of the trial court in refusing to give the charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2942; Dec. Dig. § 1122.*]</p> <p>3. Criminal Law,(§ 951*) — Appeal—Conviction of Felony — Motion fob New Trial.</p> <p>Three days is not an unreasonable delay for the preparation and filing of a motion for new trial, upon a conviction of felony, and, where the mover is ready with his witnesses, they should be heard.</p> <p>[E'd. Note. — For other cases, see Criminal Law, Dec. Dig. § 951.*]</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; R. B. Dawkins, Judge.</p> <p>Action by Bond & Braswell against tbe Scott Lumber Company, Limited, and others. ■Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant (§ 227*) — Injuries — Contributory Negligence — Effect.</p> <p>The widow and minor heirs of a decedent cannot recover damages for his suffering and death, where he was working in a safe place, and thoughtlessly or recklessly left his position and unnecessarily exposed himself to danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 668-672; Dec. Dig. I 227.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Joe Maroun was convicted of an illegal sale of liquor, and appeals.</p>

Action by W. L. Prince against the Tremont & Gulf Railroad Company. Judgment for plaintiff before a justice affirmed in the district court, and defendant applied for writ of certiorari.

<p>Frank Nieolosi, having been convicted, of an offense, applies for certiorari and prohibition.</p>

Action by Hugh M. Bone and others against the Sixth Ward and Crowley Drainage District and others. Judgment for .plaintiffs, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Depositions (§ 56*) — Notice of Taking— / Necessity.</p> <p>' Under Code Prac. arts. 425, 426, 428, providing for the issuance of a commission to take testimony, and requiring that notice be served bn the opposite party before the commission is sent, testimony taken without service of such notice cannot be used.</p> <p>[Ed. Note. — Por other cases, see Depositions, Gent. Dig. §§ 90-117; Dec. Dig. § 56.*]</p> <p>2. Depositions (§ 56*) — Notice of Commission — Upon Whom Served.</p> <p>Notice of a commission to take testimony provided for by Code Prac. arts. 425, 426, 428, •can only be served upon a party to a suit.</p> <p>[Ed. Note. — Por other cases, see Depositions, Cent. Dig. §§ 90-117; Dec. Dig. § 56.*]</p> <p>•3. Depositions (§ 22*) — “Acte De Notoriété.”</p> <p>An “acte de notoriété” is the deposition of witnesses taken before a notary, establishing the identity and genealogy of a person accompanied by official certificates from the registers •of births, marriages, and deaths.</p> <p>[Ed. Note. — Por other cases, see Depositions, Gent. Dig. § 33; Dec. Dig. § 22.*]</p> <p>4. Depositions (§ 88*) — Admissibility — Hearsay.</p> <p>Depositions in an acte de notoriété being taken before a notary are not admissible in evidence, being no more than hearsay statements.</p> <p>[Ed. Note. — Por other cases, see Depositions, Cent. Dig. §§ 234-245; Dec. Dig. .§ 88.*]</p> <p>5. Evidence .(§ 341*) — Documentary Evidence — Official Registers — Authenticated Copies.</p> <p>Duly authenticated copies of official registers of births, marriages, and deaths are admissible in evidence.</p> <p>[Ed. Note.- — Por • other cases, see Evidence, Cent. Dig. §§ 1289-1292; Dec. Dig. § 341.*]</p> <p>6. Depositions (§ 104*) — Right to Object— Estoppel. ■</p> <p>As litigants deal at arms’, length, and neither is under any duty to assist the other, an attorney who previous to the' institution of a suit had acquired the interest of one made a defendant is not estopped from denying that he was individually served with notice of a commission to take testimony because he filed exceptions for the defendant who was his client, and did not inform the plaintiffs that he 'was the real owner of the property, in litigation.</p> <p>[Ed. Note. — Por other cases, see Depositions, Cent. Dig. §§ 300, 301; Dee. Dig. § 104.*]</p> <p>7. Evidence (§ 580*) — In Other Actions— Identity of Parties.</p> <p>Evidence taken in a suit to which the litigant was not a party cannot be used against him.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2413; Dec. Dig. § 580.*]</p> <p>8. Evidence (§ 580*) — In Other Actions— Identity of Parties.</p> <p>Where a plaintiff, who filed a suit joining numerous parties, dismissed as to some, and filed a supplemental petition against another, the party brought in on the supplemental petition was not a party before the filing- of that petition, so that evidence taken previously is inadmissible against him.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2413; Dec. Dig. § 580.*]</p>

<p>(Syllabus by the Court.)- , .</p> <p>1. Marriage (§ 42*) — Evidence—Sufficiency»</p> <p>In the absence of primary evidence to prove marriage, it may be proved by secondary or circumstantial evidence.'- Acts of the parties showing their own .conception of their mutual rela!tions are evidences of marriage, in'the absence of proof of the-celebration. Powers-v. Executors, 35 La. Ann. 630; Blasini v. Blasini, 30 La. Ann. - 1397; Bothick v. ■ Bothick, 45' La. Ann. 1382, 14 South. 293. . :</p> <p>[Ed. Note. — For other cases, see Marriage,, Cent. Dig. §§ 70, 78; Dec. Dig. § 42.*]</p> <p>2. Husband ’and Wife (§§ 273, 274*) — Community Property — Death of Husband — Successions.</p> <p>On the dissolution of a community by the-death of one of the parties, the interest of the deceased is transmitted to his heirs, although the-surviving spouse may retain the usufruct, thereof.</p> <p>[Ed. Note. — For other cases, see Husband and Wife. Cent. Dig. §§ 1008-1031; Dec. Dig. §& 273, 274.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by the Globe & Rutgers Fire Insurance Company against the City of New Orleans and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Homicide (§ 310*) — Assault with Intent to Kill — Instructions.</p> <p>Where the accused is charged with striking another with a dangerous weapon, and the whole theory of the case was that he struck, and there is not an iota of evidence to the contrary, it would be a loss of time were the judge to instruct the jury that they may find him guilty of an assault.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 660; Dec. Dig. § 310.*]</p> <p>2. Homicide (§ 310*) — Assault with Intent to Kill — Instructions.</p> <p>The accused was not charged with having committed the crime of assault and battery; there was no theory based on any such a state of facts — not a particle of evidence introduced to sustain any such theory, and not an issue presented upon any such basis in the district court. Held, that the defense cannot insist upon an abstract instruction to go to the jury.</p> <p>It devolved upon the defense to make some sort of showing that the defendant, if guilty, is guilty of an offense less in degree than that charged. Matthews Case, 111 La. 963, 3(5 South. 48.</p> <p>[Ed. Note. — For other cases, see Homicide, Dec. Dig. § 310.*]</p> <p>3. Homicide (§ 307*) — Assault with Intent to Kill — Instructions as to Minor Offenses.</p> <p>If one be charged with murder, there is a statute requiring an instruction as to minor offenses.</p> <p>There is no statute where the defendant is charged with having struck a prosecuting witness with a dangerous weapon with intent to kill and murder him.</p> <p>[Ed. Note. — For other cases, see Homicide, Dec. Dig. § 307.*]</p> <p>4. Plea of Guilty.</p> <p>Four accused were indicted for the same offense. One pleaded guilty of assault and battery. The district attorney accepted the plea, and he was, accordingly, sentenced for that crime.</p> <p>5. Criminal Law (§ 528*) — Several Defendants — Conviction of One for Lesser Offense.</p> <p>That can be of no possible consequence in the case, for, where several accused are condemned, one may be guilty of a lesser offense than the others, and it is then not improper to accept a minor plea.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1002; Dec. Dig. § 528.*]</p> <p>Provosty, J., dissenting.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Edward Slattery against the Greater New Orleans Realty & Development Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Cowrt.) </p> <p>1. Perjury (§ 19*) — Indictment.</p> <p>In a charge of perjury, all the several particulars in which the prisoner swore falsely may be embraced in one count: and proof of the falsity of one will sustain the count. Wharton’s Criminal Law (9th Ed.) §§ 1299, 1301.</p> <p>[Ed. Note. — For other eases, see Perjury, Cent. Dig. §§ 65-77; Dee. Dig. § 19.*]</p> <p>2. Perjury (§ 26*) — Indictment—Definiteness.</p> <p>The particular averment, or averments, negativing and contradicting the matter alleged to have been falsely sworn to, must be sufficiently definite and certain to apprise the accused of the particular charge or charges against which he ought to prepare to defend himself. Pudge v. State, 57 Fla. 7, 49 South. 128; 17 Am. & Eng. Ann. Cases, 923.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.*]</p> <p>3. Witnesses (§ 363*) — Credibility — Evidence-Impeachment.</p> <p>It is competent to attack the credibility of a witness by showing bias or prejudice.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1177-1181; Dee. Dig. § 363.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law (§ 935*) — New Trial — Power of Court.</p> <p>The trial court has the power to set aside a verdict not supported by sufficient evidence, and where the evidence is insufficient it must set aside the verdict on motion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2297-2298; Dec. Dig. § 935.*]</p> <p>2. Homicide (§ 151*) — Self-Defense — Burden of Proof.</p> <p>Accused, relying on self-defense, does not have the burden of proving that the killing was justifiable; but the state has the burcien of proving beyond a reasonable doubt that the killing was not justifiable.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.*]</p> <p>3. Witnesses (§ 414*) — Impeachment— Corroboration.</p> <p>Where a state’s witness was impeached by the testimony of a witness for accused that the state’s witness had stated that the district attorney had rehearsed the testimony of the state’s witness, the district attorney, to corroborate the state’s witness, was properly permitted to testify that there had not been any rehearsal of the testimony of the state’s witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Busch-Everett Company against the Vivian Oil Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M, Burns, Judge.</p> <p>Action by L. W. Perckmann and others ■against the Mount Eagle Construction Company, Limited, and others. Decree for complainant, and defendant Le Sassier appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Constitutional Law (§§ 89, 298*) — Cae- . eiees (§12*) — Railroads—Mileage Books —Due Process oe Law — Right to Contract.</p> <p>Act No. 290 of 1910, providing that railroads doing business within the state shall issue mileage books, good for the members of the family of the purchaser, was unconstitutional as depriving the railroad company of the right to contract, and of its property without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 157, 847; Dec. Dig. §§ 89, 298 ;* Carriers, Cent. Dig. §§ 7-20; Dec. Dig. § 12.*]</p> <p>2. Carriers (§ 12*) — Regulation — Legislative Authority — Mileage Books.</p> <p>Act No. 290 of 1910, requiring carriers to issue 1,000-mile mileage books, good for all the members of the purchaser’s family, was invalid as without the authority of the Legislature, in that it authorized a discrimination in favor of those who purchased such tickets.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ '7-20; Dec. Dig. § 12.*]</p>

<p> (Syllabus by the Court.) </p> <p>Minors — Juvenilis Courts — Probation Oeeicer — Compensation.</p> <p>The'police jury of the parish of East Baton Rouge is empowered to fix the salary of the probation officer appointed by the judge of the juvenile court in and for said parish. The fixing of the compensation of such officer is not a judicial function.</p> <p>[Ed. Note. — For other cases, see Infants, Dee. Dig. § 17.*]</p>

Case Certified from Court of Appeal, Parish of Orleans. Action by the State, on the relation of Charles Mallu, against the Judge of Division D of the Civil District Court for the Parish of Orleans. Certified from the Court of Appeal for instructions.

<p> (Syllabus by the Court.) </p> <p>Husband and Wife (§ 262*) — Estoppel (§ 29*) — Community Peopeety — Presumptions.</p> <p>The presumption that the property bought in the name of the wife belongs to the community is merely prima facie, and the wife may prove by parol evidence that the purchase was made with her separate funds, although the act of sale contains no such recital. The wife’s title to property standing in her name, and by her conveyed to a third person, cannot be assailed by such person in a suit against the husband alone.</p> <p>[Ed. Note. — For other cases,'see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262 ;* Estoppel, Cent. Dig. §§ 69-73; Dec. Dig. § 29.*]</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; B. P. Edwards, Judge.</p> <p>Action by Emanuel Vanzant against the Bodcaw Lumber Company. Judgment for plaintiff, and defendant and intervener appeal.</p>

<p> (Syllabus, by the Court.) </p> <p>1. Master and Servant (§ 248*) — Injury to Servant — Contributory Negligence — Last Clear Change.</p> <p>Where defendant railroad company has a last clear chance to prevent an accident and does not avail itself of it, it will be mulcted in damages.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. § 248.*]</p> <p>2. Master and Servant (§ 282*) — Personal Injuries — Exemplary Damages.</p> <p>Where defendant’s employe in operating his train displays reckless disregard for human life, damages will be awarded for any resulting-loss and injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. 'Dig. §§ 997-999; Dee. Dig. § 282.*]</p> <p>3. Operation oe Railroads — Care Required.</p> <p>Railroad companies are held to the greatest care and diligence both in regard to the machinery and equipment of their roads and the acts of their officers and agents. Hanson v. Railroad Co., 38 La. Ann. Ill,' 58 Am. Rep. 162; Lynn v. Antrim Lumber Co., 105 La. 455, 29 South. 874.</p>

<p> (Syllabi by the Court.) </p> <p>1. Criminal Law (§ 413*) — Exculpatory Statements.</p> <p>Exculpatory statements of the accused are not subject to the same rules which govern confessions or admissions of guilt.</p> <p>[Ed. Note. — For other cases, ree Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.*]</p> <p>2. Homicide (§ 166*) — Evidence.</p> <p>Where the evidence tended to show that robbery was the motive of the homicide, it was competent for the state to prove that the deceased, the day before his death, was in possession of money and other valuables.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 329; Dec. Dig. § 166.*]</p> <p>3.Criminal Law (§ 406*) — Evidence.</p> <p>Where the accused employed a notary to certify a pension voucher and to obtain an order for its payment from the proper United States authority, conversations between them relative to such subject-matter are admissible as explanatory of the acts of the parties.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-927; Dec. Dig. 406.-]</p> <p>4. Criminal Law (§ 338*) — Circumstantial Evidence — Relevancy.</p> <p>Where the state relies exclusively on circumstantial evidence, the objection of irrelevancy is without force, unless, after the close of the evidence for the prosecution, the accused requests the court to strike out the evidence objected to as irrelevant or to instruct the jury to disregard it, and the court refuses to do so.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752-757, 787, 788, 801, 855; Dec. Dig. §-338.*]</p> <p>5. Criminal Law (§ 855*) — Trial—Misconduct oe Jurors.</p> <p>Where, during the protracted trial of a murder case, a barber, with the previous permission of the court, attended by the sheriff, entered the jury room and shaved some of the jurors, and trimmed the hair of others, and then retired .without speaking a word to any member of the jury, except saying “good-bye” as he walked out, held, that the facts affirmatively proved the absence of misconduct and prejudice.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2048-2053; Dec. Dig. § 855.*]</p> <p>6. Criminal Law (§ 855*) — Trial—Misconduct oe Jury.</p> <p>Where the jury, with previous permission of the court, and under the charge of a deputy sheriff, attended a theatrical performance, sitting apart from the rest of the audience, and holding communication with no outsider while there or in coming and going, held, that the facts affirmatively established the absence of misconduct and prejudice. The fact that a deputy sheriff was a witness for the prosecution does not disqualify him from serving as jury bailiff.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2048-2053; Dec. Dig. § 855.*]</p> <p>7. Criminal Law (§ 1144*) — Trial—Misconduct oe Jury.</p> <p>Where there has been no separation of the jury, there is no presumption of misconduct, and it is for the court to determine on the evidence whether the alleged irregularities were of such a tendency as to influence their verdict.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3033; Dec. Dig. § 1144.*]</p> <p>8. Witnesses (§ 274*) — Character Witnesses — Cross-Examination.</p> <p>A character witness for the accused may be asked on cross-examination as to whether he had ever heard that the accused had been arrested for, or charged with any crime or offense. A verdict and sentence in a criminal case will not be reversed unless both error and prejudice are shown by the record.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 965-966; Dec. Dig. § 274.*]</p> <p>9. Criminal Law (§ 829*) — Special Instructions.</p> <p>Special instructions should not embrace propositions of law already substantially cjharged by the court, but should be restricted to particular omissions and errors in the general charge to which exception has been taken by the accused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Drainage (§ 15*) — Establishment of Drainage District — Rights oe Municipal Corporation.</p> <p>The city of Monroe, being exempt by its charter from the jurisdiction of the police jury of the parish, is within its rights in declining to be included in a drainage district attempted to be created by that body.</p> <p>[Ed. Note. — For other eases, see Drainage, Cent. Dig. § 7; Dec. Dig. § 15.*]</p> <p>2. Municipal Corporations (§ 323*) — Public Improvements — Levee and Drainage System.</p> <p>The city of Monroe being vested by direct and specific grant from the General Assembly with the power to provide for itself a levee and drainage system, that power cannot be exercised by citizens, who may entertain views upon the subject, or by expert witnesses, whose opinions may be obtained, or by the courts after hearing such citizens and witnesses. The grant carries with it the. power to determine what system shall be provided; and the exercise of that discretion cannot be judicially interfered with or questioned, except where the power is exceeded, or fraud is imputed and shown, or there is a manifest invasion of private rights, or gross abuse.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 842-846; Dec. Dig. § 323.*]</p> <p>3. Municipal Corporations (§ 278*) — Drains-—Establishment—“Emergency.”</p> <p>Where an idea of establishing a drainage system has been in process of incubation for a number of years, and there is no unforeseen occurrence or combination of circumstances which operate to change the situation, it cannot be said that the putting of the idea into execution at a particular time was’ demanded by an “emergency.”</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 278.*]</p> <p>4. Injunction (§ 12*) — Subjects oe Relief-Injunction Ineffectual.</p> <p>While the charter requirement of a municipal corporation that work and material shall be let to, and bought from, the lowest bidder, is to be enforced as written, it cannot well be enforced, by injunction, as to work already done or material already bought, nor yet as to work to be done or material to be bought, when the evidence shows that it was, and is, the intention to conform to said requirement.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 12.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>5. Words and Phrases — “Emergency.”</p> <p>“Emergency” is an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency.</p> <p>TEd. Note. — For other definitions, see Words and Phrases, vol. 3, p. 2361.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Appeal and Error (§ 365*) — Return Day-Failure of Judge to Fix.</p> <p>Under Act No. 92 of 1900, providing that the judge shall fix the return day in the order granting the appeal, where no return day was fixed, the order for appeal was ineffective.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 365.*]</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relie, Judge.</p> <p>Action by the First National Bank against Powell Bros. & Sanders Company, Limited. From a judgment approving a sale by a receiver of defendant, the party aggrieved appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1.Master and Servant (§§ 121, 124*) — Injuries to Servant — Safe Place to Work-Duty of Master.</p> <p>It is negligence, so gross as to border upon criminality, for an oil company, engaged in boring a well, to expose its employes to the danger of sudden death from the breaking of the chains used in conveying the motive power from the engine to the drill, or rotary, when such danger can be guarded against, in part, by proper inspection of the chains and, otherwise, by boarding up the side of the derrick upon the floor where the machinery is operated.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 229, 235; Dec. Dig. §§ 121, 124.*]</p> <p>2.Master and Servant (§ 248*) — Injuries to Servant — Contributory Negligence.</p> <p>Whilst a particular spot, or line, upon the floor of a derrick, where boring for oil or gas is going on, may be regarded as so dangerous, from the possible breaking of a chain, that no one, expecting to remain upon the floor for any length of time, would deliberately place himself there, yet, if the danger be not obvious, or, apparently, imminent, and there is no such choice between it and any other place on the floor as would prevent an employs, having business with the driller, from placing himself there, for a moment, for the transaction of such business, the inadvertence of the employs, in so placing_ himself, will not relieve the employer of liability for damages for injury done to him, by the breaking of a chain, when it appears that the danger might have been guarded against by a simple and inexpensive expedient. Inadvertence, or momentary failure to appreciate a non-apparent danger, on the part of men accustomed to working about dangerous machinery, can hardly be called negligence, because, being inherent in human nature, the most prudent are not exempt from it, and where the employer, without reason or necessity, creates a danger, he has no right to expect never-failing and superhuman watchfulness on the part of the employe to escape it. To hold otherwise would be to require too little from the one and too much from the other.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 801; Dec. Dig. § 248.*]</p> <p>3.Master and. Servant (§ 209*) — Injuries to Servant — Assumption of Risk — Negligence of Master.</p> <p>A man employed upon an oil derrick does not assume the risk of his employer’s negligence in failing properly to inspect the chains by which the drill is driven.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 552; Dec. Dig. § 209.*]</p> <p>4. Damages (§ 185*) — Evidence—Physical Pain.</p> <p>Where the skull of a workman is crushed by a blow received from a broken and flying chain, but he lives for several weeks thereafter, and is, at times, semiconscious, .and so far conscious as to respond to calls made upon him by smiling and attempting to speak, the testimony of a witness, who was with him day and night, to the effect that he appeared, at times, to suffer intensely, taken in connection with an admission that experts, if sworn, would differ upon the question whether a person in a semiconscious state can suffer pain, authorizes the conclusion that the patient did suffer physical, though not, perhaps, mental, pain, and this notwithstanding that he -did not appear so to suffer at .any time when he was visited by the attending surgeon.</p> <p>[Ed. Note. — Por other eases, see Damages, Cent. Dig. §§ 503-508; Dee. Dig. 185.*]</p> <p>5. Death (§ 31*) — Actions eoe Causing Death — Right oe Action — Statutoey Pbovision.</p> <p>Under Act No. 120 of 1908, brothers and sisters, in default of child, widow, or parent, succeed to the right of action which a person who dies from an injury had, at the moment of his death, against him by whose fault the injury was received, and they (the brothers and sisters) have also a right of action upon their own account for the recovery of damages for the injury, moral or mental, as well as material, sustained by them by reason of such death.</p> <p>[Ed. Note. — Por other cases, see Death, Cent. Dig. §§ 35-46; Dec. Dig. § 31.*]</p> <p>Provosty, J., dissenting in part on rehearing.</p>

Action by the interstate Trust & Banking Company against the Powell Bros. & Sanders Company, Limited. Application by complainant for writ of mandamus, prohibition, and certiorari to compel the receiver of defendant corporation to pay over to the coroner, acting as sheriff in mortgage foreclosure proceedings, the proceeds of a sale of the mortgaged property.

Burns, Judge. Action by the Hackley State Bank against M. M. Magee and others. Judgment for plaintiff against certain of the defendants, and they appeal.

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 95*) — Burden of Proof.</p> <p>The burden of proof is on the plaintiff in an ordinary suit for damages.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 118; Dec. Dig. § 95.*]</p> <p>2. Nuisance (§ 49*) — Evidence—Sufficiency.</p> <p>A plaintiff sustains the burden of proof when be shows that at the time his plants were destroyed and damage suffered, the defendant’s factory was freely emitting fumes,' gases, and acids, which'are destructive of plant life, and that the wind was blowing the fumes, etc., towards his premises, some 900 feet distant, and that there was no other known agency of destruction existing in the vicinity.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 115-117; Dec. Dig. § 49.*] ■</p>

<p> (Syllabus by the Court.) </p> <p>Deeds (§ 101*) — Boundaries (§ 49*) — Indefinite Description — Construction by Parties — Possession.</p> <p>Where the description of a tract of land is ambiguous or uncertain, the particular construction put upon the deed by the parties may be resorted to for the purpose of ascertaining their intention. Possession governs where the metes and bounds cannot be fixed by reference to the respective titles.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 233; Dec. Dig. § 101;* Boundaries, Dee. Dig. § 49.*]</p>

Action by William E. Roberson against Mrs. Mary C. Goldsmith, and. others. Judgment for plaintiff, and defendants appeal. Appeal dismissed, and they apply for writ of prohibition. Civil District Court, Parish of Orleans.

King, Judge. Proceedings for the interdiction of Mrs. Edna Jones Hellwege. From a judgment fixing the fees of the attorney appointed by the court to represent defendant in the proceedings, the curator of the interdict appeals.

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 207*) — Supreme Courts — Supervision over Inferior Courts.</p> <p>Article 94- of the Constitution gives this court plenary power of control and general supervision over inferior courts. And in the exercise of this power the court will issue its writs in its discretion, according to the exceptional features of each case submitted.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 613, 615; Dec. Dig. § 207.*]</p> <p>2. Set-Off and Counterclaim (§ 34*) — Claim in Reconvention.</p> <p>Under article 375 of the Code of Practice, a defendant cannot reconvene and claim from plaintiff, residing in another parish, damages for an alleged libel in a pending suit. He must await the termination of the suit in which he alleges himself to have been libeled, before he can file his demand in damages.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 56, 57; Dec. Dig. § 34.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Marriage (§ 64*) — Failure to Support-Enforcement of Right.</p> <p>In a suit brought by a husband to have the marriage declared a nullity, the wife cannot proceed by a rule therein to compel the husband to support their child, but is relegated to the remedy provided by Act No. 84 of 1902.</p> <p>[Ed. Note. — For other cases, see Marriage, Cent. Dig. § 136; Dec. Dig. § 64.*]</p> <p>2. Parent and Child (§ 17*) — Failure to Support — Jurisdiction of Juvenile Court.</p> <p>Proceedings under Act No. 34 of 1902, to compel the father to support his child, are in the nature of criminal proceedings, over which the juvenile court has jurisdiction.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec. Dig. § 17.*]</p>

<p>Appeal from Fifteenth Judicial District Court, PariHi of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by Otis R. Pray against Marie Bertha Pray. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Taxation (§ 735*) — Sale fob Taxes — Defects — Pbesceiption .</p> <p>Where property was assessed, and was liable for the taxes for which it was sold, all other defects in the proceedings are cured by the constitutional prescription of three years, except where the current of prescription has been suspended by the continued actual possession of the tax debtor, his heirs, or assigns.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1474; Dec. Dig. § 735.*]</p> <p>2. Taxation (§ 788*) — Tax Deed — Presumptions.</p> <p>■Where a levee board received the price of certain lands, and its president and secretary executed a title to the purchaser under the corporate seal, the presumption is that the officers did not exceed their authority.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1561; Dec. Dig. § 788.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the New Orleans Polo Club against the New Orleans Jockey Club. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. E. Blackman, Judge.</p> <p>Action by Mrs. Elocie Joiner and husband against the Texas & Pacific Railway Company. Erom a judgment for plaintiffs, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Ceetioeabi (§ 60*) — Dismissal.</p> <p>Where the applicant for a writ of review to the Court of Appeal fails to comply with the requirements of section 2, Act No. 191 of lS9S, his application will be dismissed on motion of the adverse party, filed at any time before the submission of the cause.</p> <p>[Ed. Note. — For other cases, see Certiorari, Cent. Dig. §§ 153-167; Dec. Dig. § 60.*]</p>

Sommerville, Judge. In the matter of the Succession of Samuel O. Le Blanc. From a judgment decreeing the nullity of a disposition by the will of decedent’s property, an appeal is taken.

Action by Mary Verdun against Walter T. Gilmore and others. Judgment for plaintiff was affirmed by the Court of Appeal, and E. & J. Verdun apply for certiorari or writ of review.

<p> (Syllabus by the (lourt.) </p> <p>1. Real Actions (§ 7*) — Petitory Action-Evidence of Title.</p> <p>In a petitory action, it is incumbent upon the plaintiff to prove his title.</p> <p>[Ed. Note.' — For other cases, see Real Actions, Dec. Dig. § 7.*]</p> <p>2. Records (§ 17*) — Lost Deed — Sufficiency of Evidence.</p> <p>While the rules of evidence are relaxed'to prove a deed which has been destroyed, still title to realty cannot be established by evidence of so uncertain a character as this record contains. Under Act No. 57, p. 92, of 1886, parol testimony is admissible to prove the contents of a public record destroyed by fire; but mere uncertain assertions and mere impressions of witnesses, who fail to testify to a particular title, who give no dates, no price, and no circumstances that go to prove that there was a sale, are not such evidence as will establish the existence of a deed now alleged to be destroyed. 124 La. Ann. 1042, 50 South. 844.</p> <p>[Ed. Note. — For other cases, see Records, Cent. Dig. § 33; Dec. Dig. § 17.*]</p>

Suit by Uriah Millsaps against W. N. Traylor, as Sheriff, and others, for the reduction of a tax assessment. Application by defendants for a writ of certiorari, or for a writ of review directed to the Court of Appeal, Parish of Richland, to review a determination in favor of plaintiff.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; Thomas A. Moore, Judge ad Hoc.</p> <p>Action by the Raccourci Company, Limited, against Louisiana State Bank. A judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; L. B. Claiborne, Judge.</p> <p>Action by Lusignan Folse and others .against the Police Jury and School Board of Iberville Parish. From the judgment, .the School Board appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Action by the Lemann Company, Limited, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Evidence (§ 143*) — Materiality— Importance.</p> <p>An objection going simply to the effect.of evidence offered is improperly sustained.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig'. § 427; Dec. Dig. § 143.*]</p> <p>2. Appeal and Error (§ 1050*) — Harmless Error — Erroneous Exclusion op Evidence.</p> <p>Where a fact offered to be proved would not aid the party offering evidence, if conceded, he cannot complain of the ruling excluding the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Oent. Dig. § 4155; Dec. Dig. § 1050.*]</p> <p>3. Corporations (§ 466*) — Ne&otiable Instruments — Bona ' Fide Holder eor Value.</p> <p>Under the negotiable instruments act (Acts 1904, No. 64, § 51 et seq.), defining a holder in due course, and declaring that a holder in due course holds the instrument free from defects available between prior parties, a note and mortgage executed by a corporation in due form regular on their face, and apparently issued regularly by the proper officers of 'the corporation, in pursuance of a resolution of its board of directors, regularly adopted, are enforceable in the hands of a bona fide holder for value before maturity, unaffected by any fraud between the original parties or by any falsity in the records of the corporation made by its officers within the general scope of their powers.</p> <p>[Ed. .Note — For other cases, see Corporations, Dec. Dig. § 466.*]</p>

<p>Appeal from Twenty-Sixth. Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge.</p> <p>Action by Mrs. Nora Coleman and others against Nemours Cousin. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from the Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.</p> <p>Joe Jones was convicted of misdemeanor, and appeals.</p>

<p>Appeal from First Judicial District' Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Action by John C. Gerrold against William E. Barnhart and others. Judgment for plaintiff, and defendants appeal.</p>