Volume 129 — Louisiana Reports

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Action by George J. Gould and others against E. W. Pollard and others. Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mortgages (§ 83*) — Construction—Waiver.</p> <p>A mortgage is, in its nature, indivisible, and it prevails over all the immovables subject to it, and over each and every portion. C. C. arts. 2112 and 3282; Walton & Kemp v. Lizardi et al., 15 La. 588; Pepper v. Dunlap, 16 La. 163.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 83.*]</p> <p>2. Waiver of Homestead.</p> <p>A waiver of homestead rights embraced in an act of mortgage exists as long as the mortgage does. -</p> <p>3.Pledges (§ 44*) — Release—Extension of Original Note.</p> <p>Where a note is pledged before maturity to secure another note of the pledgor, the extension or renewal of the pledgor’s note, with interest paid in advance, in the ordinary manner does not extinguish the original obligation, or the pledge securing the same. Union National Bank v. Slocomb, 34 La. Ann. 927.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 103-107; Dec. Dig. § 44.*]</p>

<p> (Syllabus by the Court.) </p> <p>1.Evidence (§ 589*) — Weight and Sufficiency — Testimony of Party — Claim Against Decedent.</p> <p>The testimony of a plaintiff in his own favor to establish a large claim against a succession should be received with the greatest caution. It is, in itself, of the weakest character, and, unless strongly corroborated, cannot serve as a basis for a judgment of recovery. Under article 2282, Revised Civil Code, the circumstance of his being a party may diminish the extent of his credibility. Cutler v. Succession of Collins, 37 La. Ann. 95; Bodenheimer v. Bodenheimer, 35 La. Ann. 1005; Revised Civil Code, 2277; Succession of Townsend, 40 La. Ann. 06, 3 South. 488; Calhoun v. McKnight, 44 La. Ann. 578, 10 South. 783; Succession of Gabisso, 122 La. 829, 48 South. 277; Succession of Daste, 125 La. 657, 51 South. 677.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. § 589.*]</p> <p>2. Master and Servant (§ 3*) — Contract for Services — Sufficiency — Certainty-Compensation.</p> <p>To let out labor or industry is a contract by which one of the parties binds himself to do something for the other, in consideration of a certain price agreed on by them both. Civil Code, art. 2675. Where the price is not fixed or certain, between the parties, there is no contract. Civil Code, art. 2672; University v. Piffet, 34 La. Ann. 603; Haughery v. Lee, 17 La. Ann. 22; Jordan v. Mead, 19 La. Ann. 101; Maestri v. Board, 110 La. 521, 34 South. 658.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 2-4; Dec. Dig. § 3.*]</p> <p>3. Master and Servant (§ 2*) — Contract for Services — Validity—Term.</p> <p>In a lease for services there must be a term (Civil Code, art. 2746), which cannot exceed five years (Civil Code, art. 167).</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 2.*]</p> <p>4. Wills (§ 58*) — Contracts to Give Legacy.</p> <p>A mere expression on the part of a deceased person of her intention to provide for a friend in her will does not form the basis of a contract: and it is not a will. Civil Code, 1814; Watson v. Barber, 105 La. 804, 30 South. 127.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]</p> <p>5. Action (§ 52*) — Joinder—Civil Law.</p> <p>It is competent for a party to sue on a contract, and, at the same time, to sue on a quantum meruit for services not embraced within the terms of the contract. Succession of McNamara, 48 La. Ann. 45, 18 South. 908.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. § 548; Dec. Dig. § 52.*]</p>

F. Blackman, Judge. In the matter of W. T. Bell, interdict. Application of Andrew J. Holston for the rescission of an order appointing a curator. Proceedings dismissed, and Holston appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and Ebbob (§ 157*) — Right to Appeal-Execution of Judgment.</p> <p>Though a judgment for plaintiff, in a suit to annul his sale of timber for lesion beyond moiety, required defendant to elect between keeping the timber and paying a supplemental price, or returning the property and receiving back the purchase price, defendant’s subsequent removal of timber was not a voluntary execution of the judgment, entailing loss of right to suspensive appeal, under Code Prac. art. 567.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 157.*]</p> <p>2. Sales (§ 113*) — Annulment—Lesion Beyond Moiety.</p> <p>Suits to annul sales of personalty for lesion beyond moiety are disfavored, where the contract was not induced by fraud.</p> <p>[Ed. Note. — For other cases, see Sales, Dee. Dig. § 113.*]</p> <p>3. Logs and Logging (§ 3*) — Sales of Standing Timber—Lesion Beyond Moiety.</p> <p>To annul a sale of standing timber for lesion beyond moiety, the proof as to quantity and value should be practically certain.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Dec. Dig. § 3.*]</p> <p>4. Logs and Logging (§ 3*)—Sale of Standing Timber—Lesion Beyond Moiety—Evidence—Weight.</p> <p>Evidence held insufficient to show lesion beyond moiety in a sale of standing timber.</p> <p>[Ed. Note.—For other cases, see Logs and Logging, Dee. Dig. § 3.*]</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; B. P. Edwards, Judge.</p> <p>Action by Will L. Rogers against the HuieHodge Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

K. Skinner, Judge. Action by Carroll, Henderson & Carroll against Swift & ’Co. and others. The Henderson Bank intervenes. Judgment for plaintiff, and certain defendants and intervener appeal.

Action by the New York Press Company, Limited, against Mrs. Bruce S. Salter. From an order sentencing defendant to imprisonment for contempt, she tries for certiorari, prohibition, and mandamus.

<p>Appeal from the Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge.</p> <p>John Mancuso was convicted of illegal sale of liquor, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1151*) — Continuance-Review.</p> <p>• Granting of continuances is largely in the discretion of the trial courts, and their action thereon will not be disturbed, where that discretion has not been abused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. § 1151.*]</p> <p>2. Indictment and Information (§ 125*)— Duplicity.</p> <p>A bill of information drawn under section 910, Revised Statutes, charging defendants with keeping a grog and tippling shop and retailing spirituous liquors without a license, embraces but one offense, and is not bad for duplicity. State v. Stover, 111 La. 92, 35 South. 405; State v. Mancuso, ante, p. 58, 55 South. 709, just decided.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]</p> <p>3. Indictment and Information (§ 82*) — Construction.</p> <p>When two persons are charged with keeping a grog and tippling shop, they are clearly charged as principals.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. § 82.*]</p> <p>4. Witnesses (§ 255*) — Examination — Refreshing Memory.</p> <p>Memoranda made within eight hours after purchasing drinks at grog .and tippling shops, giving dates, names of liquors, names of persons present, etc., were made about the time of the events recorded, and they may be used by the witness who made them for the purpose of refreshing his memory while on the witness stand.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ S74-890; Dec. Dig. § 255.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action by the City of New Orleans against the New Orleans Jockey Club. From a judgment dismissing the action, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>In the succession of Page M. Baker. From a judgment in the matter of an inheritance tax, the collector of taxes appeals.</p>

Action by the State against Walter Goss on an appearance bond. Application by the Amite Bank & Trust Company, as administrator of the defendant’s estate, and others for writs of mandamus, prohibition, and certiorari, to review a judgment for the state on the bond.

Ellis, Judge. Action by the State against Walter Goss on an appearance bond. On appeal from an order dismissing a rule to annul and set aside the bond.

<p>Application by the State, on the relation of James O. Laughlin, for writ of certiorari to William P. Ball, Registrar.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relie, Judge.</p> <p>Action by David B. Pate against L. R. Burnside. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; S. J. Henry, Judge.</p> <p>Action by Isaac Boney against the Louisiana Railway & Navigation Company. Judgment for plaintiff, and defendant appeals.</p>

J. Henry, Judge. Action by William Taylor against the Louisiana & Northwest Railroad- Company and others. From a judgment for plaintiff against the railroad company, all parties appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Executors and Administrators (§ 149*)— Debts — Sale op Land — Suit to Vacate.</p> <p>Where a succession owed debts to creditors who were pressing for payment, requiring a sale of land to raise funds to pay the debts, and complainant owning an oil lease on part of the land incumbered with ¿ mortgage, with full knowledge of the proceedings, made no oiler to furnish the administratrix with money with which to pay the succession debts, but suffered the sale to take place, it was not entitled to maintain a suit to vacate the sale for the reason that the administratrix’s real motive in selling the land was to relieve the succession of the lease.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dec. Dig. § 149.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Application by Willis J. Roussel for administration on the successions of Allain Lavergne and others, to which the New Orleans Land Company filed an opposition. From an order overruling the same, it appealed. On motion to dismiss.</p>

W. Ellis, Judge. In the matter of the Succession of Ida A. Richardson. On sale of the property to pay debts, certain real estate was adjudicated to Charles A. Farwell. On his refusal to take the property, a rule to accept title was made absolute, and Farwell appeals.

Charlie and Elias Isaac were informed against for keeping a tippling shop without a license, and for unlawfully retailing spirituous and intoxicating liquors without a license, and from orders denying their motions for bill of particulars and to compel the state to elect on which of the three counts it would prosecute they appeal.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge.</p> <p>Action by the New Orleans Great Northern Railroad Company against Warren Thomas, Assessor, and the State Board of Appraisers and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Bankruptcy (§ 431*) — Attachment—Forthcoming Bond — Release oe Surety.</p> <p>Where the property of the debtor was attached and released on bond less than four months before he was adjudged a bankrupt, and the debtor was subsequently discharged, held, that the surety on the bond was released from all liability.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 431.*]</p>

P. Madison, Judge. Action by Joe Danna, individually and for the use of his son, Leon Danna, against the City of Monroe. Judgment for plaintiff, and from the amount thereof he appeals.

Action by H. H. Bain against John Arthur and others. W. E. Hamilton.and others were called in warranty. Judgment for plaintiff. Exception by warrantors to no cause of action sustained, and the surety company appealed. From the judgment of the Court of Appeals, affirming both judgments, the surety company applies for certiorari or writ of review.

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

<p> (Syllabus by Editorial Staff.) </p> <p>1. Landlord and Tenant (§ 92*) — Option to Purchase — Waiver—Acts Constituting.</p> <p>A tenant with ontion to purchase exercised the option, but, on the landlord’s refusal to convey, he sued for specific performance and deposited in court the agreed price, and thereafter paid the rent due under the lease for fear the landlord would sue for rent. The court denied specific performance. At the expiration of the lease the tenant retained possession, but refused to pay rent claiming ownership, and the landlord sued for rent and recovered judgment which was paid. Held, that the payment of rent was compulsory, and did not operate as an abandonment or waiver of the option.</p> <p>[Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 290-294; Dec. Dig. §</p> <p>2. Landlord and Tenant (§ 92*) — Contracts —Enforcement—Damages.</p> <p>That a tenant obtaining a lease with an pption to purchase secretly acted for another does not prevent him from suing for breach of contract to convey on his exercising the option.</p> <p>LEd. Note. — For other cases, see Landlord and Tenant, Dec. Dig. § 92.*]</p> <p>3. Landlord and Tenant (§ 92*) — Breach of Contract — Damages.</p> <p>Where a tenant in a lease with the option to purchase from a landlord owning only a half of the property did not know of the landlord’s want of title, he could recover on his exercising the option the difference between the contract price and the value of the property, but he could not recover the loss in unsuccessfully suing to compel specific performance, nor the rent paid after his exercise of the option and during the time he remained in possession.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 290-294; Dee. Dig. § 92.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Estoppel (§ 110*) — Pleading.</p> <p>The court will not notice grounds of estoppel not specially pleaded.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. § 110.*]</p> <p>2. Estoppel (§ 94*) — Silence.</p> <p>Where purchasers at a sheriff’s sale know that a third person claims the property, there is no basis for estoppel by silence.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 27G-2S4; Dec. Dig. § 94.*]</p> <p>3. Appeal and Error (§ 1178*) — Reversal-Remand.</p> <p>Where a cause was submitted on a plea of estoppel and on its merits, and the plea was sustained, on reversal the case will be remanded for decision on its merits.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. §: 1178.*]</p>

Chretien, Judge. Robert O. Groesinger and others were indicted for breaking and entering, and on severance Robert C. Groesinger was convicted and appeals.

<p>Appeal front Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by the State, on relation of Joseph Moore, District Attorney, against David J. Reid, Sheriff. Judgment for defendant, and relator appeals.</p>

<p>Appeal' from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Action by Y. L. De Coux against the Kent-wood & Eastern Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mary L. Egan against the Hotel Grünewald Company, Limited, and Charles Sicard. From the judgment, plaintiff and the Hotel Grünewald Company, Limited, appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§§ 101, 102, 125*)— Injuries to Servant — Dangerous Premises — Duty 03? Master — Contri33utoby Negligence.</p> <p>In general a master is bound to exercise ordinary care in respect of the machinery, appliances, tools, materials, and premises which he furnishes to his servants for the prosecution of the work required of them. If he fail in this regard, and injury result, he is liable. It is his duty not to require his servants to work for him on dangerous premises, or in dangerous buildings, or with dangerous tools, machinery, material, or appliances. If the servant is injured while in the discharge of his duty, and without his own contributory fault, through the master’s dereliction in this respect, the servant may have his action against him. Personal negligence is the gist of the action, and it must therefore appear, to render the master liable, that he knew, or from the nature of the case ought to have known, of the unfitness of the means of labor furnished to the servant, and that the servant did not know, or could not reasonably be held to have known of the defect. Knowledge on the part of the employer, and ignorance on the part of the employé, are of the essence of the action; or, in other words, the master must be at fault and know of it, and the. servant must be free from fault and ignorant of his master’s fault, if the action is to lie. Beach on Contributory Negligence, § 846; Parrenin v. Crescent City S. Y. & Slaughterhouse Co., Ltd., 120 La. 75, 44 South. 990.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Die. §§ 171-102, 243-251; Dec. Dig. §§ 101, 102,-125.*]</p> <p>2. Master and Servant (§ 196*) — Fellow Servants.</p> <p>Bmployés in a sawmill, who are not coassoeiated in the same work, are not fellow servants. Merritt v. Victoria Lumber Co., Ill La. 159, 35 South. 497; Payne v. Georgetown Lumber Co., 117 La. 9S3, 42 South. 475; Stueke v-Railroad Co., 50 La. Ann. 200, 23 South. 342.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 486-488; Dec. Dig. §■ 196.*]</p>

Landry; B. H. Pavy, Judge. In the matter of the estate of Virginia B. McPherson. Lewis & Lewis filed an opposition to the final account filed by the executors. Prom a judgment overruling the opposition, they appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Suit by Mrs. M. D. Agurs against R. N. McKellar, as street commissioner. Judgment for plaintiff, and defendant appeals.</p>

Suit by Carl S. Bauman against the succession of Grace Eggleston and F. W. Armbruster. Proceeds of sale deposited in the registry of the court, and from the judgment in concurso Bauman appealed to the Court of Appeal, and on the judgment of that court he applies for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>On the Exceptions.</p> <p>1. Appeal and Error (§ 1170*) — Review-Technical Error — Pleadings.</p> <p>The tendency of modern practice is to yield as little as possible to technicalities; and, where the allegations are sufficient upon which to predicate a judgment, the exception of no cause of action will not be sustained on appeal.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 4542; Dec. Dig. § 1170.*]</p> <p>2. Death (§§ 31, 42*) — Parties.</p> <p>Both the father and mother have each a cause of action for the death of their son, and it was not necessary for the father to make the mother a party to the suit in order to prosecute his action.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 43, 58; Dec. Dig. §§ 31, 42.*]</p> <p>On the Merits.</p> <p>3. Master and Srevant (§ 153*) — Injuries to Servant — Dangers of Employment — Instructions.</p> <p>It is not sufficient for the master merely to instruct a new workman, with no experience around machinery, of the working of the machinery, but he must point out to him the danger connected with his employment, not in a perfunctory manner, but in a manner that is both instructive and impressive.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314r-317; Dec. Dig. § 153.*]</p> <p>4. Master and Servant (J 121*) — Injuries to Servant — Guarding Machinery.</p> <p>Where the master can minimize the danger arising from the operation of machinery by screening it at a reasonable cost and without interfering with its operation, the law require? him to do so.</p> <p>[Ed. Note. — For other cases, see Master and Servant, .Cent. Dig. §§ 228-231; Dec. Dig. §■ 121.*]</p> <p>5. Master and Servant (§§ 101, 102*) — Injuries to Servant — Dangerous Appliances.</p> <p>The law imposes upon the master, not only the duty of furnishing reasonably safe appliances originally, but it also requires of him that he shall minimize the danger by the installation of the new devices that later come into use to reduce the danger from the particular kind of machinery which he is operating.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 181; Dec. Dig. §§ 101,</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Robert Moeling was convicted of selling liquor without a license, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Intoxicating Liquors (§ 201*) — Illegal Sale — Indictment—Sufficiency.</p> <p>In an indictment charging one with selling liquor in violation of law, it is not necessary to set forth whether the accused was acting as principal or agent, as, if the accused made the sale, he would naturally be in possession of the knowledge as to his capacity at the time of the offense.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 221; Dec. Dig. § 201.*]</p> <p>2. Indictment and Information (§ 71*) — Sufficiency.</p> <p>The degree of legal certainty required in an indictment is no greater than the certainty required to identify a particular transaction, so that the judge may determine whether the facts alleged are sufficient in law to support a conviction and to enable the accused to understand exactly what he is called upon to meet, and to plead a judgment in bar to a second prosecution arising out of the same transaction.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 193, 194; Dec. Dig. § 71.*]</p> <p>3. Intoxicating Liquors (§§ 21S, 219*) — Illegal Sale — Sufficiency of Indictment.</p> <p>Where an indictment charges the unlawful sale of intoxicating liquors, it is not necessary to give the price of the sale, nor the names of the witnesses to the sale, nor the name of the one to whom the sale was made.</p> <p>[Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 236-239; Dec. Dig. §§ 21S, 219.*]</p> <p>4. Indictment and Information (§ 129*)— Joinder of Charges.</p> <p>It was proper for the state to charge the accused with conducting a grogshop, because he had made a sale of liquor, and then to charge him in a second count with the unlawful sale of the liquor, so that, if it failed to prove the first count, it could fall back on the second. As the offenses charged were misdemeanors, it was not an improper cumulation of offenses.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 414-418; Dec. Dig. § 129.*]</p> <p>5. Indictment and Information (§ 132*)— Election Between Counts.</p> <p>While the defendant could not be convicted on both counts, still he could not compel the state, before trial, to elect and proceed on only one count.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. § 132.*]</p> <p>6. Indictment and Information (§ S7*)— Date of Offense — Sufficiency.</p> <p>It is sufficient for an indictment to state the date of the offense, and it need not give the hour of its commission.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 244-255; Dec. Dig. § 87.*]</p>

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

<p> (Syllabus by Editorial Staff.) </p> <p>1. Bankruptcy (§ 298*) — Closing Estate-Time — “Fully Administered.”</p> <p>Since property of a bankrupt conveyed in fraud of creditors is not property of the estate until the sale is set aside, the existence of a cause of action by the trustee to set aside siich conveyance was insufficient to establish that the estate was not fully administered when it was closed, within Bankruptcy Act July 1, 1898, c. 541, § 2, subd. 8, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3421), providing that estates shall be closed whenever it appears that they have been “fully administered,” by approving the final accounts and discharging the trustees; and Section 11, par. “d,” declaring that suits shall not be brought by or against a bankrupt’s estate after two years from the time the estate is closed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 298.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3003.]</p> <p>2. Limitation oe Actions (§ 100*) — Prescription — Bankruptcy — Fraud — Discovery.</p> <p>Where a bankrupt’s trustee, before the estate was closed, had knowledge that the bankrupt had conveyed certain property in Texas, and that the conveyance was probably fraudulent, but elected not to sue to set it aside because of his belief that certain mortgages thereon were valid, and that the bankrupt’s equity after paying the mortgages would be insufficient to render the proceeding advisable, he could not claim, in a suit brought more than two years after the estate was closed, to set aside the conveyance, that the fraud had been discovered within two years, and that the statute had not run for that reason.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 480-493; Dec. Dig. § 100.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Husband and Wipe (§ 169*) — Mortgages op Wipe — Validity—Consideration.</p> <p>Where a wife not properly authorized executes a mortgage on her property, the mortgage will be held good where it is shown that the consideration for which the mortgage was given inured to the benefit of her separate estate. However, the burden of proving that the consideration inured to the benefit of the wife’s separate estate will be upon the mortgagee even where the mortgage is questioned by a subsequent mortgagee.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 660-670; Dee. Dig. § 169.*]</p> <p>2. Mortgages (§ 186*) — Consideration — Bights op Third Mortgagee to Question.</p> <p>A third mortgagee cannot question the consideration given by the second mortgagee when the latter had made a prima facie showing of consideration when no fraud nor unfair preference has been shown.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 186.*]</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin K. Schwing, Judge.</p> <p>In the matter of the estate of John A. Blanchard. From a judgment rendered in favor of administratrix, Ellen Blanchard appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; Ralph W. Elliott, Judge ad hoc.</p> <p>Action by Clara Beauchamp against Felicianne Levy and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Martha Britt and others against the Caldwell Norton Lumber Company and others. Judgment for plaintiffs, and defendants appeal. Application of plaintiffs to have the order appealed from amended and restricted to devolutive appeal overruled. On denial of the same, plaintiffs apply for writ of certiorari.

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relie, Judge.</p> <p>Action by Henry Haymons and others against the Gulf Lumber Company and others. Judgment for defendants, and plaintiffs appeal.</p>

King, Judge. Action by Max Teixeira de Mattos against the Camp & Hinton Company, defendant, and the Illinois Central Railroad and others, garnishees. From a judgment for defendants and garnishees, plaintiff appeals.

F. Bell, Judge. Action by Reuben Sims against F. F. Jeter. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss appeal. Motion overruled.

Martin; James Simon, Judge. Action by the F. B. Williams Cypress Company, Limited, and others, against the Police Jury St. Martin Parish and others. Judgment for plaintiffs, and defendants appeal.

Action by the Bank of Houma against the Citizens’ Ice & Manufacturing Company, Limited, M. D. McBride, and others. There was a judgment for the plaintiff, and defendant McBride petitioned for an injunction against levy of execution. The injunction was denied, and petitioner moved for a suspensive appeal which was also denied, and petitioner moved in the Supreme Court for mandamus and prohibition.

Action by tbe Southern Lumber Company against Lee Holt. Judgment for defendant affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>1. Navigable Waters (§ 1*) — Rights of Public-Navigability in General.</p> <p>Bayou St. John is a stream which has been navigable and has been actually navigated by vessels engaged in commerce for a period beyond the memory of man, dating from the close of the Spanish occupation of this country, and with the Canal Carondelet, constructed under the direction of the Spanish Governor, whose name it bears, has always been, and is, a -public highway of commerce.</p> <p>[Ed. Note. — Eor other cases, see Navigable Waters, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>2. Canals (§ 9*) — Canal Companies — Rights op State.</p> <p>Section 4 of Act No. 74 of 1858, purporting to impose upon the state of Louisiana the obligation to compensate the Carondelet Canal & Navigation Company, upon the expiration of its charter, can only be held to apply to compensation for a railroad, which by section 2 of the charter, the company was authorized to build. And as no such road was built the state is entitled, under the terms of that act, construed with Act No. 160 of 1857, to be restored to the possession of the property, without making compensation.</p> <p>[Ed. Note. — Eor other cases, see Canals, Dec. Dig. § 9.*]</p> <p>3. Statutes (§ 238*) — Construction — General Rules.</p> <p>Where the meaning of a statute is doubtful, and it appears that its passage was promoted by a party who invokes it as importing a donation, release, or gratuity, to his own advantage and to the prejudice of another, the rule is that, where two or more interpretations are possible, that interpretation will be adopted -"-’'mli is the more favorable to the party who did not create the doubt, and against whom the uonation or gratuity is sought to be enforced.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 319; Dec. Dig. § 238.*]</p> <p>4. Attorney General (§ 7*) — Representation op State — Authority.</p> <p>There are no other sources than the General Assembly and the Governor from which the Attorney General can obtain authority to represent the state in court, and no better language could be selected for conferring such authority than that used in Rev. St. § 131, Act No. 65 of 1884, § 1, and the letter of instructions and ratification contained in this record.</p> <p>[Ed. Note. — For other cases, see Attorney General, Cent. Dig. §§ 8-10; Dec. Dig. § 7.*]</p> <p>5. States (§ 192*) — Possessory Action by State — Title op Plaintipp.</p> <p>A corporation created by state statute, for the purpose of administering particular property, and of which it goes into possession under and by virtue of such statutory contract, has no standing, when sued thereunder for possession, to call upon the state to exhibit or deraiga any other title.</p> <p>LEd. Note. — For other cases, see States, Dec. Dig. § 192.*]</p> <p>Breaux, O. J., dissenting in part, and Provosty, J., dissenting.</p>

<p>Action by the City of Lafayette against the Wells Fargo & Co. Express. Application by the defendant for writ of certiorari and for prohibition.</p>

Richard Colbert was indicted for receiving deposits as cashier, knowing that the bank was insolvent. -Case was fixed for trial, and he applies for certiorari and prohibition.

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal Law (§ 101*) — Jurisdiction — Transfer of Prosecution.</p> <p>Where a prosecution for a misdemeanor committed within the territorial jurisdiction of a city court was begun in the district court having concurrent jurisdiction with the city court, accused could not compel, in the absence of a statute, a transfer of the prosecution to the city court, though he was in jail, unable to give bail, and could not be tried in the district court for several months, and could obtain an immediate trial in the city court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Gent. Dig. §§ 198-205; Dec. Dig. § 101.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§ 259*) — Lease op Use op Track — Liability op Lessor.</p> <p>A railroad company which has leased to a lumber company the right to use its tracks only for logging trains, under the superintendence of the lessee, cannot be held liable for the death of one who was riding on a logging train belonging to the lumber company.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 802-816; Dec. Dig. § 259.*]</p> <p>2. Railroads (§ 276*) — Injuries to Persons on Logging Train.</p> <p>A corporation operating a train for_ the purpose of carrying logs cannot be held liable for the death of one who accepts an invitation of the crew to ride on the train, especially when it was apparent to him that there was danger in so doing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 878-886; Dec. Dig. § 276.*]</p> <p>3. Railroads (§ 276*) — Negligence oe Engineer.</p> <p>It is not negligence for an engineer of a logging train, not intended to carry passengers, to suddenly stop his train on getting an emergency signal.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 878-886; Dec. Dig. § 276.*]</p> <p>4. Railroads (§ 278*) — Injury to Person on Train — Negligence.</p> <p>Where one is warned that the position which he has taken upon a logging train is a very dangerous and insecure one, and he is thrown off by the sudden jolting of the train in coming to an emergency stop, and killed, the owner of the train will not be held responsible.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 891-900; Dec. Dig. § 278.*]</p>

<p>Will Owens was charged with crime, and he applies for a writ of mandamus.</p>

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander’(§ 140*) — Slander oe Title — Jactitation Suit — Object oe Suit.</p> <p>“The object of the action of slander of title, or the jactitation suit, was intended to protect possession; to give it the same advantages when disturbed by slander as by actual intrusion; to force the defamer to bring suit; and to throw the burden on him of proving what he asserted.” Livingston v. Heerman, 9 Mart. (O. S.) 714; Proctor v. Richardson, 11 La. 1S8; packwood v. Dorsey, 4 La. Ann. 90; Dalton v. Wickliffe, 35 La. Ann. 355; Poland v. Dreyfous, 48 La. Ann. 84, 18 South. 906; Patterson v. Landru, 112 La. 1074, 36 South. 857.</p> <p>[Ed. Note. — For other' cases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. § 140.*]</p> <p>2. Libel and Slander (§ 140*) — Slander of Title — Jactitation Suits — Trial of Issue of Title.</p> <p>“It does not try the issue of title, unless the defendant in his answer chooses to tender that issue.” Livingston v. Heerman, 9 Mart. (O. S.) 715; McConnell v. Ory, 46 La. Ann. 567, 15 South. 424.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Dec. Dig. § 140.*]</p> <p>3. Libel and Slander (§ 140*) — Slander of Title — Jactitation Suit — Possession of Plaintiff.</p> <p>“One may acquire possession of a thing, not only by himself, but also through others, who receive it for him.” Civil Code, arts. 3436, 3437, 3438.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Dec. Dig. § 140.*]</p> <p>4. Libel and Slander (§ 140*) — Slander of Title — Jactitation Suit — Judgment.</p> <p>Defendant in a jactitation suit can be condemned by judgment of court to file suit against plaintiff, setting up his title to the property in controversy, but not within a limited time, under the penalty of being thereafter prohibited from filing such suit. Proctor v. Richardson, 11 La. 188; Packwood v. Dorsey, 4 La. Ann. 94.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Dec. Dig. § 140.*]</p> <p>5. Navigable Waters (§ 43*) — Riparian Owners — Public Use of Property.</p> <p>“The corporations of cities, towns, and other places may construct on the public places, in the beds of rivers, and on their banks all buildings and other works which may be necessary for public utility, for the mooring of vessels, and the discharge of their cargoes, within the extent of their respective limits.” Revised Civil Code, art. 863; Revised Statutes, § 318.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 256-265; Dec. Dig. § 43.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>6. Pleading (§ 171*) — Replication.</p> <p>The court properly refused to permit a replication or amended petition after the answer to be filed; replications being unknown in the courts of Louisiana.</p> <p>[Ed. Note. — For other cases, see Pleading, Dee. Dig. § 171.*]</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by John G. Gray against John V. Spring and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Walter B. Sommerville, Judge.</p> <p>Action by Henry D. Richardson against William A. Cooke and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Second Judicial District Court, Parish of Bossier; R. C. Drew, Judge.</p> <p>Action by W. H. Allen against S. H. Bolinger & Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Action by Harry Ogborn against the Lower Terrebonne Refining & Manfacturing Company. Prom a judgment for plaintiff, defendant appeals.</p>

Action by tbe Lehman Dry Goods Company against Oscar Lemoine and Wife. There was a judgment of the Court of Appeal, affirming a judgment against plaintiff, and it brings certiorari or writ of review.

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupée; Calvin K. Schwing, Judge.</p> <p>Action by Mrs. Mary I. Thibodaux and others against Bénnett L. Barrow and another. From a judgment for defendants, plaintiffs appeal.</p>

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

Action by Mrs. Mildred M. O’Connor against R. M. Jones. The Western Union Telegraph Company was summoned as garnishee. Judgment for plaintiff, and judgment also against the garnishee. The judgment was affirmed in the Circuit Court of' Appeals, and the Western Union Telegraph Company applies for writ of certiorari or of review.

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Leche, Judge.</p> <p>Succession of Robert Pugh. From the judgment, the executor appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; P. E. Edrington, Judge.</p> <p>Action by Frances Buhler, widow of James Boyle, individually and as tutrix of Hilda Boyle, against the Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment for plaintiff, and defendant appeals.</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. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Descent and Distribution (§ 43*) — Successions— Persons Entitled — Representation.</p> <p>Under Civ. Code, art. 897, representation takes place ad infinitum in favor of the children and descendants of the brothers and sisters of the deceased. In other words, the descendants, near or remote, of a predeceased brother or half-brother1, or sister or half-sister, of the deceased, take the place of their ancestor quoad his or her distributive share in the succession.</p> <p>[Ed. Note. — Eor other cases, see Descent and Distribution, Cent. Dig. §§ 121, 122; Dec. Dig. § 43.*]</p> <p>2. Distribution oe Estate — No 'Error.</p> <p>The judge a quo correctly distributed the estate of the deceased as follows: Five-twelfths to the daughter of a brother of deceased, five-twelfths to the grandchildren of a sister of the deceased, and the remainder (one-sixth) to the descendants of a half-brother of the deceased.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Action by A. B. Longenbaugh against the Louisiana Irrigation & Mill Company. Judgment for defendant, and plaintiff appeals.</p>

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

<p>Appeal from Eleventh. Judicial District Court, Parish of Red River; S. J. Henry, Judge.</p> <p>Action by Thomas J. Underwood and wife against the Flosheim Bros. Dry Goods Company, Limited. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of West Feliciana; George J. Woodside, Judge.</p> <p>Action by the Police Jury of the Parish of West Feliciana against F. M. Stafford. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by the administrators of the Tulane Educational Fund against Baccich & De Montluzin. Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 937*) — Presumptions— Proceedings por Taking Appeal.</p> <p>Where a defendant has been condemned,, by one judgment, to pay a specific sum of money and to surrender revenue bearing property, and the trial judge has made an order granting an appeal, suspensive and devolutive, and fixing a lump sum as the amount of the bond for each, the amount of the suspensive appeal bond being largely in excess of that required by law for such appeal from the moneyed part of the judgment, this court will not go behind the order of appeal, as appearing upon the minutes, and the fact that the bond as filed was regarded by the judge and the appellant as sufficient for all purposes, and impute to them the intention of attributing to the appeal from the moneyed part of the judgment a proportion of the amount for which the bond was given, insufficient, under the law, to sustain such appeal. It will • be presumed in such case that the judge, acting with due regard to the fact that the law determines the amount of the bond for an appeal from a moneyed judgment, and imposes upon him the duty of fixing the amount of the bond for an appeal from a judgment decreeing the delivery of property, intended to comply with the law and to fix the amount of the bond for the purposes of the appeal from the judgment, quoad the property, as the excess, within the total amount specified in the order of appeal, over the amount required by law for the purposes of the judgment, quoad the money.</p> <p>[Ed. Note. — For other cases, see Appeal 'and Error, Cent. Dig. §§ 3788-37S4; Dec. Dig. §. 937.*]</p> <p>2. Appeal and Error (§ 441*) — Effect of Proceedings to Transfer Cause — Jurisdiction of Trial Court — Certiorari.</p> <p>Where, in an appealable case, the trial court, in the exercise of unquestionable jurisdiction, makes an order granting an appeal from a judgment rendered by it and fixing the amount of the appeal bond, and the appeal is perfected in accordance with such order, its (the court’s) control of the case is lost, and, being wholly without jurisdiction thereafter to dismiss the appeal, on the ground that it had fixed the amount of the bond at t.oo low a figure, a proceeding in this court by certiorari to review its action in dismissing a rule taken for that purpose is unauthorized, and cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 441.*]</p> <p>3. Appeal and Error (§§ 395, 452*) — Dismissal — Grounds.</p> <p>Where all the requirements for a devolutive appeal have been complied with, such appeal will be maintained, though the suspensive appeal in the case may be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 2064-2070; Dec. Dig. §§ 395, 452.*]</p> <p>4. Appeal and Error (§ 382*) — Proceedings to Transfer Cause — Bond—Effect of Insufficiency.</p> <p>Where, in a case in which the trial court is authorized and required to fix the amount of the bond for suspensive appeal, it does fix it, and the appeal is thereafter perfected, the appellant cannot be held to lose his appeal because the amount so fixed is, or may be, less than it should be, although the appellee should be allowed a remedy, perhaps, by way of a proceeding to compel an increase in the amount of the bond.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2036-2041; Dee. Dig. § 382.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Certiorari (§ 5*) — Prohibition (§ 3*)— Interlocutory Decisions — Remedy by Appeal.</p> <p>The judgments overruling in this case exceptions of vagueness and of no right and no cause of action were interlocutory, and worked no irreparable injury, and are reviewable only on appeal from the final judgment to be rendered, and not by certiorari or prohibition.</p> <p>[Ed. Note. — Por other cases, see Certiorari, Cent. Dig. §§ 5, 6; Dec. Dig. § 5;* Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]</p> <p>2. Prohibition (§§ 1, 10*) — Grounds—Want of Jurisdiction.</p> <p>Where a court is without jurisdiction, it would impose a hardship and useless expense upon the parties to compel them to-litigate to the end, and the law has provided a remedy in the writ of prohibition, which is an order from the appellate court forbidding the court of the first instance “to proceed further in the cause, on the ground that cognizance of such cause does not belong to such court, or that it is not competent to decide it.”</p> <p>[Ed. Note. — Por other cases, see Prohibition, Cent. Dig. §§ 1, 37-56; Dec. Dig. §§ 1, 10.* Por other definitions, see Words and Phrases, vol. 6, pp. 5668-5674; vol. 8, p. 7767.]</p> <p>3. Prohibition (§ 3*) — Nature of Remedy-Existence of Other Remedy.</p> <p>The fact that after an exception to jurisdiction ratione personae has been overruled, defendant files other exceptions, which are also overruled, does not preclude him from at that time applying for a writ of prohibition, though it would be otherwise in an appealable case, were he then to put the case at issue and wait until after trial on the merits and judgment rendered, since in such case the appeal would afford an adequate remedy, and the trial judge would have no other function to discharge than to grant it.</p> <p>[Ed. Note. — Por other eases, see Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]</p> <p>4. Constitutional Law (§ 48*) — Determining Validity of Statute — Construction in Pavor of Constitutionality.</p> <p>The object and the sole object, as declared in its title, of Act No. 182 of 1908, amending and re-enacting Act No. 93 of 1888, is to authorize the bringing of suits against carriers for loss of freight or damage thereto, either at the points of delivery or at the domiciles of the carriers, at the option of the plaintiffs, and to repeal all laws, general and special, in conflict with that object. Hence the repealing clause of the act, purporting specifically to repeal section 12 of Act No. 37 of 1877, which declares that the defendant company “shall be sued only at its domicile, except in cases of trespass,” could in no event be construed to operate the repeal of said section, save in so far as it prohibits the bringing of suits such as are provided for by said act of 1908; for otherwise said repealing clause would be broader than the title of the act, and obnoxious to article 29 of the Constitution of 1879.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.*]</p> <p>5. Eminent Domain (§ 173*) — -Venue—Domicile ox Pasties — Statutory Provision.</p> <p>Section 12 of Act No. 37 of 1877 (defendant’s legislative charter), in providing that .defendant “shall be sued only at its domicile, except in actions of trespass,” was not intended to prohibit the institution of proceedings which are not ordinary suits, but are essentially proceedings in rem in parishes other than of defendant’s domicile for the expropriation of property there situated, and of which defendant may be the owner.</p> <p>[Ed. Note. — For other cases, see Eminent Do; main, Cent. Dig. §§ 473, 474; Dec. Dig. § 173.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by J. Earl Rogers against the National Calendar & Advertising Novelty Company and another. Judgment for defendants, and plaintiff appeals.</p>

Action by the Ostrica Oyster Company, Limited, and others against John Barbier and others. Application by the defendants for certiorari or writ of review to the Court of Appeal.

Action by George A. Bowlus and others against William J. Whatley and others. Judgment for defendants was reversed by the Court of Appeal, and, an application for rehearing having been denied, defendants Whatley and others applied for certiorari or writ of review to the Court of Appeal.

<p> (Syllabus by the Oowrt.) </p> <p>Levees (§ 16*) — Construction—Contracts— Waiver oe Provisions.</p> <p>In certain levee contracts, the following stipulation was inserted: “Should the contractor fail to prosecute the work under this contract with the vigor necessary to its completion within the time stipulated, in the opinion of the engineer in charge, all estimates may be withheld, and it shall be competent for, and the duty of, the president of the board to employ such additional force as may be necessary at the expense of the contractor.” The contractor failed to complete the work within the time stipulated, and thereupon the board agreed to extend the time for one year, and to grant a further extension, if desired by the contractor, on the performance of certain conditions, provided the contractor would use every possible effort to complete the construction of the levees at the earliest possible date. Held, that the said extension and promised extension of time did not dispense the contractor from the obligation of vigorously prosecuting the work as required by the stipulation in the original contract, and did not abrogate the right of the board to withhold estimates in the event of the failure of the contractor to discharge such obligation.</p> <p>[Ed. Note. — For other cases, see Levees, Dec. Dig. § 16.*]</p>

<p> (Syllabus by the Court.) </p> <p>Attorney and Client (§ 76*) — Employment —Revocation.</p> <p>An attorney at law, employed for an indefinite period and for a contingent fee, is a mandatary, whose power is revocable, as it is not coupled with an interest in the cause of action ; and the principal may terminate the relationship of attorney and client at will.</p> <p>[Ed. Note — For other cases, see Attorney and Client, Dec. Dig. § 76.*]</p>

<p> (Syllabus by the Court.) </p> <p>Wills (§ 70*) — Probate — What Law Governs.</p> <p>Under C. C. art. 1154, a resident executor cannot lawfully, absent himself, even for a limited time, from this state, without first executing and recording a procuration appointing a resident agent to represent him in all the acts of his administration. Where such a procuration expressly declares that the executor intends to depart temporarily from the state, such intent is conclusively presumed to continue until the procuration is revoked or recalled. During the life of the procuration, the executor is considered as present in the state, through his accredited representative, and is concluded in the courts of Louisiana from asserting a change of domicile to another jurisdiction; and the executors of a will, made by him out of the state, are in no better position. Such a will must be probated in the state of Louisiana, as in case of wills of residents of this state.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ lS4r-186; Dec. Dig. § 70.*]</p>

Théard, Judge. Action by the State, on the relation of A. Brittin, against the City of New Orleans. From a judgment on the account and tableau of distribution, filed by the receiver of the Metropolitan Police Board, and oppositions thereto, Isidore Newman & Son appeal.

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; R. B. Dawkins, Judge.</p> <p>Action by B. H. Mitchell against J. M. Morris, From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>James Max was convicted of murder, and appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell. Judge.</p> <p>N. K. Parrish was indicted for perjury. From an order quashing the indictment, the state appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 407*) — Evidence—Admissions by Accused — Acquiescence or Silence.</p> <p>There is no rule of law that excludes the reply to a voluntary question, proposition, os remark made by the accused. The whole conversation is admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 898-900; Dec. Dig. § 407.*]</p> <p>Provosty, J., dissenting.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action by Augustus Craft against Arthur Leibe. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Trial (§ 2*) — Consolidation of Causes— Necessity.</p> <p>It may be practicable for the surety of a notary, when sued on his bond by a number of persons, to deposit the amount called for by the bond in court and call the different claimants together, in coneursus, and such a course may tend to more satisfactory results for all parties concerned. But the surety is not obliged! to pursue that course; he may deny liability altogether and litigate with each claimant, separately.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 3-5; Dec. Dig. § 2.*]</p> <p>2. Courts (§ 485*) — Conflicting Jurisdiction-Courts .of Same State — Transfer of Causes.</p> <p>The mere fact that two or more persons bring suits, in different divisions of the civil district court, against the surety of their common debtor, does not create a common fund of which either of the divisions acquires any controlling jurisdiction; hence section 10 of rule 8 of said court, providing for the transfer of causes to the division first acquiring jurisdiction quoad the common fund, has no necessary application under such circumstances.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 1292-1298; Dec. Dig. § 485.*]</p> <p>3. Judgment (§ 21*) — Requisites—Definiteness.</p> <p>Where, in a suit against the surety on a notary’s bond, the cóurt gives judgment for plaintiff for a specific amount, with interest, costs, etc., and then, in view of the fact that other claims have been asserted and other judgments rendered against the surety, adds the restricting clause, “this judgment against * * * to be executory only to the extent of such balance as may remain unpaid under its bond,” without indicating the amount of the balance referred - to, or the manner in which it is to be ascertained, the judgment lacks the essential quality of definiteness, and the case will be remanded in order that it may be ascertained and determined what proportion of the total amount called for by; the bond the surety has paid or has became judicially liable for, on account of claims for which said surety is entitled to credits in reduction of said amount.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 7, 8; Dec. Dig. § 21.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Brokers (§ 105*) — Notice to Agent — Imputation to Principal.</p> <p>Upon the facts disclosed, it is held that the plaintiff, having employed and paid a real estate agent to secure a tenant for a building owned by it, is charged with the knowledge, possessed by such agent, that the tenant was engaged in business and was contracting in a corporate capacity.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Dec. Dig. § 105.*]</p> <p>2. Corporations (§ 34*) — Corporate Existence-Estoppel to Dent.</p> <p>One who has recognized the corporate existence of an association, by dealing with it as such, is estopped to assert the contrary for the purposes of a claim arising out of such dealing and in order to hold the stockholders liable as commercial partners and beyond the unpaid balances due on their stock subscriptions; and it is unnecessary, for the purposes of such estoppel, that the de facto status of such corporation, or supposed corporation, should be established.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 81-96; Dec. Dig. § 34.*]</p>

K. Skinner, Judge. Action by Mat' Whitney against Sara C. Finnegan, his wife. Judgment for plaintiff. Proceedings by the wife to have the judgment obtained against her on the ground of abandonment annulled and decreed void. Rule refused, and plaintiff appeals.

Sommerville, Judge. In the matter of the succession of Charles Dolsen. Fannie A. Humphreys filed a claim. Judgment for less than the amount claimed, and claimant and executor appeal.

<p>Appeal from Oivil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the Interstate Electric Company, Limited, against the Maison Blanche, Limited. From a judgment of dismissal, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1.Criminal Law (§ 400*) — Evidence—Best and Secondary Evidence.</p> <p>On the hearing of a motion to quash an' indictment on the ground that one of the jury commissioners was also the holder of another office at the time of the drawing of the jurors by whom the defendants were to be tried, an objection to parol testimony to prove the alleged fact was properly sustained. The Constitution and the law require all officers, “before entering upon the discharge of their duties,” to take a prescribed oath, which is to be recorded in a book to be kept for that purpose. No one becomes an officer until he complies with that requirement, and whether it has been complied with or not is a matter of record, and cannot be proved by parol testimony, when such testimony is objected to.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879, 886; Dec. Dig. § 400.*]</p> <p>2. Criminal Law (§ 595*) — Continuance-Grounds— Exclusion of Evidence.</p> <p>Where the defendant in a criminal prosecution goes to trial on a motion to quash the indictment, and oral testimony, offered in support of the motion, is excluded, he is not entitled of right to a continuance in order to enable him to obtain record evidence, particularly where the existence of the fact relied on appears to be conjectural, and there is no assurance of a reasonable expectation that it can be established.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 595.*]</p> <p>3. Indictment and Information (§ 137*)— Indictment — Sufficiency.</p> <p>Where an indictment for murder, after charging that crime, proceeds to recite that the person slain was a deputy sheriff, acting in the discharge of his duty, “to wit, attempting to arrest the said -, charged with crime, viz., threatening to kill and assault with a dangerous weapon and carrying concealed weapons,” such recital is unnecessary, but cannot be held to operate to the prejudice of the defendant. The unnecessary language might be stricken out as surplusage,. and its presence does not authorize the quashing of the indictment.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. § 137.*]</p> <p>4. Jury (§ 116*) — Summoning — Quashing Venire.</p> <p>Where a procSs verbal in a criminal case to be tried at a special term of court shows that the jurors for service on the petit jury were regularly drawn, the objection that such procés verbal fails to show that the names in the general venire box had previously been legally supplemented is not good. If there had been any illegality in the previous supplementing of the names, the defendant should allege and prove it. A venire is not, however, to be quashed merely for irregularities or noncompliance with all the literal requirements of the statute in the matter of selecting and summoning jurors; but only where fraud or wrong which would work irreparable injury are alleged and proved.</p> <p>TEd. Note. — For other cases, see Jury, Dec. Dig. § 116.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Sales (§ 372*) — Performance of Contract —Waiver of Breach.</p> <p>Plaintiff contracted with defendant to furnish a stipulated number of ties and to form a corporation with a capital of $10,000 to fulfill the contract, but failed to form the corporation, to the knowledge of the defendant, which seemed to treat the formation of a corporation as an incident rather than a moving cause of the contract. Held, that since defendant failed to put plaintiff in default, and by its conduct continued the contract in force after plaintiff’s failure to form the corporation, it cannot now be heard to urge plaintiff’s failure as a defense on a suit for the breach of the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 372.*]</p> <p>2. Sales (§ 176*) — Performance of Contract —Waiver of Breach.</p> <p>While the defendant urges that the ties were not good, this is not a valid defense, as defendant failed to urge its right, under the contract, to reject the ties, or place the plaintiff in default. However, even if there had been a default, it would have been waived by a letter accepting more ties after the plaintiff had furnished ties not up to specifications.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 436-444; Dec. Dig. § 176.*]</p> <p>3. Assignments (§ 60*) — Rights of Parties —Effect of Reassignment.</p> <p>The assignment of the contract by plaintiff to Davis Bros, did not deprive plaintiff of any rights under it, as the contract was reassigned to him by Davis Bros., without causing any prejudice to the rights of the defendant.</p> <p>[Ed. Note. — Eor other cases, see Assignments, Dec. Dig. § 60.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Joseph H. Spearing against,the Whitney-Central National Bank. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Criminal Law (§ 1072*) — Appeal—Failure to Fix Return Day.</p> <p>Act 106 of 1908 imposes upon the district judge, in all cases appealable to the Supreme Court, the duty of fixing the return day, which return day he shall fix at not less than 15 days, nor more than 60 days, from the date of the order, except by consent of parties ; if, then, defendant has moved for an appeal, “returnable according to law,” the failure of the judge to fix a return day in the order granting the appeal is a fault imputable to the judge alone, and appellant cannot be prejudiced thereby.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1072.*]</p> <p>On the Merits.</p> <p>2. Homicide (§ 202*) — Evidence — “Dying Declaration.”</p> <p>The following facts are sufficient foundation for the admission of a statement as a “dying declaration”: Deceased was disemboweled by a gunshot wound at close range. When the declaration was made, he was lying down, with all of his entrails hanging outside of his body. He said, “I have been shot to death by Isidore for nothing,” and died a few hours after receiving the wound, and before medical aid could be summoned.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 429; Dec. Dig. § 202.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2297, 2298.]</p> <p>3. Criminal Law (§ 1169*) — Harmless Error-Admission of Evidence.</p> <p>When testimony has been admitted without objection defendant is without interest to complain that the same testimony was admitted, over his objection, at a previous stage of the trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.*]</p> <p>4. Criminal Law (§ 715*) — Trial—Reading Document to Jury.</p> <p>When a witness has, without objection, read to the jury a document and has testified to the accuracy of its contents, the fact that such document has not been formally offered in evidence does not debar the district attorney from reading such document to the jury in his argument.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1666; Dec. Dig. § 715.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Fraudulent Conveyances (§ 271*) — Simulation — Remedies op Creditors — Evidence.</p> <p>The prima facie presumption of simulation in the matter of the conveyance of real estate arising from the nonpayment of a recited cash consideration, and the continuance in possession of the grantor, may be destroyed by proof showing the reality of such conveyance.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 796-798; Dec. Dig. § 271.*]</p> <p>2. Fraudulent Conveyances (§ 291*) — Remedies op Creditors — Evidence.</p> <p>An attack upon a conveyance of real estate on the ground that the cash mentioned in the deed as part of the consideration was not paid may be met by proof that an obligation assumed by the grantee was the real consideration, and that it has been fully discharged.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Dec. Dig. § 291.*]</p> <p>3. Donations — Validity — Reservation op Amount Necessary for Subsistence.</p> <p>An understanding upon the basis_ of which a widow in community owning an undivided half interest, and enjoying the usufruct of the other half interest, in four lots of ground, constituting the joint estate of herself and her two children, is to devest herself of her entire interest in all of the lots and the two children are to become the owners each of two of said lots, in consideration of the obligation assumed by one of the children to assure his mother a home in the house in which they had been living on one of the lots, free of rent, charges, and taxes, falls under the ban of C. C. 1497, and the jurisprudence interpreting that article, and will not be sustained or enforced.</p> <p>[Ed. Note. — For other cases, see Gifts, Dec. Dig. § 6.*]</p>

Edrington, Judge. Action by Mrs. A. Communy against E. A. O’Sullivan. The Emma Realty Company, third possessor of the mortgaged premises, enjoined the sale. Judgment dissolving the injunction and ordering the sale on foreclosure, and the Emma Realty Company appeals.

<p> (Syllabus by the Court.) </p> <p>Corporations (§ 432*) — Foreclosure—Evidence — Payment of Taxes.</p> <p>An order for executory process, based in part on the payment of taxes on the mortgaged premises, will be set aside, quoad the amount of said taxes, when it is not proven by authentic evidence that the party paying the taxes acted as the agent of the plaintiff.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 432.*]</p>

D. King, Judge. In the matter of the succession of C. A. Frederick Hinderer. From an order refusing a prayer for decree that Paul Roh, as Consul of the German Empire, was entitled to represent heirs living in said empire without powers of attorney, he appeals.

Action by the Harry C. Meyer Company against E. B. Vasquez and P. F. Hennessey. Judgment for defendants. An appeal by plaintiff was dismissed by the Court of Appeal, and plaintiff -applies for certiorari or writ of review.

Original application by Thomas Hincey for writs of certiorari and prohibition, to restrain the district court from the trial of certain misdemeanor cases.

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 151*) — Right of Review — Administratrix—Absent Heirs.</p> <p>While an administratrix seeking to recover an immovable would have no right to appeal where it is not shown that there are debts due by the succession, still, when she is joined in the appeal by the attorney for absent heirs, the appeal will not be dismissed, as the attorney for absent heirs has a right to appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 151.*]</p> <p>2. Limitation of Actions (§ 36*) — Prescription — Limitations Applicable — Exceptions.</p> <p>The bar of prescription is maintained, save as relates to the plea of fraud and simulation. This considered and decided, on the merits.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 173; Dec. Dig. § 36.*]</p> <p>On the Merits.</p> <p>3. Cancellation of Instruments (§ 47*)— Proceedings — Sufficiency of Evidence.</p> <p>It is the policy of the law that recorded titles shall not be lightly set aside, and where a title has remained recorded in the names of two people for a great many years without protest from 'any one, and many of those in interest have died, this court will not set aside this title on the testimony of one witness who is uncorroborated by any person or any set of facts.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Dec. Dig. § 47.*]</p> <p>4. Deeds (S 17*) — Validity — Reservation for Prescription — Dation en Paiement.</p> <p>Where a mother transfers a piece of property to her son as a dation en paiement, and he deeds her the usufruct of the property during her life, she cannot be said to have made a deed omnium bonorum, as her usufruct is property. The transferror did not reserve' the usufruct. After he, the vendee, had become the transferee of the property, he without consideration transferred the usufruct to the vendor. Over ten years had elapsed from the date of his transfer, and over that number of years since the vendor died, and the vendee remained in possession over that number of years without adverse claim urged by any one. Parties having failed to raise issues in time — having failed to sustain the plea of simulation — held, that there are no grounds upon which to set aside the deed.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 26-37; Dec. Dig. § 17.*]</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Action by W. E. Lawson and others against the Opelousas, Gulf & Northeastern Railroad Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; H. M. Bourg, Judge ad hoc.</p> <p>Action by Eugene Sabatier against the Bowie Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 1156*) — New Trial — Misconduct oe Juror — Review.</p> <p>Unless there is manifest error in the trial judge’s appreciation of the evidence on a rule for a new trial on the ground of misconduct of I a juror, this court will not set aside his ruling. In the present case, his ruling is sustained by the evidence, and is manifestly correct.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 30G7-3071; Dec. Dig. § 1156.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Larceny (§ 32*) — Indictment — Sufficiency.</p> <p>An indictment for larceny from a freight car owned by a specified railroad company well known in the state is not fatally defective for failing to state whether the company was a corporation.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. § S6; Dec. Dig. § 32.*]</p> <p>2. Indictment and Information (§ 174*) — Accessories Before the Fact.</p> <p>Under Rev. St. § 976, requiring criminal procedure to follow the common law unless otherwise provided, an accessory before the fact cannot be convicted on an indictment charging him as a principal.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Gent. Dig. §§ 540-543; Dec. Dig. § 174.*]</p> <p>3. Criminal Law (§ 1171*) — Appeai^Harmless Error — Argument of Prosecuting Attorney.</p> <p>Argument by the district attorney, stating in effect that he had made a separate and independent investigation of the case in his official capacity and found accused guilty, was reversible error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1171.*]</p> <p>4. Criminal Law (§ 1171*) — Appeal—Harmless Error — Argument of Prosecuting Attorney.</p> <p>In a larceny trial, it was not reversible error for the district attorney to state that a third person was the leader in the offense and made the two defendants steal, but that the proper place for defendants was the penitentiary with the third person, that defendants were fools, but that they should be imprisoned, etc.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1171.*]</p> <p>5. Witnesses (§ 277*) — Oboss-Examination op Accused — Propriety.</p> <p>It was not improper for the district attorney, in cross-examining accused, to ask if he was not “run out” of a certain city, and if he did not buy certain goods and dispose of them without paying therefor.</p> <p>[Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 277.*]</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 47*) —Supreme Court — Jurisdictional Amount.</p> <p>Where an amended answer sets up that the value of the matter in dispute exceeds the jurisdictional amount of this court, and where it is patent from the record that the value is as alleged, this court will, assume jurisdiction of the cause.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 47.*]</p> <p>2. Municipal Corporations (§ 33*) — Extension op municipality — Ordinances.</p> <p>Act No. 136 of 1898 does not deny the right of appeal from a judgment of a district court, decreeing a proposed extension of a municipality unreasonable and unjust. It merely provides that when a proposed extension shall have been declared unreasonable, or unjust, then all ordinances proposing practically the same thing shall not be passed within a year, and this time begins to run, when the matter has been appealed, only from the date of final judgment of this court.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 33.*]</p> <p>On the Merits.</p> <p>3. Statutes (§ 163*) — Repeal of General Act by Special Act.</p> <p>The general law, conferring on municipalities the right to extend their territorial limits, is not repealed, by implication, by a later act conferring a charter on a town and providing its limits. The provisions of the general law extend not only to municipalities in existence at the time of its passage, but also to those created thereafter.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 238; Dec. Dig. § 163.*]</p> <p>4. Municipal Corporations (§ 33*) — Exten- . sion of Municipal Limits — Review.</p> <p>The question of whether the limits of a municipality should be extended is a quasi legislative one. Where the legislative body of a municipality has decided on an extension, this court can set it aside only when it is unreasonable, and it will not undertake to say it is unreasonable without abundant evidence to clearly establish that fact.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 33.*]</p>

B. H. Milton was convicted of violating a city ordinance of the City of Lafayette. On appeal to the district court he was acquitted, and the city applies for writs of certiorari, mandamus, and prohibition.

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander (§ 137*) — Slander or Title — Right or Action.</p> <p>The right to sue for slander of title, or to bring a jactitation suit, is given to one in possession of the real property involved. If the plaintiff in such suit is not in possession, he must fail. Mrs. M. M. Xoung v. Morgan City, 129 La. 339, 56 South. 303, and authorities there cited.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 392; Dec. Dig. § 137.*]</p> <p>2. Quieting Title (§ 13*) — Right op Action —Possession op Land.</p> <p>Act No. 38 of 1908 authorizes suits to establish title to real estate where the parties to the suit are not in actual possession of the land to which they hold recorded titles. Davidson v. McDonald, 126 La. 539, 52 South. 758.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § 8; Dee. Dig. § 13.*]</p> <p>3. Quieting Title (§ 12*) — Right op Action —Possession op Land.</p> <p>Swamp land may be in the physical possession of the owner. Possession is a question of fact, and each case depends upon its own conditions and circumstances. .South Louisiana Land Co. v. Riggs Cypress Co., 119 La. 193, 43 South. 1003; Jones et al. v. Goss et al., 115 La. 927, 40 South. 357.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Dec. Dig. § 12.*]</p> <p> (Additional Syllalnis hy Editorial Staff.) </p> <p>4. Quieting Title (§ 34*) — Right op Action —Possession op Plaintipp — “Openly Possess.”</p> <p>Where a petition alleges that the plaintiffs own and “openly possess” land, the petition is not drawn under Act No. 38 of 1908, authorizing suits to establish title to real estate where neither of the claimants are in actual possession, since the quoted phrase cannot be construed as an averment simply of title to the land, but means to possess in an open manner; publicly; not in private; without secrecy; by some word or act which is an open declaration to those in the neighborhood that they are exercising the rights of ownership.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 69-72; Dec. Dig. § 34.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 4983, 4984.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Licenses (§ 7*) — Occupations—Steam: Boilee Engineers.</p> <p>An ordinance requiring a steam boiler engineer to pay an annual license of $2.50, enacted pursuant to Act No. 15 of 1908, authorizing municipalities of over 50,000 inhabitants to regulate the use of steam 'boilers and create a board of. examiners of steam boiler engineers, is violative of Const, art. 229, exempting persons engaged in mechanical pursuits from the levy of a tax by the General Assembly.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15; Dee. Dig. § 7.*]</p>

<p>■Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by H. P. Berry and others against the Louisiana Sawmill Company, Limited.' Judgment for plaintiffs, and defendant appeals.</p>

F. Brunot, Judge. Application by tbe State, on tbe relation of E. D. Armistead, for writ of mandamus against Fred J. Grace, register, application by S. P. Carroll for writ of mandamus against tbe same defendant, and by John Dexter for writ of mandamus against tbe same defendaut. The cases were consolidated. Judgment for defendant, and relators appeal.

<p> (ByTlabus by the Court.) </p> <p>Criminal Law (§ 1144*) — Witnesses (§ 2*)— Compulsory Process — Continuance — Attendance oe Witnesses — Presumption on Appeal.</p> <p>Where the trial judge overruled a motion for a continuance on the ground that the accused had not exercised due diligence in the summoning of witnesses, and the record does not show the contrary, the ruling will not be disturbed. The right of the accused to compulsory process to obtain the attendance of his witnesses is predicated on the exercise by him of due diligence to secure such attendance.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781; Dec. Dig. § 1144;* Witnesses, Cent. Dig. §§ 2-4; Dec. Dig. § 2.*]</p>

<p>Action by Mrs. Jessie A. Cole against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant applies for review.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 594*) — Continuance— Grounds — Diligence.</p> <p>The refusal of a trial judge to grant a continuance because a witness is out of the state-is not reversible error, where the defendant has not exercised the proper diligence, and where he foils to show that the witness will return within a reasonable time, especially when, in the opinion of the trial judge, the testimony of this witness would be merely cumulative, and not material.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Mg. §§ 1321-1332; Dec. Dig. § 594.*]</p> <p>2. Criminal Law (§ 1151*) — Appeal — Review-Discretion op Trial Court.</p> <p>The refusal by a trial judge of a motion for a continuance will not be interfered with unless it was arbitrary and prejudicial, and presents a clear case of abuse of the judicial discretion. State v. Murray, 111 La. 688, 35 South. 814; State v. Satcher, 124 La. 1015, 50 South. 835.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Gent. Dig. §§ 3045-3049; Dec. Dig. § 1151.*]</p> <p>3. Criminal Law (§ 594*) — Continuance-Grounds — Diligence.</p> <p>As the motion to reassign the case was based on the same grounds as the motion for continuance, since the court had the right to refuse the continuance, it also had the right to refuse the reassignment.</p> <p>[Ed. Note. — For other eases, see Criminal Daw, Gent. Dig. §§ 1321-1332; Dee. Dig. § 594.*]</p> <p>4. Jury (§ 63*) — Impaneling —Jury Commission — Clerk.</p> <p>Act 220 of 1902 provides that, where the clerk of court is ill, the deputy clerk may act-in his stead as the clerk of the jury commission.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 63.*]</p> <p>5. Jury (§ 121*) — Quashing Venire — Examination of Witnesses.</p> <p>On a motion to quash the venire because the deputy clerk had acted in the place of the clerk, the cross-examination of the deputy clerk, called to testify as to the inability of the clerk to perform his functions, must be confined :to an examination of the grounds alleged^ in the motion. The latitude of the cross-examination cannot be broader than the pleadings, nor can the defense develop by cross-examination a state of facts not alleged by the pleadings.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 121.*]</p> <p>6. Jury (§ 63*) — Making of List — Jury Commission-Regularity of Proceedings.</p> <p>The acts of a jury commission will not be nullified, unless it is shown that fraud has been committed, or that their acts if allowed to stand, will work a wrong to the accused.</p> <p>[Ed. Note. — Eor other cases, see Jury, Dec. Dig. § 63.*]</p> <p>7. Jury (§ 63*) — Criminal Law (§ 1144*)— Summoning Jurors — Presumptions on Appeal.</p> <p>The making of the headings of a procfcs verbal before the jury commission meets will not nullify this proces verbal. Nothing prejudicial to the accused has been shown, and this court will give effect to the presumption omnia rite acta.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 63;* Criminal Law, Cent. Dig. §-3017; Dec. Dig. § 1144.*]</p> <p>8. Homicide (§ 190*) — Admissibility of Evidence-Threats.</p> <p>Where no overt act has been made by the prosecuting witness, testimony to prove threats prior to the shooting is inadmissible, more especially as the alleged threats were not made shortly before the shooting.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.*]</p> <p>9. Criminal Law (§§ 413, 419, 420*) — Evidence — Declarations—Hearsay.</p> <p>Self-serving declarations and hearsay evidence are not admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 928-935, 973-983; Dec. Dig. §§ 413, 419, 420.*]</p> <p>10. Criminal Daw (§ 1171*) — Appeal—Prejudice from Error — Remarks of Counsel.</p> <p>It is only when the utterances of a district attorney are entirely out of place and have exerted an improper influence on the minds of the jury that this court will set aside the verdict, and remand the case for trial. Where no injustice is done the accused by the remarks of the district attorney, the verdict will not be disturbed.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig., §§ 3126, 3127; Dec. Dig. S 1171.*]</p> <p>11. Criminal Daw (§ 720%*) — Trial—Arguments of Counsel — Opinion.</p> <p>The remark of the district attorney to the jury that “the verdict is demanded” is not objectionable, and affords no grounds of reversal.</p> <p>[E'd. Note. — Eor other cases, see Crimina) Law, Cent. Dig. § 1677; Dec. Dig. § 720%.*]</p>

Ííary; Percy Saint, Judge ad hoc. Action by W. F. Sennette and another against the Police Jury of the Parish of St. Mary, La. From a judgment denying an injunction and dismissing plaintiffs’ petition, they appeal.

Mrs. Lou Allen and another were indicted for sending threatening letters for the purpose of extorting money. From a conviction, Mrs. Allen appeals.

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>Action by the Pardee Company against the H. Alfrey Heading Company and others. From a judgment dismissing the suit, plaintiff appeals.</p>

Walter Daspit and another were convicted of keeping a grog and tippling shop without having obtained a license, and appeal.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by Lucy Harless against Oscar Harless. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. E. Blackman, Judge.</p> <p>Action by the Grant Timber & Manufacturing Company against Henry P. Gray and another. From a judgment of nonsuit, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Courts (§ 224*) — Review—Jurisdictional Amount.</p> <p>When a member of a society alleges that the constitution and by-laws have been violated by other members, this court cannot take jurisdiction of the cause, where no allegation is made that the right sought to be vindicated is worth a sum of money within the jurisdictional limits of this court.</p> <p>[Ed. Note. — iF°r other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 427*) — Evidence—Acts and Declarations of Conspirators.</p> <p>Some evidence, sufficient prima facie to show the existence of a conspiracy, should ordinarily be furnished before admitting statements of the alleged conspirators, made out of the presence of each other, though it is within the discretion of the trial judge to admit evidence of the acts and declarations of the alleged conspirators, made and done in the absence of the others, as a means of proving the conspiracy, subject to the condition that such evidence shall be disregarded, unless the conspiracy (the question of the existence of which is ultimately for the jury) be established.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. § 427.*]</p> <p>2. Criminal Law (§ 427*) — Evidence—Acts and Declarations of Conspirators.</p> <p>A statement, made by one of two alleged conspirators in the presence of, and not denied by, the other, tending to show the existence of a conspiracy between them, is admissible for the purpose of proving the conspiracy; and, where the point involved is material to the party complaining, the exclusion of such statement is reversible error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1014; Dec. Dig. § 427.*]</p> <p>3. Witnesses (§ 389*) — Contradiction—Competency of Evidence.</p> <p>Where, in a criminal case, a witness for the state has denied making certain statements of material consequence to the defense, the defendant has the right to offer the testimony of other witnesses for the purpose of contradicting him.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1243-1245; Dec. Dig. § 389.*]</p> <p>4. Witnesses (§ 361*) — Corroboration — Competency oe Evidence.</p> <p>Where, after the defendant in a criminal case has closed, the state introduces witnesses who attack the credibility of his main witness, defendant has the right to introduce other witnesses to sustain the character of the witness so attacked.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.*]</p> <p>5. Criminal Law (§ 1134*) — Appeal—Presentation oe Questions in Trial Court.</p> <p>Where defendant in a criminal case puts a witness on the stand, and, asking him a question, advises him, at the same time, that he need not answer if he fears that he will subject himself to criminal prosecution by so doing, and the witness, for the reason thus suggested, declines to answer, the question .whether his answer would have been admissible presents nothing which calls for any expression of opinion by this court.</p> <p>[Ed. Note. — For other cases, see Criminal ‘Law, Dec. Dig. § 1134.*]</p> <p>■6. Criminal Law (§§ 419, 420*) — Evidence-Hearsay.</p> <p>Defendant being prosecuted under a charge of incest, committed with his daughter, and a witness, called on his behalf, having testified that the daughter had given him a letter, to be delivered to her father, in which she proposed to abandon the prosecution on the payment to her of a sum of money, and having further testified that he read the letter to two other persons, after which he destroyed it, and it appearing that the two persons referred to knew nothing about the letter or its contents, save what they were thus told by and heard from the witness, their testimony as to the contents of the letter was properly excluded.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.*]</p> <p>7. Incest (§ 13*) — Witnesses (§ 405*) — Contradiction — Collateral Matters — Admissibility oe Evidence.</p> <p>Defendant, prosecuted under a charge of incest with his daughter, offered to testify that a letter from a third person had come into his possession which showed improper relations between the daughter and the writer; that he had taken the letter to the daughter, and required her to destroy it. Held, that his testimony as to the contents of the letter, offered for the purpose of contradicting the testimony of the prosecutrix, to the effect that she had had no improper relations with other men than her father,. and for the purpose of justifying the defendant in having prohibited the daughter from associating with the writer of the letter and others, was properly excluded, though defendant would have had the right, by competent evidence, to have contradicted the statements, concerning her relations with other men, which were made by the prosecutrix in her answers to the examination in chief; the rule exempting a person so situated from contradiction as to collateral facts being limited to facts developed on cross-examination. Beyond that, the court is not to be understood as holding that evidence of the relations of the prosecutrix with other men than the' defendant, in a case such as this, is always and necessarily immaterial and collateral to the main issue. .</p> <p>[Ed. Note. — For other cases, see Incest, Dec. Dig. § 13;* Witnesses, Dec. Dig. § 405.*]</p> <p>8. Incest (§ 7*) — Criminal Prosecution — Consent oe Female.</p> <p>In a prosecution for incest, where the female may be under the age of consent, it is proper for the court to charge the jury that her consent could not affect the issue, first, because neither woman nor girl can make incest any the less a crime by her consent; and, second, if she should be found to be under the age required by law, she was incapable of consenting to sexual intercourse with any one.</p> <p>[Ed. Note. — For other cases, see Incest, Cent. Dig. § 6; Dec. Dig. § 7.*]</p> <p>9. Criminal Law (§ 780*) — Triai^Instructions — Testimony oe Accomplice.</p> <p>A jury may properly be charged that corroboration of the testimony of an accompliee_ is desirable, but, not indispensable, to conviction in a criminal case.</p> <p>[Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.*]</p> <p>10. Criminal Law (§ 778*) — Trial—Instructions — Flight.</p> <p>The -charge, in a criminal case, that flight is an' evidence of guilt, and is to be so considered by the jury, but that they could also consider the prisoner's explanation of it, and the amended charge, that flight, is to be considered as a consciousness of guilt, áre objectionable. Flight is regarded as merely a circumstance which, “though by no means strong enough, by itself, to warrant a conviction, yet may become one of a series of circumstances from which guilt may be inferred.” As the defendant in this case appears to have been afforded ample opportunity to explain, however,' it is not likely that he was prejudiced by the charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1857; Dec. Dig, § 778.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Taxation (§ 622*) — Tax Sales — Validity.</p> <p>A tax sale based on taxes in part unlevied or not due is invalid.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1277; Dec. Dig. § 622.*]</p> <p>2. Taxation (§ 689*) — Tax Sales — Validity.</p> <p>That an owner has paid an unlevied school tax for several years does not estop him or his successor to sue to annul a sale based on subsequent delinquency.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1380-1386; Dec. Dig. § 689.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and Information (§ 121*)— Duplicity — Escape.</p> <p>An information, charging that defendant officer failed continuously from April 21st to June 23d to keep certain prisoners in custody, was not rendered bad for duplicity by filing of a bill of particulars, stating that the district attorney was unable to furnish specific dates upon which escapes were permitted, but that they were permitted on various dates between the days charged in the information; the bill of particulars not being an amendment to the information, which charged a single offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. § Í21.*]</p> <p>2. Courts (§ 207*) — Appellate Courts — Supervisory Powers.</p> <p>In exercising its supervisory powers, the Supreme Court is not restricted by the provisions of the Code of Practice in the exercise of its supervisory powers by writs of mandamus, certiorari, and prohibition.</p> <p>[Ed. Note. — For other cases, see Courts, Dec-Dig. § 207.*]</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 1104*) — Appeal—Insuitfi-CIENT TRANSCRIPT.</p> <p>Appeal dismissed for want of jurisdiction ratione materise.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1104.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Municipal Corporations (§ 705*) — Injuries to Pedestrians — Negligence.</p> <p>Where a chauffeur saw plaintiff and her companions, and had his machine under control, and would have avoided striking plaintiff if it had been possible to do so, and she had placed herself in danger because of her contributory negligence, defendant was not liable for the resulting injury.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>Action by the Railroad Lands Company, Limited, against the Webster Sand, Gravel & Construction Company. From a judgment granting a portion of the relief prayed, plaintiff appeals.</p>

Mary; Henry D. Smith, Judge ad hoc. Action by Charles Y. Chase against the Menefee Cypress Company, Limited. George and Justice Hanson were called in warranty. From a judgment for plaintiff, defendant appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Damages (§ 130*) — Inadequate Damages — Personal Injuries.</p> <p>Plaintiff fell from a street car, and was unconscious when reached by the bystanders, and when she revived and was placed upon her feet she could not stand, one of her shin bones being broken, causing her considerable suffering, and she was in bed five months, during which time she lost $3.50 a week, which she could have earned, and had doctor’s expenses to pay. Held, that a verdict of $1,000 awarded plaintiff would not be increased to $10,000.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 130.*]</p> <p>Monroe, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>Railroads (§ 307*) — Injuries at Crossings —Gates.</p> <p>Where a gate near a railroad crossing fell on and killed a boy while he was shutting it, and such gate was constructed and maintained by the railroad company, in lieu of the usual cattle guard and fencing, the company will be liable in damages, where it is shown by the' evidence that the fall of the gate was caused by a defective pivot pin, or by faulty construction, or by both.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 972-977; Dec. Dig. § 307.*]</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>R. W. Williams was convicted of manslaughter, and appeals.</p>

<p>Appeal from Second. Judicial District Court, Parish of Webster; John N. Sandlin, Judge.</p> <p>J. E. Lewis, alias D. W. Clarke, alias B. C. Clarke, was convicted of burglary, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Nellie Grant, wife of T. Hurley, against the New Orleans Railway & Light Company. 'Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>Suit by E. R. Bernstein, Liquidator, against O. P. Clement, Sheriff and Ex Officio Tax Collector. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1.Navigable Waters (§ 39*) — Injuries from Flowage — Right of Action.</p> <p>No one has a right to maintain a dam across a navigable stream, so as to obstruct its flow and cause salt water to overflow on the land of another and stagnate, thereby causing the death of trees on the land. This is a nuisance, and the owner of the land has an action for its abatement.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 239-244; Dec. Dig. "</p> <p>2.Estoppel (§ 93*) — Equitable EstoppelGrounds.</p> <p>Where one stands by and sees, without protest, another construct a dam across a navigable stream, and appears to approve, his grounds of complaint are adversely affected thereby.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 264r-275; Dec. Dig. § 93.*]</p> <p>3. Damages (§ 184*) — Assessment — Sufficiency of Evidence.</p> <p>Where one claims damages, he must prove the cause of the damages and their amount with certainty; for a judgment for damages cannot rest on mere conjecture.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 502; Dec. Dig. § 184.*]</p> <p>4. Plea of Prescription — Sufficiency of • Evidence.</p> <p>.Defendant’s plea of one year prescription is sustained by the testimony.</p> <p>5. Costs (§ 32*) — Right to Costs — Prevailing Party.</p> <p>As part of the demands of the plaintiff has been allowed, the defendant will be condemned to pay the costs of court.</p> <p>[Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Homestead (§ 13*) — Urban ob Rural.</p> <p>Under article 244 of the Constitution of 1898 a homestead may be rural or urban; but a debtor cannot have, at the same time, two homesteads exempt from execution.</p> <p>[Ed. Note. — Eor other cases, see Homestead, Cent. Dig. | 14; Dec. Dig. § 13.*]</p> <p>2. Homestead (§ 95*)— Cuan ge of Homestead.</p> <p>Where a debtor had a residence in town, and mortgaged his farm in the vicinity, he will not be permitted to shift his homestead at the expense of his mortgage creditor.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 141-146; Dec. Dig. § 95.*]</p>

B. Claiborne, Judge. Action by the State, on the relation of D. C. Smith, for a writ of mandamus against T. W. Dardenne, Registrar. From an order granting the writ, said registrar appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Food' (§ 25*) — Wholesomeness—Liability of Seller.</p> <p>A seller of food, such as chocolate and cakes sold at a public eating place, is presumed to know any unwholesome condition of the food, and is liable for damages to a purchaser through being made ill on account of unwholesomeness.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 18; Dec. Dig. § 25.*]</p> <p>2. Food (§ 25*) — Sales of Unwholesome Food — Measure of Damages.</p> <p>The measure of damages sustained by a purchaser of food, who is made ill through its-unwholesomeness, is not merely reimbursement of the price, but all damages that were foreseen or could have easily been foreseen as likely to have resulted, though the seller’s knowledge of the unwholesome condition was imputed and not actual.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 25.*]</p> <p>3. Food (§ 25*) — Sales of Unwholesome F 00 D — D AM AGES — BxCESSI VENESS.</p> <p>One hundred dollars was not_excessive recovery by a purchaser of food for illness resulting from ptomaine poisoning caused by unwholesomeness of the food, where plaintiff suffered intense pain, believed for two hours that he was in danger of death, and suffered an attack of jaundice in consequence.</p> <p>[Ed. Note. — Eor other cases, see Food, Dec. Dig. § 25.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>Action by Mrs. Sophia Bender against W. D. Chew. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Sales (§ 275*)— Contract — Warranty of Quantity.</p> <p>An agreement to sell and deliver all charcoal manufactured at defendant’s plant, within a certain time, “estimated at two or more cars per week,” does not imply a warranty of quantity by defendant, but only an estimate of the probable amount, in reference to which good faith is all that is required of the party making it.</p> <p>TEd. Note. — Eor other eases, see Sales, Cent. Dig. §§ 744, 748; Dec. Dig. § 275.*]</p> <p>2. Sales (§ 411*) — Breach of Contract — Petition.</p> <p>Where, in a suit for damages on such a contract, the petition merely alleges a breach by nondelivery of the full estimated amount, held, that the petition discloses no cause of action.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §•§ 1161-1164; Dec. Dig. § 411.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3.Words and Phrases — “Estimate.”</p> <p>The word “estimate” precludes accuracy, and its ordinary meaning is to calculate roughly or to form an opinion from imperfect data, and the word “estimate” has no more certainty than the term “about” or “more or less” (citing Words and Phrases, vol. 3, p. 2493).</p>

F. Black-man, Judge. Action by the Commercial Bank of Alexandria against Oscar Shanks. Judgment for plaintiff, and writ of garnishment issued against the City of Alexandria and E. J. Hardtner. From a judgment granting plaintiff a portion of relief to mandate, he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Execution (§ 311*) — Beal Actions (§ 7*) — Sheriff’s Deed — Variance — Petitory Action — Defenses.</p> <p>Where there is variance between the recitals of a sheriff’s return and deed, the latter will prevail. Defendant in a petitory action cannot avail himself of relative nullities in the title of the plaintiff.</p> <p>[Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 918-920; Dec. Dig. § 311;* Beal Actions, Cent. Dig. § 23; Dee. Dig. § 7.*]</p> <p>2. Vendor and Purchaser (§ 229*) — Bona Fide Purchaser — Unrbcorded Agreements.</p> <p>Plaintiff’s title derived from the record owner cannot be affected by unrecorded agreements or understandings between prior holders of the title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 479; Dec. Dig. §229.*]</p>

King, Judge. Action by Frank Christina against Mrs. Theresa Cusimano and others, and Louis Spiro and others intervene. From the judgment, Spiro and another appeal.

J. Henry,. Judge. Action by Martha Britt and others against the Caldwell-Norton Lumber Company or the Boleyn Lumber Company, D. G. Petty Lumber Company and others, warrantors. Judgment for plaintiffs against defendant the Boleyn Lumber Company, and the warrantors appeal.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin K. Schwing, Judge.</p> <p>Action by the Police Jury of Parish of Iberville against the Texas & Pacific Railway Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mortgages (§ 37*) — Parol Evidence — Admissibility.</p> <p>In the absence of allegations that the execution of an authentic act of sale of immovable property was induced by error, misrepresentation, or fraud, parol evidence, to show that a contract of mortgage was intended, is properly excluded.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dee. Dig. § 37.*]</p> <p>2. Vendor and Purchaser (§ 239*) — Bona Fide Purchaser.</p> <p>One who, upon faith in the public records, purchases real estate, the recorded title to which stands in the name of his vendor, is entitled to be protected in his purchase against any claims or equities arising out of the previously existing relations between his vendor and the latter’s author or other persons.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §■§ 583-600; Dec. Dig. § 239.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§§ 279, 217*) — Injuries to Servant — Negligence of Master — Contributory Negligence.</p> <p>A mill hand, operating a eut-off saw, was struck upon the arm by a strip of wood carelessly thrown by another band, who was working with another machine, with the result that his arm was knocked against the saw and bis hand cut off; and this court finds that, save for the blow upon plaintiff’s arm, there would have been no accident, and, even with the blow, there would probably have been none, if the saw had been provided with its usual and proper equipment. Held, the millowner was guilty of negligence in employing a careless or incompetent hand and in failing to provide plaintiff with a reasonably safe place and reasonably safe appliance in and with which to do the work to which he was assigned, and plaintiff was not guilty of contributory negligence and did not assume the risk of defendant’s negligence, or of that of its careless or incompetent hand, who was not plaintiff’s fellow servant, within any rule that has been recognized by this court, since he and plaintiff were not engaged in the same work, and plaintiff had not seen enough of his carelessness to warrant the belief that he realized the danger therefrom to himself.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 57L-600; Dec. Dig. §§ 279, 217.*]</p> <p>2. Damages (§ 132*) — Personal Injuries— Loss of Hand.</p> <p>Where a young man, 19 years of age, who is dependent upon his physical labor for his livelihood, loses his right hand through the negligence of his employer, this court feels justified in allowing him $7,500 as damages.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*]</p> <p>3. Damages (§ 128*) — Personal Injuries— Amount.</p> <p>The amount to be awarded plaintiff in an action for damages for personal injury cannot be affected by the suggestion or consideration that the defendant company has been placed in the hands of a receiver, and is paying but 10 cents on the dollar to its creditors.</p> <p>[Ed. Note. — Eor other cases, see Damages, Dec. Dig. § 128.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander (§ 56*) — Averments in Pleading — Withdrawal.</p> <p>Where alleged libelous averments are made in an answer, and, upon a compromise of the suit, they are withdrawn, with the consent, or assent, of the one against whom they are made, an action for the libelous averments cannot be subsequently maintained.</p> <p>[Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. § 156; Dec. Dig. § 56.*]</p> <p>2. Libel and Slander (§ 4*) — Statement in Pleading — Legal Malice.</p> <p>Where, from the circumstances of a case, a defendant has probable cause to believe that the allegations of an answer are true, and no legal malice can be imputed, no action will lie for damages caused by the allegations.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 111; Dec. Dig. § 4.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Insurance (§ 70*) — Mutual Accident Company — Powers of Liquidator.</p> <p>The liquidator of a solvent mutual accident insurance company has no standing in court to question the power of the board of directors to grant rebates to policy holders, or to distribute dividends, especially where such board was vested by the charter with every corporate power which might be exercised by the members of the corporation.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 93; Dec. Dig. § 70.*]</p> <p>2. Insurance (§ 55*)— Mutual Insurance Companies — Membership.</p> <p>Policy holders in a mutual accident insurance company are practically stockholders therein; and the fact that they are also trustees for their employés, who may receive bodily injuries, does not affect their membership.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 67-69; Dec. Dig. § 55.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Carriers (§ 318*) — Injury to Passengers —Unavoidable Accident — Damages.</p> <p>Action by passenger for personal injuries. Evidence held insufficient to prove unavoidable accident. Award of damages held excessive, and reduced.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 318.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Damages (§ 130*) — Personal Injuries— “Sciatica.”</p> <p>In an action for injuries to a passenger, where plaintiff’s evidence tended to show that he was afflicted with sciatica, which is defined as neuralgia of the sciatic nerve, and, in a popular sense', any affection of the hio or adjoining parts, a verdict for $1,000 held excessive, and reduced to $250.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 130.*]</p>

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

Petition by Engene B. Watson, Warden of Louisiana State Penitentiary, and G. Kilgore, Clerk and Secretary of the Board of Control of the State Penitentiary, for the removal of Frank Oteri, an insane convict, to the Insane Hospital. On application for certiorari, and mandamus to review a judgment sustaining an exception to the petition. Rule made absolute and mandamus issued.

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Joseph Louvier and others were convicted of stealing a calf, and appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 1182*) — Appeal—Disposition of Cause — Affirmance.</p> <p>Every appeal must have a basis, and when, in a criminal trial, no bill of exceptions has been reserved, no motion in arrest of judgment made, nor any assignment of error alleged, and no error appears on the face of the record, the appeal having no basis upon which to rest, the judgment will not be disturbed.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3203-3205; Dec. Dig. § 1182.*]</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Landlord and Tenant ($ 229*) — Rent-Provisional Seizure — Conditions Precedent-Notice oe Demand.</p> <p>Where, though the lease required the lessee to pay rent notes on the 1st of the succeeding month, and made all of them at once payable if any one of them was not promptly paid, the lessor uniformly for some 17 months permitted the lessee to pay the notes from 3 days to about a month after they were due, the lessor should have presented the notes for payment before suing out provisional seizure in connection with a suit on the notes, especially where the notes were not payable at a particular bank or place.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 948-974; Dec. Dig. § 229.*]</p> <p>2. Costs (§ 42*) — Effect of Tender.</p> <p>Where, in an action on overdue rent notes, the money tendered by the tenant at trial to satisfy the notes was not deposited in court and the tender was not a legal tender, the costs of the suit on the notes should be taxed to defendant.</p> <p>[Ed. Note. — For other cases, see Costs, Cent, Dig. §§ 137-164; Dec. Dig. § 42.*]</p>

<p>Action by Christopher Roussel against Joseph B. Dornier and others. Application by plaintiff for writs of mandamus and certiorari.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1158*) — Appeal— Questions oe Fact.</p> <p>Art. 85 of the Constitution provides that in criminal cases the Supreme Court shall review only questions of law. Questions of fact are for the jury, or the judge, and, where there is any evidence at all in the case, their findings of fact cannot be reviewed by this court (as relates to guilt or innocence of the accused).</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3071, 3074^3084; Dec. Dig. § 1158.*]</p> <p>2. Statutes (§ 118*)— Subjects and Titles —Work on Public Roads.</p> <p>Act No. 51 of 1906 has only one object, which relates to work on the public roads by ■defendants who heretofore were condemned to imprisonment only.</p> <p>[Ed. Note. — For other cases, see Statutes, (Cent. Dig. §§ 15S-160; Dec. Dig. § 118.*]</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; James R. Parkerson, Judge ad hoc.</p> <p>Action by Duvillier Rodriguez against Arthur Prevost and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; George J. Woodside, Judge.</p> <p>Action by the Hammond Lumber Company, Limited, against W. L. Smart, sheriff, and the Parish of Livingston. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles Austin O’Neill, Judge.</p> <p>Action by the Ellerslie Planting Company, Limited, against Warren O. Blackman, in which Mrs. Fannie Maddox Blackman intervenes. From a judgment for intervener, plaintiff appeals.</p>

Action by the National Packing Company against Davis & Scharff Grocery Company, Limited. Judgment for plaintiff for less than the amount claimed, and it appeals.

<p> (Syllabus by the Oourt.) </p> <p>Mines and Minerals (§ 58*) — Mineral Lease — Validity — “Contract” — “Commutative Contract.”</p> <p>A so-called mineral lease for 10 years, based on a royalty, in which the lessee does not obligate himself to develop the premises for oil and gas, and in which the lessee reserves the right at any time to terminate the lease after finding oil or gas in paying quantities, is void, as to the lessor, for want of consideration.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Dec. Dig. § 58.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1345, 1513-1534; vol. 8, pp. 7615-7616.]</p>

<p> (Syllabus by the Court.) </p> <p>.1. Street Railroads (§ 70*) — -Street Cars— Separate Accommodations.</p> <p>Act No. 64 of 1902, requiring street railway companies to provide separate accommodations for the white and colored races, is properly interpreted, to mean-that the position of the movable partition in a car may be changed as occasion may require; that is to say, should it be found that, at a particular time, there is more space assigned to the one race and less to the other than is needed for the accommodation' of the respective classes of passengers, the officer in charge of- the car may move the partition to meet that condition and may require the passengers to move their seats accordingly. But, where a passenger has found a seat in the compartment assigned to his race, the officer has no right, by moving the partition, to put him in the wrong-compartment, when there is no seat to be found in the compartment thus newly established for his race.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 70.*]</p> <p>2. Carriers (§ 283*) — Carriers of Passengers — Obligation.</p> <p>The obligation of a carrier of passengers is to carry them safely and protect them from insult and injury, and a fortiori, from injury at the hands of its own officers and employes.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1119-1124; Dec. Dig. § 283.*]</p>

<p> (Syllabus by the Court.) </p> <p>Taxation (§ 710*) —Sale — Redemption — Payment op Tax Collector.</p> <p>Under section 62, Act No. 96 of 1882, a tax collector was authorized to receive the redemption price of property sold for taxes, only when the purchaser at the sale could not be found. This section has no application to a case where the purchaser was a resident of the parish in which a tax sale was made, and there is nothing to show that a tender in the usual form could not have been made to him.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1436, 1437; Dec. Dig. § 710.*]</p>

<p>Appeal from Sixteenth Judicial District Court, Parish, of St. Landry; B. H. Pavy, Judge.</p> <p>Action by Gerasime Richard against John Percy Richard. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge.</p> <p>Action between S. A. Vannatta and others and M. P. Busbey and others. Judgment for plaintiffs, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Boundaries (§ 3*) — Location of Mileposts — Governmental Surveys.</p> <p>The location of mileposts on a basis meridian line by measurement from a degree of latitude, cannot be affected by surveys from other starting points west of such meridian.</p> <p>[Ed. Note. — For other cases, see Boundaries, Dec. Dig. § 3.*]</p> <p>2. Boundaries (§ 54*) — Resurveys — Approval — Effect.</p> <p>Where the location of a certain milepost on the basis meridian has been fixed by two governmental resurveys, duly approved, such surveys necessarily supersede the original survey.</p> <p>[Ed. Note. — For other cases, see Boundaries, Dec. Dig. § .54.*]</p>

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermillion; Wm. P. Edwards, Judge.</p> <p>Action by George O. Elms against Lee Elliott. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Partnership (§ 146*) — Commercial Partnerships — Powers of Partners.</p> <p>A firm carried on a general country store, and also owned several cotton plantations which it cultivated through tenants on shares making advances to them and buying the greater part of their share of the crops. Which part of the business was the principal part was not shown, and the entire business was conducted as one business. Held, that the firm was a commercial firm and a partner could bind it on a note executed by him in due course of business.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 242-255; Dec. Dig. § 146.*]</p> <p>2. Bills and Notes (§ 534*) — Stipulations for Attorney’s Fees — Liquidated Damages.</p> <p>A stipulation in a note for 10 per cent, attorney’s fees, if the note is placed in the hands of an attorney for collection, is a stipulation for liquidated damages, and the fees are recoverable in an action on the note without any proof that they were incurred.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the Templeman Bros. Lumber Company, Incorporated, against Fairbanks, Morse & Co. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Action by Ella Nason Dillon and others against Jessie B. Freville and others. From the judgment, plaintiffs appeal.</p>

Trent Jenkins and others were charged with arson, and, on refusal of bail, John Jenkins applies for writs of certiorari and mandamus.

<p>Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.</p> <p>Action by the Gulf Refining Company of Louisiana against the Jeems Bayou Hunting & Fishing Club. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§ 256*) — Operation—Companies Liable fob Injuries.</p> <p>Whether a railroad company shall operate its road by itself or by another is a question for it, within certain limits, to determine; -but the determination of that question cannot relieve it of the consequences to others of negligence in such operation.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 789-792; Dec. Dig. § 256.*]</p> <p>2. Master and Servant (§§ 96, 101, 102, 150*) — Railroads (§§ 261, 278*) — Injuries to Servant — Instructions to Servant.</p> <p>A section foreman in the employ of a railroad company has a right to expect adequate instructions and information and a reasonably safe place, the character of the work and the circumstances considered, for the discharge of the duties for which he is employed, and, as to him, the negligence of a licensee, operating trains over the road of such company under contract with the owner, whereby his place of work is rendered unnecessarily dangerous, is imputed to his employer. And the licensee is also liable to him for the consequences of its negligence, unless the sufferer is himself guilty of such negligence as directly to contribute to his own injury, or has assumed the risk of the negligence of the other; in either of which cases, both railroad company and licensee are relieved.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 165, 171-184, 192, 297-307; Dec. Dig. §§ 96, 101, 102, 150;* Railroads, Dec. Dig. §§ 261, 278.*]</p> <p>3. Master and Servant (§ 240*) — Injuries to Servant — Contributory Negligence.</p> <p>It is not negligence in a section foreman on a railroad to travel over his section on a hand car, furnished him for that purpose, when the only train to be at all expected is a log train, which may or may not come on that day, and of whose irregular and unscheduled movements he receives no notice; nor is it negligence in him 'to be on the track, at such distance from the approaching log train as would enable him, under ordinary circumstances, and with ordinary care on the part of those by whom the train has been made up and is operated, to take himself and his car out of the way, or as would enable them to stop the train before colliding with the car; nor is it negligence in the foreman, under such circumstances, to endeavor to take his hand car off the track, instead of at once seeking his own safety; for, if his position has become perilous by reason of the unexpected failure of those in charge of the train to stop it or check its speed, he cannot be held to the exercise of the most deliberate judgment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 240.*]</p> <p>4. Master and Servant (§§ 137, 213*) — Injuries to Servant — Operation of Trains —Assumption of Risk.</p> <p>It is gross negligence to make up a log train with a caboose at one end and a locomotive at the other, when the train is to be pushed by the locomotive, moving backward, and is _so long as to render it difficult, and at times impossible, for the engineer, who alone, has the power to stop it, to get a stop signal from the lookout in the caboose. And it is gross negligence in those who are operating such a train to fail to make the best of a bad situation, for the engineer to ride with his back in the direction in which the train is moving, and for the men in the caboose not to arrange a more expeditious method of conveying a stop signal than by running back, through the length of the caboose, and waiving their arms over the side of the train. And no section foreman can be held to have assumed the risk of such negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. §§ 137, 213.*]</p> <p>5. Damages (§ 132*) — Excessive Damages— Personae Injuries.</p> <p>Where a railroad section foreman, 32 years old, who is dependent on his physical labor for the maintenance of himself and family, who, by reason of the negligence of others, has had his thigh broken, and, after severe suffering, is left permanently lame, has recovered $3,500 by way of compensation for such injuries, this court finds no sufficient reason for reducing the award.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Chef Menteur Land Company, Limited, against Joseph A. Mercier. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Oowrt.) </p> <p>1. Receivers (§ 140*) — Final Account — Attack on Receiver’s Sale.</p> <p>An attack on a sale by a receiver cannot be made by opposition to a final account, when the necessary order for the sale has been on the order book for the required time. If there was irregularity in the order directing the sale, or relating to appraisement, a rule to show cause why the order “shall not be vacated” should have been taken by the present opponent.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 246; Dec. Dig. § 140.*]</p> <p>2. Receivers (§ 135*) — Final Account —- Charges.</p> <p>As the receiver did not purchase the property, he cannot be charged with the difference between the purchase price and the price which the property should have brought.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 231-235; Dec. Dig. § 135.*]</p> <p>3. Receivers (§ 183*) — Final Account — Charges.</p> <p>If there is any action against the receiver and others, it is for damages; but, as these have not been prayed for, the question of whether they are due cannot be inquired into.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 183.*]</p> <p>4. Receivers (§ 154*) — Claims Against Property — Attorney’s Fee.</p> <p>The receiver allowed attorney’s fees on two notes held by the bank of Monroe, and which provide for 10 per cent, attorney’s fees when it becomes necessary to place them in the hands of an attorney, or to sue upon them; and, as there is no proof in the record that the notes were placed, either.in the hands of an attorney for collection, or to be sued upon, the fees should not have been allowed.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 154.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Contracts (§ 295*)— Performance — Sufficiency.</p> <p>Where a contract for the construction of a dam is silent as to whether the wing walls shall be straight or perpendicular or at an angle, and it is shown that both kinds are in use, though the construction at an angle is preferable, the contractor does not breach his contract by furnishing perpendicular walls.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1353; Dec. Dig. § 295.*]</p> <p>2. Contracts (§ 305*) — Equitable Estoppel —Grounds—Performance of Contract.</p> <p>When the owner stands by without objection, and sees the contractor constructing perpendicular walls and accepts the work after completion, he will not be heard several months afterwards, and after the walls have been in use, to say that the construction of perpendicular walls is not a fulfillment of the contract by the builder.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1467-1475; Dec. Dig. § 305.*]</p> <p>3. Contracts (§ 322*) — Actions for Breach— Burden of Proof.</p> <p>Since the defendant seeks to escape from the obligation of his contract by alleging that the work sued for was defective, he must prove his allegation, and the proof does not sustain his contention, for it is most unlikely that a small quantity of water passing beneath the. gate, due to the absence of grooves, which plaintiff should have furnished, caused the destruction of the whole work.</p> <p>129 La. — 34</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. § 322.*]</p> <p>4. Contracts (§ 312*) — Performance—Sufficiency.</p> <p>The evidence tends to prove that the destruction of the dam was due to an insufficient foundation, owing to the nature of the soil where the dam was .located, and, as this place was chosen by both parties, the defendant cannot now hold the plaintiff responsible for the selection of this site.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 312.*]</p> <p>5. Damages (§ 19*) —Elements—Proximate Cause of Injury.</p> <p>Where a foundation gives way because of the nature of the soil beneath, and causes the walls and works above to fall, the proximate cause of the damage must be held to be the nature of the soil beneath the foundation, and not the construction of the work above.</p> <p>[Ed. Note. — For other cases, see Damages, Dee. Dig. § 19.*]</p>

Action by John W. Gates against C. D. Otis. Judgment dissolving writ, and plaintiff appeals. Judgment on the merits for plaintiff, and defendant appeals.

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Action by Edmund C. Quirk against Denis Miller. Judgment for defendant, and plaintiff appeals.</p>

O. Madison, Judge. Charley Holt was charged with a simple assault. From a decree sustaining a plea of autre fois convict and discharging the accused, the State appeals.

<p> (Syllabus by the Court.) </p> <p>Libel and Slandeb (§ 100*) — Actions—Issues and Proofs.</p> <p>In an action for damages for slander, the plaintiff must prove th.e words strictly as alleged in the petition.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 246-272; Dec. Dig. §. 100.*]</p>

Ellis, Judge. Action by John Fischer and another against the Parish School Board and others. From a judgment sustaining an exception of no cause of action, plaintiffs appeal.

<p>Action by Thomas J. Adams against J. W. Porter. Application by the defendant for certiorari or writ of review to the Court of Appeal, Parish of Caddo.</p>

<p> (Syllabus by the Court.) </p> <p>Taxation (§ 79*) — Persons Liable —Purchaser.</p> <p>The law provides that all taxable property should be assessed, and the fact that plaintiff did not on the first day of the year own the property sought to be assessed, but acquired it only subsequently, does not have the effect of making it nontaxable property from the date of its acquisition until the end of the year in which it was acquired. Taxes are due on the property, since it does not come within any tax exemption, and the taxes must be paid by the owner.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 139; Dec. Dig. § 79.*]</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>Action by the Webster Sand, Gravel & Construction Company against the Vicksburg, Shreveport & Pacific Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>