Volume 130 — Louisiana Reports

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.</p> <p>Joe Lazarone, Jr., was convicted of manslaughter, and appeals.</p>

Mary; Charles A. O’Niell, Judge. In the matter of the succession of Moses S. Alexander. From a judgment maintaining in part oppositions by Leah Hope and others to the provisional account of the executor, he appeals.

Action by the Central Glass Company, Limited, against the German American Insurance Company. Application by defendant for certiorari or writ of review to review the judgment of the Court of Appeal, Parish of Orleans, affirming the judgment of the district court for plaintiff.

<p>Mandamus by the State, on the relation of Frank B. Williams, chairman of the Republican State' Central Committee, to Edward Everett, Secretary of State. Application by the defendant for a writ of certiorari.</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; R. C. Drew, Judge.</p> <p>Action by Oscar E. Baucum against the Pine Woods Lumber Company and another. Judgment for plaintiff, and defendants appeal.</p>

K. Skinner, Judge. Action by Theodore A. Beck against the Progressive Realty Company, Limited. From a judgment dismissing an injunction suit by defendant against plaintiff on an exception of no cause of action, defendant appeals.

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Samuel J. Henry, Judge.</p> <p>Action by Jeff D. Tolbert against J. W. Freeman, Sheriff, and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George PI. Théard, Judge.</p> <p>Action by Charles E. Babcock against William P. Ball, Registrar of Voters for Parish of Orleans. From a judgment dismissing plaintiff’s suit, he appeals.</p>

<p> (Syllabus by the Court.} </p> <p>1. Evidence (§ 208*) — Judicial Admissions —Pleading Dismissed.</p> <p>One who brings suit, praying to be recognized as heir at law of another, and in that ■capacity alone put in possession of the estate of such other person, making the inventory thereof part of Ms petition, as designating or •describing the property of which the estate consists, and whose suit is dismissed, whether as in case of nonsuit or otherwise, is bound by his judicial admissions as to the title of the property so claimed; and neither he nor a person claiming under him can be heard, years afterwards, to allege that he owned such property, at the time the suit was brought, by a ■title other than that set up.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. § 208.*]</p> <p>2. Tenancy in Common (§ 20*) — Mutual Rights oe Co-Gwners — Acquisition oe Adverse Title.</p> <p>One who invokes the rule that a co-owner, who acquires common property sold for taxes. does so for the benefit of his co-owners, as well as himself, must come with clean hands and present a case calling for the interposition of a court of equity, since the rule so invoked finds its support in equity alone.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 60, 61; Dec. Dig. § 20.*]</p>

F. Blackman, Judge. Action by Henry Y. Cross against the Lee Lumber Company. From a judgment for plaintiff, defendant appeals, and plaintiff answers the appeal, praying that the amount of the award be increased.

<p> (Syllabus by the Court.) </p> <p>On the Exceptions.</p> <p>1. Pleading (§ 332*) — Filing and Service —Documents Referred to.</p> <p>This court will not dismiss a suit because an exception has been filed that the petition is vague because a copy of a map referred to therein has not been served on the defendant. The map was filed with the petition and is among those documents which need not be served.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 332.*]</p> <p>2. Eminent Domain (§ 191*) — Pleading — Sufficiency of Allegations.</p> <p>As the plaintiff set forth the use for which the land was intended, and the allegations were sufficiently explicit to allow the defendant to meet the issues, the exception of vagueness was properly overruled.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 509-518; Dec. Dig. §■ 191.*]</p> <p>On the Merits.</p> <p>3. Eminent Domain (§ 196*) — Necessity of Condemnation — Evidence — Expropriation.</p> <p>The evidence leads to the conclusion that the property sought to be expropriated is necessary for the railroad purposes of the plaintiff and that under its right of eminent domain it is entitled to the land after paying proper damages.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dec. Dig. § 196.*]</p> <p>4. Eminent Domain (§ 234*) — Award—Sufficiency.</p> <p>The findings of the commission on the question of damages are correct.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Dec. Dig. § 234.*]</p> <p>Monroe, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Account, Action on (§ 7*)— Sueeicienoy oí? Evidence.</p> <p>In a suit on open accounts, where the witnesses refresh their memories by the books, and the general trend of the business shows that the goods have been sold and delivered, it is not necessary to prove the actual delivery of each and every item. The testimony made out at least prima facie proof, and it was then incumbent upon the defendants to show wherein the proof was insufficient.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 13-17; Dec. Big. § 7.*]</p> <p>2. Evidence (§ 366*) — Doctjmentaky— Certification.</p> <p>The offer of original pleadings, not certified by the proper authority, is insufficient to prove a bankruptcy proceeding, and the objections to their admission should have been sustained.</p> <p>[Ed. Note. — For other cases, see Evidence, Dec. Dig. § 366.*]</p> <p>3. Evidence (§ 366*) — Documentaby Evidence — CERTIFICATION OF PAPERS.</p> <p>The referee in bankruptcy is the custodian of the papers and documents in a bankruptcy proceeding, and they .must be authenticated by him before they can be introduced in evidence in another proceeding, or, where they have been forwarded to the clerk of the bankruptcy court, they should be certified by him.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1522%; Dec. Dig. § 366.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Ckiminal Law (§ 1030*) — Appeai>-Objections in Lower Court.</p> <p>Where one has been convicted of perjury for having sworn falsely in a case where the accused was charged with a crime against nature, and in the perjury proceedings no bill of exceptions was reserved, no demurrer filed, or motion to quash the indictment made, on the ground that the act charged did not come within the statute denouncing crimes against nature, this court on appeal will not set aside the conviction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2621; Dec. Dig. § 1030.*]</p> <p>2. Criminal Law (§ 1090*) — Appeal — Review — Scope—Absence op Bill op Exceptions.</p> <p>In the absence of a bill of exceptions, this court will not review the judgment of the lower court, except when there is error patent on the face of the•record.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827; Dec. Dig. § 1090.*]</p> <p>3. Criminal Law (§ 972*) — Arrest op Judgment — “Record.”</p> <p>The “record” in a criminal case includes a statement of the time and place of holding-court, the indictment or information, with the indorsement thereon, the arraignment, the plea of the accused, the impaneling of the jury, the verdict, and the judgment of the court; and a motion in arrest of judgment will be sustained only when it is patent on the' face of the record, that there has been some irregularity in relation to one of the above-enumerated steps of the proceeding.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2423; Dec. Dig. § 972.* For other definitions, see Words and Phrases, vol. 7, pp. 6008-6014; vol. 8, p. 7781.]</p> <p>4. -Criminal Law (§ 1139*) — Appeal—Matters Reviewable.</p> <p>This court cannot consider evidence not introduced, and not admissible if it had been offered, on the motion in arrest of judgment, in determining whether an act charged comes within a criminal statute.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.*]</p> <p>5. Cbiminal Law (§ 1144*) — Appeal — Presumptions — Jurisdiction.</p> <p>As there is a presumption that the court which tried Whitaker had jurisdiction, and as the want of jurisdiction does not appear on the face of the present record, and cannot be shown otherwise, this court will conclude that the lower court had jurisdiction of the offense charged against Whitaker, and that the verdict and judgment were correctly rendered until the contrary appears.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3020; Dec. Dig. § 1144.*]-</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. O. W. Ellis, Judge. .</p> <p>Action by Marie ' L. Kerlec and others against the New Orleans Land Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; B. P. Edwards, Judge.</p> <p>Action by- the Victoria Lumber Company, Limited, against George E. Montgomery and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge.</p> <p>Rule by the City of Shreveport to Charles Smith to show cause why he should not pay a license tax. From a judgment for defendant, the city appeals.</p>

<p>Appeal from City Court of Shreveport; L. C. Blanchard, Judge.</p> <p>Prosecution, against Charles Smith for violation of an ordinance of the City of Shreveport. From a judgment for defendant, the City appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 1210*) — Remand-Procedure.</p> <p>Where a case was remanded because the judge a quo erred in dismissing an intervention after trial on the merits, the judge properly refused to allow a trial de novo, and properly took the case under advisement. Saint v. Martel, 127 La. 73, 53 South. 432, reaffirmed.</p> <p>[Ed. Note. — For other cases, see ADDeal and Error, Cent. Dig. § 4670; Dec. Dig. § 1210.*]</p> <p>2. Libel and Slander (§ 140*) — Slander op Title — Evidence.</p> <p>In a jactitation suit, a plaintiff or intervener alleging slander of his title must prove actual possession of the premises in order to maintain the action.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. '§ 140.*]</p> <p>3. Libel and Slander (§ 140*) — Slander op Title — Deeenses.</p> <p>Want of actual possession of the premises in the plaintiff or intervener may be pleaded by the defendant by way of exception.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 397-401; Dee. Dig. §. 140.*]</p> <p>4. Logs and Logging (§ 3*) — Purchase of Timber — Right to Possession.</p> <p>An intervener whose title deed to the timber on a tract of swamp land prohibits him. from deadening, cutting, pulling, hauling, or removing any of the trees thereon until the payment of certain notes, given for the .remainder of the purchase price, has no present title to possession of said timber; and his possession of a railroad right of way on .the premises cannot be considered as extending to the boundaries of the tract.</p> <p>.[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Paety Walls (§ 2*) — Presumptions.</p> <p>The presumption of article 677 of the Civil Code that a division wall betwixt two' buildings is a wall in common does not apply to a division wall between a building and a vacant lot.</p> <p>[Ed. Note. — Eor other cases, see Party-Walls, Dec. Dig. § 2.*]</p> <p>2. Paety Walls (§ 9*) — Division Wall— SERVITUDES.</p> <p>A division wall between a building and. a vacant lot remains the exclusive property of the owner of the building until the owner of the adjoining lot pays its value or one-half of the cost of construction. Where, in. such a ease, the owner of the vacant lot sells: the same with the buildings and improvements thereon, the warranty clause of the deed does not cover that portion of the division wall resting on the vacant lot. Quoad the divison wall, such sale transfers only the right of the vendor to make the division wall a wall in common by paying one-half of. its value or cost of construction.</p> <p>[Ed. Note. — Eor other cases, see Party Walls, Cent. Dig. §§ 42-53; Dec. Dig. §. 9.*]-</p>

<p> (Syllabus by the Court.) </p> <p>1. Costs (§ 194*) —Taxation—Rule—Sufficiency.</p> <p>The plaintiff in a suit is primarily liable for the costs of court, and in a rule to tax the costs on the party cast it is not necessary that he should allege that he has paid the costs; it is sufficient that he is liable for them, especially when it appears that the clerk of court has already paid the costs, such as jury fees, etc.</p> <p>[Ed. Note. — Por other cases, see Costs, Dec. Dig. § 194.*]</p> <p>2. Costs (§ 175*) — Liability for Jury Pees.</p> <p>Under the statute relating to the fees of jurors, they are allowed two dollars per day for the time they serve; but jurors who are only in attendance and do not serve are not entitled to be paid this sum by the one cast in the suit.</p> <p>[Ed. Note. — Pdr other cases, see1 Costs, Cent. Dig. §§ 698, 699; Dec. Dig. § 175.*) ■</p> <p>3. Costs (§ 3*) — Dependent on Statute.</p> <p>Costs, being unknown to the common law, are creatures of statutory law, and can be taxed only when there is a provision of law creating them.</p> <p>L-iao. mote. — R’or other cases, see Costs, Cent. Dig. § 1; Dec. Dig. § 3.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§ 79*) — Use of Streets — Grants of Rights by City.</p> <p>A grant by a municipal corporation to a private corporation of a right of way through the public streets is a privilege personal to the grantee, and not disposable, and the privilege cannot create the relation of landlord and tenant between the grantee and one using the right of way without the consent of the grantee. If the rights of the grantee are invaded by another using his right of way, he has an action in tort, but cannot maintain an action for rent because that can arise only from the relationship of landlord and tenant.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 79.*]</p> <p>2. Limitation of Actions (§ 30*) — Prescription — Limitations Applicable — Contract or Tort.</p> <p>The plea of three years prescription applies only to cases arising from contractual relations, but the plea of one year prescription is the proper one to be applied to this case as the deprivation charged by the plaintiff is tor-' ■tious, and the latter plea is therefore sustained.</p> <p>[Ed. Note. — For other cases, see Limitation «of Actions, Gent. Dig. § 141; Dec. Dig. § 30.*]</p> <p>On Rehearing.</p> <p>:3. PARTIES (§ 27*) — Joinder—Defendants.</p> <p>The allegation that two persons have committed identically the same tort is sufficient, •upon its face, and in the absence of evidence to the contrary, to convey the idea of co-operation and of such identity of interest- as to warrant their being joined as defendants in an action for the recovery of damages alleged to have '■been sustained as the result of the tort.</p> <p>[Ed. Note. — For other cases, see Parties, ■Cent. Dig. § 35; Dec. Dig. § 27.*]</p> <p>■4. Injunction (§ 65*) — Subjects of Relief —Interference with Franchise.</p> <p>The allegation that defendant has, without plaintiff’s permission, taken possession of rights of way, switch track privileges, switch tracks, and other property pertaining thereto, of which plaintiff is owner, and tortiously, wrongfully, and illegally holds such possession, to the ex-clusion of plaintiff, discloses a cause of action for the issuance of the writ of injunction for the protection of plaintiff’s property rights.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 134; Dec. Dig. § 65.*]</p> <p>•5. Railroads (§ 79*) — Use of Streets — Grant of Rights — Interference—Remedy.</p> <p>Whilst the grantee of a right of way and ^-switch track privileges on a public street has ordinarily no right of action to recover rent, ;as such, for being tortiously and wrongfully deprived of the enjoyment of such right and privileges, he may be entitled to recover damages, resulting from such deprivation, based upon the rental value of the property, and a petition alleging the tortious dispossession and deprivation and claiming such damages discloses a ■■cause of action for their recovery.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 79.*]</p> <p>«6. Limitation of Actions (§ 32*) — Limitations Applicable — Tort — Action Ex Delicto — Prescription.</p> <p>An action for damages for the alleged tor■tious, wrongful, and illegal taking and holding possession of a right of way and switch track -and other property connected therewith is an action ex delicto, and the claim for all dam■ages save those which were sustained within the year preceding the service of citation is 'barred by the prescription of one year.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Gent. Dig. §§ 143r-145; Dec. Dig. =§ 32.*]</p>

<p> (Sullabus by the Court.) </p> <p>1. Deeds (§ 196*) — Peestjmptions—Rebuttal.</p> <p>While there is a presumption that a sale by a father to his daughter, where the vendor remains in possession of the property for a number of years, is a simulated sale, still this presumption may be rebutted by evidence serving to explain the possession of the vendor.</p> <p>[Ed. Note. — For other cases, see Deeds, Dec. Dig. § 196.*]</p> <p>2. Deeds (§ 74*) — 'Validity—Equitable Es-topped — Acquiescence—Sales.</p> <p>Where parties to a sale have acted for a number of years as if the sale had transferred real rights, they will be estopped from denying such sale.</p> <p>[Hid. Note. — For other cases, see Deeds, Dec. Dig. § 74.*]</p>

Action by Joseph Vaccaro against Joseph Pigniolo. Judgment for defendant was reversed in the Court of Appeal, and he applies for certiorari or writ of review.

K. Skinner, Judge. Iu the matter of the succession of Andrew Drysdale. Petition by Mrs. Marcella Drys-dale Ennis and others against the executors of the .succession of Mrs. Julia P. Drysdale and another. From a judgment for the petitioners, an appeal is taken.

<p>Appeal from First Judicial District Court, Parish of Caddo; Thos. F. Bell, Judge.</p> <p>Action by Maud Curtis Keel and others against E. W. Sutherlin and others. Judgment for plaintiffs, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Cancellation of Instruments (§ 60*)— Judgment — Possession of Defendant.</p> <p>As Miss Desimone, one of the defendants, has already sold the property which is the subject of this suit and has no control over it, it very naturally follows that a judgment ordering her to transfer the property to the plaintiff would be of no avail, as it could not be executed by her.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Dec. Dig. § 60.*]</p> <p>2. Vendos and Purchases (§ 239*) — Bona Fide Purchasers — Rights of Bona Fide. Purchaser.</p> <p>Where one purchases on the faith of the-public records, which show that the vendor has. a clear title to the property sought to be sold, the vendee gets a title good as against the-world.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. § 239.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the State, on the relation of Barthe & Levy, against the Mayor of the City of New Orleans. From a judgment for defendant, relators appeal.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge.</p> <p>Action by Elias Lee against Nise C. Baham for divorce. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 448*) — Evidence—Opinion Evidence.</p> <p>The question whether the accused “acted as if they were in possession of the whisky” (referring to three barrels of whisky which had been stolen from a box car and hidden in the “briars and brush,” and which persons who found it, and were lying in wait to capture the thief, saw the accused, at night, roll out, for delivery to a wagon, which had been brought there to carry it and them away) was not objectionable as eliciting the opinion of the witness ; the subject-matter being within common observation and experience.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 448.*]</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§ 627*)— Dismissal-Failure to File Transcript.</p> <p>It is a settled rule of practice in civil cases that where the delay for the return of an appeal has been extended, and the transcript has not been filed in the Supreme Court on or before the return day, the appeal will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. § 627.*]</p>

<p>Application of Rubin H. Brown for writs of certiorari and mandamus against Jules E. Dupuy.</p>

K. Skinner, Judge. Action by Charles Smith against the American Bridge Company and others. Action dismissed as to the American Bridge Company and the Jefferson Construction Company, and judgment rendered against Harry F. Grimm, who appeals.

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Action by Byrd McCrory against J. L. Bradford and C. B. McManus. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Intoxicating Liquors (§ 213*) — Illegal Sale — Description of Place — Sufficiency.</p> <p>Unless it is made to appear that a person charged with selling liquor without a license, at his place of business upon a named street in a named town, has more than one place of business on such street, the charge as to the place is sufficiently specific.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 255-257; Dec. Dig. § 213.*]</p> <p>2. Intoxicating Liquors (§ 217*) — Illegal Sale — Specification of Quantity.</p> <p>The charge of selling liquor in prohibition territory need not specify the quantity, as the quantity in no manner affects either the offense or the defense.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 234, 235; Dec. Dig. § 2J7.*]</p> <p>Breaux, C. J., dissenting, and Provosty, J., dissenting in part.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by the Central Glass Company, Limited, against the Niagara Fire Insurance Company of the City of New York. Judgment for plaintiff, and defendant appeals.</p>

Chretien, Judge. William J. Farrell was indicted for receiving pay for services hot actually rendered to a city, and appeals. From a judgment sustaining a demurrer to the indictment, the state appeals.

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§ S05*) — Failure to File Transcript — Abandonment of Appeal.</p> <p>Where an order for a devolutive appeal fixes the return day, and the appellant files the proper' bond, but thereafter fails to file the transcript within the required time, his failure to do so will constitute an abandonment of the appeal, and thereafter no other appeal will be allowed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 3174, 3175 ; Dec.Dig. § 805.*]</p>

Actions by George Knight against the Berwick Lumber Company, and by Michael W. McHugh against the same defendant. Actions consolidated. Judgment for defendant, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>Marriage (§ 58*) —Annulment — Interdiction for Insanity.</p> <p>The grounds upon which marriages may be annulled are specified in the Civil Code, and do not include the interdiction for insanity, and incarceration in the state asylum, of one of the spouses.</p> <p>[Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 115-123; Dec. Dig. § 58.*]</p>

Wilson, Judge. Mose Jacobs was convicted of assault on a delinquent child by the juvenile court of the parish of Orleans, and he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Homicide (§ 264*) —Evidence — Dangerous Character oe Deceased.</p> <p>The question of whether a sufficient foundation has been laid to introduce evidence to show an overt act on the part of the deceased, and to show the dangerous character of the deceased, is one largely in the discretion of the trial judge; and his decision will not be interfered with, except when there is a clear showing of error on his part.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 558; Dec. Dig. § 264.*]</p> <p>;2. Homicide (§ 332*) —Evidence—Dangerous Character oe Deceased — Review.</p> <p>The trial judge who hears the witnesses and notes their appearance and manner of testifying is competent to pass upon 'the weight to be given their testimony, and is not necessarily controlled by the number of witnesses on each side; and this court will not say that his appreciation of the weight of evidence was false, unless made to clearly appear so from the record, and only when such a showing amounts to manifest error.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 699-704; Dec. Dig. § 332.*]</p> <p>3. Indictment and Information (§ 169*)— Issues — Evidence—Fugitive from Justice.</p> <p>It is not necessary to negative prescription in the indictment by alleging a state of facts to show that the accused was .a fugitive from justice; and this latter fact may be shown on the trial without alleging it in the indictment.</p> <p>LEd. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 320, 535; Dec. Dig. § 169.*]</p> <p>•4. Witnesses (§ 361*) —Impeachment — Rebuttal.</p> <p>A witness whose evidence is sought to be impeached may meet such an attempt by proof •of his reputation for truth and veracity.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1165, 1167-1175; Dee. Dig. § 361.*]</p> <p>■5. Indictment and Information (§ 11*) — Return — Amendment—Parol Evidence.</p> <p>It was competent for the court to permit the clerk to amend his minutes, so as to show the date on which the indictment had been returned. Parol evidence is always admissible to cure the omission of a ministerial act in criminal proceedings.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 62-75; Dec. Dig.</p> <p>6. CsnrisAL Law (§ 1090*) —Appeal—Bill of Exceptions.</p> <p>This court will not pass on a ruling of the lower court in a criminal proceeding, unless a formal bill of exceptions has been reserved and filed; as the defendant failed to reserve a bill to the refusal of the trial judge to grant a new trial, this court cannot review his ruling.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>Appeal from the Civil District Court, Parish of Orleans; King, Judge.</p> <p>Action by William E. Roberson against Mrs. Mary E. Goldsmith and others. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by the Oourt.) </p> <p>Perpetuities (§ 4*) — Creation of Future Estate — Fidei Commissum.</p> <p>By her last will, the testatrix bequeathed the rents of certain houses to her brother, who is her sole heir at law, “for life, to be sold after his death,” and the rents of other houses to her aunt, “for life, to be sold after her death,” and, after making certain particular bequests of money, declared: “I want my houses sold after the death of my aunt and brother and the legacies named above paid, and any balance to the Home for Incurables.” She then named her executors, after which, she declared: “Any property I die possessed of, not herein disposed of, I desire my brother to have.” Held, that the dispositions thus attempted to be made are void, as creating a fidei commissum, or tenure of property, prohibited by or unknown to our system of law, and as extending the authority of an executor and the term of his administration beyond the limits prescribed by our law.</p> <p>[Ed. Note. — E'or other cases, see Perpetuities, Cent. Dig. §§ 4r-44; Dec. Dig. § 4;* Trusts, Cent. Dig. §| 3, 4.]</p>

F. Brunot, Judge. Mandamus proceeding by the State, on the relation of S. (L. Carey and others, against J. Y. Sanders, Governor, in which J. G. Gray and others intervened. From a judgment for respondent, relators appeal.

F. Brunot, Judge. Action by the State, on the relation of P. E. Moore and others, against J. X. Sanders, Governor, in which J. G. Gray and olher.s intervene. Judgment for defendants, and relators appeal.

F. Brunot, Judge. Action by the State, on the relation of J. E. McMahon and others, against J. X. Sanders, Governor, in which J. G. Gray and others, intervene. Judgment for respondents, and relators appeal.

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1153*) — Witnesses (§; 40*) — Appeal — Review — Discretion on Trial Court.</p> <p>A wise discretion is left to the trial judge' iu deciding the competency of a child of tender years to testify; and where he examines-the child and tests her understanding of the-significance of an oath, and reaches the conclusion that she will be a competent witness, his ruling will not be set aside, unless for-very manifest error.</p> <p>[Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 3061-3066; Dec. Dig. § 1153;* Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.*]</p> <p>2. Charge oe Court — No Error.</p> <p>The charge of the trial court to the jury was free from error, and the judgment will not be disturbed.</p>

Action by George Denegre against the W. G. Tebault Furniture & Realty Company. Judgment for plaintiff, and John Fitzpatrick, Tax Collector, filed a motion, claiming taxes due the state. Motion made absolute for taxes, and the State Tax Collector applied for writ of certiorari.

<p> (Syllabus by the Court.) </p> <p>1. Pleading (§ 8*) — Facts ob Conclusions— Fraud.</p> <p>Where an issue has been presented and settled by a judgment, one seeking to escape the effect of that judgment by alleging that it was obtained by fraud and ill practices must specifically allege the acts that constitute the fraud and ill practices, as there is a presump-' tion in favor of the validity of a judgment"; and facts negativing this presumption should be alleged and proved.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dee. Dig. § 8;* Fraud, Cent. Dig. § 37.]</p> <p>2. Boundaries (§ 27*) — Action to Establish.</p> <p>Where a plaintiff complains that the judgment in a former suit, wherein he was a party, ordered the fixing of a boundary line between tracts that are not adjacent, he cannot seek in another suit to have the correct line established between his land and that of defendant, as, the tracts not being adjacent, there can be no boundary line.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 143; Dec. Dig. § 27.*]</p> <p>3. Judgment (§ 460*) — Suit to Vacate — Grounds — Pleading.</p> <p>Plaintiff should have pleaded in the former suit to fix the boundary line that the tracts were not adjacent, and, not having alleged in the present suit that it is only since the former judgment that he has discovered that the tracts were not adjacent, this court will not disturb the former judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879-891; Dec. Dig. § 460.*]</p> <p>4. Judgment (§ 405*) — Vacation—Grounds.</p> <p>It is only when parties have used due diligence in defense of their rights, and by the exercise of such diligence have not been able to correctly ascertain their rights, that this court will revive issues once closed by a judgment; and, if there was any reason why plaintiff was not able to present a complete defense to the former suit, this reason should have been alleged.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 766, 767; Dec. Dig. § 405.*]</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; B. P. Edwards, Judge.</p> <p>Action by the First National Bank of Arcadia against Charles F. Johnson and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by Charles O. Mouton against the Southern Sawmill Company, for the use of the Exchange Bank of Natchitoches. Judgment for plaintiff, and defendant appeals.</p>

<p>Certiorari from Court of Appeal, First Circuit.</p> <p>Action by Robert W. Hamilton against Scott Hamilton. From a judgment for defendant, plaintiff brings certiorari.</p>

<p> (Syllabus by the Court.) </p> <p>1. Husband and Wife (§ 246*) — Community Property — What Law Governs.</p> <p>In determining whether land acquired under the homestead laws of the United States falls into a community already dissolved by the death of the wife, which occurred between the date that the entry was made and the date that the patent was issued, the laws of the United States, which give the land under certain stated conditions, must be applied, and mot the laws of this state relating to community property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 878; Dec. Dig. § 246.*]</p> <p>.2. Public Lands (§ 32*) — Husband and Wife (§ 252*) — Disposal of Lands of United States — Transfer of Title — Community Property.</p> <p>Between the day that the homesteader ,makes the entry and that on which the government issues the patent, the title to the land is still in the United States, in spite of the ■fact that the entryman has right of possession and cultivation. If the wife dies before the ■patent has been issued, and before the title has vested in the entryman, it certainly has ■never been in the community of which she was ■.a partner.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 54-56; Dec. Dig. § 32;* Hrs'-md and Wife, Cent. Dig. § 895; Dec. Dig. '§ 252.*]</p> <p>:3. Husband and Wife (§ 252*) — Community Property — Title Relating Back.</p> <p>The wife of an entryman, during his life, has ■no rights in the land, and if she dies, and he ¡subsequently completes his title, this title does not refer back to the community which formerly existed. As the wife had no interest in the land during her lifetime, she could not acquire any after her death, and the doctrine of ■relations would have no application to the case.</p> <p>[Ed. Note. — For other cases, see Husband .and Wife, Cent. Dig. § 895; Dec. Dig. § 252.*]</p> <p>4. Husband and Wife (§ 252*)— Community Property — Power of Congress.</p> <p>The power of Congress to control the land ¡and its disposition until the homesteader has acquired an absolute title is undoubted, and, 'in its wisdom, it has seen fit to merge in the husband all the rights arising from the entry, and, ignoring the community system of this .state, has given the wife no rights in the land which has been entered, as long as the husband is alive.</p> <p>[Ed. Note. — For other cases, see Husband .and Wife, Cent. Dig. § 895; Dec. Dig. § 252.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunction (§ 118*) — Issuance of Drainage Bonds — Petition.</p> <p>A petition to enjoin the issuance of bonds of a drainage district, which alleges in general terms without specifications that the forms prescribed by law were not observed in the formation of the district and in the proceedings for the issuance of the bonds, is insufficient.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Dec. Dig. § 118.*]</p> <p>2. Statutes (§ 123*) — Title—Sufficiency.</p> <p>The title of Act No. 317 of 1910, being an act to amend Act No. 159 of 1902, authorizing commissioners of drainage districts to levy taxes, when authorized by a vote of the taxpayers, so as to further enlarge the powers of drainage commissioners, and authorizing the drainage of lands by leveeing and pumping, and the maintaining of such drainage system by the levying of an acreage tax, is sufficiently broad to include a provision authorizing the levy of a tax without a previous election.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 130-132, 176-183; Dec. Dig. § 123.*]</p> <p>3. Constitutional Law (§ 24*) — Taxation —Statutes—Validity.</p> <p>Act No. 317 of 1910, §§ 9, 23, 27, authorizing the levy of any tax “which is now or may hereafter be authorized by the Constitution,” etc., is valid as anticipatory legislation with a view of an amendment of the Constitution, article 281 of which limits the tax per annum to 25 cents per acre, and on the adoption of the amendment in 1910, authorizing the issuance of drainage bonds and acreage taxes not exceeding $3.50 per acre per annum, which is self-executing, the commissioners of a drainage district may issue bonds and levy an acreage tax of $1.15 per acre for the first year’s interest.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 2Í-29; Dec. Dig. §. 24.*]</p> <p>4. Constitutional Law (§ 29*) — Self-Executing Provisions.</p> <p>A constitutional provision which is complete in itself is self-executing.</p> <p>[Ed.1 Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 32; Dec. Dig. § 29.*]</p> <p>5. Constitutional Law (§ 290*) — Due Process of Law — Levying of Taxes.</p> <p>Under the rule that due process of law in the imposition of local taxes is satisfied where the property owner is afforded an opportunity to be heard before the tax becomes a final charge on his property, Act No. 317 of 1910, authorizing drainage taxes and giving any property owner the right to appeal within a specified time to the courts to test the validity of the proceedings, is not invalid as denying due process of law, since the levy remains in suspense during the specified period to afford an owner an opportunity to be heard.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 871-875¡'Dec. Dig. § 290.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the St. Charles Municipal Drainage District against Edward P. Cousin. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>John Pomeranky was convicted of violating the liquor law, and appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>Action by C. M. Bender and others against Mrs. M. E. Bailey. Judgment for defendant, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§ 1011*) — Review-Questions op Fact — Conflicting Evidence.</p> <p>Where the evidence is conflicting, the findings of the trial judge on issues of fact are entitled to great weight, and will not be disturbed unless clearly against the preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p>

<p> (Byllabus hy the Court.) </p> <p>1. Partition (§ 12*) — Suits foe Partition— Estates Subject.</p> <p>Property burdened with a usufruct may be partitioned in kind subject to the usufruct.</p> <p>[Ed. Note. — For other cases, see Partition,. Cent. Dig. §§ 38-51; Dec. Dig. § 12.*]</p> <p>2. Partition (§ 77*) — Rights of Heirs — Representation.</p> <p>Where some of the heirs inherit by representation, the partition should be made by roots.</p> <p>[Ed. Note. — For other cases, see Partition. Cent. Dig. §§ 211-223; Dee. Dig. § 77.*]</p> <p>3. Partition (§ 77*) — Suits for Partition— Actual Partition.</p> <p>Partitions in kind are favored in law, and should be ordered in all cases where the property is divisible and no material diminution in its value, or loss or inconvenience to one of the co-owners, will result from the partition.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 211-223; Dec. Dig. § 77.*]</p>

<p> (Syllahtis ~by Editorial Staff.} </p> <p>Appeal and Error (§ 327*) — Dismissal — Grounds — Defect in Parties.</p> <p>Where there have been successive conveyances of property by warranty deed, and action is brought against the several vendors and the last vendee to recover, the property, an appeal taken by plaintiff by petition citing the last vendee only will be dismissed for want of proper parties.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1814-1820, 1822-1835; Dee. Dig. § 327.*]</p>

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

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by James A. Kinder, trustee in bankruptcy, against T. J. Trotti and others. From a judgment for plaintiff, defendant named appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by Mrs. Harriet E. Dill and others against the C. L. Smith Lumber Company. From a judgment for plaintiffs, defendant appeals.</p>

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

<p>Appeal from Criminal District Court, Parish of Orleans; Pranlt D. Chretien, Judge.</p> <p>William Rabb was convicted of keeping a banking game, and appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. New Teial (§ 140*) — Sworn Application-Necessity.</p> <p>It was not necessary that an application for new trial be sworn to where applicant offered herself as a witness to testify to the grounds relied upon.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 284-289, 302, 306; Dec. Dig. § 140.*]</p> <p>2. New Teial (§ 6*) — Disceetion op Court.</p> <p>The granting of new trials is largely in the trial court’s discretion; new trials being grantable in the interest of substantial justice.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 9, 10; Dee. Dig. § 6.*]</p> <p>3. New Trial (§ 86*)— Grounds — Interests op Justice.</p> <p>Where, upon the introduction in evidence of an instrument signed by plaintiff which, if genuine, was fatal to her case, plaintiff’s counsel abandoned the case, a new trial should be granted upon an application supported by evidence showing that the instrument was forged.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 172-174; Dec. Dig. § 86.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. COURTS (§ 224*)— JURISDICTIONAL AMOUNT —Determination.</p> <p>It is the amount originally in dispute which quoad the litigant who does not acquiesce in the judgment of the trial court determines the jurisdiction of the appeal.</p> <p>[Ed. Nóte. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p> <p>2. Contracts (§ 346*) — Action on Contract —Recovery on Quantum Meruit.</p> <p>There ought to be some strong equity to justify a ruling whereby a plaintiff who sues on a contract is allowed to recover on quantum meruit; and one who sets up an inflated claim, and endeavors to sustain it with incredible testimony, is in no position to ask for equitable consideration.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1718-1753; Dec. Dig. § 346.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 404*) — Evidence — Clothing op Prosecutrix.</p> <p>In a prosecution for rape, clothing purporting to have been worn by the prosecuting' witness, at the time of the alleged crime, must be properly identified before it can be exhibited in evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 891-893, 1457; Dec. Dig. § 404.*]</p> <p>2. Witnesses (§ 392*) — Impeachment—Contradictory Statements.</p> <p>In a prosecution for rape, the accused has. the legal right to cross-examine the prosecuting witness, as to a prior written statement made by her, and to compel its production.</p> <p>[Ed. Note. — For other cases, see Witnesses. Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. §■</p> <p>3. Rape (§ 40*) — Evidence—Character of Prosecutrix.</p> <p>On a trial for rape, evidence is not admissible to prove specific acts of intercourse between the prosecutrix and other men. The-general rule is that want of chastity must be-shown by general reputation, except that individual acts with the accused prior to the alleged crime may be shown.</p> <p>[Ed. Note. — For other cases, see Rape, Cent.. Dig. §§ 55-59; Dec. Dig. § 40.*]</p>

Suit by Sirs. W. A. Meredith and others against the Heirs of J. A. and Minerva Ea-son, deceased, for partition and for an accounting. From a judgment of dismissal, plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 158*) — Best and Secondary Evidence — Minutes or Corporation.</p> <p>While it. is true that the best evidence must always be produced, and that where the minutes of a corporation show who is the secretary that they are the best evidence, still parol evidence is admissible to show who is the de facto secretary of the corporation.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 472, 473, 474y2-504, 506-526; Dec. Dig. § 158;* Corporations, Cent. Dig. § 1736.]</p> <p>2. Evidence (§ 174*) — Best and Secondary Evidence — Minutes or Corporation.</p> <p>The best evidence rule does not require that the minutes of the meeting of a corporation should be produced, but requires only that a properly certified copy of the minutes should be produced.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent.Dig. §§ 561-564, 566-569; Dec.Dig. § 174.*]</p> <p>3. Liens (§ 15*) — Construction or Contract.</p> <p>The owner of land who contracts to deliver its yield to another does not thereby burden the land with a real servitude in favor of the obligee, but merely binds himself personally for the fulfillment of his contract, and, where he sells the land, it passes to the vendee free from any right in favor of the obligee.</p> <p>LEd. Note. — For other cases, see Liens, Cent. Dig. § 20; Dec. Dig. § 15.*]</p> <p>4. Sales (§ 406*) — Remedies or Purchaser-Action eor Breach op Contract — Conditions Precedent.</p> <p>As defendant has bound himself to sell plaintiff the yield from his land during five years, his sale of the land before the expiration of that time was an active violation of his contract, and it was not necessary for plaintiff to place him in default. By his sale of the land, he had created a condition which made it impossible for him to fulfill his contract by delivering its yield, and to have put him in default w.ould have been a vain formality.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1156-1158; Dec. Dig. § 406.*]</p> <p>5. Sales (§ 1*) — Validity — Potestative Condition.</p> <p>The provision in the contract that if the refinery should be disabled, or destroyed by accident, that during such time plaintiff could sell his cane to others, but must deliver it to plaintiff as soon as plaintiff’s refinery was again in working order, was not a potestative condition that vitiated the contract, as the creation of the condition which would suspend the contract was not dependent upon the exercise of the will of one of the parties, but was dependent on vis major, or some cause beyond the control of the parties. The purpose of this provision of the contract is to prevent hardship to the parties, and not to put it in the power of either to terminate the contract at will.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1, 3-5; Dec. Dig. § 1.*]</p> <p>6. Sales (§ 418*) — Remedies oe Buyer — Action eor Breach of Contract — Damages.</p> <p>Plaintiff is entitled to damages based on the amount of loss it has sustained and the profit of which it has been deprived.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174^-1201; Dec. Dig. § 418.*]</p> <p>7. Damages (§ 62*) — Compensatory Damages — Duty to Minimize.</p> <p>As plaintiff failed to show that it minimized its damages for the year 1909, it will not be permitted to recover for a violation of the contract during that year.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. § 62.*]</p> <p>Monroe, J„ dissenting.</p>

K. Skinner, Judge. In the matter of the succession of James Barry and .wile- William J. Barry applied for an injunction against the administrator, Walter T. Barry, and, from a judgment denying the injunction, he appeals.

<p>Appeal from Civil District Court, Parish ■of Orleans; E. K. Skinner, Judge.</p> <p>Action by Richard Brock against the Automobile Livery & Sales Company and others. Prom a judgment refusing the appointment •of a receiver, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred 'D. King, Acting Judge.</p> <p>Action by Richard Brock against the Automobile Livery & Sales Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; George Wear, Judge.</p> <p>Action by Charles Gewin and others against the Police Jury of Jackson Parish. From a judgment for defendant, plaintiffs appeal.</p>

W. Elliott, Judge. Proceedings by the State, by rule on the relation of Louis Lacoste, sheriff and ex officio tax collector, against Jean Vigneaux. From a judgment dismissing the rule, plaintiff appeals.

<p>Appeal from Third Judicial District Court, Parish of Bienville; Benjamin P. Edwards, Judge.</p> <p>Suit by the Parish of Bossier against the Parish of Bienville. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Suit by Dr. Stewart L. Henry against Frank L. Barker. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. John the Baptist; P. E. Edrington, Judge.</p> <p>John Keatine was convicted of felonious, assault, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Husband and Wife (§ 273*) — Community</p> <p>Property — Paraphernal Funds.</p> <p>The succession of the husband is liable to the widow for paraphernal funds received and used by the decedent during the existence of the community.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dee. Dig. § 273.*]</p>

King, Judge. Action by Thomas J. Burke against Philip Werlein and another. From a judgment sustaining exceptions of misjoinder and no cause of action by defendant James Geáry, plaintiff appeals.

<p> iSyllabus by Editorial Staff.) </p> <p>.New Tbial (§ 153*) — Motion — Right to File.</p> <p>Under Code Prac. arts. 558, 559, providing that a party, aggrieved by a judgment against him, may, within three judicial days after such judgment, pray a new trial, and that one ' demanding a new trial must set forth and file the grounds of his demand, the court could not refuse to allow a motion for a new trial to be filed on the second day after judgment was rendered, because it came too late, was not sworn to, and was without merit; his right to file the motion being absolute under the statute.</p> <p>[Ed. Note. — For other cases, see New Trial, •Cent. Dig. §§ 283, 288; Dec. Dig. § 153.*]</p>

M. Burns, Judge. In the matter of the succession of W. A. Ford. From the judgment against the proponents, annulling and setting aside a portion of the will, they appeal.

<p>Action by the Gaiennie Company, Limited, against A. Bouchereau. Judgment for defendant was reversed by the Court of Appeal, and defendant applied for certiorari or writ of review.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Suit by J. S. Suttle against W. A. Biles and others. From a judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Corporations (§ 269*) — Insolvency—Action by Receiver — Unpaid Subscriptions.</p> <p>Where a receiver of an insolvent corporation instituted suit to recover an alleged unpaid subscription to the capital stock of the company, and the defendant answered that the subscription had been paid in the shares of .two other corporations, taken at more than their par value, held, that the plaintiff had the right, in rebuttal, to adduce evidence tending to show that the shares given by defendant in payment of his stock subscription were of little or no money value.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ S87, 8S8, 980, 1149-1159, 2277; Dec. Dig. § 269.*]</p> <p>2. CORPORATIONS (§ 232*) — SUBSCRIPTION TQ Stock — Payment in Property or Labor.</p> <p>This court has held that, under article 266 of the Constitution of 1898, the value of property or labor received in payment of a stock subscription must be equal to the face value of the shares; and the subscriber is liable to the creditors of the insolvent corporation for the difference between the value of the property given in payment and the par value of the shares. See Dilzell v. Lehmann, 120 La. 273, 45 South. 138.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 879, 880, 883, 884; Dec. Dig. § 232.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Jury (§ 131*) — Examination of Jurors— Questions of Law.</p> <p>Jurors should not be examined as to their opinions on questions of law, such as the burden of proof, reasonable doubt, etc.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dee. Dig. § 131.*]</p> <p>2. Jury (§ 47*) — Qualifications of Jurors —Residence.</p> <p>A citizen of the state, who has resided more than one year in the parish in which the court is held, is a competent juror as to citizenship and residence, under Act No. 135 of 1898, passed to carry into effect articles 116 and 117 of the Constitution of 1898. A juror need not be an elector, nor a resident of the state for two years.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 254; Dec. Dig. § 47.*]</p> <p>3. Jury (§ 149*) — Impaneling—Exclusion of Competent Juror.</p> <p>Where a competent juror in a murder case was duly accepted and sworn, and thereupon was excused by the judge as incompetent, and the accused duly excepted to the exclusion of the juror, the verdict and sentence will be reversed and the case remanded.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 635-637; Dec. Dig. § 149.*]</p>

<p> (Syllabus by the Court.) </p> <p>COURTS (§ 224*)— SUPREME COURT — JURISDICTIONAL Amount.</p> <p>Article 85 of the Constitution, which confers appellate jurisdiction on this court, does not include in the grant jurisdiction of cases involving merely title to office or civil or political rights, dissociated from pecuniary value to an amount exceeding $2,000.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p>

<p>Appeal from Twenty-Third. Judicial District Court, Parish of St. Mary; Charles A. O’Neil, Judge.</p> <p>Action for divorce by John M. Mathews against Maimie Guillaune. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles A. O’Neill, Judge.</p> <p>Action by Albert Ganucheau against Mrs. Heloise H. Monnot and another. Judgment for plaintiff, and defendant Monnot appeals.</p>

<p>Appeal from Fifth Judicial District Court,. Parish of Winn; George Wear, Judge. .</p> <p>Action by Mrs. Julia A. Smith and others-against the Grant Timber & Manufacturing Company. Judgment for plaintiffs, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law (§ 608*) — Continuance— Application — Affidavit—Sufficiency.</p> <p>Where defendant, in his application for a continuance on the ground of the absence of a material witness, whom he knew did not reside in the parish, failed to make oath to the materiality of the testimony of the witness and obtain an order of court, as required by Rev. St. § 1036, the application was properly refused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 136A-1366; Dec. Dig. § 608.*]</p> <p>2. Criminal Law (§§ 419, 420*) — Evidence-Hearsay.</p> <p>In a trial for murder the refusal to allow a witness to testify to what had been told her by other persons concerning a difficulty, said to have taken place on the day before the killing, was proper.</p> <p>[Ed. Note. — For other cases, see Criminal Law^ Cent. Dig. §§ 973-983; Dec. Dig. §§ 419,</p> <p>3. Witnesses (§ 287*) — Cross-Examination— Relation of Whole Conversation.</p> <p>Where accused, on a cross-examination of a witness for the state, elicited a part of a conversation between himself and the witness, an objection by accused to the witness relating the whole conversation was properly overruled.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. § 287.*]</p> <p>4. Criminal Law (§§ 419, 420*) — Evidence-Hearsay — Rumor as to Motive.</p> <p>In a trial for murder, evidence that “it was currently rumored in the neighborhood at the time of the homicide that .the killing occurred over a row between the accused and the deceased on account of a woman” was properly overruled.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1184; Dee. Dig. §§ 419, 420.*]</p> <p>5. Criminal Law (§ 338*) — Evidence—Relevancy — Posse’s Abandonment of Search.</p> <p>In a trial for murder, evidence tending to prove why a posse of white men, who had gathered in the neighborhood after the homicide to search for the accused, a negro, had abandoned the search was properly excluded.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752-757, 788, 801, 855; Dec. Dig. § 338.*]</p> <p>6. Criminal Law (§ 723*) — Trial —Argument — Appeal to Race Prejudice.</p> <p>On the trial of a negro for murder, the district attorney, in argument, stated “that the brother of deceased, a white man, was present at the trial, had come from the state of Alabama, was from a good family, and his people expected a verdict at the hands of the jury; that if the jury were not to convict this man it will be giving a license to every negro to kill any white man on any pretext, and without excuse” — and the trial court gave no reprimand or caution or instruction to disregard the expressions of the district attorney; the trial court stating that the brother of deceased had testified as to the purpose of his presence, without objection by the defense, and that the district attorney stopped as soon as objection was made. Held, that the district attorney’s language was an appeal to race prejudice, and reversible error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1676; Dec. Dig. § 723.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action by Ethel M. Priestly and another against Julia Steele Chapman and her husband. Judgment for plaintiffs, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1.. Statutes (§ 110%*) — Subject and Title —Pollution oe Water Courses.</p> <p>The title of an act which reads “An act to protect the rice planters and owners of the canals who use water for irrigation purposes against pollution of the streams by salt water, oil, and other substances, and also to protect the fish in said streams, and making it a misdemeanor to contaminate said streams by draining or permitting the said water to^be drained in said streams” (Act No. 183 of 1910) does not express the purpose of punishing any one who fails to post tanks or reservoirs, under certain conditions; and that part of the act relating to the posting of tanks is therefore unconstitutional, as the Constitution requires that the object or purpose of every act should be expressed in its title.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 139, 162, 163; Dec. Dig. § 110%.*]</p> <p>2. Waters and Water Courses (§ 266*)— Pollution — Statutory Provisions.</p> <p>In addition to the fact that the provision that “it shall also be the duty of said operators, or owners to -plainly indicate to whom each reservoir or tank belongs b^ posting same, and shall be subject to inspection at all times by the legal authorities” (Act No. 183 of 1910, § 1) is broader than the title of the act, a reasonable construction of it does not show that the failure to post was made a misdemeanor.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 266.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Executors and Administrators (§§ 384, 386, 388*) — Estoppel (§ 98*) — Sale oe Real Estate — Record — Notice to Subse-</p> <p>quent Purchasers — Titles by Estoppel.</p> <p>Titles by descent need not be recorded; and third persons are put on inquiry as to the nature and extent of such titles. Where A. devised certain real estate to B., the property cannot be sold in the succession of A. Where such property was sold in the succession of B., the title of B.’s heirs was divested, and they had no rights in the property to convey to a third person. A succession sale of -property, made and recorded in the parish of Orleans, and embracing real estate in the parish of Jefferson, became effective as to such property as soon as it was annexed to the parish of Orleans, and operated as notice to subsequent purchasers. Titles by estoppel, not of record, have no effect, except between the parties.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1569, 1570, 1573-1582; Dec. Dig. §§ 384, 386, 3S8;* Estoppel, Cent. Dig. § 290; Dec. Dig. § 98.*]</p> <p>2. Husband and Wipe (§ 276*) — Common Property — Adjudication to Survivor.</p> <p>The failure to record in the mortgage book a judgment of adjudication of common property to a surviving parent is cured by the substitution of a special mortgage, as provided by C. C. art. 344.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.*]</p> <p>Provosty, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander (§§ 94, 95*) — Pleading (§ 93*) — Pleading Defenses — Inconsistent Defenses.</p> <p>The defendant in an action for damages for libel may deny that he published the libel, or may plead the truth of the alleged libel, or may acknowledge the publication and set up facts by way of excuse and in mitigation of damages; but he cannot deny that he issued the publication, and at the same time set up an excuse for having done so.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 219-225, 227; Dec. Dig. §§ 94, 95;* Pleading, Cent. Dig. § 189; Dee. Dig. § 93.*]</p> <p>2. Libel and Slander (§ 110*) — Evidence-Reputation of Plaintiff.</p> <p>Evidence tendered by defendant, as to the character of the plaintiff, in an action for damages for libel, should be confined to general reputation; particular acts cannot be inquired into.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 307-314; Dec. Dig. § 110.*]</p> <p>3. Judges (§ 51*) — Recusation — Sufficiency of Motion.</p> <p>A motion to recuse a judge, on the ground that “he is personally interested in the cause” is not sufficiently explicit to warrant the admission of evidence in its support; it should •state the character of the interest.</p> <p>[Ed. Note. — Eor other 'cases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. § 51.*]</p> <p>4. Jury (§ 136*)— Challenges — Number.</p> <p>In a civil case, to be tried by a jury, each side, irrespective of the numbers, is entitled to six peremptory challenges.</p> <p>[Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 607-618; Dec. Dig. § 136.*]</p> <p>5. Action (§ 60*) — Preliminary Proceedings — Severance—Discretion of Court.</p> <p>When two defendants are sued for damages, alleged to have resulted from the same tort, the question of granting a severance is largely within the discretion of the trial judge.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 699-707; Dec. Dig. § 60.*]</p> <p>•6. Appeal and Error (§ 1045*) — Review— Scope.</p> <p>As this court .is vested with jurisdiction ■of the facts in a civil case, tried in the first instance by a jury, and is provided with a transcript containing the pleadings and evidence upon which the jury acted, with power to give such judgment as the evidence may warrant, it wifi, not, readily, reverse a verdict ■and judgment, on the ground of alleged • error in the ruling of the trial court upon the question of the impartiality, vel non, ’of a particular juror.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4124^4127; Dec. Dig. § 1045.*]</p> <p>7. Trial (§ 54*) — Reception of Evidence-Limitation to Particular Purpose.</p> <p>Where, from the whole case, it is obvious that an instrument offered by one of the litigants was offered for a limited purpose, the limitation will be recognized.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 126-128; Dec. Dig. § 54.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>S. Judges (§ 51*) — Recusation—Continuance.</p> <p>Where, on motion to recuse the judge, defendants were afforded an opportunity to prepare a statement of what witnesses would swear, and counsel for plaintiff were willing 'to admit that they would so swear, or, if unable to do so, were willing that the continuance should be granted, and one of the grounds for continuance was the absence of leading counsel, but, although the cause was delayed for more than a year before plaintiff again succeeded in putting his case at issue, the leading counsel referred to never did appear, and there is no affidavit that defendants had any witnesses in contemplation who would have made a better showing, the refusal of the trial judge to continue the rule affords no ground of complaint.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. § 51.*]</p> <p>9. Witnesses (§ 270*) — Cross-Examination —Scope and Extent.</p> <p>In an action by a judge for newspaper libel, the exclusion of questions to a witness on cross-examination as to the politics of the papers, as to whether the witness was not a dual office holder, as to the facts of witness’ trial before plaintiff on a certain charge, and the ejectment of one of defendants’ counsel from the courtroom by order of the judge, was proper.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 926; Dec. Dig. § 270.*]</p> <p>10. Libel and Slander (§ 100*) — Action-Admissibility of Evidence.</p> <p>.In an action by a judge for libel, evidence that a witness for defendants was a candidate for membership on the school board in opposition to plaintiff’s faction, that he was denied representation at the polls, that he brought a mandamus suit against the executive committee, and that plaintiff recused himself, and, in conjunction with another judge, appointed the farthest district judge to try the case, which was never tried, was foreign to the issue before the court.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 246-272; Dec. Dig. § 100.*]</p> <p>11. Libel and Slander (§ 103*) — Action— Admissibility of Evidence.</p> <p>In an action for libel, evidence that the plaintiff had stated that he would “get” defendant, if it took him 20 years, was properly excluded.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 281; Dec. Dig. § 103.*]</p> <p>12. Evidence (§ 151*) — Admissibility—Motive.</p> <p>In an action for libel, evidence of the intention of witness when he and another purchased the paper in which the libel was published from one of the defendants was properly excluded.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 440; Dec. Dig. § 151.*]</p> <p>13. Appeal and Error (§ 878*) — Review-Persons Entitled to Allege Error.</p> <p>In an action against two defendants for libel, the refusal to permit one of them to testify to kindly feeling evinced toward him by plaintiff, and to his original intention in founding the newspaper, was not ground for reversal on the appeal of the other defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573-3580; Dec. Dig. § 878.*]</p> <p>14. Libel and Slander (§ 121*) — Damages —Amount.</p> <p>In an action by a judge for libel, consisting of continuous and repeated publications, an award of $50,000 damages will be reduced to $5,000.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 353, 354; Dec. Dig. § 121.*]</p> <p>Provosty, J., dissenting in part.</p>

<p> (Syllabus by the Court.) </p> <p>On Rehearing.</p> <p>1. Vendor and Purchaser (§ 131*) — Performance of Contract — Title of Vendor —Prescriptive Title.</p> <p>In the absence of special contract to the .contrary, a purchaser may be compelled to .accept a prescriptive title, which is not sug.gestive of any serious danger of judicial attack.</p> <p>(Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 247; Dec. Dig. § 131:*]</p> <p>:,2. Principal and Agent (§ 19*) — Authority of Agent — Presumption—Lapse of Time.</p> <p>After the lapse of 20 years, the authority -of an agent, acting under a procuration which has never been denied, will be presumed.</p> <p>[Ed. Note. — For other cases, see Principal -and Agent, Cent. Dig. § 36; Dec. Dig. § 19.*]</p> <p>:3. Limitation of Actions (§ 44*) — Limitations Applicable — Actions Relating to Real Property — Prescription.</p> <p>The want of power to appoint an agent to -convey real estate is a defect dehors the title -of a bona fide purchaser, and is curable by the prescription of 10 years acquirendi causa.</p> <p>[Ed. Note, — For other cases, see Limitation of Actions, Cent. Dig. §§ 220-232; Dee. Dig. -■§ 44.*]</p> <p>Provosty, J., dissenting.</p>

<p> (Syllabus by Editorial Stalf.) </p> <p>1. Partition (§ 77*) — Sale—Proof of Indivisibility.</p> <p>A sale of property to effect a partition could not be ordered without proof of its indivisibility in kind.</p> <p>[Ed. Note. — For other eases, see Partition, Cent. Dig. §§ 211-223; Dec. Dig. § 77.*]</p> <p>2. Husband and Wife (§ 273*) — Community Property — Sale — Purchaser in Good Faith.</p> <p>Where one purchased community property from the husband after the death of the wife, in ignorance both of the facts and the law which gave their children an interest in the property, he was a purchaser in good faith.</p> <p>[Ed. Note.' — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dee. Dig. § 273.*]</p> <p>3. Husband and Wife (§ 273*) — Community Property — Community -Debts — Payment— Evidence.</p> <p>In an action by one to recover her share of her deceased mother’s community property, which her father had sold to the defendant, evidence held insufficient to show that $300 of the purchase price paid had gone toward paying the debts of the community.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig., § 273.*]</p> <p>4. Husband and Wife (§ 273*) — Community Property — Community Debts.</p> <p>Where a surviving husband sold community property consisting of land, and there was-personal property which was liable for the community debts before recourse could be had to the land, and he had not accounted for all such personal property, neither he nor the purchaser could set up against an heir of the wife that he had paid part of the community debts.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.*]</p> <p>5. Husband and Wife (§ 273*) — Community Property — Rent and Revenues.</p> <p>\One who purchased community property from a surviving" husband, in ignorance of the facts and the law giving other heirs of the wife an interest in her share, was responsible to an heir for rents only from judicial demand, estimating the rents upon the rental value from such demand, and not at the average rental value from the time he took the property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.*]</p> <p>6. Husband and Wife (§ 273*) — Community Property — Revenues .</p> <p>He owed only such net fruits and revenues as the plaintiff could show the place ought to have produced with ordinary good management.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1008-1024; Dec. Dig. § 273.*J</p>

C. W. Ellis, Judge. In the matter of the Succession of Albert G. Tilton, the tutrix and undertutor, and others, proceed by rule to cancel certain mortgages. From a judgment denying the rule the movers appeal.

<p> (Syllabus by the Court.) </p> <p>Specific Performance (§ 95*) — Defects in Title.</p> <p>Where the surviving husband in community sells to a major son some of the community property the day before the parent applies for letters of natural tutorship, in order that the property will escape the tutor’s mortgage, and the sale has the appearance of a simulation, the title is not one which this court will compel an innocent third person to accept from the major son, in an action brought by him for that purpose.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §'§ 257-277; Dec. Dig. § 95.*]</p>

H. Théard, Judge. Joseph Ferrantelli sued out an injunction against the sale of mortgaged premises on executory process by the succession of Gaetano Randazzo. From a judgment dismissing the injunction, Ferrantelli appeals.

<p> (Syllabus by the Gourt.) </p> <p>1.Appeal and Error (§ 878*) — Review — Scope and Extent.</p> <p>Where defendant’s exception to the capacity of the plaintiff to sue and stand in judgment was overruled, and plaintiff appealed from an adverse judgment on the merits, and the defendant’s answer to the appeal was silent as to the judgment on the exception, held, that the judgment on the exception was final, and could not be reviewed in the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573-3580; Dec. Dig. § 878.*]</p> <p>2. Sequestration (§ 5*)— Grounds — Fear oe Removal oe Property.</p> <p>A sequestration of movables may be ordered in a suit for possession by the alleged owner, when he fears that the defendant may send the property in dispute out of the jurisdiction of the court during the pendency of the suit. C. P. art. 275. In the case of articles of commerce, the refusal to deliver is calculated to create a fear on the part of the plaintiff that they will be sold and sent out of the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. § 4; Dec. Dig. § 5.*]</p> <p>3. Contracts (§ 250*) — Rescission—Rights oe Parties.</p> <p>A contract right to cancel an agreement on 30 days’ notice cannot be denied on the theory that the delay is unreasonably short.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1144; Dec. Dig. § 250.*]</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by the A. Wyckoff & Son Company of Louisiana against the Town of Winnfield •and others. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss the Appeal.</p> <p>1. Appeal and Error (§ 359*) — Proceedings to Transfer Cause — Order of Appeal.</p> <p>As it was the district court of the parish of St. Landry that had rendered the judgment, it was the proper court to grant the order of appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1936-1940; Dec. Dig. § 359.*]</p> <p>On the Merits.</p> <p>2. Gifts (§ 4*) — Donation of Real Estate-Form.</p> <p>In a donation of real estate, form is of the essence of the donation, and where the parties draw up a private act of donation and appear before a notary and acknowledge their signatures, and subsequently the donee appears before another notary for the purpose of accepting, there has not been such a compliance with</p> <p>the formal requisites of the law as to make the donation valid.</p> <p>[Ed. Note. — For other eases, see Gifts, Cent. Dig. §§ 3, 17; Dee. Dig. § 4.*]</p> <p>3. Gifts (§ 34*) — Donation of Real Estate —Onerous Donation.</p> <p>In order for a donation of real estate to be onerous, the charges must exceed one-half the value of the property donated, and in considering the question of charges, the usufruct given to some one other than the donee cannot be so considered, because the only duty imposed upon the donee is the recognition of the right of another.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 68-71; Dee. Dig. § 34.*]</p> <p>4. Husband and Wife (§ 262*) — Community Property — Property Purchased by Wife.</p> <p>When a husband and wife are not separate in property, there is a presumption that property bought during the continuance of the community, even though purchased in the name of the wife, is community property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914 ; Dec. Dig. § 262.*]</p> <p>5. Sales (§ 111*) — Rescission—Actions for Rescission — Jud&ment.</p> <p>One who, as agent, brings suit for the rescission of a sale on prescribed notes given for the purchase price, on the ground of nonpayment of the purchase price, cannot be subsequently heard to plead that, as the action of rescission was 'based on prescribed notes, the title did not pass from the vendee to the vendor by the judgment of rescission.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 283-285; Dec. Dig. § 111.*]</p> <p>6. Husband and Wife (§ 129*) — Wife’s Separate Estate — Estoppel to Deny Title.</p> <p>As the defendant was the master of the community and permitted his wife to acquire the property in her name, and by his conduct subsequently ratified the sale, he cannot be heard to set up that the title was in some one other than the vendor.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 283, 468-470; Dec. Dig. § 129.*]</p> <p>7. Sales (§ 104*) — Rescission of Contract-Restoration of Consideration.</p> <p>As the plaintiff is not in possession of the notes given for the purchase price and cannot return them to the purchaser in case the sale should be rescinded, he is not in a position to demand. its rescission.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 271-273; Dec. Dig. § 104.*]</p>

<p>Appeal from Twenty-Second Judicial 'District Court, Parish, of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by J. B. Clark & Sons against tbe Franklin Insurance Company and the Phoenix Assurance Company. Judgment for plaintiff, and defendants appeal. Amended and</p>

<p> (Syllabus by the Court.) </p> <p>1. Elections (§ 154*) — Contests—Eight of Appeal.</p> <p>Section 25 of Act No. 49 of 1906, which contained a provision for an appeal from the decision of the court of first instance, in a contested primary election' case, having been amended and re-enacted by Act No. 100 of 1908, and the provision mentioned having been thereby eliminated, there is now no specific provision for such appeal; but, under the Constitution, the appellate jurisdiction of this court extends to all cases where the matter in dispute exceeds $2,000 in value. Hence, where, in a case such as that mentioned, the disputed nomination is shown to be of the value stated, the contestant has the right of appeal, and the manner of bringing up the appeal is governed by the general law.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dee. Dig. § 154.*]</p> <p>2. Appeal and Ereos (§ 364*) — Dismissait-Geounds — Irregularities in Proceedings for Be VIEW.</p> <p>An appeal will not be dismissed because made returnable and lodged in this court before the return day fixed by law, though the appellee need not answer or otherwise act until then.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1969-1976; Dec. Dig. § 364.*]</p> <p>3.' Appeal and Error (§ 784*) — Bight of Beview — Irregularities.</p> <p>The fact that the appellant makes his application and the judge makes his order for an appeal under a misapprehension as to the particular statute governing the matter cannot operate to deprive the appellant of a- right conferred by the Constitution and regulated by other statutes.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 784.*]</p> <p>4. Elections (§ 154*) —Contests — Procedure.</p> <p>A candidate, who contests the result of a primary election as ascertained by the committee of his political party having jurisdiction in the matter, is required to file his protest, upon the day fixed by law, “setting forth, in detail, clearly and distinctly his grievance,” and. the committee is required to proceed immediately to hear -and determine the same; after which, the power of the committee is exhausted, and the chairman has no authority to reconvene it for further action, or for the consideration of a new or supplemental protest.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*)</p> <p>5. Elections (§ 154*)— Contests — Decision by Party Committee — Review by Court.</p> <p>A candidate, who contests the result of a primary election as ascertained by the committee of his political party having jurisdiction in the matter, has the right.to apply to a court of competent jurisdiction for a review of the decision of such committee; but he has no right to ingraft upon the ease which has been decided by the committee, and the decision of which he is entitled to have reviewed, a new and different case, for of that the court has no jurisdiction.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>6. Elections (§ 158*) — Irregularities—Effect.</p> <p>Even if the provision of the primary election law, upon the subject of the right of the voter to ask for assistance in preparing his ballot, were the same as that contained in the general election law, the penalty for a violation of that provision is visited upon the parties to the offense, and not upon the body of the electorate, or public at large; and as the law nowhere declares that an election shall be avoided on that account, the courts will not so decree . unless the violation of the provision mentioned has been of such a character as to affect the result.</p> <p>[Ed. Note. — For other cases, see' Elections. Cent. Dig. § 123; Dec. Dig. § 158.*]</p>

Dick Oden and another were convicted of retailing intoxicating liquors without a license in a prohibition parish, and appeal.

<p> (Syllabus by the Court.) </p> <p>1. Navigable Waters (§ 36*) — Lands Under Water — Title.</p> <p>All the soil within the limits of her territory, lying beneath the waters of sounds, bayous, creeks, channels, lakes, bays, coves, and inlets, bordering on the Gulf of Mexico and within the ebb and flow of the tide, were acquired by the state of Louisiana, upon her admission into-the Union, by virtue of her inherent sovereignty, and the United States never assumed to grant such soil under the acts of Congress of 1849 and 1850 (Act March 2, 1849, c. 87, 9 Stat. 352; Act Sept. 28, 1850, c. 84, 9 Stat. 519), relating to swamp and overflowed lands, or'other acts; there being no legislation authorizing such grants, and the United States having no interest or control of such soil, save in so far as necessary to the exercise of the power to regulate commerce, as vested in it by the Constitution.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 180-2U0; Dec. Dig. §. 36;* Boundaries, Cent. Dig. §§ 95, 108, 111, 112, 115-117, 121, 122.]</p> <p>2. Navigable Waters (§ 36*) — Lands Under Water — Title.</p> <p>The Secretary of the Treasury having, at the instance of the state of Louisiana, caused certain sea marsh lands, lying in the peninsula of the parish of St. Bernard (which extends to the eastward and is bounded, north, east, and south, by the sounds of the Gulf of Mexico), to be examined, and they having been listed, by section numbers, with approximate estimates of acreage, the approval of the list vested titles to-the lands in the state: but such action in no manner affected the title which the state had acquired by reason of her admission into the Union to the soil under the adjacent, intersecting, and intercommunicating tide waters and streams, and when thereafter the state conveyed said lands to the board of commissioners of the levee district wherein they lie, by an act referring to lands granted by Congress and acquired through tax sales, such conveyance conferred no authority upon such board to sell said tide water bottoms and beds of streams, or to sell the land, as of ascertained acreage, and the purchaser could take nothing but the actual lands (as contradistinguished from the soil beneath the waters) found within the sections designated in his act of purchase.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36;* Boundaries, Cent. Dig. §§ 95, 108, 111, 112, 115-117, 121, 122.]</p> <p>3. Navigable Waters (§ 37*) — Lands Under Water — Title.</p> <p>Though there may be no legal impediment to the.state’s alienating the soil lying beneath her navigable streams and tide waters, save in so far as such alienation might conflict with the power vested in Congress to regulate interstate and foreign commerce, her declared policy has always been not to do so, and any statute or contract from which such effect .is claimed should be strictly construed against the grantee.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 201-226, 285; Dec. Dig. § 37.*]</p> <p>4. Navigable Waters (§ 36*) — Lands Under Water — Title.</p> <p>The rules governing the ownership and alienation, by the state and the United States, of the soil lying under the water of shallow lakes and nonnavigable streams, not within the ebb and flow of the tide, are different from those by which the control of tide water bottoms and the beds of navigable streams are governed.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1090*) — Bill op Exceptions — Necessity.</p> <p>While it is true that a bill of exceptions is necessary to bring up evidence needful to determine a point of law, where the question arises on the face of the papers, and no evidence enters into the consideration of the question, a bill of exceptions is not necessary, in order to bring the matter before this court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p> <p>2. Statutes (§ 109*) — Title—Construction.</p> <p>A title should be liberally construed, so as to be coextensive with the body of the act, if possible; and an act should not be declared null, unless it is clearly evident that the constitutional requirement has been violated.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 136-139, 196; Dec. Dig. § 109.*]</p> <p>3. Statutes (§ 109*) — Title—Scope.</p> <p>It is not necessary that the title of an act should be a complete index to every section of the act; and it is only necessary that it shall, in general terms, direct attention to the purposes of the law and point to one object; and if it has done this there is no good ground for declaring the act unconstitutional.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 136-139. 196; Dec. Dig. § 109.*]</p> <p>4. Statutes (§ 110%*) — 'Title—Object—Reasons.</p> <p>Where the title of an act expresses one general purpose, the fact that the body of the act contains subdivisions of the general object does not render the act unconstitutional; and, as the only object which Act 188 of 1910 has is to prevent the contamination of streams, it cannot be invalidated by the expression of the reasons for such prevention.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 139, 162, 163; Dee. Dig. § 110%.*]</p> <p>5. Statutes (§ 64*) — Title—Subjeci>-Partial Invalidity.</p> <p>Where an act deals with two subjects, and one of them does not eome_ within the purview of the title, that subject will be expunged from the act, leaving only the other part of the act to determine whether the act is constitutional with regard to the remaining part. A portion of an act may be constitutional, while another portion may be unconstitutional.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. § 64.*]</p> <p>6. Statutes (§ 72*) — Water Course — Pollution — Nuisance.</p> <p>The act is not local in its character or unequal in its operation; for it imposes a like burden on all persons who might do an act which, in the discretion of the Legislature, is deemed a nuisance.</p> <p>[Ed. Note. — For other cases, see . Statutes, Cent. Dig. § 72; Dec. Dig. § 72.*]</p> <p>7. Waters and Water Courses (§ 36*) — Pollution — Legislative Power.</p> <p>It is within the power of the Legislature to pass statutes to prevent the doing of acts which are nuisances.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 36.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the Rice Stix Dry Goods Company against D. G. Saunders; R. H. Down-man, Garnishee. From a judgment sustaining the exception of the garnishee, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; J. Porter Parker, Judge.</p> <p>Succession of Henry Harold Schwabacher. Rule by Mrs. Clara Keiffer against J. & M. Schwabacher, Limited. From a judgment for plaintiff in rule, defendant in rule appeals.</p>

Martin; James Simon, Judge. Suit by Dumas Bernard and others against Bayou Portage Drainage District and others to set aside an acreage tax levied to pay the expenses of a drainage district. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Suit by Willie Dawson against the Fordney-Fasset Company, Limited, and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by James Shields against Frederic Fairchild. From a judgment for plaintiff, defendant appeals.</p>

Théard, Judge. In the matter of the Succession of Charles Albert Laroque Turgeau. Petition by Viola Laroque Turgeau, as sole forced héir, against Noemie Laroque Turgeau, née Letellier, widow and survivor in community. From a judgment for plaintiff, defendant appeals.

Martin; James Simon, Judge. Action by the Atehafalaya Land Company against the Brownell-Drews Lumber Company, in -which the Sehwing Lumber & Shingle Company intervenes. From a judgment for defendant, plaintiff and intervener appeal.

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 224*) — Appellate Jurisdiction —Amount in Controversy.</p> <p>The Supreme Court has no appellate jurisdiction in an ordinary case, where the matter in dispute does not exceed $2,000, exclusive of interest. Appeal dismissed, reserving to appellant the right of transfer to the Court of Appeal on making affidavit as required by the statute.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dee. Dig. § 224.*]</p> <p>On Motion to Dismiss.</p> <p>2. Courts (§ 224*) — Appellate Jurisdiction —Amount in Controversy.</p> <p>As the value of the land in dispute determines the jurisdictional amount, this court had jurisdiction of the cause.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p> <p>On Plea to the Jurisdiction.</p> <p>3. Libel and Slander (§ 140*) — Slander op Title — Possession op Plaintiff.</p> <p>Where one cuts wood and makes staves on land which he claims, and does other acts usually done by an owner, these things are sufficient to constitute possession; and the payment of taxes year after year is evidence of an intention to continue this possession.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent.Dig. §§ 397-401; Dec.Dig. § 140.*]</p> <p>4. Property (§ 10*) — Possession—Intention —Presumption.</p> <p>The Civil Code (article 3442) provides that, “when a person has once acquired possession of a thing by corporeal detention of it, the intention he has of possessing it serves to preserve the possession in him although he may have ceased to have the thing in actual custody;” and it further provides (article 3443) that “the intention of retaining possession is always supposed where the contrary intention does not appear.”</p> <p>[Ed. Note. — For other cases, see Property, Dec. Dig. § 10.*]</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; George JWoodside, Acting Judge.</p> <p>Actions by Josephine H. Davidson against Oscar Fletcher and by Oscar Fletcher against W. L. Smart, Sheriff, and others. Actions, consolidated. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>Action by John T. Gibbons against the Ya-zoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals.</p> <p>Affirmed.</p>

<p> (Syllabus by the Oouri.) </p> <p>Libel and Slander (§ 76*) — Malicious Prosecution (§ 34*) — Right of Action-Termination of Litigation — Acquittal of Accused.</p> <p>A suit for damages for an alleged libel contained in relevant pleadings filed in a civil suit will not lie before the termination of the litigation; but, where the same matter was made the subject of a criminal prosecution, a suit for damages for a malicious prosecution will lie after the acquittal of the accused.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 181; Dec. Dig. § 76;* Malicious Prosecution, Dec. Dig. § 34.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 918*) — New Trial — Employment op Counsel.</p> <p>An accused cannot remain indifferent about the employment of counsel to represent him, take his chances of an acquittal, and, after conviction, demand a new trial on the ground that he had no counsel at the trial, particularly where it is shown that the court safely guarded his interests by excluding any improper evidence sought to be introduced by the state. If an accused cannot employ counsel, he should so inform the court and ask for the appointment of counsel to represent him; and his failure to do so certainly can furnish no ground for a new trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2163-2196, 2219-2224; Dec. Dig. § 918.*]</p> <p>2. Criminal Law (§ 939*) — New Trial-Grounds — Diligence op Applicant.</p> <p>Where an accused is incarcerated with another accused, whom he fails to call as a witness, although he could easily have done so, he is not entitled to a new trial on the ground that he could prove his innocence by the other accused if he were granted a new trial and the opportunity to call him as a witness.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.*]</p> <p>3. Criminal Law (§ 1156*) — Appeai>-Discretion op Trial Court — New Trial.</p> <p>The question of whether a new trial should be granted is one largely within the discretion of the trial court; and, unless it appears clearly that there has been a wrongful use of that d'scretion, it will not be interfered with by this court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Taxation (§ 731*) —Adjudication to State — Double Assessment.</p> <p>The adjudication of property to the state, under a double assessment, for taxes which had been paid by one of the parties assessed conveys neither title nor possession, and one who purchases such property from the state acquires neither by virtue of his purchase.</p> <p>TEd. Note. — For other cases, see Taxation, Cent. Dig. § 1464; Dec. Dig. § 731.*]</p> <p>2. Libel and Slander (§ 140*) — Slander of Title — Right oe Action.</p> <p>One who is without title and cannot show actual possession of real estate for a year prior to the institution of his suit has no standing to recover damages for slander of the title thereto or trespass thereon.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent.Dig. §§ 397-401; Dec.Dig. § 140.*]</p> <p>3. Judgment (§ 252*) — Pleadings to Support.</p> <p>Where a litigant prays merely to be quieted in his possession of the property in dispute, a judgment decreeing him to be the lawful owner thereof is ultra petitionem.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 441-442; Dec. Dig. § 252.*]</p> <p>4. Injunction (§ 1S6*) — Dissolution — Damages.</p> <p>The fees of, attorneys may be allowed as damages when paid or incurred for services rendered in obtaining the dissolution of an injunction or any other conservatory writ (Act No. 50 of 18S6); but they are not allowed where the dissolution of the writ results merely from the defense and trial of the case on the merits^ and no effort to obtain such dissolution otherwise is shown to have been made.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 397, 399-405; Dec. Dig. § 1S6.*]</p> <p>5. Injunction (§ 1S6*) — Dissolution—Damages.</p> <p>The dissolution of a writ of injunction, as having been wrongfully issued, is prima facie evidence that the defendant has sustained some damage.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 397, 399-405; Dee. Dig. § 186.*]</p>

King, Judge. Actions by the Edison Electric Company ■against the City of New Orleans, and vice versa, consolidated for trial. Judgment for the Electric Company, and the city appeals.

Action by Edith E. M. D. Howcott against. W. L. Smart, state and parish tax collector,, and the Police Jury of Livingston Parish. Judgment for defendants, and plaintiff appeals.

Joseph Conradi was convicted of having delivered a threatening letter with intent to extort money or property and immunity from criminal prosecution, and applies for writs of habeas corpus and certiorari.

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Leche, Judge.</p> <p>Action by Odette de Gentile and others against the White Castle Lumber & Shingle Company, Limited. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>Willie Tolls was convicted of assault with intent to rob, and appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>Action by the Baldwin Lumber Company, Limited, against Max D. Del-fares. From a judgment sustaining exceptions by the defendant and dismissing the suit, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Pleading (§ 48*) — Petition—Statement or Cause oe Action.</p> <p>A petition presents a cause of action, or several causes of action, when the objects of the demand are clearly stated, together with the nature of plaintiff’s title, or the basis of the claims, and where the prayer for relief is specific, and conforms to the allegations. Ó. P. art. 172.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 105, 106; Dec. Dig. § 48.*]</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Samuel Aenspacker was convicted of perjury, and appeals.</p>

P. Edwards, Judge. Action by the People’s Bank & Trust Company against the Fenwick Sanitarium, Limited, and others; and Noemie Roy intervenes. From a judgment for defendants and intervener, plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Homestead (§ 162*) — Abandonment—Intent.</p> <p>In order for an abandonment of a homestead to occur, the homesteader must have left it with the intention of permanently leaving it. Mere temporary absence, in search of work, will not effect an abandonment of the homestead.</p> <p>[Ed. Note: — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dee. Dig. § 162.*)</p> <p>2. Homestead (§ 181*) — Abandonment — Burden of Proof.</p> <p>The burden of proof to show abandonment is upon the creditor who seeks to have the homestead sold, and mere temporary absence will not create a presumption of an intention on the part of the homesteader to abandon the homestead, and an actual intention to abandon must be shown.</p> <p>[Ed. Note. — For other cases, see Homestead, ■Cent. Dig. §§ 351-353; Dec. Dig. § 181.*]</p> <p>3. Homestead (§ 171*) — 'Waiver—Special or General Waiver.</p> <p>A waiver of the homestead right in an act of mortgage is a special waiver, which inures only to the benefit of the mortgagee, and does not inure to the benefit of any of the other creditors of the mortgagor. In order for a general waiver to arise, the waiver must be expressed in the act as a general waiver, or it must be recorded in the mortgage office by special act, as a general waiver.</p> <p>[Ed. Note. — For other cases,' see Homestead, Cent. Dig. § 338; Dec. Dig. § 171.*]</p> <p>4. Homestead (§ 171*) — Waiver.</p> <p>A mortgagee, in whose favor a waiver of homestead has been made, takes precedence over a prior mortgagee, whose act contains no waiver of the homestead exemption.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 338;. Dec. Dig. § 171.*]</p>

<p> (Syllabus by the Court.) </p> <p>Courts (§ 224*) —Appellate Jurisdiction— Supreme Court.</p> <p>Article 85 of the Constitution, which confers appellate jurisdiction on this court, does not include in the grant jurisdiction of cases involving merely title to office, or civil or political rights, dissociated from pecuniary value to an amount exceeding $2,000.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p>

Mary; Charles A. O’Neil, Judge. In the matter of the intervention and- third opposition of Robert Penn in suit of Albert Bonvillain against Robert Penn; J. Sully Martel being called in warranty. From a judgment in favor of the intervener and third opponent, plaintiff appeals.

King, Judge. . In the matter of the succession of Daniel M. Casey. Erom a judgment ordering the sale of lots, heirs of the decedent appeal.

<p> (Syllabus by the Court.) </p> <p>1. Grand Juey (§ 40*) — Objections to Grand Jury — Time or Taking.</p> <p>The objection that the minutes do not-affirmatively show that the foreman of the grand jury which found -the indictment was duly appointed and sworn comes too late after the jury is sworn. R. S. 1870, § 1064.</p> <p>[Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 83-85; Dec. Dig. § 40.*]</p> <p>2. Indictment and Information (§ 196*)— . Objections to Indictment — Time of Taking.</p> <p>The objection that the indictment was signed by the district attorney of another district, who had been illegally appointed district attorney pro tem., comes too late after the jury is sworn. Ib.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 628-635; Dec. Dig. § 196.*]</p> <p>3. Witnesses (§ 283*) — Examination — Recalling Witness.</p> <p>The trial judge may in his discretion permit the district attorney, at the close of the evidence for the accused, to recall a witness for the defense f'or cross-examination, for the sole purpose of laying a foundation for impeaching the credit of the witness by proof of contradictory statements on a subject-matter relevant to the issue.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1006, 1007; Dec. Dig. § 283.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>J. F. Cunningham and another were convicted of unlawful sale of intoxicating liquors, and appeal.</p>

J. P. Cunningham and another were convicted of unlawful sale of intoxicating liquors, and applied for writs of certiorari and prohibition. Denied, and proceeding dismissed.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by John W. Fairfax against Charles W. Bloch. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Eeeob (§ 1177*) — Remand — New Triad.</p> <p>A cause will be remanded where material evidence, readily procurable, has been inadvertently omitted, and justice to all parties requires a trial de novo.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. FRAUDULENT CONVEYANCES (§ 239*) — Revocatory Action — Right to Maintain. A revocatory action cannot be maintained as to property which has been seized and sold at the suit of plaintiff therein, and bought by a third person.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 681-683; Dec. Dig. § 239.*]</p> <p>2. Execution (§ 287*) — Sale — Recourse— . Warrantors oe Title.</p> <p>Under Code Prac. arts. 711, 713, providing that, where the purchaser at a judicial sale is evicted, on the ground that the thing sold did not belong to the debtor in execution, he shall have recourse against the seizing creditor and the seized debtor, but, where he is evicted on the hypothecary action of a creditor who had a mortgage on the property, he shall have recourse only against the seized debtor, a creditor of a mortgagor, who ignored the mortgage as void, and who caused the mortgaged property to be seized and sold under a judgment against the mortgagor, has no interest as warrantor of title of the purchaser at the judicial sale under the judgment, as against the claims of the mortgagee suing to foreclose the mortgage.</p> <p>LEd. Note. — For other cases, see Execution, Cent. Dig. § 822; Dec. Dig. § 287.*]</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; W. P. Edwards, Judge ad hoc.</p> <p>Action by the Albert Hanson Lumber Company, Limited, against the Riggs Cypress Company, Limited, and others. From a judgment for defendants, plaintiff appeals.</p>

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

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin IC. Schwing, Judge.</p> <p>Action by John Arthur against D. T. Dupuy and others. From a judgment for defendants, plaintiff appeals.</p>

P. Edwards, Judge. Action by D. E. Davis and others against the Board of Directors for the Parish of Bienville. From a judgment avoiding a special election, defendant appeals.

Action by the Barber Asphalt Paving Company against William T. King and another. A judgment for the plaintiff was affirmed “by the Court of Appeal, and Francis W. 'Crosby and others apply for a writ of certiorari or writ of review.

C. W. Ellis, Judge. Action by W. H. Howcott against George S. Petit. On conveyance of the property by defendant, John J. Paquette was substituted as defendant. From a judgment for plaintiff, defendant Paquette appeals.

W. Sutherlin, Judge. Action by the City of Shreveport against the Leiderkrantz Society. Certain citizens intervened. From the judgment, the city and the interveners appeal.

<p> (Syllabus by the Ooyrt.) </p> <p>1. Appeal and Error (§ 338’“) —Answer — Time eoe Filing.</p> <p>An answer to an appeal asking for an amendment of the judgment appealed from comes too late when it is filed alter the day on which the case is first fixed for argument. O. P. S90.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1879-1882, 3057; Dec. Dig. § 338.*]</p> <p>2. Appearance (§ 8*) — What Constitutes— Eepect.</p> <p>An exception to the jurisdiction of the court filed by defendant is waived by the subsequent filing of an exception of no cause of .action and going to trial on the two exceptions.</p> <p>[Ed. Note. — For other cases, see Appearance. Cent. Dig. §§ 23-41; Dec. Dig. § 8.*].</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Suit by Juanita Carbajal against Eusebio Fernandez, her husband. From a judgment for plaintiff, defendant appeals.</p>

Proceedings by George E. Boos to contest the nomination of H. P. McClendon for the office of member of the Legislature. There was an order directing H. P. McClendon, and F. H. Drake, the chairman of the committee, to show cause why the action of the committee should not be set aside, and H. P. Mc-Clendon applies for writs of certiorari, mandamus, and prohibition.

Tammany; Thos. M. Burns, Judge. Action by the Hibernia Bank & Trust 'Company, tutor, and others, against George M. Whitney and others. Prom a judgment for defendants, plaintiffs appeal.

Burns, Judge. Action by Thomas B. Erwin and others-against the Town of Franklinton to vacate-an assessment and enjoin its enforcement. From a judgment for defendant, plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by the Southern Bitulithic Company against the Algiers Railway & Lighting Company. Judgment for plaintiff, and. defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action -by Paul Palermo against the Orleans Ice Manufacturing Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Action by the Crowell & Spencer Lumber Company, Limited, against Samuel Duplissey. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Pledges (§ 56*) — Eneobcement — Sale to Pledgee.</p> <p>Where, under a contract of pledge, the pledgee is authorized, upon the failure of the pledgor and debtor to pay the debt on demand, or make good the margin, to sell the collateral, he is not thereby authorized to sell to himself;- and, though he may make the demand and go through the form of such sale, and may notify the pledgor that the collateral has been sold, it operates no change of title, and the collatr eral remains the property of the pledgor, subject to the conditions of the pledge. But where, in such case, the pledgee afterwards sells the collateral to a third person, the sale is valid, and the pledgor is entitled to have the proceeds attributed to his debt; but he is not entitled to recover damages as for an unlawful conversion, or otherwise, unless he can show that he was misled, to his prejudice, by the notice given him of the first attempted sale.</p> <p>[Ed. Note. — Eor other cases, see Pledges, Cent. Dig. §§ 152-183; Dec. Dig. § 56.*]</p> <p>Provosty, X, dissenting.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Chas. J. Boatner, Judge ad hoc.</p> <p>Action by the Albert Hanson Lumber Company, Limited, against the Baldwin Lumber Company, Limited, and others. Prom a judgment for defendant, plaintiff appeals.</p>

D. King, Judge. Action by Richard Brock against Charles Satchell or former owners, and action by Mrs. Elizabeth S. Morris against Richard Brock. From a judgment for plaintiff in •each action, the defendants, respectively, appeal.

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; Don E. So Relie, Judge.</p> <p>Action by the First National Bank against W. H. Powell and another, and A. Lehman & Go. intervenes. From a judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 364*) — Proceedings ■ to Transfer Gattse — Citation of Appeal-Effect of Error.</p> <p>The appellant is not responsible for an error in the return day as fixed by order of court, though his counsel wrote the order, especially where the prayer was for an appeal returnable to the Supreme Court according to law. Orleans & J. Ry. Co. y. International Const. Co., 113 La. 409, 37 South. 10. Where, in such a ease, the citation of appeal, as to the return day, conformed to the order granting the appeal, the error is not imputable to the appellant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1969-1976; Dec. Dig. § 364.*]</p> <p>2. Justices of the Peace (§ 119*) — Pleading to Sustain Judgment — Necessity for Joinder of Issue.</p> <p>Where' the appellant in a justice’s court opposed by injunction the sale of his property under execution, on the ground of exemption under article 244 of the Constitution of 1898, and the seizing creditor filed exceptions, •which were overruled, and the justice proceeded at once to try and decide the case on the merits, held, that the proceedings and judgment were null, because there was no joinder of issue by answer or default.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 373-376; Dec. Dig. § 119.*]</p> <p>On Rehearing.</p> <p>3. Appeal and Error (§ 364*) — Proceedings for Transfer of Cause — Citation of Appeal.</p> <p>Where the judge, in fixing the return for an appeal, commits an error, the error is imputable to the court, and the appeal will not be dismissed.</p> <p>• [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1969-1976; Dec. Dig. § 364.*]</p> <p>4. Appearance (§ 24*) — General Appearance-Effect.</p> <p>Where one appears and pleads to a suit, the pleading has the effect of curing want of citation, or defective citation.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thos. F. Bell, Judge.</p> <p>Action by Mrs. A. M. Roby and others against the Kansas City Southern Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Damages (§ 132*) — Personal Injuries — Amount.</p> <p>Plaintiff has obtained judgment for $10,-000 as damages for the loss of his left leg above the knee and the partial loss of three fingers on his left hand. The court declines to increase the amount of the award.</p> <p>[Ed. Note. — For other cases, see Damages, Gent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p>

Bell, Judge. Action by J. A. G. Roby and others against the Kansas City Southern Railway Company. Judgment for plaintiffs for less than the amount claimed, and they appeal.

James; Paul Leche, Judge. Action by Willie Baptiste against Charles A. Baptist. From a judgment for defendant, plaintiff appeals. The following is the plat referred to in the opinion:

<p> (Syllabus by Editorial Staff.) </p> <p>1. Elections (§ 313*) — Primary Elections —Offenses.</p> <p>Under Primary Election Law (Acts 1906, No. 49, § 24), authorizing a voter at a primary election, if unable to prepare his own ballot; to call on one of the commissioners or clerks of election to assist him, and punishing any voter making a false statement as to Ms inability to mark Ms ballot, a voter at a primary election, though able to read and not afflicted with any physical disability, may ask an election officer for information as to which of the candidates are in sympathy with his factional affiliation, without committing an offense, since the statute is not restricted to physical disability and inability to read, but extends to inability from any cause.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 338, 339; Dec. Dig. § 313.*]</p> <p>2. Statutes (§ 241*) — Pen ax. Statutes — Construction.</p> <p>A penal statute must be strictly Construed, and cannot be extended to cases not included within the clear import of its language, and nothing is a crime which is not clearly and unmistakably made a crime.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]</p>

<p> (Syllabus by the Court.) </p> <p>Sales (§ 406*) — Actions foe Damages — Performance by Plaintiff.</p> <p>A plaintiff cannot recover damages for delay in the performance of a contract to deliver stone, where he has refused to make payments according to the terms of the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1156-1158; Dec. Dig. § 406.*]</p>

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

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 596*) — 'Weight and Suiticienct.</p> <p>Plaintiff must make his case certain.</p> <p>[Ed. Note. — Eor other cases, see Evidence,. Cent. Dig. §§ 2446-2448; Dec. Dig. § 596.*]</p> <p>2. Negligence (§ 134*) — Actions—Evidence.</p> <p>Where there is but one witness for plaintiff to an accident and its attendant causes, and he is positively contradicted by a witness for -defendant on every material point, and both witnesses appear to be equally credible, the-evidence for plaintiff, some of which is negative in its character, is insufficient upon which-to base a judgment in his favor.</p> <p>[Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 267-270, 272, 273; Dec. Dig. §. 134.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Divorce (§ 119*) — Separation—Actions— Evidence.</p> <p>Where, in an action by a husband for separation from bed and board on the ground of the wife’s abandonment of- the matrimonial domicile, the evidence showed that the domicile provided by the husband was a room in premises occupied by his mother, who rented rooms, evidence that the husband’s mother objected to the marriage was admissible to show her attitude towards the wife.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 388; Dec. Dig. § 119.*]</p> <p>2. Divorce (§ 37*) — Grounds.</p> <p>Where a husband furnished his wife a room in premises occupied by his mother, who rented rooms therein, but he was able to furnish a better home, and his mother was hostile to the wife, the refusal of the wife to return to the room as the matrimonial domicile did not justify a judgment for the husband against the wife for separation on the ground of her abandonment of the matrimonial domicile.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 107-132; Dec. Dig. § 37.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Use and Occupation (§ 8*) — Use of Canal.</p> <p>The petition in an action by a vendor of standing timber against the purchaser which alleges that the contract of sale permitted the purchaser to construct canals through the lands of the vendor for the floating of the timber sold, that the purchaser constructed a canal and transported other timber from other lands, that the right to the use of the canal over the vendor’s property was restricted exclusively to the timber sold, and that it was customary to pay a specified charge for the right of passing timber through canals on lands of another, and which demands judgment for the passage of timber, through the canal, states a cause of action based on the purchaser using the vendor’s property, and though the custom alleged was not proved, authorized a recovery for the value of such use; the allegation as to custom simply fixing the value of such use.</p> <p>[Ed. Note. — For other cases, see Use and Occupation, Cent. Dig. § 24; Dec. Dig. § 8.*]</p> <p>2. Logs and Logging (§ 4*) — ■Contracts fob Sale of Standing Timber^Constbuction.</p> <p>A contract for the sale of standing timber which provides that the purchaser may enter on the property described of the vendor to cut and remove cypress trees, and to construct and use canals over the vendor’s property for removing “said cypress trees from said property,” authorizes the purchaser to take the cypress timber on the land of the vendor and remove the same by canals constructed on the land of the vendor, but the purchaser does not acquire thereby a right to transport through such canals timber from other lands.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Gent. Dig. § 13; Dec. Dig. § 4 ;* Contracts, Cent. Dig. § 890.]</p> <p>3. Use and Occupation (§ 1*) — Sale of Standing Timber — Contracts—Damages.</p> <p>Where a purchaser of standing timber constructed a canal for the removal of the timber as authorized by the contract, and then used the canal for the transportation of timber from other lands while the contract restricted the use of the canal for the removal of timber on the vendor’s land, the vendor under Civ. Code, art. 501, providing that the fruits produced by the thing belong to its owner though they may have been produced by the labor of another, could not recover from the purchaser the amount saved by the purchaser in using the canal for such other timber without reimbursing the purchaser the amount expended in constructing the canal, since the revenues were not produced by the use of the land of the vendor in its original condition.</p> <p>[Ed. Note. — Eor other cases, see Use and Occupation. Cent. Dig. §§ 1-11; Dec. Dig. § 1.®]</p>

<p> (Syllabus by the Court.) </p> <p>1. Escheat (§ 4*) — Grounds — Death of Owner Without Heirs — Succession.</p> <p>The succession of persons who die without heirs, or which are not claimed by those having a right to them, belong to the state. Civ. Code, arts. 485 and 929.</p> <p>[Ed. Note. — Eor other cases, see Escheat, Cent. Dig. § 1; Dec. Dig. § 4.*]</p> <p>2. Escheat (§ 7*) — Operation and Effect-Tike of Taking Effect — Succession.</p> <p>The state becomes the owner at the time of the death of the former owner.</p> <p>[Ed. Note. — Eor other cases, see Escheat, Cent. Dig. §§ 18, 19, 2SJ; Dec. Dig. § 7.*]</p> <p>3. Escheat (§ 8*) — Disposition of Property Escheated — Free School Funds — Succession.</p> <p>The proceeds of such property form a part of the free school fund of the state. Const, art. 229 of 1879 and article 298 of 1898.</p> <p>[Ed.. Note. — For other cases, see Escheat, Cent. Dig. §§ 20-22; Dec. Dig. § 8.*]</p> <p>4. Taxation (§ 213*) — Property Subject-Public Property.</p> <p>Public property is exempt from taxation. Const, art. 207 of 1879 and article 230 of 1898, [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 353; Dec. Dig. § 213.*]</p> <p>5. Taxation (§ 213*) — Assessment — Validity.</p> <p>The act of the assessors in assessing public property is ultra vires, null and void. So is the act of the tax collector in attempting to sell such property for alleged delinquent taxes. Slattery v. Heilperin & Leonard, 110 La. 86, 34 South. 139.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 353; Dec. Dig. § 213.*]</p> <p>6. Estoppel (§ 62*) — Equitable Estoppel— Persons Affected — State.</p> <p>The state is not estopped by acts ultra vires its officers. Id.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 151-153; Dec. Dig. § 62.*] .</p> <p>7. Taxation (§§ 337, 659*) — Assessment — Name of Owner — Notice of Seizure and Sale.</p> <p>Prior to the year 1890 property had to be assessed in the name of its owner, and notice of seizure and sale had to be served upon him. Kearns v. Collins, 40 La. Ann. 455, 4 South. 498; Le Blanc v. Blodgett, 34 La. Ann. 107; Davenport v. Knox, 34 La. Ann. 407; Maspereau v. City, 38 La. Ann. 400; McWilliams v. Michel, 43 La. Ann. 984, 10 South. 11; Martin v. Athletic Club, 48 La. Ann. 1051, 20 South. 181; Millaudon v. Gallagher, 104 La. 713, 29 South. 307.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 571-578, 1336, 1337; Dec. Dig. §§ 337, 659.*]</p> <p>8. Taxation (§ 734*) — Tax Sales — Validity.</p> <p>It is well established on principle and by authorities that a tax sale of property assessed in the name of one who is not the owner, without service of any notice of seizure on the real owner, is an absolute nullity and passes no title. George v. Cole, 109 La. 833, 33 South. 784; In re Sheehy, 119 La. 609, 44 South. 315; Lague v. Boagni, 32 La. Ann. 913; Bartley v. Sallier, 118 La. 98, 42 South. 657; Foreman v. Hinchliffe, 106 La. 234, 30 South. 762; Kearns v. Collins, 40 La. Ann. 455, 4 South. 498.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1470-1473; Dec. Dig. § 734.*]</p> <p>9. Taxation (§ 685*) — Tax Sales — Confirmation.</p> <p>Radical defects in tax assessments and sales cannot be validated by confirmation proceedings. Fix v. Dierker, 30 La. Ann. 175; Dodeman v. Barrow, 10 La. Ann. 193.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1375, 1376; Dec. Dig. § 685.*]</p> <p>10. Limitation of Actions (§ 19*) — Tax Sales — Setting Aside — Prescription.</p> <p>The prescriptive term of three years contained in article 233 of the Constitution has no application to the attempted sale of public property by tax collectors for alleged delinquent taxes.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73-85, 176; Dec. Dig. § 19.*]</p> <p>11. Limitation of Actions (§ 11*)— Prescription — Property Against Which Prescription Runs.</p> <p>Prescription runs against vacant successions (Civ. Code, art. 3526); but it does not run against vacant successions, where the state is present and takes the property, which belongs to it under the law.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. 11.*]</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 640*) — Defective Transcript — Rights of Appellant.</p> <p>Under Act No. 229 of 1910, the remedy of an appellee who has reason to complain of a defective transcript is either to cause the omitted portion of the record to be filed as a supplemental transcript, or to call the matter to the attention of this court; and where the latter course is pursued this court will order the appellant to cause such transcript to be filed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2788; Dec. Dig. § 640.*]</p> <p>On the Merits.</p> <p>2. Evidence (§ 584*) — Weight and Sufficiency.</p> <p>Where plaintiff offers full and complete evidence in support of the allegation in his petition, there will be judgment in his favor.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2424, 2426, 2427; Dec. Dig. § 5S4.*]</p>

<p> (Syllabus by the Court.) </p> <p>Homestead (§ 117*) — Mortgage—Validity —Consent oe Wife.</p> <p>A mortgage of the debtor’s homestead without the written consent of the wife, though in the form of a sale and. resale of the premises, is a nullity, not only between the parties, but as to a third holder of a negotiable note given for the price of the pretended sale.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 191-202; Dec. Dig. § 117.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Taxation (§ 410*) — Assessment Roll — Extension.</p> <p>The function of making or supplementing the assessment appertains strictly to the assessor, and the extension of an acreage tax upon the assessment roll by the sheriff, upon the assessor’s failure to make such extension, was unauthorized.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 676; Dec. Dig. § 410.*]</p>

Action by the Neosho Milling Company ■■against the Farmers’ Co-operative Warehouse Stock Company and 3. A. Bristor. Judgment for plaintiff, and on appeal the Court of Appeal certified the case applying for instructions.

<p> (Syllabus by the Court.) </p> <p>Insurance (§ 376*) — Action on Policy— Conditions — Waiver.</p> <p>Where suit is brought upon a policy of insurance, containing conditions to the effect that it shall become void in the event of a change in the title of the subject of the insurance, unless otherwise provided by agreement, indorsed on the instrument, and that no agent shall have power to waive or be held to have waived any conditions, unless such waiver be so indorsed on, or attached to, the policy, and no error or fraud is alleged, the plaintiff is bound by the conditions thus expressed in the written contract sued on; and his petition, setting up a verbal agreement with an agent, in direct contravention of the same, is properly dismissed as disclosing no cause of action.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 952-955; Dec.-Dig. § 376.*]</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; B. P. Edwards, Judge.</p> <p>William Cloud and another were convicted of murder, and appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Descent and Distribution (§ 57*) — Succession— Surviving Wife — Failure of Issue of Intestate — Father Surviving Intestate.</p> <p>Under Code, arts. 903, 904, 905, 911, 912, 917, 924, which provide that, in the absence of issue, or of a father or mother, the brothers and sisters take the entire succession, that in case there is no issue, but a father or mother, they take three-fourths, and that, in the absence of ascendants and descendants and collateral relations, the wife inherits, and article 915, as amended by Act 1910, No. 57, which provides that a surviving wife of a decedent, who leaves no ascendants or descendants and does not' dispose by will of his share in the community property, shall inherit such share in full ownership, held, that a surviving wife of an intestate, who has died without issue, but leaving a father and a brother, took nothing; the estate going to the surviving father and brother, as expressly provided by the Code.</p> <p>[Ed. Note. — Eor othei cases, see Descent and Distribution, Cent. Dig. §§ 145, 159; Dec. Dig. § 57.*]</p> <p>2. Statutes (§ 225%*)— Construtcion — Reenactment — Adoption op Rkovisions Previously Construed.</p> <p>Where a statute or an article of the Code has been re-enacted without change, the interpretation which had been placed upon it by the Supreme Court must be considered as having been adopted along with it.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. § 306; Dec. Dig. § 225%.*]</p> <p>3. Constitutional Law (§ IS*) — Construction op Constitutional Provision — Adoption op Provisions Previously Construed.</p> <p>Where an article of the Constitution has been re-enacted without change, the interpretation which had been placed upon it by_ the Supreme Court must be considered as having been adopted along with it.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 13, 17; Dee. Dig. § ÍS.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Railroads (§ 398*) — Collision with Person on Track — Negligence—Evidence— Sueeioiency.</p> <p>In an action against a railway company for death of plaintiff’s decedent, who was struck by a train while sitting on the track in a drunken stupor, evidence held insufficient to show that the engineer was negligent in failing to discover decedent’s situation.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.*]</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; R. B. Dawkins, Judge.</p> <p>Action by Pleny Mays and another against the Tremont Lumber Company. Judgment for defendant, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Drains (§ 71*) — Assessments—'Validity.</p> <p>The result would be, if the tax were declared legal, that the amount realized from the tax would be used in improving, in round fig-ures, 11,000 acres of land in a district in which there are 50,000 acres, without any positive assurance that in time the remaining 39,000 acres would receive equal benefits.</p> <p>[Ed. Note. — For other cases, see Drains, Oent. Dig. § 74; Dec. Dig. § 71.*]</p> <p>2.Constitutional Law (§ '308*) — Prescription-Nature in General.</p> <p>Prescription will not be of any avail if by it the organic law which guarantees equal rights would be violated.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 925; Dec. Dig. § 308.*] |</p> <p>On Rehearing.</p> <p>3. Drains (§ 67*) — Construction and Operation — Effect as to Prior Statutes.</p> <p>Article 281 of the Constitution of 1898 as amended in 1908 (Act No. 300 of 1908) was, in 1910, amended and re-enacted (Act No. 197 of 1910) so as to authorize the issue of drainage bonds where levees and pumps are required for the drainage of lands upon a petition of not less than a majority in acreage of the property taxpayers, resident and nonresident, in the area to be affected; provided that acreage taxes for all purposes shall not exceed $3.50 per acre.</p> <p>The adoption and promulgation of this amendment repealed all prior conflicting laws relative to drainage districts, and arrested all further proceedings for the issue of bonds, on the vote of property taxpayers, in districts where levees and pumps are required for drainage purposes.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. § 73; Dec. Dig. § 67.*]</p> <p>4. Drains (§ 71*) — Assessments—Validity.</p> <p>Even under the laws in force prior to the adoption of the amendment of 1910, general taxes and assessments could not be lawfully levied- and appropriated for the benefit of a particular section of a drainage district.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. § 74; Dec. Dig. § 71.*]</p>

K. Schwing, Judge. Action by Bloch & Levy against F. M. Lambert and by F. M. Lambert against Bloch & Levy. The two suits were consolidated, and judgment rendered for Bloch & Levy, and defendant appeals.

K. Skinner, Judge. Action by Jacob Israel against the City of New Orleans and others to enjoin the enforcemeat of an order. From a judgment for ■defendants, plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Charles V. Peyton against the City of New Orleans. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1071*)-Certiorari-Petition — Contents.</p> <p>A person sentenced, under R. S. § 833, to imprisonment at hard labor for 14 years, who, having served 3 years of the term, applied to this court to be released, on the ground that, being charged with, uttering, tendering, and publishing a forged order for money, knowing, etc., and with intent, etc., he had pleaded guilty to the charge of “uttering,” whereas no such offense is known to the law, should attach to his petition a certified copy of the minutes of the court, or of his plea, if in writing, showing specifically upon what plea he was sentenced, since matter not constituting an offense could have been disregarded as surplusage, and the sentence authorized by the statute imposed for “publishing.”</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2702; Dec. Dig. § 1071.*]</p> <p>2. Criminal Law (§ 999*) — Mittimus —Detects — Release.</p> <p>The failure of a mittimus properly to recite the offense for which a person held in custody was sentenced does not entitle such person to be released.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2550-2553; Dec. Dig. § 999.*]</p>

, Actip.n by E. M. Darden, and others against J. ,L. Garrett and W. L.- Beene., -Judgment' fqr - defendants was .affirmed, by tire. Court of Appeal, and plaintiffs .bring certiorari.

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 332*) —Adjudication—Absence oe Judge.</p> <p>An entry in the minutes that the judge was absent at the time some of the defendants in these proceedings were adjudged bankrupts is sufficient evidence of such absence, and, where it appears from the record that a certain person was the referee, that is sufficient to make proceedings before him admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1237-1246; Dec. Dig. § 332.*]</p> <p>2. Limitation of Actions (§ 110*) — Prescription — Suspension — Pendency of Bankruptcy Proceedings.</p> <p>As one of the defendants herein was not a party to the bankrupt proceedings, these proceedings did not have the effect of interrupting prescription as to him, as he might have been sued in the state courts while the bankrupt proceedings of the other defendants herein were pending.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 520; Dec. Dig. § 110.*]</p> <p>3. Husband and Wife (§ 221*) — Effect of Proceedings — Married Women.</p> <p>Where a married woman has not been authorized by her husband to be a party to bankruptcy proceedings, or where her husband is not cited with her in these proceedings, the proceedings are a nullity as to her. The mere fact that the husband, as a creditor, proves up his claim in these proceedings, does not have the effect of authorizing his wife to stand in judgment in the.proceedings, and he is not estopped from denying the want of authority in his wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 707, 802-806; Dec. Dig. § 221.*]</p> <p>4. Husband and Wife (§ 160*) — Disabilities — Capacity to Contract — “Public Merchant.”</p> <p>A married woman “is a public merchant if she carries on a public trade,” but she is not a public merchant merely because she passively permits her brothers to operate a store, under the name of “Estate of E. Barousse,” in which she has inherited an interest, and is therefore not separately bound for the debts incurred in the operation of this store.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 631-633; Dec. Dig. § 160.*]</p> <p>5. Husband and Wife (§ 146*) — Contracts of Wife — Liability of Husband.</p> <p>As the husband had no interest in the store, and as his wife is in no way liable, he is necessarily free from liability.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 556-560; Dec. Dig. § 146.*]</p> <p>6. Limitation of Actions (§ 110*) — Prescription — Suspension — Bankruptcy Proceedings.</p> <p>The surrender in bankruptcy had the effect of suspending prescription as to all parties properly in such proceedings.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 520; Dec. Dig. § 110.*]</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by the Yazoo & Mississippi Valley Railroad Company against the Railroad Commission of Louisiana. Judgment for ^plaintiff, and defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge.</p> <p>Harry Burns was convicted of larceny and burglary, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Cancellation of Instbtjments (§ 37*)—Oil. Lease—Pleading.</p> <p>A petition discloses a cause of action in. nullity which attacks, for want of consideration, an oil lease in which the lessee stipulates-to commence drilling within six months, but does not obligate himself to prosecute the work or to complete a well, in which he reserves-the right to remove, at any time, any property that he may have placed on the land; which provides, on the one hand, that if oil is not discovered within two years the contract is to-be canceled, and, on the other, that “if the-said lessee, after completion or abandonment of any well, * * * shall cease wholly to-drill thereon, for a consecutive space of time-greater than two years,” his right to drill shall determine; and which, whilst promising to the-lessor a royalty, should any oil be produced, imposes on the lessee no obligation to produeeany oil.</p> <p>[Ed. Note.—For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-81; Dec., Dig. § 37.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by H. W. Lamb against the General Eilm Company. Judgment for plaintiff, and defendant appeals.</p>

Henry, Judge. Minter Le Grand was charged in two in-formations with cattle stealing. Bail bonds against Le Grand were forfeited, and from an order refusing to vacate the judgments of forfeiture Le Grand and others appeal.

Chretien, Judge. L. J. Ferrandau was convicted of shipping oysters out of the state for the purpose of canning and packing them out of the state, and appeals.

King, Judge. In the matter of the succession of John Balovich. From a judgment in a proceeding by rule against the representative of the adjudicatee, an appeal is taken.

<p> (Syllabus by the Court.) </p> <p>Taxation (§ 469*) — -Assessment—Equalization.</p> <p>The Board of Equalization having in September 1907, issued instructions with respect to an increase in the valuation of pine lands in the parish of St. Tammany for the purposes of the assessment for the year, based upon a classification graded according to the lumber-producing capacity of the land, and the assessor not being informed of the basis upon which the classification was made, and increasing the valuation without regard thereto, held, that the increase was illegal and unauthorized, and that, the attempt of the Board of Equalization having miscarried, the assessment and •valuation made by tbe board of reviewers remains undisturbed.</p> <p>[Ed. Note. — For other cases, see Taxation, ■Cent. Dig. §§ 838-840; Dec. Dig. § 469.*]</p> <p>Breaux, C. J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>Carriers (§ 318*) — Injury to Passenger-Sufficiency of Evidence.</p> <p>Plaintiff, in an action in damages for personal injury, is bound to make it reasonably certain that the injury was caused by the negligence of the defendant, or his agents or servants, and, where he fails to do so, there must be judgment for defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by E. D. Cohn against William G. Tebault. Judgment of nonsuit, and both parties appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>Action by Ortber C. Mouton against tbe City of Lafayette. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; George J. Woodside, Acting Judge.</p> <p>Action by Mrs. M. W. McQueen and others against the Flasdiek-Black Land & Lumber Company, Limited. From the judgment, both parties appeal.</p>

Landry; B. H. Pavy, Judge. Action by the Board of Missions of the Methodist Episcopal Church South against C. ,D. Craighead Company, Limited, and others. Judgment for plaintiff for part of the relief asked, and the receiver of defendant ■corporation appeals.

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Proceedings to establish title by Mrs. Clemance Folger and others against John St. Paul and others, in which Mrs. Fannie Brown intervened. From judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Rule taken by the State Tax Collector against Frederick De Bary & Company for license taxes. From judgment for defendant, the State appeals.</p>

<p>Action by John Abraham against M. Wallenberg, and F. Guillory intervenes. Application by defendant for writs of certiorari, mandamus, and prohibition.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Judgment (§ 702*) — Judgment Setting Aside Tax Sale — Effect—Parties.</p> <p>^ A judgment setting aside a tax sale, in an action wherein the only defendant is the tax collector who has no authority to represent the state, is not binding on the state, which was the tax sale purchaser.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1227; Dec. Dig. § 702.*]</p> <p>2. Taxation (§ 679*) — Sale to the StateEstoppel.</p> <p>Where the tax debtor is not, by the failure of the state to claim ownership by virtue of a tax sale, lulled into a false security which deprives him of his opportunity to redeem, and is not in possession and has not paid the taxes, the state is not estopped to claim its ownership.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1361, 1362; Dec. Dig. § 679.*]</p> <p>3. Taxation (§ 679*) — Notice to Vacate— Admission of Possession.</p> <p>Service by a purchaser from the state of a notice to vacate lands sold for taxes and bought in by the state did not operate_ as an admission that the parties served were in possession at the time of the tax sale or subsequently, at any time other than at the present time.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1361, 1362; Dec. Dig. § 679.*]</p> <p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p>