Volume 131 — Louisiana Reports

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Sophie Gastauer against George Gastauer and another. From a .judgment for defendants, plaintiff appeals.</p>

Wilson, Judge. Albert Johnson was convicted of failure to support his child, whose custody was thereupon awarded to the mother. Rule by defendant to have the custody of the child awarded to defendant. From an order giving the custody of the child to the father, the mother, Mrs. Anita Johnson, appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Victoria Gibson against the New Orleans Terminal Company. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Real Actions (§ 7*) — Petitory Action-Evidence.</p> <p>Plaintiff, in a petitory action, must recover on the strength of his own, and not on the weakness of defendant’s, title. C. P. art. 44.</p> <p>(Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 21-25; Dec. Dig. § 7.*]</p> <p>2. Deeds (§ 38*) — Description.</p> <p>Title to real estate must describe the land with reasonable certainty.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.*]</p> <p>3. Vendor and Purchaser (§ 230*) — Bona Fide Purchaser — Notice.</p> <p>A vague, uncertain, and indefinite description in a title deed will not be notice to a purchaser in good faith.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.*]</p> <p>4.Adverse Possession (§ 84*) — Prescription — Good Faith. ,</p> <p>Good faith is always presumed in matters of prescription. It is sufficient if the possession has commenced in good faith; and, if the possession should afterwards be held in bad faith, that shall not prevent prescription. O. O. 3481 and 3482.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 488-500; Dec. Dig. § 84.*] ,</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Anna Boyd Quayle against the Sewerage and Water Board. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Corporations (§ 134*) — Stock—Transfer —Liability of Corporation.</p> <p>A corporation, the capital stock of which is transferable only upon its books, is the custodian of the shares therein, and, being vested with the power and charged with the duty to protect the interests of the owners of such .shares, it must repair any injury which they may sustain by reason of its failure to exercise such power and discharge such duty; and, where it permits shares to be transferred without the authority of the owner, it may be compelled to replace them if there be other shares within its control, or, if there be no other shares within its control, it must respond in damages.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 521-525, 527, 528; Dec. Dig. § 134.*]</p> <p>2. Corporations (§ 66*) — Stock—Amount.</p> <p>The amount of the capital stock of a corporation being fixed by its charter and divided into aliquot parts, it is no more possible to add parts in excess of the number which constitute the whole than it would be to add another to the two halves which constitute any whole thing.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 173-180, 449; Dec. Dig. § 66.*]</p> <p>3. Corporations (§ 134*) — Stock—Transfer —Liability of Corporation.</p> <p>Unless the true owner of shares of stock in a corporation is estopped, the fact that the corporation acted in good faith and without negligence in recognizing and registering an unauthorized transfer of his shares is no defense against such owner,</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 521-525, 527, 528; Dec. Dig. § 134.*]</p> <p>4. Corporations (§ 134*) — Stock—Transfer —Notice of Title.</p> <p>The title of a minor to the interest in community property inherited by him upon the death of one of his parents is a legal, not a mere equitable, title, and the law from which it is derived is to be read into that under which private corporations are created. Hence such corporations are bound to take notice of the fact that shares of their stock belonging to a community of acquSts existing between married persons, whether registered in the name of the one spouse or the other, devolve in indivisión on the death of either spouse upon his, or her, heirs and the surviving spouse, and that, if such heirs be minors, the interest devolving on them can be sold only in the manner provided by law.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 521-525, 527, 528; Dec. Dig. § 134.*]</p> <p>5. Corporations (§ 428*) — Powers and Liabilities — Representation by Officers —Notice to Officer.</p> <p>The knowledge of an officer of a corporation will not be imputed to the corporation in a case where business is transacted by him in his official capacity on the one side, and as an individual on the other side, and where he transacts it with reference to his own interest and without regard to the interest of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dec. Dig. § 428.*]</p> <p>6. Corporations (§ 134*) — Stock—Transfer —Liability of Corporation.</p> <p>There are no doubt some transactions in stocks in which to hold a defendant liable only for their value at the date of their actual conversion would afford an inadequate remedy; but, where a corporation has permitted a shareholder to transfer shares standing in his name, and is sued, nearly 10 years later, by a minor, who has attained majority, for damages for having allowed the transfer of the community interest in such shares, inherited by him from his mother, the measure of damages should ordinarily be the value of the minor’s interest at the date of the transfer, with legal interest thereon.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 521-525, 527, 528: Dec. Dig. § 134.*]</p> <p>7. Corporations (§ 134*) — Stock—Transfer —Liability of Corporation.</p> <p>Where stock has never been offered upon the market, and hence cannot be said to have had a market value, its value at a past time for the purposes of an action in damages may be taken to have been its due proportion of the net value of the assets of the corporation and of its good will or money earning capacity.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 521-525, 527, 528; Dec. Dig. § 134.*]</p>

P. Madison, Judge. Action by the Board of Liquidating Commissioners of the Bank of Monroe and others against Thomas M. Dodson and others. Prom an order refusing to dissolve an injunction on the bond, Thomas M. Dodson 'appeals.

<p>Appeal from Twelfth Judicial District Court, Parish of Yernon; Don E. SoRelle, Judge.</p> <p>Action by William J. Sanders against Charles L. Smith. Judgment for defendant, and plaintiff appeals.</p>

N. Skinner, Judge. In the matter of the Succession of Alexander S. Swanson. Action by the alleged heirs against Melanie Levy to set aside the probate of his last will. Judgment in favor of plaintiffs, and Melanie Levy appeals.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; C. K. Schwing, Judge.</p> <p>Action by the State, on the relation of D. C. Smith, against T. W. Dardenne, Registrar, and Paul Kurzweg. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1167*) — Appeal—Trial fob Lesser Offense.</p> <p>The accused indicted for murder and tried for manslaughter has no reason to complain that the prosecuting officer elected to try him for the lesser offense, as such election operated as an abandonment by the state of the charge of murder.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.*]</p> <p>2. Witnesses (§ 372*) — Cross-Examination.</p> <p>A defense witness may be cross-examined as to his relations with the accused for the purpose of showing bias, though nothing was .said on the point in the examination in chief.</p> <p>[Ed. Note. — For other eases, see- Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]</p> <p>3. Criminal Law (§ 1092*) — Appeal—Bill of Exceptions.</p> <p>A bill not signed by the trial judge, or signed with the statement that no such bill was taken, will not be considered on appeal, where the alleged defects or irregularities are not patent on the face of the record.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2829, 2834-2861, 2919; Dec. Dig. § 1092.*]</p> <p>4. Criminal Law (§ 1030*) — Trial—Objections to Minutes.</p> <p>Objections based on alleged defects in the minutes come too late after the submission of the cause.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619-2621, 2629, 2632; Dec. Dig. § 1030.*]</p>

Action by the State against the F. B. Williams Cypress Company, Limited. From the judgment, defendant appeals, and the State answers the appeal.

<p> (Syllabus by the Court.) </p> <p>1. Taxation (§ 95*) — Assessment—Business of Nonresidents.</p> <p>Where plaintiffs, residents of New York City, carried on a brokerage business in the city of New Orleans, through a resident agent, held, that the average capital employed in such business may be taxed in the state of Louisiana, and all moneys arising from the business may be valued for the purpose of arriving at the amount of capital actually employed therein. The circumstance that all moneys received by the agent were forthwith remitted to the plaintiffs in New York City did not affect the amount of capital, in one form or another, actually employed in the conduct of the business in the city of New Orleans.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 190-192; Dec. Dig. § 95.*]</p> <p>2. Taxation (§§ 462, 95*) — Assessment—Estoppel to Contesi^-Bitsiness oe Nonresidents.</p> <p>Plaintiffs made no return of their property for assessment, and are therefore estopped to contest the correctness of the assessment list filed by the assessor. Section 25, Act 170, 1898. The assessment of $50,000 to plaintiffs’ brokerage firm under the head of “money in possession” represents the average cash capital actually employed in the business. Section 7, Act 170, 3 898.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. §§ 818-823, 190-192; Dec. Dig. §§ 462, 95.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Animals (§ 55*) — Damage to Trees — Right of Recovery.</p> <p>Where, in an action for damages done to an orange grove by cattle, the evidence showed that the damage caused by the cattle was remote and inconsequential, and that the proximate cause of the damage was a storm, which devastated the country, injuring trees and destroying fences, so as to permit cattle to run at large, recovery by the plaintiff was properly denied.</p> <p>[Ed. Note. — For other cases, see Animals, Gent. Dig. §§ 176-180; Dec. Dig. § 55.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Estoppel (§ 23*) — Deed — Construction anb Operation — Covenants oe Warrant* —Tax Sale.</p> <p>Where a purchaser of the interest of a supposed co-owner of property purchased the land at a tax sale, and subsequently joined the other supposed co-owners in a warranty deed, he, being a warrantor of the entire title, could not contest the grantee’s title; and hence, where the supposed co-owners had no interest in the property, the grantee could claim under the tax title.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 52-60; Dec. Dig. § 23.*]</p> <p>2. Covenants' (§ 28*) — Joint oe Several Liability.</p> <p>The rule that the obligation of a joint vendor with warranty extends to the entire title does not apply to reimbursements of the purchase price; a money obligation being necessarily divisible.</p> <p>[Ed. Note. — Eor other cases, see Covenants, Cent. Dig. §§ 27, 28; Dec. Dig. § 28.*]</p> <p>3. Estoppel (§ 25*) — By Deed — Persons to Whom Available.</p> <p>Where supposed co-owners of land, one of whom had acquired a tax title, conveyed, the land by warranty deed, the estoppel against the grantor by his warranty was available only to the grantee, and hence, where the supposed co-owners had no title, a stranger who, except for the tax title, would have been entitled to possession, could not recover on the theory that the conveyance extinguished the tax title.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 61, 62; Dee. Dig. § 25.*]</p> <p>4. Dismissal and Nonsuit (§ 42*) — Dismissal by Consent — Eeeect.</p> <p>Supposed co-owners of land brought a suit against another supposed co-owner to cancel a tax deed held by him, but pending the suit agreed with him to convey the land to a third person by warranty deed, and the suit was thereupon discontinued. 'Held, that the discontinuance did not constitute an abandonment of the tax title.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 75-83; Dec. Dig. § 42.*]</p> <p>5. Estoppel (§ 29*) — Acts Constituting— Prescription.</p> <p>Where a supposed co-owner of land also holding a tax title joined with the other supposed co-owners in the conveyance of the land, and there was ample time thereafter in which plaintiff claiming under another title might have brought an action to cancel the tax deed before the expiration of the constitutional prescriptive period, the grantee was not estopped to claim under the tax deed on the ground that his grantor by joining in the conveyance led plaintiff to believe that the tax title had been abandoned.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 69-73; Dec. Dig. § 29.*]</p>

Porter Parker, Judge. Petition by the City of New Orleans to annul a judgment for the Quaker Realty Company, Limited, confirming its title to certain land. From a judgment for the City, the Realty Company appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and Error (§ 1011*) — Findings— Conclusiveness.</p> <p>A finding on conflicting evidence will not be disturbed on appeal, where the Supreme Court cannot be positive that the trial court erred.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p> <p>2. Sales (§ 442*) — Contracts—Stipulations eor Damages eor Breach op Warranty— Validity.</p> <p>A stipulation, in a contract of sale of an engine, limiting responsibility of the seller for breach of warranty to a return of the price, is binding, in the absence of bad faith.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.*]</p>

<p>Appeal from Twenty-Sixth Judicial Dis~ triet Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Action by William J. Daniel against D. E. Sheridan. From the judgment, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Street Railroads (§ 93*) — Derailment—Negligence.</p> <p>Where a street railroad car being operated at ordinary speed was derailed by a rock on the track, which the motorman did not see because of a shadow from an overhanging electric street lamp, and after derailment ran into a shed on the corner, and injured plaintiff, who was in -the shed, the facts did not establish actionable negligence.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Statutes (§ 117*) — Title oe Act — Service on Corporation.</p> <p>In so far as Act No. 261 of 1908 provides “that service of citation issued by any court of this state upon a corporation shall be served by the sheriff or constable of the court issuing the citation upon said corporation,” it is broader than its title, and to that extent unconstitutional, as the title merely provides for the manner in which citation shall be served, but does not provide for the officer by whom it shall be served.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 154-157; Dec. Dig. § 117.*]</p> <p>2. Process (§ 49*) — Service—Repeal of Statute.</p> <p>The repeal of laws by implication is not favored, and there is no strong reason that would force this court to conclude that the articles of the Code of Practice, with reference to the officer to serve citation, have been repealed by Act No. 261 of 1908, whose title shows that it is an act intended to provide for the manner of service of citation on corporations.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. § 48; Dec. Dig. § 49.*]</p> <p>3. Process (§ 52*) — Service—Authority of Officer.</p> <p>Where a corporation is sued for an active tort in a parish other than its domicile, the sheriff of the parish of its domicile, and not the sheriff of the parish where the suit is brought, is the proper officer to serve the citation.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 59-63; Dec. Dig. § 52.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Insurance (§§ 255, 268*) — Like Insurance —Warranties and Representations — Distinction.</p> <p>A life policy is vitiated by a false statement in the application, where the statement constitutes a warranty, whether material or not; but a mere misrepresentation does not vitiate the policy unless material or fraudulent.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 548, 568, 569; Dec. Dig. §§ 255, 268.*]</p> <p>2. Insurance (§ 255*) — Like Policies — Applications — Statements—Materiality.</p> <p>A statement in an application for life insurance, to be material, must have been an inducement to the contract.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 548; Dec. Dig. § 255.*]</p> <p>3. Insurance (§ 291*) — Like Policies — Applications — Statements—Materiality.</p> <p>Misrepresentation, in an application for life insurance, that insured had not 'been ill since childhood, and that he had not consulted a physician within five years, whereas he had been ill for two or three days with malaria and had been attended by a family physician, was not material, and hence does not defeat recovery on the policy on insured dying 22 days after issuance of the policy, supposedly from acute indigestion.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.*]</p> <p>4. Insurance (§ 255*) — Like Insurance — Applications — Materiality ok Statements.</p> <p>Under Act No. 52 of 1906, which provides that all statements purporting to be made by insured shall be deemed representations and not warranties, in the absence of fraud, and that any waiver of the provisions of the statute shall be void, a policy cannot make statements material regardless of whether they are so in fact or not.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 548; Dec. Dig. § 255.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>In the matter of the succession of Charles B. Block. On appeal from a judgment admitting decedent’s will to probate.</p>

<p> (Syllabus by the Court.) </p> <p>1.Taxation (§ 320*) — Property Subject-Exemptions.</p> <p>The enunciation in its charter of the objects and purposes of a corporation is not controlling in deciding whether the corporation is one included in an exemption from taxation, as the question of exemption must be determined by ascertaining the real nature of the corporation from the acts and business which the corporation is actually doing.</p> <p>[Ed. Nóte. — For other cases, see Taxation, Cent. Dig. § 535; Dec. Dig. § 320.*]</p> <p>2. Taxation (§ 231*) — Exemptions—Public Service Corporations.</p> <p>Act No. 16 of 1904 was intended to exempt from taxation only public service corporations whose existence would be beneficial to the people of the whole state, but was not intended to exempt street railways engaged only in transportation of passengers, and having no connection with other public carriers.</p> <p>[Ed. Note. — For other cases, see Taxation, Gent. Dig. §§ 371-378; Dec. Dig. § 231.*]</p> <p>3. Taxation (§ 231*) — Exemptions — Public Service Corporations.</p> <p>However public a street railroad may be in a city by affording facilities to all therein, it is local in its nature, and does not come within the exemption of Act No. 16 of 1904 merely because it carries passengers into the rural districts adjoining the city wherein it is operating.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 371-378; Dec. Dig. § 231.*]</p> <p>4. Constitutional Law (§ 100*) —Vested Rights — Exemption from Taxation.</p> <p>As the plaintiff did not fall within the exemption, even as to its portion of line which extended into the country, it therefore cannot be heard to say that it has been deprived of a vested right of exemption by the' extension of the city limits of Shreveport.</p> <p>[Ed. Note. — For other cases, see Constitutional Law,'Cent. Dig. § 206; Dec. Dig. § 100.*]</p> <p>Provosty, J., dissenting in part.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; C. K. Sehwing, Judge.</p> <p>Mandamus by the State, on relation of John M. Wooters, to T. W. Dardenne, Begistrar. From a judgment for defendant, relator appeals.</p>

W. Sutherlin, Judge. Action by J. L. Godchaux against the Chicago Lumber & Coal Company, in which defendant reconvened for damages. There was a judgment for plaintiff and a rejection of the reconventional demand, and defendant appeals.

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>A. L. Hewitt was convicted of selling liquor without a license, and appeals.</p>

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

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by Mrs. Mary P. Busbey, tutrix, against E. W. Hamiter. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; J. Porter Parker, Judge.</p> <p>Action by Mrs. George Tricou, Curatrix of Mamie Macheca, wife of C. E. Sarrazin, against the Macheca Real Estate & Improvement Company, Limited, and others. From the judgment, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Partition (§ 111*) — Transfer of Lien to Proceeds.</p> <p>On partition sale of property owned in indivisión by plaintiff and his minor children, one-half to him and one-half to them, and on the purchaser’s refusal to accept title under fear that the legal mortgage of the minors, resulting from the inscription in the mortgage office of an abstract of the inventory of the succession of their mother, resting on the plaintiff’s half of the property, may continue to rest thereon, a decree will be entered with plaintiff’s consent compelling acceptance of'title and directing that one half of the sale price be received by plaintiff as the minors’ tutor, and that the other half be invested for the benefit of plaintiff, subject to the minors’ legal mortgage.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 401-418; Dec. Dig. § 111.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Street Railroads (§ 115*) — Operation — 'Personal Injuries — Exemplary Damages. In an action against a street railroad company for the negligence of its motorman, punitive damages are not recoverable.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 115.*]</p>

<p> (Syllalus hy the Court.) </p> <p>Railroads (| 254*)— Operation — Orders or Railroad Commission — Penalty for Violating.</p> <p>Where a railroad company admits its violation of an order of the Railroad Commission requiring all trains to stop 200 feet short of railroad crossings, the burden of proof is on the company to show that the failure to stop was caused by some unavoidable accident. The failure of air brakes to work is not per se an event that cannot be foreseen and provided against in time to avert a collision on a railroad crossing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§ 254*)— Operation — Orders of Railroad Commission — Penalty fob Violating.</p> <p>The order of the Railroad Commission providing that trains must stop within 200 feet of the crossing of another railroad, and, if the view is obstructed, must send a flagman ahead to see that the way is clear, does not make the crew the final judges of whether the view is unobstructed, and where, from a preponderance of the evidence, the court finds that the view was obstructed, it will hold that the failure to send forward a flagman is a violation of the order.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*]</p> <p>2. Railroads (§ 254*) — Operation —Orders of Railroad Commission — Railroad Crossing — Obstructed View.</p> <p>The orders of the Railroad Commission must be reasonably construed, and the question of whether or not the view was obstructed must be ascertained from a reasonable consideration of all the evidence on that point.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Carriers (§ 115*) — Freight—Accrual of Liability.</p> <p>A railroad company is liable for cotton burned on a freight platform at a station where no agent was maintained, where the shipment could have been received on a local freight train which passed the day before the fire, but which did not stop through failure of an agent to give an order.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 501-507; Dec. Dig. § 115.*]</p> <p>2. Carriers (§ 155*) — Freight—Orders of Railroad Commission — Effect.</p> <p>The State Railroad Commission has no jurisdiction over the contractual relations of carriers and shippers, that being a matter on which the Legislature alone can legislate, and a clause in a bill of lading, the form of which was adopted on an order of the commission, in conflict with the general principles of law, is not binding upon a shipper not shown to have expressly or impliedly consented to be bound by such clause.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 677, 679, 682-685, 691-696; Dec. Dig. § 155.*]</p> <p>3.Carriers (§ 10*) — State Railroad ComMISSIO N — PO WERS.</p> <p>Const, art. 284, which authorizes the State Railroad Commission to govern and regulate railroad freight and passenger tariffs and service, merely gives the commission power to see that proper service is rendered, and does not transfer from the Legislature to the commission legislative powers.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 12, 14-20; Dec. Dig. § 10.*]</p>

_ Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge. Action by Lena Huber and others against Mary Huber and others. From a judgment for defendants on exceptions, plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1.Constitutional Law (§ 62*) — Health (§ 3*) — Legislative Powers — Delegation.</p> <p>Under Const, art. 296, authorizing the General Assembly to create a State Board of Health, define its duties, and prescribe its powers, Act No. 98 of 1906, authorizing the State Board of Health to promulgate a Sanitary Code, and making violations thereof a penal offense, is not unconstitutional as a delegation of legislative powers.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62;* Health, Cent. Dig. § 2; Dec. Dig. § 3.*]</p> <p>2. Statutes (§ 38*) — Sanitary Code — Enactment — Promulgation and Publication.</p> <p>Const, art. 42, requiring the publication of statutes in the official journal, applies only to laws passed by the General Assembly, and has no application to a Sanitary Code promulgated by the State Board of Health under legislative authority, although the statute authorizing it gives such code the force and effect of a statute.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 41; Dec. Dig. § 38.*]</p> <p>3. Statutes (§ 145*) — Enactment—Incorporating Other Acts.</p> <p>Act No. 98 of 1906, authorizing the State Board of Health to prepare a Sanitary Code, does not violate Const, art. 33, prohibiting the General Assembly from adopting any system or code of laws by general reference, without reciting their provisions at length.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. § 214; Dec. Dig. § 145.*]</p>

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>Action by Mrs. Julia Le Boeuf against Mrs. Emily Melaneon and others. Application by the defendants for certiorari or writ •of review to the Court of Appeal, Parish of Orleans.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Brokers (§ 94*) — Employment— Scope of Authority.</p> <p>A letter to real estate agents saying, “If you care to try your hand, go ahead. * * * If you can sell, let me know and I will send power of attorney” — is not authority to the agents to enter into a written contract to sell the land to a prospective purchaser, and to thereby bind the owner irrevocably.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 136; D'ec. Dig. § 94.*]</p> <p>2. Brokers (§ 94*) — Employment—Scope of Authority.</p> <p>As the letter did not authorize the agents to bind the owner by a contract to sell, and especially as it did not authorize them to record the abortive contract which they made, the recordation of the contract can have no binding effect.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 136; Dee. Dig. § 94.*]</p> <p>3. Specific Performance (§ 131*) — Release —Transfer of Title.</p> <p>As the right to compel specific performance arises out of an immovable, and is a right in rem, this court has jurisdiction of the subject; and while it may be unable to compel the owner to sign the deed, because he is beyond the jurisdiction of the court, still the decree is sufficient to pass title to the purchaser, even though the vendor does not sign.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 426-435; Dec. Dig. § 131.*]</p> <p>4. Specific Perfobmance (§ 131*) — Evidence — Sufficiency.</p> <p>Although “specific performance” may be the decree when supported by sufficient evidence, to sustain the decree there must be such evidence.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 426-435; Dec. Dig. 131.*]</p> <p>Land, J., dissents.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Landlord and Tenant (§ 231*) — Action fob Rent — Evidence—Sufficiency.</p> <p>In a suit for rent with provisional seizure, evidence 'held to show that plaintiff’s only delay in exacting prompt payment was because of an unwilling and forced indulgence.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 926-934; Dec. Dig. § 231.*]</p> <p>2. Landlord and Tenant (§ 213*) — Rent-Prompt Payment — Waiver.</p> <p>Where a landlord refrains from exacting prompt payment of rent merely because of an unwilling indulgence forced upon him by his tenant, he does not thereby waive his right to be paid his rent promptly.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 846-848, 850, 852, 854, 856, 857-860; Dec. Dig. § 213.*]</p> <p>3. Tender (§ 12*) — Sufficiency—Costs—Interest.</p> <p>Where a tenant executed notes payable monthly for the rent, and the lease stipulated that default in any one of the notes rendered all of the notes due, and that on a suit on the notes lessee should pay an additional 10 per cent., a tender in an action by plaintiff on two unpaid notes is insufficient where it did not include the 10 per cent, interest on the notes, and the costs of the court.</p> <p>[Ed. Note. — For other cases, see Tender, Cent. Dig. f§ 21-28; Dec. Dig. § 12.*]</p> <p>4.Tender (§ 11*) — Deposit in Court — Sufficiency.</p> <p>A tender, to be effective, must be made to the creditor, and not by deposit in court.</p> <p>[Ed. Note. — For other cases, see Tender, Cent. Dig. § 20; Dec. Dig. § 11.*]</p>

<p> (Syllabus by the Court.) </p> <p>Mandamus (§ 138*) — Subjects of Relief— Enfokcement of Contract.</p> <p>The writ of mandamus does not lie to compel corporations, or their board of managers, to perform obligations arising simply from contracts.</p> <p>[Ed. Note. — For other cases, see Mandamus, Gent. Dig. § 272; Dec. Dig. § 138.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Statutes (§ 125*) — Subjects and Titles —Expression oe Subject in Title — Eees oe Officers.</p> <p>According to its title, Act No. 203 of 1898 purports to be an act regulating, fixing, and providing for the collection of the fees and compensation of sheriffs, clerks, recorders, justices of the peace, constables, and coroners “in civil matters,” and “fixing” the fees of sheriffs “in criminal matters”; and, there being no intimation of any purpose to deal with the_ question of the collection of the fees of sheriffs in criminal matters, the provisions on that subject in the body of the act are broader than, and unwarranted by, the title, and in that respect the act contravenes so much of article 31 of the Constitution as provides that all laws shall express their objects in their titles.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 187-191; Dec. Dig. § 125.*]</p> <p>2. Sheriffs and Constables (§ 71*) — Liabilities— Collections.</p> <p>The provision of Act No. 203 of 1898, purporting to authorize sheriffs to retain from their monthly settlements of moneys collected by them for their respective parishes the amounts of their approved bills, being unconstitutional, the police jury of a parish is entitled to judgment against the sheriff for any amount so retained.</p> <p>[Ed. Note. — Eor other cases, see Sheriffs and Constables, Cent. Dig. § 98; Dec. Dig. § 71.*]</p> <p>3. Courts (§ 224*) — Appellate Jurisdiction —Amount in Controversy.</p> <p>In a suit by a police jury for the recovery of an amount of money in excess of $2,000 alleged to have been unlawfully retained by the sheriff in payment of his bills against the parish, the fact that the statute upon which the sheriff relies is held by the district court to be constitutional does not affect the appellate jurisdiction of this court, which is determined by the amount in dispute.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 487, 608, 609, 614, 616, 617; Dec. Dig. § 224.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>Action by Chas. E. and W. F. Peck, Limited, against the Southwestern Lumber & Exporting Company; the Sabine Tram Company intervening. Judgment for intervener, and defendant appeals.</p>

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of East Feliciana; George J. Woodside, Judge.</p> <p>Action by J. N. Anglin against James and Charles Kilbourne. On opposition of the Bank of West Feliciana. From a judgment for plaintiff, the opposing defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Courts (§ 224*) — Appellate Jurisdiction-Transfer of Cause.</p> <p>There is an issue of which the Supreme Court has jurisdiction and issues of which the Court of Appeal has jurisdiction. The former decides the issue as relates to the alleged simulation. As relates to the other issues, they are transferred to the Court of Appeal, if application be made for the transfer; otherwise, the appeal dismissed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. 487, 60S, 609, 614, 616, 617; Dee. Dig. § 224.’=]</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 234*) — Injuries to Servant — Defective Appliances.</p> <p>In order to charge an injured party with contributory negligence, it must be first shown that he should reasonably have apprehended the danger which threatened him. If a workman on a bridge, who has no reason to believe that its construction is faulty, aids in lowering it, and while so doing is injured because of its defects of construction, he cannot be charged with negligence.</p> <p>[Ed. Note. — Por other cases, see Master and Servant Cent. Dig. §§ 684-686, 706-709; Dec. Dig. § 234.*]</p> <p>2. Master and Servant (§ 265*) — Injuries to Servant — Contributory Negligence.</p> <p>Contributory negligence is a matter of fact, which must be proved by evidence, and where a master alleges that the servant had reason^ to apprehend the danger, or was warned of it, and did not heed it, the master must prove, by a preponderance of the evidence, such knowledge, or such warning, jn order to escape the liability for his own negligence. .</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 877-90S, 955; Dec. Dig. § 265.*]</p> <p>Ó. 1NEGLIGENCE (§ 15**) — CONCURRENT NEGLIGENCE — LIABILITY in Solido.</p> <p>The negligence of two persons or corporations may concur to produce an injury, and, where it does, both may be liable in solido.</p> <p>[Ed. Note. — Por other cases, see Negligence, Cent. Dig. § 18; Dec. Dig. § 15.*]</p> <p>4. Master and Servant (§ 318*) — Independent Contractor.</p> <p>Where the owner maintains control over any particular part of the work, the contractor is not an independent contractor.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.]</p> <p>5. Appeal and Error (§ 169*) — Review— Questions Not Raised Below.</p> <p>This court cannot consider on appeal questions that have not been passed upon by the district court, and as the question of liability, as between the defendants, was not passed on below, it will not now be decided by this court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. § 169.*]</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Henry Mayer, Judge ad hoc.</p> <p>Action by Moorman & Givens against John R. Parkerson. Erom the judgment, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Florence Cartwright against the New Orleans Railway & Light Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1.Arpeal and Error (§ 361*) — Motion of Appeal — Sufficiency .</p> <p>Where 'a motion of appeal reads “James Legendre, Edward Rightor, Denegre and Blair and Leovy, counsel for defendant, and aver that the judgment rendered is contrary to the law and the evidence, and that the mover desires to appeal,” it is held that the word “mover,” being in the singular number, cannot refer to several attorneys, and must therefore refer to the defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1941-1959; Dec. Dig. § 361.*]</p> <p>On the Merits.</p> <p>2.Master and Servant (§ 235*) — Injury to-Servant — Knowledge of Defects.</p> <p>A mechanic hired to keep a hotel -elevator in good running order has no standing to complain of minor defects in the machinery which it was his duty to discover and repair.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. § 235.*]</p> <p>3. Master and Servant (§ 238*) — Injury to Servant — Assumption of Risk.</p> <p>A mechanic engaged in the work of greasing the slides of a hotel elevator unnecessarily assumed an unsafe position on the cross-head of the car, and was mortally injured by reason of being jammed between the top of the car and the ceiling of the shaft. Held, that the employer was not responsible in damages.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. § 23S.*]</p> <p>4. Master and Servant (§ 177*) — Injury to Servant — Negligence of Fellow Servant.</p> <p>Wh-ere a mechanic hired to keep a hotel elevator in good running order was assisted by an elevator boy, who was subject to his orders, for the purposes of the work in hand, held, that the mechanic was a vice principal, or at least a fellow servant, and could not recover-damages from his employer for an injury occasioned by the contributory negligence of his. assistant.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. § 177.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mrs. Fannie Aaron, wife of Dr. Herbert White, against Dr. Henry Bayon. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Brokers (§ 86*) — Compensatory Actions — Evidence.</p> <p>In an action by a broker for a commission for making a sale, evidence held insufficient to support a judgment in his favor not showing that he arranged the sale.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 116-120; Dee. Dig. § 86.*]</p>

<p>(Syllabus by the Oourt.)</p> <p>Drains (§ 67*) — Drainage Bonds — Levy oe Taxes.</p> <p>Under the provisions of article 281 of the Constitution as amended in the year 19101 (Act No. 197 of 1910), a special tax or contribution voted to secure the payment of negotiable bonds issued- by any drainage district must be levied each year by the board of commissioners, and the amount of the levy must be determined by the amount payable each year under the terms of the contract for the bond issue. A levy, in advance, of the full tax for the full term_ of years, is contrary to the constitutional requirement.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 73, 76, 91; Dec. Dig. § 67.*]</p>

Chretien, Judge. Rene Canton and another were accused of murder, and, from a verdict finding defendant Rene Canton guilty, he appeals.

Bernard; R. Em-met Hingle, Judge. Suit by John Klees and another against the Police Jury of the Parish of St. Bernard. From a judgment for defendant dissolving an injunction, plaintiffs appeal.

Action by 6. H. Latta against the New Orleans & Northwestern Railway Company. Application by the defendant for certiorari or writ of review to the court of appeal, parish of Ouachita.

<p>Application by Joseph H. Gomilla for writs of habeas corpus and certiorari.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by the Louisiana & Arkansas Railway Company against the Winn Parish Lumber Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Action by Mrs. Carmelite Pons, wife of George A. Louque, against the Yazoo & Mississippi Valley Railroad Company and others. From a judgment for defendants, plaintiff appeals.</p>

H. Couvillon, Acting Judge. Contest by James Andrews of the nomination of Wilbur F. Blackman at the primary election for the judgeship of the Thirteenth judicial district. From a judgment for the defendant, plaintiff appeals.

Separate proceedings by the State, on the relation of Charles W. Rossner, of John B. Danenhauer, of L. H. Marrero, Jr., of Leo A. Marrero, and of Prentice E. Edrington, to contest a primary election. Application by Fred A. Middleton and Paul Berthelot, defendants, for writs of prohibition and certiorari.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; E. K. Skinner, Acting Judge.</p> <p>Action by Louis H. Marrero, Jr., against Fred. A. Middleton and others. From the judgment, defendants' appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 224*) — Supreme Courts — Jurisdiction.</p> <p>The control and general supervision over all inferior courts vested by article 94 of the Constitution in the Supreme Court is both a plenary and a discretionary power, the exercise whereof must depend upon the features of each individual case.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p> <p>2. Agriculture (§ 13*) — Liens—Effect of Severance of Crops.</p> <p>The privilege granted by C. C. art. 3217, upon the crops of the year for necessary supplies, ceases when the things upon which it rests cease to be crops. The purchaser of agricultural products from the planter buys them subject to any crop liens that may rest upon them; but, when such purchaser sells them, they enter the channels of trade, and become merchandise.</p> <p>[Ed. Note. — For other cases, see Agriculture, Cent. Dig. §§ 31-37; Dec. Dig. § 13.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 32*) — Judicial Notice.</p> <p>Courts do not take judicial cognizance of city ordinances.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 42; Dee. Dig. § 32.*]</p> <p>2. Master and Servant (§ 137*) — Injuries to Servant — Liability oe Master.</p> <p>Civ. Code, art. 177, does not apply to damages to a workman engaged in the construction of a building.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*]</p> <p>3. Dismissal and Nonsuit (§ 26*) — Joint Tort-Feasors — Discharge oe One.</p> <p>When suit has been brought in solido against tort-feasors, plaintiff may discharge one of them with reservation of his rights against the remaining defendants.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 46, 48-59; Due. Dig. § 26.*]</p>

<p>Application for writs of certiorari and prohibition by John L. Collins for his discharge from the state penitentiary under a sentence.</p>

F. Brunot, Judge. Suit by the Louisiana Railway & Navigation Company against the Railroad Commission of Louisiana to restrain enforcement of an order fixing the rates on petroleum in less than car load lots. From a judgment of dismissal, plaintiff appeals.

John Williams was indicted for crime. J. H. Pugh, his attorney, was sentenced to prison for contempt of court, and applies for writs of certiorari, prohibition, and habeas corpus.

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

M. Burns, Judge. Action by Annie L. Gann, individually and natural tutrix, against the Great Southern Lumber Company and others. Judgment for defendants, and plaintiff brings error.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thos. M. Burns, Judge.</p> <p>Action by Annie L. Gann, tutrix of Claude Gann, against the Great Southern Lumber Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Action by George W. Seal against the Great Southern Lumber Company and others. Judgment for defendants, and plaintiff appeals.</p>

Action by John Percy Richard against M. L. Swords, Sheriff, and others. Judgment for defendants, and plaintiff applies for writs of certiorari, prohibition, and mandamus.

Action by Emile Sunbery against Chauffe Bros, to foreclose. Diebert, Bancroft & Ross Company, Limited, bankrupts, and others, intervene, and certain property was adjudicated to Sunbery, and certain personalty to Diebert, 'Bancroft & Ross Company and another. From an order refusing to permit the Bertie Sugar Company to dissolve plaintiff’s injunction on bond, the Bertie Sugar Company applies for a writ of mandamus.

Action by Paul Lewis, Jr., and others, against J. R. and W. M. Harvey, with Mrs. M. A. Jack and others as warrantors. From a judgment for defendants, plaintiffs appealed to the Court of Appeal., The Court of Appeal ordered the case transferred to the Supreme Court, and the plaintiffs apply for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander (§ 140*) — Slander op Title — Judgment.</p> <p>Where, in a jactitation suit, plaintiff, alleging possession under title, prays that defendant be ordered to assert whatever title he may rely on, or disclaim title, and that he be enjoined from making any further claim of ownership, and defendant, setting up possession in himself, under a title translative of property, emanating from plaintiff, prays that he be quieted in his possession, and that plaintiff’s suit be dismissed, a judgment, passing upon the validity of the respective titles, and perpetually enjoining defendant “from making any further claim of ownership to” the property in dispute, is unauthorized.</p> <p>[Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. § 140.*]</p> <p>2. Mortgages (§ 608%*) — Libel and Slander (§ 140*) — Redemption prom Mortgage-Action to Redeem — Evidence—Jactitation Suit — Title op Plaintipp.</p> <p>A person who has executed an instrument purporting to be an act of sale of real estate may bring a direct action to have it decreed to be in effect an act of mortgage, and in support of such action may introduce in evidence a counter letter, whereby the vendee agrees to reconvey the property on certain conditions, and oral testimony of his continued possession and of the inadequacy of the price; but the character of the transaction, and the question whether the act was intended as a sale or a mortgage, can be determined only after a hearing, and, even though it be found that it was intended as a mortgage, the inscription of the instrument can be canceled only on payment of the debt secured by such mortgage. But such person has no right to assume that an instrument executed by him and purporting to be an act of sale, will be held to be other than as it purports, and, upon the basis of such assumption, further assume the position of plaintiff in an- action of jactitation, since, upon the face of the papers, he cannot be heard to set up in himself a possession adverse to the peaceable possession which, as against his own acts, even by an instrument under private signature, he has warranted his apparent vendee.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1815; Dec. Dig. § 608%;* Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. § 140.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Deeds (§ 92*) — Construction—Statutory Provisions.</p> <p>An instrument purporting to be a sale by an act under private signature, duly recorded, of immovable property, is to be interpreted in accordance with Civ. Code, arts. 1920, 2242, 2442, 2476, 2479, 2504, relating to public act transferring immovables and the tradition or delivery of such immovables.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 230; Dec. Dig. § 92.*]</p>

Action by the Police Jury of the Parish of Jefferson against the Westwego & Walnut Street Ferry Company. A plea to the jurisdiction was overruled, and defendant applies for writ of prohibition, directed to Prentice E. Edrington, Judge of the District Court.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Elections (§ 154*) — Primary Elections — ! Contests — Evidence—Admissibility.</p> <p>In a primary election contest, evidence attacking collaterally the. registration of particular voters as to qualifications necessary for registration is admissible, and a candidate does not lose his right to object to illegal votes merely because he did not challenge the voters at the polls; but he may prove that voters were not entitled to vote because they had not paid their poll taxes, or were nonresidents, or were not registered.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 136; Dee. Dig. § 154.*]</p> <p>2. Elections {§ 154*) — Primary Elections— Registration Rolls — Oonclusiveness.</p> <p>In the absence of challenges or other proceedings prior to a primary election to have the names erased from the registration rolls of voters legally registered, the registration rolls are binding on the courts in an election contest.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>3. Elections (§ 154*) — Primary Elections —Contests—Evidence—Admissibility.</p> <p>Where, in a primary election contest, it appeared that the ballot boxes had been tampered with the court properly accepted the returns made by the election officers, though under ordinary circumstances the ballots constitute the best evidence of the votes.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>4. Elections (§ 154*) — Primary Elections— Contests — Qualification of Voters.</p> <p>Under the Constitution, defining the qualifications for suffrage, and article 215, requiring the Legislature to secure fairness in primary elections, and Act No. 49 of 1906, providing that the qualifications of voters in primary elections shall be the qualifications required by the Constitution and election laws for voters at general elections, subject to additional political qualifications prescribed by the state central committee, and Act No. 98 of 1908, requiring the precinct register in the registration office in the parish of Orleans to contain the color and party affiliation of the registered voters, and requiring the registrar of voters to provide an additional space on the regular registration book, headed “Party Affiliation,” the color of a person has nothing to do with the validity of his registration, and his registration as a white Democrat will not prevent a candidate in a primary election from contesting the validity of the vote of a colored person, who has voted as a white Democrat; the state central committee prescribing that only white Democrats shall vote at a Democratic primary.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Elections (§ 154*) — Primary Elections— Contest — Evidence.</p> <p>The court in a primary election contest may not deduct from the votes cast for the opposing candidate votes cast by persons who had not paid their poll taxes, or who were nonresidents, unless the evidence shows that they voted for such candidate; and where only one of several persons wrongfully denied the right to vote showed that, had he been permitted to vote, he would have voted for one of the candidates, only one vote may be added to such candidate’s count.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>2. Elections (§ 154*) — Peimaey Elections— Contest — Evidence.</p> <p>Where, in a suit to contest a Democratic primary election, it was claimed that one not affiliated with the Democratic party voted, but his name was not given in the argument, nor mentioned in the pleadings, and the court could not find any reference to him in the record, a deduction of a vote would not be allowed.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Constitutional Law (§ 23*) — Construction of Statute.</p> <p>The constitutionality of a law is to be tested by the Constitution which was in force when the law was passed. Homer v. Blackburn, 27 La. Ann.'544; 8 Cyc. p. 768.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 20; Dec. Dig. § 23.*]</p> <p>2. Constitutional Law (§ 23*) — Void Act —Ratification.</p> <p>An unconstitutional, null, and void act at the time of its passage cannot be given validity and effect by the adoption of a new Constitution, or an amendment of the old Constitution, - where the act is not referred to.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 20; Dec. Dig. § 23.*]</p> <p>3. Constitutional Law (§ 23*) — Retrospective Eeeect.</p> <p>A Constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. Cooley’s Constitutional Limitations, p. 97; Mayor, etc., v. Blackburn, 27 La. Ann. 544; City v. Vergnole, 33 La. Ann. 35; Pecot et al. v. Police Jury, 41 La. Ann. 706, 6 South. 677; State ex rel. Recorder v. Judge, 50 La. Ann. 658, 23 South. 886; Succession of William Parham and Wife, 51 La. Ann. 983, 25 South. 947, 26 South. 700; State ex rel. Hart v. City, 51 La. Ann. 914, 25 South. 951.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 20; Dec. Dig. g 23.*]</p> <p>4. Mines and Minerals (§ 86*) — What are Minerals —Oil and Gas — “Minerals” — “Mining Pursuit.’”</p> <p>The Legislature has now classed oil and gas among minerals of this state; and persons engaged in producing these minerals are following a mining pursuit. Act No. 144 of 1908; Act No. 154 of 1910; Act No. 172 of 1910; Act No. 196 of 1910; Act No. 254 of 1910.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 216-221; Dec. Dig. § 86.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4513-4515; vol. 8, p. 7722.]</p>

Election contest by Commodore Perry Thornhill against George Wear. From an order overruling defendant’s exceptions in part to plaintiff’s order requiring defendant to answer the contest petition, and directing defendant to answer, he brings prohibition and certiorari.

<p> (Syllabus by the Court.) </p> <p>1. Tenancy in Common (§ 28*) — Liabilities op Minor» — Rent—Co-Owners.</p> <p>Where a minor resides with his mother in a house in which he owns an undivided part, he is not responsible to the co-owner for rent for the latter’s share of the house. If any one is responsible, the mother of the minor is Hable for the rent.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 76-88; Dec. Dig. § 28.*]</p> <p>2. Minors — Liability por Rent.</p> <p>A minor ca.nnot be charged with rent, when it would have to come out of his capital, in the absence of an order of court permitting his tutor to make a contract which will diminish his capital.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 116-135; Dec. Dig. § 30.*]</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; W. R. Percy, Special Judge.</p> <p>Lewis Haskell was convicted of murder, and appeals.</p>

<p>Appeal from Second Judicial District Court, Parish of Bossier; J. N. Sandlin, Judge.</p> <p>Walter and Oscar Majors were convicted of larceny, and appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Divorce (§ 209*) — Alimonx.</p> <p>A wife, who is made defendant in a suit ■brought by her husband for a separation from bed and board on the ground of abandonment, and who, in her answer, reconvenes and claims a judgment for separation from bed and board from her husband on good and sufficient grounds, is entitled to claim alimony in the pending suit.</p> <p>[Ed. Note. — For other cases, see Divorce, ■Cent. Dig. §§ 605-609; Dec. Dig. § 209.*]</p>

<p> (Syllabus by the OourtJ </p> <p>Taxation (§§ 138, 424*) — Nonresident In- • surance Companies — Property Subject.</p> <p>An assessment, under section 7 of act No. 170 of 1898, of the capital employed by a nonresident insurance company in the transaction of, its business in the state of Louisiana, does not embrace isolated mortgage loans made directly by the company to residents of this state, not policy holders, out of general surplus funds, which have never been in the possession or under the control of the company’s agents in this state. If such loans, represented by notes payable to the company at its domicile in another state, were taxable in 1906, they should have been assessed separately as mortgage securities.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 244-246, 716; Dec. Dig. §§ 138, 424.*]</p>

Action by John W. Montgomery against the Continental Casualty Company. Judgment of the Court of Appeal in part for plaintiff, and he applies for certiorari or writ of review to review such judgment.

<p> (Syllabus by the Court.) </p> <p>Í, Prescription — Law of the Case —Appointment of Judge Ad Hoc.</p> <p>The question of prescription was decided on application for a writ of prohibition and certiorari. The decision lays down the law on that particular point in so far as this case is concerned. A judge ad hoc was appointed at as early a date as possible, and the case proceeded with.</p> <p>2. Elections (§ 154*) — Primary Elections —Contest—Prescription.</p> <p>The answer and the reconventional demand are considered as having been timely filed.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>3. Statutes (§ 125*) — Subjects and Titles —Expression of Subject in Title.</p> <p>Act 198 of 1912 is constitutional, as the act is not subject to the constitutional objection of being broader than its title.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 187-191; Dec. Dig. § 125.*]</p> <p>4. Elections (§ 126*) — Primary Elections— Ballots.</p> <p>The law provides that in a primary election the ballots shall be furnished by the Secretary of State, and “shall be printed upon white paper, and each ballot shall contain a detachable slip which shall be handed to the voter.” This provision is mandatory, and no other kind of ballot shall be counted in an election.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 118; Dec. Dig. § 126.*]</p> <p>5. Elections (§ 154*) — Primary Elections— Contests.</p> <p>In a contested primary election, the ballots are the best evidence, and the court should open the ballot boxes, when necessary, if the issues as presented so justify.</p> <p>[Ed. Note. — For other cases, see Elections. Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>6. Statutes (§ 109*) — Titles—Sufficiency.</p> <p>The title of a statute need not mention the means by which it is intended to accomplish a general purpose; and, if the title does not mislead and is not such as to take one by surprise, it may be good, though not as ample as it might be.</p> <p>I Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 136-139; Dec. Dig. § 109.*]</p> <p>7. Elections (§ 154*) — Primary Elections— Contest — Pleading.</p> <p>In a contest for office, the pleader should allege with some particularity all of his 'grounds, whether he is originally plaintiff or plaintiff in reconyention.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>8. Elections (§ 154*) — Primary Elections— Contest — Pleading.</p> <p>In a contest of a primary election, the pleading of the contestant should allege not only^ the number of illegal votes cast, but should al-' lege by whom they were cast, and the reason, as applied to each vóter, that his ballot was not legal.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p> <p>9. Elections (§ 154*) — Primary Elections— Contest — Pleading.</p> <p>In a contest of a primary election, the contestant need not make his allegations as to ballots cast without detaching the slips as specific, as is required in the ease of illegal ballots.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 136; Dec. Dig. § 154.*]</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Lucius Quinn was convicted of bribery, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the Quaker Realty Company, Limited, against Edward H. Purcell. From a judgment for defendant, plaintiff appeals.</p>

Théard, Judge. In the matter of the succession of Mrs. Juana Rosa Suarez, widow by first marriage of Nicholas G. Lopez, and wife by second marriage of Jeronimo S. Garcia. From the judgment, B. G. Carbajal, tutor, appeals.

Sommerville, Judge. In the matter of the succession of Mrs. Joseph Waechter, and the succession of Joseph Waechter. From the judgment, the executors and Arthur J. Waechter and another individually appeal.

Action by the Central Glass Company, Limited, against the Niagara Fire Insurance Company of the City of New York. On appeal to the Supreme Court from a judgment for plaintiff, the case was sent to the Court of Appeal, which certifies certain questions to the Supreme Court.

<p>. Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Wilford J. Simon was indicted for murder and convicted of manslaughter, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 683*) — Witnesses (§ 268*) -Cross-Examination — Rebuttal.</p> <p>Where defendant is charged with breaking and entering a dwelling in the nighttime, armed with a dangerous weapon, with intent to commit murder and with an assault upon, by actual shooting of, an inmate of the house, and endeavors to establish an alibi, a witness who has testified, in chief, to his presence at another .place at the time the alleged offense was committed, may properly be cross-examined as to his (defendant’s) whereabouts during the day preceding that time; the latitude to be allowed in such cases being largely within the discretion of the trial judge. And, where in such case defendant has introduced testimony to show his whereabouts during the day preceding the night when the offense was committed, the state may introduce rebutting evidence on that point.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 1615-1617; Dec. Dig. § 683;* Witnesses, Cent. Dig. §§ 931-948; Dec. Dig. § 268.*]</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Penelope J. Linnan against Michael L. Linnan. From the judgment, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Adverse Possession (§ 114*) — Prescription — Evidence—Sufficiency.</p> <p>Evidence held to show that the entire river front of three sections had been continuously and uninterruptedly in the actual peaceable possession of the present occupants and their authors in title for more than 40 years, so that the prescription of 10 and 30 years was established.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682-683, 685, 6S6; Dee. Dig. § 114.*]</p> <p>2. Tenancy in Common (§ 13*) — Joint Ownership.</p> <p>Where one and his heirs possessed land under title calling for a joint ownership, their possession was in accordance with their title, and was not for themselves exclusively, but for themselves and their cotitularies.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 28, 29; Dec. Dig. § 13.*]</p> <p>3. Taxation (§ 788*) — Tax Title — Validity.</p> <p>A tax title, made prima fade valid by statute and the Constitution, must be given effect until some person who has standing for contesting it, either because of legal title acquired from the former owner or by prescription, or because of his rights resulting from mere possession attacks it.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1555, 1557, 1559-1569; Dec. Dig. § 788.*]</p> <p>4. Adverse Possession (§ 97*) —Extent of Possession — Color of Title.</p> <p>The principle that possession of a part of a tract is possession of the whole applies when the possession has been under title calling for the whole, and does not apply where the possession has been without title, in which case the possessor cannot acquire by prescription beyond the limits of actual occupancy.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 537-541; Dec. Dig'. § 97.*]</p> <p>5. Taxation (§ 730*) — Tax Sales — Title” Acquired.</p> <p>Where a tax sale, under which plaintiff in a petitory action claims, was one for an undivided half interest in every part of a tract, plaintiff could recover no greater interest in a part merely because the half interest in another part had been cut off by prescription.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1463; Dec. Dig. § 730.*]</p> <p>6. Real Actions- (§ 7*) — Petitory Actions— Title of Plaintiff.</p> <p>A plaintiff in a petitory action must recover on the strength of his own title, and not on the weakness of that of his adversary.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 21-25; Dec. Dig. § 7.*]</p> <p>7. Eminent Domain (§ 288*) — Rights Acquired — Prescription.</p> <p>A railroad company, acquiring title by expropriation proceedings, is protected by the prescription of two years.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 783-788; Dec. Dig. § 288.*]</p> <p>8. Eminent Domain (§§ 69, 268, 317*) — Appropriation — Possession—Effect.</p> <p>Where a railroad company went into possession by consent of the persons in possession and apparent owners, and without objection from a third person claiming ownership, and constructed and operated a commercial road, it could not be disturbed in its possession, and as against the third persons having title it acquired only a servitude, for which it must make compensation.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 171-179, 697, 736-740, 742, 834^840; Dec. Dig. §§ 69, 268, 317.*]</p> <p>9. Real Actions (§ 8*) — Petitory Actions— Recovery — Improvements.</p> <p>Where defendants, possessed of land in good faith, are evicted by plaintiff maintaining a petitory action, they are entitled to the value of their improvements in the proportion in which they are evicted.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 26-35; Dec. Dig. § 8.*]</p> <p>10. Appeal and Error (§ 175*) — Questions Review able — Question Not Raised in Trial Court.</p> <p>A question of fact, not tried in the lower court, cannot be considered in the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1137-1140; Dec. Dig. 175.*]</p> <p>11. Taxation (§ 788*) — Tax Sales — Deeds— Recitals — Conclusiveness.</p> <p>A recital in a tax deed that the tax collector mailed a notice to each of the tax debtors must, under the statute and Constitution, making tax- sales prima facie valid, be taken as true until disproved.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1555, 1557, 1559-1569; Dec. Dig. § 788.*]</p> <p>12. Taxation (§ 764*) — Tax Sales — Description op Property.</p> <p>A description of property sold for taxes as “section 38, T. 1 N., R. 7 E.,” “3/4 interest in section 39, T. 1 N., R. 7 E.,” and “a half interest in section 40, T. 1 N., R. 7 E.,” is sufficient to sustain a sale.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1519-1522; Dec. Dig. § 764.*]</p> <p>13. Taxation (§ 734*) — Tax Sales —Validity.</p> <p>Where the taxes for the payment of which a tax sale is made have been paid, no matter by whom, the tax sale is null.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1408, 1470-1473; Dec. Dig. § 734.*]</p> <p>On Rehearing.</p> <p> (Syllabus by the Oourt.) </p> <p>14. Appeal and Error (§ 1118*) — Reversal.</p> <p>On appeal, the judgment cannot be reversed or amended as between the appellees.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3296, 4414; Dec. Dig. 1118.*]</p> <p>15. Appeal and Error (§" 749*) — Procedure —Answer—Amendment op Judgment.</p> <p>Where an answer to the appeal, praying for an amendment of the judgment was not filed at least three days before the day fixed for the argument of the cause, it will not be considered. C. P. art. 890; Act No. 103 of 1908.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3065-3073; Dec. Dig. § 749.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by James Giarruso against the New Orleans Railway & Light Company. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Negligence (§ 80*) — Contributory Negligence — Effect.</p> <p>One who is injured through his own negligence has no just cause of complaint against another.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 84, 85; Dec. Dig. § 80.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Master and Servant (§ 281*) — Injuries to Servant — Evidence.</p> <p>In an action for injuries to a servant, evidence held conclusive that plaintiff’s own negligence in failing to bolt a purlin to a truss on a bridge was the cause of his injury.</p> <p>[Ed. Note. — For other cases, see Master and 'Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; W. B. Sommerville, Judge.</p> <p>Action by Alexander Mouton for the liquidation of the partnership of George Sarpy & Co. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Marriage (§ 54*) — 'Validity— Signature to Prooés Verbal.</p> <p>A marriage duly celebrated is not null because the wife, from disability or other cause, failed to sign the proces verbal.</p> <p>[Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 93-103, 105, 106, 109; Dec. Dig. § 54. *1</p> <p>2. Bastards (§ 13*) — Marriage (§ 54*)— Validity of Marriage — Evidence of Legitimacy.</p> <p>The heirs of the husband cannot assail his marriage with a former wife on the ground of her want of consent, where the certificate recited her free and verbal consent, and was signed by the husband. The recognition of children by a testator in his last will as born of his second wife creates a strong- presumption of their legitimacy; and his declaration that they were recognized in acts of baptism before marriage must be taken for true, in the absence of contrary evidence.</p> <p>[Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 16, 17; Dec. Dig. § 13 ;* Marriage, Cent. Dig. §§ 93-103, 105, 106, 109; Dec. Dig. § 54.*]</p> <p>3. Bastards (§ 6*) — Evidence of Legitimacy —Sufficiency.</p> <p>Held, on the evidence, that the plaintiffs parents were white persons, and that he, having been acknowledged by them, was legitimated By their marriage in the year 1853.</p> <p>[Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 9, 10; Dec. Dig. § 6.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4. Tenancy in Common (§ 20*) — Tax Salespersons Entitled to Purchase — Co-Owners.</p> <p>A woman in possession of property as usufructuary and joint owner being bound in law for the taxes, her purchase of the land from the state was, as to heirs at law, a mere payment of the taxes.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 60, 61; Dee. Dig. § 20.*]</p>

F. Brunot, Judge. Action by Pearl Courtney, individually and as tutrix, against the Louisiana Railway & Navigation Company and others. From a judgment sustaining an exception of the Louisiana Railway & Navigation Company, plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by M. W. Bayliss against the Grand Lodge of the State of Louisiana. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Twenty-Fourth Judicial District Court, Parish of East Feliciana; George J. Woodside, Judge.</p> <p>Cleveland Land was convicted of crime, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action by Estelle Tureaud against the City of New Orleans and another. From a judgment for plaintiff, defendant Sewerage and Water Board appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thos. F. Bell, Judge.</p> <p>Harry Harris was convicted of manslaughter, and he appeals.</p>

Action by Leon Doiron, for the use of Walter Doiron, his son, against the Baker-Wake-field Cypress Company, Limited. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Samuel J. Henry, Judge.</p> <p>Action by A. S. Cassady against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>Action between Ella M. Warren and others and Robert R. Perkins, tutor, and others. From the judgment, Perkins appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1091*) — Bill of Exceptions — Allowance.</p> <p>Where, in a criminal case, the defendant relies for the proper presentation to this court of points of law reserved by him upon the recitals in his bill of exception, to the effect that the evidence adduced tended to prove certain facts, the trial judge, if he intends to deny, in toto, the verity of such recitals should so express himself; but for him to say in general terms that the recitals are “not entirely correct and some of the parts thereof set forth certain facts not introduced in evidence in the case” is neither to deny nor admit any specific averment of the bill, and to leave this court of necessity to accept them all as true, since we have no means of distinguishing between them, and no reason for rejecting any one of them which is not denied or questioned.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]</p> <p>2. Threats (§ 8*) — Sending Threatening Letter — Construction.</p> <p>Where in a letter which serves as the basis for a prosecution under Act No. 110 of IOC'S, the language, charged as conveying a threat, within the meaning of that statute, appears, upon its face and when considered in connection with evidence adduced as to the relations which subsisted between the sender and the recipient and as to the surrounding circumstances, to be susceptible of more than one interpretation, the trial judge should charge the jury with reference to the case as thus presented, and especially that in case of doubt as to the correct interpretation of such language the accused is entitled to the benefit of the interpretation most consonant with the theory of a lawful purpose on his part and of his innocence of the offense charged.</p> <p>[Ed. Note. — For other cases, see Threats, Cent. Dig. §§ 10, 33; Dec. Dig. § 8.*]</p> <p>3. Threats (§ 1*) — Institution of Civil Proceedings — Statutes.</p> <p>A threat to institute a civil proceeding for the recovery of money claimed as due does not fall within the meaning of Act No. 110 of 1908; but a threat to do the things, or any of them, mentioned in that statute, with intent to extort money, whether claimed as due or not, does fall within its meaning.</p> <p>[Ed. Note. — For other cases, see Threats, Cent. Dig. §$ 1-6; Dec. Dig. § 1.*]</p> <p>4. Threats (§ 1*) — Warning—Instructions.</p> <p>Where, in a letter which serves as the basis of a prosecution under Act No. 110 of 1908, the language charged as conveying a threat within the meaning of the statute is susceptible of the construction, that it was intended as a warning against what another person might do, rather than as a threat of what the writer intended to do, the jury should be instructed that there is a difference between such warning and the threat contemplated by the statute.</p> <p>[Ed. Note. — For other cases, see Threats, Cent. Dig. §§ 1-6; Dec. Dig. § 1.*]</p> <p>5. Criminal Law (§ 789*) — Instructions— Reasonable Doubt.</p> <p>The charge to a jury: “If you are satisfied and convinced from the evidence of the guilt of the accused beyond a reasonable doubt, your duty is to find the accused guilty as charged; and, on the other hand, if you are satisfied and convinced beyond a reasonable doubt that the accused is not guilty of the offense charged against him, it is your duty, as well, to say so by your verdict, and acquit him” — implies, on the one hand, that the burden is upon the state in order to obtain a conviction to establish the guilt of the accused beyond a reasonable doubt, and, upon the other hand, that the burden is upon the defendant, in order to obtain an acquittal, to establish his innocence, beyond a reasonable doubt, which is, to say the least, confusing and objectionable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.*]</p>

Action by F. M. Hearne against the Victoria Lumber Company, Limited. Judgment for defendant was affirmed in tbe Court of Appeal, and plaintiff applies for certiorari or writ of review.

<p> (Syllabus by Editorial StaffJ </p> <p>Costs (§ 129*) — Exemption from Costs— Statutory Provision.</p> <p>Act No. 156 of 1912, dispensing litigants from paying costs when, unable to do so by reason of poverty, does not apply to cases in which at its adoption the party claiming its benefit had already appeared by some pleading.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 496; Dec. Dig. § 129.*]</p>

Théard, Judge. In the matter of the liquidation of the Ellington Planting Company, Limited. From the judgment, A. G. Ricks, trustee for the creditors of John Barkley & Co., appeals.

<p>Appeal from Fourth Judicial District Court, Parish of Union; R. B. Dawkins, Judge.</p> <p>Suit by Wiley Anderson and others against Mollie Shaw and others for partition by Imitation. From the judgment, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1.Judgment (§ 452*) — Right to Sue — Interest in Subject-Matter.</p> <p>Where one sues for the annulment of a judgment wherein he was defendant, and the evidence shows that he has no interest in the property or the thing covered by said judgment, his suit will be dismissed. Article 345, Code Prac.; Cure v. Porte, 18 La. Ann. 456; Weller v. Van Hoven, 42 La. Ann. 600, 7 South. 702.</p> <p>{Ed. Note — For other cases, see Judgment, Cent. Dig. §§ 791, 792, 856, 857; Dec. Dig. § 452.*]</p> <p>2. Judicial Sales (§ 52*) — Validity—Vacation-Presumption.</p> <p>“The sale of the property of another is certainly null, where the parties know at the time of the sale that they are buying and selling that which does not belong to them; but where they were ignorant of it, as in this case, the subsequent discovery of the fact only confers the right on the buyer to support the judgment and demand security. The sale here was certainly not null, for the prescription of ten years could have been pleaded on it.” Denis v. Clague, 7 Mart. (N. S.) 96.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 100-103; Dec. Dig. § 52.*]</p> <p>3. Judicial Sales (§ 52*) — Subsequent Title by Vendor — Efeect.</p> <p>“Though the sale of another’s property be null, yet the vendor’s subsequent acquisition of title vests it at once in the vendee, who cannot afterwards sue for a rescission.” Hennen’s Digest, “Sale,” 1, (c), p. 1325.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 100-103; Dec. Dig. § 52.*] Provosty, J., dissenting.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu ; Winston Over-ton, Judge.</p> <p>Action by the Town of Vinton against Raymond C. Lyons- and others. Judgment for plaintiff, and defendants appeal.</p>

Action by S. A. Vannetta and. others against Mrs. M. P. Busbey and others. Judgment for plaintiffs was affirmed by the court of appeals for certiorari or writ of review.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Action by Babington Bros., Limited, against Thomas & Williams. Judgment for defendants, and plaintiff appeals.</p>

E. Brunot, Judge. Proceedings by rule of W. S. Holmes and others against Joseph Pino and E. S. Hamilton, and by W. C. Whitaker and others against Joseph Pino and W. M. Phillips, to erase names of Hamilton and Phillips from the registration rolls. Rule discharged, and relators appeal.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Overton, Judge.</p> <p>Action by Mathilde Bourdier against the Louisiana Western Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Eleventh. Judicial District Court, Parish of Red River; Samuel J. Henry, Judge.</p> <p>Major McDuffy was convicted of larceny, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 588*) — Weight of Evidence.</p> <p>The testimony of two witnesses of the plaintiff, corroborated by circumstances, will not be disregarded because of its conflict with the testimony of a witness of plaintiff, whose answers show that he was nonobservant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*]</p> <p>2. Master and Servant (§ 136*) — Injuries to Servant — Negligence.</p> <p>If a workman’s head protruded above the top of a car on which he was working so that he could see an approaching locomotive, then his head could have been seen by the crew of the approaching locomotive, or he should have been seen, and the proper warning should have been given.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 272; Dec. Dig. § 136.*]</p> <p>3. Master and Servant (§ 137*) — Injuries to Servant — Sam Place to Work.</p> <p>A railroad company must provide its employés with a reasonably safe place in which to work, and it violates this duty if without proper warning it runs a locomotive, or ears, violently against the car on which an employé is working, causing him, because of such unlooked for violence, to be knocked down and injured.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*]</p> <p>4. Master and Servant (§ 278*) — Injuries to Servant — Warning—Evidence.</p> <p>The proof that plaintiff had been warned during the night of the accident but subsequent to it, and answered that he did not fear the shock to his car from an approaching locomotive, does not prove that he received proper warning during the day, nor does it tend to disprove the fact that he did not receive the proper warning.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954-972, 977; Dec. Dig. S 278.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Courts (§ 487*) — Appellate Courts — Transfer op Causes.</p> <p>Where the value of the land in controversy is not disclosed by the pleadings, it may be established by affidavits filed in the appellate court.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 1307-1315; Dec. Dig. § 487.*]</p> <p>2. Libel and Slander (§ 140*) — Slander, op Title — Jactitation Suit —Right op Action.</p> <p>Where the defendant in a jactitation suit admits the slander and claims title, the suit is thereby converted into a petitory action, in which the defendant must recover on the strength of his own title.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. § 140.*]</p> <p>3. Public Lands (§ 135*) — Disposal by United States — Transfer op Rights.</p> <p>A misdescription in a land entry, which was corrected by the United States Land Office before issue of the patent, may always be corrected as between the original entryman and his vendee, and their heirs, legal representatives, and assigns, where the parties contracted with reference to the particular tract as correctly described in the application for entry, but which through error was misdescribed in the receiver’s receipt.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 351-362; Dec. Dig. § 135.*]</p> <p>4. Libel and Slander (§ 140*) — Jactitation Suit — Defenses—Outstanding Title.</p> <p>The plea of an outstanding title will not avail the defendant in a jactitation suit who has by his pleadings assumed the attitude of a plaintiff in a petitory action.</p> <p>[Ed. Note. — Eor other eases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. § 140.*]</p>

Action by Louis P. Olivier against the Adeline Sugar Factory Company, Limited. On the overruling of an exception to the jurisdiction, defendant applies for writs of certiorari and prohibition.

Action by Stauffer, Eskleman Company, Limited, against the Abington Hardware & Furniture Company, Limited, and others. Judgment for plaintiff, and defendant company applies .for certiorari or writ of review.

Judicial District Court, Parish of Sabine; Don E. Sorelle, Judge. In the matter of the succession of John Farrell, deceased. From a decree probating the last will of decedent, opponents Ed. Farrell and others appeal.

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by Aladin Robichaux and wife against Morgan’s Louisiana & Texas Railroad & Steamship Company. From a judgment for defendant, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error (§ 797*) — Motion to Dismiss — Time op Making. ,</p> <p>A motion to dismiss on the ground that no appeal lies from an interlocutory judgment overruling a motion to dissolve on injunction comes too late when made more than three days after the filing of the transcript in the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. § 797.*]</p> <p>2. Appeal and Error (§ 635*) — Reversal— Insuottcient Record.</p> <p>A case will be reversed and remanded, where it appears that, through inadvertence of counsel on both sides, records referred to in the pleadings were not filed in evidence.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2285, 2776-2782; Dec. Dig. § 635.*]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Edgar W. Sutherlin, Judge.</p> <p>Action by Ruth Wells and others against John B. Files. Judgment for defendant and plaintiffs appeal.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Elections (§ 293*) — Preserving Ballot Boxes — Necessity.</p> <p>At the termination of the first trial of an election contest, the boxes containing some contested ballots were left unlocked for three weeks in the courtroom, through which persons passed in going to the office of both parties, and the fastenings on the boxes were so slight that they could be removed and replaced without attracting notice. Act No. 152 of 1898, § 21, provides that the third tally sheets, together with the ballots and poll list, shall be returned to the ballot box which shall be sealed by the commissioners, and the ballot boxes shall be delivered to the clerk to be by him safely preserved for six months, and section 23 provides substantially the same. JI eld, that it was error on the second trial to admit in evidence the ballots contained in such boxes.</p> <p>[Ed. Note. — Eor other cases, see Elections, Cent. Dig. §§ 2S8-296; Dec. Dig. § 293.*]</p> <p>2. Appeal and Ebbob (§ 1099*) — Res Adjudicata— Judgment on Eoemee Appeal.</p> <p>The judgment on a former appeal in an election contest is res adjudicata of the admissibility of all the evidence considered by the Supreme Court on that appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.*]</p> <p>3. Appeal and Eeeoe (§ 1099*) — Presentation Below.</p> <p>Where evidence was received without objection at trial, it could not be rejected by the Supreme Court on a second appeal, even if it should not have been admitted for reasons -disclosed on the second appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.*]</p> <p>Breaux, C. J., dissenting in part.</p>

<p> (Syllabus by the Court.) </p> <p>Adverse Possession (§ 64*) — Prescription —Effect oe Donation Omnium Bonorum.</p> <p>The nullity of a donation omnium bonorum presents no obstacle to the subsequent acquisition of the property by a third person by the prescription of 10 years, where the validity of such prescriptive title does not depend on the validity of the donation.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 358-364; Dec. Dig. § 64.*]</p>

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.</p> <p>Action by Lizzie Askew against J. P. Parker, sheriff, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Sabine; Don E. So Relie, Judge.</p> <p>Suit by B. P. Moore for. an injunction against the Parish Board of Directors of Sabine Parish. Prom a judgment denying the injunction, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Tenancy in Common (§ 19*) — Mutual Rights and Liabilities oe Co-Ownebs— Acquisition oe Outstanding Title.</p> <p>Where an owner, in indivisión, has assumed, quoad certain of his co-owners and quoad the obligee, a debt bearing upon the common property, and has then allowed the property to be sold, under a writ of seizure and sale, for the debt so assumed, and has bought it in, without actual notice to other co-owners, the title thus acquired inures to the benefit of such other co-owners in proportion to their respective interests and subject to the payment by them to the purchaser of a like proportion of the amount paid by him in satisfaction of said writ.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig'. §§ 55-59; Dec. Dig. § 19.*]</p>

Action by J. H. Fulton and another, liquidators of the Cranor Lumber Company, against Frederick N. Oertling and another. Application by the defendant Commonwealth Bonding & Casualty Insurance Company for writs of certiorari and prohibition.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; L. B. Claiborne, Judge.</p> <p>Action by George Voisin against the Schwing Lumber & Shingle Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts (§ 224*) — Appellate Jurisdiction —Supreme Court — Amount in -Controversy.</p> <p>When the constitutionality of a statute has been attacked, but the lower court has held it constitutional, no appeal lies to this court, when the amount involved is below the jurisdictional limit of this court. It is only when the statute has been held unconstitutional that an appeal lies to this court under such circumstances. •</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p> <p>2. Courts (§ 224*) — Appellate Jurisdiction —Court op Appeal — Amount in Controversy.</p> <p>As the amount involved does not exceed $100, exclusive of interest, an appeal does not lie to the Court of Appeal, and hence the appeal cannot be transferred to that court, but must be dismissed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 608-618; Dec. Dig. § 224.*]</p>

<p> (Syllabus by the Court.) </p> <p>Limitation of Actions (§ 155*) — Prescription — Effect of Partial Payments — Authority to Make Payment — Widow in Community.</p> <p>Where it does not appear that the master of the community disposed of his estate by last will, it will be assumed that the widow in community, joint owner, with her major and minor children, of the community property, became, immediately upon the death of her husband, the usufructuary of the interest inherited by the children; and, in the double capacity of owner in indivisión and usufructuary, she was authorized to pay a debt of the community, which was secured by mortgage upon the entire property, or obtain extensions of the term of payment, by paying the interest, from time to time, and such payments operated as interruptions of prescription, as to the whole debt, and this though she had never been judicially recognized as tutrix, administratrix, or usufructuary, and had not been authorized by her children. The doctrine of Long v. Dickerson, 127 La. 341, 53 South. 598, to the extent to which it is applicable to the facts, is to be applied in such case, and not the codal provision of Rev. Civ. Code, art. 3552.</p> <p>[Ed. Note. — Eor other cases, see Limitation of Actions, Gent. Dig. §§ 623-630; Dec. Dig. § 155.*]</p> <p>Breauxi C. J., dissenting.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Thomas O. Irby was convicted of rape, and appeals.</p>

Action by Joseph Goldberg against Mrs. Calicis Savoy Deslatte and others. Judgment for defendants, and plaintiff appeals. The following is the map referred to in the opinion:

<p> (Syllabus by the Court.) </p> <p>1. Estoppel (§ 5*) — Equitable Estoppel— Grounds — “Admissions”—“Quasi Admissions.” •</p> <p>Admissions may be divided into “admissions” and.“quasi admissions.” The true “admissions” concern a method of escaping from the necessity of offering any evidence at all. A “quasi admission” is an item in the mass of evidence. An admission acted upon by the other party, and creating a substantive right, may estop the party making it, and it will oblige the estopped party to make good his representation; in other words, it is conclusive. Wigmore on Evidence, §§ 1048, 1057, 1066, 2589, 2591; Chaffe v. Morgan, 30 La. Ann. 1307; Davis v. Welsh, 128 La. 791, 55 South. 372; Watkins v. Cawthon, 33 La. Ann. 1199; New Orleans v. Sheppard, 10 La. Ann. 268; Succession of Harris, 39 La. Ann. 445, 2 South. 39, 4 Am. St. Rep. 269; Stockmeyer v. Oertling, 38 La. Ann. 102; Brandt v. Virginia C. & I. Co., 93 U. S. 335, 23 L. Ed. 927.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 8; Dec. Dig. § 5.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 204, 205; vol. 8, p. 7566.]</p> <p>2. Evidence (§ 207*) — Admissions—Effect— “Judicial Confession.”</p> <p>The “judicial confession” is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding; and it cannot be revoked, unless it is proved to have been made through error of fact. Article 2291, C. C.; Watkins v. Cawthon, 33 La. Ann. 1198.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 707-712; Dec. Dig. § 207.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3854.]</p> <p>3. Evidence (§ 200*) — “Admissions” — Nature.</p> <p>“It is of the nature of an admission plainly that it be by intention an act of waiver, relating to the opponent’s proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose; in particular, a statement made for the purpose of giving testimony is not a judicial admission.” Wigmore on Evidence, § 2594 (2).</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 684-686; Dec. Dig. § 200.*]</p> <p>4. Evidence (§ 263*) — Admissions—Effect —Explanation.</p> <p>“An opponent whose admissions have been offered against him may offer any evidence which serves as an explanation for his former assertion of what he now denies to he the fact. This may involve the showing of a mistake or the evidencing of circumstances which suggest a different significance to the words.” Wig-more on Evidence, § 1059 (2); Greenleaf on Evidence, §§ 204, 207, 208.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1022-1027; Dec. Dig. § 263.*]</p> <p>5. Estoppel (§ 58*) — Equitable EstoppelGrounds.</p> <p>The doctrine of estoppel, however appar_ently emphatic, is full of exceptions, which 'vary according to circumstances, and will not apply to objection made which has not led one astray, or occasions damage to anybody. Succession of Harris, 39 La. Ann. 443, 2 South. 39, 4 Am. St. Rep. 269; Stockmeyer v. Oert-' ling, 38 La. Ann. 102; Brandt v. Virginia C. & I. Co„ 93 U. S. 335, 23 L. Ed. 927.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. § 58.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Fraudulent Conveyances (§ 281*) — Remedies of Parties — Presumptions.</p> <p>Presumptions must yield to positive evidence showing the facts.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 800, 816; Dec. Dig. § 281.*]</p> <p>2. Appeal and Error (§ 999*) — Review— Questions of Fact.</p> <p>Judgments based upon facts will not be disturbed on appeal unless clearly erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3924; Dec. Dig. § 999.*]</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>An information was filed against Robert M. Fore. From a judgment annulling the information, the State appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Edgar W. Sutherlin, Judge.</p> <p>Suit by Mrs. Martha A. Cox and others against the Busch-Everett Oil Company and others. Decree for defendants, and plaintiffs appeal.</p>

P. Edwards, Judge. Action by the Merchants’ & Farmers’ Bank against D. F. Harris, in which J. A. Hearin intervened, claiming certain attached property. Judgment in favor of plaintiff against defendant and in favor of intervener as to the property attached, and plaintiff appeals.

<p>Appeal from Nineteenth. Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by J. C. Akers against the Iberia Cypress Company, Limited. Judgment for defendant, and plaintiff! appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>Taxation (§ 734*) — Tax Titles — Land Forfeited to State.</p> <p>When property has been forfeited and adjudicated to the state for unpaid' taxes, and all defects in the title thus acquired by the state have been cured by prescription, under article 233 of the Constitution, and the Auditor has sold the property by an instrument which recites that the sale was made pursuant to Act No. 80 of 1888 as property which had been adjudicated to the state in accordance with the provision of said act and which had been previously offered for sale, and had “failed to sell,” the question whether the state, acting through its Auditor, had previously offered the property, so acquired by it, for sale, or had properly advertised it, before the sale by the Auditor, is one in which the original tax debtor has no concern, it being a matter between the state and its Auditor, or between the state and the party who may have purchased from the Auditor.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1470-1473; Dec. Dig. § 734.*]</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; R. B. Dawkins, Judge.</p> <p>Action by Ed. Hart against the Tremont Lumber Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads (§§ 355, 358*)— Operation — Injuries to Persons on Track — “Trespassers.”</p> <p>Where the controlling interest in a lumber company operating sawmills and a railroad company handling the raw material, supplies, and output of the mills is owned by the same people, and the milks, on the one hand, and the machine and repair shops, robing stock and railroad yard, on the other, are operated practically as one plant, and the main track running through the yards is used by every one so desiring, and particularly by the employés of the two companies, as a highway whereby to get from one part of the plant to another, and such main track is the only practicable route over which a water boy can carry buckets of drinking water from the only available spring for the use of the operatives in one of the mills, and is commonly used for that purpose to the knowledge and with the acquiescence of the railroad authorities, it cannot be said that in so using such track the boy was a trespasser upon the property of the.railroad company, since no one can be held to trespass upon property when he enters upon it with the consent and in accordance with the wishes and expectation and in the interest of the owner; there being no difference, for the purposes of the case here presented, between the interest of the corporation owning the property and that of its stockholders. Nor can it be said in such case that the corporation owed no duty to the boy, save to refrain from willfully injuring him; for, knowing, consenting, and expecting that he and others would or might be on its track, it was bound to exercise precaution with reference to and commensurate with that possibility.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1220-1227, 1235-1237; Dec. Dig. §§ 355, 358.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7094.]</p> <p>2. Railroads (§§ 387, 400*) — Operation—Injuries to Persons on Track — Contributory Negligence.</p> <p>A lumber company and a railroad company were controlled by the same people and operated as “interlocking” corporations, and the main track of the railroad company through its yards was used by the employés of both companies, and by the public at large, as a highway, and was the only practicable route by which a person employed for that purpose could carry drinking water from the only available spring to one of the mills of the lumber company. Held, it was not negligence per se for the “water boy” to carry the water over such track; and where, after he had entered thereon, and was walking along incumbered with a bucket of water suspended on either side from a piece of wood resting upon his shoulders, he was overtaken and overrun by a locomotive, which followed him, with the tender in front and with no lookout either upon the tender or in the cab, under conditions when he could and should have been seen and the accident readily avoided if there had been such lookout, the proximate cause of the accident was not the negligence of the water boy in failing to look, or look often enough, behind him, but the negligence of those in charge of the locomotive in operating it in a frequented place with no more care than if it had been allowed to run wild.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1296, 1314-1316, 1365-1381; Dec. Dig. §§ 387, 400.*]</p> <p>On Application for Rehearing.</p> <p> (Additional Syllabus by Editorial Staf.) </p> <p>3. Death (§ 99*) — Actions for Causing Death — Damages.</p> <p>Where a boy 17 years old lived about seven hours after the accident, and was conscious during all that time, but his physical suffering at first was not great because of the shock to his nervous system, and thereafter was alleviated to some extent by opiates, an award of $7,500 damages should be reduced to $6,000.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p>

<p> (Syllahtis l>y the Court.) </p> <p>1. Ejectment (§ 3*) — Possessory Actions— Scope of Issues — Title.</p> <p>Under Civil Code, arts. 3450, 3454, 3455, and Code of Practice, arts. 4, 6, 53, 55, one who has had quiet possession of timber land as owner for a year or more, whether in good faith or not, is vested with a right of possession, which may serve as a basis for a possessory action and to recover timber removed, and in such action the question of title cannot be brought in; the defendant, for the purposes of the suit, having no title.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. § 4; Dec. Dig. § 3;* Action, Cent. .Dig. § 263.]</p> <p>2. Trespass (§ 14*) — Possessory Action —Scope of Relief — Value of Timber Removed.</p> <p>A possessory action for recovery of timber cut from land occupied by the owner survives in the form of an action for the value of the timber after it has ceased to exist and restoration in natura has become impossible. Smith v. Grant Timber & Mfg. Co., 130 La. 471, 58 South. 153; Collins v. Clark, 128 La. 250, 54 South. 788; Mott v. Hopper, 116 La. 629, 40 South. 291.</p> <p>[Ed. Note. — For other cases, see Trespass, Cent. Dig. § 15; Dec. Dig. § 14.*]</p> <p>3. Constitutional Law (§ 278*) — Due Process of Law — Trespass.</p> <p>Where one invades the land of another and takes violent possession thereof, he takes possession of property of another without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law. Cent. Dig. §§ 763, 765, 767-770, 772-777, 779-806, 808-810, 816-824, 907-924, 942; Dec. Dig. § 278.*]</p> <p>4. Constitutional Law (§ 278*) — Due Process of Law — Recovery of Possession of Realty.</p> <p>Where one is in full possession of immovable property as owner for more than a year, and that possession has been invaded by another, and the possessor successfully invokes the power of the courts to restore him to peaceable possession of his own property, he will not be taking the property of the trespasser, and the provision of law which requires the trespasser to make restoration before he (the trespasser) can be heard to set up title to the real estate is constitutional, and is not the taking of any thing, property, or right from the trespasser without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 763, 767-770, 772-777, 779-806, 808-810, 816-824, 907-924, 942; Dec. Dig. § 278.*]</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.</p> <p>Action by Ferdinand D. Lougarre against W. D. Haas & Co. From the judgment, plaintiff appeals.</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; J. S. Boatner, Judge.</p> <p>D. H. Britton, Jr., and another were convicted of murder, and appeal.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo ; Edgar W. Sutherlin, Judge.</p> <p>Action by the McCann & Harper Drilling Company against the Busch-Everett Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 244*) — Injuries to Servant — Contributory Negligence. .</p> <p>Where a locomotive employed in hauling loaded skeleton cars from a siding to a sawmill was manned by an engineer, fireman, and brakeman, and the fireman, who was an experienced brakeman, elected to couple the tender to a log car, from which protruded a log to an unusual and dangerous distance, and persisted in such undertaking despite the warnings _ of the track foreman standing near, and was killed by the crushing of his skull between the end of the log and the deadwood of the tender, held, that the facts present a clear case of contributory negligence, debarring recovery. [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 776, 777; Dec. Dig. § 244.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Master and Servant (§ 111*) — Injuries to Servant — Safe Place to Work.</p> <p>It was the duty of a lumber company operating a train to make the space between loaded cars as safe as practicable for brakemen engaged in coupling or uncoupling them, and it is negligence in loading to leave a car in such a condition as to materially increase the danger of coupling it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217; Dec. Dig. §. 111.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 259*) — Injuries to Servant — Actions—Pleading.</p> <p>Where, in an action in damages for personal injuries sustained by an employe whilst in the service of his employer, the petition alleges that the accident which resulted in the injuries was caused by the gross incompetence, carelessness, and negligence of the “defendant company, its agents and employes,” the plaintiff is not obliged to allege, in order to disclose a cause of action, that the agents or employes referred to were the superior officers, and not the fellow servants, of the person injured.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 837-843; Dec. Dig. § 259.*]</p> <p>2. Master and Servant (§§ 190, 216*) — Injuries to Servant — Fellow Servants — Assumption of Risk.</p> <p>Where, in an action in damages for personal injuries sustained by an employe whilst in the service of his employer, it appears that the accident which resulted in the injuries was caused by the negligence of defendant’s vice principal in failing to discharge an admitted duty essential to the safety of those working under his direction, there is no place for the application of the doctrines of “assumption of risk” or “fellow servant.”</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449-474, 567-573; Dec. Dig. §§ 190, 216.*]</p> <p>3. Master and Servant (§ 190*) — Injuries to Servant — Fellow Servants —Negligence of Foreman.</p> <p>It' is negligence for a skidder foreman to fail, properly and efficiently, to inspect the ground over which he intends to skid logs and to remove all standing trees which are likely to be knocked down in the process of skidding, and where, as the result of such negligence, an unsound tree is left standing in the way, and, being knocked down in the skidding- of a, log, falls on a rider boy and kills him, the principal-employer of the foreman and boy — is liable in damages.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4. Master and Servant (§ 235*) — Injuries to Servant — Contributory Negligence.</p> <p>Where neither the tong setter nor skidder foreman knew that a tree was standing where it was likely to be knocked down in the process of skidding, a boy rider injured by such an accident was not guilty of contributory negligence, since he could not be expected to be better informed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. § 235.*]</p> <p>5. Death (§ 31*) — Actions for Causing Death — Right of Action.</p> <p>In default of children or widow of one whose death was caused by negligence of defendant, the right to recover for decedent’s suffering falls on his parents, and, where there was a judgment of separation a mensa et thoro between them, the mother is entitled to one-half of the amount which may be assessed on that account, and also to recover for the injury, moral and mental, as well as material, sustained by her as the result of the son’s death.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35-46, 48; Dec. Dig. § 31.*]</p> <p>6. Death (§ 98*) — Actions fob Causing Death — Damages.</p> <p>An award of $2,326.50 to a mother to whom the custody of her son had been awarded by a judgment of separation a mensa et thoro between her and her husband, for the son’s death at a time when he was rendering her needed material- assistance, should be increased to $5,000.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 124; Dec. Dig. § 98.*]</p>

<p>Appeal from the Twenty-First Judicial District Court, Parish of Pointe Coupee; L. B. Claiborne, Judge.</p> <p>Jerry Lundy was convicted of murder, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Evidence (§ 598*) — Preponderance — What Constitutes.</p> <p>In a suit for damages plaintiff sustains the burden of proof by a preponderance of evidence, where his own testimony is corroborated on material points by a disinterested witness, and defendant introduces only one witness to contradict the testimony of plaintiff.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598.*]</p> <p> (Additional Syllabus by Editorial Staf.) </p> <p>2. Damages (§ 131*) — Personal Injuries— Excessive Verdict.</p> <p>Plaintiff was pushed from a moving train by a brakeman while trying to board it. He sustained a sprained wrist, which he carried in a bandage for a week, after which he recovered; and at the trial, four months afterwards, he testified that his elbow, shoulder,^ and back hurt him, and that he suffered anguish of mind at the time because of fear that he would" be sucked under the train. His testimony as to his injuries was unsupported, except as to the sprained wrist, which was examined and bandaged by a physician, who was a witness for defendant; and within a week after the injury he was able to resume his labors as a helper on an oil rig, which required the exercise of great bodily strength. Held, that a verdict allowing plaintiff $3,000.00 is excessive, and should be reduced to $500.</p> <p>[Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 357-367, 370, 371; Dec. Dig. § 131.*]</p> <p>3. Carriers (§ 382*) — Injury to Passenger —Exemplary Damages.</p> <p>Plaintiff alighted from one of defendant’s trains at M. on business, and when he attempted to board the train again while it was stationary his way was blocked by the brakeman, who refused to permit him to get aboard, and finally, as the train was moving, shoved him off, resulting in the injuries complained of, because the brakeman believed erroneously that plaintiff had no ticket. Held, that such facts do not give rise to the right to an allowance for exemplary damages.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1478, 1483-1491; Dec. Dig. § 382.*]</p>

Burns, Judge. Suit by J. H. Seal against George Sam, Jr., to foreclose a mortgage, in which the Bank of Franklinton intervened claiming the surplus in satisfaction of a judgment against defendant. From a judgment in favor of intervener, defendant appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by George W. Gray against the Grant Timber & Manufacturing Company. From the judgment, plaintiff appeals.</p>

Campbell, Judge. Action by Alvira Foreman and others against Gus. E. Fontenot, clerk of the court, and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermilion; William P. Edwards, Judge.</p> <p>Joe Comeaux was indicted for indecent assault, and from an order dismissing the indictment the State appeals.</p>

<p> (Syllabus by the Court.) </p> <p>On the Exception.</p> <p>1. Principal and Surety (§ 151*) — Paving Bond — Action Against Surety Alone.</p> <p>An exception'of nonjoinder will not lie because the plaintiff has sued only one of two people bound in solido. The obligee had the right to sue either one, or both, of them. ■</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 415, 420; Dec. Dig. 151.*]</p> <p>On the Merits.</p> <p>2. Principal and Surety (§ 99*) — Street Improvement — Bond eor Repairs —Discharge oe Surety.</p> <p>Where one is bound by a contract to keep in repair the streets of a city with a certain kind of asphalt, the mere fact that the cjty, after the default of the obligor, uses a cheaper but different kind of asphalt does not relieve the obligor of its obligation to pay for the repair work which it should have done.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. § 99.*]</p> <p>3. Costs (§ 260*) — Frivolous Appeal.</p> <p>Only when an appeal is clearly frivolous will damages be allowed because of frivolousness, as the right of appeal is always favored.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996,1002, 1003; Dec. Dig. § 260.*]</p>

<p>Appeal from First Judicial District Court, Parish of Oaddo; E. W. Sutherlin, Judge.</p> <p>Action by J. S. Jolley against the Vivian Oil Company. From the judgment, plaintiff appeals.</p>

Campbell, Judge. In the matter of the Succession of Felicia D. Andrus, deceased wife of John Christ. In the matter of an opposition to the homologation of the inventory. From the judgment, opponents appeal.

<p> (Syllabus by the Court.) </p> <p>1. Indictment and Information (§ 196*)— Eeqtjisites of Accusation — Designation of Accused.</p> <p>Where one has been known by a name other than what he asserts is his name, has been indicted by that name and arraigned, the objection that the indictment is defective because it does not give his real name is not sufficient to set aside a verdict rendered against him in that name.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 628-635; Dec. Dig. § 196.*]</p> <p>2. Criminal Law (§ 631*)^-Triaj>-Peelim-inaey Proceedings — Juey List.</p> <p>A verdict will not be set aside because the jury list for two weeks was all in one copy, instead of there being a separate list for each week.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1379, 1437-1446; Dec. Dig. § 631.*]</p> <p>3. Criminal Law (§ 1144*) —Trial — Misconduct Affecting Juroes — Publications.</p> <p>It will not be assumed that an intemperate article, published in a local newspaper, denouncing the jurors who refused to agree to a verdict in the first trial which resulted in a mistrial, influenced the second jury’s verdict against the accused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p> <p>4. Criminal Law (§ 631*) — Trial—Preliminary Proceedings — Service of Jury List.</p> <p>True, a copy of the indictment and the list of the jurors should be served personally and a written return should be made by the officer making the return; but, where no such return is made, verbal testimony may be introduced to show such service. The list of the jurors for the first week including jurors for the second week was served, the court concluded. There is only one inference, that of service, and that was sufficient.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1379, 1437-1446; Dec. Dig. § 631.*]</p> <p> (Additional Syllabus by Editorial Staff.j </p> <p>5. Criminal Law (§ 723*) —Trial — Argument oe Counsel.</p> <p>Arguments of counsel for the state making no appeal to prejudice, though referring to the difference in origin of certain people, and referring to the Mafia and vendetta, but not stating that accused was a member of either organization, were not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1676; Dec. Dig. § 723.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 1090*) —Homicide (§§ 188, 190*) — Appeal—Record—Bill of Exceptions — Ex Parte Affidavit of Counsel — Threats — Dangerous Character — Overt Acts.</p> <p>Where no evidence was made part of a bill of exception, or reduced to writing as provided by Act No. 113 of 1896, an ex parte affidavit of counsel for the accused found in the record will not be considered. Proof of threats and dangerous character was properly excluded, where no overt act or hostile demonstration on the part of the injured "party was proven to the satisfaction of the trial judge.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090;* Homicide, Cent. Dig. §§ 391-397, 399-413; Dec. Dig. §§ 188, 190.*]</p> <p>2. Criminal Law (§ 711*) — Trial—Argument —Time—Limitation.</p> <p>A rule of court that counsel on each side will not consume more than one hour in argument does not prohibit the judge from shortening the time, where he deems half an hour sufficient for the purpose of presenting the cause to the jury.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1657; Dee. Dig. § 711.*]</p> <p>3. Criminal Law (§ 667*) — Trial—Evidence —Record.</p> <p>The statutes do not require testimony which has been ruled out to be reduced to writing, where there is no dispute as to the facts sought to be proven.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1599, 1601; Dec. Dig. § 667.*]</p>

Ellis, Judge. Action by Joseph A. Schultze and others against the Frost-Johnson Lumber Company, in which James J. Manson and others were called in warranty. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from First Judicial District Oourt, Parish of Caddo; Edgar W. Sutherlin, Judge.</p> <p>Action by the Railroad Lands Company against the Kansas City, Shreveport & Gulf Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.</p> <p>Partition by Lucretta Smith and others against George Smith and others. Judgment for plaintiffs, and defendant George Smith appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Homicide (§ 151*) — Evidence — Burden on Pkooe.</p> <p>Notwithstanding that a plea of self-defense, in a prosecution for murder, admits the killing, the burden of proof rests upon the state throughout the trial, and all the evidence considered, to establish the guilt of the accused beyond a reasonable doubt. This court has so held in cases heretofore decided, and adheres to that view.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.*]</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge.</p> <p>Action by A. W. Bell against the Germain & Boyd Lumber Company to recover certain land. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Edgar W. Sutherlin, Judge.</p> <p>Action by W. M. Mitchell against James Murphy. From the judgment plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Injunction (§ 114*) — Petition—Amendment — Affidavit—Bond—Change or Parties.</p> <p>Where plaintiff in injunction petitions the court for an amendment of his pleadings by substituting another name for the defendant than the one originally sued, he must at least make affidavit to the amended petition, and give a bond in favor of the real defendant, before an injunction can issue. Maillot v. Martin, 15 La. Ann. 40; Calderwood v. Trent, 9 Rob. 227.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p> <p>2. Injunction (§ 148*) — Bond—Obligee.</p> <p>An injunction bond made payable to the order of the “Big Pine Lumber Company” is not one in favor of the “Big Pine Lumber Company, Limited,” the real defendant, and it is not a legal bond. Code Prac. art. 304.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 323-334; Dec. Dig. § 148.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Death (§ 49*) — Actions for Causing Death — Pleading.</p> <p>Where a statute gives the parents a right of action for the death of their son only in case he has left no wife and children, the parents in bringing their action must allege the nonexistence of the wife or children, or both, and, where this allegation does not appear, an exception of no cause of action will lie.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 64-66, 69; Dec. Dig. § 49.*]</p> <p>2. Courts (§ 99*) — Correction of Errors— Ruling on Pleading.</p> <p>The fact that a trial judge has erroneously overruled an exception of no cause of action previously does not keep him from ruling out the evidence when offered at the trial and objected to on the ground that there is no cause of action. It is always in the power of the trial judge to recall a prior ruling which is erroneous.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. § 99.*]</p> <p>3. Pleading (§ 236*) — Amendment—Discretion of Court.</p> <p>It is within the discretion of the trial judge to refuse to permit the filing of an amendment on the ground that it is too late after the jury has been chosen.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236.*]</p> <p>4.Death (§ 11*) — Actions for Causing Death — Right of Action — Statutory Provision.</p> <p>Under Act No. 120 of 1908, plaintiffs have a right of action for rights inherited directly by them other than the suffering of their son and his other personal rights had he lived, the extent of plaintiffs’ rights to be considered on the merits.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 10, 15; Dec. Dig. § 11.*]</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Action by Emile Perrett against the Morgan’s Louisiana & Texas Railroad & Steamship Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

R. McIntosh, Judge. Action by the Liquidating Commissioners of the Bank of Monroe and another against Thomas M. Dodson and others. Judgment for plaintiffs, and defendant Thomas M. Dodson appeals, and plaintiffs answer the appeal and pray that the judgment below be amended so as to conform to the prayer of the original petition.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Taxation (§ 679*) — Sale to State — Estoppel.</p> <p>The state, by continuing to assess land after a tax sale to the former owner and his grantee and by receiving payment of taxes for subsequent- years from the grantee, did not renounce its title as purchaser at the tax sale or estop itself from setting up such title against the former owner or his assigns, where such owner was not in actual possession of the land at the time of the tax sale and of the continued assessment to him.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. §§ 1361, 1362; Dec. Dig. § 679.*]</p> <p>2. Taxation (§ 689*) — Conclusiveness—Persons Concluded.</p> <p>A judgment against a tax collector, alone purporting to cancel taxes for which property has been sold at tax sale to the state, is null and void; the collector having no authority to stand for the state in such matters.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1380-1386; Dec. Dig. § 689.*]</p> <p>3. Courts (§ 163*) — Inferior Courts — Jurisdiction of Actions Involving Title to Realty.</p> <p>Under Const, art. 143, fixing the jurisdiction of the New Orleans city courts and not giving them jurisdiction of cases involving title to realty, a judgment of the city court canceling-taxes is void in so far as it attempts to set aside the tax title of the state.</p> <p>■ TEd. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 411, 443, 479; Dec. Dig. § 163.*]</p> <p>4. Parties (§ 6*) — Tax Sales — Resale by State — Right to Attack Validity.</p> <p>Under Code Prac. art. 15, providing that an action can only be brought by one having a real and actual interest which he pursues, a person whose title to land has been divested by a valid sale to the state for taxes cannot attack the validity of a subsequent sale of the land by the state.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 6-8 ; Dec. Dig. § 6 ;* Contracts, Cent. Dig. § 1597.]</p> <p>5. Courts (§§ 89, 100*) — Rules of Decision— “Stare Decisis.”</p> <p>A single decision can seldom serve as a basis for stare decisis, and never where opposed to previous decisions, especially where they are overruled without being referred to as if they had escaped the attention of the court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312, 341-343; Dec. Dig. §§ 89, 100.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6627, 6628.]</p> <p>6. Taxation (§ 794*) — Tax Sales — Resale by State — Right to Attack Validity.</p> <p>In an action to quiet a tax title derived from the state, plaintiff, by citing the former owner as required by statute, does not authorize such owner to attack the validity of plaintiff’s conveyance from the state, where the former owner’s title has been divested by a valid tax sale.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1576; Dec. Dig. § 794.*]</p> <p>7. Taxation (§ 679*) — Tax Sales — Resale by State — Right to Attack Validity.</p> <p>Act No. 80 of 1888, § 1, required tax collectors, within two months after the expiration of the year within which property sold for taxes must be redeemed, to prepare a list of all property sold to the state for taxes and transmit it to the auditor for correction and approval, and upon its return by the auditor to advertise the property for sale for cash to the highest bidder, the advertisement to contain only the name of the party in whose name it was adjudicated to the state or of the person who claimed to be the owner thereof and a condensed description of the property. It further provided that this advertisement should be full and complete notice to all persons interested in the property, and should operate as a complete citation, and no other notice should be required, and that the assessment for each year for which property had been adjudicated to the state was thereby declared legal and binding in every respect on parties who might have been interested therein, and that the titles of the state were thereby declared good and valid. Section 2 prescribes the lowest bid to be accepted. Section 3 authorizes the auditor to sell at private sale land which has been once advertised and offered for sale under the act. Section 4 provides that the deed to the purchaser at such sale shall be prima facie evidence that the property was subject to taxation; that the taxes were not paid and the property not redeemed within the time prescribed by law; and conclusive evidence that the property was listed and assessed, the taxes levied, the property adjudicated to the state and advertised according to law;' that it was adjudicated and sold to the purchaser as stated in the deed; and that all the prerequisites of the law were complied with, from the listing and assessment up to and including the execution and registry of the deed. Section 5 provides that such sale shall vest in the purchaser an absolute and perfect title to the property without any claim by the former owner. Held that, while the act affords the former owner an opportunity to purchase the property, it does not reinvest such owner with an interest in the property .authorizing him to contest the validity of the purchaser’s title because of the absence of the advertisement where the title of the state is conceded to be valid, but that the absence of such advertisement merely leaves it open to him to contest the validity of the title acquired by the state.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1361, 1362; Dec. Dig. § 679.*]</p> <p>8. Appeal and Error (§ 1177*) — Disposition —Granting New Trial.</p> <p>Where, in an action to quiet a tax title by a purchaser from the state, the former owner’s failure to contest the validity of the title acquired by the state may have been in reliance on a former erroneous decision authorizing him to contest the purchaser’s title without contesting that of the state, upon reversal of a judgment in his favor, the case will be remanded for a new trial to give him an opportunity to contest the state’s title.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]</p> <p>Breaux, C. J., dissenting.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; C. K. Sehwimg, Judge.</p> <p>Action by A. W. Villeret against Israel Jeffer. 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 Mrs. Mary Kelly against Dr. Hugh Kelly. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge.</p> <p>Action by W. M. Mitchell against James Murphy. From a judgment dissolving a writ of attachment because of insufficient bond, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge.</p> <p>Action by W. M. Mitchell against James Murphy. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action by Charlotte McCabe against the Keystone Life Insurance Company of Louisiana and another. Judgment for plaintiff, and the named defendant appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Robt. S. Ellis, Judge.</p> <p>Suit by Mrs. Josephine H. Davidson against Thomas C. McDonald and others. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and Information (§ 169*)— Criminal Prosecution — Bill of Particulars — Evidence.</p> <p>Where, in a prosecution for unlawfully keeping a grogshop without a license, the bill of particulars alleged sales of intoxicating liquors on August 24th, it was error to admit evidence of sales on August 21st.</p> <p>[Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. § 535; Dec. Dig. § 169.*]</p> <p>2. Criminal Law (§ 965*) — Triaia-Bill of Particulars — New Trial.</p> <p>A bill of particulars filed before the first trial for keeping a grogshop without a license was not functus officio on a second trial after new trial granted, but remained in the case.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2421, 2422; Dec. Dig. § 965.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Abatement and Revival (§ 4*) — Other Action Pending — Proceedings in Same Court.</p> <p>Where a member of a commercial partnership is sued on his solidary obligation, the plea of lis pendens will not lie because the plaintiff has also asked to be placed on the account in the succession of a deceased partner, being administered in the same court, for the amount of his claim against the former commercial partnership. Not only are the defendants different, but the suits are not pending in different courts — a necessary basis for the plea of lis pendens.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-28; Dec. Dig. § 4.*]</p> <p>2. Appeal and Error (§ 840*) — Review — Motion for Trial by Jury.</p> <p>Where a case is before this court on the merits, the question of whether a motion for a trial by jury has been properly passed upon will not be considered, because it would be merely a matter of form, and would serve no useful purpose, as all the facts are before the court, which is therefore in a. position to render the proper judgment on them. The only result that would be accomplished by remanding the case for a new trial would be to add costs and bring it back here on a second appeal.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 3301-3314; Dec. Dig. § 840.*]</p> <p>3. Partnership (§ 146*) — Nature of Firm Business — Indebtedness — Purchase of Cotton — Ginnery.</p> <p>As the purpose of the partnership was to conduct “a ginnery” business and “a commercial” business, and as the managing partner had the power to incur debts for the partnership, “all as if he owned the business,” he had the power to bind- the partnership for notes given for cotton, as that article was necessary for the ■ ginnery business, -and, under local conditions, was one of the articles that such a partnership as O. St. Dizier & Go. would deal in.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. §§ 242-255; Dec. Dig. § 146.*]</p> <p>4. Partnership (§ 155*) — Character of Firm Business — Estoppel of Partner — Silence.</p> <p>A partner who for years remains silent with regard to the character of the .business done by his partner, and who is always in the attitude of receiving his share of the profits, will not be heard to say that his partner was not acting within the scope of the partnership business.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. §§ 27S-280; ' Dec. Dig. § 155.*]</p> <p>5. Partnership (§ 155*) — Obligations of Firm — Failure to Repudiate — Estoppel.</p> <p>A member of a commercial partnership, who is in possession of necessary facts, and who fails in due time to repudiate an obligation sought to be fastened upon the partnership, will not be heard to deny that the obligation is one resting on the partnership, where his conduct is such as to be deemed an assent to its recognition as a partnership obligation.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. §§ 278-280;' Dec. Dig. § 155.*]</p> <p>6. Evidence (§ 21*) — Judicial Notice — matters of General Knowledge.</p> <p>A court will take notice of prevailing customs, such as that country merchants in the cotton belt of the South generally deal in cotton.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. § 25; Dec. Dig. § 21.*]</p>

Martin, Judge. Actions by the Police Jury of the Parish of Lafourche and others against the Terrebonne Land Company, Limited, and others, and against the South Louisiana Land Company and others. Judgment for defendants, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1.Husband and Wife (§ 296*) — Separation —Pleading and Proof.</p> <p>In a suit for a separation from bed and board, a general allegation of ill treatment, followed by a charge of nonsupport of the wife according to her station in life, is too vague and indefinite to warrant proof of specific acts of ill treatment not connected with the matter charged in the petition.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1089; Dec. Dig. § 296.*]</p> <p>2. Husband and Wife (§ 288*) — Separation —Ill Treatment — Condonation.</p> <p>Where the parties lived together as man and wife for years after the date of the ill treatment testified to by the witnesses, the doctrine of condonation is peculiarly applicable.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1077; Dec. Dig. § 288.*]</p> <p>3. Hpsband and Wife (§ 283*) — Separation —Grounds—Proof.</p> <p>Where the parties have lived together as man and wife for many years, and there are minor children of the. marriage, the cause to justify a separation must be specifically alleged and clearly proven.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent Dig. §§ 1062-1073; Dec. Dig. § 283.*]</p>

Martin; James Simon, Judge. Action by the Bank of St. Martinville against A. B. Broussard, Sheriff and Tax-Collector, to enjoin the collection of a tax. From judgment for defendant, plaintiff appeals.

Mandamus by the State on relation of the Boston Club of New Orleans against John Fitzpatrick, State Tax Collector, to compel defendant to issue a license to relator for the sale of liquors on certain premises in New Orleans. From a Judgment denying the writ, relator appeals.

<p>Appeal from Third Judicial District Oourt, Parish of Claiborne; W. P. Edwards, Judge.</p> <p>Action by H. Alvin Fowler against Mrs. Verna Fowler, née Williamson, for her annulment of marriage. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations (§ 658*) — “Public Things.”</p> <p>“Things which are for the common use of a city or other place, as streets and public squares, are public things.” Rev. Civ. Code, art. 454.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1430; Dec. Dig. § 658.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 6959.]</p> <p>2. Municipal Corporations (§ 225*) — Public Property — Conveyance.</p> <p>Such property is out of commerce; and it is dedicated to public use, and held as a public trust, for public uses. It is inalienable by corporations. City of Shreveport v. Walpole, 22 La. Ann. 526.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 626-643; Dec. Dig. § 225.*]</p> <p>3. Dedication (§ 19*) — Mode — Maps and Plats — “Park”—“Street.”</p> <p>“The word ‘park,’ written on a block at the instance of the owner in a plat subdividing a tract of land into lots and blocks for the purpose of founding a town, is as significant of the dedication of such tract to the public for a park, as the word ‘street’ on such plat is for the dedication of a public street. There can be no doubt that under our jurisprudence the word ‘street’ written by the owner on a strip of ground running through such plat, where sales are made from it, effectively dedicates said strip to the public as a street. Flournoy v. Breard, 116 La. 224 [40 South. 684], This same doctrine relative to the dedication of streets is similar to, and is applicable to, the dedication of public parks. 9 Am. & Eng. Enc. of Law (2d Ed.) p. 25.” Town of Yinton v. Raymond C. Lyons, 131 La. 673, 60 South. 54; Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5176, 5177; vol. 8, p. 7745; vol. 7, pp. 6684-6691; vol. 8, p. 7805.]</p> <p>4. Dedication (§ 17*) — Requisites—Deeds.</p> <p>No deed or act of conveyance is necessary to dedicate land or rights in immovable property to the public. Itev. Civ. Code, art. 767; City of Shreveport v. Walpole, 22 La. Ann. 526; Pickett v. Brown, 18 La. Ann. 560; Baton Rouge v. Bird, 21 La. Ann. 244; Sheen v. Stothart, 29 La. Ann. 630; Burthe v. Fortier, 15 La. Ann. 9; Burthe v. Blake and Town of Carrollton, 9 La. Ann. 244; Lafitte v. City of New Orleans, 52 La. Ann. 2099, 28 South. 327; Land v. Smith, 44 La. Ann. 931, 11 South. 577; Calhoun v. Town of Colfax, 105 La. 416, 29 South. 887; Conrad v. Land Co., 126 N. C. 776, 36 S. E. 282; San Leandro v. Le Breton, 72 Gal. 170, 13 Pac. 405; Dillon on Municipal Corporations, §§ 1083, 1089, 1095, 1096; 13 Cyc. p. 455.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 31, 32, 4)8, 49; Dec. Dig. § 17.*]</p> <p>5. Dedication (§ 31*) — Requisites — Acceptance. '</p> <p>A formal acceptance on the part of the public of property dedicated to the public use is not necessary, or even practicable. Dillon, §§ 1083, 1089; 13 Cyc. p. 455; and the Louisiana authorities above cited.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 64, 65; Dec. Dig. § 31.*]</p> <p>,6. Dedicateon (§ 35*) — Land for Park Purposes — Acceptance—Evidence.</p> <p>The city and town authorities having carried “Frederick Square” on their official maps, and also carried it on their assessment rolls as the property of the “city of New Orleans” and free from taxation, and the refusal of the authorities, state and city, to assess said square, although requested so to do by defendant, are sufficient evidences of an acceptance of said “Frederick Square,” if any formal acceptance were necessary.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 68-71, 75, 76; Dec. Dig. § 35.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>7. Real Actions (§ 8*) — Petitory Actions— Nature of Relief.</p> <p>Where, in a petitory action to recover certain real property, the petition prayed for general relief, the court was entitled to render such judgment as the allegations justified, without reference to the form of the action.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 26-35; Dec. Dig. § 8.*]</p>