Volume 133 — Louisiana Reports

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice B. Edrington, Judge.</p> <p>Action by Robert A. Bursley against William C. Rheams. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; J. B. Lancaster, Judge.</p> <p>Lela Hart was convicted of manslaughter, and she appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Edward Aurianne and others against the City of New Orleans and others. From judgment for defendants, plaintiffs ap-' peal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Street Railroads (§ 99*) — Driver or Vehicle — Care Required.</p> <p>The driver of a vehicle must take care not to drive so closely to a moving car as to be struck by it, and, if it is necessary, he should drive into the gutter to avoid a position of danger.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §,§ 209-216; Dec. Dig. § 99.*]</p> <p>2. Street Railroads (§ 112*) — Collision with Vehicle — Burden or Proor — Contributory Negligence.</p> <p>The instruction of the trial judge that the burden of sustaining a defense of contributory negligence is on the defendant was correct.'</p> <p>LEd. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. § 112.*]</p> <p>3. Street Railroads (§ 112*) — Appeal and Error (§, 1002*) — Collision with Vehicle —Burden of Proof.</p> <p>The burden of proof on the merits of the case was on plaintiff; and, as the jury and the judge of the lower court heard the witnesses and resolved the conflict in the testimony against the plaintiff, this court will not interfere with the verdict and the judgment, because certainly there is not manifest error in them.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. §■ 112;* Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p>

<p>Two actions consolidated; one by the W. W. Carre Company, the other by the Gaiennie Company, Limited, both against A. L. Weir and others. Judgment was entered affirming judgments for plaintiffs, and the' Eureka Homestead Society and the National Surety Company of New York apply for writs of certiorari or review.</p>

<p> (Syllabus by the Court.) </p> <p>1. Notaries (§, 10*) — Liabilities—Negligence — Damages.</p> <p>Where the holder of a mortgage note has sustained a loss through the negligence of a notary in not procuring a proper mortgage certificate showing the existence of a prior mortgage on the same premises, in a suit against the notary and his surety the measure of damage is the amount of the mortgage debt and interest which has been lost by reason of the existence of the prior incumbrance on the property. In such a case, the consideration paid for the mortgage note does not concern the defendants.</p> <p>[Ed. Note. — For other cases, see Notaries, Gent. Dig. §§ 19-27; Dec. Dig. § 10.*]</p> <p>On Rehearing.</p> <p>2. Notaries (§ 10*) — Liability for Negligence-Measure of Damages.</p> <p>Where one gives a worthless mortgage note of $1,000 in part payment of another note for $2,500, secured by a mortgage which the purchaser believes to be a first mortgage, but which in reality is a second mortgage, and the holder of the note subsequently sues the notary because he failed to produce the proper mortgage certificate, the notary is liable in damages for only the cash paid and the value of the forged note which he gave in part payment of the other note. In other words, the purchaser of the note for $2,500 is not entitled to recover the face value of the note, but is allowed to recover only the actual value which he gave for it.</p> <p>[Ed. Note. — For other cases, see Notaries, Cent. Dig. §§ 19-27; Dec. Dig. § 10.*]</p> <p>Land, J., dissents.</p>

Baker, Judge. S. Palanque, Jr., and two others were charged with violating the election laws, and from an order sustaining a demurrer to the indictment, the State appeals.

<p>Appeal from the Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert Ellis, Judge.</p> <p>Action by Henry E. Cunningham against Mrs. Beatrice R. Steidman and husband. From a judgment for defendants on an exception to the complaint, plaintiff appeals.</p> <p>Affirmed.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge.</p> <p>Expropriation suit by the Commercial Telegraph Cable Company of Louisiana, now the Mackey Telegraph Cable Company, against James W. Prevost. From the judgment, plaintiff appeals.</p>

<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 Fifth Judicial District Court, Parish of Winn; George Wear, Judge.</p> <p>Action by Ellis Parsons against the Tremont Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Tangipahoa; Hypolite Mixon, Judge ad' hoe.</p> <p>A. P. Malone was convicted of murder, and from an order discharging him without day the State appeals.</p>

<p> (Syllabus ly the Court.) </p> <p>1. Indictment and Infobmation (§ 163*)— Bill of Pabticulaes — Name of Witness.</p> <p>In a prosecution for the illegal sale of intoxicating liquors, the defendant cannot require the state to disclose in advance the name of the purchaser, or the name of any witness.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 525; Dec. Dig. §, 163.*]</p> <p>2. Criminal Law (§ 1120*) — Appeal—Bill oe Exceptions — Necessity.</p> <p>An objection to a witness avails nothing, if his answer be not stated in the bill of exception, or in the notes of evidence thereto attached.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.*]</p> <p>3. Criminal Law (§ 1090*) — Appeal—Bill op Exceptions — Denial op New Trial.</p> <p>A motion for a new trial without a bill of exception presents no question of law for review by the appellate court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§ 881*) — Shooting with Intent to Kill — verdict.</p> <p>Where one is charged with shooting with felonious intent of killing and murdering, a verdict that, “We, the jury, find the accused guilty as charged, except shooting with intent to kill,” is not responsive to the question of whether the accused is guilty of the crime charged, because, if the accused was not guilty of shooting with intent to kill, he was not guilty of shooting with intent to murder.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 2089, 2093; Dec.Dig. § 881.*]</p> <p>2. Criminal Law (§ 893*) — 'Verdict.</p> <p>The words of a jury in their natural signification must be deemed controlling, and it is not permissible for the court to go. beyond the words of the jury to supply a supposed intendment of the jury.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2089, 2527; Dec. Dig. § 893.*]</p>

F. Bell, Judge. Mandamus by the State, on the relation of E. B. Herndon, Sr., and others, against the City Commissioners. From a judgment dismissing the writ, relators appeal. Affirmed.

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§ 71*) — Interlocutory Order — Leave to Receiver to Sue.</p> <p>An authorization to a receiver to sue is interlocutory in its nature; not final or definitive; and it cannot be appealed from.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 386-401; Dec. Dig. § 71.*]</p>

<p> (Syllabus by the Court.) </p> <p>Sales (§§ 101, 196*) — Lapse oe Agreement-Right to Rescind.</p> <p>An agreement to sell mules at certain prices to tenants on a sugar plantation, with the understanding that the owner would pay cash or its equivalent for the property, lapses on the failure of the owner to make payment as stipulated. In such a case the delivery of the mules to the tenants in anticipation of prompt payment by the owner constitutes no waiver of the right of the vendor to recede from the agreement upon the failure of the owner to make payment in cash or its equivalent.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 267, 268, 510; Dec. Dig. §§ 101, 196.*]</p>

<p> (Syllabus by the Court.) </p> <p>Railroads (§§ 480, 482*) — Damages from Eire — Evidence—Burden of Proof.</p> <p>The circumstance that a fire breaks out inside of a closed barn or warehouse immediately after the passage of a railroad .train, the warehouse being near the track, does not, of itself, authorize the conclusion that it was started by sparks, cinders, or a blaze from the locomotive. There is a wide difference between post hoc and propter hoc, and the burden rests upon a plaintiff claiming damages in such case to show, either by direct evidence, or by such circumstantial evidence as would furnish a basis for reasonably necessary inference, not only that the fire followed the passage of the train, but that it was the consequence of some negligent act of commission or omission on the part of the defendant in that connection.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1709-1716, 1730-1732, 1733, 1734-1736; Dee. Dig. §§• 4S0, 482.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans ; E. K. Skinner, Judge.</p> <p>Action by Andrew G. Gugel, trustee in bankruptcy, against Eliza Cars on, wife of Brandt V. B. Dixon. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Application for administration of the succession of Bernard William Helmke. Prom an order appointing an administrator, the undertutor of minor heirs appeals.</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.</p> <p>Action by the J. B. Levert Company, Limited, against Mrs. Lee Porterfield Bradshaw, Sheriff, and others. From the judgment, plaintiff appeals.</p>

<p>Appeal from First City Court of New Orleans; Henry Renshaw, Judge.</p> <p>Action by the International Text-Book Company against John Fitzpatrick, State Tax Collector, and others, to annul an assessment. From a judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Schools and School Districts (§ 97*)— Public Schools — Bonds—Building.</p> <p>Under Const, art. 281, as amended by Act No. 197 of 1910, declaring that municipal corporations, parishes, or school, drainage, road, navigation, or sewerage districts, when authorized by a majority vote, may issue bonds to purchase or construct systems of waterworks, sewerage, drainage, navigation, lights, public parks and buildings, a school district may issue bonds for a school building; the word “building” as used in the Constitution not being confined to a building in a public park, but referring to any public building.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 224 — 232; Dec. Dig. § 97.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 889-892; vol. 8, p. 7593.]</p> <p>2. Schools and School Districts (§ 97*)— Bonds — Building Site.</p> <p>As a school building cannot be constructed without a site, the authority to issue bonds extends to the issuance of bonds for the purchase of a site for a school building.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 224-232; Dec. Dig. § 97.*]</p> <p>3. Schools and School Districts (§ 108*)— Bonds — Limit of Taxation.</p> <p>Const, art. 281, originally provided that the governmental subdivisions named might issue bonds to the extent of one-tenth of the assessed valuation of property within their limits, and levy special taxes provided said taxes did not exceed five mills, while as amended by Act No. 197 of 1910, authorizing school districts to issue bonds, it provides that the governing authority of such subdivision shall levy and collect annually in excess of all other taxes, a tax sufficient to pay the interest and principal falling due each year provided that such special taxes shall not in any year exceed 10 mills on the dollar of the assessed valuation. Held,, that the expression “such special taxes” in the article as amended referred to a sufficient tax, and was equivalent to the expression “said taxes” found in the original article, hence the imposition of a tax under another constitutional provision will not affect the right of the school district to levy a 10 mills tax under the provision in question.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 235, 243, 257-259; Dee. Dig. § 108.*]</p>

<p> (Syllabus by the Court.) </p> <p>Insurance (§ 7*) — Insurance Companies.</p> <p>Under the general license law (Act No. 171 of 1898, p. 387) a fire insurance company owes but one license, based on the total gross annual premiums for the preceding year; and . the State Tax Collector has no authority to demand a license for each kind of property insurance carried on by the company under its charter and the laws of this state.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 6; Dee. Dig. § 7.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law (§ 814*) — Triai>-Instructions.</p> <p>Charges inapplicable to the facts of a ease should be refused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1S65, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*!</p> <p>2. Criminal Law (§ 823*) — Trial—Instructions.</p> <p>In a prosecution for homicide, where self-defense was the only defense set up, the action of the trial court in stating before the jury, upon accused’s requests for charges, that self-defense was not applicable to the case is reversible error, even though an instruction on self-defense was subsequently given at the suggestion of the district attorney; the remark in effect telling the jury that accused was guilty.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823 ;* Homicide, Cent. Dig. §§ 718, 719.]</p> <p>3. Criminal Law (§ 660*) — Trial—Bills off Exceptions.</p> <p>An accused should on all occasions be allowed to have the facts upon which bills of exception were founded taken down by the clerk at the time they were reserved.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1536, 1537; Dec. Dig. § 660.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mrs. Lea D’Echaux against Mrs. Jules D’Eehaux. From a judgment for plaintiff, defendant appeals.</p>

K. Skinner, Judge. Executory process upon a mortgage by Maurice Levy against Mrs. Jennie Desposito, with third opposition by Jacob Nienaber, claiming under a vendor’s privilege and prior mortgage. Judgment for the third opponent, and Levy appeals.

<p>Appeal from the Sixth Judicial District Court, Parish of Ouachita; B. C. Dawkins, Judge.</p> <p>Action by Abe Arent, Liquidator, against the Liquidating Commissioners of Bank of Monroe. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Alice Corbett against Laura T. Pellerin. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Oowrt.) </p> <p>Insurance (§ 7*) — Insurance Companies.</p> <p>Under the provisions of the license act (No. 171 of 1898, p. 387)_, as amended by Act No. 214 of 1906, p. 371, insurance companies doing a life, accident,, and workmen’s collective accident business áre liable for the payment of licenses to the state under section 8, and if they combine other insurance business they are liable to a second license to the state under section 9 of Act No. 171 of 1898.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 6; Dee. Dig. § 7.*]</p>

Petitory action by Willis J. Roussel and another against the Railways Realty Company. There was a judgment for plaintiffs, who moved for a rule to show cause why Hugh McCloskey and others should not ¡be punished for contempt for interfering with the execution of the judgment.

<p>Appeal from First Judicial District Court, Parish of Caddo; Edgar W. Sutherlin, Judge.</p> <p>Action by Herbert Rives and others against the Gulf Refining Company of Louisiana. Prom judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by B. Rosenberg & Sons against the Boston Shoe Store, Incorporated.</p>

Théard, Judge. Action by the Leon Godchaux Company, Limited, against Rosario Di Maggio. Plaintiff caused a writ of fieri facias to issue upon a judgment rendered in his favor, and persons claiming the property seized under such writ filed a third opposition. From a decree for the third opponents, plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1.Elections (§ 278*) — Special Election-Contest — Time.</p> <p>A plea of prescription of 60 days will be maintained under section 17 of Act No. 256 of 1910, where the copy of the petition and citation in the suit were not served upon defendant within 60 days after the promulgation of the election. Act No. 106, 1892; No. 5, 1899 (Ex. Sess.) No. 145, 1902; No. 84, 1906; Guillory v. Railway Co., 104 La. 11, 28 South. 899; Baueum v. Police Jury, 119 La. 536, 44 South. 289; Poise v. Police Jury, 125 La. 603, 51 South. 658; Waggner v. Police Jury, 125 La. 863, 51 South. 1016; 9 Cyc. 70; 15 Cyc. 398, 400.</p> <p>[Ed. Note. — Por other cases, see Elections, Cent. Dig. §§ 258-262; Dec. Dig. § 278.*]</p> <p>On Rehearing.</p> <p>2. Elections (§ 278*)— Contest — Piling Petition.</p> <p>The mere filing of a petition within the prescriptive period is not sufficient to prevent prescription from accruing where no service has been'made on the defendant. Service on the defendant is the only thing that will prevent prescription from accruing and it is incumbent on the plaintiff to see that his petition is served before his right is barred by prescription.</p> <p>[Ed. Note. — Por other eases, see Elections, Cent. Dig. §§ 258-262; Dec. Dig. § 278.*)</p> <p>3. Elections (§ 278*) — Special Election-Contest — Time.</p> <p>Under Act No. 256 of 1910, suits contesting elections held under that act must be filed within 60 days, and citation must be served on the defendant within that time.</p> <p>[Ed. Note. — Por other cases, see Elections, Cent. Dig. §§ 258-262; Dec. Dig. § 278.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and Error (§ 47*) — Jurisdiction of Supreme Court — Amount Involved.</p> <p>The court is not bound by allegations of value, even if sworn to, where the contrary of the allegation is manifest, and where plaintiff, in an action to enjoin the enforcement of an ordinance creating a commissioner of public utilities, alleged ownership of two bonds of the commission of $1,000 each, alleged to be worth over $2,000, but did not explain how the bonds would be rendered valueless by the change sought to be enjoined; and, where it appeared affirmatively that they had increased in value since the change, there was not such a showing that the amount involved exceeded $2,000 as to give the Supreme Court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 202-225; Dec. Dig. § 47.*]</p> <p>2. Municipal Corporations (§ 993*) — Injunction Against Enforoement of Ordinance-Right of Taxpayer.</p> <p>A taxpayer has a standing to enjoin unauthorized acts of a municipality, where the effect complained of will probably be to increase the burden of taxation.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 2Í58-2161; Dec. Dig. § 993.*]</p> <p>3. Appeal and Error (§ 50*) — Supreme Court — Affirmative Showing of Jurisdiction-Amount Involved.</p> <p>In a taxpayer’s action to enjoin unauthorized acts of a municipality, the test of appellate jurisdiction is not the amount of his tax or of the probable increase thereof, but the moneyed amount involved in the corporate action sought to be enjoined; but, without a showing that by such acts the burden of taxation-would probably be increased by the insufficiency of city revenues to pay municipal bonds, the Supreme Court will not take jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 233-236, 239-258; Dec. Dig. § 50.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunction (§ 151*) — Rule Nisi — Merits.</p> <p>The objéct of the rule nisi is to give an opportunity to defendant to show that an injunction is not allowable on the face of the papers, but an examination of the merits on the trial of the rule is premature.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 336; Dec. Dig. § 151.*]</p> <p>2. Appeal and Error (§ 100*) — Questions Reviewable- — Injunction — Action on Rule Nisi.</p> <p>The action of the court in refusing on rule nisi an injunction, where the facts and allegations of the petition for injunction justified the issuance of the writ, is reviewable in the Supreme Court on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.*]</p> <p>3. Municipal Corporations (§ 868*) — Pow- ' er to Contract Debts.</p> <p>• Municipalities may not contract debts without having made provision, for their payment.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1842; Dec. Dig. § 868.*]</p> <p>4. Injunction (§ 12*) — Enjoining Acts Already Done.</p> <p>Under the rule that an injunction will.not lie to enjoin the doing of an act already done, an injunction, in a suit by taxpayers of a town to restrain the carrying out by the town of an ordinance, can issue only to prevent the further carrying out of the ordinance, and. will not interfere with acts already done under the ordinance.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 12; Dec. Dig. § 12.*]</p> <p>5. Municipal Corporations (§ 1000*) — Remedies oe Taxpayers — Injunction — Contracts — Parties.</p> <p>In a suit by taxpayers of a town to enjoin the carrying out of an ordinance of the town authorizing the purchase of real estate for part cash and part credit, or, in case a purchase has been made to restrain the paying of the credit part of the price, all parties to a contract of purchase are necessary parties; and, where they are not made parties, the injunction can issue only to prevent the execution of another contract.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2167-2172, 2198; Dec. Dig. § 1000.*]</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by the State against Joseph Mustaiche & Co. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>■ Action by Ruth Wells and others against John B. Files. From a judgment for defendant, plaintiffs appeal.</p>

X. Ransdell, Judge. Action by the State, on the relation of the Union Central Life Insurance Company, against W. E. Dunn, sheriff, in which the First National Bank of Lake Providence and Herman Stein intervene. From a judgment for defendant, relator appeals.

.K. Skinner, Judge. Action by Maria Cecellia Lacroix against Harry W. Crane. Defendant dying, his widow and heirs were made parties defendant. Prom judgment for plaintiff, defendants appeal.

Application by David Schwartz and others for writs of certiorari and prohibition against Prentice B.. Edrington, Judge, to review an order sentencing relators for contempt in violating an injunction. Application dismissed.

R. Blackman, Judge. Action by the Hibernia Bank & Trust Company, Trustee, against the C. F. Knoll Planting & Manufacturing Company, Limited. The Dibert, Bancroft & Ross Company, Limited, intervened claiming a vendor’s privilege. From judgment for the intervener, plaintiff: appeals.

<p> (Syllabus by the Gowt.) </p> <p>1. Appeal and Error (§ 339*) — Time for Taking Appeal — Appointment op Receiver.-</p> <p>An appeal from an order appointing a receiver must be taken within ten days after the order is issued as provided by Act No. 159 of 1898, and if taken after that time will be dismissed.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 1883-1887; Dec. Dig. § 339.*]</p> <p>2. Receivers (§130*) — Extent oe Authority-Sale of Property.</p> <p>A court which appoints a receiver with powers of administration has the authority to enlarge the powers of the receiver, and an order to him to sell the property has the effect of creating in him greater authority, particularly where no objection has been timely made.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 225, 226; Dec. Dig. § 130.*]</p> <p>3. Corporations (§ 560*) — Appointment of Receivers — Appeal.</p> <p>Act No. 159 of 1898, relating to receivers of corporations, was intended to create proceedings somewhat summary for disposing of the property of insolvent corporations, and when the proceedings are sought to be arrested an appeal will not afford an effective remedy.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § 560.*]</p> <p>4. Corporations (§ 432*) — Execution of Mortgage — Authority of President.</p> <p>The resolution of the board of directors of a corporation authorizing the president to execute a mortgage affords sufficient proof of his authority to execute the mortgage.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.*]</p>

Appeal- from Seventeenth Judicial District Court, Parish of Yermillion; Win. P. Edwards, Judge. Petitory action by Belzire Abshire, widow of Alexander Lege, Jr., against F. D. Lege, in which certain heirs of Alexander Lege, Jr., deceased, intervened. Judgment for defendant, and plaintiff and interveners appeal.

Action by D. E. Brown, Jr., against the Davis Bros. Lumber Company, Limited. Judgment for defendant in district court was reversed by the Court of Appeal; defendant applies for certiorari or writ of review. Stubbs, Russell & Theus, of Monroe, for applicant. Reynolds & Williams, of Arcadia, for respondent.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Thomas Daley against the New Orleans Railway & Light Company. | Judgment for plaintiff, and defendant appeals.</p>

<p>• Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Action by the Winn Parish Bank against the White Sulphur Lumber Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of La Fayette; Wm. Campbell, Judge.</p> <p>Action by Kelly Weber & Co., Limited, against the Vordenbaumen Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Tony S. Neal against the Sue-' cession of James A. Hyce. From a judgment for plaintiff, both parties appeal.</p>

K. Skinner, Judge. Action by John E. Rodd against the Recorder of Mortgages. Erom a judgment directing defendant to cancel an inscription, but requiring plaintiff to execute an indemnity bond as a condition thereto, plaintiff appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; W. M. Wallace, Judge.</p> <p>Action by the State against the Chicago, Rock Island & Pacific Railway Company to recover a penalty. From a judgment for defendant, the State appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Partnership (§ 258*) — Settlement and Accounting — Action Against Tutrix.</p> <p>A suit against a tutrix administering the succession of her husband for a settlement of the affairs of a partnership of which he was a member will not be held to be premature unless the defendant can show some special reason for urging that it is premature.</p> <p>[Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§, 564-576, 578-598; Dec. Dig. § 258.*]</p> <p>2. Partnership (§ 258*) — Settlement—Action Against Tutrix — Domicile.</p> <p>A tutrix administering the succession of her husband may be sued at her domicile for the settlement of a partnership of which her husband was a member, even though her domicile is not the domicile of the dissolved partnership, and that is particularly true where the other members of the dissolved partnership, who are nonresidents, subject themselves to the jurisdiction of the court, wherein the suit is brought, for a full settlement of all the affairs of the partnership.</p> <p>[Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 564-576, 578-598; Dec. Dig. § 258.*]</p>

<p>(Syllabus by the CourtJ</p> <p>Counties (§ 29*) — Pabish Seat — Election-Time.</p> <p>Section 4 of Act No. 6 of 1912, in requiring the election for parish officers in the parish of Allen to be held on the third Tuesday in December, 1912, segregated that election from the election to determine the location of the permanent parish seat and left the latter to be held upon the date fixed by the police jury, under sections 2 and 4 of Act 27 of 1910, within not le.ss than 60 nor more than 90 days 'after the first meeting of said .police jury.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 29; Dec. Dig. § 29.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Execution (§ 233*) — Sale — Payment — Dbaet — “Lawful Money.”</p> <p>The sheriff, in the execution of a writ of seizure and sale, is merely an executive officer charged with the execution of the court’s command to seize and sell the property, described in the writ, for money, and to pay the money to the plaintiff, to the amount called for by the writ. Under the mandate of the court, he is unauthorized to receive anything in satisfaction of the writ save the lawful money of the United States, and the draft of a local bank in an interior town, upon a bank in the city of New Orleans, is not lawful money of the United States.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 654-657% ; Dec. Dig. § 233.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4031-4032.]</p> <p>2. Execution (§§ 233, 237*) — Sale—Failube to Comply with Bid — Resale—Taxes.</p> <p>The adjudicatee of property advertised under a writ of seizure and sale to be sold for cash is bound to comply with the demand of the sheriff to make immediate payment (within the limits of his bid) in money to the amount called for by the writ; and, upon his failure so to do, it is the duty of the sheriff immediately to reoffer the property, unless the plaintiff is willing that delay shall be granted. And where the amount bid is sufficient to cover that called for by the writ, together with the unpaid taxes upon the property which has been adjudicated, the sheriff may also require, as a condition precedent to his making of a deed, that the adjudicatee shall place in his hands a sufficient sum wherewith to pay such taxes; but he has no right to require a further sum demanded by the plaintiff in the writ for the reimbursement of moneys expended by such plaintiff in the payment of taxes of past years.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 654^657%, 660, 661; Dec. Dig. §§ 233, 237.*]</p> <p>3. Execution (§ 237*) — Sale—Failure to Comply with Bid — Resale—Validity.</p> <p>The proposition that a party representing a comparatively small interest in a second mortgage upon property which he válues at $180,000 can attend a sheriff’s sale of such property, to be made for cash, with the avowed purpose of forcing the bidding up to $125,000, and yet that, in the event of the adjudication of the property to him for a much less sum, he should not be expected to have at his command, in money, the amount required to satisfy the writ under which the sale is made, and that the plaintiff in the writ is guilty of such trickery or immorality, in insisting upon the immediate payment of such amount, as would authorize the setting aside of an adjudication to him upon a reoffering of the property; and the affirmance of the first adjudication, on the ground that the adjudicatee had offered to pay in the drafts of a local bank upon banks in the city of New Orleans, is untenable.</p> <p>[Ed. Note. — For other eases, see Execution, Cent. Dig. §§ 660, 661; Dec. Dig. § 237.*]</p> <p>4. Execution (§ 237*) — Sale — Failure to Comply with Bid — Resale—Validity.</p> <p>When, upon an adjudication for cash of property offered for sale under a writ of seizure and sale, the sheriff, acting to the knowledge and apparently under instructions of the plaintiff in the writ, demands of the adjudicatee the immediate payment of a sum largely in excess of that required by the writ, with the amount required for the payment of the unpaid taxes added thereto, and the adjudicatee finds an amount sufficient to meet those requirements, but insufficient to meet the demand of the sheriff, and the property is thereupon reoffered and adjudicated to the plaintiff in the writ, the first adjudication will be affirmed and the last annulled, though no actual tender was made by the first adjudicatee, since the consequences of his having been misled should fall upon the person through whose fault it happened.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 660, 661; Dec. Dig. § 237.*]</p> <p>Breaux, C. J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant (§ 281*) — Injury to Servant — Sufficiency of Evidence.</p> <p>Questions of fact only are presented in this case.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Officers (§ 82*) — Legality of Appointment — Injunction—Right to Sue.</p> <p>Courts will not interfere by injunction to restrain persons from exercising the functions of public office, on the ground of the illegality of the law under which their appointments were made, in the absence of the state or parties in interest. High on Injunction (3d Ed.) § 1312.</p> <p>[Ed. Note. — For other cases, see Officers, Cent. Dig. § 114; Dec. Dig. §, 82.*]</p> <p>2. Counties (§ 196*) — Injunction (§ 114*)— Right to Sue — Taxpayers—Complaint.</p> <p>“He who seeks to restrain improper or unlawful conduct on the part of public officers must allege sufficient facts to show that he has such an interest in the public welfare as to make him a proper party to prevent the commission of a public wrong. It will generally suffice that the persons seeking the injunction are residents and taxpayers. Thus it is held that complainants, who are voters and taxpayers in a county, are proper parties to enjoin unauthorized expenditures of county funds by a county judge. But to warrant the relief in behalf of the citizens and taxpayers against acts of public officers,-it should be shown that plaintiff’s rights will be greatly and irreparably injured by the acts which it is sought to enjoin, and unless this is shown the relief will be denied. And an injunction will not be granted to restrain county officers from removing their office to another location, at the suit of one who does not show himself to be a resident and voter of the county, and who shows no interest in the result of the controversy.” Id. § 1321.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196;* Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p> <p>3. Injunction (§ 114*) — Removal—Persons Entitled to Sue.</p> <p>Patrons of a state institution of learning have-no sufficient interest therein to enjoin a change of domicile of said institution by the Legislature of the state, in the absence of a constitutional provision fixing the domicile of said institution at or in. a particular place.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220'; Dec. Dig. § 114.*]</p> <p> (Additional Syllabus■ by Editorial Staff.) </p> <p>4. Courts (§, 136*) —State Courts —Civil District Court — Jurisdiction.</p> <p>Under Const. 1898, art. 133, giving jurisdiction to the civil district court in certain enumerated cases and all other cases “except as hereinafter provided where no specific amount is in contest,” such court had jurisdiction of a suit to enjoin the removal of a State University in accordance with a state statute.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 375, 379, 392; Dec. Dig. § 136.*]</p> <p>Monroe, J., dissenting.</p>

F. Brunot, Judge. Action by Mrs. Pearl Courtney, individually and as tutrix, against the Louisiana Railway & Navigation Company and others. From judgment for plaintiff, defendants appeal. Reversed, and order dismissed.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by H. L. Burke against the New Orleans Railway & Light Company and another. From judgment for defendants, plaintiff appeals.</p>

K. Skinner, Judge. Action by the legal heirs of Albert Derigny to recover real estate held by defendant through and from the. universal legatee. From a judgment dismissing plaintiffs’ suit, they appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Oramel H. Simpson, agent, against the City of New Orleans. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by Lorenzo Harrison against Joseph Goldberg and another. From a judgment for defendants, plaintiff appeals.</p>

Action by J. N. White against J. E. Mc-Clanahau. Defendant moved that the presiding judge be recused, and upon his motion being denied applies for writs of mandamus and prohibition.

<p> (Syllabus by the Court.) </p> <p>Dismissal and Nonsuit (§ 60*) — Grounds— Failure to Prosecute — “Abandoned.”</p> <p>Under Act 107 of 1898, p. 155,- amending and re-enacting article 3519, Civil Code 1870, a suit is considered abandoned whenever at any time before obtaining a final judgment the plaintiff allows five years to elapse without taking any steps in its prosecution; and, on the suggestion of any party in interest it may be properly stricken from the docket or dismissed. Lockhart v. Lockhart, 113 La. 872, 37 South. 860; City of New Orleans v. New Orleans Jockey Club, 129 La. 64, 55 South. 711.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 4-13; vol. 8, p. 7559.]</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and Error (§ 382*) — Appeal Bond — Penalty — Determination — Jurisdiction.</p> <p>Where a sequestration is dissolved, and a judgment rendered nonsuiting the plaintiff, and a suspensive appeal is taken, the judge may fix the amount of the appeal bond, and it need not be 1% times the value of the goods which have been sequestered.</p> <p>LEd. Noté. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2036-2041; Dec. Dig. § 382.*]</p> <p>On the Merits.</p> <p>2. Husband and Wipe (§, 43*) — Contracts— “Pledge.”</p> <p>The pledge, under Act No. 66 of 1874, given by a husband in favor of his wife, must have as its basis the loan by the wife to the husband of money for the production of his crop, arid this constitutes a contract between husband and wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 226; Dec. Dig. § 43.* For other definitions; see Words and Phrases, vol. 2, pp. 1513-1534; vol. 8, pp. 7615, 7616.]</p> <p>3. Husband and Wipe (§ 43*) — Contracts— Paraphernal Funds — Advancement.</p> <p>A contract between a husband and wife is an absolute nullity, and a wife cannot acquire any rights against her husband by advancing or lending him her paraphernal funds to make his crop. While the wife owes assistance to her husband, the law never contemplated that such assistance should consist in lending him her money, and taking a pledge on his crop, like any mere money lender.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 226; Dec. Dig. § 43.*]</p> <p>4.Agriculture (§ 11*) — Lien—Advances.</p> <p>As relates to the general privilege with regard to the act of 1874 (N. C. C.), one may have a privilege on the crop, provided he (the lender) is authorized to acquire a privilege.</p> <p>[Ed. Note. — Eor other 'cases, see Agriculture, Cent. Dig. §§ 15-30; Dec. Dig. § 11.*]</p> <p>5. Husband and Wife (§ 205*) — Action by Wife Against Husband — Grounds.</p> <p>During the pending of the marriage, the wife cannot sue her husband, except for the causes and under the conditions enumerated and provided for under article 2446 of the Civil Code.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 744, 748-755, 970; Dec. Dig. § 205.*]</p> <p>6. Husband and Wife (§, 205*) — Action by Wife Against Husband — Grounds—Statutes.</p> <p>The causes for which a wife may sue her husband, enumerated in article 2446 of the Civil Code, are not merely illustrative, but are absolutely exclusive. Unless the action of the wife falls clearly within one of the exceptions mentioned therein, her suit will not be maintained.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 744, 748-755, 970; Dec. Dig. § 205.*]</p> <p>7. Husband and Wife (§ 205*) — Action by Wife Against Husband — “Restitution and Enjoyment of Paraphernal Property.”</p> <p>A suit by a wife to recover the amount of a loan made to her husband, and to enforce a lien on his crop, created by a pledge under Act No. 66 of 1874, is not such a suit “for the restitution and enjoyment of her paraphernal property” as is contemplated by article 2446 of the Civil Code.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 744, 748-755, 970; Dec. Dig. § 205.*]</p> <p>8. Sequestration (§ 18*) — Claim by Third Person — Intervention.</p> <p>The law abhors a multiplicity of actions, and as the property sequestered in this suit in the hands of the Sugar Planters’ Storage & Distributing Company had already been sequestered in another suit, and was in the hands of the Sugar Planters’ Storage & Distributing Company because it had been bonded by it, the plaintiff in this suit, if she had a cause of action, should have intervened in the other suit, and asserted her rights against all the parties who were claiming the property in that suit. The law would not permit the plaintiff to entirely ignore the other suit, and take the property away, in this suit, from the intervener in the other suit, who held it under a forthcoming bond, and was, therefore, liable to the court for an accounting for the property.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. § IS.*]</p> <p>9.Sequestration (§ 20*) — Bond — Action Against Surety.</p> <p>Surety on sequestration bond cannot be proceeded against, except contradictorily with him, except as relates to the surety on the sequestration bond.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§i 42-49; Dee. Dig. § 20.*]</p>

Action by the Carroll Lumber Company, Limited, against D. F. Davis and Mrs. F. F. Montgomery, intervener. A judgment for intervener was reversed by the Court of Appeals, and intervener applies for certiorari or writ of review.

King, Judge. Action by the Bluefields Steamship Company against the Lala Ferreras Cangelosi Steamship Company and others. From judgment for plaintiff, plaintiff and certain of the unnamed defendants appeal.

Théard, Judge. Succession of Mrs. Caroline Stannard Til-ton, etc. From a judgment in favor of the East Louisiana Hospital for the Insane, the city of New Orleans and the intervening heirs of decedent appeal.

C. W. Ellis, Judge. Action by the Equitable Real Estate Company, Limited, against the National Surety Company and others. From the judgment, plaintiff and the defendants named appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and Error (§ 167*) — Right op Appeal-Waiver.</p> <p>While a litigant cannot reserve a right to appeal while taking a benefit under a judgment, this does not prevent his entering into an arrangement by which, with a view of saving expenses, the parties come together as far as they can agree, but reserve the right to contest the points upon which they cannot agree.</p> <p>[Ed. Note — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1008-1014; Dec. Dig. § 167.*]</p> <p>Breaux, C. J., dissenting.</p> <p> (Syllabus by the Court.) </p> <p>On Rehearing.</p> <p>2. Partnership Accounting.</p> <p>Plaintiff and defendant were the owners of an arpent of oil-producing lands in the Jennings oil field. Plaintiff owned one-fourth and defendant three-fourths. They divided the expenses and shared in the profits in proportion to their respective interests in the land. It produced within a small fraction of a million barrels, the whole worth gross about as many dollars.</p> <p>Plaintiff asked for an accounting, which the defendant has earnestly sought to give. There are many items of debit and credit.</p> <p>The gross (grand) total was not changed, as it had been agreed upon by parties in interest. Each is taken as correct: Total oil, total money it produced.</p> <p>3. Appeal and Error (§ 835*) — Rehearing— Partnership — Accounting.</p> <p>New issues on rehearing are not favored in pleading and practice.</p> <p>The amounts already forming part of the grand total are not deducted in accordance with suggestions made on rehearing, as they form part of the general plan of calculation adopted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. § 835.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>Criminal Law (§§ 1069, 1081*) — Motion for Appeal — What Constitutes — Prematurely.</p> <p>A notice from defendant’s counsel, before sentence is pronounced, that he will appeal from the ruling of the court, is not a motion for appeal, either verbal or in writing; and, if it could be construed to be a motion, it was prematurely made, and could not have been granted.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2091-2699, 2722-2724, 2962; Dec. Dig. §§ 1069, 1081.*]</p>

Land, Judge. A motion to quash an information, charging F. A. Nejin with attempting to bribe a witness, was sustained, and the State appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.</p> <p>Action by Joseph Levin and others against the Commercial Germania Trust & Savings Bank. From a judgment for plaintiffs, defendant appeals.</p>

K. Schwing, Judge. Foreclosure by the People’s Bank against Amedee Levert. Intervention and third opposition of Mr. and Mrs. Amedee Levert for a preference out of the proceeds as a homestead. From a judgment for intervener, plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 1086*) — Appeal—Transcript — Reversal.</p> <p>Where the transcript of appeal from a supposed conviction and sentence in a criminal prosecution fails to show an arraignment of the defendant and there is no attempt to prove that, in fact, there was such an arraignment, the conviction and sentence will be set aside and the case remanded.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dee. Dig. § 1086.*]</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law (§ 1069*) — Appeal—Time for Filing — Dismissal.</p> <p>Where an appeal is made returnable on August 30, 1913, and is filed only on October 20, 1913, it is manifest that it was not filed in time, and the appellee has the right to have the appeal dismissed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. § 1069.*]</p>

Court of Appeal, Parish of Natchitoches. Action by Liddy Farley and another against the Frost-Johnson Lumber Company, who called their vendors in warranty, A. R. Johnson and another. Judgment for plaintiffs, and defendant and the warrantors apply for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>1.Statutes (§ 107*) — Subjects—More Than One Object.</p> <p>The Legislature may in a statute denounce an act as crime, and also denounce as a crime in the same statute the attempt to commit the act, without rendering the statute unconstitutional as embracing two objects, because the attempt to commit the act is germane to the act</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §J 121-134; Dec. Dig. § 107.*]</p> <p>2. Criminal Law (§ 27*)— Felont — Punishment.</p> <p>Where the Legislature denounces an act as a felony, there is nothing in the Constitution that requires it to fix the punishment in the penitentiary in order to create a felony. The Legislature has the power to determine the punishment for an act which it has denounced as á felony.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 29-31; Dec. Dig. § 27.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Criminal Law (§ 44*) — “Attempt.”</p> <p>An_ “attempt” to commit a crime is an act done with intent to commit a crime, and is a crime.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 51; Dee. Dig. § 44.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 622-627.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Juey (§ 108*) — Capital Case — Challenge foe Cause.</p> <p>In a trial for murder, the accused is without right to challenge for cause jurors who answer on their voir dire that they have conscientious scruples against capital punishment. This right may be exercised by the state alone. State v. Compagnet, 48 La. Ann. 1470, 21 South. 46; State v. Bill, 15 La. Ann. 115; Marr’s .Crim. Jur. § 319, p. 528.</p> <p>[Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 489-491, 496; Dec. Dig. § 108.*]</p> <p>2. Criminal Law (§ 829*) — Instructions— Repetition.</p> <p>A special charge is properly refused, even if correct, when the subject-matter is properly covered by the general charge. State v. Guidor, 113 La. 727, 37 South. 622; State v. Jackson, 35 La. Ann. 769; State v. Riculfi, 35 La. Ann. 770.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]</p> <p>3. Criminal Law (§ 830*) — Instructions.</p> <p>The trial judge cannot be compelled to give a special charge which requires qualification, or limitation, or explanation, or which embraces only examples.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. § 830.*]</p> <p>4. Homicide (§ 112*) — Seuf-Deipense.</p> <p>“If the defendant in any way challenged the fight, and went into it armed, he cannot afterwards maintain that in taking his assailant’s life he acted in self-defense. ‘A man has not,’ as is said by Breese, Chief Justice, ‘the right tp provoke a quarrel, and take advantage of it, and then justify the homicide.’ Self-defense may be resorted to to repel force, but not to inflict revenge. There is certainly no law to justify the proposition that a man may be the assailant, and bring on the attack, and then claim exemption from the consequences of killing his adversary on the ground of self-defense. Wharton’s Crim. Law, § 485.” State v. Guidor, 113 La. 727, 37 South. 622 ; 21 Cyc. 792.</p> <p>[Ed. Note. — Eor other eases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. § 112.*]</p>

Jake Turner and Joe Turner were convicted of shooting another person with a dangerous weapon, and Joe Turner, alone, appeals.

<p>Appeal from Fourth Judicial District Court, Parish of Union; John B. Holstead, Judge.</p> <p>George Ailes was convicted of manslaughter, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminad Law (§ 1020*) — Jurisdiction of Supreme Court — Misdemeanors.</p> <p>In misdemeanor cases the Supreme Court has no appellate jurisdiction, except where a fine exceeding $300 or imprisonment exceeding six months has been actually imposed, or where some municipal ordinance or law of the state has been declared unconstitutional.</p> <p>[Ed. Note. — Eor other cases, Law, Cent. Dig. §§ 2578-2580: 1020.*] see Criminal Dec. Dig. §</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Abe King was convicted of hunting for profit, and appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.</p> <p>Armel Manuel was convicted of manslaughter, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (§§ 594, 598*) — Continuance — Diligence.</p> <p>Where a motion for continuance in a criminal case, because of the absence of witnesses, the bill of exception to the overruling of the same, and the statement of the trial judge in connection therewith, considered together, fail to show reasonable diligence on the part of the defendant and mover, and fail to show a, reasonable prospect of securing the presence of the witnesses — nonresidents of the parish — upon any future occasion, the ruling of the district court, refusing the continuance, will not be disturbed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332, 1335-1341; Dec. Dig. §§ 594, 598.*]</p> <p>2. Criminal Law (§ 608*) — Continuance— Affidavit.</p> <p>It is impossible for a person who is locked up in jail, charged with murder, to possess the information necessary to enable him to swear that a witness whom he has not seen since his arrest, and whose .address he did not know at the time of his trial, was temporarily in this place, or will be permanently in that place, so that his presence can be secured upon a future occasion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 1350, 1364-1368; Dec. Dig. § 608.*]</p>

<p> (Syllabus by Mditorial Staff.) </p> <p>Sodomy (§ 1*) — Elements oe Offense — Statutes — “Crime Against Nature.”</p> <p>Under Act No. 69 of 1896, declaring a punishment for one convicted of the crime against nature “committed * * * or with the mouth,” penetration of the mouth will, in the light of the common law, and the history of the crime thereat, constitute the offense.</p> <p>[Ed. Note. — For other cases, see Sodomy, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1740, 1741.]</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; Wm. Campbell, Judge.</p> <p>John Natcisse was convicted of crime, and appeals.</p>

B. Levert Company, Limited, to require the John T. Moore Planting Company, Limited, to increase the amount of a bond given for a suspensive appeal, and the latter company asked that the amount of the bond be reduced.

Case Certified from Court of Appeal, Parish of Orleans. Action by the Central Glass Company, Limited, against the I-Iamburg-Bremen Fire Insurance Company. Certified from the Court of Appeal, Parish of Orleans, by the Judges thereof, applying for instructions. Questions answered in opinion.

<p> (Syllabus by the Court.) </p> <p>Courts (§ 207*) —Jurisdiction —Supreme Court — Habeas Corpus.</p> <p>The Supreme Court, and each of the justices thereof, shall have power to issue the writ of habeas corpus, at the instance of any person in actual custody, in any case where it may have appellate jurisdiction. Const, art. 93; State ex rel. Brown v. Judge, 35 La. Ann. 1194; State ex rel. Audibert v. Sheriff, 47 La. Ann. *334, 16 South. ¿14; State v. Guillory, 128 La. 558, 54 South. 1008.</p> <p>[Ed. Note. — Eor other cases, see Courts,'Cent. Dig. § 613; Dec. Dig. § 207.*]</p> <p>Breaux, C. J., dissenting.</p>

H. Couvillon, Judge. In the matter of the Succession of Constant Guillebert. From judgment on tutorship account, the accountants, tutrix and cotutor, appeal, and Mrs. Adele Guillebert Barbin, daughter of tutrix, answers the appeal, and asks that the judgment be amended.

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; W. T. Cunningham, Judge.</p> <p>Will Monroe was convicted, of murder, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Mrs. Mary Jane Hyatt, widow of Louis Pearson, against Dr. John W. Lindner. Prom judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by R. H. Marr against F. Kane. From judgment for defendant, plaintiff appeals.</p>

Action by Paul Borell against the Cumberland Telegraph & Telephone Company and the City of Crowley. Judgment for plaintiff against the Telephone Company, and it appeals ; and judgment for defendant city, and from such judgment plaintiff appeals.

Williams against the Succession of George M. Robertson, deceased. A judgment for defendant in the District Court was reversed by the Court of Appeals, and defendant applies for writs of certiorari and review.

Action by S. H. Loftin against the Frost-Johnson Lumber Company. The judge refused to permit plaintiff, to maintain his suit without payment of costs or giving bond therefor, and he applies for a writ of mandamus to compel the granting of an order permitting him to so maintain his suit.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by the Leader Realty Company, Limited, against the Lakeview Land Company and another. From a judgment for defendants, plaintiff appeals.</p>

Action by Sayona Nations, individually, etc., against the Ludington, Wells & Yan Schaick Lumber Company. From a judgment for plaintiff, defendant appeals, and plaintiff files an answer to the appeal.

Campbell, Judge. Two actions, one by Rev. A. Maisonneuve, the other by the Baldwin Lumber Company, Limited, both against M. D. Dalferes. From a dismissal of their suits, plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>Review oe Facts.</p> <p>Questions of fact are involved only in this case.</p>

Ellis, Judge. • Joe Haynes and Anatole Williams were indicted for manslaughter. Williams was acquitted and Hayn.es was convicted and appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge: H. P. Brunot, Judge.</p> <p>Action by the Rock Island, Arkansas & Louisiana Railroad Company against the State Board of Appraisers of Louisiana. Prom the judgment, plaintiff appeals.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Charles A. O’Neill, Judge.</p> <p>Action by Agricela J. Grevemberg against J. D. Roane. From a judgment for plaintiff, defendant appeals.</p>

Action by Miss Edith E. M. D. Howcott against W. L. Smart, State Tax Collector, and others. Judgment for defendants, and plaintiff applies for certiorari or writ of review to the Court of Appeals, Parish of Livingston.

F. Blackman, Judge. Action by the Hibernia Bank & Trust Company, trustee, against the C. F. Knoll Planting & Manufacturing' Company, Limited, with John H. Murphy intervener and third opponent. From the judgment, the intervener appeals.

Martha Mates was charged with unlawfully] retailing spirituous liquors without a license, and applied for a preliminary examination. Her application was refused, and she applies for a writ of mandamus.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; R. Em-met Hingle, Judge.</p> <p>Action by Maria Cecelia Lacroix, Administratrix, against John Hoffman. From judgment for defendant, plaintiff appeals.</p>

Action by the State against the L. B. Price Mercantile Company. On an application by the defendant for a writ of certiorari, an order to show cause was issued. Rule recalled.

<p>Application by the State, on the relation of Harry R. Carson, for a writ of habeas corpus against George W. Garig and others.</p>

<p> (Syllabus by the Court.) </p> <p>Motion to Dismiss the Appeal.'</p> <p>1. Appeal and Ereob (§ 393*) — Suspensive Appeal — Bond.</p> <p>Where a suspensive appeal is granted, and a bond, insufficient in amount to maintain a suspensive appeal, is ordered to be given, on motion to dismiss, it is held good as a devolutive appeal, as it is ample to secure the costs. The only effect ■ of dismissing the appeal would be to require the appellant to secure an order for a devolutive appeal, issue a citation of appeal, and furnish a new bond for costs,, and this the court will not unnecessarily require appellant to do.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2095, 2096; Dec. Dig. § 393.*]</p> <p>2. Appeal and Ereob (§ 383*) — Appeal Bond —Sufficiency.</p> <p>As the proceedings below were by injunction, which the court dissolved without damages, and without a moneyed demand, or ordering the delivery of property, the appeal bond given is sufficient, as defendant has the right to look to the injunction bond for any damages which he may suffer by continuing it in force.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2042-2048; Dec. Dig. § 383.*]</p> <p>3.Appeal and Error (§ 73*) — Decisions Appealable — Dissolution of Injunction.</p> <p>As the dissolving of the injunction might work an irreparable injury to plaintiff, an appeal will lie from the judgment dissolving the injunction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 402-408, 412, 413, 415; Dec. Dig. § 73.*]</p> <p>On the Merits..</p> <p>4. Oosts (§ 223*) — Taxation—Supreme Oouet.</p> <p>This court has the power, to tax the costs of the lower or appellate courts, or any part thereof, against any party to a suit, as in our judgment we deem to be equitable. Section 2, Act No. 229 of 1910, p. 388.</p> <p>[Ed. Note. — For other cases, see Costs, Gent. Dig. §§ 835-837; Dec. Dig. § 223.*]</p> <p>5. Costs (§ 28*) — Unnecessary Suit — Partition.</p> <p>In a partition suit between heirs, where the partition has been ordered, and the defendant takes a devolutive appeal, and the judgment appealed from is reversed, and the defendant, after filing a motion for a devolutive appeal, files suit for the annullment of that same judgment, it would be inequitable to order the original plaintiff in the cause to pay the costs of the second suit. Plaintiff in the suit to annul the judgment appealed from must pay the costs of that suit.</p> <p>[Ed. Note. — For other cases, see Costs, Gent. Dig. §§ 835-837; Dec. Dig. § 28.*]</p>

Action by the New York Mercantile Company, Limited, against the W. M. Cady Lumber Company, Limited. From a judgment for plaintiff, defendant appealed to the Court of Appeals for the Parish of Rapides, which certified the case to the Supreme Court for instructions.

Appeal' from Twenty-Eighth Judicial District Court, Parish of Jefferson; P. E. Edrington, Judge. John R. Dwyer was convicted of cutting and wounding another with intent to kill, and he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Damages (§ 163*) — Burden of Proof.</p> <p>In a suit for damages, the burden of proof is on the plaintiff.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 454-459; Dec. Dig. § 163.*]</p> <p>2. Master and Servant (§ 90*) — Injury to Servant — Actionable Negligence.</p> <p>Where an employer does that which is commonly and generally done by competent and careful persons or corporations in the same general line of business, he is not guilty of actionable negligence. Travis v. Railroad, 121 La. 887, 46 South. 909; Muse v. Rapides Lumber Co., 132 La. 488, 61 South. 536.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 139; Dec. Dig. § 90.*]</p> <p>3. Railroads (§ 275*) — Personal Injuries— Defective Cars — Liability.</p> <p>It seems to be a rule very generally followed by the reported cases that, where the carrier selects a car and furnishes it to the shipper for his use, the carrier will be liable for any personal injuries resulting to any one whose connection with the shipment causes him to be on the car, which injuries are caused by the defective condition of the car, where such a condition could have been discovered by a reasonable inspection. Editor of L. R. A. (N. S.) in volume 9, p. 857.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 873-877; Dec. Dig. § 275.*]</p> <p>4. Railroads (§ 262*) — Personal Injuries— Defective Cars — Liability of Connecting Carrier.</p> <p>Where a common carrier receives in transit a defective freight car from another carrier, when the defect is latent and is not discovered by the connecting carrier after a careful and reasonable inspection, the latter will not be responsible in damages caused by the sudden breaking of a defective timber in such car.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 831, 832; Dec. Dig. § 262.*]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>5. Railroads (§ 282*) — Personal Injuries— Defective Car — Negligent Inspection — Sufficiency of Evidence.</p> <p>Evidence, in an action for the death of a stevedore’s employé from the breaking of a defective timber in a car received from another carrier by the connecting carrier and furnished to the shipper, held insufficient to show actionable negligence of the connecting carrier through any failure to properly inspect the car.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.*]</p> <p>6. Master and Servant (§ 270*) — Injury to Servant — Inspection—Evidence of Custom.</p> <p>In an action for the death of a stevedore’s employé from the breaking of a defective timber in a car being unloaded, evidence of a custom among the stevedores to make general inspection of a car before unloading it was properly admitted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]</p> <p>7. Master and Servant (§ 125*) — Injury to Servant — Duty to Inspect.</p> <p>A stevedore is not liable to Ms employé for injuries from latent defects in the construction of a car or from defects not discoverable by the ordinary, careful observer who is removing freight from such car.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*]</p>

Suit by J. W. C. Wright and others against W. Morgan Gurley and others, liquidators of the People’s Bank & Trust Company. From a judgment in favor of defendants, plaintiffs appeal.

Action by S. J. Daly against Richard Brock. Judgment for plaintiff, and defendant appeals suspensively, and moves for rule to show cause why the inscription of the judgment should not be canceled.

Action by the J. I. Case Threshing Machine Company against C. C. Bridger. The demands of the plaintiff company were rejected, and it applies for writs of certiorari and prohibition.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Olivier, Voorhies & Lowrey against J. A. Majors and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Newman Bros, against T. A. Ma- and others. for and defendants appeal.</p>

<p>Appeal from Twelfth. Judicial District Court, Parish of Vernon; Don E. So Relie, Judge.</p> <p>Action by the Interstate Trust & Banking Company against the United States Fidelity & Guaranty Company, in which Monk, Palmer & I-Iardin and others intervened.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish, of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Edward W. Robertson was convicted of manslaughter, and appeals.</p> <p>Rehearing denied; MONROE, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Action (§ 13*) — Right oe Action — Fraud.</p> <p>The fact that, pursuant to a fraudulent conspiracy, titles to real estate are manufactured and inscribed in the conveyance office does not furnish a cause of action, in damages, against the conspirators, to a person not the owner of property affected by their acts.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 76-83; Dec. Dig. § 13.*]</p> <p>2. Acknowledgment (§ 48*) — Liability — Fraudulent Acknowledgment.</p> <p>If a notary public or other person knowingly co-operates in the manufacture and inscription in the conveyance office of fictitious and fraudulent titles to real estate,, without the knowledge or consent of the owner, such notary or other person may no doubt be held liable in damages to such owner; but where a person appearing before a notary is identified by another person, -known to the notary, and whom he has no reason to suspect of wrongdoing, the fact that the notary in good faith receives the acknowledgment of the person so appearing to an act of conveyance or other instrument does not subject him to liability for damages, though such person be not the person whom he was represented and believed to be.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 241-243; Dec. Dig. § 48.*]</p> <p>3. Conspiracy (§ 13*) — Fraud.</p> <p>Where a person, through gross negligence or indifference to the consequences, permits himself to be inveigled into participating in the manufacture and inscription of acts purporting to dispose of real estate belonging to other people, he may be held liable for the resulting damages, even though he may be a victim, rather than a confederate, of the originator of the scheme.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 14; Dee. Dig. § 13.*]</p>

Action by G. J. Labarre against tbe Burton-Swartz Cypress Company, and BakerWakefield Cypress Company, Limited, intervenes. Motion by intervener to dissolve sequestration and for damages was granted, and defendant appeals.

<p>Action by Webster Lodge No. 4, Knights of Pythias, against W. S. Hunter. Judgment for defendant, and plaintiff applies for certiorari or writ of review.</p>

Action by John Wesley White against the Nutriline Milling Company. From judgment for plaintiff, defendant appeals, and plaintiff answers the appeal praying for an increase of award.

King, Judge. Succession of Caroline Wingertner, widow of Gotlieb Saur. A rule was sued out against Julia Saur, and, from a judgment dismissing the rule, plaintiff appeals.

<p>Appeal from City Court of New Orleans; Henry Renshaw, Judge.</p> <p>Action by Leon Lavedan against Celina Thompson. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Thos. F. Bell, Judge.</p> <p>J. M. Broussard was convicted of violating the Vagrancy Act (Laws 1912, No. 226), and appeals.</p>

ThSard, Judge. Suit by Genevieve Von Schlemmer against Bernard C. Von Schlemmer. Judgment for defendant, and plaintiff appeals. The legal representative of the succession of the plaintiff was made a party to the .suit.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Street Railroads (§ 114*) — Injury to Travelers — Negligence.</p> <p>Decedent, an active woman 71 years old, seeing a car she desired to take approaching, hurriedly attempted to cross the tracks in front of the car in order to reach the stopping place. She was unable to do so and was struck, receiving injuries from which she died. The car was not running rapidly, and the motorman testified that from the moment he saw that decedent and her companion intended to pass in front of the car he made every effort to stop; that he had already, about 80 feet away, shut off his power and put on his brake; and it also appeared that the car had come to a full stop one block before it reached the point of the accident; that it was loaded and could not have attained the speed of more than eight or nine miles an hour. Held, insufficient to establish negligence on the part of the railway company.</p> <p>[Ed. Note. — For oiher cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*]</p> <p>2. Street Railroads (§ 81*) — Injuries to Travelers — Rules—Application.</p> <p>A rule of a street railway company requiring motormen to have their cars under control within 100 feet of a stopping place was a measure of precaution against collision with travelers on 'street crossings and was not intended to give more time to would-be passengers crossing the track in front of an approaching car.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*]</p> <p>3. Street Railroads (§ 98*) — Injuries to Travelers — Contributory Negligence.</p> <p>Where decedent, an active woman 71 years old, desiring to take a street car, rushed in front of it, when it was not more than eight feet away, to reach the stopping place, and being unable to cross in time was struck and received injuries from which she died, she was guilty of contributory negligence, and it was therefore immaterial that the railway company also might have been negligent in that the motorman did not have his car under control 100 feet before reaching the stopping place, as required by one of the company’s rules.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 204-208; Dec. Dig. § 98.*]</p> <p>4. Street Railroads (§ 103*) — Injuries to Travelers — Contributory Negligence — Last Clear Chance.</p> <p>Where decedent, in passing in front of a street car by which she was struck and killed, was guilty of contributory negligence which continued up to the happening of the accident, and the motorman had no chance to avoid the accident after the danger became apparent, the doctrine of last clear chance was inapplicable.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § ,219; Dec. Dig. § 103.*]</p> <p>5. Street Railroads (§ 81*) — Operation of Cars — Sand—Failure to Provide.</p> <p>A street railway company was not negligent in failing to provide sand to prevent cars from skidding or the wheels from slipping on wet rails where the use of sand had been tried and found ineffective because of the damp climate.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Erroe (§ 797*) — Motion to Dismiss — Time fob Making.</p> <p>As the acquiescence in a judgment may take place at any time, so the motion to dismiss the appeal on that ground may be made at any time.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. § 797.*]</p> <p>2. Appeal and Ereob (§ 158*) — Acquiescence-Payment.</p> <p>A payment, under a judgment, which is made without the knowledge or consent of the party condemned, is not an acquiescence by him in such judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 973-975, 977; Dec. Dig. § 158.*]</p> <p>On the Merits.</p> <p>3. Appeal and Ebeoe (§ 1011*) — Decision— Conflicting Evidence.</p> <p>In cases where the evidence is conflicting, the appellate court will affirm the judgment below when not clearly against the preponderance of the evidence.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Eminent Domain (§ 145*) — Condemnation — Measube oe Damages — Expbopriation.</p> <p>The owner of property which it is proposed to expropriate, or damage, for the purposes of a public improvement, is entitled to be paid the true value thereof, as of the moment when it is legally demanded for such purpose, without including in such value the increment which may have resulted from the fact that the improvement has been proposed; and, on the other hand, without deducting therefrom the increment which may have resulted from the fact that the improvement has been in contemplation, or from any other cause, save that the improvement has been proposed.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 378-389; Dec. Dig. § 145.*]</p> <p>2. Eminent Domain (§§ 66, 145*) — Condemnation — “Proposed Improvement” — Determination-Expropriation.</p> <p>The Constitution, in declaring that “private property shall not be taken nor damaged for public purposes, without just and adequate compensation being first paid,” prescribes no rule by which to determine the question of justness and adequacy, but has left that duty to the lawmakers; and the lawmakers have declared that “the basis of assessment shall be the true value which the land possessed when the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work,” thereby leaving it to the courts to determine when a contemplated improvement is to be considered a proposed improvement. The answer to that question may vary somewhat with the cases in which it arises; but a public improvement, in the form of a railroad, cannot be said to be “proposed,” within the meaning of the statute, in a case where, for instance, a number of capitalists, haying purchased a tract of land for the development of industrial enterprises, and, having divided it into lots, hold out merely the hope, or prospect, in offering the lots for sale, that a railroad will be built to connect them with the business centers. There should, in such case, be a definite offer, importing an obligation to build the road within a definite period, or definite steps, importing a present and bona fide purpose to do the work, such as the location of the line of the road, followed by purchases or expropriations of land for the right of way, should be taken, since the law does not mean that a public improvement is “proposed” either by being. merely held in contemplation, or by an indefinite proposition, without sanction, which may be relegated to the distant future for its execution.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 165-167, 378-389; Dec. Dig: §§, 66,145.*]</p> <p>3. Eminent Domain (§ 140*) — Condemnation —Damages.</p> <p>To say that the “damage which the owner would sustain, in addition to the loss of the land, by its expropriation,” must be ascertained by taking the difference in the value of the land before and after the damage has been sustained, is to bring one’s self in conflict, at once, with the prohibition of the Constitution and mandate of the statute, which require that the damage shall be ascertained and compensated before it is inflicted.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 371; Dec. Dig. § 140.*]</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§ 999*) — Street Railroads (§ 85*) — Negligence — Collision with Fire Apparatus..</p> <p>While firemen and their apparatus have a right of way at a street railway crossing, in the case of collision with a street car the company will not be condemned in damages where the evidence tends to show that the motorman used ordinary care in discovering the approach of the fire apparatus and in endeavoring to avoid a collision, and that the driver did not keep a proper lookout and did not slow up on approaching the street car tracks. In such a case, where the evidence, as usual, is conflicting, the verdict of a jury in favor of the defendant will not be disturbed, unless clearly wrong on the facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. § 999 ;* Street Railroads, Cent. Dig. §§ 193, 195; Dec. Dig. § 85.*]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and Information (§ 35*)— Nature and Similarity — “Indictment”— “Information.”</p> <p>There is no essential difference between an indictment and an information; both being formal accusations in the name of the state for alleged violations of the penal statutes.</p> <p>[Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. § 144; Dec. Dig. § 35.*</p> <p>Eor other definitions, see Words and Phrases, vol. 4, pp. 3551-3555; vol. 4, pp. 3585-3589.]</p> <p>2. Constitutional Law (§ 74*) — Preliminary Examination by Prosecuting Attorney-Constitutional and Statutory Provisions.</p> <p>Under Const, art. 9, authorizing the prosecution of all offenses except capital crimes by information, and Rev. St. 1870, § 1018, providing that, when the Attorney General or any district attorney shall be informed that a crime or misdemeanor has been committed, it shall be their duty, respectively, to inquire ex officio into the fact by causing all persons supposed to have some knowledge of the facts to be summoned before some judge or justice of the peace, that their depositions may be taken, the judge of a criminal district court had jurisdiction to summon witnesses which the Attorney General and district attorney desired to examine relative to violations of the election law, notwithstanding Const, art. 96, providing that no duties or functions shall be attached by law to the Supreme Court, Court of Appeal, or district courts, or to the several .justices or judges thereof, except such as are judicial, since in requesting the summoning of such witnesses the prosecuting attorney occupies the same position as a grand jury and is a part of the court for the administration of the criminal laws.</p> <p>[Ed. Note. — Eor other eases, see Constitutional Law, Cent. Dig. § 124; Dec. Dig. § 74.*]</p> <p>3. Criminal Law (§ 207*) — Preliminary Examinations by Prosecuting Attorney-Statutory Provisions.</p> <p>Under Rev. St. 1870, § 1018, providing that, when the Attorney General or any district attorney shall be informed that a crime or misdemeanor has been committed, it shall be their duty to inquire ex officio into the fact by causing persons supposed to have knowledge of the fact to be summoned before some judge or justice of the peace, jurisdiction to summon such witnésses must be limited to judges exercising criminal jurisdiction and as between judges exercising such jurisdiction to the judge having jurisdiction of the offense sought to be investigated.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 414, 418, 440, 472-475; Dec. Dig. § 207.*]</p>

<p>Giacinto Donzi was convicted of wife desertion, and applies for writs of certiorari and prohibition.</p>

In the matter of John B, Hall, testamentary executor for the writs of certiorari, mandamus, and prohibition, to compel the issuance of letters of executorship in the Succession of Jean Serres. Rule nisi recalled, ex cept that alternative writ of mandamus is made peremptory as stated.

<p>Appeal from First Judicial District Court, Parish of Caddo; E. W. Sutherlin, Judge.</p> <p>Action by Mrs. Clyde Thompson and others against the Busch-Everett Company. Judgment for defendant, and plaintiffs appeal.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Juby (§ 133*) — Exclusion of Jueob — Examination.</p> <p>“The rejection of a juror by the judge, even if erroneous, affords no legal ground of complaint, and this rule is equally applicable where the judge has refused to allow the juror whom he has excluded to be cross-examined on his voir dire. Act No. 135, p. 216, of 1898, § 1.” [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 586-598; Dec. Dig. § 133.*]</p> <p>2. Juby (§ 122*) — Summoning—Directions of Court.</p> <p>“It is within the discretion of the trial judge to order talesmen to be summoned ‘from any portion of the parish, remote from the scene of the crime, that he may designate’; and if the sheriff, in disregard of his instructions, returns talesmen from the neighborhood in which the crime was committed, the judge may order them to stand aside. Act No. 135, p. 222, 1898, § 11.” State v. Thompson, 116 La. 829, 41 South. 107; State v. Hobgood, 46 La. Ann. 855, 15 South. 406.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 501; Dec. Dig. § 122.*]'</p> <p>3. Criminal Law (§ 936*) — New Triai>-Absence of Witnesses.</p> <p>Where defendant goes to trial without the presence of important witnesses, and fails to ash for a continuance on the ground of such absence, he is not entitled to a new trial because of the absence of the witnesses.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2299-2305; Dec. Dig. § 936.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Divorce (§ 37*) —Grounds — Abandonment by Husband — Separation prom Bed and Board.</p> <p>“The abandonment with which the husband or wife is charged must be made to appear by the three reiterated summonses made to him or her from month to month, directing him or her to return to the place of the matrimonial domicile, and followed by a judgment which has sentenced him or her to comply with such reiquest, together with a notification of the said judgment, given to him or her from month to month for three times successively.</p> <p>“The summons and notification shall be made to him or her at the place of his or her usual residence, if he or she lives in this state, and if absent, at the place of the residence of the attorney who shall be appointed to him or her by the judge for that purpose, at the suit of the husband or wife praying for separation from bed and board.” Civil Code, art. 145.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 27, 107-134, 136-138; Dec. Dig. § 37.*]</p> <p>2. Divorce (§ 37*) — Grounds — Separation prom Bed and Board.</p> <p>“The absence of the husband or wife, which has had a lawful cause, although it shall appear that the absentee has not been heard of, cannot authorize a demand of separation, except so far as is provided in the title: Of Absentees.” Civil Code, art. 144.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 27, 107-134, 136-138; Dec. Dig. § 37.*]</p> <p>3. Divorce (§ 37*) — Grounds — Separation prom Bed and Board.</p> <p>Where a husband asks his wife to leave the matrimonial domicile with him for the purpose of establishing one elsewhere, and she refuses to accompany him, and later refuses to go to him in the new matrimonial domicile after he has offered her transportation for that purpose, and, on his return to the city of New Orleans, where the matrimonial domicile was formerly located, he establishes another domicile there, and requests her to live with him in said domicile, and she refuses, she has not been abandoned; and her suit for separation, based on abandonment, must fail.</p> <p>[Ed. Note. — For other eases, see Divorce, Cent. Dig. §§ 27, 107-134, 136-138; Dec. Dig. § 37.*]</p>

K. Skinner, Judge. Action by the State, on the relation of David B. North and others, against William C. Ermon and others. From judgment for relators, defendants appeal.

<p> (Syllabus by MUitorial Staf.) </p> <p>1.Landlord and Tenant (§ 125*) — Implied Warranty — “Factor or Five.”</p> <p>Where a city ordinance required the floors of all stores and warehouses to be calculated to carry 250 pounds, and all calculations for their strength to be with a “factor of five,” which means that the floor must be five times stronger than necessary to carry the ordinary weight it is designed to carry, the lessee of a warehouse in such city had a right to assume, in the absence of anything to the contrary, either said or written, that the floors complied with the ordinance, and the leasing of the warehouse amounted to a representation by the lessor that it did comply therewith.</p> <p>[Ed. Note — Ebr other cases, see Landlord and Tenant, Cent. Dig. §§ 441 — 443; Dec. Dig. § 125.*]</p> <p>2. Landlord and Tenant (§ 125*) — Nondelivery oe Possession — Right to Damages.</p> <p>Where, though under a lease, the lessee was entitled to a warehouse with floors callable of supporting 250 pounds with a factor of five to the square foot, the building was designed to support only 150 pounds with a factor of four, and the lessor procured an injunction forbidding the use of the building beyond this reduced weight, whereupon the lessee sued for a cancellation and for damages, and thereafter refused to pay rent, and the lessor then exercised its right to cancel the lease for ñonpayment of the rent, the lessee was not precluded from recovering damages sustained by vacating the building and not having the continued enjoyment thereof, on the theory that they were caused by his own failure to pay the rent, since there was no sufficient delivery of the leased premises, and the lessee did not owe rent from the time he elected, by suing for a cancellation, not to accept the building as a compliance with the lease.</p> <p>[Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. §</p> <p>3. Municipal Corporations (§ 111*) — Building Ordinances — Construction and Validity.</p> <p>A city ordinance, requiring floors of warehouses to be calculated to carry a dead load of 250 pounds, was not obsolete or ineffective even though, as claimed, a “dead load” was the weight of the floors themselves, while the load put thereupon was a “live load,” since this alleged defect could not have misled any one; it being evident that the weight to be put on the floors was the weight which they were to be calculated to carry.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111.*]</p> <p>4. Landlord and Tenant (§ 125*) — Defects in Leased Premises — Right to Damages.</p> <p>The carrying capacity of the floors of a warehouse was a matter for experts to determine, and a nonexpert lessee, though he visited and examined the warehouse before leasing it, was not thereby precluded from recovering damages because they did not have the carrying capacity required by a city ordinance.</p> <p>[Ed. Note.- — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>5. Landlord and Tenant (§ 125*) — Actions eob Damages — Evidence — Admissibility.</p> <p>In an action by tbe lessee of a warehouse for damages because the floors did not have a carrying capacity of 250 pounds to the square foot, as required by the lease, where damages for overloading the floors were not sought .by the lessor and it was admitted that the floors did not have such carrying capacity, the only issue being as to whether the lease called for such capacity, evidence that the lessee loaded the floors beyond 250 pounds to tbe square foot was immaterial.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. §§ 441-443; Dee. Dig.</p> <p>6. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>A lessee’s damages because the floors of the leased warehouse did not have the carrying capacity required by the lease was not limited to the amount which would have brought'the building up to the requirements of the lease, where he had no right to make alterations in the building and the lessor, when called upon to make such alterations, instead of doing so, filed a suit for an injunction to prohibit the loading of the floors beyond their capacity.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Gent. - Dig. §§ 441-443; Dec. Dig. §</p> <p>7. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>Where because the floors of a leased warehouse did not have the carrying capacity required by the, lease, the lessee was compelled to move temporarily into another warehouse, goods in which were subject to a higher rate of insurance' than in the leased building, and was therefore compelled to and did pay the difference in the insurance to a party whose goods he had contracted to store, he was entitled to recover this amount from the lessor.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>8. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>Where because of the defective condition of the floors of a leased warehouse the lessee incurred expense in labor and drayage in moving goods from a defective floor to another and in moving them into another warehouse, which would not have been incurred if the goods had been moved out in the regular course of business, he could recover such expense from the lessor.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>9. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>The lessee of a warehouse paid the government the premium for bonding the warehouse for one year. Thereafter, because of the defective condition of the floors, he discontinued using the warehouse for receiving goods on storage, but kept some goods therein for some time longer because of the necessity of obtaining the government’s consent to their removal. Held, that he was entitled to recover from the lessor the proportionate part of the premium paid, but only from the time that the goods were removed from the warehouse, and not from the time that he discontinued receiving goods thereat.</p> <p>[Ed. Note. — Wot other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>10. Landlord, and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>Where the lessee of a bonded warehouse, because of the defective condition of its floors, was compelled to obtain another warehouse in which to receive goods, but was unable for soma time to obtain the government’s consent to the removal of the goods from the first warehouse, during which time he was required by the government regulations to keep a storekeeper and an inspector at each warehouse, though he was doing no business and receiving no goods a1 the first warehouse, he was entitled to recover from the lessor the salaries of the extra employés which he was required to employ.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. §§ 441 — 443; Dec. Dig. § 125.*]</p> <p>11. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>Such lessee was entitled to recover from the lessor the amount uselessly paid to a telephone company while he was compelled to maintain both warehouses.</p> <p>[Ed. Note. — For other cases, see Landlord and-Tenant, Cent. Dig. §§ 441-443; Dec. Dig. jf, 125.*]</p> <p>12. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>Where the lessee of a warehouse because of the defective condition of its floors was compelled to move temporarily into another building until he secured a suitable building, he was entitled to recover of the lessor the expense of removing his goods from the temporary building to the new warehouse.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>13. Landlord and Tenant (§ 125*) — Breach by Landlord — Damages.</p> <p>The lessee of a warehouse who, because of the defective condition of its floors, was compelled to move into a temporary warehouse, where the cost of insurance and the cost of labor in handling goods was greater than in the leased warehouse, was entitled to recover this difference from the lessor.</p> <p>[Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>14. Landlord and Tenant (§ 125*) — Breach bt Landlord — Damages.</p> <p>The lessee of a warehouse who, because of the defective condition of its floors, sued for a cancellation of the lease and for damages was not entitled to recover the amount paid to experts for examining and reporting on the building with a view to supporting his side of the controversy, since such expenses are not recoverable in a suit for breach of contract, at least in the absence of malice or fraud.</p> <p>[Ed. Note. — Eor other cases, see Landlord and Tenant, Gent Dig. §§ 441-443; Dec. Dig. § 125.*]</p> <p>On Application for Rehearing.</p> <p>15. Appeal and Error (§ 1185*) — Judgment —Correction.</p> <p>A clerical error in amount in the opinion and judgment of the Supreme Court would be corrected without granting a rehearing.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. § 1185.*]</p>

<p> (Syllabus by the Oourt.) </p> <p>Explosives (§ 9*) — Sale of Explosive Mixture — Negligence — Sueficienov oe Evidence.</p> <p>The evidence of the plaintiff fails to satisfy the court that her injuries were due to any fault of the defendant in selling' her oil that was dangerous, and the mere facts that defendant threw away a large number of gallons of oil without showing that his act had some reference to the alleged explosion and injury of plaintiff is not sufficient evidence to show that he was guilty of a fault that caused plaintiff injury.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. § 6; Dec. Dig. § 9.*]</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; James G. Palmer, Judge.</p> <p>Abb Powler was convicted of crime, and appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>Sales (§ 193*) — Acquisition oe Title — Payment oit Purchase Price.</p> <p>Where A., while operating a sawmill for his own account, bought machinery in his own name, B., claiming to be owner and lessor of the plant, could not acquire title to such machinery by merely paying a part of the price thereof.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 507; Dee. Dig. § 193.*]</p>

King, Judge. •Succession of George Washington Mann. Action by the parents of George Washington Mann against Ollie Mann, his widow, to annul a judgment. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from Thirteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by A. J. Larkin against the Union Sulphur Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Adverse Possession (§ 79*) — Title by Prescription-Acquisition.</p> <p>Where it appears that a defendant in a petitory action and Ms author, holding under an auditor’s deed, based upon an adjudication to the state, have been in undisturbed possession for nearly 20 years, that the descriptions in their titles were amply sufficient to identify the property, and that the adjudication is not open to any objection^ for which, under article 233 of the Constitution, it could be set aside, the three years’ prescription, established by that article, is properly sustained.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. § 79.*)</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas. Moss, Judge.</p> <p>W. M. Roberson was convicted of retailing liquors without a license, and appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Abatement and Revival (§ 54*) — Survival — Personal Injuries.</p> <p>The right of action conferred by the first paragraph of Act 120 of 1908 upon a person who is injured through the fault of another for the recovery of damages for the injury sustained by him survives in favor of the other parties mentioned only in the event that it is not exercised and exhausted by the party injured.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 100, 255; Dec. Dig. § 54.*]</p> <p>2. Death (§§ 86, 88*)— Right of Action — Damages Recoverable.</p> <p>The second paragraph of Act 120 of 1908 confers upon the parties mentioned in the first a distinct right of action for the recovery of the damages sustained by them in consequence of the death, through the fault of another, of a parent, child, etc., and there may be included in such recovery damages for the loss of such material aid and support as might reasonably have been expected, and for the loss of the society, moral support, counsel, affection, and kindly offices of the decedent.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 182, 202, 203; Dec. Dig. §§ 86, 88.*]</p> <p>3. Death (§ 18*) — Right of Action — Damages Recoverable.</p> <p>Where a person injured through the fault of another has himself sued for and recovered an amount as compensation for expenses incurred, and for time lost and suffering endured, and to be lost and endured in the future, no claims on those counts survives in favor of any one. And in such case, where it appears that the injury complained of incapacitated the party injured at the time, and permanently, for any useful or profitable work, and that thereafter until his death “he was a misery to himself and a burden to others,” it cannot be said that his heirs sustained any loss, whether material, moral, or mental, by reason of his death, and there can be no recovery of damages on that account.</p> <p>LEd. Note. — For other cases, see Death, Cent. Dig. § 37; Dee. Dig. § 18.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant (§ 278*) — Duty of Master — Safe Place to Work — Warning —Sufficiency of Evidence.</p> <p>A master must furnish his servant with a reasonably safe place in which to work, and where light is necessary for the safety of the workmen the master must furnish it, and where necessary must give the servant timely warning of any danger. The evidence shows that the master did not fulfill his obligation towards the servant in these respects.</p> <p>[Ed. Note. — For other cases, see Master and Servant. Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]</p> <p>2. Master and Servant (§ 103*) — Injury to Ser vant — Defense .</p> <p>The master cannot escape the obligation that rested on him to see that the burlap was safely piled by averring that the plaintiff took part in piling the bags, and is therefore estopped from complaining of their faulty arrangement. The evidence shows that plaintiff was merely one of a gang of men, varying at times in numbers, and that he possessed no superior skill or knowledge which legally relieved the defendant of the obligation of taking the necessary measures for his safety.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*]</p> <p>Provosty, J., dissenting.</p>

Action by the Pratt Engineering & Machine Company against the Cecelia Sugar Company. Jules Godchaux, receiver for defendant, intervened. Judgment for plaintiff, and an order for a suspensive appeal was denied, and the receiver applies for writs of mandamus and prohibition.

<p>Appeal from Thirtieth Judicial District Court, Parish of La Salle; George Wear, Sr.. Judge.</p> <p>Jack Harp was convicted of manslaughter, and appeals.</p>

Action by the Mercantile Lumber & Supply Company against Jones & Pickett, Limited. A judgment in the district court dismissing plaintiff’s demand was reversed by- the Court of Appeals and defendant applies for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>1. Statutes (§ 120*) — Title and Subject-Matter — Municipal Ordinances — Vagrancy.</p> <p>Act No. 205 of 1908, to empower, municipal corporations and police juries to adopt ordinances declaring certain classes of persons to be vagrants, and punishing them as such, is not repugnant to the Constitution of 1898.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 168-172; Dec. Dig. § 120.*]</p> <p>2. Constitutional Law (§ 63*) —Legislative Power — Delegation.</p> <p>The maxim that legislative power must not be delegated has no application to political subdivisions created for the purposes of local government-</p> <p>[Bd. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dee. Dig. § 63.*]</p>

F. Brunot, Judge. Action by the State against Sam Edimar on a bail bond. From a judgment forfeiting the bond, Peter Louis, surety on the appearance bond, appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by the State against Sam Edimar on a bail bond. From a judgment forfeiting the bond, defendant appeals.</p>

Théard, Judge. Action by the Barrett Manufacturing Company against the Board of Commissioners for the Port of New Orleans and others. Judgment for defendants, and plaintiff appeals, and the Board also appeals.

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; B. C. Dawkins, Judge.</p> <p>Oscar Brannon was convicted of murder, and appeals.</p>

<p> (Syllabus by the Oouri.) </p> <p>1. Costs (§ 247*) — Persons Liable.</p> <p>“If the judgment be reversed, in whatever degree it may be, the appellee shall pay the costs” of the Supreme Court. Article 908, Code Prac.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 951, 953, 955, 957, 958, 960; Dec. Dig. § 247.*]</p> <p>2. Costs (§ 247*) — Persons Liable.</p> <p>In the district court, where it has not been formally decreed that the party cast shall pay the costs, they shall be taxed against him on execution of the judgment. Article 551, Code Prac.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 951, 953, 955, 957, 958, 960; Dec. Dig. § 247.*]</p> <p>3. Costs (§ 247*) — Persons Liable.</p> <p>Where the judgment of the district court dismisses plaintiff’s suit, on exceptions filed by the defendant, and that judgment is reversed by the Supreme Court, the costs of appeal and the costs, of the district court on the trial of the exceptions must be paid by the party who was cast, and they will be taxed against him on execution of the judgment.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 951, 953, 955, 957, 958, 960; Dec. Dig. § 247.*]</p>

<p>Mortimer Morgan was convicted of violating the game law, and applies for writs of certiorari and prohibition.</p>

Mandamus by the State, on the relation of the Parish Board School Directors, against the City of Monroe and others. After final judgment the relator ruled, defendants into the District Court to show cause why a writ of distringas should not issue against the City of Monroe and why the mayor and councilmen should not he punished for contempt.

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>J. R. Williamson was convicted of retailing spirituous or intoxicating liquors without a license, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Licenses (§ 7*) — License Tax — Validity.</p> <p>License taxes must be graduated. Const. 1898, art. 229.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. § 7.*]</p> <p>2. Licenses (§ 7*) — License Tax — Oedinance —Validity.</p> <p>A license ordinance, providing that any person or persons following or attempting to follow any of the businesses enumerated therein, who shall refuse or fail to pay the amount of licenses required thereunder, shall be arrested, and on conviction shall be subject to a fine or imprisonment, is ultra vires, unconstitutional, null, and void.</p> <p>[Ed. Note. — For other eases, see Licenses. Cent. Dig'. §§ 7-15, 19; Dee. Dig. § 7.*]</p>

Mary; W. R. Gates, Judge ad hoc. Action by Emile Gajan and others against Patout & Burguieres, in which the L. P. Patout Company, Limited, and also the Liquidators of the State National Bank of New Orleans, filed Interventions and Third Oppositions. Judgment for the liquidators of the State National Bank, and L. P. Patout Company, Limited, alone appeals.

<p>Appeal from First Judicial District Court, Parish, of Caddo; E. W. Sutherlin, Judge.</p> <p>Action by Mrs. Bessie Hall against the Allen Manufacturing Company, Limited. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from City Court of Shreveport; L. C. Blanchard, Judge.</p> <p>Joe Maroun was convicted of retailing liquor without a license, and appeals.</p>

Action by the Union Sawmill Company against S. W. Taylor, Jr. Judgment for plaintiff in the .District Court was reversed by the Court of Appeals, and plaintiff applies for certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>1. Indictment and Information (§ 149*) — Designation of Venue — Time to Object.</p> <p>It is not necessary to name any venue in the body of the indictment, where the state and parish are named in the margin. Rev. St. '1870, § 1062.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 496; Dec. Dig. § 149.*]</p> <p>2. Indictment and Information (§ 149*) — Designation of Venue — Time to Object.</p> <p>Where an indictment is defective for want of “a proper or perfect venue,” it may be forthwith amended, on objection made before the jury is sworn. Rev. St. §§ 1063, 1064.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 496; Dec. Dig. § 149.*]</p> <p>3. Homicide (§ 165*) — Manslaughter — Evidence.</p> <p>Where the indictment was for manslaughter and the evidence tended to show that the parties were in a boat, when a sudden quarrel arose between them, and the defendant thereupon struck the deceased on the head with an oar, and knocked him in the river, where he drowned, held, that evidence of amicable relations between the parties when they entered the boat was immaterial.</p> <p>[Ed. Note. — For other cases, see Homicide, Gent. Dig. § 319; Dec. Dig. § 165.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Similar Constitutional Provisions.</p> <p>Articles practically identical in meaning with article 170 of the Constitution of 1898 were contained in the Constitutions of 1845 (article 126), 1852 (article 122), and 1864 (article 123), and articles framed in the identical language were contained in the Constitutions of 1868 and 1879.</p> <p>2. Statutes (§ 125*) — Title and Subject-Matter — Dual Oeeice Holding Act.</p> <p>This court, in 1850, placed a construction upon the article contained in the Constitution of 1845 (article 126) holding that it applied to state officers, and did not apply to municipal officers, and no other construction was ever placed upon that article or upon the identical, or practically identical, articles in the Constitutions of 1852 (article 122), 1864 (article 123), or 1868 (article 117). In 1892 this court placed the same construction on the article contained in the Constitution of 1879 (article 159), and no other construction had been placed on it up to the adoption of the Constitution of 1898, nor has any other construction been placed on the article contained in the Constitution of 1898. The courts must therefore assume that article 170 of the Constitution of 1898 was adopted as having the meaning which, for 50 years before its adoption, and under six Constitutions, had been attributed to it, and hence must hold that an act of the General Assembly, the title of which declares ft to be an act to enforce article 170 of the Constitution, is broader than its title, in so far as it undertakes to deal with municipal officers, and to make it an offense for a person to hold, at the same time, a state and a municipal office.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 187-191; Dec. Dig. § 125.*]</p>