Volume 139 — Louisiana Reports

<p>Appeal from Third Judicial District Court, Parish of Bienville; W. C. Barnette, Judge.</p> <p>Action by T. O. Thrash and another against the Vicksburg, Shreveport & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Bernard Lurie against Charles C. Titcomb. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mandamus <&wkey;168(4) — Procedure — Evidence.</p> <p>Where, in a proceeding by mandamus to compel the register of the State Land Office to recognize and relocate land warrants, issued in 1860, or “refund” warrants in lieu thereof, to an alleged assignee of the heirs of the original purchaser, alleged to be deceased, there is no proof of heirship, or of the existence, or devolution, of the warrants, at the death of the purchaser, and the warrants are neither produced nor accounted for, the proceeding is properly dismissed.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 374; Dec. Dig. &wkey;>168(4).j</p> <p>On Rehearing.</p> <p>2. Mandamus <&wkey;168(2) — Procedure — Bub-den oe Proof.</p> <p>The heirship of relator’s vendors being a necessary link in his chain of title to the land warrants in dispute, the burden is on him to prove with legal certainty that his vendors are the sole heirs of the original holders of the warrants.</p> <p>[Ed. Note. — For other eases, see Mandamus, Gent. Dig. § 372; Dec. Dig. &wkey;168(2).]</p> <p>3. Appeal and Error <&wkey;1153 — Determination — Dismissal—Involuntary NonsuitGrounds.</p> <p>A judgment of nonsuit should be entered, where it is probable that material evidence, not adduced on the trial, may hereafter be procured.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-A512; Dec. Dig. <&wkey;> 1153.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Removal oe Municipal Officers — Constitutional Provision.</p> <p>Under article 222 of the Constitution, district attorneys are required to institute suits for the removal of municipal and other officers “on the written request and information of twenty-five resident citizens and taxpayers,” who are given the right to appeal both on the law and the facts, and who in case of the acquittal of the officer are made liable in solido for all costs of the suit.</p> <p>2. Malicious Prosecution <&wkey;47 — Action— Pleading.</p> <p>A petition alleging that the plaintiff, a may- or of a certain town, had been prosecuted under article 222 of the Constitution on the written request and information of the defendants, and that, pending the trial, after the introduction of evidence, the suit had been discontinued on the motion of the district attorney, that the charges of malfeasance, misfeasance, corruption, etc., made by the defendants in their written request or petition to the district attorney were false and untrue, and were made by them without probable cause, and with the malicious intent to destroy plaintiff’s reputation as an officer, and as a man and citizen, discloses a cause of action.</p> <p>[Ed. Note. — Eor other cases, see Malicious Prosecution, Cent. Dig. §§ 91, 92, 96; Dec. Dig. <&wkey;47.]</p> <p>3. Libel and Slander <&wkey;38(l) — Malicious Prosecution <&wkey;50 — Privileged Communications — Pleading.</p> <p>In this state a libelous allegation is not privileged unless founded on probable cause. In a suit for damages for a malicious prosecution the plaintiff is not required to allege specially that the defendants knew that the charges made by them were false. It suffices for the plaintiff to allege that the charges are false, made in malice, and without probable .cause.</p> <p>[Ed. Note. — Eor other cases, see Libel, and Slander, Cent. Dig. §§ 117, 123; -Dec. Dig. &wkey;j 38(1); Malicious Prosecution, Cent. Dig. § 97; Dec. Dig. <&wkey;>50.] ■</p> <p>4. Malicious Prosecution <&wkey;35(l) — Right oe Action — Termination oe Prosecution.</p> <p>The dismissal or discontinuance by the state of an impeachment suit during the trial thereof is a termination of the prosecution.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 71-76; Dec. Dig. ¡&wkey;</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>5.Malicious Prosecution <&wkey;20 — “Probable Cause.”</p> <p>The term “probable cause,” as used with reference to an action for malicious prosecution, means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the offense with which he is charged.</p> <p>[Ed. Note. — Eor other cases, see Malicious Prosecution, Cent. Dig. §§ 26-28; Dec. Dig. 20.]</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Jos. E. Le Blanc, Judge.</p> <p>Suits by the Iberville Bank & Trust Company against P. A. Dupuy, in which H. T. Cottam & Co., Limited, filed a petition praying to be permitted to intervene. From a judgment in favor of the plaintiff, the interveners appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1.Schools and School Districts <&wkey;2— Constitutional Law — Academy—Obligation of Contracts — Body Politic and Corporate.</p> <p>An institution of learning, organized as a “body politic and corporate,” and partially endowed by the state and by the United States government, is a quasi public corporation, and may be dissolved by an act of the Legislature, when provision is made for the protection of all of the contract rights of the defunct institution and its creditors; especially after such institution has actually ceased to exist for a long term of years, and there is no one authorized, under the charter, to take charge of the property donated to such institution for the special purpose of educating the people of a given locality within the state.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 2; Dec. Dig. <&wkey; <&wkey;>2.]</p> <p>' (Additional Syllabus by Editorial_ Staf.)</p> <p>2. Constitutional Law <&wkey;43(l) — Construction of Constitution — Estoppel to Raise Constitutional Question.</p> <p>Trustees of an academy holding under Act No. 195 of 1860, reorganizing the academy, cannot assail the constitutionality of that act.[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41; Dec. Dig. <¿=>43(1).]</p> <p>3. Schools and School Districts <&wkey;2 — Private Academy — Dissolution and Liquidation of Corporation.</p> <p>Where the charters of an academy do not provide for the dissolution of the corporation or the liquidation of its affairs, the board of trustees are without authority to provide for such dissolution or liquidation.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 2; Dec. Dig. <@=>2.]</p>

Action by Joseph Franek against H. C. Brewster and others. An appeal by Thomas N. Jacobs and others from judgments against them was dismissed, and they apply for a writ of prohibition.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Louis Dalberni and wife against the New Orleans Can Company. From a judgment for plaintiffs, defendant appeals.</p>

Mary; Thomas M. Milling, Judge. In the matter of the application of Sam Serio and others, to prohate the will offered by them as the last will and testament of Miss F. C. Lefort, deceased, with opposition thereto of Mrs. Carrie Sawyer Kramer and others. From the judgment, Sam Serio .and others appeal.

.Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge. Action by Mrs. Barbara Sander and others against the New Orleans & Northeastern Railroad Company and others. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge. '</p> <p>Tom McGuire was convicted of selling liquor without a license, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Florian Schaffter against Michael Irwin and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court,. Parish of Caddo ; T. F. Bell, Judge.</p> <p>Tony Couris was convicted of a public offense, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Taxation &wkey;>468— Assessment — Correction — Duty oe Board of Reviewers.</p> <p>The revenue statutes (Act 170 of 1898 and Act 63 of 1906) were enacted in the interest of the state as well as of the taxpayers, and, while they confer no authority upon a police jury, sitting as a board of reviewers, to reduce an assessment where the taxpayer has not complained of it, and has estopped himself to complain, they impose the mandatory duty upon such board to take the initiative in the interest of the state, and “to carefully examine and scrutinize every assessment” roll with a view of determining whether the valuations extended thereon are correct or incorrect, and, if they are too high, and the taxpayers have made complaint as the law provides, to reduce them, in justice to the taxpayers, and, if they are too low, to increase them, in justice to the state.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 837; Dec. Dig. &wkey;>468.]</p> <p>2. Counties <&wkey;113(6) — Parishes—Contracts —Power of Police Jury.</p> <p>The contention that the effect of a contract whereby a police jury employs a person who is experienced in the estimating of timber and of land areas to aid it, when sitting as a board of reviewers, in discharging its function of reviewing and correcting the valuations extended by the assessors upon the assessment rolls, is merely to employ assistants to the assessors, is not well founded. The purpose of such a contract may well be, and is in this case, to provide the board of reviewers with information which they do not possess and which is absolutely necessary to enable them to review the work of the assessors.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 180; Dee. Dig. &wkey;113(6).]</p> <p>3. Taxation <&wkey;485(2) — Assessments — Cor- ' RECTION.</p> <p>To discharge intelligently the functions of levying the taxes necessary to defray the expenses of their respective parishes, and, when sitting as a board of reviewers, of reviewing the assessments made by the assessors for the purposes of taxation, the police juries must be informed, from some source, of the value of the standing timber, timbered land, and denuded and open land, subject to taxation, and we know of no law which denies them the right to obtain such information from other sources than through the assessors and the taxpayers.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 862; Dec. Dig. <&wkey;485(2).)</p> <p>4. Counties <&wkey;113(l) — Parishes—Power of Police Jury.</p> <p>Though an assessor, whose duties and compensation are fixed by law, may not without special authority increase the expense of his office, it does not follow that a police jury, charged with the administration of the affairs of a parish, is without authority to incur the expense necessary to the performance of a mandatory duty in connection with such administration.</p> <p>[Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 174, 176; Dec. Dig. &wkey;113(l).]</p>

<p>Appeal from Recorder’s Court of New Orleans; J. J. Fogarty, Recorder.</p> <p>Hoa Le Blanc was convicted of violating, an ordinance of the City of New Orleans, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Husband and Wife <&wkey;272(5) — Community Property — Partition—Evidence.</p> <p>Plaintiff, divorced from her husband, alleging error and fraud in the exclusion of a certain mortgage note from a partition of the community property, is bound to make out her case by a clear preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1007; Dec. Dig. &wkey;272(5).]</p>

<p> (Syllabus by the Court.) </p> <p>Homestead &wkey;370 — Property Constituting —Separate Parcels.</p> <p>A homestead exemption cannot extend to two distinct and separate parcels of land. Tinney v. Yittur, 134 La. 549, 64 South. 407, reaffirmed.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 100-103; Dec. Dig. &wkey;70.]</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; Joseph E. Le Blanc, Jr., Judge.</p> <p>Luron Dickerson was indicted for feloniously marking a calf. From a judgment quashing the indictment, the State - appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Joseph B. Lancaster, Judge.</p> <p>Action by E. A. Pilsbery, trustee, against A. Fricke, Sr., and others. From a judgment for plaintiff, defendants appeal.</p>

K. Skinner, Judge. Action by Julius C. Klumpp and others against W, H. Howcott. From the judgment, plaintiffs appeal, and defendant joins in the appeal.

<p> '(Syllabus by the Court.) </p> <p>Railroads <3=>276(3) — Operation—Injuries</p> <p>to Trespassers — Liability.</p> <p>Where a boy of 12, seated, though as a mere trespasser, on the edge of a flat car in a siding, is seen, at a distance of 75 yards, by the engineer of a locomotive who is backing it into the siding to make a drop switch, and the speed of the locomotive is such as, with its weight, to threaten the car with destruction and the boy with death, the engineer owes the duty, from the moment that he sees the boy, of doing everything that it is possible for him to do to avoid injuring him, and is guilty of negligence in failing to make any attempt to check the speed of the locomotive. And where, in such case, the boy jumps off the car, and in scrambling away from the threatened danger gets upon the main track and is injured by the cars which the locomotive has dropped, and which are running on that track without brakes or brakemen, the company employing the engineer is responsible, in damages, for the injuries received by the boy. It is well settled that one who negligently places another in danger cannot exact of him the exercise of the most deliberate judgment in his attempt to escape therefrom.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 880^883; Dec. Dig. <3=5276(3).]</p> <p>Provosty, J., dissenting.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Alice R. Waterhouse against the Star Land Company, Limited, and others. From a judgment for defendants, plaintiff appeals.</p>

Actions by Mrs. Clara Boylan, .wife of George Troyer, against the New Orleans Railway & Light Company, and by John Ca-hill against the same defendant. From a judgment for plaintiffs, defendant appeals.

, Action by Theodore Teal against the Philadelphia & Gulf Steamship Company. From a judgment discharging a rule by plaintiff to show cause why service of citation should not be considered valid, plaintiff appeals.

<p>Appeal froin Eleventh Judicial District Court, Parish of Bed Biver; W. T. Cunningham, Judge.</p> <p>Actions by Sam Lisso and others against Mrs. Mary E. Williams and against S. P. Schenberger and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Action by the Planters’ Cotton Oil Company, Limited, against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant applies for a writ of review.</p>

<p>Appeal from Second Judicial District Court, Parish of Bossier; J. N. Sandlin, Judge.</p> <p>Action by A. C. Burnecke against J. B. O’Neal and another. From a judgment for defendants, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Railroads <&wkey;303(l) — Damages to Triavel- . ees — Defective Crossing Approaches.</p> <p>Under section 691 of the Revised Statutes of 1870, as amended by Act No. 157 of 1910, railroads are charged with the duty of constructing and maintaining their crossings (including approaches) over public roads, so as not to hinder, impede, or obstruct the safe and convenient use of the highways, and are responsible in damages to travelers injured by reason of the bad condition of such approaches, resulting from want of proper repairs.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 959; Dec. Dig. &wkey;303(l).]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Henry Rose Mercantile & Manufacturing Company, Limited, against Milton F. Smith. From judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Adoption <&wkey;21 — Rights op Adopted Child — Inheritance—“Forced Heir.”</p> <p>In the absence of other forced heirs, an adopted child becomes a forced heir, entitled to the légitime of one-third of the estate of the foster parent.</p> <p>[Ed. Note. — For other cases, see Adoption, Cent. Dig. §§ 35, 36, 38-40; Dec. Dig. &wkey;21.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Forced Heir.)</p> <p>2. Gifts <&wkey;>41 — Gifts Intee Yivos — Right to Revoke-Wills.</p> <p>As a donation inter vivos is irrevocable, the donor’s request, in his last will and testament, that the donee divide with other legatees the property previously donated to her, is only a precatory suggestion having no legal force or effect.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. § 20; Dec. Dig. <&wkey;41.)</p> <p>3. Judgment <&wkey;649 — Ex Parte Judgment— Res Judicata — Guardian and Ward.</p> <p>An ex parte judgment, obtained by a tutor for the benefit of his own children and against the interest of another of his minor wards, probating a will, approving the account of the tutor as testamentary ■ executor, or sending the minor children into possession of the estate, has not the force of res judicata.</p> <p>[Ed. Note. — For other eases, see' Judgment, Cent. Dig. § 1161; Dec. Dig. <&wkey;649.)</p> <p>4. Executors and Administrators <&wkey;93(l) — -Guardian and Ward &wkey;62 — Management of Mercantile Business — Duty to Account.</p> <p>A testamentary executor or tutor has no right to carry on indefinitely a mercantile business for the account of his minor ward. Where the tutor conducts a mercantile business with the stock of merchandise inherited by his ward, he must account for the value of the goods or merchandise belonging to the minor, with legal interest from the date on which he took possession of it.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 407, 408; Dec. Dig. &wkey;>93(l); Guardian and Ward, Cent. Dig. §§ 288-293; Dec. Dig. &wkey;62.]</p> <p>5. GUARDIAN AND WARD <&wkey;62 — TUTORSHIP— Use op Ward’s Property — Liability op Guardian.</p> <p>A tutor who has carried on a commercial business in a building belonging to his minor ward must pay his ward rent for the premises when it is adjudged that the business was carried on for the tutor’s personal account.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 288-293 ; Dec. Dig. <&wkey;62.]</p> <p>6. Executors and Administrators <&wkey;511(3) —Guardian and Ward &wkey;H62 — 1Tutorship —Final Account — Costs.</p> <p>The costs of court incurred in obtaining a final account from a testamentary executor and tutor must 'be borne by him personally when due to his illegal method of administration and his unwillingness to render an account.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2260--2264; Dec. Dig. <S&wkey;511(3); Guardian and Ward, Cent. Dig. §§ 538, 539; Dec. Dig. &wkey;162.]</p>

Application by the State, on the relation of D. C. Labbe and others, for writ of mandamus to W. F. Millsaps, Secretary of State, with application also by the State, on the relation of the Progressive Party of the State of Louisiana, for writ of mandamus.

Application by the State, on the relation of Charles Elfer and others, for writ of mandamus to W. E. Millsaps, Secretary of State, with application also by the State, on the relation of the Progressive Party of tbe State of Louisiana for writ of mandamus.

<p>Appeal from Civil District Court, Parish, of Orleans; George H. Théard, Judge.</p> <p>Action by Joseph A. Walker and wife, for the use of their minor child, Ida Walker, against Rene Rodriguez and others. From a judgment for defendants, plaintiffs appeal.</p>

<p> fSyllabus by the Court.) </p> <p>Brokers <&wkey;49(l) — Right to Commission-Performance op Contract.</p> <p>A real estate broker, who has neither sold nor found a purchaser for the property of his principal, is not entitled to commissions for his services.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 70; Dee. Dig. <§s^>49(l).]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Suit by Bertrand C. Francingues against Isabelle Dupierris. From a judgment for defendant, plaintiff appeals.</p>

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

<p> (Syllabus by the Court.j </p> <p>1. Set-Oef and Counterclaim <&wkey;41 — Compensation and Reconvention — Subject-Matter — Mutuality op Claims.</p> <p>A defendant, sued for a debt due by him, cannot, plead, in compensation thereof, a debt alleged to be due by the suing creditor to a corporation of which he (defendant) is a stockholder, since compensation takes place only “when it happens that both plaintiff and defendant are indebted to each other.”</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 76-79, 81; Dec. Dig. <&wkey;>41.]</p> <p>2. Corporations <§=>399(4) — Opbtcers — Authority.</p> <p>Where the board of directors of a business corporation elects a president and authorizes him “to appoint any and all managers, clerks, and other employés deemed necessary by Mm for the work of the corporation, and to fix salaries and compensation of all parties so employed,” the president has the power, under the authority so conferred, to fix the compensation of any officer, within such reasonable limit as his judgment may suggest, and, unless the circumstances be unusual, if he and one other person own all the stock of the corporation, such other person would have no reason to complain, since the compensation so fixed would be paid from a fund that would otherwise inure to the president and him, share and share alike.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1588; Dec. Dig. &wkey;399(4).]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. IC Skipner, Judge.</p> <p>Suit by the State, on the relation of Charles L. Henry, against Mrs. Chattie Lyons and another. From a judgment for defendants, relator appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Alfred M. Barbe, Judge.</p> <p>Action by Armand Levy against Samuel Levy. From a judgment for plaintiff, defend- | ant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law <&wkey;1144(2) — Grand Jury-Organization — Presumption.</p> <p>The presumption is that the grand jury was duly organized.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2745, 2901, 3017; Dec. Dig. &wkey;1144(2).]</p> <p>2. Intoxicating Liquors <&wkey;150 — Offenses —Place of Sale.</p> <p>In a prosecution for unlawfully retailing intoxicating liquors without a license, the question whether the sale was made in a “wet” or “dry” district is immaterial.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 164, 165; Dee. Dig. <&wkey;> 150.]</p>

<p>Appeal from Second Judicial District Court, Parish of Bossier; John N. Sandlin, Judge.</p> <p>Ben Murray was convicted of shooting with intent to kill, and appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; J. B. Lancaster, Judge.</p> <p>Actions by Mrs: Aurora Reisland Mills against the St. Tammany & New Orleans Railway & Ferry Company. From a judgment for defendant, plaintiff appeals.</p>

Judicial District Court, Parish of St. Tammany; J. B. Lancaster, Judge. Suit for an injunction by the Mandeville Ice & Light Company against the Town of Mandeville and others. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the State against Charles A. Underwood, or Southern Merchandise Exchange. From a judgment for defendant, plaintiff appeals.</p>

<p>Suit in separation from bed and board by Jules L. Brana against Maria A. Brana, his wife, brought in the civil district court, and proceeding by the wife In the juvenile court against her husband to compel provision for the support of a minor child, with order of the juvenile court, placing the child in charge of its mother, and from an order of the district court, revoking its order giving the custody to the mother, and giving the custody to the father, the wife applies for writs of certiorari and prohibition.</p>

<p>Appeal from Twelfth Judicial District Court, Phrish of De Soto; James G. Palmer, Judge.</p> <p>Action by Bettie Bristo against the Christine Oil & Gas Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; James G. Palmer, Judge.</p> <p>Action by Milo Calhoun against the Christine Oil & Gas Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; James G. Palmer, Judge.</p> <p>Action by Thomas F. Norris against Snyder & McCormick. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; James G. Palmer, Judge.</p> <p>Action by Kimball Dunham against W. B. McCormick. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De 'Soto; James G. Palmer, Judge.</p> <p>Action by Pat Nervis against W. B. McCormick. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; James G. Palmer, Judge.</p> <p>Action by Andrew Parrott against W. B. McCormick. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; James G. Palmer, Judge.</p> <p>Action by C. C. Williams against W. B. McCormick. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Estoppel <§=392(2) — Annulment of Invalid Option — Acceptance of Consideration.</p> <p>The grantor’s acceptance of the consideration paid by the grantee for keeping an indefinite, and therefore invalid option in force, during the time both parties considered it in force, does not prevent the grantor’s demanding that it be decreed null thereafter.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent Dig. § 261; Dec. Dig. <§=392(2).]</p>

P. Martin, Judge. Action by Jung & Sons against L. A. Trosclair, ’ and Le Bourgeois & Bush, third opponents and interveners. From judgment for plaintiffs, interveners and third opponents appealed to the Court of Appeal, which transfers the ease to the Supreme Court.

Barnette, Judge. Action by R. N. Sims, Examiner of State Banks, against the Athens Bank. The American National Bank proceeded by rule to be recognized as pledgee of certain collateral securities. From a judgment for the plaintiff in rule, the Examiner of State Banks appeals.

<p> (Syllabus by the Court.) </p> <p>Appeal and Erbob <@=>1003 — Negligence <§=>134(1) — Railroads <@=>348(1, 6) — Accidents at Crossings — Evidence—Review.</p> <p>A verdict and judgment manifestly against the weight of the evidence will be set aside and reversed. A plaintiff suing to recover damages for personal injuries must prove the alleged negligence of the defendant by a preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dee. Dig. <§=> 1003; Negligence, Cent. Dig. § 267; Dec. Dig. <@=>134(1); Railroads, Cent. Dig. §§ 1138, 1140, 1141, 1144, 1149; Dec. Dig. <§=>348(1, 6).]</p>

<p>Application by the State, on the relation of the John T. Moore Planting Company, Limited, for writ of mandamus to W. E. Howell, Judge, and others.</p>

<p> (Syllabus by the Court.) </p> <p>1. Vendor and Purchaser <&wkey;98, 116 — Rescission oe Contract — Rights oe Parties. “If the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise: to wit, he who has given the earnest by forfeiting it, and he who has received it by returning the double.” Civ. Code, art. 2463.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165, 205-208; Dec. Dig. <@=>98, 116.]</p> <p>2. Payment <&wkey;82(l) — Recovery — Natural Obligation.</p> <p>“No suit will lie to recover what has been paid or given in compliance with a natural obligation.” Civ. Code, art. 1759.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 254, 258, 259, 261, 265; Dec. Dig. &wkey;82(l).]</p> <p>3. Vendor and Purchaser <&wkey;334(l) — Remedies oe Purchaser — Recovery oe Earnest Money — “Natural Obligation.”</p> <p>The payment of earnest money by a wife out of her separate funds, without the authorization of her husband, is the discharge of a natural obligation, and no right of action is given the wife or husband to recover the same.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959, 962, 964; Dec. Dig. <@=>334(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Natural Obligation.]</p>

<p>Appeal from Twenty-Fifth. Judicial District Court, Parish of Livingston; Robert S. Ellis, Judge.</p> <p>Action by William V. Gilmore against the Frost-Johnson Lumber Company. From judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Interest <&wkey;67 — Verbal Contracts — Quantum of Evidence.</p> <p>The uncorroborated testimony of the maker of a note promising to pay a fixed sum with interest, upon which the- past-due -interest exceeds $500, is insufficient to establish, as against his coheirs of the deceased holder, a verbal agreement with such holder that no interest would be charged.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 155, 156; Dec. Dig. <&wkey;>67.]</p> <p>2. Descent and Distribution i&wkey;109— Succession— Collation.</p> <p>A debt, due by way of interest, but alleged to have been remitted, is subject to collation as is any other debt.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 416, 419, 420; Dec. Dig. <i&wkey;109.]</p> <p>3. Evidence <&wkey;230(5) — Statements of Vendor.</p> <p>The statements of the deceased vendor, though made out of the presence of the vendee, in regard to a sale, attacked as fraudulent, simulated, or a disguised donation, are admissible in evidence to show such vendor’s attitude of mind towards the transaction, though not, of itself, sufficient to prove fraud or illegality in the vendee.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 848; Dee. Dig. &wkey;>230(5).]</p>

<p> (Syllabus by Mditorial Staff.) </p> <p>1. Contracts <&wkey;187(4) — Parties'—Assuming Debt to Third Person — Assent.</p> <p>Where a contract required the purchaser to assume the vendor’s notes held by a third person, such third person w^is not a party to the contract in the absence of acceptance of the new obligation by Mm.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 800; Dec. Dig. &wkey;jl87(4).]</p> <p>2. Vendor and Purchaser <@=3104^Sales— Rescission by Vendor —Action —Necessary Parties.</p> <p>Where the holder of the vendor’s notes had never consented to assumption thereof by the purchaser, he was not a necessary party to the vendor’s suit to rescind, nor did he become a necessary party on the purchaser’s tender of performance after default; such holder’s rights accruing under Civ. Code, art. 1890, only on his assenting to the assumption.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 178-182; Dec. Dig. &wkey;104.]</p> <p>3. Vendor and Purchaser <&wkey;169 — Sales— . Performance — Tender after Default.</p> <p>Where the vendor demands that the purchaser perform, thus putting him in default, under Civ. Code, art. 1911, the purchaser may still make valid tender of performance, which the vendor must accept, unless time of performance is the essence of the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 343; Dec. Dig. &wkey;> 169.]</p> <p>4. Vendor and Purchaser &wkey;>169 — Sales— Performance — “Putting in Default.”</p> <p>Under Civ. Code, art. 1911, stating how the debtor may be put in default, the act of putting in default is a simple demand for performance, but does not cut off the right to perform.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 343; Dee. Dig. <&wkey;169.</p> <p>For other definitions, see Words and Phrases, Second Series, Put in Default.]</p> <p>5. Statutes <&wkey;214 —Construction—Adoption from Foreign State.</p> <p>The statute _ as to defaults having been taken from the civil law, in construing it, the construction of the civil law by courts and law-writers may be consulted.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 290; Dec. Dig. <&wkey;214.]</p> <p>6. Contracts <i&wkey;211 — Time — Essence of Contract.</p> <p>Time of performance is of the essence of the contract when it is of such importance that the parties would not have contracted without it.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 938-943; Dec. Dig. &wkey;211J</p> <p>7. Contracts <&wkey;277(2) — Performance—Putting in Default — Function.</p> <p>_ The function of the act of putting the debt- or in default by demand that he perform is simply to warn him that damage for delay in performance will be demanded, and that time of performance is required to be strictly complied with.</p> <p>LEd. Note. — For other cases, sec Contracts, Cent. Dig. §§ 1228-1232; Dec. Dig. &wkey;277(2)J</p> <p>8. Vendor and Purchaser <&wkey;93 — Sales— Rescission — Secondary Remedy.</p> <p>Enforcement of the resolutory condition of a credit sale contract is a secondary remedy to be enforced only when the primary one of enforcing payment fails.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 153, 154; Dee. Dig. <&wkey;93.]</p> <p>9. Cancellation of Instruments <&wkey;59 — Performance — Resolutory Conditions — Time — Relief to Defendant.</p> <p>Where immediate performance of a contract pending suit is impossible, the court may, by direct provision of Civ. Code, art. 2047, allow a reasonable time for performance.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 119-125; Dee. Dig. &wkey;59.]</p> <p>10. Contracts <&wkey;252 — Rescission—Right— Implied Conditions.</p> <p>The resolutory condition must be expressly reserved, and is not implied. ■</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1145; Dec. Dig. &wkey;252.]</p> <p>11. Vendor and Purchaser <&wkey;93 — Sales-Right to Rescind.</p> <p>The dissolution of the contract of sale never becomes the creditor’s absolute right, since Civ. Code, art. 2047, gives the court power to allow a reasonable time for performance after suit.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 153, 154; Dee. Dig. @=93.]</p> <p>12. Contracts @=301 — Performance Pending Suit — Right to Perform.</p> <p>Though the debtor has been put in default, he may perform pending suit, since until the contract is judicially dissolved, it is in existence, and not only permits, but calls, for performance.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1388-1397; Dee. Dig. @=301.]</p> <p>13. Cancellation of Instruments @=1 — Effect of Bringing Suit.</p> <p>Bringing suit to dissolve a contract creates no new right nor removes any, but merely enforces those already existing.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 1-6; Dec. Dig. @=1.]</p> <p>14. Vendor and Purchaser @=185 — Sales— Delay in Performance — Effect.</p> <p>Especially in sales of immovables delay in performance should not be allowed to be cut off by putting in default.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. @=185.]</p> <p>15. Contracts @=264 — Rescission — Prerequisites — Putting in Default.</p> <p>Civ. Code, art. 1912, making putting in default prerequisite to rescission of the contract, applies only to contracts whereof time is not of the essence.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1184, 1185; Dec. Dig. &wkey;264.]</p> <p>16. Contracts @=264 — Rescission — Prerequisites — Putting in Default.</p> <p>Putting in default, before rescission of the contract, as required by Civ. Code, art. 1912, is not necessary in suits for rescission for fraud or error or lesion beyond moiety, or for any cause of nullity.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1184, 1185; Dec. Dig. &wkey;264.]</p> <p>17. Courts @=92 — Decisions — Effect in Other Cases — Obiter Dictum.</p> <p>Where the court, in a ease wherein the defendant had not been put in default, stated in its opinion, without inquiry as to its soundness, that tender after default was too late, such expression was obiter dictum and of no weight.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 335; Dee. Dig. @=92.]</p> <p>18.Sales @=170 — Contracts—Performance —Delivery—Time.</p> <p>A party under obligation to deliver goods at once cannot wait two years in spite of frequent demands and then seek to compel the other to receive them, but such party does not forfeit his right to deliver by waiting formal demand for delivery.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 424; Dec. Dig. &wkey;170.]</p> <p>19. Vendor and Purchaser @=6 — Sales— Contracts — Validity — Ownership of Property.</p> <p>A contract to sell the property of another is null.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 4, 5; Dec. Dig. @= 6.]</p> <p>20. Courts @=107 — Opinions — Construction — Facts of Case.</p> <p>Though the language of a decision applies generally to all contracts, it must be construed together with the facts of the case decided.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 360; Dec. Dig. @=107.]</p> <p>21. Contracts @=264 — Dissolution — Putting in Default.</p> <p>Putting in default under a contract containing the express resolutory condition has no analogy to putting in default where such condition is only implied and takes place only after-decree.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1184, 1185; Dec. Dig. &wkey;264.]</p> <p>22. Contracts @=277(1) — Performance — Putting in Default — Effect.</p> <p>The act of putting in default by demand for performance merely creates a legal situation of default, but does not otherwise affect the rights of the parties.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1217-1227; Dec. Dig. @=277(1).]</p> <p>23. Vendor and Purchaser @=185 — Sales-Time for Performance — Tender after Default Made.</p> <p>Since by Civ. Code, art. 2563, the purchaser, who stipulates that the sale shall be dissolved of right in case he does not pay the price within the term, may nevertheless make payment after the expiration of the term if judicial demand has not been made, the same right extends to the purchaser who has not made a definite resolutory condition.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dee. Dig. @=185.]</p> <p>24. Vendor and Purchaser &wkey;>185 — Sales— Time of Performance — Allowance of Further Time.</p> <p>That the purchaser has been dilatory in performance is no ground for refusing to allow him further time in which to perform.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. <@^185J</p> <p>25. Vendor and Purchaser <&wkey;185 — Sales-Time of Performance — Allowance of Further Time.</p> <p>The mere fact that a purchaser, having learned of possible cloud upon the title, sought to discover the purported holders of the title which made a cloud, is insufficient to show that he was seeking to undermine the title so as to prevent allowance of further time in which to perform.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 369-372; Dec. Dig. &wkey;5l85.]</p> <p>26. Vendor and Purchaser <&wkey;99, 186 — Sales — Actions—Defenses—Cloud on Title.</p> <p>A cloud on title to land which one has agreed to buy, instead of being a reason for refusing a purchaser further time in which to perform, is a full justification for refusal to pay under Civ. Code, art. 2557, and a peremptory defense to action for rescission.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 167-169, 341, 373; Dec. Dig. <&wkey;99, 186.]</p> <p>27. Vendor and Purchaser &wkey;>92 — Sales— Rescission — Effect of Tender Pending Suit.</p> <p>A sale will not be rescinded on the ground of noncompliance with its conditions when full performance is tendered in answer to the suit.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. &wkey;>92.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Landlord and Tenant <&wkey;251(2) — Rent-Lien — Removal oe Property.</p> <p>A bank, which did not assume payment of the rent of leased premises, was liable to the lessor, suing ex delicto, for removing and selling goods of the successor of the lessee on the leased premises pursuant to conspiracy with the successor.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1027; Dee. Dig. &wkey;> 251(2).]</p> <p>2. Landlord and Tenant <&wkey;251(2) — Rent-Lien — Removal oe Propeety — Conspiracy.</p> <p>Where a company which absorbed another company, lessee of premises, taking over all its assets, as well as the possession of the leased premises, pledged the goods on the leased premises to its creditor bank, which conspired with it to deprive the landlord of his lessor’s right of pledge and privilege on the goods, so removing and selling them, the bank applying the proceeds to the payment of its debt to an amount more than sufficient to pay the landlord’s claim for rent, knowing that its debtor company was insolvent and that the only possible chance the landlord had of making good his claim for rent was against the property removed and sold, the bank and the company committed an actionable tort, since the landlord’s right of pledge and superior privilege was property, and illegally depriving him of it by conspiracy was a violation of his rights, and a tort.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1027; Dec. Dig. <&wkey;251(2).]</p> <p>3. Limitation oe Actions <&wkey;104(l) — Prescription — Interruption oe Period — Fraudulent Concealment oe Cause oe Action.</p> <p>Where a bank and its debtor, successor of another company, paid rent for the premises leased by such other company to lull the landlord into a false security and keep him from discovering that they were removing from the premises goods subject to his lessor’s right of pledge and privilege, the prescriptive period of limitation to the landlord’s action for the tort committed upon him began to run from the date of the last payment of rent, since one who by some act succeeds in concealing from a creditor his cause of action cannotH)e allowed to reap the benefit of his own wrong.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 511; Dec. Dig. <&wkey;> 104(1).]</p> <p>O’Niell, J., dissenting.</p>

Edrington, Judge. Election contest by Angelo Maggiore against E. S. Lochbaum. Exception of prescription maintained, and suit dismissed, and, on plaintiff’s appeal, judgment reversed and remanded by the Court of Appeal for trial on the merits; and from an order maintaining a peremptory exception of no cause of action and dismissing the suit, plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Judges <&wkey;16(2) — Recusation—Appointment oe Substitute.</p> <p>Where the .trial judge in a criminal case recuses himself by reason of having been employed and consulted prior to his accession to the bench on behalf of the prosecution, the question whether a lawyer or a judge of an adjoining district is to be appointed to act in his stead is to be determined in accordance with the provisions of section 2 of Act No. 40 of 1880; which requires the appointment of a lawyer having the qualifications of a judge of the court in which the prosecution is pending, and “if no lawyer having the necessary qualifications can be obtained at the term of court at which the recusation is declared,” then the appointment of a judge of an adjoining district.</p> <p>[Ed. Note. — For other cases, see Judges, Gent. Dig. §§ 56-59; Dec. Dig. &wkey;16(2).]</p> <p>2. Judges <&wkey;16(l) — Recusation—Appointment oe Substitute.</p> <p>When a motion to recuse the presiding judge in a criminal ease is made under section 2 of Act No. 40 of 1880 during the morning hour of the court, and is taken under advisement until after the noon recess, and an order of recusation is then handed down declaring the recusation, reciting that no lawyer having the necessary qualifications could be found to act instead of the recused judge, and appointing a judge of an adjoining district to discharge that function, and defendant, through counsel, objects to such appointment, and asserts that legally qualified lawyers could be found who would be willing to act, an issue of fact is presented upon which the defendant, is entitled to be heard, and it is reversible error for the.recused judge to insist •upon the appointment as thus made until that issue is inquired into and determined. ■</p> <p>[Ed. Note. — Eor other cases, see Judges, Cent. Dig. §§ 46, 53-56; Dec. Dig. &wkey;16(l).]</p> <p>3. Judges <&wkey;16(2) — Substitute Judge — Oath.</p> <p>The judge of an “adjoining district,” appointed to sit in a.recused case, is not required to take any special or additional oath of office, since sitting in such cases is part of the duty that he is already sworn to discharge.</p> <p>[Ed. Note. — Eor other cases, see Judges, Cent. Dig. §§ 56-59; Dec. Dig. &wkey;16(2)J</p> <p>4. Homicide &wkey;*158(l) — Evidence—Admissibility.</p> <p>The charge of manslaughter negatives the idea of premeditation or malice, and in a case in which there were several eyewitnesses to the homicide evidence of previous threats on the part of the accused is inadmissible, whether offered to prove the intent to provoke a difficulty or to show who was the aggressor.</p> <p>[Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 293; Dec. Dig. &wkey;15S(l).]</p>

<p> (Byllabus by the Court.) </p> <p>Carriers <&wkey;331(5) — Injuries to Passengers —Contributory Negligence.</p> <p>A passenger who attempts to stand on the step of a fast moving street car, and falls and is injured, is not entitled to recover damages from the railway company, especially if the circumstances rendered the passenger’s conduct exceptionally imprudent and the railway company was not at fault.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1379; Dec. Dig. &wkey;>331(5).]</p>

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

Le Blanc, Jr., Judge. Suit by J. Franklin Moniotte against Lamartine Bouanchaud, Sheriff, and others. From a judgment dissolving an injunction, plaintiff appealed, and thereafter judgment was rendered on a rule declaring the surety on the bond given in the original appeal to be insufficient, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Constitutional Law <&wkey;230(2) — Licenses <&wkey;7(l) — Equal Protection of Laws — Auction Sales — “Property Tax.”</p> <p>The so-called duty or charge imposed upon auction sales, for the benefit of the Charity Hospital in New Orleans, by section 145 of the Revised Statutes of 1870, as amended by Act No. 53 of 1882 and by Act No. 46 of 1904, is not a tax on the property; and the statutes do not violate any provision of the state or federal Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 687; Dec. Dig. <&wkey; 230(2); Licenses, Cent. Dig. §§ 7, 19; Dec. Dig. &wkey;>7(l).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Property Tax.]</p> <p>2. Auctions and Auctioneers <&wkey;2 — Statutory Provisions.</p> <p>Act No. 163 of 1910, relating to auctioneers, prescribing their qualifications, defining their duties and authority and fixing their compensation, does not purport to embrace all of the law on the subject of auction sales or to supersede all previous laws on that subject. The provisions of Act No. 46 of 1904, imposing a so-called duty on auction sales, for the benefit of the Charity Hospital in New Orleans, are not contrary to or inconsistent with any of the provisions of Act No. 163 of 1910, and were not repealed by the section of the latter statute repealing all laws or parts of laws contrary to or inconsistent .therewith.</p> <p>[Ed. Note. — For other cases, see Auctions and Auctioneers, Cent. Dig. § 1; Dec. Dig. &wkey;>2.]</p> <p>3. States <&wkey;131 — Appropriations—Limitation as to Term — “Specific Appropriation.”</p> <p>The dedication to the Charity Hospital in New Orleans, by Act No. 46 of 1904, of the funds to be derived from the so-called duty imposed upon auction sales, is not a specific appropriation, within the meaning of article 45 of the Constitution, limiting such appropriations to a term of two years.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. § 129; Dec. Dig. <i&wkey;131.</p> <p>For other definitions, see Words and Phrases, Specific Appropriation.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Appeal and Error <&wkey;150(6) — Right op Review — Persons Aggrieved — Creditor op .Person Not Party.</p> <p>Where a judgment against a garnishee is appealed from by persons who, although appealing as creditors of defendants, argue in the Supreme Court that they are creditors, not of defendants, but of the succession of the deceased husband of one of the defendants and father of the other defendants, and that the garnished funds belong to the succession, and nothing shows that the funds received by the garnishee as belonging to defendants did not belong to them, the appeal will be dismissed, since appellants have no pecuniary interest in the matter.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. S§ 944 945; Dee. Dig. <&wkey; 150(6).]</p>

<p> (Syllabus ty Editorial Staff.) </p> <p>Statutes i&wkey;8%(l) — Charters — Power oe</p> <p>Legislature — Notice oe Intention.</p> <p>Const, art. 48, declares that the Legislature shall not pass any local or special law creating a corporation or amending, renewing, or extending its charter, but that such prohibition shall not apply to a municipal corporation haying 2,500 or more inhabitants. Article 50 declares that no local or special law shall be passed on any subject not enumerated in article 48, unless notice of intention to apply shall have been published. Seld, that under its general power to organize a city wherever and whenever public interest may require; the Legislature may pass a local law abolishing the charter of a village and incorporate the village and surrounding territory as a city without any previous publication; hence Act No. 14 of 1914, incorporating the city of Bogalusa and including the village of Riehardsontown, which act was passed without publication, is valid.</p> <p>[Ed. Note. — Eor other cases, see Statutes, Cent. Dig. § 6; Dec. Dig. <&wkey;8%(l).]</p> <p>Monroe, C. J., and O’Niell, J., dissenting.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by the Calcasieu Trust & Savings-Bank against S. P. Wetherell, Assessor, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Philip Adam Hamburger, Jr., and others against Edward H. Purcell. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeai from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Proceeding by the State, on the relation of Frank J. Powell, against Samuel A. Montgomery, Registrar of Voters for the Parish of Orleans. Prom a judgment for relator, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law <&wkey;1020 — Appeal — Jurisdiction — Amount of Fine — “Actually.”</p> <p>In a sentence to pay a fine in an amount exceeding $300, and in default of payment to be imprisoned, a fine exceeding $300 is “actually” imposed within the meaning of article 85 of the Constitution, conferring on this court appellate jurisdiction in criminal cases; the penalty of imprisonment being added as a means of enforcing payment of the fine.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dee. Dig. &wkey;> 1020.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Actual.]</p> <p>2. Criminal Law c&wkey;l01(2) — Jurisdiction-Transfer of Causes.</p> <p>When a criminal prosecution is commenced in a court of competent jurisdiction, there is no process by which it can be transferred to another court, of concurrent jurisdiction, and what the prosecuting officer cannot do directly, he should not do indirectly.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 200, 205; Dec. Dig. &wkey; 101(2).]</p> <p>Provosty, J., dissenting on the merits.</p>

<p>Appeal from Second Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Action by the Orleans-Kenner Electric Railway Company against Joseph Christina and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by Editorial Staff.J </p> <p>1. Master and Servant <@=>213(3), 240(2) — Injuries to Servants — Assumption oe Risk — Logging Train.</p> <p>Where one, who had been conductor of a logging train for two months and a brakeman thereon for six months, held in place with> his foot a frog for putting derailed cars on the track, and in so doing was injured by a log falling from a derailed logging car ’ being pulled onto the track, he could not recover for injury, since he assumed the risk and was negligent, although the spikes on the frog were so worn or broken that it would not stay in position unless held, and the prior derailment was due to the negligence of the railroad, and plaintiff examined the cars as to their being properly loaded before putting them back on the track; it not appearing that he did not know the danger of standing near a logging car, especially when being shunted back on track by means of frogs, or that he could not have held the frog in position in a less dangerous way, and the evidence showing that, if the frog was defective, he could easily have had it repaired.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 561, 752; Dec. Dig. <@=> 213(3), 240(2).]</p> <p>2. Master and Servant <@=>240(2) — Injuries — Contributory Negligence — Customary Methods.</p> <p>An experienced conductor of a logging train, who, while holding in place with his foot a railway frog while getting derailed loaded. logging cars back on the track, is injured by a log falling from a car, is not relieved from his contributory negligence, barring recovery, by showing that he had previously held the frog in position in this way, and had frequently seen others do it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 752; Dec. Dig. <@=>240(2).]</p> <p>3. Master and Servant <@=>247(4) — Injuries —Proximate Cause.</p> <p>•Where an experienced togging train conductor was injured by a log falling from a derailed loaded car, which he was attempting to put back on the track by a railway frog which he was holding in place with his foot, the proximate cause of his injury was not the first derailing of the cars, but his own contributory negligence.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 798; Dec. Dig. <@=>247(4).]</p>

King, Judge pro tem. Application by the State, on the relation of the New Orleans Land Company, for mandamus to the Register of Conveyances and the Nylka Land Company, Limited. Judgment for relator, and defendant Land Company appeals.

<p> (Syllabus by fhe Oowrt.) </p> <p>1. Attorney and Client <§=189 — Compensation oe Attorney — Contingent Fee — Dismissal by Client.</p> <p>The first paragraph of the proviso, contained in Act No. 124 of 1906, is complete in itself, to.the extent that it makes lawful that which was before unlawful, so that an attorney, who recovers property under a written contract whereby he is to receive a portion thereof as his compensation, may thereafter recover his compensation. But, as though to guard against the inference that an interest in the subject-matter of the suit necessarily includes the right to keep the suit in court against the wishes of the litigant, the second paragraph deals with that question as a separate proposition, and declares that “it shall be lawful to stipulate”- to that effect; and the third paragraph goes farther, and provides that such a stipulation may be made binding upon the opposing litigant by service upon him of the contract containing the stipulation so authorized. To dislocate the proviso, and give effect to the one paragraph, without reference to the others, would violate the accepted canons of construction, and is legally impossible.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 407-411; Dec. Dig. <©= 189.]</p> <p>2. Attorney and Client <§=189 — Compensation oe Attorney — Contingent Fee — Compromise or Discontinuance.</p> <p>Where a contract between attorney and client, whereby the attorney is to receive a portion of the money or property recovered as his compensation, contains no stipulation to the effect that the suit shall not be compromised or discontinued by either without the written consent of the other contracting party, the client may compromise or discontinue at will, leaving the attorney to his remedy by an action on quantum meruit for services rendered.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 407-411; Dec. Dig. <@= 189.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Judgment <©=>587 — Res Judicata.</p> <p>Where plaintiff’s attorney wrongfully pledged mortgage notes on plaintiff’s property to the bank for his individual use and after foreclosure the bank agreed to reeonvey the property upon payment of the debt, held a judgment against plaintiff, in an action to set aside the pledge and annul the foreclosure sale, or in the alternative to secure to plaintiff the rights of said attorney in such contract, was not res judicata of a subseguent action to enforce such contract, which plaintiff had secured by assignment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1089; Dee. Dig. <@=>5£7.]</p> <p>2. Mortgages <©=>199(4) — Application op Income to Debt — Accounting.</p> <p>Under a contract, providing that the creditor will apply the net revenues of property to the debt upon the extinguishment of which he will reconvey the property to the debtor, the rendering of one account does not cut off the right of the debtor or his assignee to demand subsequent accounts.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 520, 521; Dec. Dig. <®=>199(4)J</p> <p>3. Pleading <@=^228 — Exceptions—Deteemination.</p> <p>Exceptions of no cause of action must be determined from the face of the petition, and where the petition contains no reference to a former action, an objection based on what transpired at such former action cannot be considered.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5S4-590; Dec. Dig. <§r»22S.]</p> <p>4. Judgment <®=^735 — Res Judicata — Issues Concluded.</p> <p>On exceptions of res judicata, an objection that the petition shows that plaintiff at the former trial concealed the fact that he was the assignee of the contract now sued on cannot be considered, where the assignment of such contract was not discussed nor adjudicated at such former trial.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1263, 1265 •; Dec. Dig. <@=^>735.]</p> <p>O’Niell, J., dissenting.</p>

<p> (SyXlabus by the Court.) </p> <p>1. Municipal Corporations @=o278(2) — Improvements — Initiation oe Proceedings.</p> <p>Under Act No. 210 of 1914 the questions whether any pavement shall be laid in a municipality, and, if so, what kind of pavement are left, on the one hand, to the municipal authorities, if they choose to take the initiative, and, on the other, to the property holders, and neither the creditors of the municipality nor of the property holders, whether mortgage creditors or otherwise, are required to be consulted.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 737, 738; Dee. Dig. @=>278(2).]</p> <p>2. Municipal Corporations @=>413(1) — Public Improvements — Lien.</p> <p>If the property holders take the initiative, and ask for a cheap pavement that is unsuitable for the street upon which it is to be laid, the municipal authorities let the contract, the contractor lays the pavement in accordance therewith, and, though its unsuitableness be thereafter demonstrated, the property holders have only themselves to blame, and neither they nor their mortgage creditors have any standing to contest the enforcement of the lien for the cost.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 10l4, 1020; Dec. Dig. @=>413(1).]</p>

E. Bell, Judge. Action by the Victoria Lumber Company, Limited, against Mrs. Kate Wells and others. Erom a judgment for defendant Mrs. Kate Wells, and against defendant Eidelity & Deposit Company of Maryland, for a less sum than was prayed for by plaintiff, plaintiff appeals, and the Eidelity & Deposit Company of Maryland answers, asking for a reversal.

<p> (Syllabus by the Court.) </p> <p>1. Public Lands @=>61(2) — United States Lands — Conveyance by State.</p> <p>The approval, by the Secretary of the Interior, of a list of swamp lands, selected for conveyance to the state, under the act of Congress of March 2, 1849, c. 87, 9 Stat. 352, constitutes the title of the state, and, where an entire section is so listed and approved, there is no authority in the register of the land office, to dispose of it as a fractional section, and, still less, to sell the unsurveyed part of such section, uncovered by the recession of water.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 193; Dec. Dig. @=>61(2).]</p> <p>2. Public Lands @=>61(8) — United States Lands — Swamp Lands.</p> <p>When an approved list of swamp lands specifically mentions a whole section, and, the survey having been incomplete, contains the statement that the land area is estimated, an entry-man who buys upon the basis of such estimated acreage and under a description calling for all of a “fractional” section acquires no title to the unsurveyed balance of the 'section, subsequently uncovered by the recession of water.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 203; Dec. Dig. @=>61(8).]</p> <p>3. Waters and Water Courses @=>98 — Riparian Rights — Enforcement.</p> <p>In order to entitle a purchaser of public lands to recover, in his capacity of riparian proprietor, land which is unsurveyed and is uncovered by the recession of water, he must allege and show the existence of the conditions prescribed by law, if such there be, entitling him to recover.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 104; Dec. Dig. 98.]</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Levees <&wkey;16 — Construction — Contract —Interpretation.</p> <p>The provision in a contract to build a levee that the decision of the executive committee of the levee board on differences arising between the contractor and the board’s engineer in charge of the work shall be final and binding upon the parties refers only to matters over which the engineer has supervision and direction by the terms of the contract or by necessary implication.</p> <p>[Ed. Note. — For other cases, see Levees, Cent. Dig. § 6; Dec. Dig. &wkey;3l6.]</p> <p>2. Levees <&wkey;16 — Construction — Contract —'Validity.</p> <p>To hold that the decision of the executive committee of the levee board, party to the contract, on any arbitrary dispute made by the board’s engineer or on a dispute upon a matter not under his direction or supervision, is binding upon the contractor, would make the contract depend upon a potestative condition and render it null.</p> <p>[Ed. Note. — For other cases, see Levees, Cent. Dig. § 6; Dec. Dig. <&wkey;16.]</p> <p>3. Release c&wkey;33 — Operation and Exeect— Several Claims.</p> <p>The plaintiff, having sued on several claims, does not, by accepting payment of one of them with an express reservation of all his rights in the suit, waive or abandon his right to prosecute the suit on the remaining claims.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 78, 79; Dee. Dig. &wkey;>33.]</p> <p>4. Levees &wkey;>16 — Construction — Contract —Extra Work.</p> <p>Where a contract for building a levee provides that the contractor may obtain earth from the adjacent battures, and the contractor has made his bid in contemplation of using the batture, and has gone to considerable expense planking the road to it, and the levee board thereafter deprives him of the use of the batture and compels him to transport earth a greater distance, he is entitled to compensation for the extra cost of transportation.</p> <p>[Ed. ’Note. — For other cases, see Levees, Cent. Dig. § 6; Dec. Dig. <&wkey;16.]</p> <p>5. Levees <&wkey;16 — Construction — Contract —“Adjacent.”</p> <p>The term1 “adjacent to” is not restricted to the meaning “abutting,” “adjoining,” “contiguous to,” or “bordering upon.” It has been held to mean “lying close by,” “near to,” or “in the neighborhood or vicinity of.” Therefore, when the contractor and the engineer of the levee board in charge of the work of building a levee construe the expression in the contract “adjacent battures” to include the batture extending beyond the end of the levee, the contract should be earned out accordingly.</p> <p>[Ed. Note. — For other cases, see Levees, Cent. Dig. § 6; Dec. Dig. &wkey;>16. °</p> <p>For other definitions, see Words and Phrases, First and Second Series, Adjacent.]</p> <p>6. Levees <&wkey;16 — Construction — Contract —Extra Work.</p> <p>Under the provision in a contract to build a levee that, if the executive committee of the levee board deems any change necessary in the extent or location of the levee or in the dimensions or quantity of work required, the contractor shall make the change at the same rate of compensation stipulated in the contract, provided such change shall not exceed 20 per cent, in excess or in diminution of the contract price, the executive committee increased the length of the levee to an extent exceeding 27 per cent, of the original contract price; and the contractor protested against doing the work at the rate of compensation stipulated in the contract for the work originally agreed upon, and did the additional work under protest and. reserving his right to demand the actual value of the additional work. Held, in a suit on a quantum meruit, the contractor is entitled to recover the actual value of the extra work required of him.</p> <p>[Ed. Note. — For other eases, see Levees, Cent. Dig. § 6; Dec. Dig. <&wkey;16.]</p> <p>7. Levees <&wkey;16 — Construction — Interpretation oe Contract —“Casualty.”</p> <p>Under the provision in a contract to build a levee, whereby the contractor assumes all risks from accidents and casualties of every kind that may occur before the completion and acceptance of the work, the contractor must bear the loss of material and work resulting from a cave or sinking of the ground under the levee before its completion or acceptance.</p> <p>[Ed. Note. — For other cases, s.ee Levees, Cent. Dig. § 6; Dec. Dig. &wkey;>16.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Casualty.]</p> <p>8. Levees &wkey;>16 — Construction — Contract —Extra Work.</p> <p>By the terms of a contract to build a levee the contractor'was allowed to use dirt from the adjacent batture. Another contractor employed by the levee board to remove old piling from the river, under the supervision and direction of the board’s engineer-, and against the protest of the first contractor, used dynamite and caused the batture to recede and be lost. Held, the first contractor is entitled to compensation from the levee board for the excess cost of transporting the dirt a greater distance.</p> <p>[Ed. Note.' — For other cases, see Levees, Cent. Dig. § 6; Dec. Dig. <&wkey;>16.]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>9. Words and Phrases — “Catastrophe.” “Catastrophe” means a notable disaster; a more serious calamity than might ordinarily be understood from the term “casualty.”</p>

<p>Appeal from the First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Separate suits by the City of Shreveport against A. G. Chatwin, Sam Chatwin, the Victoria Lumber Company, and W. E. Robinette. Cases consolidated, and judgment for the plaintiff, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Marriage <&wkey;54r-VALiDiTY — Collateral Attack.</p> <p>Marriage between persons of the white and colored races is prohibited in this state, as a matter of public order and policy, and such a contract is absolutely null, requires no direct actibn to set it aside, and may be attacked by the party to whom, it is opposed by way of exception or defense, whenever and wherever .it is set up.</p> <p>[Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 93-103, 105, 106, 109; Dec. Dig. <S=o54.]</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Civil District Court, Parish Of Orleans; George H. Théard, Judge.</p> <p>Action by Mrs. Kate Stewart Hills against the City of New Orleans and others. From a judgment for defendants, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Municipal Corporations <&wkey;705(l9) — Streets — Use por Travel — Liability por Injuries.</p> <p>Where the driver of a vehicle in the streets of a city disregards all the rules prescribed for vehicular traffic and is grossly negligent from the standpoint of common experience, and as the result of such negligence is brought into collision with another vehicle, he is not entitled to recover from the owner of the other the damages which he thereby sustains.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §| 1515, 1517; Dee. Dig. &wkey;705(10).]</p>

<p> (Syllabus by the Court.) </p> <p>Innkeepers <&wkey;ll(l, 10) — Loss on Goods — Liability.</p> <p>The relation of innkeeper and guest terminates when the guest pays his bill and leaves the inn; and, whether he notifies the innkeeper that he is leaving his trunk, to be sent for at some future time, or fails to give such notice, the innkeeper,'in the absence of any agreement or expectation with regard to compensation for storage, becomes merely a gratuitous bailee of the trunk and, as such, liable for loss or inconvenience respecting it only when occasioned by his fraud or gross negligence. If, therefore, a delay occurs, in the subsequent delivery of the trunk, which is attributable at least as much to the fault of the guest as of the innkeeper, the guest is not entitled to damages for the inconvenience resulting therefrom.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 17, 18, 21, 23, 31, 32; Dee. Dig. &wkey;ll(l, 10).]</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Louise Ernestine Philip against Albert Quenqui. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Proceedings by J. L. Kelly and others against William F. Millsaps, Secretary 'of State. From a judgment denying the demand of petitioners, they appeal.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>Action by Evia Primeaux against Jules Comeaux. From a judgment for defendant, plaintiff appeals.</p>

K. Skinner, Judge. In the matter of succession of Mary A. Deubler. Suit by Henry Deubler against Anna M. Deubler and another. From a judgment sustaining exceptions to the petition, plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Fraudulent Conveyances <&wkey;138 — Property Subject — Eeeect oe Pledge.</p> <p>Save in cases especially, provided by law, a contract purporting, to pledge movables is ineffective unless the property is actually delivered to the pledgee, and leaves such property subject to seizui*e for the debts of the pledgor, whose creditors may, in cases otherwise authorized, proceed by attachment, and without resorting to the revocatory action.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§■ 438, 443, 448-452; Dee. Dig. <&wkey;138.]</p> <p>2. Agriculture <&wkey;12 — Pledges—Lien—Validity — Time oe Taking Eeeect — Statutes.</p> <p>Section 1 of Act No. 66 of 1874 authorizes a planter to pledge his growing crop as security for the debt contracted by him for advances of money and supplies required for its production, and such contract, duly recorded, vests in the factor who makes the advances constructive (equivalent to actual) possession of the crop; and sections 2 and 3 of that act declare that the pledge shall be perfect in certain cases where agricultural products are consigned, by ship or rail, etc., from the time the bill of lading is mailed or delivered to the carrier for transmission to the consignee.</p> <p>[Ed. Note. — For other cases, see Agriculture, Cent. Dig. §§ 40, 41; Dec. Dig. <&wkey;>12.j</p> <p>3. AGRICULTURE <&wkey;ll — Pledges—Lien—Validity — Growing Crops.</p> <p>Under section 1 of Act No. 66 of 1874 a growing crop may be pledged for and to the extent of the debt contracted by the planter for the money and supplies advanced for its production, but no further; and, under such contract, the factor acquires no right to appropriate the proceeds of the crop, or any part of it, to the payment of any debt other than that for which it is thereby pledged, nor can the law authorizing such special contract of pledge be disregarded or circumvented, to the prejudice of the other creditors of the planter, by stipulations under cover of such contract requiring the planter to ship his entire crop to the factor, authorizing the factor to appropriate or “impute” the proceeds to the payment of any debt that may be due or may become due him, and declaring that such appropriation or “imputation” shall not impair his rights of pledge, thereby putting him in a position to appropriate the surplus of such proceeds over and above those to which his pledge extends to the payment of all debts due him, to the exclusion of debts of equal standing due to other creditors of the planter; for it is a fundamental principle of our law that the property of the debtor is the common pledge of his creditors, from which it follows that the surplus of a planter’s crop (over and above the interest or proportion which may be said to be alienated by the special pledge for advances of money and supplies), being still his property, remains as part of such common pledge, in which one creditor has the same interest as another, and which cannot lawfully be appropriated to the payment of one of them when the debtor is unable to make like provision for the others.</p> <p>[Ed. Note. — For other cases, see Agriculture, Cent. Dig. §§ 15-30; Dec. Dig.' &wkey;>ll.]</p> <p>4. Fraudulent Conveyances &wkey;121 — Transactions Invalid — Preference.</p> <p>When a planter has shipped, or is about to ship, to his factor, a greater proportion of his crop than is, or will be, required to pay the debt (secured by pledge) for money and supplies advanced .for its production, under a contract which authorizes the factor to appropriate or “impute” the proceeds to the payment of other debts due or that may become due him, and the planter is unable to make like provision for the debts due to his other creditors, he must be held to be disposing or about to dispose of his property, with intent to give an unfair preference to one of his creditors; and another creditor conrplaining thereof may proceed by the attachment of the surplus of the crop (to be found in so much of his crop as remains in the planter’s possession) over and above that required to satisfy the pledge of the factor.</p> <p>TEd. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 385-391; Dec. Dig. &wkey;121.]</p> <p>5. Attachment <&wkey;114 — Affidavits — Sufficiency.</p> <p>Paragraph 4 of article 240 of the Code of Practice furnishes two cases disjunctively and distinct from each other in which the property of the debtor may be attached; the one where the debtor “has mortgaged, assigned or disposed of, * * * hig property, rights or credits, or some part thereof with intent to defraud his creditors”; the other where the debtor has so acted “with intent * * * to give an unfair preference to some of them [meaning some of his creditors]”; and, as it is unnecessary, if not improper, when the affidavit charges the intent to defraud, to add the intent to give an unfair preference, so it is unnecessary, if not improper, when the affidavit charges the intent to give an unfair preference, to add the intent to defraud, and in neither case is it necessary to charge the insolvency of the debtor.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 312-314; Dec. Dig. &wkey;114.]</p> <p>6. Attachment &wkey;>249 — Proceedings—Evidence.</p> <p>It is only where the evidence adduced by the defendant in attachment is sufficient to rebut the prima facie case made out by the affidavit of the plaintiff that plaintiff is required to support the affidavit by evidence.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 861-876; Dec. Dig. &wkey;249.]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>7. Words and Phrases — “Ob.”</p> <p>“Or” is defined as a co-ordinating particle making an alternative, indicating a choice of one of different things, but not of all.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Or.]</p> <p>O’Niell, J., dissenting.</p>

<p>Axipeal from Thirteenth. Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Camillus Ashworth and another were convicted of manslaughter, and appeal.</p>

<p>Appeal from Second Recorder’s Court of New Orleans; B. T. Tiller, Recorder.</p> <p>F. G. T. Beck was convicted of violating an ordinance of the City of New Orleans, and appeals.</p>

<p>Appeal from Second. Recorder’s Court of New Orleans; Ben P. Tiller, Recorder.</p> <p>Salvador Mangiarisina was convicted of violating an ordinance of the city of New Orleans, and appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads &wkey;>95(l) — Construction—Obstruction of Highway.</p> <p>In crossing public roads it is the statutory duty of railroads and tramways to construct their roads so as not to hinder, impede, or obstruct the safe and convenient use of the highway. Act No. 157 of 1910.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 274; Dec. Dig. <@=»95(1).]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Railroads &wkey;>348(2) — Construction—Liability for Injuries.</p> <p>In an action against a lumber company for injuries from a fall of plaintiff’s horse, which he was riding, into a pit dug by defendant in constructing a tramroad, evidence held to show that the pit was dug in the highway.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1139; Dec. Dig. <&wkey;>348(2).]</p> <p>3. Damages <&wkey;132(l) — Excessive Damages— Personal Injuries.</p> <p>An award of $1,500 damages for a dislocated shoulder and subsequent pain and suffering to a man in the prime of life is excessive, and will be reduced to $1,000.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. &wkey;132(l).]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Abatement and Revival &wkey;>9 — Exception op Lis Pendens.</p> <p>Where, by inadvertence or otherwise, a citation of appeal was issued to one against whom no appeal had been asked, which appeal as to him was dismissed, and where, before dismissal and while the appeal against him was pending, a suit was filed against such party as defendant, an exception of fls pendens was without merit, as the appeal was never'a real appeal sought to be maintained as against him.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 73-85; Dec. Dig. <&wkey;9J</p> <p>2. Courts <&wkey;99(2) — Former Decision — Law of the Case.</p> <p>In an action for the balance due on a note, the adverse holding in a suit on the same note against other defendants as to the claim that there was no cause of action because the petition did not allege that notice of dishonor was served on defendants as indorsers, was the law of the case.</p> <p>[Ed. Note. — For other cases, see Courts, Gent. Dig. § 340; Dec. Dig. &wkey;?99(2).]</p> <p>3. Novation <&wkey;5 — Note—Accessory Obligation.</p> <p>Where a firm made a note to its own order and indorsed it as collateral for a loan obtained from the plaintiff, and defendants indorsed such note for accommodation, and the payee accepted in part payment the note of one who sought to buy up all the outstanding obligations of1 the firms after their failure and merely received such party as an additional debtor-and continued to hold the other claims as still existing, there was no novation extinguishing the principal debt and the accessory obligation.</p> <p>[Ed. Note. — For other cases, see Novation, Cent. Dig. § 5; Dec. Dig. <&wkey;5.]</p> <p>4. Bills and Notes <&wkey;301 — Extension of Time for Payment — Right of Accommodation Indorser.</p> <p>The payee’s extension of time on a note did not release the, accommodation indorsers on a collateral note, as what was done or not done in connection with the principal note did not concern them.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. i&wkey;> 301.]</p> <p>5. Evidence <&wkey;80(2) — Presumption—Law oe Another State.</p> <p>Where the laws of the state of Texas as to whether the running of limitations against some of the indorsers living in that state where the limitation is two years, were not proved, the presumption was that they were the same as the law of this state.</p> <p>[Ed. . Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. &wkey;j80(2)J</p>

<p> (Syllabus by the Court.) </p> <p>Assault and Battery <&wkey;38 — Civil Action-Liability fob Damages — Injuries to Feelings.</p> <p>Where a - stronger man, without sufficient provocation, assaults a weaker one, though the latter may sustain no serious physical injury, damages will be awarded for the injury to his feelings, and, by way of discouraging his assailant, and others, from so readily and unlawfully availing themselves of the accident of superior strength.</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 53; Dec. Dig. &wkey;>38.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts <&wkey;224(ll) — Jurisdiction—Judgment on Reconventional Demand.</p> <p>. An appeal from a judgment on a reconventional demand, whatever its amount, should be to the court having jurisdiction of the main demand. Act No. 137 of 1904, amending Const, art. 95.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 617; Dec. Dig. &wkey;224(ll).]</p> <p>2. Courts <&wkey;485 — Jurisdiction—Transfer of Causes.</p> <p>Judges of the Supreme Court and of the Courts of Appeal have the right, where cases have been appealed to the wrong court, to transfer said cases to the proper court, instead of dismissing the appeals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1292-1298; Dec. Dig. &wkey;>485.]</p> <p>3. Appeal and Error &wkey;>786 — Grounds for Dismissal — Appeal Taken for Delat.</p> <p>An objection that an appeal was taken for delay is no ground for dismissal. Code Prac. art. 907.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3128; Dec. Dig. <§^?786.]</p>

<p>Action by A. A. Kagan against the Louisiana Kailway & Navigation Company. Judgment for plaintiff, appeal dismissed, and defendant applies for writs of certiorari, mandamus, and prohibition.</p>

Suit by the City of Alexandria and others against the Police Jury of Rapides Parish, Ben F. Thompson, and others. There was a judgment for complainant, and citizens, property owners, and taxpayers of the parish appeal. On motions to remove from the preference docket, and to dismiss appeal.

Action by Bessie Wilson against the Yazoo & .Mississippi Talley Railroad Company. Judgment 'for plaintiff, arid defendant applies for writs of certiorari and prohibition.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the Montgomery-Ferguson Company against' William T.- Hardie & Sons. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by J. S. Richardson and others against O. P. McDonald. From a judgment for plaintiffs, defendant appeals;</p>

<p> •(Syllabus by the Court.) </p> <p>1. Separation prom Bed and Board — Domicile op Parties.</p> <p>Where the husband and wife were married in the state of New York, and the wife some 12 years later, refused to follow the husband to the state of Oregon, and the husband subsequently became a resident of the state of Louisiana, the wife continuing to reside in the state of New York, held, that the husband could not sue in the court of Louisiana for a separation from bed and board on the ground of the alleged abandonment in the state of New York, although the husband may have had a domicile of origin in the state of Louisiana. There can be no abandonment of the matrimonial domicile in this state where there has been no common dwelling.</p> <p>Provosty and O’Niell, JJ., dissenting.</p> <p>On Rehearing.</p> <p>2. Divorce <@=>62(2, 6) — Domicile <@=j 4(1), 5 —Absence in Military Service — Husband and Wife — Grounds for Divorce — “Abandonment” — Jurisdiction.</p> <p>A youth whose domicile is in Louisiana and who is appointed cadet in the military academy at West Point, and remains in the army until his voluntary retirement, after 30 years of continuous service, does not thereby forfeit such domicile, and the wife, whom he marries in another state, has no other domicile than his, and, save for just cause, can acquire no other and is bound to follow, and live with, him whithersoever he may choose to go and reside; and, in such case, where the wife, without just cause, refuses to accompany the husband to the station and temporary residence to which he is assigned by his superior officers, she is guilty of “abandonment,” within the meaning of our law, notwithstanding that she has never been within this state, and the husband, who shortly thereafter retires and establishes an actual residence in Louisiana, at the place of his original domicile, may bring suit in a court of such residence and domicile for separation a mensa et thoro, and summon the wife therein, by substituted service, to return to the matrimonial domicile so established, and such court is vested with jurisdiction in the premises, and may render judgment determining the marital status of the plaintiff, which judgment will be binding, at least, within the limits of this state, and, according to the views of this court, should be binding in other jurisdictions.</p> <p>[Ed. Note. — For other eases, see Divorce, Cent. Dig. §§ 200-202, 210, 220; Dee. Dig. <@=> 62(2, 6); Domicile, Cent. Dig. §§ 5-8, 10-23, 24-35; Dec. Dig. ¿=34(1), 5.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Abandonment.]</p> <p>Land, J.,.dissenting.</p>

Action by J. E. McAdams against the Wells Fargo & Company Express. Application for certiorari or writ of review to review a judgment of the Court of Appeal, affirming a judgment of the District Court for plaintiff.

<p> (Syllabus by the Court.) </p> <p>Appeal and Ekeoe <§=635(1) — Dismissal— Grounds — Insufficiency of Recoed.</p> <p>Where important records and documents alleged to have been made parts of the original petition by reference, for the purpose of showing the facts of the ease more fully and with greater certainty, have been omitted from the transcript of appeal, and no effort has been made by the appellants to supply the missing documents, which the court deems necessary for a proper understanding of the case, the appeal will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2776-2778, 2780, 2782, 2829; Dec. Dig. @=^>635(1).]</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Deeds @=>114(3) — Sales—Construction-Property Conveyed.</p> <p>Although the seller of land intended to sell the entire area, and so declared in an act executed some years later between herself and her grantee, yet, where her act of sale fixed the north or lake side boundary line as a line hounded by another tract, including the strip in dispute, her sale must necessarily be so limited.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 320, 321; Dec. Dig. @=>114(3).]</p> <p>2. Deeds @=>114(3) — Sales—Construction— Sale Per Aversionem.</p> <p>A sale of an area bounded by fences along the south and west side, with ends extending into the water, and by a bayou on the east side and a canal on the north side, serving to hold the cattle pastured therein, was a “sale per aversionem,” with the canal as one of the boundaries.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 320, 321; Dec. Dig. @=>114(3).]</p> <p>3. Adverse Possession @=>38 — Prescription —Public and Open Possession — Pasturage.</p> <p>Possession of the strip in dispute, merely by projecting a boundary fence across it and into a canal beyond and by projecting another boundary fence to and into a bayou, making an inelosure for cattle, where the canal was not known to be on an avenue, where the whole area was a swamp, without anything to indicate the location of the- avenue, and where the projection of the fence was not shown to have been with intent to possess the strip as owner, together with the building of a barbed wire fence on the side of the canal, was not sufficiently public and unequivocal to amount to a prescription, as the allowing of one’s cattle to range on a neighbor’s uninelosed adjoining land is no sign of possession, such as is required for prescription.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 147; Dec. Dig. @=>38.]</p>

Action by the Union Seed & Fertilizer Company against the J. Supple’s Sons Planting Company and another. From a judgment for defendants, plaintiff appeals. Heard on certified question from the Court of Appeal.

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Herman 'D. Pailet was convicted of murder, and appeals.</p>

<p>Appeal from Twenty-Second Judicial District Couit, Parish of East Baton Rouge; H. P. Brunot, Judge.</p> <p>Suit by the Citizens’ Insurance Company against Alvin E. Hebert, Secretary of State. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Action by the Shreveport Mill & Elevator Company against John Stoehr. Judgment for defendant, and plaintiff brings certiorari.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; C. W. Elam, Judge ad hoc.</p> <p>Action by the First State Bank against T. J. Davis and others. From á judgment for plaintiff, defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Mortgages &wkey;>566, 581(2) — Foreclosure — Distribution oe Proceeds.</p> <p>Where the same special mortgage secured the payment of two serial notes for $5,000 each, which passed into the hands of different holders, and the mortgage was foreclosed and the property sold at the suit of one of the holders, and the gross proceeds of the sale amounted to $2,001, held, that after payment of the costs of the suit and of the sale, the remainder of the proceeds should be equally divided between the holders of the two notes. Held, further, that the stipulation for attorney fees in the act of mortgage created an obligation secured, like any other part of the debt, by the hypothecation, but not entitled to any privilege or right of preference over concurrent mortgage claims.</p> <p>[Ed. Note. — For other cases, see Mortgages Cent. Dig. §§ 211%, 1630, 1670; Dec. Dig. &wkey; 566, 581(2).]</p>

<p>Appeal from Eighth Judicial District Court, Parish of Franklin; Riley J. Wilson, Judge.</p> <p>Action by the Bank of Delhi against H. J. Lea, Clerk of Court. From a judgment dismissing the action, the plaintiff appeals.</p>

<p>Salem Joseph was convicted of violating the .Sunday Law, and applies for writs of certiorari and prohibition.</p>

<p> (Syllabus ty the Court.) </p> <p>Instjkance &wkey;>622(l) — Limitation oe Actions <&wkey;39(l) — Prescription— Actions — Limitations.</p> <p>Where by its 20-year payment life policy a mutual life insurance company agrees to pay the amount therein called for to the named beneficiary, at the death of the assured, upon the “condition” that the annual premiums are paid in advance for 20 years, and subject to the “provision, requirement, or benefit” that, after three full annual premiums have been paid upon the policy, the company will, upon the legal surrender thereof, before default in payment of any premium, or within six months thereafter, issue a nonparticipating policy for paid-up insurance, payable as herein provided, for the proportion of the amount of this policy which the number of full years’ premiums paid bears to the total number required,” and where, after paying six premiums, the assured defaults in the payment of the seventh and subsequent premiums, and three years later is informed that his policy has lapsed, but that he may have it restored on complying with certain requirements, and where for 11 years following the receipt of that information, and up to the time of his death, the assured takes no further steps in the matter, and his heir takes none for more than 3 years after his death, the suit of the latter, then instituted, as upon a paid up policy, for six-twentieths ot the-amount called for by the policy originally issued, is barred by the prescription of 10 years established against personal actions by Civ. Code, art. 3544, and by the prescription of 2 years established by Act 68 -of 1906 against actions to recover under forfeited policies.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1540, 1544; Dec. Dig. &wkey;622(l); Limitation of Actions, Cent. Dig. §§ 190, 191; Dec. Dig. <&wkey;39(l).]</p>

O. H. Theriot was convicted of obtaining money by means of the confidence game. Motion for arrest of judgment'was affirmed, and the State appeals.

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Eebob &wkey;>392 — Bond on Appeal — Residence oe Sueety — Time to Raise Objection.</p> <p>It is too late to inauire into the residence qualification of the surety on an appeal bond upon a motion to dismiss filed in this court and submitted with the merits of the case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2089-2094; Dec. Dig. 392.]</p> <p>On the Merits.</p> <p>2. False Impeisonment <&wkey;15(2) — Civil Liability — Dibection to Peace Offices.</p> <p>A citizen who calls upon a town marshal merely to preserve the peace and to secure, him a safe passage through the street is not liable in damages for an arrest which 'the marshal may make and which is superinduced by the violence of the persons who are creating the disturbance.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 45-61; Dec. Dig. &wkey;> 15(2).]</p>

<p>Action by the Leon Godchaux Company, Limited, against Mrs. Amelia Gall, widow of E. A. Pharr, wherein Lazard Kling intervened. Judgment for intervener was subordinated to judgment for plaintiff, and, a bond for a certain sum being required of intervener in order to suspend execution, intervener applies for writs of mandamus, prohibition, and certiorari.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mabriage <&wkey;37 — Validity — Ratification.</p> <p>A slave marriage entered into in the state of Georgia held to have been ratified and confirmed by the continued cohabitation of the parties after their emancipation.</p> <p>[Ed. Note. — For other cases, see Marriage, Cent. Dig. § 108; Dec. Dig. <&wkey;37.]</p> <p>2. PABTITION <&wkey;9(l) — AGREEMENT OF PARTIES — EFFECT.</p> <p>Where a succession was opened, administered, and closed by final account, and all the real estate inventoried as belonging to the same was turned over to the children of the decedent, who by informal partition divided the land among themselves, held, that three of the children, retaining title to their respective allotments and suing as sole heirs could not treat the succession proceedings and partition as absolute nullities, but must resort to a direct action.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 26-31; Dec. Dig. &wkey;9(l).]</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Suit by Henry Eobert Neuberger against Mary Delia Gueldner. . From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Carriers <&wkey;316(5) — Damages <&wkey;131(l) — Injury to Passenger — Derailment oe Train — Negligence — Presumption — Excessive Recovery.</p> <p>Where the jury awarded the plaintiff $6,-600 for a trauma or bruise, evidenced by no outward signs and there is no sufficient medical evidence to prove, with reasonable certainty, that the bruise produced any serious internal injury, the amount of the award will be reduced to a sum commensurate with the damage actually sustained. Where no cause for the derailment of a passenger coach is proven, the presumption is that the railroad company was negligent.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1288; Dec. Dig. <&wkey;316(5); Damages, Cent. Dig. §§ 357, 363, 364, 370; Dec. Dig. &wkey;131(l).]</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads <&wkey;327(8) — Operation—Accidents at Crossings — Duty to Stop, Look, a£d Listen.</p> <p>“Because of the fact that a collision between a railroad train and an automobile endangers, not only those in the automobile, but also those on board the train, and also because the car is more readily controlled than a horse vehicle and can be left by the driver, if necessary, the law exacts from him a strict performance of the duty to stop, look, and listen before driving upon a railroad crossing, where the view is obstructed, and to do so at a time and place where stopping, looking, and listening will be effective.” See syllabus 168 Fed. 21, 22, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794. This doctrine approved and applied to a case where the auto driver did not stop, or even cheek his speed, before he collided with a passing locomotive.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1051; Dec. Dig. <S&wkey;327(8).]</p> <p>2. Negligence <©==»83 — Contributory Negligence — Last Clear Chance.</p> <p>The rule of “last clear chance” does not apply where the negligence of the person injured and of the defendant are concurrent, each of which, at the very time the accident occurs, contributes to it. See Castile v. O’Keefe, 138“ La. 479, 70 South. 481, and authorities there cited.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. <&wkey;>83.]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Suit by J. Henry Shepherd against the Southern Lumber Company for the appointment of a receiver. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Bernard R. Ragas against William H. Douglas. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal Corporations c&wkey;354 — Contract for Wharf — Construction.</p> <p>Under the contract of the board of commissioners of the port of New Orleans for construction of a wharf, providing .that the engineer should decide all questions arising with regard to the interpretation of specifications, quality of material, or workmanship, and other disputes, that the engineer might make such changes in the plans and specifications as he might deem advisable, and that neither the contractor nor his surety should be released from the obligations assumed by reason of any change of the amount, nature, scope, character, and extent of the work, the contractor was released by the board’s decision not to construct the outer part of the wharf, which caused the contractor a loss, since the changes which were not to have the effect of releasing the contractor or his surety were those changes to be made by the engineer.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. <&wkey;354.]</p> <p>2. Municipal Corporations <&wkey;354 —Contracts — Modification—Statute.</p> <p>Tn directing the contractor for a wharf not to construct the outer part, the board of commissioners were not acting under. Civ. Code, art. 2765, providing that the proprietor can cancel the bargain he has made, though the work has already been commenced, by paying for expenses and labor incun'ed, and such damages as may be required, the right conferred by the article being to cancel and not to modify the contract.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dee. Dig. &wkey;354.]</p> <p>3. Municipal Corporations <&wkey;374(5) — Contracts — Breach—Remedy of Contractor.</p> <p>The contractor going on with the contract, reserving his right to indemnity, such right was based on the breach of contract by the board, and not upon any supposed canceling of the contract as a whole, and the measure of damages followed accordingly, and not as for a contract canceled under Civ. Code, art. 2765.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. <&wkey;>374(5).]</p> <p>4. Municipal Corporations <&wkey;374(5) — Construction Contract — Breach — Remedy of Contractor' — Damages.</p> <p>The measure of damages of the contractor was the profits he would have made and which he was deprived of the opportunity of making, found by deducting the total amount it would have cost him to complete the contract from the total amount he would have been entitled to receive had he completed it.</p> <p>[Ed. Note. — Por other eases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. &wkey;374(5).]</p> <p>5. Municipal Corporations <&wkey;354 — Construction Contract — Breach—Remedy of Contractor) — Waiver.</p> <p>Where the contractor duly protested^ and gave notice that he would hold the board liable, he did not waive his right to complain by going on with the contract to the extent permitted and receiving payments for the same; a formal putting in default being unnecessary under the circumstances.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. <@=354.]</p> <p>6. Contracts <&wkey;137(l) — Partial Validity.</p> <p>A contract cannot be valid in part and null in part.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 701, 706-712; Dec. Dig. &wkey; 137(1).]</p> <p>7. Municipal Corporations <&wkey;86S(l) — Indebtedness — Provision for Payment — Board of Commissioners of Port.</p> <p>Act No. 270 of 1910, prohibiting the incurrence of any obligation for meeting which the necessary funds are neither on hand nor in prospect, has application only to the governing authorities of municipalities and parishes, not to political boards like the board of commissioners of the port of New Orleans.</p> <p>[Ed. Note.' — For other cases, see Municipal Corporations, Cent. Dig. § 1842; Dec. Dig. &wkey;» 868(1).]</p> <p>S. Municipal Corporations <&wkey;374(4) — Construction Contract — Breach — Sufficiency of Evidence.</p> <p>In an action against the board of commissioners of the port of New Orleans for damages to the contractor for a wharf caused by their directing him not to construct the outer part, evidence held insufficient to show what profits plaintiff was deprived of by the change in the contract.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. &wkey;374(4).]</p>

<p> (Syllabus by the Court.) </p> <p>Larceny &wkey;>23 — Theet op Domestic Animal —“I-Ieiper.”</p> <p>. Though a value may be placed upon a cow, charged under Act No. 64, of 1910, § 1, to have been stolen, and though she may be called a heifer, i. e., a young cow that has not had a calf, she is, none the less, a cow, and the offense charged is, none the less, within the meaning of the statute, which denounces the stealing of a cow as a felony.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 50-52; Dec. Dig. &wkey;>23.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Heifer.]</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss Appeal.</p> <p>1. Appeal and Error <&wkey; 154(4) — Dismissal —Compliance witij Decree.</p> <p>Where a sugar plantation is in the hands of the sheriff under an order of seizure issued in an executory process, and the defendant seeks to enjoin the sheriff from interfering with him in the use of the sugarhouse in making sugar, and, further asks that the writ of seizure and sale be set aside on the ground that the creditor has granted an extension of time, and, again, has requested the sheriff to grind the crop of sugar cane instead of selling it, the seized debt- or has not acquiesced in the order of seizure and sale, and he is not estopped from appealing therefrom.</p> <p>[Ed. Note. — For other cases,. see Appeal and Error, Cent. Dig. §§ 966-968; Dec. Dig. &wkey; •154(4).]</p> <p>On the Merits.</p> <p>2. Corporations <§=432(12) — Powers — Representation by Oittoer — Ratification.</p> <p>In the foreclosure of' a mortgage via executiva, on two authentic instruments, one an act of mortgage, and the other a supplemental agreement on the same subject-matter, held, that the authority of the vice president of the defendant company to execute the original contract was sufficiently proven by the duly authorized supplemental agreement, which showed that the said company had voluntarily executed its part of the original contract, and reaped the fruits thereof, and had recognized the agreement as valid and binding in every respect on the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762; Dec. Dig. <@=432(12).]</p> <p>Provosty, J., dissenting.</p>

King, Judge. Action by the Arbuthnot, Latham & Company against Richheimer & Co. and another, wherein the National Bank of the Republic of the City of Chicago filed a petition of intervention and third opposition. From judgment for plaintiff, the intervener and the defendant named, through its trustee in bankruptcy, appeal.

<p>Appeal from Second Judicial District Court, Parish of Bossier; J. N. Sandlin, Judge.</p> <p>Action by the Louisiana Land & Immigration Company and others against N. B. Murff and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Antoine C. Babin, for the benefit of Ernest J. Babin, a minor, against the New Orleans Railway & Light Company, wherein Ernest J. Babin, on attaining majority, made himself a party plaintiff. From judgment for defendant, plaintiff Ernest J. Babin appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Pabtition &wkey;>87 — Undivided Interest oe Minoe.</p> <p>A minor’s undivided interest in land cannot be divested by charging him and his coheirs with its appraised value in an administrator’s account, but the minor must collate in a partition for what he has received from the estate by reason of the homologation of such account.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. § 253; Dec. Dig. &wkey;j87.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Ceiminai, Law <&wkey;22 — “Motive.” _</p> <p>_ “Motive,” in one sense, is the condition of mind which incites to action, but includes also the inference as to the existence of such a condition, from an external fact of a nature to produce such a condition.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 23; Dec. Dig. @=22.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Motive.]</p> <p>2. Criminal Law @=22 — Motive—Element oe Crime.</p> <p>The prosecution may stop with proof that the crime was committed and need not prore motive.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 23; Dec. Dig. <§=22.]</p> <p>3. Criminal Law <&wkey;772(5) — Instructions— Motive.</p> <p>Where accused shows facts tending to show absence of motive, the jury should be instructed that absence of motive is a circumstance in her favor.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1816; Dec. Dig. @=772(5).]</p> <p>4. Criminal Law <&wkey;738 — Question rob Jury — Absence 03? Motive — Effect.</p> <p>It is a question for the jury whether absence of motive is a strong or weak circumstance in favor of the accused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1706, 1707; Dec. Dig. &wkey;> 738.]</p> <p>5. Criminal Law <&wkey;761(18), 762(3), 809-Instructions — Presumption of Innocence —Province of Jury.</p> <p>A charge that the presumption of innocence is a rule of law which does not arise from evidence, but where the evidence shows absence of motive the presumption is greatly strengthened and sometimes conclusively established, is objectionable as confusing, as confounding the presumption of innocence with the inference of fact arising from absence of motive, as assuming that absence of motive may conclusively establish innocence, and as calling for the judge’s opinion as to how far absence of motive may go toward establishing innocence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1758, 1764, 1769, 1853, 1947; Dee. Dig. &wkey;761(18), 762(3), 809.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Costs <&wkey;260(6) — Frivolous Appeal — Damages.</p> <p>Damages for frivolous appeal cannot be awarded; where the appellee obtains a modification of the judgment.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 993-996; Dee. Dig. &wkey;260(6).]</p> <p>2. Costs <&wkey;260(5) — Frivolous Appeal — Damages.</p> <p>Damages for frivolous appeal are allowed only on money judgments.</p> <p>[Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 992, 996; Dec. Dig. &wkey;260(5)J</p> <p>3. Attachment <&wkey;lll — Geounbs — Pleading— Sufficiency.</p> <p>A petition, alleging that cotton in possession of defendant had been stolen from and was the property of plaintiff, and that defendant was about to place it beyond plaintiff’s reach and to convert it into money, or evidence of debt, does not state a ground of attachment under Code Prae. art. 240, which permits attachment only when the debtor is about to leave the state, or resides outside the state, or is about to mortgage, assign, or dispose of his property or convert it into money or evidence of debt with a view to defraud his creditors, or has already done so, since the property was not that of the debtor.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 292-302; Dec. Dig. <&wkey;>lll.]</p> <p>4. Attachment &wkey;>140 — Geneeal ob: Special.</p> <p>There is but one sort of attachment, which under Code Prac. art. 239, is general and against all the debtor’s property.</p> <p>[Ed. Note. — For other cases, see Attachment, Dec. Dig. <5&wkey;140.]</p> <p>5. Gaenishhent <5&wkey;110 — Intere o gatoeie s — Effect.</p> <p>A writ of garnishment, in which the garnishee is required to answer whether it is indebted in any sum whatsoever to defendant, has the effect of attaching all property of the defendant in the hands of the garnishee.</p> <p>[Ed. Note. — For other eases, see Garnishment, Cent. Dig. §§ 230, 231; Dec. Dig. &wkey;110.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Wills <&wkey;267 — Contest—Paeties.</p> <p>. A will cannot be annulled, or its validity inquired into, without making those having an interest arising under it parties defendant.</p> <p>[Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 615, 617, 618; Dee. Dig. &wkey;267.]</p> <p>2. Appeal and Eeboe &wkey;>19 — Jtjeisdiction op Appeai>-Moot Questions.</p> <p>This court does not sit for the decision of moot questions.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 38; Dec. Dig. &wkey;>19J</p>

<p>Appeal from Mayor’s Court, Town of De Kidder; J. M. Cox, Mayor.</p> <p>H. H. Head was convicted of violating an ordinance of the town of De Ridder, and appeals.</p>

Landry; B. H. Pavy, Judge. Suit by the International Harvester Company of America against the Union Irrigation Company. Upon a proceeding for a judicial receivership sale of the property of the Irrigation Company, certain creditors objected to the sale. From an order sustaining exceptions to such objections, such creditors appeal.

<p>Appeal from Seventeenth Judicial District Court, Parish of Vermillion; William Pierrepont Edwards, Judge.</p> <p>Sam Hunley was convicted of stealing a hog, and appeals.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Executory process by Patton T. Blacksher against R. R. Leh, and the receivers of the Union Irrigation Company filed a petition in intervention and third opposition. From the judgment, the plaintiff appeals.</p>

Landry; B. H. Pavy, Judge. Executory proceedings by E. M. Boagni against E. A. Stamen, in which William Edenborn and another, joint receivers of the Union Irrigation Company, filed a petition in intervention and third opposition. From the judgment, the interveners and third opponents appeal.

Landry; B. H. Pavy, Judge. Action by E. M. Boagni against J. Franklin Schell, in which William Edenborn and another, joint receivers of the Union Irrigation Company, filed a petition in intervention and third opposition. From the judgment, an appeal is taken.

Landry; B. H. Pavy, Judge. Action by E. M. Boagni against E. A. Stamen, in which William Edenborn and another, joint receivers of the Union Irrigation Company, file a petition in intervention and third opposition. From the judgment, an appeal is taken.

Landry; B. H. Pavy, Judge. Action by E. M. Boagni against E. A. Stamen, in which William Edenborn and another, joint receivers of the Union Irrigation Company, file an intervention and third opposition. Prom the judgment, an appeal is taken.

Action 'by Thadeus A. Thompson and wife against the Illinois Central Railroad Company and another. Judgment for plaintiff, and defendant Roseland Veneer & Package Company, Limited, appealed, and from a judgment of the court of appeal affirming the judgment for plaintiff, defendants bring certiorari.

Action by Thadeus A. Thompson and wife against the Illinois Central Railroad Company and another. Judgment for plaintiffs was affirmed by the court of appeal, and defendants bring certiorari.

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Action by A. J. Mercer against the Busch-Everett Company. From a judgment for defendant, plaintiff appeals.</p>

ThSard, Judge. Final accounting in the succession of Alexander Watzke, opposed by Mrs. Pauline Pabst, as tutrix of certain minors. From a judgment dismissing their opposition, said minors appeal.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Action by Azelien Manuel against the Port Barre Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Descent and Distribution @=83 — Succession-Actions — Sufficiency of Evidence.</p> <p>Evidence held to sustain a finding that a coheir signed an act under private signature without reading it, or knowing that it stated he had received his share of certain property.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 337-345; Dec. Dig. @=83.]</p> <p>2. Estoppel @=78(2) — Equitable Estoppel.</p> <p>A signer of an act under private signature is not estopped from claiming, in an action against one not a party thereto, that he signed it without reading it or knowing that it stated he had received his share of certain property.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 205; Dee. Dig. @=78(2).]</p>

<p>Prosecution by the State against Mathew S. Sloan. On application of the State, on the relation of Chandler C. Luzenberg, Distriet Attorney, for writs of certiorari and prohibition.</p>

John the Baptist; John E. Fleury, Judge. Fed Stewart, Joe Gay, and Priestly Jack were charged with burglary and larceny. Jack pleaded guilty, and the others were convicted on both counts, and appeal.

<p> (Syllabus by the Oourt.) </p> <p>Executors and Administrators <@=^i537(2)— Succession — Liabilities on Bond — Richt oe Action — Conditions Precedent.</p> <p>An action will not lie against the surety on the bond of an administrator “until the necessary steps have been taken 'to enforce payment against the principal.”</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2453, 2488-2499; Dec. Dig. <®=537(2).]</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by the West Feliciana Planting Company, Limited, and others, against the Board of Control of the State Penitentiary. From a judgment for plaintiffs, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Mortgages <@=>494r — Actions—Judgment.</p> <p>In a suit on one of several promissory notes secured by the same mortgage, it .is not essential to the validity of the judgment, recognizing the mortgage as securing the note sued on, that it should recognize the mortgage in favor of the holders of the other notes, who are not parties to the suit.</p> <p>[Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. §§ 1441-1445; Dec. Dig. <@=>494.]</p> <p>2. Mortgages <@=>575 — Foreclosure — Effect oe Appeal.</p> <p>The receiver of a corporation, acting under orders of court, made an invalid sale of the property of the corporation. The adjudicatee refused to comply with his bid. A creditor of the corporation brought suit against the receiver and the adjudicatee to prevent a confirmation of the sale. Judgment was rendered confirming the sale, and the creditor took a suspensive appeal from the judgment, which .resulted in a reversal of the judgment and a decree of nullity of the sale. While the suspensive appeal was pending, a mortgage creditor, treating the adjudication as a nullity, seized and sold the property. Held: The judgment on which execution issued at the instance of the mortgage creditor was not suspended by the appeal, and the sale made thereunder was valid.</p> <p>[Ed. Note. — Eor other cases, see Mortgages, Cent. Dig. § 1652; Dee. Dig. <@=>575.]</p> <p>3. Judgment <@=>844^-Eeebct oe Transfer— Subrogation.</p> <p>The transfer of a judgment rendered on a mortgage note subrogates the transferee to the mortgage security recognized in the judgment.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Gent. Dig. §§ 1541-1546; Dee. Dig. <@=>844.]</p> <p>4. Mortgages <@=>529(5) — Sale—Preliminary Proceedings — Return of Writ.</p> <p>Although the law requires that the sheriff, having levied a seizure on a writ of fieri facias and being unable to make the sale before the return day of the writ, shall return the writ to the clerk’s office, retaining a certified copy, and proceed as though the original writ remained in his hands, his failure to return the original writ to the clerk’s office before the return day is not a cause for annulling a sale made under authority of the certified copy that was made by him before the return day.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1537; Dec. Dig. <@=>529(5).]</p>

M. Barbe, Judge. Actions by the Town of De Ridder against John H. Lewis, and by the same plaintiff against John A. Wilson, consolidated. From judgments for plaintiff, defendants appeal.

<p> (Syllabus by the. Court.) </p> <p>1. Wills <&wkey;618 — Constbuction — Bequest fob Life.</p> <p>The doctrine that a bequest of property to a donee during his life is a donation of the usufruct is too well settled in the jurisprudence of this state for further controversy.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1436; Dec. Dig. &wkey;618.]</p> <p>2. Perpetuities <&wkey;4(19) — Substitution — Validity.</p> <p>A disposition inter' vivos or mortis causa, by which the usufruct is given to one and the naked ownership to another, is not a prohibited substitution. Civ. Code, arts. 1520-1522.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. § 38; Dec. Dig. &wkey;>4(19).]</p> <p>O’Niell, J., dissenting. '</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law (&wkey;>619 — Trial — Joinder of Prosecutions Against Same Defendant.</p> <p>As the law does not permit different plaintiffs, suing on different causes of action, to join in a civil suit against the same defendant, neither does it permit different plaintiffs, charging distinct offenses, to join in a criminal prosecution against same defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1376; Dee. Dig. <&wkey;>619; Indictment and Information, Cent. Dig. § 402.]</p> <p>2. Criminal Law &wkey;>620(l) — Trial—Joinder of Prosecutions Against Same Defendant.</p> <p>When a defendant is prosecuted for the same act, separately charged, as constituting distinct offenses against a state law and a municipal ordinance, though the testimony, being equally applicable to both, may be heard, when no objection is made, at one and the same time for the purposes of both charges, it is obviously a legal impossibility to consolidate two criminal prosecutions for distinct offenses, even though arising from same act, which are cognizable on. appeal in different courts, and try them as one case, with a single arraignment, plea, and conviction, and a single judgment imposing two sentences.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1376; Dec. Dig. <S=s>620(l).] /</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Albert Lavergne and others against Willis J. Roussel and another. From a judgment for defendants, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Executors and Administrators <&wkey;221(9) — Succession — Actions — Sufficiency of Evidence.</p> <p>In a suit against a succession on promissory notes written by the plaintiff and apparently written after the deceased had signed her name, the only evidence that she received a consideration for the notes being the testimony of the plaintiff that he handed it to her in cash, and the proof being that the deceased was a woman of economical habits and of modest wants and that her intimate and constant companions had no knowledge of her having spent or had the money, it is held, that there is not sufficient proof that the deceased received a consideration for the notes.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 903%, 1874, 1876; Dec. Dig. <&wkey;>221(9).]</p> <p>2. Husband and Wife &wkey;>21 — Contracts with Third Persons — Authorization by Husband.</p> <p>As the authorization of the husband that is required for a married woman to obligate herself must refer to the particular contract, a letter written by the husband to the family-physician, inquiring whether the latter could loan the wife enough money for a particular purpose, is not sufficient authorization for the wife to sign, without the husband’s knowledge, promissory notes for a sum largely in excess of the loan contemplated by the husband.</p> <p>[Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 139, 141; Dec. Dig. &wkey; 21.]</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Joseph B. Lancaster, Judge.</p> <p>Action by B. P. Dunham and another against the Town of Slidell and others. From a judgment for plaintiffs, defendants appeal.</p>

D. King, Judge. In the matter of the succession of Mary Percival. Dr. John T. O’Eerrell filed an objection to the executor’s account, disallowing his claim for medical services. From a judgment sustaining the objection in part, the opponent appeals.

<p> (Syllabus by the Court.) </p> <p>1. Negligence <&wkey;121(l) — Actions—Burden of Proof — Contributory Negligence.</p> <p>In an action for damages for personal injury, when the plaintiff has proven that the injury complained of was the result of the defendant’s negligence, the burden of proof is on the defendant to show that the plaintiff was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217, 220, 224, 227; Dee. Dig. &wkey;121(l).]</p> <p>2. Landlord and Tenant <&wkey;150(5) — Use of Premises — Repairs—Duty of Lessee.</p> <p>The right accorded a lessee by article 2694 of the Civil Code, to have made at the expense of the lessor, after having demanded that the lessor make such repairs to the leased premises as are indispensable, does not impose upon the lessee any obligation to make the repairs which primarily it is the duty of the lessor to make.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 555; Dec. Dig. <&wkey;> 150(5).]</p> <p>3. Landlord and Tenant <&wkey;150(5) — Condition and Use of Premises — Liability for Injuries — Repairs.</p> <p>The jurisprudence to the effect that a lessee cannot knowingly and intentionally permit an injury to occur from the need of repairs that he himself might make with the rent due the lessor, and thus impose upon the lessor a loss greater than the repairs would have cost, has no application to an unforeseen accident, such as the collapse of the leased building or of a part of it.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 555; Dec. Dig. <&wkey;>150(5).]</p> <p>4. Landlord and Tenant &wkey;>150(l) — Condition of Premises — Liability for Injuries —Contributory Negligence.</p> <p>The lessee is not at fault for not making repairs to the leased premises except as to those which, by article 2716 of the Civil Code, he is required to malee.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 536, 537; Dec. Dig. &wkey;> 150(1).]</p> <p>5. Landlord and Tenant &wkey;>164(2) — Condition of Premises — Liability for Injuries —Statutory Provision.</p> <p>The lessee’s right to make the necessary repairs, which, primarily, the lessor should make, does not affect the guaranty imposed by article 2695 of the Civil Code upon the lessor, to protect the lessee from any'vice or defect in the leased premises and to indemnify him for any loss resulting therefrom. Nor does the lessee’s right to make the necessary repairs that the lessor has neglected to make diminish the obligation imposed by articles 670 and 2322 of the Civil Code upon all owners of buildings, to keep them in repair, under penalty of having to answer for any damages that result from their going to ruin, or from the fall of any part of the material composing them.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 631; Dec. Dig. <&wkey; 164(2).]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Real Actions &wkey;>8(l) — Petitory Action-Liability eor Tbespass — Dismissal.</p> <p>Under Code Prac. art. 43, entitling the defendant in a petitory action to be dismissed from the suit on disclosing the name and address of his lessor, a defendant in a suit for a judgment recognizing the plaintiff as the owner of land and condemning the defendant to return the oil taken therefrom, or in default thereof to pay for it, was not entitled to be dismissed, on showing its possession by yirtue of a lease, naming its lessor, and giving his address, since, the suit involving both the land and the oil, the plaintiff was entitled to have both demands passed upon in one suit, and, if establishing his claim to have a judgment against the defendant for the oil, as a judgment against the lessor for the return of the oil, or for payment therefor, might not be as easily made effective by execution against him as against the defendant oil company.</p> <p>[Ed. Note. — Por other cases, see Real Actions, Cent. Dig. §§ 26-28, 31; Dee. Dig. &wkey;8(l).]</p> <p>2. Real Actions <&wkey;8(l) — Petitory Action-Parties — Lessor.</p> <p>In such suit it was incumbent upon the plaintiff, before proceeding further, to cite the lessor to litigate the issue of title which he alone could be qualified to litigate.</p> <p>[Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 26-28, 31; Dec. Dig. <&wkey;8(l).]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Master and Servant <i&wkey;236(7) — Injuries to Servant — Contributory Negmgenoe.</p> <p>Where a brakeman on a railroad used only to haul logs from the woods to the mill was killed by being crushed between the logs loaded on two cars which he was coupling, there being evidence that it was not unusual to load the logs in such manner that the ends would project over the coupling, and that the danger could be avoided by stooping under the ends to make the coupling, the cause of the death was the negligence of the brakeman, not of the employer, and there can be no recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 730; Dec. Dig. <&wkey;> 236(7).]</p>

C. Barnette, Judge. Action by Clarence Chatman against the Bryceland Lumber Company, Limited. Judgment for plaintiff, and defendant appeals, and plaintiff files answer to the appeal. Amended in part as prayed by plaintiff, and

<p>Appeal from Eirst Judicial District Court, Parish of Caddo; T. E. Bell, Judge.</p> <p>Action by Mrs. Minnie Hogg) tutrix, against the Kansas City, Shreveport & Gulf Bailway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Recorder’s Court of New Orleans ; J. J. Fogarty, Recorder.</p> <p>J. 0. Gilmore was convicted of violating an ordinance of the City of New Orleans, and appeals.</p>

Théard, Judge. Suit by Mrs. Louis Cignoni against Louis Cignoni. On rule for alimony. From an allowance of alimony, defendant appeals. Affirmed. On application for rehearing.

Action by Mrs. Merlin J. Bellau against Mrs. Lotta Hawkins Ramsey and others. Judgment for plaintiff, maintaining a writ of sequestration, and defendants apply for writ of prohibition.

Action by R. D. Tilley against the Camden Eire Insurance Association. Prom a judgment of the court of appeal, reducing a judgment for plaintiff, the plaintiff prosecutes certiorari or writ of review.

T. Cunningham, Judge. In the matter of the tutorship of the minors of George M. Rateliffe. Opposition to the final account of the Interstate Trust & Banking Company. From the judgment, the accountant appeals.

<p>Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.</p> <p>Action by Joseph Potts against the Arkansas Mill Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Action by Mrs. Lillian B. Cochran and others against the Gulf Refining Company of Louisiana. From a judgment dismissing the action, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Brokers <§=>56(3) — Right to Compensation —Nature oj? Contract.</p> <p>A person who negotiates for the purchase of land, for his own account, with a view of selling it, for his own account, at a profit which is to inure to his benefit, has no claim upon the owner of the land, as for service rendered to him; nor does he acquire such claim when, his plan proving unsuccessful, the owner subsequently sells the land to a corporation which such person’s prospective buyers assisted in organizing, and in which they became minority stockholders.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 86-89; Dec. Dig. <§=»56(3).)</p>

F. Bell, Judge. Action by Augusta Bradley against the Shreveport Gas, Electric Light & Power Company and others. From a judgment for plaintiff against defendant Shreveport Gas, Electrie Light & Power Company and another, they appeal, and the plaintiff answers the appeal, praying that the defendant Columbia Compress Company be condemned in solido with appellants, and that the amount of the award be increased.

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander <@=3140 — “Jactitation” — Nature of Action.</p> <p>The action in “jactitation” of title is governed by the rules prescribed by the Code of Practice, under the title, “Possessory Actions,” and differs materially from the common-law action of slander of title.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 397-401; Dec. Dig. <@=> 140.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Jactitation.]</p> <p>2. Ejectment <@=365 — Petitory Action — Right of Action — Possession.</p> <p>Eor the purposes of a possessory action, it is sufficient for the plaintiff to allege that he is, and has been, in possession through his author in title, who, in selling him the property, has reserved and is enjoying the usufruct of the surface; the usufructuary in such case, and for such purpose, being constituted, by law, an agent or representative whom the owner may call to account for his administration of the property in so far as his rights may be affected.</p> <p>[Ed. Note. — Eor other cases, see Ejectment, Cent. Dig. §§ 165-174; Dec. Dig. <@=365.]</p> <p>3. Ejectment <@=»93 — Possessory Action — Right of Action.</p> <p>The provisions of the Code of Practice governing the possessory action contemplate that the question of the possession vel non of the plaintiff shall be dealt with as one of fact alone, from which it may, perhaps, be deduced that, where one who sues upon a claim of title and the actual occupant of the land concur to the effect that the latter is holding possession as the agent or representative of the former, the fact of possession in the claimant must, for the purposes of the action, be regarded as established, even, though, as a matter of law, it might not be so held.</p> <p>[Ed. Note. — Eor other cases, see Ejectment, Dec. Dig. <@=393.]</p> <p>4.Vendor and Purchaser <@=3233 — Dealing With Owner of Record — Sales.</p> <p>One who finds a person in possession of land, under a recorded title, as owner, _with _ no adverse title of record, is within his rights in dealing with him as the only person having an interest in such land, and hence, as being competent to become, the usufructuary thereof, under the deed whereby such person sells him the land, and no outstanding, unrecorded _ title can be invoked to the prejudice of the title which he so acquires.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 563-566; Dec. Dig. <@=>233.]</p>

<p> (Syllabus by the Court.) </p> <p>Mastee and Sebvant &wkey;>205(l) — Injuries to Servant — Reliance on Care of Master.</p> <p>Where an employer assigns a common laborer to a particular work, at a particular place, and with appliances furnished by him, he is bound to foresee the possibility of an accident which may result from the character of the work and of the appliances so furnished, and the employe has the right to engage in the work with the assurance that the employer will so do, and will protect him, accordingly, against dangers which are not obvious and of which he is not sufficiently warned, either by his employer or by his own experience.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 547; Dec. Dig. <&wkey;205(l).]</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. E. Howell, Judge.</p> <p>Gustave Authement was convicted of a misdemeanor, and he appeals.</p>

<p> (Syllabus by the Gourt.) </p> <p>1. Pleading <&wkey;245(l) — Amendment — Petition.</p> <p>The plaintiff may, with leave- of court, amend his petition after issue is joined, provided the amendment does not assert a demand different from the relief first sought, or change the substance of the original demand.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 653, 655; Dec. Dig. &wkey;245(l).]</p> <p>2. Homestead <&wkey;193 — Eneoecement oe Right — Time eoe Claim.</p> <p>It is not too late for a debtor to claim the $2,000 reserved as a homestead exemption after the sheriff has made an adjudication of the property subject to the homestead for a bid exceeding $2,000, so long as the proceeds of the sale remain in the hands of the sheriff or of the purchaser at the sheriff’s sale.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 364; Dee. Dig. <§¿=>193.]</p>

King, Judge. In the matter of the succession of A. B. Le Besque. From a judgment on the opposition of Louis A. Dupont to the provisional account of Ovide Le Besque, administrator, the opponent appeals.

<p> (Syllabus by the Court.) </p> <p>Sales <&wkey;23(4) — Requisites—Offer and Acceptance — Effect of Condition .</p> <p>Where, as between the vendor and vendee of merchandise, the former agrees to sell at a certain price, but, upon a condition, without compliance with which by the vendee, there is to be no sale, and the vendee fails to comply with the condition, there is no sale. Whether, in such case, the condition imposed is reasonable or unreasonable is a matter for the parties to determine at the time, but the vendee cannot close thé contract by accepting the condition and afterwards representing that he has complied, or will be able to comply, with it, when the representation is untrue.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 47; Dec. Dig. <&wkey;>23(4).]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Two actions by A. H. Leonard against the Busch-Everett Company, consolidated. From judgments for defendant, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo, T. F. Bell, Judge.</p> <p>Action by Mrs. D. B. Anderson and others against the Texas & Pacific Railway Company. From a judgment- for plaintiffs, defendant appeals.</p>