The admitted facts in the Dexter Case are | purchase lands belonging to the state of as follows: Louisiana, or to any of the levee boards thereof, subject to sale." "That John Dexter, relator, has been a citizen of this state all his life. That he is the head of a family, and has had a family for the past 10 years; that the property described in his petition is the only land he has ever sought to acquire from the state of Louisiana, and that he has never applied for any public land belonging to the United States; that in 1904 he gave notice to the register of the land office of this state of his intention to apply to enter said lands under the homestead laws of this state; that he caused to be published for the time and in the manner required by law in the parish where said property is situated notice of his intention to enter said land under the homestead laws of this state; that he exhibited to the said register full proof of said publication which accompanied the affidavit required by section 2 of Act 64 of 1888 and that of the affidavit of two disinterested witnesses; that relator fully complied with said Act 64 of 1888; that on July 12, 1904, said register accepted said proof and application, and received from relator all of the costs and legal charges, and issued to him a certificate showing that all of the preliminary steps had been taken, which receipt is annexed hereto as 'Exhibit A,' all of which proceedings were in full compliance with section 2 of said Act 64 of 1888, and the register entered on his records the entry aforesaid; that relator has filed full proof with said register that he resided upon and cultivated said land for five years immediately succeeding the issuance of the aforesaid receipt, and that no part of said land had been mortgaged or alienated, all of which is true; that relator has complied with every requirement of Act 64 of 1888; and that the reg ister of the state land office refuses to issue a patent solely because of Act No. 215 of 1908, and for no other reason.' Act No. 215 of 1908, p. 319, is: "An act to annul all applications on file in the office of the register of the state land office for the entry or purchase of public lands from the state to which patent or certificate of entry has not issued, and regulating the manner and terms on which public lands may hereafter be sold, and prescribing the duties of certain officers regarding the same.' Section 1 provides: "That all applications for the entry or purchase of public lands of the state, now on file in the office of the register of the state land office to which patent or certificate of entry has not issued, be and the same are hereby declared null and of no effect." The other sections of the act provide among other things, what shall be done "when any person shall desire to enter or If relators have already entered the lands for which they demand patents, it is clear that they are no longer applicants for entry, and the Act of 1908 does not apply; the declared purpose of that act being to annul ail applications for entry, not to annul entries already made. The best means of ascertaining what under the laws of Louisiana constitute an "entry" is to examine those statutes under which relators claim to have entered the lands in question. If relators have done all that the law required them to do at the time of the performance of the several acts necessary to constitute an entry, the entry is complete, and has become a property right which cannot be taken away except by due process of law. There is in the courts no power to force a state not to violate its contracts, but if the effect of a statute, adopted subsequent to that under which rights have been acquired, be to deprive a citizen by legislative fiat of his property rights, then the plain duty of the courts is to declare such act to that extent unconstitutional. Section 2, Act 64 of 1888, p. 70, provides that the person applying for the benefit of this act shall publish in the locality where the land is situated his intention of entering land under the homestead laws of this state, giving a description of the land he proposes to enter at least 30 days prior to his application for entry. The evidence of the publication of this notice must be exhibited to the register at the time of filing application for entry, together with the affidavit of the applicant that he is a person entitled to make a homestead entry, and that the entry is for homestead purposes, together with the affidavits of two credible witnesses that the land applied for is suitable for settlement and cultivation, and, úpon payment of the the contestant for 60 days shall have the fees allowed by law, the applicant "shall thereupon be permitted to enter the quantity of land specified," provided "that no patent shall issue therefor until the expiration of five years from the date of such entry." Section 5 provides that, under certain contingencies, "the entry shall be canceled and the land revert to the state." Act 107 of 1886, p. 203, provides for the trial of contests of "entries of state lands." Section 1 provides that in all cases where lands belonging to the state have been entered under laws "requiring settlement and cultivation of said lands as a part of the consideration received or to be received by the state for the same, and particularly when such entries have been made or shall be made under the homestead act, the graduation act, or the settlement or cultivation act," it shall be lawful for any person having the legal qualification "to contest said entry or entries" in the manner pointed out by this section of the statute. The contestant must "file a written notice of contest in the state land office, describing said entry or entries by number, date, and the name of the entries, * * setting forth the facts constituting the alleged invalidity of said entry or entries." The contestant must pay to the register $2.50 "for each entry so contested." It is made the duty of the register "to issue his notices to the said enterer or enterers, and deliver the same to the contestant." sole right "to enter" said lands, and the section further provides that the provisions of this act shall not apply in any case in which the state has issued a patent. In other words, the statute is exclusively concerned with contesting entries that have been made, but for which no patents have been issued. Act 124 of 1902, p. 206, provides, so far as is pertinent to this discussion, for the entry and sale of public lands which were formerly the beds of lakes and other bodies of water. Section 4 provides that not more than 160 acres of the lands described in this act shall be entered by or sold to any one person under the provisions of this act, provided that any person making affidavit that he enters for his own use, and for the purpose of actual residence, settlement, and cultivation, and that, together with said entry, that he has not acquired from the state more than 160 acres, shall be allowed to enter 160 acres, provided that proof of actual residence, settlement, and cultivation shall be made at the state land office within 12 months after the entry shall have been made, and that, on failure to make such proof within that time, "said entry shall be canceled." Comparing the admitted facts in the cases of these several relators with the provisions of the laws under which they claim to have made their entries, it will be seen that at the time of the passage of Act 215 of 1908 relators were no longer applicants for entries. Their entries having already been made, they were applicants for patents only. Section 2 provides for the trial of such contest before the register, and makes it his duty to "decide according to the principles In construing statutes, it is the duty of of law and justice, and of this act, said en- the courts to start out with the prima facie tries or any of them, valid or invalid, and presumption that it is not the intention of to affirm or cancel the same accordingly, and the Legislature to annul contracts entered said decision shall be final so far as the ex- into by the citizen with the state; and all ecutive department is concerned, unless an the more must it be presumed that the Legappeal be taken under existing laws." The islature has not attempted the vain, because section then provides that, "if said entry or unconstitutional, task of depriving the citientries are deemed invalid and canceled," zen, without compensation being first made To Sterling P. Carroll a patent to the following described property: of his property. When the citizen has done | duly returned at said time to the register of everything which the law says he shall do, the state land office. has paid into the state treasury all that he is required to pay, has under the faith and protection of the law expended years of his life in making very valuable property, which before the expenditure of his labor upon it was of little value, the state could neither in good conscience nor under the Constitution declare such property a part of the public domain and deprive the entryman of his possession and title. This view is sustained by Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363. Being thus of the opinion that Act 215 of 1908 by its very terms has no application to cases such as those presented by the relators -that is to say, to cases in which entries have already been made, and where there is nothing left to be done except the actual issuance of patents by the register-it is unnecessary to consider the contention of the register that these suits are in reality suits against the state. Since, then, under these views, it is the plain ministerial duty of the register to issue the patents applied for, the doctrine announced in the McEnery Case, 47 La. Ann. 110, 16 South. 647, does not apply. It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided, annulled, and reversed; and it is now ordered, adjudged, and decreed that the mandamus applied for by Armistead, Carroll, and Dexter be now made peremptory with costs, and that accordingly Frederick J. Grace, register of the state land office, be commanded to issue to Edwin D. Armistead a patent to the following described land: Lot 8 of section 29; lots 8, 9, and fraction W. 2 of 7 and 10 of section 28; N. 1⁄2 of lot 7, less west portion, N. 1⁄2 of lot 6, and N. 1⁄2 of lot 5, of section 28-all in township 13 N., range 10 W.. containing 133 acres, more or less, as per survey made by W. S. Trechel, surveyor, in April, 1906, and Lot No. 8 of section 33, and lot No. 11, lot No. 5, lot No. 10, less fraction W. 1⁄2 thereof, and south 1⁄2 of lots Nos. 6 and 7, of section 28, all in township 13 N., range 10 W., and containing 110 acres, more or less, as per survey made by W. S. Trechel, surveyor, under legal authority, on or about April 25, 1906, and duly returned by him to the honorable register of the state land office of Louisiana, to which reference is hereby had. To John Dexter a patent to the following described property: N. W. 4 of section 11, township 22 N., range 14 W. (56 South. 644.) No. 18,994. (Nov. 13, 1911. Rehearing Denied Dec. 11, 1911.) (Syllabus by the Court.) CRIMINAL LAW (§ 1144*)-WITNESSES (§ 2*)— Where the trial judge overruled a motion for a continuance on the ground that the accused had not exercised due diligence in the summoning of witnesses, and the record does not show the contrary, the ruling will not be disturbed. The right of the accused to compulsory process to obtain the attendance of his witnesses is predicated on the exercise by him of due diligence to secure such attendance. Law, Cent. Dig. 88 2736-2781; Dec. Dig. § [Ed. Note. For other cases, see Criminal 1144;* Witnesses, Cent. Dig. §§ 2-4; Dec. Dig. § 2.*] Appeal from Second Judicial District Court, Parish of Bossier; John N. Sandlin, Judge. Robert W. Turner was convicted of feloniously killing a cow with intent to steal, and appeals. Affirmed. A. J. Murff and W. A. Mabry, for appellant. Walter Guion, Atty. Gen., and Thomas W. Robertson, Dist. Atty. (G. A. Gondran, of counsel), for the State. LAND, J. The accused was indicted for the statutory crime of feloniously killing a cow with intent to steal, and was tried, convicted, and sentenced to imprisonment at hard labor for two years. The accused has appealed and relies for reversal on a bill of exceptions taken to the refusal of the judge to grant a continuance. to the facts set forth in said motion, the judge overruled the motion, for the following reasons: "That the witness had not been ordered summoned by defendant until two days before trial, and no order had been obtained by him for the witnesses out of the parish, that he had not used due diligence." It appears from the motion and bill that the summons was served at the domicile of Washington on the day before that fixed for the trial, and the presumption is that the of ficer, who made the service, used due dili gence in making his return. Why the summons was not returned into court in time for the trial does not appear. On July 3, 1911, the accused was arraigned and pleaded not guilty. The case was set for trial for July 7, 1911. On the day thus fixed, the accused filed a motion and affidavit for a continuance on the ground of the absence of two material witnesses, alleged to have been duly summoned. The motion recites that the summons was ordered on July 5, 1911; that one of the witnesses, George Washington, resided in the parish of Bossier, and the other, Jack Edwards, re- and sentence below be affirmed. sided in the parish of Webster. Counsel for the accused admits that the ruling of the judge was correct as to the witness residing in the parish of Webster. The trial judge held that the accused had not exercised due diligence in the summoning of the witness, and the record does not show the contrary. The right of the accused to compulsory process is predicated on the exercise of due diligence by him to secure the attendance of his witnesses. It is therefore ordered that the verdict (56 South. 645.) No. 19,060. COLE v. MUTUAL LIFE INS. CO. OF It does not appear from the motion or the bill of exceptions that a summons was addressed to Washington, as a resident of the parish of Bossier. The contrary may be in- In re MUTUAL LIFE INS. CO. OF NEW ferred from the letter attached to bill of exceptions, reading as follows: "Mr. J. F. Edwards: "Minden, La. 7-6-1911. "I made domicile service on Mr. George Washington, but his wife has just been confined, and it will be impossible for him to leave her, as he had no one to leave with her. I am sorry. "Respectfully your friend, "A. H. Phillips, "Dy. Sheriff." When the case was called the summons had not been returned into court. On the state admitting that the said two witnesses, if present in court, would swear YORK. (Nov. 13, 1911. Rehearing Denied Dec. 11, 1911.) (Syllabus by Editorial Staff.) 1. INSURANCE (8 618*) - ACTIONS ON LIFE POLICIES. Under the express terms of Act No. 44 of 1910. p. 69, suit on a life policy may be brought in the parish of decedent's domicile. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1536-1539; Dec. Dig. § 618.*] 2. INSURANCE (§ 646*)—LIFE POLICIES-Bur DEN OF PROOF. had the burden to show that insured's throat A life insurance company sued on a policy was tubercular, as affecting a defense that he misstated in his application that he was in good health. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1555, 1645-1668; Dec. Dig. § 646.*] 3. INSURANCE (§ 291*)-LIFE POLICIES—APPLICATION-STATEMENTS-EFFECT. Statement by an applicant for reinstatement of life insurance that his health has remained good and unimpaired since his examination under the original application did not amount to a warranty, but was a mere representation, needing to be true only to his best knowledge and belief. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 681-696; Dec. Dig. § 291.*] 4. INSURANCE (§ 292*)-LIFE POLICIES—APPLICATION-STATEMENTS "CONSULTATION.' That applicant for reinstatement of life insurance had been treated by a physician for what was regarded as a common temporary inflammation of the throat did not constitute "consultation" of a physician within a statement in the application that he had not consulted a physician since a certain time, though it subsequently appeared that applicant had tubercular laryngitis. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 691, 692; Dec. Dig. § 292.* For other definitions, see Words and Phrases, vol. 2, p. 1482.] Action by Mrs. Jessie A. Cole against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant applies for review. Application dismissed. J. E. Reynolds and Denegre & Blair, for applicant. Barnette, Roberts & Goff, for respondent. PROVOSTY, J. The son of plaintiff insured his life in her favor in the defendant company for $1,000 on September 2, 1903. He paid five yearly premiums, but failed to pay the sixth, falling due September 2, 1908; and, the 30 days of grace within which to make the payment having passed without his having availed himself of it, the policy lapsed on October 2, 1908. Four days thereafter he made application for reinstatement, and the policy was reinstated. He died four months thereafter, on February 4, 1909, of tubercular laryngitis. This suit is upon the policy. 129 LA.-23 There is no positive proof of the cause of his death; but the fact of its having been as here stated seems to have been taken for granted throughout the trial, and the inference in that regard is so strong as to amount to sufficient proof, and, moreover. plaintiff has laid no stress on the absence of this proof, though incidentally calling attention to it. The application for reinstatement was made on the printed form of the defendant company, which contains the following: "And the undersigned hereby ratifies and confirms all the statements made in the application upon which said policy was issued, and hereby makes the said application and this request alike part of the said contract of insurance, and further guarantees that he is of temperate habits, and that, except as noted below, his health has been good and has remained unimpaired at all times since the last examination for policy No. 1,384,385; that he has not consulted a physician since that time, and his family record has remained the same.' The exception noted below is as follows: "The only time had a physician was last fall while had measles and mumps." [1] Defendant, not being domiciled in the parish of Bienville, where the assured resided and died and where this suit was brought, but in the parish of Orleans, where it has a resident agent, pleaded to the jurisdiction of the court ratione personæ, and pleaded, further, that the fact of the court of Bienville parish not having jurisdiction of the suit was res judicata, it having been so decided on a previous occasion, when the same suit was brought in the same court, and a plea to the jurisdiction was interposed and sustained. A complete answer to that contention is that, since the dismissal of the said previous suit, Act 44, p. 69, of 1910, has been passed, which provides that: fendant may be sued either at the domicile of "In all suits on a policy of insurance the dethe insurance company, or in the place where its principal agency is established, or in the parish where the loss occurred, or in the case of life insurance, at the domicile of the deceas |