Volume 141 — Louisiana Reports

K. Skinner, Judge. Action by the I-Iarwood-Barley Manufacturing Company against the Illinois Central Railroad Company, which called in warranty J. E. Hirschberg & Co. as principal an'd Max Schwabacher as surety on an indemnity bond, and sought a judgment over against such principal and surety in solido for the amount of any judgment rendered against it.

, Judge. Action by H. M. French and another against the Trout Creek Lumber Company. Judgment for plaintiffs, and defendant appeals, and plaintiffs pray for an increase of the award.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by John Ray, for use of Nicholas Ray, a minor, against Robert Werk & Oo. and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Winston Over-ton, Judge.</p> <p>Action by B. J. Lyons against the New Orleans, Texas & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. Mechanics’ Liens &wkey;315 — Mechanics’ Privileges — Contractor’s Bond — Recovery Against Surety.</p> <p>Question certified by Oourt of Appeal, Second District: “Was it necessary for said defendants, materialmen, to file sworn statements of their accounts with the owner of the building as a condition precedent to recovery of the amounts of such accounts as against the surety in case of the default of the contractor?” Answer: “No.”</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. § 658.]</p> <p>2. Mechanics’ Liens <&wkey;315 — Mechanics’ Privileges — Contractor’s Surety Bond-Notice to Owner — Statutes.</p> <p>The surety sustained no loss by reason of the alleged failare to give notice to the owner.</p> <p>See section 1, Act No. 221 of 1914, pp. 418-420.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent, Dig. § 658.1</p>

<p> (Syllabus by the Oourt.) </p> <p>Libel and Slandeb <&wkey;112(l) — Action eor Slander — Evidence.</p> <p>Plaintiff must make his case certain.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 325-32S, 330, 331, 341.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Railroads &wkey;>376(l) — Injuries to Persons Near Track; — Negligence.</p> <p>Where plaintiff crossed the main track of a railroad along which an engine was approaching in order to speak to the fireman in an engine backing a train along a branch track ten feet fi'om the main track, and, after reaching a place of safety between the tracks, stepped back so close to the main track that the engine thereon struck and injured him, and it appeared that when he stepped back the engine, which had sounded its whistle and was ringing its bell, was too close to be stopped before striking him, no negligence on the part of the railway was shown and plaintiff cannot recover.</p> <p>[Ed. Note.. — For other cases, see Railroads, Cent. Dig. §§ 1275, 1278.]</p>

Land, Judge. Action for injunction by the Standard Oil Company of Louisiana against W. W. Barlow and others. Judgment for plaintiff awarding a certain sum to defendants as damages to land, and defendants appeal.

Barbe,' Judge. Action by the First National Bank of Lake Charles against Louis J. Bell, in which N. D. Pope was summoned as garnishee. From a judgment sustaining the commissioner’s claim of pledge of the property of defendant in his possession, plaintiff appeals.

Peter Felter and others were convicted of gambling within four miles of a high school, and they apply for writs of certiorari and prohibition.

X. Ransdell, Judge. Habeas corpus proceeding by the State of Louisiana, on relation of Mrs. Frankie T. Sevier, against William P. Sevier and wife and Albert Nichols and wife. Judgment for defendants, and relator appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish of Allen; Winston Overton, Judge.</p> <p>Leonard Hill was convicted of murder, and he appeals.</p>

Parish of Orleans; T. C. W. Ellis, Judge. Suit by William F. Pettit against the Nelson Company. Verdict for plaintiff in the sum of $1,500, and judgment thereon, and defendant appeals.

Carter, Judge. Proceeding by the State, on relation of Quincy Norris, against Mrs. Maggie Goings Graham. Judgment awarding the custody of defendant’s child to the relator, and defendant appeals.

<p>Certiorari to Court of Appeal, Parish of Orleans.</p> <p>Suit by tbe Town of Kenner against Frank Zito, in wbicb be called bis warrantor, tbe Hanson City Land Company, Limited. From a judgment of tbe Court of Appeal reversing tbe judgment of tbe district court for defendant, and rendering judgment for plaintiff, defendants bring writ of certiorari.</p>

<p> (Syllabus by the Court.) </p> <p>1. Frauds, Statute of &wkey;>17 — Promise to Pat Debt of Another.</p> <p>The prohibition is absolute that parole evidence shall not be received to prove any promise to pay the debt of a third person. Civ. Code, art. 2278.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 13, 10, 17.]</p> <p>2. Frauds, Statute of <&wkey;17 — Promise to Pat Debt of Another.</p> <p>A verbal promise to pay the debt of a third person can have no legal effect.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17.]</p>

T. Cunningham, Judge.- Action by James P. Guillot against Mrs. Fanny Chopin-Guillot and others. Judgment for the named defendant dismissing the suit and allowing her demand in reconvention, and plaintiff appeals..

Dawkins, Judge. Actions by G. M. Sims (No. 9365), by Sims & Ingram (No. 9366), and by Norsworthy & Yeldell (Nos. 9367, 9368), all against the Village of Mer Rouge. Judgment for the defendant on exception of no cause of action was rendered in each action, and the plaintiffs appeal.

F. Bell, Judge. Action by Mrs. Lola Dahlberg and others against the Shreveport Traction Company. Verdict for plaintiffs for $1,000, judgment thereon, and defendant appeals.

Benton, Judge. Isidore Weis and others were convicted in the city court in the City of Baton Rouge of the offense of gaming, and they appeal.

C. W. Ellis, Judge. Action by Miss Virginia M. Rekage against Eugene S. Hayford.. Judgment against defendant by default, and from a judgment setting aside the default, plaintiff appeals.

C. W. Ellis, Judge. Interdiction suit by Mrs. Josephine Pons Ruiz and others against Mrs. Marie N. Pons, widow, in which the defendant’s succession was opened, and in which an attorney who had represented her in the interdiction suit was confirmed and qualified as testamentary executor, and obtained an ex parte order dismissing the suit, and in which the Bank of Orleans, administrator pro tempore for defendant in the interdiction suit, obtained a rule on the testamentary…

<p> (Syllabus Tjy the Oowt.) </p> <p>1. Evidence <&wkey;178(3) — Marriage <&wkey;46 - Contract of Marriage — Proof—Record.</p> <p>It would seem to be an elementary proposition under the law as it now stands (since the amendment, in 1855, of Oiv. Code, art. 107 [now article 105], whereby the duplicate act of marriage, for which the article provides, is required to be returned, with the duplicate license, to the officer issuing the license, and by him recorded), that, in any case in which it is sought to prove a contract of marriage, the proponent should be required to produce a certified copy of the public record, which the law declares shall be made, of the contx'act, and that, until it be shown that the record has been lost or destroyed, no secondary, or inferior, evidence thereof, offered to create a presumption that such contract had been entered into, should be received.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 583; Marriage, Cent. Dig. § 74.]</p> <p>2. Marriage <&wkey;50(5) — Presumption—Parol Evidence — Sufficiency.</p> <p>Parol evidence, when admissible, to establish a presumption of marriage, arising from the fact that the persons concerned have lived together, held themselves out, and been received as man and wife, should be strong enough to carry conviction that they entered into that relation with the bona fide intention of permanently assuming the obligations and responsibilities of marriage, and carried that intention into effect.</p> <p>[Ed. Note. — Eor other cases, see Marriage, Cent. Dig. §§ 86, 87.]</p> <p>3. Death <&wkey;31(5) — Wrongful Death — Right of Action — Statute.</p> <p>Article 2315 of the Civil Code (as amended) applies to actual and legitimate relatives, and its provisions cannot be extended to reach other persons to whom they do not expressly apply; hence illegitimate children have no right of action in damages for injury, resulting from the alleged wrongful killing of á brother from the same bed.</p> <p>[Ed. Note. — Eor other cases, see Death, Cent. Dig. § 40.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Libel and Slander <&wkey;100(8) — Petition-Variance.</p> <p>In a civil suit based on slander, there must not be a variance between the proof and the words alleged in the petition; but it is sufficient that the proof of publication is substantially the language charged.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 262-272.]</p> <p>2. Libel and Slander <&wkey;121(2) — Damages —Amount.</p> <p>The injury inflicted by a slander may not be reasonably estimated in dollars; but a judgment will not be rendered greater in amount than the slanderer can perhaps bear.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 354.]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Frank Governale against the Interstate Fire Insurance Company of Birmingham, Ala. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Goxvrt.j </p> <p>1. Jury &wkey;>103(14) — Competency op Jurors.</p> <p>A juror is competent to serve who, on his voir dire, says that he has read and heard of the homieiie, and that he has formed an opinion as to the guilt or innocence of the accused; if he is unprejudiced, and says, at the same time, that his opinion will yield to the evidence produced on the trial, and that he will find a verdict in accordance with that evidence and the law as given to him, by the trial judge.</p> <p>(Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 473, 478J</p> <p>2. Jury <&wkey;137(4) — Peremptory Challenge —Time.</p> <p>It is too late to peremptorily challenge a juror who had been accepted and sworn by both sides. If the jury is to be purged, it must be done in the proper way.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 623.]</p> <p>3. Criminal Law <&wkey;726 — Trial—Argument op Counsel.</p> <p>Where counsel, in his argument, has pleaded for mercy for the defendant, and the district attorney, in answer to said appeal, says that the accused is not entitled to any more mercy than other criminals, or words to that effect, the language of the district attorney cannot be said to have injured the accused in any way.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681.]</p> <p>4. Homicide <&wkey;158(l), 166(1) — Evidence — Threats.</p> <p>Threats made by the accused against the deceased may be offered in evidence to show malice and motive. ■</p> <p>[Ed. Note. — For other casks, see Homicide, Cent. Dig. §§ 293, 320.]</p> <p>5. Criminal Law <&wkey;854(9) — Separation op Jury.</p> <p>A jury cannot be said to be separated when they are taken, in the custody of two deputy sheriffs, to a restaurant in the vicinity for the purpose of taking supper, when it is shown that' they were placed at tables separate and apart from other customers in the restaurant, and that they have had no communication of any kind with any third person.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2047.]</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; R. Em-met I-Iingle, Judge.</p> <p>Action by Joseph Bordes against the Bank of St. Bernard and another. From a judgment in favor of the defendant bank and against the plaintiff sustaining the exception of no cause of action filed by defendant, and dismissing plaintiff’s suit, plaintiff appeals.</p>

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

<p>Appeal ¿from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.</p> <p>Action by Ed. Roos against B. F. Rogers and others. From judgment for defendants, plaintiff appeals.</p>

Barnette, Judge. Suit by J. E. Gaston, as tutor, against A. M. Rainach, to annul a sale made by the minor. Exception of no cause of action and of want of authority of plaintiff tutor were sustained, and plaintiff appeals.

<p>Appeal from Thirtieth Judicial District Court, Parish of La Salle; F. E. Jones, Judge.</p> <p>Elisha Coleman was convicted of a crime upon his plea of guilty, and, from a judgment refusing Ms motion to set aside his plea and grant a new trial, he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Pleading &wkey;>36(3) — Conclusiveness — Shifting Grounds of Defense — Ownership of Attached Property.</p> <p>A defendant in attachment, sued for the price of the property attached, who sets up the defense that he acquired the property under a contract of sale and purchase, wherein he acted as the agent- of a third person, who has intervened and claimed the property as owner by virtue of such contract, cannot thereafter shift his ground, and be heard to say that there was no contract, because the agreement between the buyer and seller was to have been reduced to writing, and was not so reduced.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 82.]</p> <p>2. Sales <&wkey;l(l) — Action eor Price — Defense.</p> <p>A contract for the building, erection, and operation of a piece of machinery, such as a traveling, electric, lumber crane, wherein the price, general design, and clearance dimensions are agreed on may very well be left open for changes in the details of construction, to be determined upon approval of detailed specifications, and it) is no defense to an action for a balance due upon the price, brought after the machine has been delivered, accepted, and put in successful operation, following a long correspondence, in which the buyer had insisted upon compliance with his “contract,” that the entire contract had not been reduced to writing, and signed by him, particularly where it appears that he had persistently evaded the signing of such instrument.</p> <p>[Ed. Note. — For other cases, see Sales, Gent. Dig. § 1.]</p> <p>3. Attachment &wkey;>308(4) — Intervening Claimant — Principal and Agent.</p> <p>One who intervenes in an attachment suit, claiming to be the owner of the property attached, by virtue of a title acquired by his agent for his benefit from the plaintiff and vendor,- must needs go out of court where it appears that the property was sold to the alleged agent for his own account.</p> <p>[Ed. Note. — For other cases, see Attachment, Gent. Dig. §§ 1106-1109, 1111-1113.]</p>

<p> (Syllabus by the Court.) </p> <p>Negligence <&wkey;35 — Conbition oe Property —Liability.</p> <p>A property owner is required to maintain his premises in a condition of safety to travelers on the public road. Hence if, by his negligence or lack of attention, the end of a strand of barbed wire becomes detached from the fence post in front of his residence and remains lying in the public road, the owner of the property is liable in damages for injuries suffered by a traveler who, without fault or negligence on his part, becomes entangled in the wire and is thereby injured.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 54.]</p>

Oppositions by Lucinda Cuspear and by Martha Kent to the provisional account of Joshua Fisher, as administrator of the estate of Louis Fisher, deceased. Judgment recognizing the claim of Martha Kent and the claim of Lucinda Cuspear in part, and the administrator and Lucinda Cuspear appeal.

<p> (Syllabus by the Court.) </p> <p>Master and Servant <&wkey;243(11) — Injury to Railroad Employé — Violation oe Rules.</p> <p>A rule of a railroad company, which reads, “If your duty requires you to go around, under, or on cars, in any track, protect yourself with blue signal,” and which is understood to mean that a blue flag is 'to be displayed by day and a blue light by night, by those whose duties require them to expose themselves to danger in the manner indicated, is intended, not only for the protection of the employé, but also for the protection of the employer, and applies to an inspector who, in the discharge of the duty to inspect cars, places himself in either of the positions mentioned in the rule; hence, where, for the inspection of a car, standing, with others, upon a track which is being used for switching purposes, an inspector goes underneath the car and disappears from sight, or introduces the upper part of his person between the truck, or a wheel, and the floor of the car, leaving only his legs outside of, and against, the wheel, beneath the overhang of the body of the car, and displays no blue signal, he is not entitled to recover damages from the company for injuries sustained by reason of the switching of other ears against the dead cars, of which the car under inspection is one, and of the consequent movement of that car.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 773.]</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge.</p> <p>Suit by J. E. Glisson against Charles Biggio and others. Judgment for plaintiff, and defendants appeal, and, plaintiff answering the appeal, asks that judgment be amended by an increase to the amount applied for in his petition.</p>

Action by B. F. Fallin to enjoin proceedings by J. J. Stovall & Sons, Limited, on a writ of scire facias in execution, in which plaintiff’s father intervened, claiming ownership of part of the property seized. Judgment for plaintiff condemning defendant to pay attorney’s fees, motion for new trial overruled, and defendant appeals, and plaintiff, answering, prayed that the award in his favor be increased.

Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge. Suit by Leonce M. Soniat against Robert F. Whitmer and others to enjoin a seizure of property to satisfy a demand against plaintiff’s vendor. Judgment for plaintiff including attorney’s fees, and defendants appeal.

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge.</p> <p>Action by the Board of Commissioners for the Fifth Louisiana Levee District against the Concordia Land & Timber Company to establish title to real estate.</p>

Suit by Mrs. R. L. Woods, individually and as tutrix of her minor child,, against the Longville Lumber Company and others. Judgment for defendants, and plaintiff individually and as tutrix appeals.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Larry Jacobs against Mose Jacobs. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by John Serio against the American Brewing Company. Judgment for defendant, and plaintiff appeals.</p>

Barnette, Judge. Suit by Mrs. Bessie L. Andrews against L. B. Andrews for separation from bed and board, and for divorce. Judgment of separation from bed and board, and defendant appeals.

Barnette, Judge. Suit by Wade K. Pryor and others against the Parish Board of School Directors of Claiborne Parish, to annul a special election and a special school tax. From a judgment rejecting their demand and decreeing the special election and school tax valid, plaintiffs appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Action by the Palmer Company, Incorporated, against the Cotton Queen Oil Company, in which the State of Louisiana intervened. From an adverse judgment, plaintiff appeals.</p>

Barbe, Judge. D. E. Lemond was convicted of obtaining or attempting to obtain money or property from another by the confidence game, and he appeals.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; J. B. Lancaster, Judge.</p> <p>■ Suit by Edward Vives against the Covington Naval Stores Company, Limited. Prom the judgment, plaintiff appeals.</p>

R. Holstein, Judge. Frank Murphy was convicted of breaking and entering a storehouse in the night with intent to steal, and larceny, accompanied with burglary, and he appeals.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; James Andrew, Judge.</p> <p>Suit by Mrs. Lillie Kqufman against Herbert T. Clark. Suit dismissed upon an exception of no cause of action, and plaintiff appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; James Andrew, Judge. ■</p> <p>Action by Mrs. Lillie Kaufman against Mary Fontenot. Action dismissed upon an exception of no cause of action, and plaintiff appeals.</p>

Appeal froni Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge. Charles Biggio was convicted of an offense, and, from the judgment convicting him and revoking his license to operate a saloon, he appeals.

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; C. K. Schwing, Judge.</p> <p>Ernest Carmouche and George Ohust were convicted of cattle stealing, and they appeal.</p>

C. W. Ellis, Judge. In the Succession of Mrs. Widow Antoine Pons, née Marie Madeline Carcagno, in which the court ordered that all funds and assets of succession be deposited in the Bank of Orleans, and thereafter ordered the funds turned over to the clerk on executor’s order, and to be placed in Metropolitan Bank, as a judicial depositary, until further orders, and dismissing demands of the Bank of Orleans, without affecting its claim as a creditor, and the Bank of Orleans…

Suit by E. H. Merrick against the Southern Publishing Company, Incorporated, maker and indorser, and D. C. O’Malley, indorser, praying for judgment against the maker and indorser in solido, which was allotted to division C of civil district court, the judge of which made an ex parte order transferring it to division B, and denied plaintiff’s request and motion to vacate his order, whereupon he applied for writs of certiorari and mandamus, directing the judge to vacate his…

Action by the Firemen’s Insurance Company against Mrs. M. B. Hava and others, consolidated with an action by Mrs. M. B. Hava against Alfred F. Livaudais. Judgment for M. E. Hava (73 South. 7081). Application by M. E. Hava, wife of Adrian Hava, for writs of prohibition to be directed to Hon. George H. ThSard, Judge of the Civil District Court, Division E, to the clerk of that court, to Alfred F. Livaudais and to Dr. Adrian Hava.

Land, Judge. Mandamus by the State, on relation of George C. Scott, against the Caddo Rock Drill Bit Company, to compel it and its president and secretary to record on its books a transfer of shares of its capital stock to relator, and to issue to him a new certificate in lieu of one delivered to the secretary. Relator’s demand rejected, and he appeals.

<p> (Syllabus by the Court.) </p> <p>1. Insurance &wkey;>147(2) — Completion or Contract-Place.</p> <p>The contract of life insurance is. completed at the place where the policy is delivered and the first premium collected.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 293.]</p> <p>2. Insurance <&wkey;>7 — Insurance Companies— Licenses — Municipal Ordinances — Application.</p> <p>A municipal ordinance, requiring all life insurance companies to pay a license tax on the annual amount of premiums on all risks located within the city and on all risks located elsewhere, contracted for in the city, does not apply to premiums collected on policies of insurance that were contracted for and written and delivered outside of the city.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 6.)</p> <p>3. Insurance <&wkey;7 — Insurance Companies —Licenses—Power oe Municipality.</p> <p>A municipal corporation has no authority to compel life insurance companies to pay a license tax on the annual premiums on policies of insurance contracted for and written and delivered elsewhere than in the city, even though no municipal license tax be paid in the towns or cities in which the policies were contracted for and delivered.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 6.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>GUARDIAN AND WARD <&wkey;74 — TUTORSHIP — Mortgages — Reduction.</p> <p>The amount of the legal mortgage of minors on the property of their tutrix resulting from the recording of an abstract of the inventory of their father’s succession cannot be reduced as fraudulently inflated to shield the property of the tutrix from her creditors, since such mortgage represents no actual indebtedness, but merely secures faithfulness in the administration of the tutorship and can be removed by nothing short of a special mortgage.</p> <p>[Eld. Note. — Eor other cases, see Guardian and Ward, Gent. Dig. §§ 206-218.]</p>

<p>Proceeding by Frank A. Long for writ of certiorari to review the record of a certain eviction suit between himself and Mrs. Axie Long, decided by the judge of the district court on appeal from, the First ward justice court, on which he obtained a rule on the district court judge to show cause why judgment rendered by him should not be reversed and judgment rendered by justice of the peace should not be reinstated.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Appeal and Error <&wkey;154(l) — Right to Appeal — Acquiescence in Order.</p> <p>Where, on the rescission of an order granting an injunction on the ground that it was granted improvidently without a preliminary hearing, counsel for defendant asked that the hearing be set for the following day, and counsel for plaintiff that the hearing be had immediately, and the court thereupon set the hearing for the following day, there was no such acquiescence by plaintiff in the rescission of the order as prevented him from appealing, since, while the consent that a hearing be had would necessarily imply an acquiescence, the consent, if any, was conditional, and the acquiescence that will forfeit the right of appeal must be unconditional, voluntary, and absolute.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 957, 958, 961, 962.]</p>

<p> (Syllabus by the Court.) </p> <p>Licenses <&wkey;6(l) — Powers—Municipal Tax —Cobpokations—Statute.</p> <p>The city of Shreveport having been authorized by its legislative charter to impose a license tax upon any corporation, whether foreign or domestic, doing business within its limits (subject to the exceptions and condition contained in article 229 of the Constitution), an additional grant to that effect, to municipal corporations in general, in Act No. 127 of 1898, would have been, as to that city (as such grant, in Act No. 171 of 1898, was and is), a work of supererogation.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 5, 6.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Pleading t&wkey;>36(3) — Conclusion ow Law— Admission.</p> <p>The proposition that because of the admission of certain facts alleged in a petition the defendant is necessarily indebted to the plaintiff in certain amounts alleged to be due by reason of such facts involves a non sequitur, since the allegation of indebtedness is merely the pleader’s conclusion as to the law when applied to the facts, so admitted, and it may be well or ill founded, as the court may determine on the trial.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. § 82.]</p> <p>2. Executors and Administrators <&wkey;221(4) — Succession — Decedent’s Acknowledgment oe Debt — Evidence.</p> <p>Oral evidence relied 'on to prove an acknowledgment of debt by a person deceased should be clear, positive, and convincing, showing something in the nature of a specific acknowledgment of a specific debt, and the more improbable seems the debt the more convincing should be the testimony.</p> <p>[Ed£ Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 903, 903%, 1872-1874, 1876.]</p>

<p>Appeal from Twenty-Eirst Judicial District Court, Parish of Poiute Coupee; Joseph E. Le Blanc, Jr., Judge.</p> <p>Suit for injunction by Mrs. Maggie B. Platt against L. Bouanchaud, Sheriff, the Capital City Bank of Baton Rouge, and others. Judgment against plaintiff dissolving the injunction obtained and allowing defendant bank an attorney’s fee as damages, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>On Motion to Dismiss Appeal.</p> <p>1. Appeal and Error <&wkey;057(l) — Motion to Dismiss — Remand to Complete Transcript.</p> <p>Where an appellee moves to dismiss an appeal on the ground that there was no order of appeal, and the appeal bond recites that the order was granted in open court, but the clerk of the district court has omitted from the transcript of appeal an abstract of the minutes of the court, the ease will be remanded to the district court to complete the transcript.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2830, 2831, 2833.]</p> <p>On the Merits.</p> <p>2. Vendor and Purchaser &wkey;>342 — Sales— Deficiency in Area — Diminution of Price.</p> <p>When the purchaser of a tract of land, described in the deed by its name, the section number or numbers, township and range, the area, and the boundaries on all sides, makes no complaint of a failure to get all of the property he thought he was buying, until a survey made several years after the purchase discloses that the area of the land is only about two-thirds of the area stated in the deed, and the purchaser then sues the vendor for the value of the difference between the actual area and the area stated in the deed, the action is governed by the provisions of the Civil Code (Rev. Civ. Code, art. 2498) relating to the action for diminution of the price on account of a deficiency in the quantity or area of the property sold, and not by the provisions (Rev. Civ. Code, arts. 2506, 2511) relating to an action for restitution of a part of the price on account of an eviction from a part of the property.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1018, 1019.]</p> <p>3. Vendor and Purchaser &wkey;>347-^SALEs— Action for Diminution of Price — ^Limitation.</p> <p>The action for diminution of the price on account of a deficiency in the quantity or area of the land bought must be brought within one year from the date of the contract of sale; otherwise, it is barred. Rev. Civ. Code, art. 2498.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1021.]</p>

Dawkins, Judge. Helen Wilson was convicted of retailing intoxicating liquors without a license, and she appeals from the judgment and sentence.

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; W. T. Cunningham, Judge.</p> <p>George Clark was convicted, of manslaughter, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Intoxicating Liquors c&wkey;221 — Indictment — Requisites.</p> <p>In an indictment or bill of information charging a violation of Act No. 14 of 1916, making it unlawful to sell or keep for sale malt liquors in a place where the sale of intoxicating liquors is prohibited, it is not necessary to charge that the person accused had not obtained a license for the sale of malt liquor.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 240-248.]</p> <p>2. Statutes <&wkey;86 — Criminal Statute — Local or Special Law.</p> <p>A criminal statute, general in its terms, applying alike to all persons who may come within its provisions, is not a local or special law, within the meaning of articles 48 and 50 of the Constitution, even though the conditions under which it can operate prevail only in certain parts of the state.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 96.]</p> <p>3. Statutes <&wkey;85(l), 87 — Local or Special Law — Constitutional Provisions.</p> <p>The constitutional prohibition that the General Assembly shall not pass any local or special law concerning any civil or criminal actions means merely that the Legislature shall not pass a local or special law affecting any particular lawsuit, or regulating the trial of lawsuits in a particular locality.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 87, 94-96.]</p> <p>4. Intoxicating Liquors &wkey;?17 — Sale of Malt Liquors — Constitutional Provision.</p> <p>Article 181 of the Constitution, declaring that the General Assembly may enact laws regulating the sale and use of alcoholic or spirituous liquors as a matter of police regulation, does not imply that the Legislature may not enact a law forbidding the sale or keeping for sale of malt liquors in a place where the sale of intoxicating liquors is prohibited.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §.§ 21-23.]</p> <p>5. Intoxicating Liquors' <&wkey;25 — Sale of Malt Liquors — Statutes—Conflict.</p> <p>Act No. 14 of 1916, making it unlawful to sell or keep for sale malt liquors m a place where the sale of intoxicating liquors is prohibited, is not inconsistent or in conflict with Act No. 113 of 1916, regulating the shipment of vinous liquors to places where the sale of such liquors is prohibited.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 31.]</p> <p>6. Intoxicating Liquors <&wkey;242 — Offenses —Punishment.</p> <p>Act No. 14 of 1916, declaring that whoever shall violate the provisions of the act shall be punished by a fine not less than $100, nor more than $500, or by imprisonment for a term not less than 30 days nor more than 6 months, does not authorize the imposition of both fine and imprisonment. As the result of an apparent hiatus in the statute, the provision that, on failure to pay the fine, the party convicted shall be imprisoned an additional term not exceeding 6 months is inoperative.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 356-361.]</p>

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; Ben C. Dawkins, Judge.</p> <p>Walter E. Daniel was prosecuted for the third offense of carrying concealed weapons, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred- D. King, Judge.</p> <p>Mandamus by the State of Louisiana, on relation of the Widow Jas. McKay and others, against the Board of [Trustees of the Firemen’s Pension and Relief Fund.</p>

Land, Judge. Petitory actions by Robert Marzette and Leanna Patterson against J. W. Cronk and others. Cases tried together with judgment for plaintiffs, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Attorney and Client <&wkey;45 — Disbarment-Jurisdiction.</p> <p>The jurisdiction of the Supx-eme Court to disbar is limited to eases of professional misconduct, and it has no power to disbar an attorney for forgery in his individual capacity, and not as a lawyer or in his professional capacity.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 63.]</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant <&wkey;185(15) — Fellow Servant — Master’s Liability.</p> <p>A workman engaged in loading logs on railroad cars, whose- duty it is to attach the log tongs to the logs to be loaded, is the fellow servant of the one whose duty it is to signal to the man operating the steam engine to pull on the cable to which the tongs are attached. The employer of the two men is not liable in damages for personal injuries inflicted upon the man who gave the signal to pull on the cable, if the breaking of the cable and consequent injury was the result of the negligence of the fellow servant in attaching the tongs to a log that was jambed in the pile to be loaded.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 4112.]</p>

<p>Appeal from First Judicial District Court, Parish, of Caddo; John R. Land, Judge.</p> <p>Action by the Cedar Grove Oil & Gas Company against the Southwestern Gas & Electric Company, Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. O. W. Ellis, Judge.</p> <p>Action by the Camden Iron Works against the Sewerage and Water Board of New Orleans. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Insurance &wkey;>335(3) — Forfeiture of Policy —Keeping Books.</p> <p>A provision in a fire policy requiring assured to keep a set of books presenting a complete record of business transacted, including purchases, sales, and shipments both for cash and credit, was not complied with by making a memorandum on a slip of paper of each cash receipt and each credit sale and entering these items in the cashbook and ledger weekly and keeping no account of purchases except by preserving the invoices of those purchases for which there were invoices, since the policy required the books to be kept in the usual customary way, and the entries should be made at or near the time the transactions occurred.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 853.]</p>

Original proceeding by the State of Louisiana, at the instance of the Attorney General and others, for the disbarment of Thompson B. Walker, an attorney and counselor at law duly licensed by the court.

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; W. T. Cunningham, Judge.</p> <p>Action by Betty Edwards against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; W. T. Cunningham, Judge.</p> <p>Action by Willie By as, individually and as natural tutrix, against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Thgard, Judge.</p> <p>Action by Mr. and Mrs. David Sutton against Mr. and Mrs. Louis J. Champagne and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Action by Augustus G. Nelson and wife against the Vicksburg, Shreveport & Pacific Railway Company. Verdict and judgment for plaintiffs, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Damages <&wkey;132(6) — Excessive Damages — Injury to Leg.</p> <p>An award of $7,500 as damages affirmed in the case of a mashed leg, rendered practically useless.</p> <p>[Ed. Note. — Bor other cases, see Damages, Cent. Dig. § 377.]</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Ella Johnson against Peter Milhas. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Oowrt.) </p> <p>Carriers <&wkey;318(l) — Personal Injury-Proof of Injury.</p> <p>In order to recover damages for a personal injury alleged to have been received through the fault of another, the plaintiff must prove with reasonable certainty that he has been so injured, and a fortiori, as against counter evidence strongly tending to show that no such injury was received.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1308.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and Servant <&wkey;>110 — -Defective Appliances — Engine Tender.</p> <p>Where a step on the tender of the engine of a railroad construction train, which the men were constantly using in getting on and off the train, was old, shaky, and loose, with an inward movement and lower at one end than at the other, it was negligence to leave it in this condition.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 214, 214%.]</p> <p>2. Master and Servant <&wkey;240(3) — Contributory Negligence — Boarding Moving Train.</p> <p>Whether workmen expected to get on or off of a railroad construction train without unnecessary loss of time are negligent in boarding the train while in motion depends upon whether Under the circumstances of the particular case the act is consistent with ordinary prudence.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 753.]</p> <p>3. Master and Servant <&wkey;240(3) — Contributory Negligence — Boarding Moving Train.</p> <p>It was not negligence for a member of a railroad construction crew, 27 years old and in good health, who had boarded the tender of an engine probably 100 times during the three months he had been at such work, to board the train as it was starting and moving slowly, where it appeared that it was not unusual for the workmen to get on the train while in motion.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 753.]</p> <p>4. Master and Servant <&wkey;234(l) — Contributory Negligence — Forgetfulness of Defect.</p> <p>Even though a member of the crew of a railroad construction train knew of the defect in a step of the tender, which was old, shaky, and loose, with an inward movement and lower at one end than at the other, it was not necessarily negligence for him to forget about such defect in attempting to board the tender as the train was starting to move.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 706.]</p> <p>5. Master and Servant <&wkey;217(11) — Assumption of Risk — Continuing Work with Knowledge of Defect.</p> <p>Such member of such crew did not assume the risk incident to the defect in the step by continuing work with knowledge thereof, where the step was not the only one by which he could ascend the tender and his custom was to mount the tender from the other side.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 583.]</p> <p>6. Damages <&wkey;132(15) — Personal Injuries —Inadequate Damages.</p> <p>Where a member of the crew of a railroad construction train 27 years old and dependent upon his physical labor for the support of himself and his wife and children was crushed by the train, suffered greatly before medical attention could be given him, had to undergo two amputations of the leg, the second about halfway between the ankle and the knee, and, at the time of the trial, more than a year after the accident, the wound had not entirely healed, a verdict of $6,000 was inadequate, and would be increased to $7,500.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 396.]</p> <p>O’Niell, J., dissenting in part.</p>

K. Skinner, Judge. Suit by Mrs. Eli Laville against Succession of William S. Parkerson. Rule permitting plaintiff to withdraw from registry of the court the amount deposited by the executrix, and to prosecute her suit for the balance, and judgment in favor of defendant as to the balance, and plaintiff appeals.

P. Martin, Judge. Suit by John T. Moore Planting Company, Limited, against J. B. Levert Company, Limited, and the sheriff to enjoin interference with operation' of plantation and sugar factory in execution proceedings. Judgment perpetuating the injunction in part, and dissolving it in part, and J. B. Levert Company, Limited, appeals.

Rule by the Bellevue Farms Company, Limited, against the Orleans-Kenner Electric Railway Company to show cause why a receiver should not be appointed to take charge of the railway company. Exception of no cause of action sustained, suit dismissed, and plaintiff appeals.

<p> (Syllabus by the Gowrt.) </p> <p>1. Master and Servant <&wkey;10T(l) — Tools and Appliances — Sledoe Hammer.</p> <p>The rule that the master must furnish his servant safe tools with which to do his work has no application to such a simple tool as a sledge hammer, having no other defect than that it was heavier than was necessary for the work in hand.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199, 212.]</p> <p>2. Master and Servant <&wkey;219(l) — Assumption of Risk — Defective Simple Tool.</p> <p>As a general rule, the master is not liable for injury resulting to the servant from his using a defective simple tool. The reason is that the danger incident to a defect in a simple tool is an obvious danger, of which the servant undertaking to use the tool assumes the risk, especially if he has had experience in the use of such tools.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610, 624.]</p> <p>3. Master and Servant <&wkey;217(l) — Assumption op Risk — -Knowledge op Dan&er.</p> <p>The master is not responsible for the dangerous situation of the servant, if the danger was known to the servant or was obvious to any one of ordinary intelligence and the servant accepted the employment knowing the danger and having ample opportunity to guard against it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 574.]</p>

<p> (Syllabus by the Oowrt.) </p> <p>Judgment <&wkey;627 —Res Judicata — Interlocking Corporations.</p> <p>A judgment rendered in favor of one of two interlocking corporations, owned by the same stockholders, managed by the same individuals, and engaged in a common enterprise, but having a separate and distinct corporate existence and identity, has not the force of res judicata in favor of the other corporation.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 1141-1143.]</p>

T. Cunningham, Judge. Petitory action by Mrs. Aurora M. Hayne against Sam Lisso and others. Judgment for all the defendants dismissing the suit, and plaintiff appeals, and defendants, answering, pray for the amendment of the judgment in certain particulars.

<p>Appeal from Recorder’s Court of New Orleans ; Louis Burtke, Jr., Recorder.</p> <p>Albert Toca was convicted of violating a municipal ordinance, and lie appeals.</p>

<p>Appeal from Sixth Judicial District Court, Parish of Morehouse; Ben C. Dawkins, Judge.</p> <p>A..C. Thomas was convicted of manslaughter, and he appeals.</p>

<p>Appeal from Twentieth Judicial District Court, -Parish of Terrebonne; W. P. Martin, Judge.</p> <p>Suit by George D. Porche and others against R. R. Barrow. From the judgment on a rule to show cause, plaintiffs appeal.</p>

In the matter of the succession of Alexis Ribet. From a judgment exempting a legatee from the payment of the inheritance tax, the inheritance tax collector appeals.

<p> (Syllabus by the Court.) </p> <p>Divorce <&wkey;lS4(S) — Separation prom Bed and Board — Judgment op Nonsuit — Appeal — Appirmance.</p> <p>Where the trial judge is unable to determine as to the comparative credibility of the witnesses in a divorce suit and the record fails to satisfy us that he has erred in rendering a judgment of nonsuit, the judgment will be affirmed.</p> <p>[Ed. Note. — Por other cases, see Divorce, Cent. Dig. § 572.]</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; W. Schofield Rownd, Judge.</p> <p>Suit by Mrs. Louisa P. Weathersby against the Springfield Lumber Company, Limited, and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Twenty-Eifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Leo Hughes was convicted of burglary, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Suit by Andrew Roth against John S. Russell, proprietor of the Russell Motor Car Company. Judgment for plaintiff, and defendant appeals.</p>

D. Wehb, Judge. Action, by Henry W. MeGuirt and wife against G. S. Gillespie. Judgment for plaintiffs, and defendant appeals, and plaintiffs answering ask that the amount of compensation be increased.

<p> (Syllabus by the Court.) </p> <p>.1. Blind Tiger Act — Constitutionality.</p> <p>The rulings in State v. Nejin, 140' La. 793, 74 South. 103, upon various grounds of attack upon the constitutionality of Act No. 8 of 1915 (Ex. Sess.), are affirmed.</p> <p>2. Intoxicating Liquors <&wkey;132 — Keeping Blind Tiger — Construction oe Statutes— Sale oe Whisky.</p> <p>Act No. 8 of 1915 (Ex. Sess.), defines a blind tiger and penalizes the keeping of the same; it deals with the keeping for sale, etc., in dry territory, of spirituous, malt, and intoxicating liquors, whereas, Act No. 14 of 1916 deals with the selling or keeping for sale, etc., in dry territory of “malt liquors, whether intoxicating or not and whether containing alcohol or not.” The two statutes can, and should, be construed together, so as to give the utmost effect to each, and as the act of 1916 does not refer to whisky, the act of 1915 stands unrepealed in a case where the defendant is charged with keeping that beverage for sale.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 141.]</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>George Kenny was convicted of an offense, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Statutes <&wkey;123(4)—Subject and Title-Board of Road Supervisors.</p> <p>Act No. 199 of 1916, in providing for a board of supervisors of road districts and sub-road districts throughout the state, embraces but one object, and that is expressed in its title.</p> <p>[Ed. Note.—For other eases, see Statutes, Cent. Dig. §§ 178, 179, 181.]</p> <p>2. Highways <&wkey;23 — Road Districts — Board of Supervisors—Statute.</p> <p>The Legislature has the right to vest in. such boards of supervisors the right and power to lay out and construct public roads in the several road districts throughout the state.</p> <p>[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 31-34, 36.]</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Carriers <&wkey;280(4) — Passenger Elevator —Care Required.</p> <p>The owner of a passenger elevator operated in a business building for carrying passengers may not be a carrier of passengers in the sense that he is bound to serve the public; yet his duty is to protect the passengers, and he is bound to do all that human care, vigilance, and foresight can reasonably suggest under the circumstances, and, in view of the mode of con-. veyance adopted, to guard against injuries and accidents resulting therefrom, and a failure in this respect will constitute negligence rendering him liable.</p> <p>[Ed. Note. — For other cases, see Carriei’s, Cent. Dig. §§ 1092, 1117.]</p> <p>2. Carriers <&wkey;295(2) — PassengerI Elevator —Personal Injury — Liability.</p> <p>Failure to employ an operator for a single automatic push button elevator in a hospital or asylum is not actionable by any passenger, except a child of' such tender years who cannot know and appreciate the risk.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1194.]</p> <p>3. Carriers <&wkey;295(2) — Passenger Elevator —Personal Injury — Liability.</p> <p>. A person of mature years, using such elevator under those circumstances, would have to establish other facts to recover damages for injuries sustained by him in such an elevator.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1194.]</p>

T. Cunningham, Judge. Action by Louis Scheen and others against Mrs. W. L. Hain and others, with reconventional demand. Judgment for defendants, dismissing the suit, and plaintiffs appeal.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; S. Allen Bordelon, Judge.</p> <p>Albert L. Bordelon was convicted of retailing spirituous liquors without a license, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Bbrob &wkey;>1005(3) — Verdict on Conflicting Evidence — Conclusiveness.</p> <p>Where the evidence is conflicting, a verdict of the jury approved by the trial judge will not be disturbed unless clearly contrary to the preponderance of the evidence.</p> <p>[Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3949.]</p> <p>2. Carriers <&wkey;298(l) — Pleading — Assumption of Risk — Ordinary Jolts and Jars.</p> <p>Passengers assume the risk of injury from ordinary jolts and jars incident to the operation of electric ears, with due care, in the usual manner.</p> <p>[Ed. Note. — Bor other cases, see Carriers. Cent. Dig. §§ 1205, 1206.)</p> <p>3. Pleading &wkey;>428(7) — Evidence—Failure to Object.</p> <p>Evidence received without objection enlarges the pleadings.</p>

F. Brunot, Judge. ■ Suit for injunction by the City of Gretna and others against James J. Bailey, Secretary of State, and Paul Capdevielle, Auditor; J. H. Caldara and others, interveners. Motion to dissolve the writ referred to the merits, and judgment for plaintiffs perpetuating the writ, and the defendants and interveners appeal.

K. Skinner, Judge. In the matter of the final account of John A. Woodville, testamentary executor under the will of Salvatore Pizzati, deceased, opposed by Robert Woodville, legatee, Mrs. Salvatore Pizzati, widow in community, Marco Antonio Pizzati, an adopted son, Doctor T. R. Rudolph, Horace H. Newman, and certain allied charities.

<p> (Syllabus by the Court.) </p> <p>Municipal Corporations <&wkey;705(3) — Use op Street — Operation op Automobile — Prevention op Injury.</p> <p>A person who drives so dangerous a machine as an automobile through the principal street of a large city, upon a bright, dry day, and who sees, at a distance of 150 feet in front of him, two boys, ages 10 and 12 years, respectively, trailing in a soap box wagon behind an ice wag-on, should take such precautions in his driving as that, in no event or situation, conceivable to an intelligent man, will he run over and kill the boys. '</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 1515.1</p>

<p> {Syllabus by Editorial Staff.) </p> <p>1. Railroads <&wkey;339(l) — Injuries at Crossings — Wantonness or Recklessness.</p> <p>While a railway engineer, seeing a motorcycle rider attempting to cross the track when the train was so close that it struck the rear part of the motorcycle, should have made an emergency stop, instead of merely reducing the speed of the train, his failure to do so in the belief that the motorcycle rider had time to get across was a mere error of judgment amounting only to simple negligence and not to wantonness or recklessness.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1100, 1101.]</p> <p>2. Railroads c&wkey;33S — Injuries at Crossing — Contributory Negligence — Avoidance by Railroad.</p> <p>Where a motorcycle rider, approached a railway crossing without looking for trains, though an approaching train could have been seen had he looked, his negligence continued to the moment of the accident so as to be a contemporaneous contributing cause, and the railway company was therefore not -liable for the negligence of the engineer in failing to make an emergency stop upon seeing his danger.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1096-1099.]</p> <p>3. Railroads t&wkey;327(l) — Crossings — Contributory Negligence — Duty to Use Senses.</p> <p>A man.in the full possession of his faculties, who goes upon a railroad track, must be held to know that he is upon such track, and that a train may be coming at any time, and must be held to the necessity of using his senses for Ms safety, and cannot 'absolve himself of negligence by pleading absent-mindedness.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043, 1045.]</p> <p>O’Niell, J., dissenting.</p>

F. Brunot, Judge. Action by W. P. Connell, individually and as tutor, against the Yazoo & Mississippi Valley Railroad Company, which called in warranty the City of Baton Rouge. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Eighteenth Judicial District Court, Parish of Acadia; William Campbell, Judge.</p> <p>Action by Anastople D-. Theodore against Dr. E. W. Ellis. From the judgment, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Suit by I-Ienr.y Franklin against the W. K. Henderson Iron Works & Supply Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error <@=^1002 — Question of Pact — Conflicting Evidence — Affirmance.</p> <p>A judgment for damages in favor of the plaintiff in a personal injury suit, where the evidence on all material issues is conflicting, and the credibility of the witnesses is involved, and the quantum of damages is uncertain, should be affirmed, where the appellate court is not prepared to hold that the judgment is clearly wrong.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]</p> <p>On Application for Rehearing.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Judgment <&wkey;314 — Amendment — Rehearing.</p> <p>Where, under the law, interest should have followed a judgment for personal injury, an amendment to allow interest on the judgment from its date may be made without granting a rehearing.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 610-612, 616.]</p>

Boone, Judge. Action by Henry Oliphant against the Nona Mills Company, Limited, and others. Judgment for plaintiff, and defendants appeal, ana plaintiff, answering, prays for an increase in the award.

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; John B. Holstead, Judge.</p> <p>Action by Mrs. Mary S. Tooke and husband against H. B. Burke and others. Judgment for defendants, and plaintiffs appeal.</p>

King, Judge. Proceeding by the executor of Mrs. Wilhelmina Grambarth Metz to account. From a judgment dismissing the opposition of the Commereial-Germania Trust & Savings Bank, curator of Louis S. Metz, an interdict, the curator appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish o'f Allen; Alfred M. Barbe, Judge.</p> <p>Action by Charles H. Moorefield against the Bowman-I-Iicks Lumber Company.</p>

George G. Vogt was charged with willfully neglecting and refusing to provide for the support of his minor children in destitute circumstances, his plea to the jurisdiction was overruled, and he gave notice of intention to apply to the Supreme Court for relief.

<p> (Syllabus by the Oourt.) </p> <p>1. Master and Servant <&wkey;lll(l) — Safety Appliance Acts — Handholds.</p> <p>The Safety Appliance Acts of Congress of March 2, 1893, c. 196, 27 Stat. 531 (U.- S. Comp. St. 1916, §§ 8605-8612), March 2, 1903, e. 976, 32 Stat. 943 (U. S. Comp. St. 1916, §§ 8613-8615), and April 14, 1910, c. 160, 36 Stat. 298 (TJ. S. Comp. St. 1916, §§ 8617-S623) absolutely require handholds above footboards, and railroads will not be permitted to substitute for them uncoupling or operative levers.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215, 255.]</p> <p>2. Master and Servant <&wkey;228(2) — Safety Appliance Acts — Negligence—Contributory Negligence.</p> <p>A violation of the Safety Appliance Acts of Congress constitutes negligence per se, on the part of the railroad; and in such a case contributory negligence on the part of the injured employs is excluded from consideration.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 671.]</p> <p>3. Master and Servant ¡&wkey;285(7) — Safety Appliance Act — Proximate Cause of Death — Question of Fact.</p> <p>Whether a violation of the Safety Appliance Acts of Congress in not furnishing handholds was the proximate cause of the death of a switchman, thrown from the running board at night, is a question of fact, to be determined from all the probabilities and circumstances of the case.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1016.]</p> <p>4. Master and Servant &wkey;>lll(l) — Safety Appliance Act — Extent.</p> <p>The Safety Appliance Acts of Congress embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce.</p> <p>[E'd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215, 255.]</p> <p> (Additional Syllabus by Editorial Staf.) </p> <p>5. Death &wkey;>99 (4) — Excessive Damages.</p> <p>A verdict of $10,000 awarded the widow of a night switchman for his suffering and death when run over by locomotive was not excessive.</p> <p>[Ed. Note. — For other cases, see Death,■ Cent. Dig. §§ 125, 126, 129.]</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.</p> <p>Ben Johnson and Hyman Johnson were convicted of manslaughter, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Injunction <&wkey;135 — Geounhs—Relief.</p> <p>Where there is a clear case for an injunction presented, it is the duty of the judge to grant relief.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 304.)</p> <p>2. Courts <§=»207(4) — Supervisory Power oe Supreme Court — Injunction.</p> <p>If in such a case it is manifest that justice and reason require that some mode should exist of redressing at once the wrong of an abuse of power on the part of the district judge, even if there be other means of relief, or the slowness of an ordinary legal trial would produce such a delay that the administration of justice would suffer from it, the Supreme Court will exercise its supervisory power.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 613.]</p> <p>3. Mandamus <&wkey;37 — District Court — Issuance oe Injunction.</p> <p>The Supreme Court has jurisdiction to issue a mandamus to compel a district judge to allow an injunction in limine, whenever a proper state of facts is presented and all the requirements of the law have been complied with.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 81, 82.]</p> <p>4. Mandamus <&wkey;37 — Action oe District Court — Injunction.</p> <p>Where the refusal of the district judge to grant a preliminary injunction rests on an absence of fact and a consideration of the law, which are substantially, that the petition is deficient, and that it discloses no cause of action, a mandamus will not issue to compel him to issue such injunction.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 81, 82.]</p> <p>o. Injunction <&wkey;85(2)— Subject-Matter — Illegality — Ordinance.</p> <p>Whenever penal ordinances of a municipality injuriously affect existing property rights, their legality or constitutionality may be inquired into by the court, and their execution may be enjoined.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 156.]</p> <p>6. Municipal Corporations &wkey;>63(l) — Unconstitutionality oe Ordinance — Adjudication.</p> <p>Courts are at liberty — indeed, are under a solemn duty — to look at the substance of things whenever they enter into an inquiry whether or not a municipality has transcended its authority. If therefore a statute purporting to have been enacted for the protection of the public health, the public morals, or public safety, has no real and substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, or such ordinance is being enforced in a way so as to discriminate against some of the citizens, it is the duty of the court to so adjudge, and thereby give effect to' the Constitution.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1384, 1879.]</p> <p>7. Injunction c&wkey;l30(2) — Execution oe Municipal Ordinance — Requisites.</p> <p>In a ease where plaintiff seeks to enjoin the execution of a police ordinance, a preliminary injunction should not be granted unless there be found three concurring conditions, to wit: The invasion of a property right must be clearly shown ; the unconstitutionally or illegality of the ordinance must be manifest; and the judge must be satisfied that the applicant is threatened with irreparable injury, against which the law, as administered in the courts vested with jurisdiction of the prosecution, affords no adequate remedy. If either of these conditions is lacking, the district coui-t is without jurisdiction to issue the writ.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 306.]</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; William C. Barnette, Judge. .</p> <p>. Suit by W. T. Strain and others against H. B. Burke and others. From a judgment dismissing the suit, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts &wkey;224(2) — Louisiana Supreme Court — Jurisdiction—Consent of Parties.</p> <p>Jurisdiction cannot be conferred on this court at the volition of litigants; it is determined by the grant in the Constitution, and, where it appears from the evidence that an admission concerning the value of the property in dispute was made in error as to the fact, the appeal in the case will be transferred to the proper tribunal.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 609.]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>On the Merits.</p> <p>2. Husband and Wife <&wkey;132 — Grantee in Deed — Evidence.</p> <p>Where a notarial act by which property was sold did not recite that the purchase money was a wife’s separate property, testimony of one making the purchase for her that it had been paid for out of her funds was admissible under the rule that a witness' may testify to any relevant fact that has come under his observation.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 48L486, 845.]</p> <p>3. Estoppel <&wkey;70(l) — Title of Grantee.</p> <p>One who recognized the title of the children of Ms deceased wife to the entirety of property which had been sold to her by appraising it as belonging to them and filing inventory of it as such, as against purchasers from her heirs, could not contest their title.</p> <p>[E'd. Note. — For other cases, see Estoppel, Cent. Dig. §§ 183, 185, 187.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Carriiers <&wkey;365(2) — Eviction of Passenger — Violence—Liability for Damages.</p> <p>Where a passenger on a railroad train had paid his fare by the surrender of his ticket to the conductor, the railroad company will be responsible in damages for the eviction of such passenger at a point short of the destination called for by his ticket, and for all violence used against him.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1451.]</p> <p>2. Pleading <&wkey;428(7) — Enlargement by Evidence.</p> <p>Evidence received without objection enlarges the pleadings.</p>

<p> (Syllabus by the Court.) </p> <p>Railroads <@=^359(1), 39S(1) — Killing Person on Track — Liability—Evidence.</p> <p>While a right of recovery may exist in the event of the killing by a train of a person who lies asleep or intoxicated upon a railroad track, the evidence in support of the action should he clear and satisfactory to the effect that, by the exercise of ordinary diligence by the person in charge of the train, the peril of the other might have been discovered and the killing avoided.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1238, 1356, 1363.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Corporations <&wkey;546 — Stockholder’s Action eor Receivership — Estoppel.</p> <p>A stockholder, who, suing for the appointment of a receiver of a corporation on the ground that the character and method of the business conducted by it is contrary to law, admits that he or she bought stock in the corporation with full knowledge of the character and method of the business carried on by the defendant company and with the belief that it was contrary to law and for the sole purpose of bringing the suit to appoint a receiver, has no cause of complaint or right of action to demand the appointment of a receiver.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 2176, 2177.]</p> <p>2. Corporations <&wkey;546 — Receivership — Statute — “Ant Stockholder or Creditor.”</p> <p>In the statute (Act No. 159 of 1908) empowering the courts to appoint a receiver of a corporation, under certain circumstances, “at the instance of any stockholder or creditor,” the expression “any stockholder or creditor” is construed to mean “a stockholder or creditor,” and not to be so comprehensive as to abolish all pleas or defenses to the capacity or right of action of any stockholder or creditor to maintain an action for the appointment of a receiver.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2176, 2177.]</p>

Ellis, Judge. Action by D. B. Lanier against the Hammond Lumber Company, Limited. Judgment for plaintiff, and defendant appeals, and plaintiff, answering, asks for judgment for the original amount of his claim.

<p>Appeal from Fifteenth Judicial District Court, Parish of Beauregard; Jerry Cline, Judge.</p> <p>Action for injunction by John Helton against W. A. Martin, Sheriff, and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>The heirs of Mrs. Eron, or Aaron Johnson, appealed from a judgment homologating the provisional account of the executor, and the executor moves to dismiss the appeal.</p>

Action by the Jefferson and Plaquemines Drainage District against the Whitney-Central Trust & Savings Bank, in which certain other parties intervened. Judgment for defendant dismissing the suit, and plaintiff and interveners appeal.

N. Sandlin, Judge. Proceeding by Albert J. Hall, executor, for the probate of the will of Mrs. Nanette Lat-tier Hall, deceased, in which Adolph Lattier filed an opposition. Judgment for the executor, dismissing the demand of the opponent, decreeing the will valid and admitting it to probate, and the opponent appeals.

Certiorari or writ of review by J. H. Barr and others, trustees in bankruptcy, to review a judgment of the Court of Appeal against them in favor of the Youngeville Sugar Factory, Dimited.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action for injunction by the Palmer Company, Incorporated, Standard Oil Company, Intervener, against W. A. Wilkinson. Suit dismissed on exception of no cause of action, and plaintiff appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; John E. Fleury, Judge.</p> <p>Mandamus by the State, on the relation of II. H. Gautier, against Paul Berthelot, Chairman of the Twenty-Eighth Judicial District Committee, and others.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.</p> <p>Hugh A. O’Donnell was convicted of libel, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Proceeding by Raoul V. De Gruy against the Louisiana State Board of Pharmacy. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Miscegenation <&wkey;l — Offenses — Statute —“Concubinage. ’ ’</p> <p>The Act No. 206 of 1910, denouncing as a crime concubinage between a person of the Caucasian, or white, race and a person of the colored, or black, race, contains a sufficient definition of the offense. The statement in the statute that cohabitation between persons of the different races, whether open or secret, should be deemed “concubinage” did not require that the statute should contain a legislative definition of “cohabitation.”</p> <p>[Ed. Note. — For other cases, see Miscegenation, Cent. Dig. § 1.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Concubinage.]</p>

<p>Appeal from Civil District Court, Parish of Orleans ; Fred D. King, Judge.</p> <p>Action by Bridget S. Feely and others against the National Packing Company, Limited, and others. Judgment for plaintiffs, and defendants appeal.</p>

E. Howell, Judge. Action by the Bank of Napoleonville against Alcee F. Delaune, who filed a petition in third opposition. From the judgment, defendant and third opponent appeal.

<p> (Syllabus by the Court.) </p> <p>1. Judges <&wkey;49(l) — Disqualification — Opinion.</p> <p>The fact that the trial judge has already-heard the evidence and has formed an opinion of the guilt of the party accused in a criminal prosecution is not a legal cause for the recusation of the trial judge. The defendant in a criminal prosecution is not concerned with what opinion the trial judge has of his guilt or innocence, so long as the judge’s rulings are correct and the trial is fair and impartial.</p> <p>[Ed. Note. — For other cases, see Judges, Gent. Dig. § 187.]</p> <p>2. Judges <&wkey;51(4) — Disqualification—Motions.</p> <p>A motion for recusation of the trial judge, which, if the allegations are true, does not set forth a legal cause for recusation, ought to be overruled by the judge to whom it is addressed.</p> <p>[Ed. Note. — For other cases, see Judges, Gent. Dig. § 187.]</p> <p>3. Judges <@=»51(4) — 'Trial—Evidence.</p> <p>The trial judge, in a criminal prosecution, cannot be required by the defendant to testify as to whether he, the judge,- has formed or expressed an opinion of the guilt or innocence of the accused, on the trial of a motion for recusation of the trial judge on the ground that he has formed and expressed an opinion of the guilt of the accused. The statement per curiam is the trial judge's testimony before the appellate court.</p> <p>[Ed. Note. — For other cases, see Judges, Gent. Dig. §§ 229-231.]</p> <p>4. Indictment and Information &wkey;>176 — Variance — Time of Offense.</p> <p>In a criminal prosecution under an indictment or bill of information charging that the offense was committed at about 8 p. m. on a specified date, evidence is admissible to prove that the offense was committed at about 8:30 p. m. on that date.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 548.]</p> <p>5. Witnesses c&wkey;402 — Evidence—Variance.</p> <p>A variance in the testimony of two witnesses for the state, especially on a. matter of_ no great importance, in a criminal prosecution, does not render the testimony of the one who testified last inadmissible.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1268.]</p> <p>6. Criminal Law &wkey;>1134(4) — Appeal—Questions Presented for Review.</p> <p>A motion for a new trial on the ground that the verdict is contrary to the law and the evidence does not present a distinct question of law, separate from any and all questions of fact pertaining to the guilt or innocence of the accused, and is therefore not within the jurisdiction of the Supreme Court in criminal cases.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 3056.]</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge.</p> <p>Suit by Arthur Leo Bear against Theodore Dendinger. From judgment for plaintiff, defendant appeals.</p>

In the matter of the succession of the Very-Reverend Celestin M. Frain. From a judgment on a rule for the assessment of an inheritance tax, Thomas Connell, inheritance tax collector, appeals.

<p> (Syllabus by the Court.) </p> <p>Courts &wkey;224(l) — Jurisdiction on Appeal.</p> <p>In all cases where there is an appeal from a judgment rendered on a reconventional or other incidental demand, the appeal shall lie to the court having jurisdiction of the main, demand.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 487, 608.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law <@=^590(1) — Continuance-Grounds.</p> <p>An information was filed against defendant on March 21st and the case docketed for Monday, March 26th. On the 23d he appeared by counsel, pleaded and fixed the case for March 26th. The case originated at the parish seat, the witnesses for the state were known by accused, he had ample time to prepare his defense, and his witnesses were all summoned and appeared and testified at the trial; eight witnesses testifying in his behalf besides himself. Held, that the refusal of a continuance was not error, especially where no showing was made that if given more time additional evidence would be produced.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §. 1316.]</p> <p>2. Criminal Law <&wkey;1151—Review—Discretion—Continuance.</p> <p>The granting or refusing of a continuance is a question largely in the discretion of the trial court, with which the Supreme Court does not interfere except in highly exceptional cases.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3045-3049.]</p> <p>3. Intoxicating Liquors <&wkey;223(5) — Evidence Admissible under Indictment.</p> <p>Under an information charging defendant with keeping a grog or tippling shop and retailing spirituous and intoxicating liquors without a license, evidence of sales on days other than that named in the affidavit and information was admissible, since the offense of keeping a tippling shop_ is continuous in its nature, and its continuity may be established by proof of sales on every day within the period during which it continues.</p> <p>[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 273.] N</p>

<p> (Syllabus by the Court.) </p> <p>Evidence <&wkey;584(l) — Divorce—Weight.</p> <p>In actions for divorce, courts must take such evidence as the nature of the case permits, circumstantial, direct, or positive, and to bring to bear upon it the experiences and observations of life, and, thus weighing it with prudence and care, give effect to its just preponderance. Siebert v. Klapper, 49 La. Ann. 241, 21 South. 259; Mehle v. Lapeyrollerie, 16 La. Ann. 4; 4 Oyc. 684, 698; Moller v. Moller, 115 N. Y. 466, 22 N. E. 169; Baudry-Lacantinerie, vol. 1, p. 413.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2424.]</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Richard Durnin against the New Orleans Railway & Light Company.</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant <&wkey;219(l) — Injuries to Servano>-Liability of Masteb.</p> <p>The master is not answerable in damages for personal injuries suffered by his servant from a situation of danger that was known to the servant, or obvious to any one of ordinary intelligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610, 624.]</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Frederick L. Gates against the New Orleans Railway & Light Company. Judgment for defendant, and plaintiff appeals.</p>

Suit by James A. Azar against Rosa Khalid, his wife, for separation, in which the wife sought the same relief in reconvention. From a judgment condemning plaintiff to pay alimony for maintenance of wife and child during pendency of suit, he appeals.

<p> (Syllabus by the Court.) </p> <p>Master and Servant <&wkey;109 — Injuries to Servant — Negligence oe Master.</p> <p>Where defendant shows that the animal which inflicted damages upon plaintiff was not vicious and plaintiff fails to prove fault on the part of defendants, his action must fail.</p> <p>[E'd. Note. — Por other cases, see Master and Servant, Cent. Dig. § 204.]</p>

<p> (Syllabus by ihe Oourt.) </p> <p>DlVOBCE &wkey;>&wkey;HUSBAND AND WlHE LIVING Apabt — Construction ojt Statute.</p> <p>Act No. 269, Laws 1916, p. 557, allowing a divorce to married persons who have been living separate and apart for a period of seven years or more, refers to those who “have been living * * * apart for a period of seven years or more,” regardless of the date of the passage and promulgation of the act.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. § 5.]</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>Action by Ludovic Billeaud against the Police Jury of the Parish of Lafayette. From a judgment for defendant, plaintiff appeals.</p>

<p>Suit by Samuel Bonart against Mrs. A. P. Rabito. Judgment for plaintiff, and from a judgment of the Court of Appeal reversing the judgment of the district court, plaintiff applies for certiorari or writ of review.</p>

Sandlin, Judge. Suit by Prank Jackson against Mrs. Addie Hodges and others. Exception of no cause of action sustained, and suit dismissed, and plaintiff appeals.

Proceeding by George A. Cox to liquidate the affairs of the Gretna Academy. From a judgment requiring the Union Seed & Fertilizer Company to accept title to real estate, it appeals.

<p> (Syllabus by the Court.) </p> <p>1. Banks and Banking <&wkey;80(5) — Set-Off AND COUNTERCLAIM &wkey;>22(l) — 1NSOLVENCY of Bank — “Compensation” — Bights of Third Persons.</p> <p>Compensation takes place, between two debts, by mere operation of law, as soon as they exist simultaneously to the amount of their respective sums, but only when the debts are equally liquidated and demandable, and it cannot take place to the prejudice of the rights of a third person; hence, after the declared insolvency of a bank, compensation cannot take place between a debt due by the bank to a depositor and an unmatured debt due by the depositor to the bank, or between such debts when the latter matures during the liquidation of bank; for, at the moment of the declared insolvency, the unmatured debt of the depositor to the bank is not demandable; and from that moment until the liquidation is completed, the debts due the depositors by the bank become subject to a new liquidation, the rights of all the creditors being fixed by the insolvency and the distributive shares which may be, or may become, due them, respectively becoming dependent upon the total amount realized from the assets of the bank as compared with the total indebtedness and the expense of the liquidation.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 189; Set-Off and Counterclaim, Cent. Dig. §§ 26-30, 34r-37.</p> <p>For other definitions, see Words and Phrases, Compensation.]</p> <p>2. Banks and Banking <S&wkey;80(5) — Insolvency — Right of Depositor — Compensation.</p> <p>There is express law upon the subject of the extinguishment of debts by compensation, and hence no occasion or authority for resorting to equity; but, if it were otherwise, there is no principle of equity which entitles a person who is, at once, a depositor in, and a borrower from, a bank, to be made whole, in the event of its insolvency, by the plea of compensation, when the other depositors stand to lose the entire amounts deposited by them.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 189.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Limitation of Actions &wkey;>4(2) — Prescription — Power of State.</p> <p>The power o£ the state to limit the time within which legal rights, whether derived from Constitutions or elsewhere, may be asserted in her courts is as well recognized as the rights themselves, and a law which recognizes a right and requires that it be exercised within a reasonable time, and not throughout eternity is obnoxious to no constitutional objection.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 11.]</p> <p>2. Counties &wkey;>151 — Road Districts — Elections — Limitation.</p> <p>The prescription, or peremption, of 60 days, declared by Act No. 256 of 1910, against attacks upon the legality of special elections held to obtain the views of the property owners upon the question of issuing bonds and levying taxes for the construction of roads is applicable to the case of an attack, based on Act No. 199 of 1916, upon a special election called by the police jury for bond, tax, and road purposes, where it appears that the call was issued three days before the approval of the act of 1916, and that the subsequent proceedings, including the election, return, and promulgation of the result thereof, and levy of the tax thereby authorized, were completed before the organization of the board of supervisors provided for by said act of 1916, and where it appears that the bonds, authorized by the election, were directed to be issued by both the police jury and the board of supervisors. But even if the prescription were inapplicable, the case was properly dismissed, since the election and other proceeding were legally conducted.</p> <p>[Ed. Note. — For other cases, see Counties, .Cent. Dig. §§ 166, 218.]</p> <p>O’Niell, J., dissenting in part.</p>

King, Judge. Suit by Joseph Franek against Harry C. Brewster and his attorneys, Merrick, Lewis & Schwarz, for the cancellation of a note and for the allowance of a credit, consolidated with executory proceedings by Thomas N. Jacobs against Mrs. George Sladovich, and-with petition by Franek making Jacobs a party defendant in the original suit, and executory proceedings by the Interstate Trust & Banking Company against the succession of Joseph Franek, consolidated with the…

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Action by J. B. Slattery against R. F. Donovan and others. From a judgment for defendants, plaintiff appeals.</p>

F. Bell, Judge. Action by Mrs. Mabel C. Barber, individally and as tutrix of her minor children, against the Louisiana Railway & Navigation Company. Judgment for plaintiff for $15,-000, and defendant appeals.

Suit by August M. Finlay against the Louisiana Irrigation & Mill Company, in which a receiver was appointed. On opposition by defendant to the receiver’s final account the allowances to the receiver, to the general manager appointed by him, and to his attorneys were reduced, and from such judgment, the receiver and others appeal.

Carter, Judge. H. Weinstein was indicted under Act No. 250 of 1916, making it a misdemeanor to receive for sale or in pledge or on storage any article of iron, brass, or other metal manufactured and used exclusively for railroad purposes without the consent in writing of officers of the company, and, the indictment being quashed, the State appeals.

R. Land, Judge. Suit by the State of Louisiana, on the relation of A. V. Coco, Attorney General, against the Shreveport Waterworks. Company. Judgment for defendant on exception of no cause of action, and, relator appeals.

<p> {Syllabus by the Court.) </p> <p>1. Railroads &wkey;j32-l(l) — Crossing Accidents — Contributory Negligence.</p> <p>Where a person approaches a railroad track of which he has an unobstructed view without looking or listening for a train, and reaches a point in such proximity to the track at the moment of the passage of a locomotive drawing a heavy passenger train, that he is struck and killed by the steam chest projecting from the side of the boiler, he is guilty of negligence, continuing and concurring with whatever other negligence there may have been as a contributing cause of the accident, which precludes the recovery of damages by his relatives, who, under the statute, might otherwise have that right.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1020, 1022, 1023.]</p> <p>2. Appeal and Error <&wkey;843(2) — Questions Presented for Review.</p> <p>Whether in such case, where the original plaintiffs, the parents of the decedent, die after the appeal from a judgment in their favor has been lodged in this court, an administrator can prosecute the suit, is a question that is not raised, and upon which we express no opinion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331.]</p>