Volume 142 — Louisiana Reports

<p> (Syllabus by the Court.) </p> <p>1. Insane .Persons <&wkey;33(l) — Interdiction— Appointment op Curator.</p> <p>Article 404, Civ. Code: “Within a month, to reckon from the date of the judgment of interdiction, if there has been no appeal from the same, or if there has been an appeal, then within a month from the confirmative sentence, it shall be the duty of the competent judge of the domicile or residence of the person interdicted to appoint a curator to his person and estate.”</p> <p>2. Insane Persons <&wkey;33(2) — Curators—Removal.</p> <p>Article 1059, C. P.: “When an appeal is made from a judgment appointing or removing a tutor or curator of a minor, interdicted or absent person, or of a vacant succession or absent heirs, or other administrators of successions, such appeal shall not suspend the execution of the judgment, but it shall have effect provisionally, until the appeal be decided.”</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De goto; John H. Boone, Judge.</p> <p>Action by Joel Phillips against W. M. Thompson. Prom the judgment, plaintiff appeals.</p>

Action by the State, on the relation of A. V. Coco, Attorney General, against the Riverside Irrigation Company, Limited, to recover a penalty for failure to file certain reports. Judgment for defendant, and relator appeals.

<p> (Syllabus by the Court.) </p> <p>Dkuggists <&wkey;4 — License Taxes — Imposition.</p> <p>In the absence of any more specific provision than is contained in the existing law; a license to conduct a drug store not only carries with it the right, but imposes upon the licensee the obligation, to conduct it according to law, which means that he must employ a registered pharmacist, and, as the person so employed merely assists in conducting the business of another, who pays the license therefor, and who is not only authorized, but required, to employ him, he owes no license as for a business or profession carried on for himself.</p>

<p>Appeal from Sixth. Judicial District Court, Parish of Morehouse; Ben C. Dawkins, Judge.</p> <p>J. D. Overby was convicted of crime, and he appeals.</p>

Judicial District Court, Parish of Vermilion; William Pierrepont Edwards, Judge. In' the matter of the succession of Adonis Le Blanc. J. Earl Le Blanc and tutor of the minor children filed oppositions. Prom the judgment dismissing the opposition and the claim of certain creditors, the opponents and creditors appeal.

<p> (Syllabus by the Court.) </p> <p>Contracts <{&wkey;350(l) — Employment as Deficiency Expert — Charge—Evidence.</p> <p>Where, without any previous agreement as to compensation, a civil engineer is employed as an efficiency expert to investigate the operations extending over a period of years of a concern which, during such period, has expended $13,000,000 in work done by employed labor, and by contract, with a view of ascertaining which of the methods is the better, and whether the work has been overmanned or overpaid, and of making suggestions for greater efficiency and economy, a charge which is not greater than was customary with the person employed, is supported by the testimony of other engineers, and, as against the reasonableness of which no evidence is offered, will be sustained.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Gas &wkey;>lS — Injuries from Explosion — Liability.</p> <p>It was negligence for a gas company to open an outlet in a gas pipe to allow the gas pressure to blow out the obstructions in the pipo and thereby liberate in a partly closed shecl highly combustible or explosive gas when mixed with air, unless this was unavoidably necessary and was accompanied by every reasonable precaution for guarding against the danger thus created.</p> <p>2. Gas <&wkey;18 — Injuries from Explosion-Liability.</p> <p>That this was not unavoidably necessary was conclusively shown by the fact that the gas company could have installed, and shortly after the explosion did install, an apparatus of which it knew, and which it,had not installed sooner merely to save expenses," and by testimony that a pipe could have been adapted to the outlet for conducting the gas out of the shed to be harmlessly diffused in the open air.</p> <p>3. Gas &wkey;>20(2) — Injuries from Explosion-Evidence.</p> <p>In an action for the death of an employé of a compress company in charge of its boilers, duo to an explosion of gas while a workman of the gas company was letting gas escape from a pipe for the purpose of removing obstructions therein, where there was no evidence that deceased did not close the valves controlling the gas firing the boilers, and the evidence showed that within a few minutes after the explosion the door of the furnace was closed, there was no flame under the boilers, and the valves were properly closed, contributory negligence of deceased was not shown.</p> <p>4. Gas <&wkey;20(2) — Injuries from Explosion-Evidence.</p> <p>In an action for death caused by explosion of gas -which defendant’s workman was allowing to escape from a gas pipe, plaintiff was not required to show how the gas became ignited.</p> <p>5. Gas <&wkey;18 — Injuries from Explosion-Concurring Negligence.</p> <p>The liberation of a large quantity of natural gas, which was highly combustible or explosive when mixed with air, in a partly closed shed without faking any precautions against its becoming ignited, was negligence and one of the concurrent and co-operating causes of an injury caused by an explosion, and rendered the gas company liable no matter how the ignition was brought about, unless the injured person was himself responsible therefor and contributed by his negligence to the ignition.</p> <p>6. Gas &wkey;>20(2) — Injuries from Explosion— Evidence.</p> <p>The burden was upon the gas company to show that the injured person by his negligence contributed to the ignition of the gas.</p> <p>7. Death <&wkey;9S — Damages for Death — Inadequate Damages.</p> <p>Where a man between 60 and 70 years old was burned nearly all over the body by an explosion of gas, and continued conscious for some 33 hours, an allowance to his widow of $3,333 for pain and suffering, $4,146 for his death, and $1,125 for the loss of companionship, would not be increased.</p> <p>8. Master and Servant <&wkey;9 6(2) — Liability for Injuries — Acts of Third Persons.</p> <p>An employé’s widow had no ground of action against her husband’s employer for his death due to an explosion of gas which a workman of the gas company was allowing to escape from a pipe and which exploded; the employer being in no way responsible for the accident.</p> <p>On Rehearing.</p> <p>9. Costs <&wkey;236 — Jury Costs — Parties Liable.</p> <p>Where a judgment was set aside on appeal for irregularity in impaneling the jury, the costs incident to the jury, including the cost of entering judgment and taking appeal, could not be thrown upon defendant who did not ask for a jury and was not responsible for its being called, and all the costs incident to the jury on such trial must be borne by plaintiff, though she recovered on a second trial.</p> <p>101. Costs &wkey;>99 — Persons Liable — Persons Not Parties.</p> <p>Such costs could not be put upon the parish which was not a party to the suit on the ground that they resulted from an error of the judge, as the judge is not an agent of the parish, but one of the instrumentalities of the state government.</p> <p>11. Costs &wkey;>236 — Items—Costs of Former Trial.</p> <p>All the other costs of the lower court on the first trial except those incident to the jury and those of entering judgment and taking appeal should be imposed on defendant as costs incurred in the trial of the case, since on the sec: ond trial the case was taken up where the verdict of the jury left it.</p> <p>O’Niell, J., dissenting in part.</p>

Case Certified from Court of Appeal, Second Circuit. Action by the Bon Air Planting Company, Limited, against Victor C. Barringer, in which the Union National Bank, H. E. Thomas, receiver, intervened as third opponent. There was a judgment for plaintiff, and the third opponent appeals. Certified from the Court of Appeal, Second Circuit, parish of Ouachita, by the judges thereof, applying for instructions.

<p>Appeal from First Judicial District Court, Parish of Caddo; It. D. Webb, Judge.</p> <p>Mike John was convicted of selling intoxicating liquor without a license, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law <&wkey;301, 1149 — Appeal—Review — Discretion oe Trial Court.</p> <p>Whether a defendant in a criminal prosecution who has been arraigned and pleaded not guilty should be permitted to withdraw the plea in order to file a demurrer is a matter so largely within the discretion of the trial judge that his ruling on the question will not be reversed on appeal unless it was an abuse of Ms discretion.</p> <p>2. Jury <&wkey;ll(5) — Jury Triai^Guaeanty.</p> <p>The Sixth Article of Amendment of the Constitution of the United States, providing that the accused in all criminal prosecutions shall have the right to a trial by jury, refers to prosecutions by the federal government for violation of federal statutes, not to prosecutions in state courts for violations of state statutes.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Mandamus by the State, on relation of Henry Blaise, against the City of New Orleans and others. Judgment for relator, and the City of New Orleans appeals.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; Joseph E. Le Blanc, Jr., Judge.</p> <p>Action by Paul A. Krause against the Bomer-Blanks Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

Théard, Judge. Application by Gharles Heitkamp for a writ of habeas corpus against Mrs. Alice Ragan and others. From a judgment for plaintiff, defendants appeal.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skihner, Judge.</p> <p>Action by Ellen Virginia Tobin against Albert Sidney White and another. From judgment for plaintiff, first-named defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Corporations <@=>423 — Torts op Agents — Liability.</p> <p>As a general rule, a corporation is liable, like a natural person, for the torts of its officers or agents committed “in the exercise of the functions in which they are employed.”</p>

C. W. Ellis, Judge. Action by Mr. and Mrs. William H. Kelly against Schmidt & Zeigler, Limited. Prom judgment for plaintiffs, defendant appeals, while plaintiffs prayed increase of judgment.

<p> (Syllabus by the Court.) </p> <p>Infants <@=>90 — Minors—Authority of Attorney.</p> <p>An attorney representing minor children in a suit for a settlement of their father’s estate cannot, by agreeing to and signing, with the attorney representing a contrary interest in the suit, a so-called statement of facts, bind the minor children to an extrajudicial settlement of the estate, without the advice of a family meeting approved by the district judge.</p>

In the matter of the succession of Elzina Broussard, opposed by P. U. Broussard. Prom the judgment approving the method of settling the estate proposed by A. Thibodeaux, administrator, Z. B. Broussard and another appeal.

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law <@=>665(2) — Appeal — Exclusion of Witness — Exemption from Rule.</p> <p>The exemption of any particular witness from the rule or order of the court, excluding the witnesses from the courtroom during the trial of a criminal case, is a matter so largely within the discretion of the trial judge that, if he makes an exception that is at all reasonable, o. g., if the excepted witness is the prosecuting witness or party who was injured or aggrieved, the ruling should be affirmed.</p> <p>2. Criminal Law <@=>376 — Witnesses <@=>337 (1) — Credibility of Defendant — Character.</p> <p>Although the character of the defendant in a criminal prosecution is not subject to attack by the state unless the defendant puts his character at issue, nevertheless, if he becomes a witness in his own behalf, he thereby subjects his testimony to impeachment and puts at issue the question of his credibility, like that of any other witness.</p> <p>3. Criminal Law <@=>S14(1) — Triai>-InstrucTION.</p> <p>The defendant in a criminal prosecution cannot require the judge to give, in his charge to the jury, an instruction upon a legal proposition that has no application to the facts of the case.</p> <p>4. Criminal Law <@=>636(1) — Trial — Presence of Defendant.</p> <p>It is not essential to the legality of a criminal trial that the defendant be present in court at all times that the jury is in court, as, for example, when the jury, having retired for deliberation, is called back into court merely to be informed by the judge that court is about to adjourn for the day, and that the sheriff will see to the jurors’ wants.</p>

Action by Philip T. Smith and wife against H. W. Robinson. Judgment for defendant, and from a judgment of the Court of Appeals reversing the district court’s judgment overruling the defendant’s motion to strike an amended petition from the record, plaintiffs bring certiorari or writ of review.

E. Blackman, Judge. Action by B. M. Pace against the Texas & Pacific Railway Company, in which the Standard Oil Company of Louisiana was called in warranty. Judgment for plaintiff against the defendant Railway Company and in favor of the warrantor, and the Railway Company appeals.

<p>(Syllabus by the CourtJ</p> <p>1. Public Lands <@=66 — Disposition by State — Question by Ministerial Officer.</p> <p>Whether the state of Louisiana disposes of lands acquired by grants from the United States in accordance with the purposes for which the grants may be thought to have been made is a matter that lies between the state and the United States, and is not to be raised by an officer upon whom the state imposes the ministerial duty of conveying the lands to a particular state , agency created for a particular purpose.</p> <p>2. Mandamus <@=86 — Public Lands <@=66— Donation by State of Louisiana — Acceptance-Statute.</p> <p>Act No. 97 of 1890 contemplates that the donation of land to the Atchafalaya basin levee board therein contained should stand open, indefinitely, for acceptance, and that the land should be conveyed to the board, from time to time, as requested by it, and that act is unaffected by Act No. 215 of 1908; hence the request which the hoard now makes of the state auditor and register of the state land office to. execute conveyances of the land so donated is as well within the law as it has ever been, and, as the ministerial duty rests upon those officers to comply with that request, mandamus will lie to compel such compliance.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>In the matter of the succession of Mrs. Annie Mary Eink Carstens. Suit by Mrs. Lillie Hartnett Furlong against the heirs. Prom a judgment for petitioner, the heirs appeal.</p>

Boone, Judge. Action hy R. B. Patton and wife against the Frost-Johnson Lumber Company to recover for the death of a child about 18 months old. From a judgment for defendant, plaintiffs appeal.

<p>Appeal from Twenty-First Judicial District Court, Parish, of Iberville; O. K. Schwing, Judge.</p> <p>Action by George Little against the A. Wilbert’s Sons’ Lumber & Shiugle Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Anna Ciaccio against Bernardo G. Carbajal. From a judgment dismissing the suit, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Landlord and Tenant <&wkey;123 — Property Included in Lease — Evidence.</p> <p>Evidence held to show that defendant, in leasing a garage to plaintiff, did not include rooms on an upper floor over the garage.</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>Suit by J. A. Hemler against the Richland Parish School Board. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant @=137(3) — Place oe Work — Negligence.</p> <p>We find nothing in the rules of the defendant company (which, are said to be the “standard rules”), which authorizes a conductor or yardmaster, in charge of a switching engine, to open a switch, within yard limits, and leave it open, without a switch tender, while he sends the engine to some place beyond the range of vision upon a mission of indefinite duration, and is, himself, engaged in transacting business in the freight office at the station. Beyond that, if there -were such a rule, it would be inexcusable negligence for such conductor or yardmaster to apply it in a case where a gang of workmen, engaged upon a bridge, above the yards, and lodging and boarding below the yards, were in the habit of passing through, on a motorcar, at stated hours, three times a day, and the track through the yards was, to all appearances, left free of switching operations or other obstruction.</p> <p>2. Master and Servant >@=»198(6) — Master’s Liability — Fellow Servant.</p> <p>Where a railroad company employs a man as a carpenter and undertakes to transport him and the gang of which he is member to and from his place of work and his boarding place, on a motorcar, in charge of an assistant foreman, who selects one of the gang to operate the car, the others of the gang are not the fellow servants of the operator or of the assistant foreman with respect to the operation of the car, and the defendant is liable for injury to them through the negligence of either.</p> <p>3. Master and Servant &wkey;>198(6) — Master’s Liability — Fellow Servants.</p> <p>Where a motorcar, in charge of assistant foreman, is engaged in carrying railroad laborers from one place to another, for the purposes of the work, for which they are employed, the laborers have the right to assume that the assistant foreman, as the representative of their employer, will see to it that the car is properly operated and they are not to be considered as the fellow servants of one of their number, to whom the assistant foreman has assigned the function of operating the car.</p>

<p> (Syllabus by the Court.) </p> <p>Schools, and School Districts <&wkey;38 — Creation of District — Validity of Resolution-Special Tax Election.</p> <p>Whore a resolution adopted by a parish school board, for the creation of a school district by the elimination of parts of an existing district, is too vague and uncertain in its calls to enable a surveyor to locate such parts, held, that the resolution was null and void, and that a special tax election held thereunder was without legal effect.</p> <p>O’Niell, J., dissenting.</p>

Action by Mary 0. Fletcher, individually and as tutrix of minor children, against the Ludington Lumber Company. Judgment for defendant, and plaintiff appeals.

J. Lafargue, Judge. Suit by Galorma Stellone, individually and as tutrix of her minor children against Albert Collins. Judgment for defendant, and plaintiff appeals.

, Recorder. Sweetie Miller and others appealed from a conviction under an ordinance of the city of New Orleans forbidding colored prostitutes to occupy any house, etc., outside of certain limits.

<p>Appeal from Recorder’s Court of New Orleans; Louis Burthe, Jr., Recorder.</p> <p>Willie Y. Piazza was convicted of the violation of an ordinance of the City of New Orleans, and she appeals.</p>

Petitory action by the Leader Realty Company against the Lakeview Land Company and the New Orleans Land Company. Judgment for plaintiff, alternative demand for reimbursement dismissed as of nonsuit, and defendants appeal, and plaintiff, answering the appeal, prays that the judgment be amended to reject demand for reimbursement absolutely.

<p> (Syllabus by the Court.) </p> <p>1. Cotjets &wkey;?209(2) — Mandamus — Acts of Infebior Couet — Scope of Review.</p> <p>On an application for a writ of mandamus to be directed to the judge of a district court, the Supreme Court will not review the rulings of the judge on motions for a continuance and for a new trial in a pending litigation which is appealable to that court.</p> <p>2. Appeal and Eeeoe <&wkey;348(l) — Delay in Appeal — Time.</p> <p>There is no law requiring a notice of judgment to be served upon a plaintiff, and the delay for a suspensive appeal as to such plaintiff begins to run from the day judgment is signed.</p>

Circuit. Action' by Mrs. Sarah J. I-Iam and others against the Louisiana & Northwest Railroad Company, G. W. Hunter, Receiver. From a judgment of the Court of Appeal affirming a judgment of the district court for plaintiff, the receiver applies for a review.

E. Howell, Judge. Suit for injunction by the Morgan’s Louisiana & Texas Railroad & Steamship Company against the Tax Collector and others. Pleas of prescription sustained, and suit dismissed, and plaintiff appeals.

D. Webb, Judge. Isaac Ferris was convicted of using the name of another in ordering and receiving intoxicating liquors in prohibition territory, and he appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. E. Brunot, Judge.</p> <p>Peter Conners and others were convicted of robbery, and they appeal.</p>

Suit by the Continental Bank, & Trust Company against the Times Publishing Company and others. From a judgment of the Court of Appeal in favor of the plaintiff, defendant Times Publishing Company applies for certiorari or writ of review.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Statutes’<&wkey;170 — Repeal and Re-enactment — Opbbation and Effect.</p> <p>The Monroe charter (Act No. 102 of 1S71) was amended by Act No. 81 of 1873, which in section 11 exempted all real and personal property within the corporation and all persons, firms, and corporations therein from all taxes and licenses levied by the parish on condition that the city bear a certain proportion of the parish expenses. Act No. 47 of 1900 granted a new and complete charter, hut contained the same exemption, except that a larger proportion of the parish expenses was imposed on the city. Held, that the exemption granted by the act of 1873 was not repealed by the act of 1900, since the repeal and simultaneous reenactment of a statutory provision is not a new statute, but a continuation of the old statute, and hence the exemption was not granted under the Constitution of 1898, and -was not subject to the restrictions of that Constitution.</p> <p>2. Statutes &wkey;>167(l) — Repeal by Revision —Extent oe Repeal.</p> <p>That Act No. 47 of 1900 imposed a larger share of the parish expenses on the city did not work a repeal of the original exemption, .except in so far as the two statutes conflicted.</p> <p>3. Statutes <&wkey;167(l) — Repeal by Revision —Extent oe Repeal.</p> <p>Though the entire ground occupied by the charter of 1871 and its amendments was covered by Act No. 47 of 1900, this only worked a repeal of such provisions of the former statutes as were not incorporated in the act of 1900.</p> <p>4. Constitutional Law <&wkey;24 — Constbuction — Repeal oe Pbior Laws.</p> <p>Act No. 81 of 1873, § 11, exempting property and persons within the corporation of Monroe from all taxes and licenses levied by the parish, was not repealed by the repealing clause of the Constitution of 1879, repealing all laws in conflict therewith on the theory that such exemption was inconsistent with article 203 of the Constitution, requiring taxes to be equal and uniform throughout the territorial limits of the authority levying the tax, as the act of 1S73 was a special law while the constitutional provision was a general law.</p>

Action by Antonio Tortorice against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals, and plaintiff, answering the appeal, prays that interest he allowed from judicial demand.

D. Webb, Judge. Suit by Mrs. Carrie Russell Ford against W. C. Ford for a separation from bed and board, with reconventional demand for absolute divorce. Judgment for defendant, and plaintiff appeals.

C. W. Ellis, Judge. Action by Mrs. Freddie Broadwell Whittle against the Southern Express Company and Sam Blum. Judgment for defendant Blum, and against defendant Southern Express Company, and plaintiff and the Southern Express Company appeal.

C. W. Ellis, Judge. Proceeding by Mrs. Eulah H. Summers under the Workmen’s Compensation Act to obtain compensation for personal injury, opposed by Woodward, Wight & Co., Limited, employer. Compensation awarded, and defendant appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law <&wkey;1090(7) — Appeal—Bill op Exceptions — Necessity.</p> <p>The denial of a continuance cannot he reviewed, where no bill of exception was reserved to the ruling.</p> <p>2. Criminal Law <&wkey;338(4, 5), 419, 420(2) — Evidence — Hearsay—Ex Parte Transactions.</p> <p>On the issue of whether the place of a homicide was within a parish, a witness testified that it was at the junction of a railroad with a spur, whereupon another witness was allowed to testify that the first witness had pointed out a place to him, that the place pointed out was at the junction of the railroad with the spur, and that this place was within the parish. Held, that the evidence that the first witness had pointed out a place to the second witness was not hearsay, since the fact that the place was pointed out was within the knowledge of the second witness, and while this testimony was ex parte in the sense that accused was not present and did not participate in the transaction, this did not make it inadmissible.</p> <p>3. Criminal Law <&wkey;346 — Evidence—Relevancy — Venue.</p> <p>Such testimony was relevant, as it went to explain how the witness came to be acquainted with the place concerning which he testified, and the object in offering it was not to show that the crime was committed at such place, the testimony having been carefully confined to the naked fact of a place having been pointed out to the witness, and of this place having been where the railroad and the spur joined.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Jos. B. Lancaster, Judge.</p> <p>Suit by J. Leon Pounds against Sam Sheridan. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Prentiss B. Carter, Judge.</p> <p>Carrie Peters was convicted of an offense, and she appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District O'ourt, Parish of Washington; Prentiss B. Garter, Judge.</p> <p>Carrie Peters was convicted of an offense, and she appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Suit by Mrs. A. Zagame against the Chalmette Laundry Company. Judgment sustaining exception of prematurity, and plaintiff appeals.</p>

F. Brunot, Judge. Application for letters of administration by Mrs. Bertha Landman Freidlander, Mrs. Bose Landman Kaufman, and another, in the estate of Budolph Landman, deceased, opposed by Jonas Landman and Mrs. Bachel Landman. From an order appointing Mrs. Bose Landman Kaufman and Jonas Land-man joint administrators, Jonas Landman and Mrs. Bachel Landman appeal.

<p> (Syllabus by the Court.) </p> <p>1. Courts <@=^12(1) — Jurisdiction — Residence-Place.</p> <p>One should be cited in the parish in which he appears to have his principal establishment, or his habitual residence; but, if one has several residences, occupies the one about as much as the other, and has made no declaration upon the subject of his domicile, as provided by law, he may be cited at either place, at the option of the plaintiff.</p> <p>2. Courts &wkey;3l2(l) — Jurisdiction—“Principal Establishment.”</p> <p>The term “principal establishment,” as used in the law concerning domicile, means the principal domestic establishment.</p>

<p> (Syllabus by the Court.) </p> <p>1. Constitution al Provisions — Homestead.</p> <p>“There shall be exempt from seizure and sale by any process whatever except as herein provided, and without registration, the homestead bona fide owned by the debtor and occupied by him consisting of lands not exceeding one hundred and sixty acres, * * * of every head of a family. * * * ”</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Homestead <&wkey;lG8 — Exemption — Ownership and Occupancy.</p> <p>Under Const, art. 244, the claimant of the benefit of a homestead exemption must be the bona fide owner of the land, and must occupy it as a residence, and must be the head of a family, or a person having a person or persons dependent on him for support, and the property must not exceed $2,000 in value, so that, where claimant had leased the whole of the property and was not occupying it as a residence.at the time of the seizure, he was not entitled to the exemption.</p>

Théard, Judge. Action by Warmoth White against the Maison Blanche Company, and the Maison Blanche Realty Company in solido. Judgment for plaintiff against the Maison Blanche Company, dismissing the suit against the Maison Blanche Realty Company, and the Maison Blanche Company and the plaintiff appeals.

<p> (Syllabus by the Oourt.) </p> <p>Elections <&wkey;313 — Primary Elections — Illegal Voting — Statute.</p> <p>Act No. 130 of 1916 has no application to primary elections, and provides no penalty for illegal voting thereat.</p>

D. Webb, Judge. Coneursus proceeding by Meyer Benson against J. V. Wilkinson and others. From the judgment, plaintiff and certain of the defendants appeal.

Mayo Lafosse was indicted for horse stealing, and was acquitted on the ground of insanity and ordered to be committed to the state asylum for the insane and remanded to the parish prison, and his habeas corpus proceeding was dismissed, and he applies for writs of mandamus and certiorari.

<p> (Syllabus by the Oourt.) </p> <p>1. Jury <&wkey;103(6) — Competency— Opinion.</p> <p>A juror is competent to serve who, on his voir dire, says that he has read and heard of the homicide, 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>2. Criminal Law <&wkey;667 — Exception to Evidence-Restatement oe Testimony — Statute.</p> <p>Where defendant offers to prove threats by, or the dangerous character of, the deceased, and the testimony so offered is excluded pn the ground that no overt act on the part of the deceased has been proved, he has the right to except to such ruling and for the effective presentation of the question so reserved to this court, to demand that such witnesses be recalled and required again to give their testimony in so far as it bears on that question; the purpose of Act No. 113 of 1S96, p. 162, being to enable this court to go behind the findings of the trial court upon the questions of fact on which the rulings on questions of law are based, in order to determine the correctness vel non of such findings and rulings.</p> <p>Leche, J., dissenting.</p>

Suit by A. J. Danos & Co. against the People’s Bank of Plaquemine and the Milly Planting & Manufacturing Company, incorcorporated, and others, with injunction. Application by defendant the Milly Planting & Manufacturing Company, Incorporated, to dissolve the injunction and to have the injunction bond increased refused, and its application for a writ of sequestration denied, and it applies for writ of mandamus.

A. J. Deloney was convicted in mayor’s court of selling near beer in violation of an ordinance of the Village of Columbia, and, pending his appeal to the district court, he sued out an injunction in that court against the Village of Columbia and others on the ground that the ordinance was unconstitutional, and the Village of Columbia applied for writs of prohibition and certiorari.

Eva Langston was convicted in the city court of Shreveport of operating a blind tiger, and on appeal to the district court and trial de novo, the conviction was affirmed, the sentence increased, and the cause remanded to the city court for execution of sentence, and defendant applies for writs of certiorari and prohibition.

M. Gill, Mayor. Robert Dewey was charged with a violation of an ordinance of the Town of Ruston, his motion-to quash was overruled, he was convicted, and appeals.

<p>Action by Ed. Mulling against Clara Jones an'd others. On application by Mrs. Agnes Maloney Leyland and others for writs of mandamus, certiorari, and prohibition.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Philip H. Gilbert, Judge.</p> <p>Loja Clark was convicted of murder and she appeals.</p>

F. Bell, Judge. Separate actions by B A. Burt and Mrs. Bertha S. Burt, his wife, against the Shreveport Railway Company. Actions consolidated, and verdicts awarding E.' A. Burt $6,-000 and Mrs. Bertha S. Burt $5,000, and defendant appeals, and plaintiffs, answering, pray that the awards be increased.

Suit by Mrs. Louise Bonin Andrus, in her own behalf and in behalf of her minor child, against the Louisiana Western Railroad Company. Judgment for plaintiffs, and defendant appeals; and plaintiff, answering the appeal, asks that amount of damages be increased.

<p>Appeal from Thirteenth. Judicial District Court, Parish of Rapides; Jas. Andrews, Judge.</p> <p>Action by Alonzo C. Whittington and wife against the¡ Louisiana Sawmill Company, Limited. From a judgment sustaining an exception of no cause of action, plaintiffs appeal.</p>

Suit for partition by Mrs. Peter B. Delord against Miss Sidonie Lozes and others. Prom a judgment or order that proceedings be stayed until Miss Sidonie Lozes was piroperly represented before the court, Mrs. Eugenie Lozes applies for writs of certiorari, mandamus, and prohibition.

F. Black-man, Judge. Abe Malone was accused of violating an ordinance of the police jury of the parish of Rapides, his demurrer to the bill of' information on the ground that the police jury had no authority to enact the ordinance was sustained, and the State appeals.

E. Howell, Judge. Joseph Lecompte, Jr., was accused of the violation of an ordinance of the police jury of the parish of Terrebonne requiring owners to dip their cattle for the eradication of fever-carrying ticks. Demurrer to bill of information sustained and the State appeals.

Howell, Judge. Evariste Hebert'was accused of violating an ordinance of the police jury of the parish of Terrebonne, requiring owners to dip their cattle for the eradication of fever-carrying ticks. Demurrer to bill of information sustained, and the State appeals.

Judicial District Court, Parish of Caldwell; Francis E. Jones, Judge. R. L. Caldwell was prosecuted under an indictment for embezzlement, and, from a judgment quashing the indictment, the State appeals.

Scho-. field Rownd, Judge. Suit by George Alessi and others against the Town of Independence. Judgment for plaintiffs for damages and for an injunction, and defendant appeals.

<p> (Syllabus by Editorial 8taf.) </p> <p>1. Specific Performance &wkey;?62 — Contracts Enforceable — Subject-Matter.</p> <p>Plaintiff and defendant entered into a contract for the organization of a corporation which provided that at the time the charter was signed the parties would convey certain property to the corporation in exchange for stock, and also enter into contracts with the corporation whereby the corporation would employ them for a period of five years at a specified salary also payable in stock. The proposed charter was signed, but the other contracts contemplated were not executed. Eeld, that specific performance could not be enforced against plaintiff as the contracts to sell the property to the corporation and the contracts of employment had not been entered into and might never be entered into, and the court could not decree specific performance to the extent of commanding plaintiff to tender such contracts to the corporation in the absence of any showing that they would be accepted, nor could it order plaintiff to vote as director in favor of their acceptance and to exercise his influence on the other directors to induce them so to vote.</p> <p>2. Corporations <&wkey;99(2) — Issuance op Stock for Unauthorized Consideration— “Labor Done or Money or Property Actually Received.”</p> <p>A contract under which a corporation was to issue stock in payment for services in advance of the rendition of the services violated Const, art. 266, providing that no corporation shall issue stock except for “labor done or money or property actually received,” as this does not include labor to be done or money or property to be received.</p> <p>3. Contracts <&wkey;121 — Illegality—Contp.ol of Corporation.</p> <p>Where a contract between plaintiff and defendant for the organization of a corporation contemplated that they should each be directors, an agreement between them that each should vote for the other for president or secretary treasurer was illegal.</p> <p>4. Specific Performance <&wkey;55 — Contracts Enforceable — Partial Illegality.</p> <p>Plaintiff and defendant contracted to form a corporation to grow and sell oranges and orange trees, the contract contemplating that they should be the principal stockholders and providing that plaintiff should convey a plantation to the corporation in exchange for stock, that defendant in exchange for stock should transfer to the corporation certain orange trees and other property, that they should each be employed by the corporation and be paid for their services and stock in advance and that they should each vote for the other as director and as president or secretary treasurer. Held, that the illegal stipulations for issuance of stock for services in advance of the rendition of the services and to vote for each other for corporate officers were such essential parts of the contract inseparable therefrom as prevented specific enforcement of the contract.</p> <p>5. Ejectment <&wkey;2S — Reconvention — Expenses of Defendant.</p> <p>Code Prac. art. 375, provides that to entitle defendant to institute a demand in reconvention where the parties reside in the same parish, the demand though different from the main action must be connected with and incidental to the main action. Plaintiff and defendant contracted to form a corporation to grow and sell oranges and orange trees, to which plaintiff agreed to convey a plantation and defendant to transfer certain orange, trees and other property. At plaintiff’s request and for the purpose of carrying out the contract defendant moved himself and his belongings including the orange trees to the plantation and set out the trees thereon, but plaintiff never haying conveyed to the corporation brought suit to recover possession of the plantation. Held, that under Civ. Code, art. 3453, providing that a possessor in good faith cannot be ousted until he has been reimbursed for the expenses incurred on the property, defendant’s demand for reimbursement for the expenses incurred by him, including the value of his trees in so far as they_ could not be removed without danger of perishing or deteriorating, was a proper demand in reconvention, defendant not being a tenant at will, as it was not intended that _ his settlement on the place was to be terminable at plaintiff’s will, but to continue indefinitely.</p> <p>6. Ejectment &wkey;>28 — Reconvention — Expenses of Defendant — “Independent.”</p> <p>Defendant’s claim for damages for violation of the contract by plaintiff was not a proper demand in reconvention, but was an “independent” claim to be urged in a separate suit under Code Prac. art. 376, providing that if the demand be independent from plaintiff’s action it shall be considered as a principal and not a reconventional demand, as plaintiff’s suit was not based on the contract but on his title as owner of the plantation, and the claim for breach of the contract did not affect such title.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Independent.]</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Master and Servant <&wkey;107(l) — Liability for Injuries — Defects in Tools.</p> <p>The failure to secure the head of a maul to the handle by a wedge was negligence, rendering an employer liable for injuries to an employé struck when the head of the maul flew off the handle, as the employer must-furnish safe tools to work with.</p> <p>2. Master and Servant <&wkey;180(l) — Liability for Injuries — Negligence of Fellow Servant.</p> <p>In an action admittedly under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) for injuries to an employé other than the one using a maul caused by the head of the maul flying off the handle, the negligence of the employé using the maul where it was apparent-to him that the head was not properly secured to the handle was not a defense.</p> <p>3. Damages <&wkey;132(3) — Excessiveness—Personal Injuries.</p> <p>Plaintiff, 26 years old, was struck on the head and rendered unconscious, but soon recovered consciousness. Plaintiff was uneducated, except that he could read and write a little bit, and had worked on a farm until within six or seven years, when he had worked as a laborer on railroads and at sawmills. After the injury he became slow and halting in his speech, his grasp on ideas became impaired, and his capacity for any sustained physical effort especially in the heat of the day was also impaired. He had lost from 15 to 20 pounds in weight. The medical testimony showed that a blow on the head producing unconsciousness was serious, and might and generally did sooner or later bring about epilepsy, insanity, or imbecility. Held,, that a verdict for $15,000 was excessive, and should be reduced to $7,500.</p>

F. Bell, Judge. Executory process by J. S. Myer against Mrs. Lucille B. Kendall and' others, with judicial sale and adjudication to plaintiff, in which the First Savings Bank & Trust Company filed intervention and third opposition against Myer as defendant. Judgment for intervener, and Myer appeals.

F. Bell, Judge. Suit by James Woodruff against the Producers’ Oil Company. Plea of exception of no cause of action and plea of prescription overruled, and judgment on the merits in favor of plaintiff, and both parties appeal.

<p> (Syllabus by Editorial Staf.) </p> <p>1. Parties &wkey;>75(l) — Defects and Grounds of Objections — Persons Entitled to Object.</p> <p>In an action to recover defendant’s proportion of the cost of paving a street brought jointly by the town and the contractor who did the work for the use and benefit of the contractor in whose favor only judgment was asked, defendant had no ground for exception because judgment was not asked in favor of the town instead of the contractor, as the disposition made of the claim sued on as between the town and contractor was no concern of liis so long as he could make a full defense, and the judgment would he a full protection against a second suit.</p> <p>2. Judgment &wkey;>746 — Estoppel by Judgment-Waiver.</p> <p>In an action to recover defendant’s proportion of the cost of paving a street, plaintiff by pleading the proceedings for paving the street in extenso, and proving them on the trial, did not waive the right to rely on a prior judgment between the same parties as res judicata on the question of the validity of such proceedings.</p> <p>3. Judgment <&wkey;>948(l) — Estoppel by Judgment-Necessity of Pleading.</p> <p>Where defendant in his answer contested the validity of the paving proceedings, plaintiffs were not required to file a plea of res judicata, since, as against defenses set up in the answer, res judicata need not be pleaded, and the answer is open to every objection of law and fact as if specially pleaded.</p> <p>4. Municipal Corporations i&wkey;567(6) — Enforcement of Assessments for Publio Improvements — Pleading.</p> <p>In such suit, defendant could not contest the mode of apportioning the cost of the work where that issue was not raised by the pleadings.</p> <p>5. Municipal Corporations &wkey;>572 — Enforcement of Assessments for Public Improvements — Costs.</p> <p>Act No. 241 of 1912, § 4, providing relative to paving assessments that on payment by the property owner of 20i per cent, of the amount due, the council in its discretion may authorize the mayor to issue certificates payable in one, two, three, four, and five years, with interest, and 10 per cent, attorney’s fees if sued on, does not give a right to attorney’s fees where no certificates were issued, and suit was brought to recover defendant’s proportion of the cost of the paving; as the statute, being one imposing a liability and penalty, must be taken as it is written.</p> <p>6. Costs &wkey;>238(2) — On Appeal — Failure to Raise Question Below.</p> <p>Though in a suit for defendant’s proportion of the cost of paving a street a judgment in rem and also unqualifiedly in personam followed the petition, and the responsibility for the error therefore rested on plaintiff, and not on the trial judge, the correction of the error to make the judgment only qualifiedly in personam would not throw the cost of the appeal on plaintiff, as the error -would have been corrected if the trial court’s attention had been called to it.</p>

Fleury, Judge. Edwin Austin was convicted of gaming by orally operating a betting book on a track in the parish of Jefferson, where a horse race was being run, and he appeals.

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; Charles T. Worth-am, Judge.</p> <p>Action by the Town of Thibodaux and others against Charles O. Dantin. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Valture Norres was indicted for extortion, and from a judgment maintaining a motion to quash, the State appeals.</p>

Suit for injunction by Jeff W. Fristoe against City of Crowley and H. S. Sealey. From a judgment maintaining an ordinance and statute as valid, dissolving the writ of injunction, and dismissing the suit, he appeals.

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge.</p> <p>Action by Anna M. Sessions and others against the Tensas River Planting Company and others. Prom a judgment for plaintiffs, defendants appeal.</p>

<p> (Syllabus by Editorial StaffJ </p> <p>Ceiminai, Law (&wkey;260(10) — Stjmmaev TRiAirAPPEAL — RESERVATION OE OBJECTIONS.</p> <p>Where a trial in the county court for selling intoxicating liquors and keeping a grogshop in prohibition territory was before the same judge before whom the affidavit on which the trial was based was made, his failure to sign the jurat to the affidavit was not a fatal irregularity, as he could have signed the jurat on the trial if objection had been made.</p>

<p>Appeal from Eifth Judicial District Court, Parish of Jackson; Cas Moss, Judge.</p> <p>Action by Jesse L. Dendy against the Huie Hodge Lumber Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Indictment and Information <&wkey;110(2) — Following Language oe Statute — False Pretenses.</p> <p>While it is necessary, in an indictment under Rev. St. § 813, to charge that the pretense was false, and that defendant knew it to be false, it does not follow that such indictment must be couched in the exact words of the statute. If the existence of the alleged fact constituting the pretense is negatived, and it is further stated that defendant knew such alleged fact did not exist, that is a sufficient compliance with these requisites.</p>

Suit by W. G. Day and others against the Helena Lumber Company, in which the exception of S. T. Alcus & Co. to the jurisdiction was overruled, and in which plaintiff filed a supplemental petition, and S. T. Alcus & Co. and the trustee of the Helena Lumber Company filed an exception to the jurisdiction, and on plaintiff’s motion there was an order relieving the trustee of the lumber company of further appearance and appointing a curator ad hoc to represent it, and the company…

F. Bell, Judge. J. O. McGraw was accused of receiving a bribery 'as a public officer. Demurrer to bill of indictment sustained, and the State appeals.

E. Howell, Judge. Armand Guidry was convicted of willfully and knowingly taking and carrying away without the consent of the owner certain oysters, shells, and cultch bedded or planted by lessee, under the provisions of the statute regulating the oyster industry, and he appeals from the verdict and sentence.

<p> (Syllabus by Editorial Staff.) </p> <p>Fish <&wkey;15 — Criminal Prosecutions — Presumptions — Right to Rebut.</p> <p>Under Act No. 54 of 1914, § 18, making it unlawful to knowingly or willfully take oysters bedded or planted by a lessee under that act, one accused of a violation thereof was entitled to show that the place from which he took the oysters was a natural oyster reef, as the presumption, after the expiration of the time allowed for contest, that leased ground is not a natural oyster reef, is open to rebuttal.</p>

Action by M. P. Doullut and others against Mary Rush and others. Judgment for plaintiffs, and, a suspensive apipeal having been granted, plaintiffs pray for certiorari to review that ruling.

Suit by M. P. Doullut and others against Mary Rush and another. Judgment for plaintiffs, and defendants take a suspensive appeal, and, after an order to furnish proper bond, they apply for writs of prohibition and certiorari.

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Milton P. Doullut and others against Mary Rush and another. Judgment for plaintiffs, and defendants appeal. ,</p>

Separate suits by Thomas James, natural tutor, against the St. Charles Hotel Company and. others, in which the Hotel Company applies for writs of certiorari and prohibition, praying that an order of the judge of division C of the civil district court, transferring a suit therein to division D, be annulled, and that the judge of division D be prohibited from proceeding therein, and that it be ordered to be tried in division C.

Transferred from Court of Appeal, Second Circuit. Proceedings by the Town of Minden against D. W. and E. L. Stewart and Alberta Glass. Judgment for plaintiff, and defendants appealed to the Court of Appeal of the Second Circuit, which, on the ground of its want of jurisdiction, transferred the cases to the Supreme Court.

Suit by the City of Baton Rouge against T. Jones Cross. Tbe judgment of tbe trial court was reversed by tbe Court of Appeal, and defendant applies for certiorari or writ of review.

Judicial District Court, Parish of St. Landry; B. I-I. Pavy, Judge. Action by Hermina Gallot, widow, prosecuted after her death by her heirs, against Allen McCoy. Judgment for defendant dismissing the suit, and plaintiff appeals.

K. Skinner, Judge. Proceeding by the Hart Land & Improvement Company and others for the liquidation 'of the Odd Fellows Hall Association. From a judgment ordering Adolpli Dumser, purchaser at a judicial sale, to take title, he, appeals.

C. Barnette, Judge. Suit by John H. Green, trustee, against R. 0. Traylor, with sequestration of personal property pendente lite. Judgment for plaintiff, and defendant appeals.

<p> (Syllabus by the Qowrt.) </p> <p>Carriers >@=>303(2), 333(5) — Personal Injury —Assumption of Risk — Negligence.</p> <p>A male passenger 60 years of age, and apparently in the full possession of his physical and mental faculties, who steps off a street car just as its motion is slowed down before it reaches and within a few feet of its regular stopping place, assumes the risk of a danger which is as apparent to him as to the conductor ; and it is not negligence on the part of the street railroad company to permit him to do so.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Sabine; Henry T. Liverman, Judge ad hoe.</p> <p>Action by B. R. Hendricks and wife against the Kansas City Southern Railway Company. Judgment for defendant, and plaintiffs appeal.</p>

F. Blackman, Judge. Action by the Lee Lumber Company, Limited, against the Union Naval Stores Company, wherein defendant prayed for judgment in reconvention. Judgment for plaintiff rejecting the demands in reconvention, and defendant appeals, and plaintiff, answering, prays for an increase of the award in its favor.

Action by Mattie Blankenship, in her own behalf, and as widow of Lee Blankenship, and as tutrix for their minor children, against the Edgewood Land & Logging Company, Limited. Judgment for defendant, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>Street Railroads <&wkey;112 (3) — Collision on Track — Presumptions — Contributory Negligence.</p> <p>From the fact that there was nothing to obstruct the plaintiff’s view of an approaching trolley car at a safe distance from the position he occupied when ho backed his automobile upon the railway track and was struck by an approaching car, the presumption is either that he did not look with sufficient care for the approaching car before going upon the track, or that he did not heed the danger that he should have seen if he did look.</p>

<p> (Syllabus by the Court.) </p> <p>Husband and Wife &wkey;>267(l) — Community Pkoperty — Validity of Husband’s Conveyance— Statute .</p> <p>A conveyance by gratuitous title of immovable property belonging to the community by the husband as head and master thereof and during the existence of the said community, is null and void; and the only exception to the rule of law thus announced, in article 2404 of the Civil Code, is where such conveyance is made for the establishment of the children of the marriage.</p>

F. Bell, Judge. Action by Obed Pete Williams against the Texas & Pacific Railway Company, in which after plaintiff’s death his widow qualified as hig administratrix, and was made party plaintiff. Judgment for plaintiff, and defendant appeals.

<p> (Syllabus by the Court.) </p> <p>1. Novation <&wkey;4 — Vendor and Purchaser, <&wkey;266 (6) — Execution of Renewal Note-Privilege.</p> <p>Executing a new note in renewal of an old one does not novate the original debt or destroy the privilege securing the same.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Novationj</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Interest <@=337 — Judgment.</p> <p>■ A judgment on notes, silent as to interest, awarding 6 per cent, interest, was erroneous, and would be amended by reducing the rate of interest to 5 per cent.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law <&wkey;829(5) — Self-Defense— Instruction.</p> <p>Where, on a trial for alleged murder, in which the plea of self-defense is relied on, the trial judge, in his general charge, fully and correctly instructs the jury as to the law applicable thereto, he cannot be required to give a special charge upon the same subject, which is based upon premises and hypotheses which he considers unduly favorable to defendant.</p> <p>2. Criminal Law c&wkey;714^-ARGUMENT — Reading Testimony of Witnesses.</p> <p>The fact that counsel representing the state in a criminal prosecution in his closing argument has his memory refreshed concerning part of the testimony of one of the witnesses by having the stenographer read the same from his notes is not a sufficient reason why the judge should be required to allow defendant’s counsel to interrupt the argument by having the stenographer read the testimony of other witnesses.</p> <p>3. Criminal Law <&wkey;568 — Proof — Preponderance of Evidence — Criminality of Act or Omission — Fact and Place of Perpetration.</p> <p>The criminality of an act consists not merely in its perpetration, but in its being perpetrated in violation of the penal laws of the place where perpetrated, hence the fact and place of perpetration are equally ingredients of the crime, and alike should be proved beyond reasonable doubt in order to a conviction; but when it has been so proved that the act was perpetrated in a state where a state-wide law makes it a crime, the question whether the happening took place in one political subdivision or another is one which is likely to concern merely a question of the place and court in which it is to be prosecuted, and in that respect proof of the venue by a preponderance of the evidence, to the satisfaction of the jury, is sufficient.</p> <p>4. Criminal Law <&wkey;564(2), 1159(5) — Venue-Finding of Jury — Review.</p> <p>The question of venue in a criminal case, in so far as it is one of fact, is within the province of the. jury to decide, and this court is without jurisdiction to review the finding of a jury upon that subject.</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; W. T. Cunningham, Judge.</p> <p>Y. O. Anderson was convicted of an assault with intent to rape, and he appeals.</p>

Holstead, Judge. Suit for injunction by Robert P. Woods against the Union Sawmill Company, with reconventional demand for damages. Judgment for plaintiff making the injunction perpetual and for damages, and defendant appeals, and plaintiff, answering the appeal, prays for the allowance of his supplemental petition.

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Laud, Judge.</p> <p>Action by Samuel Dreyfuss and others against the Process Oil & Fuel Company. From a judgment for plaintiffs, defendant appeals.</p>

<p> (Syllabus by the Oourt.) </p> <p>Husband and Wife <&wkey;273(8), 274(1) — Death of Wife — Devolution of Community Property.</p> <p>Upon the death of the wife the property of the community devolves upon her heirs and surviving husband in indivisión, which means that each owns her or his proportionate interest in the most remote atom of which that property is composed; hence no specific portion of the community real estate can be sold by the surviving husband, since there would necessarily be included in the sale the proportionate interests of the heirs of the wife, which, presumably holding in perfect usufruct, he has no authority to sell.</p>

<p> (Syllabus by the Court.) </p> <p>CONSTITUTIONAL LAW l&wkey;70(3) — JUDICIAL DEPARTMENT — POLICE POWER — ANNULMENT of Statute ob Ordinance.</p> <p>It is not the province of the courts to take issue with the lawmakers as to the wisdom or necessity of a statute or ordinance enacted ostensibly in the exercise of the police power. The authority of the courts to annul laws or ordinances that are claimed to have been enacted in the exercise of the police power is confined to enactments that have no real or reasonable relation to public safety, public health, or morals — abuses of the police power, under pretense of promoting public safety, health, or morals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Charles T. Wortham, Judge.</p> <p>Action by C. H. Landry and others against Joseph Gonzales and others. Judgment for defendants, and plaintiffs appeal.</p>

Dawkins, Judge. Louis McCormick was prosecuted under an indictment for vagrancy, his motion to quash the indictment was sustained, and the State appeals.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; William C. Baker, Judge.</p> <p>Jack Connor was convicted of larceny, and he appeals.</p>

K. Skinner, Judge. In the succession of Caroline Amelia Miller, deceased, with petition by Mrs. Caroline Rein Baumann attacking the will, opposed by Prank Brinker, testamentary executor, and Mrs. Prank Brinker, residuary legatee. Judgment decreeing the will to be valid, and contestant appeals.

Suit by Magloire Louviere in behalf of his minor son, August Louviere, an'd in his own behalf against the Southwestern Traction & Power Company. Verdict for plaintiff and judgment thereon, and defendant appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Covenants t&wkey; 122 — Actions eok Breach oe Wakbanty— Stteeiciency oe Evidence.</p> <p>In an action by the grantee under a deed •with full warranty to recover the value of standing timber -which had been previously sold to .another party by whom it was subsequently removed, evidence held insufficient to show that the grantee knew of the sale of such timber.</p> <p>■2. Covenants <&wkey;46 — Covenant oe Warranty — Bbeach.</p> <p>One acquiring land by a deed calling for a clear title does not acquire subject to a recorded sale of standing timber so as to prevent a recovery on the grantor’s warranty.</p> <p>3. Vendos and Purchaser <&wkey;193 — Sales— Property Passing — Standing Timber — “Accessory.”</p> <p>Under Civ. Code, art. 2461, providing that the sale of a thing includes that of its accessories, on a sale of land without reservation of the standing timber the timber passes with the land as an “accessory” of the land.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accessory.]</p>

F. Bell, Judge. Suit by the' Atlas Oil Company against the Standard Oil Company of Louisiana. Judgment for plaintiff rejecting its demand for a cancellation of the bond, and defendant appeals.

<p> (Syllabus by the Court.) </p> <p>1. Taxation i&=>338 — Assessment — Stnm-OIENCT.</p> <p>An assessment in the name of one not the real owner of the property assessed, though so appearing upon the public records, is not “sufficient,” within the meaning of the law, when brought into conflict with an assessment of the same property, for the same tax, in the name of the real owner, who also appears in that character on the public records.</p> <p>2. Taxation @=>680 — Tax Sale — Payment-Adjudication.</p> <p>The law requires all sales of property for taxes to be made for cash, and the adjudication does not become effective unless, and until, the cash is paid.</p> <p>3. Taxation @=5786 — Tax Titles — Pbiobity.</p> <p>In the matter of titles to real estate, the title first placed on record takes precedence of one subsequently recorded, even though previously acquired.</p> <p>Provosty, J., dissenting.</p>

D. King, Judge. ' Executory proceedings by Frank B. Twomey against Pasquale Papalia, in which, after the death of the defendant, plaintiff obtained the appointment of a special tutor ad hoc of the minor children, and served notice of the executory proceedings upon Mm, and in which the widow filed a petition praying for a writ of injunction. From a judgment dissolving the writ of injunction, the widow, plaintiff in the injunction suit, appeals.

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law @=^1171(1) — Remark of District Attorney — Reversible Error.</p> <p>A remark by the district attorney, in the course of his argument before the jury which is not prejudicial to the accused is not reversible error.</p> <p>2. Criminal Law <®=721(3) — Remark of District Attorney — Construction.</p> <p>A wrong interpretation of a remark of the district attorney by counsel for the accused, to the effect that “this is a reference to the accused not taking the witness stand and testifying,” cannot be charged to the district attorney, who had not said or intimated that the accused had not taken the witness stand.</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; William C. Baker, Judge.</p> <p>Robert Jacks on was convicted of cutting, with intent to kill, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads @=75(5) — Grant oe Railroad Franchise — Statute.</p> <p>By the terms of Act No. 79 of 1896, p. 113, the governing authorities of towns or cities having less than 25,000 inhabitants have no authority to grant to a railroad company a perpetual or irrevocable right to use or occupy any street in the municipality, unless the grant be approved by a majority of the property-tax payers in the municipality voting at an election called for that purpose.</p> <p>2. Constitutional Law <®=^134 — Impairment of Obligation of Contract — Municipal Franchise to Railroad.</p> <p>The doctrine that rights acquired by a railway company under a valid municipal ordinance conferring trackage rights ' on the streets are protected by the contract clauses of the Constitution has no application to a claim of track-age rights under a municipal ordinance enacted in violation of a state statute, or enacted without the approval of a majority of the property tax payers of the municipality, when such approval was required by a state statute to make the grant valid.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Rape <&wkey;34(3) — Assault with Intent to Ravish — Indictment—Certainty.</p> <p>An indictment charging that accused assaulted B. with the intent forcibly and against the will and consent of B. “to ravish and carnally know,” was fatally defective, in that it did not charge with certainty whom he intended to ravish and carnally know, since while it gave rise to a strong inference that B. was the person, indictments must be positive and certain and are not taken by intendment.</p> <p>2. Witnesses <&wkey;77 — Competency — Examination as to Competency.</p> <p>Where the prosecuting witness is under 10 years of age, accused is entitled to have her examined on voir dire as to her competency before she-is sworn to testify.</p> <p>3. Rape &wkey;>59(23) — Instruction — Simple Assault. .</p> <p>On a trial for assault with intent to ravish the defense being that accused was so drunk as not to be capable of entertaining any specific intent, and there being evidence that he was very drunk, the court should have charged, on request, that under an indictment for assault with such intent a verdict might be found for simple assault, since where defendant may be found guilty of an included offense, and there is evidence upon which a verdict for the lesser crime may be found, the court-should so instruct the jury, and drunkenness so complete as to exclude the possibility of the existence of any specific intent may necessarily serve to show the absence of such intent.</p> <p>4. Criminal Law <&wkey;328 — Matters to be Proved — Intent.</p> <p>Where a specific intent constitutes one of the elements of the crime charged in the indictment, and for any reason the intent is absent or not proved, there must necessarily be an acquittal as to that crime.</p> <p>5. Indictment and Information &wkey;>191(%)— Conviction of Included Offenses.</p> <p>A lesser crime may be included in a greater, and in such a case a conviction for the lesser may be had upon an indictment for the greater.</p>

Action for injunction by Miron Abbott against Louis Fontenot, Sheriff, and others. Judgment for defendants dismissing the opposition and dissolving the injunction, and plaintiff appeals.

Proceeding coupled with an injunction by the Worthington Construction Company against the Parish of Jefferson Davis and others. Judgment for plaintiff perpetuating injunction, and defendants appeal.

<p> (Syllabus by the Court.) </p> <p>Criminal Law <&wkey; 1069(5) — Motion for New Trial — ' ‘ Signing. ’ ’</p> <p>The word “signing,” as used in article 117 of the Constitution and in section 6 of Act No. 163 of 1898, does not mean a premature signing, but it means a signing which has become effective either by the failure to move, within three days, for a new trial, or by a ruling which refuses to grant a new trial where such new trial has been prayed for within that delay; and the ten days within which a suspensive appeal may be obtained only begin to run from the day such signing has become effective.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Sign.]</p>

Receivership suit by the A. J. Nelson Manufacturing Company, Limited, against J. H. Menge & Sons, Limited. From a judgment sustaining the opposition of the Edwin H. Fitter Company, Limited, to the provisional account of Arthur D. Parker, receiver, the receiver appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Master and Servant <&wkey;270(l) — Actions for Injuries — Weight and Sufficiency of Evidence.</p> <p>In an action by an employé who claimed that while he and other employes were carrying a truss by means of pieces of scantling passed under it, they stumbled on wooden sawhorses, and that the piece of scantling he was holding struck him so as to cause a hernia, evidence held to show by a preponderance of the evidence that no such accident happened, and that be was not injured in the way claimed.</p>

In the matter of the succession of Eugene Lacosst. Action by Mrs. Jeanne Le-pine Lacosst against Emile Pomes, testamentary executor, and others. On the death of plaintiff, Berthe Lacosst I-Ieinisch was substituted as plaintiff. From a judgment in favor of the defendants rejecting plaintiff’s demands, she appeals.

Judicial District Court, Parish of Beauregard; Winston Over-ton, Judge. Proceedings by the State, on relation of the First National Bank of Shreveport and others, against the Police Jury of Beauregard Parish and others. Prom a judgment maintaining an exception of no cause of action, relators appeal.

Théard, Judge. Succession of Edward Cunningham. Petition by Patrick H. Cunningham and others to set aside a judgment probating an olographic Will, opposed by Mrs. Elizabeth Grace Cunningham, with Mrs. Mary Cunningham Brooks intervening. From a judgment of the civil district court, dismissing the petition, and declaring another instrument to be the olographic last will of deceased, petitioners and intervener appeal.

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

Appeal, from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge. Quo warranto by the State of Louisiana, on the relation of Julius T. Long, District Attorney, and others, against Jesse J. Mix-on, Superintendent of Public Schools of Winn Parish. Judgment for relators, and defendant appeals, and relators, answering the appeal, pray that the judgment be affirmed, and for alternative relief.

<p> (Syllabus by Editorial Staff.) </p> <p>Damages <&wkey;132(7) — Excessive Damages— Personal Injury.</p> <p>A verdict of $12,000 awarded a woman 73 years of age for a dislocation of the right knee and the splitting of one of the bones of the leg, entailing expenses of about $500, and the permanent use of a crutch with some pain, and for permanent injury to arm, was exce'ssive, and would be reduced to $7,500.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Ernest Moldaner against the American Brewing Company. From a judgment for defendant, plaintiff appeals.</p>

F. Blackman, Judge. Tom and Henry Preuett were convicted of willfully shooting at two persons named in the indictment, and they appeal.

O. W. Ellis, Judge. In the succession of Widow A. Pons. From a judgment rendered upon oppositions to the final account of P. L. Fourchy, testamentary executor, opponents, Mrs. Alice Veazey, and others appeal.

C. W. Ellis, Judge. Action by Josephine Whalon against the City of New Orleans and the Sewerage and Water Board. Judgment against the City and in favor of the Board, and the City appeals, and plaintiff, answering the appeal, asks judgment against the Board, and that the amount of judgment be increased.

<p> CSyllabus 6y the Court.) </p> <p>1. Taxation &wkey;>110 — Tax Sale — Validity.</p> <p>Where property has been adjudicated to the state at tax sale, and several years later it is again sold at a tax sale, based on an assessment made in the name of “unknown owners,” the latter sale is a nullity.</p> <p>2. Taxation «&wkey;697 (1) — Tax Sale — Redemption.</p> <p>Under section 62, Act 170 of 1898, the right of redemption can only be exercised by the owner or other person interested personally, or as heir, legatee, creditor, or otherwise.</p> <p>3. Taxation <&wkey;697(6) — Tax Sale — Redemption — Rishts oe Pukohaser.</p> <p>Where a tax sale is null and void, the purchaser at such sale, becoming neither owner, heir, creditor, or other person having a personal interest, does not thereby become entitied to the right of redemption under section 62 of Act 170 of 1898. If, however, he does in fact pay for and obtain such redemption, he does so for the benefit of the owner or other person in interest, against whom he is entitled to an equitable claim for the amounts thus disbursed by him.</p>

Boone, Judge. Action by J. A. Cain and others against the Vernon Parish School Board to contest the result of a school election. Judgment for defendant, and plaintiffs1 appeal.

Suit by J. B. Railsback against P. P. Keith and others. Judgment of the district court in favor of defendant was reversed by the Court of Appeal, and defendants apply for certiorari or writ of review.

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; Cas Moss, Judge.</p> <p>Pete Morgan was convicted of murder, and he appeals.</p>

<p>Appeal from Twenty-Fifth, Judicial District Court, Parish of Livingston; W. S. Rownd, Judge.</p> <p>C. C. Briggs was 'convicted of embezzlement, and he appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Alfred M. Barbe, Judge.</p> <p>Suit by Andrew Oberly against the Calcasieu Parish School Board and others. From an adverse judgment, plaintiff appeals.</p>

F. Bell, Judge. Consolidated suits by I-I. Orton and by Mrs. Ida McAfee against the Virginia Carolina Chemical Company. Verdict for plaintiffs, and defendant appeals, and plaintiffs, answering the appeal, pray for an increase in the amount of the judgments.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.</p> <p>Tom Thornton and Joe Rolen were convicted of hog stealing, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Contract for Benefit of Third Person —Revocation.</p> <p>“A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked.” Civ. Code, art. 1890.</p> <p>2. Contract for Benefit of Third Person-Revocation.</p> <p>“A contract, in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, cannot he revoked as to the advantage stipulated in his favor, without his consent.” Civ. Code, art. 1902.</p> <p>3. “Equitable Action” — Statute.</p> <p>“An equitable action is that which does not immediately arise from a contract, but from equity in favor of a third person, not a party to it, and for whose benefit certain stipulations have been made; thus, if one stipulated in a contract entered into with another person, and as an express condition of that contract, that this person should pay a certain sum on his account, or give a certain thing to a third person, not a party to the act, that third person has an equitable action against the one who has contracted the obligation, to enforce the execution of the stipulation.” Code Prac. art. 35.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Equitable Action.]</p> <p>4. Contracts <&wkey;187(5) — Contract for Benefit of Third Party — Enforcement.</p> <p>When the terms of a contract and the conditions surrounding its confection make it clear that a stipulation therein in favor of a third person is intended for the latter’s personal benefit, and he accepts it, and that stipulation is not made for the benefit of one of the parties to the contract, such third person becomes a creditor of the other party to the contract, and he may enforce it against such debtor.</p>

Bernard; ft. Em-met Hingle, Judge. Suit for injunction by the Godchaux Company, Incorporated, against Albert Estopinal, Jr., Sheriff, and others. From a judgment dissolving the injunction, plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>Insurance &wkey;>266 — Fidelity Insurance — “Promissory Warranty.”</p> <p>A condition agreed to by an indemnitee in an application for fidelity insurance, which is material to the contract and has important bearing upon the risk to be assumed by the indemnitor, made part of the policy and warranted as# a condition precedent to recovery, is a “promissory warranty,” and its nonobservance vitiates the policy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Promissory Warranty.]</p>

<p> (Syllables by the Qamrt.) </p> <p>Homestead t&wkey;23 — Exemption — “Head oe Family.”</p> <p>To be the head of a family, within the meaning of the law exempting from seizure and sale the homestead “of every head of a family,” one must either have a responsibility (i. e., at least a natural or moral obligation) to support, or have parental authority over, another member of the family. A widow having no one dependent upon her for support, having a major, self-supporting son living in her house and paying her for his board, is held not to be the head of the family of two, or entitled to the homestead exemption.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Head of a Family.]</p> <p>Monroe, C. J., dissenting.</p>

<p>Certiorari to Court of Appeal, Parish of Orleans; Emile Godchaux, Judge.</p> <p>Action by Arnold Levy against Michon Bros. Judgment for plaintiff, and defendants apply for writs of certiorari and prohibition.</p>

Action by the Female Orphan Association of Baton Rouge against Dr. W. B. Chamberlin. A judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for a writ of certiorari or review.

Mary; H. D. Smith, Judge ad hoc. Action by Arthur Richard against the Baldwin Lumber Company, Limited. From a judgment for plaintiff for insufficient relief, defendant appeals, and plaintiff also appeals.

<p> (Syllabus T>y the Court.) </p> <p>1. Street Railroads <&wkey;>90(5) — Personal Injury-Negligence.</p> <p>It is negligence on the part of a motorman, approaching a street crossing-, not to reduce the speed of his car and have it under such control as to be able to avoid colliding with a heavily loaded auto truck crossing the track slowly in front of the car in plain view and at an apparently safe distance.</p> <p>2. Negligence &wkey;93(l) — Imputed Negligence-Negligence oe Chauffeur.</p> <p>Negligence on the part of the chauffeur operating an auto truck is held) not imputable to his employé seated beside him on the truck.</p> <p>Provosty, J., dissenting.</p>

Land, Judge. Action by the Red River Valley Bank & Trust Company against the Louisiana Petrolithic Construction Company, Parish of Cad-do, and another. Exception of no cause of action filed by the Parish of Caddo sustained, and suit dismissed, and plaintiff appeals.

<p>Appeal from Thirtieth Judicial District Court, Parish of Caldwell; George Wear, Sr., Judge.</p> <p>Petitory action by John N. Frantom and others against Julius Nelson. Judgment for defendant, and plaintiffs appeal.</p>

Action by Frederick Badie, with supplementary action after his death by his widow, Ethel Etta Badie, against the Columbia Brewing Company. Demand rejected, and the widow, in her own behalf and in behalf of her infant child, appeals.

McIntosh, Judge. Sam Atkins was convicted, his motion in arrest of judgment was overruled, and he excepted and appealed.

Mary; William C. Baker, Judge. Rule by Murphy Young to set aside and cancel a forfeiture of an appearance bond, given by him, with sureties. From a judgment setting aside the forfeiture of the bond, the State appeals.

C. W. Ellis, Judge. Suit by Hubert M. Ansley against the Concrete Construction & Contracting Company ' and others. Mrs. Eugene L. Ansley was substituted as plaintiff. Judgment for plaintiff against the Concrete Construction & Contracting Company, and she appeals for insufficiency of the judgment.

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

<p>Appeal from Thirtieth Judicial District Court, Parish of La Salle; George Wear, Sr., Judge.</p> <p>Action by A. S. Leverett against the White Sulphur Lumber Company, Limited. Judgment for defendant, rejecting the plaintiff’s claim, and plaintiff appeals.</p>

Boone, Judge. Action by Herschel J. Haynes against the Fisher Oil Company and others. Judgment for plaintiff, and defendants appeal, and plaintiff, answering, prays that amount of judgment be' increased, and after plaintiff’s death his widow, as universal legatee, was substituted as plaintiff.

Tammany; Prentiss B. Carter, Judge. Rule by Robert L. Aubert and others against Wade Burns and the Registrar of Yoters to cancel name of Burns from municipal registration book of town of Covington. Judgment for defendant Burns dismissing plaintiffs’ suit, and plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Courts <g=^224(G) — Appellate Jurisdiction op Louisiana Supreme Court — Political Rights.</p> <p>The Supreme Court can only exercise juris diction in suits involving right to registration as voter by virtue of Const, art. 201, which jurisdiction is limited to contest over educational and property qualifications as prescribed by article 197, §§ 3, 4.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge.</p> <p>Rule by Robert L. Aubert and others against Amedee Guyol and others to have the name of Guyol stricken from the roll of registered voters of the town of Covington for alleged want of residence qualification. Judgment for defendant Guyol, and plaintiffs appeal.</p>

D. A. Fendlason was convicted of a breach of the peace in the mayor’s court of the Town of Kentwood, and he appeals, and, a motion to dismiss the appeal having been overruled, the town prays for certiorari and mandamus.

Sarah Brown was convicted in the mayor’s court of the Town of Kentwood, and she appeals, and, a motion to dismiss the appeal having been overruled, the town prays for certiorari and mandamus.

Chas. A. Kent, Jr., was convicted in the may- or’s court of the Town of Kentwood, and he appeals, and, a motion to dismiss the appeal hav; ing been overruled, the town prays for certiorari and mandamus.

Chas. Lammonica was convicted in the may- or’s court of the Town of Kentwood, and he appeals, and, a motion to dismiss the appeal having been overruled, the town prays for certiorari and mandamus.

<p>Chas. A. Kent, Jr., was convicted in the mayor’s court of the Town of Kentwood, and ho appeals, and, a motion to dismiss the appeal having been overruled, the town prays for certiorari and mandamus.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Gifts @=>26 — Onerous Donation — Form-Validity.</p> <p>In view of Civ. Code, art. 1526, relating to onerous donations, an onerous donation is not void for defect of form when not passed before a notary public and two witnesses.</p> <p>2. Gifts @=>47(3) — Defect in Form — Proof.</p> <p>Plaintiffs, contending that their grandmother’s donation purporting tó be for a consideration was null for defect of form, had the burden of proving that it was gratuitous, and that the value of the object given exceeded by one-half that of the charges within Civ. Code art. 1526, and that the donor had not reserved enough for her sustenance, and of showing that the donation was .subject to the requirement of form prescribed by Civ. Code, art. 1536.</p> <p>3. Wills @=>270 — Probate—Notice—Statute.</p> <p>Where three of the grandchildren of a decedent resided outside of the state, and one in the parish of Caddo and outside of the parish where the will'was probated, they were not entitled under Code Prac. art. 935, to a notice in writing to attend the opening and proof of the will.</p> <p>4. Wills @=>277 — Validity—Attack.</p> <p>Where plaintiffs ataeking the will of their deceased grandmother failed to specify any ground of nullity, their attack on the validity of the will was not entitled to any consideration.</p> <p>5. Wills <@=>761 — Advancement-Evidence.</p> <p>In a suit by the grandchildren of a testatrix, evidence held to show that a son had received an advance of $750 on his heritable portion in the succession more than his share of the estate, so that his heirs had no interest in seeking to reduce the disposition in the will as against defendants as universal legatees.</p> <p>6. Descent and Distribution <@=>109 — Succession — Giet—Collation .</p> <p>Where a testatrix had donated a colt, a library, and $50 in cash, amounting to $100, to a son, such amount should be collated by the grandchildren before they could claim their legitime out of the succession.</p>

<p> {Syllabus by the Court.) </p> <p>1. Criminal Law <&wkey;1166%'(12) — Appeal-Harmless Error — Remarks oe Judge.</p> <p>Remarks of the judge to counsel during the trial of a cause which do not bear upon the accused, the witness, or the testimony, and are not injurious to the accused, are not sufficient cause for the remanding of a case for a. new trial.</p> <p>2. Criminal Law &wkey;>1090(19) — Appeal—Bill oe Exceptions — Evidence.</p> <p>Where evidence is not taken down and made a part of a bill of exceptions, the statement of the trial judge as to what the evidence was will be accepted as correct.</p>

<p> (Syllabus by the Court.) </p> <p>1. Gaming <&wkey;63(l) — Ordinance—'Gambling Houses — Punishment.</p> <p>Every municipal corporation has authority, under its police power and the general welfare clauses of its charter, to enact ordinances denouncing gambling houses as public nuisances, and to punish the proprietors.</p> <p>2. Gaming • <&wkey;63(l) — Suppression oe Nuisance-Ordinance. .</p> <p>Although the charter of a particular municipality expressly authorizes the corporation only to tax all. kinds of games that are not prohibited by the laws of the state, and although gambling with cards is not prohibited by the laws of the state, the municipality has authority, under its general power to suppress nuisances, to enact an ordinance denouncing gambling houses as public nuisances.</p> <p>3. Vagrancy <&wkey;l — Common-Law Oefense —Gambling Statute or Ordinance.</p> <p>Although obtaining a livelihood by gambling is not vagrancy or vagabondage at common law, it may be declared vagrancy and denounced as such by a statute or municipal ordinance.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vagrancy.]</p>

Criminal proceeding by the State against W. Duhon, Ed. Ratliff and A. Dave Hooper. On a conviction and sentence for feloniously breaking and entering into railroad box car in the nighttime, A. Dave Hooper prays that the writ of habeas corpus issue from the Supreme Court to the warden of the penitentiary.

Ejectment by Manteris & Co:, Incorporated, against the National Dental Company. Judgment in the city court of Alexandria for plaintiff was affirmed on appeal by the district court, with order allowing defendant a second appeal to the Court of Appeal, to which an appeal was taken, and the city judge having denied an order for execution on the judgment as affirmed, plaintiff applies for writ of mandamus.

Tammany; J. B. Lancaster, Judge. Petitory action by Daniel Treadway and others against the Poitevent & Favre Lumber Company. From a judgment maintaining an exception of no cause of action, plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1. Public Lands <&wkey;35(4) — Death of Entry-man Before Perfecting Entry — Inheritance.</p> <p>Under sections 2291, 2292, Rev. St. U. S. (U. S. Comp. St. 1916, §§ 4532, 4543), no rights accrue to the entryman who dies before the entry is perfected, and nothing passes under the inheritance law of the state.</p> <p>2.'Public Lands <&wkey;35(6) — Rights of Widow of Entryman — Statute.</p> <p>Where a statute of the United States gives definite rights on the happening of certain contingencies, no rights can vest until such contingencies happen, and where the wife survives the entryman and becomes his widow she acquired a right to the land, whether the entry was made before or after her marriage to the entry-man.</p> <p>3. Public Lands <&wkey;35(6) — Rights of Widow of Entryman.</p> <p>And where the widow complies with the provisions of the homestead law and submits proof thereof at the local office, she acquires a vested interest in the land, to the exclusion of the heirs of the entryman.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George I-I. ThSard, Judge.</p> <p>Action by Mrs. Anna La Yillebeuvre Hyman against Frederick G. Yeith. From the judgment for plaintiff defendant appeals.</p>

Suit by William Martin Joyce against the Nona Mills Company, Limited. A default judgment for plaintiff was set aside, and an appeal from the order setting aside the judgment was denied, and plaintiff applies for writs of mandamus and prohibition.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal Corporations <&wkey;622 — Police Regulations — Powers oe Municipality— “Regulate.”</p> <p>Shreveport Charter, § 11, as amended by Act No. 220 of 1912, provides that the council shall have power to prohibit, prevent, and suppress mock auctions, etc., to prohibit, regulate, and restrain or prevent gaming, etc., to prevent, prohibit, and suppress lotteries, etc.; to regulate or suppress circuses, show theaters, billiard tables, etc., to prohibit and suppress desecration of the Sabbath day, etc., and to regulate the police of theaters, public halls, taverns, places for shows and exhibitions, houses for public entertainments, and houses for public prostitution, and to order them to be closed when public safety requires it. Held, that while the language of the charter is peculiar, in that power is given to prohibit and suppress a great many things, while the word “regulate” .alone is used in connection with houses of prostitution, and such houses are classed with theaters, taverns, and houses of public entertainment, still the city is given power to prohibit such houses, as the city would have such power under the general welfare clause of its charter, and it is not to be supposed that the Legislature would withhold power to suppress a nuisance affecting so directly the good order and well-being of the community without an express declaration or something equivalent, and, moreover, while the word “regulate” does not ordinarily convey the meaning of prohibit, prevent, or suppress, there is no absolute reason why it should not have that meaning when used in delegating police power in connection with a thing the best or only efficacious regulation of which involves suppression. '</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Regulate.]</p> <p>2. Statutes <&wkey;H95 — Construction — Express Mention and Implied-Exclusion.</p> <p>The principle embodied in the maxim, “Ex-pressio unius est exclusio alterius,” expresses a rule of construction and not of substantive law, and serves only as an aid in discovering the legislative intent when it is not otherwise manifest.</p> <p>3. Municipal Corporations &wkey;>59S — Police Regulations — Power op Municipality.</p> <p>Under Shreveport charter, § 11, as amended by Act No. 220 of 1912, authorizing the council to regulate disorderly houses and to prohibit and suppress all kinds of indecencies and other disorderly practices and disturbances of the peace, the city cannot make adultery or fornication committed secretly without any circumstance of scandal or public disorder, an offense.</p> <p>4. Constitutional Law <&wkey;>60 — Legislative Powers — Delegation.</p> <p>The general rule is that legislative power cannot be delegated.</p> <p>5. Constitutional Law &wkey;>63(2) — Legislative Powers — Delegation.</p> <p>Legislative power may be delegated to municipal corporations in whatever measure may be justified by the exigencies of local government and by necessity or greater convenience in the administration of public affairs, but powers that are not essentially municipal in character may not be delegated to municipal authorities.</p> <p>6. Municipal Corporations <&wkey;642d) — Police Regulations — Criminal Prosecutions — Reversible Error.</p> <p>Where, under an ordinance making it an offense to use a room for the purpose of a lewd or other indecent act, without qualification, accused was charged with using and occupying a room for the purpose of a lewd and indecent act, to wit, having sexual intercourse with a prostitute, he_ may have been convicted for an act not committed in the room of the prostitute or a room ever before used for that purpose, and the refusal of the trial judge to charge himself that the city could not make adultery or fornication committed without scandal or public disorder an offense may have been prejudicial, and requires a reversal.</p>

Holstead, Judge. In the matter of the succession of George W. Braswell, deceased. From a judgment sustaining objections to the execution of the will, the surviving widow appeals.

Proceeding to probate -an alleged will of Dr. William Ernest Walker.. From a judgment sustaining the opposition to the probate of the will, the proponent appeals.

Martin; James Simon, Judge. Petition by Lowenberg, Marks & Co. and others against H. & C. Newman, Limited, to have a sale of a debtor’s property to defendant under executory process declared void and the property declared subject to plaintiffs’ mortgages. Exception of no cause of action sustained, and plaintiffs appeal.

Executory process by the St. Louis Union Trust Company against the Shreveport Ice & Brewing Company, in which the People’s Bank of Mobile, Ala., intervener, took a rule against plaintiff to show cause why the order granting the process should not be vacated and set aside. Plaintiff’s exception to the rule sustained and rule discharged, and the intervener applied for writs of mandamus and prohibition.

Action by the Frank-Taylor-Kendrick Company against Emile Voissement and Manuel Estopinal. From a judgment of the Court of Appeal, on appeal of defendant Estopinal, affirming a judgment of the district court in favor of the plaintiff, the defendant Estopinal brings certiorari.

Boone, Judge. Suit by Dr. J. F. Smith against B. H. Lyons and another, with claim in reconvention by defendant Lyons. Judgment for defendant Lyons, dismissing plaintiff’s demand, and plaintiff appeals.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge.</p> <p>Suit by Benoit Pierre and another against the Powell Box Company, Limited. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Suit by Mrs. Katherine Dellinger against . John T. Smith. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Suit by Thomas Yeasey against Henry Peters, Eugene Peters, and the ¿Etna Life Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Mayor’s Court, Village of Elton ; Robert Buller, Mayor.</p> <p>H. L. Buttrell and others were convicted of gambling in violation of an ordinance of the Village of Elton, and they appeal.</p>

Le Blanc, Jr., Judge. Petitory action by the Miles Planting & Manufacturing Company against James A. Ware, continued after his death against his widow and son and the Belle Grove Planting & Manufacturing Company. Judgment for defendants, and plaintiff appeals.

<p> (Syllabus by Editorial Staf.) </p> <p>1. Costs <&wkey;260(4) — Daaia&e's fob Ebivolous Appeal.</p> <p>Whore defendant never questioned his indebtedness to plaintiff, even when sued, except by a purely formal denial in the answer, and he had written plaintiff ten letters asking for time and promising to pay, and when threatened with suit, and later when sued threatened to “law” plaintiff to the end and to pay only after final judgment by the Supreme Court, and he took a suspensive appeal, and opposed plaintiff’s application to have the case put on the preference docket, his resistance of the suit was evidently for delay, and a penalty for a frivolous appeal will be imposed; the appeal in fact being frivolous.</p> <p>2. Appeal and Error <&wkey;677 — Record—Matters Presented for Review.</p> <p>An exception to the citation based on alleged defects in the return cannot be reviewed where the return is not brought up in the transcript</p> <p>3. Appearance <&wkey;8(3) — Effect^-Defects in Process.</p> <p>An exception to the citation based on alleged defects in the return was vacated by the filing of an answer to the merits simultaneously with the filing of the exception, though the exception stated that defendant appeared for the sole purpose of the exception, and the answer stated that it was filed only on condition that the exception be overruled and with full reserve of the exception, as any appearance except distinctly for the sole purpose of objecting to the jurisdiction or to the citation amounts to an appearance which stands in place of citation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appearance.]</p> <p>4. Sales <&wkey;355(l) — Actions for Price — Evidence — Admissibility under Pleadings.</p> <p>A petition which with the itemized account annexed thereto and made a part thereof, showed that defendant owed plaintiff for goods bought from plaintiff, and showed what the goods consisted of, and the dates of purchase, was not insufficient to admit proof of the delivery of the goods.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Charlotte Moore against Miss Catherine Aughey. Judgment for defendant, and plaintiff appeals.</p>

Land, Judge. Will Ford was indicted for forgery, and pleaded guilty and was sentenced, his motion to be allowed to withdraw his plea of guilty and have a trial or a new trial was overruled, and he appeals.

Judicial 'District Court, Parish of Beauregard; Winston Over-ton, Judge. Action by the Jasper & Eastern Railway Company against W. A. Martin, Sheriff and Tax Collector, and others, to annul the assessment of a tax against plaintiff. Judgment for plaintiff, and defendants appeal.

Théard, Judge. In the matter of the succession of Mary Larmeau. From a judgment rendered on opposition to a tableau of distribution in a partition between the heirs of his deceased ' wife and himself, Benjamin A. I-Iintz appeals.

On .motion to file record and execute mandate of the Supreme Court of the United States, and on motion to tax or fix the clerk’s costs for making a copy of the record for the Supreme Court of the United States.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Attorney and Client <&wkey;104 — Representation oe Clieno^-Notice to Attorney.</p> <p>The knowledge of the attorney for a purchaser of land, who examined the abstract of title, that other persons were claiming to own the land and had recorded titles thereto, and that the vendor’s title was at best founded upon a tax sale of doubtful validity, was imputable to the purchaser.</p> <p>2. Trespass <&wkey;52 — Cutting and Removing Timber — Damages.</p> <p>The damages recoverable from a trespasser for cutting and removing timber is fixed at the amount for which it was sold by the trespasser, but where the trespasser was guilty only of legal bad faith, the expenses incurred by him may be deducted, while in the case of moral bad faith they may not be deducted.</p> <p>3. Trespass <&wkey;52 — Cutting and Removing Timber — Damages.</p> <p>Though a purchaser of timbered lands was charged with his attorney’s knowledge obtained from the abstract of title as to the claims of third persons, where he had no actual knowledge thereof and acted in good faith upon the advice of his attorney, he was not guilty of moral bad faith in cutting and removing the timber.</p> <p>4. Trespass <&wkey;40(5) — Actions for Removing Timber — Pleading.</p> <p>In an action for cutting and removing timber, the petition alleged that the timber was worth to plaintiff for the purpose for which he acquired it not less than $10 a thousand feet for logs and 25 cents a linear foot for the piling standing in the woods, making a total of $1,-767.50', the value of the timber in the woods, and that the timber was worth considerable more than that amount at the market as would be shown on the trial. It prayed judgment in the sum of $1,767.50, the value of the timber cut and removed, and for general and equitable relief. Held, that, the petition did not claim merely the value of the stumpage and limit the recovery to that value, as it claimed $1,767.50, with an allegation that the timber was worth this much in the woods and much more in the market.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal Law <&wkey;1153(5) — Discretion of Trial Court — Separation of Witnesses— Review.</p> <p>The matter of the separation of witnesses_ in a criminal case is largely within the discretion of the trial court, which will not.be controlled by this court, save when plainly abused, to the prejudice of the defendant.</p> <p>2. Witnesses &wkey;>267 — Cross-Examination.</p> <p>The trial judge may restrict the cross-examination of a witness in a criminal case within reasonable limits.</p> <p>8. Criminal Law <S&wkey;519(4) — Witnesses <&wkey;> 388(1) — Credibility — Impeachment — Confession.</p> <p>The credibility of a defendant in a criminal case may be impeached, upon laying the proper foundation, by evidence of statements made by him which conflict with his testimony; and, though a statement so made, in the form of an answer to a question propounded by the sheriff, while holding such.defendant in custody, may involve a confession, it is, nevertheless, admissible in evidence if shown to have been made voluntarily, and without inducement, promise, threat, or intimidation.</p> <p>4. Criminal I,aw &wkey;>1168(2) — Trial—Refusal to Recall State’s Witness.</p> <p>A trial judge does not err in refusing to allow a state witness to be recalled, after the closing of a criminal case, in order that he may be cross-examined concerning threats said to have been made by him against the counsel for the defendant, and which could not have affected the interest of the defendant during the trial.</p> <p>5. Criminal Law <&wkey;829(l) — Trial — Instructions — Special Charge.</p> <p>Where the general charge of the trial judge, in a criminal case, fully covers the law applicable to the facts so far as disclosed to this court, his ruling in refusing a special charge will not be reversed.</p> <p>6. Criminal Law <&wkey;93 — Juvenile Court-Jurisdiction — Capital Crime.</p> <p>In conferring jurisdiction on the juvenile courts, the Constitution makes an exception with respect to capital crimes.</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant <s&wkey;228(2)—Injury to Minor Employé — Contributory Negligence—Statute.</p> <p>(1) The Child Labor Act, numbered 301 of 1908, p. 453, forbids the employment of children under 14 years of age in factories, etc., and provides a penalty for violation of the act.</p> <p>(2) The act forbids the employment of children over 14 and under 16 without the production of an age certificate, and a penalty is imposed for a violation of the act.</p> <p>(3) In a suit for damages resulting to a child over 14 and under 16 in the course of his employment, contributory negligence may be pleaded and proved by the defendant.</p> <p>O’Niell, J., dissenting.</p>

McIntosh, Judge. Sam Vaughn was convicted of manslaughter, and thereafter the district attorney, discovering that accused had not been arraigned, obtained an order setting aside the judgment of conviction, and on a retrial defendant’s plea of former jeopardy was sustained, and he was discharged, and the State appeals.

T. Cunningham, Judge. Consolidated suits by the Palmer Company, Incorporated, by E. T. Robinson, and by Zach K. BrinkerhoflC, against the Police Jury of Red River Parish and others. Judgment for defendants, and plaintiff in each suit appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.</p> <p>Suit by Clara Campbell against Sam Gullo and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Mary Muldry against Fromherz & Drennan, E. J. Lamothe, and D. 6. Villere. Judgment for plaintiff against Promherz & Drennan, and that defendant and plaintiff appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Evidence @=>390(1) — Parol Evidence — Prescription — Statute.</p> <p>The rules of evidence excluding parol evidence to affect title to real estate, or to contradict or vary written acts, arc statutory laws from which the courts are powerless to derogate. Rev. Oiv. Code, arts. 2275 and 2276. To permit fraud, error, mistake, fraudum legis, possession as basis of prescription, etc., to be shown by parol, even in cases involving title to real estate, is not to derogate from 'these rules.</p> <p>2. Counter Letters.</p> <p>Counter letters can have no effect against creditors or bona fide purchasers: they are</p> <p>valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitime.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Contracts @=>33 — Form.</p> <p>Parties may put their agreements into whatever form they determine.</p> <p>4. Mortgages @=>42 — Form—Sale.</p> <p>A contract of security may be in the form of a sale.</p> <p>5. Evidence @=>429 — Parol Evidence — Contracts.</p> <p>Where defendants in a petitory action acquired title by acts of sale by the forced heirs of plaintiff’s deceased husband containing the usual warranty clauses, the forced heirs had the right to annul absolutely by parol evidence the simulated contracts of their father.</p>