Volume 143 — Louisiana Reports

R. Land, Judge. Suit by J. H. Eastham and others against the Cotton Queen Oil Company, in which James G. Palmer was appointed receiver, and wherein W. E. Griggsby and others filed a petition in intervention and opposition. Exception to the jurisdiction of the petition in intervention sustained, and the intervention dismissed, and interveners appeal.

, Judge ad hoe. Suit by Willis C. Holstein against John A. Guss, and mandamus by the State, on the relation of Willis C. Holstein, against John A. Guss, and suit for injunction by John A. Guss against the Police Jury of Catahoula P'arish. Cases consolidated, and from the single judgment rendered, Holstein, Guss, and others appeal.

Suit by the National City Bank of Chicago against Mrs. Georgia S. Barringer and husband. From a judgment of the Gourt of Appeal reversing a judgment of the district court in favor of the plaintiff, plaintiff applies for certiorari or writ of review.

D. Webb, Judge. Suit by J. S. Jackson and Emma Jackson, for the use and benefit of tbeir minor child, Burdette Jackson, against the Texas Company. Judgment for plaintiffs, and defendant appeals,

Action by C. H. Swain against the Kirkpatrick Lumber Company, the Calcasieu National Bank of Southwest Louisiana, and the Calcasieu Mercantile Company. Judgment for plaintiff by default, and the bank and the mercantile company appeal.

Judicial District Court, Parish of St. Bernard; R. Em-met I-Iingle, Judge. Suit by the Badger-Louisiaria Land Company against Albert Estopinal, Sheriff of the Parish of St. Bernard, and others, to have certain acreage taxes set aside and to restrain the collection of certain other taxes, in which the Whitney Central Trust Savings Bank intervened. Judgment for defendants, and intervener, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Courts <@=>224(7) — Louisiana Supreme Court — Appellate Jurisdiction — Legality oe Tax.</p> <p>When the nature and character of a particular business sought to be taxed is proven or admitted, and the only question presented is whether the business is subject to a license tax, the case is one in which the legality of a tax is in contest, and of which the Supreme Court alone has appellate jurisdiction, regardless of the amount involved.</p> <p>2. Hawkers and Peddlers <@=>3(2) — Dairyman Delivering Milk to Customers — “Peddling or Hawking.”</p> <p>The occupation of a dairyman, going about delivering the milk from his farm to his regular customers according to their previous orders, is not, within the ordinary meaning or acceptation of the term, peddling or hawking.</p> <p>3. Statutes <@=>166 — Amendment and Reenactment — Repeal.</p> <p>When a statute has been amended and reenacted, any part of the amended act that is omitted from the amending and re-enacting statute is thereby repealed.</p> <p>4. Hawkers and Peddlers <@=>4(3) — License Tax — “Agricultural Pursuits” — Constitutional Provisions.</p> <p>A farmer who goes from place to place selling at retail the products of his farm is only pursuing the business or occupation of a farmer, and is not subject to the license tax imposed upon “peddlers or hawkers.” He comes within the provision of the Constitution exempting from any license tax all persons engaged in agricultural pursuits.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Agricultural Pursuits.]</p> <p>5. Hawkers and Peddlers <@=>4(1) — License Tax — Construction oe Statute.</p> <p>By the terms of the Act No. 229 of 1912, p. 517, the peddlers or hawkers of farm products who are required to pay a -license tax are, not those whose industry has produced them, hut those who buy and sell or trade in them.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>6. Hawkers and Peddlers <@=3(1) — Who Are.</p> <p>A peddler or hawker is an itinerant merchant or trader who goes from house to house or from place to place, exposing and selling the goods, wares, or merchandise he carries.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Hawker; Peddler.]</p>

, Judge. Action by Alfred H. Sanders against John Humphries and others. Suit dismissed as to the said defendants on exception of no cause of action, and plaintiff appeals.

L. Golsan, Judge, to Court of Appeal, First Circuit, there transferred to Supreme Court. In the matter of the liquidation of the Feliciana Bank & Trust Company. Rule hy John I-I.- Clack, Sheriff and ex officio Tax Collector of the Parish of AVest Feliciana, on the liquidator to collect taxes on the capital stock, surplus, and undivided profits, with interest from date of delinquency.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; James Andrews, Judge.</p> <p>Action by Mrs. Sadie Rogers against the Louisiana Railway & Navigation Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Landlord and Tenant (©=3164(7) — Personal Injury to Tenant — Liability.</p> <p>A landlord is not liable in damages for personal injuries suffered by the tenant in consequence of a dangerous condition of the leased premises, of which the tenant had knowledge' and assumed the risk.</p> <p>Monroe, C. J., dissenting.</p>

<p>Appeal from Eifth Judicial District Court, Parish of ’Winn; Cas Moss, Judge.</p> <p>George Shoemake was convicted of murder, and he appeals.</p>

<p>Appeal from 'Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Action by John Dupre against R. H. Coleman. Exceptions sustained, and suit dismissed, and plaintiff appeals.</p>

Petitory action and suit for partition by Prosper Baronet and others against Eugene Houssiere and others. From a judgment rejecting their demands, plaintiffs appeal.

<p>Appeal from Civil District Court, Parish, of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by Mrs. Mary Flynn Hooth, wife of Peter J. O’Reilly, against Edwin Irwin, Jr., and Michael Irwin. Judgment for plaintiff, against defendants in solido, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Carriers <&wkey;303(ll) — Setting Down Passengers — Care Required.</p> <p>A common carrier is bound to exercise the strictest diligence in setting down a passenger as safely, as the means of the conveyance employed and the circumstances of the case will permit, and that duty is the more incumbent upon it when the conveyance is stopped at an unusual and more or less dangerous place.</p> <p>- (Additional Syllabus by Editorial Staff.)</p> <p>On Rehearing.</p> <p>2. Carriers <&wkey;303(ll) — Setting Down Passengers — Care Required.</p> <p>It is not negligence for a street car company to stop its car either short of or beyond the regular stopping place, although the place where the car is stopped is not precisely similar to that at the regular stopping place.</p> <p>3. Carriers <&wkey;303(13) — Setting Down Passengers — Negligence.</p> <p>Where a street car stopped 15 or 20 feet beyond its usual stopping place at a place where the step of the car was 15% or 16 inches above the roadway, so that a passenger might safely alight by extending his foot 7 inches out and stepping down while holding onto the handlebar, such place was reasonably safe, and carrier was not liable for injury to passenger while alighting.</p> <p>Leche, J., dissenting.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Suit by the Louisiana Society for the Prevention of Cruelty to Children against the Board of Levee Commissioners, of the Orleans Levee District. Prom the judgment, defendant appeals.</p>

Théard, Judge. A suit for partition by Mrs. M. E. Hava and others against Alfred E. Livaudais, and supplemental petition by plaintiff, praying that her husband, Dr. Adrian F. 1-Iava, be cited to show cause why she should not prosecute her suit, with answer by her husband, and answer by defendant Livaudais, praying for partition and for the allowance of a reconventional demand, consolidated with interpleader by the Firemen’s Insurance Company.

<p> (Syllabus by Editorial Staff.) </p> <p>On Motion to Dismiss Appeal.</p> <p>1. Courts <&wkey;224(ll) — Appellate Jurisdiction — Amount Involved.</p> <p>Where plaintiff sought damages in the amount of $2,950 and his wife subsequently intervened and demanded $1,000 and adopted the allegations of her husband’s petition and the demands of plaintiff and the intervener were rejected in one verdict and judgment, the amount involved was not below $2,000, the lower jurisdiction of the Supreme Court, and the appeal will hot be dismissed.</p> <p>O’Niell, J., dissenting.</p> <p> (Syllabus by the Court.) </p> <p>On the Merits.</p> <p>2. Landlord and Tenant <&wkey;173 — Driving Away Tenant — Damages.</p> <p>Damages will be awarded to the owner of a plantation for an act of violence which results in driving a tenant, planting on shares, from his plantation.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Landlord and Tenant <&wkey; 173 — Driving Away Tenant — Action eor Damages — Estoppel.</p> <p>In action by owner of plantation for damages for acts of violence, resulting in driving away a tenant planting on shares, plea of estoppel, based on owner’s effort to dissuade defendants and his inviting them into his house, not showing consent to their unlawful purpose, was without merit. '</p> <p>Í. Damages <&wkey;184, 192 —Driving Away Ten ant — E VIDEN CEi</p> <p>In such action, evidence held not to sustain a claim for damages for vexation and humiliation, or for damages suffered by plaintiff through illness of his wife.</p> <p>5. Damages <&wkey;184r — Driving Away Tenant —Evidence.</p> <p>In such action, wherein the wife of the owner intervened, evidence held not to support her, claim for $1,000 damages for shock, annoyance, sickness, and prolonged mental suffering.</p> <p>Leche, J., dissenting. ,</p>

Théard, Judge. Suit by William P. Richardson against the Liberty Oil Company and the Board of Control for the New Basin Canal and Shell Road to annul a contract whereby the Board leased to the Oil Company certain land, and to enjoin the lessee from occupying or improving such land. Judgment for plaintiff, and defendants appeal.

T. Cunningham, Judge. Suit by Felix W. Beck and others against the Natalie Oil Company and others. From judgment dismissing the suit, plaintiffs appeal.

Information was filed against Ben Lieber, his exception to the court’s jurisdiction was sustained, the bill of information was quashed, and accused was discharged, and the State, on relation of C. J. Ellis, District Attorney, applies for writs of certiorari and mandamus directed to John B. McIntosh, Judge Seventh Judicial District Court, Parish of Bichland.

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Action by the Elks Theater Company against the City of New Iberia. From the judgment, defendant appeals.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; Cas Moss, Judge.</p> <p>Suit by T. E. Fincher against the Chicago, Rock Island & Pacific Railway Company and others. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Twenty-Eifth Judicial District Court, Parish of Tangipahoa; S. Schofield Rownd, Judge.</p> <p>Action by Mrs. M. P. Granger against the Illinois Central Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Nineteenth. Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Proceeding by George Henderson, Sheriff and ex officio Tax Collector, against the Southwestern Traction & Power Company. Judgment for defendant, and plaintiff appeals.</p>

C. W. Ellis, Judge. Suit by Victor Cornille & De Blonde and others against R. G. Dun & Co. Defendant’s exception to the mode of service of citation sustained, and plaintiffs appeal.

<p> (Syllabus Toy Editorial Staff.) </p> <p>1. Courts <&wkey;224(7) — Supreme Court — Criminal Appellate Jurisdiction — Fine Imposed by Municipality.</p> <p>The Supreme Court could have jurisdiction of an appeal from a judgment of a city criminal court, convicting defendant of the violation of an ordinance of the sewerage and water board of the city of New Orleans, and fining her $20, only on the hypothesis that the appeal involved the legality or constitutionality of a fine imposed by a municipal corporation.</p> <p>2. Municipal Corporations <&wkey;175 — Sewerage and Water Board.</p> <p>The sewerage and water board of the city of New Orleans, a mere agency for the more convenient administration of the sewerage and water business of the city, is not a “municipal corporation.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Municipal Corporation.]</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Allen; Winston Overton, Judge.</p> <p>Action by Mrs. Sarah B. Tyer against the Gulf, Colorado & Sante Fé Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Ekror &wkey;>123 — Decisions Reviewable — Appellate Jurisdiction — Dismissal.</p> <p>Where the transcript discloses a verdict but no judgment pursuant thereto, either rendered or signed, no appeal lies; the appellate jurisdiction of this court does not attach; and an attempted appeal will be dismissed.</p>

Suit by C. M. Sanders and others against the Tremont Lumber Company. Decree for plaintiffs in part and for defendant in part, and plaintiffs appeal.

<p> (Syllabus by the Court.) </p> <p>1. Questions of Fact.</p> <p>Only questions of fact are presented in this case.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Master and Servant <&wkey;281 (9) — Injury to Employ^ of Stevedore — Contributory Negligence — Evidence.</p> <p>In an action by a longshoreman against his employer, a .stevedore company, for injury when a hatch cover fell into the hold, evidence held to show his negligence in assuming a dangerous position in disobedience to the orders of his superiors.</p>

Suit for injunction by Percy D. Parks and another, receivers of the Interstate Oil, Gas & Development Company, against T. R. Hughes, Sheriff, and others, with reconventional demand for damages for the issuance of the writ. Judgment for defendants dissolving the injunction and condemning plaintiffs to pay damages, and from an order that plaintiffs furnish a new appeal bond on their suspensive appeal, xilaintiffs apply for writs of certiorari, prohibition, and amendments.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin K. Schwing, Judge.</p> <p>Action by William H. Hyde and wife against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Eirst Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Miss O. Leroy was indicted for unlawfully operating a disorderly house, and, from judgment sustaining demurrer to the indictment, the State appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Taxation &wkey;>734(7) — Sale—Notice oe Delinquency.</p> <p>Where no notice of delinquency was served on the owner, the tax sale was a nullity.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.</p> <p>Suit by C. B. Croom and others against J. S. Noel and others. Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts &wkey;224 (11) — Louisiana Supreme Court — Appellate Jurisdiction — Amount.</p> <p>The Supreme Court has appellate jurisdiction in all cases where the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2,000.</p> <p>On the Merits.</p> <p>2. Husband and Wipe <&wkey;36%, 45 — Contracts — Statute.</p> <p>Save in so far as it may have been modified by Act N'o. 94 of 1916, the law of Louisiana prohibits all contracts between husband and wife, unless expressly excepted, including those which may be entered into whilst the parties are temporarily in another jurisdiction; and a contract between a husband and wife, domiciled in this state, but temporarily sojourning in another state, whereby the wife conveys her paraphernal property to her husband, to be by him held in trust for the benefit, and during the life, of a third person, is within that prohibition.</p> <p>3. Trusts <&wkey;4^CoNTRACT Creating) Trust —Enforcement.</p> <p>Apart from the incapacity of the parties, such a contract, having for its purpose the establishment of a trust estate, is prohibited and unenforceable in this state.</p> <p>4. Evidence <&wkey;448 — Parol Evidence — Bequest op Annuity.</p> <p>Whilst oral testimony may not be admissible to show that the bequest of an annuity means anything other than the language used fairly imports, it may be admissible in order to enable the court to determine some outside question, as whether an annuity previously allowed to the same beneficiary was intended to be merely secured and continued by means of the bequest, or doubled.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and Servant <&wkey;256(3) — Employers’ Liability Act — Petition.</p> <p>A widow’s petition, for damages for death of her husband in service, which did not allege that the death was by accident arising out of and in the course of the employment, showed no cause of action under the Employers’ Liability Act (Act No. 20 of 1914).</p> <p>2. Master and Servant &wkey;>256(l) — Death on Servant — Pleading.</p> <p>In a widow’s suit for her husabnd’s death in service when killed by an electric current, natural or generated, when he went into a frame building on the premises of defendant or was forced to take refuge therein from a rain, the petition, which did not explain why defendant was responsible for the husband’s being in the building at the time, though stating that the husband was in defendant’s employ, and that he had a right to be in the building, did not state a cause of action.</p> <p>3. Pleading <&wkey;34(4) — Construction Against Pleader.</p> <p>Pleadings are construed strictly against the pleader.</p> <p>4. Pleading <&wkey;8(18) — Conclusion oe Law.</p> <p>In widow’s suit for husband’s death in service, the allegation of the petition that the husband had the right to be in the building where he was killed was a mere conclusion of law, which cannot be made to serve for the allegation of a fact necessary to be alleged.</p>

<p> (Syllabus by the Court.) </p> <p>1. Master and Servant <&wkey;92(l) — Master’s Employment op Physician — Negligence op Physician — Liability op Master.</p> <p>Where an employer employs a physician or surgeon of ordinary skill and ability to attend to his employés, and pays the physician from a fund collected from the employés, and from which fund the employer derives no profit, he is not responsible in damages to an employé for mistakes of or malpractice by such physician; particularly, where it is not charged and proved that the employer was negligent in the selection of the physician.</p> <p>2. Master and Servant <&wkey;92(l)— Liability op Master — Negligence op Physician —Petition.</p> <p>A petition for damages in such case should contain allegations of neglect on the part of the employer in employing a competent physician, and that he derived some profit from the fund contributed by the employés to pay the physician. In the absence of such allegations, the petition discloses no cause of action.</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; J. E. Reynolds, Special Judge.</p> <p>Action by W. T. Baker &.Co., Limited, against Dave Davis. From a judgment refusing to recognize his homestead exemption, defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1.Real Actions <&wkey;8(2) — Petitory Action-Burden of Proof.</p> <p>In a petitory action, the burden of proof is on plaintiff, and he can recover only on the strength of his own title, and not on the weakness of his adversary’s._</p> <p>2. Boundaries &wkey;>33 — Action — Burden of Proof.</p> <p>In an action in boundary, the law requires proof from each of the contiguous owners, and the burden is divided.</p> <p>3. Boundaries <&wkey;39 — Action in Boundary —Investigation by Exper-ts.</p> <p>In a boundary suit, the court, when not satisfied either from the lack of evidence or the weakness of its probative force, may cause of its own motion an investigation by experts to ascertain the facts necessary to reach an intelligent conclusion and render proper decree.</p> <p>4. Boundaries <&wkey;39 — Boundary Suit — Investigation by Experts.</p> <p>In a petitory suit, changed by the manner of conducting trial into an action in boundary, the evidence being such that the judge cannot render a decision thereon, he may properly cause an investigation by experts to ascertain the facts.</p> <p>5. Boundaries <&wkey;8 — Action in Boundary —Uncertainty—Right to Determination —Statute.</p> <p>In boundary suit, though it seems impossible to determine with mathematical certainty the location of the disputed line, plaintiffs are entitled to have the limits of their property fixed under C. O. art. 823.</p> <p>6. Boundaries <&wkey;37 (3) — Location—Sufficiency of Evidence.</p> <p>In a boundary suit involving ownership of an oil well, evidence hold sufficient to justify decree for plaintiffs.</p> <p>7. Mines and Minerals <&wkey;73 — Oil Lease-Inclusion of Well — Presumption.</p> <p>Where, when an oil lease was executed from plaintiffs to a defendant oil company, the land on which a well had been drilled was claimed by another defendant company, which believed the well was inside its boundary line, though neither it nor plaintiffs knew the truth of the matter, in view of the circumstances, there is a reasonable presumption that the well was included in the lease.</p>

<p> (Syllabus by the Court.) </p> <p>1. Descent and Distribution <&wkey;27 — Wills <&wkey;10 — Succession—Capacity to Take— Presumption — Course of Nature.</p> <p>A child bom capable of living is, by a provision of Civil Code, art. 186, and according to the laws of nature, presumed to have been conceived at least 180 days before the birth, and is therefore born in time to receive, by inheritance or testamentary disposition, an estate of a person who died within 180 days before the birth of the child.</p> <p>2. Wills <@=^497(7) — Construction—Devisee —Statute.</p> <p>The following testament is construed to include a grandchild born several years after the date of the will and on the 172d day after the death of the testator, viz.: “I give and be-bequeath all the property I may own in Louisiana at the time of my death to my grandchildren, issue of the marriage of my only daughter, Mary, with Alfred E. Lewis.”</p> <p>3. Descent and Distribution <&wkey;71(l) — Succession — Status as Heir or Legatee-Action against Coheirs or Colegatbes.</p> <p>One who asserts title by inheritance or under a will that has been admitted to probate may prove his or her status as an heir or a legatee, as well in a direct action for recognition of title or for partition, against a coheir or co-legatee under an universal title, as in probate proceedings.</p> <p>4. Wills <&wkey;260 — Nullity of Testament-Prescription — Application.</p> <p>The prescription of 5 years, that may be pleaded against an action for the nullity of a testament, does not apply to a partition suit in which the plaintiff claims title under and by virtue of a testament and asks that it be interpreted in her favor.</p> <p>5. Tenancy in Common &wkey;15(l) — Possession by Usufructuary — Prescription.</p> <p>The possession of property by an usufructuary as such is for the benefit of all of the co-owners, and cannot serve as a basis for the plea of prescription of ten years urged by one or some of the co-owners against another of them.</p> <p>6. Adverse Possession <&wkey;78 — Wills <&wkey;522 —Disposition to Class — Prescription.</p> <p>A testamentary disposition in favor of a designated class of persons collectively is not, upon its face, a transfer of title to any particular or designated member or members of the class, and therefore cannot serve as a basis for the prescription of 10 years acquirendi causa, pleaded by one or some of the members against another member of the class designated.</p> <p>7. Adverse Possession <&wkey;74 — Title—Judgment — Prescription.</p> <p>An ex parte order or judgment, sending heirs or legatees into possession of an estate, is not, and does not purport to be, a transfer of title, and therefore cannot serve as a basis for the prescription of 10 years acquirendi causa.</p> <p>8. Limitation of Actions <&wkey;72(3) — Pre.scription — Infancy.</p> <p>The prescription of 30 years, referred to in articles 1305, 3499, and 3548 of the Civil Code, is suspended during the minority of a person against whom it might otherwise operate.</p> <p>9. Appeal and Error <&wkey;890 — Plea of Estoppel in Appellate Court — Consideration.</p> <p>A plea of estoppel filed originally in an appellate court, based upon allegations of fact antedating the trial of the case, cannot be allowed or considered unless the record contains evidence of the facts alleged.</p> <p>On Application for Rehearing.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>10. Partition ¡&wkey;S3 — Collation — Effect of Refusal to Consider Plea of Estoppel.</p> <p>Where the Supreme Court did not consider the merits of- issues raised or attempted to be presented by plea of estoppel filed therein, its refusal to consider the plea would not prevent defendant’s request for a collation, by way of opposition to the homologation of the partition proceedings.</p>

<p> (Syllabus by the Court.) </p> <p>Limitation of Actions &wkey;?28(l) — Payment of Manager’s Personal Debts.</p> <p>An action by a corporation to recover from its_ manager the amount of his personal debts, paid by him or under his direction with' funds of the corporation and without authority, is subject, not to the prescription applicable to the original debts so paid, but to that of ten years, under article 3544 of the Civil Code.</p>

T. Cunningham, Judge. Jactitation suit by William De Moss against A. N. Sample, S. G. Sample, and the Producers’ Oil Company, converted into a petitory action by defendants’ claim of ownership to oil and gas and reserved mineral rights. Judgment for defendants, and plaintiff appeals.

Action by Paul T. Talbot against the Now Orleans Land Company. A judgment of the Court of Appeal, Parish of Orleans, affirmed a judgment of the district court, in favor of plaintiff, and defendant applies for a writ of review.

, Judge. Action for personal injury by John B. Miller against the Tall Timber Company. From a judgment rejecting his claim for damages, plaintiff appeals.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. F. Blackman, Judge.</p> <p>Action by Richard Winbush against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by the .Court.) </p> <p>1. Contracts @=>350(1) — Recovery—Suffi- . ciency of Evidence.</p> <p>This case presents only questions of fact.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Appeal and Error @=>204(1) — Admission of Evidence — Objection.</p> <p>Where evidence was offered and admitted without objection by defendant, it was too late to urge the objection on appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Railroads <@=278(1) — Injury on Track-Contributory Negligence.</p> <p>Plaintiff, who boarded defendant’s standing train to talk with a passenger, and, after alighting, started across a main track toward the station, knowing that an incoming train was due, and who had been warned of danger by the station agent and by the whistle of the incoming train, and who might have stood in safety between the two trains had he stopped, looked, and listened, was guilty of contributory negligence defeating his recovery for injury when struck by incoming train.</p> <p>2. Railroads <©=27S(6) — Personal Injury-Last Clear Chance.</p> <p>In such ease, where it was impossible for tho engineer of the train which struck plaintiff to have seen the danger in time to have avoided the accident, the doctrine of last clear chance had no application.</p>

Boone, Judge. Suit by the Pure Oil Operating- Company against the Gulf Refining Company of Louisiana and others. From judgment for plaintiff perpetuating injunction, defendants appeal.

<p> (Syllabus by the Court.) </p> <p>1.Libel and Slander <$=140 — Slander oe Title — Pleading.</p> <p>The defendant, in an action for slander of title, who does not deny that the plaintiff is in possession of the property, or plead that the plaintiff has therefore no right of action, must either admit or deny the alleged slander — that is, either admit or deny that he disputes the plaintiff’s title — and, if he claims a real right in the property, he presents for decision the question of validity of his claim.</p> <p>2. Libel and Slander <$=140 — Slander oe Title — Answer—Denial.</p> <p>A denial, in the answer of the defendant in an action for slander of title, that the plaintiff is in possession as owner of the property, is not a denial that the plaintiff is in possession.</p> <p>3. Estoppel <$=26 — Bt Deed.</p> <p>The defendant sold to the plaintiff a tract of land of which he had no title, declaring that he reserved the mineral rights. The plaintiff, being informed thereafter that he had no title, bought the property from the party who owned it, and sued the defendant for claiming the mineral rights. The latter pleaded that the plaintiff was estopped, by the declaration in the first deed that the vendor reserved the mineral rights,, from disputing the latter’s title to the mineral rights. Held, that the plea of estoppel was not well founded, because the plaintiff had not conveyed, or pretended to convey, the mineral rights to the defendant, had not received any consideration for the supposed reservation of the mineral rights, and was therefore not under obligation to defend the defendant’s claim to the mineral rights.</p>

Wilson, Judge. Suit for partition by H. S. Nichols against Mrs. E. S. Bryan and others, wherein the Britton & Koontz Bank .filed opposition. From the judgment, there is an appeal.

E. Payne, Mayor. U. S. Bartmess was convicted .of the violation of an ordinance requiring payment of street tax or work on street, and condemned to pay the costs of the prosecution or to be imprisoned. Motion to quash affidavit overruled, and he appeals.

S. Rownd, Judge. Ernest Delpit and others caused the succession of Victoria White Mingo to be opened, and obtained a judgment that they be put in possession as the heirs at law, and ruled the German American Branch of the Canal Louisiana Bank & Trust Company to show cause why it should not pay over an amount on deposit, and decedent’s surviving husband, Smiley Mingo, intervened. Judgment for intervener, and the heirs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. New Trial &wkey;5(L72 — Verdict—Amount.</p> <p>Although the jury on a second trial, ordered mainly to permit defendant to show contributory negligence, was not bound by the verdict found in the previous trial, it could not increase amount of recovery on the ground that defendant, alleging contributory negligence on the part of a deceased employé, failed to produce any evidence thereof, which inferentially it protended to be able to produce when it strenuously complained of the ruling under which such testimony was excluded.</p> <p>2. Appeal and Error <&wkey;1175(2) — Termination op Issues — Instructions.</p> <p>In civil cases the Supreme Court will apply the law which is pertinent to the facts and proceed to a proper and final decision of all the issues regardless of the instructions given to the jury.</p> <p>On Rehearing.</p> <p> (Syllabus by the Court.) </p> <p>3. Courts <@=^97(5) — Death <&wkey;95(3) — Federal Employers’ Liability Aci>-Amount of Recovery.</p> <p>The state courts are obliged, by rulings of the Supreme Court of the United States, to fix the amount of compensation, if compensation be due to the beneficiaries of a deceased employé, under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-S665]), at the present or cash value of what the employ'd might reasonably have contributed to the support of the beneficiaries during the term of his life expectancy, according to the evidence. The right of recovery being limited to the pecuniary loss, that loss is to be determined or computed by discounting the lost future benefits, at a fair or reasonable rate at which the money might be loaned or invested safely at interest, for each year of the life expectancy.</p> <p>4. Death <&wkey;95(3) — Federal Employers’ Liability Act — Damages—Life Expectancy.</p> <p>In determining the life expectancy of a locomotive engineer, according to the expectation table constructed from the American Experience Table of Mortality, the court adopts the rule of the insurance companies of adding eight years to the age of the man because of his hazardous occupation.</p> <p>5. Death <&wkey;95(3) — Federal Employers’ Liability Act — Value of Future Benefits —Computation.</p> <p>The formula adopted in this case for computing the present value of future benefits lost by the beneficiaries of a deceased employé in awarding compensation under the federal Employers’ Liability Act is as follows, viz.: Subtract from the annual wages the employé was earning the annual cost of his maintenance, according to the evidence, and multiply the remainder by the number of years of his life expectancy. The result discounted at the legal rate of 5 per cent, for the term of the life expectancy, using annual periods or rests, is the loss of future benefits reduced to present value.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>6. Death &wkey;>105 — Verdict — Apportioning Damages.</p> <p>The jury is not required by the federal Employers’ Liability Act to apportion the award of damages among the beneficiaries of the deceased employé.</p>

Action by Pierre Puyoulet against Mrs. Alfred Gehrke. Plaintiff’s demand was refused in the district court; judgment of the court of appeal reversed the judgment below, and defendant applies for certiorari or writ of review.

R. Land, Judge. Separate actions by D. H. Raines and by Joe Herndon against C. E. Dunson and others. Judgment for defendants, dismissing the two actions, and plaintiffs in each action appeal, and R. T. Layne, styling himself an “intervener,” seeks • general relief.

<p>Appeal from Sixth .Judicial District Court, Parish of Ouachita; Ben C. Dawkins, Judge.</p> <p>Action by the Union National Bank, by H. F. Thomas, receiver, against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Jerry Cline, Judge.</p> <p>Bon Coley and Jim Perry were convicted of operating a blind tiger, and they appeal.</p>

King, Judge. Executory proceeding by the Citizens’ Homestead Association against Mrs. Sarah Dugue, in which Miss Dilian J. Johnston obtained an injunction, and from a judgment dissolving and setting aside the injunction for the insufficiency of the surety on the injunction bond plaintiff in injunction appeals.

C. W. Ellis, Judge. Suit by John Behan, employé, against the John B. Honor Company, Limited, employer, and the New Amsterdam Casualty Company, insurer, for compensation under the Employers’ Liability Act. Compensation allowed, and defendants appeal, and plaintiff, answering the appeal, prays that the compensation be increased to the amount sued for.

<p> {Syllabus by the Court.) </p> <p>1. Tutor or Guardian — Right of Action.</p> <p>“Any person who has been, or shall be, appointed tutor or guardian of any minor residing out of the state of Louisiana, but within the United States, and who has qualified as such in conformity with the laws of the state or country where the appointment was made, shall be entitled to sue for and recover any property, rights, or credits belonging to the minor in this state upon his producing satisfactory evidence of his appointment as aforesaid, without being under the necessity of qualifying as tutor of the minor according to the laws of Louisiana.” Civ. Code, art. 363.</p> <p>■ 2. Infants <&wkey;78(l) — Surviving Parent — Suit in Behalf of Child.</p> <p>A surviving parent, who is not the qualified tutor or tutrix of his or her minor child, cannot sue on behalf of his or her minor child.</p> <p>3. Parties <&wkey;76(l) — Objection to Capacity of Plaintiff — TIme for Filing.</p> <p>An exception to the capacity of a plaintiff to sue and stand in judgment must be filed in limine.</p> <p>4. Limitation of Actions <&wkey;85(2)' — Prescription — Suspension — Fugitive from Justice.</p> <p>Being a fugitive from justice does not suspend prescription as to claims of persons residing in other states against the fugitive from this state.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Bills and-Notes <&wkey;534^-ATTOBNEY’s Fees— Necessity eok Suit — Administration.</p> <p>One mortgage note recited that attorney’s fees were to be due on default in payment at maturity in event that note was placed in hands of attorney for collection, or suit was brought thereon, and other notes recited that fees were to be due in event that notes were sued on or placed in the hands of an attorney or collector for collection. The maker died, and the holder, living in a different parish from that where the succession was pending and the administrator resided, wrote the latter demanding payment, and the administrator told him the notes would be paid in due course of administration, and the holder expressed his willingness to wait if_ the attorney of the succession would give him in a letter the assurance that his rights would be protected, and, the letter not having been received, the holder at the expiration of the time fixed for its furnishing placed the notes in the hands of an attorney. Held, that a necessity for suit existed, and attorney’s fees were due from the administrator to the holder.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. ThSard, Judge.</p> <p>Suit for divorce by Adrian Hava against Mrs. Marie Ernestine Chavigny. Exception of no cause of action sustained, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and Servant <&wkey;359 — Employers’ Liability Act — Application—Notice.</p> <p>Employers’ Liability Act (Act No. 20 of 1914) § 3, par. 3, providing that parties to the contracts of employment covered by the act shall be presumed to have intended to be subject to its provisions, unless otherwise stipulated in the contract, or unless either party gives the other notice to the contrary not less than 30 days pri- or to the accident, applies where an injured employe gave notice only after the accident, but within 30 days of the date of employment.</p> <p>2. Master and Servant &wkey;393% — Employers’ Liability Act — Application.</p> <p>Where an employer fully complied with the medical aid requirements of the Employers’ Liability Act (Act No. 20 of 1914), § 8, par. 5, during the first two weeks after the injury, it was not estopped from invoking the benefits'of the act.</p> <p>3. Master and Servant &wkey;>398 — Employers’ Liability Act — Notices.</p> <p>The only function of Employers’ Liability Act (Act No. 20 of 1914) § 12, relating to the posting of notices as to the time for notice of injury, and as to effect of failure to post notices, is to stay the running of the 15 days allowed for notice of injury, and the only consequences of a failure to post such notices is that the employé, under section 11, has 6 months instead of 15 days within which to give notice.</p> <p>4. Master and Servant <&wkey;347 — Employers’ Liability Act — Constitutionality.</p> <p>The Employers’ Liability Act (Act No. 20 of 1914) is not invalid as making the employé, without his consent, a party in a contract entered into by the employer with an insurance company, as the employé is not made a party to such contract, but is merely given a right of action thereon for his additional security, and as under the express provision of section 41 the nullity of such provision would not entail the nullity of the entire act.</p> <p>5. Master and Servant &wkey;>347 — Employers’ Liability Act.</p> <p>Employers’ Liability Act (Act No. 20 of 1914) § 3, par. 3, providing that every contract of the kind covered by the act is presumed to have been intended to come thereunder, unless express provision is made to the contrary in the contract, or a notice of a contrary intention is given by the employé to the employer 30 days before the accident, is not beyond the legislative authority as a prescription established in-the interest of foreign insurance companies, as the function of the notice is not to cut off' a right of action by prescription, but to take the employment contract from under the operation of the act.</p> <p>6. Master and Servant ¡&wkey;347 — Employers’ Liability Act — Right oe Action — Notice.</p> <p>The power of the Legislature to provide, as in Employers’ Liability Act (Act No. 20 of 1914) § 3, par. 3, that an employé in a factory shall have no right of action for personal injury in the course of his employment, unless he gives the employer notice of the injury within reasonable time after its occurrence, cannot be doubted.</p> <p>7. Statutes &wkey;>114(2) — Subject and Title-Constitutional Provisions.</p> <p>The Employers’ Liability Act (Act No. 20 of 1914), prescribing employers’ liability for injuries to employes, the compensation and procedure, etc., expresses the object in its title, to which object everything contained in the act is germane, and hence is not unconstitutional because containing more than one object, and because several objects contained therein are not expressed in its title.</p> <p>8. Master and Servant &wkey;>347 — Employers’ Liability Act — Rights op Action —Constitutionality.</p> <p>Employers’ Liability Act (Act No. 20 of 1914) is not unconstitutional because taking away an employe’s right of action under the general law of torts.</p> <p>Monroe, C. J., dissenting.</p> <p>On Rehearing.</p> <p> (Syllabus by the Court.) </p> <p>9. Master and Servant <&wkey;385(11) — Employers’ Liability Act — Construction.</p> <p>Act No. 20 of 1914, p. 44, known as the Employers’ Liability Act, or Compensation _ Act, does not provide for serious permanent injuries which result in disfigurement about the face or head; or to the destruction of the usefulness or the impairment of a member or any physical function of the body.</p> <p>10. Amendment to Employers’ Liability Act.</p> <p>The said act has been amended so as to cover such cases by Act No. 243 of 1916, p. 512.</p> <p>11. Master and Servant <&wkey;349 — Personal Injury — Recovery op Damages — Injury to Scalp.</p> <p>The scalping of an employé, which occurred while performing services arising out of and incidental to his employment in the course of his employer’s business, prior to the amendment of the statute, entitles him to damages, and not to compensation under the Employers’ Liability Act.</p> <p>Provosty, J., dissenting. O’Niell, J., dissenting in part.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Bail <&wkey;57 — Appearance Bond — Date of Offense.</p> <p>Where the affidavit, made April 28, 1917, charged an offense committed on October 23, 1917, and the condition of the appearance bond was to answer an offense committed October 23, 1916, the error in the affidavit was merely clerical, the date therein being an impossible one, and did not relieve the surety, the bond itself supplying its date.</p> <p>2. Bail <&wkey;49 — Appearance Bond — Order Fixing Amount.</p> <p>That the record fails to show any order fixing the amount of appearance bond does not relieve the surety from a forfeiture, where the bond was ordered by justice of the peace, as a justice court, not being a court of record, no proceedings therein need be in writing, and the acceptance of the bond and its transmission to the district court furnished sufficient proof that it was taken by order of the justice of the peace.</p>

<p> (Syllabus by the Court.) </p> <p>Master and Servant @=¿153(1) — Negligence —Failure to Warn Inexperienced Servant.</p> <p>“It is actionable negligence for a master not to warn an inexperienced servant of the dangers of the employment, and instruct him how to avoid them.”'</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. E. Brunot, Judge.</p> <p>•Suit by George Osmond Maher against the Louisiana Railway & Navigation Company. From judgment of dismissal, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.j </p> <p>1. Jury <&wkey;79(l) — Drawing Names — Restoration on Recess.</p> <p>Where five names were successively drawn from the venire box, and the five jurors successively called, but they failed to appear, and the judge recessed over to the afternoon-, the names which had been taken out of the box had to be restored.</p> <p>2. Criminal Law <&wkey;918(10, 11) — Drawing Jury — Failure to Put Back Names — Late Objection — New Trial.</p> <p>Where, after all the names in the venire box had been drawn, it was discovered that by inadvertence the names of the jurors who had.been serving on other juries in the morning had not been put back into the box, which was immediately done, and the drawing proceeded with, defendant not objecting, his objection in motion for new trial came too late, as he had taken the chance of a favorable verdict.</p>

Suit by the Tremont Lumber Company against A. H. May, Assessor, and others. From a judgment dismissing suit and dissolving injunction, plaintiff appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; Oas Moss, Judge.</p> <p>Suits by the Louisiana Central Lumber Company and Davis Brothers Lumber Company, Limited, against A. H. May and others. From the judgment, plaintiffs appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Indictment and Ineormation &wkey;>159(4)— Change by Trial Judge — Designation oe Parties.</p> <p>Under authority of section 1047 of the Revised Statutes, permitting the amendment of an indictment to correspond with the evidence heard during a criminal trial, the trial judge may, on motion of the district attorney, order a change made in the name in the indictment of both the victim and the person accused of murder, and may order that the trial proceed as if no amendment had been made, if the judge finds that the change is not material to the merits of the case and could not prejudice the defendant; provided, of course, no change shall be made as to the identity of either the person accused or the victim of the crime.</p> <p>2. Criminad Law &wkey;>720(9) — Triad — Argument.</p> <p>When the defendant on trial for murder has testified that he fired two shots, killing two men, it is permissible for the district attorney to argue to the jury that the killing of the two men was evidence of malice on the part of the defendant on trial for the murder of one of them.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Beauregard; Winston .Over-ton, Judge.</p> <p>James Williams was convicted of rape, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Constitutional Law <&wkey;13 — Statutes &wkey;>183 — Literal Interpretation.</p> <p>In the construction of laws, whether constitutional or statutory, a court is not bound to a literal interpretation, where it would lead to an absurdity or to a plain violation of the spirit and purpose of the enactment.</p> <p>2. Officers &wkey;>30 — Forfeiture—-Constitutional Provisions.</p> <p>Article 164 of the Constitution is not to be interpreted as meaning that a citizen, holding a state office, upon whom under the Constitution and laws of the United States, the President, in aid of a great and necessary war, imposes additional duties, forfeits such office by reason of his acceptance of that which it would be unlawful and unpatriotic for him to decline.</p> <p>3. Officers <&wkey;30 — Vacation of Office-Acceptance of Another Office.</p> <p>A clerk of a district court and ex officio jury commissioner does not vacate those positions by accepting an appointment as a member of a “local board,” provided for under Act Cong. May 18, 1917, c. 15, 40 Stat. 76, known as the “Selective Service Act.”</p> <p>4. Criminal Law &wkey;>1166(2) — Grand Jury— Failure to Impanel.</p> <p>The Constitution (article 117) provides that a grand jury shall be impaneled in each parish (except Cameron) twice a year, but it also provides that a grand jury, once impaneled, “shall remain in office until a succeeding grand jury is impaneled”; hence the failure of the judge to impanel a grand jury at the expiration of six months does not, of itself, call for the reversal of a conviction.</p> <p>5. Jury <&wkey;64— General Venire — Number of Names.</p> <p>The law does not require that 300 names shall be placed at one time in the general veñire box after it is once so filled; the requirement is that the names in the box shall be supplemented from time to time, so as to keep 300 names there from one session of court to another.</p>

N. Sandlin, Judge. Suit by the Bank of Cotton Valley against J. F. Mclnnis, as principal, and the American Bonding Company and the Fidelity & Deposit Company, as sureties. Judgment for plaintiff, and the sureties appeal.

Action by the New Orleans Silica Brick Company against John Thatcher & Son, wherein the Globe Indemnity Company answered. Judgment for plaintiff, and to review ruling granting new trial, and to reinstate the judgment, or for trial as between plaintiff and defendants alone, plaintiff applies for writs of certiorari and mandamus.

<p> (Syllabus by Editorial Staf.) </p> <p>1. Railroads <&wkey;330(2) — Crossing — Warning by FlagMan — Reliance.</p> <p>Where a' railroad continuously kept a flagman at a crossing where the view of passing trains was obstructed, one who was familiar with such conditions might rely on the flagman’s warning.</p> <p>2. Railroads <&wkey;348(3) — Crossing — Warning by Flagman — Evidence.</p> <p>In an action for personal injury when defendant’s railroad motorcar struck the buggy in which plaintiff was riding and injured him-, evidence held not to show that defendant’s flagman had given warning in time to prevent the accident.</p>

<p> (Syllabus by the Court.) </p> <p>1. Sales &wkey;>l(4) — Sale of Oattle — UNCERTAINTY — Numbeb—W EIGHT.</p> <p>An agreement on the part of one party to sell to another 300 head of cattle, or as near that number as the first party could round up and deliver in the time specified, at a fixed price per pound, is not null for uncertainty of the number or weight of the cattle, notwithstanding the agreement was that the second party would accept whatever number of the cattle the first party might succeed in delivering at the scales, in his effort to deliver 300, in the time stipulated.</p> <p>2. Damages <&wkey;81 — Liquidated Damages— Earnest Money.</p> <p>A payment of $100 by a party agreeing to buy property by weight, at a price to exceed $8,000, must be regarded, in the absence of a definite agreement or understanding of the parties as to the purpose of the payment, as a forfeit or giving of earnest, and as fixing the liability or loss that either party might incur by receding from the agreement of sale.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and Servant <&wkey;405(l) — Employers’ Liability Act^-Reoovery — Proof.</p> <p>Under Employers’ Liability Act (Act No. 20 of 1914) § 18, par. 4, holding that the judge in the trying of suits under that act is not bound by the usual common-law or statutory rules of evidence, it is incumbent upon a claimant to prove the facts necessary to sustain his demand and that the accident occurred while the employé was performing services, arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation within section 2.</p> <p>2. Master and Servant <&wkey;375(l) — Workmen’s Compensation — Injury in Course op Employment — Test.</p> <p>It is impossible to formulate an _ absolute test for determining whether an accident occurred while a workman was acting within the scope of his employment, as no one test can govern all cases, and as each case must be governed by the particular facts.</p> <p>3. Master and Servant <&wkey;405(4) — Employers’ Liability Act — Accident Arising- out OP AND IN THE COURSE OP THE EMPLOYMENT —Evidence.</p> <p>In a widow’s action for compensation under the Employers’ Liability Act for the death of her husband, an employé of a cooperage company, who temporarily went out of the building in which he worked and was killed on the employer’s switch track, evidence held to show that the accident did not arise out of and in the course of his employment.</p> <p>4. Master and Servant <&wkey;378 — Employers’ Liability Act — Defenses.</p> <p>Employers’ Liability Act, § 28, withholding compensation for injury caused by the em. ployé’s willful intention to injux-e himself, his intoxication or deliberate failure to use’ adequate guards, or his deliberate breach of statutory safety regulations, does not exclude all other defenses, and an employer may show that the accident was not one arising.out of and in the course of the employment, within section 2.</p> <p>O’Niell, J., dissenting.</p>

Wortham, Judge. Suit by the Miorgan’s Louisiana & Texas Railroad & Steamship Company against th6 Himalaya Planting & Manufacturing Company, and August Thibeaut, receiver. From judgment for plaintiff for admitted indebtedness, but rejecting claim of a vendor’s privilege, plaintiff appeals.

<p> (Syllabus by the Cowl.) </p> <p>1. Indictment and Information &wkey;>121(2)— Intoxicating Liquors <&wkey;143 — Keeping “Blind Tiger.” — Elements of Offense— Statute.</p> <p>Thé ingredients of the offense of keeping a “blind tiger,” as defined by Act No. 8 (Ex. Sess.) of 1916, § 1, are the keeping of a place in pro- ¡ hibition territory where spirituous, malt, or intoxicating liquors are kept for sale, barter, exchange, or habitual giving away, or for sale, barter, exchange, or habitual giving away in connection with any business conducted at such place; and, where the ingredients specified in the first clause are set out in a bill of information, the defendant is not entitled to a bill of particulars explaining that it is not .intended to charge him with the commission of the offense in any other capacity than as so alleged, or with keeping such liquors for such purposes in connection with any business conducted at such place, or specifying the particular brands of liquors with the keeping of the place for the sale, barter, etc., of which he is charged. The gist of the offense consists of the keeping of a “blind tiger,” and a bill of information which fully informs a defendant of the ingredients of that offense furnishes him with all the information needed for the preparation of his defense.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Blind Tiger.]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Ckiminal Law &wkey;>1128(2) — Appeal—Review — Matter Not in Record.</p> <p>Where defendant .filed in the Supreme Court a purported certified copy of an internal revenue license paid by him, and alleged to have been offered at the trial, it could not be considered where not referred to in transcript.</p>

Suit by the Illinois Central Railroad Company against the New Orleans Terminal Company. From a judgment of dismissal, plaintiff appealed to the Court of Ax>peal, which reversed the judgment and remanded the case with leave to plaintiff to amend, and defendant applies for certiorari or writ of review.

R. Land, Judge. Suit for partition by Samuel W. Vance,' curator of James Washington Vance, an interdict, against W. E. Noel, Jr., and others, in which defendants called W. E. Taylor Company, Incorporated, in warranty. Judgment for plaintiff, and from an order dismissing the call in warranty and overruling exceptions of no cause of action, etc., defendants appeal.

H. Wilson, Judge. L. Edward Clark was found guilty of failing to provide for the support of his minor child, and was ordered to pay $50 a month for its support, and on his default he was ordered to furnish a guaranty bond, and in default to be held for further orders of the court. From an order of commitment until he furnished a bond, he applied for writs of certiorari and prohibition to the juvenile court for the parish of Orleans.

<p> (Syllabus by the Court.) </p> <p>1. Municipal Corporations <@=>111 (4) — Partial Invalidity — Keeping Disorderly House.</p> <p>The first section of a municipal ordinance declaring it unlawful to operate a house of prostitution or assignation being plain and legal, the defendant condemned under that section cannot sustain an objection of illegality to the whole ordinance on the ground that the other sections are illegal.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Municipal Corporations <@=>594(1) — Ordinance — Misdemeanors.</p> <p>The law does not require that municipalities should grade misdemeanors or minor offenses by ordinances defining and penalizing them.</p> <p>3. Constitutional Law <§=>165 — Obligation oe Contract.</p> <p>An ordinance making it an offense to operate a house of prostitution and prescribing the penalty therefor and under which the mayor may order the occupants to remove does not in any manner impair the obligation of a contract.</p> <p>4. Constitutional Law <@=>104 — Vested Rights.</p> <p>Such ordinance does not divest one prosecuted thereunder of any vested rights in the real property which she owns and occupies.</p> <p>5. Constitutional Law <§=>250 — Disorderly Conduct <@=>2 — Equal Protection oe the Laws.</p> <p>Such ordinance was not harsh, unreasonable, and discriminating’, so as to deny the accused to equal protection of the laws in violation of the state and federal Constitution.</p> <p>6. Constitutional Law <@=>257 — Disorderly Conduct <@=>2 — “Due Process oe Law.”</p> <p>The proceeding by affidavit against the person charged with having committed an offense is “due process of law.”</p>

<p> (Syllabus by Editorial Staf.) </p> <p>On Motion to Dismiss Appeal.</p> <p>1. Courts @=>224(7) — Supreme Court — Appellate Jurisdiction — “Tax, Toll or Impost.”</p> <p>A suit in which the constitutionality or legality of a local assessment or forced contribution is contested, though the amount sued for is less than $2,000, is within the Supreme Court’s jurisdiction, given by Const, art. 85, of all cases in which the constitutionality or legality of any “tax, toll or impost” is in contestation, regardless of the amount involved.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases. First and Second Series, Tax.]</p> <p>On the Merits.</p> <p>2. Municipal Corporations @=>449(2) — Street Pavement — Ordinance Levying Assessment — Amount — Right to Complain.</p> <p>Where the clerk on the adoption of an ordinance accepting paving work and levying an assessment neglected to record the yea and nay vote in the minutes of the meeting, the omission and the subsequent correction of the record of adoption did not injure defendant, a person assessed, and the correction should have the same effect as the record of the yea and nay vote at the proper time would have had.</p> <p>3. Municipal Corporations @=449(2) — Paving Improvements — Ordinance — Assessment — “Aeter the Contract has been Awarded.”</p> <p>Under Act No. 147 of 1902, § 2, providing that after the contract has been awarded the council shall provide by ordinance for an assessment of all the realty abutting a sidewalk, curbing, or portion thereof to be paved or improved, the assessment is not illegal because the ordinance levying it was not enacted before the council ordered the paving and curbing to be done; the term “after the contract has been awarded” meaning after ordering the work to be done, and the expression, “abutting the sidewalk, curbing or portion thereof to be paved or improved,” being only descriptive or indicative of the property on which the assessment is to be levied.</p> <p>4. Municipal Corporations @=339(2) — Paving Improvement — Assessment—validity —“One Year prom the Time That the Contract is Awarded.”</p> <p>An assessment for a paving and curbing improvement is not invalid because the ordinance calling for bids declared that the contract would be let for work to be completed within one year from the time the contract was awarded, where the contract date allowed the contractor one year from the date thereof in which to complete the work; the term “one year from the time that the contract is awarded” properly meaning, not one year from the time of accepting a bid, but one year from the date of the contract to be signed.</p> <p>5. Appeal and Error @=173(15) — Review-Objection Below.</p> <p>A contention by defendant in a town’s suit for the benefit of a paving contractor that the work was not completed within one' year from the date of the contract cannot be considered, where it was not urged in defense to the suit.</p> <p>6. Municipal Corporations @=568(3) — Completion op Improvement — Time—Evidence.</p> <p>Such contention held not supported by the evidence.</p> <p>Monroe, C. J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>1. Sequestration <@=>21 — Wrongful Sequestration — Petition—Sufficiency.</p> <p>A cause of action is nresented in a petition which alleges that defendant unlawfully trespassed upon the premises of plaintiffs, and took unlawful possession of the property of plaintiffs, and moved same from said premises to his own place of business.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Sequestration <@=>21 — Wrongful Sequestration — Plea—Estoppel.</p> <p>In an action for trespass in illegally entering plaintiffs’ home and taking illegal possession of their personal property, a plea of estoppel to the part of the petition asking damages for the wrongful issuance of a writ of sequestration was properly sustained, where plaintiffs had paid the claim demanded in thht suit.</p> <p>8. Sequestration <@=>21 — Wrongful Sequestration-Plea of Estoppel.</p> <p>In such action, a plea of estoppel, based on plaintiffs’ payment of a demand in a sequestration suit, was wrongfully sustained as the part of the claim for damages from the trespass.</p>

IVilson, Judge. Prentice E. Edrington, Jr., was found guilty of unlawfully neglecting and refusing to provide for the support of his minor child, and ordered to pay alimony for her support.

Charlie Desimone was convicted of an offense and sentenced to pay a fine of $250 and to imprisonment for six months, and on his failure to pay the fine to three months’ additional imprisonment, and he appeals.

King, Judge. Suit by Peter John Ghisalberti against Dominica Calamari, his wife, for separation from bed and board, in which defendant as plaintiff in reconvention sought a separation, and in which, pending the trial, defendant ruled plaintiff to show cause why he should not pay alimony for the support of herself and child. From an interlocutory decree condemning plaintiff to pay alimony in a certain sum, he obtained a suspensive appeal.

C. W. Ellis, Judge. Action by Paul W. Maloney and others against Albert Aschaffenburg, Willard & Eiseman, and others. Exception of no cause of action by defendant Aschaffenburg overruled, and reconventional demands by the named defendants.

F. Bell, Judge. Sam Minion was convicted of the statutory offense of retailing intoxicating liquors without a license, and he appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Suit for executory process by Felix J. Dreyfous against Widow Pasquale Papalia. Writ issued, and,' pending the sale of the property, defendant obtained an injunction, and on a rule issued at the instance of plaintiff in the foreclosure suit, defendant in the injunction suit, the writ was dissolved, and the widow appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action for injunction by James D. Hill against the Battalion Washington Artillery of the City of New Orleans. Judgment for defendant refusing an injunction, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal Law <&wkey;1090(7) — Refusal of Motion for Continuance — Discretion of Trial Court — Review.</p> <p>The refusal of a motion for a continuance based on the absence of one of defendant’s attorneys is so largely within the discretion of the trial judge that an appellate court cannot intelligently review his ruling without a full knowledge of the circumstances and of his reasons for the ruling, which knowledge can be brought up only by presenting a formal bill of exceptions, and allowing the trial judge to submit a statement per curiam. An assignment of error showing only the defendant’s side of the controversy does not serve that purpose.</p> <p>2. Criminal Law <&wkey;1120(l) — Exclusion of Impeaching Testimony — Review.</p> <p>Without knowing what testimony was sought to be impeached or contradicted, the Supreme Court cannot say that the trial judge erred in excluding impeaching testimony.</p> <p>3. Homicide &wkey;>i81 — Provocation—Admission oe Evidence.</p> <p>Where there was no proof that the boy whom defendant killed had provoked the difficulty, a conversation of defendant with the father of the deceased prior to the killing, when the boy was not present, in which defendant said that he believed the boy intended to kill him, and the boy’s father said that he would, and that if defendant hurt him the father would kill defendant, offered to show that defendant acted without malice aforethought in the heat of passion, was properly excluded.</p> <p>4. Homicide <&wkey;188(3) — Evidence—Dangerous Character of Deceased.</p> <p>Where the evidence showed that defendant was the aggressor, evidence of the dangerous or desperate character of the deceased was inadmissible.</p> <p>5. Criminal Law <&wkey;720Vz — Trial — Argument.</p> <p>The district attorney’s declaration in argument that he never prosecuted cases that were without merit, and that he selected the strongest cases to prosecute, was objectionable as attempting to impress the 'jury with his own opinion as to defendant’s guilt.</p> <p>. 6. Criminal Law <&wkey;730(l) — Objectionable Argument — Harmless Error.</p> <p>Where the trial judge told the jury to pay no attention to the irrelevant remarks of the district attorney in argument, and it was not likely that such argument influenced the jury after such instruction was given, the error would be disregarded.</p>

Petition for injunction by the State of Louisiana, on the relation of C. M. Tate and others, against the Brooks-Scanlon Company and another. Exceptions to jurisdiction of district court overruled, and defendants apply for writs of mandamus, certiorari, and prohibition against the Twenty-Fifth Judicial District, parish of Tangipahoa and Hon. W. 6. Rownd, Judge.

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge.</p> <p>Indictment of Grover Robinson and John Robinson for murder. From conviction appeal is taken.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; P. B. Carter, Judge.</p> <p>Proceeding by Octave Garsaud, receiver of the Mandeville Light & Ice Company, upon his final account, with opposition by R. S. Vivian. From a judgment dismissing the opposition, opponent took a devolutive appeal.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Ernest Culberson was convicted of the crime of burglary and larceny, and he appeals.</p>

King, Judge. Suit to foreclose a mortgage by the American Trust Company against the Crescent Ice Company, in which a receiver was appointed, and in which the Tennessee Coal, Iron & Railroad Company and another, creditors of the Crescent Ice Company, moved to annul the orders appointing a receiver, etc., with exception by defendant of no cause of action and res judicata to the petition of intervention, and with rule by the purchaser against the interveners.

<p> (Byllabm by Editorial Staff.) </p> <p>Municipal Corporations &wkey;>705(10) — Personal Injury — Contributory Negligence.</p> <p>In an action by a police traffic officer for injury to his foot by defendant’s automobile, held., that plaintiff’s injury was attributable to his own negligence in suddenly running against the automobile.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Bills and Notes <&wkey;326 — Sale—Warranty oe Genuineness.</p> <p>Where one bank taking over the assets of another agreed that, if it should renew any obligations taken over such renewal should be an absolute acknowledgment on its part that the note was worth its face value, with interest, etc., the contract nevertheless carried with it a condition that all notes taken over were genuine, since the seller of a note warrants its genuineness, even in the absence of indorsement.</p> <p>2. Contracts <&wkey; 147(2) — Construction — Language and Intent.</p> <p>The language of a contract controls where it is plain, but not where from the contract as a whole and the circumstances surrounding it the language imports a meaning manifestly not intended.</p> <p>3. Bills and Notes &wkey;>324^-SALE oe Notes— Forgeries — Duty to Reimburse.</p> <p>Where one bank sold its assets to another in ignorance that two of the notes transferred were forgeries, on discovery of the fact, the seller bank should have reimbursed the buyer bank at once for the price paid for the notes, their forged character having disconnected them entirely from the contract, having reference only to genuine notes, so that reimbursement did not need to await the settlement to be made at expiration of the time allowed by the contract for the collection of other notes, or for the liquidation of the transferred assets.</p> <p>4. Bills and Notes (@=324 — Sale oe Notes— Warranty oe Genuineness.</p> <p>Where one bank bought the assets of another in ignorance of the fact that two of the notes transferred were forgeries, if any loss resulted from the act of the buyer bank in renewing or extending the notes, such loss must fall on the seller bank, and not on the buyer.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Husband and Wife <&wkey;272(5) — Community Property — Character of House and Lot — Sufficiency of Evidence.</p> <p>In suit by a divorced wife for settlement of the community acquets and gains existing between herself and husband during marriage, evidence held, to show that a house and lot was bought by the husband with money loaned him by his mother for that purpose, and that the sale to his mother 15 months later was a dation en paiement in reimbursement of the money loaned.</p> <p>2. Husband and Wife <&wkey;272(5) — Community Property — Savings before Marriage.</p> <p>Where a husband invested in a house and lot his savings before marriage, the community, on dissolution by divorce, owed him the purchase price of the house and lot.</p> <p>3. Husband and Wife &wkey;>272(5) — Community Property — Certificates of Stock — Sufficiency of Evidence.</p> <p>In suit by a divorced wife for settlement of the community of acquets and gains that existed between her and her husband during the marriage, as to five certificates of stock in a home association, evidence held to show that the certificates were bought in the wife’s name with money which the husband had given her from time to time as gifts.</p> <p>4. Husband and Wife <&wkey;272(5) — Community Property — Community Expense — Repairs.</p> <p>Money expended by a husband in repairs on a house which constituted community property was a community expense to be allowed him on dissolution of community by divorce.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; W. T. Cunningham, Judge.</p> <p>Petitory suit by Numa Delouche against Philip Rosenthal, coupled with a claim for rent and revenues from the property, in which defendant filed a reconventional demand and called his vendor, Mrs. Eanny Delouche, in warranty. Judgment for plaintiff, including a judgment for rents and revenues, and judgment for defendant on his reconventional demand for improvements, taxes, etc., and against his warrantor, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Statutes <&wkey;118(l) — Subject aud Title — Distuebing the Peace.</p> <p>The title to Act No. 31 of 1886, p. 40, expresses the object embraced in the act. The act defines disturbances of the peace in public streets and on highways near private houses, etc.</p>

<p> (Syllabus hy the Court.) </p> <p>1. District Courts — Louisiana — Jurisdiction in Criminal Cases.</p> <p>The district courts throughout the state, except in the parish of Orleans, have unlimited and exclusive original jurisdiction in all criminal cases, except such as may be vested in the other courts authorized by the Constitution.</p> <p>2. Juvenile Courts — Constitutional Provisions.</p> <p>District courts, when in session under the act known as the Juvenile Court Act, are known, for convenience, as juvenile courts.</p> <p>3. District Courts — Jurisdiction as Juvenile Courts.</p> <p>District courts, outside of the parish of Orleans, sitting as juvenile courts, have jurisdiction, except for capital crimes, of the trial of all children under 17 years of age, and who may be charged in said courts as neglected or delinquent children.</p> <p>4. Delinquent Child — 'Constitutional Definition.</p> <p>The term “delinquent” child means any child 17 years of age and under who, among other things, violates any law of the state, or any ordinance of any village, town, city, or parish of the state.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Delinquent Child.]</p> <p>5. Infants <&wkey;18 — Minors—Louisiana District Court — Criminal Jurisdiction.</p> <p>A person over 17 years of age must be charged and tried in the district court, although at the time of the commission of the offense he may have been under 17 years of age.</p> <p>O’Niell, J., dissenting.</p>

King, Judge. Action by Walter ■Salaun against the Consolidated Realty & Manufacturing Company, Limited, wherein a receiver was appointed, and, he having filed his account^ the Whitney Central National Bank, as assignee, filed opposition, asking to be placed on the account as a privilege creditor, as did Louis Ward on a claim of his own. Prom the judgment recognizing them only as ordinary creditors, opponents appeal.

<p>Appeal from Second Judicial District Court, Parish of Bossier; John N. Sandlin, Judge.</p> <p>Nelse Barnhart, alias Big Boy, was convicted of murder, without capital punishment, and sentenced therefor, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by William Pfeiffer against Jacob Nienaber. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Hurray Gilliard was convicted of manslaughter, and he appeals.</p>

C. W. Ellis, Judge. Consolidated suits by Jules Bernheim against A. O. Pessou, and against Mrs. C. N, Pessou, divorced wife of A. O. Pessou, wherein Inez Hoffman Spagnola intervened. From the judgment, plaintiff appeals. Motion was made to dismiss the appeal, and motion denied.

<p>Appeal from Civil District Court, Parish of Orleans; P'orter Parker, Judge.</p> <p>Action by George Mason against the New Orleans Terminal Company. Judgment for plaintiff for $500, and defendant appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; William E. Howell, Judge.</p> <p>Mandamus by Henry L. Billiot against the Terrebonne Parish School Board and others. Judgment for defendants, and plaintiff appeals.</p>

Théard, Judge. Suit by Marie Josephine Maddux against N. Watts Maddux for separation from bed and board. Judgment for defendant dismissing the suit, and plaintiff appeals.

Suit by Edward Wunderlich and others against the New Orleans Railway & Light Company and the Commissioner of Public Utilities of New Orleans. From an order dismissing a rule nisi requiring defendants to show cause why' they should not be enjoined from changing the. routing of certain street cars, plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; George PI. Théard, Judge.</p> <p>Action by Mrs. Francis Martin against the First National Fire Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twenty-Second. Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Julius C. Ford against Mrs. Mary A. Shaffer and another. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Public Lands <&wkey;61(12) — Purchaser from Commissioners oe Levee District — Sale-Injunction.</p> <p>A purchaser from the board of commissioners of the Atchafalaya Basin levee district of land donated to it by Act No. 97 of 1890, has a standing in court to protect his title, by staying a sale of such' land by the register of the land office to a third person under the supposed authority of Act No. 215 of 1908, though the act of conveyance of the land from the state to the board may not have been executed.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Prank Basile against Mrs. Mateo Ventura. Judgment for defendant rejecting plaintiff’s demand, and plaintiff appeals.</p>

F. Bell, Judge. Suit by T. R. Tomlinson and wife against the Vicksburg, Shreveport & Pacific Railway Company to recover damages for personal injury to their minor child. Verdict and judgment for plaintiffs for $6,500, and defendant appeals, and plaintiffs, answering, prayed that the judgment be increased to $10,000, the amount sued for.

K. Skinner, Judge. Petition by John A. Muldoon and others, alleged legal heirs, against George Herbert, Jr., executor of the will, of Mrs. Mary McMahon, deceased, attacking the validity of her probated will, and asking that it be declared void. Suit dismissed as in case of nonsuit, and plaintiffs appeal.

- K. Skinner, Judge. , Action by the Southern Scrap Material Company against the Liquidating Commissioners of the Carondelet Canal & Navigation Company and others. Judgment for plaintiff, and all parties appeal. Appeal transferred to the Court of Appeal for the Parish of Orleans.

Suit by David Nieto against William R. Hay, wherein defendant applies for writ of mandamus to issue to the Judge of the Twenty-Sixth Judicial District Court, Parish of St. Tammany, directing him to make an order to dissolve on bond the writ of sequestration issued in the suit.

Apipeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge. Proceeding by Mrs. Edward Richards against Nylka Land Company, Limited, to redeem land from a tax sale. Judgment for plaintiff, and defendant appeals.

B. Crow, Judge. J. R. Hightower was indicted for having willfully, unlawfully and knowingly caused the transportation of a named woman through and across the state through a portion of the parish of Lincoln for the purpose of prostitution, and with the intent to induce and compel her to become a prostitute. From a judgment quashing the information, the State appeals.

<p>Appeal from .Seventeenth Judicial District Court, Parish of Vermilion; W. W. Bailey Judge.</p> <p>Leopaul Breaux was convicted of having violated a labor contract, and he appeals.</p>

Suit by Mrs. Louise Foreman and husband against the City of Crowley. Judgment for defendant dismissing tlie suit, and plaintiffs appeal.

Suit by Joseph Alcide Dupuis and others, citizens and property taxpayers, against the Drainage Commissioners of Subdrainage District No. 1 of the Fifth Police Jury Ward of Acadia Parish, to annul and set aside a special election voting a bond issue. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Twenty Second Judicial District Court, Parish of East Baton Rouge; H. P. Brunot, Judge.</p> <p>Suit by the Louisiana Railway & Navigation Company against the Railroad Commission of Louisiana. Prom a judgment for plaintiff, defendant appeals.</p>

Election contest by Florian. J. Gaiennie against F-. J. Druilhet, resulting in judgment for defendant in the district and circuit courts, whereupon plaintiff applied for certiorari or a writ of review to the Court of Appeals, which denied the application, and plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; George H. ThSard, Judge.</p> <p>Action by the Louisiana Navigation Company, Limited, against the Oyster Commission of Louisiana and others. Exception of no cause of action sustained, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Sales <&wkey; 178(4) — Acceptance — Weighing and Sampling.</p> <p>Under a contract for the sale of sugar “to be sampled, weighed and tested according to the usual custom upon arrival,” the act of the buyer’s superintendent in suggesting that the barge be moved to the ship’s side as a matter of convenience, without assuming responsibility for. its safety, was not an acceptance of delivery dispensing with weighing and sampling.</p>

Action for injunction by J. A. Davenport against the ¡Sterling Lumber Company.

<p>Appeal from Civil District Court, Parish of Orleans; Geo. H. Théard, Judge.</p> <p>The suit by Mrs. Sidney J. Whiteside and others against the Lafayette Fire Insurance Company. Judgment for plaintiffs, and defendant appeals.</p>

K. Skinner, Judge. Suit on notes by Willis BJ. Verneuille against Mrs. Caroline Stann, wife of Philip Knight. Judgment for plaintiff by default, and certain real estate sold under writ of fieri facias to James E. Dunshie, and, from a judgment making absolute a rule to require him to accept title to the realty adjudicated to him at the public sale, Dunshie appeals.

<p> (Syllabus by the Court.) </p> <p>Trover and Conversion <&wkey;16 — Timber Converted into Lumber —Right oe Action.</p> <p>One who has asked for and obtained a judicial sequestration of the lumber manufactured and to be manufactured by an adverse claimant of forest timber in dispute cannot, after the writ of sequestration has been finally dissolved and the timber has been converted into lumber, maintain an action against the adverse claimant for possession of the lumber, or, in the alternative, for its value, on the allegation merely that he had possession as owner of the timber, and without putting the title at issue.</p>

Judicial District Court, Parish of Franklin; S. R. Holstein, Judge. Suit by the St. John Lumber Company against the Federal National Bank, W. A. Brown, receiver, and others. Judgment for defendants, dismissing the suit, and plaintiff appeals.

T. Cunningham, Judge. Suits by W. P. Hayne and others and by the Natalie Oil Company against the Police Jury of Red River Parish as a board of review, and against the Assessor and Tax Collector, to have the assessments of plaintiffs’ Iiroperty canceled, or, in the alternative, reduced.

Suit by A. Y. Coco, Attorney General, in his official capacity, against R. E. Oden, Sheriff of Allen Parish, La., to have the latter’s office declared forfeited. Exceptions of no cause of action overruled, and judgment for defendant, dismissing plaintiff’s demand, and plaintiff appeals.

F. Bell, Judge. Suits by James R. Herndon against the Wakefield-Moore Realty Company, Incorporated, and others, and by the Wakefield-Moore Realty Company, Incorporated, and others against James R. Herndon, resulting in judgments for defendants in the first action and for plaintiff in the second, from which plaintiff in the first action and defendant in the second appeal.

King, Judge. Separate suits by lone Cecil Sammons, Rose Muriel Sammons, Angus Marion D. Sammons, Meredith Kerker Sammons, and Angus Marion D. Sammons, tutor, against the New Orleans Railway & Light Company, all of which were consolidated with suit of Rose Muriel Sammons and tried together by agreement. Judgment for defendant rejecting the plaintiffs’ demands, and on plaintiffs’ joint motion a petition for a devolutive appeal was granted.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Homicide @=>203(5) — Evidence — Dying Declaeation — Hope op Recovery.</p> <p>The accusing declaration made by one not under _ oath or subject to cross-examination is inadmissible against the accused as a dying declaration, unless there is evidence showing to the satisfaction of the legal mind that the accuser when making it had no hope of recovery.</p> <p>2. Homicide @=203(3) — Dying Declaration —Hope oe Recovery — Evidence.</p> <p>In a prosecution for murder, evidence held not to show that the deceased believed that he had no hope of recovery and was about to die when he accused defendants of having shot and cut him.</p> <p>3. Homicide @=203(5) — Dying Declarations —Evidence.</p> <p>Where the evidence did not show that deceased when he made a declaration accusing defendants was without hope of recovery, the testimony of the deputy sheriff as to what deceased had said shortly after his injury was inadmissible as a dying declaration.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Alfred M. Barbe, Judge.</p> <p>Suit by the Louisiana Sulphur Mining Company against the Brimstone Railroad & Canal Company. From judgment for defendant, plaintiff appeals.</p>

King, Judge. Suit for separation by Mrs. Sophie Gastauer against George Gastauer, her husband, resulting in judgment for plaintiff, who petitioned for the partition of the community of aequéts and gains existing between her and her husband.

Suit by Mary Ann Reagan and others against the Louisiana Western Railroad Company. Judgment for plaintiffs in' justice’s court, and defendant appealed to the district court. Plaintiffs’ motion to dismiss the appeal and defendant’s demand to have the suit dismissed were overruled, and plaintiffs apply for writ of certiorari.

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; James Simon, Judge.</p> <p>Suit by Mrs. Eveline M. Darby, widow of Henri Gerac, against the Equitable Life Assurance Society of the United States. From judgment for defendant, plaintiff appeals.</p>

W. Bailey, Judge. Suit by Marie Melize Simon, wife, against A. D. Meaux, for separation from bed and board and a partition of community property. Judgment for plaintiff, and defendant appeals.

Ad. Block was convicted of unlawfully carrying and delivering intoxicating liquors, Ms motion in arrest of judgment was overruled, and lie applies for certiorari and prohibition.

<p>Appeal from Twenty-Second. Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Action to annul an assessment by the Union Tank Line Company against Robert B. Day, Sheriff, and others. From judgment for plaintiff, defendants appeal.</p>

<p>Anderson Lark was convicted of an offense against the liquor laws, and he applies for certiorari and prohibition.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Suit for injunction by City of Shreveport against the Board of Commissioners of Cad-do Levee District. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Oontuacts &wkey;j 10(4) — Requisites—BIutualxtst —Bet-ect.</p> <p>A proposition by a baker accepted by a grocer, to deliver to the latter whatever bread he may require for 24 stores (for the business of which bread is absolutely necessary), for one year, at say, 2% cents a loaf, of fixed weight and standard quality, the grocer to supply standing orders for same, subject to revision upon due notice would not be objectionable, as a contract, for lack of mutuality; but, where there is injected a condition that the grocer may sell another make of bread at not less than 4 cents a loaf, he is left at liberty to buy from others than the baker all the bread required for his stores, provided he sells it at not less than 4 cents, and is bound to buy from the baker only such bread as he may choose to sell at a lower price. In other words, it is left entirely to the grocer to determine, as his interest or caprice may suggest, whether he will buy any bread from the baker and, there being no mutuality of obligation, there is no contract.</p>

King, Judge. Suit by Thomas J. Burke against Philip Werlein and James Geary. Judgment for defendants, dismissing the suit after a trial on the merits, and plaintiff appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish, of East Baton Rouge; H. P. Brunot, Judge.</p> <p>Suit hy the Shreveport Window Glass Company against the Railroad Commission of Louisiana. From, a judgment dismissing the suit, plaintiff appeals.</p>

King, Judge. Petition by Martin H. Manion, one of the named executors in the will of Martin Man-ion, deceased, that the will and codicil be registered and executed and that he he confirmed as executor, and authorized to take an inventory on which an order to that effect was made, with suit by John E. Manion for judgment of partition and for other relief, and pending exceptions of prematurity and no cause of action, the executor filed a provisional account, to which John E.…

District Court, Parish of Lafourche; William E.- Howell, Judge. Petitory action, coupled with an action in damages for trespass, by George A. Generes against the Bowie Lumber Company. Judgment maintaining defendant’s plea of prescription in part and overruling it in part, and plaintiff appeals.

C. W. Ellis, Judge. Petition by Hypolite Rufin to annul a judgment, recognizing Suzanne St. Martin and others as widow in community and as heirs, respectively, and admitting them to possession of the estate of Jean Rufin, deceased, with exception of nonjoinder by Jean Rufin and with supplemental petition by plaintiff, Hypolite Rufin, making Denis Rufin and others parties to the suit, and in which Denis Rufin and others filed exceptions.

Ellis, Judge. Petitory action -by Charles 0. Chalmers against the Frost-Johnson Lumber Company, in which defendant called in warranty the Eastern Land & Lumber Company, Limited, and in which such warrantor called in warranty Mrs. Sallie W). Henry and others. Judgment for defendant, and plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal Law <&wkey;195(l) — Former Jeopardy —-Sufficiency of Plea.</p> <p>Where an information charged a maiming on January 17, 1917, defendant’s plea of autrefois acquit, based on his acquittal of the same offense, charged to have been committed on January 20, 1917, it being admitted there was only one offense, was properly maintained.</p> <p>Provosty and O’Niell, JJ., dissenting.</p>

Tammany. Suit by Rosemie Cousin against Lncia Schmidt and minors Ousachs, with demands in reconvention by defendants. The decree of the district court in favor of plaintiff was sustained by the Court of Appeal, and defendants apply for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Samuel J. Allison against the Firemen’s Insurance Company of Newark. N. J. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Suit by the State of Louisiana against the New Orleans Land Company. Judgment for plaintiff, and defendant appeals.</p>

Action to confirm tax title by Joseph E. Ebert against Mrs. John Alonzo Woodville and others, in which defendant Mrs. Wood-ville called upon her vendors in warranty. Judgment for plaintiff against defendant and her warrantors, and defendants appeal.

Action by L. C. Conroy against the Pine Belt Oil Company, resulting in judgment in part for .plaintiff, which was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

C. W. Ellis, Judge. Opposition by James A. Petty to the account of the receiver, claiming privilege on the proceeds of certain property, which was awarded to him by the district court.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Suit by the Title & Mortgage Guarantee Company, Limited, against the Louisiana Abstract & Title Guarantee Company for an injunction. From a dismissal of plaintiff’s suit, it appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Suit by Local Union No. 76 of the United Brotherhood of Carpenters and Joiners of America against the United Brotherhood of Carpenters and Joiners of America and U. S. Berry. From judgment for defendants, plaintiff appeals.</p>

K. Skinner, Judge. Suit by Peter Baensch against Mrs. Gertrude Heinich, Mrs. Henrietta Lafon, and others, to recover his interest in their mother’s succession. Judgment for the plaintiff against the defendant Mrs. Lafon in a certain amount, and otherwise dismissing the suit, and plaintiff appeals.

O. W. Ellis, Judge. Petitory action by Ernest M. Brinkman and others^ against the Succession of LloydPosey and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Suit for injunction by Roll Osborn against the City of Shreveport. Judgment for plaintiff, and defendant appeals.</p>

D. Webb, Judge. Action by Mrs. Margaret J. Philps against the Guy Drilling Company for damages for tort, or in the alternative for compensation, under the Employers’ Liability Act, for the death of her son. Exceptions of no cause of action filed against original and supplemental petition overruled, demand for damages rejected, and judgment of nonsuit on the alternative demand for compensation, and plaintiff appeals.

Théard, Judge. Action, by the Hibernia Bank & Trust Company against the Louisiana Avenue Realty Company, Limited, and others to have certain sales, assignments, and transfers decreed void, because made in fraud of creditors, or, in the alternative, as being fraudulent, simulated, and of no effect. Exceptions of no right of action and of prescription maintained, and suit dismissed, and plaintiff appeals.

<p>Appeal from Sixth. Judicial District Court, Parish of Ouachita; Ben C. Dawkins, Judge.</p> <p>Action by George H. Elmendorf and another against O. O. Clark. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by the Interstate Trust & Banking Company against the Louisiana Avenue Realty Company, Limited. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; Charles T. Wortham, Judge.</p> <p>Petitory action by Dominique Harang and others against the Golden Ranch Land & Drainage Company. Judgment for plaintiffs, and defendant appeals.</p>

King, Judge. Provisional account by Mrs. Esther J. Gordon, as executrix and sole heir of her deceased mother, Mina Grodsky, widow of Abraham. Levitan, with opposition by Dr. Louis Levy, based upon an account for physician’s services. Opposition dismissed, and account approved, and opponent appeals.

Certiorari or Review to Court of Appeal, Parish of Lincoln. Suit in rem by J. J. Stovall & Sons, Limited, against R. P. Hubier, with writ of sequestration, under which defendant’s property was seized, and in which defendant claimed a money judgment against plaintiff.

Suit for divorce by Mrs. Mae E. George against diaries E. George and another. Exceptions to jurisdiction and to want of parties overruled, and named defendant applies for certiorari and prohibition.

E. Brunot, Judge. Suit by the Empire Rice Milling Company and others against the Railroad Commission of Louisiana to set aside an order of the commission, with intervention by the Lake Charles Milling Company and by the Southern Rice Growers’ Association and others. Judgment for defendant and for interveners, and plaintiffs appeal.

Proceeding by the State, on relation of Amet Guillot, Sheriff and ex officio Tax Collector of the Parish of Avoyelles, against ■the Central Bank & Trust Company. There was judgment for plaintiff in the district court. From a judgment of affirmance by the Court of Appeal on appeal, defendant applies for certiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Willis J. Roussel, administrator, and others, against the New Orleans Land Company. Judgment for plaintiffs, and defendant appeals.</p>

F. Brunot, Judge. Suit by the Alexandria & Western Railway Company against the Railroad Commission ofl Louisiana to set aside a rate order as being unjust, unreasonable, etc. From a judgment refusing plaintiff’s demand, and recognizing as valid an amendatory order of the Commission, plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Geand Jury <&wkey;42 — Grand Jury’s Return-Effect as Evidence.</p> <p>Where the grand jury on investigating a charge of murder by a policeman returned “not a true bill,” its return -was prima facie evidence that the policeman did not commit a crime.</p> <p>2. Municipal Corporations <&wkey;747(3) — Wrongful Act by Servant — Liability.</p> <p>Even if the policeman employed by defendant city committed a private wrong against plaintiff, the city could not be held liable therefor in damages.</p> <p>8. Municipal Corporations <&wkey;733(l) — Corporate or Private Enterprise — Operation of Belt Railway.</p> <p>The city of New Orleans in operating a belt railroad, as required by Act No. 179 of 1908, § 3, subject to the right of the board of commissioners of the Port of New Orleans to operate it on the city’s failure to do so, in acquiring, owning, and operating such railroad was engaged in a governmental function.</p> <p>4. Municipal Corporations <&wkey;747(3) — Police Officers — Negligence.</p> <p>A policeman in the performance of his duties is a governmental agent, and his negligence while acting in that capacity cannot give rise to an action in damages ex delicto against the municipal corporation which employs him.</p> <p>5. Municipal Corporations &wkey;>747(3) — Police Officer — Private Employé — Liability for Tort.</p> <p>A policeman employed by city of New Orleans and assigned to special duty under city’s Public Belt Railroad Commission, and whose salary may have been paid by. revenue accruing to that department, whether an employé of commission in a governmental function or an ordinary policeman, could not render city liable for damages ex delicto for his negligence.</p>

C. W. Ellis, Judge. Action by Michael M. Biegel against the City of New Orleans and the Sewerage and Water Board. Judgment for plaintiff against the City and in favor of the Board, and the City appeals.

King, Judge. Action by Albert G., Fischer against the Wells Fargo & Co. Express and the Illinois Central Railroad Company. Judgment for plaintiff against the Wells Fargo & Co. Express, and in favor of defendant Illinois Central Railroad Company, and plaintiff and the Wells Fargo & Co. Express appeal, and on plaintiff’s death his legal representatives prosecuted his appeal.

King, Judge. Action by Eliza Yanon against the Louisiana Railway & Navigation Company. Judgment for plaintiff for $1,000, and defendant appeals, and plaintiff answering the appeal asks for an increase in the amount of the judgment.

F. Brunot, Judge. Action for injunction by J. W. Thompson against R. B. Day, Sheriff and Tax Collector, and others. Judgment for defendants, dissolving the preliminary injunctions and dismissing the suit, and plaintiff appeals.

Suit by the Brooks-Seanlon Company against the Railroad Commission of Louisiana to have an order of the commission set aside, in which defendant obtained an injunction. Injunction set aside, and the commission applies for writs of certiorari and prohibition.

IC Skinner, Judge. Action by the Sabine Tram Company against George Jurgens and others, with re-conventional demand for damages for libel by defendant George Jurgens. Judgment for defendant in reeonvention for part of his claim, and he appeals.

K. Skinner, Judge. In the matter of the succession of Mrs. Floriska Lasseigne, wife of Frapcois P. Lions. Petition by Francois P. Lions to be appointed administra tor, opposed -by the heirs of the deceased, was denied, his demand dismissed, and he appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Courts @=224(2) — Louisiana Supreme Court — Jurisdiction—Amount.</p> <p>In a suit to have a municipal election declared void, and in the alternative that plaintiff be decreed mayor, without allegation of evidence of amount involved, and where salary of mayor could not be over $2,000, the Supreme Court was without jurisdiction of plaintiff’s appeal.</p>