Volume 146 — Louisiana Reports

Landry; B. H. Pavy, Judge. Action by Police Jury for the Parish of St. Landry and Elijah Fisher against the Alexandria Gravel Company and another. Judgment for plaintiffs, and defendants appeal.

Ambrose Morel was convicted on the charge of nonsupport, his motion in arrest of judgment was overruled, and he was sentenced to make certain payments or pay a fine or be imprisoned, and be applies for writs of certiorari and prohibition.

Campbell, Judge. Ivey David was convicted of assault with intent to ravish, and from a judgment sustaining a motion in arrest of judgment the State appeals.

Judicial District Court, Parish of La Salle; George Wear, Judge. Action by the heirs of John Fortner against the Good Pine Lumber Company and the Trout Creek Lumber Company, wherein Mrs. M. E. Ezell intervened. From judgment against defendants and the intervener, they appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Homicide &wkey;110(4) — Rule stated as to APPARENT DANGER JUSTIFYING SELF-DEFENSE.</p> <p>A person is justified in using force in self-defense, where the danger that threatens him appears to him, acting as a reasonable man under the particular circumstances, to be real and imminent, even though it should later develop that there was no real or actual danger.</p> <p>2. Criminal law <&wkey;922(7) — Objections to INSTRUCTIONS FIRST MADE ON MOTION FOR NEW TRIAL TOO LATE.</p> <p>Objection that an instruction was erroneous is too late when presented for the first time in a motion for new trial.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. MUNICIPAL CORPORATIONS &wkey;>705(3) — NEGLIGENCE OP DRIVER OF MOTORCAR AS TO BOY RUNNING BY CAR.</p> <p>The failure Of the driver of a motorcar to slacken speed or give warning of the presence of rhe car to a small hoy, who was racing close beside it after picking up something in the street, must be deemed negligence.</p> <p>2. Municipal corporations <&wkey;705(10) — Act of boy in racing in front of motor vehicle contributory negligence.</p> <p>For a small boy, after picking up a stick in the street, to attempt to cross directly in front of a car with which he had been racing, is contributory negligence, whore the hoy was aware of the presence of the vehicle.</p> <p>3. Municipal corporations &wkey;>706(5) — Evidence SnOWING BOY KNEW OF PRESENCE OF AUTOMOBILE.</p> <p>In an action for the death of a small boy, who was struck by a motorcar when he attempted to cross in front of the same, evidence held to warrant finding that the boy knew of the presence of the vehicle.</p> <p>4. Negligence <&wkey;85(3) — ■Contributory negligence.</p> <p>A lad of 11% years, of average intelligence, has sufficient powers of discretion to be guilty of contributory negligence in attempting to cross directly in front of a rapidly moving motorcar with which he had been racing.</p>

<p>Appeal from Civil District Court, Parish of Orleans ;■ George H. Théard, Judge.</p> <p>Action by George A. Lincoln against the Appalachian Corporation of Louisiana. From judgment for defendant, plaintiff appeals.</p>

K. Skinner, Judge. In the matter of the succession of Marie Sophie Brugier. From a judgment admitting to probate, over opposition, an alleged last will and testament of deceased, opponents appeal.

C. Cage, Judge. Suit by Mrs. Ida Churchill Riddell, widow of Peter G. Riddell, against J. Ferguson Rid-dell, revived against the succession of the defendant. From a judgment for plaintiff, defendant appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>.1. Railroads @=310 — Precautions to avoid-ACCIDENT AT CROSSING.</p> <p>While it may not be negligence per se to operate through the streets of a populous city a .train having cars ahead of the engine, yet, when the same is done, every possible precaution should be taken to avoid accidents.</p> <p>2. Negligence <&wkey;85(3) — Child not chargeable WITH CONTRIBUTORY NEGLIGENCE.</p> <p>A child four years old, cannot be held guilty of contributory negligence.</p> <p>3. Railroads @=307(4) — Permitting epileptic TO BE FLAGMAN AT CROSSING NEGLIGENCE.</p> <p>A railroad is at fault in permitting one who is, to its knowledge, an epileptic, to occupy the position of flagman at an important crossing.</p> <p>4. RAILROADS <&wkey;312(ll) — NEGLIGENCE AT' CROSSING OF LOOKOUT ON BACKING TRAIN.</p> <p>Where train of six cars ahead of the engine and five cars behind it was moving from 5 to 6 miles an hour, the failure of lookout on the first car to see a child until the child was within 15 feet of the track, although the view was unobstructed, constituted negligence.</p> <p>5. Railroads <&wkey;312(4) — Duty to keep lookout FOR CHILDREN IN CITY.</p> <p>It is the duty of trainmen to keep a reasonable lookout for children, especially in a city, and failure to do so constitutes negligence.</p> <p>e. Railroads &wkey;321 —No assumption that CHILD WILL AVOID DANGER.</p> <p>Trainmen have no right to assume that a child of tender years, running toward the tracks, will stop before crossing.</p> <p>7. Railroads <&wkey;321 — Duty of flagman as REGARDS CHILDREN OF TENDER YEARS.</p> <p>A lookout or flagman has no right to assume that a child of tender years, approaching a crossing, will see the signals, or appreciate the perils of his position, or remain in the place of safety, and failure to signal the train to stop or to remove the child from his perilous position is negligence.</p> <p>8. Damages <&wkey;132(12) — For loss of arm.</p> <p>In action by mother for damages due to loss by her son, about four years old, of his right arm, a verdict of $12,000 held justifiable; the child being without means, and the mother, earning $5 per week, being his sole support.</p>

<p>Application for writs of mandamus and prohibition by Treville Guillot against the District Judge.</p>

<p>Applications for writs of mandamus and pro•hibition by V. J. Adamietz against the District Judge.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law <&wkey;518(2) — Confession in ABSENCE OF WARNING.</p> <p>That confession was made while accused was handcuffed and in jail, and without any warning having been given him that whatever he might say would be used against him on his trial, did not render confession inadmissible, where otherwise free and voluntary.</p> <p>2. Criminal law &wkey;>814(3) — Inapplicable INSTRUCTIONS.</p> <p>A judge is not required to give a special charge inapplicable to the facts of the case.</p>

<p>Application for writs of mandamus and prohibition by Miss Maggie Wright, agent, against the District Judge.</p>

<p> (Syllables by Editorial Staff.) </p> <p>1. Criminal law <&wkey;419, 420(12) — Contents OF LETTER HEARSAY.</p> <p>The contents of a letter written by a third person concerning accused cannot be read to the jury, being hearsay, unless the person who wrote the letter is produced to testify and to be cross-examined.</p> <p>2. Criminal law <&wkey;1124(4) — Denial of NEW TRIAL NOT REVIEWABLE, RECORD NOT SHOWING EVIDENCE ON MOTION.</p> <p>Refusal to grant new trial on the ground of newly discovered evidence cannot be reviewed on appeal, where no evidence is annexed to the bill of exceptions showing any new matter discovered, or that any evidence was submitted to the trial judge in support of the motion apart from what he had heard from the witnesses on the trial of the case.</p> <p>3. Criminal law <&wkey;101(2) — Transfer of PROSECUTION FROM ONE DIVISION TO ANOTHER.</p> <p>Const, art. 139, in giving exclusive control over a case allotted to a certain division of the criminal district coui’t for the parish of Orleans to the judge of that division, does not exclude that judge, for reasons stated in the Constitution, from transferring a case under his control to a judge of the other division, where the latter and the accused consent to such transfer.</p>

Application by A. H. Johness and others against John Ernest and others for writs of certiorari, mandamus, and prohibition to test the respondents’ rights to office.

<p> (Syllatus hy Editorial Staff.) </p> <p>1. Mortgages <&wkey;178 — Acts of subsequent INCUMBRANCERS NOT AFFECTING PRIORITY.</p> <p>The rank of a duly recorded vendor’s lien an'd first mortgage cannot be changed by any act of subsequent creditors or incumbrancers.</p> <p>2. Mortgages <&wkey;410 — Standing of prior MORTGAGE CREDITOR TO PREVENT SALE UNDER JUNIOR MORTGAGE.</p> <p>A prior mortgage creditor has no standing to prevent a sale of the property mortgaged under a junior mortgage.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; S. D. Pearce, Special Judge.</p> <p>Suit by the South Arkansas Lumber Company against the Tremont Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge.</p> <p>Action by Mrs. Camilla Colorado, widow of George Creath, against the Johnson Iron Works, Limited. Judgment for defendant, and plaintiff appeals.</p>

Suit by Peter John Ghisalberti against Dominica Calamari, his wife, for separation. On the wife’s rule against her husband, after a decree in her favor for the payment of alimony, plaintiff was ordered to show cause why he should not be punished for contempt. Plaintiff was found guilty of contempt and he applies for writs of certiorari and prohibition.

Consolidated suits by the Calcasieu Long Leaf Lumber Company and others against H. E. Reid, Tax Collector, and others, to enjoin collection of certain license taxes. From a judgment in plaintiffs’ favor, defendant Tax Collector appeals.

<p>Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. I-I. Pavy, Judge.</p> <p>Action by Mat Cox, receiver, against P. F. Stone. Judgment for defendant, and plaintiff appeals.</p>

Théard, Judge. Action by Adrian Hava against Marie Ernestine Chavigny. On rule to fix alimony pendente lite. From judgment rendered, plaintiff appeals, and defendant answers appeal praying that sum be increased.

Suit by Thomas B. Hutts, for the use of John M. Hutts, against the Crowley Building & Loan Association and others, to recover an interest in realty, wherein John M. Hutts, upon arriving at his majority, was substituted as a party plaintiff. Judgment for plaintiff as to part of the relief demanded only, and he appeals.

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Jesse Bell was convicted of murder, and he appeals.</p>

F. Brunot, Judge. Mandamus by the State, on the relation of the Board of Commissioners of the Atchafa-laya Basin Levee District, against Paul Capdeville, State Auditor, and Fred J. Gra-cer, Register State Land Office, in which proceeding the Atehafalaya Land Company intervened. From judgment for the defendants, plaintiffs and the intervener land company appeal.

F. Brunot, Judge. Petitory action by the Atchafalaya Land Company against Mason James, in which Board of Commissioners of the Atchafalaya Basin Levee District and another intervene. From judgment for defendant, plaintiff and named inter-vener appeal.

John C. Sehuermann and another, police officers of the city of New Orleans, were convicted of violating Act No. 110 of 1908, amending act No. 63 of 1884, by intruding themselves into the house of a woman, then and there threatening to accuse her of keeping a house of ill fame, intending to extort money, and they appeal.

C. Cage, Judge. Action by Mrs. Rosalie Tortorich against Noel Maestri, in which, after a judgment of separation from bed and board, defendant sued for final divorce, to which there was an answer in reconvention, praying for judgment for a divorce and for alimony pendente lite and for the future.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Insueance t&wkey;138(l) — Validity of policy AS AFFECTED BY ERROR IN STATEMENT OF RESERVE.</p> <p>Error of $3,000 in the statement of the amount of reserve because of mistake by policy writer would be a cause for avoiding the contract if contract had not been fulfilled, but not where insured has had the benefit of the insurance during 20 years.</p> <p>2. Insurance <&wkey;665(2) — Sufficiency of evidence to show representation as to AMOUNT OF RESERVE.</p> <p>In action for surrender value of policy, consisting, under the policy, of the entire reserve and the surplus, evidence held to show that the writing of the incorrect amount of reserve on back of policy was an error on part of policy writer, and that there was no representation by the company or its agents that the amount of reserve was such amount.</p> <p>3. Insurance <&wkey;521 — Life insurance; error OF POLICY WRITER IN WRITING AMOUNT OF RESERVE.</p> <p>Insured in collecting surrender value of mutual insurance company’s policy consisting of reserve and surplus was not entitled to profit by the mistake of the policy writer in writing an incorrect figure as the amount of reserve on back of policy, where it was a mere clerical error, and such amount was not so written pursuant to any representation of the company or its agents as to what the amount of reserve would be.</p> <p>4. Insurance <&wkey;138(2) — Mutual company NOT TO DISCRIMINATE IN FAVOR OF CERTAIN POLICY HOLDERS.</p> <p>A mutual company could not legally discriminate in favor of one or some of the policy holders to the prejudice of the others.</p> <p>5. Costs i&wkey;42(9) — Effect of prior tender WHERE LITIGATION WAS CAUSED BY ERROR OF SUCCESSFUL PARTY; DISCRETION OF COURT.</p> <p>In action for surrender value of policy involving dispute as to amount thereof, Supreme Court, under the discretion given it by Act No. 229 of 1910, § 2, will tax costs against insurer, though it reduces amount of judgment against insurer to the amount it had tendered before the suit was filed, where the litigation was caused by error of insurer in writing amount of reserve on bach of policy.</p> <p>Provosty, J., dissenting.</p>

Suit by the Freiler Biereantile Company, Limited, for whom Walter C. Kent was substituted, against John J. Chaney, in which Richmond Chaney intervened. Court of Appeal, on appeal from judgment for plaintiff, dismissed the suit, and substituted plaintiff applies for certiorari or writ of review.

Judicial District Court, Parish of Calcasieu; Winston Overton, Judge. Suit for divorce by Aladin Vincent against Luc Le Doux, curator ad hoc of plaintiff’s insane and interdicted wife. Exception of no cause of action sustained, and suit dismissed, and plaintiff appeals.

Certiorari, etc., from Eighteenth Judicial District Court, Parish of Lafayette; Wm. Campbell, Judge. Suit for injunction by the Petite Anse Co-teau Drainage District against the Youngs-ville Drainage District of the Parish of Lafayette, resulting in decree for defendant, and plaintiff applies for writs of mandamus, cer-tiorari, and prohibition.

<p> (Byllabus hy the Court.) </p> <p>1. PRINCIPAL AND SURETY <&wkey;100(8) — LIABILITY Off SURETY ON BUILDING CONTRACT WHERE TOTAL COST EXCEEDS CONTRACT.</p> <p>Where a building contract is unambiguous, and it appears that the owner, in plain and announced disregard of its terms and conditions, has required the contractor, prosecuting the work thereunder, to make wide and material departures from the specifications, involving increased responsibility and expenditure, without .written orders stating the- cost thereof, or disagreement and reference to arbitration with respect thereto, and has thereby so confused the account that the cost of the work done under the orders is undistinguishable from that of the work called for by the contract, and impossible to determine from the evidence whether or not, without the extras, the work called for by the contract would have been executed within the price thereby fixed, there can be no recovery against the surety of the contractor, on the ground that the total cost has exceeded such price; and it is immaterial in such case whether the obligation sued on be construed strictly, as that of a surety, or liberally, as that of an insurer.</p> <p>2. Principal and surety <&wkey;59 — Liability Off SURETY ON BOND OF BUILDING CONTRACTOR GOVERNED BY LAW IN FORCE.</p> <p>The obligation of a surety on the bond of a building contractor is to be construed with reference to the law as authoritatively interpreted at the date of the execution of the bond.</p> <p>3. Principal and surety <&wkey;59 — Surety’s OBLIGATION TO BE STRICTLY CONSTRUED.</p> <p>Under the law and settled jurisprudence of this state, the obligation of a surety must be strictly construed.</p> <p>4. Principal and surety &wkey;>52 — Liability OF CORPORATION SURETIES.</p> <p>Act No. 41 of 1894 authorizes certain corporations to become sureties upon any bonds required by law, in lieu of any surety or sureties so required, and declares that they shall be subject to all the liabilities and have all the rights of sureties, under the provisions of law relating thereto. Considering which enactment, it is now no more within the authority of the courts to deny such corporations the rights thus accorded than it is to relieve them of the liabilities imposed.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Statutes ©=*181(1) — Construction DEPENDS ON LEGISLATIVE INTENT.</p> <p>Construction of statutes depends upon intention of Legislature.</p> <p>2. Municipal coepoeations &wkey;>958 —Statutes AS TO MUNICIPAL TAXES CONSTRUED LIB EE ALLY AS TO TAXPAYEE.</p> <p>Statutes relating to municipal taxes will not be so construed as to prevent the municipality from realizing its necessary funds, but laws governing the exercising of the taxing power are construed liberally in favor of the taxpayer, and any provision intended to safeguard his rights or to- insure a proper administration of the taxing powers should be treated as mandatory.</p> <p>3. Municipal coepoeations <&wkey;968(%) — Taxes TO BE LEVIED AT EEGULAE MEETING OE BOAED OE ALDERMEN.</p> <p>Tax levied at special meeting of board of aldermen of village instead of a regular meeting, as required by Acts 1898, No. 136, § 35, held void; such statute requiring that municipal taxes be levied at regular meeting of board of aldermen being mandatory, and not merely directory.</p> <p>4. Municipal coepoeations &wkey;>969(l) — Ordinance LEVYING TAX TO BE ADOPTED BY YEA AND NAY VOTE.</p> <p>Ordinance levying general municipal taxes required a yea and nay vote under Acts 1898, No. 136, § 33.</p> <p>5. Municipal coepoeations &wkey;>979 — In action to enjoin sale eoe taxes validity OE LATEE ORDINANCE NOT CONSIDERED.</p> <p>Where, after action to enjoin sale of property for general municipal taxes for certain year upon ground that the ordinance levying the tax was illegal had been brought, the village enacted another revenue ordinance for such year, the validity of the subsequently enacted ordinance, not having been attacked by the plaintiff, could not be determined in such action.</p>

Suit between T. C. Barrett and. another, wherein Mrs. Caroline Teacle and others were cited as defendants, and, writ of possession having issued at tbe instance of Barrett, tbe other defendants applied for injunction, which was granted, but dissolved on rule to show cause, and Mrs. Teacle and others apply for writs of certiorari, prohibition, and mandamus.

Concursus proceedings by the Savings & Homestead Association against August Frank, the National Surety Company, Dr. C. N. Gibbons, and others, persons and firms asserting claims for labor and material, and for judgment distributing a fund deposited by plaintiff, discharging it with its costs and ordering cancellation of liens recorded against the building.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Action by Mrs. Bessie Savant Lewis against the Texas & Pacific Bailway Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Will Miller was convicted under an indictment of murder, and sentenced to death, and he appeals.</p>

Action by Amy Crayton, tutrix, against Charles M. Waters, wherein Harry Crayton and others intervene. Judgment for defendant, and plaintiffs and ■ interveners appeal.

<p>Appeal from Twelfth. Judicial District Court, Parish of DeSoto; John H. Boone, Judge.</p> <p>Suit by the ■ heirs of Thomas Lattimer against the Gulf Refining Company of Louisiana and others. From a judgment for plaintiffs, defendants appeal.</p>

Boone, Judge. Action by B. J. Samuels, Jr., and others against Mrs. Julia C. Parsons and others, in which part of defendants brought in their warrantors. Judgment for defendants and their warrantors rejecting plaintiffs’ demand, and plaintiffs appeal.

H. Boone, Judge. Proceeding by the Forest Lumber Company and others against J. H. Word, assessor of the Parish of Vernon, and others, for judgment reducing the valuation of petitioners’ property, etc. Defendant’s exceptions, including an exception of no cause of action, overruled, and a judgment rejecting plaintiffs’ demands, and they appeal.

F. Blackman, Judge. .... ' Proceeding by Mrs. Marie Grenier, wife of A. j. ■ Mayer,- and A. J:- Mayer against Mrs. Adele C. Guillebert,- wife of A. T. Barbin, to enjoin the execution of a money judgment issued by defendants.

; Certiorari to Court of Appeals, Parish of Orleans. Suit by William E. De Brueys to restrain foreclosure proceedings instituted by George E. Reugger. There was a judgment in favor of heirs of defendant, who were substituted on his death, which was affirmed by the Court of Appeal, and the plaintiff brings certiorari.

<p> (Syllabus by Editorial Staff.) </p> <p>1. CRIMINAL LAW ®=»970(8) — INDICTMENT AND INFORMATION <&wkey;>86(8) — FAILURE TO STATE VENUE IN SECOND COUNT NOT A GROUND OF MOTION IN ARREST.</p> <p>A conviction of burglary under a second count of an information, not containing the usual “then and there” for alleging time and place by reference to time and place stated in ■the first count, does not constitute ground for arrest of judgment; in view of Rev. St. § 1062, dispensing with statement of venue in body of indictment; omission of allegation of time being a mere formal defect, of which advantage must be taken before verdict, under section 1047.</p> <p>2. Larceny <&wkey;40(2) — Not necessary to PROVE OWNERSHIP ALLEGED.</p> <p>Proof of ownership in the particular person alleged in the indictment to be the owner is not important in larceny; it being sufficient to show that the goods were owned by some one other than the thief, and that the thief feloni-ously took and carried them away.</p>

Alfred Sonnier was convicted of violation of Acts 1902, No. 34, by abandoning and neglecting to support bis wife and minor child in necessitous circumstances. From the overruling of motions to have the verdict and sentence annulled and set aside and for new trial, tbe defendant excepts and appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Jackson; Cas. Moss, Judge.</p> <p>Action by the Usrey Lumber Company against the Huie-Hodge Lumber Company, Limited. From a judgment for plaintiff for an insufficient amount, it appeals.</p>

Suit by the Deering Harvester Company against the C. L. Smith Farm Land Development Company on notes and to enforce a vendor’s privilege and mortgage. Judgment for plaintiff, and defendant appeals.

<p> (Syllabus by Editorial Staf.) </p> <p>1. MASTER AND SERVANT !&wkey;412 — EXCEPTION OF NO CAUSE OF ACTION FIRST FILED ON APPEAL UNAVAILING IF CAUSE MADE 0'UT BY EVIDENCE.</p> <p>Exception of no cause of action, because plaintiff in workmen’s compensation action did not allege the accident was purely and wholly accidental, not having been filed in limine, and followed by proper objection to evidence, but first filed on appeal, is unavailing if a case was made out by the evidence.</p> <p>2. Master and servant >&wkey;405(l) — Workmen’s Compensation Act; finding of unintentional INJURY SUPPORTED BY EVIDENCE.</p> <p>Evidence held to support finding that the cutting off by a circular saw of the fingers of plaintiff in workmen’s compensation action was not intentional, to evade military service.</p> <p>3. Master and servant <&wkey;405 (4) — Workmen’s Compensation Act; injury in employment shown.</p> <p>Evidence held to show that injury of plaintiff in workmen’s compensation action while replacing a cable by which was moved a cut-off saw, behind which he worked, was inflicted while in the employ of defendants and under such circumstances as to render them liable.</p> <p>4. Master and servant <&wkey;356 — Contributory NEGLIGENCE ELIMINATED BY WORKMEN’S Compensation Act.</p> <p>Workmen’s Compensation Act eliminates the defense of contributory negligence.</p> <p>5. Master and servant &wkey;>398 — Notice adequate to meet requirements of Workmen’s Compensation Act.</p> <p>The employers, one of whom saw the injured employé a few minutes after the accident, having known practically from the time of the accident the extent and circumstances of the injury, absence of notification in the manner provided by the statute will not prevent recovery.</p> <p>6. Master and servant <&wkey;385 (12) — Laborer’s loss of fingers not permanent total DISABILITY UNDER WORKMEN’S COMPENSATION Act.</p> <p>Act No. 243 of 1916 fixing the compensation for loss of a hand at half wages for 150 weeks, recovery cannot be had as for permanent total disability on the theory that the workman, who lost all the fingers of a hand, being uneducated and dependent on manual labor, is totally incapacitated to do work of that character.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Suit by Edith E. M. D. Howcott against the Ruddoct-Orleans Cypress Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Elections <&wkey;278 — Sixty days’ limitation YOB CONTESTING SPECIAL TAX ELECTION INAPPLICABLE WIIEBE HELD UNDER UNAUTHORIZED BOARD OR TAX IS UNCONSTITUTIONAL.</p> <p>The limitation of 60 days, prescribed by Act No. 256 of 1910, § 17, which act was amended by Act No. 218 of 1912, for suit to contest legality, regularity, or formality of an election in a subdivision of the state for a special tax, is inapplicable, where the election has been held under the auspices of an unauthorized body, or where the tax is unconstitutional.</p> <p>2. Highways <&wkey;90 — Government oe road DISTRICTS MAY BE TAKEN EROM POLICE JURIES AND VESTED IN SUPERVISORS.</p> <p>Const, art. 291, providing that police juries may levy taxes for roads in parishes does not prevent the government of road districts being taken from police juries and vested in a board of supervisors, as is done by Act No. 199 of 1916.</p> <p>3. Highways <&wkey;121 — Road district not “municipal corporation” eor special TAX PURPOSE.</p> <p>A road district is not within Const, art. 232, authorizing, for certain purposes, “any parish, municipal corporation, ward or school district” to levy a special tax; the context indicating that only cities, towns, and villages are meant by the term “municipal corporation.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Municipal Corporation.]</p>

Certiorari from Criminal District Court, Parish of Orleans. Harry C. Brooks was indicted for keeping a disorderly house, the indictment was quashed by the district judge, and the State applies for writs of certiorari, prohibition, and mandamus.

Joseph Orucia was indicted for keeping a disorderly house, and from an order of the trial judge on his own motion quashing the indictment and discharging the accused, the State applies for writs of certiorari and prohibition and mandamus. Respondent Judge prohibited from executing the judgment ordering the indictment to be quashed and accused discharged, and the case reinstated on the docket of the court for trial.

Schwing, Judge. Action by Daniel Hurley against John Hurley and another to revoke donation inter vivos of a mortgage note. From a judgment sustaining an exception to the petition and dismissing his suit, the plaintiff appeals.

Action by Bemado G. Carbajal against the Leopold Weil Building & Improvement Company. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant applies for certiorari or writ of review.

Action by J. B. Dauenhauer, Jr., and others against Charles W. Rossner, Clerk of Court and ex officio Registrar of Voters. An injunction was denied, and plaintiffs apply for writs of certiorari, mandamus or prohibition and for a rule for contempt.

B. Carter, Judge. Action by Mrs. Lenora Kerkem Kemp against Phillip B. Kemp. Judgment for plaintiff for separation from bed and board and for alimony. On rule for contempt of court for nonpayment of alimony. Erom judgment ordering that he be confined in jail, defendant appeals.

M. Wallis, Judge. Suit by Alfred Gaudet and wife against the Parish of Lafourche and the Town of Thibodaux in solido for damages for the death of one minor daughter and injuries to another. Suit dismissed, and plaintiffs ' appeal.

Original proceedings by Leander H. Perez for prohibition or other remedial writ rescinding an order of the Supreme Court appointing another as judge of a judicial district.

<p>Appeal from First Judicial District Court, Parish„of Caddo; T. F. Bell, Judge.</p> <p>Action by D. A. Brooks, Jr., against the Peerless Oil Company, Incorporated.</p>

N. Sandlin, Judge. In the matter of the succession of O. P. Clement. There was judgment in favor of the Bank of Webster and the Bank of Min-den, opponents of the account of the adminis-tratrix, and the widow, as administratrix and as tutrix of the minor children, appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;706(5) — Finding op negligence in running down pedestrian sustained.</p> <p>In an action for the death of a pedestrian killed while crossing the street by defendant’s motortruck, a finding of negligence, in that defendant failed to keep a proper lookout, held sustained by the evidence.</p> <p>2. Death &wkey;>99(4) — $1,500 for death op AGED NEGRO SUSTAINED.</p> <p>In an action by the wife for the death of an aged colored laborer, still vigorous and having a prospect of some years of usefulness, a judgment, fixing damages at $1,500, sustained.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Pren-tiss B. Carter, Judge.</p> <p>Action by Mrs. Eugenia Cousin against the St. Tammany- Bank & Trust Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (¡Syllabus by Editorial Staff.J </p> <p>Injunction <&wkey;28 — Not granted to reSTRAIN APPLICATION POE RECEIVER FOR CORPORATION.</p> <p>In a suit between litigants to test validity of a transfer of stock in a corporation, the court cannot restrain one in whose name the stock stands on the books of the corporation from prosecuting an application for a receiver for the corporation in another case, Where the same was filed prior to the institution of the action in nullity.</p>

Bernard; B. Em-met Single, Judge. Proceeding by the Godchaux Company, Incorporated, against Albert Estopinal, Jr., Sheriff and ex officio Tax Collector, and others, to enjoin the enforcement of a local drainage assessment.

Em-met Hingle, Judge. Mandamus by the State, on the relation of the Board of Commissioners of Buras Levee' District to compel the erasure from the records by the clerk and ex officio recorder of Plaquemines Parish of a certain contract between relator and N. A. Baker & Son, with appearance by Wisner Estates, Incorporated, in response to the rule.

Wilson, Judge. L. Edward Clark, herein prosecuted as Edwin L. Clark, was convicted of willfully and without just cause neglecting to provide for the support of his minor child, and he appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Jury <&wkey;66(l) — Absence op witness who SIGNED PROCÉS VERBAL NOT FATAL TO DRAWING OF PANEL UNDER THE CIRCUMSTANCES.</p> <p>Defendant’s challenge of drawing of the jury on the ground that one of the witnesses who signed the proeés verbal was absent during part of the proceedings held properly overruled, where the testimony showed that no part of the drawing of the jury was done during the absence of the witness and that he was ab•sent from tie room only three or four minutes, and only while the jury commissioners were arranging the slips of paper hearing the names to be put into the general venire box.</p> <p>2. CRIMINAL LAW &wkey;>llll(l) — RECORD ANNEX-. ED TO BILL OE EXCEPTIONS TAKEN AS CORRECT.</p> <p>Under Act No. 113 of 1896, the record annexed to the bill of exceptions must be taken ,hy Supreme Court as a correct statement of facts upon which the bill of exceptions is based.</p> <p>3. Jury <&wkey;103(5) — Proposed juror who has FIXED OPINION OE ACCUSED’S GUILT REQUIRING A WHOLE LOT OE EVIDENCE TO REMOVE INCOMPETENT.</p> <p>Proposed juror, who stated on oath when examined on his voir dire that he had such a fixed opinion of accused’s guilt that it would require “a whole lot of evidence” to convince him that accused was not guilty, was incompetent, and should have been excused on challenge for cause.</p> <p>4. Jury <&wkey;-103(2) — Proposed juror with OPINION NOT TO BE ACCEPTED UNLESS HE SWEARS THAT HE CAN PUT ASIDE OPINION AND PRESUME INNOCENCE.</p> <p>No man who has formed an opinion of the guilt or innocence of the accused should be allowed to serve as a juror unless he swears on his voir dire that he can and will put aside his opinion and, presuming the accused to be innocent, try the case only upon the law and the evidence.</p> <p>.5. Criminal law <&wkey;1166% (8) — Compelling DEPENDANT TO USE PEREMPTORY CHALLENGES REVERSIBLE ERROR WHERE ALL CHALLENGES ARE EXHAUSTED.</p> <p>Overruling of defendant’s challenge for cause of proposed juror who had shown himself to be incompetent on his voir dire examination held, reversible error, though defendant challenged the proposed juror peremptorily, where defendant was required to use all his peremptory challenges, since to deprive the defendant unlawfully of one of his peremptory challenges allowed by law is as wrong- as it would be to compel defendant to accept an incompetent juror when all peremptory challenges are gone.</p>

Mary; Thomas M. Milling, Judge. Injunction suit by the J. M. Burguieres Company, Limited, against Wilson T. Peter-man, Sheriff, the Iberia & St. Mary Drainage District, and others. From a judgment perpetuating the injunction, defendants appeal.

Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge. Suit by Eeonce M. Soniat against tbe Board of State Affairs and others for a judgment decreeing void an assessment for taxes. Judgment annulling the assessment in its entirety, and defendants appeal.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Suit by E. W. Dreibolz and others against D. M. Fontenot, Sheriff, and others, to correct an assessment of taxes. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Taxation <&wkey;867(1) — Transfer op property SITUATED WITHIN STATE IS SUBJECT TO SUCCESSION TAX ALTHOUGH DECEDENT WAS NONRESIDENT.</p> <p>A transfer of any property which is situated within the state and subject to its jurisdiction is subject to the payment of a succession tax, although the decedent was a resident of another state.</p> <p>2. Taxation <&wkey;867(l) — Succession tax applies TO NONRESIDENT LEAVING PROPERTY IN STATE.</p> <p>Inheritance Tax Law, § 19, providing that in case of a nonresident decedent the district court of any parish in which he left property, movable or immovable, shall exercise jurisdiction for the collection of the tax, applies to the succession of nonresidents, in view of section 1, imposing the tax on “all” inheritances, and section 21, expressly specifying the exceptions intended to be allowed without including the sue-cession of nonresidents, and of section 6, that no executor or administrator shall deliver any inheritance until the tax thereon shall be fixed and paid, and in view of sections 3 and 17.</p> <p>3. Taxation &wkey;856, 867(1) — “Inheritance TAX” IS TAX ON PRIVILEGE OB BIGHT TO INHERIT.</p> <p>An inheritance tax is not a tax upon the property itself hut on the privilege or right to inherit, and in the case of a nonresident this right to inherit does not exist by virtue of the laws of the taxing state but by virtue of the laws of the state of decedent’s residence, especially in view of the Inheritance Tax Law, § 19, indicating conclusively that the succession of nonresidents was intended to he included within the act.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Inheritance Tax.]</p> <p>4. Taxation <&wkey;859(7) — Amendment to Inheritance Tax Law in force at death of DECEDENT BY REDUCING TAX RATE IS UNCONSTITUTIONAL AS TO ACCRUED TAXES 5 “DEBT.”</p> <p>Under the Inheritance Tax Law in force in 1910, Act No. 109 of 1906, by section 1, levying on all inheritances, legacies of direct descendants or ascendants of a deceased, a tax of 2 per cent, and on collateral inheritances tax of 5 per cent, on amount of cash value at death of decedent, the tax was levied or “imposed” upon the succession and was a debt of the person or property, so that the amendment by Act No. 42 of 1912 to reduce the tax to 2 per cent., as applied to accrued taxes, was vio-lative of Const, art. 59, forbidding General Assembly to release the indebtedness, liability, or obligation of any individual to the state or to any parish or municipal corporation thereof.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Debt.]</p> <p>5. Taxation <&wkey;901 — Undue failure to pay SUCCESSION TAX MAKES TAX BEAR INTEREST.</p> <p>On the day of the death of his wife in 1910, the surviving husband might have gone to inheritance tax collector and paid the tax, and while it may not have been his duty to do so until he had opened the succession and in due course established the exact amount that was due, his failure to do so brought him clearly within the Inheritance Tax Law, § 24, providing that taxes levied by the act shall bear interest at the rate of 2 per cent, per month beginning 6 months after the death of the decedent.</p> <p>6. Husband and wife <&wkey;246 — By removal OF HUSBAND AND WIFE TO ANOTHER STATE WIFE DOES NOT IPSO FACTO LOSE HER RIGHT TO COMMUNITY PROPERTY.</p> <p>It is not the law that if married people residing in Louisiana change their domicile to another state, where the law of community of acquéts and gains does not prevail, the wife ipso facto loses her rights to the community property so that it becomes at once the husband’s separate property, especially where there is nothing to show that the law of the state to which a husband and wife move is not the same as the Louisiana law as to the community of acquits and gains.</p> <p>7. Taxation i&wkey;868(l) — Maxim that movables FOLLOW PERSON CANNOT DEFEAT OPERATION OF STATUTE IMPOSINGI INHERITANCE TAX.</p> <p>Where the property of the wife dying in Mississippi, to which state she and her husband had removed from Louisiana, consisted of movables belonging to the community of acquets and gains and kept by the husband in his bank in Louisiana, the situs is not to be considered as having followed the domicile of the parties under the maxim mobilia sequuntur personam, as that maxim, which is based on a pure fiction, cannot defeat the operation of a statute, as Act 109 of 1906, imposing a tax.</p> <p>O’Niell, J., dissenting.</p>

Action by Simon Nash against the Long-ville Lumber Company. Exception of no cause of action sustained, and suit dismissed, and plaintiff appeals.

<p> {Syllabus by Editorial Staff.) </p> <p>1. Mines and minerals <&wkey;79(3) — Lessoks ENTITLED TO ROYALTIES ON OIL COMMINGLED WITH OIL PROM OTHER WELLS WHERE APPROXIMATE AMOUNT COULD BE ASCERTAINED.</p> <p>Where oil lessees refused to deliver royalties to lessors because of dispute as to whether well was on lessors’ land, and for purpose of operating economically ran the oil from such well into pipe line, commingling it with oil from other wells, without keeping a record of exact amount of oil produced by well on lessors’ land, lessors were not entitled to recover royalties on all of the oil so commingled, where the output of each well was known approximately, so that full justice could be done to plaintiff by letting them have the royalties on the proximate output of their well, plus a margin of safety.</p> <p>2. Mines and minerals <&wkey;79(3) — Royalties TO OIL LESSOR VALUED ACCORDING TO PRICE RECEIVED, AND NOT ACCORDING TO MARKET VALUE AT TIME OE JUDGMENT POR ROYALTIES.</p> <p>Where defendant oil lessees delivered oil as royalties to lessors of land adjoining that on which well was situated instead of to plaintiff lessors of such land, lessors in recovering royalties were not entitled to have oil valued at its market value at time when judgment was rendered, but value thereof will be determined by price received therefor by other lessors to whom defendants delivered the oil.</p> <p>3. Mines and minerals <&wkey;79(3) — Oil lessors RECOVERING ROYALTIES POR OIL DELIVERED BY LESSEE TO WRONG PARTY ENTITLED TO INTEREST PROM THE TIME OP JUDICIAL DEMAND POR ROYALTIES.</p> <p>Where defendants holding oil leases on adjoining lands delivered royalties to lessors of land adjoining that on which the well was situated instead of to plaintiffs’ lessors of such land because of mistake as to the boundary, plaintiffs, in recovering royalties, were entitled to interest from the time of judicial demand therefor.</p>

<p>Appeal from Civil District Court, Parish of Orleans ; George H. Théard, Judge.</p> <p>Divorce suit by Mrs. P. H. Kaufman against P. I-I. Kaufman, her husband. Judgment for plaintiff, and defendant appeals.</p>

Andrew, Judge. Action by Mrs. Florida C. Martin and others against Mrs. Mamie S. Sterkx and husband. Judgment for plaintiffs against defendant Mrs. Mamie Sterkx, dismissing as to her husband after a remittitur, and defendant Mrs. Mamie Sterkx appeals.

<p>Appeal from Criminal District Court, Parish of Orleans; James O’Connor, Judge ad hoc.</p> <p>Indictment for arson against Samuel J. Allison. Prom judgment quashing the indictment, the State appeals.</p>

Em-met Hingle, Judge. Suit by the State, on the relation of Joseph D. Gravolet, against Prank J. Lobrano, Registrar of Voters, and others, to compel the Registrar to strike out amaine from the registration roll. Judgment for defendants, and plaintiff appeals. On defendants’ motion to dismiss appeal for want of jurisdiction.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Sales &wkey;>411 — Petition in action fob BREACH OF SALE CONTRACT STATED CAUSE OF ACTION.</p> <p>A petition alleging a sale and purchase, through an agent duly authorized, of 100,000 gallons of blackstrap molasses at 6 cents per gallon, f. o. b. factory, to be delivered by or before October 1st, and the failure of defendant to comply with its obligation to deliver thereunder, states a cause of action.</p> <p>2. Sales <&wkey;52(5) — Evidence sufficient to SHOW EXECUTION OF SALES CONTRACT.</p> <p>In an action for breach of contract to deliver 100,000 gallons of blackstrap molasses purchased through an agent, evidence held to support a finding that the sale contract was in fact made, and that it was made by defendant’s president.</p> <p>•3. Gamins <&wkey;12 — Sale of molasses before MANUFACTURE FOR SUBSEQUENT DELIVERY IS NOT IMMORAL OB ILLEGAL.</p> <p>The custom of sugar planters to sell their molasses in advance of its being made, early in the year, for delivery through the summer and fall, is not reprehensible, either in law or morals.</p> <p>4. Sales <&wkey;172 — Failure to manufacture QUANTITY OF MOLASSES SOLD NOT EXCUSE FOR BREACH OF CONTRACT.</p> <p>In action for failure to deliver a quantity of molasses to be manufactured, that defendant did not make enough molasses to fill Ms contract is not an excuse for failure to perform; the written terms of the sale being unconditional and for a fixed quantity at a definite price, and it being the seller’s duty to see that the purchaser understood any conditions which seller wished to impose.</p> <p>•5. Corporations <&wkey;518(l) — Evidence of WANT OF AUTHORITY TO MAKE CONTRACT INADMISSIBLE WHERE NOT PLEADED.</p> <p>In an, action for failure to deliver a quantity of molasses sold, evidence that defendant’s president was without authority to make the contract on behalf of defendant was properly ■excluded, where such defense was not pleaded.</p> <p>6. Corporations <&wkey;425(4) — Previous dealings MAY ESTOP DEFENDANT .FROM QUESTIONING AUTHORITY OF OFFICERS OR BROKERS TO MAKE SALES CONTRACT.</p> <p>In an action for failure to deliver molasses sold, where defendant’s president had on numerous occasions dealt with its broker in similar matters, and had held such broker out as authorized to handle its products, defendant cannot question the authority or capacity of either the broker or its own president.</p>

<p>Appeal from First Recorder’s Court of New Orleans; J. J. Fogarty, Recorder.</p> <p>Arthur Palmisano was convicted of violating a city ordinance, and he appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Lucius Farris was convicted of murder, and appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>BastaRds <&wkey;105 — Legitimate children of ACKNOWLEDGED ILLEGITIMATE MOTHER DO NOT INHERIT THROUGH HER; “CHILDREN.”</p> <p>A legitimate child does not inherit by representation of her deceased mother, an interest in the estate of the latter’s father, who had acknowledged the mother to be his illegitimate child; grandchildren not being children within Civ. Code, art. 919, as to inheritance by natural children from their natural father, who had acknowledged them; article 3556, No. 8, defining children, and article 929, stating when succession falls to the state, showing the word “children,” with regard to illegitimate or natural children, means only descendants of the first degree; and articles S94-901, treating of representation, being part of a chapter treating only of legal successions.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Children.]</p> <p>Dawkins, J., dissenting.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Beauregard; Winston Overton, Judge.</p> <p>Action by Rodolfo Ayala against the King-Ryder Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by the Southern Cotton Oil Company against the New Orleans & Northeastern Railroad Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;661(2) — Rules foe use of streets must apply uni-F0EMLY TO ALL OF SAME CLASS.</p> <p>A city through its council is vested with control over its streets and, save for the purpose of public passage and travel thereon, may prohibit their use altogether as places of business; but regulations for their use must apply uniformly to all persons of the same class.</p> <p>2. Constitutional law <&wkey;235 — Municipal corporations <&wkey;703(3) — Oedinance, giving UNREGULATED DISCRETION AS TO WHOM TAXICAB PERMITS SHALL BE GRANTED, IS UNCONSTITUTIONAL.</p> <p>Ordinance providing that no taxicab or for-kire automobile shall be permitted to stand on streets without a permit from the department of public safety, designating the location at which such vehicle shall be permitted to stand, is in violation of Const. La. art. 2, and Const. Ú. S. Amend. 14, in that it leaves question as to whom permits shall be issued to the unregulated discretion of the department of public safety.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Compromise and settlement <&wkey;18(l)— Settlement agreement construed.</p> <p>Correspondence constituting compromise agreement construed, and held, that a $3,000 basis of settlement for amount due on notes was superseded by a 75 per cent, basis, on which the parties agreed.</p> <p>2. Bills and notes <&wkey;434 — Creditor receiving MONET IN PAYMENT OF DEBT MAY KEEP IT ALTHOUGH PAID UNDER MISAPPREHENSION.</p> <p>A payee of a note who has received from his debtor money belonging to the debtor in payment of his debt has a right to keep it, even though the payment has been made under a misapprehension on the part of the debtor that the payment of such amount would settle the note in full, under Civ. Code arts. 2301, 2302, 2303.</p> <p>3. Compromise and settlement <&wkey;20(2)— Compromise agreement not carried out does not affect debt.</p> <p>Where agreement to settle debt owing by defendant to plaintiff by payment of 75 per cent, thereof was not carried out by defendant, plaintiff’s claim remained unaffected by it, and plaintiff was entitled to the whole of his debt and not 75 per cent, merely.</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Thomas M. Milling, Judge.</p> <p>Action by Johnston Armstrong against the Ellerslie Planting Company, Limited, and Charles F. Borah, garnishee. From an adverse judgment, the garnishee appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; W. E. Howell, Judge.</p> <p>Action by the Greenwood Planting & Manufacturing Company, Limited, against the Whitney Central Trust & Savings Bank. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and error <&wkey;>627(2) — Appeal dismissed WHEEE TRAN SCRIPT IS PILED APTER RETURN DAT.</p> <p>Where no extension of time has been granted for the filing of a transcript of appeal, and the transcript is filed more than three days after the return day, a motion to dismiss the appeal must prevail.</p>

Action by Monroe E. Ervin against Heirs of David Shelby. Judgment for plaintiff was reversed in part on appeal, and plaintiff and others apply for a review and a reversal.

Cage, Judge. Suit for divorce by Mrs. Victoria Lepenser against James D. Griffin, in which plaintiff caused a curator ad hoe to be appointed for the purposes of the suit. Plea to the jurisdiction sustained, and plaintiff appeals.

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.</p> <p>Jack Coll was convicted of murder, without capital punishment, and he appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Suit by the Louisiana Railway & Navigation Company against the Railroad Commission of Louisiana. From judgment maintaining certain orders of the Commission, plaintiff appeals.</p>

Judicial District Court, Parish of Tangipahoa; W. S. Rownd, Judge. Action by Frank Graziano against Joe De-marco. Judgment for plaintiff, and defendant appeals, and plaintiff answers appeal, praying to have amount of judgment increased.

<p> (Syllabus by the Oourt.) </p> <p>Master and servant <&wkey;385(14) — Award under Workmen’s Compensation Act mat be BASED ON CUMULATIVE EEITECT OP SEVERAL INJURIES.</p> <p>In construing section 8 of Act 38 of 1918, amending and re-enacting certain sections (as previously amended and re-enacted) of Act 20 of 1914 (known as Burke-Roberts Employers’ Liability Act), it is proper, in eases not specifically provided for, to consider the cumulative effect of several injuries befalling the same person, and that one injury becomes more serious in its consequences by reason of another, as, for instance, the loss of the great toe upon the left foot, to a woman who earns a livelihood by operating an elevator, is more serious than it would otherwise be when she loses the right foot in the same accident.</p>

<p> (Syllabus by the Court.) </p> <p>1. Criminal law <&wkey;519(3) — Voluntary CONFESSION NOT RENDEREB INADMISSIBLE BECAUSE MABE WHILE IN CUSTOBY OF ARRESTING- POLICE.</p> <p>Where, in a prosecution for murder, it is shown that the defendant, without inducement by promise, threat, or duress, made a confession of the crime charged,. such confession is none the less admissible in evidence because made while defendant was in the custody of the arresting police.</p> <p>2. Criminal law <&wkey;400(l) — Best evibence OE ORAL CONFESSION IS TESTIMONY OF THOSE HEARING IT, AND NOT SUBSEQUENT CONFES7 SION REDUCED TO WRITING.</p> <p>Where in such case testimony is offered of an oral confession, including all that was said at one time and place, the objection to its admission in evidence that defendant thereafter made another confession, which was taken down by a stenographer and reduced to the form of a type-printed instrument, and that such instrument constitutes the best evidence, is properly overruled; the best evidence of the oral confession not so taken down being the testimony of those by whom it was heard.</p> <p>3. Criminal law <&wkey;538(2) — Variance between ORIGINAL ORAL AND SUBSEQUENT WRITTEN CONFESSION ISSUE OE FACT FOR JURY.</p> <p>Where in such case there is a variance as to details connected with the killing between the confession first made and that which was later reduced to type printing, there arises an issue of fact, the determination of which by the jury is conclusive upon this court.</p> <p>4. Criminal law <&wkey;683(l) — Evidence of OTHER OFFENSES ADMISSIBLE ON REBUTTAL TO SHOW MOTIVE WHERE DEFENDANT MISTOOK ARRESTING OFFICERS FOR HOLDUP MEN.</p> <p>Waiving the question whether evidence of other offenses is admissible in chief to show that the motive for the murder with which a defendant is charged and is on trial was to prevent his arrest by the officer whom he killed, such evidence is admissible, as in rebuttal, where, though the defendant offers no evidence, it is developed upon his cross-examination of a state witness that he had made the statement that at the time of the killing he did not recognize the officers who were attempting to arrest him, but took it that they were trying to hold him up.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;742(4)- — Petition MUST SHOW THAT TORT WAS COMMITTED IN EXERCISE OE LEGITIMATE PRIVATE EUNCTION.</p> <p>Petition alleging that defendant town is a municipal corporation, and that it operated a crude oil burning machine, and through its negligent operation set fire to plaintiff’s factory, was insufficient in that it did not allege that the act was not ultra vires, that the agent or employé of the town was exercising a legitimate corporate duty, and that the act was not one in tbe performance of a government as distinguished from a private function.</p> <p>2. Municipal corporations <&wkey;724 — Liable ONLY EOR TORTS COMMITTED IN EXERCISE OE PRIVATE FUNCTION.</p> <p>While a municipality is not liable for damages occasioned in the exercise of a governmental or public function, a majority of the cases hold that in case of municipal or private functions it stands on the same footing as an individual.</p> <p>3. Municipal corporations <&wkey;742(4) — Pleading must show that tort is one FOR WHICH MUNICIPALITY IS LIABLE.</p> <p>Since in case of municipalities there are two classes of torts, one for which there is liability, and the other for which there is no liability, it becomes tbe duty of tbe pleader seeking to recover for tort to allege specifically the facts which place the action complained of in the class of cases in which there is legal liability.</p> <p>4. Pleading &wkey;>48 — All conditions necessary TO LIABILITY MUST BE ALLEGED.</p> <p>The plaintiff must allege the existence of all conditions necessary to liability.</p> <p>5. Municipal corporations <&wkey;742(4) — Petition MUST SHOW THAT TORT IS NOT ULTRA VIRES.</p> <p>Since the power to operate engines given towns by Act No. 248 of 1912, as amended by Act No. 34 of 1914, is not general, plaintiff in bis petition must connect the engine causing the damage in question with the authorized public utilities.</p> <p>6. Pleading <&wkey;6 — No judicial cognizance OP PACTS NOT ALLEGED.</p> <p>The court cannot take judicial cognizance of facts in a ease, but they must be alleged.</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Winston Overton, Judge.</p> <p>Suit by the Continental Supply Company against George B. Zigler and another. From judgment of nonsuit, plaintiff appeals.</p>

Suit by Mrs. Margaret G. Ellis and others against the Louisiana Planting Company and others. Prom decree partly for plaintiffs, defendants appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Action by Mrs. Dora D. Chapman against the Mutual Life Insurance Company of New York. Judgment for defendant, and plaintiff appeals.</p>

Middleton, Judge. Action by T. Louviere and wife against the Louisiana Railway & Navigation Company. Judgment for the plaintiffs for a part of the amount claimed, and defendant appeals, to which plaintiffs answered, praying for increase of the judgment.

D. Webb, Judge. Action by the Continental Supply Company against the Tucker-Rose Oil Company and Joseph H. Tucker and Henry Rose. Judgment of dismissal as- to two last named defendants, and plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Tkespass &wkey;>43(2) — Dependant mat disprove plaintiff's ownership of land.</p> <p>In an action for damages for trespass by cutting trees from land described, evidence for defendant whose answer denied plaintiff’s ownership of the land and the trees in question, that the trees were located on other land owned by a third person, was competent to show that plaintiff was not in possession as owner, or as representative of the owner, of the land and trees.</p> <p>2. Trespass &wkey;>46 (2) — Evidence sufficient to show plaintiff not owner of land.</p> <p>In an action for damages for trespass by cutting of trees, evidence held to show that plaintiff was not the owner of the land from which trees were severed.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Damages <&wkey;87(l) — Punitive damages A'KB NOT RECOVERABLE IN A COURT OP ONLY CIVIL JURISDICTION.</p> <p>A court having jurisdiction only in civil cases cannot impose a penalty in the form of punitive damages.</p> <p>2'. Sales <&wkey;152 — Seller not liable for NONDELIVERY OE OPTIONAL AMOUNT IN ABSENCE OE SHIPPING INSTRUCTIONS.</p> <p>; A seller who contracted to deliver 100,000 to 125,000 bags is not liable for failure to deliver the last 25,000 bags, where the buyer gave shipping instructions only for 100,000 hags.</p> <p>3. Sales &wkey;170 — No credit allowable eor LOSS' OE 'P'ROEITS AND INSURANCE ON ACCOUNT OP DELAY IN DELIVERY NOT CAUSING LOSS.'</p> <p>Where the seller agreed to deliver rice bags in September, and did deliver the last of them on September 14th, the delivery being accepted by the buyer, and the evidence showed that the buyer held part of the bags' over until the next season as a speculation, the buyer cannot recover damages for delay in delivering on an order given in August and for the insurance on the bags carried over to the next season.</p> <p>4. Sales &wkey;418(3) — Contract price is measure for shortage not due to willfulness.</p> <p>Where bundles of rice bags delivered to buyer were short in weight and number, but only to a degree not unusual, and there was no evidence that shortage was a willful or deliberate violation of the contract, the measure of buyer’s claim is the contract price of the bags, not the market price.</p>

F. Bell, Judge. Action by Harold C. Potter against John Glassell. From a judgment for only part of the relief demanded, plaintiff appeals, and defendant praj^s that plaintiff’s demands be rejected in toto.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by M. K. Nilson and another against Z. K. Brinkerhoff and another. From a judgment for plaintiffs defendant Brinkerhoff appeals.</p>

Schofield Rownd, Judge. Action by Elmer S. Pike against the Kent-wood Bank. Judgment for plaintiff, defendant appeals, and plaintiff asks for an amendment of the judgment.

<p> (Syllabus by Editorial Staff.) </p> <p>MASTER AND SERVANT <&wkey;27S(2) — EVIDENCE HELD SUFFICIENT TO SHOW THAT DECEASED EMPLOYES WAS OVER 16 YEARS OLD.</p> <p>In parents’ action for death of minor child against the child’s employer, under Giv. Code, art. 2315, involving the issue of whether deceased was above 14 years of age at the time of injury, requiring the action to be under the Employers’ Liability Law, evidence held to sustain finding that ho was over 16 years of age.</p>

C. Cage, Judge. Action by Mrs. Ernestine Marshall Cuny against Frank August Cuny. From, judgment allowing plaintiff alimony during the pendency of the suit, defendant appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Homicide <&wkey;156(l) — Testimony of defendant TENDING TO BEBUT INFERENCE OF JOURNEY WITH CRIMINAD INTENT RELEVANT.</p> <p>In a prosecution for killing defendant’s fa-thcr-in-law, in view of the testimony that defendant, while riding in an automobile toward his father-in-law’s home, had stated that the price of the ride was possibly the last dollar he would ever pay the driver, at least for 20 years, testimony of defendant that his wife’s brother had come to him the same day with a message from his wife to come to her father's and get her, the brother being offered as a witness in corroboration, was relevant and im-' properly excluded. ;</p> <p>2. Homicide <&wkey; 188(4) — Testimony of turbulent CHARACTER OE DECEASED INADMISSIBLE AS WITHOUT SUFFICIENT BASIS.</p> <p>In a prosecution for killing defendant’s father-in-law, in view of defendant’s statement that he had killed to save his wife, and of other contradictory statements • of defendant, and all the circumstances, evidence of the domineering, turbulent, violent, determined, and dangerous character of the father-in-law, and of threats made by him against defendant, held inadmissible as without sufficient basis, the conduct and attitude of deceased being shown only by defendant’s testimony that deceased provoked, the fatal difficulty, which, if believed, was a sufficient defense.</p> <p>O’Niell, J., dissenting in part.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. CORPORATIONS <&wkey;425(4) — COMPANY HOLDING OUT VICE PRESIDENT AS MILL MANAGER CANNOT DENY AUTHORITY TO CONTRACT.</p> <p>A cotton seed oil company, after holding out its vice president as manager of its mill, cannot say he was acting without authority in contracting- to sell to a manufacturer of explosives 500 bales of linters, not greatly in excess of the previous yearly output of the mill.</p> <p>2. Corporations <&wkey;432(12) — Evidence held to snow that contract was within authority oe manager oe oil company.</p> <p>In an action by a manufacturer of explosives against a cotton seed oil company for breach of contract to deliver 500 bales of linters, evidence held to show that such contract, made by the vice president of the oil company, manager of its mill was not an extraordinary one, or out of the usual run of the affairs of the company, but one which the manager as such had a right to make.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; J. R. Dand, Judge.</p> <p>Suit by Joe Rubenstein against Miss R. M. Files. Judgment for plaintiff, and defendant appeals.</p>

N. Sandlin, Judge. Suit by Miss Carrie E. Nickerson against A. J. Hodges and others, wherein Mrs. Annie Raley and others, plaintiff’s heirs, were substituted as plaintiffs on her death. Prom a judgment for defendants, plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Divorce <&wkey;36 — Separation prom bed anb board; where separation has lasted seven YEARS, SPOUSE DESERTING MAY OBTAIN DIVOROE.</p> <p>Under Act No. 269 of 1916. § 1, declaring that, when married persons have been living-separate and apart for seven years or more, either may sue for an absolute divorce, a wife who had been living apart from her • husband for seven years may obtain a divorce, even though she was living apart from him without his consent and contrary to his desires.</p> <p>2. Divorce <&wkey;133(l) — Separation from bed AND BOARD; EVIDENCE HELD TO SHOW CONTINUOUS SEPARATION FOR SEVEN YEARS.</p> <p>In a wife’s action for divorce, evidence held sufficient to show that the spouses had been living apart for seven years or more.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Action by Mrs. Lillie Irby against George Irby. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law <&wkey;598 (2) — Diligence in-SUEEIOIENT TO AUTHORIZE CONTINUANCE FOR ABSENT WITNESS.</p> <p>In prosecution for bigamy, where defendant "was arraigned fully sevén weeks before trial, held, court did not abuse its discretion in denying motion for continuance on ground of absence of witnesses residing in another state; there being a lack of proper diligence.</p> <p>2. Criminal law <&wkey;1151 — Continuance WITHIN TRIAL COURT’S DISCRETION.</p> <p>A very wide discretion is allowed trial courts in matter of continuance, and, unless there be an apparent abuse of it, the court on appeal will not interfere.</p> <p>3. Criminal law <&wkey;430 — Certified copy of MARRIAGE RECORD FROM SISTER! STATE ADMISSIBLE.</p> <p>Certified copy of marriage records of another state appearing to disclose that said record- had been properly kept was admissible where certified according to the acts of Congress.</p> <p>4. Names <&wkey;16(2) — “Adolf Bischoff” and “Adolph Bishop” are idem sonans.</p> <p>“Adolph Bishop” and “Adolf Bischoff” and “Rosalie Asbury” and “Roaslie Asubury” are idem sonans.</p> <p>5. Criminal law <&wkey;404(5) — Documents admissible FOR COMPARISON WITH SIGNATURE OF ACCUSED.</p> <p>In prosecution for bigamy, where the state had offered in evidence the marriage license, evidencing marriage of defendant to Mrs. Margaret Black Bischoff, his second wife, and admittedly showing the genuine signature of defendant, there was no error in admitting in evidence envelopes, letters, etc., bearing the names “A. Bischoff,” “Mrs. A. Bischoff,” “Mrs. F. A. Bischoff,” for the purpose of showing by comparison the identity of defendant with the person who wrote them as a circumstance showing that he had been previously lawfully married to Boaslie Asbury Bischoff.</p> <p>6. Criminal law <&wkey;>429(l), 675 — Copt op MARRIAGE RECORD O-F SISTER STATE NOT CERTIFIED INADMISSIBLE.</p> <p>In a prosecution for bigamy, where copy of marriage records of sister state, offered in evidence, were not certified according to acts of Congress, and were identical with one offered by the state to prove the first marriage, the offer was properly rejected.</p> <p>7. Bigamy <&wkey;8 — Record op divorce suit by SECOND WIFE HELD PROPERLY EXCLUDED.</p> <p>In prosecution for bigamy, record in divorce suit by second wife against defendant, including application, commission, and interrogatories to be propounded, held properly excluded as irrelevant and immaterial.</p> <p>8. Witnesses <&wkey;319, 344(2) — Injunction not SERVED INADMISSIBLE FOR IMPEACHMENT; NO IMPEACHMENT ON IRRELEVANT MATTER.</p> <p>In a prosecution for bigamy, certified copy of civil proceeding offered to show that witness, defendant’s alleged first wife, had been enjoined from slandering, was properly excluded, where there was no showing that the papers had been served on the witness, and such witness could not be impeached on an irrelevant matter.</p> <p>9. Witnesses <&wkey;372(2) — Evidence held inadmissible TO SHOW ANIMUS.</p> <p>In a prosecution for bigamy, defendant, for the purpose of showing animus of witness, his alleged first wife, towards him, could not on cross-examination show that the character of 'the woman which it was claimed the first wife had slandered was above reproach.</p> <p>10. Criminal law <&wkey;720(5) — Prosecutor; MAY ARGUE THAT JURY HAS RIGHT TO CONSIDER DEFENDANT’S INTEREST IN RESULT.</p> <p>That the district attorney in his closing argument stated in substance that, since defendant took the stand, he was subject to the same rules as other witnesses, and that the jury had the right to consider his interest in the result, was without error.</p> <p>11. Criminal law &wkey;>1092(ll) — Alleged error; IN ORAL CHARGE NOT APPROVED NOT REVIEWABLE.</p> <p>Where defendant failed to request a written charge, the court on appeal cannot consider exceptions to oral charge where court declined to approve the language attributed to it.</p> <p>12. Criminal law &wkey;865(l) — Inquiring WHETHER JURY HAS AGREED IS NOT COERCION.</p> <p>That between 3:30 p. m., when the case was given to the jury, and 9 p. m. two reports were made of their failure to agree, one about 6 o’clock p. m., for the purpose of ascertaining whether it would be necessary to provide supper for them, and the other about 9 p. m., to determine whether it would be worth while to hold court open any longer, before adjourning, did not constitute coercion; verdict being promptly returned when court convened next morning.</p> <p>13. Criminal law <&wkey;1156(5) — Refusal to HEAR EVIDENCE AS TO ALLEGED SEQUESTRATION OF JURY ON THEIR' REPORT OF INABILITY TO AGREE DOES NOT JUSTIFY REVERSAL.</p> <p>Bill covering refusal to permit deputy sheriff in charge of the jury to testify to the number of times they requested him to report to the court their inability to agree upon a verdict will be overruled, where the minutes of the court and other proof show that the jury were not sequestered an unreasonable time, as the court will not interfere with such matters except in a case of clear abuse.</p> <p>14. Criminal law <&wkey;957(3) — There being NO FORCE OR VIOLENCE, JUROR CANNOT IMPEACH VERDICT.</p> <p>Where motion for new trial did not charge force or violence that would induce any juror to render a verdict to which he would not otherwise willingly agree, tender of foreman of jury for purpose of showing misconduct of jury held properly rejected on the theory that a juror cannot be heard to impeach his verdict.</p> <p>15. Criminal law &wkey;>921 — Objection to WIFE TESTIFYING CANNOT BE URGED FOB FIRST TIME ON MOTION FOR NEW TRIAL.</p> <p>Objection that defendant’s first wife was permitted to testify against defendant, accused of bigamy, cornos too late when urged for the first time on motion for new trial; Acts 1916, No. 157, permitting, but not compelling, one spouse to become a witness for or against the other.</p> <p>16. Criminal law &wkey;>939(l) — New trial not GRANTED TO PROCURE EVIDENCE WHERE DILIGENCE NOT SHOWN.</p> <p>Where motion for new trial did not disclose any newly discovered material facts which might not have been furnished by the exercise of due diligence on the former trial, there was no error in overruling the motion on that score.</p> <p>17. Criminal law <&wkey;288, 336 — Plea of prescription -unnecessary; failure of state TO PROVE THAT PROSECUTION IS. NOT BARRED INVALIDATES CONVICTION.</p> <p>Where information was filed more than three years after alleged date of commission of higamy, and state closed its case without offering any evidence of knowledge of the offense not having come to the notice of a public officer of the requisite authority until within one year as alleged, accused was entitled to an acquittal in view of Rev. St. § 986, providing that no person shall be prosecuted unless the indictment be found or exhibited within one year next after the offense shall have been known to a public officer, and no formal plea of prescription was necessary in view of the plea of not guilty.</p> <p>On Rehearing.</p> <p>IS. Criminal law <&wkey;10 — No common-law “crimes.”</p> <p>There are no so-called common-law crimes in Louisiana; a “crime” being an act or conduct for the commission of which a penalty is prescribed by statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Crime.]</p> <p>19. Criminal law i&wkey;- 1036(1) — Question of ABSENCE OF EVIDENCE MAY BE RAISED AFTER)VERDICT.</p> <p>In a prosecution for bigamy, where information was filed more than three years after alleged date of offense, and state failed to prove that offense did not come to knowledge of public officer until within one year, so that it was not barred by Rev. - St. § 986, accused may after verdict take advantage of the absence of such evidence.</p> <p>O’Niell, J.,' dissenting in part.</p>

B. Holstein, Judge. Action by Joseph T. Byland against the Harve M. Wheeler Lumber Company for personal injuries, under the law of torts, and in the alternative for compensation under the Employers’ Liability Act. Judgment for plaintiff under the Employers’ Liability Act, and defendant appeals.

<p>Question Certified from Court of Appeal, Parish of Orleans.</p> <p>Action by Jas. F, Pierson against Mrs. Lillie Carmouche; opposition of Max Barnett Furniture Company.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Suit by Dennie W. Saunders against Abe Bolden and others. Prom judgment of dismissal, plaintiff appeals.</p>

E. Reynolds, Judge. Action by Dr. J. Pranks against the Davis Bros. Lumber Company, Limited, which was consolidated with an action by the named defendant against the plaintiff. Fronj a judgment for plaintiff in the original action, the defendant appeals.

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Suit by John Y. Snyder, trustee, against A. E. Wilder. From a judgment for monetary damages, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by John A. S. Gray against the New Orleans Dry Dock & Shipbuilding Company. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Master and servant <&wkey;347 — Employees’ Liability Act, making remedy exclusive, IS CONSTITUTIONAL.</p> <p>Rulings to the effect that section 34 of Act No. 20 of 1914 (Burke-Roberts Employers’ Liability Act), making remedy afforded by that act exclusive, affirmed.</p>

King, Judge. Action by J. W. Thompson and others against J. P. O’Leary and others consolidated. From a judgment for only part of the relief prayed for, four of the plaintiffs appeal.

J. Billhartz was convicted of violating a regulation of the Sewer and Water Board, the conviction was affirmed on appeal fo the criminal district court, and defendant brings certiorari.

<p>M. M. Hcdgerton was convicted of an ofíense, and applies for writs of certiorari and prohibition.</p>

<p>Mrs. M. A. Kirsch was convicted of an offense, and she applies for writs of certiorari and prohibition.</p>

<p>P. Kidd was convicted of an offense, and he applies for writs of certiorari and prohibition.</p>

<p>E. Langenhenning was convicted of an offense, and applies for writs of certiorari and prohibition.</p>

<p>Mrs. Augusta H. Ehrensing was convicted of an offense, and she applies for writs of cer-tiorari and prohibition.</p>

<p>Widow D. Eiehorn was convicted of an offense, and she applies for writs of certiorari and prohibition.</p>

<p>Mrs. M. Mollegan was convicted of an offense, and applies for writs of certiorari and prohibition.</p>

<p>Mrs. M. Washington was convicted, and brings certiorari.</p>

<p>J. R. Rhodes was convicted of an offense, and applies for writs of certiorari and prohibition.</p>

<p>L. Messer was convicted of an offense, and applies for writs of certiorari and prohibition.</p>

<p>M. Bornio Was convicted of an offense, and applies for writs of certiorari and prohibition.</p>

<p>J. Alberto was convicted of an offense, and he'applies for writs of certiorari and prohibition.</p>

<p>J. R. White was convicted, and brings cer-tiorari.</p>

<p>A. C. Klein was convicted, and brings cer-tiorari.</p>

<p>William Bayle was convicted of an offense, and he applies for writs of certiorari and prohibition.</p>

<p>V. Barousse was convicted of an offense, and he applies for writs of certiorari and prohibition.</p>

<p>- J. Bonnecarre was convicted of violating a regulation of the Sewerage and Water Board of New Orleans, and ho applies for certiorari.</p>

<p> (Syllabus by Editorial Staff.) </p>

Appeals from Civil District Court, Parish of Orleans; George H. Théard, Judge. Suit for separation by Mary Meynier Schmalz against August F. Schmalz, her husband. From judgment for plaintiff, defendant appeals.

<p> (Syllabus by Editorial Bta-ff.) </p> <p>Logs ahd logging <&wkey;10(3) — Prooe of log SCALE NOT INDISPENSABLE TO SHOW AMOUNT OP LUMBER.</p> <p>The introduction in evidence of a log scale showing the computation of the quantity of lumber in logs of given dimensions is not indispensable in proving the amount of lumber in logs, in view of Act No. 87 of 1892, Act No. 64 of 1898, and Act No. 147 of 1900, adopting the Doyle Rule for measuring the lumber in logs.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1.Criminal law <&wkey;1159(5) — Question of WHETHER LIQUOR IS INTOXICATING NOT TO BE DETERMINED BY APPELLATE COURT.</p> <p>On appeal from conviction in an intoxicating liquor case, appellate court will not determine the question of whether the liquor was intoxicating; such question being for the trial court or jury.</p> <p>2. Criminal law &wkey;260(ll) — Finding of LOWER COURT ON SUFFICIENCY OF EVIDENCE TO CONVICT NOT RE VIEWABLE.</p> <p>The Supreme Court cannot review finding of lower court on sufficiency of the evidence to convict.</p> <p>3. Criminal law <&wkey;1166(S) — Refusal of CONTINUANCE HARMLESS WHERE CONTINUANCE WAS SUBSEQUENTLY ORDERED.</p> <p>Refusal of a continuance was harmless, where ruling of court was changed and a continuance subsequently ordered.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Joseph Young against the Southern-Improvement & Perry Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Judgment <&wkey;85 — Mat be kendered for part OF ACCOUNT ADMITTED.</p> <p>Judgment may be rendered against defendant on the pleadings, in an action on open account, for the amount of the debt acknowledged in the answer, leaving the balance for trial.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Mines and minerals &wkey;>78(7) — Evidence HELD TO SHOW DEVELOPMENT UNDER OIL LEASE.</p> <p>In an action by a lessor against a lessee oil company to compel further development of lands, proof held ample that the number ’ of wells drilled on plaintiff’s land compared with the area showed a more thorough development than lands of like character in the same field generally had, and so complied with the lease.</p> <p>2. Mines and minerals <&wkey;78(7) — Evidence HELD INSUFFICIENT TO REQUIRE OFFSETTING OF OIL WELL ON ADJACENT LAND.</p> <p>In a lessor’s action to compel lessee to offset drilled wells on adjacent tracts in accordance with custom in the field, evidence held to show that it was not a custom to drill offset wells unless wells on adjacent land were 200 feet from the line, and that there was but one well within such limit which was of such small production that the district custom did not require an offsetting well to prevent .draining of plaintiff’s land.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Taxation @=3805(3) — Possession fob three TEAKS PRECLUDES RECOVERY OF LAND BY DELINQUENT TAXPAYER!’ S HEIRS.</p> <p>Under Const, art. 233, heirs of deceased delinquent taxpayer cannot recover land sold for taxes on ground that the assessment was made in the name of a dead man, that the advertisement of sale was not ’in the name of such heirs who were the true and lawful owners, and that no notice of delinquency of sale had been served upon them, where tax sale purchasers had been in possession for more than three years.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Mrs. Eda R. Page against J. Loeffler. Judgment for defendant, and plaintiff appeals.</p>

R. Land, Judge. Proceedings under the Employers’ Liability Law by Mrs. Osie Haddad, to recover for the death of her husband, opposed by the Commercial Motor Truck Company, employer. From a judgment sustaining an exception of no cause of action after a trial on the merits, plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. NEGLIGENCE <&wkey;43 — PILING LOGS ADJACENT TO ROAD NOT NEGLIGENCE.</p> <p>It was not negligence for defendant to pile sawlogs on his property adjacent to a road, though there was no fence between his property and the road.</p> <p>2. Negligence <&wkey;43 — Danger from log on PILE NOT SO OBVIOUS AS TO CONSTITUTE NEGLIGENCE.</p> <p>Where, in placing a log on top of a pile of logs, one of the skid poles used to roll the logs on the pile was left under one end of the log and protruding from the pile a distance preventing such log from lying snug, the danger of the log rolling down was not so obvious as to constitute negligence in failing to observe and guard against it.</p> <p>3. Negligence <&wkey;43 — -Owner o-e logs piled near road under no duty to child except TO AVOID INJURING HIM WANTONLY.</p> <p>Though a child playing on a pile of logs adjacent to a road was not a trespasser, the owner was under no duty to keep the premises safe, and owed him only the negative duty of not wantonly or maliciously injuring him.</p> <p>4. Negligence t&wkey;39 — Responsibility por KEEPING THINGS ATTRACTIVE TO CHILDREN DEFINED.</p> <p>The responsibility for having on one’s premises an obviously attractive object dangerous to children must be confined to cases where the dangerous agency is so obviously tempting to children that the owner is guilty of negligence in failing to observe and guard against the temptation and danger.</p> <p>5. Negligence <&wkey;39 — Log pile not so dangerous AND ATTRACTIVE TO CHILDREN AS TO IMPOSE LIABILITY.</p> <p>A pile of sawlogs is not an object so dangerous and attractive to children as to render the owner thereof liable in damages for injury to a child or caused by a child while playing thereon.</p> <p>6. Negligence &wkey;>7— Care as to children 'AND ADULTS EQUAL.</p> <p>Strangers are not liable to children for negligence in carrying on their business beyond what would be their liability to others equally free from blame.</p>

F. Bell, Judge. Suits by Mrs. Maud Banahan, joined by her husband, Frank C. Banahan, against Carl Svarva and against T. R. Hughes, Sheriff, and others. From judgments dismissing the suits, plaintiffs in each case appealed.

King, Judge. . Suit for separation from bed and board by Mrs. Christine A. Lá Follette Clark against Edwin L. Clark. Judgment for plaintiff, and defendant appeals.

<p> (Syllabus by Mditorial Staff.) </p> <p>1. Bills and notes <&wkey;207 — Transfer of NOTE FOR CANCELLATION HELD SUPPORTED BY CONSIDERATION.</p> <p>Where a vendor of property gave the ven-dee a vendor’s lien note, constituting an incum-brance on the property, and authorized him to present it for cancellation, so that the property might be transferred as unincumbered, as provided for by the sales contract, the transfer of the note was supported by consideration, giving the transferee the right to have it canceled from the records of the parish.</p> <p>2. Bills and notes &wkey;>303 — Transfer of NOTE IN GOOD FAITH FOR VALUE GIVES VALID TITLE.</p> <p>One who takes a note before maturity for a valuable consideration, without any knowledge of any defect of title, and in good faith, holds It by a title valid against all the world.</p> <p>3. Mortgages <&wkey;269 — Reissue of note after EXTINGUISHMENT OF MORTGAGE DOES NOT REVIVE MORTGAGE.</p> <p>Where a note secured by a mortgage comes into the hands of the maker and mortgagor, confusion takes place, extinguishing the obligation and the subsequent reissue of the note does not revive the mortgage, in view of Rev. Civ. Code, arts. 2217 and 3285.</p> <p>4. Fraudulent conveyances <&wkey;297 — Evidence HELD INSUFFICIENT TO PROVE THAT HOLDER OF NOTE TRANSFERRED WAS INSOLVENT.</p> <p>In a suit by creditors to set aside the cancellation of mortgage note by a clerk of court, wherein the insolvency of the holder was in issue as bearing on the question of a transfer of the note without notice of defects, evidence held insufficient to prove that the holder was insolvent.</p> <p>5. Fraudulent conveyances <&wkey;199 — What CONSTITUTES NOTICE- TO PURCHASER. Eli ON GRANTEE OE FRAUDULENT TRANSFEROR STATED.</p> <p>As respects Rev. Civ. Code, arts. 1969,1978, 1979, as to acts in fraud of creditors, the title of the purchaser of a note from one to whom it had been transferred by an alleged insolvent holder would not be defeated by proof that, with the exercise of active vigilance, he might have discovered the existence of such alleged facts, but it must be shown that such purchaser acted in bad faith; that he had knowledge or closed his eyes to facts or circumstances which would carry knowledge of a defective title in his transferor.</p> <p>Provosty, J., dissenting.</p>

Cage, Judge. Action by John Horsthemke against the New Orleans Railway & Light Company. Verdict and judgment for plaintiff, and defendant appeals; and plaintiff, answering the appeal, asks that the amount of judgment be increased.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Mines and minerals <&wkey;78(2) — Lessee HELD IN DEFAULT FOE FAILURE TO DEVELOP LAND.</p> <p>Where oil lease provided it should become void on lessee’s failure to commence and prosecute with diligence drilling for oil or gas within a year, but that it should be in full force for 25 years from discovery of oil or gas and as much longer as gas or oil may be produced in paying quantities, lessee, by failure to drill more than one well, which produced so little oil that it would have been abandoned, if lessee had not been able, by reason of employés attending other wells in the vicinity, to attend to it at no appreciable expense, and by announcing its intention not to drill other wells, defaulted entitling lessors to annulment of lease; the main consideration of such lease being the development of the land for oil and gas.</p> <p>2. Conteacts <&wkey;253 — Indivisible contract CANNOT BE ANNULLED, EXCEPT WITH CONSENT OF ALL CO-OBLIGEES.</p> <p>One or more obligees of an indivisible contract cannot cause contract to be annulled against the wishes of one or more of their co-obligees; the consent of all being required.</p> <p>3. Mines and minerals <&wkey;59 — Consent of ALL LESSORS NOT ESSENTIAL TO ANNULMENT OF OIL LEASE ON BREACH.</p> <p>Where joint oil lease provided that lease should be annulled on lessee’s nonperformance, the lease could be annulled upon lessee’s default, notwithstanding objection of one lessor, qince the provision for annulment in the lease was equivalent to consent, and could not be retracted, in view of Act No. 103 of 1870 (Acts 1871, p. 18).</p>

<p>Appeal from • Seventeenth. Judicial District Court, Parish, of Vermilion, William P. Edwards, Judge. '</p> <p>Action by Paul Laurent and others against Jules G. Laurent and others. Judgment for plaintiffs, and defendant' Jules G. Laurent appeals.</p>

On Motion to Remand. Appeal from Twenty-Eighth' Judicial District Court, Parish of Jefferson; John E. Pleury, Judge. Prank Guagliardo, alias Prank Jordano, and loriando Guagliardo, alias Jordano, were convicted of murder, and the former was sentenced to death and the latter to life imprisonment, and they appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Deeds <&wkey;ll8 — Subsequent deed held NOT SUFFICIENT PROOF THAT TRACT WAS NOT INCLUDED IN FORMER DEED.</p> <p>A deed conveying the vendors’ rights to a tract described therein in which the purchaser already had an interest is not sufficient proof that the tract therein described was not included in the tract described in a former deed executed by three of the grantors of the subsequent deed.</p> <p>2. Executors and administrators <&wkey;129(l) —Succession cannot sue for partition.</p> <p>Partition can only be sued for by one or more of the co-owners of the land, and cannot be made at the suit of an administrator.</p> <p>3. Executors and administrators <&wkey;129(l) —Succession decree giving succession ONE-HALF INTEREST IN PROPERTY HELD ERRONEOUS AS TO DECREEING RIGHTS OF HEIRS.</p> <p>In a suit by an administrator against • an heir’s administrator to recover land claimed by the latter under foreclosure sale, in the absence of showing that the land was subject to claims of creditors of - the succession, it was error to decree one-half of the property to the succession, where the minor children of defendant’s intestate had- an interest in the .land as their father’s heirs and by disclaimer of other heirs.</p>

<p> (Syllabus by llie Court.) </p> <p>1. Criminal law <&wkey;531(3) — Confession HELD NOT INADMISSIBLE AS OBTAINED . THROUGH DURESS AND VIOLENCE.</p> <p>An objection, reserved by a defendant on trial under an indictment for murder, to the admission in evidence of a confession, upon the ground that it was obtained through duress and violence, is properly overruled, when the evidence (made part of the bill of exception) shows affirmatively that it has no other support than the fact that the confession was made while the defendant was in the custody of the police, and after repeated examinations by the superintendent, in an office which was open to the public and was constantly visited by the representatives of the daily papers of a large city, and during which examinations no promise or threat was made to educe the confession, and' defendant was made physically comfortable, and supplied with food, coffee, cigars, and cigarettes, was at all times in perfect control of his faculties, and made a confession which is intelligent, consecutive, detailed, and fluent, and is confirmed by facts included therein, and otherwise thereafter established; there appearing nothing in the situation to warrant the belief that he was induced by hope or fear to confess himself guilty of an offense punishable with •death, if such confession were untrue, but, to the contrary, niuch to satisfy the mind, that he could not, for lacli of information, have made the confession as it was made unless it were true.</p> <p>2. Criminal law <&wkey;520(2) — The proper inquiry IN EXCLUDING CONFESSIONS IS WHETHER THERE WAS SUCH INDUCEMENT AS TO MAKE A FAIR RISK OE A FALSE CONFESSION.</p> <p>The underlying and fundamental principle, which is to be applied in excluding confessions is that, under certain conditions, they may be untrustworthy as evidence, and the proper inquiry in such cases is: Was the inducement such as that there was any fair risk of a false confession?</p> <p>On Rehearing.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Criminal law <&wkey;517(l) — Incriminating EVIDENCE GUARANTY DOES NOT CHANGE RULE AS TO ADMISSIBILITY OF CONFESSIONS.</p> <p>The constitutional provision that no person shall be compelled to give evidence against himself in a criminal case or in any proceeding that may subject him to criminal prosecution was not intended to bring any change in the law of evidence as to the admissibility of confessions, and now, as before, the admissibility of a confession depends upon whether it was voluntary.</p> <p>4. Criminal law <&wkey;519(9) — Confession to POLICE OFFICER! WHILE UNDER ARREST MAY BE ADMISSIBLE.</p> <p>The fact that a confession was made while under arrest and in answer to questions propounded by a police officer does not render it inadmissible so long as it was voluntary.</p> <p>5. Criminal law <&wkey;518(l) — Voluntary confession WITHOUT CAUTION IS ADMISSIBLE.</p> <p>In the absence of a statute requiring caution or warning, the fact that voluútary confession was made by accused without having been cautioned or warned that it might be used against him does not affect its admissibility.</p> <p>6. Criminal law <&wkey;532(%) — Voluntary CHARACTER OF CONFESSION DETERMINED BY CIRCUMSTANCES.</p> <p>The sole question is whether a confession sought to be offered in evidence has been free and voluntary, which question is to be determined exclusively by taking into consideration the circumstances of the making of the confession.</p> <p>7. Criminal law <&wkey;517(l) — Confession MUST NOT HAVE BEEN RESULT OF COMPULSION.</p> <p>All that the law requires is that the confession offered in evidence should not have been the result of compulsion, cither physical or moral.</p> <p>O’Niell and Dawkins, JJ., dissenting.</p>

<p> (Syllabus by the Oourt.) </p> <p>1. BOUNDARIES <&wkey; 30 — In suit to establish BOUNDARY AS TO DEFENDANT OTHER PERSONS NEED NOT BE BROUGHT IN.</p> <p>Where the purpose of a suit is merely to establish the boundary between the lands of the plaintiff and those of the party made defendant, it is not necessary, though it might be desirable, that other persons whose rights are not sought to be affected, and cannot be affected, unless they are made parties, should be brought in.</p> <p>2. Boundaries <&wkey;3(3), 8, 40(1) — Whether .BOUNDARY IS TO BE RE-ESTABLISHED WITH REFERENCE TO MISPLACED NATURAL OBJECTS OR TO FIELD NOTES IS FOR THE COURT; PERMANENT OBJECTS DO NOT ALWAYS CONTROL CALLS.</p> <p>In an action of boundary between litigants claiming under government titles and surveys, the parties are entitled to have the lines reestablished upon the ground as originally located by the government surveyor; Out, unure there are no lines or established corners to be found, and certain natural objects referred to in the field notes of the surveyor are admittedly misplaced, it becomes a question for a court to decide whether the original boundary is to be re-established with reference to the erroneous location of such objects or with reference to the field notes, not shown to be otherwise erroneous. The rule- that the calls in a survey for natural and permanent objects will control other and conflicting calls, though of general, is not of universal, application, and such calls must yield when admitted to be erroneous.</p>

E. Reynolds,- Judge. Opposition by Mrs. Pattie Ferguson to the inventory prepared by C. O. Ferguson, as executor of Drew Ferguson, deceased, in which, after nonperformance of a judgment ordering a different inventory, the opponent filed a rule upon the executor and the heirs, on which the court ordered him to file an account, to which when filed the widow and W. H. Lethiew and others collateral heirs filed oppositions, and from the judgment ordering the reformation of the…

Judicial District Court, Parish of Iberia; James Simon, Judge. Action by the Atchafalaya Land Company against the F. B. Williams Cypress Company and others, in which the Board of Commissioners of the Atchafalaya Basin Levee District and another intervened. Judgment for plaintiff and interveners, and defendants appeal.

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.</p> <p>Action by the Vernon Parish Lumber Company against J. H. Word, assessor, and others. Judgment of dismissal, and plaintiff appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Sabine; John H. Boone, Judge.</p> <p>Suit by Peavy-Wilson Lumber Company against the Police Jury of Sabine Parish and others. Judgment of dismissal, and plaintiff appeals.</p>

R. Land, Judge. Suit by Rinaldo A. Phelps and another against Joseph T. Mulhaupt and others. Judgment for plaintiffs, and defendants J. T. and O. P. Mulhaupt appeal, and plaintiffs answered the appeal praying that that part of the judgment requiring them to collate for certain property received be stricken.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Libel and slandee <&wkey;140 — Defendant in slandee oe title action who claims TITLE MUST RECOVER ON STRENGTH OE OWN TITLE.</p> <p>Where defendant in action in slander of title admits the acts charged and claims title in itself, it assumes the attitude of a plaintiff in a petitory action and must recover, if at all, upon the strength of its own title.</p> <p>2. Mines and minerals &wkey;>81 — Error in description IN TRANSFER OE OIL LEASE DOES NOT AFFECT RIGHTS OF ONE NOT CLAIMING THEREUNDER.</p> <p>Where holder of oil lease transferred his rights in certain portion of land by instrument describing more land than was intended, such error and transferee’s deed of correction did not affect the rights of one who claims under same lessor as such holder but not through the chain of title of which such transfers constitute a part.</p> <p>3. Mines and minerals <&wkey;81 — Lessee not REQUIRED TO RECORD FACT OE PAYMENTS NECESSARY TO KEEP LEASE ALIVE.</p> <p>Record holder of oil lease was not required to place anything on record to show that payments necessary to keep lease alive had been made.</p> <p>4. Mines and minerals <&wkey;79(7) — Burden of PROVING FORFEITURE OF OIL LEASE ON PERSON CLAIMING FORFEITURE.</p> <p>One who claims forfeiture of lease for failure to make payments required to keep lease alive has burden of proving forfeiture.</p> <p>5. Mines and minerals <&wkey;81 — Subsequent LESSEE MERELY REQUIRED TO ASCERTAIN WHETHER PAYMENTS HAVE BEEN MADE BY RECORD HOLDER.</p> <p>One seeking to acquire a subsequent mineral lease upon property to which the right had been previously conveyed would only have to inquire and inform himself as to the status of' the claim of person in whose name property stood at the time he sought to deal with it, and would not be affected by such person’s prior unrecorded lease; such lease being void under Civ. Code, art. 2266.</p> <p>6. Mines and minerals <&wkey;>79(6) — Lessor. WHO HAS PARTED WITH FEE OK ASSIGNED RIGHTS CANNOT DECLARE FORFEITURE.</p> <p>A lessor who had parted with the fee or assigned the royalty rights could not declare' a forfeiture for failure of the record holder of lease to make the payments necessary to-keep the lease alive.</p> <p>7. Mines and minerals <&wkey;>81 — Subsequent LEASE AFTER FORFEITURE BY RECORD OWNER. OF PRIOR1 LEASE HELD GOOD NOTWITHSTAND- ■ ING NECESSARY PAYMENTS . BY LATTER’S TRANSFEROR.</p> <p>Where record owner of oil lease failed to-make the payments necessary to keep lease’ alive, a lease acquired subsequent to such default and upon assumption that prior lease has: expired is good as against transferor of record owner as to land 'described by mistake, though transferor made such payments to lessor within the required time; the subsequent lessee being required merely to ascertain whether lessee of record had made the necessary payments.</p>