Volume 147 — Louisiana Reports

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;280(I)— Statutes &wkey;>94(2)— City held entitled to initiate street proceedings without petition of abutting owner.</p> <p>City governed by the general municipal statute (Act No. 136 of 1898) had power to initiate proceedings for street improvements, notwithstanding section 34, as amended and re-enacted by Act No. 131 of 1904, requiring petition of abutting property owners; such provision being in effect amended by Act No. 241 of 1912, amending Act No. 10 of 1896, the act of 1898 not being a special or local law, in view of Const. 1898, art. 48.</p> <p>2. Statutes <&wkey;l62, 163 — General law can be amended or repealed only by general statutes.</p> <p>A general-law cannot be amended or repealed by special or local statutes, but either general or special law may be amended or repealed by general statutes.</p> <p>3. Estoppel <&wkey;62(5) — Municipal corporations <&wkey;3!9 — City and abutting owners, after receiving ■ benefijts of street improvement, are estopped to complain of irregularities in the proceeding.</p> <p>After street improvement has been completed and in a large measure paid for, and both the city and property owners have received the benefits thereof, neither the city nor property owners could complain of irregularities in proceeding.</p> <p>On Rehearing.</p> <p>4. Evidence <&wkey;25(2) — Court will take judicial notice of class of municipality to which city belongs and powers conferred.</p> <p>Under Act No. 136 of 1898, § 42, court will take judicial notice of class of municipalities to which the city of Opelousas belongs and of the powers conferred by the statute.</p> <p>5. Statutes &wkey;>68 — May be general notwithstanding inapplicability to ail locations in state.</p> <p>A statute general in its terms is not to be regarded as local or special law as contradis-. tinguished from a general law merely because the conditions under which the law may operate or have effect do not prevail in every locality in the state.</p> <p>Monroe, C. J., dissenting.</p>

Campbell, Judge. Proceedings in the successions of Emile Veronie and Hebrard Le Jeune. On opposition of the Crowley Bank & Trust Company, administrator, to the claims of each widow to a homestead allowance. Efom a judgment granting the homestead allowance, the administrator appeals.

<p>- Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Philip H. Gilbert, Judge.</p> <p>Action'by the Planters’Fertilizer & Chemical Company against O. O. Barton. From a judgment for defendant, plaintiff appeals.</p>

Barbe, Judge. Action by Mrs. Martha E. Garlick against Jasper Dalbey, in which the heirs of the defendant, Lucien W. Dalbey and others, were substituted as defendants. From a judgment for defendants, plaintiff appeals.

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Bank's and banking &wkey;U2 — Bank’s capital and “surplus,” made basis of annual license tax, does not include “undivided profits”; “declared or nominal capital and surplus.”</p> <p>In view of Civ. Code, arts. 15 and 17, and Act No. 170 of 1898, § 27, and Acts (Ex. Ses's.) No. 14 of 1917, a bank’s “declared or nominal capital and surplus” made the basis of annual license tax under Act No. 171 of 1898, § 3, par. 2, does not include undivided profits; since the terms “surplus” and “undivided profits” have different meanings in banking circles, the term “surplus” having reference to the fund which had been permanently set apart as such, having been paid in originally by the stockholders for that purpose, or transferred from the undivided profits account.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Surplus; Second Series, Undivided Profits.]</p> <p>2. Statutes <&wkey;219 — Construction by officials charged with enforcement not controlling, but entitled to weight.</p> <p>Though an interpretation of a law by other departments of the government does not control the judicial department, especially where the correctness of such interpretation is the subject of investigation, nevertheless when officers specially charged with the observance and enforcement of a particular law have for a long time determined its meaning and acted accordingly, their interpretation is entitled to great weight.</p> <p>Monroe, O. J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Collision <&wkey;79 — Evidence held insufficient to show negligence on part of vessel.</p> <p>In an action for the death of a passenger in a motorboat who was drowned when the launch was overturned by defendant’s vessel, evidence held to warrant a finding that no light was shown by the launch.</p> <p>2. Collision <&wkey; 105— Evidence held insufficient to show negligence on part of vessel.</p> <p>In an action for the death of a passenger in a motorboat which was struck and sunk by defendant’s vessel in a river, evidence held insufficient to establish negligence on the part of those in charge of the vessel.</p> <p>3. Collision &wkey;577 — Persons in charge of tugs and railroad float may assume that small boats would not approach without a light.</p> <p>Persons in charge- of tugs and a railroad float are warranted in assuming that small boats would not come near the barge or tug without a light at night, and need not keep a lookout at the stern in a position low enough to see a motorboat less than 30 feet long approaching in the dark without a light.</p> <p>4. Negligence <©=>I — 'There can be no liability without negligence.</p> <p>Under Civ. Code, art. 2315, providing that whatever act of man that has caused damage to another obliges him by whose fault it has happened to repair it,' there is no liability unless there has been some fault or negligence.</p> <p>5. Negligence <&wkey;92 — Negligence of those jn charge of motorboat cannot be imputed to passenger.</p> <p>Negligence of those in charge of a motorboat cannot be imputed to a passenger therein who had no control over the operation of the vessel.</p>

D. Webb, Judge. Suit'by W. H. Rowe against the Atlas Oil Company and others, begun as an action for slander of title and converted into an action against the Consolidated Progressive Oil Corporation and another, to declare null ab initio, or in the alternative to declare forfeited an instrument purporting to be an oil and gas lease. From a judgment for plaintiff, defendants appeal.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Suit by Mrs. Jessie Spillman, widow of Henry Spillman, against the Succession of Henry Spillman. Judgment for defendant, and plaintiff appeals.</p>

<p>■ Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Suit by Maurice Peitel against' the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Hugh O. Cage, Judge.</p> <p>Action by Mrs. Widow Cecilia Vera Hudson against the New Orleans Railway & Light Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Railroads &wkey;>398(5) — Engineer of train which struck deceased held not to have acted wantonly.</p> <p>In an. action for the death of decedent, who, after assisting a friend to flag an approaching train, started walking down the track, on the theory the train would stop before it reached him, held that, under the circumstances, there was no justification for deeming the engineer acted wantonly.</p> <p>2. Railroads t&wkey;377— Engineer entitled to assume that one on tracks will step aside.</p> <p>The engineer of a train has the right to assume that a man who knows of its approach will not remain on the track and be run over.</p> <p>3. Railroads <&wkey;383(l) — Pedestrian who proceeded on assumption train would stop held contributo'rily negligent.</p> <p>Deceased, who proceeded on railroad company’s tracks after assisting in flagging the train on the theory that the train would stop before it reached him, is guilty of contributory negligence, and there can be no recovery for his death, even though those in charge of the train failed to promptly give warning.</p> <p>4. Railroads <&wkey;383(l) — Not warranted in assuming flagged train will stop at particular place.</p> <p>Even though trains when flagged habitually stopped before reaching cattle guards, one who assisted in flagging a train must be deemed guilty of contributory negligence where he proceeded down the tracks, and, knowing that the train was approaching, stayed on the tracks and was struck beyond the cattle guard; for no one has a right to assume that a train subject to flag will stop at any particular place.</p>

King, Judge. Action for injunction by Grand Chapter of the Order of Eastern Star against Ella McRobinson and others. Rule nisi dismissed and injunction refused, and plaintiff appeals.

M. Wallis, Jr., Judge. Proceédings' by Cambon Bros, against Miss Fannie Suthon and others to foreclose a mortgage, and suit for injunction restraining foreclosure by Widow Lucius Suthon and others against Cambon Bros, were consolidated, and judgment rendered restraining the foreclosure; from which Cambon Bros, appeal.

Suit by James Musey against J. H. Prater and others. A judgment for defendants was reversed by the Court of Appeal and Delatte & Lagrand, Incorporated, and others apply for certiorari or writ of review.

R. Land, Judge. Suit by C. D. Keen and others against Virginia Logan and others to annul an oil mining lease. Judgment for the plaintiffs, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Pleading <&wkey;>8(7) — Allegations as to agreement to indemnify held conclusions as to effect of letters.</p> <p>In an action between contractors working on the same building on an alleged agreement by defendant to indemnify plaintiff against liability for injuries to defendant’s employés, allegations as to defendant’s agreement to hold plaintiff harmless held mere conclusions of the pleader as to the effect of letters between the parties.</p> <p>2. Master and servant &wkey;>389— Negligent third party, settling with employé, acquires no right by subrogation against employer.</p> <p>As the Employers’ Liability Act subrogates the employer to any rights the employs has against the person whose negligence causes an injury, such third person’s claimed right of subrogation to the rights of the employé with whom it settled could not benefit it in a suit against the employer on an alleged agreement of indemnity.</p> <p>3.Indemnity <&wkey;3 — Correspondence between contractors held' to create no contract.</p> <p>Where plaintiff, doing the structural steel work on a building, wrote defendant, who was doing the stone and brick work, that it would not assume responsibility for injuries to defendant's workmen, that it was impossible to absolutely prevent injury, and that, if defendant desired to have his men at points where plaintiff’s work was being carried on, he would have to assume entire responsibility, and defendant replied that his men were covered by his policies, whether , hurt by plaintiff’s work or defendant’s own work, there was no meeting of the minds, as required by Oiv. Code, arts. 1797, 1798, and no contract of indemnity, as defendant did not represent that his policies would protect plaintiff and plaintiff was bound to know that they would not.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Edward Johnson against James J. Legeai. Prom a judgment for defendant on an exception and plea to the petition, plaintiff appeals.</p>

King, Judge. Habeas corpus proceedings by Mrs. Emma Tardy, wife of Joseph Henry Luwisch, and' husband, against Rev. Father Raymond Carra, and another, to obtain custody of a child. Judgment for defendants, and relators appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Suit by Frank F. Gallaspy against A. J. Ingersoll & Co. Judgment for defendant on reconventional demand, and plaintiff appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; William E. Howell, Judge.</p> <p>Action by Wilfred L. Champagne against Justine Duplantis, wife. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge.</p> <p>Fronie Willis was convicted of larceny, and she appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; A. M. Bar-be, Judge.</p> <p>Action by Hezekiah Winn against Mrs. Dorothy Strickland. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Camille J. Legendre and wife against the Consumers’ Seltzer & Mineral Water Manufacturing Company, Limited. Prom a judgment for plaintiffs, defendant appeals.</p>

C. W. Ellis, Judge. Action by the Alfred Hiller Company, Limited, against the Hotel Grünewald Company, Limited. From a judgment for the defendant and dismissing the warrantor, the American Bonding Company of Baltimore, called in by defendant, plaintiff appeals.

King, Judge. Suit for injunction by Joseph Crucia against Martin Behrman, as Mayor of the City of New Orleaná, and another. From an order dissolving a temporary injunction theretofore granted, plaintiff appeals.

King, Judge. Suit by Joseph Crucia against Martin Behrman, Mayor of the City of New Orleans, and another. From a judgment discharging Frank T. Mooney from a rule for contempt for violation of an injunction, plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Suit for separation from bed and board by Joseph Coltraro against Rosa Lotuso, his wife, wherein defendant filed petition to annul and set aside default judgment taken against her. Prom judgment for defendant in the main demand, and plaintiff in the suit to annul, plaintiff appeals.</p>

Théard, Judge. Suit by Mrs. J. J. Quintell. against Jean Ferran. Judgment for plaintiff, and defendant- appeals, and plaintiff prays for increase of judgment.

Suit to foreclose a mortgage by the Ameriican Brewing Company against Louis Artigues, wherein the Brewing Company proceeded by rule against Bendiseh & Hernandez, contractors to do repair work on the building, and the Recorder of Mortgages, to compel cancellation of registry of the contract in so far as to purport to operate as a lien superior to the mortgage held by the Brewing Company.

Schofield Rownd, Judge. Suit by Albert Millet and others against W. E. Rownd, receiver of the S. J. McKenzie Lumber Company, and others. From judgment for plaintiffs, conditioned on liability for costs of a receivership, plaintiffs appeal.

In the matter of the succession of Mrs. Margeret Macheca, Joseph R. and John C. Macheca, executors, applied for writs of certiorari, mandamus, and prohibition to the civil district court, parish of Orleans, Hon. E. K. Skinner, judge.

<p> (Syllabus by the Court.) </p> <p>Assault and battery <&wkey;l4 — One making assault in belief that brother is in imminent danger not necessarily liable.</p> <p>A person appearing upon the scene of a fight and finding his brother lying upon his back, with one of his apparent antagonists bending over him and another standing -by, may have reasonable ground for believing that his brother is in imminent danger of being killed or of suffering great bodily harm, and his intervention, by striking one of the men on the head with a stick, which he picks up at the moment, does not, of necessity, render him liable in damages for the injury thereby inflicted.</p>

Bernard; R. Em-met Hingle, Judge. Suit by the Badger Louisiana Land Company against Albert Estopinal, Jr., Sheriff of the Parish of Jefferson, and others, in which the Whitney Central Trust & Savings Bank intervened. From a judgment for defendants and intervener, plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Descent and distribution <3=^69 — Succession; other heirs cannot claim lands deeded by ancestor to daughter.</p> <p>Where a daughter obtained a quitclaim deed to certain lands from her mother for her own account, her brothers and sisters cannot claim such lands by inheritance from their mother as against the daughter.</p> <p>2. Infants <&wkey;26 — Minors; sale of property of minor children at private sale for partition not invalid.</p> <p>Where certain transfers made between a widow and her children, major and minor, of interests under the deceased husband’s contract to deliver logs in return for lands, were made in good faith to effect partition, the fact that they were made q.t private sale did not affect their validity, as the property of minors may be so sold for such purpose.</p>

Suit by Edith M. D. Howcott against the Ruddock Orleans Cypress Oompany and others for an injunction. The writ was granted, but dissolved on defendants’ application, and, upon a refusal of a suspensive appeal from the order of dissolution, plaintiff applies for mandamus and prohibition.

Action by the Globe Indemnity Company against Robert E. O’Connor. Judgment for defendant in the city court and the Court of Appeal, and plaintiff brings certiorari.

<p>Appeal from Eifteenth Judicial District Court, Parish of Jefferson Davis; Winston Overton, Judge.</p> <p>Suit by Ered I. Getty against L. L. Richards, Assessor, and others. Judgment for defendants, and plaintiff appeals.</p>

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

King, Judge. In the matter of the tutorship of Margaret Lee. Petition by Mrs. Maretta Schneidau, widow of Julius Lee, who qualified as natural tutrix of the minor child, Margaret Lee, for an order substituting a personal bond for a general mortgage on real estate, opposed by the Recorder of Mortgages. Erom a judgment denying the petition; petitioner appeals.

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.</p> <p>Proceedings by the Delta Land & .Timber Company against J. H. Word, assessor, and others. Prom a decision for defendants, plaintiff appeals.</p>

F. Bell and J. R. Land, Judges. Suit by Riley Hamilton against Frank Solomon, who called John McW. Ford in warranty, and suit by John McW. Ford against Riley Hamilton. From an adverse judgment in each suit, Hamilton appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and information &wkey;>l 10(11) — Indictment in statutory language held sufficient to charge keeping “disorderly house.”</p> <p>An indictment, charging that defendant did keep a house of public entertainment in which he did then and there permit lewd dancing, contrary to statute, is sufficient, being in the language of Act No, 199 of 1912, defining a “disorderly house” as any house of public entertainment conducted in such manner as to disturb the peace, also any place in which lewd dancing is permitted, despite defendant’s contention that the adjective clause in the statute “in which lewd dancing is permitted” is descriptive of a place in which lewd dancing is the custom, and that it was necessary to charge that defendant kept a -house of public entertainment in which lewd dancing was permitted.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Disorderly House.]</p> <p>2. Indictment and information <&wkey;63 — indict- ' ment averring keeping of place where lewd dancing was permitted, need not state legal conclusion that place was disorderly.</p> <p>An indictment asserting that defendant kept a place where lewd dancing was permitted, is sufficient under Act No. 199 of 1912 to state the offense of keeping a disorderly house without the legal conclusion that the place was a disorderly house; the statute defining a disorderly house as a place where such dancing is permitted.</p> <p>3. Disorderly house <&wkey;4 — Under act declaring place where lewd dancing was permitted disorderly house, dancing need not be customary.</p> <p>Under Act No. 199 of 1912, defining a disorderly house among other things as a place where lewd dancing was permitted, one who permits lewd dancing cannot defend on the ground that it was not habitual.</p> <p>4. Indictment and information <&wkey;87(6) — Indictment for continuing offense may specify one day.</p> <p>An indictment for an offense that in its nature is a continuiifg one may validly charge that the offense was committed on one specified day, unless the offense be such that according to the statute it could not be ■ committed on a single day.</p> <p>5. Criminal law <&wkey;254 — Trial judge in misdemeanor cases acts as judge and jury.</p> <p>In a prosecution for misdemeanor, the trial judge performs the function of both judge and jury, and, like a jury in a prosecution for felony, is the sole and exclusive judge of questions of fact pertaining to the guilt or innocence of the party accused.</p> <p>6. Criminal law <&wkey;254, 260(1) — In misdemean- or case, party desiring may submit declarations of law to trial judge and erroneous ruling is reviewable.</p> <p>In - a prosecution for misdemeanor, a defendant may submit to a judge legal propositions under Act No. 93 of 1916, and demand rulings thereon in the manner of asking for a special charge to the jury, and if the judge in such case errs in his ruling, the error may be corrected on appeal, provided the bill of exceptions presents a distinct question of law, and does not require decision of any question of fact pertaining to defendant’s guilt or innocence.</p> <p>7. Criminal law <&wkey;l3 — Statute denouncing as disorderly place where “lewd” dancing is permitted, is sufficient without further definition.</p> <p>Act No. 199 of 1912, defining disorderly house and declaring that a place where lewd dancing is permitted .is a disorderly house, is sufficient without further definition of “lewd,” which in view of the word “dancing” must he deemed as synonymous with indecent, lascivious, or lecherous.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lewd.]</p> <p>8. Constitutional law &wkey;>70(3) — That statute declaring disorderly house place where lewd dancing is permitted might include most fashionable places is no ground for invalidity.</p> <p>That by strained construction or the like Act No. 199 of 1912, defining as disorderly a place where lewd dancing -was permitted, might include the most fashionable of dancing resorts, depending on the trial judge’s idea of graceful movement, wearing apparel, or lack of apparel, is no ground for dedaring the statute invalid; such argument being against the wisdom and propriety of the law.</p> <p>9. Criminal law <&wkey;254 — If defendant desired determination whether lewd dancing in private constituted disorderly house, he should ask for rulings thereon.</p> <p>Where defendant, charged with misdemean- or in keeping a disorderly house in violation of Act No. 199 of 1912, by permitting lewd dancing, desired determination whether lewd dancing in private was a violation of the law, he must request the trial judge for rulings on such proposition in the manner provided by Act No; 93 of 1916.</p> <p>10. Disorderly house <&wkey;5 — Where lewd dancing was done without knowledge of defendant who operated the place, he is not liable.</p> <p>In a prosecution under Act No. 199 of 1912, for maintaining a disorderly house, where lewd dancing'was permitted, defendant is not liable if he did not know of the lewd dancing, or if it occurred despite his effort to prevent it.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.</p> <p>Action by the Leader Realty Company against Raphael E. Taylor. Prom an adverse judgment, plaintiff appeals.</p>

, Judge. Petitory action, originally brought by Mrs. Martha A. Clarkson (Ganey), widow by second marriage of W. A. Ganey, and the children and heirs of said Ganey, against the Good Pine Lumber Company, the Trout Creek Lumber Company, their warrantors, and others. Original plaintiff widow eliminated, and from a judgment rejecting the demands of the other plaintiffs, they appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by Knight Bros, against the Standard Oil Company. Judgment for defendant dismissing the suit, and plaintiffs appeal.'</p>

Holstein,' Judge. Election contest by A. B. Hobgood and others against the Police Jury of Catahoula Parish to set aside declared result of a general election on question of removing parish seat. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge.</p> <p>Action by Charles Bianchi against the Board of Commissioners of the Port of New Orleans. Judgment for defendant, and plaintiff appeals.</p>

R. Land, Judge. Suit by Alonzo W. Prince and others against the Standard Oil Company of Louisiana and others. Judgment for plaintiffs, and named defendant appeals.

King, Judge. In the matter of the succession of John G. Ghisalberti. Proceeding by Mrs. Rosita P. Ghisalberti for permission to give bond under Acts 1916, No. 254. From a' refusal, she appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Malicious prosecution <&wkey;>49 — Petition held not to allege want of probable cause.</p> <p>In an action for malicious prosecution, petition alleging that the arrest of plaintiff was “unwarranted and unjust,” and that the prosecution was “unfounded and malicious,” held insufficient, in that it failed to allege want of probable cause.</p> <p>2. Pleading <&wkey;8(3) — Allegations that prosecution was unjust, unfounded, and unwarranted held mere legal conclusions.</p> <p>Allegations that prosecution was “unjust,” “unfounded,” and “unwarranted” held’ not sufficient pleading of want of probable cause; such words being mere legal conclusions.</p> <p>3. Malicious prosecution <&wkey;l6 — One having probable cause is not liable, though he acted with malice.</p> <p>If there is probable cause for the prosecution, or if the accused is convicted, defendant is not liable, though he acted with malice.</p> <p>4. Malicious prosecution &wkey;>56 — Probable cause presumed.</p> <p>In an action for malicious prosecution, defendant will be presumed to have acted with just or probable cause.</p> <p>5. Malicious prosecution <&wkey;49 — Petition must allege want of probable cause.</p> <p>Petition, to state a cause of action for malicious prosecution, must allege the negative fact that defendant acted without probable cause, and though it is unnecessary that those precise words be used, such facts must be alleged as will clearly and fairly show that the action of the defendant was without any probable foundation.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations t&wkey;>705(!0) — Plaintiff held contributorily negligent in crossing street without looking for approaching automobiles.</p> <p>Plaintiff who attempted to cross street to take a street car on a dark and rainy night after having seen automobiles approaching at a distance of a block and a half, without looking for approaching automobiles after having left curb, was contributorily negligent.</p> <p>2. Municipal corporations <@=^705(1) — Test of whether automobile driver was negligent stated.</p> <p>Whether driver of automobile which struck pedestrian was negligent depends on whether he did what a reasonably prudent man would have done under the circumstances, or omitted to do what a reasonably cautious man would have done.</p> <p>3. Municipal corporations <&wkey;705(2) — Respective rights of pedestrian and automobile driver at street intersection stated.</p> <p>The rights of-a pedestrian and an automobile driver at street intersection are equal and reciprocal, and each must use such caution gnd prudence as the situation demands.</p> <p>4. Municipal corporations <&wkey;705(II) — Pedestrian’s negligence in crossing street without looking held proximate cause of her injuries.</p> <p>Where plaintiff was struck by defendant’s automobile after having attempted to eroás street to take a street car with umbrella drawn over her head, on a dark and rainy night, without looking for approaching 'automobiles after having left the curb, though prior thereto she had seen automobiles approaching a block and a half away, she could not recover; her negligence in failing to look being the proximate cause of the injuries.</p> <p>5. Municipal corporations &wkey;>706(5) — Evidence held not to show that automobile driver could have avoided striking pedestrian.</p> <p>In action for injuries to a pedestrian struck by defendant’s automobile while attempting to cross street at street intersection to take street car on a dark and rainy night, evidence held insufficient to show that driver of automobile could have avoided the accident.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Insurance <&wkey;!5f (I) — Rider attached to binder for purpose of specification must control.</p> <p>Where a so-called “binder” was issued to serve as a regular policy pending the issuance of the standard policy, with a “rider” containing “builders’ risks” clause affixed tnereto, the “binder” and the “rider,” having been executed together, must be read together, and the rider, having been added for the purpose of specification, must control.</p> <p>2. Contracts &wkey;ri56 — Statutes <&wkey;>!94 — Interpretation; the specific controls the general.</p> <p>In the interpretation of statutes and contracts the specific controls the general.</p> <p>3. Insurance &wkey;>l63(l) — Fire policy held a builder’s risk covering only new construction.</p> <p>Where, on application of a building contractor who had contracted to restore partly destroyed building to its original condition, a “binder” was issued by insurer as a regular policy pending issuance of the standard policy required by law, with “rider” attained containing “builders’ risks” clause describing the property insured as the building “in course of construction, including lumber, brick and building material in the building and on the premises adjacent thereto, to be used in the construction of said building,” insurer was not liable to owner for value of such partly destroyed property on its destruction before new work, except to a nominal extent, had been put into the building; the risk covered by such policy being the builder’s risk, and not the owner’s risk. ,</p> <p>4. Evidence i&wkey;462 — Parol evidence of circumstances admissible on issue of whether policy was regular or builder’s risk insurance.</p> <p>' In action on fire policy consisting of “binder” issued as a regular policy and a “rider” attached thereto containing “builders’ risks” clause, involving issue of whether the policy was a regular policy or merely covering the builder’s risk, parol evidence as to the circumstances under which the policy was executed was admissible on such issue, in view of ambiguity of contract.</p> <p>5. Evidence i&wkey;462 — Testimony by applicant as . to character of policy sought admissible to remove ambiguity.</p> <p>In action on fire policy consisting of a “binder” issued as a regular policy with a “rider” attached containing “builders’ risks” clause, involving the issue of whether the risk covered was a builder’s risk or an owner’s risk, the contractor’s testimony as to the kind of policy he had applied for was admissible, in view of ambiguity as to whether the policy was a regular policy or a builder’s risk policy.</p> <p>6. Evidence <&wkey;448 — Circumstances may be shown to remove ambiguity.</p> <p>The circumstances attending the execution of contract may always be shown for removing an ambiguity.</p> <p>7. Evidence <&wkey;457 — Testimony of contractors as to meaning of “builders’ risks” provision of fire policy held admissible.</p> <p>In action on fire policy involving construction of “builders’ risks” provision of “rider” attached to “binder” issued as a regular policy, testimony of contractors in the habit of taking out such policies, including the contractor who applied for policy being sued on, as to meaning of such provision, held admissible.</p>

Mary; Thomas M. Milling, Judge. Separate suits by the Cotton Bros. Cypress Company, Limited, against the Home Insurance Company of New York, and the Springfield Fire & Marine Insurance Company of Springfield, Mass. Cases consolidated for trial in the district court 'and judgment for defendants, and plaintiff appeals.

D. Webb, Judge. Suit by Mrs. Louie A. Wilkinson against J. V. Wilkinson. From a judgment sustaining an exception of no cause of action and dismissing the suit, plaintiff appeals.

Carter, Judge. Habeas corpus by the State, on relation of James R. Birch, against George W. Baker and wife, to recover custody of relator’s minor child. From a judgment making the writ absolute, giving permanent custody of the child to relator subject to the action of the juvenile court as to the legal custody of the child, respondents appeal.

<p> (Syllabus by Editorial Staf.j </p> <p>1. Mortgages <&wkey;528 — Judgment creditor without right to annulment of sale on mortgage foreclosure for price less than superior mortgages.</p> <p>A judgment creditor, whose judgment was recorded in the mortgage records, had no right of action to annul sheriff’s sale of the judgment debtor’s land on the ground that it was made for a pricé less than the amount of the debts secured by conventional mortgages superior to the mortgage in foreclosure of which the property was seized and sold; the only parties having such right of action being the holder of a senior conventional mortgage and the mortgagor, or his wife, the owner of the property.</p> <p>2. Mortgages <&wkey;529(IO) — Judgment reinstating conventional mortgages and recognizing ’ rank at foreclosure sale correct.</p> <p>In suit by a judgment creditor, which had its judgment recorded in the mortgage records,, to annul sheriff’s sale of land on foreclosure of a conventional mortgage, judgment, in so far as ordering the conventional mortgages reinstated and recognizing the order in which they ranked at the time of sheriff’s sale, held correct, under Rev. Civ.' Code, arts. 2045 and 2046.</p>

Théard, Judge. Suit for divorce by Adrain Hava against Marie Ernestine Chavigny, in which defendant prayed for judgment of separation. Suit of plaintiff dismissed, and reconventional demand of defendant dismissed as of nonsuit, and both parties appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Clerks of courts &wkey;»72 — Deputy’s failure to certify as to payment of taxes in taking acknowledgment held not to render deputy and clerk liable.</p> <p>Failure of deputy clerk of court to certify as to payment of taxes on acknowledging act under private signature did not render deputy and clerk liable to purchaser for damages on subsequent sale of premises for nonpayment of taxes then due, notwithstanding Rev. St. §§ 2519, 2520, and State Revenue Act, §§ 74, 75, purchaser having purchased by an act under private signature, and such statute being in the interest solely of the fisc, and having no application to relations between private persons.</p> <p>2. Statutes &wkey;>l2l (6) — Title of State Revenue Act held not to warrant provision as to relations between private parties.</p> <p>If State Revenue Act, §§ 74, 75, relating to acknowledging of acts for conveyance of land without certificate as to payment of taxes, be construed to refer to relations between private persons, it would be unconstitutional, since in such case it would not be authorized by the title of the act, which relates to public revenue.</p> <p>Monroe, C. J., dissenting.</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Jerry Oline, Judge.</p> <p>Suit by Abe Perkins and Priscilla Perkins against the Brownell-Drews Lumber Company, Limited. From judgment for defendant, plaintiffs appeal.</p>

Suit by Mrs. Magdalena Bokenfohr Martin against Houston W. Martin, wherein plaintiff wife sought punishment of defendant husband for contempt by failure to pay alimony. The rule for contempt was made absolute, and defendant husband applies for writ of certiorari and prohibition.

R. Land, Judge. Suit by W. L. Dickinson against the Texana Oil & Refining Company, to forfeit a sublease in oil land. Judgment for plaintiff for the unpaid balance due on the lease, and plaintiff appeals.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Louis Mohren against the New Orleans Bailway & Light Company. From judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the E. B. Hayes Machinery Company against J. H. Eastham and others. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; Ered A. Middleton, Judge.</p> <p>Suit by J. M. Hubert and others against Leon C. Vial, sheriff, and others. Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Street railroads &wkey;?90(5), 99(5) — Motorman held negligent in failing to slacken speed to avoid jitney, whose driver was not negligent in going on track.</p> <p>A street car motorman driving at excessive speed, on seeing 'a jitney ahead should slacken speed to guard against the contingency of the jitney’s swerving on the track temporarily to avoid a horse and buggy, though he had given, proper signals by whistle and gong,, and the driver of the jitney is not necessarily negligent in going upon the track to avoid the horse and buggy, having looked behind shortly before without seeing any car.</p> <p>2. Street railroads <&wkey;85(I) — Street car has no exclusive right.</p> <p>Though the right of a street car to use the part of the street occupied by the tracks is paramount, it is not exclusive.</p> <p>3. Damages &wkey;U30(3) — Jitney owner entitled to $2,500 for injuries to chest and spine.</p> <p>Jitney owner, 59 years old, injured in the chest and lower part of the spine in collision with a street car, subjected to pain and confinement for a time, and rendered unable to do heavy work, though likely to recover sufficiently to do such work as he had been doing, held entitled to $2,500 damages.</p> <p>4. Street railroads <S&wkey;ll5 — Railway liable for repair of jitney damaged in collision.</p> <p>A jitney owner, whose car is damaged in collision with a street car, is entitled to recover from the street railway the cost of repairing his car, in addition to his recovery for personal injuries.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error <&wkey;999(l) — In absence of motion for new trial, verdict is given great weight.</p> <p>Where plaintiffs made no motion for new trial after unanimous verdict for defendant, so that the Supreme Court has not the benefit of the trial judge’s views, great weight must be given to the jury’s conclusions.</p> <p>2. Appeal and error &wkey;> 1002 — Verdict on conflicting evidence conclusive.</p> <p>The Supreme Court, in negligence case, will not overturn unanimous verdict for defendant, rendered on conflicting evidence.</p> <p>3. Municipal corporations <@=^706(3) — Burden of proving contributory negligence of person killed in street is on defendant.</p> <p>While the burden of proving the negligence of a truck driver is on plaintiff, suing for death of a person killed' by bis truck, contributory negligence of deceased is a special defense, which the defendant ha's to support after his own negligence had been established.</p> <p>4. Municipal corporations &wkey;>705(l) — Auto driver must exercise high degree of care at crossing.</p> <p>The driver of an automotive vehicle on a public street must, at points provided for the passage of pedestrians, exercise a high degree of care to avoid accidents, though pedestrians crossing between such points do so in a large measure at their own .peril.</p> <p>O’Niell, J., dissenting.</p>

K. Skinner, Judge. In the matter of the succession of Margaret Elizabeth Coleman, widow of John Macheca. On rule by the executors to show cause why certain children and heirs should not be decreed not to owe inheritance tax. There was judgment that no inheritance tax was due, and the State appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.</p> <p>Jalone D. Gunn was convicted of murder without capital punishment, and he appeals.</p>

Suit by Sophie M. Burgier, now wife of Alexander M. Phin,' against the Succession of Alexandriene Burgier and others. Judgment for defendants, and a further judgment in favor of defendant Mrs. Oscar R. Burgier against the petitioner on a reconventional demand.

Wilson, Judge. Eugene A. Mayo was convicted of willfully neglecting and refusing to provide for the support of his minor child and ordered to make bimonthly payments for its support. Subsequently he filed a rule calling on the mother and State to show cause why the child should not he turned oyer to him, which rule was dismissed, and he moved for appeal from both judgments rendered, but was granted appeal >only as to the latter.

Nemours Nunez was indicted for extortion in his office as district attorney of the Twenty-Ninth Judicial District.

<p>Appeal from Second Judicial District Court, Parish of Webster; John N. Sandlin, Judge.</p> <p>Action by Mrs. Maude Mabel Barganier against the Knights of the Maccabees of the World. Judgment for defendant, and plaintiff appeals.</p>

E. Reynolds, Judge. Eleven separate suits by Mrs. Bennie H. Wilder against F. C. Norman and others, and against ten other separate parties defendant. Cases consolidated by consent, and judgments for defendants, and plaintiff appeals.

Interdiction of Frances Anderson Wenger. Action by Silas Gillen, Jr., against Mrs. Julia Ann McArthur, the curatrix, praying for her removal. The district judge refusing to continue the case, defendant makes application for a writ of mandamus.

<p>(Syllabus by Mditorial Staff.)</p> <p>I.Brokers <&wkey;24(2)— Evidence held to prove broker’s agreement to close out trade on exhausting margin.</p> <p>In grain broker’s action for loss sustained in trading in wheat for defendants, evidence held to show that there was a positive agreement between broker and such defendants that the trade for defendants would be closed out when the margin to defendant’s credit should be exhausted.</p> <p>2. Customs and usages &wkey;>19(3) — Evidence held to prove custom requiring broker to close out trade on exhausting margin.</p> <p>In grain broker’s action to recover loss sustained in trading in wheat for defendants in excess of the margin in broker’s hands to defendants’ credit, evidence held to prove a general custom prevailing in the grain trade whereby broker should have closed out trade for defendants on exhausting their margin.</p> <p>3. Brokers <&wkey;24(2) — Could not recover for loss in trading in wheat after customers’ margin exhausted.</p> <p>Where grain broker continued to trade in wheat for particular customers after the margin to the credit of such customers in broker’s hands was exhausted, in violation of a specific agreement and a general custom in the grain trade to close out the trade on margin being exhausted, broker could not recover the loss sustained.</p>

Judicial District Court, Parish of Ascension; Philip H. Gilbert, Judge. Action by the Interstate Trust & Banking Company, trustee, against Picard & Geismar, Limited, and another. From a judgment in favor of plaintiff, the named defendant appeals.

Tammany; Prentiss B. Carter, Judge. Action by H. G. Smith & Sons and the Smith Hardware Company against Mrs. Lilly J.Jenkins, widow and administrator of the Succession of John L. Jenkins. Erom a judgment ordering the homestead sold to pay debts, defendant appeals.

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; J. B. Grow, Judge.</p> <p>Prosecution by the State against Caspar Howell on a charge of murder. The claims of Drs. A. L. Metz and W. H. Harris for fees as expert witnesses were not allowed in full, and they took a rule on the parish police jury to show cause why their claim should not be allowed, and from an adverse decision, they appeal.</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.</p> <p>J„ M. Trull was convicted of bigamy, and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Set-off and counterclaim &wkey;>33(l) — Compensation and reconvention; exception to re-conventional demand properly sustained.</p> <p>In action for delivery of remaining tons of scrap iron sold, where the parties were residents of the same parish, and an account reconvened on by defendant did not grow out of the contract for scrap iron, exception to defendant’s reconventional demand was properly sustained.</p> <p>2. Sales <&wkey;4!8(14) — Buyer’s damage for failure to deliver does not include inconvenience, loss of time, etc;</p> <p>The measure of damages of plaintiff suing for delivery of remaining tons of scrap iron was the value of iron undelivered, or the price plaintiff would have had to pay for similar material to take its place; further damages for inconvenience, loss of time, etc., not being recoverable.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and servant &wkey;>387 — Employé compensated for loss of finger cannot recover for temporary total disability.</p> <p>An employé who has lost a finger other than the. index finger and who has received half wages for 20 weeks, the compensation for such loss fixed by Employers’ Liability Act, § 8, subsec. “d,” as amended by Act No. 243 of 1916, is not entitled to compensation for temporary total disability under subsection “a” of said section.</p> <p>2. Master and servant <&wkey;405(6)— Evidence held insufficient to show permanent partial disability within Compensation Act.</p> <p>Evidence held insufficient to prove that employé was suffering with a permanent partial disability, beyond the loss of one finger for which he had received compensation, by reason of stiffness of two other fingers so as to entitle him to compensation, under Employers’ Liability Act, § 8, subsec. “e,” as amended by Act No. 243 of 1916.</p>

Certiorari from Court of Appeal, First Circuit. Action by Fernand Mouton jand others against Ambrose L. Marshall. From judgment for plaintiffs, defendant appealed to the Court of Appeal, which reversed in part, and plaintiffs appeal.

<p> (Syllabus by tlio Court.) </p> <p>1. Mandamus &wkey;>38 — Does not lie to control judicial discretion.</p> <p>Mandamus will not lie to control the discretion of a judicial officer.</p> <p>2. Corporations &wkey;362l(6) — Partnership <&wkey;> 325(3) — Sequestrator or receiver not appointed on ex parte application save in extreme cases.</p> <p>Save in an extreme case, a sequestrator or receiver should not be appointed to take charge of the property and affairs of a partnership or corporation upon an ex parte application.</p>

Théard, Judge. Suit by William Monvoisin against George Plant for personal injury, in which plaintiff compromised with defendant on payment of a specific sum and moved for a discontinuance as in case of nonsuit, which was ordered. Subsequently plaintiff filed a .supplemental amended petition making the original defendant and the Ocean Accident & Guaranty Corporation, Limited, parties defendant for the same accident and injury.

Landry Parish. Suit for injunction by Benjamin Sehexnailder against D. W. Fontenot, Sheriff, and others. Judgment in the district court for plaintiff perpetuating the injunction, and on appeal to the Court of Appeal the injunction was dissolved and defendant awarded damages for attorney’s fees and costs and plaintiff obtained a writ of certiorari.

Action by Adam Sickinger against the Board of Directors of the Public Schools for the Parish of Orleans, in which Abry Bros, were joined as defendants on defendant’s prayer that they be called in warranty. Judgment for first-named defendant, dismissing plaintiff’s suit, and for Abry Bros., dismissing the call in warranty, and plaintiff appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Divorce <&wkey;!72 — Judgment in separation suit held not res judicata in divorce action.</p> <p>• A judgment in' a separation suit, awarding plaintiff wife alimony for 12 months, held not res judicata in a subsequent suit by the wife for divorce and alimony.</p> <p>2. Divorce i&wkey;298(6) — Award of custody of five year old girl to wife held proper.</p> <p>In a divorce proceeding, wherein the wife sought the custody of a five year old girl, a decree, awarding the custody to the wife, although very poor and largely dependent upon her father for support, 'held proper; defendant being amply able to pay alimony.</p>

Suit by Nettie Morrow, individually, etc., against the Kansas City Southern Railway Company and others, together with a suit by Ephraim Hickman, individually, etc., against the same defendants. From judgments for defendants, plaintiffs appeal.

K. Skinner, Judge. In' the matter of succession of Salvatore Pizzati. Appeal by Mrs. Prances Valenzano Pizzati, widow, from a supposed final decree of partition. On motion by John Alonzo Woodville, testamentary executor, and Robert Woodville, legatee to dismiss.

Barbe, Judge. Action by John Gault and wife against the Pineland Naval Stores Company, in which Frank Gault, on becoming of age, was made a party plaintiff. Judgment for defendant, and plaintiff's appeal.

Action by Max Rau against Mrs. A. Oherda, in which plaintiff obtained a writ of sequestration. Writ dissolved on motion, and plaintiff appealed, and, pending defendant’s exceptions in the district court to the sufficiency of the petition, the Court of Appeal decided that the sequestration was partly wrongful and should be dissolved in part and maintained in part, and plaintiff applies for certiorari or writ of review.

C. Cage, Judge. In the matter of the succession of Harry Hoyle. From a judgment compelling him to pay the purchase price of a house adjudicated to him at public sale, Ered Franz appeals.

Landry. Suit by Ursin T. Iseringhausen against Walter Larcade and others. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff brings certiorari.

Canan, City Judge. William W. Duson was convicted of violation of a fire ordinance, and from judgment dismissing charge the City of Crowley appeals.

Campbell, Judge. Mandamus by the State, on the relation of Marie G. A. Smit, against the Lafayette Building Association. From judgment making the writ peremptory, defendant appeals.

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Suit by B. Y. Wemple against the Pasadena Petroleum Company, the Producers’ Oil Company, and-another. Judgment for plaintiff, and defendants appeal.</p>

R. Land, Judge. Proceedings under the Employers’ Liability Act (Act No. 20 of 1914) by Joe Pye to obtain compensation for personal injuries, opposed by the Southwestern Gas & Electric Company. There was an award of compensation, and the employer appeals. Motion by appellant that cause be remanded to receive proof to fix definitely the extent of the employes incapacity.

Action by G. A. Kennedy & Bro. against the Farmers’ Warehouse. Default judgment for plaintiffs was set aside by the court on motion for new trial, and plaintiffs apply for writs of prohibition, certiorari, and mandamus.

X. Ransdell, Judge. Action by Richard Griffith against C. A. Keller, in which the First National Bank of Vicksburg intervened as the undisclosed principal, and in which Mrs. Selma L. Keller also intervened. From the judgment for plaintiff and intervener, defendant and Mrs. Keller appeal.

<p>Certiorari to Court of Appeal, First District.</p> <p>Action by Anthony J. Dominick against the Detroit Eire & Marine Insurance Company. Judgment for plaintiff affirmed by Court of Appeal, and defendant brings certiorari.</p>

<p>Certiorari to Court of Appeal, First District.</p> <p>Action by Sarkes Antoine against the Eagle & British Dominions Insurance Company, in which judgment for plaintiff was affirmed by the Court of Appeal. Application of the Eagle & British Dominions Insurance Company for certiorari or writ of review to the Court of Appeal.</p>

In the matter of the succession of Adonis Domingue. Suit by Emelie Domingue against Marie A. Domingue, tutrix, and another, cotutor, for an account of their cotutorship. Account was filed, and was opposed by plaintiff, and from the judgment rendered approving the account she appeals.

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Suit by the Cosmopolitan Ice Company against Louis P. Hart and others for rent. Judgment for defendants, and plaintiff appeals.</p>

K. Skinner, Judge. Action by Mrs. Ellen Tobin White against Albert Sidney White, her husband, in which the Creditors’ Committee intervened. From a decree relating to priority of rights in property of defendant husband, plaintiff appeals.

Théard, Judge. Action by the Monte Blanco Real Estate Corporation against Wolvin Line and Ar-buckle Bros. Judgment for plaintiff, and last-named defendant appeals.

<p> (Syllabus by the Court.) </p> <p>1. Taxation &wkey;U22 — Capital stock and shares not taxable at the same time.</p> <p>Seeking the intention of the General Assembly, and considering that the Gonstitution requires that all property shall be taxed, and that taxation should be equal and uniform throughout the respective taxing districts, but that it does not require that the same property shall be taxed twice in the same year, the court finds that it is not the intention of the existing law to tax both the capital stock of banks and other corporations and the shares of such stock in the hands of the holders at one and the same time.</p> <p>2. Taxation <&wkey;30 — 'Taxing authorities cannot supply omission by General Assembly.</p> <p>Whatever may be the power or duty of the General Assembly, under the Constitution with reference to taxation, its failure to impose a particular tax cannot be made good by the assessing authorities.</p>

Action by William E. Green against the Longville Lumber Company. Judgment for plaintiff was affirmed on appeal by the defendant to the Court of Appeals, and the defendant brings certiorari.

<p>Appeal from City Court of Hammond; H. G. Hungate, Judge.</p> <p>Suit by John A. Ballard, Tax Collector, against the Hammond Coca-Cola Bottling Company, Limited. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from First Justice’s Court, Parish of Tangipahoa; C. D. Strickland, Justice of the Peace.</p> <p>Suit by John A. Ballard, ex officio Tax Collector of the Parish of Tangipahoa, against the Kentwood Ice Manufacturing & Bottling Works, Limited. From judgment for defendant, plaintiff appeals.</p>

Th6ard, Judge. Suit by Arthur B. Lacour and others, liquidators of the Prudential Savings & 1-Iom'e-stead Society, against the National Surety Company of New York. Prom a judgment dismissing the suit, the plaintiffs appeal.

Suit by George Seals against Mose Funches. Judgment for plaintiff, and defendant applied for writs of certiorari, prohibition, and mandamus.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Judgment <@=3729 — Not conclusive on question not passed upon for lack of jurisdiction.</p> <p>Judgment rendered for creditors in their action to revoke sale of homestead by widower to his son could not sustain their plea of res adjudicata in widower’s action to enjoin sale of his homestead, question of such exemption not having been passed upon in the revocatory action by the Court of Appeals on the ground that it had no jurisdiction.</p> <p>2. Homestead <@=>15 — Exemption only temporary.</p> <p>A homestead exemption is temporary, existing only so long as the conditions prevail under which it is allowed by Const, art. 244.</p> <p>3.Homestead <@=>189 — Simulated sale by widower set aside by creditors, did not divest him of exemption.</p> <p>Simulated sale of homestead property by widower to a son, attacked and revoked by the widower’s creditors, did not divest the widower and his minor child of their homestead exemption under Const, art. 244, simulated sale being void and having no effect,. though whenever the conditions under which Constitution allows exemption cease to exist, judicial mortgages, obtained by creditors in their revocatory action, will become executory.</p> <p>Provosty, J., dissenting.</p>

Boone, Judge. Proceedings to annul tax levy by Pearl Wight, receiver of the Texas & Pacific Rail: way Company, against the Police Jury of Sabine Parish and others. From decree annulling the proceedings, defendants appeal.

Suit by the Grasser Contracting Company against E. Rivers Richardson. From judgment for defendant, plaintiff appealed to the Court of Appeal, which reversed and rendered judgment for plaintiff, and defendant applies for certiorari or writ of review.

<p> (Syllabus by the Oowt.) </p> <p>1. Carriers <&wkey;303(6) — Carrier providing unsafe exit from train liable to passenger.</p> <p>The obligation of a carrier of passengers requires that it shall carry them safely, unless prevented by some act of God or vis major of man, and provide for them a safe place of exit from its trains; and where a carrier not only fails to provide a safe place of exit, but provides an unsafe place, and a passenger suffers injury by reason thereof, the carrier is liable in damages.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Damages c&wkey;=> 132 (8) — $ 15,000 for injury to wrists and jaw and loss of hearing not excessive.</p> <p>An award of $15,000 to a woman 62 years of age, with an expectancy of 12.3 years, and dependent on herself for a living, for the breaking of the bones of both wrists, preventing resumption of her avocation of painting on china, a fracture of the jaw, necessitating the extraction of teeth, the rupture of a drum of an ear, its loss of hearing, a contusion of the hips, and an injury to the back, where she had been earning about $100 per month, was not excessive.</p>

Appeal frnn Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge. Suit for injunction by the Constantin Refining Company against R. B. Day, Tax Collector of the parish of East Baton Rouge. From judgment dismissing the suit and allowing attorney’s fees, plaintiff appeals.

F. Brunot, Judge. Suit for injunction by the Constantin Refining Company against L. J. Ricaud, Tax Collector of the city of Baton Rouge. From judgment dismissing the suit, plaintiff appeals.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Barnard; L. H. Perez, Judge.</p> <p>Henry Pascal was convicted of murder, and he appeals.</p>

K. Skinner, Judge. In the matter of succession of Gaspar Pietri. From a judgment in favor of Leo Pellman against the estate, the executrix and heirs appeal.

E. Reynolds, Judge. Action by Len Langston against G. W. Shaw, Jr., and others. Judgment for plaintiff in part, and plaintiff appeals. On motion to remand for certain purposes.

Case Certified from Court of Appeal, Second Circuit. Action by W. K. Henderson against the Kansas City Southern Railway Company. Judgment for plaintiff was annulled on defendant’s appeal to the Court of Appeal, and judgment rendered for defendant. A rehearing was granted on plaintiff’s application, and questions certified to Supreme Court for instructions.

T. Cunningham, Judge. Consolidated actions by O. S-. Strohecker and others against E. T. Robinson and others and J. T. Kennedy and others. From judgment for defendants in both cases, plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Landlord and tenant <&wkey;30l(l) — Assignee of lease held necessary party defendant in summary action.</p> <p>Where lease provided that the lessee could sublet, and that in such case the sublessee should automatically become a 'party to the contract, and should be held liable, together with the lessee, for any unpaid rent, and should be bound by all conditions of the lease, a proceeding under Landlord and Tenant Act, No. 313 of 1908, only, to obtain possession of the property, should have been brought against the sublessee, and not against the original lessee.</p>

Boone, Judge. Luscius Earris was convicted of murder, and on appeal the case was remanded for the purpose of taking testimony.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by F. R. Chadwick and others against the Standard Oil Company of Louisiana. From a judgment for plaintiffs, defendant appeals.</p>

Proceedings by the Aztec Land Company, Limited, for confirmation of title to certain lands sold for taxes, -wherein John E. Dupuy and others petition for injunction to restrain the sheriff from placing petitioner in possession. Judgment for John E. Dupuy was reversed, and upon his death Mrs. A. Dupuy and others, his widow and heirs, apply for certiorari and writ of review.

Boone, Judge. Suit for compensation under the Employers’ Liability Act by Zebedee G-arr against the Wyatt Lumber Company. From judgment for plaintiff, defendant appeals, and plaintiff, answering the appeal, prays that the term of payment of the compensation be increased.

<p>Appeal from Thirtieth Judicial District Court, Parish of Caldwell; Francis E. Jones, Judge.</p> <p>Suit by General McClary and others against Columbus Payne. From judgment for plaintiffs, defendant appeals.'</p>

<p>Appeal from Eirst Judicial District Court, Parish of Caddo; J. B. Land, Judge.</p> <p>Suit by the State of Louisiana, on the relation of A. V. Coco, Attorney General, against the Union Gas, Oil & Pipe Line Company. Exception of no cause of action sustained, and suit .dismissed, and plaintiff appeals.</p>

Proceedings by tbe State of Louisiana, on the relation of George Seth Guión, District Attorney, for writ of mandamus, against Frank Chauvin, Parish Treasurer. The Court of Appeal for the Parish of Orleans . reversed a judgment of the district court issuing a peremptory writ against respondent, and relator brings certiorari.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; J. A. Williams, Judge.</p> <p>Ed Williams was convicted on a charge of shooting with intent to kill, and he appeals.</p>

E. Brunot, Judge. Consolidated proceedings by the City of Baton Rouge against T. Jones Cross and against Robert A. Hart. Erom judgments giving them insufficient relief, defendants appeal.

K. Skinner, Judge. In the matter of the interdiction of Fernand Vaughn Gasquet. Demand of interdict for right to control his property rejected, and objections to family meeting and to appointment of curator ad hoc overruled, and the interdict appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Levees <&wkey;2 — Change in city boundaries held not to change levee district boundaries.</p> <p>Where a levee district bordered on the limits of a city and where such limit was moved so as to include part of the levee district by the grant of a new charter to the city, such new charter did not have the effect of changing the boundaries of the levee district; the new city charter not amending the Levee District Act.</p> <p>2. Taxation <&wkey;29 — Fixing limits of taxing district essential.</p> <p>An essential feature in the creation of a taxing district is the fixing of its limits.</p> <p>3. Levees &wkey;>7—City may be. included within levee district.</p> <p>There is nothing to- prevent a city being included within, a levee district in whole or in part.</p> <p>4. Taxation <&wkey;47(2)—Inclusion of levee district in city held not void as authorizing “double taxation.”</p> <p>Where, by a change in a city’s boundaries, part of a previously organized levee district was included therein, that both the city and the district were authorized to collect taxes did not constitute an unconstitutional double taxation, since neither the district nor the city could exceed their limitation of taxation.</p> <p>[Ed. Note—Eor other definitions, see Words and Phrases, First and Second Series, Double Taxation.]</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Proceedings by the Capital City Oil Company against R. B. Day, Sheriff and ex officio Tax Collector, and others. From a decision adverse to- plaintiff, it appeals.</p>

Suit by John K. Griffith and others against Duncan Buie, State Highway Engineer, and others to enjoin the carrying out of a road construction contract, in which a temporary injunction was dissolved, and plaintiffs asked an order for suspensive appeal, which was denied unless they would furnish another injunction bond, and plaintiffs, as relators, seek writs of certiorari and of mandamus to compel granting of such appeal and of prohibition to prohibit the judge from making…

<p> (Syllabus by the Court-.) </p> <p>Courts &wkey;>l90(5)— Justices of the Peace &wkey;> 159(7) — Statutory stay of execution on bond inapplicable to justices of the peace and city courts.</p> <p>) Article 575 of the Code of Practice, authorizing an appeal, staying execution, upon a bond for an amount exceeding by one-half the amount of the judgment, “if the same he for a specific Sum,” is inapplicable to appeals from judgments rendered by justices of the peace and judges of the city courts of New Orleans, which are governed by the articles under title 1, part 2, of the Code of Practice; among which is article 1131, authorizing appeals on bonds exceeding by one-half the amounts of the judgments, conditioned that the appellants shall pay such sums as may be awarded against them, which requirement may be complied with though the judgments do not award specific sums.</p> <p>Hence, where a suit in a justice or city court is dismissed on exception of no cause of action, at the cost of the plaintiff, and plaintiff furnishes an appeal bond for an amount exceeding by one-half the costs, the appeal should be sustained, though the judgment appealed from be not for a specific sum, and though the trial judge has not fixed the amount of the bond.</p> <p>Provosty, J., dissenting.</p>

Judge. Suit by the Industrial Lumber Company against R. E. Oden, Tax Collector, and others, , for review of an assessment. From a judgment reducing the assessment, defendants appeal.

<p> (Syllabus by the Court.) </p> <p>1. Trade-marks and trade-names <&wkey;73(l)— One can use own name, but not in manner to mislead public in accepting his goods as those of another.</p> <p>The weight of jurisprudence in this country sustains the doctrine that, in the absence of a contract restricting the exercise of such right (and the capacity for such restriction is limited) , every one may use his own name honestly in his own business and in the earning of his own livelihood, and that of his family, but that no one may lawfully resort to artifice or deceit for the purpose, or with the intent and effect of misleading, or confusing the public and palming off his services, goods, or products as those of another.</p> <p>2. Corporations &wkey;>49(l)— Statute relating to corporate name held not to affect rule against use of name to mislead public.</p> <p>Act No. 267 of 1914 contains nothing in conflict with the doctrine so stated.</p>

D. Webb, Judge. In the matter of the succession of Dr. J. M. Ledbetter. Suit by Dr. W. M. Ledbetter in the form of an opposition to probate of will of deceased, when Dr. Marion A. Led-better petitioned the court to admit it to probate. From an adverse judgment, W. M. Ledbetter appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Constitutional law <&wkey;46(2) — Exception that statute is unconstitutional may be filed after trial and before rendition of judgment.</p> <p>Under Code Prac. art. 346, an exception to the effect that the law under which the plaintiff is proceeding is unconstitutional, filed after the case had been tried and submitted on the issues, but before rendition of judgment, was sufficient to present such question to the court, such exception being in its nature an exception of no cause or right of action, which being a peremptory exception founded on law may be pleaded at any time before final judgment has been rendered, even in the appellate court.</p> <p>2. Appeal and error <&wkey;840(3) — Plea of unconstitutionality may be considered, though overruled as filed too late.</p> <p>That lower court refused to pass on merits of plea of unconstitutionality of the statute under which plaintiff was proceeding and overruled plea on ground that it was filed too late did not preclude appellate court from passing on the merits of the plea.</p> <p>3. Appeal and error &wkey;> 179(1) — Whether plaintiff has cause of action considered without plea.</p> <p>Under the Louisiana system of having broad appeals upon the law and the facts, the question of whether the plaintiff has a legal cause or right of action is presented in every cas6, whether pleaded specially or generally.</p> <p>4. Licenses <&wkey;7 (4) — License tax on retail dealers in pistols held constitutional over objection that graduation is arbitrary.</p> <p>That Act No. 206 of 1908 imposed license tax of specified amount on retail dealers in pistols having gross sales of more than $2,800 and imposed tax of specified amount on dealers having gross sales of less than $2,500 without declaring for payment of tax when gross sales are exactly $2,500 does not subject tax to objection that it is not graduated under Const, art. 229, or that graduation is arbitrary, or that the statute ■ is discriminating, or does not afford all persons in the same class or situation the equal protection of the law, under Const. U. S. Amend. 14.</p> <p>5. Licenses <&wkey;7(4) — License tax on retail dealers in pistols held properly graduated.</p> <p>Act No. 206 of 1908, imposing a license tax on retail dealers in pistols, cartridges, etc., and classing dealers for such purpose into three classes, first, those whose sales are $5,000 or more, second, those whose gross sales are between $2,500 and $5,000, and, third, those whose gross sales are less than $2,500, held not violative of Const, art. 229, requiring license tax to be graduated, notwithstanding payment of same tax by dealer whose sales aggregate $100 as the dealer whose sales aggregate $2,400; the Constitution not requiring that the minimum tax be infinitely or indefinitely small or that graduation be an exact ratio.</p> <p>6. Licenses &wkey;>7(6) — License tax imposed on retail dealers in pistols, cartridges, etc., held not discriminatory; “dangerous weapons.”</p> <p>Act No. 206 of 1908, imposing license tax on retail dealers in pistols, cartridges, etc., held not discriminatory because of express exemption of dealers in rifles and rifle cartridges of 22 and 25 caliber, since such caliber rifles are used merely as toys or for practice, and are not dealt with by the law as dangerous weapons.</p> <p>[Ed. Note. — Fof other definitions, see Words and Phrases, First and Second Series, Dangerous Weapon.]</p> <p>7. Licenses &wkey;>l — License tax on retail dealers in pistols, etc., held enacted under police power despite title of act.</p> <p>Act No. 206 of 1908, imposing a license tax on retail dealers in pistols, cartridges, etc., and making a violation thereof a misdemeanor, held enacted in the exercise of the police power, notwithstanding the title declares that it is an act to increase the revenues of the state.</p> <p>8. Constitutional law c&wkey;212 — Equal protection clause does not deprive states of power to classify.</p> <p>The equal protection clause of Const. U. S. Amend. 14 does not take from the states the power to classify in the adoption of police laws, but admits of the exercise of a wide discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary.</p> <p>9. Constitutional law <&wkey;>209 — Classification need not possess mathematical nicety.</p> <p>A classification having some reasonable basis does not offend against the equal protection clause of Const. U. S. Amend. 14 merely because it is not made with mathematical nicety or because in practice it results in some inequality.</p> <p>10. Constitutional law <&wkey;48 — Facts at enactment presumed to sustain classification if reasonable.</p> <p>When the classification in a law enacted under the police power is claimed to violate the equal protection clause of Const. U. S. Amend. 14, if any state of facts can reasonably be conceived that would sustain it, the existence of such facts at the time the law was enacted must be assumed.</p> <p>11. Constitutional law <&wkey;>48 — One assailing statute must prove it arbitrary.</p> <p>One who assails the classification in statute enacted under police power has burden of showing that classification does not rest upon any reasonable basis, but is essentially arbitrary.</p> <p>12. Licenses &wkey;>32(l) — One failing to pay license tax liable for interest and attorney’s ■ fee.</p> <p>Under Act No. 171 of 1898, §§ 26, 28, retail dealer in pistols, who fails to pay license tax imposed by Act No. 206 of 1908, must pay interest at 2 per cent, per month from the date of delinquency and the fee of tax collector’s attorney.</p> <p>13. Licenses <&wkey;l6(l2) — License tax on retail . dealers in pistols applicable to pawnbroker.</p> <p>Act No. 206 of 1908, imposing license tax on retail dealers in pistols, cartridges, etc., held applicable to pawnbroker whose annual gross sales did not exceed $100.</p> <p>Provosty, J., dissenting.</p>

Em-met Hingle, Judge. Suit under the statute by George P. Lane against A. Perre, or his heirs, to confirm a tax title, with appearance and answer by Henry St. Gez and others, alleging themselves to be surviving heirs of deceased, and claiming an undivided half interest in property in dispute, etc. Judgment for defendants, and plaintiff appeals.

Suit by Mrs. Peter E. Durel against Cornelius R. Buchanan, Sr., wherein defendant petitioned for injunction. From a judgment for plaintiff, defendant in injunction, defendant appeals.

Action by Felix Authement against the Louisiana Western Railroad Company. From a judgment for defendant, plaintiff appeals. This action is brought under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) by a head brakeman in the employ of the defendant company, who was seriously injured September 3,1915, while in the course of his employment.

<p> (Syllabus by Editorial Staff.) </p> <p>Carriers <&wkey;3!8(IO)—Evidence held to show passenger fell after alighting from street ear.</p> <p>Evidence, consisting of testimony by defendant’s employés and two disinterested witnesses that plaintiff fell after he had alighted from the street car, 'held to sustain finding for defendant, notwithstanding testimony by plaintiff, corroborated by two prejudiced witnesses, whose statements contradicted each other, that the car started and threw him while he was in the act of alighting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law <&wkey;918(6) — Nonassignment of counsel not ground for new trial.</p> <p>Nonassignment of counsel for accused is not ground for a new trial.</p> <p>2. Criminal law <&wkey; 1159(2) — Sufficiency of evidence to sustain conviction not considered on appeal.</p> <p>If an accused appears to have been convicted without any evidence at all having been produced against Mm, literally none at all, a question purely of law is presented on appeal; but the appellate court cannot pass on the sufficiency of the evidence, where there is some evidence against the accused.</p> <p>3. Criminal law &wkey;>l 159(2) — Evidence preventing review of question of guilt of cow stealing.</p> <p>In a prosecution for cow stealing, held, that there was some evidence produced against the accused, so that the appellate court could not consider a complaint that the evidence was not sufficient to make out a case against the accused.</p> <p>O’Niell and Dawkins, JJ., dissenting.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; W. E. Blackman, Judge.</p> <p>Action by Henry L. Irwin and others against the Police Jury of Grant Parish. From judgment, for defendant, plaintiffs appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Constitutional law <&wkey;303 — Nuisance <&wkey;60 —Abatement Act concerning nuisances not invalid as denial of due process.</p> <p>Act No. 47 of 1918, declaring houses of assignation or prostitution to be nuisances, and authorizing the district attorney to sue to 'abate them, is not unconstitutional, as depriving the owner of a budding so used of her property without due process of law.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Railroads <&wkey;398(3)— Evidence held insufficient to show negligence as to child.'</p> <p>Evidence held insufficient to prove that locomotive engineer saw or could have seen plaintiff’s child on the track in time to avoid injury.</p> <p>2. Appeal and- error c&wkey;987(4) — Supreme Court will defer to findings of jury, but will exercise own judgment to some extent.</p> <p>In negligence cases the Supreme Court on appeal will defer to the judgment of the jury on findings of fact, but, under the Constitution, is compelled to consider questions of fact, and to some extent exercise its own judgment.</p> <p>3.Appeal and error &wkey;>l003 — Verdict for plaintiffs in death action held not persuasive.</p> <p>In parents’ action for death of two year old child, verdict for plaintiffs held not persuasive in view of allowance to them of only $900 as compensation for loss and suffering endured, since the allowance of only such amount suggests strongly that the jurors themselves were doubtful as to whether any compensation should be allowed.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Suit by John D. Nix, Jr., against N. J. O’Hara, executor, and others. From judgment of dismissal, plaintiff appeals.</p>

<p> (Syllabus by auditorial Staff.) </p> <p>Gifts <&wkey;>49(4) — Donations; evidence held to show return of consideration, so that pretend. ed sale was gift.</p> <p>In a suit to annul the sale of real estate by defendant’s mother to him as a disguised donation, evidence that the mother told plaintiff that she returned the money paid by defendant for the property .to him, corroborated by circumstances explainable only on that basis, held to sustain a finding that the pretended sale was a gift.</p>

R. Holstein, Judge. Action by the American Hardwood Lumber Company against J. W. Kestérson. From a judgment in its favor for only-part of relief prayed for, the plaintiff appeals, and the defendant answers the appeal with prayer for relief originally prayed for.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Evidence &wkey;>574 — Contractor to do haulage on basis of cubic yard entitled to compensation in accordance with estimate of experts.</p> <p>Where the evidence for plaintiff contractor to do haulage for a road contractor establishes that the layer of loose gravel actually put upon the road was thicker everywhere than the number of inches which defendant road contractor seeks to have adopted as the basis of figuring’ cubic yardage from known square yardage, plaintiff is entitled to recover on his contract to receive so much_ per cubic yard on the highway commissioner’s estimate an amount which several estimates made by experts- from the data and practically agreeing show it will be safe to allow plaintiff up to the amount claimed.</p> <p>2. Payment <&wkey;82(4) — Agreement to pay extra for haulage created natural obligation precluding reclamation of payments.</p> <p>If an agreement by a contractor to construct a road to pay extra for the hauling of bricks was without consideration, it created a natural obligation nevertheless, precluding reclamation by the contractor under Oiv. Code, arts. 1757, 2303, against plaintiff for what was paid pursuant to it.</p>

<p>Apxoeal from First Judicial District Court, Parish of Caddo; T. E. Bell, Judge.</p> <p>Action by Abe Meyer against J. M. Comegys. Prom judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Booñe, Judge.</p> <p>Action by W. W. Thompson, trustee, against the Sanders-Lenahan Lumber Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge Acting for T. C. W. Ellis.</p> <p>Proceedings by William Fox against the United Chemical & Organic Products Company under the Employers’ Liability Act. Judgment for plaintiff, and defendant appeals..</p>

<p>Appeal from Fifteenth. Judicial District Court, Parish of Allen; Winston Overton, Judge.</p> <p>Action by the Bowman-Hicks Lumber Company against R. E. Oden, Sheriff and Tax Collector, and others. From the judgment both parties appeal.</p>

Proceeding by Oalice Guidry against Gas-ton Dutel for the contest of an election. The trial judge granted an order requiring plaintiff to elect whether to ask to be seated as the duly elected candidate, or to ask that the election be set aside as null and void, and plaintiff applies for mandamus, prohibition, and certiorari.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Habeas corpus <&wkey;93 — Whether cause was sufficient for removal of father as tutor of minor son not determinable in proceedings to secure custody.</p> <p>Whether neglect of a widower to have certain items included in the inventory of his deceased wife’s estate will be sufficient cause for his removal from the tutorship of his minoi son, though the question might be determined in- a direct action brought for the purpose, is not determinable in the collateral proceeding of the widower, by habeas corpus, to secure possession of the minor son from his maternal grandmother and uncle.</p> <p>2. Guardian and ward &wkey;>25 — Tutorship; action for removal of tutor must be conducted as ordinary suit.</p> <p>Under Code Prac. art. 1017, an action for the removal of a tutor must be commenced by petition and citation, and be conducted in the form of an ordinary suit.</p> <p>3. Habeas corpus <@=»85(1) — Evidence insufficient to show father’s improper conduct in presence of child.</p> <p>Evidence held insufficient to show that a widower, bringing habeas corpus proceedings to secure possession of his minor son from the child’s maternal grandmother and uncle, had ever indulged in company with others in intoxicants and improper conduct in the presence of the child.</p> <p>4. Habeas corpus <&wkey;>85(l) — Evidence held insufficient to show abandonment or failure to support by father.</p> <p>Evidence held insufficient to show that a widower, seeking habeas corpus to secure possession of his minor son from the child’s maternal grandmother and uncle, ever abandoned the child or failed to support him for more than a year.</p> <p>5. Habeas corpus <&wkey;99(l) — Right of father to tutorship and possession absolute.</p> <p>So long as a minor child’s father is able and willing to take care of him, and deserving of the trust, his right to the tutorship and possession of the child is absolute.</p> <p>6. Habeas corpus <&wkey;99(l) — Fact that father intends to remove child from state, when possession secured, immaterial.</p> <p>The fact that widower, seeking habeas corpus to secure possession of his minor son from the child’s maternal grandmother and uncle, intends to take the child out of the state, is not to be considered on the point of his fitness for tutorship and possession of the child, the removal being his privilege.</p>

R. Land, Judge. Action by the Mohawk Oil Company and others against R. T. Layne. Judgment for defendant, and plaintiff Tex-La-Homa Oil Company appeals, and on the death of defendant Layne pending the appeal, Mrs. Eula McFadin Layne, as the universal legatee and testamentary executrix, was substituted.

King, Judge. Action by Leopold Jansen against Nicholas Bellamore and another. From a judgment recalling a temporary restraining order, and from a decree rejecting his demands, plaintiff appeals.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Suit by Mrs. Fannie T. Jackson and another against George Allison Creswell. From a judgment sustaining an exception of no cause of action, plaintiffs appeal.</p>

ThSard, Judge. Action by Mrs. Frances Thomson, wife of John B. Reites, and John B. Reites, to aid, authorize, and assist his said wife, against Mrs. Catherine Cooke, wife of Angelo B. Oetti, and Angelo B. Cetti individually, and to aid, authorize, and assist his said wife. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; William C. Baker, Judge.</p> <p>Action by the Commercial Bank of Wood-ville, Miss., against the First National Bank of Morgan City, La. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>. , Action hy Mrs. I. P. Lorio against E. L. Gladney. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Suit by John A. Ballard, Tax Collector, against L. J. Patenotte. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twenty-Eifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Suit by John A. Ballard, Tax Collector, against the Hammond Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

F. Bell, Judge. Actiou by Mrs. M. Agurs and others against Henry I-Iunsicker, who answered and called in warranty Mrs. M. C. Allen and others. From a judgment in favor of the defendant, the plaintiffs and one of the warrantors appeal.

D. King, Judge. Buies by Paul Chretien against William W. Wren, executor of Mary E. James and Louis Knop, the civil sheriff, and William Johnson, as alleged surviving husband of deceased, to show cause why a balance in the hands of the sheriff should not be paid over to the rule plaintiff. Judgment for plaintiff in rule, and defendant Johnson appeals.

Suit by Mrs. B. Pellman against R. Kay and others. From the decision dismissing a rule taken by the Interstate Land Company against plaintiff to procure a judgment canceling an inscription in the conveyance office of a tax deed under which plaintiff claims, defendants and plaintiff in rule appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fr'ed D. King, Judge.</p> <p>Action by the New Orleans Terminal Company against Mrs. Marie Luckner. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error <&wkey;625 — Papers transmitted from Court of Appeal not considered, in absence of order.</p> <p>The Supreme Court is vested with no jurisdiction of a case attempted to be transmitted from the Court of Appeal under Act 35, Acts 1916, as amended by Act 210, § 6, Acts 1920, of which it has no information, other than that a number of papers purporting to be the record thereof have been lodged in the clerk’s office, with no authority therefor from the Court of Appeal; no order of the Court of Appeal for transmission appearing.</p> <p>2. Mandamus &wkey;>57(l) — Remedy is mandamus where Court of Appeal refuses to transmit record.</p> <p>The remedy of a party, where the Court of Appeal refuses .to transmit the record to the Supreme Court, under Act 35, Acts 1916, as amended by Act 210, § 6, Acts 1920, is by mandamus.</p>

Action by Elizabeth Toussant, widow of David Dent, against the National Life & Accident Insurance Company of Nashville, Tenn. Judgment for the plaintiff in the first city court of New Orleans, and, on defendant’s appeal to the Court of Appeal for the Parish of Orleans, there was a trial upon an agreed statement of facts, and from its modified judgment for plaintiff, defendant applied for certiorari or writ of review.

<p> (Syllabus by Editorial Staf.) </p> <p>1. Insurance <&wkey;>230 — Tornado policies canceled, where voluntarily surrendered although premium not then refunded.</p> <p>Although it was the right of an insured under a tornado policy to retain it for five days after receiving notice of cancellation, and to demand refunding of the pro rata unearned portions of the premiums before he surrendered it, the policy was canceled, where immediately upon notice insured voluntarily surrendered it, although the premium was not then refunded.</p> <p>2. Insurance <&wkey;235 — Evidence held to show that plaintiff surrendered tornado policy for cancellation.</p> <p>In an action on a tornado policy, evidence held to show that plaintiff, at a time when he surrendered his policy to the insurer, agreed to cancellation.</p> <p>3. Insurance <&wkey;234 — Insured, voluntarily surrendering policy, estopped to claim loss.</p> <p>Insured, under a tornado policy having voluntarily and unconditionally surrendered it immediately on receiving notice of cancellation from insurer, without having received from insurer the unearned premiums, thereby assented to the cancellation, and has no claim against insurer for a loss occurring after such voluntary surrender and before a refund of the premium, which he received and retained.</p> <p>O’Niell, J., dissenting in part.</p> <p>On Rehearing.</p> <p>4. Insurance <&wkey;>233 — Tornado policy canceled by mistake remained in force.</p> <p>Where tornado insurance company requested cancellation of one of two policies, and both policies were returned to insurer’s agent by mistake, the policy delivered and indorsed canceled by mistake remained in force.</p> <p>5. Insurance <&wkey;>234 — Cashing refund premium check held not waiver of right to sue on policy canceled by mistake to recover loss.</p> <p>If insured in a tornado policy was misled by a statement in a memorandum accompanying a refund premium check that a certain policy was canceled before a storm, bis receiving and cashing the check was not a waiver of his right to recover the amount actually due him under the policy; the policy having been surrendered and canceled by mistake.</p> <p>6. Insurance &wkey;>539(5) — Failure to give notice of tornado loss not forfeiture.</p> <p>Under a tornado insurance policy, failure to give notice of loss within 15 days after a storm, as required by the policy, held not to work a forfeiture of the claim for loss, although in such case insurer cannot be deprived of any defense or advantage by the failure of the insured to give notice of loss within time.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; J. B. Crow, Judge.</p> <p>Mate Mayfield was convicted of forgery, and.he appeals.</p>

M. Wallis, Jr., Judge. Joseph Abraham and others were informed against for gambling with cards, contrary to a police jury ordinance. From a judgment quashing the information, the State appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Insurance <§=>437 — Previous employment of boy under 14 does not prevent recovery on liability policy.</p> <p>Though Act No. 301 of 1908 forbids the employment of minors under 14 and'an employer’s liability policy declared the insured should not be liable on account of accidents suffered by any child employed contrary to law as to age or by any child under the age of 14,' the insurer cannot escape liability on account of an accident suffered by a child over 14 because the child had been previously employed by the insured before he reached the age of 14.</p> <p>2. Insurance &wkey;>437 — Employer’s offense in not obtaining certificate of age of minor employés does not prevent recovery on employer’s liability policy.</p> <p>Though an employer’s liability policy declared that the insurer should not be liable on account of injury or death of any child employed contrary to law as to age or to any child under the age of 14, where the age was not restricted by statute, the insurer cannot escape liability on account of the death of a child over 14 because the employer failed to comply with Act No. 301 of 190S, § 6, making it an offense to employ a child over 14 until a certificate of age is secured, "etc., and requiring the posting of a list of employés under a term, those provisions being regulatory and for the benefit of the factory inspectors having the duty of inspection, while the • restriction in the policy has reference to employment contrary to law as to age.</p> <p>Monroe, O. J., dissenting.</p>

Théard, Judge. Actions by Rev. Edmond. Daull and by Miss Florence Cuneo against the New Orleans Railway & Light Company. From judgments awarding damages to each plaintiff, defendant appeals, and plaintiffs answer, pray ing an increase in the award.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. John the Baptist; F. A. Middleton, Judge.</p> <p>Action by William B. Hart against Emile A. Picou. Judgment for plaintiff, and defendant appeals.</p>

Suit to contest an election by Ebenezer W. McDow against George E. Walker. Prom a judgment dismissing the suit, plaintiff appeals. On motion to dismiss the appeal.

Jules Allemon, Ovey Allemon, and Forestier Meyer were accused of assault with intent to murder. Jules Allemon pleaded guilty, and from conviction the other defendants appeal.

Suit by William Runkel against the Auto Repair & Garage Company and. others. Judgment for plaintiff by default, and defendants’ motion for new trial to file a plea to the jurisdiction ratione materise was overruled, and defendants applied for writ of prohibition, which was refused, and city court issued and the constable executed writ of ejectment, whereupon the defendants applied for writ of prohibition.

Théard, Judge. Suit by John E. Larrouquette and others against Benjamin O. Brown, doing business as the New Orleans Ice Cream Company, or the New Orleans lee Cream Company. From a judgment dismissing the suit on exception of no cause of action, plaintiffs appeal.

<p>Appeal from Fifteenth. Judicial District Court, Parish of Jefferson Davis; Winston Overton, Judge.</p> <p>Revocatory action by James O. Modisette against George Hathaway and another. Judgment for plaintiff, and defendant Hathaway appeals.</p>

<p>Appeal from' Second Judicial District Court, Parish of Bossier; John N. Sandlin, Judge.</p> <p>Suit by J. W. Elston against the Atlas Oil Company. From a judgment of dismissal on an exception of no cause of action, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; B. K. Skinner, Judge.</p> <p>Action by Henry L. Favrot against E. L. Chappuis. Judgment for plaintiff, and defendant appeals.</p>

Suit for injunction by the State, on relation of the Ruddock Orleans Cypress Company against Louis Knop, civil sheriff of the parish of Orleans. Injunction refused, and plaintiff applies for writs of mandamus and prohibition to the civil district court, *parish of Orleans, Division C, Hon. Fred D. King, judge.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Courts <&wkey;224(7) — Local assessment not “tax” within meaning of provision giving Supreme Court jurisdiction.</p> <p>A local assessment or forced contribution imposed under authority of a petition of a majority of property owners is not a “tax,” within the meaning of Const, art. 85, giving the Supreme Court jurisdiction of all cases in which the constitutionality or legality of a tax is contested.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Tax.]</p> <p>2. Courts &wkey;>483 — Appeal to Supreme Court transferred to court of appeal and not dismissed.</p> <p>An appeal to the Supreme Court, of which such court has not jurisdiction by reason' of the amount involved, will not be dismissed, but will be transferred to the court of appeal, where the attorney for appellant files an affidavit, on appellee’s motion to' dismiss for willfulness, stating that the appeal was brought in good faith and not for the purpose of delay, and there is no reason to believe that the attorney would willfully impose unnecessary cost upon his client by bringing an appeal to the wrong court.</p>

Action by Henry L. Heymann against thé Continental Casualty Company. From a judgment for plaintiff, defendant appealed to the Court of Appeal, which reversed, and plaintiff applies for certiorari or writ of review to the Court of Appeal.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; S. Allen Bordelon, Judge.</p> <p>Action by Sesostris Youchican against the Texas & Pacific Railway Company. Prom judgment for defendant, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1.Burglary <&wkey;>20, 23 — Information for burglarizing railroad car held sufficient. '</p> <p>An information charging that defendant “willfully, feloniously, and burglariously did break and enter in the nighttime of said day a railroad ear, commonly called box car, the property of the V. S. & P. Ry. Co., with the intent the goqds and chattels in said car then and there being feloniously to steal, take, and carry away,” held sufficient ad against claim that state should have set forth the number of the railroad car as well as the kind and brand of canned goods charged to have been stolen therefrom, especially where accused was acquitted of the count of larceny.</p> <p>2. Burglary <&wkey;2— Commop-Iaw definition.</p> <p>Burglary, at common law, is the breaking and entering the dwelling house of 'another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not.</p> <p>3. Criminal Iaw<&wkey;88l(2) — Verdict in prosecution for breaking and entering box car not responsive to charge.</p> <p>In a prosecution under Act No. 47 of 1890 for breaking and entering a railroad car in the nighttime, a verdict, “We, the jury, find the prisoner guilty of burglary in the daytime,” was not responsive to the charge.</p> <p>O’Niell, J., dissenting.</p>

<p>Appeal from Second Recorder’s Court of City of New Orleans; Louis Burthe, Jr., Recorder.</p> <p>Widow J. Griffin, Steve Griffin, and John Griffin, Jr., were convicted of a violation of an ordinance relative to dairy limits, and appeal.</p>

Mary. Action by the Schwing Lumber & Shingle Company, Limited, against W. H. Beckman, with call by defendant of Emile Angelloz in warranty. On appeal by defendant from a judgment sustaining exceptions to the call in warranty and by plaintiff from an allowance to defendant of reimbursement for expenses, the Court of Appeal affirmed the judgment in part and reversed it in part, and plaintiff applies for certiorari or writ of review.

Action by A. C. Wuerpel and others against Charles J. Sinnott, wherein Lyle Saxon and others were garnished. Judgment for plaintiff was rendered against the garnishees, and they appeal!