Volume 148 — Louisiana Reports

<p> (Syllabus by the Court.) </p> <p>Criminal law <&wkey;l09I(II) — Convicted defendant has right to have all testimony attached to bill of exceptions to overruling motion for new trial raising question as to any evidence sustaining charge.</p> <p>Where, upon the request of a defendant.in a criminal prosecution, all the testimony is permitted to be taken down and transcribed, it becomes a matter of right for him to attach it to a bill of exception to the overruling of a motion for new trial, which raises the question whether there was any evidence at all adduced in support of the 'charge upon which - he was convicted.</p>

<p>Appeal from Traffic Becorder’s Court of City of New Orleans; Louis Burthe, Jr., Becorder.</p> <p>Bollo Gilly was convicted of being more than 10 feet away from his taxicab, and appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Suit by administrators of the Tulane Educational Fund against C. A. Stair and others. From a judgment for defendants, plaintiffs appeal.</p>

Action by the S. B. Hicks Motor Company, Incorporated, against Mrs. C. M. Caldwell and others. Judgment- for defendant was affirmed by the Court of Appeal, and plaintiff applies for writ of review.

<p>Application for mandamus by the State, on relation of Joseph B. Smith, against William T. Cunningham, Judge Eleventh Judicial District. Mandamus</p>

<p>Application by the Salmen Brick & Lumber Company, Limited, for writs- of certiorari and prohibition in connection with the case of Euclid E. Jenkins against the Salmen Brick & Lumber Co., Limited.</p>

<p>Application by Archie Marx for writs of certiorari and prohibition to the First district court of Caddo, Hon. J. H. Stephens, Jr., judge, in connection with the prosecution and conviction of the appellant for operating a blind tiger.</p>

James; Charles T. Wortham, Judge. Action by Penick & Ford, Limited, against lyaguespack & Haydel and others. From judgment sustaining exception of no cause of action and dismissing suit, plaintiff appeals.

Action by the McHenry Horse Exchange against the Illinois Central Railroad Company and another. A judgment for defendant was set aside, and judgment for plaintiff entered by Court of Appeal. John Barton Payne, Director General of Railroads, applies for certiorari or writ of review.

<p> (Syllabus by Editorial Staff.) </p> <p>Municipal corporations &wkey;>706(5) — Negligence by driver of automobile truck, which injured four year old boy, not established.</p> <p>Evidence that a four year old boy was injured by running into.the left-hand front wheel of defendant’s auto truck, when it was being backed, and while the chauffeur was looking backward over his right-hand shoulder, in order to secure -a better view of the street on which he was backing, does not establish defendant’s negligence.</p>

C. W. Ellis, Judge. Suit by W. B. Thompson, as trustee in bankruptcy of E. Martin & Co., against the Hibernia Bank & Trust Company, in which the John M. Parker Company intervened. Judgment for defendant bank, dismissing both plaintiff’s petition and the petition in intervention, and plaintiff and intervener appealed, but plaintiff subsequently settled with defendant out of court.

<p>Application for mandamus by the Southern Cotton Oil Company against Hon. Ered A. Middleton and Hon. John E. Fleury, Judges of the Twenty-Eighth Judicial District Court for the Parish of Jefferson.</p>

Proceeding by mandamus by the State, on the relation of M. J. Kahn, against William A. Bell, Registrar of Voters, in the matter of the original application of Bell for writs of prohibition and mandamus against a judge of the civil court for the parish of Orleans.

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>John Eaglin was convicted of larceny, and he appeals.</p>

Suit by the New Orleans Live Stock Exchange against the Orescent City Stock Yards & Slaughter House Company, Limited, wherein plaintiff secured injunction, and defendant applies for writ of mandamus to compel the district judge to dissolve the writ on defendant’s furnishing bond.

'K. Skinner, Judge. Action for divorce by Hannah M. Hillman Gallant against Benjamin F. Gallant.

<p>Appeal from Civil District Court, Parish of Orleans; E. IC. Skinner, Judge.</p> <p>Suit by Michael J. Bolán against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Damages &wkey;>132(6)— $3,000 awarded for injuries to laborer’s wife for broken leg.</p> <p>A laborer’s wife, 47 years old, upon whom fell from a building being demolished cement and cornice stones, one of them a granite beam 8 feet long, 20 inches wide, and' 10 inches thick, falling upon her leg, breaking it below the knee, and bruising and lacerating the flesh so that she was confined to the hospital in fear of blood poisoning, and required to use a crutch and stick for some months, while her leg was permanently shortened, held entitled to damages in the sum of $3,000 against the owners of the remnant of the building, who had not adopted measures of precaution, but had already been mulcted by the jury in the sum of $2,000 for the accident.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Injunction &wkey;U70 — Dissolving temporary injunction ex parte on giving bond erroneous.</p> <p>Dissolving a temporary injunction on defendant giving bond but without notice to plaintiff is an abuse of discretion where no extreme reasons of such action appears.</p>

Suit by Edgar Manceaux, as tutor ad hoc for his minor children, against the Hunter Canal Company. Prom judgment for plaintiff, defendant appeals.

King, Judge. In the matter of the succession of Martin Manion. Opposition of J. E. Manion to allowance of the item of $5,000 which appeared in the final account of Martin H. Manion, executor, as a debt due by the succession to the succession of William J. Manion, deceased. From a judgment for the opponent, the executor appeals.

Boone, Judge. Action under the Employers’ Liability Act by A. B. Earris and another, as surviving parents of Mason Farris, deceased, against the Louisiana Long Leaf Lumber Company and others for compensation for his death. Judgment for plaintiffs awarding compensation, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error <&wkey;l099(3) — Plea of res judicata concluded by disposition of former appeal.</p> <p>Where, on a former appeal, the judgment dismissing the suit on plea of res judicata was reversed and cause remanded, such determination was a conclusive adjudication against the plea.</p> <p>2. Contracts <§=I0(I) — Contract lacking mutuality is void.</p> <p>A commutative contract lacking mutuality is void, and cannot possibly give rise to an action for damages for its breach.</p> <p>3. Appeal and error <§=1099(4) — Former decision held adjudication that contract was not bad for want of mutuality.</p> <p>Where, on former appeal, a judgment dismissing a suit on pleas of res judicata and want of mutuality of contract was reversed, such determination is an adjudication that the contract did not lack mutuality for if it did lack mutuality no action could be maintained thereon.</p> <p>4. Contracts &wkey;>10(4) — Contract by lumber company to deliver shavings held not to lack mutuality.</p> <p>Where a lumber company which burned most of the shavings of its planing mill agreed that if plaintiff would construct a blowpipe it would deliver to him the surplus shavings, plaintiff to make stipulated monthly payments, etc., the contract which required plaintiff, unless unable to accept the shavings, was not open to attack on the ground of want of mutuality.</p> <p>5. Evidence <§=93 — No burden of proof in action for breach of contract to deliver shavings on defendant as to matters in his knowledge only.</p> <p>Where defendant lumber company agreed to furnish plaintiff with shavings on plaintiff's construction of a blowpipe, etc., but after the federal court intimated that the contract lacked mutuality refused to perform, defendant did not, on the theory that the matter was peculiarly within its knowledge, have the burden of giving evidence as to the amount of shavings, etc., so as to establish plaintiff’s case.</p> <p>* On Rehearing.</p> <p>6. Sales &wkey;>4l8(4) — Measure of damage for breach of agreement to deliver shavings.</p> <p>Where defendant agreed that if plaintiff would construct a blowpipe it would furnish excess shavings from, its planing mill, in the absence of fraud plaintiff’s measure of damage for défendant’s breach of the contract in the absence of proof of any established market for shavings was the difference in price which plaintiff had to pay for fuel and the stipulated payments agreed upon, plus the expense incurred by erecting a blowpipe.</p> <p>7. Sales &wkey;>4l8(l5) — Where defendant broke contract to furnish shavings, plaintiff may recover only for expense of fuel and loss of sale to an established customer.</p> <p>Where defendant lumber company agreed that if plaintiff would erect a blowpipe and make stipulated payments, it would furnish him with excess shavings, the purpose of the agreement being to remove such waste produqt from defendant’s planing mill, plaintiff is not, where defendant repudiated contract on intimation by federal court that it lacked mutuality, entitled to recover damages based on markets thereafter created by defendant, but he may recover for loss of sales to an established customer, and for the difference between the price- he had to expend for fuel and the stipulated payments.</p> <p>On Motion to Modify Decree.</p> <p>8. Appeal-and error <&wkey;l 194(1) — Where judgment was reduced and affirmed, provision as to interest remains.</p> <p>Where a judgment which awarded damages with interest was reduced and affirmed, the provision as to interest remains, and interest on the amount as reduced may be recovered.</p> <p>Provosty, J., dissenting in part.</p>

In the matter of the application of the State of Louisiana, on the relation of John M. Parker, Governor, and A. V. Coco, Attorney General, for writs of certiorari and prohibition to Edward K. Skinner, Judge, to compel the certification of the record of proceedings by the city of New Orleans against Frank Dameron and others, to enjoin the organization of an investigation committee, under Act No. 37 of 1920, alleged to be unconstitutional, and to prohibit further proceeding,…

Original application by Robert R. Barrow for a preliminary injunction, enjoining and prohibiting C. A. Duplantis from interfering with the management of one Dillard, as manager of a plantation for' the firm of Barrow & Duplantis, and prohibiting and enjoining him from drawing against the partnership funds to the firm’s credit in the Bank of Houma, and prohibiting that Bank from paying any of said funds to the order of Duplantis, individually or as said administrator of H. C.…

<p>Appeal from Eighteenth Judicial District 'Court, Parish of Lafayette; Wm. Campbell, Judge.</p> <p>Actioh by the City of Lafayette against Leo Doucet. From judgment rendered defendant appeals.</p>

Campbell, Judge. Action by the City of Lafayette against Charles D. Caffery to recover cost of construction of sidewalks, curbings, and gutters. Judgment for plaintiff, and the defendant appeals.

<p>Appeal from Sixth Judicial District Court, Parish of Ouachita; Ben C. Dawkins, Judge.</p> <p>Suit by Swayze Bros, against Robert Pennell and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by John Myers against Gilbert Myers and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Logs and logging <&wkey;2~Vendor conveying land subsequent to sale of timber held to have conveyed reversionary interest in timber.</p> <p>Owner, having sold standing timber under contract requiring removal within, specified period, by subsequent conveyance of land by deed conveying “all the rights of warranty and other rights held therein by said vendor,-” divested himself of all interest in the property, including both land and timber. '</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Walter and Fred England were convicted of robbery, and they appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and servant <&wkey;367 — Employer liable under Compensation Act for injury to independent contractor’s employé.</p> <p>Under Workmen’s Compensation- Act, § 6, one employing an independent contractor was; liable for the death of one working for the contractor, if the workman was an employé, and not himself an independent contractor.</p> <p>2. Master and servant &wkey;>367 — Worker cutting logs for pay based on quantity held “independent contractor” and not “employé”' within Compensation Act.</p> <p>Where a person clearing a railroad right of way employed a number of men to fell trees and saw them into logs, who worked independently of each other and were paid at so much per thousand feet of lumber, and were not employed for any fixed time nor any given quantity of work, and the employer furnished saws and axes and kept them in good order, but exercised no control over them or their work and no supervision, except to designate the place of cutting and to see that the stumps were left, ievel with the ground, one of the men so employed was an independent contractor and not an employé, as he did not hire his services within Oiv. Code, arts. 164 and 2745.</p> <p>[Ed. Note. — For other definitions, see Words, and Phrases, First and Second Series, Employé; Independent Contractor.]</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and servant <&wkey;4l7(41/2)— Certificate or affidavit unnecessary on appeal in compensation case.'</p> <p>On appeal from-a default judgment in a proceeding under the Workmen’s Compensation Act, where the motion for appeal was made in writing in accordance with Code Prac. art. 573, neither certificate nor affidavit was necessary.</p> <p>2.’Master and servant <&wkey;4l7(4i/2) — Judgment for compensation held not to have become final before appeal;</p> <p>Where judgment, in a proceeding under the Workmen’s Compensation Act was rendered February 14th, and defendant, having moved for appeal March 6th, excepted to the jurisdiction of the court to consider plaintiff’s subsequent motion to vacate the appeal, and the appeal was then lodged with the Court of Appeal, which transferred the cause, the appeal will not be dismissed on the ground that judgment became final before any appeal was made.</p> <p>3. Master and servant <&wkey;4l7(4(/2)— Order for appeal in compensation case held not to have been vacated.</p> <p>Order allowing appeal held not to have been ^vacated; the minutes showing that the case was transferred to the Court of Appeal, etc., after defendant excepted to the jurisdiction of the court to hear plaintiff’s motion to vacate the appeal.</p> <p>4. Master and servant <&wkey;4l7(4l/2) — Appeal bond unnecessary in compensation case.</p> <p>Under Employers’ Liability Act, § 19, an appeal may be prosecuted by either employer or employs without furnishing an appeal bond.</p> <p>5. Judgment <&wkey;ll7 — Evidence proving default cannot enlarge pleadings.</p> <p>Where defendant defaulted, evidence received in proving up the default could not enlarge the cause of action pleaded, because defendant was not present consenting.</p> <p>6. Master and servant <&wkey;349 — Statute held not in force at time of compensation claimant’s injury.</p> <p>Act No. 243 of 1916, amending the Employers’ Liability Act (Act No. 20 of 1914), was not approved until July 6, 1916, and was not published until July 22, 1916, and so did not become a law outside of Baton Rouge until 20 days after publication; hence it was not in effect August 7th in Caddo parish, and one then injured in such parish cannot recover for permanent facial disfigurement by virtue of the amendatory act.</p>

A. Williams, Judge. A. C. Robinson was charged with embezzlement, and from a judgment quashing the indictment the state appeals.

Action by Mrs. Cecelia Laenger against J. R. Dendinger. Defendant’s exception to the proceeding overruled, and defendant applies for writs of certiorari and prohibition. Preliminary writ made peremptory, and court enjoined from proceeding further with the trial in vacation.

<p>Action by L. L. E. Stewart against Louis Litchenberg. Application by Louis Litchenberg for writ of prohibition to prevent proceedings in the aforesaid action.</p>

D. Webb, Judge. Suit by Moses Crutchfield and others, against Marx Moch and others. Suit dismissed upon an exception of no cause of action, and plaintiffs appeal.

Action by Antonio Raggio and wife against the Morgan’s Louisiana & Texas Railroad & Steamship Company for slander and false arrest by defendant’s agents of plaintiffs’ minor son. Judgment for defendant, and plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Prohibition <&wkey;!7 — Question of jurisdiction should be raised in district court.</p> <p>On application for writ of prohibition, no question other than that of the jurisdiction of the district court or the competency of that court can be raised, so that where no plea to the jurisdiction appears or was passed on by the trial court, and respondents allege no such plea or exception was filed, there is nothing before the Supreme Court.</p> <p>O’Niell and Dawkins, JJ., dissenting.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>Action by Rolla J. Mills against the Illinois Central Railroad Company. From a judgment for plaintiff:, defendant appeals.</p>

<p>Appeal from Twelfth. Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Suit by Isaac Jefferson, tutor, and others, against T. J. Stringfellow and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from Seventh Judicial District Court, Parish of West Carroll; W. L. Bag-well, Judge ad hoc.</p> <p>Suit by Mrs. Mary H. Castleman against George A. Smith, administrator, and others. From judgment for defendants, plaintiff appeals.</p>

Bernard; L. H. Perez, Judge. Mat Reuter was convicted of aiding and assisting in the keeping and operating of a banking game and banking house in which money was bet and hazarded contrary to law, and appeals.

<p>Appeal from Twenty-First Judicial District Court, Parish of West Baton Rouge; O. K. Schwing, Judge.</p> <p>Action by William', A. McVay against William R. Ellis. Judgment for defendant, and plaintiff appeals.</p>

R. Holstein, Judge. Action for partition and collation by Mary B. Jones against Jack Bowden and others. From a judgment fixing the value of lands donated to' defendants, plaintiff appeals.

C. Cage, Judge. In the matter of the succession of Mrs. Kate McCan Greenlaw, wherein Edward R. Greenlaw, her surviving husband, as executor, filed account, and proposed to close the succession by paying debts, reserving to himself a special legacy of $25,000, and by dividing the remainder of the estate equally between himself and the mother of his deceased wife.

<p> (Syllabus by Editorial Staff.) </p> <p>Railroads <&wkey;359'(l) — Not liable to one. on right of way from curiosity or for own convenience.</p> <p>A lumber company, operating a railroad, is not liable for injuries to one who was struck by a pole when a derailed truck, which was being loaded on a train, fell, whether the injured person entered the right of way from curiosity, or because it offered the most convenient route to his destination, where there was no evidence of fault or npgligence on part of defendant’s employees.</p>

McIntosh, Judge. Grady Malone and others were indicted for murder. Prom! a judgment quashing the indictment, the State appeals.

King, Judge. Proceedings by Jack Lawson against the New York & Porto Rico Steamship Company, for compensation for injuries under the Employers’ Liability Act. From a judgment rejecting his demand, plaintiff appeals.

<p>Appeal from Civil District Court, Parish, of Orleans; George H. ThSard, Judge.</p> <p>Suit by John Flores and wife against the Steeg Printing & Publishing Company. There was a judgment for defendant, and from a judgment striking a supplemental petition asking for relief under the Workmen’s Compensation Act, plaintiffs appeal.</p>

Landry; B. H. Pavy, Judge. Suit by William Edenborn and others, receivers, against P. T. Blacksher and others. From judgment dismissing. the suit, plaintiffs' appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error <&wkey;IOI I (I) — Trial judge’s conclusion on conflicting testimony accepted.</p> <p>Where the evidence was conflicting, the solution of the question depending entirely on the veracity of witnesses, the trial judge’s conclusion will be accepted.</p> <p>2. Municipal corporations &wkey;>706(5)— In action for injuries from being struck by automobile, chauffeur held not negligent.</p> <p>In an action against the owner and driver of an automobile for injury from collision on a city street, evidence held not to show- negligence on the part of defendant’s chauffeur.</p> <p>3.Municipal corporations &wkey;>705(IO)— Plaintiff, injured by being struck by automobile, held contributorily negligent.</p> <p>Where plaintiff, suing for injuries from being struck by an automobile, was sitting in a chair in the edge of the street with his feet on the curb, and did not move out of the roadway when he saw the automobile approaching, he was guilty of contributory negligence.</p> <p>Monroe, O. J., dissenting in part.</p>

Cage, Judge. Action by Mrs. Jessie Fremont Rose, widow of Albert L. Lackaye, against William J. L’Engle. Judgment for plaintiff, defendant appeals, and plaintiff answers, praying for increase of amount of judgment.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>(Action by Mrs. Victoria Plescia, wife of Peter Cuccia, against Martin J. Le Roy. Judgment for plaintiff for less than the amount claimed, and defendant appeals, and plaintiff answers, praying that the award be increased.</p> <p>Affirmed.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge. .</p> <p>Action by Robert Whittaker against the Illinois Central Railroad Company. From judgment for plaintiff, defendant appeals; plaintiff praying that the award of $3,000 be increased to $10,000.</p>

Julian Casanave was indicted for conducting a banking game in which money was bet; his motion to quash the indictment for disqualification of grand jurors was overruled, and he applies for writs of certiorari, prohibition, and mandamus to compel the judge to hear evidence in support of his motion.

<p>Appeal from First Judicial District Court, Parish of Caddo; J. R. Land, Judge.</p> <p>Suit by S. R. Zagst & Co., Incorporated, against the Southern Surety Company. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Mortgages <&wkey;590 — Foreclosure sale passes title free of mortgage foreclosed and all inferior ones.</p> <p>On foreclosure sale, title passes to the purchaser free of the mortgage foreclosed; also of all inferior mortgages.</p> <p>2. Mortgages <&wkey;590 — Giver of inferior mortgages, cut off by foreclosure of prior mortgage, does not cause revivor by acquiring property from purchaser.</p> <p>-The giver of inferior mortgages, cut off by foreclosure of a prior mortgage, does not cause them to revive by acquiring the property from the purchaser on foreclosure sale of the prior mortgage.</p> <p>3. Bills and notes <&wkey;97(3) — Consideration of notes given for price of property does not fail if maker evicted by foreclosure of mortgage priming vendor’s title.</p> <p>Where, to enable sale of property to be made, the notes which are to be executed for the purchase price are to be delivered, not to the vendor, but to the holder of mortgage on the property, to induce him to cancel it, the consideration of the notes as between such mortgagee and their maker, the purchaser of the property, is the cancellation of the mortgage, so that, as between the mortgagee and the maker, the consideration of the notes does not fail, if the maker is evicted from the property by foreclosure of' another mortgage priming the title of the vendor.</p> <p>4. Bills and notes <S=^343 — -Trustee, who became owner of notes by accounting to_ principal for face value, held not a holder in bad faith.</p> <p>Where property on which rests a mortgage securing a bond issue is sold .at private sale, and a trustee for part of the bond issue receives the price, consisting of notes, for his-principal, and cancel's the mortgage to the extent of the bonds for which he is trustee, and the property passes to the purchaser, subject to the mortgage to the extent' it secures the rest of the bond issue, and the mortgage as restricted is subsequently foreclosed, with the result that the consideration for the notes given for the price of the property fails, the trustee, who became owner of the notes by accounting to his principal for their face value, is not a holder in bad faith, though familiar with the facts when the notes were taken by him, if the belief of all participants in the transactions at that time was that the rest of the bonds would be paid without foreclosure of the mortgage securing them, particularly if good security to such effect was given the purchaser by the vendor.</p> <p>"Monroe, O. J., dissenting in part.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Mines and minerals <&wkey;78(2)— Oil lease held not to terminate by reason.of passage of time where lessor did not give possession. '</p> <p>Where lessor under oil lease was under obligation to give possession to lessee, who could not obtain it and begin operation solely by reason of an injunction in favor of other persons having an interest in the land, and-the time within which lessee was to begin operations elapsed pending the injunction, the lease was not thereby terminated, in view ot Civ. Code, art. 2040.</p> <p>2. Tenancy in common &wkey;>55(!)— Joint owner may act for co-owner in connection with property.</p> <p>A joint owner may act for his co-owners in conn#tion with the' common property and where part of the co-owners obtain an injunction against one attempting to enter the land to sink oil wells, they are acting as much for a joint owner not figuring in the suit as they are for themselves.</p> <p>3. Specific performance &wkey;>64 — Lessor having divested himself completely of oil underlying land, lessee can recover damages in suit for performance.</p> <p>Conceding that there can be no ownership of oil lying underground, and that oil was not sold by a lease contract, lessor nevertheless fully divested himself completely of the right to exploit the land for oil, and vested the lessee fully and completely with that right in so far as his interest in the land was concerned, so that, when he in conjunction with co-owners operated on the land for oil, he was merely exercising a right belonging to the lessee, and the fruits of the exercise of that right must belong to the lessee, under Civ. Code, art. 501, and lessee was entitled to the damages in suit for specific performance.</p> <p>4. Specific performance <&wkey;5 — Specific performance awarded where remedy is more complete than action for damages.</p> <p>The only reason why the breach of any contract gives rise ordinarily only to an action for damages is that ordinarily specific performance cannot be enforced; and, performance being the more complete remedy, it should he allowed in cases where it is available, and is demanded, under Civ. Code, arts. 1903,-1927.</p> <p>5. Specific performance <&wkey;> 130 — Plaintiff required to reimburse, defendant for expenses incurred.</p> <p>Where lessor of oil lands only had part interest in land and lessee was prevented from beginning operations within tne time required hy the lease, and after the expiration of such time the lessor and his co-owners put down a well and produced oil, the lessor’s interest in the oil well and oil should not be given over to the lessee in an action for specific performafice, without the latter being required to reimburse the expenses incurred by the lessor in putting down the well, under Civ. Code, art. 501.</p> <p>6. Specific performance &wkey;>130 — Relief to defendant not demanded in answer denied, but right to relief was properly reserved under prayer for equity.</p> <p>In suit for specific performance of an oil lease contract, where it was determined that oil and wells could not equitably be given over to plaintiff without reimbursing defendant for expenses incurred in putting down the well and producing the oil, such relief could not be extended to the defendant, where no demand therefor was contained in the answer, but under a prayer for equity the right to urge it in another suit should be reserved.</p> <p>7. Sequestration &wkey;>!5 — One entitled to sequestration of undivided interest entitled to sequester entire property.</p> <p>One entitled to the sequestration of an undivided interest is entitled to sequester the entire property.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Bail <@==>49---Criminal law <i&wkey;224 — After indictment for capital offense, preliminary examination for bail or release not authorized.</p> <p>After indictment found in a capital case, the accused is no longer entitled to have' a preliminary examination held for the purpose-of bail or release, though doubtless, under special circumstances, the district judge in his discretion might require such an examination to be held for the purpose of bail.</p>

<p> (Syllabus by the Vourt.) </p> <p>1. Railroads &wkey;s482(2) — Evidence held to show locomotive spark ignited field and barn.</p> <p>In an action against a railroad for setting fire to plaintiff’s barn by igniting his hayfield, evidence held to sustain the trial court’s finding that a spark from the railroad’s locomotive ignited the hayfield, a®d that the fire did not originate in the barn.</p> <p>2. Railroads <&wkey;480(2) — Presumption from fire that spark arrester was not in repair.</p> <p>It being shown that the fire which destroyed plaintiff’s bam was caused by sparks from defendant railroad’s locomotive, the presumption is that the spark arrester on the locomotive was either not in repair or not efficient.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Jury <@=o59(I)— Jury commissioners acting as road supervisors without taking oath not disqualified.</p> <p>Jury commissioners who acted as supervisors of a road district, but'who did not take the oath required by Const, art. 160, were never lawfully members of the board of supervisors of the road district, and therefore held no office which had the effect of vacating their appointment as jury commissioners.</p> <p>2. Jury <&wkey;59(l) — Jury commissioners, becoming road supervisors without taking oath, not disqualified.</p> <p>If it can be said that one may become a road supervisor without taking the oath provided for by Const, art. 160, jury commissioners, who became road supervisors without taking such oath, were not disqualified as jury commissioners under Act No. 135 of 1898, § 3.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; Jas. Andrews, Judge.</p> <p>Suit by Emmett Beuhler against the Palace Market Company, Incorporated. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Prentiss B. Carter, Judge.</p> <p>Helen Brown was convicted of murder, and appeals.</p>

Boone, Judge. Suit by Peavy-Wilson Lumber Company to restrain the police jury of Sabine Parish and others from levying, assessing and collecting current taxes. Judgment for plaintiff, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Guardian and ward t&wkey;17 — 'Tutorship; appointment of tutor cannot be collaterally attacked.</p> <p>The appointment of a tutor cannot be attacked collaterally.</p> <p>2. Guardian and ward <&wkey;17 — Tutorship; appointment of tutor not subject to attack in. personal injury action.</p> <p>In tutor’s action for injuries suffered by minor, tutor’s appointment was not subject to attack; such attack being collateral, since the-regularity of the appointment was only an incidental or, collateral issue.</p> <p>3. Guardian and ward &wkey;>17 — 'Tutorship; objection to attack on regularity of appointment of tutor held not waived.</p> <p>In tutor’s action for injuries sustained by minor, the tutor’s failure to object to the introduction in evidence of the tutorship proceedings held not a waiver of objection to an attack on the regularity of the appointment as a collateral attack. v</p>

<p>Appeal from Thirtieth Judicial District Court, Parish of Caldwell; E. E. Jones, Judge.</p> <p>Action by M. L. Mecom against Laura E. Graves. Judgment for plaintiff, and defendant appeals.</p>

Landry; B. Henry Pavy, Judge. ■ Bennie Green was convicted of sélling intoxicating liquor without having a parochial or municipal license, and he appeals. .

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Gil Vidrine was convicted of crime, and appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Principal and agent <&wkey;4! — Mandate; principal is liable for loss or injury to agent from discontinuing business before specified time.</p> <p>Wh'ere defendants hired plaintiff to make sales for two years with the privilege to renew for five years more, they obligated themselves for that time, and, since the agency could not go on without the business going on,, the-continuance of the business for such time was a necessary implication, but' defendants could discontinue at any time subject to compensating plaintiff for any loss or injury thereby suffered.</p> <p>2. Principal and agent &wkey;>4l — Mandate; evidence held not to show principal compelled for financial reasons to discontinue contract.</p> <p>In an action against employers to recover for losses for failure to carry out agency contract by carrying on business, evidence held not to show that the defendants were compelled by financial reasons to discontinue the contract..</p> <p>3. Principal and agent <&wkey;4l — Mandate; evidence held not to show agent abandoned contract.</p> <p>In an agent’s action against principal for losses sustained through failure to carry out contract for selling goods, evidence held not to show that plaintiff had abandoned contract.</p> <p>4. Principal and agent <&wkey;4l — Mandate; damages for breach of sales agency contract held not too indefinite for recovery.</p> <p>In view of Oiv. Code, art. 2749, damages for. breach of selling agent’s contract, under which his compensation was on a percentage basis, held not too indefinite to be recoverable; the law requiring only reasonable certainty, not absolute certainty, of proof.</p> <p>5. Principal and agent <&wkey;41— Mandate; principal only liable for compensation for agent’s time until agent’s death.</p> <p>In an action for breach of contract, whereby plaintiff was to sell goods on commission and for one-half excess of sale over fixed price, plaintiff was only entitled to compensation during that part of the contract period prior to agent’s death, which terminated the contract.</p> <p>6. Principal and agent <&wkey;4l — Mandate; agent’s loss for breach of contract estimated from income prior to breach.</p> <p>In an agent’s action for breach before expiration of term of contract, by which he was to sell all the peppers produced by defendants, •the latter were under no obligation to increase their business, so that the loss to plaintiff must be estimated upon plaintiff’s income therefrom for a period prior to breach.</p> <p>O’Niell, J., dissenting.</p>

Habeas corpus by the State, on the relation of Robert E. Courtin against Dr. A. O. Browne and wife, wherein, after they were denied trial by jury, defendants petitioned for writ of prohibition or in the alternative for writ of mandamus to compel allowance of jury trial.

Rogers, Judge. Habeas corpus by the State, on the relation of Mrs. Ethel Amelia Gray, wife of August Villar, against Anthony Bertucci. An exception to the jurisdiction was maintained, and relatrix appeals.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; K. Em-met Hingle, Judge.</p> <p>Suit hy Frank J. Duffy against Harry J. Peneguy. Judgment for plaintiff, and defendant appeals.</p>

<p>Axipeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge..</p> <p>Petitory action by A. R. Albritton against George -T. Shaw. Judgment for defendant, and plaintiff appeals.</p>

<p>. (Syllabus by Editorial Staff.)</p> <p>1. Negligence &wkey;44 — Leaving box in aisle of store held negligence.</p> <p>It is negligence for a store proprietor to leave a box in the aisle used by customers inspecting merchandise.</p> <p>2. Negligence <&wkey;67 — Store customer stumbling over box held contributorily negligent.</p> <p>A customer in a store who stumbled over a box in an aisle while going in a hurry, the box being in full view for a distance of 27 feet, iheld contributorily negligent as a 'matter of law.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Appeal and error &wkey;>78l (4) — Appeal in proceeding to compel printing of name on ballot dismissed as moo-t.</p> <p>Where the appeal in a mandamus proceeding to compel the secretary of state to print plaintiff’s name on the official ballot for an election as candidate for a certain office could not be heard after the transcript was filed until after the election, the questions involved became moot, and the appeal will be dismissed.</p>

<p> f Syllabus by Editorial Staff.) </p> <p>I.Corporations <&wkey;429 — Person dealing with corporation is required to ascertain authority of agents.</p> <p>It is the duty of every person entering into a contract with a corporation to see that the agents representing the corporation have been authorized to make the contract.</p> <p>2. Corporations <&wkey;409 — Corporation’s lease executed by part of directors held void in absence of estoppel.</p> <p>Corporation’s lease entered into on behalf of the corporation by only two of the three directors without knowledge thereof by third director with knowledge of such fact by lessee held void in absence of estoppel to deny validity.</p> <p>3. Corporations <&wkey;426(10) — Corporation did not ratify unauthorized lease by acceptance of rent money without knowledge.</p> <p>Corporation did not ratify unauthorized lease, entered into by only two of the three directors without third director having knowledge thereof, by acceptance of rent, where third director did not know that money so received was for rent.</p> <p>4. Corporations <&wkey;425(5) — Elements of equitable estoppel, precluding corporation from denying validity of unauthorized lease, stated.</p> <p>To constitute an equitable estoppel precluding a corporation from denying validity of unauthorized lease, it must appear that the corporation has done some act or made a declaration inconsistent with the truth, with the design of injuring the lessees, that lessees were ignorant of the truth and relied on the faith of such acts and declarations, and that injury will result to them from the denial of the validity of the lease.</p> <p>5. Corporations &wkey;425(5) — No estoppel of lessor to deny validity of lease by silence where lessees knew lease was void.</p> <p>Where lessees knew that lease was not authorized by lessor corporation because entered into by only two of the three directors without knowledge of the third director, the silence of the directors, including such third director, as to invalidity of lease, did not estop corporation, on ground of acquiescence, from denying' validity of lease,' since such silence did not put lessees in a worse position than they already occupied.</p>

Kind, Judge. Proceedings in mandamus by the State, on the relation of Joseph R. Macheca, against Edward T. Dunn, recorder of mortgages, and others. Judgment for defendants, and relator appeals.

N. Sandlin, Judge. Action by D. W. Smith against S. T. Anders in which reconventional demand was filed. From judgment of nonsuit plaintiff appeals, and defendant prays relief on reconventional demand which was denied by trial court.

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Suit by T. F. Denman and another against A. E. Wilder and wife. Judgment for defendants, and plaintiffs appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Good will <&wkey;>7 — Evidence held to show purchase of option on a business. .</p> <p>In action to recover alleged balance due on the purchase price of a garage business, the evidence held to show a purchase, not of the business, but of an option thereon, which was .not exercised.</p>

F. Brunot, Judge. Proceeding in mandamus by the State, on the relation of the City of Baton Rouge and others, to compel Robert B. Day, Sheriff and Tax Collector, to turn certain taxes over to the city, in which the Police Jury of East Baton Rouge Parish intervened. Judgment for relators, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Marriage &wkey;>58(8) — Petition held not to show ground for annulling a marriage followed by cohabitation.</p> <p>A petition by husband to dissolve the marriage on ground that his consent was procured by threat of criminal prosecution and bodily harm held to state no cause of action, where it alleged cohabitation though alleging he lived ■with wife only three days, it being also alleged that husband consented to the marriage to avoid prosecution and bodily harm, as there was nothing to show necessity of cohabitation.</p> <p>2. Marriage &wkey;>58(8) — Duress avoided by voluntary cohabitation.</p> <p>A marriage cannot be annulled for want of free consent of one of'the parties if they have cohabited as husband and wife freely and without constraint. Rev. Oiv. Code, art. 111.</p>

Sandlin, Judge. In the matter of the Succession of Henry Dickson, deceased. Erom an ex parte judgment placing Maria Dickson Mayfield in the possession of the estate, certain heirs appeal.

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.</p> <p>Action by L. C. Higdon against the W. R. Pickering Lumber Company. Prom a judgment for defendant, plaintiff appeals.</p>

Judicial District Court, Parish of Acadia; William Campbell, Judge. Action by Brooks &' Clark, Limited, against Mayo Broussard, and another. Prom the judgment defendants appeal, and plaintiff answers, praying that the judgment be amended.

Action by Robert Ruffin Barrow against Caliste A. Duplantis and others. In the matter of plaintiff’s application for writs of certiorari, prohibition, and mandamus. Rule to Caliste A. Duplantis, individually, and as administrator of the succession of Henry Olay Duplantis, deceased, and to Hon. H. M. Wallis, Jr., Judge of the District Court, to show cause why they should not be punished for contempt.

<p> (Byllalus ty Editorial Staff.) </p> <p>1. Contracts i&wkey;l98(6) — Owner, of oil well cannot complain of failure to use 12-inch casing where no necessity arose.</p> <p>Where contracts for the drilling of an oil well required the contractor to use certain 12-inch casing only if necessary, and such necessity did not arise, the owner cannot complain of the work on the ground that such casing was not used.</p> <p>2. Payment <&wkey;l7 — Contractor to drill oil well justified in disregarding checks for overdue installments and bringing suit for breach.</p> <p>Where a contractor to drill an oil well took checks for past-due installments from the owner intending to accept them if it was found they would be paid and deposited them in his bank for collection, but the bank on which they were drawn when telegraphed replied that they could not guarantee checks by wire, the contractor was not bound as having accepted the checks and might bring suit on the contract.</p> <p>3. Attachment <&wkey;25 — Plaintiff had legal right to resort to attachment against nonresident.</p> <p>Under Code Prac. art. 243, plaintiff suing a nonresident had a legal right, if his claims were due, to resort to attachment.</p> <p>4. Contracts t&wkey;278(l) — One in default cannot claim damages when sued.</p> <p>One who contracted that an oil well be drilled for him, first in default in his obligations under the contract, has no standing to claim damages for the default of the contractor in the latter’s suit for payment;</p>

<p> (Syllabus by the Court.) </p> <p>On First Motion to Dismiss Appeal.</p> <p>I. Appeal and error &wkey;j1106(4)— Case remanded to take testimony on issue of acquiescence precluding appeal.</p> <p>Where, upon a motion to dismiss appeal upon the ground of acquiescence, an issue, of fact is presented which requires the talcing of testimony, the case will be remanded in order that such testimony may he taken.</p> <p>On the Merits.</p> <p> (Additional Svllabus by Editorial Staff.) </p> <p>2. Mines and minerals &wkey;»78(7) — Evidence held to justify annulment of oil and gas lease for nonperformance.</p> <p>In a suit to annul an oil and gas lease on the ground that lessee neglected to prosecute development work as required by the lease, evidence held to justify a decree for plaintiff; time being of the essence of such a contract.</p>

<p>Appeal from City Court of Hammond; H. G. I-Iungate, Judge.</p> <p>Navoum Halaby was convicted of fraudulent use of the name of another, and he appeals.</p>

Ellis, Judge. Suit by O. W. Herring against the Farmer’s’ Co-operative Association and others. Judgment for plaintiff, and certain defend; ants appeal.

<p> (Syllabus by the Court.) </p> <p>1. Criminal* law <&wkey;8l4(8, 9), 1172(6) —Instruction as to authorization of appropriation unnecessary where no evidence thereof, but giving not prejudicial.</p> <p>Where, in a prosecution for embezzlement, no evidence is offered tending to show an accounting or agreement between the defendant and the person or corporation whose money was appropriated, whether before or after the appropriation, whereby such appropriation was authorized, the trial judge is not required to give the jury any instruction predicated upon the theory that there might have been such accounting or agreement. But if in such case the judge instructs, the jury that, if they find that defendant appropriated the funds of such person or corporation to his own use, “without in any way at that time” accounting to the owner, the transaction would be illegal, the fact that the instruction was not required does not render it prejudicial to the defendant.</p> <p>2. Indictment and information <&wkey;33(3) — Indictment not bearing signature of foreman of grand jury as such invalid.</p> <p>So far as we are informed, this court has uniformly held that no indictment can be valid which does not bear the signature of the foreman of the grand jury as such, and we find no sufficient reason for establishing a precedent at variance with that jurisprudence.</p> <p> (Additional Syllabus by Editorial Staf.) </p> <p>3. Grand jury 11 — Judge may excuse members for reasons not disqualifying or exempting them from service.</p> <p>In a prosecution for embezzlement, it was not error, in view of Act No. 135 of 1898, for the judge to excuse from service on the grand jury two of the twenty men whose names were drawn by jury commission on the ground that the mother of one of them had recently died, and that his father was in very bad health, and that the other was a saw filer in a large sawmill, the operation of which would suspend if he were drawn for service, notwithstanding that neither of such reasons would have been cause- for disqualification or for exemption.</p> <p>4. Embezzlement <&wkey;>42 — Falsé entries after embezzlement to cover up shortage held admissible.</p> <p>In a prosecution of a cashier for embezzlement, it was not error to admit evidence that defendant had made false entries in the books after the embezzlement to cover up his shortage.</p> <p>Provosty, J., dissenting in part.</p>

<p> (Syllabus by Editorial Staff.} </p> <p>1. Sales <&wkey;l8l (I I) — Evidence held not to show that delivery of cattle was separate transaction.</p> <p>In an action for damages for breach of a contract of sale of cattle, evidence held not to show that a delivery of cattle at a slightly different price was a separate transaction, and not a compliance with the original contract.</p> <p>2.'Sales <&wkey;87(3) — Contract held not to require delivery of cattle from specific herd.</p> <p>In an action for damaged for breach of contract of sale -of 300 cattle, evidence held to show that agreement did not require that cattle should be delivered from defendant’s home herd.</p> <p>3. New trial <§=399 — Newly discovered evidence of witnesses testifying at trial as to collateral issue no ground!</p> <p>Court did not err in refusing a new trial to take the testimony of witnesses on a collateral issue, the witnesses named in the application having had an opportunity to testify to that issue on the trial.</p> <p>4. Costs <§=3237 — Appellant entitled to costs on reversal for failure to credit him with $500 admitted to be due him.</p> <p>In an action for damages for breach of a contract of sale of cattle and to recover $500 paid, where court found in favor of defendant, but failed to give judgment for the $500, fox-which defendant admitted his liability, a mere oversight, plaintiff is entitled on reversal to the costs of appeal, under Act No. 229 of 1910.</p> <p>5. Costs <&wkey;42( I) — Plaintiff required to pay costs incurred after legal tender.</p> <p>Where defendant made a legal tender of all that was due plaintiff when the case was called for trial, plaintiff should pay the costs incurred after the tender was made.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of St. James; Philip H. Gilbert, Judge.</p> <p>Suit by the State of Louisiana against the Bowie Lumber Company in which J. C. Rives and others were called in warranty.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Philip XT. Gilbert, Judge.</p> <p>Mandamus proceedings by the State on the relation of Ascension Red Cypress Company against the New River Drainage District and others.</p>

Action by Mathilda and Mary Minor against Francis Young and others. A judgment for plaintiffs was affirmed on appeal by the Court of Appeal, and the defendants bring certiorari.

<p> (Syllabus by the Court.) </p> <p>1. Bailment &wkey;3l(l) — Burden is on cotton ginner failing to return cotton.</p> <p>One who receives cotton to be ginned and haled incurs the obligation to return it to the owner; and, -failing so to do, the burden of proof, in an action for the recovery of the value of the cotton, rests upon him to establish the facts which may excuse such failure and to show that he had exercised the care that a prudent man takes of his own.</p> <p>2. Bailment &wkey;32 — Interest on the money value of property lost through bailee’s fault is due from date of loss.</p> <p>Interest upon money recovered as the value of property lost through the fault of the bailee is due from the date of the loss.</p> <p>On Rehearing.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Bailment &wkey;14(I) — Ginner’s failure to maintain watchman over cotton while on railroad platform for shipment held not negligence.</p> <p>In an action by an owner of cotton against the operator of a cotton gin for damages for the destruction of cotton bales by fire after ginning and while on a railroad platform, erected for the convenience of the owners of cotton to facilitate shipment, failure of the ginner to maintain a watchman over the cotton while on the platform held not negligence.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error 4&wkey;10ll(l) — Finding on conflicting evidence not disturbed.</p> <p>In an action to recover a share in a commission on a sale of land, where there was no evidence as to the terms of the agreement except that of the parties, who disagreed, and that of a witness who testified that defendant said the commission was to be divided, the trial judge’s finding in accordance with defendant’s theory that plaintiff was to have only one-third of the commission will not be disturbed.</p> <p>2. Attachment <&wkey;>47(4) — Evidence held to show intent to defraud creditors.</p> <p>In an action for a share in a commission on a sale of land, evidence that defendant had transferred his home to his wife, that he had no real estate in his name, though he owned considerable interests in the name of a third person, that his .assets were notes, etc., transferable by delivery, that he told plaintiff he would not give him any part of the check received for the commission, and that he subsequently pledged the check to a third person, sufficiently showed an intention to defraud creditors to support an attachment.</p>

<p> (Syllabus by the Court.) </p> <p>Railroads &wkey;>394(5) — Pedestrian’s petition held insufficient.</p> <p>A petition which alleges that plaintiff was making pedestrian use of a railroad track in the country, and, while so doing, was injured by a train, approaching from the rear; that the injury was attributable solely to the negligence of the employees of the defendant railroad company in failing to see him, and checking, or stopping the train, failing to maintain a light on the locomotive, though it was about dusk, and failing to give a warning signal, and that plaintiff in no way contributed to the accident, discloses no cause of action for the recovery of damages; for, in the absence of any allegation to the contrary, the petition may fairly be taken to mean that plaintiff, having chosen the railroad track as a place on which to walk, with full knowledge that a train might, at any moment, approach him from front or rear, gave himself no further concern about the danger to which he thus became subjected, but relied for his protection therefrom entirely upon the vigilance of defendant’s employees, up to the very moment when he was struck by a train which approached from the rear.</p>

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

<p> (Syllabus by Editorial Staf.) </p> <p>Brokers <&wkey;40 — Contract held to provide for payment of commissions on sales of lumber on which broker made advances only.</p> <p>A contract between plaintiff and a manufacturer of lumber, under which plaintiff was to make advances on lumber manufactured, at the option of the manufacturer,'and which employed plaintiff to sell on a brokerage commission of 10 per cent, all lumber manufactured at the mill “upon which lumber advances are to be made as hereafter provided,” held to provide for the payment of commissions only on lumber on which plaintiff made advances, and, no advances having been made, nothing was due.</p>

Fisher, Judge. William S. Rogers was charged by affidavit with violating Act No. 193 of 1920, § 1, by selling a secondhand automobile without evidencing the sale by an authentic act: 1-Iis demurrer to the affidavit was sustained, and the State appeals.

Cage, Judge. Proceeding by the succession of John F. Popp against the Inheritance Tax Collector. Judgment for the Collector, and the succession appeals. Motion to dismiss appeal overruled, and judgment

M. Wallis, Jr., Judge. Foreclosure by Cambon Bros, against Miss Fannie Suthon and others and an injunction suit by Widow Lucius Suthon and others against Cambon Bros. From a judgment in favor of Widow Lucius Suthon and others, Cambon Bros, appeal.

F. Bell, Judge. Suit by W. M. McClung and Huey P. Long against the Atlas Oil Company and others, which was dismissed as to complainant McClung at the instance of himself and defendants. From a judgment dismissing the suit as to the remaining plaintiff on exception to the complaint, plaintiff Long appeals.

Tammany; Prentiss B. Carter, Judge. Suit by the Mackie Pine Products Company against E. J. Frederick. From judgment for plaintiff, rejecting defendant’s reconventional demand, both parties appeal.

Mary; Percy Saint, Judge. Petition by the Succession of Mrs. A. B. Kyle against Chas. Pecot, Sheriff and Tax Collector, resulting in judgment for petitioner, and defendant Sheriff and Tax Collector appeals. On motion to dismiss.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by Mrs. J. A. Littlefield against the City of Shreveport. From judgment dismissing the suit, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Carriers <&wkey;330 — Not contributory negligence of street car passenger to cross bridge on invitation of conductor.</p> <p>"Where bridge across canal was open because of trouble with its mechanism, and conductor on street car issued transfers and invited passengei’s to cross on a steam railroad bridge to reaclx cars on the other side, held, that a passenger who was caught by a train while crossing the bridge was not guilty of contributory negligence in acting on the invitation.</p> <p>2. Carriers &wkey;>295(5), 305(1) — Street railway negligent in not guarding passengers crossing bridge of steam railroad; negligence of street railway conductor held proximate cause of death of passenger.</p> <p>Where a bridge over a canal was open because mechanism was out of order, and a street car conductor issued transfers to passengers and suggested and invited them to cross on. a nearby railroad bridge, without suggestion or warning of the fact that a train was likely to arrive momentarily, and without providing some means of flagging and preventing it from running down the passengers who might be on the bridge, held, that the conductor was negligent, and such negligence was the proximate cause of death of a passenger caught on the bridge by a train.</p> <p>3. Death <&wkey;89 — Damages for mental suffering gauged by intimacy.</p> <p>The amount of recovery for, death of a brother or sister must necessarily be gauged by the intimacy of the relation, association, and feeling of the plaintiffs toward the deceased.</p> <p>4. Death <&wkey;99(5) — $1,000 allowed for mental suffering from death of sister.</p> <p>Where sister was wrongfully killed, plaintiffs, subjected to- severe nervous shock and mental suffering, were each awarded $1,000.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Navigable waters <§=>f (7) — Evidence held to show stream was not navigable.</p> <p>Evidence that the stream between the lands of plaintiff and defendant had not been considered navigable by the federal government which had permitted stationary bridges over it. that it was used only by rowboats or small boats with detachable engines, that it was narrow and obstructed and had such a fall that if cleared out it would be a torrent,, held to show that the stream was not navigable at the point, so that the riparian proprietors owned the bank and bed to the thread of the stream under Civ. Code, arts. 513-515.</p> <p>2. Waters and water courses &wkey;>l58(4)— Lease of shore lands held to cover sand and gravel in bed,</p> <p>A lease of a one-acre strip of land the entire length of the lessor’s tract along the eastern bank of the river with the right to remove sand and gravel from the river and its bank, though not giving lessee in express terms the exclusive right to the sand and gravel, had such effect where the owner reserved only the right to take sand and gravel for his own use and is sufficient to enable the lessee to maintain trespass for the taking of sand and gravel by another.</p> <p>3. Trespass <&wkey;l9(I)— Prima facie showing of title sufficient.</p> <p>Where defendant made no claim to sand and gravel in stream which plaintiff claimed under its lease, except that based on erroneous belief that the stream .was navigable, plaintiff need only make a prima facie showing of title to maintain trespass against defendant.</p> <p>4. Trespass <&wkey;46(3)— Evidence held to show unintentional removal of sand and gravel.</p> <p>Evidence that defendant’s stockholders owned stock in plaintiff corporation and had cautioned their employes against infringing on plaintiff’s rights, that defendant had secured from the state a permit to remove sand and gravel from a stream believing it to be navigable, and that the only material taken from plaintiff’s side of the stream was that which slid into the excavation made by dredging on defendant’s side, held to show that the taking of the sand and gravel belonging to plaintiff was not willful.</p> <p>5. Trespass &wkey;>50 — Innocent taker of sand and gravel liable only for value In place.</p> <p>Where defendant’s taking of sand and gravel from the bed of a stream on plaintiff’s side was not a willful trespass, plaintiff can recover only the value of the material in place, not the total amount defendant received from it after its removal, as it could recover if the taking were willful.</p>

X. Ransdall, Judge. Louis Henderson and others were charged with entering in the nighttime a railroad box car with intent to steal, and stealing therefrom, of which Ike Humphries was convicted and he appeals

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Action by Lawrence Riggs against the New Orleans, Texas & Mexico Railway Company.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>Limitation of actions &wkey;>I57(I) — Prescription; payment on debt held not payment on collateral note.</p> <p>Where a vendor of land, as further security for the payment of damages from a title proving- defective, executed a note for $5,000, to be returned upon full performance of the agreement, and title to a sufficient number of acres to cause damages amounting to $21,000 proved defective, a payment from the vendor’s succession on such damages was not a payment on the note, preventing a guarantor from pleading prescription, especially where the note had been transferred without any transfer of the contract or the damages.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunction &wkey;>26(9) — Will not lie to prevent bringing of eviction proceedings.</p> <p>An injunction will not lie to prevent the bringing of a suit, and an injunction restraining lessors from instituting eviction proceedings was properly dissolved.</p> <p>2. Costs &wkey;>260(4) — Appeal from judgment dissolving' injunction against suit is frivolous.</p> <p>An appeal from a judgment dissolving an injunction against the bringing of judicial proceedings fo evict a lessee is frivolous, and damages as for a frivolous appeal must be awarded.</p> <p>3. Costs <&wkey;263 — Damages from frivolous appeal fixed at 10 per cent, of $2,000 when amount involved not shown.</p> <p>Where it is not shown how much the amount involved in a frivolous appeal exceeds $2,000, the lower limit of the court’s jurisdiction, 10 per cent, of that amount, will be awarded as damages.</p> <p>O’Nrell, J., dissenting in part.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Saint Tammany; Prentiss B. Carter, Judge.</p> <p>Suit by Mrs. Stella Pike Watkins against J. Lester jWatkins and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Suit by the St. Landry Parish School Board against Leo Larcade. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of La Salle; F. E. Jones, Judge'.</p> <p>Suit by the Bomer-Ferguson Company against Dave Shapiro. ■ Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Animals &wkey;>l — Possession of unassessed dog essential to property right in animal.</p> <p>Under Act No. 107 of 1882, providing that no dog shall be entitled to the protection of the law unless placed on the assessment roll, an unassessed dog has the status of a wild animal to a certain extent, and if the master loses possession of the animal, all legal relation between him and the dog ceases, and the master’s subsequent assessment of the dog is devoid of legal effect.</p> <p>2. Taxation <&wkey;88 — Assessor cannot assess man with dog of which he has lost possession.</p> <p>An assessment of a dog to a man, who had previously lost possession of the dog, was null for want of authority in the assessor to make it, as an assessor is authorized to assess to a man only the things that the man has.</p> <p>3. Animals <§=4 — Dog license statute inapplicable to parish of Orleans.</p> <p>Act No. 198, of 1919, § 3, providing that the payment of the license tax which pojice juries are therein, authorized to impose on dogs shall constitute as property the dog upon which it is paid, is inapplicable to the parish of Orleans, which is wholly absorbed by the city of New Orleans, and is not governed by a police jury.</p> <p>4. Taxation <&wkey;>58 — Dog license law held not to repeal tax law..</p> <p>Act No. 239 of 1918, imposing a license tax on dogs, and, without making payment of the license obligatory, directing the sheriff to deliver a license tag to any citizen applying therefor, is not inconsistent with, and does not repeal, Act 107 of 18S2, providing that no dog not placed on the assessment roll shall be entitled to the protection of the law.</p>

P. Mills, Judge. Ed Bauman was charged by information with a violation of the Blue Sky Law. From a judgment sustaining defendant’s plea that the statute was- unconstitutional, the State appeals.

' Tliéard, Judge.' Action by Carleton Hunt and others against the City of New Orleans and others. Judgments for defendants, and plaintiffs appeal.

Action by Edwin L. Fortier against Lazard Gumelsky. Judgment rendered dissolving the injunction obtained by plaintiff, and plaintiff applies for writs of certiorari, mandamus, and prohibition.

<p>(Syllabus. 6j/ the Court.)</p> <p>On Rehearing.</p> <p>Taxation <&wkey;809(2) — -Tax deed not confirmed where deed annexed to application for confirmation shows sale to another not in conformity with statute.</p> <p>Where plaintiffs in a suit for confirmation of title allege that they inherited from their father, as purchaser at the tax sale, but the deed, annexed to and made part of their petition, shows a sale to another person, and also shows that it was not made in conformity to the statute relied on as authorizing it, their demands must be rejected.</p> <p>Monroe, O. J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunction &wkey;l 14(2) — Suit to enjoin trespass must be maintained by party in posses- • sion.</p> <p>A suit to enjoin a trespass on land and to recover the damages flowing therefrom must be maintained by the person who had the possession, actual or constructive, of the property at the time of the injury.</p> <p>2. Vendor and purchaser &wkey;>244 — Evidence held to show notice to purchaser of lands of title of grantee of timber.</p> <p>Evidence held to show 'that a purchaser of timber lands bought with full notice of the title of one owning the timber under a deed from a former owner of the land and with notice that defendant was in possession and that he was buying a lawsuit.</p> <p>3. Logs and logging <&wkey;>2 — lmlefi;niteness of timber deed cannot be attacked by grantee of land not having antagonistic title.</p> <p>Where plaintiff purchased timber lands with full knowledge of a conveyance of the timber by a former owner, he was not setting up an antagonistic title, and could not attack the timber deeds as too indefinite to transfer the property.</p> <p>4.Logs and logging <&wkey;-2 — Description- of timber sufficient when it permitted identification of property.</p> <p>The description in timber deeds was sufficient where it was sufficient to enable the parties and witnesses to identify the property.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>,1. Evidence <S=20(I) — Judicial notice that agricultural, products form a large part of property stored in public warehouses.</p> <p>The court may take cognizance of the fact that the agricultural products of the United States form a large part of the property ordinarily stored in pdblie warehouses, especially in the state of Louisiana.</p> <p>2. Warehousemen <&wkey;17 — No seller’s lien on products for which negotiable warehouse receipts have been acquired by third persons in good faith.</p> <p>Act No. 63 of 1890, giving seller of agricultural products a lien for purchase price during the first five days following delivery, held inoperative as to property for which negotiable warehouse receipts in proper form have been acquired for value and in good faith by third persons, having been repealed in so far as it affects . such property by the Uniform; Warehouse Receipts Act (Act No. 221 of 1908, §§ 1, 2, 4, 5, 40-49, 60).</p> <p>3. Saies &wkey;>302 — Sale held to have taken place within state, though subject-matter at time of agreement was in other state.</p> <p>A seller, within the state, of cotton situated outside of state to buyer within the state, to be delivered within the state to buyer, after delivery to seller under separate and independent agreements by shipment to seller’s order or to shipper’s order with directions to notify seller, was entitled to lien for the five-day period following delivery under Act No. 63 of 1890, giving seller of agricultural products in the state such a lien; the sale having taken place in the state, and not in the other state in which the cotton was situated at the time the contract was entered into, notwithstanding the lapse of a few days between the date of agreement and the actual delivery.</p> <p>4. Sales 4&wkey;302 — Sale by sample of cotton situated in other state takes place within state entitling seller to lien.</p> <p>If sale of cotton was made by sample taken from the cotton intended to be delivered, the title passed at the time of the agreement, where the cotton being sold was definite and the price was fixed and the parties had consented, though the cotton at such time was situated in other state, and was not to be delivered to buyer until shipped to seller from such other state; the sale in such case being made within the state, entitling seller to the lion during the five-day period following delivery given by Act No. 63 of 1890.</p> <p>5. Sales &wkey;?313 — Seller net estopped to assert lien on agricultural products by placing bills of lading in hands of buyer to negotiate.</p> <p>Seller of cotton was not estopped to assert lien under .Act No. 63 of 1890, giving seller of agricultural products lien for five days following delivery, because of its having placed bills of lading in the hands of buyer for the purposes of negotiation without having in writing waived its lien.</p> <p>On Rehearing.</p> <p>6. Sales <&wkey;315 — Seller’s lien on agricultural products enforceable by sequestration.</p> <p>Lien given seller of agricultural products during five days following delivery by Act No. 63 of 1890 should be enforced by seizure in sequestration proceedings during such five-day period under Code Prac. art. 275, par. 7.</p> <p>7. Sales &wkey;>3l5 — No personal judgment against third person in seller’s sequestration proceeding to enforce lien.</p> <p>In proceeding by seller of cotton to enforce lien under Act No. 63 of 1890' against third person by sequestration, where third person had retained the cotton by execution of bond under Code Prac. art. 280, and had thereafter sold the cotton, the seller was not entitled to a direct money judgment against third person •or against his surety in such original proceeding, but was entitled merely to have its claim against buyer liquidated with recognition oi lien and with the right to have claim or as much thereof as the proceeds of the cotton will discharge satisfied out of such proceeds.</p> <p>8. Sequestration &wkey;>20 — Defendant, who sold property after release, not liable for interest on price received.</p> <p>Where defendant, in sequestration proceeding after release of property by execution of bond, sold the property, its obligation to plaintiff was merely to produce the market value of the sequestered goods at the date it was called upon to produce it after final judgment, and it is not liable for interest on the price received.</p>

B. Crow, Judge. Malvin Day was convicted of having carnal knowledge of an unmarried female between the ages of 12 and 18 years, with her consent, and he appeals.

<p> (Syllabus by the Gov/rt.) </p> <p>I.Constitutional law <&wkey;90 — Libel and slander <&wkey;>49 — Provision as to liberty of speech and of, the press does not interfere with statutory recovery for libel.</p> <p>The constitutional provision which secures liberty of speech and the freedom of the press in no wise interferes with the operation of the statute law which entitles one who has been injured by a libelous publication to recover damages therefor; and the publisher of a newspaper has no greater privilege than an ordinary person to publish false and defamatory statements.</p> <p>2. Libel and slander t§c»30 — Truth or falsity of statement made depends on its connection and purpose.</p> <p>■Whether the statement of a fact be true or false may depend upon the connection in and purpose for which it is made.</p> <p>3. Asylums &wkey;>3 — General Assembly alone may order investigation of state insane asylum. .</p> <p>Where a state insane asylum, the authority to_ govern which, is vested in a board of administrators, is thought to require investigation, the General .Assembly is the proper authority to order it, and no individual, or corporation, be it a publishing company or other, is competent to exercise that function, save by the authority of, and in the manner prescribed by, the board; nor does the law vest in the Governor the power to control the board with respect to its regulations on that subject, though the members may be subject to removal as the law may prescribe.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4. Libel and slantfer <&wkey;>IO(l) — Charges against superintendent of state insane asylum held libelous.</p> <p>In a libel suit by the superintendent of a state insane asylum against a newspaper which made charges of unfitness, and mismanagement, such charges held libelous.</p> <p>O’Niell and Provosty, JJ., dissenting.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; W. T. Cunningham, Judge.</p> <p>Mandamus by Henry E. Braden, Sr., against John G. Lewis. Judgment for plaintiff, and defendant appeals.</p>

K. Skinner, Judge. Action by Walter T. Carey against the Commonwealth Building & Loan Association, with intervention by its successor, the Prudential Savings & Homestead Association, wherein the Land Development Company prayed for possession of certain property. From a decree that injunction proceedings taken out by plaintiff be dismissed, Walter T. Carey and P. M. Milner appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Parties (&wkey;70 — Petition held to show plaintiff suing on behalf of others.</p> <p>In an action for damages from fire caused by sparks from defendant’s locomotive, a petition, alleging that specified amounts of the damages claimed were due petitioner for the use and benefit of certain insurers, subrogees, and beneficiaries under policy contracts, and asking that it be decreed that they were beneficiaries and subrogees of the judgment, to which was annexed receipts whereby plaintiff subrogated them to his rights, sufficiently showed that he was suing as representative or agent for the insurance companies.</p> <p>2. Pleading <&wkey;228 — Exception held to admit that plaintiff was agent of those for whom he sued.</p> <p>In an action for damages frotn fire brought as to part of the damages on behalf of insurance companies subrogated to plaintiff’s rights, an exception of no cause or right of action admitted all facts well pleaded, and, it being alleged that plaintiff was the agent of the insurance companies, such capacity was admitted.</p> <p>3. Parties <&wkey;>96(2) — Exception to capacity of plaintiff must be pleaded in limine.</p> <p>Under Code Prac. arts. 320, 332, and 333, an exception to plaintiff’s capacity to sue on behalf of insurance companies subrogated to his rights is dilatory in character and must be pleaded in limine and is cut off by default or pleading to the merits.</p> <p>4. Principal and agent <&wkey;l83(l) — Mandate; statute held to authorize agent to sue for principal.</p> <p>Code Prac. art. 320, authorizing defendant to refuse to answer if one pretending to act as attorney in fact does not annex to the petition a copy of the power of attorney, implies that suit may be brought in the name of an agent disclosing the name of his principal.</p> <p>5. Vendor and purchaser &wkey;>203 — Sales; rental value during repair of building not recoverable after sale.</p> <p>•Where a building damaged by fire was sold 10 days after the fire, the owner was not entitied to recover the rental value during the period of repairs except for the ten days, though he suffered a loss on the sale because of the fire.</p> <p>6. Damages <&wkey;59 — Tenant’s irregularity in payment does not affect right to rental' value.</p> <p>That a tenant of a building damaged by fire was behind and irregular in her payments of rent was a matter between her and the owner and did not affect the owner’s right to recover the rental value during the period of repairs.</p> <p>7. Damages &wkey;>39 — Rental value during repair of damaged building is recoverable.</p> <p>The rental value during the term of repair of a building partially destroyed by fire is recoverable as an element of the damages.</p> <p>8. Damages <&wkey;lll — Measure of damages for partial destruction of building stated.</p> <p>Where plaintiff’s building was partially destroyed by fire set by sparks from defendant’s locomotive, he was entitled to recover the value only of the part destroyed at the time of the fire, or, in other words, to be restored to the condition which obtained before the fire.</p> <p>9. Damages (®=»l 11 — Allowance for depreciation to be made from cost of restoration.</p> <p>In determining the damages to a building partly destroyed by fire, a deduction for depreciation must be made from the cost of restoring the property with new material more valuable than that destroyed.</p> <p>Provosty, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Waters and water courses &wkey;>l79(l) — Petitlon for damages from water escaping through levee and backed up by dike held sufficient.</p> <p>A petition, alleging damages to plaintiff’s land and crops from water escaping from a river through crevasses in a levee, stated a cause of action, where it alleged that the defendant railroad company had built a dike across the natural drains of the property, and that such dike was the sole cause of the overflow of the land and destruction of the crops.</p> <p>2. Landlord and tenant &wkey;s33a( I) — Landlord entitled to only one-half of damage to crop planted on shares.</p> <p>The owner of a plantation planted on shares was entitled to only one-half of the damage to the crop caused by the hacking up of water thereon.</p> <p>3. Waters and water courses <&wkey; 171 (2) — -Railroad obstructing drainage held liable, though water escaped through crevasses in levee.</p> <p>Where the .natural drains of plaintiff’s property would have been sufficient to carry off the water from crevasses in a levee if a railroad embankment had not dammed such drains, the embankment was the proximate cause of the damage, even though the break in the levee was a fortuitous event, or due to an irresistible force.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Theard, Judge. •</p> <p>Action by the United States Fidelity & Guaranty Company against Harry A. Otis. Judgment for defendant, and plaintiff appeals.</p>

Action by Simm Nash against the Long-ville Lumber Company. From, judgment for plaintiff, defendant appeals, plaintiff praying that the judgment be increased.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. A. K. Eecles against Mrs. Pierre Raehou and others. Prom a judgment for defendants, plaintiff appeals.</p>

Suit by A. B. Shushan against Paul W. Maloney and others, in which defendants applied to the Court of Appeal for writs of certiorari and mandamus to compel dismissal of the suit on the ground that plaintiff’s bond for costs was filed too late, and, on being denied the writs, petition for writs of certiorari and review to reverse the rulings of the Court of Appeal and for writs of certiorari and mandamus to compel the trial court to dismiss the suit.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Marie Houcard Berot against Albert Porte. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Regina Atkins against Dr. J. Frank Points. From a judgment for defendant, plaintiff appeals.</p>

1 Suit by Charles Walker, tutor of the minor children of Leon Dejan, against Young Men’s St. Michael’s 'Mutual Aid & Benevolent Association. Judgment for defendant was reversed by the Court of Appeal, and defendant applies for certiorari or writ of review.

Election contest by B. R. Hendricks against U. S. Bartness. From judgment for plaintiff, defendant appealed to the Court of Appeal, which affirmed in part and reversed in part and, on request of defendant’s counsel, transmitted the record to the Supreme Court, but later rescinded its order transmitting the case, and defendant applied-for writs of certiorari and review, which were denied.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Adverse possession <&wkey;>85(5) — Prescription; evidence defendant did not know property was community held to show good faith.</p> <p>In a petitory action, for an undivided half of certain real estate, evidence that defendant acquired the property at a sale under a mortgage executed by plaintiff’s father alone, and that defendant knew at the time she purchased that the mortgagor’s wife was dead and that her heirs were minors, but did not know that the mortgaged property belonged to the marital community, having been informed and believing that it had been inherited by plaintiff’s father, does not show lack of good faith in acquiring the property so that a plea of ten years’ prescription is valid.</p> <p>2. Limitation of actions (&wkey;>l95(4) — Prescription; party relying on disability has burden of proving continuance to within statutory period.</p> <p>A party relying on disability to protect his rights from 10 years’ prescription has the burden of proving that the disability admitted to ' exist at the time defendant acquired the property continued to within 10 years of the beginning of the action.</p>

Annie Pullman Burchewski was charged with having kept a disorderly house, and she applies for writs of certiorari and mandamus to compel acceptance of an appearance bond tendered by her and to release her from imprisonment.

E. Reynolds, Judge. Possessory action by Thomas Crichton, Jr., trustee, and others, against T. K. Giddens and others. From a judgment in favor of plaintiffs for possession of part of the land in controversy, plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Husband and wife <&wkey;23 — Wife not lessee jointly with husband merely because she negotiated lease as husband’s agent.</p> <p>That wife acted as husband’s agent in negotiating a lease did not make her a lessee jointly with the husband.</p> <p>2. Landlord and tenant <&wkey;>l68(l) — Lessee’s wife injured from fall of broken glass as result of strong wind held not contributorily negligent.</p> <p>Lessee’s wife injured by fall of glass from broken window pane blown upon her by a strong wind, while using hallway of premises, held not contributorily negligent.</p>

Suits by the Dry Creek Lumber Company against Fred H. Littrell and Monroe A. Pig-ford, respectively, consolidated. Application for mandamus by plaintiff to compdl the fixing the case for trial.

Certiorari from Court of Appeal, Parish of Orleans. Action by the Wilkin-Hale State Bank against A. S. Tucker and others. A judgment for plaintiff was affirmed by the Court of Appeal, Parish of Orleans, and defendant Tucker and others applied for certiorari or writ of review.

Landry; B. H. Pavy, Judge. J. M. Surreney was found guilty without capital punishment-of shooting another while defendant was lying in wait, and lie appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Ered D. King, Judge.</p> <p>Action by Elizabeth Fredericks Holtz against August Charles Lange and others. Judgment for defendants, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error &wkey;>l208(5) — Remedy of judgment defendant after reversal on devolutive appeal is to recover money received and retained by judgment creditor.</p> <p>The only remedy of a defendant against whom a judgment has been executed which has been subsequently reversed on a devolutive appeal is to recover whatever sum of money the seizing plaintiff has received or retained out of the proceeds of the property seized and sold.</p> <p>2. Judgment &wkey;>489 — Judgment in which court was without jurisdiction, etc., null if question of jurisdiction was not in issue.</p> <p>A judgment rendered in a case in which the court was' without jurisdiction, or in which defendant was not cited or was non sui juris or was not authorized to stand in judgment, would be null, if the question of fact as to whether the court had jurisdiction of that particular case,. or whether defendant was cited or had capacity, or was authorized, to stand in judgment, was not put in issue and foreclosed by the judgment rendered in the case.</p> <p>3; Judgment 4&wkey;470 — Judgment by court having jurisdiction of subject-matter and person valid.</p> <p>A judgment rendered by a court having jurisdiction -of the subject-matter and of defendant was valid and executory.</p> <p>4. Partnership i&wkey;l24 — Judgment ordering one partner to restore land purchased by other alone on execution sale held unenforceable.</p> <p>The part of a judgment against a partnership, which orders both partners to restore to plaintiff land purchased by one partner alone at a sale under an execution on a judgment, in favor of the partnership afterwards reversed, is not enforceable against the other partner, but null and of no effect against him.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; Joseph E. LeBlanc, Jr., Judge.</p> <p>Action by Swift & Co. against the New Roads Oil Mill & Manufacturing Company. From judgment for an amount less than sued for, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Licenses &wkey;>l9(4) — City directory company held not a “manufacturer” within Constitution exempting manufacturer from occupational license tax.</p> <p>A city directory company engaged in compiling the names for the city directory and in selling the directories and advertising space therein, which turned the manuscript thus compiled with electrotypes and paper over to a bookbinding and bookprinting establishment, ,Held liable for license tax under Act No. 171 of 1898, not being a “manufacturer” within Const, art. 229, exempting manufacturers from payment of occupational license tax.</p> <p>[Ed. Note. — For other definitions, see Words and'Phrases, First and Second Series, Manufacturer.]</p> <p>2. Licenses &wkey;ri9(4) — “Manufacturer” within Constitution, exempting manufacturer from occupational license tax, not required to sell articles manufactured.</p> <p>It is not essential in order that a manufacturer be classed as such within Const, art. 229, exempting a manufacturer from payment of occupational license tax, that he should sell the articles he manufactures.</p>

Rogers, Judge. In the matter of the Succession of John R. Gheens. Proceeding to determine amount of inheritance tax. From a judgment fixing the tax, an appeal is taken.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; S. Allen Bordelon, Judge.</p> <p>Action by the Holly Ridge Lumber Company against Thomas C. Day. Judgment for plaintiff, and defendant appeals.</p>

K. Skinner, Judge. Action by H. J. I-Ioughland against L. Edward Clark, in which injunction was asked against Clark and also the Old Lake Petroleum Company, Incorporated, which filed exceptions. Judgment for plaintiff, and defendant and said Petroleum Company appeal.

King, Judge. In the matter of the successions of Agnes Blumberg, widow of Louis Schadwell, of Louis Schadwell, and of Catherine Schadwell, judgment ordering a partition by licitation. Erom judgment dismissing the opposition of Matthews Bros., auctioneers, and the individual members of the firm, to the partition, in which their commission for the sale of certain succession real estate was fixed in certain amounts, they appeal.

Dawkins, Judge. Suit by the Union National Bank of Monroe, La., in liquidation for which the People’s Investment Company, by supplemental petition, was substituted, against Sig Marx and another. Prom judgment enjoining receiver from delivering deposits in the name of Mrs. Marx, represented by checks to Mrs. Marx, and directing the' receiver to deliver the checks to the People’s Investment Company, Mrs. Marx appeals.

King, Judge. In the matter of the succession of Mrs. Marie Burgant, widow by first marriage of Jean Chantagne and widow by second marriage of Rerny Batmale. From a judgment sustaining one item of the administrator’s account and rejecting another, both of which had been opposed, the administrator and the heirs both appeal.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the State, on the relation of the Newcomb Realty Company, against the City of New Orleans. From judgment for respondent, relator appeals.</p>

Andrew, Judge. Action by Euston Clements against the Texas & Pacific Railway Company, in which the Director General of Railroads was made a defendant. Erom a judgment for plaintiff, the Director General appeals, and from a judgment dismissing the suit - against the Railroad Company and its receiver, plaintiff appeals.

Action by the Krauss Bros. Lumber Company against the Board of Assessors for the Parish of Orleans and the Board of State Affairs to annul an assessment for taxation. From a judgment rejecting the demand and ■declaring the assessment valid, plaintiff appeal’s.

J.- Caillouet, Judge ad hoe. Claim by Nathan Tolchinsky against the Succession of Ernest Lirette. Prom a rejection of a claim and a dismissal of the suit, plaintiff appeals. On motion to dismiss.

F. Bell, Judge. Actions by C. D. Webster against S. J. Harman and against M. A. Ledbetter and others were consolidated. Judgment for plaintiff, and the defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;594(5)— City held to have power to suppress houses of prostitution through ordinances.</p> <p>The municipal council of the city of Lake Charles had ample power, expressly conferred, to suppress houses of prostitution, so that an ordinance passed therefor is not ultra vires.</p> <p>2. Municipal corporations. <&wkey;118 — Ordinance prohibiting houses of prostitution held not a war measure, and not to have terminated with the war.</p> <p>The objection that a city ordinance prohibiting houses of prostitution was adopted as a war measure, and therefore became functus officio with the termination of the war, is not well taken, although during the war one of the military camps was near the city; which made such houses a menace to the welfare of the soldiers, a matter mentioned in the preamble, .there being nothing in the preamble or the body of the ordinance limiting it to war time.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Winston Overton, Judge.</p> <p>Action by Will Cuna against the Elton Lumber Company, Limited. Judgment for defendant, and plaintiff appeals.</p>