Volume 149 — Louisiana Reports

P. Mills, Judge. Mandamus suit by tlie State, on the .relation of Samuel Green and others, against the Shreveport Producing & Refining Corporation and others. From a judgment dismissing the suit, relators appeal.

<p>Appeal from Second Judicial District Court, Parish of Webster; Robert Roberts, Jr., Judge.</p> <p>Arthur Deloney, alias Arthur Malone, was convicted of manslaughter, and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Constitutional law &wkey;>265 — Indictment and information <©= 10 — Indictment may be found. and presented by less than 12 jurors; “quorum.”</p> <p>Act No. 98 of 1880, § 3, providing that the-grand jury for the parish of Orleans shall consisf; of 16 persons, 12 of whom shall constitute a quorum, was superseded by Const. 1S98, art. 117 (retained in Const. 1913), declaring that the grand jury in each and every parish shall consist of 12 members,^ of whom must concur to find an indictment; hence in the parish of Orleans 9 jurors will constitute a quorum, which means the number of members whose presence is required for transacting business; and the finding and presentment of an indictment in such parish by less than 12 grand jurors is not a violation of Const. La. arts. 2, 9, nor of Const. U. S. Amends. 5, 14.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Quorum.]</p> <p>2. Criminal law <&wkey;622(2) — Severance not called for where no showing that defenses would be antagonistic.</p> <p>Where, when the trial judge was called to pass upon the motion of one of the defendants for a severance, there was no evidence to lead him to believe that the defenses of applicant .and his codefendant would be antagonistic, their confessions having been corroborative of each other, showing they shared in the responsibility for the crime, there was no error in ■overruling the motion for severance.</p> <p>3. Criminal law <&wkey;l26(2)— Denial of change of venue held proper.</p> <p>Denial of motion for change of venue under Rev. St. § 1022, for popular prejudice, was proper, where there was no showing that the public mind was so inflamed against defendants accused of murder, that they could not obtain an impartial trial.</p> <p>4. Criminal law &wkey;>622(2) — Granting severance as to one defendant held not error.</p> <p>Where F. B. and O. Z. and R. B. were indicted together for murder, the fact that the district attorney successfully objected to the severance asked for by O. Z. and R. B. did not render it error,o as to F. B. to grant a severance as to R. B., on the district attorney’s motion, when the case was called for trial, in view of the general rule that the district attorney has control over the docket of criminal cases, and can try separately any one of several defendants under one indictment, and the fact that R. B., if he had testified on the trial with his codefendants, would probably have adhered to his previous statement to the police, which was entirely unfavorable to F. B.</p> <p>5. Criminal law <&wkey; 1166/2(6) — Refusal to allow certain line of questioning on voir dire held not prejudicial.</p> <p>In trial of two defendants for murder, refusal of the' trial judge to allow an attorney for one defendant to ask a juror on his voir dire, in two separate instances, whether the juror understood and would obey the law that a confession made by one defendant, implicating another, should be considered as evidence only against the party making the confession, and not against the other party — held not prejudicial,, if erroneous.</p> <p>O’Niell, J„ dissenting.</p> <p>6. Jury <&wkey;l03(¡3) — Jurors held not disqualified by fixed opinion requiring evidence to remove.</p> <p>_ As to jurors, each of whom stated, in his voir.dire, that he had formed an opinion from newspaper accounts of the crime, and that his opinion was so fixed that it would naturally require strong evidence to remove it, but that he could and would, if taken on the jury, put aside his opinion, and, presuming defendant’s innocence, be governed entirely by. the evidence, and, that he would not convict either defendant without proof of guilt beyond a reasonable doubt, the overruling of challenges on the ground that they had a fixed opinion held •not error.</p> <p>7. Criminal iaw <@=>5!8(l) — Accused need not be warned or cautioned for his confession to be available against him.</p> <p>The common-law rule that a party accused need not be warned or cautioned in order that his confession, made out of court and not under oath, may be used in evidence against him, has not been changed by statute.</p> <p>8. Criminal law <&wkey;>l 169(12) — Defendant held protected by instructions against erroneous effect of reading statements by one connected with criminal transaction.</p> <p>In murder trial, a defendant held fully protected by instructions not to consider against such defendant whatever was said out of his presence, nor any statement made in his presence, unless acquiesced in by him, against any illegal effect of reading to the jury statements by one connected with the transaction, made out of defendant’s presence, especially since such statements were not as unfavorable to defendant as his own confession/</p> <p>9. Homicide &wkey;>309(l) — Instruction on manslaughter held not erroneous.</p> <p>Although, under Rev. St. § 7S5, the jury has the power to render a verdict of manslaughter in a case where the evidence proves deliberate murder, the jurors ought to be informed and understand that they should not render a verdict of manslaughter in a ease of deliberate murder; so that, in a case where the evidence tended to prove deliberate murder and no provocation, an instruction that the jury were authorized’in all’murder trials to find a verdict of manslaughter, and further stating the law of manslaughter, and stating that if the jury found there was no provocation, a verdict of manslaughter would not be responsive to the evidence, was proper.</p> <p>Provosty, J., dissenting.</p>

Action by Nicholas Guiterez against August Esteves and another. To review judgment for plaintiff, defendants apply for writs of certiorari, mandamus, and prohibition.

<p> (Syllabus by the Court.) </p> <p>Husband and wife <®=32i — Where one convicted of wife desertion refuses after trial and conviction to pay weekly alimony, judge must impose sentence.</p> <p>Whore a defendant charged under Act No. 34 of 1902 with wife desertion is ordered, after trial and conviction, and refuses, though able so to do, to pay the weekly alimony, as provided by that statute, it becomes the duty of the judge to impose the sentence of fine, or imprisonment, or both. Pending such sentence, if it be delayed, and the appeal if there be one, the defendant is entitled to be released on bail.</p>

Ten actions by A. E. Hinton and others against W. B. Smith and others. Judgments for plaintiffs were reversed by the Court of Appeal, and plaintiffs pray for writs of certiorari or review.

Application by Alex S. Kuhn and another for writs of certiorari, mandamus, and prohibition to the judge of the sixth judicial district court for the parish of Ouachita, in a cause of action between such relators and Mrs. Mary A. Breard and husband.

K. Skinner, Judge. Proceedings in the succession of Robert Iluxen, deceased. From a judgment maintaining an opposition to the account of the administratrix, she appeals.

<p>Appeal from Twenty-Sixtli Judicial District Court, Parish of St. Tammany; Prentice B. Carter, Judge.</p> <p>Suit by Paul Pierre against John M. Bar-ringer. Erom a judgment dismissing his suit, plaintiff appeals.</p>

<p> (Syllabus by .Editorial Staff.) </p> <p>Assault and battery <&wkey;>35 — Evidence held to warrant finding for defendant in action for assault.</p> <p>In an action for damages for assaulting and shooting plaintiff with a pistol, evidence held to sustain a judgment for defendant.</p>

<p>Appeal from Second Judicial District Court, Parish of Webster; Robert Roberts, Jr., Judge.</p> <p>Roy Sikes was convicted of larceny, and he appeals.-</p>

<p> (Syllabus by Editorial Staff:) </p> <p>1. Landlord and tenant <&=>76(3) — Landlord may not revoke consent to sublease.</p> <p>Where an oral agreement of lease was entered into under which either party agreed to sign a written lease if the other party should demand' it. landlord was not at liberty, after having consented .that tenant might sublet a part of the premises, to recede from her agreement by demanding that tenant should sign a contract containing a stipulation denying his right to sublet a part of the premises without the consent of the landlord.</p> <p>2. Landlord and tenant <&wkey;75( ITenant given authority to sublet part of store entitled to construct temporary partition.</p> <p>Slight alteration in the arrangements of a storeroom, consisting of a temporary partition and removal of a glass door behind the show window, held incidental to the right given tenant by landlord to sublet a part.</p>

Le Blanc, Judge. William Harrison was convicted of breaking' and entering dwelling house in the nighttime, with intent to steal, and appeals.

Habeas corpus proceeding by the State, on the relation of Frank Johnson, against Aleen J. Johnson and others, to obtain custody of a child. Judgment for plaintiff, and defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Criminal law <&wkey;886(2) — Reopening case for character evidence by way of cross-examination is discretionary.</p> <p>Where testimony in rebuttal was not on the subject of character, cross-examination on that subject would have constituted. a reopening of defendant’s case, which he had closed so that refusal was in the court’s discretion.</p> <p>2. Criminal law &wkey;>70.6— Question whether defendant surrendered through fear, rather than sense of innocence, held not an appeal to race prejudice.</p> <p>In a prosecution of a negro for homicide an unanswered question as to whether defendant’s willingness to surrender to an officer was through a sense of fear, to combat the inference that it was through a sense of innocence, was not improper as an appeal to race prejudice.</p>

Application by Horace A. Madere for a writ of habeas corpus to obtain release from custody under sentence for contempt in a proceeding by Mrs. Anna Lorson.

Boone, Judge. Separate suits by the Frost-Johnson Lumber Company against the Nabors Oil & Gas Company and the Standard Oil Company of Louisiana, against the Nabors Oil & Gas Company and W. B. McCormick, against the Nabors Oil & Gas Company, M. R. Lare, and others, against the Nabors Oil & Gas Corn-pans’-, the Gulf Re'fining Company, and another, against the Louisiana Oil Refining Corporation, against the Nabors Oil & Gas Company alone, against the Nabors Oil & Gas Company…

K. Skinner, Judge. Suit by Mrs. Elizabeth Peyton and another, as the only heirs at law of John Schlumbrecht, deceased, against John Roth, to declare null, as. fraudulent simulations, two sales of real estate by the deceased to the defendant. Judgment for the defendant, and the plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Evidence <&wkey;400(2) — Parol evidence inadmissible to vary written act of sale.</p> <p>Under Rev. Civ. Code, arts. 2440, 2236, 2276, parol evidence could not be introduced in a petitory action to amend, alter, or change the written act of sale.</p> <p>2. Husband and wife <@=»274(4) — Testimony that proceeds of sale went to pay debts of community inadmissible.</p> <p>In a petitory action by a woman claiming through her deceased mother, testimony going to show that the proceeds of the sale of the property by plaintiff’s father went to pay the debts of the community was inadmissible.</p> <p>3. Infants <&wkey;10 — Minors; act emancipating married minors at 18 held not to emancipate such a minor when she reached such age prior to taking effect of act.</p> <p>In view of Oiv. Code, art. -8, Acts 1908, No. 224, amending and re-enacting Oiv. Code, art. 382, emancipating minors who are married at 18 years of age, did not emancipate a woman married at 16 born August 24, 1SS7, on the date when she reached 18 years of age, August 24, 1905, three years before the act was passed; but the law took effect on her and emancipated her from the day it became a law in her parish August 6, 190S.</p> <p>4. Limitation of actions <§=6(1) — Prescription; rule that remedial legislation affecting prescription retroactive explained.</p> <p>The rule or statement that remedial legislation affecting prescription is retroactive means that such legislation affects rights and persons already in existence at the time of the passage of the act, and is not confined merely to rights and persons coming under its terms in the future.</p>

TliGard, Judge. Action by David Dowie against Elizabeth Becker, his wife, in which defendant reconvened. Judgment for defendant on her plea in reccnvention, and dismissing plaintiff's suit, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>1. Jury &wkey;>66(l) — Setting aside general venire renders jurors selected incompetent to serve.</p> <p>The setting- aside of a general venire because one witness (of two) present at the selection of the jurors is unable to read and write the English language renders the jurors who are selected while that condition exists incompetent to servo; but it in no manner disqualifies theta from being again selected under an order of court directing the selection of a new and full venire.</p> <p>2. Witnesses <@=»337(5) — Defendant may be ' asked whether he has previously been convicted of an offense.</p> <p>Defendant in a criminal case who becomes a witness in his own behalf may, with a view of impeaching his character as. a witness, be asked whether he has previously been convicted of an offense.</p> <p>3. Criminal law <3&wkey; 1144(12) — Appellate court will not assume that question on cross-examination to impeach defendant’s veracity is improper.</p> <p>Where the trial judge rules that a question propounded on cross cxamination to a defendant in a criminal prosecution is admissible for the purpose of impeaching his veracity, and no previous testimony of the witness is brought up, this court can find no reason for assuming that the ruling was erroneous.</p> <p>4. Criminal law &wkey;ri064(5) — Motion for new trial because judgment contrary to law and evidence brings up nothing on appeal.</p> <p>A motion for new trial on the broad ground that the judgment is contrary to law and the evidence,, and a bill of exception to the overruling of the same, brings up nothing on the appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Case followed.</p> <p>Reasons assigned in State v. Guillory, 88 South. 780,i this day decided, for sustaining the trial court in overruling the challenge of array, are adopted and assigned in this case.</p> <p>2. Criminal law <&wkey;> 1144(15) — Temporary separation of one juror held insufficient to authorize presumption of misconduct.</p> <p>Temporary separation from his fellow jurymen of one juror, in the trial of a prosecution under indictment for murder, will not authorize presumption of misconduct, or of prejudice to accused, when it is conclusively shown that the one juror was not accessible to contact with outsiders, and that the others were in the jury box under the eye of the1 judge.</p>

<p>Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. II. Pavy, Judge.</p> <p>Tanis McGee was convicted of felony, and he appeals.</p>

K. Skinner, Judge. Suit by C. B. Eox, landlord, against N. L. Merks, as tenant, and others, as sureties on the lease and rent notes. The tenant and the surety A. Schmidje died, and exceptions by their respective successions were sustained, and suit dismissed as to them, and judgment was rendered for plaintiff as against the surety Henry Worner, and he appeals.

Action by Agnes R. Pender against W. E. Gray and others to enforce vendor’s lien. On refusal of continuance defendants applied for writ of prohibition to prevent trial of the cause.

<p> (Syllabus by the Court.) </p> <p>1. Judgment <&wkey;456(2) — Action by heir to annul judgment putting widow and heirs in succession barred unless brought within year.</p> <p>An action brought by one of the heirs, and petitioners therefor, to annul a judgment putting the widow and heirs in possession of the estate of the deceased husband and father, including the community interest of the widow, upon allegations of fraudulent misrepresentation on the part of the other parties thereto in the obtention of such judgment, and ignorance and error on the part of the heir attacking, is prescribed unless brought within the year after the fraud has been discovered.</p> <p>2. Descent and distribution <&wkey;82 — Succession; person may waive obstacle of illegitimacy and concur in judgment putting unfortunate brother in succession.</p> <p>There is no law of this state which precludes a person who is sui juris from waiving the obstacle of illegitimacy and concurring with his unfortunate brother in a judgment putting them in possession of the estate of their common parents; such action is an authoritative renunciation of any right in conflict with those, recognized by the judgment.</p>

Judicial District Court, Parish -of Terrebonne; Philip .H. Gilbert, Judge. In the matter of the Succession of George Williams. Suit by Robert J. Williams and others against George Williams, Jr., and others, for possession of tlieir interest, in the estate of decedent and for partition, in which Mrs. Robert Collins and another intervened, claiming an interest.

<p> (Syllabus l>y the Court.) </p> <p>L. Master and servant <&wkey;348 — Statute defining parent’s usufruct of child’s estate not in conflict with Employers’ Liability legislation.</p> <p>■ The provisions of the Civil Code to the effect .that parents are entitled to the usufruct of the estates of their minor children, hut that the shine shall not extend to any estates acquired by such children by their own labor, are not in conflict with the provisions of the “employers’ liability” legislation, whereby the surviving and dependent parents of a minor, who has died within a year following, and as the result of, an injury received while in the discharge of a duty for which he was employed, are entitled to be paid a portion of the wages that the minor might have earned, had he lived.</p> <p>2. Master and servant &wkey;>386(l), 412 — Entire compensation not allowáble to father as dependent; burial expenses held allowable on appeal from compensation judgment.</p> <p>Where the dependent relatives of a minor employee, who has been killed by accident while in the discharge of the duty for which he was employed, are both parents, they become entitled to receive from the employer, to be divided between them, during 300 weeks, 55 per cent, of the wages that the minor might have earned had he lived; and if, in such case, the father alone sues in his own name, he may recover one-half of the compensation so allowed; but he cannot recover the share due the mother; nor is the case thus presented one in which the whole amount can be awarded to him by virtue of the provision of the statute .(Act No. 20 of 1914, § 18, subd. 4),' to the effect that “the judge shall not be bound by * * * any technical or formal rules of procedure other than as herein provided,” “since the statute itself provides that the claim for compensation shall be made by the person entitled to it. Where, however, the father, in his petition, claims the amount (not exceeding $100 which the statute declares shall he paid for the burial of the deceased employee and the judgment of the trial court, by apparent inadvertence, fails to award it, it may be allpwcd by this court, though, the plaintiff has not answered the appeal, since that requirement is technical, and it was competent for the General Assembly to authorize the judge to disregard it in the particular instance.</p> <p>3. Master and servant <&wkey;>388 — Father claiming compensation held a “dependent” within statute.</p> <p>Whether a surviving father is entitled to compensation by reason of the death of- his minor son as the result of an injury received while in the discharge of a function for which he was employed depends, in part, itpon the interpretation to be placed upon the language of the statute (Act No. 38 of 1918, § 8,. subd. 2[g]) which reads “actually dependent on the deceased employee to any extent for support.” That- language is here interpreted to include tlie case of a surviving father whose earnings are insufficient to enable him to discharge the legal obligation of maintaining his wife and children.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Dependent.]</p> <p>,4. Master and servant <&wkey;386( I) — Compensation to parent payable in installments.</p> <p>In the absence of agreement to the contrary, the percentage of wages recoverable by a dependent is to be paid in installments as the wages would have been paid to the deceased employee.</p>

<p> (Syllabus by B&Uorial Staff.) </p> <p>Railroads <&wkey;482(4) — Proof of origin of fire held insufficient.</p> <p>A railroad will not be held liable for a fire loss upon a mere possibility that the fire, which started in a ginhouse 70 feet away from the track, might have been started by sparks from a locomotive which passed 20 or 30 minutes before the fire was discovered, while a moderate breeze was blowing from the track toward the house, where there is no direct evidence of the origin of the fire, and the railroad has proven affirmatively that the spark-arresting apparatus was efficient .and that there was no negligence in the handling of the locomotive.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.</p> <p>Actions by the Houston Ice & Brewing Company against the Murray Oil Company and by the Murray Oil Company against the Houston Ice & Brewing Company. The two cases were consolidated by consent.- Judgment for the Houston Ice & Brewing Company for less than the amount claimed, and the Murray Oil Company appeals and the Houston Company asks increase of the judgment.</p>

• Robert E. Courtin was appointed natural; tutor of Marguerite Lucille Browne Courtin. Rule by A. Oscar Browne, undertutor of such minor, in opposition to the confirmation of tlie natural tutor. Decrees in favor of the natural tutor. The proceedings were-consolidated, and the undertutor prays for writs of certiorari and prohibition against Hugh C, Cage, Judge' of Division A of the Civil District Court for the Parish of Orleans.

<p> (Syllabus bv the Court.) </p> <p>I.Records &wkey;>6— Law requiring contracts concerning immovable property to be recorded does not specify language of contract.</p> <p>The law which' requires that all contracts concerning immovable property shall be recorded in order to affect third persons contains no specification of the language in which such contracts shall be framed, and all substantial rights which they purport to secure are protected by such recording.</p> <p>2. Mines and minerals <&wkey;73 — Interest remaining after execution of oil and'gas lease containing absolute sale of oil aiid.gas stated.</p> <p>Where the owner of land has incumbered it with a valid oil and gas lease, containing what is declared to be an absolute sale of the underlying oil and gas, he has nothing left to sell, so far as those minerals are concerned, save an interest contingent upon the failure of his lessee to exercise his rights and comply with his obligations; and one who buys the land, with actual as well as presumptive knowledge of such recorded- lease, acquires, no greater interest by his purchase, and can convey no more to one to whom he assumes to lease the land for oil and gas development.</p> <p>3. Mines and minerals !&wkey;73i/2 — Interruption from lessor’s attempt to have oil and gas lease declared invalid extends term of lease.</p> <p>Where the lessor, in an oil and gas. lease, brings suit to have it decreed void, and thereby interrupts the term during which the lessee would otherwise be able to operate, and his' suit is eventually, and after the expiration of such term, dismissed, the interruption cannot be charged to the lessee, to whom a reasonable time, beyond the original term, is thereby allowed; and one who has bought the land pending the litigation, and with knowledge thereof, and of the recorded lease, is charged with knowledge of such right; and where, under such circumstance, he assumes to grant a lease, selling the oil and gas, to a third person who has no knowledge either of the existing lease or the litigation concerning it for a price paid and payable partly in cash, he may be condemn7 ed to reimburse the money so paid.</p> <p>Dawkins, J., dissenting.</p>

Action by J. W. Walsworth and others against the Jackson Parish School Board and others. From a judgment annulling a special tax, the defendants appeal.

<p> (Syllabus by the Court.) </p> <p>1. Bills and notes <@=>241 — Signature on back of promissory note presumed placed there in response to apparent call.</p> <p>A signature placed upon the back of a promissory note will be presumed to have been placed there in response to an apparent, call for it and as relevant to the purpose for which the note was executed, rather than for no purpose, or for a purpose which has already been accomplished.</p> <p>2. Bills and notes &wkey;>!34 — Contract and notes executed contemporaneously held to be construed together.</p> <p>Where, contemporaneously with the execution of a written contract evidencing a sale of property for a price payable, in part, in the. notes of the purchaser, described as “drawn by him to his own order and by him indorsed,” the notes thus “drawn” are delivered,to the seller, but without the indorsement of the maker and payee, and the contract, is otherwise executed, the notes and the contract, as between the maker and the alleged holder and owner to whom they were delivered, and for the purposes of an exception of no cause of action in a suit on the notes, should be construed together, and the plaintiff permitted' to show that he acquired the notes otherwise than by indorsement.</p>

Emmett Hingle, Judge. Suit for dissolution of a partnership hy Blaize Anticich against John Mihaljevich. From a judgment dissolving a writ of attachment, plaintiff appeals. On motion to dismiss the appeal.

Action by Anthony Hook against J. Cusimano to recover commissions on net profits of employer’s business. Judgment for plaintiff, and defendant appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Public lands <&wkey;>!25 — Homesteader held not guilty of laches precluding him from asserting . invalidity of patent.</p> <p>Homesteader who entered into possession of land prior to the erroneous issuance by the United States government of a patent to a railroad,, and who remained in peaceful quiet possession making improvements thereon for more than 30 years, whose rights had been recognized by the Land Department in every decision made by it as to the conflicting rights of homesteader and the railroad, and who had been given a receipt for homestead fees paid by him and had intervened in the suit filed by the government to set aside the patent, held not guilty of laches precluding him from asserting invalidity of patent, having been justified in believing that his rights were being protected as required by Act Cong. Eeb. 8, 1887.</p> <p>2. Real actions &wkey;>8(l) — Petitory action; possessor is not guilty of laches for delay in resorting to equity to establish claim against legal title.</p> <p>Generally one who is in peaceful possession does not subject himself to a charge of laches for mere delay in resorting to equity to establish his claim against the holder of the legal title where the holder of legal title manifests no purpose to disturb him or to question his claim.</p>

Joseph Simone was charged with having obtained money under false • pretenses, and, his exception to the jurisdiction and motion to have information quashed having been overruled, he petitions the Supreme Court for writs of certiorari and prohibition.

<p> (Syllabus by the Court.J </p> <p>1. Statutes &wkey;sl57 — Statute covering entire subject-matter supersedes all prior legislation.</p> <p>Where the obvious purpose of a statute is to cover the whole subject-matter therein dealt with, it supersedes all prior legislation pertaining thereto, and a fortiori is that true where it declares in terms “that all laws and parts of laws on the same subject-matter be, and the same are hereby repealed.”</p> <p>2. Election? <&wkey;3l I— Penalty provision for influencing voters at primaries held repealed.</p> <p>Act No. 213 of 1912 is superseded, in so far as its provisions .relate to primary elections, by Act No. 35 of 1916; and a petition the purpose of which is to enforce a penalty prescribed by that act for improperly influencing or attempting to influence voters in a primary election is properly dismissed upon exception of no cause of action.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Landlord and tenant <&wkey;!64(2) — Wife of lessee held not entitled to recover for injuries resulting from decayed window casing.</p> <p>A wife was not entitled to recover under Code, art. 2717, for personal injuries received; owing to the rottenness of a window frame of a house leased by defendant to her husband, in which they lived; the appliance for holding up the sash giving way, and the sash falling upon her hand and crushing it, in view of article 2716, the husband, and not the lessor, being at' fault.</p> <p>Monroe, C. J., dissenting.</p>

Suit by Rozell McWilliams against Prank Reith, Jr. Judgment for defendant was affirmed by the Court of Appeal and plaintiff applies for certiorari or writ of review.

<p> (Syllabus by Editorial Staff.) </p> <p>Divorce <&wkey;240(5) — Allowance of $33 a month - to wife on separation sustained.</p> <p>In a suit for separation from bed and board, where defendant appealed, but filed no brief, and plaintiff had testified defendant was earning $25 a week, and that she was unable to earn a living because of ill health, a judgment allowing plaintiff $33 a month alimony will not be disturbed.</p>

A. Edwards, Judge ad hoc. Proceedings on the final account of the administrator of Dr. R. T. Marshall, to which J. R. Pavy filed an opposition. Prom a judgment in favor of the opponent, the administrator and others appeal.

Action by H. T. Cottam & Co. against Abraham, or Abram, Moisés. A judgment for plaintiff was reversed by the Court of Appeal, and judgment ordered for plaintiff for a less amount, and defendant applies for certiorari or writ of review.

W. Bailey,Judge. Suit by J. Gladu Broussard and others against Albert Hebert to set aside probate of will. From a judgment dismissing the suit on an .exception of no cause of action, plaintiffs appeal.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Proceeding by the State, on th,e relation of E. L. Loeb,. Mayor of the City of Opelousas, against George C. Jordan. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of ■Orleans; Fred D. King, Judge.</p> <p>Action by John R. McMahon against Jolin Peter Breseh. From judgment for defendant, plaintiff appeals.</p>

McIntosh, Judge. Bill Brinson was prosecuted by information for bringing into prohibition territory a quantity of whisky prohibited by law, and from judgment quashing the bill of information the State appeals.

<p> (Syllabus by Editorial Staf.) </p> <p>1. Appeal and error &wkey;>74 — Test for determining whether interlocutory order or .decree is . appealable.</p> <p>One of the tests as to -whether any particular interlocutory order or decree is one from which an appeal may be taken is to see whether the ruling might come up for review on an appeal from a judgment on the merits of the case, and if the party complaining of such a ruling cannot obtain relief by reserving a bill of exceptions and awaiting judgment on the merits of the case, he is, as a general rule, entitled to an appeal from the interlocutory order or decree complained of.</p> <p>2. Appeal and error <&wkey;7I (I)— Order sustaining exceptions to rule ordering plaintiff to furnish new bond in sequestration proceeding held appealable.</p> <p>’ An order sustaining exceptions to a rule ordering plaintiff to furnish a new bond in sequestration proceedings or to show cause why order permitting release of property on bond should not be rescinded and property returned to sheriff was appealable.</p> <p>3. Motions <&wkey;>(4 — Exception of vagueness to motion diroeted against rule held without merit.</p> <p>An exception of vagueness directed against a rule ordering plaintiff to furnish a new bond in a sequestration proceeding was without merit where the motion or rule contained the averment specifically that the bond which plaintiff had furnished did not conform with the requirements of Code Prac. art. 280.</p> <p>4. Sequestration <&wkey;20 — Party entitled to bond containing conditions prescribed by Code.</p> <p>Where plaintiff files bond in sequestration proceeding, defendant is entitled to have the bond contain the conditions and obligations prescribed by Code Prac. art. 280, and need not depend on any rule of law that surety is bound by the obligations stipulated in the Code, whether written into the bond or not.</p> <p>5. Sequestration <&wkey;20 — -Exceptions that bond in sequestration proceedings does not comply with statute not lost by delay.</p> <p>Assuming that Code Prac. art. 226, declaring, -with regard to a bond given for the release of an arrested debtor, that, if no exception be taken within 20 days, to the sufficiency of the security taken by the sheriff, no. su.ch exception shall ever afterwards be allowed, is applicable to bonds releasing sequestered property, it has reference only to the question of sufficiency of the security, and not to the form pr conditions or obligations of the bond.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Arcadia; Wm. Campbell. Judge.</p> <p>Suit by Max Simar against the Town of Iota. From judgment dismissing the suit, plaintiff appeals.</p>

Action by George M. Hearne and another against G. G. Gillette and others, wherein the Commercial National Bank of Shreveport was garnished, and wherein J. W. Patterson intervened. Judgment for plaintiffs, and garnishee and intervener applies for writs of certiorari prohibition and mandamus to compel the granting of the orders of appeal.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Suit by the Interocean Oil Company, S. A., against A. C. Ames and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal .from First Judicial District Court, Parish of Caddo; T. F.- Bell, Judge.</p> <p>Action by the Montieello State Bank against J. C. Edwards and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Action by the Monticello State Bank against A. G. Martin and others. Judgment for plaintiff, and defendants appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Licenses &wkey;»26 — Agreement regarding deposit of corporate stock with State Securities Commission pending application for certificate held plain in terms.</p> <p>A written contract between the officers of a corporation and the State Securities Commission, whereby the corporation was given a temporary permit for the sale of its stock on the condition that the officers deposit with the Commission the stock owned by them '■■. be held in'escrow until a meeting of the Commission upon either- the granting or refusal to grant a. certificate for the sale of the stock and to be returned to the officers upon notice of the final action of the Securities Commission upon the application of the corporation, is plain and unmistakable in its terms and must be enforced as made, so that the Commission cannot retain the stock deposited in-escrow to secure return of the money paid for the company’s stock after the permit to sell the stock w.as denied, though it claimed that that was the oral agreement of the parties.</p> <p>2. Licenses &wkey;>26 — Corporation held not necessary party in securing release from escrow of stock of officers.</p> <p>In a suit by the officers of a corporation to recover from the State Securities Commission stock deposited by the officers in escrow pending the decision on the corporation’s application for permit to sell its stock, the corporation cannot be affected by any judgment rendered and is not a necessary party.</p> <p>3. States <&wkey;-19l (2) — Suit to > compel Securities Commission to return stock held in escrow is not against state.</p> <p>A suit, by the officers of a corporation to recover possession of stock delivered toj the State Securities Commission in escrow and wrongfully retained by the Commission after the termination of the escrow is not a suit against tie state for which the state’s consent is required.</p> <p>4. Licenses &wkey;>26 — Suit to compel Securities Commission to return stock wrongfully held in escrow does not pertain to official discretion.</p> <p>A suit by the officers of a corporation to compel the State Securities Commission to return stock deposited with them in escrow, which they were retaining after the termination of the escrow, does not pertain to the discretion of the Commission and may therefore be entertained by the court.</p> <p>5. Licenses <&wkey;26 — Lack of authority by corporate officer to deposit stock with State Securities Commission does not authorize retention thereof.</p> <p>'The fact that the president of the State Securities Commission had no authority to make -the contract he did make under which stock of - the corporation was held in escrow does not authorize the Commission to retain 'the 'stock after the termination of the escrow agreement.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by J. Julius Lips against the Royal Insurance Company of Liverpool, England, and others. Prom a judgment of dismissal, plaintiff appeals.</p>

Application by the State, on the relation of Daniel H. Hoffman, Jr., for an order to show cause why a writ of mandamus should-not issue to compel the Judge of Division B, Civil District Court, to rescind an ex parte order of continuance of hearing of a rule against the Southern Bonded Warehouse Company, Incorporated. Proceedings dismissed, with leave to renew.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Judgment <&wkey;l38(l) — Annulment of default judgment not granted because of change of initial in petition.</p> <p>Under Code Prac. arts. 605-607, 613, where a suit had been filed against A. H. T., and the plaintiffs therein, with the knowledge and consent of the clerk of the court, changed the initial “H.” to “E.” in the petition, and also in the citation wlii-'h had been made out, and caused the changed petition and citation to be served on A. E. T., and thereafter, on representation to the court that A. E. T. was. the proper defendant in the suit, obtained default judgment against him, such facts did not warrant annulling the judgment, there being no intention to commit fraud on the court, and the defect being one of form, and not of substance, and there being no showing of injury.</p> <p>2. Pleading &wkey;>234 — Amendment permissible-without leave before issue joined.</p> <p>Code Prac. art. 419, allowing “after issue joined” amendment with leave of the court, indicates that before issue joined the plaintiff' may amend without any need of leave of court.</p> <p>Monroe, C. J., dissenting.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.</p> <p>Suit by the Baton Rouge Electric Company against the Board of State Affairs and others. To review the judgment rendered, the defendants appeal, and the plaintiff answers the appeal, praying for a further reduction.</p>

F. Brunot, Judge. Suit by the Baton Rouge Waterworks Company against the Board of State Affairs and others. To review the judgment rendered, the defendants appeal, and the plaintiffs answer the appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Taxation <&wkey;347 — Value determined as of year of assessment.</p> <p>The value of property for taxation purposes is to be determined as of the year of the assessment, and not of some past year.</p> <p>2. Taxation <&wkey;442 — Assessment presumed correct.</p> <p>The assessment of property of a' taxpayer on the rolls is presumed to be correct until the contrary is proved.</p> <p>3. Taxation <$=>319(2) — Evidence held insufficient to prove assessment Incorrect.</p> <p>In a telegraph company’s suit to reduce valuation placed upon its property by the board of state affairs in the assessment for taxation, evidence hold insufficient to overcome presumption as to correctness of assessment.</p> <p>O’Niell, J„ dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunctions <&wkey;>186(2) — One prevented from growing crop by injunction cannot recover profits of which he has been deprived.</p> <p>One who. has been prevented from making crops by an injunction cannot recover as damages from person who procured injunction the profits he might have realized, since such profits depend upon whether the crop would be made, and if made it would be made at a profit, and are clearly too uncertain to serve as a basis for judgment.</p> <p>2. Damages <&wkey;ll2 — Measure of damages for destruction of crop stated.</p> <p>The measure of damages where a growing crop is destroyed through the tort of another person is the value of the crop at the time it is destroyed; not the value it might have had if suffered to mature and be gathered.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by the Court.) </p> <p>Reformation of instruments <&wkey;l3(l), 43— After 25 years’ erroneous description, mortgage will be presumed to have been correctly interpreted; description erroneous as to lot number may be corrected, in absence of rights of third parties.</p> <p>Whore the owner of a tract of land, the description of which is identical, as to origin of title, acreage, and location, with that of several other tracts, and differs from the others only in the matter of the number assigned to it on a certain plat, undertakes to mortgage the same, to secure the payment of a note, by a description which is correct in all particulars save the number, but assigns to it a number that belongs to another lot, of which he is not the owner, such assignment, in the absence of any suggestion of fraud, must be regarded as having been made in error, which error may be corrected, as between the parties or their heirs, so long as no third person acquires rights in the tract owned and partially described by the mortgagor; and, where in such case the mortgage is foreclosed and the land adjudicated to the mortgagee according to the' description contained in the act, and such lot remains, for more than 25 years unclaimed, unoccupied, and untaxed, and all parties who participated in the mortgage and foreclosure or had knowledge thereof have died, it will be presumed that the description under which the sale was made was interpreted to apply to the lot owned by the mortgagor, rather than to one in Which he had no interest.</p>

Suit by Walter Seidel against the Director General of Railroads. Judgment for defendant after exception of no cause of action was sustained, and plaintiff appeals.

Action by Mrs. Harriet Mabel Bridges, individually and as tutrix, against the Kinder & Northwestern Railroad and others, to recover for wrongful death. Judgment for defendants, and plaintiff appeals.

E. Brunot, Judge. Action by David Wilkus and others against the Penn.-La. Oil & Gas Company, Incorporated. Erom a judgment rejecting their demand for the appointment of a receiver, plaintiffs appeal.

S. Rownd, •Judge. Proceedings by the State, on the relation of Edward G. Davis, against Adeline Baker and others for the possession of a child. Judgment for. relator, and respondents appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Divorce &wkey;s298(6) — Judgment awarding custody of child to wife correct.</p> <p>Where, after the separation of himself and plaintiff wife, defendant husband did not contribute anything to the support of the wife or their child during three or four years, while she was separated from him and before -she secured a divorce, and where, after he secured possession of the child, defendant husband placed it on a rice farm, where he was working, and left it alone in the house all day, it being only some live years old, judgment awarding the care and custody of the child to plaintiff wife who had remarried, was correct.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.</p> <p>Action by Otto A. Jordan against Ada Frances Jordan. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;407(2) — Requirement of equality and uniformity of taxation inapplicabie to local assessments.</p> <p>Const, art. 225, providing that taxation shall be equal and uniform throughout the territorial limits of authority levying the tax, and that all property shall be taxed in proportion to its value, is inapplicable to local assessments imposed upon the theory of special benefits to the locality in which they are levied.</p> <p>2. Municipal corporations &wkey;>674 — Assessments for street sprinkling held not exces- • sive.</p> <p>Where the cost of sprinkling streets in assessment district exceeded by i(!22.49 the revenue from the assessment of land within the district for such purpose, the assessment was not excessive or out of proportion to the actual cost.</p> <p>3. Constitutional iaw <&wkey;>290(l) — Eminent Domain &wkey;>2(6) — Expropriation; assessment of land on unsprimkled street held not to constitute taking of private property without compensation or without due process of law.</p> <p>Where street bounding sprinkling district created by ordinance enacted under Act No. 310 of 1914, § 4 (45), subd. (i), was not sprinkled, the assessment of land bounded in the rear by such street at the same rate as land not on the edge of the district' held not to constitute the taking of private, property without compensation and without due process of law.</p> <p>4. Municipal corporations &wkey;>472 — Local assessment valid though improvement does not equally benefit all persons on whom assessment is levied. ■ , .</p> <p>It is not essential to the validity of a local assessment or forced cdntributioh' for street improvement that all-persons- on-Whonl the assessmcnt is levied shall be equally benefited; it being sufficient if the apportionment of the assessment has a reasonable foundation of fairness and equality, and is not arbitrary or discriminating.</p> <p>Monroe; O. J., and Provosty, J., dissenting.</p>

Action by Jules .Wolbrette against the Néw Orleans Drug Company, Incorporated, which took a suspensive appeal from an order appointing a receiver. Application of the respondent Drug Company for writs of Mandamus to compel the receiver to furnish funds to pay for the transcript and prohibition to prevent the carrying on of business pending the' áppeal.

Application by Eemest O’Elarity for a writ of mandamus to the judges of the Court of Appeal, First Circuit, parish of St. Martin, to compel -such court to consider an appeal by the applicant in a proceeding against him by E. G. Eastin and others.

Samuel, Judge. George R. Dale was charged by the City of Shreveport of violating an ordinance by operating a public place where pool, billiards,, and dominoes were played, and where pool tables, billiard tables, and tables for dominoes were operated and from judgment sustaining his motion to quash the charge the-City appeals.

<p>Appeal ’from Thirteenth Judicial District Court, Parish of Rapides; James Andrews, Judge.</p> <p>Action by D. B. Fox against Hugh Corry. From the judgment, defendant appeals, and plaintiff prays for amendment.</p>

Application by tho State, on the relation of Joseph Caladera to require M. Ilestiva to show cause why he should not furnish a peace bond. Application of Rostiva for a rule prohibiting the. district judge from requiring him to furnish such bond.

King, Judge. Suit by Peter A. Fabacher against Miss M. R. Egan and others, to enjoin defendants from ousting plaintiff from leased premises, consolidated with a suit by Miss M. R. Egan against Peter A. Fabacher to oust him from the premises. From a judgment in favor of •Egan, Fabacher appeals.

Suit in the name of the State, by A. V. Coco, Attorney General, and Emile J. Naudon, to oust Henry O. Schaumburg from a certain office. To review a judgment for defendant, the State and said Naudon apply for a writ of certiorari.

<p>In the matter of appointment of R. CCourtin as natural tutor of his minor child. On application of Oscar Browne, undertutor, appointment set aside.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; J. H. Stephens, Jr., Judge.</p> <p>Action by A. G. Connette against O. A. Wright. Judgment, for plaintiff, and defendant appeals.</p>

Action by Andrew Bilich, Sr., and wife, against Seymour J. Mathe, for damages for the killing of their six year old- son by an automobile. From a judgment dismissing the suit, the plaintiffs appeal.

Rogers, Judge. Succession of Mrs. Harriet M. Curtis. Suit by Louis A. Curtis, a grandson, to annul a judgment probating a document purporting to be the olographic will of the deceased. Judgment for plaintiff, and the defendants, testamentary executors, appeal.

M. Wallis, Jr., Judge. Action by Arthur Knapp against A. M. Dupont and another. From a judgment ordering partition by licitation of land alleged owned jointly and the division of the proceeds, the defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master anti servant &wkey;>145 — Railroad’s rules for protection of public inapplicable to flagman.</p> <p>Where a railroad company’s rules showed that a rule defining a crossing flagman’s duty was intended to protect pedestrians and not employees, such rules will be applied only in favor of those persons intended and will not he extended to the flagman.</p> <p>2. Master and servant <&wkey;233(3) — Railroad ■ flagman held guilty of contributory negligence.</p> <p>Where a crossing flagman left his post of duty to throw a switch and, instead of returning stood sharpening his pencil with his back to a track on which cars were coming in plain ■sight, and on being warned stepped backward when the cars were four feet away and was killed, his negligence precluded recovery.</p>

<p>Appeal from Nineteenth Judicial District Court; Parish of Iberia; James Simon, Judge.</p> <p>Action by the Bank of Jeanerette, in liquidation, against Frederick J. Druilhet and another! Judgment for defendants, and plaintiff appeals.</p>

B. Crow, Judge. Jim Foster and Smith Canterbury were convicted of assault with a dangerous weapon and inflicting a wound less than mayhem, and from the conviction and sentence they appeal.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.</p> <p>Action by J. Averett Dean against the Chicago, Rock Island & Pacific Railroad Company. Judgment for plaintiff, and the defendant appeals.</p>

King, Judge. Action by the City of New Orleans and Martin Behrman, Mayor, against Frank Cameron and others, as members of a state commission, for injunction, and preliminary writ issued as prayed for, and subsequently the State was substituted for the original defendants, and from a judgment dismissing their rule to dissolve the injunction, the State and the Governor, through the Attorney General, procured a devolutive appeal.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of Saint Tammany; Prentiss B. Carter, Judge.</p> <p>Suit by Matilda Burge against N. Batson and another. Judgment against the named defendant, and he appeals.</p>

<p> f Syllabus by the Court.) </p> <p>Reformation of instruments <&wkey;20, 45(2)— .Writing may be reformed when failing through fraud or error to express the agreement.</p> <p>When parties reduce their conti’act to writing, and, when the terms of the contract exhibit no uncertainty or ambiguity as to the nature, the object, and the extent of the agreement, it is presumed that the writing expresses their true and complete understanding. Equity may reform even contracts unambiguous in their terms, on clear proof that, through fraud or error, the written instrument has been made to express a different purpose from that which the parties had agreed on and had intended to embody therein; but, to support such relief, there must bo clear proof of the antecedent contract and of the error in reducing it to writing.</p>

D. Webb, Judge. Suit by Louis Levy and others against E. P. Capliss and another. Judgment for plaintiffs, and the defendants Capliss and A. H. Leonard, warrantor,, appeal.

O. B. Richard was convicted on three counts under an act prohibiting any parish officer, or subordinate officer, from drawing any money, directly or indirectly, from the parish treasury, other than his fees, salary per diem, and mileage, or dealing in parish warrants, claims, or paper. Ilis motion for new trial was denied, and he applies for certiorari, prohibition, and mandamus.

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.

N. Sandlin, Judge. Suit by J. I. Allen against O. F. McDonald,, in which the defendant pleaded prescription of five and ten years and no cause of action. Judgment for defendant, and the plaintiff appeals.

<p>Appeal from Twenty-Eifth Judicial District Court, Parish of Tangipahoa; Columbus Beid, Judge.</p> <p>Tom Smith was convicted of hog stealing, .and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>(. Criminal law <&wkey;636( I, 8) — Rule as to defendant’s presence; defendant need not be present when the verdict is recorded.</p> <p>In a felony case it is sufficient if defendant be present at arraignment to plead, at trial to confront witnesses testifying against him, and during the charge to hear the court’s instructions, and at the verdict to receive the jury’s decision, and at the sentence to hear the court’s judgment against him, and it is sufficient if his counsel be present for him in other matters, and defendant need not be present when the verdict is recorded.</p> <p>2. Criminal law «&wkey;872, 892 — Verdict written on- back of bill and signed by foreman will be held true verdict instead of entry on the clerk’s minutes.</p> <p>While it is better practice in felony cases to have the jury pronounce the verdict through its foreman, the clerk record it, and then read it back to them asking each if the words recorded represent his verdict, the law does not require such to be done, nor that accused be present when the verdict is recorded, and, where the verdict is written on the back of the bill and signed by the foreman, it will be held to be the true verdict instead of the clerk’s minute entry.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Taxation <§=3868(1) — Bank account of nonresident decedent is taxable as being “physically” in the state.</p> <p>The inheritance tax statute (Act No. 51 of 1918, § 1), providing a tax on all personal property “physically” in the state, includes a bank account in Louisiana of a nonresident decedent, "physically” not being the equivalent of “corporeally.”</p> <p>LEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Physical.]</p>

<p> (Syllabus by the Court.) </p> <p>L Vendor and purchaser <&wkey;>79 — Sales; purchaser can refuse to accept and pay for lots where remainder of price would be insufficient to secure others vendor had agreed to furnish.</p> <p>Plaintiff and defendant having entered into a contract whereby defendant agreed to acquire and deliver to plaintiff all the property included within four city squares, consisting, mainly, of improved lots of various values, and belonging to different owners, for the fixed price of $1,500,000, to be paid in installments from time to time, with the right accorded plaintiff always to reserve a sufficient proportion of such price to secure the delivery of or to enable it otherwise to acquire the undelivered lots, and with the proviso that, in the event that-defendant should not be able to acquire particular lots at reasonable prices, plaintiff’s right of expropriation should be exercised, but at defendant’s expense, and, a time having arrived when, the. major portion of the lots having* been delivered and the major portion of the price paid, the estimated cost of acquiring the remaining lots exceeded the balance -of such price in the hands of the plaintiff, held, that plaintiff was within its rights in refusing to accept and pay for lots separately tendered at fixed prices, the payment of which would have left in its hands an insufficient proportion of the total price to acquire, in the event of defendant’s failure to deliver them, the undelivered lots called for by the contract.</p> <p>2. Vendor and purchaser <&wkey;79 — Sales; party agreeing to deliver lots held not to have fulfilled contract.</p> <p>Conceding arguendo that in the case as presented the defendant might satisfy the contract by tendering the undelivered lots, in consideration of the payment of the balance due on the contract, he cannot satisfy the contract, or plaintiff’s demand for the estimated cost of acquiring such lots, coupled with a tender of such balance, by tendering one lot at a price greatly exceeding its value, and making no tender as to a third lot, where the estimated cost of acquiring the three lots exceeds the balance of the agreed price as called for by contract, nor does it affect the question that the estimated value of the three lots may be less than the estimated cost at which they may be acquired, and less than such balance of price, since, if defendant is unable to acquire them and deliver them within the terms of the contract, it is he, and not the plaintiff, who is to meet that difficulty, in the absence of any request on his part that plaintiff exercise the right of expropriation and of any defense on the ground that such request was refused or could not have been complied with.</p>

Application of Emile L. Meine for a writ to enjoin the City of New Orleans from enforcing an ordinance against public dance halls at a certain point as nuisances. A rule nisi was issued, and also a temporary restraining order, which was subsequently annulled and recalled, and plaintiff prayed for a suspensive appeal, which was denied, and he applies for a writ of mandamus.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice E. Edrington, Judge.'</p> <p>Benedict M. Wichers was convicted of statutory rape, and he appeals.</p>

C. Braden, Judge. Joe Rose was convicted of operating a blind tiger in violation of a municipal ordinance, and from the verdict and sentence he appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish of Beauregard; Jerry Cline, Judge.</p> <p>Proceedings under the Employers’ Liability Act by Charles W. Harris and wife for compensation' for the death of their son, opposed by the Calcasieu Long Leaf Lumber Company, employer. Compensation was awarded, and the employer appeals.</p>

<p> ÍSyllabus by Mditorial Staff.) </p> <p>Mandamus <&wkey;l54(9) — Requirement of personal verification not rescinded by statute relating to ordinary proceedings.</p> <p>Code Prac. art. S40, requiring a petitioner for writ of mandamus to make oath to the truth of his petition, was not repealed by the provision of Act No. 300 of 1914, which regulated pleadings in ordinary proceedings, and which permitted the petition to bo verified by the attorney of a party, so that a petition for mandamus verified only by petitioner’s attorney was properly dismissed.</p>

William Thomas was charged by bill of information with perjury, and his motion to quash the bill sustained, and the State appeals.

Hoce, Judge. Harry Roberts was convicted under an indictment for willfully, maliciously and feloniously attempting to entice and induce a woman to enter a house, to wit, a room in a hotel for purposes of prostitution and he appeals. .

<p> (Syllabus by the Court.) </p> <p>Railroads <&wkey;389(I) — ■ Inevitable accident held cause of child’s injury by train.</p> <p>Where a minor child of tender years, under 'the control of his parents, being sent upon an errand, voluntarily or unwittingly places himself in a position of such peril with respect to a moving railroad train, not shown to bo unlawfully operated, that injury and possible death are inevitable, and those consequences follow, the parents have no cause of action in damages against the company operating the train.</p>

<p> (Syllabus by Editorial Staff.). </p> <p>Master and servant &wkey;>4!2 — Compensation case may be remanded for taking of further evidence.</p> <p>Where a servant secured a judgment against a master under the Wo'rkmen’s Compensation Act for injuries resulting in total disability to do work, and affidavits showed that after judgment plaintiff procured and continued employment at higher wages than previous to the injury, the cause may he remanded for the taking of further evidence.</p>

Alvin G. McCormick, being prosecuted for nonsupport of his wife and child in necessitous circumstances, applies for mandamus and prohibition to the Judge of the Juvenile Court on the ground of refusal of a necessary continuance.

<p> (Syllabus by Editorial Staff.) </p> <p>I.Robbery &wkey;s23(l) — Evidence as to billhead shown to victim by robber, being one given to accused, held admissible for identification.</p> <p>In a prosecution for robbery, where the sole issue was the identification of the accused as the negro who struck and robbed the prosecuting witness, evidence that a grocery billhead, exhibited by the robber to prosecuting witness prior to the robbery, was one given to the accused by a certain merchant on the day before he heard of the robbery held admissible.</p> <p>2. Criminal law &wkey;>938(I)— Showing held insufficient for new trial for newly discovered evidence.</p> <p>Where in a prosecution for robbery, the defense was alibi, and a physician had testified to calling on accused professionally in the afternoon, whereas the robbery occurred in the morning of such day, and the physician was not produced on application for new trial, alleging- that he would change his testimony of the time to the morning of such day, and other-alleged new witnesses were either unreliable or must have been known to accused prior to trial, denial of new trial was not error.</p> <p>3. Criminal law &wkey;3938(3) — New trial for new evidence not allowed, where accused knew of witnesses before trial.</p> <p>A new trial for newly discovered evidence will not be granted where accused could hardly not have known of the witnesses before trial.</p>

<p>Bernard Ornes was convicted, of going into a railroad coach .reserved for white passengers, and applies for writs of certiorari and prohibition.</p>

Action begun in the court of the justice of the peace by Harriet White against Louisa Allen Louis. After the district court, on appeal; rendered judgment for defendant, condemning plaintiff to pay $10 attorney’s fees, it amended the judgment by striking therefrom the attorney’s fees, and plaintiff brings certiorari and mandamus.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and information <&wkey;l2l (2) — Request for bid of particulars held properly refused.</p> <p>Where an indictment alleged that defendant swore before the grand jury that he had never taken or offered to take men and women to rooms in a hotel for purposes of prostitution, etc., whereas in truth he had taken and offered to take men and women to rooms in such hotel, etc., a request for a bill of particulars stating in what manner or in what way, and the particular statement in which or by which defendant perjured himself, was properly refused, though the indictment did not give any names or identify any room to which any person was taken, ás the request did not call for information on those points, and the indictment was sufficient with respect to the matters specified in the request.</p> <p>2. Indictment and information <&wkey;l2l (3) — -Request for-bill of particulars must be specific.</p> <p>A request for a bill of particulars should specifically point out all the particulars desired.</p> <p>3. Perjury -<&wkey;26(i/2) — Indictment held sufficiently specific in stating the perjury.</p> <p>An indictment alleging that defendant testified before the grand jury that he never took or -offered to take, for pay, hire, or otherwise, men and women to rooms in a hotel for purposes of prostitution, etc., whereas in truth and in fact he had taken and offered to take, etc., was sufficiently specific in stating the perjury.</p> <p>4. Perjury <&wkey;26(3) — Indictment held sufficient as to defendant’s knowledge of falsity.</p> <p>An indictment for perjui’y, alleging what the question was that accused swore to, what the truth was as he “well knew,” and alleging that the testimony was willfully, corruptly, and maliciously false, was sufficient, though not using the word “knowingly.”</p> <p>5. Perjury <§=»32(8) — Evidence held relevant in view of the allegations of indictment.</p> <p>Under an indictment for perjury, charging that defendant swore falsely before the grand jury that he had never taken or offered to take, for pay or otherwise, men and women' to rooms in a hotel for purposes of prostitution, etc., testimony of a prostitute that he offered to bring men to her room if she would have sexual intercourse with him was relevant.</p> <p>6. Indictment and information <&wkey;87(2) — Sufficient for indictment for perjury to allege time as within 12 months.</p> <p>In an indictment for perjury, where time is not of the essence of the offense, it is sufficient to charge that it was within the last 12 months.</p> <p>O’Niell, J., dissenting.</p>

S. Ellis, Judge. Mariane Restiva was indicted for mui-der, and a demurrer to the indictment was sustained, and the State appeals.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; James Andrews, Judge.</p> <p>Action by Eliza Simmons, -administratrix of the estate of R. P. Simmons, deceased, in her own behalf and that of their minor children, against the Louisiana Railway & Navigation Company. Judgment for the plaintiff, and both plaintiff and defendant appeal.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Perjury <&wkey;26(3) — Indictment held to sufficiently allege defendant’s knowledge of falsity of testimony.</p> <p>An indictment alleging that defendant falsely,- willfully, corruptly, and maliciously swore that he had never taken, or offered to take, men' or women to rooms in a certain hotel for purposes of prostitution, etc., whereas in truth he had taken and offered to take, etc., as he well knew, sufficiently charged that he knew that he was swearing to a false fact at the time he testified.</p> <p>2. Perjury <&wkey;l9(I) — -Common-law form of indictment need not be followed.</p> <p>It is not necessary that the common-law form of indictment be used in charging perjury in Louisiana.</p> <p>3. Perjury <&wkey;>26(3) — No stereotyped phrase essential in charging scienter.</p> <p>No stereotyped phrase is essential in charging the scienter of accused in perjury cases, in view of Rev. St. § 858, relative to indictments for perjury.</p> <p>4. Perjury <s&wkey;32‘(2, 8) — Evidence held relevant as showing knowledge and falsity of testimony.</p> <p>Under Acts 1910, No. 307, relative to pandering, etc., where defendant was called before a grand jury investigating the existence and extent of prostitution, etc., at a certain hotel,' and asked whether he had taken any one to rooms in such hotel for purpose of prostitution, etc., and was charged with perjury in answering that he had not, testimony of a member of the grand jury that when taken to a room in such hotel he asked defendant if he had any girls, and defendant said he had one, etc., held relevant to show defendant’s knowledge that a prostitute had been at the hotel, and that he had solicited trade for her, and to prove the falsity of his testimony; and it was immaterial whether he had placed her in the hotel.</p> <p>5. Prostitution <®=>l — “Procurer” defined.</p> <p>Under Acts 1910, No. 307, relative to pandering, etc., a “procurer” is one who procures' for another the gratification of his lusts; a pimp; a-panderer; one wlio solicits trade for a prostitute or lewd woman.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Procure.]</p> <p>6. Criminal iau^ <§¡=>338(1), 382 — Relevant and material testimony need not embrace every element of crime.</p> <p>It is not necessary that relevant and material testimony should be such as to embrace every essential element of a crime.</p> <p>7. Criminal law <@=>1090(19) — Notation of exception insufficient to justify review of ruling without formal bill of exceptions.</p> <p>A mere notation by the clerk that defendant excepted and reserved a bill of exceptions to a ruling of the court on evidence was insufficient to justify a review of the ruling, in the absence of a formal bill of exceptions in writing and signed.</p> <p>8. Perjury &wkey;>33(7) — Evidence as to testimony before grand jury held not too vague because not fixing time.</p> <p>Evidence that defendant, when before the 'grand jury, was asked if he ever took a man or woman to a room in a certain hotel for purposes of prostitution, and answered that he did not, was not too vague and indefinite upon which to predicate a charge of perjury, because not fixing any time, where he had previously been asked if he knew what he was being questioned about and answered that he did; especially where, by ruling of the court and previous questions, the time inquired about had been fixed as within 12 months prior to the grand jury inquiry.</p> <p>9. Criminal law <@=>1090(16) — Denial of new trial not re-viewable when formal bill of exceptions not in record.</p> <p>Though defendant moved for a new. trial and reserved a bill of exceptions when it was overruled, the objections therein set up cannot be reviewed, where there is no formal bill of exceptions thereto in the record.</p> <p>O’Niell, J., dissenting in part.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Elections &wkey;>l69— Provision for nominations made by.direct primaries prohibits placing on ballot name of candidate not so nominated.</p> <p>Acts 1916, No. 35, § 1, providing that political parties shall make all nominations by direct primaries, prohibits the Secretary of State from placing the name of any person on the ofr ficial ballot as a candidate who has not been nominated in. accordance with the act; and where it is not the duty of the Secretary of State to supply the ballots, the prohibition applies to the Board of Supervisors or other authority. ,</p> <p>2. Elections &wkey;>!69 — Placing oil official ballot name of candidate defeated at party primary held illegal.</p> <p>Acts 1916, No. 35, § 27, providing that no one who participates in the primary election of any political party shall be permitted to be himself a candidate in opposition to any one nominated at or through a primary election in which he took part, one defeated at a party primary for the office of town marshal was not eligible as a candidate, and placing of his name on the official ballot under the heading “Nomination Papers” was illegal.</p> <p>3. Elections <&wkey;8 — Statute relating to municipal elections held not repealed so far as it applied to towns of [ess than 2,500.</p> <p>In so far .as Acts 1898, No. 136, provides (section 39) that the provisions of law governing state and parochial elections shall govern municipal elections and applies to elections in towns of less than 2,500, it was not repealed by Acts 1898, No. 152, or Acts 1916, No. 130, each repealing inconsistent laws, but excepting from its operation all municipalities with poptdation of less than 2,500.</p> <p>4. Elections <&wkey; 143 — Nominating petition containing only 28 names of electors who participated in primary held insufficient. '</p> <p>In view of Acts 1896, No. 137, § 50, providing that 100 electors shall sign a nominating petition, and Acts 1916, No. 35, and Acts 1908. No. 96, providing that no one who participated in a party primary shall he permitted to sign nomination papers for Opposing candidates, a petition containing the names of only 28 -electors, all of whom participated in the party primary, was insufficient, and hence the printing of the nominee’s name on the official ballot was illegal.</p> <p>5.Elections <&wkey;237 — Candidate receiving majority of votes not being legally eligible for place on ballot, the election is annulled.</p> <p>Where plaintiff received 179 votes and defendant, whose name was illegally placed on the ballot, received 216, it is apparent that a majority of voters were deprived of their votes bringing the case within Acts 1894, No. 181, § 39, providing that no election shall be vitiated on account of negligence or illegal conduct unless it is proven that a sufficient number of voters were deprived of their votes to have changed the result.</p>

Criminal prosecutions by the State against Julian Casanave. Motions to quash the indictments were overruled, and defendant applies for writs of prohibition, certiorari, and mandamus.

Criminal prosecution by the State against Louis St. Germain. A motion to quash the indictment was overruled, and defendant applies for writs of certiorari, mandamus, and prohibition.

■Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge. Action by Dayo Miller and others against R. Lee Wiggins, Sheriff, and others, in which Caroline Guillory Miller and another intervened. Judgment for the defendants, and the plaintiffs appeal.

Cage, Judge. Action by John P. Dupont against the Harris Ice Cream Company, in which an injunction was granted. Upon defendant’s application, its dissolution on bond was permitted, and plaintiff was granted a suspensive appeal from the dissolving order. On motion to dismiss appeal.

<p>(Syllabus by Editorial StaffJ</p> <p>Master and servant <&wkey;>30l(l) — Automobile owner not iiabie for driver’s negligence with- '■ out proof of employment.</p> <p>■ 'An owner of an automobile is not liable for damages resulting from the negligence of some one else in the operation of the car, without proof or reasonable presumption that the person who operated the ear was employed or autho'rized; by the owner to operate the car.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Suit by Luther E. Hall against Emile Godchaux. Judgment for defendant, and plaintiff appeals.</p>

<p>Api>eal from Twenty-Seventh Judicial District Court, Parish of Ascension; Philip H. Gilbert, Judge.</p> <p>Action by the Ascension Red Cypress Com • pany, Limited, against the New River Drainage District. Judgment for plaintiff,' and defendant appeals.</p>

Parish of Webster; Roberts Roberts, Jr., Judge. Action by Jesse F. Miller against Ray P. Oden, trustee, wherein Herbert Went and another intervene. Judgment for plaintiff, and defendant and interveners appeal.

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto, John H. Boone, Judge.</p> <p>J. E. McAdams was convicted of robbery, and he appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Jerry Cline, Judge.</p> <p>Lee Jackson was convicted of shooting with intent to kill, and he appeals.</p>

Suit by the Gulf, Colorado and Santa Fé Railway Company and others against the Railroad Commission of Louisiana. Pleas to the jurisdiction were overruled, and, the Public Service Commission, successor to the Railroad Commission, applies for writs of certiorari and prohibition.

Suit by the State of Louisiana against the City of New Orleans and others, to prevent the municipality from entering into any contract regarding street railway franchises beyond what the state alleged as the limit of municipal authority, in which a temporary restraining order was issued, and a suspensive appeal therefrom denied, and the defendants Mayor and Commissioners applied directly to the Supreme Court for writ of prohibition to annul the restraining order and…

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal law <&wkey;763, 764(6) — Instruction that venue had been proven held error.</p> <p>. In a prosecution for robbery where the evidence showed that defendants and the prosecuting witness left Ludington, passed through Do'Ridder, and robbed the prosecuting witness at Bon Ami, it was error for the judge in his charge to tell the jury that the places mentioned were in the parish of Beauregard and state of Louisiana, such statement' being a comment upon a material fact in the case amounting to an instruction that venue had been proven, and was in violation of Const. 1913, art. 179, Const. 1921, art. 19, § 9, and Rev. St, §*991.</p> <p>Provosty, J., dissenting.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Suit by Roy Burkholder and others against the Consolidated-Progressive Oil Corporation. Judgment for plaintiffs, and defendant appeals.</p>

<p> (SyUabus by Editorial Staff.) </p> <p>1. Beneficial associations <&wkey;IO(7) — Courts will not entertain complaint until one has exhausted remedies within order.</p> <p>Where Act of March 6, 1869, incorporating the colored Grand Lodge of Masons, authorized that order to enact rules and regulations consistent therewith, and not otherwise prohibited by law, and such lodge has provided a method and machinery for trial of practically all differences between its members, until the remedies within the order have been exhausted, the courts will not entertain a complaint of one claiming to have been injured by expulsion.</p> <p>2. Beneficial associations <@=>10(7)— Member may not sue for damages for suspension until after exhausting remedies within the order.</p> <p>While one suspended from a beneficial association might have abandoned or withdrawn from it and at once sued for damages, when the courts could have inquired into the validity ot the acts complained of, yet, where one is still a member of the order, he has no standing to sue for damages until he has exhausted the remedies provided by the order.</p> <p>3.Beneficial associations <@=>10(6) — Courts will not review fact findings of association’s appellate tribunal.</p> <p>If the appellate tribunal of a beneficial association should find that facts justified its chief officer in suspending plaintiff, and the appellate tribunal were lawfully constituted and exercised its jurisdiction with due regard to the forms and procedure provided, with notice to and hearing to plaintiff, the courts would not review its findings on the facts.</p>

<p> {Syllabus by Editorial Staff.} </p> <p>1. Trespass <&wkey;57 — Vendor’s attempt to re- ' move goods held a trespass entitling vendee to nominal damages.</p> <p>A complaint alleging plaintiff’s purchase of a piano on terms of credit from the defendant, that the defendant upon nonpayment of an installment undertook to take the law into its own hands and sent men to remove the piano, resulting in a nervous shock to plaintiff, causing a relapse of illness, held to charge facts amounting to a trespass, which, if proyen, would warrant at least nominal damages.</p> <p>2. Damages @=3143 — Allegations as to plaintiff’s physical injuries front shock held not insufficient because she alleged she did not understand the exact nature of her condition.</p> <p>In action for personal injuries from shock, that plaintiff’s petition alleged she did not know what was the matter with her, and did not understand the nature of her condition, did not render it open to exception as stating no cause of action, plaintiff not being required to diagnose her own illness.</p> <p>3. Pleading t&wkey; 18 — Complaint held vague in not showing amount claimed for trespass and injuries to health.</p> <p>A complaint for damages for trespass, resulting in nervous shock and relapse of illness, held insufficient as against a plea of vagueness, so that defendant was entitled to an order requiring plaintiff to amend by'saying how much she claimed for trespass and how much for injury to health.</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Jas. W. Jones, Jr., Judge.</p> <p>Willie Bridges was convicted of manslaughter, and he appeals.</p>

Original application for writ of x>rohibition by tbe State of Louisiana, on the relation of the Business Men’s Racing Association and others, against A. B. Letellier and others.

Attachment bj the Farmers’ Mercantile Gompanjr, Limited, against J. Lute Guillory. Judgment was entered recognizing the attachment, but exempting certain property, and plaintiff appeals.

N. Sandlin, Judge. Suit by Stephen L. Roberts against Mrs. Roena Roberts. Judgment for plaintiff for separation from bed and board, and defendant obtained orders of appeal, but did not perfect her appeal. More than a year later plaintiff petitioned for final divorce on the ground of no reconciliation, and, defendant having left the state, L. K. Watkins, one of her attorneys, was appointed curator and answered, and defendant filed an answer through other counsel.

R. Leiuinger, Judge. J. B. Taranto was found guilty of violation of an ordinance of the City of New Orleans relative to location of fruit stands, and he appeals.

<p> (Syllabus by the Court.) </p> <p>I. Partition <&wkey;4, 9(1) — No partition among heirs unless all owners in indivisión concur.</p> <p>No question of a partition, or of the prescription of an action to rescind a partition, is presented in a case where all of the heirs ■of a succession, save one, who was not present or represented or notified, have assumed to divide the land of the succession, save one tract, among themselves; for there can be no partition, within the contemplation of the law, whether provisional or definitive, unless all of the owners in indivisión are parties thereto and concur therein.</p> <p>2. Partition &wkey;>l4 — Tenancy in common &wkey;>9i— Heirs in indivisión not estopped to claim separate possessions or to sue for partition; mere separate possession by heirs does not convert ownership in indivisión into ownership in severalty when not continued for 30 years.</p> <p>The mere separate possession by heirs who have inherited in indivisión of portions of the property of a succession docs not convert their ■ownership in indivisión into an ownership in severalty unless allowed to continue for 30 years; nor does the acquiescence of each in ■the possession of the others estop them,' during that period, to insist that all the portions separately possessed are owned in indivisión, or from suing for a partition of the whole.</p> <p>3. Compromise and settlement <&wkey;l7(I) — Admission by compromise that others were co-owners held not to be disputed.</p> <p>One who, by authentic act, and to; compromise a matter in dispute, alleges that he and others own a tract of land in certain proportions, who, thereby joins with such co-owners in appointing an agent with authority to lease the land for oil and gas development, who thereafter participates with them ip. receiving, without objection, his share of the proceeds of the lease, entered into under such authorization, and who fails to show that he learned anything after the execution of tho power of attorney that he did not know at the time, has no standing to bring suit for ,thc recovery of the whole tract and of the amounts paid to his co-owners, as thus recognized by him.</p>

<p>Appeal from Seventh Judicial District Court, Parish of Richland; John McIntosh, Judge.</p> <p>Action by M. H. Honeycutt against J. L. Whitten. Judgment for plaintiff, and defendant appeals.</p>

C. Cage, Judge. Proceedings by Mrs. Clarisse Daeomme to interdict Philomel H. Erichson on the ground of insanity. From a judgment refusing im terdiction and'sotting aside the appointment of a’ provisional administrator, plaintiff and the administrator appeal.

<p>Appeal from Eirst Judicial District Court, Parish of Caddo; T. E. Bell, Judge.</p> <p>Action by C. A. Dunham & Co. against Louis Locke and others. The defendant Maryland Casualty Company appeals from a judgment rendered against it and in favor of a codefendant.</p>

Eleury, Judge. Suit by N. E. Woodall against the Louisiana Railway & Navigation Company and others, and from a judgment taken by default,. the defendant named appeals.

Boone, Judge. Suit by William H. Moore against Columbus Pitre and others, in which Stewart R. Moore intervened. Judgment for defendant Pitre, and plaintiff and heirs of intervener, since deceased, appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Criminal law <@=>11661/2(8) — Error in overruling challenge harmless where peremptory challenges are not exhausted.</p> <p>In a manslaughter prosecution, act of the court in overruling defendant’s challenge of a juror for cause, if error, held harmless, where defendant had to his credit four peremptory' challenges after the jury was completed.</p> <p>2. Homicide i&wkey;l66(4) — Evidence as to finding of liquor and gambling paraphernalia in defendant’s place held admissible to show motive.</p> <p>In a manslaughter prosecution based upon the killing of a town 'marshal, evidence that shortly before the homicide deceased had sought to obtain a search warrant and had found intoxicating liquor and gambling paraphernalia in defendant’s place on the day of the homicide, and after its commission, held admissible to corroborate the state’s theory of the motive of the homicide; defendant having confessed to the killing to prevent a raid.</p> <p>3. Criminal law <&wkey;723(l) — Argument of state’s counsel referring to deceased’s daughter held not ground for reversal.</p> <p>In a manslaughter prosecution, a reference by the state’s counsel in argument to deceased’s daughter having been bereft of a father and deprived of means of education and support held not ground for reversal.</p> <p>4. Criminal law <S=^956(I3) — Misconduct of jurors in homicide case held not sustained.</p> <p>In a prosecution for homicide, a charge as ground for new trial, that one of the jurors had told deceased’s -wife that he would do all he could for her, held not sustained by the evidence. ■ ■ - ■</p> <p>5. Criminal law <&wkey;956(l3) — Evidence insufficient to show misconduct of juror in homicide prosecution.</p> <p>On motion for new trial in homicide prosecution, a charge that one of the jurors had been seen. talking to some of the witnesses held not to disclose misconduct.</p> <p>6. Criminal law <&wkey;956(IO) — Juror held not incompetent as having formed opinion.</p> <p>In homicide prosecution, evidence on motion for new trial held insufficient to show incompetcncy of a juror on the ground that he had formed an opinion.</p> <p>7 Criminal law <&wkey;938(l) — New trial not granted..to impeach witnesses when other-testimony sustains verdict.</p> <p>In prosecution for homicide, evidence to impeach one of the state’s witnesses held insufficient as ground for new trial; the testi.mony of other eyewitnesses being ample to justify the verdict.</p>

<p>Appeal from Thirtieth Judicial District Court, Parish of La Salle; F. E. Jones, Judge.</p> <p>Roy Sandiford was convicted of manslaughter, and he appeals.</p>

Tammany; Prentiss B. Carter, Judge. Action by the State of Louisiana against the Salmen Brick & Lumber Company. Judgment for the defendant, and the State appeals. Defendant moved to dismiss the appeal, and appellant moved to withdraw the appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Logs and logging <&wkey;>3(l5) — Timber deed, valid on face, cannot be attacked in suit to enjoin removal of timber.</p> <p>A direct action is necessary to annul a deed to timber valid on its face, and given for a stated consideration, and it cannot be attacked collaterally in a proceeding to enjoin the grantee’s purchaser from removing the timber.</p> <p>2. Logs and logging <&wkey;3(I, II) — Failure of timber deed to fix time for removal does not affect its validity.</p> <p>That a deed to standing timber fixes no period within which it is to be removed does not affect its validity, since the omission may be supplied by application to the proper court, and until such period is fixed the right to remove the timber remains in the grantee indefinitely.</p> <p>3. Logs and logging <&wkey;>3(ll) — Notice to remove timber held not to fix time where deed failed to do so.</p> <p>Where a deed to standing timber failed to fix time for its removal, tnat the grantor notified the grantee’s purchaser to remove the timber within a fixed period does not supply the omission in the deed; the purchaser not having consented.</p> <p>4. Logs and logging &wkey;>3(7) — Estates created by timber deed defined.</p> <p>Where standing timber is conveyed separately from the land, two distinct estates are created, one the land, title to which remains in the grantor, and the other the timber, title to which passes to the grantee, under Act No. 188 of 1904.</p> <p>5. Logs and- logging <&wkey;>3(7) — Right to construct tramroad for removal of timber held a servitude.</p> <p>Where a deed to standing timber gives a right to the grantee to enter and to construct a tramroad for the purpose of removing the timber from that and other lands, the right constitutes a servitude, which, as far as the timber sold is concerned, is a mere accessory to the right of removal, and does not come into existence until needed for that purpose.</p> <p>6. Logs and logging &wkey;3(7) — When limitations against right to construct tramroad for removal of timber commences stated.</p> <p>Where a deed to standing timber failed to specify the time for its removal, but gave grantee the right to construct a tramroad to remove the timber sold, and also for the removal of timber from other lands in the vicinity, /¡eld that the 10-year limitation did not run as against the servitude created by the right to make the road for the removal of timber from other lands until the time came for the removal of the timber from the gran-' tor’s land.</p> <p>7. Injunction &wkey;M88 — Attorney’s fees not allowable as damages where injunction dissolved on merits.</p> <p>When an injunction is dissolved on the merits, and not on a motion to dissolve, attorney’s fees will not be allowed as damages.</p>

King, Judge. In the matter of the succession of Emma Lith. From a ruling that an inheritance was exempt from the inheritance tax, the collector of inheritance taxes appeals.

<p>Certiorari to Court of Appeal, Parish of Livingston.</p> <p>Action by W. J. Martinez & Bros, against C. C. Murray and others. Application by plaintiffs- for certiorari. or writ .of review to the Court of Appeal.</p>

Application by the State, on the relation of Karl Hansen for mandamus, against the E. AV. Welrich Glass Company, Inc., and others to compel a transfer to plaintiff of a share of stock in the defendant corporation. Judgment for plaintiff, and the defendants appealed to the Court of Appeals where plaintiff’s motion to dismiss for lack of jurisdiction ratione materia; was sustained and the appeal dismissed, and the defendants ■ apply for writs of certiorari or review.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Specific performance &wkey;>17 — Optionee not without interest to sustain suit because authorizing agent to sell.</p> <p>One having an option for the purchase of land which he had accepted by authentic act duly recorded was not without interest enabling him to maintain a suit for specific performance because he had authorized a third person as his agent to offer the property for sale on a commission.</p> <p>2. Landlord and tenant &wkey;>92(l) — Option in lease not without consideration.</p> <p>A lease containing affirmative covenants by the lessee is a sufficient consideration for an agreement therein, giving the lessee a right to purchase the property during the continuance of the loase, so that the option, cannot be withdrawn by the lessor during that time, and the option cannot be dissevered from the lease and treated as an independent agreement.</p> <p>3. Landlord and tenant <@=92(1) — Persons to whom optionor had sold not. entitled to tender as condition to exercise of option.</p> <p>Where a lease containing an option for the purchase of the land was duly recorded long prior to the lessor’s sale to a third person-, and his sale to another and the lessee had not abandoned or forfeited his option, the lessor was the only person who could demand án actual tender as a condition of the exercise of the option; the sales of the land being illegal and void so far as the option was concerned.</p> <p>4. Landlord and tenant &wkey;>92( I) — Tender unnecessary in exercising option where optionor declined to accept it.</p> <p>Where an optionee offered to tender the purchase price to the optionor, but she declined to accept any tender if made because she had' parted with title, a tender to her was unnecessary.</p> <p>5. Landlord and tenant <@=92(1) — Optionee held not to have forfeited rights.</p> <p>Where plaintiff was given a lease of land containing an option to purchase, and. thereafter- an act of sale to the lessee’s sister-in-law was signed by one to whom the lessor had conveyed, but it omitted land,covered by the option and embraced other land not so covered, and specified a different consideration, different terms of payment, and a different rate of interest than those prescribed in the option, plaintiff did not forfeit or abandon his option, and was not estopped to assert it because he acted as his sister-in-law’s agent in the uncompleted transaction, or even if he agreed to join his sister-in-law in the transaction, and then repudiated it and refused to sign the deed.</p> <p>6. Landlord and tenant i&wkey;>92(l) — Evidence Insufficient to show abandonment of option by optionee.</p> <p>In a suit for specific performance of lessee’s option for the purchase of land, evidence held insufficient to show that lessee had abandoned or forfeited the option.</p> <p>7. Landlord and tenant &wkey;s92(l) — Lessee held not to have abandoned option by moving off at expiration of lease after accepting option.</p> <p>Where plaintiff had a lease expiring December 31, 1917, containing an option to purchase, which he accepted by authentic act duly recorded in November, 1917, he did not voluntarily abandon the property and its possession, and forfeit the option by thereafter moving off the property pursuant to legal notice to vacate the premises at the expiration of the term specified in the lease, especially where he would have lost improvements worth several thousand dollars.</p> <p>8. Vendor and purchaser &wkey;»23l(I6) — Sales while option in full force null and void.</p> <p>Where an option for the purchase of land was of record and in, full force and effect at the time of a sale of the land by the optionor to a third person and by him to another, the sales were illegal, null, and void.</p> <p>9. Specific performance i&wkey;>65 — Promise to sell gives purchaser right to demand.</p> <p>A promise of sale amounts to a sale in the sense that it gives the purchaser the right to demand a specific performance of the obligation to transfer and deliver the property.</p> <p>10. Vendor and purchaser &wkey;>23l (16) — Sales; promise'to sell, duly recorded, cannot be defeated by sale to another.</p> <p>A promise of sale, duly accepted and recorded, confers a real right on the purchaser of which third persons are bound to take notice, and such right cannot be defeated by a subsequent sale of the same property recorded prior to the execution of the deed, pursuant to the promise of sale-, especially in view of Oiv. Code, | art. 2462, as amended by Act No. 249 of 1910 relative to options.</p> <p>11. Specific performance <&wkey;l26(l) — Incumbrance to be deducted from price.</p> <p>In a suit for specific performance of an option for the purchase of land,, the balance due on a mortgage granted by the optionor in favor of a third party should be deducted from the price due by the optionee.</p> <p>12. Specific performance &wkey;>l3l — Decree will condemn contracting party to sign deed, and if she refuses will Itself constitute title.</p> <p>In a suit for specific performance of a contract for the sale, of land against one who has parfed with title, the decree will condemn her to sign the deed, and if she refuses to sign the decree will-itself constitute the title.</p>

Action by H. M. Young, Jr., against A. M. Ellis, in which Mrs. M. S. Ellis filed a third opposition. From a judgment of the Court of Appeal rejecting the third opposition, third opponent applies for eertiorari or writ of review.

Action by John B. Warfield against V. B. Cotton for a writ of injunction. Injunction denied and plaintiff applied for writ of man-, damus, directed to Hon. Porter Parker,. Judge of Division D, Civil District Court, Parish of Orleans, to compel him to grant, the injunction.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Courts &wkey;>224(7) — Action to collect license tax not within court’s jurisdiction where validity of license not in issue.</p> <p>In a suit to collect license taxes amounting to $150, defended on the grounds that defendants were not wholesale dealers during the years in question and that the tax had been paid,, the Supreme Court has no jurisdiction of an appeal under Const. 1921, art. 7, § 10; the amount being below the minimum jurisdiction, and the constitutionality or legality of the license levied against wholesale dealers not being-involved.</p> <p>2. Courts <&wkey;>483 — Appeal not within court’s jurisdiction will be transferred to Court of Appeal.</p> <p>An appeal in a suit to collect license taxes, which, is not within the jurisdiction of the Supreme Court because the amount.involved is below the minimum jurisdiction and the constitutionality or legality of the license is not involved, will not be dismissed, but will be transferred to the proper Court of Appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law <©=>409 — Foundation for admission as to ownership of shoes fitting into certain tracks held sufficient.</p> <p>In prosecution for murder, evidence by a deputy sheriff that defendant came up to witness and stopped, and, in a conversation freely and voluntarily had, admitted being the owner of shoes which fitted into certain tracks, held sufficient as a foundation for such admission.</p> <p>.2. Criminal law <&wkey;386 — Bloodhound evidence held admissible.</p> <p>In a prosecution for murder, evidence as to the tracking of defendant by bloodhounds held 'admissible.</p> <p>3. Criminal law &wkey;662(4) — Certificates of pedigree of bloodhounds held inadmissible.</p> <p>In a prosecution for murder, where defendant had been tracked by certain bloodhounds, the introduction in evidence, over defendant’s ■objection, of certificates of the pedigree of the hounds, held error.</p> <p>4. Homicide <S&wkey;l57(l), 158(I) — Proof.of pri- or difficulties and threats by defendant held admissible.</p> <p>1^ murder prosecutions, proof of prior difficulties and of threats by defendant is admissible.</p> <p>5. Criminal law <&wkey;35!(IO) — Attempts by de- ■ fendant to intimidate witnesses held admissible.</p> <p>In prosecutions for murder, evidence of attempts by defendant to intimidate witnesses Is admissible.</p>

Frank McGuire and Frank Dunham pleaded guilty to robbery, and were sentenced. Motion by McGuire to withdraw plea overruled, and he appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Patents &wkey;>215 — Evidence held not to sustain charge of fraud in procuring exclusive license under patent.</p> <p>In a suit to cancel a contract granting to-defendant an exclusive license to manufacture and sell under complainant’s patents, evidence showing that the complainant, and not defendant, was the moving party in procuring the execution of the contract held not to show fraud by defendant which vitiated the contract.</p> <p>2. Patents &wkey;»215 — Evidence held not to show licensee’s failure to perform contract.</p> <p>In a suit to annul a contract granting an exclusive license to manufacture and sell under patents, evidence that the licensee had paid the expenses of litigation against the patentees, which they should have paid, and expended sums of money in preparing for manufacture after that litigation was terminated, held not to sustain complainant’s contention that defendant had failed to perform his part of the contract.</p> <p>3. Corporations <&wkey;>439 — Grant of exclusive license to use patents held not to convey assets so as to prevent corporation doing business.</p> <p>The grant by a corporation of an exclusive license to manufacture and sell under patents owned by the corporation, and which were its principal assets, for a royalty payable to the corporation, is not invalid without a stockholders’ vote as a conveyance of the assets of the corporation which prevents it from doing the business for which it was organized.</p> <p>4. Corporations <&wkey;>388(4) — Directors and stockholders who signed contract cannot attack it as ultra vires.</p> <p>The directors and stockholders of a corporation who signed the contract granting an exclusive license to manufacture and sell under the corporation’s patents cannot attack the contract on the ground that it conveyed the assets of the corporation, and thereby prevented it from performing the duties for which it was, organized.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; James Simon, Judge.</p> <p>Jean Stelly was convicted of murder, and he appeals.</p>

King, Judge. Suit by H. T. Cottam & Co., Inc., against Comisión Reguladora del Mercado de Henequen, in which the Republic of Mexico intervened and claimed' the property attached. Judgment for'the plaintiff, sustaining the attachment and dismissing the petition of intervention, and the intervener appeals.

<p>Appeal from Twenty-First Judicial District Court, Parish of Iberville; C. Iv. Schwing, Judge.</p> <p>. Alex Butler was convicted of murder and stentenced to be hanged, and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Banks and banking t&wkey;>254 — Damages from directors’ mismanagement when recovered belong to bank.</p> <p>The damages resulting from the gross negligence and mismanagement of the directors of a national bank resulting in the waste of its assets is an asset of the bank, and not of a stockholder, and, when recovered, should go to the bank for the payment of its liabilities and for distribution of any balance, in case the bank is not permitted to continue business, among the shareholders.</p> <p>2. Banks and .banking <&wkey;>254 — Shareholder cannot sue directors for his own benefit, but only on behalf of bank.</p> <p>Under Rev. St. U. S. § 5239 (U. S. Comp. St. § 9831), providing that, if the directors of any national banking association violate any of the provisions of the Banking Law, each director participating therein, etc., shall be liable for all damages sustained by the association, its shareholders, or others, a shareholder may not sue for his exclusive benefit for the gross negligence and mismanagement of the directors, but may sue in his own behalf and in behalf of the other stockholders, the judgment when recovered to inure to and be paid the bank or its receiver.</p> <p>3. Banks and banking c§=3254 — Shareholder suing directors must allege demand on receiver or facts showing it would have been vain.</p> <p>A shareholder in a national bank suing the directors for the damages resulting to the bank from their gross negligence and mismanagement must, where the bank is in the hands of a receiver, allege that demand was made on the receiver to sue, and that he refused and failed to do so, or else allege facts showing that it would have been vain to make such demand, and, where the petition contained no such allegations, it was subject to an exception of no cause of action.</p> <p>4. Banks and banking <&wkey;253 — Directors are agents of bank, and charged with an implied trust.</p> <p>The directors of a national bank' are its agents charged under the law with an implied trust, to use its funds, only for the purposes permitted by law, and to preserve them for its creditors and stockholders.</p> <p>5. Limitation of actions <@=39(l) — Prescription; cause of action against directors of banks subject to prescription of 10 years.</p> <p>The obligation of the directors of a national bank to the bank to use its funds only for purposes permitted by law,' and preserve them for its creditors and stockholders, is a special one due the bank in particular and its stockholders, and not a general duty due to every one, and causes of action for damages for their negligence are not subject to the prescription of one year, applicable to causes of action for offenses and quasi offenses under Civ< Code, art. 3036, but are subject to the prescription of 10 years provided by article 3544 for all personal actions except those to which a different prescription is made to apply.</p> <p>6. Limitation of actions <@=39(1) — Prescription; stockholder’s action against directors, if maintainable, subject to prescription of 10 years.</p> <p>Assuming that a shareholder in a national bank may sue the directors for his exclusive benefit for his pro rata part of the damages sustained by the bank from their negligence and mismanagement, the prescription of 10 years under Oiv. Code, art. 3544, and not that of one year under article: 3536, applies, as a fiduciary relation exists between a shareholder and the directors, and their duty to him is a special duty, and not a general one due everybody.</p> <p>Provosty, J., dissenting.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.</p> <p>Action by S. J. Ward and others against Nell B. Lynn. Judgment for plaintiffs, and defendant appeals.</p>

M. Calhoun, Judge. Action by the Board of Commissioners of the Fifth Louisiana Levee District against the Concordia Land & Timber Company to establish title to real estate. Judgment for plaintiff for all but one tract and defendant appealed, and plaintiff filed answer prajdng that judgment be amended by awarding to it the additional tract.

<p> (Syllabus by Editorial Staff.) </p> <p>(. Criminal law @=>369(8), 371(9, 12) — Evidence of other acts of carnal knowledge admissible as corroboration and to show motive and .intent.</p> <p>On a trial for having carnal knowledge of an unmarried female below the age of consent, evidence of similar acts with the same girl at other times was admissible to corroborate the proof made to sustain the charge, and .to show motive and intent.</p> <p>2. Witnesses @=>277(4) — Question on cross-examination as to writing of letter, held competent to rebut direct testimony.</p> <p>Where defendant in his testimony in chief denied the charge of carnal knowledge of a female nnder the age of consent, and testified that during an absence in Texas subsequent to the alleged offense he had written his wife and received letters from her, cross-examination as to whether he wrote and mailed to the brother of the prosecuting witness while in Texas a letter shown him and Containing statements tending to show his relations with the prosecuting witness, and a request that the addressee should not tell his wife of its receipt because she wquld not write to him, hela properly permitted as rebutting his testimony in chief.</p> <p>3. Criminal law @=>1170(4) — Exclusion of evidence cured by subsequent admission.</p> <p>The exclusion of evidence claimed to show improper relations between the prosecuting witness and other persons, if error, was cured, where the court subsequently ruled that the door had been opened by the state, and permitted defendant to recall the witnesses and introduce such evidence.</p> <p>4. Criminal law @=>722(2) — Comment in argument on fact that defendant’s wife and children were in court held not improper.</p> <p>On a trial for carnal knowledge of a girl under the age of consent, where defendant’s wife had testified in his favor, the remark of the district attorney in his argument calling attention, as showing.the maimer of man defendant was, to the fact that he allowed his wife and children to remain in court “to witness the degrading testimony adduced against him,” was not improper, as it was only a comment on facts of which the jury doubtless knew, especially where accused was a witness in his own behalf.</p>

, .Judge. Jonas Perry was convicted of having received deposits in the bank of which he was cashier, knowing it to be insolvent, -and he appeals.

<p>Appeal from Second Judicial District ■Court, Parish of Webster; Robert Roberts, •Jr., Judge.</p> <p>Lee Sikes was convicted of manslaughter, ■and he appeals.</p>

<p> (Syllab'U.t by Editorial Staff.) </p> <p>1. Larceny <i&wkey;5l(l) — Possession may be shown after date specified in bill of particulars.</p> <p>Evidence that one accused of larceny, on the day after the date of the theft specified in the bill of particulars, was offering to sell the alleged stolen property was admissible, where it did not purport to show on what day the theft was committed.</p> <p>2. Criminal law <&wkey;599 — No continuance by reason of surprise.</p> <p>One prosecuted for larceny was not entitled to a continuance because surprised by legitimate evidence that the day after the alleged theft he was in possession of the alleged stolen property, and was offering it for sale.</p> <p>3. Criminal law &wkey;>593, 657 — Sending counsel to jail and denying continuance held not erroneous.</p> <p>In a prosecution for larceny, where a member of the firm of attorneys representing accused appeared to be intoxicated and was very disrespeetful to the court and was taken to jail by order of the court, held that the action of the court in sending counsel to jail and denying a continuance was not erroneous; accused being well represented by other members of the firm.</p> <p>4. Criminal law <&wkey;1169(6) — Evidence of theft of more property than alleged held harmless.</p> <p>In a prosecution for theft of 89 cross-ties, accused cannot complain of admission of evidence that 81 cross-ties were stolen, especially where the verdict was for petty larceny; that is, for a smaller number of cross-ties than 80.</p> <p>5. Criminal law &wkey;404(4) — No error in admitting one of 80 cross-ties stolen in evidence and in making remark,</p> <p>In a prosecution for theft of 80 cross-ties, accused cannot complain of ruling of court allowing one of the cross-ties to be brought into court and exhibited to the jury without all of them being brought in, the purpose of bringing in one being to show how the original branding had been defaced, especially where the court offered to let the accused have all .of the cross-ties brought in and exhibited to the jury if. he so desired, although the. court remarked that “he was not going to convert his courtroom into a lumber yard.”</p> <p>6.Criminal law &wkey;>l 178 — Bills not insisted on' deemed waived.</p> <p>Bills of exception, not insisted on in the brief, are assumed to be waived.</p>

Felix Manager and others pleaded guilty to grand larceny. The named defendant’s motion for permission to withdraw plea of guilty was overruled, and he appeals.

Campbell, Judge. xVldez Breaux was indicted for the crime of stabbing with intent to commit murder. From a judgment quashing the indictment, the State appeals.

Edrington, Judge. Joe Giilizo was convicted of knowingly receiving stolen property, and from the verdict and sentence he appeals.

Application by the State, on the relation of Joseph Sonnenberg, for a writ of mandamus against the Board of Commissioners of the Port of Now Orleans. Prom judgment granting the writ, defendant appeals.