Volume 150 — Louisiana Reports

<p> (Syllabus by JMitorial Staff.) </p> <p>Municipal corporations &wkey;32l8(3) — Civil service employees who may be discharged for purpose of economy.</p> <p>The board of commissioners of the port of New Orleans had no authority, for mere purpose of economy, to discharge clerks employed in the public cotton warehouse who had been examined and qualified under the civil service rules of the board in conformity with Daws Ex. Sess. 1915, No. 15, § 5, while others more recently employed were allowed to remain, though the board is not bound to keep in its employ men for whom, under the fair and reasonable requirements of its business, it has no need.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Action by heirs of Patrick S. Eivers against heirs of Henry S. Ranltin. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; Leander I-I. Perez, Judge.</p> <p>Suit by Frank J. Lobrano against the Police Jury of the Parish of Plaquemines. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of St. James; Sam A. Le Blanc, Judge.</p> <p>Suit by Joseph Jacob and others against Constant Falgoust and others. Judgment of dismissal for defendants, and plaintiffs appeal.</p>

E. Reynolds, Judge. Action by M. H. Talley against Z. R. Law-hon, to annul a lease and lease extension. Judgment for the defendant, and the plaintiff appeals.

K. Skinner, Judge. Action by George H. Lowe against Morgan’s Louisiana & Texas Railroad & Steamship Company for personal injuries. Judgment for plaintiff, and defendant appeals, and plaintiff asks for increase of verdict.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Vendor and purchaser <&wkey;3(4) — Sales; contract held a “promise to sell” and not a contract of sale.</p> <p>Contract providing that vendors “have this day received from” purchasers specified amount, the “same being a part of the purchase price” on described land, on which purchasers “agree to pay” specified additional sums on specified dates, and that “it is further understood that in case” purchasers “fail to take the title” the amount described as being received by vendors “is to be forfeited unless the title is defective,” did not effect a sale of the land, but was merely a promise to sell with the giving of earnest money, within Civ. Code, art. 2463, giving a purchaser the right to recede by forfeiture of earnest money, and vendor the right to recede by returning to purchaser double the amount of the earnest money; the failure of the agreement to designate the amount received by vendors as “earnest money” being immaterial.</p> <p>2. Vendor and purchaser <&wkey;18(3) — Sales; premise to sell becomes a' contract of sale precluding withdrawal, on payment of part of purchase price.</p> <p>A promise to sell,- within Civ. Code, art. 2463, providing that, where a promise to sell has been made with the giving of earnest money, the purchaser may recede by forfeiting the earnest money and vendor by returning double the amount thereof, merges into a contract of sale precluding parties from withdrawing therefrom, on the payment of a part of the purchase price.</p> <p>3.Vendor and purchaser <®^335 — Sales; on abandonment of contract purchase price not recoverable.</p> <p>Purchasers, on abandonment of contract after payment of part of purchase price, could not recover amount paid.</p> <p>Dawkins, J., dissenting.</p>

In the succession of Constance Guillebert a judgment was obtained by Mrs. Adele Bar-bin, wife of Dr. A. T. Barbin, and her sister, Camille Modistine Guillebert, against their mother, Constance Guillebert, and her husband, Alfred J. Mayer, as tutor and cotutor of plaintiffs.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error <&wkey;999 (I) — Verdict under erroneous instructions entitled to little weight.</p> <p>In an action for injuries to a street ear passenger, a verdict for defendant is entitled to but little weight when the charge was in the most general terms, failed to define the duties of the carrier to the passenger, and erroneously instructed that the burden of proof was on the passenger.</p> <p>2. Carriers <&wkey;280(l) — Strictest diligence required by carrier of passengers.</p> <p>The carrier is bound to exercise the strictest diligence in receiving passenger, conveying him to his destination, and setting him down safely that the means of conveyance and circumstances will permit.</p> <p>3. Carriers &wkey;33l6(l) — Have burden of proving cause for failure to set down passenger safely.</p> <p>It is sufficient for a passenger suing on a contract for safe passage to show that he was not set down safely at his destination to throw the burden of explanation on the carrier, and it is for the carrier to prove what negligence and who?e prevented the fulfillment of the contractual obligation.</p> <p>4. Carriers <&wkey;>344 — Burden on carrier to prove passenger’s contributory negligence.</p> <p>The burden is on the carrier to establish affirmatively the contributory, negligence of the passenger.</p> <p>5. Carriers &wkey;>303 (6) — -Duty of street car company to prevent obstruction of platform by objects endangering alighting passengers.</p> <p>A street car company owes to its passengers the duty to prevent the obstruction of the platforms by baskets or other objects which would endanger passengers when alighting.</p> <p>6. Carriers &wkey;>3!8(9) — -Evidence held not to sustain carrier’s contention passenger fell after she had safely alighted.</p> <p>In an action for injuries to a passenger who claimed she fell from a street'car when her skirt caught on a basket which another passenger had set on the platform near the steps, thereby tripping her and throwing her to the ground, evidence held not to sustain the contention of the carrier that plaintiff had reached the ground in safety and thereafter fell from some unknown cause.</p> <p>7. Continuance &wkey;>35 — Statements admitted to avoid' continuance are entitled to same weight as foreign testimony.</p> <p>Where defendant’s counsel to avoid a continuance admitted that an absent witness would, if present, testify as stated by plaintiff, such statement is entitled to the same weight as would, be the testimony of the witness given under oath on the stand.</p> <p>8. Damages <&wkey;l32(3) — $10,000 awarded for injuries causing, curvature of the spine.</p> <p>In an action for injuries to a woman 58 years of age caused by a fall from the street car, which caused curvature of the spine so as to cripple her for life and permanently incapacitate her to earn a livelihood, a judgment for $10,000 damages rendered.</p> <p>Monroe, O. J., dissenting.</p>

King, Judge. Partition proceeding by Sophie Wendling Fabacher against Peter Fabacher and others. From a judgment on a rule to homolo-gate the partition between the parties, judgment creditors J. P. Hudson & Sons and another appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Attachment <&wkey;47(2)— Burden on defendant to show residence.</p> <p>In an action in which an attachment was issued, the burden rested upon the defendant to prove by affirmative and satisfactory evidence his claim that prior to the issuance of the attachment he had established a permanent residence in the state; it being conceded that prior to going to the state he was a resident of another state.</p> <p>2. Domicile <§»3 — Continues until another is acquired.</p> <p>The domicile of origin continues until another is acquired, animo et facto.</p> <p>.3. Attachment &wkey;s47(4) — Evidence held insufficient to show change of domiciie.</p> <p>In attachment proceeding against one whose domicile of origin was in another state, evi-dencie relied on by defendant to prove a change of domicile to the state prior, to the issuance of attachment held not sufficient to overcome the presumption that the domicile of origin continued.</p> <p>4. Principal and agent <&wkey;69(2) — Mandate; must account to principal for gifts received from person dealing with him as agent.</p> <p>One acting as agent in procuring oral leases must account to his principal for gifts of interests in such oil leases and contracts, made to him by persons who dealt with him as agent, thereby giving him a private interest in oil leases acquired adverse to his principal and without his knowledge.</p>

Suit by Antoine Gonsoulin and another against Stephen Sparrow, in which Hypolite Sparrow filed an intervention. From judgment by the Court of Appeals affirming judgment for plaintiffs, defendants apply for writs of certiorari and review to the Court of Appeals.

<p>Appeal from Twenty-Eighth Judieiál District Court, Parish of St. Charles; Prentice E. Edrington, Sr., Judge.</p> <p>Prank Patterson and others were indicted and Will Honor was convicted of burglary, and Honor appeals.</p>

<p>Walter Paul McDermott was convicted for nonsupport of wife. He applies for writs of certiorari and prohibition.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law ©=3598(2) — Denial of continuance for absence of witness proper, in absence of showing of diligence.</p> <p>Denial of motion for continuance for absence of witnesses held proper, where there was no showing of diligence to procure witness’ presence during trial.</p> <p>2. Criminal law ©=>1144(7) — Denial of continuance for absence of witness who was ill presumed proper.</p> <p>Where motion for continuance for absence of witness who was very ill with tuberculosis was denied, in absence of request to have the -jury taken to the bedside of the witness, it will be presumed on appeal that he was so ill that there was no hope of ever obtaining his testimony, or that the defendant was not insistent upon having the' testimony.</p> <p>3. Indictment and information ©=>189(3) — Indictment, charging shooting with intent to murder, held to sustain conviction for shooting with intent to kill.</p> <p>Indictment, charging that defendant shot prosecuting witness “with the intent * * * to kill and murder” held to sustain conviction for shooting with intent to kill, since a charge of the crime of shooting with intent to murder includes the charge of shooting with intent to kill.</p> <p>4. Indictment and information ©=>187 — Indictment, charging shooting with intent “to kill and murder,” held sufficient.</p> <p>Indictment, charging that defendant shot prosecuting witness “with the intent * * * to kill and murder,” held sufficient, as against contention that it did not set forth or define the crime, either of shooting with intent to murder, or of shooting with intent to kill, since it is not possible to accuse a person of the crime of shooting with intent to murder without at the same time accusing him of shooting with intent to kill.</p> <p>5. Homicide ©=>141(1) — Indictment charging shooting with, intent to kill and murder held sufficient.</p> <p>Indictment, charging that defendant shot prosecuting witness “with the intent * * * to kill and murder,” held sufficient, as against contention that it did not inform defendant of whether he would be prosecuted for shooting with intent to murder or for shooting with intent to kill.</p> <p>6. indictment and information &wkey;>!25(4l)— Shooting with intent to murder and shooting with intent to kill may he charged in same indictment.</p> <p>Shooting with intent to kill, and shooting with intent to murder may be charged in the same indictment.</p>

<p>Appeal from Criminal District Court, Parish of Orleans; N. E. Humphrey, Judge.</p> <p>James L. Tyler, Jr., was convicted of embezzlement, and he appeals.</p>

P. Mills, Judge. Suit by the Kansas City Southern Railway Company and others against B. R. Hendricks, Mayor, and others, to annul a bond issue. From a judgment restraining the sale of the bonds for less than par, but in all other respects rejecting plaintiffs’ demands, plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal law <&wkey; 1106(3) — Appeal dismissed for failure to file transcript within required time.</p> <p>Where transcript of appeal was filed after return day, and no motion was made to extend time for filing of transcript, and the time for such motion has expired, the appeal will be dismissed.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Appeal and error <®^393 — Bond held not sufficient to support devolutive appeal.</p> <p>Where defendant obtained an order for both devolutive and suspensive appeal from a money judgment, but court in granting the order did not fix the amount of bond for devolu-tive appeal, but granted both appeals on defendant’s furnishing bond “according to law,” and defendant filed a bond under the order for a suspensive appeal, but not within the time prescribed by law, plaintiff was entitled to have the appeals dismissed as against a contention that the order and bond were sufficient to maintain the appeal as devolutive, under Code Prac. arts. 575, 578, since court must fix the amount of the bond for a devolutive appeal.</p> <p>2. Appeal and error <&wkey;395 — Act relating to correction of errors held not to save appeal from dismissal.</p> <p>Act No. 112 of 1916, relating to correction of error in judicial bonds, will not save from dismissal an appeal which is defective because there is no order fixing the amount of the bond for a devolutive appeal.</p> <p>O’Niell, J., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Real actions <&wkey;7(2) — Petitory action; plaintiff must recover on strength of his own title.</p> <p>In a petitory action for the recovery of land, plaintiff has the burden of proving his ease and must stand or fall on the strength of his own title.</p> <p>2. Estoppel <&wkey;29(l) — Defendant estopped to deny plaintiff’s title at time of deed under which it claimed by reason of earlier alienation.</p> <p>Where defendant in a petitory action alleged a chain of title springing from an incorporated academy of which plaintiff was liquidator after an alleged alienation under a writ of fi. fa., and the evidence showed that title to every tract involved emanated from the academy after such alleged judicial transfer, defendant was in no position to question plaintiff’s title prior to the execution of the deeds under which it claimed, and evidence of the sale under fi. fa. should have been excluded.</p> <p>3. Estoppel <&wkey;>M4 — Not necessary that estop-pel of grantee to deny grantor’s title be specially pleaded.</p> <p>Where in a petitory action by the liquidator of an incorporated academy defendant pleaded and attempted to prove a chain of title springing from the academy after an alleged alienation under a writ of fi. fa., it was not necessary that the estoppel against its right to deny the academy’s title at the date of the conveyance under which it claimed should be specially pleaded.</p> <p>4. Real actions <s^>7(2) — Petitory action; liquidator of academy held to have sufficient title as against one having no title notwithstanding sale on fi. fa.</p> <p>Where the legal title to land donated to an incorporated academy at the time of a sale of its property and assets under a fi. fa. was in the United States government, which subsequently by act of Congress conveyed it to the academy, the sale under fi. fa. could not defeat a recovery by the liquidator of the academy from one disclosing no title in itself under the fi. fa., especially where it was estop-ped to set up such sale because claiming under a later title.</p> <p>5. Schools and school districts c@=»5 — Donation to academy held not to prohibit alienation.</p> <p>A donation of a large tract of land, consisting of a broten area of poor soil valuable mainly for its timber, to have and to hold such land for the only proper use and behoof of the academy forever, did not prohibit an alienation of the property by the academy.</p> <p>6. Adverse possession @=>81 — Prescription of 30 years held to cure absence of showing of authority of one conveying for academy.</p> <p>Where the board of directors of an academy adopted a resolution authorizing the register and receiver of the academy to make and execute good and sufficient titles to lands belonging to it, and land was thereafter conveyed by a person describing himself as register or receiver, the absence of anything to show his appointment was cured by the prescription of 30 years; those claiming under the conveyance having had possession for more than, '50 years.</p> <p>7. Adverse possession <&wkey;7l(3) — Prescription; absence of deed in chain of title held cured by prescription of 10 years.</p> <p>Where a deed under which defendant and its predecessors in title had held possession of and cultivated land for more than 50 years referred to a conveyance from the register and receiver of an academy formerly owning the land, though there was no other proof of such a conveyance, the defect was cured by the prescription of 10 years; the property having been held under a title translative of property.</p> <p>8. Schools and school districts &wkey;>5 — Alienation not prohibited by deed forbidding alienation of land.</p> <p>Prior to the Act No. 188 of 1904, making the laws of real property applicable to standing timber, a deed to an incorporated academy, even though forbidding an alienation of the soil or the land itself, did not prevent a sale of the timber.</p> <p>9. Real actions <&wkey;8(I) — Petitory action; payments not made under conveyance not recoverable in reconvention.</p> <p>In a petitory- action to recover land, where defendant showed no conveyance to itself under which payments on the purchase price and the payment of taxes were made, it was not entitled to recover such payments in recon-vention.</p> <p>10. Schools and school districts <&wkey;>5 — Academy in liquidation by board of school directors not estopped to recover property by receipt of taxes and proceeds of sales by the board.</p> <p>Act No. 24 of 1915 (Ex. Sess.), authorizing the board of public school directors of Caldwell parish to provoke a liquidation of the affairs of Pine Grove Academy, does not so identify the defunct corporation with the board as to estop the corporation from recovering property belonging to it merely because the board had received taxes on portions of the property assessed to third persons or had received the proceeds of sales by the police jury or school board of property to which defendant showed no conveyance to itself.</p> <p>On Rehearing.</p> <p>11. Limitation of actions <§=395(1) — Prescription held not to run after expiration of charter until appointment of liquidator.</p> <p>Under Civ. Code, art. 8537, as amended by Act No. 33 of 1902, providing that the prescription of one year runs from the date knowledge of. damage to land, timber or property is received by the owner where an academy’s charter expired in 1885, and there was no one authorized to sue on its behalf until the appointment of a judicial liquidator, the prescription did not commence to run until the time such appointment became final.</p> <p>12. Schools and school' districts &wkey;>6 — Tenure of officers lapsed with expiration of charter of academy.</p> <p>The tenure of the officers, trustees, and directors of an incorporated academy lapsed with- the expiration of its charter.</p> <p>13. Trespass <@=352 —- Damages limited to stumpage value of timber manufactured.</p> <p>In a petitory action for the recovery of land and for the value of the timber removed therefrom, plaintiff can only recover the stump-age value;, the manufactured value being ultra petitionem.</p> <p>14. Taxation <&wkey;>2!3 — Property of academy held exempt from taxation as “public property.”</p> <p>The Pine Grove Academy, incorporated by Act No. 76 of 1838, and to which the United States government conveyed public lands, was a public institution, and its property was exempt from taxation as “public property” under Const, art. 230.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Public Property.]</p> <p>15. Taxation <@=3213 — Property owned by quasi public corporation and used for public purposes is “public property.”</p> <p>Property dedicated to a public use, the revenues of which serve a public purpose, is “public property” within Const, art. 230, relative to exemptions, though the title is not in the public, but in a quasi public corporation.</p> <p>16. Real actions <&wkey;>8(l) — Petitory action; taxes paid by defendant not recoverable in reconvention when plaintiff’s property- exempt.</p> <p>In a petitory action by the liquidator of-an incorporated academy whose property was exempt from taxation to recover land, defendant cannot recover taxes paid by it in reconvention; such payment not being a necessary expense for the preservation of the property.</p>

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.</p> <p>Action by George P. Long against the American Railway Express Company, Inc. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.</p> <p>Action by the United States Fidelity & Guaranty Company against Salvadore D’Angelo and others. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; John E. Fleury, Judge.</p> <p>Action by the E. J. Lewis Manufacturing Company against the American Creosote Works, Inc. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by N. W. Dawson against J. B. Frazar and others. Judgment for defendants. Application by N. W. Dawson for writ of prohibition and certiorari.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Criminal law <§^l 144(16) — Verdict with seeming corrections and interlineations presumed valid.</p> <p>A verdict finding defendant guilty of larceny “of property of the value of $50 as to B.” held not ground for reversal, though the word “petty” preceding the word “larceny” was stricken out and the quoted phrase written in green ink instead of black on the back of the original bill of exceptions, where the court’s minutes in the original transcript showed the verdict was returned in such phraseology and that B. was the defendant on trial; the presumption being that such corrections or inter-lineations were made by the jury through its foreman before the verdict was received or recorded by the court and the jury discharged.</p>

Porter, Jr., Judge. George Harris, Rosella McMillan, and -others were convicted of extortion. A nolle prosequi was entered as to all other defendants except the one last named, and she appeals;

<p> (Syllabus by Editorial Staff.) </p> <p>I. Pleading <&wkey;246 (3) — Refusal of amendment striking out allegation as to cause of injury held not error.</p> <p>In an action for injuries to plaintiff’s son intending to board defendant’s car, where the petition alleged that a blow by the car gate combined with a push by another boy threw him under the car, held, that it was not error to refuse to permit an amendment striking out the allegation that he was pushed by the other boy.</p> <p>2. Carriers <&wkey;305(4) — Motorman’s negligence in failing to keep lookout held not to have contributed injury to intending passenger so as to make carrier liable.</p> <p>In an action for injuries to plaintiff’s son intending to board defendant’s street car which fan over him when he fell or slipped under the side after the front had passed, negligence of the motorman in failing to keep a lookout held not to have contributed to the injury, so as to make defendant liable.</p>

P. Mills, Judge. Action by the Commercial National Bank against B. B. Smith and others. Prom a judgment maintaining an exception of no cause of áction and dismissing the suit, plaintiff appeals.

<p> (Syllabus by Editorial Sta-ff.) </p> <p>I.Navigable waters i&wkey;37(2) — State owns and may lease bed of stream no longer navigable.</p> <p>Where a bayou which was once navigable ceased to be so, the state, having been theretofore the owner of the bed of the bayou, subject to the right of the public to navigate it and to use its banks, had'the right to lease it to persons desiring to drill for oil.</p> <p>2. Navigable waters <&wkey;37(2) — “What constitutes bed” of navigable stream which state holds and may lease; “bank.”</p> <p>The “bed” of a navigable stream — that is, the land which the state holds in her sovereign capacity and can lease to parties desiring to drill for oil — is only the land that is covered by the water in its ordinary low stage, and the land lying between the edge of the water at its ordinary low stage and the line which the edge of the water reaches in its ordinary high stage is called the “bank” of the stream, and belongs to the owner of the adjacent land, subject to the rights of the public to use it to land and unload boats, dry nets, etc., under Rev. Civ. Code, arts. 455, 457.</p> <p>[Ed. Note.' — For other definitions, see Words and Phrases, First and Second Series, Bank; Bed.]</p> <p>3. Waters and water courses <@=j89 — Riparian owners have title to middle of nonnavigable stream.</p> <p>The beds of streams that are not and never were navigable belong to the riparian owners, to the thread or middle of the stream.</p> <p>4. Easements <&wkey;l8(l) — Servitude; inclosed estate not entitled to passage in absence of agreement or judicial decree.</p> <p>Owners of an inclosed estate are not entitled to a right of passage unless the parties agree upon its location, and upon the compensation to be first paid, or until location of the servitude and the compensation to be first paid shall have been fixed by a judicial decree, under Civ. Code, arts. 699, 700, 702.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; J. B. Crow, Judge.</p> <p>Action by Mrs. Willie R. Moon and husband against G. W. Dye and others. From an adverse judgment, plaintiffs appeal.</p>

II. l’avy, Judge. Suit by Mrs. Marie Alma Prudhomme and others against Mrs. Emily Savant to have declared null and void an instrument purporting to be a nuncupative will. Judgment for plaintiffs and the defendant appeals.

<p> (Syllabits by Editorial Staff.) </p> <p>1. Homestead <&wkey;>!l8(5) — Husband’s conveyance without wife’s consent in consideration of grantee’s assumption of mortgages valid even if wife did not join in mortgages.</p> <p>Husband’s conveyance of homestead without wife’s consent, in consideration of grantee’s assumption of mortgages, held, valid, even if, as claimed by wife, she did not join in the mortgages.</p> <p>2. Homestead I7 — Husband may sell, but not mortgage, homestead without wife’s consent.</p> <p>Husband may sell, but not mortgage, homestead without wife’s consent.</p> <p>3. Homestead <&wkey;[17— Rule that husband may sell without wife’s consent applicable to a “dation en paiement.”</p> <p>In view of Code, art. 2659, the rule that the husband may sell homestead without wife’s consent applies to a dation en paiement; the only difference between them being that the latter cannot be perfected by mere consent without delivery, and that therefore the thing sold is at the risk of the seller until delivery, and_ may until then be seized by the seller’s creditors.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Contracts <&wkey;301 — Principal and surety &wkey;> 119 — Suretyship; contract held to give right to contractor to take over work on default of subcontractor.</p> <p>A contract between contractor and a subcontractor and bis surety provided tba't, on subcontractor’s failure to perform and failure of the surety to perform after notice, the con-l ractor could annul the contract or employ additional force or relet the .wort. After more than one-half the allotted time had passed and only one-tenth of the work had been done, and surety had failed to act, the contractor re-let the .work. Held, in view of a provision that if the subcontractor violated the contract the contractor might take over the contract after notice to the surety, that the contractor’s act was justified.</p> <p>2. Contracts <&wkey;300(l)— Accumulation of rubbish by dock board held no ground' for delay by subcontractor.</p> <p>Where a subcontractor had agreed to drive piles for a wharfhouse, the accumulation of rubbish by the dock board, which the subcontractor had contracted to remove, was no defense for delay in performance in a suit by the contractor.</p> <p>3. Contracts <&wkey;300(l) — Requirements of contractor that subcontractor put pile drivers on barges hold not to excuse delay of subcontractor.</p> <p>Where subcontractor had agreed to drive piles for a wharfhouse, the requirement of the contractor that the pile drivers should be placed on barges in order to do the work properly was no defense in an action by the contractor for delay in performance.</p> <p>4. Contracts t&wkey;299(l) — Delay in performance by subcontractor held attributable to him.</p> <p>In action by a contractor against his Subcontractor for delay in driving piles used in building a wharfhouse, where the subcontractor had no followers, instruments which were necessary in the work, delay on this account was the fault of the subcontractor, who had agreed to furnish all necessary tools and appliances to complete the work.</p> <p>5. Contracts <&wkey;300(3)— Delay by subcontractor held not caused by delay of contractor’s engineers.</p> <p>Where a subcontractor had contracted to drive piles for a wharfhouse, the points to be located by the contractor’s engineers, who were capable men and located 75 points a day, and in their work were delayed 1 point in 75, -the delay of the engineers constitutes no defense for the delay of the subcontractor in a suit against him by the contractor.</p> <p>6. Contracts <S&wkey;300(3) — Delay caused by contractor’s superintendent announcing his intention to take over work of subcontractor constitutes no defense for delay by subcontractor.</p> <p>Where a subcontractor agreed to finish the work on a certain day and when more than one-half the time had passed only one-tenth of the work was done, in view of the fact that the subcontractor had failed to comply with' the contract, delay caused by the announcement of the intention of the contractor’s superintendent to take over the work is no defense in a suit by the contractor against the subcontractor.</p> <p>7. Contracts <&wkey;300(I)— Requiring subcontractor to pay 10 per cent, for financing pay rolls and to share commission for clearing wharves was no defense in a suit by contractor for delay.</p> <p>In a suit by a contractor against his subcontractor for delay in driving piles' for a wharfhouse, the fact that the contractor charged the subcontractor 10 per cent, to finance his pay rolls and required him to divide with the contractor a 15 per cent, commission whiehf the dock board paid the subcontractor for clearing wharves is no defense in a suit for delay by the contractor.</p> <p>8. Contracts <@=3296 — Principal and surety <&wkey;> 100(4) — Suretyship; change in plan by contractor held no defense in suit by contractor against subcontractor and surety for delay.</p> <p>Where a contract between a contractor and his subcontractor and the latter’s surety provided that no change in the plans should release either the subcontractor or his surety, the contractor’s ordering pile drivers to be placed on barges did not release the surety or the sub: tractor from liability in a suit by the contractor for delay in performance.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Ered D. King, Judge.</p> <p>Action by James Francis Carter against Inez Melchior, his wife. Judgment for defendant, and plaintiff appeals.</p>

Action by Henri Obarvanel against John B. Esvard. Judgment for plaintiff, and Anthony J. Rossi, as curator ad hoc of the defendant, obtained an order of suspensive appeal, which was dismissed on rule. Application by curator ad hoc for writ of prohibition.

<p>Appeal from Twelfth Judicial District Court, Parish of Sabine; John H. Boone, Judge.</p> <p>Proceedings by the Louisiana Long Leaf Lumber Company and others against Louis Vines, Assessor, and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Dafourche; H. M. Wallis, Jr., Judge.</p> <p>Action by Harris Eontenelle against Clem-ille Waguespack. Judgment for plaintiff, and defendant appeals.</p>

Appeal irom Nineteenth Judicial District Court, Parish of St. Martin; James D. Simon, Judge. Homer Menard was convicted of cutting with a dangerous weapon with intent to commit murder, and he appeals.

R. Land, Judge. Proceeding by Ossie Haddad under the Workmen’s Compensation Act to obtain compensation for the death of her husband, opposed by the Commercial Motor Truck Company, the employer. There was a judgment allowing compensation, and the employer appeals.

Boone, Judge. Suit by the Forest Lumber Company and others, as taxpayers, against the Police Jury of Sabine rarish and others, to contest the constitutionality of certain taxes levied by the said Police Jury for the year 1920. The district .court decreed both si>ecial taxes unconstitutional, and enjoined the collection thereof, and the Police Jury and others appeal.

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Action by W. T. McEachern against Z. R. Lawhon. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.J </p> <p>1. Husband and wife &wkey;>271 — Judgment of separation of property null and did not dissolve community when never executed.</p> <p>Under Code, art. 2428, providing that the separation of property, although decreed by a court, is null, if not executed, etc., a judgment of separation of property from the husband obtained by the wife was null and did not dissolve the community, where it was obtained on the one ground of the husband’s indebtedness to the wife and was not followed by execution.</p> <p>2. Husband and wife <&wkey;>273(l) — Wife entitled to one-half of community property and usu-fruct of other half.</p> <p>Under Code, art. 916, where the community was not dissolved prior to the husband’s death and the wife and several children survived, the wife was entitled to one-half of the property as survivor in community and the other half as usufructuary.</p> <p>3. Husband and wife <&wkey;27l — Judgment of separation did not bear interest until husband’s death, when never executed.</p> <p>Where a judgment of separation of property obtained by the wife was never executed, and the wife never sought to assume the administration of her separate property, she was not entitled to interest on her paraphernal claim established by the judgment from the date thereof, but was entitled to interest from the husband’s death.</p> <p>4. Evidence i&wkey;>265(!7) — Admission in. answer binding on party’s heirs and those claiming under them.</p> <p>Where the husband’s answer in the wife’s suit for separation of property admitted an indebtedness to the wife, such admission was binding on the husband’s heirs and on the purchaser of the interest of one of the heirs.</p> <p>5. Husband and wife <&wkey;>27l — Judgment of separation of property evidence of debt, though never executed.</p> <p>Though a judgment of separation of property obtained by a wife was null as an execu-tory judgment, under Code, art. 2428, because never executed, it was evidence of the existence of the debt thereby established in favor of the wife.</p> <p>6. Husband and wife <&wkey;=>271 — Judgment of separation presumed not satisfied, when no evidence of payment produced.</p> <p>Where a wife obtained a judgment of separation of property, in 1877, payment or ex-tinguishment of the debt was a matter of special plea, the burden of sustaining which rested on those opposing the wife’s claim, and, proof not having been produced, the debt must be regarded as not extinguished.</p> <p>7. Husband and wife <&wkey;>27l — Wife’s unrecorded paraphernal claim not effective against purchaser of child’s interest.</p> <p>Where a wife’s paraphernal claim' under a judgment of separation of property was not recorded, it could not affect the right of one who, after the husband’s death purchased the interest of one of the children.</p> <p>On Rehearing.</p> <p>8. Husband and wife <S=>27I — Judgment of separation of property ineffective, when there was no proof of husband’s embarrassed condition.</p> <p>A judgment of separation of property obtained by a wife on the ground of the husband’s indebtedness to her was ineffective, where there was no sufficient proof to establish the embarrassed financial condition of the husband.</p> <p>9. Husband and wife &wkey;>271 — Agreement for deposit of proceeds of community property held not to waive right to legal interest on paraphernal claim.</p> <p>An agreement that the proceeds of community property sold in a suit for partition following the husband’s death should be deposited in a bank did not waive the wife’s right to collect interest at the legal rate on her paraphernal claim, and the interest accruing on the deposit should he added to the principal, and interest on the wife’s claim computed at the legal rate.</p> <p>10. Partition <&wkey;89 — Surviving wife praying for revenues upi to date of sale not entitled to anything more.</p> <p>In a suit to partition community property, following the husband’s death, between the surviving wife, the children, and the purchaser of a child’s interest, the wife was entitled to the fruits and revenues of the property up to the date of the sale only where this was all that was prayed for in her petition.</p> <p>O’Niell, J., dissenting.</p>

F. Bell, Judge. Action by J. Rogers Jefferson and wife against Julius Gamm and others, and by the same plaintiff against J. K. Herold and others. Judgment for defendants in the former and for plaintiffs in the latter, and plaintiffs and defendants respectively appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Indictment and information <&wkey;87(6) — Indictment charging concubinage on specified date held sufficient, although crime is a continuing offense.</p> <p>Indictment charging a white man with cohabitation with a colored woman, in violation of Act No. 208 of 1910, as having been committed on a specified day, was not bad for failure to allege that it had'continued for a longer period, notwithstanding that concubinage is a continuous or continuing status.</p> <p>2. Criminal law &wkey;>369(2) — Evidence of acts of intercourse other than the one charged admissible.</p> <p>In a prosecution of a person for having had illicit sexual intercourse with a particular individual on a particular occasion, evidence is admissible to prove other occasions of sexual intercourse between the same individuals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>On Motion to Dismiss Appeal.</p> <p>1. Criminal law &wkey;>l 144(19) — Order of entries does not destroy presumption that appeal was not granted before sentence.</p> <p>Where the proceedings with regard to the sentence, the motion for appeal, and the order of appeal, were had on the same day, and recorded as contemporaneous proceedings, the fact that the clerk’s entries in the record are not in their proper order does not destroy the presumption that the judge did not grant the order of appeal before he imposed sentence, in the absence of any suspicious circumstances in the record.</p> <p>On the Merits.</p> <p>2. Criminal law &wkey;o595(4) — Testimony of absent witness held relevant and material in prosecution for procuring forgery.</p> <p>On a trial for procuring if. to forge a check, the testimony of a bank cashier, for whose absence defendant requested a continuance, that the exact amount of the check was deposited by If. to his own credit, and that defendant did not receive any of the proceeds of the check so far as the bank records showed, was relevant and material as tending to disprove motive, especially if the case was one of circumstantial evidence.</p> <p>3. Criminal law <&wkey;594(l) — That defendant previously represented by counsel held immaterial as respected motion for continuance.</p> <p>Where counsel appointed by the court on the day a case was called for trial.moved for a continuance because of the absence of a material witness, the fact that defendant, who was indicted five days before trial, was represented by counsel when put in jail, was of no importance where such counsel had withdrawn from the ease.</p> <p>4. Criminal law t&wkey;594( I) — Motion for continuance because of absence of witness held improperly denied.</p> <p>Where defendant was placed on trial on 'the fifth day after his indictment, and the request then made for a continuance because of the absence of a material witness was the only request made, and the postponement would not have caused serious delay or interference in the administration of justice, while it was not certain that its refusal did not cause injustice, the request should have been granted.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Insane persons &wkey;?2 — Burden on one attacking acts of insane person not interdicted to show incapacity and knowledge thereof.</p> <p>In view of Code Prac. art. 102, and Civ. Code, arts. 1782, 1788, and 1789, all relating to disqualifications of insane persons to sue or to contract, one who attacks the acts of a person of unsound mind, but not interdicted according to the forms provided by the Civil Code, bears the burden of proving his incapacity, and that it was either generally known, or that the person who contracted with him knew it.</p> <p>2. Insane persons t&wkey;100 — Judgment against insane defendant held voidable, but not void.</p> <p>Where a defendant in partition proceedings was insane, but not interdicted, and the citation of such defendant was valid on its face, a judgment rendered in the proceeding was voidable, but not void.</p> <p>3. Insane persons &wkey;»100 — Judgment against insane defendant will not be annulled, unless other defendants are before the co.urt.</p> <p>A judgment in partition will not be annulled for the reason that one of the defendants was insane, unless the other parties to the judgment are before the court..</p> <p>4. Insane persons &wkey;s95 — Citations served at home of insane person held valid, notwithstanding such person was in an asylum.</p> <p>A citation against an insane person not interdicted, which is regular in form, and bears the return of a legal domiciliary service made at the home of defendant, held valid, notwithstanding that defendant was in an asylum elsewhere, since, if he had no capacity, he could not acquire a new domicile, in view of Giv. Code, art. 41 et seq.</p> <p>5. Adverse possession &wkey;>84 — Prescription; purchaser in bad faith may continue possession begun in good faith by his grantor.</p> <p>Where Z.’s purchase of land at partition sale, although it gave him title regular and translative of property on its face, was not a purchase in good faith, since Z. knew of the mental incapacity of one of the owners of the property, and defective service of process on him, prescription aequirendi causa did not begin to run during Z.’s ownership and possession; but where later the property was sold under judgment at syndic’s sale in suit between Z. and his creditors, and was bought in by T., who was not shown to have been aware of the partition sale irregularities, prescription began to run from the date of his' acquisition, and, under Oiv. Code, art. 3482, evep if T.’s subsequent vendees were in bad faith, this would not interrupt or prevent the running of prescription, as it had been validly commenced under the possession of T.</p> <p>6. Limitation of actions <&wkey;>74(l) — Prescription; exemption from prescription of “persons under interdiction’’ does not include persons merely committed.</p> <p>In Civ. Code, art. 3522, providing that minors and “persons under interdiction” cannot be prescribed against, except in cases provided by law, the term “persons under interdiction” is used advisedly, and in the sense of a judgment rendered contradictorily, as required elsewhere in the provisions of the Code, and does not include persons merely committed under Rev. St. § 1768.</p> <p>7. Parties <&wkey;>76(3) — Curator’s incapacity to sue waived by not pleading in limine.</p> <p>Objection to the capacity of a curator to sue is waived by not pleading it in limine.</p> <p>8. Adverse possession <&wkey;57 — Prescription; burden of showing interruption of prescription is on the one who seeks to benefit thereby. '</p> <p>In partition, where defendant has shown the lawful commencement of a prescription and the expiration of the time required to malje it perfect, the burden of showing its interruption is on plaintiff, who seeks to benefit thereby.</p> <p>9. Insane persons <@=a7 — “Interdiction” and “commitment” distinguished.</p> <p>The law provides two separate proceedings for dealing with persons of unsound mind: “Commitment,” under Rev. St. § 1768 et seq., which is a proceeding for the restraining and confining of insane persons for their own and the public’s protection, and is ex parte and in the name of the state; and “interdiction” under Civ. Code, arts. 389-426, inclusive, which deals with the civil and property rights of such persons; and the former proceeding is informal, and need not be set aside when the patient recovers, while the latter is highly formal, and requires all the solemnities of contested judicial proceedings, including, a formal judgment to restore civil rights after the mental derangement has ended.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Commitment.]</p> <p>10. Insane persons <&wkey;7 — Commitment to state asylum held not under provisions for civil interdiction.</p> <p>A proceeding to commit an insane person to a state asylum held taken under Rev. St. § 1768, and not under the provisions of the Civil Code relating to civil interdiction, notwithstanding the use of the word “interdicted” in the order of commitment.</p>

Landry; B. H. Pavy, Judge. Action by the International Harvester Company of America against the Union Irrigation Company, in which receivers were appointed. Prom a judgment striking items from receivers’ provisional account, the receivers, plaintiff, and others appeal.

<p>Appeal from Twentieth Judicial District Court, Parish of Terrebonne; I-I. M. Wallis, Jr., Judge.</p> <p>Benny Boudreaux was indicted for keeping a blind tiger, and he moved to quash the indictment.</p>

F. Bell, Judge. Action by the Coca-Cola Company and others against the Vivian Ice, Light & Water Company in damages and for an injunction to restrain illegal use of trademark. Judgment for plaintiffs, and defendant appeals.

Rogers, Judge. Proceeding by W. T. Bronson against the Harris lee Cream Company, Inc., for compensation under the Workmen’s Compensation Act. Erom judgment for defendant, plaintiff appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; R. D. Webb, Judge.</p> <p>Action by Mrs. A. G. McCrady and others against J. A. Sebastian and others, in which Ardis & Co., Limited, intervened. From an adverse judgment, plaintiffs appeal.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Action by S. C. Caldwell against the City of Shreveport. Judgment for plaintiff, and defendant appeals.</p>

<p>Suit by Charles E. Olson against the American Guaranty Company. On application by plaintiff for a writ of prohibition.</p>

E. Brunot, Judge. Suit by the State against Henry Hunsicker and another. From a judgment dismissing the suit on an exception of no cause of action, plaintiff appeals.

Prosecution of Mark Fleckinger and Bessie Johnson for operating a lottery. Application by the State, on the relation of R. H. Marr, District Attorney, for writs of certi-orari to review an order requiring the State to return to Bessie Johnson property to he used as evidence in prosecution of her and Fleckinger, and to prohibit delivery of such property.

ThSard, Judge. Action by Rafael Alcolea against Hugh E. Smith. From a judgment rejecting plaintiff’s demand for certain jewelry on his paying the amount for which it was pledged or on default of its surrender for $8,500 shown to be considerably less than its value, the plaintiff appeals.

Allen Borde-lon, Judge. Louis Desselles and others were tried on charges of burglary and larceny contained in separate indictments, and from a conviction of larceny they appeal.

X. Ransdall, Judge. 'Suit by the Pan-American Bank & Trust Company, through its liquidators, against the Tallulah Cotton Oil Company to foreclose a mortgage. Prom an order for executory process, the Dixie Refining Company, a stranger to the suit, appealed, claiming that it was aggrieved by the order.

<p>Appeal from Fifteenth Judicial District Court, Parish of Allen; Jerry Cline, Judge.</p> <p>Jack Wright and others were convicted of cattle stealing, and they appeal.</p>

<p>Appeal from Civil District .Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Helena Machado Douglass against the Equitable Life Assurance Society and another. Judgment for defendants, and plaintiff appeals.</p>

Dawkins, Judge. “Action by Eugene Scott against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiff, and defendant appeals, and plaintiff answers, praying for increase in award.

K. Skinner, Judge. Action by Mrs. David Landry against Bernard A. Monteleone to recover damages for personal injuries. Judgment for the plaintiff, and defendant appeals, and plaintiff prays that the amount of the judgment be increased.

<p> (Syllabus by Editorial Staf.) </p> <p>1. Criminal law <&wkey;67I — Introduction, of evidence in absence of jury not error.</p> <p>Where state placed witness on stand to prove a confession at a certain time and place, and, on defendant’s objection, jury was taken out and the witness examined, to determine whether the confession was voluntary, defendant cannot complain that the judge then, of his own motion, and over his objection, the jury still being out, called to the stand another person, who testified to another confession at another place about one hour before.</p> <p>2. Criminal law <&wkey;53l (I), 671 — State has burden of showing confession voluntary; court may excuse jury before determining admissibility of confession.</p> <p>When a confession is objected to, it is for the state to show the circumstances under which it was made — that is, that it was voluntary — and this must be done in the presence of the jury, in order that they may have the benefit of such circumstances to determine the weight to be given to the evidence to prove the confession, though the court may send the jury out and first determine for himself the question of the admissibility of the alleged confession, in order that, if he decides to exclude it, the jury may not be affected by any prejudicial matter preliminarily brought out.</p> <p>3. Criminal law <&wkey;53l (I) — Jury entitled to hear testimony as to qualifications of expert.</p> <p>Where objection was that witness had not qualified as an export, jury .was entitled to hear the testimony showing the qualifications of the witness, and court erred in sending the jury out and determining the witness’ qualifications.</p> <p>4. Witnesses &wkey;>246( I) — Judge may satisfy himself as to qualifications of expert or whether confession is voluntary.</p> <p>It is the duty of the counsel for the state to present its case, and the judge should refrain from assuming the rdle of counsel, or indicating a desire to assist either side; but it is entirely proper for him to inform himself on 'preliminary questions, such as the qualifications of-an expert witness and whether or not confession offered was voluntary.</p> <p>5. Criminal law <&wkey;479 — Physician without experience in mental diseases, not qualified as expert on insanity.</p> <p>A physician, who had no knowledge or experience with mental diseases or insane persons, was not competent to testify as an- expert on insanity.</p>

F. Bell, Judge. Suit by J. W. Martin against the Texas Company, to recover the value of oil delivered to defendant by the person in possession of a tract- of land sold to plaintiff for taxes. Judgment for the plaintiff for part of relief demanded, and both parties appeal.

<p> (Syllabus by the Court.) </p> <p>1. Shipping <@^27 — Sale of dredgeboat held to include derrick anchor barge necessary to operation of'dredge and spare parts of pump, constituting its main equipment.</p> <p>The sale .of a dredgeboat “together with her tackle, machinery, apparel and furniture, * * * the pipes and pontoons of the same, and including everything that may serve for the use and operation of said dredge,” includes a “derrick anchor barge,” shown to be- absolutely necessary to the successful operation of the dredge., as also spare parts of a pump constituting its main equipment.</p> <p>2. Municipal corporations <&wkey;>244(l) — Sales &wkey;>4(l) — Courts may determine character of contract from circumstances, and not form in which it was expressed; party estopped from claiming contract with public corporation in form of sale to be a loan which the corporation is powerless to make.</p> <p>Where the parties to a contract are competent to make it one of sale or of loan, as they see fit, courts may, under certain circumstances, look through the form in which it is expressed and determine its real intention from a consideration of those circumstances, but, where one of the parties is a public corporation, authorized to do one thing and prohibited from doing another, and the contract into which it had entered purports to be one that is authorized, the other contracting party can. have no standing in court to assert that it was intended to be one that is prohibited, and to ask the aid of a court in its enforcement as such. »</p> <p>O’Niell and Dawkins, JJ., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error <&wkey;994(2), 1005(1) — Jury are exclusive judges of credibility of witnesses, and approval of judge adds weight to verdict.</p> <p>The jury are the exclusive judges of the credibility of the witnesses, and of the weight and sufficiency of their testimony, and the sanction of the trial judge to their verdict, after hearing the witnesses in the case, adds weight to the presumption of its correctness.</p> <p>2. Landlord and tenant t&wkey;!69(6) — Evidence held to warrant recovery from landlord for injury to child failing from balcony.</p> <p>In an action for injuries to tenant’s child from falling through the banisters of a balcony, evidence held to warrant a verdict for plaintiffs.</p> <p>3. Landlord and tenant <&wkey;!50(l) — No duty rests on tenant to repair balcony in absence of custom.</p> <p>In the absence of a custom to that effect in the community, it is not the duty of a tenant to repair the balustrade of a gallery, and failure to make such repairs is not an act of negligence, under Oiv. Code, arts. 2692, 2695, 2716, 2717.</p> <p>4. Landlord and tenant 164(6) — Landlord bound to know whether building is safe for purpose for which rented.</p> <p>Landlord is bound to know whether his building is safe for the purposes for which he rents or authorizes its use, or is rotten or unsafe, and is answerable in damages to those who, being lawfully therein, are injured by reason of its defects, whether of original construction or caused by failure to make proper repairs, under Oiv. Code, arts. 670, 2322.</p> <p>5. Negligence <&wkey;( 19(6)— Contributory negligence must be alleged.</p> <p>It is erroneous to admit evidence of contributory negligence, in the absence of a special plea of such defense.</p> <p>6. Negligence ci&wkey;85(3) — Child three years old incapable of contributory negligence.</p> <p>In a personal injury action for the use and benefits of a child three years old, contributory negligence is not a defense, as a child of such tender age is incapable of contributory negligence.</p> <p>7. Damages &wkey;>l30(3) — $1,000 not excessive for injuries to qhild’s head.</p> <p>A verdict for $1,000 was not excessive for injuries to a child three years of age falling 12 feet from a gallery and probably fracturing its skull, and making its eyes black and blue, a condition which usually results from a fracture of the skull at the base, called ecchymosis of the orbitals, and changing it from a lively and friendly child to a quiet and timid one.</p>

Fleury, Judge. Proceedings by the testamentary executor of Jeanne Marie Guillon, deceased wife of Frank E. Fagot, Jr., for the allowance of fiis final account, opposed by Frank E. Fagot, Jr. From a judgment in favor of opponent, the executor and universal legatee appeal.

E. Reynolds, Judge. Separate suits by William Chatman, William Hardy, and Joe Combs against T. K. Giddens and another, consolidated for trial. Judgment for the defendants, in each cáse, and plaintiffs appeal.

Allen Borde-lon, Judge. Consolidated actions by William D. Haas, individually and for use of the Royal Exchange Assurance Insurance Company of London, England, by Henry H. Bordelon, individually and for use of the Virginia Fire & Marine Insurance Company, and by Victor P. Bordelon, against Walker D. Hines, Director General of Railroads. Judgments for plaintiffs, and defendant appeals.

Rogers, Judge. In the matter of the succession of Frank Tatter. Rule requiring heirs to show cause why they should not file a descriptive list of the property left by the decedent, and why the inheritance tax due should not be fixed, together tvith the fee of the attorney of the Collector, dismissed, and the Inheritance Tax Collector appeals.

Application by E. H. Peter for a writ of prohibition to a judge of the Criminal Dis-;rict Court to prohibit him from assuming jurisdiction as Judge, of tlie Juvenile Court for the Parish of Orleans in the case entitled State of Louisiana v. P. H. Peter, of that court.

<p>Appeal from Twenty-Second Judicial District Court, Parish of Bast Baton Rouge; H. F. Brunot, Judge.</p> <p>Action by Carl B. Luikart against the Ya-zoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Incest &wkey;6 — Single act of intercourse “cohabiting.”</p> <p>A single act of sexual intercourse constitutes “cohabiting-’ within Act No. 78 of 1884, declaring guilty of incest whoever within prohibited degrees of consanguinity for marriage knowingly intermarry or cohabit without marriage.</p> <p>LEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Cohabit— Cohabitation.]</p> <p>2. Indictment and information @^>176 — Intercourse on date other than charged in incest indictment may be proved.</p> <p>Proof of intercourse at times other than on the date charged in the indictment for incest is properly admitted.</p> <p>3. Criminal law &wkey;9l9(3) — Remarks of district attorney in argument held not ground for setting aside verdict.</p> <p>Remarks of district attorney to the effect that he appeared before the jury as the elected representative of the people and under oath, required to act impartially, while the defense attorneys were defendant’s hired counsel, hold merely argumentative, and not ground for setting aside the verdict.</p> <p>O’Niell, J., dissenting in part.</p>

In the matter of Robert E. Courtin, praying for confirmation as natural tutor and application by Robert E. Courtin for a writ of babeas corpus against A. Oscar Browne and others. Cases consolidated. Application for writs of prohibition directed to Hugh C. Cage, Judge of Divisional A Civil District Court.

Certiorari from Court of Appeal, Second Circuit. Action by U. S. Bartmess against B. It. .T-Tendricks, to contest an election to the office or mayor of the town of Cedar Grove. The district court annulled the election of defendant, but awarded the office to plaintiff, and the Court of Appeal affirmed the judgment, and defendant applies for cer-tiorari or writ of review.

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Suit by Vincent Serio against the New Orleans Railway & Light Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from First Judicial District Court. Parish of Caddo; J. R. Land, Judge.</p> <p>Action by John O. Hall against the Shreveport Railways Company. Judgment for the defendant, and plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>Criminal law &wkey;j|208(3) — Fines <&wkey;>l I — Statute held to impose fine or, “in lieu thereof,” imprisonment, not imprisonment in default of payment of fine.</p> <p>The language, “shall be liable to a fine of $25.00 or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison,” as used in Act No. Ill of 1890, means fine, or imprisonment, at the discretion of the court, and not imprisonment in default of payment of a fine.</p> <p>O’Niell, J., dissenting.</p>

Rogers, Judge. Suit by Augustin Lesseigne and others against the Cedar Grove Realty Company, Incorporated, upon a note. Judgment for plaintiffs, and they appeal for correction of an error in amount, and defendant answered, asking reversal. Prentiss E. Edrington, Jr., alleging himself aggrieved by the judgment, intervened, and also appealed.

K. 'Skinner, Judge. Action by J. P. O’Leary, doing business as the Jefferson 'Construction Company, against the Board of Port Commissioners for the Port of New Orleans. From judgment for plaintiff, defendant appeals.

Action ny M. E. Roger against Milliken & Farwell. In re Milliken & Farwell applying for writ of certiorari or review to the Oourt of Appeal, Parish of Orleans. From a judgment dismissing the case plaintiff appealed to the Court of Appeal for the Parish of Orleans, where the judgment was reversed, and the case remanded for trial.

D. Webb, Judge. Action by R. W. Vance, curator, of an interdict against \V. E. Noel, Jr., and another, who called in their vendor in warranty to defend the title. From a judgment sustaining warrantor’s exception of no cause of action, plaintiff appeals.

H. Pavy, Judge. In the matter of the estate of Av.enant De-shotels, deceased. Benoit Deshotels, administrator de bonis non, filed an account which Arcadus Vidrine and others opposed. From a judgment, the named opponent appeals.

<p> (Syllabus l)¶ Editorial Staff.) </p> <p>Divorce <&wkey;27(7) — Cruel treatment held to entitle wife to separation from bed and board.</p> <p>. When a husband on various occasions ordered his wife out of the house, spat at her in the presence of servants, and charged her with being a worthless woman and of no assistance to him, his conduct, where persistently repeated, amounted to cruel treatment, and entitled the wife to a separation from bed and board under Rev. Oiv. Code, art. 138.</p>

• Suit by Mrs. Jeanne C. L. Schreiber against the widow and heirs of Ferdinand Beer to revive a judgment against the succession and to obtain a judgment against the widow and heirs individually for the debt represented by the judgment. Suit dismissed .on an exception of no cause of action, and plaintiff appeals.

Contempt proceedings by A1 Hundley, City Judge, against J. E. Eoisy, Mayor. Judgment adjudging defendant in contempt and he applies for writs of certiorari and prohibition.

Certiorari from Court of Appeal, Second Circuit. Action by M. B. Smith against the Little Pine Lumber Company, in which George C. Vaughan & Sons intervened and A. Lee Honeycutt filed a third opposition. Judgment for plaintiff and intervener. Judgment for intervener on the opposition was reversed by the Court of Appeal, and intervener applies for certiorari or writ of review.

<p>Appeal from Second Judicial District Court,- Parish of Webster; Robert Roberts, Jr., Judge.</p> <p>Suit by H. L. Munn against F. D. Hoyt and others. Judgment in favor of plaintiff and defendants appeal.</p>

<p> (Syllahus hy Editorial Staff.) </p> <p>1. Evidence <&wkey;32 — Judicial cognizance not taken of city ordinance.</p> <p>The Supreme Court on appeal cannot take judicial cognizance of the provisions of a city ordinance.</p> <p>2. Municipal corporations <§»590, 661 (1) — New Orleans vested with police power, including power to regulate use of streets.</p> <p>The General Assembly has vested in the city of New Orleans so much of the police power as is required for the discharge of its functions, including the power to enact and enforce all ordinances necessary for the protection of the lives, property, health, comfort, convenience, and general welfare of its inhabitants, and including the power to regulate the use of the streets and to maintain them in safe condition.</p> <p>3. Municipal corporations <&wkey;>661(l) — No property right in streets for purposes of private business unless, such business is a public service or convenience.</p> <p>The streets of the towns and cities being among the things that are “public” and “for the common use,” no individual can have a property right in such use for the purposes of-his private business, unless in the nature 'of a public service or convenience, such as would authorize the grant by the state or by the particular city or town acting under the authority of the state, and in such cases the right can be exercised only in accordance with the conditions of the grant; and an individual may accept the grant with the conditions imposed, or may refuse to accept the conditions, in which case there is no grant.</p> <p>4. Municipal corporations <&wkey;66l(2) — Ordinance forbidding use of certain streets as stands for vehicles operated for hire valid.</p> <p>New Orleans Ordinance No. 6186, forbidding the use of certain streets as a stand for any vehicle operated for hire, is not unnecessary, arbitrary, discriminating, unreasonable, confiscatory, illegal, null, unconstitutional, void or ultra vires, notwithstanding Ordinance No. 6173, prohibiting the parking of vehicles between certain places for longer than 15 minutes.</p> <p>5. Constitutional law <&wkey;2II — Equal protection clause does not prevent reasonable classifications by a city, and unreasonableness must be proved.</p> <p>Equal protection of the Fourteenth Amendment to the United States- Constitution does not take away from a state or a municipal corporation the power to classify in the adoption of police laws or regulations, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without reasonable basis, and is therefore purely arbitrary, and one who assails the classification in such law or regulation must carry the burden of showing that it does not rest upon any reasonable basis.</p> <p>6. Constitutional law <&wkey;>2l2 — Fourteenth Amendment does not hamper exercise of police power.</p> <p>The Fourteenth Amendment to the United States Constitution was not intended to hamper or to authorize the courts to interfere with the state’s exercise of its police power, either directly or through the- action of its municipal bodies, in the regulation and promotion of the morals, health, comfort, convenience, and safety of her citizens.</p> <p>On Rehearing.</p> <p>7. Municipal corporations ©=3703(3) — Ordinance held to permit vehicles for hire to park for limited time.</p> <p>. New Orleans Ordinances, Nos. 6173, 6186, the first prohibiting the use of certain streets as stands for vehicles operated for hire, and the second prohibiting parking of vehicles in certain places for more than 15 minutes, together permit vehicles for hire to be parked in' the prohibited area for less than 15 minutes. ’</p> <p>Provosty, C. X, dissenting.</p>

<p>Suit for injunction by Allen H. Johness against Edward Stoulig, Registrar of Voters.</p>

<p>Appeal from Recorder’s Court, Parish of New Orleans, Traffic Division; John M. Duffy, Recorder.</p> <p>W. E. Le Blanc was convicted of a violation of an ordinance of the City of New Orleans relative to operating “to hire” automobile, and appeals.</p>

Boone, Judge. Suits by the Frost-Johnson Lumber Company against the Heirs of Lottie A. and Ernest N. Sailing and others were tried together. Judgment for defendants overruling plaintiff’s plea of prescription and rejecting plaintiff’s demand in each case, and plaintiff appeals.

<p> (Syllabus by the Court.) </p> <p>I. Appeal and error <&wkey;359, 364, 386(1) — District court clerk in country parish in absence of judge may grant order of appeal and fix amount of bond; appellant cannot be prejudiced by clerk’s error in fixing return day or lodging the appeal within the minimum statutory delay; where appeal is made returnable in 9 instead of the statutory minimum of 15 days and. is lodged on tenth day, it is within the delay fixed by law.</p> <p>The clerk of the district court, in a country parish, is authorized, in the absence of the judge from the parish and upon the showing of such absence by the oath of the litigant or his attorney, to grant an order of appeal, and, in certain cases fix the amount of the bond, and, within certain limits, the return day; and the litigant, seeking the appeal, cannot be prejudiced by his error in fixing the return day within the minimum delay fixed by the statute; nor is the appellant prejudiced by lodging the appeal in this court within such delay, though the appellee need not answer or otherwise act until the delay has expired; and, where an appeal is made returnable in 9 days, instead of the minimum of 15 days, fixed by statute, and is lodged in this court on the tenth day following the order, it is within the delay fixed by law and also within the days of grace from the return day fixed by the clerk.</p> <p>On the Merits.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Mines and minerals <&wkey;>58 — Where lessee was not bound, held lessor was not, and had the right to withdraw though consenting to correction of description in lease.</p> <p>Where lessee bound himself to nothing in a lease, lessor was not bound whether or not the property was correctly or incorrectly described therein, and any subsequent change in the description could not have purged the agreement of its suspensive, potestative condition nor want of mutuality and consideration which vitiated it ab initio, and, even if lessor had consented to the correct description, he would still have the right to withdraw, as it did not bind lessee.</p> <p>3. Mines and minerals &wkey;?78(7) — Evidence held not to prove acceptance of check for payment of overdue rentals to prevent forfeiture for failure to drill.</p> <p>Evidence held not to prove acceptance of a check for overdue rentals required to be paid to prevent forfeiture in case of failure to drill.</p>

W. Jones, Jr., Judge. W. W. Wilson was indicted under two separate indictments for obtaining money under false pretenses and under an other indictment . for embezzlement. From . judgments in each case quashing the indictments, the State appeals.

<p> (Syllabus by- Editorial Staff.) </p> <p>Divorce <gx=U29(l6) — Evidence held insufficient to prove adultery.</p> <p>Evidence held insufficient to warrant the granting of a divorce on the ground of adultery.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Landlord and tenant <&wkey;29(l) — No action maintainable on lease of house to be used for prostitution.</p> <p>Lease of house built in segregated district and leased for purposes of prostitution was void under Oiv. Code, art. 1892, and an action could not be maintained by landlord on notes given for rental and for provisional seizure.</p> <p>2. Courts <&wkey;90(l) — Single decision cannot establish a jurisprudence.</p> <p>A single decision cannot establish a jurisprudence, particularly when the point decided was not thoroughly investigated.</p>

Applicátion by Antonio Damico and another for the appointment of an administrator for the succession of Jake Damico, opposed by Armantine Rolland Damico. The last-named party was appointed, and a sus-pensive appeal was denied, and the original petitioners apply for writs of certiorari and mandamus.

<p> (Syllabus by Editorial Staff.) </p> <p>Courts <&wkey;>224(7)— Supreme Court held not to have jurisdiction of appeal in action for license tax.</p> <p>The Supreme Court had no jurisdiction of an appeal by the state in an action for license taxes amounting to $130, where neither the validity, legality, nor constitutionality of the tax was involved, under Const. 1921, art. 7, § 10.</p>

<p>Appeal from Twelfth Judicial District Court,. Parish of De Soto; John H. Boone, Judge.</p> <p>Suit by the Continental Supply Company against the Fisher Oil Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p> (8i/llab'iis T)y Editorial Staff.) </p> <p>On Rehearing.</p> <p>I.Judgment <&wkey;>9IO(4) — Prescription not suspended pending appeal; “rendition.”</p> <p>Within Civ. Code, art. 3547, prescribing judgments after 10 years from rendition, the date of rendition is the date of the judgment itself, and not the date on which it becomes final, so that an appeal does not prevent the beginning of the period of prescription.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Rendition.]</p> <p>2. Judgment <&wkey;910(4) — Prescription against Supreme Court judgment runs during penden-cy of motion for rehearing.</p> <p>Where the Supreme Court reversed a judgment denying recovery, which was not a judgment for money within the prescription statute (Civ. Code, art. 3547), and rendered a judgment for the plaintiff, prescription against that judgment was not suspended by the pendency of a motion for rehearing.</p> <p>3. Judgment <@=>910(1) — Unambiguous provision cannot be disregarded to effect spirit of law.</p> <p>Statutes of prescription are essentially arbitrary, and a plain, unambiguous provision, arbitrarily fixing the time when prescription of a judgment commences, cannot be disregarded in an effort to pursue the spirit of the statute, in view of Civ. Code, art. 13.</p> <p>Provosty, C. J., and St. Paul, J., dissenting.</p>

Appeal froln Civil District Court, Parish of Orleans; E. K. Skinner, Judge. Suit by the Automobile Finance Securities Company against Duggan, Incorporated, in which the Carolina Portland Cement Company intervened as third opponent. From a judgment dismissing opponent’s suit, it appeals.

Certiorari from Court of Appeal, Parish of Ascension. Action by J.. L. Philips & Co., Incorporated, against Charles Barber and another. Judgment for plaintiff. The defendant Henry Pi-card brings certiorari or writ of review to the Court of Appeal, Parish of Ascension, to review an adverse judgment.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;639(I)— Affidavit held to charge violation of Building Code.</p> <p>Affidavit that defendant unlawfully applied a residence to the use of a business building for which a better construction is required under the Building Code, without making the construction conform to requirements for such use, charges a violation of the Building Code, in view of sections 9, 10, 11, 98, placing buildings in different classes according to their use, and forbidding the use of a building in one class for purposes appertaining to another class.</p> <p>2. Municipal corporations c&wkey;63l (2) — Section of Building Code fixing punishment for violation of its provisions held applicable to use of . building of one class for purposes appertaining to another.</p> <p>Building Code, § 320, making a person who constructs, alters, removes, moves, or maintains a building or structure in violation of the provisions of the Code guilty- of a misdemean- or, and prescribing the punishment therefor, Vield applicable to the use of a building in one class for purposes appertaining to another class.</p> <p>3. Municipal corporations <&wkey;>639(l) — Whether residence building was used for business purposes before passage of ordinances held question of fact not to be determined on motion to quash affidavit charging violation of ordinances.</p> <p>In prosecution for using a residence for business in violation of the Building Code prohibiting use of building in one class for purposes appertaining to another class, the question of whether the building had been in operation for business purposes before the passage of the ordinance was one of fact to be determined on the trial of the merits, and could not be considered on a motion to quash the affidavit.</p> <p>4. Municipal corporations <&wkey;594(2) — Building Code held not ultra vires on ground that but one general penal clause covered entire Code.</p> <p>Under Act No. 156 of 1910, the Building Code of the city of Shreveport, containing 322 sections, each defining a separate offense,, held not ultra vires on the ground that there was only one general penal clause covering the entire Code.</p> <p>5. Municipal corporations &wkey;>601 — City authorized to enact building Code.</p> <p>Under Act No. 220 of 1912, a city is authorized to enact a Building Code.</p> <p>6. Municipal corporations <&wkey;625, 626 — Building Code held not discriminatory, unjust, or unreasonable.</p> <p>The provisions of the Building Code of the city of Shreveport held- not amenable to the charge of being discriminatory, unfair, unjust, or unreasonable.</p>

C. Cage, Judge. Suit by George Sladovich, Jr., against Mrs. M. Glaser for the execution of a contract for the sale of real estate. From a judgment sustaining an exception of no cause of action and dismissing the suit, plaintiff appeals.

Petition by the State, on the relation of E. R. Braswell, for a writ of mandamus against Mrs. A. M. Hallam and others. From a judgment allowing the peremptory writ, defendant Hallam appeals.

<p> (Syllabus by the Court.) </p> <p>1. Libel and slander <&wkey;ll4 — Where the slanderous charge is made in the presence of slandered, who promptly denies it, nominal award is sufficient.</p> <p>Where the slanderous charge is made in the presence of the party slandered, who promptly denies it, and the witnesses are not interested in the parties and not shown to have given the matter any further thought, the damages suffered by the plaintiff are negligible; and a nominal award, as a solace for wounded feelings, will suffice.</p> <p> (Additional Syllabus by Uditorial Staff.) </p> <p>2. Libel and slander <&wkey;l2l(2) — Where the damage from slander was negligible, a judgment for $4,000 reduced to $300.</p> <p>An allowance of $4,000 in an action for slander, where the damages were negligible, held excessive, so that it should be reduced to $300.</p>

Action by Pearl Wight, receiver of the Texas & Pacific Bailway Company, against Samuel Zemurray. Judgment for plaintiff reversed by the Court of Appeal, and J. B. Lancaster and Charles L. Wallace, receivers, successors of Pearl Wight, apply for certio-rari or writ of review.

King, Judge. In the matter of the succession of Mrs. Letitia Duffy Hagan. Proceedings to contest her will. Prom judgment for defendant, plaintiffs appeal.

W. Jones, Jr., Judge. William Stephens was convicted of entering a store with intent to commit a crime and stealing property, and he appeals.

<p> iSyllabus by Editorial SJaff.) </p> <p>J. Larceny <&wkey;43 — -Evidence of army service during war inadmissible to prove honesty.</p> <p>Evidence that accused had served in the late war, had gone overseas, and had been honorably discharged, is not admissible in a prosecution for larceny for the purpose of proving the honesty of accused.</p> <p>2. Criminal law <&wkey;683(l) — Testimony by state’s witness contradicting statement of defendant is admissible in rebuttal.</p> <p>After accused had closed their evidence, it was proper to admit in rebuttal testimony by a witness for the state contradicting a statement by one of the defendants.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>Divorce &wkey;sl72 — Decisions in two prior .suits between same parties on same facts and same ground held conclusive.</p> <p>In. a suit for divorce under Act No. 269 of 1916, on the ground that parties had been living separate and apart continuously for .a period of seven years, where two prior cases between the same parties on the same facts and on the same ground had been dismissed, and no appeal taken, the result of the former suits is conclusive in the present suit.</p>

<p>Action by the Morning Star Baptist Church of East Baton Rouge against Joseph Martina. On application by defendant for cer-tiorari or writ of review to the Court of Appeal.</p>

Action by the Night & Day Bank of St. Louis against the First National Bank of Shreveport. From a judgment dismissing the action, plaintiff appealed to the Court of Appeal, Second Circuit, which maintained the suit. Defendant applies’ for a writ of certiorari to review the decree of the Court of Appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>I.Gas &wkey;>l8 — Gas company held negligent in failing to close gas outlet in connecting main with apartment.</p> <p>Where gas company, in connecting its main with an apartment, left gas outlet open, it was liable for death of child asphyxiated by escaping gas; the failure of the company to dose the outlet constituting negligence.</p> <p>2. Gas (@=»I9 — Tenants who had never used gas held not negligent in failing to discover that gas company had left outlet open.</p> <p>Tenants’ of apartment who had never before used gas were not negligent in failing to discover that gas company, in making connection, had left gas outlet open.</p> <p>3. Gas &wkey;5Í7— Gas company in connecting main with service pipe of house is required to ascertain that outlets in house are closed.</p> <p>A gas company connecting its main with the service pipe of a house has the dirty of ascertaining that the outlets in the house are closed, especially those which it has itself left open, being held to a degree of care commensurate with the dangerous character of the substance handled.</p> <p>4. Death &wkey;>99(3) — $7,500 for death of child held excessive.</p> <p>Verdict of $7,500 to each parent for death of three year old child is excessive, and will be reduced to $2.500 to each parent.</p> <p>5. Costs 4&wkey;234 — Of ap.peal taxed against plaintiffs on reduction of judgment from $15,-000 to $5,000.</p> <p>Where judgment of $7,500 for each parent was reduced on appeal to $2,500 to each, the costs of appeal will be taxed against the parents.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Abatement and revival <&wkey;5 — Petitory action may be brought by one against whom pos-sessory action pending.</p> <p>Under Act No. 202 of 1920, amending and re-enacting Code Prac. arts. 55, 56, one sued in a possessory action may bring a petitory action for the same land prior to the judgment in the possessory action.</p> <p>2. Abatement and revival <&wkey;15 — Petitory action does not affect possessory action, um-less plaintiff successful when possessory action abates.</p> <p>A petitory action brought pending a pos-sessory action against plaintiff under Act No. 202 of 1920, amending and re-enacting Code Prac. arts. 55, 56, does not affect the posses-sory action, unless plaintiff is successful in the petitory action, in which event the possessory action, if still pending, will abate.</p> <p>3. Abatement and revival c&wkey;>5 — Amendatory act, permitting petitory action where posses-sory action pending, repeals former prohibition against such action.</p> <p>Act No. 202 of 1920, amending and re-enacting Code Prac. arts. 55, 56, and permitting a petitory action to be brought by one against whom a possessory action is pending, necessarily conflicts with and repeals the prohibition contained in such articles prior to the amendment, especially as it was the clear intention of the Legislature that the articles as amended and re-enacted should be substituted for the old.</p> <p>4. Statutes &wkey;>!l7(8) — Title of act amending and re-enacting articles of Code of Practice held sufficient.</p> <p>The title of Act No. 202 of 1920, entitled “An act to amend and re-enact articles 55 and 56 of the Revised Code of Practice of 1870,” sufficiently indicates the object of the act within Const. 1913, art. 31.</p> <p>5. Constitutional law <&wkey;>l06 — Act permitting petitory action while possessory action pending does not unconstitutionally impair rights.</p> <p>Act No. 202 of 1920, amending Code Prac. arts. 55, 56, to permit a petitory action by one against whom a possessory action is pending, is not unconstitutional as impairing the rights of persons instituting a possessory action pri- or to the enactment of such afet, as it merely pertains to the remedy.</p> <p>6. Corporations &wkey;>32(7)— Secretary of State’s certificate held to raise presumption overcoming evidence that corporation not legally organized.</p> <p>Under Act No. 267 of 1914, § 2, the certificate of the Secretary of State attached to a charter of incorporation raised a presumption of legal corporate existence, overcoming evidence of the absence of any record of the conveyance of the land mentioned in the charter as having been conveyed in payment of stock, especially where it is probable that there was only a misdescription of the land in the charter.</p> <p>7. Adverse possession <&wkey;>40 — Prescription; grantor, by merely resuming possession and paying taxes, cannot acquire title in less than 30 years.</p> <p>Though a grantee of land and one to whom he conveyed failed to pay therefor, the grantor Could not acquire title thereto in less than 30 years by merely resuming and holding and paying taxes without any reconveyance, and without the knowledge or acquiescence of the grantee or his successor in title who was the owner of record.</p> <p>8. Frauds, statute of &wkey;>63(l) — Parol evidence not admissible to show abandonment or surrender of premises.</p> <p>As against those claiming under a legal chain of title from former owners of land, it cannot be shown by parol evidence that they abandoned or surrendered the property to an earlier owner who had not been paid for the land, as, under Oiv. Code, art. 2275, title to real estate cannot be established by parol.</p> <p>9. Deeds <&wkey;77 — Sales; deed cannot be collaterally attacked when parties to deed not parties to suit.</p> <p>In a petitory action, where the deeds under which plaintiff claims are valid on their face, and the parties thereto are not parties to the suit, they cannot be collaterally atacked as secured by misrepresentation and without payment of the purchase price, as a deed valid on its face may only be attacked by one having an interest to do so in an action to which the parties to the deed are made parties.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Wynne G. Rogers, Judge.</p> <p>Action by Oscar J. Lester against John P. Burnett. Prom judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law &wkey;j(l49 — Refusal of withdrawal of plea of not guilty to allow motion to quash indictment in trial judge’s sound discretion.</p> <p>Leave to withdraw plea of not guilty to afford opportunity to file motion to quash the indictment rests in the discretion of the trial judge, and bis refusal will not be interfered with, except for clear abuse of such discretion.</p> <p>2. Criminal law &wkey;?30l — No abuse of discretion in refusing withdrawal of plea of not guilty to allow motion to quash indictment.</p> <p>There was no abuse of discretion in refusing to allow withdrawal of plea of not guilty to afford opportunity to file motion to quash the indictment because of irregularities preliminary to selection of the grand jury which found the indictment, defendant having waited more than a year, and till the day of trial, before moving to withdraw; his excuse of having several times called on the clerk of court for the papers before succeeding in seeing them being insufficient.</p> <p>3. Jury &wkey;>i3l(4) — Right of voir dire examination as to' giving benefit of reasonable doubt stated.</p> <p>Defendant has no right to ask a juror on his voir dire whether he will give him the benefit of a reasonable doubt, at least in the absence of evidence tending to show bias on the part of the juror, and even then it should be asked only after the judge, or counsel, with the consent of the judge, has explained to the juror bis duty in the premises, and what is meant by a reasonable doubt.</p> <p>4. Jury <&wkey;J3l(4) — Not proper to ask juror on voir dire whether he will give benefit of reasonable doubt in respect to law.</p> <p>Under no circumstances is it proper to ask a juror on his voir dire whether he will give defendant the benefit of a reasonable doubt in respect to the law; it being a juror’s duty to accept the law, as given to him by the court, so he should not be impressed with the idea that he has a right to entertain a reasonable doubt concerning the law as thus given.</p> <p>5. Homicide <&wkey;>339 — Exclusion of evidence to show absence of malice aforethought harmless in view of verdict.</p> <p>Exclusion of evidence, admissible, if at all, only to show absence of malice aforethought, was cured by the verdict convicting of shooting, not with intent to murder, but with intent to kill.</p> <p>6. Homicide &wkey;>l8l — Witnesses &wkey;>269(4)— Evidence as to provocation held admissible, and cross-examination of defendant’s wife as to truth of her statements to defendant was proper.</p> <p>In determining defendant’s claimed belief in a statement, claimed to have been made to him by his wife, of an insult offered to her by the man whom defendant afterwards shot, the truthfulness of that statement was proper for the jury to consider; so that the question to the wife on her cross-examination whether the statement which she testified that she made to defendant was a correct statement of what had occurred was directly connected with the examination in chief.</p> <p>7. Witnesses <&wkey;330(2) — Question on cross-examination admissible to test credibility.</p> <p>The question on cross-examination of defendant’s wife, who had testified to making a statement to defendant of an insult offered to her by the man whom defendant shot, relied on to show absence of malice aforethought, whether the statement she made to defendant was a correct statement of what had taken place, was admissible to test her credibility.</p> <p>8. Witnesses <&wkey;32l — Where put on stand by defendant, may be impeached by state though subpoenaed by it.</p> <p>That the state had subpoenaed a witness did not debar it from impeaching him; defendant, and not it, having put him on the stand.</p> <p>9. Witnesses <&wkey;332 — Discretionary to allow state, after defendant had closed, to recall witness to lay foundation for impeachment.</p> <p>It is in the court’s discretion to allow the state, after defendant has closed his case, to recall his witness for purpose of laying foundation to impeach him, especially where notice of intention to recall for such purpose had been given before defendant rested.</p> <p>10. Criminal law <§=5665(7), 1153(5) — Discretionary to allow one in court during trial, but not summoned, to testify, though witnesses had been sequestered, and discretion will not be interfered with.</p> <p>Though all the witnesses subpoenaed had been sequestered, the fact that a person not summoned and not known to be needed had been in the courtroom throughout the trial did not necessarily call for exclusion of him from the witness stand, when the state asked to have him called to impeach a witness for defendant, but whether he should bo permitted to testify was in the sound discretion of the trial court, not to be interfered with in the absence of proof of fraud on the part of the prosecution.</p> <p>11. Witnesses <&wkey;398(2) — Where there is a mere attempt to contradict foundation to impeach. not required.</p> <p>Where the state is merely seeking to rebut testimony of defendant's witness by showing that an occurrence was different from what she had testified, there is no occasion for laying a foundation for impeachment.</p> <p>¡2. Homicide <§=5338(5) — Admission of evidence harmless in view of verdict.</p> <p>The sole object of state’s testimony being to show that the shooting was with malice aforethought, its admission, if erroneous, was harmless; the verdict excluding such malice.</p> <p>13. Criminal law <&wkey;>92l — Error in ruling manifestly harmless disregarded.</p> <p>Any error in ruling of trial judge, in admitting or excluding evidence, when manifestly not prejudicial, is not ground for setting aside the verdict.</p> <p>14. Criminal law <&wkey;>88l(2) — Indictment and information <&wkey;>l9l(4) — Verdict permissible under indictment for shooting with intent to murder stated.</p> <p>Under an indictment for shooting with intent to murder, the statute denouncing nothing else, there may be simply a verdict of guilty as charged, or guilty of shooting with intent to kill, or not guilty; a verdict of .assault with a dangerous weapon, assault and battery, or simple assault would be unresponsive to the charge.</p> <p>15.Criminal law <&wkey;5968(5, II), 972 — Motion in arrest directed to errors patent on the face of the record, and failure to allow withdrawal of plea or ^qualification of jurors not ground for motion.</p> <p>Motion in arrest of judgment must be directed against errors patent on the face of the record, and so may not be based on refusal to permit withdrawal of plea of not guilty and filing of motion to quash, or on the ground of jurors having been disqualified.</p> <p>16: Criminal law <&wkey;923(l) — Prior diligence necossary for new trial for disqualification of juror.</p> <p>That disqualification of a juror may be ground for new trial, defendant must show that he did not know thereof when he accepted the juror, and could not then have ascertained by due diligence, and that such diligence was exorcised by examination of the juror on his voir dire, and that he answered falsely.</p> <p>17. Jury <§=47 — Juror not disqualified by temporary absence from parish.</p> <p>A juror is not disqualified by temporary absence from the parish of his residence, especially when it -is to be of short duration.</p> <p>18. Jury <§=583(3) — Juror not disqualified by waiting as deputy sheriff on grand jury.</p> <p>One is not disqualified as a juror by waiting as a deputy sheriff on the grand jury which found the indictment; the proceedings of that body being secret.</p> <p>St. Paul, J., dissenting in part.</p>

Judicial District Court, Parish of Rapides; Jas. Andrews, Judge. Consolidated actions by Eva Walker against Whittington Walker, in which defendant filed a rule requiring plaintiff to show cause why decree therein rendered should not he modified so as to award defendant custody of child previously awarded plaintiff, by Whittington Walker against Pearley Myers and wife, in which Eva Walker intervened, and by Whittington Walker against Eva Walker.

F. Porter, Jr., Judge. Louis. Frusha was informed against for having obtained, and for having attempted to obtain, money and property by means of the confidence game. Defendant’s motion to quash the bill of information urns sustained, and the State appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; T. F. Bell, Judge.</p> <p>Suit by John Glassell against the Richardson Oil Company and others. From judgment rejecting plaintiff’s demand, plaintiff appeals.</p>

Proceedings on. a petition filed in the mortuary proceedings on the succession of Nellie Barrett Manning by Patrick Manning. Prom a judgment for defendants, the legal .representative of the succession of Patrick Manning appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>Municipal corporations &wkey;j705(2) — Truck driver not liable for collision in sudden turn to avoid collision impending through another’s fault.</p> <p>Where the driver of an automobile approaching a street intersection continued on his course on the unwarranted assumption that a truck on the intersecting street would turn the corner, and the track driver, to avoid a collision, made a sudden turn to the right, but collided with the automobile because it also turned, the truck driver was not responsible for the accident.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Corporations <&wkey;>553(6) — President’s use of .moneys for benefit of another corporation held irregular and unauthorized.</p> <p>The act of the president of an electric light and power company in withdrawing money from its bank deposit and using it for the benefit of another corporation was irregular and unauthorized, though the books of the electric company showed an account in bis favor, where the amount thereof was insufficient to cover the amount withdrawn, and the withdrawals were not charged to that account) and his account showed no balance in his favor at the time he began using the money for the benefit of the other corporation.</p> <p>2. Corporations 4&wkey;553(6) — That president held corporation’s notos did not justify his use of its money.</p> <p>That the president of an electric light and power company had taken its notes, secured by a mortgage, for an indebtedness, did not justify his act in using its money for the benefit of another corporation, of which he was president, especially where it was negotiable, and had been transferred as collateral for a loan.</p> <p>3. Corporations <&wkey;553 (6) — Receiver appointed, where president was using funds for benefit of another corporation.</p> <p>Where the president of an electric light and power company was using its money irregularly and without authority to defray the expenses of a xfiantation owned by another corporation, of which he was president, a receiver should be appointed, and where he owned a majority of the stock, and was in a position to elect his own board of directors, and through them the president, such appointment should not be denied because of the court’s power to suspend him, under Act No. 267 of 1914, § 18(c).</p>

<p>Appeal from Nineteenth Judicial Court, Parish of Iberia; James Simon, Judge.</p> <p>Suit by Leon Dreyfus against the City of New Iberia. From a judgment for plaintiff for insufficient relief, both parties appeal.</p>

<p>Appeal from First Judicial District Court, Parish of Oaddo; E. P. Mills, Judge.</p> <p>Action by G. W-. Duke against Crawford, Jenkins & Booth, Limited. From a judgment dismissing the suit, plaintiff appeals.</p>

<p>Appeal from Eirst Judicial District Court, Parish of Caddo; J. H. Stephens, Jr., Judge.</p> <p>Action by Mrs. M. G. Swann against E. A. Rabb and others. Erom a judgment for defendants, plaintiff appeals.</p>

<p>A-ppeal from Civil District Court, Parish of Orleans; E. K.’ Skinner, Judge.</p> <p>Proceeding on the succession of Thos. L. Macon, in which Mrs. Grace Dannell Renf-bert took a rule on the CanaLCommercial Trust & Savings Bank for the delivery to her of certain stock. Erom a judgment in favor of the plaintiff in rule, the defendant in rule appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Master and servant <®=j405(4) — Evidence held to show compensable injury to arm.</p> <p>In a suit for compensation under the Employers’ Liability Act for the loss of an arm amputated when the attending physician discovered an infected bone, evidence held to show that plaintiff, a laborer around an oil-drilling apparatus, was struck on the arm and injured by the engine.</p>

Certiorari from Criminal District Court, Parish of Orleans. Contempt proceeding by the State, on the relation of Richard A. Dowling, Judge, against Stanley W. Ray and others. The defendant named was found guilty, and he applies for writs of certiorari and prohibition.

<p>Appeal from Fourteenth Judicial District Court, Parish -of Avoyelles; S. Allen Borde-lon, Judge.</p> <p>Action by the Douglas, Burt & Buchanan Company against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Appeal and error c&wkey;>l206 — Judgment of appellate court enforceable by lower court.</p> <p>Under Code Prac. arts. 617, 618, 915, the execution of judgments rendered by appellate courts belong to the courts by which the causes were tried in the, first instance.</p> <p>2. Appeal and error <&wkey;>1206 — Execution judgment cannot be executed until recorded In lower court, and injunction will lie against attempt to so execute it.</p> <p>Under Code Prac. arts. 619, 620, the judgment of an appellate court cannot be executed until recorded in the records of the trial court, and if an attempt is made to execute it prior to such recordation, an injunction should issue as a general rule to arrest its execution.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Carriers <@==>318(5) — Evidence held to show street car passenger thrown from steps by bounce due to emergency stop.</p> <p>Evidence held to show that a street car passenger who was on the steps when the car started did not step from the car while moving, but was carried on the steps almost to the next street, and was then thrown therefrom by the car giving a bounce due to the conductor’s signal for an emergency stop.</p> <p>2. Carriers <S&wkey;298(l)~ Act of conductor in signaling for emergency stop while passenger on steps held negligence.</p> <p>Where a female passenger, 69 years old and weighing 170 pounds, had not alighted when the car started and was carried nearly to the next street where cars customarily stopped without signal, the act of the conductor in unnecessarily signaling for an emergency stop causing a bounce that threw the passenger from the car was negligence.</p> <p>3. Damages <©=»132(15) — Judgments for $9,000 for injuries from being thrown from street car held adequate.</p> <p>Judgments for $9,000 in favor of a woman' 69 years old, who was thrown from a street -car, sustaining contusions of the head .and both knees and the back, causing severe pain and paralysis of the nerve supply, disabling her from walking or standing, and the injury being permanent, held adequate.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. App.eal and error <&wkey;797(i)— Motion to dis- . miss for acquiescence in judgment may be made at any time.</p> <p>As a motion to dismiss an appeal on the ground that appellant has acquiesced in the judgment is not based on any informality or irregularity in bringing up the appeal, it may be made at any time, and need not be made within three days after filing of the transcript.</p> <p>2. Appeal and error &wkey;>801 (I)— Motion to dismiss for acquiescence in judgment will not be heard on ex parte affidavits.</p> <p>A motion to dismiss the appeal on the ground that defendant has acquiesced in the judgment will not be determined on ex parte affidavits first filed in the Supreme Court, in the absence of admission of their truth by appellant, but the case will be remanded for the hearing of evidence.</p> <p>On Motion to Dismiss Appeal.</p> <p>3. Counties &wkey;>54 — Parishes; announcement of president of police jury that resolution adopted amounted to deciding vote in its favor.</p> <p>Where four members of a police jury voted for, and one member against, a resolution to pay certificates of indebtedness and abandon an appeal from a judgment thereon, and three members did not vote, the president’s announcement that the resolution was adopted meant that he cast the deciding vote in favor of it.</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge.</p> <p>Suit under the Employer’s Liability Act by Harrison A. Sweeney against the Black River Lumber Company. From a judgment awarding compensation, defendant appeals.</p>

<p>Charles M. Rhodes was convicted of assault, etc., and his conviction was affirmed by the criminal district court, and he applies for writs of certiorari and prohibition.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Carriers &wkey;>287(!) — Open space between ties on neutral ground not maintained as way for pedestrians held not to impose liability.</p> <p>An open space between the ends of the cross-ties of an electric railroad on neutral ground in a street not maintained as a way for pedestrians held not dangerous or violative of a municipal ordinance requiring the space occupied by the tracks to .be kept in repair, so as to impose liability for injury to a boy stepping therein while attempting to hoard a moving train.</p> <p>2. Street railroads &wkey;>86(2) — Frog-blocking ¡aw held inapplicable to space between cross-ties.</p> <p>Act No. 177 of 1912, requiring railroads to fill all angles in frogs and cross-ties, etc., if applicable to street railways in cities,, did not apply to an open space 3inches deep between the ends of cross-ties on neutral ground not maintained as a way for pedestrians.</p> <p>3. Street railroads <&wkey;>86(2) — Ordinance requiring guarding of excavations held inapplicable to space between cross-ties.</p> <p>An ordinance requiring excavations in streets to be marked at night by red lanterns did not apply to an open space between cross-ties of a street railroad at a point on neutral ground not maintained as a way for pedestrians.</p> <p>4. Carriers <&wkey;287( I) — Path adjoining street car tracks on neutral ground held not invitation to public to use it in boarding cars.</p> <p>A walk adjoining street car tracks -on the neutral ground of a street not maintained as a way for pedestrians, which path did not extend to the street crossing and was obviously intended to he used only by employés in opening or closing a switch, was not an' invitation to the public to walk there in boarding cars.</p>

Action by John Abadie and others against National Petroleum Corporation. A plea to the jurisdiction was overruled, and defendant applies for writs of certiorari and prohibition.

<p>Appeal from Thirteenth Judicial District Court, Parish of Grant; J. A. Williams, Judge.</p> <p>Harry Sogers was convicted of murder, and he appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Issues involved.</p> <p>Involves only issues of fact.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Wills <&wkey;55 (I) — Evidence held to show sanity.</p> <p>In a suit to set aside a will, evidence held to show that the testator was not insane.</p>

<p> (Byllabus ty Editorial Staff.) </p> <p>1. Street railroads <&wkey;>l 14(10) — Evidence held to show unlawful speed.</p> <p>In an action for injuries to a person struck by a street car, evidence held to show that the car was exceeding the speed limit of 15 miles an hour fixed by municipal ordinance.</p> <p>2. Witnesses &wkey;>397 — Previous statements of witnesses used for impeachment not substantive proof.</p> <p>While statements signed by witnesses previous to the trial might serve to discredit their testimony at the trial, they do not prove the truth of the statements made therein.</p> <p>3. Street railroads <&wkey;98 (9) — Failure to see oar held not contributory negligence.</p> <p>The failure of one struck by a street car while on a crossing to see or hear the car approaching was not contributory negligence where traffic was abnormally congested, and such failure was due to the confusion of noise and lights of many automobiles.</p> <p>4. Damages <&wkey;>l32(9) — $25,000 for loss of both legs not excessive.</p> <p>Where plaintiff was knocked down and run over by a street car, and his legs so mangled that they had to be amputated below the knees, a judgment for $25,000 was not excessive.</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.</p> <p>Suit by W. B. Dew and others against Richard Hammett and others. From a judgment for plaintiffs, defendants appeal.</p>