Volume 151 — Louisiana Reports

Andrews, Judge. Suit to foreclose a mortgage by Morris J. Weiss against the Hudson Construction Company, Limited, in which the Southern Motors Company, Incorporated, filed a third opposition. Prom a judgment in favor of the third opponent, plaintiff appeals.

<p>Appeal from Civil District Court, Parish . of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Edward S. Gray, tutrix, and others, against the Foundation Company. From a judgment for plaintiffs for $15,000, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Suit by the State of Louisiana against the City of New Orleans. Judgment of dismiss* al, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) ■ </p> <p>1. Estoppel &wkey;>3(3) — Indemnity <&wkey;>l4 — Plaintiff held not estopped or concluded hy judgment in action against it by third person.</p> <p>An owner of a building, sued for an injury sustained by a night watchman while the building was still in possession of one from whom it purchased the building, was not estopped by its denial of the defective condition of a door and averment that the cause of the accident was the watchman’s carelessness, or concluded by the judgment against it, from suing the seller of the building on the theory that the accident was due to its negligence, as there was no legal inconsistency, or inconsistency in fact, between its defense to the first action and the theory on which recovery was claimed in the second; and, even if there was, it gained no advantage, and -the seller was not injured.</p> <p>2. Estoppel ¡@=3(1) — Parties not bound by judicial allegations which terminate unsuccessfully.</p> <p>■ Parties are not bound by judicial allegations of fact which terminate unsuccessfully.</p> <p>3. Indemnity <&wkey;(3(2) — Tort-feasors not ordinarily entitled, but may be when only technically at fault.</p> <p>As a general rule, when two or more parties acting in concert commit a wrongful act damaging a third party, the party compelled to pay for the injury has no action for indemnity against the other parties to the wrongful act, but if the actual fault or proximate cause of the injury is attributable to one of the parties, and the other is only technically or constructively at fault, the rule does not apply, and the latter may have indemnity from the one primarily responsible.</p> <p>4. Indemnity <©=>13(2) — Owner of building held liable for injury held entitled to indemnity from parly at fault.</p> <p>Under Code, art. 2315, providing that whatever causes damage to another obliges him by whose fault it happens to repair the damage, where the owner of a building which was still in-the possession and control of one from whom it purchased it was held liable to a night watchman, injured by a door falling on him, it had a cause of action against the seller of the building whose employees primarily and proximately caused the injury by their negligence, within the scope of their employment.</p> <p>5.Indemnity <&wkey;13(() — Limitation of actions <&wkey;56(2) — Prescription does not run against cause of action for indemnity until payment of judgment.</p> <p>The obligation of one in possession of a building to the owner, who was held liable to a third party for an injury caused by a door falling on him, was for reimbursement of money paid for and on its behalf, and as the right to reimbursement was not complete and en-forceable until payment or discharge of the obligation to the third person, the right'of action did not arise until payment and prescription did not begin to run until then.</p>

<p> (Syllabus by tire Court.) </p> <p>1. Criminal law <&wkey;977(l)— Judge may inform himself by affidavit or otherwise in fixing sentence.</p> <p>For the purpose of fixing sentence, the judge may inform himself outside of the record, even by affidavit or otherwise.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Criminal law &wkey;>636(2) — Defendant’s temporary absence in adjoining room while question of law being argued, not ground for complaint.</p> <p>There was no merit in defendant’s complaint that he was permitted by the officer in charge to retire to an adjoining room while a question of law was being argued, in the absence of the jury, where he asked to retire and was at no time out of sight and hearing of all that went on.</p> <p>3. Criminal law &wkey;>977(2) — Successor of trial judge may impose sentence, though evidence not reported.</p> <p>The successor of the trial judge may impose sentence, though the evidence taken at the trial has not been reported.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>On Motion to Dismiss.</p> <p>1. Appeal and error <&wkey;>800 — Motion to dismiss, denied when transcript perfected by consolidation with another transcript.</p> <p>A motion to dismiss because of the omission from the transcript of evidence taken in a former suit and introduced in evidence in the pending suit will be denied, where appellant’s counsel before receiving notice of the motion had obtained leave to consolidate the transcripts in the two eases, thereby perfecting the defective transcript.</p> <p>On the Merits.</p> <p>2. Principal and surety '&wkey;>l45M) — Suretyship; under ordinance requiring bond, judgment against carrier held not binding on surety.</p> <p>Under an ordinance requiring carriers of passengers within the city to give an indemnity bond, and providing that any person damaged through the carrier’s fault should have hiseáuse of action against the surety to the same extent as if the obligation of the surety were in his own favor, the surety is not concluded from inquiring into the merits of the suit by the judgment against the carrier.</p> <p>3. Municipal corporations <&wkey;703(l) — Ordinance requiring bond must be read into the bond, and fixes rights of parties.</p> <p>The provisions of an ordinance requiring carriers of passengers within the city to give an indemnity bond, and giving persons damaged through the carrier’s fault a right of action against the surety, must be read into the bond, and fix the rights, as well as the obligations, of the surety.</p>

■ Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Percy Saint, Judge. i Suit under the Employers’ Liability Act by August Guderian against the Sterling Sugar & Railway Company, Limited, for compensation for injuries. Compensation was awarded, and the employer appeals.

King, Judge. Proceeding under the Workmen’s Compensation Act by Mrs. Jennie Zito Salvaggio and others against the Illinois Central Railroad Company, for compensation for the death of Samuel Salvaggio. Compensation was awarded, and defendant appeals.

P. Mills, Judge. Proceedings under the Employers’ Liability Act by James B. Hammett against the Gilliland Oil Company for compensation for injuries. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Prentiss B. Carter, Judge.</p> <p>Action by Young Bros, against the succession of Janie C. Von Sehoeler. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from First Judicial District Court, Parish, of Caddo; J. H. Stephens, Jr., Judge.</p> <p>Action by George M. Hearne and others against G. G. Gillette. From a judgment for plaintiffs, defendant appeals.</p>

E. Reynolds, Judge. Suit by Lillie G. Taylor against Angeline Allen to have petitioner recognized as sole heir of a decedent and put in possession of decedent’s lands described in the petition. Judgment for petitioner, and the State and George West appeal as parties aggrieved by the judgment.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Public lauds <©=>223(6) — Claims under French and Spanish grants properly ignored when not asserted within time allowed.</p> <p>Under the express provisions of Act Cong. March 2, 1805, Act April 25, 1812, § 4, and Act June 17, 1844, incomplete claims under grants from the French and Spanish governments, when not asserted within the time allowed, were properly ignored by the land department, and the government was free to dispose of the lands as its legislative department saw fit.</p> <p>2. Public lands <©=>25 — Government survey can only be corrected by political department, and - its decision cannot be reviewed.</p> <p>If the government survey of a township erroneously locates grants thereon, the power to correct the survey belongs exclusively to the political department of the government, and its decisions cannot be reviewed by the courts in suits between individuals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Thos. F. Porter, Jr., Judge.</p> <p>Suit by Elsie Duval against the T. P. R,aneh Company, in which Henri L. Gueydan intervened. From the judgment rendered, plaintiff appeals.</p>

<p>' (Syllabus by Editorial Staff.)</p> <p>1. Criminal law <§=>11701/2(3) — Admission of question asked character witness on cross-examination, but not answered, held immaterial.</p> <p>The overruling of an objection to a question asked a character witness on cross-examination as to whether he knew what defendant’s conduct was when he was not present was immaterial, where the witness did not answer, and if he had answered would have said he did not know.</p> <p>2. Criminal law <§=>656(5), 776(1) — Remark of court and refusal of instruction as to character evidence held erroneous.</p> <p>Where defendant’s character witnesses admitted that they had never heard defendant’s reputation or character discussed, it was error for the court in ruling on objection to state that he did not see how the witness could know the defendant’s character or reputation, and to refuse to charge in substance that the best evidence of good reputation is where the witness has never heard it discussed, questioned, or talked about.</p> <p>3. Criminal law <§=>380 — Evidence of particular act of wrongdoing not admissible to rebut character evidence.</p> <p>Evidence of a particular instance of wrongdoing on defendant’s part was not admissible to rebut evidence of his good reputation.</p>

<p>Appeal from Tenth Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge.</p> <p>Action hy Mrs. Maura Savaria against the United States Railroad Administration, Walker D. Hines, Director General. From a judgment dismissing the suit, plaintiff appeals.</p>

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Eobert S. Ellis, Judge.</p> <p>Joseph Eini and others were convicted of murder, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>1. Railroads <&wkey;3!2(l I) — Backing train without light or lookout held negligence.</p> <p>• It is gross negligence for a railway company to back a long train over a dark and unguarded crossing in the heart of a populous city, without a light ahead to mark its presence or lookout preceding to give warning of its approach; the noise of the locomotive far in the rear being no indication that the dark and silent “load car” is in motion.</p> <p>2. Negligence <&wkey;i22(l) —Contributory negligence must be proved.</p> <p>Contributory negligence, being a matter of defense, must be proved by the defendant, unless it be shown affirmatively by the very evidence'relied upon by plaintiff. Hence when neither the evidence of defendant nor that of plaintiff show’s clearly some contributory negligence on the part of the person injured, no such contributory negligence will be presumed.</p> <p>3. Railroads &wkey;>327(7) — Obligation to stop before crossing does not require absolute immobility.</p> <p>The obligation to stop before crossing a railroad track must not be accepted so literally as to require a person upon approaching a railroad track to come at once to a position of absolute immobility. Common sense and common practice both indicate that it will suffice for such person to have his motion so checked and under control that he may stop instantly if need be.</p> <p>4. Master and servant <&wkey;>96(2) — Unlawful em« ployment not proximate cause of death at railroad crossing.</p> <p>Where between the alleged negligence of a defendant and the alleged consequences thereof, there supervenes the culpable act of a third person for whom the defendant is not responsible, the proximate cause of the damage is the supervening culpable act of such third person, and not the original negligence of the defendant.</p> <p> (SyllaTms hy Editorial Staff.) </p> <p>5. Death &wkey;99 (3) — $10,000 held excessive for child’s death.</p> <p>A judgment for $10,000 for the death of a boy 14 years old, who was not assisting his father in any way, but, on the contrary, dependent upon him, was excessive, and should be reduced to $5,000.</p> <p>6. Death <&wkey;8l — Elements of damage for child’s death stated.</p> <p>The measure of a parent’s damage for the death of a boy 14 years old is the boy’s sufferings, the parent’s loss of the boy’s companionship, and the shock and sorrow occasioned by the death.</p> <p>7. Railroads <&wkey;5i/2, New, vol. 6A Key-No. Series — Judgment against Director General bears no interest.</p> <p>A judgment against the Director General of Railroads is a judgment against the United States, and bears no interest, unless Congress shall allow therefor.</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; J. E. Reynolds, Judge.</p> <p>Action by Mrs. Milly Beck Ramsey and others against Nick Beck and others. From an adverse judgment, certain parties appeal.</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; J. E. Reynolds, Judge.</p> <p>Action by the Huie Hodge Lumber Company against the Railroad Lands Company, Limited. From a judgment for plaintiff, defendant appeals.</p>

D. Webb, Judge. Suit by the State, on relation of Minor Meriwether, against the City of Shreveport and others. From a judgment for the relat- or, defendants appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; J. H. Stephens, Jr., Judge.</p> <p>Action by the Great Eastern Oil & Refining Company against George Bullock, trustee.</p> <p>From a judgment for defendant, plaintiff appeals.</p>

K. Skinner, Judge. Action by Louis Carl King against the Wm. J. Burns International Detective Agency, Inc., to which plaintiff attempted to make others defendants by supplemental petition. Prom a judgment sustaining exceptions and dismissing the suit as to such additional defendants, plaintiff appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Cas Moss, Judge.</p> <p>Action by Claud Kinney against William Edenborn. From a judgment for plaintiff for an insufficient amount, he appeals.</p>

<p> (Syllabus by Editorial Btaff.) </p> <p>1. Brokers <&wkey;57(2) — Entitled to commission where owner sold on terms which he' preferred to those given broker.</p> <p>$185,000, who found a buyer to whom defendant sold at a higher price, part of which was payable only on a contingency, was entitled to the agreed commission where he notified defendant’s representative that he had another customer who would pay $185,000 in cash, but defendant’s representative preferred the deal with the first buyer.</p> <p>2. Brokers <&wkey;67(2) — Immaterial whether trade made was less profitable than that which broker undertook to make.</p> <p>by a broker for a price'higher than that given the broker, but part was payable on a contingency, and the sale was made with notice that the broker had another buyer at the price given him, it was immaterial whether the trade made was less profitable than that which the broker undertook to make.</p> <p>Provosty,</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Executors and administrators <§=3( I)— Succession; after death of husband and only child, community estate being vested in widow, no administration necessary.</p> <p>On the death of the husband, his half of the community property descends to his children, and, on the death of the only child during the life of the widow, the child’s interest therein vested in the widow, so that she became the' owner of all the property, and there was no necessity for administration of the estates of the husband and the child.</p> <p>2. Executors ffnd administrators &wkey;>l7(2)— Succession; curator of vacant succession cannot be appointed where there v;as an acknowledged natural daughter of decedent living.</p> <p>A petition by a district attorney to be appointed curator of the vacant succession of a decedent was properly denied, where there was a surviving illegitimate daughter of deceased who had been duly acknowledged by her mother.</p> <p>O’Niell and Dawkins, JJ., dissenting.</p>

R. Laud, Judge. Suit under the Employers’ Liability Act by W. A. Gregory and others against the Standard Oil Company of Louisiana for compensation for the death of Roy A. Gregory. From a judgment awarding compensation, the employer appeals.

■ Action by Hezekiah Winn against Mrs. Dorothy Strickland and husband, and suit by Learcus Strickland and wife against Hezekiah Winn. From a judgment for defendants in the first action and for plaintiffs in the second action, Winn appeals.

T. Cunningham, Judge. Suit hy Harman & Stringfellow against P. A. Legrande and others. From a judgment for plaintiff, the defendants other than the ’defendant named appeal.

<p>Appeal from Eleventh Judicial District Court, Parish of Natchitoches; W. T. Cunningham, Judge.</p> <p>Action by C. L. Campbell against G. J. Cook. Defendant’s motion to dissolve injunction granted, and plaintiff appeals.</p>

E. Reynolds, Judge. Action by H. C. Taylor and wife against the Vicksburg, Shreveport & Pacific Railroad Company and the Director General of Railroads, for damages for the wrongful death of plaintiffs’ son. Judgment for the plaintiffs against both defendants, and they appeal.

<p>• Appeal from Civil District Court, Parish of Orleans; Hugh O. Cage, Ju(ige.</p> <p>Action by Thos. (5. Duffy and wife against L. Hickey. From a judgment for deplaintiffs appeal.</p>

Boone, Judge. Suit under the Employers’ Liability Act by Armsted Craft against the Gulf Lumber Company for compensation for injuries. Compensation was awarded, and the employer appeals.

Stafford Cruse and others were convicted of an offense, and the defendant named applies for a writ of mandamus to compel the granting of an appeal. Alternative writ and rule to show cause made absolute.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Husband and wife &wkey;>272(!) — Rights of husband as to community property, where .wife and child have disappeared, stated.</p> <p>Under Oiv. Code, arts. 57, 58, and 64, a husband whose wife and child had disappeared and had not been heard from for 13 years had the option of continuing the community with the same rights and privileges as if the wife were present, including the right to alienate it, or of dissolving the community and having himself placed in provisional possession of the wife’s share as presumptive heir of the wife and child.</p> <p>2. .Husband and wife &wkey;>272(l) — Husband, seeking dissolution of community where wife has disappeared, entitled to sale and partition.</p> <p>Under Civ. Code, arts. 64, 1289, a husband, electing to have the community dissolved where his wife and child had disappeared and had not been heard from for many years, had a right to have the property sold and partitioned, notwithstanding article 69, prohibiting a sale by those in provisional possession.</p>

<p>Appeal from Fifth Judicial District Court,. Parish of Winn; Cass Moss, Judge.</p> <p>Oolbert Jordan and another were convicted of manslaughter, and they appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; H. C. Cage. Judge.</p> <p>Action by Nicholas Fernandez and wife against Anthony J. Montz. From a judgment for defendant, plaintiffs appeal.</p>

Two actions, one by the Bowman-Hicks Lumber Company, Inc., against Conrad C. Cole, Assessor, and the other against the Board of State Affairs and others. Prom the judgment, defendants appeal.

Action by the Bowman-Hicks Lumber Company, Inc., against the Louisiana Tax Commission and others. From a judgment reducing and annulling assessments, defendants appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; John R. Land, Judge.</p> <p>Proceedings by Thomas R. Hughes, Sheriff and ex officio Tax Collector, against the City Trust & Sayings Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Jerry Cline, Judge. ■</p> <p>Jesse Rey on was convicted of murder, and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Constitutional law <&wkey;>283 — Drains <@=¡18— Purchasers of bonds in good faith entitled to have tax levied, though proceeds of bonds misappropriated and levy does not deny due process.</p> <p>Purchasers of drainage district bonds issued in accordance with the forms and requirements of law in good faith and before maturity will be protected in their purchase and are entitled to have the tax voted and authorized to retire them levied, though the governing authorities contemplated using the proceeds of the bonds, and in fact did use them, for purposes ether than those authorized, and the levy of such tax does not violate the due process clause of Const. U. S. Amend. 14.</p> <p>2. Drains <&wkey; 18 — Purchase of bonds presumed to have been in good faith.</p> <p>In the absence of any contrary showing, the presumption is that the purchase of drainage district bonds, the proceeds of which were misappropriated by the governing authorities of the district, was made in good faith.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Criminal law <@=ol 144(4) — When minutes show withdrawal of plea, it is assumed that it was withdrawn with court’s permission.</p> <p>Where the minutes state that the defendant withdrew his plea of not guilty, it will be assumed that this was done with permission of the court, in the absence of anything to the contrary, especially where the minutes are signed and approved by the judge.</p> <p>2. Criminal law <@=>26 ((2) — Conviction set aside when defendant not rearraigned after withdrawal of plea.</p> <p>Where there was no arraignment after defendant withdrew his plea of not guilty and filed a motion to quash, the case not being at issue, the conviction must be set' aside.</p>

<p> (Syllabus by M&itorial Staff.) </p> <p>1. Sales <§=>313 — Vendor’s lien lost If property purchased from vendee before seizure by vendor.</p> <p>If property was purchased by third party from vendee before seizure thereof by vendor, the vendor’s lien was lost.</p> <p>2. Appeal and error <§=>891 — Newly discovered evidence cannot be considered on appeal.</p> <p>Newly discovered evidence cannot be considered on appeal; appellant’s relief being in a proceeding to annul the judgment.</p>

Petition for parole by Herman D. Paillet to the Board of Parole. On its refusal to file relator’s application, he applied to the district court for the parish of East Baton Rouge, Hon. H. E. Brunot, Judge, for a writ of mandamus. Erom its order denying the writ and refusal to permit an appeal therefrom, relator applies to this court for writ of mandamus to the district court for the Parish of . East Baton Rouge, Hon. H. E. Brunot, Judge, to compel the granting of such appeal.

<p>Appeal from Sixteenth Judicial District Court, Parish of St. Landry; B. H. Pavy, Judge.</p> <p>Tony Venezia was convicted of violation of Act ,No. 8, 1915, prohibiting' keeping “blind tigers,” and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Vendor and purchaser @=>231 (13) — Sales; recording of probated will in conveyance records not required.</p> <p>Code Prae. arts. 930 and 940, relative to the execution and recording of wills, when construed in connection with articles 924 and 942, relative to the same subject, article 1045 prescribing the records to be kept by clerks of probate courts, articles 775-777 relative to the records of clerks of the district courts, and Rev. St. 1870, §§ 465 and 474, do not require a.probated will to be recorded in the conveyance records, and one purchasing land, the owner of which is dead, is bound to ascertain where the succession has been opened and to be governed by the dispositions shown by the records of the probate court.</p> <p>2. Vendor and purchaser @=>231 (13) — Sales; whether statute requires will to be deposited with parish records held immaterial.</p> <p>Where plaintiff and' defendant traced their titles to land in S. parish to a common author, and plaintiff acquired his through mesne conveyances under a will duly probated and recorded in the probate records of I. parish, while defendant relies on transfers emanating from the legitimated heirs of the common author, the records of S. parish do not affect the matter, in so far as the sources from which the parties acquired title are concerned, and it is unnecessary to determine whether Civ. Code, art. 2264, requiring notarial acts concerning immovable property to be deposited in the office of the parish recorder, applies to wills by public act.</p>

<p> (Syllabus by Monroe, O. J., on Original Hearing, Reversed on Rehearing.) </p> <p>I.Denial of lessor’s title by lessee.</p> <p>An ordinary oil and gas lease, though containing elements of a sale, is sufficiently a lease to bring it within the rule that the lessee, enjoying undisturbed possession, acquired under such contract, cannot deny or contest the title or right of possession of his lessor; or avail himself of an alleged lease entered into with another person, claiming title to the property. His possession is that of his lessor, and he cannot change its character or his quality with respect thereto.</p> <p>2. Exclusion of prescription by contract.</p> <p>A contract, not prohibited by law, nor in contravention of public policy or good morals, is. the law governing the agreement between the parties thereto; and where, in oil and gas leases, the owner of the land, in agreement with the other party grants, or reserves to himself, his heirs and assigns, all the minerals underlying the soil, with the right of ingress and egress “at all times,” or “at any time hereafter,” for the purpose of reducing to possession and removing such minerals, the grant or reservation is effective, as to all minerals, whether solid or fugacious, and is not controlled by the prescription of ten years established by Oiv. Code, art. 789, against the exercise of a right of servitude in the event of nonuser during that period.</p> <p>3. Interruption of prescription.</p> <p>Though it should be conceded (arguendo, merely) that an instrument purporting to evidence a sale of all minerals underlying certain land, and a grant of rights of ingress, egress, mining, etc., “at all times,” for the purpose of reducing such minerals to possession, confers upon the grantee merely a right of servitude, with respect to volatile or fugacious minerals, such as gas or oil, which servitude is prescriptible, for nonuser, during 10 years, yet the' power exercised to grant the servitude may be again exercised to extend to it by interrupting the prescription; and where, a year or more after the execution of such instrument, the owner sells the land by another instrument, wherein he saves, excepts, and reserves, to himself, his heirs and assigns, all the minerals that may lie therein or thereunder, with right of ingress, egress, etc., “at any time hereafter,” such reservation operates as an interruption quoad the vendee of the land, who is a. party to it, of any prescription, the required period of which could have had its beginning at the execution of the first instalment; and upon no conceivable theory could it be held that the vendee of the land acquired the mineral rights within ten years from the execution of the first instrument by reason of the failure of the grantee therein — assign of the owner of the land — to exercise his rights within that period.</p> <p>4. Who are possessors in bad faith.</p> <p>One becomes a possessor in. bad faith from the moment that the defect in his title is made known to him, or is declared in a suit brought by the owner to recover the property. If, whether ,¡aeting upon his own judgment or the advice of others, he refuses, when so informed or sued, to surrender the property, and it is wrested from him by judicial decree, his status as a possessor in bad faith is established and he becomes liable accordingly.</p> <p>5. Rights and liability of possessors in bad faith.</p> <p>The possessor in bad faith is liable to the owner for the revenues of the property during his possession. He is entitled to recover money expended for the preservation of the property; and, if the owner elects to keep improvements made by him, to recover the cost of the material and labor expended in that behalf. An exception to that rule is recognized with respect to works inseparable- from the soil, such as ditches and wells; and an exception to that exception may be recognized where the improvement is a well producing oil or gas in paying quantities, his claim for the. cost of which may be used as a set-off, pro tanto, to that of the owner for revenues.</p> <p>6. Liability of warrantor.</p> <p>A warrantor is liable for the restitution of the price, but, where the eviction is not complete and the value of that portion of the property which the warrantee retains is not disclosed, ' a court has no means of determining the amount of the liability.</p> <p>O’Niell, J., dissenting in part.</p> <p>On Rehearing.</p> <p> (Syllabus by Editorial Staff.) </p> <p>7. Mines’ and minerals @=55(7) — Rights under conveyance of oil and gas lost by prescription when not exercised for ten years.</p> <p>As a sale of oil and gas does not convey the ownership of the oil or gas itself as physical or corporeal property, but only a real right or servitude to explore therefor, and reduce it to possession, the rights acquired by such a conveyance were lost by prescription where no attempt was made to exercise the rights for ten years.</p> <p>8. Mines and minerals @=55(7) — Reservation of mineral rights by one who had conveyed minerals held not to interrupt prescription against grantee’s rights.</p> <p>Where an owner of land sold and conveyed the oil, gas, and other minerals, and thereafter conveyed the land reserving to himself, his heirs and assigns, all oil, gas, and other minerals, the reservation did not inure to the benefit of the grantee of the mineral rights or interrupt the prescription liberandi causa against such grantee’s rights.</p> <p>9. Mines and minerals @=55(7) — Grant of mineral rights to be exercised at all times or at any time does not make the rights imprescriptible.</p> <p>Under Civ. Code, arts. 8459, 3460, 3549, 3556, a seller of mineral rights could not bind himself or subsequent owners by an agreement that the real obligation or servitude thereby imposed on the land should not be subject to the prescription liberandi causa, and a conveyance of mineral rights, to be exercised “at all times” or “at any time,” did not make such rights imprescriptible.</p> <p>10. Mines and minerals @=60 — Doctrine of estoppel held not to preclude lessee taking lease from others after learning of loss of rights by lessor.</p> <p>The doctrine that an, ordinary lessee cannot dispute the title of his lessor during the time of the lease has no application to a contract in the form of an oil and gas lease by which a person acquires mineral rights, it being more like a sale than an ordinary lease, and the lessee, on learning that the lessor had lost its rights by prescription before the original lease was acquired, was not precluded from acquiring a lease from the owners of the land.</p> <p>Provosty, C. J., and Land and Baker. JJ.. dissenting.</p>

<p>Appeal from Eighteentli Judicial District Court, Parish of Dafayette; William Campbell, Judge.</p> <p>Leonce Larrivierre was convicted of selling and having in his possession intoxicating liquors, and he appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Edward Wagner against the New Orleans Railway & Light Company.</p>

<p> (Syllabus by the Oourt.) </p> <p>I. Appeal and error &wkey;>(008(I) — Judgment reversed for manifest error in finding of facts.</p> <p>Where manifest error appears in the finding of facts of the court below, the judgment based .thereon will be reversed.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Divorce <&wkey;l29(l6) — Testimony showing ' husband’s misconduct, and contradicted only by testimony of negative and general character, held to justify divorce.</p> <p>In a wife’s suit for divorce, where two unimpeachable witnesses testified to circumstances leaving no room for dtfubt of the husband’s misconduct, and the only contradiction was by testimony of a negative and general character, and neither the husband nor the corespondent testified, a divorce should be granted.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Insurance <&wkey;297 — Answers to questions in an application as to use of liquor held representations unless fraudulently made.</p> <p>Under Act No. 52 of 1906, as amended by Act No. 227 of 1916, making statements by the insured representations and not warranties, in the absence of fraud, and a provision in the life insurance policy to the same effect, answers of the insured to questions contained in the application concerning his use of intoxicants were representations, unless they were designedly and fraudulently made and intended to deceive the insurer upon a matter which would have prevented the issuance of the policy if insurer had known the true facts, though, in the absence of the statutory and policy provisions, it would be immaterial whether the false statements were innocently or fraudulently made.</p> <p>2. Insurance 4&wkey;646(3) — Burden is on insurer to show answers were fraudulent.</p> <p>The burden is on insurer to show that false answers to questions in the application were fraudulent, since fraud is never presumed.</p> <p>3. Insurance <&wkey;665(3) — Evidence held not to show answers with reference to use of intoxicants were fraudulent.</p> <p>In an action on a life insurance policy, evidence held not to sustain the insurer’s burden of proof to establish that answers by insured that he took only one or two glasses of wine a day were fraudulently made.</p> <p>4. Insurance &wkey;>665(3) — Whether insured had been “intoxicated” is question as to which opinions might differ.</p> <p>The term ‘intoxicated” has no well-settled meaning, though it is defined generally as drunk, under the influence of intoxicating liquors to such extent as to have lost normal control of the faculties, so that evidence merely that insured had at times been under the influence of intoxicants does not establish that his answer he had not been intoxicated during the past five years was fraudulent.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Intoxicated — Intoxication.]</p> <p>5. Insurance <&wkey;>297 — Misrepresentations false but not fraudulent avoid policy only if they contributed to risk.</p> <p>Misrepresentations by the insured as to his habits with reference to the use of intoxicants, which were false but were not fraudulently made, do not prevent recovery on the policy, being considered as representations, unless the use of such intoxicants contributed in some way to the death of the insured.</p> <p>6. Insurance &wkey;3665(6)— Circumstantial evidence establishing suicide must exclude reasonable hypothesis of accident or act of another.</p> <p>To prevent recovery on life insurance policy on the ground that insured committed suicide, where the evidence as to the cause of death was circumstantial, the circumstances must be such as to exclude every reasonable hypothesis that death was accidental, or resulted from the act of another.</p> <p>7. Insurance &wkey;s665(6) — Circumstantial evidence held not to show fall from hotel window was suicidal.</p> <p>In an action on a life insurance policy where the defense was suicide, evidence that death resulted from a fall from a window of the hotel room occupied by insured, without evidence establishing a motive for suicide but under circumstances indicating an expectation to continue living, held not to exclude the hypothesis that the fall was accidental, or that he may have been pushed from the window by another person, so that recovery cannot be denied on the ground' of suicide.</p> <p>Provosty, O. J., and Baker, J., dissenting.</p>

Fleury, Judge. Suit by Joseph Oury against the Board of Aldermen of the City of Gretna and others. Prom a judgment in his favor for an insufficient amount, plaintiff appeals.

R. Land, Judge. Suit by Huey P. Long, Jr., against the City of Shreveport and another. From a judgment for plaintiff, defendants appeal. Second rehearing denied; O’NIELL, J., dissenting.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Quieting title 4&wkey;46 — Issue in suit to establish title to land stated.</p> <p>In an action under Act No. 38 of 1908, to establish title to land not in the actual physical possession of either party, the judge is called on to decide which of the claimants is the owner of the land in dispute.</p> <p>2. Taxation <&wkey;805(3) — Defect in assessment on which tax title based held cured by prescription of three years.</p> <p>That property adjudicated to the state under Act No. 47 of 1873 for taxes was not assessed to the record owner was cured by the prescription of three years provided by (Jonst. 1898, art. 233, where it was not shown that such alleged owner resided on the property.</p> <p>3. Taxation <&wkey;>789(l) — Tax deed held prima facie evidence of valid sale.</p> <p>A tax deed for land adjudicated to the state for taxes, under Act No. 47 of 1873, is prima facie evidence of a valid tax sale.</p> <p>4. Taxation <&wkey;623 — Assessment of property to one who had parted with title did not entitle him to notice before adjudication to state for taxes.</p> <p>The mere assessment of land to one who had parted with the title thereto, and who was not shown to have subsequently Acquired title, did not constitute him the owner per se, and where he was not the record owner he was not the delinquent tax debtor to whom notice was required to be given to pay the tax before adjudication of the land to the state for taxes, under Act No. 47 of 1873.</p> <p>5. Taxation <&wkey;>805(3) — Name in which property assessed, etc., immaterial as to prescription.</p> <p>It is immaterial as respects prescription in favor of a tax title under Const. 1898, art. 233, whether an assessment was made in the name of one person or another, or in no name, or whether the owner not in possession was notified, or whether the sale was advertised.</p> <p>6. Taxation <&wkey;65i — Recording of name and amount of tax held valid seizure for delinquent taxes.</p> <p>Under Act No. 47 of 1873, § 8, the recording in the mortgage book of the name and amount of a tax to be stated in the delinquent lists constitute a valid seizure of the property for the delinquent taxes then due.</p> <p>7. Taxation &wkey;>789( I) — 'Tax deed valid prima facie as against claim that- title never confirmed.</p> <p>A duly recorded tax deed is prima facie evidence of its validity as against the claim that title to the lands was never confirmed by the state auditor, as required by Act No. 47 of 1873, § 9.</p> <p>8. Taxation &wkey;>805(3) — That part of taxes prescribed before tax sale cured by prescription.</p> <p>Under Const. 1898, art. 233, providing that no sale for taxes shall be set aside after six months, or after three years if no notice was given, except on proof of dual assessment, or of payment before sale, the objection that part of the taxes for which the land was sold were prescribed cannot be urged after the expiration of the prescriptive period.</p> <p>9. Taxation &wkey;>796(3) — One whose land is sold to state for taxes cannot attack validity of subsequent sale by state.</p> <p>Under Code Prac. art. 15, providing that an action can only be brought by one having a real and actual interest, one whose title to land has been divested by a valid sale to the state for taxes cannot attack the validity of a subsequent sale by the state, or of an adjudication to the state for taxes for subsequent years.</p> <p>On Rehearing.</p> <p>10. Descent and distribution <®=>1I9(2) — Succession; institution of suit claiming title by inheritance is acceptance of succession.</p> <p>Under Rev. Civ. Code, art. 988, the institution of a suit claiming title to property by inheritance from a deceased person is an unconditional acceptance of the succession.</p> <p>11. Descent and distribution <&wkey;>!28 — Succession; heirs cannot recover property where ancestor had warranted title.</p> <p>Under Rev. Civ. Code, art. 988, relative to acceptance of a succession, and articles 1013 and 1423, relative to its effect, plaintiff, claiming title to property by inheritance from a deceased person, has no right of action if his deceased ancestor in disposing of it obligated himself to warrant and defend the title.</p> <p>12. Descent and distribution <&wkey;>!28 — Succession; heirs accepting succession bound by warranty, though they did not know thereof.</p> <p>A warranty clause in a deed obligated the vendor without registry; and his heirs, who have accepted his succession unconditionally, assumed the obligation, whether or not they were aware of it, when they accepted the succession.</p> <p>Dawkins, L, dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>On Rehearing.</p> <p>1. Descent and distribution &wkey;>l28— Succession; heir accepting succession cannot attack title warranted by ancestor on ground that title was not in her.</p> <p>Under Rev. Civ. Code, arts. 1013 and 1423, relative to the liability of an heir accepting the succession unconditionally, an heir accepting the succession was liable on the ancestor’s warranty of title to land, and had no right of action to recover the land on the ground that the title was in the ancestor’s children as heirs of their deceased father.</p> <p>2. Descent and distribution <&wkey;119(2) — Succession; taking of possession unconditionally makes heir liable, though succession accepted with benefit of inventory.</p> <p>Under Rev. Civ. Code, arts. 977, 1032, and 1039-1070, when the succession is accepted with benefit of inventory, the estate must be administered primarily for the benefit of creditors, and the heir cannot take possession unconditionally, or as owner of any of the property without making himself personally liable for the debts of the succession.</p> <p>3. Descent and distribution i&wkey;> 128 —Succession; minor children, whose interests were adjudicated to mother by accepting satisfaction from tutor, held to have surrendered right to repudiate warranty.</p> <p>Where the interests of minors as heirs of their deceased father in certain land was adjudicated to their mother, and sold by the mother’s executor in obedience to a judicial decree in compliance with the mother’s agreement to sell, and the minors’ tutor received the price, or an accounting of the price, the children, by accepting the funds belonging to them from their tutor on majority or emancipation and acknowledging that the balance was correct, surrendered their right to repudiate their mother’s warranty of the title to the land, though they thereby received only the residuum of the mother’s estate.</p> <p>4. Husband and wife <&wkey;276(8) — Swearing of appraisers by clerk of court and adjudication of interest in property to mother held not to make judgment absolutely void so as not to be subject to ratification by children.</p> <p>An adjudication of the interest of minors in community property of their mother and deceased father to the mother was not absolutely void, so as to be not subject to tacit ratification, because the appraisers were sworn by a deputy clerk of court, or because the judge adjudicated only their interests to the mother, instead of the whole property.</p>

K. Skinner, Judge. Action by Thomas James, natural tutor of Thomas A. James and others, minors, against the City of New Orleans. Judgment for defendant, and plaintiff appeals.

<p>Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.</p> <p>' Action under the Employers’ Liability Act by Charles Ford against the Fortuna Oil Company. From a judgment awarding compensation, defendant appeals.</p>

Mandamus by the State, on the relation of' Greene C. Chandler, against the City of Shreveport and others. The relator’s appeal from an adverse judgment was dismissed by the Court of Appeal, and relator applies for writ of certiorari or writ of review.

<p> (Syllabus by the Court.) </p> <p>I. Nuisance &wkey;>82 — Proceedings by association against immoral house must be in names of members.</p> <p>Section 2 of Act No. 47 of 1918 creates a cause of action in favor of associations formed for the suppression of vice, but does not authorize such associations when unincorporated to appear in court in a manner different from, when pursuing any other cause of action belonging to them.</p> <p>2. Nuisance <&wkey;82— Proceedings by individuals authorized on special certificate of good faith.</p> <p>The certificate of-good faith and proper motives required of private individuals before bringing suit to suppress alleged immoral houses, under Act No. 47 of 1918, means a special certificate for each particular case, and not a a general certificate to be used as and when such individual pleases.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by Paul W. Maloney against Mrs. Leonie Cazaubon Schulingkamp and others. From a judgment for plaintiff for an insufficient amount, he appeals.</p>

R.' Land, Judge. Action by Jeff A. Hale against the Gilliland Oil Company for damages for tort, or, in the alternative, for compensation under the Employers’ Liability Law. From a judgment for defendant, plaintiff appeals.

Rogers, Judge. Action under the Workmen’s Compensation Law by the widow of Joseph Bouchon against the Southern Surety Company and others, for compensation for the death of her husband. Prom a judgment for plaintiff for an insufficient amount, she appeals.

M. Wallis, Judge. Action under the Employers’ Liability Act by Rachel Verret Prevost against the Gheens Realty Company for compensation for the death of her husband, Peter Prevost. Compensation was denied, and plaintiff appeals. Judgment annulled and compensation awarded.

King, Judge. Proceedings on the succession of Patrick McGuire. From a judgment dismissing a rule to show cause, the heirs other than the administrator appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Real actions &wkey;>8(2) — Petitory action; plaintiff must allege facts showing title.</p> <p>For plaintiff in a petitory action to make out his title as required by Code Prac. art. 44, he must allege a state of facts showing that he has title.</p> <p>2. Descent and distribution &wkey;>74 — Succession; irregular heir has only right of action to be put in possession, and his legal heir takes no greater right.</p> <p>Under Civ. Code, arts. 930, 949, the surviving husband of one dying intestate without ascendants, descendants, or collaterals was an irregular heir, and succeeded neither to the ownership nor the possession from the instant of the wife’s death, but only had a right of action to cause himself to be put in possession of the succession, and his legal heir acquired only such right; the maxim, “Le mort saisit le vif,” not applying to irregular successions.</p> <p>3. Descent and distribution <&wkey;89 — Succession; ex parte judgment, putting surviving spouse in possession -without compliance with statute, is void.</p> <p>Giv. Code, art. 930, relative to .the proceedings when the surviving husband or wife is called to the succession of the other, contemplates a proceeding conducted contradictorily with the representative of the absent heiz-s, the taking of an inventory by a duly appointed notary in the presence of such representative, and the giving of security to protect the absent heirs, and an ex parte judgment, putting the surviving spouse in possession without taking an inventory and without any one to represent absent heirs, is void.</p> <p>4. Descent and distribution <&wkey;90(l) — Succession; irregular heir, or his heir, cannot maintain petitory action without being put into possession.</p> <p>An izu-egular heir or his legal heir has no standing in a petitory action unless judgment has been first obtained, putting him or his legal heir into possession of the irregular succession; the right of action to be placed in possession of an irregular succession not being sufficient.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Weapons &wkey;>!7(6) — Trial judge’s refusal . to be governed by requested instructions held not error, as instructions left circumstances' out of consideration.</p> <p>On a trial for carrying dangerous weapons concealed about the person, the court’s refusal to be governed by requested instructions that a weapon on the floor on in some part of the vehicle in which a person was riding was not carried on or about the person held not error, as they left out of consideration the circumstances connected with and surrounding the finding of pistols 'in defendants’ automobile upon which the trial judge based the conviction.</p> <p>2. Criminal law <&wkey;l 134(3) — Claim of error in finding that defendants were guilty beyond a reasonable doubt presents no question of law.</p> <p>The complaint that the trial judge erred in holding that the evidence proved that defendants were guilty beyond a reasonable doubt presents no question purely of law for review by the Supreme Court.</p> <p>3. Criminal law <&wkey;l 134(3), 1159(2) — Supreme Court can only review question of law; if there is any evidence finding of fact cannot be reviewed.</p> <p>In criminal cases the Supreme Court has appellate jurisdiction to review only questions of law; and, when there is any evidence in the ease, the findings of fact relating to defendants’ guilt or innocence, cannot be reviewed.</p> <p>4. Criminal law i&wkey; 1134(3) — When there is no evidence against defendant, a question of law is presented.</p> <p>If an accused person appears to have been convicted without any evidence at all having •been produced against him, a question purely of law is presented on appeal.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Evidence &wkey;>47l (2) — Testimony of husband that he and his wife had lived together as man and wife held a conclusion.</p> <p>A husband’s testimony in support of his motion to dismiss a divorce suit on the ground that there had been a reconciliation, that he had lived with his wife as man and wife after the filing of the suit, was a mere conclusion.</p> <p>2. Divorce <&wkey;l09 — Burden on defendant to show reconciliation has been effected.</p> <p>On motion to dismiss divorce suit on the ground that a reconciliation has been effected, the burden of proving such fact is on defendant.</p> <p>3. Divorce &wkey;>49(7) — “Reconciliation” which extinguishes suit requires resumption of marital relations.</p> <p>Civ. Code, art. 152, providing that the action of separation shall be extinguished by reconciliation, requires a reconciliation in fact, and is not satisfied by mere forgiveness and friendly relationship and association, in the absence of any resumption or renewal of the former marriage relation.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Reconcile.]</p> <p>4. Statutes <&wkey;l88 — Words to be taken in sense in which understood in common language considering text and subject-matter.</p> <p>In the construction of statutes words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed.</p> <p>5. Divorce &wkey;>135 —Satisfactory and convincing proof of reconciliation necessary to prevent further prosecution of suit.</p> <p>Though the courts should not readily lend their aid to effect a separation of spouses except in extreme cases, yet, where the statutory requirements have been met, and the injured wife has demanded a judicial separation from bed and board on the ground of excessive and continued" cruel and inhuman treatment, the right to further prosecute the suit should not be denied unless there is satisfactory and convincing proof of reconciliation .or condonation.</p>

<p>Appeal from Thirtieth Judicial District Court, Parish of Caldwell; F. E. Jones, Judge.</p> <p>Ezra Mitchell was convicted of shooting with intent to kill, and he appeals.</p>

King, Judge. Mandamus proceeding by Mrs. Christine Ballard Michel against F. Jtalph Michel, President of the C. J. Michel Clothing Company. From a judgment sustaining an exception and dismissing the suit plaintiff appeals. Judgment annulled.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunction <&wkey;26(l) — Does not lie to prevent suit.</p> <p>An injunction will not lie to prevent the bringing of a suit.</p> <p>2. Husband and wife <&wkey;202 — Purchaser from wife of land received from husband by donation cannot sue to annul sale and for restitution.</p> <p>Under Civ. Code, arts. 2557, 2560, if a husband’s donation to his wife inter vivos was revocable by him, or might be attacked or reduced by his forced heirs, where he joined in the wife’s act of sale to third persons, they could not sue to annul the sale and for restitution, without alleging that they had been disturbed in title or possession, or that any one was claiming title or threatening them with eviction.</p> <p>3. Vendor and purchaser &wkey;>107, 168 — Sales; purchaser cannot suspend payment or annul sale without disturbance of,, title or possession or ownership in some one else.</p> <p>Under Civ. Code, arts. 2557, 2560, a purchaser who has not paid the price cannot suspend such payment or sue to annul the sale, in the absence of any allegation of a disturbance of his title and possession, and of any allegation of an existing ownership in some one other than his vendor.</p> <p>4. Husband and wife <&wkey;52 — Husband and his heirs cannot revoke donation to wife, when husband joined in wife’s act of sale.</p> <p>Where a husband making a donation inter • vivos to his wife joined in her act of sale to third persons, he could not revoke the donation to the prejudice of his act of sale, and his obligation of warranty and his forced heirs could claim no greater rights than he possessed.</p> <p>5. Estoppel &wkey;*28 — Heirs bound by act of sale.</p> <p>Where a husband, making a donation inter vivos to his wife, joined in her act of sale to third persons, the wife’s heirs would be bound by her sale, and could not as her heirs urge that she acquired no interest in the property under the donation.</p> <p>6. Costs <&wkey;260(6i/2)— Appellee, joining in appeal and securing reversal, not entitled to damages as for frivolous appeal.</p> <p>An appellee, who joins in an appeal by answer and secures a reversal of the judgment appealed from in .his favor, is not entitled to damages as for a frivolous appeal.</p>

Land, Judge. Proceeding on the opposition of the Continental Bank & Trust Company to the account of the administratrix of J. B. McCann. Judgment approving the account, and the opponent appeals.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Pledges 4&wkey;56(l) — Pledgee of cotton can only sell for satisfaction of debt after judgment, unless pledgor authorizes different sale.</p> <p>Under Act No. 9 of 1872, amending and reenacting Civ. Code, art. 3165, a pledgee of cotton,. in order to sell it legally to satisfy the secured debt, must do so by means of legal process, after judgment obtained, unless the pledgor authorizes its sale otherwise.</p> <p>2. Pledges <&wkey;>36 — Questions in action for unauthorized sale by pledgee held questions of fact.</p> <p>In an action against a pledgee of cotton for an alleged unauthorized sale, the questions whether plaintiff authorized the sale of the cotton at private sale, and, if he did on condition, whether the condition existed that authorized the sale, and whether he acquiesced in the sale, were questions of fact.</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; J. A. Williams, Judge..</p> <p>Action by Mrs. Herminie Lemoine against the City of Alexandria. Prom a judgment for defendant, plaintiff appeals.</p>

, Judge. Proceeding on the opposition of G. S. Ford to the probate of the will of James A. Ford, deceased. From a judgment admitting the will to probate, plaintiff in opposition appeals.

King, Judge. Proceeding on oppositions to the account of the administrator of Joachim Bourgeois, deceased. From a judgment rejecting the oppositions, the claimants appeal.

T. Cunningham, Judge. Proceedings by the People’s Bank against Edgar Levy and others, in which W. P. Wemp intervened. Judgment against defendants, and they appeal. On motion to dismiss appeal.

PI. Stephens, Judge. l-Iabeas corpus by the State, on the relation of George Harner and wife, against Dr. A. B. Karpe and wife. From a judgment sustaining the writ, defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Master and1 servant @=405(6) — Evidence held to justify compensation for permanent partial disability.</p> <p>In a suit under the Employers’ Liability Act by employee falling from a scaffold and injuring his arm, hand, and wrist, evidence that his hand and wrist did not function properly, and were incapable of heavy work, held to show a permanent injury incapacitating him to work.</p> <p>2. Master and servant @=411 — Interest on compensation award not recoverable unless claimed in petition.</p> <p>Under Code Prae. arts. 157, 553, interest on the weekly installments cannot be allowed by a judgment under the Employers’ Liability Act where the petition neither alleged that interest was due nor prayed therefor.</p> <p>3. Costs @=269(7) — Damages for frivolous appeal not allowed where appellee asked amendment of judgment.</p> <p>Where, on defendant’s appeal, plaintiff asked that the judgment be amended, damages for a frivolous appeal, under Code Prac. art. 907, will not be allowed.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Intoxicating iiquorrs <§=202— Information not charging sale was for beverage purpose fatally defective.</p> <p>Under Act No. 39 of 1921, prohibiting the sale of intoxicating liquors for beverage ■ purposes, an information charging that defendant willfully and unlawfully sold intoxicating liquors, but not alleging that they were sold for beverage purposes, is insufficient.</p> <p>2. Indictment and information <§=I10(2)— Statutory language or equivalent language must be followed.</p> <p>In prosecutions for statutory offenses, the indictment or information must follow the language of the statute or language equivalent to that used in the statute.</p>

Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge. Action by Massie Whittington, widow of Henry Prather, against John Barton Payne, Agent of the President of the United States. From a judgment for defendant, plaintiff appeals. On motion to transfer to the Court of Appeal.

<p>Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.</p> <p>C. M. McAllister, John Clark, Ed. Bickford, Miss Willie Rogers, Fluker Blue, Blaze Polite, Ed. Randal, and Dave Story were convicted of selling intoxicating liquors, and they appeal.</p>

M. Wallis, Jr., Judge. Action by Mrs. Cecile Generes Baker, as executrix and universal legatee of George A. Generes, deceased, against the Bowie Lumber . Company, Limited. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Twentieth Judicial District Court, Parish of Lafourche; H. M. Wallis. Jr., Judge.</p> <p>Suit by the Bowie Lumber Company, Limited. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge.</p> <p>Action by Mrs. Jeannette M. Kohlman against the New York Life Insurance Company. From a Judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Fourth Judicial District Court, Parish of Lincoln; J. B. Crow, Judge.</p> <p>Suit by Ida Milling Hodge and others against D. and W. J. Hodge and others Prom a judgment for plaintiffs, defendants appeal.</p>

Suit by Allen H. Johness against Ed. Stoulig, Registrar of Voters. Plaintiff and his attorney were adjudged in contempt of court, and they apply for writs of certiorari and prohibition.

Newt was selling intoxicating liquors, and bail pending appeal was denied, and he applies writ of mandamus, directed to the judge the twelfth judicial district, parish of Vernon.

<p>Appeal from Thirtieth Judicial District Court, Parish of Caldwell; P. E. Jones, Judge.</p> <p>Ployd Abrams was convicted of murder, and he appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Homicide <&wkey;269 — Malice is question for jury.</p> <p>The determination of the question in a murder case whether malice has been established is peculiarly and constitutionally vested in the jury. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>2. Criminal law <&wkey;l!59(2) — Supreme Court will consider facts only to determine question of law, and not as to sufficiency of evidence.</p> <p>When the facts in a criminal case. have been preserved and properly brought up, the Supreme Court will consider them with a view of determining a question of law, but not otherwise, for the purpose of deciding whether or not the evidence was sufficient to justify the verdict. (Per Thompson, Leche,' Land, and Baker, JJ.)</p> <p>3. Criminal law <&wkey;1156(2) — Motion for new trial on ground that verdict contrary to evidence discretionary, and overruling not disturbed.</p> <p>The overruling of a motion for new trial, based on the ground that the verdict is contrary to the evidence, is addressed to the sound discretion of the judge, and will not be interfered with on appeal. (Per Thompson, Leche, Land, and Bakei', JJ.)</p> <p>4. Criminal law t&wkey;72l¡/2(2), 745 — Comment on defendant’s failure to put his mother on the stand not unfair, and inference was a question for the jury.</p> <p>Where defendant claimed to have killed deceased in defense of his mother, it was not beyond the scope of legitimate argument for the district attorney to comment on his failure to place his mother on the stand, though the mother was equally available to the state as a witness; it being at least a question for the jury whether the failure to call her did not raise an inference against defendant rather than the state. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>5. Criminal law &wkey;>317 — Presumption or inference that witness which party fails to call would testify against him.</p> <p>If a party having a witness within his power to produce fails to produce him and offers no explanation for such failure, the presumption or inference is that the witness would not support his case, or would be against him. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>6. Criminal law &wkey;>72! 1/2(2) — Argument of district attorney as to failure of defendant to call his mother not statement of personal opinion as to what she would have testified.</p> <p>The district attorney’s statements in his argument that deceased and defendant’s mother were the only persons who could testify to the exact facts of an alleged quarrel, that the mother had been in the courtroom all day, and that it might safely be assumed from all the other evidence that the failure of defendant’s attorneys to call her was because they knew her testimony would not support their theory, and that she would have testified that the shooting was in cold blood and not in her defense, must be considered as a whole, and, so considered,' did not express his personal opinion, but his assumption or conclusion, from all of the evidence, as to what she would have testified. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>7. Criminal law <&wkey;730(7) — On objection to argument as not supported by evidence, not error to refer matter to jury.</p> <p>Where defendant’s counsel objected to the district attorney’s argument as based on facts not brought out in the evidence, it was not error for the court to -tell the jury that it was the sole judge of what had been established, and that the court could not comment on the evidence, thus referring the objection to the jury. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>8. Criminal law &wkey;>720 (9) — District attorney entitled to present any reasonable theory or conclusion justified by facts and circumstances.</p> <p>On a trial for murder with a pistol, the district attorney in his argument had a right to present to the jury any reasonable theory or conclusion justified by the facts and circumstances appearing, and going to show that accused armed himself immediately prior to the killing. (Per Thompson, Leohe, Land, and Baker, JJ.)</p> <p>9. Homicide (&wkey;>160 — Evidence of preparation proper to prove malice.</p> <p>Evidence of preparation for the commission of an offense is one of the methods of establishing malice in a felonious homicide. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>10. Homicide &wkey;>l4(2) — Malice need not have existed for any considerable length of time.</p> <p>To make out a case of murder, malice need not have existed any considerable length of time prior to the killing, but it may be momentary and arising at or just before the killing. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>11. Criminal law &wkey;723(!) — Improper for prosecuting officer to state that law permitting verdict without capital punishment is a farce.</p> <p>In capital cases, the jury should he left free and untrammeled to exercise its discretionary power to find defendant guilty without capital punishment, and it transcends the boundary of legitimate and proper argument for the prosecuting officer to express his personal opinion that the law permitting such a verdict is a farce, and that if defendant be sentenced to life imprisonment he will be turned loose in a few years. (Per Thompson, Leche, Land, and Baker, JJ.)</p> <p>Provosty, C. J., and Dawkins and Overton, JJ., dissenting.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Railroads &wkey;>9( I) — Authority of Commission not limited to relations with shippers and passengers.</p> <p>Const. 1921, art. 6, § 4, providing that the Public Service Commission shall have power and authority to supervise, govern, regulate, and control common carrier railroads, does not limit its powers to the regulation of relations existing between railroads, on the one side, and shippers and passengers, on the other, but extends to the railroad’s relations to the general public.</p> <p>2. Railroads &wkey;>99(5) — Public Service Commission authorized to require overhead crossing.</p> <p>Under Const. 1921, art. 6, § 4, relative to the powers of the Public Service Commission, section 9, rendering existing acts relating to the Railroad Commission applicable, and Act No. 132 of 1918, relative to the powers of the Railroad Commission, the Public Service Commission had authority to order the construction of an overhead crossing at a public highway.</p> <p>3.Railroads <©=>99 (I) — Order for overhead crossing not unreasonable.</p> <p>Where the main trunk line of an important highway being constructed under the plans of the state highway department with federal aid, available only on condition that an overhead crossing be constructed, crossed railroad tracks near a deep cut, making trains invisible, except under favored conditions, until vehicles were either on, or dangerously near, the crossing, an order of the Public Service Commission requiring the railroad to construct an overhead crossing was not unreasonable.</p>

Writ of Review to Court of Appeal, Parish of Jefferson Davis. Action by Arthur T. Jones against J. O. Modisette and others. Judgment for plaintiff, on defendants’ appeal, in the Court of Appeal, and defendants bring a writ of re-

<p>Appeal from Civil District Court, Parish of Orleans; Wynne G. Rogers, Judge.</p> <p>Suit by Jules Wolbrette against the New Orleans Drug Company. From a judgment appointing a receiver, defendant appeals.</p>

<p>Appeal from Fifteenth. Judicial District Court, Parish of Beauregard; Jerry Cline, Judge.</p> <p>Charles Oliver, alias Steam Shovel, was convicted of murder, and he appeals.</p>

Boone, Judge. Suit under the Employers’ Liability Act by Amos Johnson against the Vernon Parish Lumber Company for compensation for injuries. Erom a judgment awarding compensation, defendant appeals.

<p> (Syllabus by Mditorial Siaf.) </p> <p>1. Appeal and error <&wkey;438 — Filing of petition for appeal does not deprive district court of jurisdiction of motion for new trial.</p> <p>The filing of a petition for an appeal did not deprive the district court of jurisdiction to entertain a motion for a new trial, where the appeal had not been perfected by the filing of an appeal bond and the order of appeal had not even been granted.</p> <p>2. Judgment &wkey;>282 — -Not invalid because signed within time for applying for new trial.</p> <p>A judgment was not invalid because signed within the delay allowed for applying for a new trial, but became valid on denial of the motion for a new trial.</p> <p>3. New trial <&wkey;4 — Right to apply not affected by premature signing of judgment.</p> <p>The premature signing of the judgment within the delay allowed for applying for a new trial cannot interfere with the right to file a motion for a new trial within the time allowed.</p>

Boone, Judge. Suit under the Employers’ Liability Act by Henry B. Dewey against the Lutcher-Moore Lumber Company for compensation for injuries. Prom a judgment awarding compensation, defendant appeals.

<p>Appeal from Eighth Judicial District Court, Parish of Catahoula; S. R. Holstein, Judge.</p> <p>Jesse Richardson Sisemore and another were convicted of manslaughter, and they appeal.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John H. Boone, Judge.</p> <p>Cordell Horton was convicted of manslaughter, and he appeals.</p>

Proceeding by the Capital City Auto Company, Incorporated, against Raphael J. Folse and another. A judgment for plaintiff was affirmed without trial by the Court of Appeal, and defendants apply for certiorari or writ of review.

R. Land, Judge. Action under the Workmen’s Compensation Act, by Louis A. Hamilton and another against the Texas Company, for compensation for the death of plaintiffs’ minor son Mark Hamilton. Judgment awarding compensation, and defendant appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by the C. A. Andrews Coal Company, Limited, against the Board of Directors of the Public Schools, Parish of Orleans. From a judgment rejecting its demand, plaintiff appeals.</p>

M. Wallis, Jr., Judge. Action by Della Harang and others against the Golden Ranch Land & Drainage Company, in which G. Leo Thompson and others intervened. From a judgment dismissing the suit, plaintiffs and interveners appeal.

<p>Appeal from First City Court, Parish of Orleans; Val J. Stentz, Judge.</p> <p>Action by the State against Joseph D. Lanasa. lírom a judgment for defendant, the Tax Collector appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by the American Photo Player Company against Samuel Simon. Judgment for defendant on exception, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Robert A. Valley against George W. Clay. Judgment for defendant, and plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Constitutional law &wkey;>8 — Power of convention held as full as could be conveyed by people and Legislature.</p> <p>Under Act No. 180 of 1920, approved by the people, and providing for the calling of a convention to frame and adopt a new Constitution, the power of the convention, with certain exceptions, was as full as could be conveyed by the Legislature and the people.</p> <p>2. Constitutional law <&wkey;>8 — Convention had power to provide for extra session of Legislature, without proclamation by Governor.</p> <p>The constitutional convention, convened under Act No. 189 of 1920. had power to provide for a law-making body, and to provide when such body should convene, and in providing for extraordinary -sessions had power to provide that such a session should be held on the first Tuesday of September, 1921, with the full power of a’ regular session, and without being called by proclamation of the Governor, as was done by Const, art. 25, declared a part of the Constitution by article 22, § 1, par. 14.</p>

<p> (Syllabus by the Court.) </p> <p>1. Courts &wkey;>224(9) — Appeal transferred when jurisdictional allegation is mere conclusion, and unwarranted by the facts.</p> <p>Where the allegation made, by appellants, for purposes of appellate jurisdiction, that the amount involved exceeds $2,000 (the lower limit of this court), is a mere conclusion, and unwarranted by the facts and circumstances of the case, the appeal will be transferred to the appellate court having jurisdiction.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Courts c&wkey;224(l I) — Amount in dispute held insufficient to give Supreme Court jurisdic" tion.</p> <p>In a suit by members of a local union to enjoin the officers from putting in force a new constitution, increasing dues and raising president’s salary, the amount involved was insufficient to give the Supreme Court jurisdiction where the increase in plaintiffs’ dues amounted to only $96 a year, and their share of the increase in salary to less than $50 a year.</p>

F. Brunot, Judge. Mandamus by the State, on the relation of Herman D. Pallet, against the Board of Parole of the State of Louisiana. From an order and ruling denying the writ, plaintiff appeals.

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; J. A. Williams, Judge.</p> <p>Action by Arnold L. Churchill against the Texas & Pacific Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Nature of issues.</p> <p>Involves only issues of fact.</p> <p> (Additional Syllabus by Editorial Staf.) </p> <p>2. Pleading <&=»127(2) — Answer held not to admit dangerous condition of sidewalk.</p> <p>In an action for injuries, an answer admitting that complaint was made to the city regarding the condition of a sidewalk, and that it notified the property owner to make necessary repairs, was not an admission that it was dangerous to the extent of making the city liable, where the evidence showed that the notices referred to did not refer to repairs, but required the property owner to cause the sidewalk to be raised to grade and paved.</p> <p>3. Evidence <&wkey;596( I)— Plaintiff must make case fairly certain.</p> <p>A plaintiff must make his case fairly certain, and not merely possible or even probable.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Parties 4&wkey;65(() — In suit tO' restrain monopolizing of business, individual from whom corporation acquired business held improperly stricken as plaintiff.</p> <p>In an action by a transfer and storage company and an individual from whom it acquired its business against another transfer company and a telephone company, to restrain defendants from monopolizing the transfer and storage business, it was improper to dismiss the individual plaintiff from the suit where his presence could not injure defendants or complicate or retard the suit, though it was not apparent how his presence might be useful, as this might develop on the trial.</p> <p>2. Trade-marks and trade-names and unfair competition <&wkey;>92 — ■Allegation of infringement without supporting facts held insufficient.</p> <p>Where an allegation that one of the defendants had abetted the other in infringing plaintiff’s trade-mark was unsupported by the allegation of any facts upon which to base it, it called for no consideration.</p> <p>3. Telegraphs and telephones <&wkey;40>— Furnishing transfer company with information held not to infringe* rights of competing company.</p> <p>In the absence of any law imposing such duty, a telephone company is under no duty to abstain from conveying to a storage and transfer company information it may have as to persons intending to move, and its act in so doing does not infringe any rights of a competing storage and transfer company.</p> <p>4. Pleading &wkey;>8(3) — Allegation that defendant’s act is wrongful held a conclusion.</p> <p>An allegation that a telephone company’s act in giving a transfer company competing with plaintiff information as to persons intending to move was wrongful was a mere legal conclusion.</p> <p>O’Niell, J., dissenting in part.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.</p> <p>Actions by Delia Walker and by Ellis Stovall against the Nona Mills Company, Limited, consolidated. From a judgment dismissing the suits, plaintiffs appeal.</p>

Proceeding by Robert E. Courtin, involving the custody of a child, opposed by A. Oscar Browne and wife. Custody was awarded temporarily to plaintiff, and a suspensive appeal denied, and defendants apply for' writs of prohibition and mandamus.

<p> (Syllabus by Editorial Staff.) </p> <p>I. Corporations <®=>29(l) — One whose agent participated in organization could not attack incorporation and withdraw her interest.</p> <p>One whose husband, with special authority from her, participated in the organization of a corporation and the transfer to it of property of the estates of her deceased parents and who accepted stock for her interest and withdrew the surplus above the amount 'of her subscription, could not thereafter attack the incorporation and withdraw her interest from the corporation.</p> <p>2. Corporations &wkey;j448(l) — Agreement between organizers held binding only on them and not on corporation.</p> <p>An agreement between heirs organizing a corporation that the husband of one of them should be given a position of equal dignity and salary with that of another’s husband, related to a matter about which they had no power to bind the corporation, and any cause of action for its breach was against the individuals and not the corporation.</p>

<p>Appeal from Civil District Court, Parish •of Orleans; Ered. D. King, Judge.</p> <p>Proceedings to partition property of the succession of Mrs. Anna Caroline Czarnowski, .widow of Peter St. Amand. Prom the .judgment, the parties appeal.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Two actions by S. C. Waller and J. T. Waller against J. D. Colvin and others. From judgments for defendants, plaintiffs appeal.</p>

<p>Appeal from Thirtieth Judicial District Court, Parish of Caldwell; F. E. Jones, Judge.</p> <p>Wear Martin was convicted of shooting with intent to kill, and he appeals.</p>

Tammany; Prentiss B. Carter, Judge. Action by Raymond Garcia and wife against the Salmen Brick & Lumber Company. Prom a judgment for plaintiffs for an insufficient amount, they appeal. Affirmed. '

<p> (Syllabus by the Court.) </p> <p>I. Attorney and client <&wkey;24 — Client must show with certainty that attorney has bound himself for costs.</p> <p>One who undertakes to place the burden of his own debt upon another must show with certainty wherein such other person has thus bound himself, or point out clearly some law which so binds him.</p> <p>2. Attorney and client &wkey;?24 — Contingent feo does not obligate attorney to bear costs expended.</p> <p>Hence the fact that an attorney’s fee is to be contingent upon success does not oblige him to bear the c'osts expended, and for which his client becomes liable if unsuccessful.</p> <p> (Additional Syllabus T>y JSditorial Staff.) </p> <p>3. Attorney and client c&wkey;> 148(1) — Children employing attorneys to institute interdiction proceedings held not personally liable for attorney’s fees.</p> <p>Children who employed attorneys to institute proceedings for the interdiction of their mother for 5 per cent, of the total amount of the inventory if successful held not to have incurred any personal liability for the attorney’s fees.</p> <p>Dawkins and Thompson, JJ., dissenting in part.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Suit by Alice Jackson and others against G. W. Shaw, Jr. From a judgment for defendant, plaintiffs appeal.</p>

F. Stephens, Jr., Judge. Action under the Employers’ Liability Act by Dewitt H. Daniels against the Shreveport Producing & Refining Corporation for compensation for injuries. Compensation was awarded, and the employer appeals.

King, Judge. Proceedings by parties interested in the succession of Mrs. A. M. Untereiner to reduce a legacy. Judgment rejecting plaintiffs’ demand, and they appeal.

<p>Appeal from Twenty-Eighth Judicial District Court, Parish of St. Charles; H. N. Gautier, Judge. ’</p> <p>Suit by Olus H. Shelton against the Destrehan Mercantile Company, Incorporated. From a judgment placing it in the hands of a receiver, defendant appeals.</p>

<p>Appeal from 'Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>Action by Smedes Bros. Inc.,, against Morgan’s Louisiana & Texas Railroad & Steamship Company. Judgment dismissing the suit on exception, and plaintiff appeals.</p>

Mary; Percy Saint, Judge. Suit under the Workmen’s Compensation Act by Izella Gaines Bell against the Albert Hanson Lumber Company, Limited, for compensation for the death of her husband. From a judgment denying compensation, plaintiff appeals.

Suit by the Marine Bank & Trust Company against John D. Shaffer and others. An application for an injunction was denied, except on condition that bond be given, and defendants apply for writs of certiorari and prohibition.

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Percy Saint, Judge.</p> <p>Action by Swift & Co., Limited, against Leon Cahn & Co., and others. Erom a judgment for defendants, plaintiff appeals.</p>

<p>Suit by the Bank of Houma against John D. Shaffer and others. An injunction was denied, and defendants apply for writs of certiorari and prohibition.</p>

Action by Albert Hanna against C. D. Otis. Judgment for plaintiff was reversed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.

Tammany; Prentiss B. Carter, Judge. Suit by Henry J. Norton and Others! against John B. Comstock, testamentary executor, and others. From a judgment. annulling a nuncupative will, defendants appeal.

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; L. H. Perez, Judge.</p> <p>Suit by the Godchaux Company, Inc., against Albert Estopinal, Jr., Sheriff and ex officio Tax Collector, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H.. F. Brunot, Judge.</p> <p>Suit by the City of Shreveport against the-Southwestern Gas & Electric Company and others. From a judgment denying an injunction, plaintiff appeals.</p>

<p> (Syllabus by the Court.) </p> <p>(.Statutes @=>241 (I) — Penal statute strictly construed, and not extended to cases not clearly included.</p> <p>A penal statute must be strictly construed, and cannot be extended to cases not included within, the clear import of its language; nothing is a crime which is not clearly and unmistakably made a crime.</p> <p>2. Criminal law @=>13 — Penal statute must be certain.</p> <p>Every man should be able to know with certainty when he is committing a crime. It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large.</p> <p>3. Gaming c§=»73 — Oral bookmaking held not a “device,” and not contrary to law.</p> <p>Oral bookmaking is not a device within the meaning of Act No. 57 of 1908, to prohibit gambling on horse races by the operation of betting books, French mutual pooling devices, auction pools, or any other device; and is not violative of that statute.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Device.]</p> <p>Thompson, Land, and Baker, JJ., dissenting.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>4. Words and phrases — “Define.”</p> <p>To “define” something is essentially to mark the limits and fix the meaning thereof in such manner that the definition will not apply to any other thing than that defined.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Define.]</p> <p>5. Words and phrases — “Commercialized gambling.”</p> <p>“Commercialized gambling” is such gambling as is a source of sure and steady profit, and it is immaterial whether such profit be derived from percentages or winnings, or from the sale of franchises, or of programs and information.</p> <p>[Ed- Note. — For other definitions, see Words and Phrases, First and Second Series, Gambling-Gaming.]</p>

<p>Appeal from Criminal District Court, Parish of Orleans; N. E. Humphrey, Judge.</p> <p>Remy Dorr, Mark Boasberg, and T. J. Shaw were convicted of offenses, and they appeal.</p>

<p> (Syllabus by the Court.) </p> <p>Costs <@=>232 — Courts <@=>224(9) — Appeal transferred when claim inflated to give jurisdiction; on transfer of appeal in which claim inflated to give jurisdiction, costs taxed against plaintiff.</p> <p>Where plaintiff’s claim is manifestly inflated for the purpose of giving appellate jurisdiction to this court, the appeal will not be entertained here, but will be transferred to the proper appellate court; and plaintiff will be taxed with the costs of this court.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by the Widow Gaspare Lo Cicero against the Societa Italiana Di M. B. Cristoforo Columbo. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Mrs. Mary Vitrano, wife of Joseph Ravinier, against Isaac Levy. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Action by G. T. Shaw against J. R. Watson, Tax Assessor, and others. Erom a judgment in favor of plaintiff, defendants appeal.</p>

. Appeal from Civil District Court, Parish of Orleans; Wynne G. Rogers, Judge. Suit by Paul Y. Lacoste and others against the Department of Conservation of the State of Louisiana. From a judgment dismissing the suit, plaintiffs appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>Municipal corporations &wkey;>705( 10) — Pedestrian stepping from sidewalk without looking held negligent.</p> <p>A pedestrian stepping off the sidewalk into the roadway right in front of an automobile, without looking to see whether a vehicle was approaching, in violation of a traffic ordinance, was negligent.</p>

An instrument, acknowledging the receipt of $100 on account on house and land sold for $500, was not such a contract as amounts to a sale, but only a promise to sell and receipt for earnest money, from which the promisor could recede on payment of twice the amount of the earnest money under Civ. Code, arts. 2462, 2463. Suit by Dominic Terrebonne against Herve Cheramie.

,, Suit under the Workmen’s Compensation Act by Creed S. Leon against the Crowell & Spencer Lumber Company, for compensation for injuries. Prom a judgment for plaintiff for an insufficient amount, he appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.</p> <p>Action by Mrs. Paul Recknagle against the Uddo Bros. Company, Inc. From a judgment for defendant, plaintiff appeals.</p>

King, Judge. Mandamus by the State, on the relation of the Sewerage and Water Board, against the Commission Council of the City of New Orleans. From a judgment for the relator, defendant appeals.

Action by C. H. Rice & Son against John Barton Payne, Agent. A judgment for plaintiff was affirmed by the Court of Appeal, and the Yazoo & Mississippi Valley Railroad Company applies for certiorari or writ of review.

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; S. Allen Bordelon, Judge.</p> <p>Action by Walter Godchaux against the Texas & Pacific Railway Company, and its receivers. From a judgment dismissing the suit, plaintiff appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Gifts <&wkey;6 — Donations; conveyance in con- ' sicteration of support void when grantors left without sufficient property for subsistence.</p> <p>■ A deed showing on its face that it was in consideration of the grantee’s agreement to support the grantors was absolutely void under Civ. Code, art. 1497, where it left the grantors without sufficient property for their subsistence.</p> <p>2. Gifts @=340 — Limitation of actions @=336(3) —Donations; prescription; deed in consideration of support, leaving grantors without sufficient property for subsistence, not within prescription governing suits for rescission.</p> <p>A deed in consideration of the grantee’s agreement to support the grantors, which left the grantors without sufficient property for their subsistence, was not susceptible of ratification, and Civ. Code, art. 3542, providing a prescription of five years for suits for the rescission of contracts, was not applicable thereto.</p> <p>3. Limitation of actions @=337(4) — Prescription; suit to set aside void deed not within statute as to revocatory actions.</p> <p>A suit by heirs to recover land conveyed by their ancestor by a deed which was absolutely void under Civ Code, art. 1497, was not a revocatory action within the prescription of one year provided by Civ. Code, art. 1994.</p> <p>4. Adverse possession @=>7(3) — Public lands @=>111 — Prescription held not to run where final certificate issued when patent to another outstanding.</p> <p>Where, at the time a final certificate was issued to one entering land as a homestead, a patent to a railway company was outstanding, and the railway company subsequently reconveyed to the government a part only of the land, title remained in the government, and the prescription of 10 years acquirendi causa, under Civ. Code, arts. 3474 and 3478, et seq., did not run until the holders of the certificate relinquished their claim to 'the remainder of the land, and received a patent for the part surrendered by the railway company, as it was within the power of the General Land Office to suspend the issuance of a patent until such relinquishment.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Municipal corporations <&wkey;705(I)• — Automobile driver liable for putting himself in position where he' must run into some one to save himself.</p> <p>An automobile driver is liable if he puts himself in a position whore, in order to save himself from a collision, he must run into some one else.</p> <p>2. Municipal corporations &wkey;>705(l) — Driver exercising no care in approaching corner held liable for injury in avoiding collision.</p> <p>It was the duty of an automobile driver approaching- a street corner where the view was obstructed by a building to be doubly careful, and where he exercised no care at all, though he knew there was an unusual number of people on the streets, and that his foot brake was not working, he was liable for running into plaintiff in turning to avoid a collision with an automobile which came suddenly around the corner.</p> <p>3. Municipal corporations <&wkey;>705(IO) — Automobile driver injured while searching for trouble and cranking car while on the street not negligent.</p> <p>Where the engine of an automobile, which plaintiff was driving for the purpose of testing it, went dead in the middle of the street, he was not negligent in searching for the trouble and then cranking the car while on the street.</p> <p>4. Damages <&wkey;l32(l5) — $5,000 held inadequate for loss of leg and incidental suffering, etc., and to be increased to $7,500.</p> <p>Where an able-bodied blacksmith and automobile mechanic, earning $1,800 a year, was struck .by an automobile, necessitating the amputation of his leg, and was in the hospital for 44 days and suffered physically and mentally, and was still unable to work 15 months after the accident, and had to take his children out of school to support the family, a judgment for $5,000 was inadequate, and will be increased to $7,500.</p>

K. Skinner, Judge. Action by Edward Sears against Jules F. Peytral for compensation for injuries under tbe Employers’ Liability Act. From a judgment for defendant, plaintiff appeals.

<p>Appeal from Second Judicial District Court, Parish of Webster; J. N. Sandlin, Judge.</p> <p>Action by John H. Maxey against the Vicksburg, Shreveport & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>Mines and minerals <&wkey;58 — Lease without consideration properly canceled when potestative condition not availed of.</p> <p>Mineral lease which was without consideration, and under which the lessee assumed no obligation except such as might result from a potestative condition, was properly canceled where defendant had not availed itself of such condition.</p>

<p>Appeal from Third District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Suit by J. C. Garrett against the Shreveport Land & Mineral Company. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Vendor and purchaser <S=>I8(I, 3) — Sales; option and acceptance must be in writing; acceptance of option must be tendered.within time given.</p> <p>Under Civ. Code, arts. 1798, 1802, and 2275, and article 2462, as amended and re-enacted by Act No. 27 of 1920, an option to buy or not to buy immovable property and its acceptance must be evidenced by writing, and the acceptance must be tendered to the proposer before the expiration of the time limited in the option.</p> <p>2. Vendor and purchaser &wkey;>l8(3) — Sales; parol acceptance of option, followed by written acceptance after expiration of option, was insufficient.</p> <p>An acceptance of an option to buy real estate by telephone, followed by the tender of a written acceptance after expiration of the time specified in the option, was insufficient.</p>

<p> (Syllabus by Editorial Staf.) </p> <p>1. Divorce &wkey;>l82-T-Supreme Court cannot render judgment on affidavits first offered on appeal.</p> <p>The Supreme Court has no original jurisdiction in a proceeding for alimony pending a suit for separation, and cannot render judgment on affidavits' tendered for the first time on appeal.</p> <p>2. Divorce <&wkey;287 — Case remanded for further hearing, when conflicting affidavits presented as to wife’s income.</p> <p>As a proceeding for alimony pending a suit for separation is addressed entirely to the court’s equity powers, and the amount of alimony is subject to change in accordance with varying conditions, under Civ. Code, art. 232, the case will be remanded for further, hearing, instead of relegating the husband to another action, where conflicting affidavits are presented as to the wife’s income. •</p> <p>3. Frauds, statute of <&wkey;56(2) — Parol evidence of reality of sale admissible, to show wife’s ownership of property in proceeding for alimony.</p> <p>In a proceeding for alimony pending a suit for separation, examination of the wife as to the reality of a sale of property by her to her sister, for the purpose of ascertaining whether she really owned the income therefrom, was improperly excluded.</p> <p>4. Divorce 4&wkey;2l3 — Wife cannot give away her income and demand alimony pending suit.</p> <p>A wife may not give away rent really belonging to her, and at the same time compel the husband to make restitution by way of alimony pending a suit for separation.</p> <p>5. Divorce <&wkey;>209 — Statute controlling alimony pending suit for separation specified.</p> <p>The allowance of alimony pending a suit for separation is not controlled by Civ. Code, art. 160, providing that alimpny in suits for divorce shall not exceed one-third of the husband’s income, but by article 148, providing that, if the wife has not sufficient income for her maintenance, the judge shall allow her a sum for support proportioned to the husband’s means.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Partition &wkey;67 — Note of evidence not required in partition suit not cencerning minors or succession.</p> <p>Under Code Prac. art. 1042, requiring a note of evidence in probate cases, no note of evidence was necessary in a partition suit which concerned neither minors nor a succession.</p> <p>On Rehearing.</p> <p>2. Appeal and error <&wkey;907(4) — No presumption that judgment in partition suit was based on sufficient evidence, when transcript did not show proof of deed.</p> <p>Notwithstanding Act No. 43 of the Extra Session of 1870, providing that documents belonging to the files of court of the parish may be offered in evidence without a copy being made, where the deed or act of sale relied on by plaintiff in a partition suit was not a document forming a part of the files or records of the court, and the transcript did not show proof thereof, no presumption could be indulged that the judgment was rendered on sufficient evidence.</p> <p>3. Judgment <&wkey;248 — Judgment describing property different from that described in petition reversed.</p> <p>Where the judgment in a partition suit described property different from that of which plaintiff claimed in the petition to be part owner, it will be reversed.</p>

<p> (Syllabus by the Court.) </p> <p>1. Nature of issues.</p> <p>Involves only issues of fact.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>2. Sales &wkey;>52(5) — Evidence insufficient to show owner of sugar cane had sold it to brokers before delivery to defendant.</p> <p>In an action for a balance of the price of sugar cane delivered to defendant by plaintiff, which defendant had paid to brokers, claiming that they had previously bought the cane from plaintiff, evidence held insufficient to show any completed contract with the brokers.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Limitation of actions <&wkey;19(7) — Prescription does not cure radical defects in public sales.</p> <p>Under Civ. Code, art. 3543, providing that informalities connected with or growing out of any public sale shall be prescribed against after the lapse of five years, the prescription of five years cures all informalities in such sales, but not radical defects.</p> <p>2. Guardian and ward &wkey;>15 — 'Tutorship; mother properly appointed as dative tutrix without bond.</p> <p>The appointment of the mother of minor children, who had remarried, as their dative tutrix, without requiring bond, was legal under proper conditipns.</p> <p>3. Guardian and ward <&wkey;15 — Tutorship; where appointment without bond was recommended by family meeting, and no bond was fixed, bond held dispensed with.</p> <p>Where a family meeting recommended the appointment as tutrix of minors of their mother who had remarried, and the judge homologated' their proceedings, made the appointment, and authorized letters of tutorship to issue upon the required oath being taken, without fixing any bond, the furnishing of a bond was dispensed with.</p> <p>4. Guardian and ward <&wkey;9 — Tutorship; vote of three members of family meeting held to authorize appointment, though two members dissented, and undertutor refused to approve recommendation.</p> <p>An undertutor was not a member of a family meeting called to provide a tutor after the mother of minors had vacated her natural tutorship by her marriage, though required to be present to aid and advise, and, hence, where three of the five members voted to recommend appointment of the mother and her husband, the judge was authorized to homologate the proceedings under Civ. Code, art. 277, if he found the objections to such appointment not well founded, though two members dissented, and the undertutor refused to approve the recommendation.</p> <p>5. Guardian and ward <&wkey;>!7 — Tutorship; appointment could be attacked only by direct action, though court acted irregularly.</p> <p>If the court acted irregularly in determining whether objections to the recommendation at a family meeting as to the appointment of tutors were well founded, the appointment having been made by a competent court, and letters of tutorship having issued thereon, as directed by the order, the appointment could only be attacked in a direct action instituted for that purpose.</p> <p>6. Partition <&wkey;22 — Family meeting not illegal because participant had conflicting interest where compromise accepted did not deprive infants of any rights.</p> <p>Though one participating in a family meeting, which recommended the acceptance of an offer to compromise a partition suit, and fixed the terms and conditions on which the interests of minors should be sold, had at one time a conflicting interest, the meeting was not illegal where the compromise did not deprive the minors of any rights then or thereafter asserted by them, or any rights at all.</p> <p>7. Infants &wkey;>39 — Minors; "interest conflicting with that of minors necessary to render one incompetent to serve on family meeting.</p> <p>To make one incompetent to serve on a family meeting, the interest he has in the subject-matter before the meeting must be such an interest as conflicts with that of the minors.</p> <p>8. Partition <&wkey;22 — That member of family meeting authorizing sale was minor held cured by prescription.</p> <p>That one of the members of a family meeting which accepted an offer to compromise a partition suit, and fixed the terms and conditions of a sale, was a minor, was a defect cured by the prescription of five years provided by Civ. Code, art. 3543.</p> <p>9. Partition <&wkey;22 — That undertutor was ignored in holding family meeting held cured by prescription.</p> <p>It was improper in holding a family meeting to ignore one previously appointed as undertutor, and appoint another in his place; but, where the infants were represented by an undertutot appointed and recognized by the court, and sworn as such, the defect was prescribed against after the lapse of five years from the date of the sale.</p>

E. Edrington, Judge. Mandamus by the State, on the relation of Mrs. T. J. Sellers, against the Fifth Jefferson Drainage District and others. From a judgment for the relator, defendants appeal.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Mandamus <&wkey;!5l (2) — Assessor only necessary party to proceeding to compel omission of exempt property.</p> <p>Under Act No. 170 of 1898, §§ 7 and 22, Act No. 211 of 1918, § 1, pars. 1, 2, and 11, Act No. 140 of 1916, § 14 et seq., and Act No. 231 of 1920, it is the duty of the assessor to change the assessment roll where property thereon becomes exempt after the rolls have been completed and notice to taxpayers given but before the tax becomes a charge against the property, and mandamus to compel such correction is properly brought against him without joining the State Tax Commission or the board of equalization.</p> <p>2. Taxation i&wkey;497— Mandamus lies to compel striking of exempt property from the rolls.</p> <p>A writ of mandamus will issue to require that exempt property be stricken from the assessment rolls.</p> <p>3. Mandamus <&wkey;3 (9) — Remedy by injunction against tax on exempt property does not defeat remedy by mandamus.</p> <p>That one whose exempt property was placed on the assessment roll might have waited until the tax collector made an effort to enforce payment of the tax, and then proceeded by injunction, did not deprive it of its right to a writ of mandamus to require the striking of the property from the assessment rolls.</p> <p>4. Taxation <&wkey;>219 — Constitutional provision exempting debts means “debts” due to the taxpayer.</p> <p>Const, art. 10, § 4, exempting from taxation “debts” due for merchandise or other articles of commerce or for services, means debts due the taxpayer, and not debts due by him.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Debt.]</p> <p>St. Paul, J., dissenting.</p> <p>On Rehearing.</p> <p>5. Taxation <&wkey;204(3)— Property exempted by Constitution held not exempt from taxes for year in which new Constitution adopted.</p> <p>Under Const, art. 10, § 4, exempting credits from taxation, article 22, par. 4, providing that taxes due, owing, or accruing shall not be affected except as therein otherwise provided, and paragraph 13, declaring the Constitution in effect on July 1, 1921, except as otherwise provided, and Act No. 170 of 1898, §§ 13 and 17, undei; which ad valorem taxes are levied for the calendar year, credits were not exempt from the taxes levied for the year 1921, as they were accruing, if not due and owing, when the Constitution took effect.</p> <p>6.Taxation <&wkey;204(2) — Doubts as to construction resolved1 against exemption.</p> <p>A doubt as to the construction of a constitutional-provision exempting property from taxation should not be resolved in favor of, but against, the party claiming the exemption.</p> <p>Dawkins and Overton, JJ., dissenting.</p>

<p>Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.</p> <p>Action by the Mexican Importing & Exporting Corporation against A. E. Leonhardt & Co. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Percy Saint, Judge.</p> <p>Suit by Mrs. Alice B. Spansenberg Jose De Trava Carter. Erom a judgment for plaintiff, defendant appeals.</p>

Tammany. Suit by Melvin Quave against the LottBatson Lumber Company, Limited, for compensation for injuries under the Employers’ Liability Act. A judgment awarding compensation was amended by the Court of Appeal, and plaintiff applies for writ of review.

<p> (Syllabus by Editorial Staff.) </p> <p>1. Injunction &wkey;>76 — Court will interfere with police jury only for abuse fraught with injustice and injury.</p> <p>Police juries have both legislative and executive functions, and are vested with large discretion in their sphere of action, and it is only when they commit abuse fraught with injustice and injury to their principals that the judiciary will extend protection, and check such abuse.</p> <p>On Rehearing.</p> <p>2. Counties <&wkey;>l78 — Parishes; proceeds of bonds voted to improve particular road could not be used to build new road distant from the old.</p> <p>, Where police jury, submitting to taxpayers the question of issuing bonds to build roads, by separate ordinance designated the roads to be improved, and the amount to be expended on each road, and included a well-known road established for many years, the proceeds of the bonds could not be used to build a new road between the termini of the road mentioned •distant at one point two miles from the old road.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>I. Indictment and information <@=»l 10(31) — Information in language of statute for keeping blind tiger held sufficient.</p> <p>An information for keeping a blind tiger was sufficient where it charged the offense in the language of Act No. 8 of Extra Session of 1915.</p> <p>2. Criminal law <&wkey;1090(8) — Admission of-evidence not reviewable when bill of exceptions not reserved.</p> <p>The admission of evidence over accused’s objection cannot be reviewed where no bill of exceptions was reserved to the overruling of the objection.</p>

H. Stephens, Judge. Action by J. C. Pugh and others against J. Rogers Flannery with L. P. Garrot, as curator ad hoc. From a judgment sustaining a plea to the jurisdiction, plaintiffs appeal.

<p>Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.</p> <p>Eloyd Stucky and P. W. Sibley were in-dieted for murder, and Sibley was convicted of manslaughter, and appeals.</p>

<p>Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.</p> <p>Action by the Edgwood Company against H. P.' Ealkenhagen. Judgment for plaintiff, and defendant appeals.</p>

<p> (Syllabus by the Court.) </p> <p>I.Landlord and tenant <&wkey;47 — Estoppel is mutual, and lessor cannot deny obligations as such.</p> <p>The estoppel between landlord and tenant as to title in the former is mutual, and the landlord can no more deny his obligations as owner and lessor than the tenant can dispute his rights as such.</p> <p>2. Landlord and tenant <&wkey;l24(l) — In absence of agreement, tenant of room has use of porches in common with others.</p> <p>In the absence of agreement to the contrary, the tenant of a room in a house has the use of the porches accessible from such room, in common with the other occupants.</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>3. Landlord and tenant <&wkey;>l64(l) — One taking possession by permission of landlord’s agent not a trespasser, as regarded liability for injuries.</p> <p>A lessee of a room, who took possession of a room other than the one rented, by permission of one in charge of the property as a sort of superintendent, factotum, and go-between, was not a mere trespasser, as far as liability for personal injuries was concerned.</p> <p>4. Damages &wkey;>!30(4) — Seven hundred and fifty dollars held adequate for broken arm and injury to knee.</p> <p>Where plaintiff broke both bones of her right forearm, and suffered a severe contusion of the right knee, and was confined to her bed for a week, and her arm was in splints for three months, a judgment for $750 was adequate.</p>

<p> (Syllabus by Bditorial Staff.) </p> <p>Appeal and error &wkey;>IOII(l) — Finding on conflicting evidence not disturbed.</p> <p>On conflicting evidence in an action for slander as to whether defendant called plaintiff a nigger or half-breed nigger, the finding of the district judge that there was no preponderance of the evidence in favor of plaintiff held not to be disturbed.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Compromise and settlement <&wkey;l2 — Indorsement and collection of check bearing receipt in full settlement held not to release claim for wrongful discharge.</p> <p>Where an employer presented an account to an employee, in which he was credited with salary for two months, and which showed a balance for which a cheek was delivered, bearing on the back a receipt “in full payment of the within account,” the employee’s indorsement and collection of the check was not a settlement releasing the employer from the employee’s claim for wrongful discharge.</p> <p>2. Master and servant <§=568 — Right to wages not dependent on release.</p> <p>No principle of law or equity justifies an employer in withholding wages admittedly due, unless the employee will release the employer from all future responsibility under an unterminated contract of employment.</p> <p>3. Master and servant <&wkey;4l (1) — Statute as to recovery on wrongful discharge not repealed.</p> <p>Act No. 62 of 1914, § 1, prohibiting employers from requiring contracts by employees forfeiting their wages if discharged before completion of the contract, and providing that in such eases the employee shall only be entitled to wages to the time of discharge, must be construed in view of Const, art. 3, § 16, relative to the titles of acts, as applying only to lawful discharges or discharges for cause, and does not repeal Civ. Code, art. 2749, making an employer discharging a laborer without serious ground of complaint liable for the salary for the full term.</p> <p>4. Master and servant c&wkey;30(3) — Discharge for not getting results held justified.</p> <p>Where one employing a sales manager for lumber plant was not getting results which it had a right to anticipate when it employed Tiim, whether this was due to incompetency or inefficiency or other causes, there was serious ground of complaint, justifying his discharge under Civ. Code, art. 2749.</p> <p>5. Master and servant <&wkey;30(3)— Sales manager’s failure to get orders held not excused.</p> <p>If a sales manager’s failure to obtain orders was due to the fact that much, of his time was taken up with duties not pertaining to his employment, or the fact that the employer did not have sufficient stock on hand, he should have discussed these matters with the employer, with a view of remedying the situation, and, not having done so, could not set them up in a suit for wrongful discharge in explanation of his apparent shortcomings.</p> <p>6. Master and servant <&wkey;4l(l) — Statute as to recovery upon wrongful discharge held penal statute.</p> <p>Civ. Code, art. 2749, making an employer discharging a laborer without serious ground of complaint liable for the salary for the full term, is a penal statute.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Highways <&wkey;99 — Proceeds of bonds voted for described road cannot be used to build a part only.</p> <p>Where bonds were voted by the taxpayers of a district to build a described road, the police jury could not use the whole of the proceeds in building a part only of such road.</p> <p>2. Pleading <&wkey;228 — On exception, allegations of petition taken as true, and contrary allegations in answer not considered.</p> <p>On an exception of no cause of action, allegations of the petition that defendants were about to use the proceeds o£ a bond issue to build a part only of the road for which they were voted must be accepted as true, and allegations in an answer filed, showing an intention to build the whole road, cannot be considered.</p>

<p> (Syllabus by Editorial Staff.) </p> <p>1. Sales 172 — Embargo on shipment by water held not to excuse failure to deliver.</p> <p>Where a contract of sale of rice f. o. b. cars at point of shipment required the buyer to pay the freight, and contained no stipulation for shipment by ocean steamer, it was the duty of the seller to ship by the most available route, regardless of slight differences in freight rates, and an embargo on transportation by water was not a legal excuse for his failure to deliver.</p> <p>2. Sales <&wkey;>l72 — Shortage of freight cars held not to excuse failure to deliver, not being “inevitable accident” or “irresistible force.”</p> <p>A shortage of railroad freight cars did not justify or excuse the seller’s failure, to make delivery of rice under a contract of sale f. o. b. cars at point of shipment, it not constituting inevitable accident or irresistible force within Civ. Code, art. 2120, and not justifying the application of the doctrine of commercial frustration.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Inevitable Accident; Second Series, Irresistible Force.]</p> <p>3. Sales <&wkey;>l72 — Error in seller’s inquiry as to route of shipment held not to excuse failure to deliver.</p> <p>A buyer’s inquiry as to whether a seller would ship rice by the “Morgan Line” or “Southern Pacific” when both were parts of one system of water transportation on which an embargo was in force did not justify the .seller in failing to deliver without even informing the buyer of the error.</p> <p>4. Sales <&wkey;4!8(l2) — Freight deduoted from profit on resale in computing damages for nondelivery.</p> <p>Where rice was sold f. o. b. cars at the point of shipment, the freight charges must be deducted from the buyer’s profit on a resale in computing the damages for the seller’s failure to deliver.</p> <p>5. Sales i&wkey;4l8(2)— Damages for nondelivery cannot be based on prices on distant market at time subsequent to breach.</p> <p>The quantum of damages for a seller’s failure to deliver rice could not be based upon the prices prevailing in a distant market and at a time subsequent to that at which delivery should have been made. ' .</p> <p>6. Sales (&wkey;4l8(12)— Buyer’s liability on contract of resale not measure of damages when sale made without reference to contract of resale.</p> <p>Where a contract for the sale of rice was made without ’reference to a contract of resale by the buyer, the buyer’s liability on the latter contract was not the proper measure of damages for the seller’s failure to deliver.</p> <p>7. Sales <&wkey;4!8(2) — Damages from nondelivery determined by market value at time of final failure of execution.</p> <p>Where the time for delivery fixed in a contract of sale was extended by consent of the parties, the damages for nondelivery were fixed by the market value at the time of the final failure of execution.</p> <p>8. Sales <&wkey;4l8(2) — Measure of damages for seller’s failure to deliver stated.</p> <p>The damages recoverable for the inexecution of a contract of sale by the seller in the absence of bad faith are those in contemplation of the parties when the contract was made, and consist of the difference between the contract price and the market value at the time and place at which the goods were to be delivered.</p>