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one of the purchasers after he discovered that the plaintiff pay the costs in the district that the property would be very much im- court, and that, with this amendment, both proved in value after it had become a cer- applications for rehearing be refused. tainty that a railroad would be built. There were several purchasers. One of them never accepted at all, and departed this life without ever having accepted the deed.

In the present case for decision plaintiff, who holds the price, cannot be heard to set aside the sale while holding onto that price. In the cited case there never had been any cash price paid. As before stated, the trees were to be paid for as they were cut down and removed. This was attempted to be done in the cited case without an attempt having been made in due time to accept the deed.

[2] The proposition of plaintiff is that after the 10 years the instrument of writing is null, and the defendant has no right to the transfer.

Plaintiff is not in a position to urge that point by reason of the fact that there was a provision for the payment of taxes as before stated. To the clause relating to the payment of taxes an effect must be given, and when effect is given to it it renders it impossible for plaintiff to insist that the contract is at an end by the lapse of the 10 years, for the stipulation in regard to these taxes must be held as controlling and negativing the right to consider the instrument as a nullity.

But we are not inclined to extend the effect of the payment of the taxes to other years than the stipulated years in the timber deed. It still remains 10 years.

These deeds, although they do not contain a time limit, as in the case of the St. Louis Sawmill Co. v. Thibodaux, 120 La. 834, 45 South. 742, will be decreed closed whenever there is no positive stipulation as to time for removing the trees on the land. Such leases are not authorized to be entered into for a time without limit. We think the effect of the instrument should come to a close.

For reasons stated, it is ordered, adjudged, and decreed that the judgment of the district court is avoided, annulled, and reversed. It is further ordered, adjudged, and decreed that the defendant pay the taxes assessed and due after 10 years on the property, and have six months from date after judgment will become final within which to cut down and remove the trees included in the timber deed. At the end of that time if all the trees have not been cut down and removed, then the effect of the contract shall be at an end, and the defendant shall have no claim to any of the trees remaining on the place, whether standing or cut down; the costs of appeal to be paid by plaintiff.

On Application for Rehearing. PER CURIAM. It is ordered that our decree in this case be amended by ordering

No. 20,383.

STATE v. FUSELIER.

(134 La. 632)

(Supreme Court of Louisiana. Feb. 2, 1914. Rehearing Denied March 2, 1914.)

(Syllabus by the Court.) CRIMINAL LAW (8_798%*)-INDICTMENT AND INFORMATION (§ 125*)-INSTRUCTIONS-VERDICT - JOINDER OF OFFENSES - BURGLARY AND LARCENY.

"Burglary and larceny" may be treated as a single crime, and so charged in an indictment, and, where this is done, the court may charge the jury that it can bring in either a verdict of guilty or not guilty, and need not charge the jury that it may bring in one of the two abovementioned verdicts or a verdict of "guilty of larceny."

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1801, 1938; Dec. Dig. 7982 Indictment and Information, Cent. Dig. § 334-400; Dec. Dig. § 125.*]

Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.

Fabius Fuselier was convicted of burglary and larceny, and appeals. Affirmed.

E. B. Dubuisson, of Opelousas, for appellant. R. G. Pleasant, Atty. Gen., and R. Lee Garland, Dist. Atty., of Opelousas (G. A. Gondran, of Donaldsonville, of counsel), for the State.

BREAUX, C. J. The defendant was found guilty of burglary and larceny, and sentenced for a term of two years at hard labor in the penitentiary.

On the trial the judge, in instructing the jury, informed them as part of his charge that they could find one of two verdicts, viz.: Guilty or not guilty.

Thereupon counsel representing the accused requested the court to charge that the jury could find the defendant guilty as charged, or guilty of larceny, or not guilty.

The trial judge refused to change his charge as requested by counsel for defendant, and cited State v. Heloise Carriere, 127

La. 1030, 54 South. 339, in support of his ruling. The defendant thereupon excepted to the charge on this particular point.

There is unavoidably similarity between the charging part of the indictment in the decision before cited and that in the indictment in the present case.

The two crimes denounced are practically the same.

No question but that the rulings in the cited case and the present case are absolutely similar to all intents and purposes.

The only possibility of a change would be by recalling and setting aside the former decision as a precedent which has heretofore

received the unanimous approval of the and burglary. It may be charged in one court.

The question arises: Is the question of sufficient importance or has such a departure been made as to require the overruling the prior decree?

We are not of that opinion.

The question here has several times received consideration directly, and in some cases the principles here have been touched upon; although they are not directly in point, they establish the correctness of the position in the cited cases.

count, and treated as one in the trial, and it follows that the instructions may be equally as limited.

For reasons stated, the judgment is affirmed.

PROVOSTY, J., being absent on account of illness, takes no part.

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SMITH v. O'REILLY ELEVATOR CO. Limited.

There is no necessity of retracing steps on this question in jurisprudence, nor of setting (Supreme Court of Louisiana. Feb. 16, 1914.) aside decisions. This court is committed to the proposition that the act denounced here is denounced as one crime, indictable in one count.

It was said in the case of the State v.

Thomas, 28 La. Ann. 171, that the charge is not objectionable that confines the possibility of finding the accused guilty of one crime. The court, in the last-cited case, laid down the rule that the charge was not prejudicial; but it also found in effect that the instruction could be limited to one crime, that is, to burglary, and not to two, burglary and larceny.

In State v. Johnson, 34 La. Ann. 49, in which the defendant was charged with entering and stealing, the court held that the offense is "single," "being," to quote from the decision, "burglary committed in a particular manner"; that is, burglary by breaking and entering and stealing.

If the offense is "single," it follows necessarily that there was no necessity of charg ing as in the case of a dual offense: Burglary as denounced and larceny as denounced in the different statutes upon the subject.

The last-cited case is well sustained by a number of decisions and the opinion of commentators and law-writers.

Again, in the case of State v. Perry, 116 La. 231, 40 South. 686, similar view is expressed, and conclusion is reached as above expressed. See, also, State v. Carriere, 127 La. 1030, 54 South. 339.

We are not impressed by the dicta in State v. Roberson, 48 La. Ann. 1025, 20 South. 166, nor in State v. Ford, 30 La. Ann. 311, in which it is stated that, in the statute denouncing the crime with which the defendant is charged, the crime of larceny is not denounced in the manner and form required. They are not absolutely contrary to the views we express here, although they do not agree with some of the decisions we have cited. We deem it conservative to adhere to the more recent decisions on the subject, which we have cited above.

While the crime of larceny is not denounced in the statute under which the defendant was indicted, it has been held that it will be treated as one crime, and that there is no necessity of charging as to both larceny

(Syllabus by the Court.) APPEAL AND ERRor (§ 396*)—CitaTION OF AP

PEAL-DISMISSAL.

The omission of appellant to ask for a citation of appeal, and to have the same served granted on motion in open court, at a term subon the appellee, when the order of appeal was sequent to that at which the judgment was rendered and signed, is fatal to the appeal, which must be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2099, 2102, 2104, 2150; Dec. Dig. 396.*]

Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.

Action by Widow Mary Smith against the O'Reilly Elevator Company, Limited. From judgment of dismissal, plaintiff takes devolutive appeal. Appeal dismissed.

Frank B. Davenport and Louis R. Hoover, both of New Orleans, for appellant. McCloskey & Benedict, of New Orleans, for appellee.

On Motion to Dismiss Appeal.

LAND, J. Judgment in favor of the defendant dismissing plaintiff's suit was read and signed in open court on January 21, 1913.

On December 5, 1913, by motion made in open court, plaintiff obtained an order for a devolutive appeal from said judgment, and on December 10, 1913, perfected said appeal by filing bond in the sum fixed by the court.

Defendant has moved to dismiss the appeal on the grounds that no citation of appeal was ever prayed for by the appellant, or issued or served herein, and that, as the motion for appeal was granted at a subsequent term of the court, citation to the appellee was essential.

By Act No. 4 of 1896, p. 5, the terms of the civil district court for the parish of Orleans begin on October 15th, and terminate at the end of June, of each year. Hence the motion for the appeal was filed at the next term of the court. The record does not show that the appellant prayed for citation to the appellee, or that the latter was cited.

It is well settled that, when an appeal is taken at a subsequent term, the appellee must be cited. McGaw v. O'Bierne, 124 La. 989, 50 South. 819; Gagneaux v. Desonier, 109 La 460, 33 South. 561; Wheeler & Pierson v. Peterkin et al., 38 La. Ann. 663; Trousten &

Co. v. Ware & Munn, 39 La. Ann. 939, 3 averted from the wagon with which he colSouth. 122. lided. This witness says that:

It is therefore ordered that the appeal herein be dismissed, with costs.

"He [the child] walked right into the wheel of the wagon. The wagon was on the rightPROVOSTY, J., being absent on account of hand side of the street. The child was looking illness, takes no part.

(134 La. 637)

No. 19,910.

at an angle away from the wagon towards the uptown side of the street. The wheel struck him. He walked right into the wheel, and the wheel carried him right around with it, and passed over his neck. I got out [of my auto

TARRANABENA v. CENTRAL ICE & COLD mobile] and picked up the child and carried him

STORAGE CO., Limited.

PROFUMO v. SAME.

(Supreme Court of Louisiana. Feb. 16, 1914.)

(Syllabus by the Court.)

DEATH (§§ 58, 75*)—NEGLIGENCE SUFFICIENCY OF EVIDENCE-BURDEN OF PROOF.

In a suit sounding in damages, plaintiff must show fault on the part of the defendant. C. C. 2315; Act No. 71, 1884, p. 94; Act No. 120, 1908, p. 178.

[Ed. Note. For other cases, see Death, Cent. Dig. §§ 75-78, 93, 95; Dec. Dig. §§ 58, 75.*]

Appeal from Civil District Court, Parish of Orleans; Thos. C. W. Ellis, Judge.

Two actions, consolidated, for death of plaintiffs' child; one by Lena Tarranabena, wife of Angelo Profumo, the other by Angelo Profumo, both against the Central Ice & Cold Storage Company, Limited. From judgment for defendant, plaintiffs appeal. Affirmed.

Meyer S. Dreifus, of New Orleans, and Louis Goldman, of Biloxi, for appellants. James Legendre and Edward Rightor, both of New Orleans, for appellee.

SOMMERVILLE, J. Plaintiffs, the parents of a twenty-two months old child, sue defendant for the damages resulting to them from the death of said child, alleged to have occurred through the fault and neglect of the defendant company, or of one of its wagon drivers, for whose acts it is responsible. There was trial before a jury, and a verdict and judgment in favor of defendant. Plaintiffs have appealed.

The suit is brought under article 2315, C. C., as amended by Act No. 71, 1884, p. 94, and by Act No. 120, 1908, p. 178.

The defenses are a general denial and alleged contributory negligence on the part of the plaintiffs, the parents of the child.

The case presents only a question of fact, as to whether the defendant was in fault or not. It is unnecessary to discuss the defense of contributory negligence.

There was but one witness to the accident, and he was called to the witness stand by plaintiffs. Defendant offered no testimony whatever. The witness who testified to the accident resulting in the death of plaintiffs' child is a practicing physician in the city of New Orleans, and his testimony was clear and direct, to the effect that the child of plaintiffs, aged twenty-two months, was walking alone in Polymnia street, with his head

upstairs, and he died almost instantaneously. * He [the driver] was sitting on the right-hand side-on the extreme right-hand side -driving. He was seated on the seat. He did not strike me as seeing it [the child]. When I saw the child strike the wheel-the thing was done almost instanBefore I got to it, as I saw him walk_right taneously, like that [indicating with his hand]. looed the second time, the child had already into it, I hallooed. * At the time I halstruck the wheel, and the wheel had carried him over. * * * The child walked right into the wheel-walked right in there a child about this high [indicating]. He walked right into the front wheel, and his neck hit."

The testimony of this physician, witness for plaintiff, is conclusive that the driver of defendant was not at fault; and plaintiffs are bound by this testimony. It was not contradicted in any way, or even sought to be contradicted. It was corroborated in part

by the testimony of the driver of the wagon,

who did not see the child until after it had collided with the wagon; and he was a witness for plaintiffs also.

The jury saw the witnesses and heard the testimony, and they came to the conclusion that plaintiffs had failed to make out their case against defendant. Their finding was concurred in by the district judge.

Judgment affirmed.

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(Syllabus by the Court.) ATTACHMENT (§ 213*)-PENDENCY OF RULE TO DISSOLVE-EFFECT OF MAIN ACTION.

The right to institute and prosecute a suit tain judgment therefor, is not dependent upon, for the recovery of a sum of money, and to oband has no necessary connection with, the right to obtain a writ of attachment, save in cases where the defendant is sued as a person beyond the jurisdiction of the court, and who is to be brought into court only by means, and to the extent, of his property, which the sheriff may take into his possession by virtue of such in the jurisdiction of the court, and is brought writ. Hence, where the defendant resides withinto court by personal or domical service, the pendency of a rule to dissolve an attachment constitutes no obstacle to the trial of the case on its merits, or to the entering and confirming of a judgment by default.

[Ed. Note. For other cases, see Attachment, Dec. Dig. § 213.*]

Appeal from Fifteenth Judicial District [at his domicile therein. The judgment apCourt, Parish of Jefferson Davis; Alfred M. pealed from is silent as to the writ of atBarbe, Judge.

Action by the State National Bank against Hezekiah Winn on promissory note. From a Judgment for plaintiff, defendant takes devolutive appeal. Affirmed.

Cline, Cline & Bell, of Lake Charles, for appellant. J. Sheldon Toomer, of Lake Charles, and W. E. Gorham, of Jennings, for appellee.

Statement of the Case.

MONROE, J. On March 22, 1913, plaintiff brought suit against defendant on a promissory note, made by him to its order, and caused a writ of attachment to issue, under which certain movable property was seized. On April 29th following defendant filed a pleading, reading, in part, as follows:

"Comes the defendant, and, before pleading to the merits as to the writ of attachment sued out herein, with respect, represents."

tachment, the motion to dissolve which had not been disposed of up to the time that the appeal was taken. The right to institute and prosecute a suit for the recovery of a debt, and to obtain judgment therein, is not dependent upon, and has no necessary connection with, the right to obtain a writ of attachment, save in a case where the defendant is sued as a person beyond the jurisdiction of the court, and who is to be brought into court only by means, and to the extent, of his property, which the sheriff may take into his possession by virtue of that writ. The right to obtain a judgment for money depends upon the evidence of the existence vel non of the indebtedness. The right to obtain and maintain a writ of attachment, which shall hold the property of the defendant, in order that it may be there to respond to the judgment which the plaintiff may obtain after he shall have been heard upon the merits of his case, and shall have administered his proof, depends upon whether the defendant is alleged and proved to have mortgaged, assigned, or disposed of his property, with a view of defrauding his creditors, or of

Then follows an "exception" to certain paragraphs in the affidavit for attachment, on the ground that they disclose no cause of action; then a "plea" that plaintiff is estopped to allege, as in certain other para-giving an unfair preference, or to have congraphs of the affidavit, the absence or concealment of defendant; then, reserving the benefit of the foregoing, defendant denies, in toto, the truth of the affidavit; and he finally alleges that the attachment was wrongfully issued, and that he has thereby been damaged, and prays for judgment dissolving the attachment, and condemning plaintiff on that account. The pleading contains no allusion to the merits of plaintiff's demand on the note, and judgment by default was entered thereon, which, in due time, was confirmed. | Thereafter defendant moved to set aside said default and confirmation, on the ground that his exceptions to the affidavit for attachment and his motion to dissolve the writ were pending when the default was entered, and that the confirmation thereof

"was contrary to law and the evidence, as being based upon the premature entry of a preliminary default."

cealed himself, in order to avoid citation, etc. Whether, therefore, the debt sued for is due, and plaintiff is entitled to judgment, constitutes the merits of the case, and the merits of an ordinary case cannot be put at issue and tried on a rule to dissolve an attachment, which is a proceeding whereby the defendant is authorized to put at issue and test, in a summary manner, the sufficiency of the grounds relied on by the plaintiff, not for the bringing of an ordinary suit, but for invoking an extraordinary remedy in aid of such suit. The law upon the subject is well settled in this and other jurisdictions. Fisher & Taylor v. Hood, 2 Mart. (O. S.) 113; Turner v. Collins, 1 Mart. (N. S.) 372; Macarty v. Lepaullard, 4 Rob. 425; Miller v. Chandler, 29 La. Ann. 88; Herrmann & Vignes v. Amédée, 30 La. Ann. 393; Stover v. Hession, Man. Unrep. Cas. 394; 4 Cyc. "Attachment," II, A. 3, p. 398, and note 10.

We therefore conclude that the pendency, The motion so made having been overruled, in this case, of the rule to dissolve the atdefendant obtained an order for a devolu-tachment constituted no obstacle to the trial tive appeal from the main judgment, which is the matter now before this court.

Opinion.

Defendant was sued as a resident of the parish, and the sheriff's return shows that citation and copy of the petition were served

of the case on the merits, and that plaintiff was within its rights in entering and confirming the judgment by default.

The judgment appealed from is accordingly affirmed.

PROVOSTY, J., being absent on account of illness, takes no nart.

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(Syllabus by the Court.)

1. BRIBERY (§ 1*)-MUNICIPAL OFFICER-POLICE JUROR.

In any contingency in which a police juror may be called on to act, in his capacity as such, whether with respect to a legal ordinance or one that is illegal, an ordinance that is pending or one that is in contemplation, he has a duty to perform, and he is under the dominion of Act No. 78 of 1890, which declares that any officer, state, parochial, or municipal, who shall receive any money, bribe, present, reward, promise, contract, obligation, or security with the intent to be induced or influenced to vote or exercise any power in him vested, or to perform any duty of him required, with partiality or favor, shall be guilty of the crime of bribery. [Ed. Note.-For other cases, see Bribery, Cent. Dig. § 2, 3; Dec. Dig. § 1.*]

2. JURY (§§ 85, 103*) DISQUALIFICATION OPINION-DISCRETION.

The fact that, upon his voir dire, a person called to serve on a jury answers that he has received an impression, or has formed an opinion about the case, from what he has heard and read, will not of necessity disqualify him, where, upon further examination, he states that his impression or opinion will readily yield to evidence that may be adduced on the trial, and that he feels that he can find a verdict upon such evidence and the law as he may hear it on the trial. The question presented in such cases is left largely to the discretion of the trial judge, who is in a better position to decide it.

[Ed. Note.-For other cases, see Jury, Cent. Dig. 88 405, 444, 456, 460, 461-479, 497; Dec. Dig. 8 85, 103.*]

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3. CRIMINAL LAW (§ 1166%*) GROUND FOR REVERSAL-DISQUALIFICATION OF JUROR.

A bill of exception to the overruling of defendant's challenge, for cause, of a person pre sented as a juror, should show that defendant was compelled to accept the juror by reason of the previous exhaustion of his peremptory challenges, or that he was thereafter compelled to accept an objectionable juror because of the exhaustion of such challenges.

refuses the new trial, this court will not readily reverse his ruling.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3070, 3071, 3074; Dec. Dig. 1158.*]

Appeal from Twelfth Judicial District Court, Parish of Vernon; James G. Palmer, Judge.

Thomas J. Addison was convicted of bribery, and appeals. Affirmed.

Lee, Hardin & Atkinson, of Leesville, and Murff, Roberts & Thurber, of Shreveport, for appellant. R. G. Pleasant, Atty. Gen., and W. M. Lyles, Dist. Atty., of Leesville (G. A. Gondran, of Donaldsonville, of counsel), for the State.

MONROE, J. Defendant was convicted under an indictment which charges that he"while serving as a duly qualified and elected member of the police jury of Vernon parish, La., did willfully and feloniously, and with intent to be feloniously and corruptly induced and influenced to exercise and perform his duties as a police juror with partiality and favor, then and there willfully and feloniously accept and receive the sum of $250 from W. W. Thompson as a bribe and with the felonious intent of being induced and influenced to perform and tiality and favor, and that the said sum of $250 exercise his duties as a police juror with parwas feloniously received and accepted by the said T. J. Addison as a bribe for keeping the police jury from letting any contract for the the October meeting of said police jury, contraestimating of the timber of Vernon parish, at ry to the form of the statutes," etc.

[1] 1. Defendant's first bill of exception was reserved to the overruling of a motion to quash the indictment, on the ground that it sets forth the violation of no law of the state.

Section 1 of Act 78 of 1890 reads:

"That any person who shall directly or indirectly offer or give any sum or sums of money, bribe, present, reward, promise or any other thing to any officer, state, parochial or municipal, or to any member or officer of the General Assembly, with intent to induce or influence such officer or member of the General Assembly to appoint any person to office, to vote or exercise any power in him vested, or to perform any duty of him required with partiality directly or indirectly, and the officer or member of the General Assembly so receiving, or agreeing to receive, any money, bribe, present, reward, promise, contract, obligation or security, with the intent or for the purpose or considera tion aforesaid, shall be guilty of bribery and,

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. or favor, the person giving or offering to give, 11662.*]

4. CRIMINAL LAW (§ 829*)-REFUSAL OF INSTRUCTIONS COVERED.

Special instructions to the jury are properly refused when they have been covered by the general charge given by the trial judge.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 5. CRIMINAL LAW (§ 1158*)-APPEAL-DENIAL OF NEW TRIAL-DISQUALIFICATION OF JUROR EVIDENCE.

An attack upon a verdict of conviction, upon the ground that, since its rendition, defendant has discovered that one of the jurors had, before being selected, given utterance to expressions indicating prejudice against defendant and the intention to vote for his conviction, should be sustained by satisfactory evidence, and where the evidence is conflicting, and the trial judge

on conviction thereof. *

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The court, after referring to the act of 1878 (Act No. 59 of 1878, § 7), ruled as follows:

"The indictment, with proper averments, charges the defendant as being a parochial officer, and, as such, with receiving from W. W. Thompson the sum of $250, as a bribe, to vote, with partiality and favor, against having the timber of Vernon parish estimated, or, in other words, to prevent the police jury from having such estimation of timber made. The court is of opinion that the averments in the indictment charge an offense as denounced by the statute

•For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep'r Indexes

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